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CR.A/625/2000 9/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 625 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 ?
=========================================================
RANCHHOD
@ HAKKO JIVANDAS - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
THROUGH
JAIL for Appellant(s)
: 1,MR BS SUPEHIA for Appellant(s) : 1,
MR. MUKESH PATEL,
ASSISTANT PUBLIC PROSECUTOR for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 23/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
Challenge
in this Appeal under Section 374 of the Code of Criminal Procedure
(?Sthe Code?? for short) is to the correctness of the judgment and
order dated 26.5.2000 rendered in Sessions Case No. 117 of 1999 by
the learned Sessions Judge, Jamnagar, by which the Appellant (?Sthe
Accused?? for short) has been convicted for commission of the
offence punishable under Section 302 of the Indian Penal Code (?SIPC??
for short) and sentenced to suffer imprisonment of life and fine of
Rs.1000/- in default of payment of fine to undergo SI for 2 months.
The
prosecution case as disclosed from FIR and unfolded during trial is
as under:
2.1 As
per the prosecution case PW-4 Danabhai Nathubhai has filed the
complaint before PW-14 Arvindsingh C. Zala PSI ?SB?? Division
Police Station, Jamnager, wherein inter alia it is alleged that;
His
name is Danabhai Nathubhai. He is Parmar Harijan by cast and aged
about 37 years and is doing masonry work. He is residing at
Chandgra Taluka Jamnagar. On being asked personally he has lodged
his complaint. His wife Ratanaben is a sarpanch of the village
Chandraga for the last four years. Today, when he was present in
his house at about 7:00 in the morning, at that time Shailesh, son
of Bavaji Mohandas, of his village came to his house and told that
?Smy uncle Haka has killed my father??. So he went with him to
his house where the Deputy Sarpanch Jerabhai and Delubha Raghubha
and Jorubha Danbha etc. along with many persons of his village had
gathered near the house. When he looked in the compound on the back
side of the house, the dead body of Mohandas Bavaji was lying on a
cot. A blow of crowbar appeared to have been given on his face. So
he inquired with his mother and wife. It came to be known that
Mohandas was sleeping on a cot in the compound after supper due to
heat on the last night. They were sleeping in the courtyard of the
house. When the wife of Mohandas took her younger son for latrine
in the compound at early morning, the dead body was seen. Haka was
quarreling with his brother. On inquiry, Haka showed crowbar from
the window on back of the room and told that ?Ssee, he is killed??.
Therefore, the door of a room was closed. The cause of this
incident is that Haka alias Ranchoddas Jivandas Bavaji was telling
to marry with the wife of his brother Mohandas. So, he was told to
go away as there cannot be two swords in one scabbard but he did not
go and committed murder. His mother informed these facts and asked
him to lodge a complaint before the police. So he has come on a
Motorcycle to inform. The dead body is lying there and the Accused
is kept in custody.
2.2 The
aforesaid complaint is registered vide CR No. 107/99 at ‘B’ Division
Police Station, Jamnagar. During the course of investigation PW-14
held panchnama at Exh.26 and thereafter sent the same for PM. He,
thereafter drawn the panchnama of the scene of offence and recovered
the pillow and mattress having blood stains and sent the same to FSL
for chemical analysis. He has also drawn the panchnama of the
accused as well as the crowbar which was produced by the accused in
presence of panchas. He recorded the statement of the witnesses.
2.3 On
receipt of the PM as well as FSL report, as the sufficient
incriminating evidence was found against the Accused for commission
of the offence punishable under Section 302 IPC, he filed charge
sheet in the Court of learned Chief Judicial Magistrate, Jamnagar.
2.4 As
the offence under Section 302 IPC is exclusively triable by the
Court of Sessions, the learned Chief Judicial Magistrate, Jamnagar
committed the case to the Court of Sessions, Jamnagar. The learned
Sessions Judge, Jamnagar, framed charge against the Accused for
commission of the offence punishable under Section 302IPC.
2.5 The
charge was read over and explained to the Accused. The Accused
pleaded not guilty to the charge and claimed to be tried.
Therefore, he was put to trial by the learned Sessions Judge in
Sessions Case No. 117 of 1999.
2.6 In
order to bring home the charge leveled against the Accused, the
prosecution has examined in all 14 witnesses and relied upon their
oral testimony. Evidences of relevant witnesses would be discussed
hereinafter in this judgment.
2.7 To
prove the culpability of the Accused, the prosecution has also
produced number of documents and relied upon the contents of the
same. Relevant documents would be discussed as and when required in
this judgment.
2.8 After
recording of 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, the Accused denied the case of
the prosecution in its entirety. He has stated that a false case has
been filed against him.
However, he has neither led any evidence nor examined 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 the deceased
Mohandas had died a homicidal death and the Accused is the author of
the injury caused to the deceased with crowbar. The prosecution
therefore successfully established the complicity of the Accused for
the offence of murder.
2.10 On
the aforesaid finding, the trial Court has convicted the Accused for
commission of the offence punishable under Section 302 IPC and
sentenced to suffer imprisonment of life and fine of Rs.1000/- in
default to undergo further SI of 2 months, giving rise to instant
Appeal at the instance of Accused.
Mr.B.S.Supehia,
learned advocate of the Accused, who has appeared by way of legal
aid, has contended that the witness Shailesh has stated this
incident after two months and that the prosecution has not examined
the wife of the deceased as witness before the trial Court,
therefore, prosecution case suffers from non-examination of the star
witness. He has also submitted that the Accused and deceased both
are brothers, therefore, it cannot be believed that the Accused has
committed murder of his brother. Alternatively, it is submitted by
him that the incident has taken place in a trifling manner with
respect to which the deceased had given grave and sudden provocation
to the Accused, therefore, offence is not a murder under Section 302
but is a culpable homicide punishable under Section 302(part-II).
He, therefore, urges that the impugned judgment and order of
conviction recorded against the Accused is required to be altered
into conviction under Section 304 either Part-I or Part-II of IPC,
and as the Accused has already undergone more than 9 years of
imprisonment, period undergone by him may be treated as substantive
sentence and he may be set at liberty. He, therefore, urges to allow
this Appeal by altering the conviction and sentence.
Per
contra Mr. Mukesh Patel, Ld. Assistant Public Prosecutor for the
Respondent State of Gujarat has submitted that there is no infirmity
or illegality committed by the trial Court. Therefore, no
interference is called for in the impugned judgment and order. 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.
This
Court has considered the submissions advanced by the learned
advocates appearing for the parties 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.
There
is no dispute to the fact that the deceased had died a homicidal
death. To prove this fact, prosecution has examined and relied upon
the oral testimony of PW-1 Dr. Satish Kumar at Exh.8, who has
performed the PM on the dead body of the deceased and prepared the
PM report, which is on record at Exh.9. On conjoint reading of the
oral testimony of PW-1 Dr. Satish Kumar at Exh.8 and PM report at
Exh.9, it is seen that the deceased had died because of shock and
hemorrhage on account of injuries of head. We are, therefore, of the
opinion that the trial Court has rightly held that the deceased had
died a homicidal death and therefore, it has to be held that the
deceased had died a homicidal death.
Now
the next question would be whether the Accused is the author of the
injuries caused to the deceased. In this connection, the
prosecution has relied upon the oral testimony of PW-4 Danabhai
Nathubhai at Exh.14, who has inter alia testified that he knows the
Accused as well as deceased. On the day of incident, his wife was
the sarpanch of the village. On the day of the incident, the son of
deceased named Shailesh came to his house and said that his uncle
has killed his father, therefore, he went to the house of Shailesh
and saw the dead body of the deceased Mohandas lying on the cot.
He, therefore, lodged the complaint which is on record at Exh.28.
The
prosecution thereafter has examined and relied upon the oral
testimony of PW-5 Shailesh, son of the deceased at Exh.15. He has
inter alia testified that his uncle Ranchoddas had inflicted two
blows on his father with the crowbar. He was therefore, afraid and
went to Osari and slept there and did not talk to anybody about the
incident.
The
prosecution thereafter has examined and relied upon the oral
testimony of PW-6 Jairaj Ramjibhai at Exh.16, who has inter alia
testified that he was called by Laxmiben, who is the mother of the
deceased and the Accused both. Laxmiben told him that his son Haka
has killed his another son Mohandas. He has also inquired from the
Accused, who told before him that he has killed his brother.
The
prosecution thereafter has examined and relied upon the oral
testimony of PW-8 Dilubha Rajubha at Exh.18. He has testified that
he knows both the brothers, i.e. the Accused and the deceased. He
was called by the mother of Haka, i.e. the Accused at 7:00 in the
morning and told him that Haka has killed his son Mohandas. He saw
dead body of the deceased Mohandas. Thereafter the Accused, after
showing the crowbar made a confessional statement before him that he
has killed his brother.
The
prosecution thereafter has examined and relied upon the oral
testimony of PW-9 Laxmiben at Exh.19, who is the mother of both the
Accused and the deceased. She has testified that she had three
sons. One is at Bombay, the another in Delhi and the third named
Mohandas had died. The Accused wanted to
marry with the wife of his brother Mohandas, therefore, this
incident had taken place. His son Ranchod has killed his another
son with crowbar. After killing Mohandas, he went inside the room
and closed it from inside and gave crowbar from the window and told
that he has killed his brother Mohandas.
On
reappraisal of the entire prosecution evidence and on a threadbare
examination of the same, there is no manner of doubt that the
Accused is the author of the injuries caused to the deceased with
the crowbar. The son of the deceased Shailesh has seen the incident
but he could not narrate it because he was afraid. Besides this,
the Accused had made extra-juridical confession and therefore, there
is no reason for the mother of the Accused to tell lie against him
and therefore, according to us, the complicity of the Accused for
murder is duly established. Mr. B.S.Supehia, learned advocate of
the Accused is unable to dislodge the findings recorded by the trial
Court.
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.
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,
deserves to be dismissed by confirming the judgment and order passed
by the trial Court.
For
the foregoing reasons, the Appeal fails and accordingly it is
dismissed. Resultantly the judgment and order of conviction and
sentence dated 26.5.2000 rendered in Sessions Case No.117 of 1999 by
the learned Sessions Judge, Jamnagar, is hereby confirmed and
maintained.
(A.M.Kapadia,J)
(Z.K.Saiyed,J)
Jayanti*
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