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CR.A/690/2001 20/ 20 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 690 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
PRABHUBHAI
JAGABHAI BHIL - Appellant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
JM BUDDHBHATTI appointed by Legal Aid Committee for Appellant
MR
KC SHAH APP for Respondent ? State of
Gujarat
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 13/08/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1.
Challenge in this appeal filed under Section 374 of the Code of
Criminal Procedure (‘the Code’ for short) is to the correctness of
the judgment and order dated 27.7.2001 rendered in Sessions Case
No.253 of 2000 by the learned Additional Sessions Judge, Baroda by
which the sole appellant/accused (‘the accused’ for short) has been
convicted for commission of the offence of murder of his wife
Kashiben punishable under Section 302 of the Indian Penal Code (‘IPC’
for short) and sentenced to imprisonment for life.
2. The
prosecution case as disclosed from the FIR and unfolded during trial
is as under:
2.1. P.W.1,
Sumitraben Prabhubhai, aged 15 years, daughter of victim-deceased
Kashiben and accused Prabhubhai Jagabhai Bhil, has lodged a complaint
before P.W.9, Pramodsinh Fatehsinh Gohil, PSI of Nasvadi Police
Station, wherein, inter alia, she has alleged that she is residing at
village Rengani, Taluka Nasvadi along with her parents and was doing
household works and labour. They are three brothers and sisters. She
is the eldest, her brother Laxman is younger to her and Ramila is
younger to him. Her father had gone to do labour at village Gothavat,
at about 3 O’clock, her brother Laxman had gone to Sim for getting
the goats to graze the grass and the complainant, her mother Kashiben
and her younger sister Ramila were present at their house.
At
about 5 O’ clock in the evening on the day of the incident, her
father had returned from his labour work and when he having given
twenty five rupees to her mother, told to purchase tea and sugar and
to prepare tea, her mother told that such rupees are earned by her
everyday and added what she had to do with his money. So there was
exchange of words between her mother and father. Thereafter she had
gone to play with the other girls Gitaben and Dholkiben of the street
behind her house and in no time, her younger sister Ramila shouted
from the house saying that Mummy was killed. On hearing the shouts,
she rushed to her house and saw her father beating her mother
Kashiben with a wooden log. So she having said to stop beating,
snatched away the log of wood from the hands of her father and her
father having taken a spade made of iron which was lying in the
house, gave four-five blows with the front part of the spade one
after another on the head of her mother; her mother having been
caught in blood stains, had fallen on the ground and at the time of
incident, she had gone to protect her mother but her mother had died
in no time. So when she took her head in her lap, her clothes had got
blood spots. As her mother had died, she had informed the incident to
Bava Dalsukhbhai residing near her house and when the Sarpanch was
informed about the incident by Mukeshbhai, he came there and she
accompanied him to the police station to lodge the complaint in
respect of the offence. As the murder of her mother Kashiben has been
caused by her father by giving blows with the wooden log and with the
front part of the spade, she filed the complaint at Nasvadi Police
Station.
2.2. The
aforesaid complaint was recorded by P.W.9, Pramodsinh Fatehsinh Gohil
and registered the offence against the accused vide CR No.I-63 of
2000 at Nasvadi Police Station for commission of offence punishable
under Section 302 IPC. The said complaint is on record at Ex.8. After
registration of the complaint, he started investigation. He informed
the Dy.S.P. Dabhoi about the said incident and visited the place of
offence. He held inquest on the dead body of Kashiben; sent the dead
body for post mortem examination to the Medical Officer, Tankhala;
drawn panchnama of scene of offence in presence of panchas; collected
sample earth and control earth from the place of offence; recovered
wooden log as well as spade used for commission of the offence having
blood stain; recovered the blood stained clothes of the complainant,
recorded statements of witnesses; recovered the blood stained clothes
put on by deceased Kashiben at the time of incident after the post
mortem examination; the accused was arrested and sent the muddamal
articles to FSL for chemical analysis.
2.3. On
receipt of the post mortem report and FSL report, as sufficient
incriminating evidence was found against both the accused, he filed
charge sheet against the accused in the court of learned JMFC,
Nasvadi.
2.4. As
the offence under Section 302 IPC is exclusively triable by a Court
of Sessions, the learned JMFC, Nasvadi committed the case to the
Court of Sessions, Baroda.
2.5. The
learned Additional Sessions Judge, Baroda (‘the trial Court’ for
short) to whom the case was made over for trial, framed charge
against the accused for commission of the offence punishable under
Section 302 IPC. The accused pleaded not guilty to the charge and
claimed to be tried and thereupon he was put to trial in Sessions
Case No. 253 of 2000.
2.6. To
prove the culpability of the accused, the prosecution has examined 9
witnesses consisting of the complainant, panch witnesses, doctor who
performed autopsy, investigating officer, etc., and relied upon their
oral testimonies.
2.7. To
prove the case against the accused, the prosecution has also produced
a number of documents such as complaint, post-mortem report, FSL
report, panchnamas, etc., and relied upon the contents thereof.
2.8. After
recording of the evidence of the prosecution witnesses was over, the
trial Court explained to the accused the circumstances appearing
against him and recorded his further statement under Section 313 of
the Code. In his further statement, he denied the case of the
prosecution in its entirety. He has stated that he is innocent and
his wife was killed by somebody. His daughter Sumitra with the help
of Mukesh and villagers has wrongly trapped him in the murder case.
He has stated that there was no quarrel or dispute between him and
his wife. However, he has neither led any evidence nor did he
examine any witness in support of his defence.
2.9. On appreciation,
evaluation, analysis and scrutiny of the evidence on record, the
trial Court came to the conclusion that Kashiben has died a homicidal
death and the accused is the author of the injuries caused to the
deceased with wooden log and back side of the spade. The trial court
has held that the prosecution has successfully established the
complicity of the accused for commission of murder of Kashiben. On
the aforesaid finding, the trial court convicted the accused for the
offence under Section 302 IPC and he has been sentenced accordingly
to which reference is made in the earlier paragraphs of this
judgment, which has given rise to instant appeal at the instance of
accused.
3. Mr. JM Buddhbhatti,
learned advocate appointed by the Legal Aid Committee for the
accused, has fairly conceded that Kashiben has died a homicidal
death. However, according to him, there is contradiction with regard
to the time of the incident and, therefore, possibility of falsely
roping the accused in a murder case of his wife cannot be ruled out.
He therefore submitted that the impugned judgment and order of
conviction and sentence deserves to be quashed and set aside by
allowing the appeal. He, therefore, urged to allow the appeal.
4. Per
contra, Mr. K.C. Shah, learned APP for the respondent – State
of Gujarat has submitted that there is no infirmity or illegality
committed by the trial Court in recording the conviction and sentence
against the accused. Therefore, no interference is called for in the
impugned judgment and order. According to him, there is no reason for
the complainant Sumitraben to falsely give complaint and to depose
in Court against her father. From her evidence alone the complicity
of the accused is proved beyond all doubts. She has categorically
stated that the accused is the assailant who murdered her mother and
there is no contradiction in the complaint as well as in her oral
testimony. He, therefore, urged to dismiss the appeal by confirming
the judgment and order of conviction and sentence recorded against
the accused by the trial court.
5. This Court has
considered the submissions advanced by Mr. JM Buddhbhatti, learned
advocate for the accused and Mr. K.C. Shah, learned APP for the
respondent ? State of Gujarat and perused the impugned judgment and
order. This Court has undertaken a complete and comprehensive
appreciation of all vital features of the case and the entire
evidence on record, which is read and re-read by the learned
advocates of the parties with reference to broad and reasonable
probabilities of the case. This Court has examined the entire
evidence on record for itself independently of the learned Judge of
the trial Court and considered the arguments advanced on behalf of
the accused and infirmities pressed, scrupulously with a view to find
out as to whether the trial Court has rightly recorded the order of
conviction and sentence.
6. There is no dispute
to the fact that Kashiben has died a homicidal death. Even the
learned advocate for the accused has not raised any dispute in this
regard. To prove this fact, the prosecution has examined P.W.8, Dr.
Maheshkumar Nagjibhai Sharma, who performed the post mortem
examination on the dead body of Kashiben, at Ex.23. He has issued
post mortem report which is on record at Ex.25.
6.1. On a conjoint
reading of the oral testimony of P.W.8, Dr. Maheshkumar Nagjibhai
Sharma, Ex.23 and the post mortem report at Ex.25, it is seen that
there was a fracture on the right side of occipital bone 10 to 12 cm
long and 5-6 cm broad size and brain part came out from the wound on
the skull and the cause of death was due to head injury followed by
fracture of scalp bone.
6.2. In view of the
aforesaid evidence, according to us, the prosecution has established
that Kashiben has died a homicidal death. We are, therefore, of the
opinion that the trial court has rightly held that Kashiben has died
a homicidal death and we accordingly confirm the said finding and
hold that Kashiben died a homicidal death.
7. Now the next
question is whether the accused is the author of injuries caused to
deceased Kashiben.
7.1. This is a case of
murder of his own wife by the accused and the solitary eye witness is
a female child named Sumitra, who is the daughter of the victim and
the accused, at the relevant time aged 15 years, who witnessed the
gruesome incident with her own naked eyes. To prove this, the
prosecution has mainly relied upon the evidence of P.W.1, Sumitra
Prabhubhai Bhil, Ex.7. She has inter alia testified as per the
narration given by her in the complaint. She has deposed that her
father had inflicted 2/3 blows on the head of her mother with a
wooden log and as she caught hold of the wooden log, which was in her
father’s hand, her father lifted a spade and inflicted five blows
with its blunt portion on her mother Kashiben. She has also given the
motive for the incident. She has testified that on the day of the
incident, her father came home and gave Rs.25/- to her mother for the
purpose of purchasing tea and sugar for preparing tea. Thereupon her
mother told him that ‘she is getting such amount every day and what
she should with his money’ and thereupon the quarrel took place and
the accused inflicted injuries to Kashiben as a result of which she
died. She has identified her signature in the complaint. She has also
stated that the said complaint is lodged by her in Nasvadi Police
Station.
7.2. It may be noted
that this witness was cross-examined at length by the learned
advocate for the defence but nothing substantial could be brought out
which would impeach the credibility of her evidence and she has
successfully withstood the test of cross-examination.
7.3. On reappraisal of
the evidence of the complainant, according to us, it is clear that
the complainant had witnessed the horrendous incident of murder of
her mother by her father and she was so unfortunate a child that she
had to lodge complaint in the police against her own father and also
to depose in Court against him testifying that he is the murderer of
her mother. She tried to save her mother but the accused threatened
her that he would kill her also. As the complainant caught hold of
the wooden-log in the hand of the accused, he took the spade and
assaulted Kashiben. Because of the assault and the resultant
injuries, Kashiben fell down and the complainant took her on her lap
and the hot blood that rained down from the deep gush in her head,
stained the clothes of the complainant. The complainant is the child
of the victim and the accused. It is not very difficult to
understand the agony she had undergone. On the one hand she has lost
her mother and on the other she has also lost the company and
protection from her father, at the tender age of 15 years. But,
inspite of all these facts, she has deposed what she had witnessed on
the day of the incident and we have no hesitation in holding that her
evidence is trustworthy and there is no reason to discard it.
8. It is settled
position of law that evidence of solitary eye witness is sufficient
to base order of conviction. In this connection, it would be
appropriate to refer to the following two decisions of the Supreme
Court:
8.1. In the case of
Kunju Alias Balachandran v/s. State of Tamil Nadu, (2008) 2 SCC
151, the Supreme Court has held that conviction on the basis of
the testimony of the sole eyewitness is permissible where the
testimony of sole eyewitness was not shaken although he was
cross-examined at length and the same was corroborated by the
evidence of another witness who did not support the prosecution
version in toto.
8.2. In the case of
Krishna Mochi And Others v/s. State of Bihar, (2002) 6 SCC 81,
the Supreme Court has held that credible evidence of even a solitary
witness can form the basis of conviction.
9. According to us, the
evidence of solitary eye witness Sumitraben is sufficient to
establish the complicity of the accused for the commission of offence
of uxoricide. However, to corroborate her evidence, the prosecution
has examined P.W.4, Dalsukhbhai Jethabhai, Ex.19/A; P.W.5, Ramabhai
Hirabhai Tadvi, Ex.19 and P.W.7, Sukhrambhai Karsanbhai, Ex.22.
9.1. From the oral
testimony of P.W.4, Dalsukhbhai Jethabhai, Ex.19/A it is seen that
he has been informed about the incident by Sumitraben. So far as
P.W.5, Ramabhai Hirabhai Tadvi is concerned, he is the Sarpanch of
the village and he was informed by Mukeshbhai about the incident
that the accused has killed his wife and therefore he went to the
house of the accused. So far as the oral testimony of P.W.7,
Sukhrambhai Karsanbhai, Ex.22 is concerned, he was informed by
P.W.1, Sumitraben and therefore he went to her house and so the dead
body of Kashiben.
9.2. On reappraisal of
the evidence of the above three witnesses, it is seen that they
immediately rushed to the scene of occurrence where they saw the
accused sitting in the house and the dead body of deceased.
10. To further
corroborate the prosecution case, the prosecution has also relied
upon the FSL reports which are produced at Exs.30 and 31. The blood
group of Kashiben was A. It is seen from the FSL reports that blood
of A group was found on the spade and wooden log used by the accused
for commission of murder of Kashiben. Blood of same group was found
on all the articles which were recovered by drawing panchnamas by the
investigating officer from the scene of offence and also on the
clothes put on by the deceased at the time of incident which were
recovered after post mortem examination was over. The aforesaid
circumstances also corroborate the evidence of the solitary eye
witness P.W.1, Sumitraben. Thus, the more one go into the evidence of
the prosecution, the more clear it becomes that the accused is guilty
of the offence of uxoricide.
11. In view of the
clinching and satisfactory evidence of the prosecution witnesses,
complicity of the accused in commission of the offence of murder of
Kashiben has been duly established. Suffice it to say that the trial
Court has given cogent and convincing reason for convicting the
accused for commission of offence under Section 302 IPC and Mr. JM
Buddhbhatti, learned advocate for the accused could not dislodge the
said reasons given by the trial Court.
12. We find ourselves
in complete agreement with the finding, ultimate conclusion and the
resultant order of conviction and sentence recorded by the trial
Court, as according to us, no other finding, conclusion and order, is
possible except the one reached by the trial Court, which is required
to be affirmed by us.
13. Seen in the above
context, there is no reason or justifiable ground to interfere with
the impugned judgment and order of conviction and sentence passed by
the trial Court, and as the appeal lacks merit, it deserves to be
dismissed by confirming the judgment and order passed by the trial
Court.
14. For the foregoing
reasons, the appeal fails and accordingly it is dismissed.
Resultantly, the judgment and order of conviction and sentence dated
27.7.2001 rendered in Sessions Case No.253 of 2000 by the learned
Additional Sessions Judge, Baroda, is hereby confirmed and
maintained.
(A.M.Kapadia,J.)
(Z.K.Saiyed,J.)
…
(karan)
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