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CR.A/130/2003 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 130 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================
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 ?
=========================================
RAMANBHAI
VALABHAI GAMETI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
NK MAJMUDAR for Appellant
MR KL PANDYA, ADDL. PUBLIC PROSECUTOR
for Respondent
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 10/02/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellant came to be charged for the offence of murder of his
brother Laxmanbhai allegedly committed on 2nd July 2001
around 6:00 p.m. at Village Takhatpura by inflicting knife blows.
The Trial Court convicted him of the same offence and sentenced to
undergo imprisonment for life and to pay a fine of Rs.5,000/-, in
default, to undergo rigorous imprisonment for three months. The
appellant was charged with an offence punishable under Section 135
of the Bombay Police Act, which the Trial Court did not believe and
acquitted the appellant. The judgement was rendered on 17.1.2003 by
Sessions Court, Modasa in Sessions Case No.125 of 2001.
The
facts of the case in brief are that the appellant and his brother
Laxmanbhai were staying near each other at Village Takhatpura. On
the day of incident, Laxmanbhai and his father Valabhai had some
altercation because of the cattle. At that time, appellant was not
at home. When he came home and was about to take bath, he was
informed about the incident. He, therefore, got up, put on his
clothes, went inside the house and rushed towards Laxmanbhai, who
was proceeding from his home towards his field. The appellant
attacked Laxmanbhai from behind and inflicted multiple knife blows
on various parts of the body varying from head to hand. The injured
person ultimately succumbed to the injuries and an FIR came to be
lodged by Gitaben, PW-2. On basis of that FIR, offence was
registered and investigated, and ultimately, chargesheet was filed
in the Court of Judicial Magistrate First Class, Modasa, who in turn
committed the case to the Court of Sessions and Sessions Case No.125
of 2001 came to be registered. Charge was framed against the
accused at exh.3, to which he pleaded not guilty and came to be
tried and convicted as stated hereinabove.
Learned
advocate Mr.Majmudar for the appellant submitted that the evidence
is not sufficient to record a conviction. The Trial Court has,
therefore, committed an error and hence, conviction be set aside.
The
Appeal is opposed to by learned Additional Public Prosecutor
Mr.Pandya.
Our
attention is drawn by learned advocate Mr.Majmudar towards a copy of
the letter dated 27th January 2003 addressed by the
appellant to the Hon’ble the Chief Justice, High Court of Gujarat,
complaining that evidences of witnesses Gitaben, Amrutbhai Patel,
Usmanbhai, Jayendrasinh Sardarsinh, Ashok Rupaji, Pannabhai,
Shankerbhai and Nasibkhan were recorded in his absence and
therefore, he suspects a foul-play.
We
are presently not concerned with administrative aspect of this
complaint, but, we have examined the Record & Proceedings in
context of this complaint. We find that the evidence of witnesses
Gitaben, Amrutbhai Patel, Usmanbhai and Jayendrasinh was recorded on
2nd May 2002. We also find that, on that day, the
prisoner was not brought before the Trial Court. However, the
advocate for the accused tendered an application exh.7 stating that
the accused persons are not brought from Himmatnagar and therefore,
they may be exempted from appearing before the Court and the trial
may be proceeded with, which came to be granted by the Sessions
Court and as such, there is no question of any foul-play or
prejudice, particularly when the interest of the appellant was being
taken care of by his learned advocate.
(6.1) We
also find that witnesses Ashok Rupaji, Pannabhai and Shankerbhai
were examined on 8th July 2002. On that day also, the
appellant was not produced before the Trial Court. We also notice
that there is no exemption application either, but the trial has
proceeded without being objected to by the learned advocate for the
appellant accused. The reason seems to be that Ashok Rupaji is
a Circle Inspector of Revenue Department, who prepared the map of
the place of incident with the help of panchnama and the witnesses
Pannabhai and Shankerbhai are panch witnesses to the panchnama of
recovery of clothes of the deceased. They have been cross-examined
by the learned advocate for the appellant.
We
find that the evidence of Nasibkhan was recorded on 27th
August 2002, on which day, the appellant was produced before the
Court.
It
is, thus, clear that evidence of witnesses Gitaben, Amrutbhai Patel,
Usmanbhai and Jayendrasinh is recorded in absence of the appellant
by seeking exemption from appearance and requesting the trial be
proceeded with. The witnesses have been cross-examined by the
learned advocate for the appellant and as such, no prejudice is
caused to the appellant. Similar is the situation so far as the
evidence of Ashok Rupaji, Pannabhai and Shankerbhai is concerned,
where though there was no exemption sought, the trial has proceeded
in presence of learned advocate for the accused-appellant; the
witnesses relate to recovery of clothes of deceased and preparation
of map, which would in no way affect the evidence of eye-witnesses,
and therefore also, no prejudice is caused to the appellant.
Witness Nasibkhan is examined in presence of the appellant-accused.
The trial, therefore, cannot be said to have been vitiated for the
reason indicated in the complaint. There is no prejudice caused to
the interest of the appellant and therefore, it will have no bearing
on the decision of this appeal. We, therefore, decided to proceed
with the appeal.
It
is clear from the evidence that the deceased died a homicidal death.
There were multiple injuries on head, chest, neck and other parts
of the body. The post-mortem notes exh.9 indicate the cause of
death to be shock due to injuries and haemorrhage.
The
incident was witnessed by three witnesses, namely, (1) Gitaben
Laxmanbhai Gameti, wife of the victim, exh.12, (2) Shilpaben
Laxmanbhai, daughter of the victim, exh.26 and (3) Ursibhai Rupabhai
Dodiya, exh.27. Their version is so consistent with each other that
it can be narrated commonly.
(10.1) The
deceased was ahead of Ursibhai. The appellant came from behind
rushing and started inflicting knife blows indiscriminately. The
three witnesses speak of presence of the other two witnesses. It is
clear from the evidence that although the incident may have roots in
the earlier altercation between the deceased and his father, at the
relevant time, there was no altercation, no quarrel, no provocation
or fight, and the appellant straightaway inflicted the knife blows.
The witnesses have been cross-examined at length, but they all stick
to their original version. In fact, daughter of the deceased is a
minor. However, she has also stood the test of cross-examination
unshakenly.
The
only argument that is advanced with little vehemence is that the
offence would not fall within the category of murder, but culpable
homicide not amounting to murder, as intention cannot be read.
However, it is not possible to accept this contention for the reason
that the appellant has, on learning about the previous incident, put
on clothes, gone into the house and then has come rushing towards
the deceased. The deceased has not offered any provocation to him.
There was no altercation, no quarrel, no fight. The injuries which
are caused with the knife are on vital parts of the body. They are
multiple in nature and are certified to be sufficient in ordinary
course of nature to cause death, and in fact, the death has resulted
almost immediately after the incident. The blows are inflicted with
force which would also reflect intention of the appellant. The
injuries on neck and tenth vertebra are all vital in nature which
are inflicted with full force. Therefore, it is difficult not to
attribute intention of causing death of the deceased to the
appellant. The evidence is consistent and reliable. The Trial
Court was, therefore, justified in recording conviction. The knife
which was used in commission of the crime has been discovered under
panchnama drawn under Section 27 of the Evidence Act, and that
discovery has been proved through panch witness Jayendrasinh
Sardarsinh Sisodiya, exh.17.
(11.1) The
said knife carried bloodstains on it which is found to be of AB
Group in the FSL Report, exh.38. The said blood group is that of
the deceased. The clothes of the appellant are also stained with
the blood of the victim. All these factors add corroboration to the
version of the eye-witnesses. We do not find any merit in the
appeal. Therefore, the conviction is rightly recorded by the Trial
Court.
The
appeal, therefore, must fail. Stands dismissed. The judgement
dated 17.1.2003 rendered by Sessions Court, Modasa in Sessions Case
No.125 of 2001, is hereby confirmed.
[A.L.DAVE,
J.]
[HARSHA
DEVANI, J.]
parmar*
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