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CR.A/1141/2006 2/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1141 of 2006
With
CRIMINAL
APPEAL No. 1582 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
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 ?
=========================================================
PARSHOTAMBHAI
AMTHABHAI NAI – Appellant(s)
Versus
STATE
OF GUJARAT – Opponent(s)
=========================================================
Appearance
:
In
both matters :
MR
MEHUL SHARAD SHAH for
Appellant(s) : 1,MR APURVA R KAPADIA for Appellant(s) : 1,
MR UR
BHATT, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 06/10/2008
ORAL
COMMON JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
Criminal
Appeal No. 1141 of 2006 came to be preferred by the appellant, who
was original accused in Sessions Case No. 156/1995, against judgment
and order dated 18/4/2006 rendered by the Ld. Presiding Officer, 7th
Fast Track Court, Palanpur, [for short ‘Ld. Trial Judge’] in the
aforesaid Sessions Case convicting the appellant accused for the
offences punishable under section 326 of the Indian Penal Code [IPC]
and under section 135 of the Bombay Police Act [BP Act] and awarding
sentence of rigorous imprisonment [RI] for 5 years and fine of
Rs.3,000/-, in default to further undergo simple imprisonment for 3
months for offence punishable under section 326 of the IPC and fine
of Rs.500/- and in default of payment of fine, to undergo simple
imprisonment for one month for the offence punishable under section
135 of the BP Act. Feeling aggrieved and dissatisfied with the order
of conviction recorded by the Ld. Trial Judge, the original accused
preferred this appeal.
2. However,
Criminal Appeal No. 1582 of 2006 came to be preferred by the State
of Gujarat under section 377 of the Code of Criminal Procedure [Cr.
P.C] requesting that the sentence awarded by the Ld. Trial Judge is
very lenient and deserves to be enhanced.
3. The
prosecution case, in nut shell, is as under :-
3.1. On
7/9/1995 at about 9.00 p m in the City of Deesa, near the office of
the Executive Magistrate, the accused inflicted knife blow on the
left hand side stomach of
deceased Somabhai Parshottambhai. Somabhai was immediately removed to
Government Hospital at Deesa. Injured Somabhai Parshottambhai
lodged FIR in connection with this offence. The FIR was
registered and the police commenced investigation. However,
on 16/9/1995 Somabhai Parshottambhai succumbed to the injury and,
therefore, during the pendency of police investigation, the offence
punishable under section 302 of the IPC was added. After the
completion of investigation, police filed charge-sheet in the Court
of the Ld. Judicial Magistrate First Class, Deesa for the offences
punishable under section 302 of the IPC and section 135 of the BP
Act. Since the offence was exclusively triable by the Court of
Sessions, the Ld. Magistrate committed the case to the Court of
Sessions at Palanpur.
3.2. The
Ld. Trial Judge framed charge against the accused for offences
punishable under section 302 of the IPC and under section 135 of the
BP Act. The accused did not plead guilty and claimed to be tried.
Therefore, prosecution adduced its oral and documentary evidence.
After the prosecution concluded its evidence, the Ld. Trial Judge
recorded further statement of the accused under section 313 of the
Cr. P.C., wherein the accused generally denied all the allegations
levelled against him and filed his written submissions in support of
his further statement, wherein in sum and substance he submitted
that he was wrongly implicated in this case and stated that the
deceased was not in a position to give any dying declaration.
3.3. The
Ld. Trial Judge, after appreciating the evidence on record and after
hearing arguments advanced on behalf of both the parties, delivered
the impugned judgment whereby the Ld. Trial Judge was pleased to
acquit the accused for the offence punishable under section 302 of
the IPC, but convicted the accused for the offences punishable under
section 326 of the IPC and under section 135 of the BP Act and
awarded sentence as stated hereinabove.
4. Learned
advocate Mr. Kapadia for the appellant accused during the course
of his arguments, submitted that the Ld. Trial Judge erred in
convicting the accused for the offences punishable under section 326
of the IPC and under section 135 of the BP Act. It is submitted that
the prosecution relied upon so called oral dying declaration made
before the witnesses. However, the depositions of those witnesses
before whom the deceased said to have given oral dying declaration,
their testimonies are not consistent and create doubt about the
genuineness of the case of the prosecution. That those witnesses
though deposed before the Court that upon inquiry, deceased orally
narrated the incident, but considering their evidence as a whole, if
those witnesses were available just nearby the scene of offence, they
should have seen the actual commission of the offence; but out of the
4 witnesses, only one witness named Suresh Nai submits that he had
seen the accused running away from the scene of offence. Thus, the
presence of these witnesses in the near vicinity of the scene of
offence cannot be believed. It is further submitted that as per the
prosecution case, Executive Magistrate recorded dying declaration of
the deceased; but considering the deposition of the Executive
Magistrate Mr. Vankar, he categorically admitted that before
recording dying declaration he did not inquire the Medical Officer
on duty about the physical and mental state of the deceased. That
thus no reliance can be placed upon the so called dying declaration
recorded by the Executive Magistrate. It is further submitted that
the prosecution relied upon the so called discovery of Muddamal
weapon knife, but both the panchas to the discovery panchnama have
turned hostile. Considering the deposition of the Investigating
Officer [IO], in his cross examination he admitted that he had made
independent search to find out the knife. That no reliance can be
placed upon the evidence adduced by the prosecution in connection
with discovery of the weapon knife. It is submitted that the
prosecution miserably failed to prove the motive behind this crime.
That as per the case of the prosecution, the accused suspected that
the deceased had illicit relations with his wife Ramilaben, who was
divorced by him. However, considering the deposition of Ramilaben,
she turned hostile and did not support the prosecution case regarding
the motive. That there are major contradictions in the depositions of
the witnesses examined by the prosecution. That Medical Officer on
duty, who administered initial treatment to the deceased, Dr. Bhati [
P W 1 ] stated that the deceased was brought to his hospital without
any police Yadi and therefore, he informed the police station by
telephone. However, considering the deposition of I O as well as the
deposition of P.S.O. Chataraji [ PW 16] he categorically stated that
he had not received any telephone call from Dr. Bhati. That thus, the
evidence adduced by the prosecution is very shaky and cannot be
relied upon. Therefore, it is requested that the appeal be allowed
and order of conviction recorded by the Ld. Trial Judge be set aside
and the appellant accused be acquitted.
4.1. In
connection with the criminal appeal preferred by the State of Gujarat
under section 377 of the Cr. P.C bearing Criminal Appeal No. 1582 of
2006, learned advocate Mr. Kapadia for the respondent accused therein
submitted that the prosecution miserably failed to prove its case
beyond reasonable doubt and as a matter of fact, the respondent
accused deserves acquittal and, therefore, the question of
enhancement of sentence may not arise.
4.2. On
behalf of the State of Gujarat, Ld. APP Mr. Bhatt, seriously opposing
the Criminal Appeal No. 1141 of 2006 preferred by the appellant
accused, submitted that the prosecution successfully proved beyond
any reasonable doubt its case against the accused and the Ld. Trial
Judge rightly came to be conclusion that the accused has committed
offences punishable under section 326 of the IPC and section 135 of
the BP Act. That the FIR itself was lodged by the deceased which
becomes his dying declaration before the police. After the lodgement
of the FIR the police recorded further statements of the deceased
which also become dying declaration before the police. That soon
after the incident when the deceased was on the place of occurrence,
the deceased narrated the incident and that he was assaulted by the
accused, to 4 witnesses. That over and above this, Executive
Magistrate recorded dying declaration of the deceased and in the
dying declaration recorded by the Executive Magistrate, it bears the
endorsement of the Medical Officer that the deceased was in a fit
state of mind to give dying declaration. That it is true that both
the panchas of the panchnama regarding the discovery of weapon knife,
turned hostile, but considering the deposition of I O the discovery
panchnama is duly proved. That considering the serological report,
it clearly transpires that the knife which was recovered at the
instance of the accused had blood marks of group B , which was
the blood group of the deceased. That
thus the prosecution successfully proved its case and the Ld. Trial
Judge rightly convicted the accused for the offences punishable
under section 326 of the IPC and section 135 of the BP Act.
Therefore, it is submitted that the appeal preferred by the appellant
accused be dismissed.
4.3. Ld.
APP Mr. Bhatt further submitted that in this case because of the
injury sustained by the deceased ultimately he succumbed to the
injury. There was no reason whatsoever for the Ld. Trial Judge to
award extremely lenient sentence of imprisonment for the period of 5
years so far as the offence punishable under section 326 of the IPC
is concerned. That, therefore, the Criminal Appeal No. 1582 of 2006
preferred by the State for the enhancement of sentence be allowed and
the accused be appropriately sentenced for the offence punishable
under section 326 of the IPC.
5. Considering
the record of the case, it clearly transpires that in connection with
this offence the FIR was lodged by the deceased before the police.
Considering the FIR exh. 78, it is clearly mentioned that the accused
inflicted knife blow on the left hand side stomach of the deceased.
Considering the deposition of I O Mr. Pranami, exh. 77, he deposed
that while the deceased was in hospital, his complaint was taken and
in the complaint exh. 78 whatever was stated by the deceased was
noted down. It further transpires that the FIR was registered on
7/9/1995 and on the next day dated 8/9/1995 the I O recorded
further statement of the deceased wherein the deceased stated about
the motive part of the incident that the accused was under impression
that he [deceased] had illicit relations with wife of the accused
named Ramila and that though the accused has given divorce to his
wife Ramila, the accused suspected that the deceased was to marry his
ex-wife Ramila. By keeping such suspicion in mind, the accused
inflicted knife blow. Thus, the further statement exh. 80 can be said
to be a dying declaration of the deceased before the police.
6. However,
considering the oral evidence on record, it transpires that witnesses
Natvarlal Hiralal [ P W 2], Ranabhai Kalidas [ P W 3], Sureshkumar
Mangaji Thakore [ P W 4] and Sureshkumar Babulal Nai [ P W 13] in
their depositions stated that upon hearing noise, they immediately
rushed where the deceased was lying and when they asked as to what
had happened, deceased Somabhai stated to these witnesses that he
[the deceased] was assaulted by the accused. Considering the
cross-examination of these witnesses made on behalf of the defence,
nothing emerges on record which would make their depositions
doubtful. Under such circumstances, what the deceased stated before
those 4 witnesses, becomes oral dying declaration of the deceased and
considering the oral dying declaration, it clearly transpires that
the deceased categorically stated that he was assaulted by the
accused.
7. The
prosecution examined Executive Magistrate Mr. Vankar [ P W 6] at exh.
45 and according to his deposition, on 7/9/1995 at about 10.00 p m
he received Yadi from P.S.O. Deesa to the effect that the dying
declaration of deceased Somabhai was required to be recorded. That,
therefore, at about 10-13 p m he reached the Civil Hospital, Deesa.
He further stated that soon after arriving at the hospital, he met
Medical Officer Dr. Bhati and inquired about the physical and mental
condition of the deceased and thereupon Dr. Bhati stated that the
deceased was fully conscious. Executive Magistrate Mr. Vankar
thereafter recorded the dying declaration of the deceased which is
produced at exh. 47. Considering the dying declaration exh. 47, the
deceased stated that on 7/9/1995 at about 9.30 p m, after closing his
shop when the deceased was going towards his home, at that time near
his shop, he was assaulted by the accused and that the accused
inflicted one knife blow on the left hand side of his stomach. Upon
inquiry made by the Executive Magistrate as to why the accused
inflicted knife blow on his body, the deceased stated that the
accused suspected that he [deceased] had illicit relations with the
wife of the accused and, therefore, because of such suspicion, he was
assaulted by the accused. Considering the dying declaration exh. 47,
below it there is a clear endorsement made by the Medical Officer
that during the time when the dying declaration was recorded, the
patient was fully conscious. However, it is true that in para. 13 of
his cross-examination Executive Magistrate Mr. Vankar stated that he
did not obtain any endorsement of any doctor regarding mental
condition of the deceased. Therefore, learned advocate Mr. Kapadia
for the appellant accused submitted that the dying declaration exh.
47 cannot be relied upon as there is no evidence whatsoever to come
to the conclusion that the deceased was in a fit state of mind to
give dying declaration. However, in this respect, what Executive
Magistrate Mr. Vankar stated in his cross-examination is that he did
not inquire about the mental condition of the deceased. However,
considering his examination-in-chief, he stated that he inquired to
the Medical Officer as to whether the deceased was conscious or not
and thereupon Medical Officer stated that the deceased was fully
conscious. In his cross-examination Executive Magistrate Mr. Vankar
nowhere admitted that he even did not inquire to the Medical Officer
as to whether the deceased was conscious or unconscious, before
meeting the deceased. Mr. Vankar categorically stated that he made
inquiry about this aspect of the matter and the Medical Officer
replies that the deceased was fully conscious. In this respect,
considering the deposition of Dr. Bhati [ P W 10], he stated that the
deceased was brought to his hospital at about 9.30 p m on 7/9/1995
and that the deceased had sustained one injury on the left hand side
of his stomach. He administered initial treatment. He stated that
when the deceased was under treatment, at about 10-00 p m he
received police Yadi. He further stated that the injury could be
caused by knife. Considering his entire deposition, it nowhere
transpires that when the deceased was brought to his hospital and
even during the period he was under his treatment, the deceased was
unconscious.
8. Under
such circumstances, the genuineness of the dying declaration recorded
by the Executive Magistrate Mr. Vankar cannot be doubted. It may be
noted that the deceased succumbed to the injury on 16/9/1995. The
Executive Magistrate Mr. Vankar recorded the dying declaration of
the deceased on 7/9/1995. Thus, here is not a case wherein the
deceased succumbed to the injury soon after sustaining the injury,
but he survived practically for the period of 9 days after sustaining
the injury and as stated above, there is nothing on record to come to
the conclusion that immediately after sustaining the injury or
during the time he was under treatment, he was unconscious. On the
contrary, considering the deposition of witness Sureshkumar Nai [ P W
13], he stated that the deceased was his uncle and as soon as he came
to know that the deceased had sustained injury and was under
treatment in the hospital, he went to the hospital and met the
deceased. As stated earlier in this judgment, upon inquiry, the
deceased told him that he was assaulted by the accused. Considering
the cross-examination made on behalf of the defence of this witness
Sureshkumar Nai, he categorically stated that when he went to the
hospital, at that time near the deceased there were Executive
Magistrate, Medical Officer and other persons. Under such
circumstances, there is nothing on record that the deceased was not
in fit state of mind to give dying declaration. On the contrary, the
prosecution proved by adducing positive evidence that at the time
when the Executive Magistrate recorded the dying declaration of the
deceased, the deceased was conscious and was in fit state of mind to
give dying declaration.
9. Considering
the medical case papers of the deceased, it clearly transpires that
on 7/9/1995 general condition of the deceased was fair. As per the
prosecution case, the FIR which was lodged by the deceased was lodged
on 7/9/1995 and on the same day, the deceased narrated the incident
before 4 witnesses as well as Executive Magistrate recorded his dying
declaration. Thus, the medical case papers support the case of the
prosecution that the deceased was conscious and his physical
condition was fair. It is true that both the panchas of discovery
panchnama exh. 82 turned hostile. However, in this connection,
considering the deposition of I O PI Mr. Pranami [ P W 17], he
stated that the accused was arrested on 26/9/1995 and in his presence
and in presence of panchas, the accused showed his willingness to
discover the weapon knife. I O Mr. Pranami stated that thereupon
preliminary panchnama was drawn and thereafter, the accused took them
to the compound of the office of Executive Magistrate and discovered
the knife and the same was recovered by the panchnama exh. 82. It is
true that I O Mr. Pranami in his cross-examination stated that before
the accused came to be arrested, he had made attempts to find out the
weapon wife, but he did not succeed in his attempt. Merely because I
O Mr. Pranami before arrest of the accused made attempt to find out
the weapon knife, thereby it cannot be said that the discovery
panchnama exh. 82 which was drawn on 26/9/1995 becomes doubtful. The
important aspect is what the accused stated before police and panch
about the place of concealment of the knife. Considering the
deposition of I O PI Mr. Pranami and the panchnama exh. 82, we are
of the considered opinion that the discovery of the knife at the
instance of the accused in accordance with section 27 of the Evidence
Act is proved.
10. In
this connection, considering the serological report of the FSL exh.
84, it transpires that the blood group of deceased was B .
During the course of analysis, blood stains were found on the knife
by the FSL and as per the serological report, the blood stains found
on the knife were of group B . Thus, the serological report
further supports the case of the prosecution that the knife which was
discovered by the accused vide panchnama exh. 82 was used by him
while causing injury to the deceased.
11. In
the impugned judgment the Ld. Trial Judge elaborately discussed the
evidence adduced by the prosecution and ultimately came to the
conclusion that though the prosecution failed to establish its charge
against the accused for the commission of offence of murder
punishable under section 302 of the IPC, the prosecution successfully
proved that the accused has committed the offence of grievous hurt
punishable under section 326 of the IPC.
12. It
is important to note that the prosecution did not challenge the
acquittal of the appellant accused for the offence of murder
punishable under section 302 of the IPC. The State did not prefer any
appeal under section 378 of the Cr. P.C challenging the acquittal of
the accused for the offence of murder. The State preferred appeal
under section 377 of the Cr. P.C for enhancement of sentence awarded
by the Ld. Trial Judge for the offence punishable under section 326
of the IPC. Therefore, the fact remains that the State did not
challenge the acquittal of the accused for the offence of murder
punishable under section 302 of the IPC.
13. So
far as the Criminal Appeal No. 1582 of 2006 preferred by the State
under section 377 of the Cr. P.C for the enhancement of sentence is
concerned, considering the impugned judgment delivered by the Ld.
Trial Judge, it transpires that the Ld. Trial Judge awarded the
sentence of RI of 5 years and fine of Rs.3,000/- to the accused for
the offence punishable under section 326 of the IPC. While fixing
the quantum of the sentence, the Ld. Trial Judge observed that the
impugned judgment was delivered on 18/4/2006, whereas the offence had
taken place much earlier in the year 1995. He also observed that the
accused was very young. In that background Ld. Trial Judge exercised
his discretion in fixing the quantum of punishment. Considering the
facts and circumstances of the case, we do not find that the
discretion exercised by the Ld. Trial Judge can be said to be
arbitrary exercise of his power. Further it cannot be said that the
quantum of punishment fixed by the Ld. Trial Judge can be said to be
unduly lenient causing miscarriage of justice. Under such
circumstances, we are of the considered opinion that while fixing the
quantum of punishment the Ld. Trial Judge did not commit any
illegality or irregularity.
14. For
the foregoing reasons, the Criminal Appeal No. 1141 of 2006 preferred
by the appellant accused deserves to be dismissed. The order of
conviction and sentence recorded by the Ld. Trial Judge deserves to
be confirmed. In the result, Criminal Appeal No. 1582 of 2006
preferred by the State of Gujarat under section 377 of the Cr. P.C
for the enhancement of the sentence also deserves to be dismissed.
Both
these appeals stand dismissed.
(
A. L. DAVE, J.)
(
J .C. UPADHYAYA, J. )
*Pansala.
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