{"id":54600,"date":"2008-09-30T00:00:00","date_gmt":"2008-09-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/amarjit-vs-the-on-30-september-2008"},"modified":"2016-06-04T15:02:11","modified_gmt":"2016-06-04T09:32:11","slug":"amarjit-vs-the-on-30-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/amarjit-vs-the-on-30-september-2008","title":{"rendered":"Amarjit vs The on 30 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Amarjit vs The on 30 September, 2008<\/div>\n
Author: J.R.Vora,&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\/239\/2001\t 13\/ 13\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. 239 of 2001\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE J.R.VORA \n\n \n\n \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\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\nAMARJIT\nSHREERAM YADAV - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n====================================================\n \nAppearance : \nMS\nSADHANA SAGAR for Appellant(s) :  \nMR LB DABHI Ld. APP for\nOpponent(s) :\n1, \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 J.R.VORA\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 Z.K.SAIYED\n\t\t\n\t\n\n \n\nDate\n: 30\/09\/2008 \n\n \n\n \n \n \n \n\n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE Z.K.SAIYED)<\/p>\n
1.\tThe
\npresent appellant-original accused in Sessions Case No. 86\/1999 was
\ncharged and tried by the learned Addl. Sessions Judge, Bhavnagar,
\ncamp at Mahuva, for the offence punishable under sec. 302 of Indian
\nPenal Code (for short  IPC ) and under section 135 of B.P. Act.\n<\/p>\n
2.\tIt
\nis the case of the prosecution that, on 20.2.1999, at about 9.30pm,
\nin Alang Shipyard, Plot No. 16, Alang-Sosiya Road, three unknown
\npersons were passing, who were known as  Mamas  with whom present
\nappellant was dashed, so due to the sudden provocation,  accused has
\nabused them and quarreled with them. So, colleague labourers Radhe
\nMangaru Dhobi and Jayram Badal had tried to solve the quarrel and
\nthey were departed by both the labourers and both have caught hold
\nthe hands of accused-appellant and came to his room. So accused has
\nquarreled with them and told them why he was not allowed to quarrel.
\nThen, accused-appellant entered in his room and came out with iron
\nrod with a knowledge and intention  to kill both the colleague
\nlabourers, and he assaulted and blows of iron rod were given by the
\npresent accused to both the colleagues labourers and due to the
\nserious injuries on the vital parts of the body, both were died and
\nhence accused has committed the offence of double murder. Then,
\noffence was registered at Alang Police Station vide CR No. 14\/1999
\nand investigation was put into motion and inquest panchnamas of dead
\nbody of both the deceased were drawn and clothes of deceased were
\nrecovered, panchnama of scene of offence was also drawn and formal
\nmap of place was prepared. Thereafter,  accused was arrested and
\npanchnama of physical condition of the accused was drawn and clothes
\nwere also recovered. Under the provision of sec. 27 of Evidence Act,
\nmuddamal weapon iron rod was discovered under panchnama of discovery
\nand  muddamal was sent to FSL for scientific analysis and report of
\nFSL as well as map prepared by Circle Inspector and copy of
\nnotification were tagged with investigation papers, and later on,
\npost mortem reports were received by I.O. and after completion of
\ninvestigation, charge-sheet was filed in the Court of Learned
\nJudicial Magistrate First Class, Mahuva.  As the offence was
\nexclusively triable by the Court of Sessions, the learned Magistrate
\nhas committed the case to the Court of Sessions at Bhavnagar.\n<\/p>\n
3.\tThereafter,
\nthe charge was framed and the accused pleaded not guilty to the said
\ncharge and claimed to be tried, therefore, trial was proceeded.\n<\/p>\n
4.\tIn
\norder to bring home the charge levelled against the accused, the
\nprosecution has examined, in all, eleven witnesses, which are as
\nunder:\n<\/p>\n
PW-1
\n\tDr. Sanatkumar Vrujlal Joshi Ex. 12.\n<\/p>\n
PW-2
\n\tSuresh Jinnu Kanojiya Ex. 19<\/p>\n
PW-3
\n\tMehbubbhai Suleman Ghanchi Ex. 23.\n<\/p>\n
PW-4
\n\tVijaysinh Muljibhai Rathod Ex. 25.\n<\/p>\n
PW-5
\n\tSukhram Bhokal Sahani Ex. 26.\n<\/p>\n
PW-6
\n\tHariprasad Bipat Dhobi Ex. 27.\n<\/p>\n
PW-7
\n\tBirendrakumar Kadar Kanojiya Ex. 30.\n<\/p>\n
PW-8
\n\tBhagwanbhai Raghabhai Koli Ex. 32.\n<\/p>\n
PW-9
\n\tSadikali Lakhani Ex. 33.\n<\/p>\n
PW-10
\n\tNatubha Prabhatsinh Jadeja Ex. 35<\/p>\n
PW-11
\n\tBavanji Davabhai Vaghiya, PSI, Ex. 39.\n<\/p>\n
5.\tTo
\nprove the culpability of the accused, the prosecution has also
\nproduced and relied upon the following documentary evidence vide Ex.\n<\/p>\n
10. They are as under:\n<\/p>\n
Order
\n\tof PSO to PSI, Alang for investigation<\/p>\n
Complaint<\/p>\n
Inquest
\n\tpanchnama<\/p>\n
Yadi
\n\tsent by PSI, Alang to Medical Officer C.H.C., Talaja for taking
\n\tblood sample.\n<\/p>\n
Form
\n\tof deceased Radhe Mangaru Dhobi.\n<\/p>\n
Form
\n\tof deceased Jayram Badal Kanojiya.\n<\/p>\n
Receipt
\n\tof giving dead-body of Jayram Badal.\n<\/p>\n
Receipt
\n\tof giving dead-body of Radhe Mangaru Dhobi.\n<\/p>\n
Wireless
\n\tmessage<\/p>\n
Report
\n\tof offence<\/p>\n
Panchnama
\n\tof scene of offence<\/p>\n
panchnama
\n\tof clothes of deceased<\/p>\n
Rough
\n\tmap of  scene of offence<\/p>\n
panchnama
\n\tof arrest and clothes of accused<\/p>\n
Arrest
\n\tmemo<\/p>\n
Discovery
\n\tpanchnama<\/p>\n
Yadi
\n\tby PSI, Alang to Medical Officer, C.H.C. Talaja for taking blood
\n\tsample.\n<\/p>\n
Letter
\n\tof Scientific officer.\n<\/p>\n
PM
\n\tReport of Radhe Mangaru<\/p>\n
PM
\n\tReport of Jayram Badal Kanojiya<\/p>\n
Note
\n\tof sending Mobile Van with muddamal to FSL, Junagadh<\/p>\n
Receipt
\n\tof FSL with regard to muddamal<\/p>\n
Forwarding
\n\tletter of FSL<\/p>\n
FSL
\n\treport<\/p>\n
Serological
\n\treport<\/p>\n
Yadi
\n\tby PSI, Alang to Circle Inspector, Talaja for map.\n<\/p>\n
Yadi
\n\tby Medical Officer to PSI, Alang.\n<\/p>\n
Notification
\n\tof District Magistrate<\/p>\n
6.\tAt
\nthe end of the trial, the learned trial Judge has recorded the
\nstatement of the accused under sec. 313 of Code of Criminal
\nProcedure, wherein, the accused has denied the case of prosecution.\n<\/p>\n
7.\tAfter
\nconsidering the oral as well as documentary evidence and after
\nhearing the parties, the learned Addl. Sessions Judge, Bhavnagar,
\ncamp at Mahuva, vide impugned judgment and order dated 28.2.2001 held
\nthe accused appellant guilty for  the offence punishable under sec.
\n302 of IPC and was convicted and sentenced to suffer rigorous
\nimprisonment for life with fine of Rs. 10,000\/-, in default, to
\nundergo simple imprisonment for one year.\n<\/p>\n
8.\tBeing
\naggrieved by and dissatisfied with the impugned judgment and order of
\nconviction and sentence passed by the learned trial Judge, the
\npresent appellant has preferred this appeal.\n<\/p>\n
9.\tHeard
\nMs. Sadhana Sagar learned advocate appearing for the
\nappellant-accused and Mr. L.B. Dabhi learned APP appearing for the
\nrespondent   State.\n<\/p>\n
10.\tLearned
\nadvocate Ms. Sagar has contended that the present appellant is
\nwrongly booked in the alleged commission of offence of double murder
\nand wrongly convicted. She has also contended that the prosecution
\nhas failed to produce cogent and convincing evidence to prove the
\ncase beyond any reasonable doubt. It is also contended that the
\nevidence of  eye witness cannot be considered trustworthy and
\ncorroborative piece of evidence. Ms. Sagar has read the oral evidence
\nof the witnesses and argued that the evidence of eye witness is
\ntotally contradictory evidence with oral evidence of medical expert.
\nShe has also contended that from the documentary evidence, it has
\ncome on record that place of offence was  changed, so this is a
\ndoubtful evidence and appellant-accused was entitled for the  benefit
\nof doubt and also established that the case of the prosecution would
\nbe fatal, yet the trial Court has not considered the said aspect in
\nfavour of the appellant-accused. She has read the injury part from
\nthe evidence of PW-1 Dr. Sanatkumar Vrujlal Joshi Ex. 12 and
\ncontended that said injuries are not possible by muddamal iron rod.
\nShe has also read Ex. 14 and Ex. 15 and contended that from the above
\ndocumentary evidence, it is established that prosecution has failed
\nto prove its case.\n<\/p>\n
11.\tMs.\n<\/p>\n
Sadhna Sagar has contended that evidence of PW-6 Hariprasad Bippat
\nDhobi Ex. 27, is not a reliable and trustworthy evidence because it
\nis not an evidence of eye witness. So, it is established that
\nprosecution has failed to prove its case beyond any reasonable doubt.
\nShe has also contended that discovery panchnama at Ex. 34 is
\nconcocted evidence and in absence of oral evidence of panchas,
\ndiscovery panchnama cannot be considered as proved document. She has
\nagain read the oral evidence of eye witness and argued that said
\nwitness is an interested witness and when the case was established
\nwith a clouds of doubt, then, appellant is entitled to get acquittal.\n<\/p>\n
12.\tLearned
\nAPP Mr. Dabhi appearing for the respondent-State has contended that
\nthere is voluminous reliable, trustworthy and clinching evidences on
\nrecord, which, unequivocally  and unerringly  prove that the
\nappellant-accused has committed the offence of double murder. He
\ncontended that the  appellant has cruelly attacked on both the
\ndeceased and due to maximum blows of iron rod on the vital parts of
\nthe bodies of deceased resulted into double murder. He further
\ncontended that from the evidence of complainant, eye-witness and
\nother witnesses, as well as from the documentary evidence, the
\nprosecution has proved the guilt of the accused beyond any reasonable
\ndoubt. He contended that at the time of the assault, the appellant
\nwas fully knowing that if more blows of the iron rod on the vital
\nparts of the body, is given, then, person can die and with this
\nknowledge and intention, more and more blows were given to the
\ndeceased and they were died, therefore, the appellant has committed
\nserious offence of double murder. He further contended that the
\nprosecution has established its case beyond any reasonable doubt and
\nprayed that the judgment and order passed by the trial court is
\nrequired to be confirmed. He has also contended that the trial Court,
\nafter fully appreciating the evidence, has rightly convicted and
\nsentenced the appellant-accused. There is no lacuna in the judgment
\nof the trial Court  and prayed to confirm the judgment and order of
\nconviction and sentence passed by the trial Court.\n<\/p>\n
13.\tWe
\nhave gone through the oral as well as documentary evidence led by the
\nprosecution before the trial Court. We have also undertaken a
\ncomplete and comprehensive appreciation  of all vital features of the
\ncase and entire evidence on record, which read and re-read by the
\nlearned advocates appearing for the parties to bring the reasonable
\nprobabilities of the case. It is not in dispute that victims died
\nhomicidal death.\tThe prosecution has relied upon oral evidence of
\nPW-6 Hariprasad Bippat Dhobi Ex. 27, complainant, as well as eye
\nwitness and evidence of the star witness PW-1 Dr. Sanatkumar Vrujlal
\nJoshi Ex. 12 and also relied upon oral evidence of panch of
\n‘discovery panchnama’ PW-9 Sadikali Lakhani Ex. 33 and evidence of
\nI.O., and also relied upon  oral as well as documentary evidence of
\nother witnesses. We have perused and considered the oral evidence of
\nPW-1 and PW-6. We have found from the oral evidence of PW-1 regarding
\nthe injuries of both the deceased. It has come  on record from the
\noral evidence of PW-1 Ex. 12 that serious injuries were found on the
\ndead-body of Radhe Magaru Dhobi, which are as under:\n<\/p>\n
CLW
\n\t6cm long, 2cm broad and brain deep in horizontal<\/p>\n
direction
\n\tin occipital region.\n<\/p>\n
CLW
\n\t4cm long, 2cm broad and bone deep in horizontal direction in
\n\toccipital region.\n<\/p>\n
CLW
\n\tof 4cm long, 2cm broad, 2cm deep on forehead between upper side of
\n\teye-brow.\n<\/p>\n
Multiple
\n\tfracture of the occipital bone.\n<\/p>\n
14.\tWe
\nhave also found from the oral evidence of doctor that Radhe Magaru
\nhas received multi-fracture injuries on occipital  bone and from the
\nconsideration of the discovered muddamal weapon, we  in complete
\nagreement with the opinion of PW-1 and  confirmed that all the
\ninjuries were possible by the present muddamal iron rod.\n<\/p>\n
15.\tWe
\nhave also perused oral evidence regarding the fatal injuries found
\nfrom the dead-body of deceased Jayram Badal as under:\n<\/p>\n
CLW
\n\tsized 5cm long 2cm broad and bone deep on the forehead 5cm above the
\n\tright eye towards occipital region.\n<\/p>\n
CLW
\n\tsized 10cm long 2cm broad and bone deep on the middle of the right
\n\tside of the skull (Rt. Parietal  region) towards occipital region.\n<\/p>\n
Fracture
\n\tof right parietal bone towards occipital region.\n<\/p>\n
16.\tWe
\nhave also perused the oral evidence of PW-2 Suresh Jinnu Kanojiya,
\npanch witness of place of offence, Ex. 20. We have not found any
\ncontradictory version in connection of contents of Ex. 20. From the
\nperusal of oral evidence of PW-4 Vijaysinh Muljibhai Rathod Ex. 25,
\nit is established by this witness that when he was in search of
\nappellant-accused at area of Bhavnagar Railway Station and from the
\ndoubtful  conduct of a person, he has interrogated  this witness and
\nbefore him the accused-appellant has explained the incident of this
\ncase, so he was produced before I.O. and present witness has narrated
\nthe whole scenario in his statement before the police.  From the
\nabove evidence, the question of the confession is required to be
\ndiscussed. We have found that at the event of the statement made by
\nappellant before this witness, witness was not aware about the act of
\nthe accused, and at that time, appellant was not in a police custody,
\nso the statement made by appellant before this witness is required to
\nbe considered as a extra-judicial confession and we have not found
\nany fault in view of the oral evidence produced by the said witness.\n<\/p>\n
17.\tThe
\nprosecution has examined panch witness of discovery panchnama Ex. 34,
\nPW-9 Sadikali Lakhani Ex. 33 and oral evidence of I.O., we have found
\nthat contents of discovery panchnama Ex. 34 was proved beyond any
\ndoubt by prosecution and from the perusal of above evidence and from
\nthe serological report Ex. 49, blood was found on the muddamal weapon
\nand from  other articles,  blood group of deceased was found.\n<\/p>\n
18.\tFrom
\nthe oral and documentary evidence, it is established that with some
\nunknown persons, some quarrel took place between appellant and said
\npersons have just to avoid said quarrel,  appellant was brought by
\nthem at their room and at that  time, appellant was very aggressive
\nand was in a mood to quarrel with unknown persons and he was
\nprevented, so due to that reason, he has taken out the iron rod  and
\nboth the  deceased were assaulted by the appellant-accused  and due
\nto this, both have received fatal injuries which were resulted into
\ntheir death. We have found that more and more blows were given by the
\nappellant to both the deceased with an intention to kill them. We
\nhave not found any wrong that prosecution has failed to prove its
\ncase beyond reasonable doubt.\n<\/p>\n
19.\tWe
\nare of the opinion that if the substratum  of prosecution case
\nremains unaffected and remaining part of the evidence is trustworthy,
\nthe prosecution case should be accepted to the extent that it is to
\nbe considered safe and trustworthy.\n<\/p>\n
20.\tThis
\nCourt has considered the submissions advanced by the learned
\nadvocates appearing for the parties and perused the impugned judgment
\nand order. 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 appearing for the parties with reference to broad and
\nreasonable probabilities of the case. In light of caution sounded by
\nthe Supreme Court while dealing with criminal appeals, this court has
\nexamined the entire evidence on record for itself, independently 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
21.\tAs
\nobserved and discussed at length, in our opinion, in light of the
\noral as well as documentary evidence, it is established by the
\nprosecution that the appellant-accused gave maximum blows of iron rod
\nto the deceased and committed the offence of murder of Radhe Mangaru
\nDhobi and Jayram Badal punishable under sec. 302 of IPC. So, we are
\nof the opinion that there is no reason for witnesses to falsely
\ninvolve the appellant-accused in the incident. We have found that the
\nlearned trial Judge has rightly convicted and sentenced the
\nappellant-accused. Therefore, the conviction and sentence awarded by
\nthe trial Court against the appellant-accused does not call for any
\ninterference of this Court in exercise of appellate power.\n<\/p>\n
22.\tWe
\nfind ourselves in complete agreement with the said findings, ultimate
\nconclusion and resultant order of conviction  passed by the trial
\ncourt and we are of the view that no other conclusion except the one
\nreached by the trial Court is possible in the instant case as the
\nevidence on record stands. Therefore, there is no valid reason or
\njustifiable ground to interfere with the impugned judgment and order
\nof conviction and sentence.\n<\/p>\n
23.\tFor
\nthe foregoing reasons, the appeal fails and is hereby dismissed. The
\njudgment and order of conviction and sentence dated 28.2.2001
\nrecorded by the trial Court against  the appellant-accused in
\nSessions Case No. 86\/1999 is hereby confirmed and maintained.
\nMuddamal be disposed of in terms of directions contained in the
\nimpugned judgment and order passed by the trial Court.\n<\/p>\n
24.\tThis
\nappeal is accordingly dismissed.\n<\/p>\n
(J.\n<\/p>\n
R.  VORA, J.)<\/p>\n
(Z.K.\n<\/p>\n
SAIYED, J.)<\/p>\n
mandora\/<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court Amarjit vs The on 30 September, 2008 Author: J.R.Vora,&Nbsp;Honourable Mr.Justice Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print CR.A\/239\/2001 13\/ 13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 239 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA 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-54600","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAmarjit vs The on 30 September, 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\/amarjit-vs-the-on-30-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Amarjit vs The on 30 September, 2008 - 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