{"id":187086,"date":"2010-12-16T00:00:00","date_gmt":"2010-12-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-unknown-on-16-december-2010"},"modified":"2018-01-05T14:31:51","modified_gmt":"2018-01-05T09:01:51","slug":"appearance-vs-unknown-on-16-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-unknown-on-16-december-2010","title":{"rendered":"Appearance : vs Unknown on 16 December, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Appearance : vs Unknown on 16 December, 2010<\/div>\n
Author: A.M.Kapadia,&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\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/2519\/2005\t 19\/ 19\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. 2519 of 2005\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.M.KAPADIA  \nHONOURABLE\nMR.JUSTICE VIJAY MANOHAR SAHAI\n \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\n\t\t\tbe referred 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\nBHALJIBHAI\nJAYRAMBHAI RATHVA \n\n \n\nVersus\n \n\nSTATE\nOF GUJARAT \n\n \n\n=========================================\n \nAppearance : \nMR\nPRATIK B BAROT for Appellant : Appointed by Legal Aid Committee \nMR.\nL.B.DABHI, APP for Respondent(s) :\n1, \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\t \n\n \n\n\t\t\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\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE VIJAY MANOHAR SAHAI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 16\/12\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.M.KAPADIA)<\/p>\n
Challenge
\n\tin this Appeal filed under Section 374 of the Code of Criminal
\n\tProcedure, 1973 (“the Code” for short) is to the
\n\tcorrectness of the judgment and order dated 21.11.2005 rendered in
\n\tSessions Case No. 3 of 2004 by the learned Presiding Officer and
\n\tAdditional Sessions Judge, Fast Track Court No.3, Chota Udepur,
\n\tDistrict Baroda, by which the sole Appellant (“the accused”
\n\tfor short) has been convicted for commission of the offence
\n\tpunishable under Section 302 of the Indian Penal Code (“IPC”
\n\tfor short) and sentenced to suffer RI for life and fine of Rs.200\/-
\n\ti.d. RI for a further period of one month, whereas he has been
\n\tacquitted of the offence under Section 504 of IPC.\n<\/p>\n
The
\n\tprosecution case in nutshell as disclosed from the FIR and unfolded
\n\tduring trial is as under:\n<\/p>\n
2.1\t\tPW-1
\n\tGuliben Narsinhbhai, the complainant has lodged the complaint before
\n\tPW-11 Jethabhai Dhulabhai Parmar, PSO, Rangpur Police Station,
\n\twherein, inter alia, it is stated that she is residing at Jamfaliyu
\n\tLehvat, Taluka Chhota Udepur with her family and doing household
\n\twork and agricultural labour work.  She has one daughter and one
\n\tson. Marriage of her daughter had taken place before three years in
\n\tthe village Kheda in M.P. and her daughter is residing with her in
\n\tlaws.  Her Son’s name is Dalsingh, who has three children.  She
\n\tfurther stated that they have a dispute regarding a land for last
\n\tone year with Bhalji Jayram Rathva of their village. On 6.10.2003,
\n\tat about four o’ clock in the afternoon, Bhalji Jayram came to their
\n\thouse with a knife in his hand saying , “come out Narsingh”.
\n\t On being told so, when her husband came out, Bhalji Jayram Rathva
\n\ttook her husband up to some distance ahead, Vestiya Chhitu,
\n\tChimaliya Sengala, her son Dalsing, Bhodarbhai Hatubhai Rathva and
\n\tshe herself were going after her husband.  In the meantime, after
\n\thaving abused her husband, Bhalji Jayram caused injuries by giving
\n\tblows on neck part and shoulder of her husband with the knife in his
\n\thand and her husband fell down.  As they shouted loudly, Bhalji
\n\tJayram ran away with knife.  On looking her husband, it was found
\n\tthat he was dead.\n<\/p>\n
2.2\t\tAs
\n\tper the further case of the prosecution, the motive for crime was
\n\tthat, Fuliyo is the youngest brother of Bhaljibhai and he has gone
\n\tfor labour work in Morbi for last one year.  The land of his part
\n\thas been given to her husband in partnership, and for the last one
\n\tyear, the waste land has not been in the outskirts of their village
\n\tbut in the area of their village.  After making it cultivable, her
\n\thusband was doing agriculture.  As Bhalji wanted to cultivate it,
\n\the, having kept this animosity, caused the death of her husband by
\n\tgiving knife blows.\n<\/p>\n
2.3\t\tThe
\n\tcomplaint for the aforesaid incident was lodged at Rangpur Police
\n\tStation vide I-CR No. 72 \/ 2003 against the accused for commission
\n\tof the offence punishable under Sections 302 and 504 IPC and beneath
\n\tthe said complaint, signature of the complainant was obtained and
\n\tPW-11 PSO has also put his endorsement and thereafter offence
\n\tpunishable under Sections 302 and 504 IPC was registered.  The said
\n\tcomplaint is at Exh.37.\n<\/p>\n
2.4\t\tAfter
\n\tregistering the complaint, the investigation was carried out by
\n\tPW-10 Akasmatbhai Bhatubhai Damor, Investigating Officer.  During
\n\tthe course of investigation, he has recorded further statement of
\n\tGuliben.  Thereafter, he has held inquest on the dead body of the
\n\tdeceased in presence of Executive Magistrate and drawn inquest
\n\tpanchnama in presence of two panchas, and thereafter, dead body of
\n\tthe deceased was sent for autopsy.  He has thereafter drawn the
\n\tpanchnama of the scene of offence in presence of two panchas. He has
\n\talso collected sample soil as well as blood stained soil from the
\n\tscene of offence by drawing panchnama.  He has recorded the
\n\tstatements of witnesses.  He has also recovered clothes of the
\n\tdeceased in the presence of panchas.  The accused has surrendered
\n\tbefore him. Therefore, he has arrested the accused after drawing the
\n\tpanchnama of the person of the accused in presence of panchas. The
\n\taccused has voluntarily shown his willingness to find out the sickle
\n\tused for commission of the
\n\toffence, which was hidden by him.  Therefore,
\n\tdiscovery panchnama was made in presence of two panchas
\n\tand in the presence of two panchas, the accused has shown the place
\n\twhere he has hidden the sickle,
\n\twhich was recovered from the said place.  All the muddamal articles
\n\trecovered by the I.O. was sent to FSL for chemical analysis.\n<\/p>\n
\t2.5\t\tOn
\n\treceipt of the report of FSL and the PM report of the deceased, as
\n\tsufficient incriminating evidence was found against the accused, he
\n\thas filed charge sheet against the accused in the Court of learned
\n\tJudicial Magistrate First Class, Chota Udepur, where it was
\n\tregistered as Criminal Case No. 2328 of 2003.\n<\/p>\n
\t2.6\t\tAs
\n\tthe offence under Section 302 IPC is exclusively triable by the
\n\tCourt of Sessions, the learned JMFC, Chota Udepur committed the case
\n\tto the Sessions Court, Chota Udepur at Baroda, where it was
\n\tregistered as Sessions Case No. 3 of 2004.\n<\/p>\n
\t2.7\t\tThe
\n\tlearned Presiding Officer and Additional Sessions Judge, Fast Track
\n\tCourt No.3, Chota Udepur, Baroda (“the trial Court” for
\n\tshort), to whom the case was made over for trial, framed charge
\n\tagainst the accused for the offence punishable under Sections 302
\n\tand 504 IPC . The charges were read over and explained to the
\n\taccused. The accused pleaded not guilty to the charges levelled
\n\tagainst him and he claimed to be tried, and therefore, the accused
\n\twas put to trial by the trial Court in Sessions Case No. 3 of 2004.\n<\/p>\n
\t2.8\t\tTo
\n\tprove the culpability of the accused, the prosecution has examined
\n\tas many as 12 witnesses and relied upon their oral testimonies,
\n\tdetails of which have been given in paragraph 8 of the impugned
\n\tjudgment and order.  They are as under:\n<\/p>\n
PW<\/p>\n
Name
\n\t\t\t\t\tof the Witness<\/p>\n
Status<\/p>\n
Exhibit<\/p>\n
1<\/span><\/p>\n
Guliben
\n\t\t\t\t\tNarsinghbhai<\/p>\n
Complainant\n<\/p>\n
\t\t\t\t\t– Eyewitness<\/p>\n
12<\/span><\/p>\n
2<\/span><\/p>\n
Dalsingh
\n\t\t\t\t\tNarsingh<\/p>\n
Eyewitness\n<\/p>\n
\t\t\t\t\t– son of deceased<\/p>\n
14<\/span><\/p>\n
3<\/span><\/p>\n
Natubhai
\n\t\t\t\t\tFatubhai Rathwa<\/p>\n
Panch
\n\t\t\t\t\tWitness<\/p>\n
15<\/span><\/p>\n
4<\/span><\/p>\n
Meghjibhai
\n\t\t\t\t\tGuliabhai<\/p>\n
Panch
\n\t\t\t\t\tWitness<\/p>\n
20<\/span><\/p>\n
5<\/span><\/p>\n
Chimadiyabhai
\n\t\t\t\t\tSengalbhai Rathwa<\/p>\n
Eyewitness<\/p>\n
22<\/span><\/p>\n
6<\/span><\/p>\n
Naikabhai
\n\t\t\t\t\tBajubhai Rathwa<\/p>\n
Panch
\n\t\t\t\t\tWitness<\/p>\n
23<\/span><\/p>\n
7<\/span><\/p>\n
Versinghbhai
\n\t\t\t\t\tBajubhai<\/p>\n
Panch
\n\t\t\t\t\tWitness<\/p>\n
24<\/span><\/p>\n
8<\/span><\/p>\n
Purshottamdas
\n\t\t\t\t\tKanjibhai Vankar<\/p>\n
Doctor\n<\/p>\n
\t\t\t\t\t– who performed PM on the dead body of the deceased.\n<\/p>\n
25<\/span><\/p>\n
9<\/span><\/p>\n
Jaysinghbhai
\n\t\t\t\t\tJalmabhai Rathwa<\/p>\n
Circle
\n\t\t\t\t\tOfficer, who prepared the map of the scene of offence<\/p>\n
27<\/span><\/p>\n
10<\/span><\/p>\n
Akasmatbhai
\n\t\t\t\t\tBhatubhai Damor<\/p>\n
PSI\n<\/p>\n
\t\t\t\t\t– I.O.\n<\/p>\n
30<\/span><\/p>\n
11<\/span><\/p>\n
Jethabhai
\n\t\t\t\t\tDhulabhai Parmar<\/p>\n
PSO,
\n\t\t\t\t\twho recorded the complaint.\n<\/p>\n
36<\/span><\/p>\n
12<\/span><\/p>\n
Chandubhai
\n\t\t\t\t\tRaisinghbhai Parmar<\/p>\n
I.O.\n<\/p>\n
39<\/span><\/p>\n
\t2.9\t\tTo
\n\tprove the culpability of the accused, the prosecution has also
\n\tproduced in all 13 documents like complaint, inquest report,
\n\tpanchnamas, PM report, FSL report, etc. and relied upon the contents
\n\tof the same, details of which are mentioned in paragraph 8 of the
\n\timpugned judgment and order.  The relevant documents shall be
\n\tdiscussed as and when required in this judgment.\n<\/p>\n
\t2.10
\n\tAfter recording of the
\n\tevidence of the prosecution witnesses was over, the trial court
\n\texplained to the accused the circumstances appearing against him in
\n\tthe evidence of the prosecution witnesses and recorded his further
\n\tstatement as required under Section 313 of the Code.  In his
\n\tfurther statement he denied the prosecution case in its entirety and
\n\tstated that a false case has been filed against him.  However,
\n\the did not lead any evidence nor did he examine any witness in
\n\tsupport of his defence.\n<\/p>\n
\t2.11\t\tOn
\n\tappreciation, evaluation, and scrutiny of the evidence on record,
\n\tthe trial Court come to the conclusion that the deceased  Narsingh
\n\tBhadubhai Rathava died a homicidal death.  The trial Court also held
\n\tthat the accused was
\n\tthe author of the injuries caused to the deceased.  The trial Court
\n\thas also come to the conclusion that the prosecution has
\n\tsuccessfully established
\n\tthe complicity of the accused for committing murder of  Narsingh
\n\tBhadubhai Rathava on the basis of the evidence of two eyewitnesses.
\n\tTherefore, according to the trial Court, the offence against the
\n\taccused punishable under Section 302 IPC is proved.\n<\/p>\n
2.12\t\tOn
\n\tthe aforesaid finding, the trial Court convicted the accused for the
\n\toffence punishable under Section 302 IPC and sentenced him to RI for
\n\tlife and fine of Rs.200\/- i.d. RI for a further period of one month,
\n\twhich has given rise to the instant Appeal at the instance of the
\n\taccused.\n<\/p>\n
\tThis
\n\tCourt has considered the submissions advanced by the learned
\n\tadvocates appearing for the parties and perused the impugned
\n\tjudgment and order. This Court has undertaken a complete and
\n\tcomprehensive appreciation of all vital features of the case and the
\n\tentire evidence
\n\ton record, which is read and re-read by the learned
\n\tadvocates of the parties with reference to broad and reasonable
\n\tprobabilities of the case.  This Court has examined
\n\tthe entire evidence on record for itself independently of the
\n\tlearned Judge of the trial Court and considered the arguments
\n\tadvanced on behalf of the accused and infirmities pressed,
\n\tscrupulously with a view to
\n\tfind out as to whether the trial Court has rightly recorded the
\n\torder of conviction and sentence.\n<\/p>\n
\tSo
\n\tfar as the homicidal death of the deceased Narsingh
\n\tBhadubhai Rathava  is
\n\tconcerned, the same has not been disputed by the learned Advocate
\n\tfor the accused, hence, we need not discuss the same in detail.
\n\tSuffice it to say that the prosecution has succeeded in establishing
\n\tthat the death of Narsingh
\n\tBhadubhai Rathava was a homicidal one through the evidence of PW-8
\n\tDr.Purshottamdas Kanjibhai Vankar examined at Exh. 25, who has
\n\tperformed PM on the dead body of deceased Narsingh Bhadubhai Rathava
\n\tand prepared PM, which is on record at Exh.26.  On conjoint reading
\n\tof the oral testimony of PW-8 Dr. Purshottamdas Kanjibhai Vankar as
\n\twell as PM report at Exh.26, it is seen that the deceased has
\n\treceived three cut injuries on his neck, which is the vital part of
\n\tthe body.  According to the Doctor, the cause of death is due to
\n\thypovolaemia shock on hypoxia shock or shock due to cut of both
\n\tsides carotid vessels and nerves.  Therefore, in view of the
\n\taforesaid evidence it has to be held that the deceased died a
\n\thomicidal death and
\n\tthe trial Court has rightly come to the conclusion that the deceased
\n\tdied a homicidal death, and therefore, we confirm the said finding
\n\tand hold that the deceased died a homicidal death.\n<\/p>\n
\tNow,
\n\tthe next question which is to be answered by us is whether the
\n\taccused is the author of the injuries caused to deceased  Narsingh
\n\tBhadubhai Rathava.\n<\/p>\n
\tTo
\n\tprove the aforesaid fact, the prosecution has mainly relied upon the
\n\toral testimony of three eyewitnesses, i.e. PW-1 Guliben Narsinghbhai\n<\/p>\n
\t– complainant and wife of the deceased at Exh.12, PW-2
\n\tDalsingh Narsingh – son of deceased Narsingh Bhadubhai Rathava
\n\tat Exh.14 and PW-5 Chimadiyabhai Sengalbhai Rathwa – an
\n\teyewitness at Exh.22.\n<\/p>\n
\tNow,
\n\twe shall discuss their evidence.  PW-1 Guliben Narsinhbhai in her
\n\toral testimony recorded at Exh.12 has inter alia testified that the
\n\tname of her husband was Narsingh Bhadubhai Rathava and the name of
\n\ther son is Dalsingh Narsingh.  Her husband died prior to one year.
\n\tAt the time of incident, she was at her home.  She, her son
\n\tDalsingh, Bhodar and Vaistio were at home, at that time, the accused
\n\tBhaljibhai called her husband  Narsingh Bhadubhai Rathava to the
\n\tfield of Jayram Vaistio and he has inflicted six blows of sickle
\n\ton
\n\tthe neck of her husband,
\n\ttherefore, her husband fell down.  When the accused called her
\n\thusband, she, her son Dalsingh, Bodar and Chimadiyabhai had followed
\n\thim.  At the time of incident, the accused came with sickle.
\n\t She has also identified
\n\tthe accused in the Court.  She has also testified that dispute with
\n\tregard to land was going on between her
\n\thusband and the accused.  She has also stated that she lodged the
\n\tcomplaint for the said incident in police station.  Police has also
\n\tobtained her thumb impression beneath the same.  She has also
\n\tidentified the weapon (sickle)
\n\tin
\n\tthe Court.  It may be noted that she was cross-examined at length by
\n\tthe learned Advocate for the accused.  However, she has successfully
\n\twithstood the test of cross-examination and nothing fruitful could
\n\tbe brought out which would impeach the credibility of her evidence.\n<\/p>\n
\tThe
\n\tprosecution has thereafter examined and relied upon the oral
\n\ttestimony of PW-2 Dalsingh Narsingh – the son of the deceased
\n\tand an eyewitness at Exh.14.  He has also testified the similar
\n\tversion which has been testified by PW-1 Guliben Narsinghbhai –
\n\this mother.  He precisely stated that the accused has inflicted six
\n\tblows with the weapon sickle
\n\ton
\n\tthe neck of his father and thereafter the accused ran away with the
\n\tsame.  He saw his father dead.  He has also testified that the
\n\taccused came with sickle<\/p>\n
\tat their
\n\tresidence.  He has also testified that the complaint for the
\n\taforesaid incident was lodged by his mother.  This witness is also
\n\tcross-examined by the learned Advocate of the accused and he has
\n\talso successfully withstood the test
\n\tof cross-examination and nothing fruitful could be brought out which
\n\twould impeach the credibility of his evidence.\n<\/p>\n
\tThe
\n\tprosecution has thereafter examined and relied upon the oral
\n\ttestimony of PW-5 Chimadiyabhai Sengalbhai Rathawa, who is examined
\n\tat Exh.22.  He has testified that the incident has taken place prior
\n\tto one year.  There was a shout towards the wada of Vaistio and
\n\ttherefore, he went to the wada of Vaistio to see the incident.  He
\n\tsaw that the accused inflicted sickle
\n\tblows
\n\ton the neck as well as on the shoulder of the deceased Narsinghbhai.
\n\tDeceased Narsinghbhai therefore fell down.  He has also testified
\n\tthat the dispute was going on between Narsinghbhai and the accused
\n\tBhaljibhai in connection with the land.  He has also testified that
\n\tat the place of incident, Narsinghbhai, accused Bhaljibhai, wife of
\n\tthe deceased Narsinghbhai and his son Dalsingh were present.  He has
\n\talso identified the weapon sickle
\n\tin
\n\tthe Court.  This witness was also cross-examined at length by the
\n\tlearned Advocate of the accused and he has successfully withstood
\n\tthe test of cross-examination and nothing
\n\tfruitful could be brought out which would impeach the credibility of
\n\this evidence.\n<\/p>\n
\tOn
\n\treappraisal of the evidence of the aforementioned three
\n\twitnesses, there is no manner of doubt that all the three witnesses
\n\thave seen the incident  and there presence
\n\tat the scene of offence was natural, as, in their presence, the
\n\taccused has taken the deceased with him towards the field of
\n\tVaistio.  They all chased the deceased, and in their presence, the
\n\taccused inflicted six blows on the neck of the deceased with sickle.\n<\/p>\n
It
\n\tis true that both the eye witnesses, i.e. PW-1 Guliben Narsinghbhai
\n\tand PW-2 Dalsingh Narsingh are  the relatives of the deceased as
\n\tPW-1 is the wife of the deceased and PW-2 is the son of the
\n\tdeceased, however, that fact itself is not sufficient  to discard
\n\ttheir oral testimonies.  It is the settled principle of law by
\n\tcatena of decisions of the Supreme Court that if witnesses are near
\n\tand dear  relatives of the victim, that fact itself alone is not
\n\tsufficient to discard their testimonies unless their evidence is
\n\timpeachable and does not inspire confidence. It is also the settled
\n\tprinciple of  law by catena of decisions of the Supreme Court that
\n\teven if  there is only the evidence of sole eye witness, if it is
\n\tof sterling quality and  unimpeachable, the same can be relied upon
\n\tand the conviction
\n\tcan be  based on the basis of it.\n<\/p>\n
\tSee:\n<\/p>\n
(1)\t1992
\n\tSupp (2) SCC 173 <\/p>\n
\t\t\tSohrabkhan
\n\t\t\tv\/s State of Madhya Pradesh<\/p>\n
\t(2)\t(2006)
\n4 SCC 512<\/p>\n
\t\tState
\nof A.P. v\/s S. Rayappa and others<\/p>\n
\t(3)\t(2009)
\n12 SCC 629<\/p>\n
\t\tVijaykumar
\nv\/s State by Inspector of Police, Madras \t\tand another\t<\/p>\n
\t(4)\t(2010)
\n6 SCC 673<\/p>\n
\t\tBalraje
\nalias Trimbak v\/s State of Maharashtra<\/p>\n
\t(5)\t(2010)
\n7 SCC 759<\/p>\n
\t\tDharnidhar
\nv\/s State of Uttar Pradesh and others<\/p>\n
\t(6)\t(1991)
\n2 SCC 32<\/p>\n
\t\tJai
\nPrakash v\/s State (Delhi Administration)<\/p>\n
\t(7)\t1991
\nSupp (2) SCC 677<\/p>\n
\t\t\tJayaram
\n\t\t\tShiva Tagore and others v\/s State of Maharashtra<\/p>\n
\tIn
\n\tthe instant case, the evidence of PW-1 Guliben Narsinghbhai,
\n\texamined at Exhibit-12 as well as the evidence of PW-2 Dalsingh
\n\tNarsingh, examined at Exhibit-14, are of sterling quality,
\n\tunimpeachable, inspiring  confidence  and being trustworthy,
\n\treliance  can be placed  upon their oral testimonies to base
\n\tconviction of the accused for commission of the offence of murder of
\n\tNarsinghbhai.  That apart, PW-5 – Chimadiyabhai Sengalbhai
\n\tRathwa is not a relative of the deceased, and therefore, he is an
\n\tindependent eyewitness and he has supported the prosecution case in
\n\tunequivocal terms that he has seen the accused giving six blows on
\n\tthe neck of the deceased.  Therefore, the evidence of two
\n\teyewitnesses gets the corroboration from the independent eyewitness.\n<\/p>\n
The
\n\tprosecution has successfully established the complicity
\n\tof the accused for commission of the offence of murder
\n\tof Narsingh punishable under Section 302 IPC on the basis of the
\n\tevidence of the three eyewitnesses, and therefore, according to us,
\n\ttheir evidence do not require any corroboration.\n<\/p>\n
\tHowever,
\n\tthe prosecution tried to get corroboration from the discovery
\n\tpanchnama of the weapon sickle
\n\tused
\n\tby the accused for commission of the offence which was found out on
\n\tthe voluntary statement made by the accused.  To prove the said
\n\tfact, the prosecution has examined and relied upon the oral
\n\ttestimony of PW-4 Meghjibhai Guliabhai at Exh.20.  He is the witness
\n\tof the discovery panchnama of the weapon which was recovered by the
\n\tI.O. on the basis of the voluntary statement made by the accused.
\n\tIt may be noted that PW-4 Meghjibhai Guliabhai has not supported the
\n\tcontents of the panchnama.  He has inter alia testified that he has
\n\tput his thumb impression beneath the panchnama.  He has resiled from
\n\tthe statement made by him in the panchnama, therefore, he was
\n\tdeclared as hostile witness and he was cross-examined at length.
\n\tHowever, the said panchnama is proved by examining PW-10 Akasmatbhai
\n\tBhatubhai Damor, I.O., who has in terms testified that he has
\n\twritten the panchnama as per narration given by PW-10
\n\tAkasmatbhai and put his signature beneath the same.  He has also
\n\ttestified that the accused has voluntarily made a statement in the
\n\tpresence of panchas to show the sickle<\/p>\n
\twhich was hidden by him at a distant place and on the basis of his
\n\tstatement, he along with panch witnesses went to the said place
\n\tshown by him and the accused himself has found out sickle
\n\twhich
\n\twas recovered having blood stains.  The said panchnama is on record
\n\tat Exh.33. On the basis of the discovery panchnama, prosecution has
\n\tsuccessfully established the complicity of the accused for
\n\tcommission of the offence of murder of Narsinghbhai punishable under
\n\tSection 302 IPC.  It is required to be noted that as per FSL report,
\n\tthe blood group of blood stains found on the sickle
\n\twere
\n\tsimilar to the blood group of blood stains found on the clothes of
\n\tthe deceased, and therefore, the discovery panchnama gets
\n\tcorroboration from the FSL report.\n<\/p>\n
The
\n\tplea that panch witnesses have turned hostile and, therefore, the
\n\tevidence adduced by the investigating officer regarding seizure of
\n\tincriminating article, i.e sickle
\n\tat the instance of the Accused should be disbelieved, is merely
\n\tstated to be rejected. It is well settled that merely because the
\n\tpanch witnesses do not support the case of the prosecution, the case
\n\tof the prosecution need not be thrown over-board as unreliable. It
\n\tmust be realised that the
\n\tphenomenon of panch witnesses turning hostile to the prosecution is
\n\tnot unknown and is ever on the increase. It needs hardly to be
\n\temphasized that the decision of a case does not depend solely on the
\n\tquestion whether the panch witnesses support the prosecution or turn
\n\ttheir back on it. If the decision of the case were to depend solely
\n\ton the testimony of panch witnesses regardless of the evidence of
\n\tpolice officers, in theory, it would be giving a right of veto to
\n\tthe panchas so far as that question of culpability of the Accused is
\n\tconcerned, which is not permissible in criminal jurisprudence. It is
\n\twell settled that without good ground being pointed out, testimony
\n\tof police officer, if otherwise found to be true and dependable,
\n\tcannot be discarded by Court on the ground that he is a police
\n\tofficer. On the facts and in the circumstances of the case, this
\n\tCourt finds that testimony of PW-10 Aksmatbhai Bhatubhai Damor, IO
\n\tis not only inspiring confidence, but, gets corroboration from the
\n\tother evidence on record. From his evidence, contents of panchnama
\n\t(Exh.33) have been duly proved and therefore, reliance can be placed
\n\ton the said piece of evidence and as per the said piece of evidence
\n\tthe Accused has shown willingness to find out the muddamal weapon
\n\twhich he had hidden and it was found from the place which was shown
\n\tby him.\n<\/p>\n
On
\n\tover all reappraisal and threadbare scrutiny of the evidence on
\n\trecord, according to us, the evidence of eyewitnesses are of
\n\tsterling quality and though PW-1 Guliben and PW-2 Dalsingh are
\n\trelatives of the deceased, there evidence cannot be discarded as
\n\ttheir evidence is of sterling quality, unimpeachable and inspire
\n\tconfidence and same can be relied upon and conviction can be based
\n\ton the basis of it.  That apart, PW-5 – Chimadiyabhai
\n\tSengalbhai Rathwa, who is an independent eyewitness has supported
\n\tthe prosecution case, and in his presence, the accused gave six
\n\tblows of sickle
\n\ton the neck of the deceased.  Besides this, their evidence also gets
\n\tcorroboration of the discovery panchnama of the weapon.  Therefore,
\n\tprosecution has successfully established the complicity of the
\n\taccused for commission of the offence of murder of Narsinghbhai,
\n\ttherefore, it is clear that the complicity of the accused for
\n\tcommission of offence of murder of Narsinhbhai is duly established
\n\tby the prosecution beyond reasonable doubt.\n<\/p>\n
We
\n\tfind ourselves in complete agreement with the finding, ultimate
\n\tconclusion and the resultant order of conviction and sentence
\n\trecorded by the trial Court and according to us no other finding or
\n\tconclusion could have been reached by the trial Court except the one
\n\treached by it on the facts and circumstances of the case with which
\n\twe agree and according to us it is required to be confirmed.\n<\/p>\n
\tSeen
\n\tin the above context, there is no reason to interfere with the
\n\timpugned judgment and order of conviction and sentence passed by the
\n\ttrial Court, the Appeal lacks merit and deserves to be dismissed by
\n\tconfirming and maintaining the order of conviction and sentence
\n\tpassed by the trial Court.\n<\/p>\n
For
\n\tthe foregoing reasons, the Appeal fails and accordingly, it is
\n\tdismissed.  The result of which is that the judgment and order dated
\n\t21.11.2005 passed by the learned Presiding Officer and Additional
\n\tSessions Judge, Fast Track Court No.3, Chota Udepur, District
\n\tBaroda, convicting the accused for committing murder of Narsingh
\n\tBhadubhai Rathava punishable under Section 302 of IPC and sentencing
\n\thim to undergo imprisonment for life and fine of Rs.200\/-, i.d. RI
\n\tfor a further period of one month, is hereby confirmed and
\n\tmaintained.\n<\/p>\n
Muddamal
\n\tarticles to be disposed of in terms of the directions contained in
\n\tthe impugned judgment and order of the trial Court.\n<\/p>\n
(A.M.Kapadia,J)<\/p>\n
(V.M.Sahai,J)<\/p>\n
Jayanti*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Appearance : vs Unknown on 16 December, 2010 Author: A.M.Kapadia,&Nbsp; Gujarat High Court Case Information System Print CR.A\/2519\/2005 19\/ 19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2519 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI ========================================= 1 Whether Reporters of […]<\/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-187086","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAppearance : vs Unknown on 16 December, 2010 - 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\/appearance-vs-unknown-on-16-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Appearance : vs Unknown on 16 December, 2010 - 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