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CR.A/879/2000 16/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 879 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 ?
=====================================================
PUNJABHAI
KARABHAI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=====================================================
Appearance
:
MS SADHANA SAGAR for
Appellant(s) : 1,MR G RAMAKRISHNAN for Appellant(s) : 1,
MR MUKESH
PATEL Ld. APP for Opponent(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 01/08/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. The
present appeal is preferred by the appellant against the judgment and
order of conviction and sentence passed by the learned Addl. Sessions
Judge, Porbandar in Sessions Case No. 19/1999 for the offence
punishable under sec. 302, 324 and 504 of IPC.
2. The
present appellant ? ori. Accused in Sessions Case No. 19/1999 was
charged and tried by the learned Addl. Sessions Judge, Jamnagar for
the offence punishable under sec. 302, 324 and 504 of Indian Penal
Code ( for short ?SIPC??.)
3. The
facts of the prosecution case is that the complainant Nathiben
Karabhai, on the day of incident, at about 12.30 noon heard abuses
from the house of Mana Rama and there were shouts ?Ssave save??.
She immediately went there and saw that there was knife in the hands
of Punja Kara, father-in-law of Manabhai’s daughter. He was telling
that ?Swhy have you brought my son’s daughter Rekha to your place ???
He gave a knife blow on the chest of Mana Rama and no sooner he tried
to give another blow than Nathiben caught hold of him, so there was
knife injuries on two fingers after Nathiben’s left hand thumb and
the first finger after her right hand thumb. Thereafter, Kana Mana
son of Mana Rama came with Jivtiben and her sister Meenaben. At that
time, Punja Kara ran away by leaving his cap and people had gathered
there from surroundings. Mana Rama had falled down and was moaning.
4. At
the end of the trial, the appellant accused was found guilty for the
offence of murder of Mana Rama punishable under sec. 302, 323 and 504
of IPC. He was, therefore, convicted vide impugned judgment and order
dated 11.8.2000 and sentenced to imprisonment of life for the offence
under sec. 302 of IPC and fine of Rs. 1000/-, in defualt, 2 years
imprisonment and for the offence under sec. 504 of IPC six months S/I
and under sec. 324 of IPC 9 months S/I. All the sentences to run
concurrently.
5. Being
aggrieved by the impugned judgment and order of conviction and
sentence, the appellant has preferred the instant appeal under sec.
374 of CrPC.
6. The
facts of the prosecution case is as follows:
7. That
Nathiben Karabhai Kuchhadiya, by caste Mer, was staying with her
parents at Near Bokhira Panchayat, Sajaniya Dela, Taluka Udhyognagar,
Porbandar. Her father was running Tea Hotel and Mer Mana Rama
Kahegiya was staying with his family in her neighbourhood. His elder
daughter Bhavna was married with one Balu, son of Punja Kara of
village Adityana in the year 1996 and she has one daughter also.
Bhavna was displeased for last 8 months, yet, her father-in-law
Punjabhai and his relative took Bhavna by assuring for not beating
before one month of the incident.
8. That,
on 27.12.1998, Bhavnaben’s parents viz. Mana Rama and Jivtiben had
gone to the place of Bhavnaben at village Adityana and returned with
Bhavnaben’s daughter Rekha at their place at about 5.30 O’clock in
the evening at village Bokhira. On 21.12.1998, Nathiben Karabhai was
taking lunch at about 12.30 noon, at that time, abuses were heard
from the house of Mana Rama who was staying near her and there were
shouts ?Ssave save??, so she immediately went there and saw that
there was a knife in the hands of Punja Kara, father-in-law of
Manabhai’s daughter and Punjabhai was telling that ?Swhy have they
brought her son’s daughter Rekha to their place ??? He gave a knife
blow on the chest of Manabhai Ramabhai and no sooner he tried to
give another blow, so Nathiben caught hold of him and Nathiben has
also received knife injuries on her two fingers.
9. Mana
Rama’s son Kana Rama came with Jivatiben and Minaben. At that time,
Punja Kara ran away by leaving his cap. So, people had gathered from
surroundings and Mana Rama had fallen down and was moaning.
Thereafter, Minaben and Jivtiben’s son Kana and Karsan Rama and
others took Mana Rama to Government Hospital in rickshaw and Nathiben
also came to Government hospital. Thereafter, it was came to know
that Mana Rama had died and she was also given treatment and got
discharged. Therefore, PSI of Udhyognagar Police Station, Porbandar
has registered complaint vide CR No. I-0089 of 1998 for commission of
the offence punishable under sec. 302, 324 and 504 of IPC. Pursuant
to the registration of complaint, investigation was
put into motion and inquest panchnama of dead
body was also drawn in the presence of panch witnesses and dead body
was sent for autopsy. Panchanama of scene of offence was also drawn
and statements of the witnesses were recorded. Injury certificate of
the complainant was obtained. Blood sample was obtained by Medical
officer. Thereafter clothes of deceased was recovered and sealed
under panchnama. Then, accused ? present appellant Punja Kara was
arrested. Blood sample of the appellant was taken and it was
recovered under panchanama. Then discovery panchnama of muddamal
knife was also drawn and it was seized. Clothes of present appellant
was also recovered. Copy of the Notification of the District
Magistrate, Porbandar was tagged with the investigation. Thereafter,
muddamal was sent to the FSL for scientific analysis. Map of the
place of incident was prepared and then on completion of
investigation against the accused, Investigating Officer has filed
charge-sheet in the Court of Judicial Magistrate First Class,
Porbandar under sec. 302, 324 and 504 of IPC for the commission of
the said offence. Since the offence punishable under sec. 302 of IPC,
is exclusively triable by the learned Sessions Judge, the learned
Magistrate has committed the case to the Court of Sessions,
Porbandar.
10. The
Learned Sessions Judge has framed the charge against the appellant
and the appellant-accused has not pleaded guilty and claimed to be
tried. Therefore, trial was proceeded in the Sessions Case No.
19/1999.
11. During
the course of trial, the prosecution has examined, in all, 26
witnesses to prove the culpability of the accused, which are as
under:
Dr.
Khudkhudiya Nurun Amin Ex. 6
Dr.
Bharatkumar Nathubhai Ex.9
Nathiben
Karabhai Ex. 14
Jivatiben
Manabhai Ex. 16
Kana
Manabhai Ex. 17
Karsan
Rambhai Ex. 20
Rambhai
Jagmal Ex. 18
Minaben
Karsanbhai Ex. 21
Hiraben
Karsanbhai Ex. 22
Sukabhai
Vejabhai Ex. 24
Jiviben
Karabhai Ex. 23
Arjan
Punjabhai Ex. 26
Lalji
Vasram Ex. 27
Mohan
Jadav Ex. 28
Keshu
Bhikha Ex. 30
Arjan
Sukabhai Ex. 32
Devabhai
Veja Ex. 33
Devashi
Lilabhai Ex. 34
Jaysukh
Gigabhai Ex. 35
Sukhdevsinh
Hanubha Zala Ex. 37
Jayantilal
Meghjibhai Ex. 42
Ashok
Labhshankar Ex. 46
Devshi
Jivabhi Ex. 45
Vedprakash
Raghuvirsinh Ex. 48
Rasiklal
Balubhai Ex. 54
Rajendrasinh
Hamirji Jadeja Ex. 56
12. The
prosecution has also produced documents just to prove the charge
levelled against the accused-appellant, which are as under:
Complaint
Ex. 15
Yadi
of Udhyognagar Police Station Ex. 49
Injury
Certificate of Nathiben Kara
Yadi
of inquest panchnama of dead-body Ex. 57
Inquest
panchnama of dead-body of Mana Rama Ex.25
Form
of death
Yadi
for PM
Yadi
to Medical Officer for blood sample and clothes of deceased
PM
Report
Panchnama
of scene of offence
Yadi
for blood sample and clothes Ex. 52
Panchnama
of blood sample and clothes Ex. 51
Yadi
for blood sample of Nathiben Kara
Yadi
of blood sample of Nathiben Kara Ex. 53
Panchnama
of blood sample of Nathiben
Yadi
by PI LCB to PSO for taking over papers Ex. 38
Arrest
panchnama of Punja Kara
Arrest
Memo of Punja Kara Ex. 39
Arrest
report of Punja Kara under sec. 58
Entry
in police station diary for arrest of accused
Yadi
to Medical Officer for collection of blood sample of Punja Kara
Yadi
for blood collection of Punja Kara
Panchnama
of blood of Punja Kara Ex. 47
Panchnama
of knife
Panchnama
of the clothes put on by accused
Copy
of Notification
Mudammal
sent to FSL Ex.62
Receipt
from FSL
Forwarding
Letter Ex. 64
FSL
Report Ex. 65
Report
of Serology Ex. 66
Report
of FSL Ex. 67
Yadi
for map of scene of offence Ex. 43
Map
of scene of offence Ex. 44
13. After
recording of the evidence of the witnesses, the trial court explained
the accused the circumstances which were appearing against him and
the statement of the accused was recorded under sec. 313 of CrPC. In
his statement, he denied the case in toto. He made a statement that
he has been wrongly booked in a false case. He neither led any
evidence nor examined any witnesses in support of his defence. On
appreciation, evaluation and scrutiny of evidence on record, the
trial court held that the appellant has committed the offence of
murder punishable under sec. 302, 324 and 504 of IPC. So, he was
convicted and sentenced to under go life imprisonment for the offence
under sec. 302 of IPC and fine of Rs. 1000/-, in default, 2 years
imprisonment and under sec. 504 of IPC six months S/I and under sec.
324 of IPC 9 months S/I.
14. Ms.
Sadhna Sagar learned Advocate appointed by the Legal Aid committee,
for the appellant, has contended that complainant is a chance
witness. She has no personal knowledge and from the oral evidence of
the complainant, it is on record that she is not a eye witness. She
has also contended that only single blow was found on the body of the
deceased, therefore, there was no intention to kill the deceased. It
is also contended by learned advocate Ms. Sagar that there was some
oral exchange of dialogue with the deceased and accused, therefore,
due to sudden provocation from the deceased, accused got excited and
that offence took place. So, Ms. Sagar has argued that this is simply
a case of single blow and, there was a sudden provocation also. So,
the judgment and order of the trial court is erroneous and against
the provisions of law. It is also contended that learned trial judge
has not considered the said issue and present appellant is wrongly
convicted for the offence of murder. She has contended that this is
not a case of murder but it can be considered to be a case under sec.
304 Part-II of IPC. She has also contended that the accused has not
inflicted the knife blow on the deceased with an intention to kill
him. So, the prosecution has failed to prove the charge levelled
against the accused and also argued that from the oral evidence of
single eye witness, there are so many contradictions, then trial
court cannot consider such type of evidence and cannot use it for
conviction. She alternatively submitted that all the evidence of
prosecution is culpable homicide not amounting to murder punishable
either under Part-I or Part-II of sec. 304 of IPC. She has also
contended that accused is in jail since more than 10 years and
therefore, conviction may be altered from sec. 302 of IPC to either
Part-I or Part-II of sec. 304 of IPC and sentence already undergone
by the accused may be treated as substantive sentence and accordingly
accused may be set at liberty forthwith.
15. Learned
APP Mr. Mukesh Patel appearing for respondent ? State has supported
the impugned judgment and order through out. According to him, there
is no infirmity in the prosecution case. It is contended that at the
event of the incident, present appellant was armed with knife, a
deadly weapon and possession of knife with the appellant, has a
reason to say that there was an intention of the appellant to kill
the deceased. He has also contended that from the oral evidence of
the complainant, it is established that on the vital part of the body
of the deceased, with full force the blow of knife was inflicted
and he has also tried to inflict second blow to the deceased, but
that blow was stopped by the present complainant and she has received
injuries on her two fingers. He has also contended that complainant
is a neighbour. She is not a relative and she cannot be cited as a
chance witness or interested witness. He has also contended that from
the complaint and oral evidence of the complainant, when she heard
some shouts from the place of scene of offence, she rushed there and
in her presence one blow of knife was inflicted by the appellant on
the deceased. So, the presence of the complainant is natural one. It
is also contended that from discovery panchnama, panchnama of place
of offence and oral evidence of the witnesses also, the prosecution
has produced sufficient circumstantial evidence in support of its
case. He has contended that in view of the well reasoned judgment of
the trial court, there is no substance in the present appeal and it
is required to be dismissed.
16. We
have considered the submissions made by learned advocate Ms. Sagar
for appellant and learned APP Mr. Mukesh Patel for the respondent-
State. We have perused the impugned judgment and order and set of
evidence supplied by him. During the course of submissions, we have
also undertaken a complete and comprehensive appreciation of vital
features of this case and the entire evidence on record, which is
read by learned advocates for the parties with reference to broad
reasonable probabilities of the case.
17. It
is not a disputed issue that deceased Mana Rama died homicidal
death. The prosecution has produced evidence of eye witness
complainant, oral evidence of medical expert as well as other
witnesses and also the evidence of panch witnesses and Investigating
Officer. PW-1 & 2 at Ex. 6 & 9, both are doctors and autopsy
was carried out by them and in detail the injuries were prescribed by
the expert witnesses and injury of the complainant is also produced
on record. We have gone through the injury of eye witness and from
the oral evidence, it is on record that when she heard shouts ?Ssave
save?? from the place of offence, she immediately rushed to the
place of offence and in her presence stab injury of knife was
inflicted on the vital part of the body of deceased and has
alsotried to inflict second blow but that blow was stopped by the
complainant and due to that, she had receive injuries on her two
fingers. So, her presence was natural and she cannot be cited as a
chance witness. There is no enmity with the present appellant, so
there is no case to say that complainant has wrongly booked the
present appellant in a case of murder. We have compared contents of
discovery panchnama, knife was recovered at the instance of the
appellant. Clothes of the appellant were also recovered. The
circumstantial evidence which are produced by the witness, we have
compared that evidence with the documentary evidence of autopsy.
Doctor has fairly established that the injury of the deceased was
sufficient in ordinary course of natural to cause death. The inquest
panchnama also corroborative piece of evidence with autopsy and oral
evidence of the witness. The trial court has established homicidal
death of the deceased and rightly recorded the said finding. In this
connection, we have scrutinized the evidence of PW-1 & 2. From
the evidence of PW-1, it is on record that accused ? present
appellant was aggressive in such a manner because his grand daughter
was brought by deceased to his house and that was against his will,
so the appellant was abusing by using such type of words to the
deceased and when he inflicted one blow on deceased and when
complainant has stopped him, she has received injuries. We have also
scrutinized the injury of the deceased from the evidence of doctors
and P.M. Note. It is on record that injury was inflicted on the
vital part of the body of deceased which was resulted into fatal.
From the cross-examination of the eye witness, we have not found any
contradictory version from the evidence of medical expert. We have
also not found any material contradiction from the oral as well as
documentary evidence of the prosecution. We have testified whole
evidence of eye witness as well as panch witnesses and panchnama of
discovery. We have found that contents of discovery panchnama, weapon
is also proved. We have perused the provisions of sec. 27 of the
Evidence Act and, we are of the opinion that ingredients of
provisions of sec. 27 of the Evidence Act is followed by the oral
version of the witness.
18. We
have scrutinized the oral evidence of the Investigating Officer and
we have not found any illegality or irregularity in the
investigation.
19. It
is settled principle that the evidence of the eye witness if found to
be trustworthy, reliable and acceptable without any doubt, then, it
cannot be thrown away simply due to neighbourhood of the witness
(complainant). It appears from the oral version of the eye witness-
complainant as well as evidence of doctors, that there is evidence to
the effect that the assault made by the appellant ? accused as made
with an intention and preparation. The conduct of the accused ?
appellant is also required to be considered and from the evidence, it
appears that prior to the incident, he was with knowledge and
intention and due to this reason, he carried the knife with him.
20. In
the present case, we have discussed the oral evidence of eye witness
as well as maker of autopsy. It appears that the injury of the
deceased was inflicted on the vital part of the body with a intention
to kill him and due to the blow of sharp edged weapon inflicted by
the appellant, injury of the deceased was found sufficient in
ordinary course of natural to cause death. The same could be said to
have been intended that the only injury which would be regarded as
intentionally was sufficient to resulting directly from the blow and
appellant could be held guilty of offence punishable under sec. 302
of IPC, looking to the cause of death, facts and circumstances of the
case. However, prosecution has bring the case under the provisions of
sec. 302 of IPC and it is required to be considered that it is a case
of murder and cannot fall under the provisions of sec. 304 Part-II.
We have also found that appellant intended to inflict that
particular blow which the doctor opined to be fatal is properly
observed. We have also found that there was a knowledge of appellant
by inflicting that injury he was likely to cause death and when
knowledge and intention was present, then, ingredients of murder can
be established.
21. Seen
in the above context, the impugned judgment and order dated 11.8.2000
passed by the learned Additional Sessions Judge, Porbandar in
Sessions Case No. 19/1999, convicting and sentencing the accused ?
present appellant for the commission of the offence under sec. 302,
324 and 504 of IPC, deserves to be confirmed. We found no substance
in the present appeal and the same is required to be dismissed.
22. In
the result, this appeal is dismissed. The impugned judgment and order
dated 11.8.2000 passed by thelearned Additional Sessions Judge,
Porbandar in Sessions Case No. 19/1999, convicting and sentencing the
accused ? present appellant for the commission of the offence under
sec. 302, 324 and 504 of IPC is confirmed. Mudammal to be disposed of
in terms of the judgment and order of the trial Court.
(A.M.KAPADIA,
J.)
(Z.K.
SAIYED, J.)
mandora/
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