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CR.A/866/2001 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 866 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 ?
=========================================================
RAMESHJI
@ HEGO KHODAJI THAKOR - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
THROUGH
JAIL for Appellant(s)
: 1,MR JM BUDDHBHATTI for Appellant(s) : 1,
MR KC SHAH, APP for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: __/08/2008
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE Z.K.SAIYED)
The
present criminal Appeal has been preferred by the convict appellant
? accused of Special (Atrocities) Case No.104 of 2000 which is
arising from the Judgment and Order dated 9.7.2001 of the Court of
Special Judge, Atrocities, Mehsana.
The
present appellant ? accused has been convicted by Special Court
(Atrocities), Mehsana, for the offences punishable under Section 302
of Indian Penal Code (for short ?SI.P. Code??) and sentenced to
suffer imprisonment for life with fine of Rs.3000/- i/d to undergo
one year’s imprisonment. However, the learned Judge has acquitted
the appellant ? accused from the offence punishable under Section
135 of the Bombay Police Act and Section 3(2)(5) of The Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
(for short ?SAtrocities Act??).
The
facts of the prosecution case is that the complainant Ramabhai
Motibhai, residing at Harijanvas, Bavlu, Taluka Kadi, District
Mehsana has filed complaint before Police Inspector, Bavlu Police
Station, intere-alia stating therein that at about 8.00 hours in the
evening when he was taking dinner, his son named, Bharat returned
home with tractor and told him that Thakore Rameshji @ Hengo Khodaji
has come in the village and he had stolen wheats from their compound
(Vada) before 6 months and I have seen him today. On saying so he
had gone out. After some time i.e. at about 8.30 p.m. Thakore
Rameshji Arjanji had rushed to the house of complainant and told
that Henga has stabbed his son Bharat with knife in the Danavala
Street and Bharat was lying in the compound of Henga. On hearing the
said incident the complainant along with his wife Ramilaben had
rushed to the street where Bharat was lying on the earth and could
not speak anything. His shirt was stained with blood. Below his
chest there was big wound caused with knife blow and from the said
blow he was profusely bleeding. Another knife blow was also found
near the said first blow. Thereafter, the complainant, along with
his wife and Govindbhai Bababhai, Shivabhai Mohanbhai, Jethabhai
Khushalbhai, Thakore Rameshji Arjanji, Thakore Javanji Chundaji had
taken injured Bharat in a Jeep to the Bhagyoday Hospital at Kadi for
treatment. On examination the doctor declared that the Bharat is
dead on the way. The complainant has stated before the Police that
the cause of the incident is that before 6 months Thakor Rameshji @
Hengo Khodaji had stolen wheat from their compound (Vada) and ran
away from the village. He came on the date of incident and on seeing
him deceased Bharat had scolded him and therefore he had given blows
of knife to Bharat and ran away. While taking him to the hospital,
on the way, Bharat died. The said complaint was given to the Police
Inspector in Bhagyoday Hospital.
The
Police has lodged the complainat and registered the offence against
the appellant ? accused. The statement of witnesses were recorded.
Thereafter the Panchnama of scene of incident, Inquest Panchnama,
Panchnama of recovery of muddamal articles Knife and the clothes of
the accused and the panchnama of physical condition of the accused
were drawn. Thereafter the Dead Body of the deceased was sent to
Hospital for autopsy and the Muddamal articles were sent to Forensic
Science Laboratory for scientific analysis and all the reports were
tagged with the investigation papers. Thereafter, the Police filed
charge-sheet against the present appellant ? accused for the
offence punishable under Section 302 I.P. Code as well as under the
provision of Section 135 of the Bombay police Act and Section
3(1)(5) of Atrocities Act.
The
trial Court framed charge (Exh.2) against the accused. The appellant
? accused has not pleaded guilty to the charge and the case was
proceeded against the present appellant ? accused.
In
order to bring home the charge levelled against the accused, the
prosecution has examined in all 9 witnesses and relied upon their
oral testimonies. They are as under :
P.W.1 – Bharatkumar Sumankumar Acharya, Medical Officer,Ex.8
P.W.2 – Ramabhai Motibhai Chamar, complainant, Exh.9
P.W.3 – Narsinhbhai Alabhai Chamar ? Panch, Exh. 11
P.W.4 – Rajendrakumar Anandray Acharya ? M.O., Exh.20
P.W.5 – Prahladbhai Alabhai Parmar, Ex.22;
P.W.6 – Bachubhai Laxmanbhai Parmar, Ex.23;
P.W.7 – P.S.I. Dhanji Ranaji Jadeja, Ex.24;
P.W.8 – Dy.S.P. Somdat Hajiralal Sharma, Ex.25;
P.W.9 – Babuji Maganji Thakor, Panch ? Exh.35
To prove the culpability of the accused, the prosecution
has also produced and relied upon the following documentary evidence.
They are as under:
(1) Complaint ? Exh.10
(2) Panchnama of Scene of Offence, Exh.12;
(3) Inquest Panchnama, Exh.13;
(4) Panchnama of physical condition of accused, Ex.14;
(5) Panchnama of clothes recovered from the dead body of deceased,
Ex.15
(6) – do ? Exh.16
(7) Copy of station diary, Ex.17
(8) Post Mortem Report of deceased, Ex.18
(9) Ravangi Yadi of F.S.L., Ex.19
(10) Post Mortem Note, Ex.21
(11) Medical Certificate of accused Ramesh Thakor ? Ex.21/A
(12) F.S.L. Report, Ex.26
(13) Letter of F.S.L., Ex.27
(14) F.S.L. Report, Ex.28
(15) Serological Report, Ex.29
(16) F.S.L. Report, Ex.30
(17) Depute Order, Ex.31
(18) Written arguments on complainant side, Ex.33.
Thereafter,
after examining the witnesses, the statement of accused under
Section 313 Cr. P.C. was recorded in which the appellant has
contended that he is innocent and he has been falsely implicated in
the said offence.
After
considering the oral as well as documentary evidence the learned
Special Judge (Atrocities), Mehsana, vide impugned Judgment and
Order dated 9.8.2001 in Special (Atrocities) Case No.104 of 2000
held the present appellant ? accused guilty to the offence
punishable under Section 302 I.P. Code and sentenced him to suffer
Rigorous Imprisonment for life and to pay fine of Rs.3000/- i/d to
undergo further imprisonment for one year.
Being
aggrieved by and dissatisfied with the impugned Judgment and order
of conviction and sentence passed by the learned Special Judge
(Atrocities), Mehsana, the present appellant ? original accused
has filed this Appeal, through Jail.
Heard
learned Advocate Mr. J.M. Budhbhatti, appointed through Legal Aid
Committee, for the appellant ? accused and Mr. K.C. Shah, learned
APP for the respondent ? State, at length.
Mr.
Budhbhatti, learned Advocate, has contended that the prosecution has
failed to prove the allegations against the present appellant ?
accused. He has also contended that in the present case there was
only one eye witness and from the oral evidence of eye witness it
was established before the trial Court that due to darkness the
witness was unable to see and, therefore, the prosecution has failed
to prove its case beyond reasonable doubt. He has also contended
that the recovery of weapon is not proved. He has also read the oral
evidence of the Police personnel and contended that the present
appellant ? accused was found by them under the influence of
Alcohol and he has also received some injuries and the said injuries
on the person of accused is not explained by the prosecution. It is
also one of the fatal lacuna in the prosecution case and the benefit
is required to be given to the present appellant ? accused. Mr.
Budhbhatti has also contended that from the evidence of Medical
Officer it was established before the trial Court that only single
blow was found from the body of the deceased and looking to the
injury of single blow the ingredients of murder cannot be proved by
the prosecution. He, therefore, contended that the act of the
appellant ? accused is required to be considered that the accused
has not committed the offence with intention to kill deceased. He
has also contended that the evidence of panch witnesses as well as
the witnesses of family of deceased cannot be considered as they are
interested witnesses. He has also prayed that the sentence of
imprisonment of life is also very harsh. Lastly, Mr. Budhbhatti has
contended that the Judgment and Order rendered by the trial Court is
not proper, legal and against the provisions of law and, therefore,
the same requires to be quashed.
On
behalf of the State Mr. K.C. Shah, learned A.P.P. has contended that
there is voluminous reliable, trustworthy and clinching evidence on
record which unequivocally and unerringly proves that the appellant
? accused has committed murder of deceased. Even the motive,
preparation and intention of the present appellant ? accused is
also proved. He also contended that from the complaint itself it is
established that there was a previous enmity between the present ?
appellant ? accused and the complainant as the accused has
committed theft and when the deceased scolded him the accused has
committed murder. Evidence of single eye witness cannot be thrown
away. Eye witness has deposed that the the appellant ? accused has
during exchange of hot discussion took out the knife and gave blow
of knife on the vital part of the body i.e. on the chest of the
deceased and due to said injury the deceased has collapsed.
We
have gone through the oral as well as documentary evidence led by
the prosecution. We have also perused the submission made by both
the parties. From perusal of oral evidence of P.W.1 (Exh.8) Dr.
Bharatkumar Sumankumar Acharya, who is an independent and
respectable witness, it transpires that he has carried out autopsy
on the dead body of deceased. We have perused the oral evidence of
this witness. This witness has carried out autopsy and explained the
injuries on the deceased, which are as under :
Semilunar wound on epigastrium just below the sternum 2
cm long and 1 cm broad with straight border below and convexity up
wards convex border more sharp with everted edges on probing the
wound, it is going upwards towards chest and slightly to the left, it
is 7 cm deep with blood clotted on edges;
A cherp scratches on abdomen directed from lateral to
mediate 7 cm long and 7 cm below the wound No.(1).
The doctor opined that cause of death is due to cardiac
arrest due to injury to right atrium of heart that is wound No.(1).
This expert witness has opined that injury on the
deceased was possible by forceful blow of knife and the injury was
sufficient to cause death of deceased.
Previous
enmity between the deceased and the appellant ? accused was
established by the oral evidence of P.W.2 ? complainant Ramabhai
Motibhai Chamar, father of deceased. This witness has stated on oath
that when I was taking dinner in the evening at about 8.00 O’clock
his son (deceased) came and told that Ramesh @ Hengo (present
appellant ? accused) who has committed theft of wheat from their
compound (vada) before six months has come and thereafter he rushed
to the place of incident. We have perused the complaint as well as
oral testimony of this witness. It is on record that prior to the
incident the present appellant ? accused has committed theft of
wheat and then he was absconded and when he came after six months
the deceased scolded him and at that time, along with complainant,
eye witness Prahladbhai, P.W.5, Ex.22, accompanied with the deceased
and went to the appellant ? accused and in presence of this
witness (Prahladbhai) the deceased has called the accused from his
house and when the accused came hot discussion took place between
the accused and the deceased, at that time accused pulled out knife
and gave one blow of knife below the chest of deceased and ran away,
the deceased was transported to the hospital where on the way
deceased succumbed to the injury. Motive is explained by this
witness. It has not come on record that this witness Prahladbhai has
any enmity with the appellant ? accused. Therefore, he has no
reason to falsely implicate the accused with the crime.
We
have also perused the evidence of P.W.3 ? Narsinhbhai Alabhai
Chamar (Ex.11), who is one of the panch of panchnama of scene of
offence (Exh.12). The Inquest Panchnama (Exh.13) as well as the
panchnama of scene of offence and the oral evidence of the
complainant and eye witness the injury mentioned in the panchnama
are corroborated with the oral evidence of witnesses. We have also
perused the panchnama of recovery of clothes of deceased under the
recovery panchnama and the panchnama of physical condition of
accused (Ex.14) and the oral evidence of Medical Officer Dr.
Rajendrakumar Anandray Acharya (Ex.20) and the Medical Certificate
(Exh.21) issued by him. It is true that Dr. Acharya (Ex.20) has also
examined the appellant ? accused. On examination the doctor found
that accused is having injury of CLW 2 cm x 1 cm skin deep on the
forehead. The prosecution has already explained this injury on the
appellant accused, therefore, the question regarding injury received
by the appellant ? accused cannot arise for appreciation.
The
prosecution has also examined P.W. 6 Bachubhai Laxmanbhai Parmar. He
is a Police Constable. On the date of incident he was on duty. This
witness has deposed that he, along with P.S.I. Jadeja, Head
Constable Lakhubha and Head Constable Shankerbhai, Police Constable
Lalsing and A.S.I. Vaghubhai, had gone to the place of incident in a
Government vehicle. The accused was not there at the place of
incident, but, the accused was lying on earth near the house of
Bhopaji. On being asked by P.S.I. Jadeja, he said that his name is
Rameshji @ Hengo. On interrogation by P.S.I. Jadeja the knife with
blood stains was found out from the back side pocket of the pant of
the accused which was recovered by the P.S.I. after drawing the
panchnama. This witness is a Police constable and not related to the
complainant. He has no enmity with the accused. He is an independent
witness. He has no interest in the result of the case and,
therefore, his testimony cannot be discarded. We have also perused
the circumstantial evidence produced by the prosecution. We have
also gone through the Serological Report, F.S.L. Report, Medical
Certificates, Post Mortem Report.
Looking
to the facts and circumstances of the case as well as deposition of
prosecution witnesses, this is not a case of single witness as
contended by Mr.Supehia, learned Advocate for the appellant ?
accused. We have also not found any contradictory evidence produced
by the prosecution. From the evidence of the complainant it is also
proved that there was a previous enmity between the deceased and the
accused as the accused has committed a theft of wheat from the
compound (Vada) of the complainant before about six months i.e.
prior to the incident and when the deceased scolded the accused, he
inflicted knife blow on the deceased. Therefore, the contention of
Mr.Supehia that this is a case of single witness cannot be
believable.
The
Hon’ble Apex Court in a number of decisions held that ?Sit is not
the duty of the appellate Court when it agrees with the view of
trial Court on the evidence either to restate the effect of the
evidence or to reiterate the reasons given by the trial Court.??
The said law is laid down by the Hon’ble Court in the case of (1)
GIRIJANANDINI DEVI & ORS. V/s. BIJENDRA NARAIN CHOUDHARY,
reported in AIR 1967 SC 1124, and (2) in the case of STATE
OF KARNATAKA v/s. HEMAREDDY & ANR., reported in AIR 1981
SC 1417. Yet, in the interest of justice and to observe said
cause of Appeal in a legal way, we have discussed the evidence as
well as the reasons assigned by the trial Court.
As
observed and discussed at length, in our opinion, the prosecution
has proved its case beyond reasonable doubt. There is no reason for
the complainant and the witnesses to falsely involve the appellant ?
accused. The appellant ? accused has not explained anything during
recording his further Statement under Section 313 Cr.P.C. From the
oral as well as documentary evidence adduced by the prosecution, in
our opinion, the learned trial Judge has rightly convicted and
sentenced the appellant ? accused. Therefore, the conviction and
sentence awarded by the trial Court against the appellant ?
accused does not call for any interference of this Court in exercise
of appellate powers.
We
find ourselves in complete agreement with the said finding, ultimate
conclusion and resultant order of conviction passed by the trial
Court and we are of the view that no other conclusion except the one
reached by the trial Court is possible in the instant case as the
evidence on record stands. Therefore, there is no valid reason or
justifiable ground to interfere with the impugned Judgment and order
of conviction and sentence.
For
the forgoing reasons the Appeal fails and is hereby dismissed. The
Judgment and order of conviction and sentence dated 9.8.2001
recorded by the trial Court against the appellant ? accused in
Special (Atrocities) Case No.104 of 2000 is confirmed and
maintained. Muddamal be disposed of in terms of directions contained
in the impugned Judgment and order passed by the trial Court.
This
Appeal is accordingly dismissed.
(A.M.KAPADIA,
J.)
(Z. K. SAIYED,
J.)
sas
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