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CR.A/17/2003 12/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 17 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
THAKOR
BAKAJI ISHWARJI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
THROUGH
JAIL for Appellant(s)
: 1, MR US BRAHMBHATT for
Appellant(s) : 1,
MR HL JANI, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
and
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 02/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE R.P.DHOLAKIA)
Present
appeal has been preferred by the appellant-original accused, who has
been convicted and sentenced to suffer imprisonment for life and to
pay fine of Rs.500/-, in default, to suffer SI for 15 days for the
charge under Sec.302 of IPC by the learned Addl. City Sessions
Judge, Fast Track Court, Mehsana, vide judgment and order dated 29th
November, 2002 passed in Sessions Case No.26 of 2002.
The
short facts of the prosecution case are that on 4-10-2001 when the
complainant Manuji Gambhirji, Nathaji Khumaji and Bhavanji Nagji
were in their respective field waiting for their turn to fetch water
from the bore of Darbar, at about 4.00 a.m. they heard the shouts of
Pahadji from his field for help and, therefore, they got up and
rushed towards Pahadji’s field. When they were about 30-35 feet away
from the place of incident, they saw the accused Bakaji Ishwarji
giving dharia blows on the head and neck of the deceased as a result
of that, deceased fell down there and before the complainant and
other witnesses reached the scene of offence, accused was able to
escape from the scene towards south direction along with dharia.
When they reached very near to the victim Pahadji, they found that
he succumbed to the injuries. Therefore, the complainant Manuji
remained there and Bhavanji Nagji went to Village and informed the
relatives of deceased and therefore, all came there and they again
confirmed that the injured succumbed to the injuries and, therefore,
police was informed accordingly. Police in turn came to the scene of
offence and recorded the complaint of Manuji Gambhirji and sent the
same along with report to Visnagar Police Station for registration
of offence. On receiving the same, PSO of Visnagar Police Station
registered the offence as Visnagar Police Station I.C.R.No.358 of
2001 under Section 302 of IPC and Section 135 of B.P.Act and handed
over investigation to PSI. Thereafter, he sent yadi to Executive
Magistrate, Visnagar, for inquest panchnama and also called two
panchas for the same and on arrival of Executive Magistrate,
inquest panchnama was prepared in presence of panchas. Thereafter,
he filled up Marnottar form and sent the same along with inquest
panchnama and yadi to Visnagar Police Station for performing post
mortem on the dead body of deceased. He also drew panchnama of
scene of offence in presence of two panchas and also seized muddamal
as averred in the panchnama. As the offence alleged was punishable
under Sec.302 of IPC, PSO handed over investigation with its file to
PI, Visnagar, Shri Parmar and he recorded statements of various
witnesses including Bhavanji. He also made a search for the accused
and on 25-10-2001 at about 1500 hours, the accused was arrested.
The clothes worn by the accused at the time of his arrest were
seized and as he showed willingness to produce the muddamal dharia
alleged to have been used in the commission of offence, he called
two panchas and attached the same as averred under 27 panchnama and
he was sent to judicial custody. He also made arrangements to send
muddamal to FSL and on receiving FSL and post mortem reports, same
were kept with the investigation file. At the end of investigation,
charge sheet was submitted in the Court of learned J.M.F.C.,
Visnagar.
As
the offence alleged against the accused was exclusively triable by
Court of Sessions, learned J.M.F.C., Visnagar, committed the case
to the Sessions Court at Mehsana where the case has been numbered as
Sessions Case No.26 of 2002 and handed over to learned Addl.
Sessions Judge, Mehsana, for disposal on merits.
On
presentation of the accused, learned Addl. Sessions Judge framed
charge against the accused. As the accused pleaded not guilty to the
charge and prayed for trial, to prove the guilt against the accused,
prosecution examined in all 8 witnesses. The prosecution also
produced and placed reliance on many documentary evidence numbering
18.
On
submission of closing pursis by the prosecution, learned Addl.
Sessions Judge recorded further statement of the accused under
Sec.313 of Code of Criminal Procedure. Both the sides have filed
their written submissions and also argued the matter. After hearing
the learned advocates appearing for the respective parties and on
considering the evidence on record as well as the submissions made
by the learned counsel for the respective parties, delivered the
impugned judgment convicting the appellant as aforesaid in the
earlier part of this judgment which is giving rise to prefer the
present appeal.
Heard
learned counsel for the appellant, Mr.U.S.Brahmbhatt and learned
APP, Mr.H.L.Jani for the respondent-State.
It
has been mainly argued by the learned counsel for the appellant that
the appellant is innocent and has been falsely involved in the crime
in question. It is also argued that there is a delay in lodging the
FIR.
It
is further argued that the incident has taken place at late night in
the field and no one has seen the incident but in the morning when
the villagers came to know regarding the incident, they have
involved the accused as he was an outsider staying in the field and
working as a labourer. There is no eye witness to support the say of
the prosecution. As such, the complainant-Manuji
Gambhirji and two other witnesses namely, Nathaji
Khumaji and Bhavanji Nagji, who claim themselves to have seen the
incident, are not the eye witnesses to the incident as their
presence at the time of incident at late night creates doubt in the
mind of all concerned. Even they cannot be said to be chance
witnesses also. Even if we believe the say of the prosecution by way
of oral evidence of Manuji, Nathaji and Bhavanji to be true, then
also, they could not have seen the incident in view of the fact that
they were at a distance of 30-35 feet away from the place of
incident and the time being night hours, it would have been very
difficult for them to have identified the assailants during night
hours.
It
is further argued that panchnama of weapon is not a discovery
panchnama in the eye of law and, therefore, it is required to be
discarded.
It
is further argued that though there were neighbours residing in
their field very near to the scene of incident, their statements
have not been recorded. They have neither been cited as witnesses
nor have they been examined. The prosecution has produced the
relatives of the deceased and relied upon their statements to
connect the accused with the crime. Since they are relatives of the
deceased, their statements do not attach much importance and hence
should not be taken into consideration.
Taking
us through the evidence of Dr.Mansinh Laljibhai Chaudhary, P.W.2 at
Ex.8, it is argued that it is clear from his cross-examination that
the injuries due to blows must have been received after the victim
fell down. The evidence of witnesses show that the accused was
giving dharia blows to the deceased and he fell down thereafter and,
therefore, according to him, the testimonies of the witnesses are
unbelievable. It is further argued that there is no evidence worth
the name to show the presence of the witnesses in the field as being
natural. Even panchnama also does not support their presence. It is
also argued that the accused has been undergoing sentence since long
and since the incident has happened due to sudden provocation, the
case of the appellant may be treated to be the one falling under
Sec.304 Part II of IPC and he be given benefit.
Learned
APP, Mr.Jani, has taken us through oral as well as documentary
evidence and relevant portion
of reasoned judgment delivered by the court below.
According to Mr.Jani,
there is no delay in lodging the FIR. The incident is alleged to
have taken place at 4.00 a.m. and, thereafter, one remained there
and another went to the Village for informing the villagers and
thereafter villagers came. Again somebody went to the Village and
informed the police and thereafter, police also came to the place of
incident and, therefore, the delay of two hours is not a delay in
the eye of law. At the earliest opportunity, they informed the
police telephonically which is required to be taken into
consideration.
It is argued that there
are three witnesses of incident and their presence at the time of
incident in their respective field is established. It is their case
from the very beginning that after the turn of Pahadji, it was their
turn to fetch water from the bore of Darbar and, therefore, they
were there in their respective field and, therefore, according to
him, their presence is natural. It is also argued that merely
because they are from the same community, same Village and distant
relatives, their testimonies cannot be discarded, however, at the
most, their evidence is required to be seen in that angle.
It is further argued
that case of the prosecution gets support from the evidence of
discovery panchnama, FSL report and also from the complaint filed by
the complainant at the earliest. It is also argued that even motive
in the commission of offence is also established. Since it is an
incident wherein the accused has given blows to physically
incapacitated person and that too also on the vital part of the body
resulting into an offence under Sec.302 and hence, it is submitted
that no leniency should be shown to the accused by treating the case
under Part II of Sec.304 of IPC.
We
have also gone through the oral as well as the documentary evidence
shown to us by the learned counsel for the respective parties
together with the reasoned judgment delivered by the court below.
As regards the
contention regarding delay in filing the FIR, it is required to be
noted that police has been informed at the earliest. The incident
has taken place at 4.00 a.m. and when the witnesses were 30-35 feet
from the place of offence, they have witnessed the incident. One
person remained there and one went to the Village for informing the
villagers and thereafter they came. Again one person went to inform
the police and thereafter, police also came to the place of
incident. Thus, it appears that at the earliest, FIR has been lodged
and, therefore, in any circumstances, it cannot be stated that there
was any delay in lodgment of FIR. Apart from that, name, role and
the weapon used in the commission have been described in detail by
the complainant along with the names of eye witnesses, who have
witnessed the incident and, therefore, it is very difficult to
believe the say of the learned counsel for the appellant that there
was any delay in filing the FIR and that the FIR was concocted to
falsely implicate the accused. According to us, there is no delay
worth the name as, at the earliest, FIR has been lodged narrating
the incident detail.
In
order to prove the FIR Ex.7, the prosecution has examined P.W.1,
Manuji Gambhirji Rathod at Ex.6. He has categorically deposed that
he is the witness of incident. Incident has taken place on 4-10-2001
at 4.00 a.m. in the field of Rathodiapura Village sim more
particularly in the field of Pahadji. He has further deposed that at
the time of incident, he was sleeping in his field as after the turn
of Pahadji, it was his turn to fetch water from the bore of Darbar.
While sleeping, as he and other villagers namely, Nathaji Khumaji
and Bhavanji Nagji heard the shouts of Pahadji for help, they got up
and ran towards the field of Pahadji and when they were about 30-35
feet away from the place of incident, Bakaji Ishwarji was giving
dharia blows on the head and neck of the deceased and, thereafter,
Bakaji escaped from the scene of offence towards south direction
along with dharia. He has also deposed that it was the second day of
full moon at 4.00 a.m. and, therefore, they were able to see each
other. He has been thoroughly cross-examined by the learned counsel
for the appellant into the court below but nothing contrary came out
to turtle his evidence. He has also stated that the deceased was
physically incapacitated and along with him, Bhavanji Nagji and
Nathaji Khumaji have witnessed the incident.
To
prove further, the prosecution also examined Nathaji Khumaji as
P.W.3 at Ex.10 and Bhavanji Nagji as P.W.4 at Ex.11. Both these
witnesses have categorically supported the say of the prosecution
and, therefore, we are not reproducing their evidence as it would be
a repetition of the evidence of complainant, Manuji Gambhirji. We
are of the opinion that both these witnesses are witnesses of
incident as their evidence inspires confidence in the mind of the
Court.
As
far as presence of all the three witnesses is concerned, we have
taken into consideration the evidence on record including their
detailed cross-examination. It was their specific case from the very
beginning that they were getting the water from the bore of Darbar.
They have also deposed that they will get water from the bore only
when electricity comes. According to him, electricity comes at late
night in their Village and waiting for the same, they were in their
respective field. It is established from their evidence that
deceased Pahadji was also in his field waiting for his turn to fetch
water. Since the evidence of these witnesses inspires confidence, we
believe their evidence in toto.
As
regards motive, it is required to be noted that the accused was
serving as a daily labourer with the deceased. Since he was
negligent in his work of not keeping watch on water, Pahadji stated
something to him and, therefore, with an intention to kill Pahadji,
two blows were given by the accused on vital parts of his body. In
the said circumstances, though motive is not required to be proved
in this type of case, it is proved in this case by the prosecution.
As
far as discovery panchnama Ex.20 is concerned, the same has been
proved by the prosecution by way of oral evidence of Takhatsinh
Varwaji Adiyol, P.W.6, Ex.17 as well as of Investigating Officer,
PI, Shri Parmar, P.W.7, Ex.23. Muddamal which has been seized by
way of discovery panchnama has been sent to FSL by way of forwarding
letter. Same have been proved by the prosecution through the
evidence of PI, Shri Parmar. Prosecution has also proved the
forwarding letter and FSL report etc. at Exs.24 to 33. Muddamal
dharia, which is alleged to have been recovered at the instance of
accused and attached under Sec.27 panchnama, when sent to FSL has
been opined by the FSL expert that the bloodstain marks found on the
dharia is of the human blood which is of the blood group of the
deceased.
Thus,
the prosecution could prove the guilt against the accused beyond
reasonable doubt by way of evidence of three eye witnesses, FIR,
discovery panchnama, FSL report etc. apart from proving the motive.
The fact that the accused has killed a physically incapacitated
person by inflicting blows on head and neck by dharia cannot be
taken light of. It is clear from the act of the accused that he had
a definite intention of killing the physically incapacitated person.
Looking to the heinous crime having proved against the accused of
murdering the victim by inflicting serious injuries on the vital
parts of the body of the deceased with dharia, we are of the opinion
that the case of the appellant falls under Section 302 of IPC and
hence, we are unable to accept the argument advanced by the learned
counsel for the appellant for treating the case under Section 304
Part II of IPC. Thus, the appeal being devoid of merits deserves to
be dismissed.
The
appeal is dismissed.
(R.P.DHOLAKIA,J)
(K.S.JHAVERI,J)
radhan/
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