{"id":134598,"date":"2008-08-07T00:00:00","date_gmt":"2008-08-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pravinbhai-vs-state-on-7-august-2008"},"modified":"2016-08-17T13:33:49","modified_gmt":"2016-08-17T08:03:49","slug":"pravinbhai-vs-state-on-7-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pravinbhai-vs-state-on-7-august-2008","title":{"rendered":"Pravinbhai vs State on 7 August, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Pravinbhai vs State on 7 August, 2008<\/div>\n
Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice Z.K.Saiyed,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/1098\/2000\t 31\/ 31\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 1098 of 2000\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.M.KAPADIA  \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nPRAVINBHAI\nDHULIYABHAI NAYAK & 1 - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMS\nSADHANA SAGAR appointed by Legal Aid Committee for Appellants \nMR\nKC Shah APP for Respondent-State of\nGujarat \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE A.M.KAPADIA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 07\/08\/2008 \n\n \n\n \n \n\t\t\t\tORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.M.KAPADIA)<\/p>\n
1.
\nBoth the appellants (‘A-1’ and ‘A-2’ for short) of instant appeal
\nwere charged and tried by the learned Additional Sessions Judge,
\nVadodara, Camp at Chhotaudepur (‘the trial Court’ for short) in
\nSessions Case No. 48 of 2000 for commission of the offences
\npunishable under Sections 302, 452 and 324 of the Indian Penal Code
\n(‘IPC’ for short) on the accusation that they have committed murder
\nof Ramdas and caused injury to Madhuriben with the weapon  ‘paliyu’
\nin connection with a dispute with regard to giving share of the sale
\nprice of a tamarind tree. At the end of the trial, both the accused
\nwere found guilty to the offences with which they were charged and
\nthe trial court vide judgment and order dated 24.11.2000 convicted
\nboth the accused for the said offences and sentenced both the accused
\npersons to imprisonment for life and fine of Rs.3,000\/- i.d., RI for
\none year for the offence under section 302 IPC; RI for two years and
\nfine of Rs.1,000\/- i.d., RI for six months for the offence under
\nsection 452 IPC and RI for six months and fine of Rs.500\/- i.d., RI
\nfor three months for the offence under section 324 IPC. It is also
\nordered that all the substantive sentences shall run concurrently.\n<\/p>\n
\t\tAggrieved
\nthereby both the accused have filed instant appeal under Section 374
\nof the Code of Criminal Procedure (‘the Code’ for short), through
\njail authority.\n<\/p>\n
2.\tThe
\nprosecution case as disclosed from the FIR and unfolded during trial
\nis as under:\n<\/p>\n
2.1.\t\tP.W.1,
\nMadhuriben Ramdas Nayak, the complainant has lodged her complaint
\nbefore P.W.12, Ramsing Gulabsing Baria, PSI of Karali Police Station,
\nwherein inter alia it is alleged that she was residing with her
\nhusband and children. She was doing labour and household work. She
\nhas a son named Premodbhai and a daughter Kapilaben. She was married
\nat village Karsan. There was a tamarind tree near their house and the
\nhouse of her maternal uncle Dhuliyabhai. Pravin and Arvind, the sons
\nof her maternal uncle, sold the said tamarind tree before one week
\nand they were not given their share of money from the said sale. Her
\nhusband went to demand  his share from the sale price of  the
\ntamarind tree. But both the accused  refused to give money. The day
\nbefore filing of the complaint, her husband demanded the money before
\nboth of them but the money was not given. Her son Premo and his wife
\nwith children had gone to his-in-laws at village Panibarand and hence
\nher husband Ramdas and she were alone at home.\n<\/p>\n
\t\tOn
\nthe day of the incident, she and her husband Ramdas were sitting in
\nher house at about 2 O’ clock after having lunch.  At that time
\nsuddenly  her maternal uncle’s sons Pravinbhai Dhuliyabhai Nayak and
\nArvindbhai Dhuliyabhai Nayak came with paliya in their hands to her
\nhusband  and Arvind gave paliya blows to her husband at  his neck and
\nPravin gave another blow on the left ear by saving ‘Do you want the
\nshare of tamarind tree.??. Arvind gave third blow on the head. As
\nthe blows were being given one after the other on her husband, she
\nintervened by saying ‘don’t beat’. Arvind also gave a paliya blow on
\nthe wrist of her right hand. It was hit a little. As the accused were
\nbeating her husband and she apprehended that she also would be
\nbeaten, she ran away from there. At that time Karsanbhai Mohanbhai
\nKoli came. Both the accused ran away after beating her husband before
\nit. She went to her father’s place at Rajpur and thereafter as her
\nhusband was injured and he was alive, he was brought in a police van
\nto Karali Hospital. Her husband had died during the treatment. She
\nlodged the complaint alleging that her maternal uncle’s sons Pravin
\nand Arvindbhai, by keeping grudge on the share from the sale price of
\nthe tamarind tree being demanded by Ramdas, entered their house and
\ngave paliya blows one after the other on the neck and head of her
\nhusband and on her right hand wrist and thereby caused injuries and
\nher husband had died in Karali Hospital.\n<\/p>\n
2.2.\t\tThe
\naforesaid complaint was recorded by P.W.12, Ramsing Gulabsing Baria,
\nas per the narration given by P.W.1, Madhuriben, the complainant and
\nthereafter it was registered vide CR No.6\/2000. The said complaint is
\nat Ex.9. He thereafter started investigation. He has sent  injured
\nMadhuriben to hospital for treatment with police yadi. Thereafter he
\nheld inquest on the dead body of Ramdas in presence of Panchas and
\nExecutive Magistrate. He has also drawn panchnama of the scene of
\noffence, collected sample and control earth. He has also recorded the
\nstatements of the witnesses, arrested A-1 Pravinbhai after drawing
\npanchnama of his person in presence of panchas and also collected the
\nclothes worn by him having blood stains as well as the Paliya
\nproduced by him. He has also recovered the clothes of the deceased.
\nHe has arrested A-2 Arvind after drawing panchnama of his person in
\npresence of panchas. The clothes put on by him were also recovered by
\ndrawing panchnama. A-2 has shown his willingness to show the weapon
\nused by him for commission of the offence and by drawing discovery
\npanchnama the weapon used by him was also recovered in presence of
\npanchas. He has sent the muddamal articles collected by him to FSL
\nfor chemical analysis.\n<\/p>\n
2.3.\t\tOn
\nreceipt of the post mortem report and FSL report and as sufficient
\nincriminating evidence was found against both the accused persons, he
\nfiled charge sheet against them in the court of learned JMFC,
\nChhotaudepur.\n<\/p>\n
2.4.\t\tAs
\nthe offence under Section 302 IPC is exclusively triable by a  Court
\nof Sessions, the learned JMFC committed the case to the Court of
\nSessions, Vadodara, camp at Chhotaudepur.\n<\/p>\n
2.5.\t\tThe
\nlearned Additional Sessions Judge to whom the case was made over for
\ntrial, framed charge against both the accused. They pleaded not
\nguilty to the charge and claimed to be tried and thereupon they were
\nput to trial in Sessions Case No. 48 of 2000.\n<\/p>\n
2.6.\t\tTo
\nprove the culpability of the accused, the prosecution has examined 12
\nwitnesses consisting of the complainant, panch witnesses, doctor who
\nperformed autopsy, investigating officer, etc., and relied upon their
\noral testimonies.\n<\/p>\n
2.7.\t\tTo
\nprove the case against the accused, the prosecution has also produced
\na number of documents such as complaint, post-mortem report, FSL
\nreport, discovery panchnama, etc., and relied upon the contents
\nthereof.\n<\/p>\n
2.8.\t\tAfter
\nrecording of the evidence of the prosecution witnesses was over, the
\ntrial Court explained to the accused the circumstances appearing
\nagainst them and recorded their further statement under Section 313
\nof the Code. In their further statement, they denied the case of the
\nprosecution in its entirety. They have stated that a false and
\nconcocted case has been filed against them.  However, they have
\nneither led any evidence nor did they examine any witness in support
\nof their defence.\n<\/p>\n
2.9.\t\tOn appreciation,
\nevaluation, analysis and scrutiny of the evidence on record, the
\ntrial Court came to the conclusion that Ramdas has died a homicidal
\ndeath and the accused are the authors of the injuries caused to the
\ndeceased with paliyu. The trial court has also held that in the said
\nincident the complainant Madhuriben also received injuries. Therefore
\nthe prosecution has successfully established the complicity of the
\naccused for commission of murder of Ramdas and also causing injury to
\ncomplainant Madhuriben. On the aforesaid finding, the trial court
\nconvicted the accused for the offences under Sections 302, 452 and
\n324  IPC and  they have  been sentenced accordingly to which
\nreference is made in the earlier paragraphs of this judgment, which
\nhas given rise to instant appeal at the instance of original accused
\npersons.\n<\/p>\n
3. Ms. Sadhna Sagar,
\nlearned advocate for the accused appointed by the Legal Aid Committee
\nfor the accused, has fairly conceded that deceased Ramdas has died a
\nhomicidal death. She has submitted that  P.W.1, Madhuriben who is the
\ncomplainant is interested witness and therefore no reliance can be
\nplaced upon her oral testimony. She has emphasised that the
\ncomplainant has not deposed before the Court as per the complaint
\nEx.9 given by her. According to Ms. Sagar, there are lot many
\ncontradictions in the allegations made by the complainant in the
\ncomplaint as well as in her oral testimony which is fatal to the
\nprosecution case. All other witnesses are hearsay witnesses and
\ntherefore no reliance can be placed upon their oral testimony. The
\npanch witnesses who were panch to the panchnama of discovery and
\nrecovery of weapons allegedly at the instance of A-1 and A-2 have not
\n supported the prosecution case and therefore recovery of weapons is
\nnot proved. Therefore, according to her, the prosecution has filed to
\nestablish the charge levelled against the accused.\n<\/p>\n
3.1.\t\tAlternatively it
\nis submitted by her that if this court accepts the evidence of the
\nprosecution in its entirety then also it is doubtful as to whether it
\nwas A-1 or it was A-2 who has given fatal blow to deceased Ramdas
\nbecause in this connection there are contradictions in the complaint
\ngiven by P.W.1 and in the oral testimony of P.W.1 before the Court.
\nTherefore, it is submitted by Ms. Sagar that both the accused may be
\ngiven benefit of doubt and they may be acquitted of the offence
\npunishable under Section 302 IPC and instead they may be convicted
\nfor commission of the offence under section 304 Part I or II i.e.,
\nculpable homicide not amounting to murder and accordingly the
\nsentence may also be suitably modified. Therefore she urged to pass
\nappropriate orders in this regard.\n<\/p>\n
4.\tPer
\ncontra,  Mr. K.C. Shah, learned APP for the respondent – State
\nof Gujarat has submitted that there is no infirmity or illegality
\ncommitted by the trial Court in recording the conviction and sentence
\nagainst the accused. Therefore, no interference is called for in the
\nimpugned judgment and order. According to him, it is true that P.W.1
\nhas given different version in her complaint as well as in her oral
\ntestimony. However, she has stated that she has given complaint  and
\nthere was thumb impression in her complaint. She is a rustic
\nvillager. Therefore there might be a little contradictions in her
\noral testimony as well as in the complaint but that itself is not
\nfatal to the prosecution case.\n<\/p>\n
4.1.\t\tIn
\nreply to the alternative submission made by Ms. Sadhna Sagar, learned
\nadvocate for the accused, Mr. K.C. Shah, learned APP has submitted
\nthat looking to the post mortem report, all the injuries were fatal
\nand as per the complaint injury caused by A-1 is a sharp deep wound,
\n10x4x5 cm size and, therefore, the trial court has rightly convicted
\nboth the accused for commission of the offence of murder of Ramdas as
\nwell as causing injury to complainant Madhuriben. Therefore
\ncomplicity of both he accused punishable under Sections 302, 452 and
\n324 IPC is duly proved. He, therefore, urged to dismiss the appeal
\nby confirming the judgment and order of conviction and sentence
\nrecorded against the accused by the trial court.\n<\/p>\n
5.\t\tThis Court has
\nconsidered the submissions advanced by Ms. Sadhna Sagar, learned
\nadvocate for the accused and Mr. K.C. Shah, learned APP for the
\nrespondent ?  State of Gujarat and perused the impugned judgment and
\norder. This Court has undertaken a complete and comprehensive
\nappreciation of all vital features of the case and the entire
\nevidence on record, which is read and re-read by the learned
\nadvocates of the parties with reference to broad and reasonable
\nprobabilities of the case. This Court has examined the entire
\nevidence on record for itself independently of the learned Judge of
\nthe trial Court and considered the arguments advanced on behalf of
\nthe accused and infirmities pressed, scrupulously with a view to find
\nout as to whether the trial Court has rightly recorded the order of
\nconviction and sentence.\n<\/p>\n
6.\t\tThere is no dispute
\nto the fact that the deceased Ramdas has died a homicidal death. Even
\nthe learned advocate for the accused has not raised any dispute in
\nthis regard. To prove this fact, the prosecution has examined P.W.8,
\nDr. Biren Manibhai Patel, who has performed the post mortem
\nexamination on the dead body of Ramdas, at Ex.19. He has issued post
\nmortem report which is on record at Ex.22.\n<\/p>\n
6.1.\t\tOn a conjoint
\nreading of the oral testimony of P.W.8, Dr. Biren Manibhai Patel,
\nEx.19 and the post mortem report at Ex.22, it is seen that there were
\nthree external injuries, one on skull, another on left lower side of
\nthe neck and the third was on left ear. The cause of death was  due
\nto haemorrhage shock due to fracture injury of the skull of the head.\n<\/p>\n
6.2.\t\tIn view of the
\naforesaid evidence, according to us, the prosecution has established
\nthat Ramdas has died a homicidal death. We are, therefore, of the
\nopinion that the trial court has rightly held that Ramdas has died a
\nhomicidal death and we accordingly  confirm the said finding and hold
\nthat the deceased has died a homicidal death.\n<\/p>\n
7.\t\tIt is also the case
\nof the prosecution that in the said incident, P.W.1, complainant-
\nMadhuriben has also received injuries. In this connection, the
\nprosecution has relied upon Medical Certificate at Ex.20 issued by
\nthe Medical Officer, PHC Karali, Taluka Pavi, District Vadodara
\nwherein the injuries have been noted. Thus the prosecution has
\nestablished that in the said incident, the complainant Madhuriben has
\nalso received injuries.\n<\/p>\n
8.\t\tNow the next
\nquestion is whether the accused are the authors of injuries caused to
\ndeceased Ramdas as well as the injuries to complainant Madhuriben.\n<\/p>\n
8.1.\t\tTo prove this, the
\nprosecution has mainly relied upon the  evidence of P.W.1, Madhuriben
\nRamdas Nayak, Ex.8. She has inter alia testified that the incident
\nhad taken place prior to six months. When she and her husband were
\nsitting in their house, A-1 and A-2 came there with Paliyu for
\nbeating her husband and they started beating her husband. A-1 Pravin
\nhas inflicted paliyu blow on the neck of her husband. She was afraid
\nthat she would also be killed. She requested both the accused not to
\nbeat her and she embraced A-2-Arvind and at that time she also
\nreceived the injury. Thereafter she ran away and went to Rajpur
\nvillage where her father resides. Thereafter she had gone to the
\npolice station and filed the  complaint. The said complaint is at
\nEx.9. She has identified the thumb impression on the said complaint.
\nAfter lodging the complaint she went to hospital for treatment.\n<\/p>\n
\tShe has also testified
\nabout the enmity between the accused persons and her husband in
\nconnection with the sharing of the sale price of a tamarind tree
\nwhich was sold by both the accused.\n<\/p>\n
\t\tIn cross-examination
\nshe has reiterated that the complaint was recorded as narrated by
\nher. During the course of cross-examination she has been confronted
\nwith the complaint given by her. After referring to that part of her
\nevidence, Ms. Sadhna Sagar, learned advocate for the accused, has
\ntried to convince this Court that her evidence is bristled with so
\nmany contradictions and therefore no reliance can be placed upon it.\n<\/p>\n
\t\tOn reappraisal of the
\nevidence of the complainant, it is seen that  she has not  given
\nsimilar version in the deposition as was given in her complaint
\nbefore the police. But in the Examination-in-chief she is consistent
\nthat both the accused came with Paliyu and started beating her
\nhusband. The only contradiction is as to who has inflicted fatal
\nblows on the deceased. In the complaint she has alleged that A-2
\nArvind gave two fatal blows to the deceased whereas in the deposition
\nshe has stated that one fatal blow was given by A-1 and another blow
\nwas given by A-2 and A-2 has also inflicted injury to her.\n<\/p>\n
\tIt may be appreciated
\nthat in the post mortem report,  there is mention of three injuries
\non the dead body of Ramdas  which corroborates the complaint at Ex.9
\nwherein also the complainant has stated about three injuries caused
\nto deceased Ramdas, two by A-2 and one by A-1.\n<\/p>\n
8.2.\t\tIt may be
\nappreciated that A-1, Madhuriben is a rustic villager. Therefore,
\nthere are bound to be a little contradictions in her evidence
\nvis-a-vis  the complaint. But she has reiterated that the complaint
\nis given by her which bears her thumb impression and the complaint is
\nrecorded as per the narration given by her. Therefore, this Court
\ncannot ignore the complaint Ex.9. In sum and substance by and large
\nshe has deposed as per the complaint and from her evidence, motive is
\nalso established.\n<\/p>\n
8.3.\t\tIt
\nmay be noted that she has been cross-examined at length by the
\nlearned advocate for the accused. However, nothing substantial could
\nbe brought out from the cross-examination which would impeach the
\ncredibility of her evidence.\n<\/p>\n
8.4.\t\tOn reappraisal  of
\nher evidence, according to us, there was no reason for her to falsely
\ndepose against the accused persons who are also her cousins. She has
\nalso stated that there was a dispute in connection with the sharing
\nof the sale price of a tamarind tree. The deceased was demanding his
\nshare but the accused were not ready to give the same. Therefore
\nthere was motive for the accused to commit murder of Ramdas and
\ntherefore both the accused came with deadly weapon Padiyu and
\ninflicted injuries on vital parts of Ramdas as a result of which he
\nsuccumbed to the same.\n<\/p>\n
9.\t\tIt is settled
\nposition of law that evidence of solitary eye witness is sufficient
\nto base order of conviction. In this connection, it would be
\nappropriate to refer to the following two decisions of the Supreme
\nCourt:\n<\/p>\n
9.1.\t\tIn the case of
\n Kunju Alias Balachandran v\/s. State of Tamil Nadu, (2008) 2 SCC
\n151, the Supreme Court has held that conviction on the basis of
\nthe testimony of the sole eyewitness is permissible where the
\ntestimony of sole eyewitness was not shaken although he was
\ncross-examined at length and the same was corroborated by the
\nevidence of another witness who did not support the prosecution
\nversion in toto.\n<\/p>\n
9.2.\t\tIn the case of
\n Krishna Mochi And Others v\/s. State of Bihar, (2002) 6 SCC 81,
\nthe Supreme Court has held that credible evidence of even a solitary
\nwitness can form the basis of conviction.\n<\/p>\n
10.\t\tThe prosecution has
\nthereafter examined and relied upon the oral testimony of P.W.2,
\nBhailalbhai Lulabhai Nayak, father of the complainant, Ex.10; P.W.3,
\nPremabhai Ramdasbhai Nayak, son of the deceased, Ex.11 and P.W.5,
\nKarshanbhai Mohanbhai Koli, Ex.14. These witnesses are not eye
\nwitnesses. They came  to know about the incident from P.W.1,
\nMadhuriben. However, there is no reason to disbelieve the say of the
\nabove referred to  witnesses  as they are related to the accused
\npersons also and therefore there is no reason for them to falsely
\nrope the accused in the crime.\n<\/p>\n
11.\t\tAccording to us,
\nthere is no corroboration required to the evidence of P.W.1,
\nMadhuriben who is an eye witness and on the basis of her evidence
\nalone complicity of both the accused for commission of the offences
\nalleged against them  has been duly proved. However, the prosecution
\nhas also relied upon the recovery and discovery panchnamas.\n<\/p>\n
12.\t\tAs per the
\nprosecution case, the weapon was recovered from A-2 by drawing
\ndiscovery panchnama and from A-1 clothes and weapon Paliyu were
\nrecovered which were found with  blood stains. The said panchnamas
\nare produced on record at Exs.18 and 36. However, the panchas have
\nnot supported the prosecution case and turned hostile.\n<\/p>\n
13.\tIn this connection,
\nit may be appreciated that it is well settled by catena of decisions
\nof the Supreme Court that merely because the panch witnesses do not
\nsupport the case of the prosecution, the case of the prosecution need
\nnot be thrown over board as unreliable. It may be realized that the
\nphenomenon of panch witnesses turning hostile to the prosecution is
\nnot unknown and is ever on the increase. It needs hardly to be
\nemphasized that the decision of a case does not depend solely on the
\nquestion whether the panch witnesses support the prosecution or turn
\ntheir back on it. If the decision to the case were to depend solely
\non the testimony of panch witnesses regardless of the evidence of
\npolice officers, in theory, it would be giving a right to veto to the
\npanch as so far as the question of culpability of an accused is
\nconcerned, which is not permissible in criminal jurisprudence. It is
\nwell settled that without good ground being pointed out, testimony of
\npolice officers, if otherwise found to be true and dependable, cannot
\nbe discarded by the court on the ground that they are police
\nofficers. On the facts and in the circumstances of the case, by the
\noral testimony of P.W.12, Ramsing Gulabsing Baria,  Investigating
\nOfficer, Ex.39,  who has drawn both the panchnamas Ex.18 and Ex.36,
\nthe contents of the said panchas are proved  and as per the said
\npanchnamas the articles recovered from the accused persons i.e., the
\nclothes put on by them as well as the muddamal articles paliyu were
\nhaving blood stains.\n<\/p>\n
14.\t\tAs per FSL report
\nat Ex.33, the blood found on the muddamal articles is of  O group and
\nthe blood group of deceased Ramdas was also O group. Therefore from
\nthe aforesaid evidence also complicity of both the accused for
\ncommission of murder of Ramdas as well as causing injury  to
\ncomplainant Madhuriben is duly proved.\n<\/p>\n
15.\t\tThe contention of
\nMs. Sadhna Sagar, learned advocate for the accused, that there are
\ncontradictions in the oral testimony of the complainant and in her
\npolice complaint as to who gave fatal blows to deceased Ramdas and
\nsince there are contradictions in the oral testimony of the
\ncomplainant and in the complaint given by her before the police,
\nbenefit of doubt may be given to the accused, cannot be accepted
\nbecause there is evidence to the effect that both the accused came
\nwith similar weapon and both of them inflicted injuries to deceased
\nRamdas.  The injuries inflicted by them were on vital parts of his
\nbody i.e., head and neck. As per the say of the complainant in
\ncomplaint as well as in her deposition,  both the accused came at a
\ntime and started assaulting Ramdas with Paliyu. Both the accused were
\nhaving similar type of weapon and both the weapons were found stained
\nwith blood of O group which was the blood group of deceased Ramdas.
\nThere were more than one fatal injury on the vital parts of the
\ndeceased i.e., head and neck. The complainant has deposed that both
\nthe accused persons have assaulted deceased Ramdas with Paliyu.
\nTherefore, the contention of Ms. Sadhna Sagar that benefit of doubt
\nmay be given to the accused cannot be accepted as both the accused
\ncame with an intention to murder Ramdas on account of their enmity as
\nRamdas was demanding share in the sale price of tamarind tree sold by
\nthe accused.\n<\/p>\n
16.\tThe contention of
\nMs. Sadhna Sagar that the offence committed by both the accused is
\nnot an offence punishable under section 302 IPC but it is an offence
\nof culpable homicide not amounting to murder and therefore they may
\nbe convicted for the offence under section 304 Part I or II and they
\nmay be suitable sentenced also cannot be accepted because it will be
\na mockery of justice to permit the accused to escape the adequate
\npenalty of law when faced with such evidence and such cruel acts. To
\ngive lesser punishment for the accused would be to render the justice
\nsystem of the country suspect. The common man will lose faith in the
\ncourts if adequate punishment is not imposed on the accused.
\nTherefore, we cannot give countenance to the contention of Ms. Sadhna
\nSagar and accordingly we reject the same.\n<\/p>\n
17.\tThe contention of
\nMs. Sadhna Sagar that the complainant is an interested witness and,
\ntherefore, her evidence cannot be relied upon, also has no merit
\nbecause we cannot forget the fact that the complainant is the widow
\nof deceased Ramdas and she has seen the accused assaulting the
\ndeceased with deadly weapons. Ramdas and the complainant were alone
\nin their house at the relevant time and this fact is established by
\nthe evidence of the complainant. Naturally, therefore, the
\ncomplainant would be an eye witness to the incident and she has no
\nreason to falsely rope in the accused in the offence because the
\naccused persons are also related to her and we find no reason for her
\nto allow the real culprit to go scotfree and falsely implicate the
\naccused in such a serious crime. It has also come in the evidence of
\nthe complainant that even she embraced A-2 requesting him not to
\nassault her and this behaviour of the complainant is eloquent enough
\nto  show that she had soft-corners for the accused as they are
\nrelated to her and in such circumstances it will be very difficult to
\nbelieve, even remotely, that the complainant has falsely implicated
\nthe accused persons in the crime.\n<\/p>\n
18.\t The contention of
\nMs. Sadhna Sagar that other witnesses are hear-say witnesses and
\ntheir evidence also cannot be relied upon has also no legs to stand
\nin view of the fact that on the basis of the evidence of P.W.1,
\nMadhuriben, the widow of deceased Ramdas, complicity of the accused
\npersons is established crystal clear and by examining other witnesses
\nthe prosecution tried to corroborate the evidence of P.W.1. According
\nto this court, even without the evidence of other witnesses, who are
\nhear-say witnesses, the evidence of sole eye witness, who has lost
\nher husband in the incident, is sufficient to establish the guilt of
\nthe accused and, therefore, even if this Court ignore the evidence of
\nother hear-say witnesses then also the complicity of the accused is
\nproved and the accused cannot make a slice of profit in their favour
\nby raising such a lame contention that the evidence of hear-say
\nwitnesses cannot be believed.\n<\/p>\n
19.\t\tOn careful
\nconsideration of the evidence on record and on reappraisal of the
\nsame, it is clear that there was a motive on the part of the accused
\npersons to cause the murder of Ramdas as there was a dispute with
\nregard to  sharing of sale price of tamarind tree which was sold by
\nthe accused and as Ramdas was demanding his share and accused were
\nnot ready to give, there was a dispute in this regard between them.
\nThere is no reason for  the complainant to falsely rope in the
\naccused persons in the crime as the accused persons are also related
\nto her.\n<\/p>\n
20.\t\tIn view of the
\nclinching and satisfactory evidence of the prosecution witnesses,
\ncomplicity of the accused in commission of the offence of murder of
\nRamdas has been duly established. Suffice it to say that the trial
\nCourt has given cogent and convincing reason for convicting the
\naccused for commission of offences under Sections 302,  452 and 324
\nIPC and Ms. Sadhna Sagar, learned advocate for the accused could not
\ndislodge the said reasons given by the trial Court.\n<\/p>\n
21.\t\tWe find ourselves
\nin complete agreement with the finding, ultimate conclusion and the
\nresultant order of conviction and sentence recorded by the trial
\nCourt, as according to us, no other finding, conclusion and order, is
\npossible except the one reached by the trial Court, which is required
\nto be affirmed by us.\n<\/p>\n
22.\t\tSeen in the above
\ncontext, there is no reason or justifiable ground to interfere with
\nthe impugned judgment and order of conviction and sentence passed by
\nthe trial Court, and as the appeal lacks merit, it deserves to be
\ndismissed by confirming the judgment and order passed by the trial
\nCourt.\n<\/p>\n
23.\t\tFor the foregoing
\nreasons, the appeal fails and accordingly it is dismissed.
\nResultantly, the judgment and order of conviction and sentence dated
\n24.11.2000 rendered in Sessions Case No.48 of 2000 by the learned
\nAdditional Sessions Judge, Vadodara, Camp at Chhotaudepur, is hereby
\nconfirmed and maintained.\n<\/p>\n
(A.M.Kapadia,J.)<\/p>\n
(Z.K.Saiyed,J.)<\/p>\n
…\n<\/p>\n
(karan)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Pravinbhai vs State on 7 August, 2008 Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print CR.A\/1098\/2000 31\/ 31 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1098 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-134598","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPravinbhai vs State on 7 August, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pravinbhai-vs-state-on-7-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pravinbhai vs State on 7 August, 2008 - 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