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CR.A/1023/2005 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1023 of 2005
With
CRIMINAL
APPEAL No. 898 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE V.M.SAHAI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MUKESHBHAI
KHEMABHAI NAI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
PRATIK B BAROT for
Appellant(s) : 1,
MR KL PANDYA ADDL. PUBLIC PROSECUTOR for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE V.M.SAHAI
Date
: 25/01/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
These
two appeals arise out of the judgment and order rendered by Sessions
Court, Patan, in Sessions Case No.47 of 2003, convicting
appellant-Mukeshbhai Khemabhai Nai-original accused No.1 for the
offences punishable under Section 302, 120(B), 452, 506(2) of IPC and
Section 135 of the Bombay Police Act, and original accused
No.2-Babubhai Lallubhai Patel-, appellant in Criminal Appeal No.898
of 2006, for offence punishable under Section 302 read with Section
34 and Section 120(B) of IPC. Original accused No.1-Mukeshbhai
Khemabhai Nai has preferred Criminal Appeal No.1023 of 2005, whereas
accused No.2- Babubai Lallubhai Patel has preferred Criminal Appeal
No.898 of 2006. For the sake of convenience, they are referred to as
accused Nos.1 and 2, respectively in this judgment.
2. Accused
No.1 was punished as under:-
(1) For
offence punishable under Section 302 of IPC, life imprisonment and
fine of Rs.5,000/-, in default, SI for 6 months;
(2) For
offence punishable under Section 120(B) of IPC, no separate sentence
was passed;
(3) For
offence punishable under Section 452 of IPC, RI for 2 years and fine
of Rs.1,000/-, in default, SI for 2 months;
(4) For
offence punishable under Section 506(2) of IPC, RI for 2 years and
fine of Rs.500/-, in default, SI for 1 month;
(5) For
offence punishable under Section 135 of Bombay Police Act, RI for one
month and fine of Rs.200/-, in default, SI for 1 month;
All
sentences were ordered to run concurrently.
2.1 Accused
No.2 was punished as under:-
(1) For
offence punishable under Section 302 read with Section 34 of IPC,
life imprisonment and fine of Rs.5000/-, in default, SI for 6 months;
(2) For
offence punishable under Section 120(B) of IPC, no separate sentence
was awarded;
(3)
For offence punishable under Sections 452 read with Section 34 and
Section 506 (2) read with Section 34 of IPC, the accused was
acquitted.
3. The
facts of the case, in brief, are that accused No.1 allegedly
committed murder of Minaben Patel on 20.3.2003 around 7-30 AM at
Balarwada in Patan by inflicting knife blows on vital part of her
body. The case of the prosecution further is that for committing
murder, A-1 had committed trespass, and intimidated the first
informant and witnesses. It is also the case of the prosecution that
this act was committed by A-1 at the behest of and in conspiracy
with A-2.
4. As
per the prosecution case, after committing the murder, when A-1 was
trying to escape from the place of incident, he was apprehended by
Keyurbhai Ambalal Jani, who, in turn, lodged the FIR. When A-1 was
apprehended, he was found to be in possession of blood-stained knife
and his clothes were also blood-stained. On the basis of the FIR,
offence was registered and investigated. The police filed
charge-sheet against both the accused for offence punishable under
Sections 302 read with Section 34, Section 452 read with Section 34,
Section 506(2) read with Section 34, Section 120(B) read with Section
34 of IPC and Section 135 of the Bombay Police Act. Investigation was
made and, ultimately, chargesheet was filed in the Court of Chief
Judicial Magistrate, Patan, who, in turn, committed the case to the
Court of Sessions and Sessions Case No.47 of 2003 came to be
registered.
4.1 Charge
was framed against the accused persons at Exh.9. The accused persons
pleaded not guilty to the charge and came to be tried.
5. The
trial Court, after considering the evidence led by the prosecution,
came to the conclusion that the prosecution was successful in
establishing the charges levelled against the accused persons and
convicted them of the offences, as stated in earlier part of this
judgment and passed the sentence. Hence, these appeals.
6. Learned
advocate Mr Pratik Barot appears for A-1 Mukeshbhai Khemabhai Nai –
appellant in Criminal Appeal No.1023 of 2005, and learned advocate Mr
Anil S Dave is represented by Mr Vicky Mehta for original accused
No.1- appellant in Criminal Appeal No.898 of 2006. The State is
represented by learned APP Mr Pandya.
7. Learned
advocate Mr Barot submitted that there is no direct evidence of any
eye-witness, who could claim to have seen the actual occurrence. He
submitted that there is no evidence of any conspiracy either. He
submitted that A-1 is not connected with the deceased in any manner
and had no motive for committing the offence. All these factors have
been overlooked by the trial Court. The appeal, therefore, may be
allowed.
8. Learned
advocate Mr Vicky Mehta submitted that the charge against accused
No.2 is that of having conspired and having deployed A-1 to commit
murder of deceased Minaben Patel. In absence of any such evidence, he
could not have been convicted by the trial Court. He submitted that
the appeal may be allowed.
9. On
the other hand, learned APP Mr Pandya submitted that so far as A-1 is
concerned, he was found to be leaving the premises from which the
deceased was found in a dead condition. The deceased had sustained
number of knife injuries, which, ultimately, resulted into her death.
It was also submitted that A-1 was having a knife in his hand, which
was blood-stained. That blood group was of the deceased. It was
further submitted that A-1 was apprehended on the spot with
blood-stained knife and blood-stained clothes. He had no reason to be
there and, as such, the case against him is proved beyond reasonable
doubt, as has been held by the trial Court.
9.1 So
far as A-2 is concerned, he is the person interested in ensuring
demise of deceased Minaben. He had suspected fidelity of Minaben and,
therefore, engaged A-1 do to away with Minaben. Otherwise, A-1 had no
interest in causing death of Minaben. The trial Court has, therefore,
correctly interpreted the evidence and recorded conviction. The
appeals may, therefore, be dismissed.
10. Having
regard to the rival submissions, we have examined the record and
proceedings.
11. A
perusal at the evidence would indicate that Keyur Ambalal Jani, the
first informant, Exh.29, Anishkumar Satyendrabhai, Exh.33 and
Ramjibhai Govindbhai Exh.40 would go to show that Keyur Ambalal Jani,
while passing by the house of the deceased, noticed A-1 coming out of
the house, trying to flee. He noticed that A-1 had a knife in his
hands, which was bleeding. The blood-group on that knife is reported
to be ‘O’ +ve, which is the blood-group of the deceased. He
apprehended A-1 and then reported the entire incident to the Police.
A-1 had no other reason to go to the place where the incident
occurred and the deceased resided. Soon after he was apprehended,
when the place of incident was visited upon by witnesses, the
deceased was found to be lying dead in the room. The only legitimate
inference that can be drawn is that A-1 had caused death of the
deceased, which is the only hypothesis possible which would lead to
the guilt of A-1 of the said offence. Added to the fact is that his
clothes were stained with blood of ‘O’ +ve group, which was of the
deceased. A-1 had no injury on his person. The injuries found on the
person of A-1 were in the nature of abrasions only.
12. The
trial Court was, therefore, justified in coming to the conclusion
that it was A-1 who was responsible for death of Minaben Patel.
13. So
far as A-2 – Babubhai Lallubhai Patel is concerned, he was
apprehended subsequently on the basis of interrogation of A-1. There
is no material to show that there was a nexus between both the
appellants. It is, therefore, difficult to infer that A-1 contacted
with A-2 to cause death of victim Minaben Patel. He, therefore, could
not have been convicted by the trial Court for the offence of murder
of Minaben with the help of Section 120(B) of IPC or with the help of
Section 34 of IPC. In our opinion, therefore, the trial Court erred
in convicting A-2. Therefore, Criminal Appeal No.898 of 2006
preferred by original accused No.2 deserves to be allowed and the
same is allowed.
14. So
far as Criminal Appeal No.1023 of 2005 preferred by Mukeshbhai
Khemabhai Nai is concerned, we do not find any merits in the appeal.
His conviction recorded by the trial Court is hereby confirmed.
15. In
the result, Criminal Appeal No.1023 of 2005 is dismissed.
16. So
far as Criminal Appeal No.898 of 2006 is concerned, the same is
allowed. The conviction of accused No.2- Babubhai Lallubhai Patel,
as recorded by Additional Sessions Judge, Fast-track Court, Patan, by
judgment dated 15.3.2005 in Sessions Case No.47 of 2003 for offence
punishable under Section 302 read with Section 34 of IPC and Section
120-B of IPC is hereby set aside. He is acquitted of charges levelled
against him. His Bail bond shall stand cancelled. Fine paid, if any,
be refunded to him.
(A.L.
DAVE, J.) (V.M. SAHAI, J.)
zgs/-
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