{"id":43194,"date":"2011-03-28T00:00:00","date_gmt":"2011-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bichhubhai-vs-unknown-on-28-march-2011"},"modified":"2016-09-21T11:52:29","modified_gmt":"2016-09-21T06:22:29","slug":"bichhubhai-vs-unknown-on-28-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bichhubhai-vs-unknown-on-28-march-2011","title":{"rendered":"Bichhubhai vs Unknown on 28 March, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Bichhubhai vs Unknown on 28 March, 2011<\/div>\n
Author: A.L.Dave,&Nbsp;Mr.Justice R.M.Chhaya,&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\/687\/2002\t 12\/ 12\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. 687 of 2002\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.L.DAVE   Sd\/-\n \n\n \nHONOURABLE\nMR.JUSTICE R.M.CHHAYA\nSd\/- \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\tYES\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 ?  YES\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 ? NO\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 ?    NO\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 ?               NO\n\t\t\n\t\n\n \n\n \n=========================================================\n\n\n \n\nBICHHUBHAI\nRAMBHAI KATHI (VALA) - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================================\nAppearance : \nMS\nSUDHA R GANGWAR for\nAppellant(s) : 1, \nMR. D.C. SEJPAL, APP. for Opponent(s) :\n1, \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.L.DAVE\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 R.M.CHHAYA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 14\/03\/2011 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.L.DAVE)<\/p>\n
1.\tIn
\nan incident that had occurred on 19.7.1992 at about 19.15 hrs. at
\nHudco Society at Bagasara of Vadia taluka of Amreli district one
\nKalusha  Abdula Fakir  was allegedly done to death by Bichhubhai
\nRambhai Kathi (the present appellant) by inflicting multiple blows
\nwith knife  (dagger) after giving abuses to the deceased. The
\nincident was seen by number of persons. FIR was lodged by Dadibu
\nAbdulsha Fakir (PW 10), who happens to be the mother of the deceased
\nwith Bagasara Police Station on the basis of which an offence was
\nregistered and the case was investigated. During the course of
\ninvestigation,  dying declaration of the deceased was recorded by
\nExecutive Magistrate. The statements of relevant witnesses were
\nrecorded  and Panchnamas were drawn. At the conclusion of
\ninvestigation, the investigating agency found that  there was ample
\nevidence to connect the accused with the offence and, therefore,
\nchargesheet was filed before the JMFC, Bagasara, who in turn
\ncommitted the case to the Court of Sessions at Amreli as the offences
\nwere  exclusively triable by Sessions Court and it was registered as
\nSessions Case No. 107 of 1992 in  Sessions Court at Amreli. The
\ncharge was framed against the accused appellant for the offences
\npunishable under sections 504 and 302 of IPC and section 135 of the
\nBombay Police Act. The accused pleaded not guilty to the charge and
\nclaimed to be tried.\n<\/p>\n
2.\tAfter
\nconsidering the evidence led by  the prosecution, the Trial Court
\ncame to the conclusion that offences punishable under section 302 of
\nIPC  and section 135 of Bombay Police Act were duly proved by the
\nprosecution and, therefore, convicted the accused appellant for the
\nsaid two offences, whereas acquitted him of the offence punishable
\nunder section 405 of IPC. For the offences punishable under section
\n302 the Trial Court ordered the accused-appellant to undergo
\nimprisonment for life and for the offences punishable under section
\n135 of the Bombay Police Act, the Trial Court sentenced him to
\nundergo R.I. for six months. The sentences were ordered to run
\nconcurrently and benefit of set-off was given. The judgment and order
\nwas pronounced  on 24.6.2002. The accused is aggrieved  by the said
\njudgment and order and, hence, this appeal.\n<\/p>\n
3.\tMs.\n<\/p>\n
Sudha Gangwar, learned Advocate for the appellant submitted that the
\nprosecution evidence is not sufficient to show that there was an
\nintention to kill on the part of the appellant. He had no motive
\neither to commit murder of the deceased. The conviction is based
\nmainly on dying declaration before the Executive Magistrate which is
\nnot reliable. She submitted that from the evidence of the doctor who
\ngave an endorsement of the patient being conscious to give dying
\ndeclaration, it is clear that he had given certificate without
\nclinical examination of the deceased patient. He only looked at him
\nand issued certificate about consciousness and fit state of mind of
\nthe patient. Dying declaration before the Executive Magistrate,
\ntherefore, would be rendered unreliable.\n<\/p>\n
4.\tMs.\n<\/p>\n
Gangwar further submitted that most of the witnesses who have deposed
\nbefore the Court have not supported the case of the prosecution. Even
\notherwise they are relatives of the deceased victim and are,
\ntherefore, interested witnesses.\n<\/p>\n
5.\tMs.\n<\/p>\n
Gangwar therefore submitted that the appeal may be allowed and the
\nconviction by the Trial Court may be set aside.\n<\/p>\n
6.\tBy
\nway of an alternative submission, Ms. Gangwar submitted that if the
\nCourt comes to the conclusion that the evidence is sufficient to show
\ninvolvement of the appellant, the case may be treated as a case
\nfalling under definition of culpable homicide not amounting to
\nmurder, as there was no intention on the part of the appellant to
\ncause death of the deceased and that there was no motive for the
\nappellant to commit such a crime. That the incident erupted  suddenly
\nand in the heat of passion, the assault was made. She further
\nsubmitted that the conviction therefore be altered from one
\npunishable under section 302 to one punishable under section 304
\nPart-II.\n<\/p>\n
7.\tMr.\n<\/p>\n
D.C. Sejpal, learned APP. has opposed the appeal. According to him,
\nthe conviction is well founded. He submitted that there are  as many
\nas four dying declarations, out of which one is before the Executive
\nMagistrate. There are two oral dying declarations, the first one
\nbefore the mother of the deceased Dadubi and the second one is before
\nhis sister. The third dying declaration is by way of history given to
\nthe doctor. All these dying declarations are consistently involving
\nthe appellant with the offence. The learned APP has submitted that
\nthe manner in which the incident occurred would show that the
\nappellant had a big knife with him, which can better be called as
\ndagger and he used this knife for causing death of the victim by
\ninflicting multiple blows. The injuries were caused on vital part of
\nthe body of the deceased to ensure that the deceased succumbs to the
\ninjury unfailingly. The conviction is therefore well founded.
\nReacting to the alternative submission Mr. Sejpal submitted that
\nthere is very little evidence to show that there was no meditation,
\nthat there was  a sudden quarrel, that there was sudden fight, and
\nthat the appellant did not take  advantage of the situation  and did
\nnot act in a cruel manner. He submitted that the evidence is
\nsufficient to show that at least the appellant acted in a cruel
\nmanner and took advantage of the situation and that he attacked an
\nunarmed person without any rhyme or reason with the help of a knife
\nin the evening hours. He therefore submitted that the appeal may be
\ndismissed.\n<\/p>\n
8.\tWe
\nhave examined the record and proceedings in the context of rival
\nsubmissions.\n<\/p>\n
9.\tIt
\nis true that the involvement of the appellant is held by the Trial
\nCourt  mainly on the basis of the dying declaration made by the
\ndeceased. That dying declaration is at Exh.32. In that dying
\ndeclaration  the deceased has stated in terms that  Bichhubhai Darbar
\nhad inflicted more than two knife blows on him. One in the stomach,
\none in the chest and one each on the right and left hands and one in
\nthe lower abdomen. In the dying declaration, he has also stated that
\nwhile he was going home after having pan at Ravjibhai’s shop he was
\nattacked by Bichhubhai and he did not know  the reason for the
\nassault. He has, of course, added, thereafter,  that no one else was
\npresent at the time of the incident. The appellant used to pass by
\nhis house in a drunken condition and, therefore, he had asked
\nBichhubhai not to do so. Barring that there was no dispute or quarrel
\n with Bichhubhai i.e. the appellant. This dying declaration was
\nrecorded  on 19.7.1992 between 11.00 and 11.30 hrs. There is an
\nendorsement by the doctor to the effect that dying declaration was
\ntaken in his absence and that the patient was fully conscious. This
\naspect is deposed by the Executive Magistrate Pravinbhai Kalyanbhai
\nBhayani, Exh.30. He says that he received yadi from police. He went
\nto Civil Hospital, got in touch with the doctor, inquired about the
\ncondition of the patient and the doctor told him that the patient was
\nconscious and that he might record the statement. Thereafter, he
\nrecorded the statement  of the patient which is at Exh.32. He has
\nalso been cross examined on the question of condition of the
\ndeclarant and he says that the doctor was present throughout when the
\nstatement was recorded. The witness during cross examination  has not
\nyielded to the cross examination and has firmly indicated that the
\nstatement was recorded as was told  by the declarant.\n<\/p>\n
10.\tCertifying
\ndoctor is examined by the prosecution at Exh.36. He is doctor
\nSavjibhai M. Sidhpara. He states that he had examined Kalubhai at
\n9.30 a.m. on 19.7.1992 and then he describes the injuries on the
\nperson of the deceased. He deposed that Exh.32 was recorded in his
\npresence and he had put his endorsement about conscious state of mind
\nof the declarant. He has been cross examined at length. He admits in
\npara 11 that he had certified that the patient was conscious and fit
\nto give dying declaration  but had not made such an endorsement in
\nthe beginning of the dying declaration. He says that he had made
\nendorsement upon Exh.32 about conscious state of the patient  and
\nthat he had done so after clinically examining the patient. He also
\nstates that he had given a certificate to this effect.\n<\/p>\n
11.
\nThe ultimate outcome of these pieces of evidence  is that the dying
\ndeclaration was recorded by the Executive Magistrate after following
\nthe requisite procedure. He had taken opinion of the doctor, who, in
\nturn gave the opinion after clinically examining the patient and then
\ndying declaration was recorded. The Doctor and the Executive
\nMagistrate are two independent officials and they have no axe to
\ngrind  against him. They have been tested on the touch stone of cross
\nexamination and it has to be recorded that no doubt is left about
\ngenuineness of recording of the dying declaration.\n<\/p>\n
12.\tSimilarly
\nthe second principle of truthfulness is also required to be applied
\nto the dying declaration. In this context, whatever is stated by the
\npatient gets corroborated by the other contemporaneous material. The
\ndeclarant has stated that he was assaulted with a knife and that is
\nproved by the medical evidence. The patient has stated that he was
\nattacked with a knife and gave him more than two blows, one in
\nstomach, one each on right and left hands, and one in the abdomen.
\nThese injuries were found  by Dr.Savjibhai when he examined  the
\npatient  (Exh.36). Similarly it transpires from evidence of
\nDr.Savjibhai that when he visited the patient, he gave history that
\nBichhubhai  had caused the injury. This would be an oral dying
\ndeclaration  before the doctor,  which the doctor had reduced into
\nwriting as case history in the medical case papers and deposed to
\nthat effect in his ocular evidence. The version that is given in the
\noral dying declaration thus gets corroborated  and passes the test of
\ntruthfulness. In such a situation, when there is no reason to doubt
\nthat dying declaration which clearly implicates the appellant, the
\nTrial Court was justified in acting upon it.\n<\/p>\n
13.\tApart
\nfrom the dying declaration Exh. 32 before the Executive Magistrate,
\nthere is oral dying declaration before Dadibu, mother of the deceased
\nat Exh. 26 and Hanifabu, sister of the deceased at Exh. 27, who both
\nhave deposed to the effect that deceased told them that the appellant
\nhad assaulted him. Thus,   involvement of the appellant in the
\nincident and causing injury to the deceased with knife are
\nestablished through dying declaration before the Executive
\nMagistrate, oral dying declarations before the mother and the sister
\nas also through the oral dying declaration before the doctor, who
\nhad, at the relevant time, reduced the same into writing in the case
\npapers.\n<\/p>\n
14.\tEven
\nthe report of the Serologist clearly shows that the weapon as well as
\nclothes of the appellant  were stained with blood of the the blood
\ngroup of the deceased. It is not the case of the appellant that his
\nblood group is the same as that of the deceased  nor is it a case
\nthat he had suffered some injuries in the incident and his clothes
\nwere stained with the blood on that account. The report of the
\nSerologist, therefore, again establishes link between the incident
\nand the accused.\n<\/p>\n
15.\tNow
\ncomes the question whether the appellant had or not an intention to
\nkill. The intention is a mental phenomena and there can hardly be any
\nevidence to indicate the intention, but the same can be read or
\ninferred from the conduct of the person\/accused. In the instant case,
\nthe appellant met the deceased. When the appellant met the deceased
\nthe appellant was armed with knife. The knife is not an ordinary
\ndomestic knife. It is more or less a dagger rather than the knife
\nbecause the size of the sheath is 12 inches which was covering the
\nblade. The size of the blade is 12 inches. The injuries were caused
\non vital parts of the body and the death occurred because of the
\ninjury. The weapon used and the number of blows given to the deceased
\nwould clearly indicate the intention of the author of the injuries.
\nThere was no need to use such a deadly weapon in the first instance.
\nThere was no need to use the weapon with such a force and when the
\nblows were given on vital parts of the human body, the intention was
\nobvious. Therefore, it is not possible to accept the contention that
\nthere was no intention to kill.\n<\/p>\n
16.\tApart
\nfrom the intention aspect, a contention was raised that exception 4
\nto section 300 would be attracted. In this context, if the evidence
\nis seen, Hanifabu, the sister of the victim states that she learnt
\nabout a quarrel having taken between the deceased and the appellant.
\nBarring this stray sentence there is no other evidence to show that
\nthere was a sudden quarrel. There is nothing to show that the
\nappellant acted in heat of passion. But that apart, if exception 4 to
\nsection 300 is seen defence has to show presence of five ingredients,
\nviz. that the incident occurred without premeditation, that it
\noccurred in sudden fight; that it occurred in the  heat of passion;
\nthat it occurred upon a sudden quarrel; and that it occurred when the
\noffender took undue advantage or in a cruel or unusual manner. If any
\nof these  five ingredients  are not established the case cannot fall
\nunder exception 4 to section 300 of IPC.\n<\/p>\n
17.
\n In this context, if the evidence is seen  Hanifabu, sister of the
\ndeceased only states about some quarrel that had taken place between
\nthe two. From the dying declaration, it can be inferred that there
\nwas no premeditation or absence of premeditation and quarrel can be
\ninferred but whether it was in the heat of passion or not is a
\nquestion which remains to be answered by the appellant and the
\nappellant has failed to do so. Similarly, if the action on the part
\nof the appellant is seen, he  assaulted the deceased with a deadly
\nweapon when the deceased was unarmed. That after assaulting the
\ndeceased, he inflicted multiple blows on various parts of the body
\nincluding vital parts like chest. The appellant, therefore, cannot be
\nsaid to have not taken undue advantage of the situation or having
\nacted in a cruel or unusual manner. Exception 4 therefore will not be
\navailable to the appellant. A contention was raised that all
\nwitnesses are interested witnesses as they were relatives of the
\ndeceased. In this context, we may observe that it is a settled
\nproposition of law that evidence of related witnesses cannot be
\ndiscarded as evidence of interested witnesses. Being relative is not
\nsynonymous to term ‘interested witness’. Interested witness is he who
\nis interested in ensuring conviction of the accused for whatever
\nreasons and not the witness who is relative of the deceased or who is
\ninterested in ensuring conviction of the miscreant. In the instance
\ncase, there is no evidence to show that any of the witnesses had any
\ngrievance against the accused to attribute particular motive for them
\n to be interested in ensuring the conviction.\n<\/p>\n
18.
\n\tIn our view, therefore, in light of the foregoing discussions, we do
\nnot find any merits in the appeal. The conviction recorded by
\nSessions Court, Amreli in Criminal Appeal No. 107 of 1992 is hereby
\nconfirmed. The appeal is dismissed.\n<\/p>\n
                                 Sd\/-\n<\/p>\n
 (A.L. Dave, J.)<\/p>\n
                                 Sd\/-\n<\/p>\n
                           (R.M.\n<\/p>\n
Chhaya, J.)<\/p>\n
M.M.BHATT<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Bichhubhai vs Unknown on 28 March, 2011 Author: A.L.Dave,&Nbsp;Mr.Justice R.M.Chhaya,&Nbsp; Gujarat High Court Case Information System Print CR.A\/687\/2002 12\/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 687 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE Sd\/- HONOURABLE MR.JUSTICE R.M.CHHAYA Sd\/- ========================================================= 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-43194","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nBichhubhai vs Unknown on 28 March, 2011 - 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\/bichhubhai-vs-unknown-on-28-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bichhubhai vs Unknown on 28 March, 2011 - 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