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CR.A/1098/2000 31/ 31 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1098 of 2000
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 ?
=========================================================
PRAVINBHAI
DHULIYABHAI NAYAK & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MS
SADHANA SAGAR appointed by Legal Aid Committee for Appellants
MR
KC Shah APP for Respondent-State of
Gujarat
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 07/08/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1.
Both the appellants (‘A-1’ and ‘A-2’ for short) of instant appeal
were charged and tried by the learned Additional Sessions Judge,
Vadodara, Camp at Chhotaudepur (‘the trial Court’ for short) in
Sessions Case No. 48 of 2000 for commission of the offences
punishable under Sections 302, 452 and 324 of the Indian Penal Code
(‘IPC’ for short) on the accusation that they have committed murder
of Ramdas and caused injury to Madhuriben with the weapon ‘paliyu’
in connection with a dispute with regard to giving share of the sale
price of a tamarind tree. At the end of the trial, both the accused
were found guilty to the offences with which they were charged and
the trial court vide judgment and order dated 24.11.2000 convicted
both the accused for the said offences and sentenced both the accused
persons to imprisonment for life and fine of Rs.3,000/- i.d., RI for
one year for the offence under section 302 IPC; RI for two years and
fine of Rs.1,000/- i.d., RI for six months for the offence under
section 452 IPC and RI for six months and fine of Rs.500/- i.d., RI
for three months for the offence under section 324 IPC. It is also
ordered that all the substantive sentences shall run concurrently.
Aggrieved
thereby both the accused have filed instant appeal under Section 374
of the Code of Criminal Procedure (‘the Code’ for short), through
jail authority.
2. The
prosecution case as disclosed from the FIR and unfolded during trial
is as under:
2.1. P.W.1,
Madhuriben Ramdas Nayak, the complainant has lodged her complaint
before P.W.12, Ramsing Gulabsing Baria, PSI of Karali Police Station,
wherein inter alia it is alleged that she was residing with her
husband and children. She was doing labour and household work. She
has a son named Premodbhai and a daughter Kapilaben. She was married
at village Karsan. There was a tamarind tree near their house and the
house of her maternal uncle Dhuliyabhai. Pravin and Arvind, the sons
of her maternal uncle, sold the said tamarind tree before one week
and they were not given their share of money from the said sale. Her
husband went to demand his share from the sale price of the
tamarind tree. But both the accused refused to give money. The day
before filing of the complaint, her husband demanded the money before
both of them but the money was not given. Her son Premo and his wife
with children had gone to his-in-laws at village Panibarand and hence
her husband Ramdas and she were alone at home.
On
the day of the incident, she and her husband Ramdas were sitting in
her house at about 2 O’ clock after having lunch. At that time
suddenly her maternal uncle’s sons Pravinbhai Dhuliyabhai Nayak and
Arvindbhai Dhuliyabhai Nayak came with paliya in their hands to her
husband and Arvind gave paliya blows to her husband at his neck and
Pravin gave another blow on the left ear by saving ‘Do you want the
share of tamarind tree.??. Arvind gave third blow on the head. As
the blows were being given one after the other on her husband, she
intervened by saying ‘don’t beat’. Arvind also gave a paliya blow on
the wrist of her right hand. It was hit a little. As the accused were
beating her husband and she apprehended that she also would be
beaten, she ran away from there. At that time Karsanbhai Mohanbhai
Koli came. Both the accused ran away after beating her husband before
it. She went to her father’s place at Rajpur and thereafter as her
husband was injured and he was alive, he was brought in a police van
to Karali Hospital. Her husband had died during the treatment. She
lodged the complaint alleging that her maternal uncle’s sons Pravin
and Arvindbhai, by keeping grudge on the share from the sale price of
the tamarind tree being demanded by Ramdas, entered their house and
gave paliya blows one after the other on the neck and head of her
husband and on her right hand wrist and thereby caused injuries and
her husband had died in Karali Hospital.
2.2. The
aforesaid complaint was recorded by P.W.12, Ramsing Gulabsing Baria,
as per the narration given by P.W.1, Madhuriben, the complainant and
thereafter it was registered vide CR No.6/2000. The said complaint is
at Ex.9. He thereafter started investigation. He has sent injured
Madhuriben to hospital for treatment with police yadi. Thereafter he
held inquest on the dead body of Ramdas in presence of Panchas and
Executive Magistrate. He has also drawn panchnama of the scene of
offence, collected sample and control earth. He has also recorded the
statements of the witnesses, arrested A-1 Pravinbhai after drawing
panchnama of his person in presence of panchas and also collected the
clothes worn by him having blood stains as well as the Paliya
produced by him. He has also recovered the clothes of the deceased.
He has arrested A-2 Arvind after drawing panchnama of his person in
presence of panchas. The clothes put on by him were also recovered by
drawing panchnama. A-2 has shown his willingness to show the weapon
used by him for commission of the offence and by drawing discovery
panchnama the weapon used by him was also recovered in presence of
panchas. He has sent the muddamal articles collected by him to FSL
for chemical analysis.
2.3. On
receipt of the post mortem report and FSL report and as sufficient
incriminating evidence was found against both the accused persons, he
filed charge sheet against them in the court of learned JMFC,
Chhotaudepur.
2.4. As
the offence under Section 302 IPC is exclusively triable by a Court
of Sessions, the learned JMFC committed the case to the Court of
Sessions, Vadodara, camp at Chhotaudepur.
2.5. The
learned Additional Sessions Judge to whom the case was made over for
trial, framed charge against both the accused. They pleaded not
guilty to the charge and claimed to be tried and thereupon they were
put to trial in Sessions Case No. 48 of 2000.
2.6. To
prove the culpability of the accused, the prosecution has examined 12
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, discovery panchnama, 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 them and recorded their further statement under Section 313
of the Code. In their further statement, they denied the case of the
prosecution in its entirety. They have stated that a false and
concocted case has been filed against them. However, they have
neither led any evidence nor did they examine any witness in support
of their defence.
2.9. On appreciation,
evaluation, analysis and scrutiny of the evidence on record, the
trial Court came to the conclusion that Ramdas has died a homicidal
death and the accused are the authors of the injuries caused to the
deceased with paliyu. The trial court has also held that in the said
incident the complainant Madhuriben also received injuries. Therefore
the prosecution has successfully established the complicity of the
accused for commission of murder of Ramdas and also causing injury to
complainant Madhuriben. On the aforesaid finding, the trial court
convicted the accused for the offences under Sections 302, 452 and
324 IPC and they have 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 original accused
persons.
3. Ms. Sadhna Sagar,
learned advocate for the accused appointed by the Legal Aid Committee
for the accused, has fairly conceded that deceased Ramdas has died a
homicidal death. She has submitted that P.W.1, Madhuriben who is the
complainant is interested witness and therefore no reliance can be
placed upon her oral testimony. She has emphasised that the
complainant has not deposed before the Court as per the complaint
Ex.9 given by her. According to Ms. Sagar, there are lot many
contradictions in the allegations made by the complainant in the
complaint as well as in her oral testimony which is fatal to the
prosecution case. All other witnesses are hearsay witnesses and
therefore no reliance can be placed upon their oral testimony. The
panch witnesses who were panch to the panchnama of discovery and
recovery of weapons allegedly at the instance of A-1 and A-2 have not
supported the prosecution case and therefore recovery of weapons is
not proved. Therefore, according to her, the prosecution has filed to
establish the charge levelled against the accused.
3.1. Alternatively it
is submitted by her that if this court accepts the evidence of the
prosecution in its entirety then also it is doubtful as to whether it
was A-1 or it was A-2 who has given fatal blow to deceased Ramdas
because in this connection there are contradictions in the complaint
given by P.W.1 and in the oral testimony of P.W.1 before the Court.
Therefore, it is submitted by Ms. Sagar that both the accused may be
given benefit of doubt and they may be acquitted of the offence
punishable under Section 302 IPC and instead they may be convicted
for commission of the offence under section 304 Part I or II i.e.,
culpable homicide not amounting to murder and accordingly the
sentence may also be suitably modified. Therefore she urged to pass
appropriate orders in this regard.
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, it is true that P.W.1
has given different version in her complaint as well as in her oral
testimony. However, she has stated that she has given complaint and
there was thumb impression in her complaint. She is a rustic
villager. Therefore there might be a little contradictions in her
oral testimony as well as in the complaint but that itself is not
fatal to the prosecution case.
4.1. In
reply to the alternative submission made by Ms. Sadhna Sagar, learned
advocate for the accused, Mr. K.C. Shah, learned APP has submitted
that looking to the post mortem report, all the injuries were fatal
and as per the complaint injury caused by A-1 is a sharp deep wound,
10x4x5 cm size and, therefore, the trial court has rightly convicted
both the accused for commission of the offence of murder of Ramdas as
well as causing injury to complainant Madhuriben. Therefore
complicity of both he accused punishable under Sections 302, 452 and
324 IPC is duly proved. 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 Ms. Sadhna Sagar, 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 the deceased Ramdas 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. Biren Manibhai Patel, who has performed the post mortem
examination on the dead body of Ramdas, at Ex.19. He has issued post
mortem report which is on record at Ex.22.
6.1. On a conjoint
reading of the oral testimony of P.W.8, Dr. Biren Manibhai Patel,
Ex.19 and the post mortem report at Ex.22, it is seen that there were
three external injuries, one on skull, another on left lower side of
the neck and the third was on left ear. The cause of death was due
to haemorrhage shock due to fracture injury of the skull of the head.
6.2. In view of the
aforesaid evidence, according to us, the prosecution has established
that Ramdas has died a homicidal death. We are, therefore, of the
opinion that the trial court has rightly held that Ramdas has died a
homicidal death and we accordingly confirm the said finding and hold
that the deceased has died a homicidal death.
7. It is also the case
of the prosecution that in the said incident, P.W.1, complainant-
Madhuriben has also received injuries. In this connection, the
prosecution has relied upon Medical Certificate at Ex.20 issued by
the Medical Officer, PHC Karali, Taluka Pavi, District Vadodara
wherein the injuries have been noted. Thus the prosecution has
established that in the said incident, the complainant Madhuriben has
also received injuries.
8. Now the next
question is whether the accused are the authors of injuries caused to
deceased Ramdas as well as the injuries to complainant Madhuriben.
8.1. To prove this, the
prosecution has mainly relied upon the evidence of P.W.1, Madhuriben
Ramdas Nayak, Ex.8. She has inter alia testified that the incident
had taken place prior to six months. When she and her husband were
sitting in their house, A-1 and A-2 came there with Paliyu for
beating her husband and they started beating her husband. A-1 Pravin
has inflicted paliyu blow on the neck of her husband. She was afraid
that she would also be killed. She requested both the accused not to
beat her and she embraced A-2-Arvind and at that time she also
received the injury. Thereafter she ran away and went to Rajpur
village where her father resides. Thereafter she had gone to the
police station and filed the complaint. The said complaint is at
Ex.9. She has identified the thumb impression on the said complaint.
After lodging the complaint she went to hospital for treatment.
She has also testified
about the enmity between the accused persons and her husband in
connection with the sharing of the sale price of a tamarind tree
which was sold by both the accused.
In cross-examination
she has reiterated that the complaint was recorded as narrated by
her. During the course of cross-examination she has been confronted
with the complaint given by her. After referring to that part of her
evidence, Ms. Sadhna Sagar, learned advocate for the accused, has
tried to convince this Court that her evidence is bristled with so
many contradictions and therefore no reliance can be placed upon it.
On reappraisal of the
evidence of the complainant, it is seen that she has not given
similar version in the deposition as was given in her complaint
before the police. But in the Examination-in-chief she is consistent
that both the accused came with Paliyu and started beating her
husband. The only contradiction is as to who has inflicted fatal
blows on the deceased. In the complaint she has alleged that A-2
Arvind gave two fatal blows to the deceased whereas in the deposition
she has stated that one fatal blow was given by A-1 and another blow
was given by A-2 and A-2 has also inflicted injury to her.
It may be appreciated
that in the post mortem report, there is mention of three injuries
on the dead body of Ramdas which corroborates the complaint at Ex.9
wherein also the complainant has stated about three injuries caused
to deceased Ramdas, two by A-2 and one by A-1.
8.2. It may be
appreciated that A-1, Madhuriben is a rustic villager. Therefore,
there are bound to be a little contradictions in her evidence
vis-a-vis the complaint. But she has reiterated that the complaint
is given by her which bears her thumb impression and the complaint is
recorded as per the narration given by her. Therefore, this Court
cannot ignore the complaint Ex.9. In sum and substance by and large
she has deposed as per the complaint and from her evidence, motive is
also established.
8.3. It
may be noted that she has been cross-examined at length by the
learned advocate for the accused. However, nothing substantial could
be brought out from the cross-examination which would impeach the
credibility of her evidence.
8.4. On reappraisal of
her evidence, according to us, there was no reason for her to falsely
depose against the accused persons who are also her cousins. She has
also stated that there was a dispute in connection with the sharing
of the sale price of a tamarind tree. The deceased was demanding his
share but the accused were not ready to give the same. Therefore
there was motive for the accused to commit murder of Ramdas and
therefore both the accused came with deadly weapon Padiyu and
inflicted injuries on vital parts of Ramdas as a result of which he
succumbed to the same.
9. 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:
9.1. 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.
9.2. 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.
10. The prosecution has
thereafter examined and relied upon the oral testimony of P.W.2,
Bhailalbhai Lulabhai Nayak, father of the complainant, Ex.10; P.W.3,
Premabhai Ramdasbhai Nayak, son of the deceased, Ex.11 and P.W.5,
Karshanbhai Mohanbhai Koli, Ex.14. These witnesses are not eye
witnesses. They came to know about the incident from P.W.1,
Madhuriben. However, there is no reason to disbelieve the say of the
above referred to witnesses as they are related to the accused
persons also and therefore there is no reason for them to falsely
rope the accused in the crime.
11. According to us,
there is no corroboration required to the evidence of P.W.1,
Madhuriben who is an eye witness and on the basis of her evidence
alone complicity of both the accused for commission of the offences
alleged against them has been duly proved. However, the prosecution
has also relied upon the recovery and discovery panchnamas.
12. As per the
prosecution case, the weapon was recovered from A-2 by drawing
discovery panchnama and from A-1 clothes and weapon Paliyu were
recovered which were found with blood stains. The said panchnamas
are produced on record at Exs.18 and 36. However, the panchas have
not supported the prosecution case and turned hostile.
13. In this connection,
it may be appreciated that it is well settled by catena of decisions
of the Supreme Court that merely because the panch witnesses do not
support the case of the prosecution, the case of the prosecution need
not be thrown over board as unreliable. It may be realized that the
phenomenon of panch witnesses turning hostile to the prosecution is
not unknown and is ever on the increase. It needs hardly to be
emphasized that the decision of a case does not depend solely on the
question whether the panch witnesses support the prosecution or turn
their back on it. If the decision to the case were to depend solely
on the testimony of panch witnesses regardless of the evidence of
police officers, in theory, it would be giving a right to veto to the
panch as so far as the question of culpability of an accused is
concerned, which is not permissible in criminal jurisprudence. It is
well settled that without good ground being pointed out, testimony of
police officers, if otherwise found to be true and dependable, cannot
be discarded by the court on the ground that they are police
officers. On the facts and in the circumstances of the case, by the
oral testimony of P.W.12, Ramsing Gulabsing Baria, Investigating
Officer, Ex.39, who has drawn both the panchnamas Ex.18 and Ex.36,
the contents of the said panchas are proved and as per the said
panchnamas the articles recovered from the accused persons i.e., the
clothes put on by them as well as the muddamal articles paliyu were
having blood stains.
14. As per FSL report
at Ex.33, the blood found on the muddamal articles is of O group and
the blood group of deceased Ramdas was also O group. Therefore from
the aforesaid evidence also complicity of both the accused for
commission of murder of Ramdas as well as causing injury to
complainant Madhuriben is duly proved.
15. The contention of
Ms. Sadhna Sagar, learned advocate for the accused, that there are
contradictions in the oral testimony of the complainant and in her
police complaint as to who gave fatal blows to deceased Ramdas and
since there are contradictions in the oral testimony of the
complainant and in the complaint given by her before the police,
benefit of doubt may be given to the accused, cannot be accepted
because there is evidence to the effect that both the accused came
with similar weapon and both of them inflicted injuries to deceased
Ramdas. The injuries inflicted by them were on vital parts of his
body i.e., head and neck. As per the say of the complainant in
complaint as well as in her deposition, both the accused came at a
time and started assaulting Ramdas with Paliyu. Both the accused were
having similar type of weapon and both the weapons were found stained
with blood of O group which was the blood group of deceased Ramdas.
There were more than one fatal injury on the vital parts of the
deceased i.e., head and neck. The complainant has deposed that both
the accused persons have assaulted deceased Ramdas with Paliyu.
Therefore, the contention of Ms. Sadhna Sagar that benefit of doubt
may be given to the accused cannot be accepted as both the accused
came with an intention to murder Ramdas on account of their enmity as
Ramdas was demanding share in the sale price of tamarind tree sold by
the accused.
16. The contention of
Ms. Sadhna Sagar that the offence committed by both the accused is
not an offence punishable under section 302 IPC but it is an offence
of culpable homicide not amounting to murder and therefore they may
be convicted for the offence under section 304 Part I or II and they
may be suitable sentenced also cannot be accepted because it will be
a mockery of justice to permit the accused to escape the adequate
penalty of law when faced with such evidence and such cruel acts. To
give lesser punishment for the accused would be to render the justice
system of the country suspect. The common man will lose faith in the
courts if adequate punishment is not imposed on the accused.
Therefore, we cannot give countenance to the contention of Ms. Sadhna
Sagar and accordingly we reject the same.
17. The contention of
Ms. Sadhna Sagar that the complainant is an interested witness and,
therefore, her evidence cannot be relied upon, also has no merit
because we cannot forget the fact that the complainant is the widow
of deceased Ramdas and she has seen the accused assaulting the
deceased with deadly weapons. Ramdas and the complainant were alone
in their house at the relevant time and this fact is established by
the evidence of the complainant. Naturally, therefore, the
complainant would be an eye witness to the incident and she has no
reason to falsely rope in the accused in the offence because the
accused persons are also related to her and we find no reason for her
to allow the real culprit to go scotfree and falsely implicate the
accused in such a serious crime. It has also come in the evidence of
the complainant that even she embraced A-2 requesting him not to
assault her and this behaviour of the complainant is eloquent enough
to show that she had soft-corners for the accused as they are
related to her and in such circumstances it will be very difficult to
believe, even remotely, that the complainant has falsely implicated
the accused persons in the crime.
18. The contention of
Ms. Sadhna Sagar that other witnesses are hear-say witnesses and
their evidence also cannot be relied upon has also no legs to stand
in view of the fact that on the basis of the evidence of P.W.1,
Madhuriben, the widow of deceased Ramdas, complicity of the accused
persons is established crystal clear and by examining other witnesses
the prosecution tried to corroborate the evidence of P.W.1. According
to this court, even without the evidence of other witnesses, who are
hear-say witnesses, the evidence of sole eye witness, who has lost
her husband in the incident, is sufficient to establish the guilt of
the accused and, therefore, even if this Court ignore the evidence of
other hear-say witnesses then also the complicity of the accused is
proved and the accused cannot make a slice of profit in their favour
by raising such a lame contention that the evidence of hear-say
witnesses cannot be believed.
19. On careful
consideration of the evidence on record and on reappraisal of the
same, it is clear that there was a motive on the part of the accused
persons to cause the murder of Ramdas as there was a dispute with
regard to sharing of sale price of tamarind tree which was sold by
the accused and as Ramdas was demanding his share and accused were
not ready to give, there was a dispute in this regard between them.
There is no reason for the complainant to falsely rope in the
accused persons in the crime as the accused persons are also related
to her.
20. In view of the
clinching and satisfactory evidence of the prosecution witnesses,
complicity of the accused in commission of the offence of murder of
Ramdas 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 offences under Sections 302, 452 and 324
IPC and Ms. Sadhna Sagar, learned advocate for the accused could not
dislodge the said reasons given by the trial Court.
21. 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.
22. 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.
23. For the foregoing
reasons, the appeal fails and accordingly it is dismissed.
Resultantly, the judgment and order of conviction and sentence dated
24.11.2000 rendered in Sessions Case No.48 of 2000 by the learned
Additional Sessions Judge, Vadodara, Camp at Chhotaudepur, is hereby
confirmed and maintained.
(A.M.Kapadia,J.)
(Z.K.Saiyed,J.)
…
(karan)
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