{"id":68222,"date":"2008-10-24T00:00:00","date_gmt":"2008-10-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gambirbhai-vs-this-on-24-october-2008"},"modified":"2015-06-19T06:17:39","modified_gmt":"2015-06-19T00:47:39","slug":"gambirbhai-vs-this-on-24-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gambirbhai-vs-this-on-24-october-2008","title":{"rendered":"Gambirbhai vs This on 24 October, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Gambirbhai vs This on 24 October, 2008<\/div>\n
Author: R.P.Dholakia,&Nbsp;Honourable Mr.Justice Patel,&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\/594\/1993\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. 594 of 1993\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE R.P.DHOLAKIA  \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE DN PATEL\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 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 \n\nGAMBIRBHAI\nBABUBHAI VASAVA - Appellant\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent\n \n\n=========================================================\n \nAppearance : \nMS\nBANNA S DUTTA for the Appellant. \nMR AJ\nDESAI, APP for the\nOpponent. \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 R.P.DHOLAKIA\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 DN PATEL\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 24\/10\/2008 \n\n \n\n \n \nCAV\nJUDGMENT \n<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE \tD.N.PATEL)<\/p>\n
1.\t\tThis
\nappeal has been preferred against the judgement and order of
\nconviction and sentence dated 7th May,1993, passed by
\nlearned Additional Sessions Judge, Surat in Sessions Case No.242 of
\n1991, whereby the present appellant has been convicted for the
\noffence punishable under Section 302 of the Indian Penal Code and is
\nsentenced to undergo life imprisonment for committing murder of
\nKhalpabhai, who is husband of the complainant.\n<\/p>\n
2.\t\tBrief
\nfacts leading to the present case are as under:\n<\/p>\n
(i)\t\tOn
\n15th August,1991 at about 20-30 hours, the present
\nappellant caused injuries to Khalpabhai Chaudhari, by a spear typed
\npointed iron bar and caused injuries on head as well as on upper part
\nof right eye and other injuries on the face of Khalpabhai, who
\nsuccumbed to his injuries.\n<\/p>\n
(ii)\t\tIt
\nis a prosecution case that the present appellant was instigating wife
\nof the deceased and because of this, on certain occasions, there was
\nhot altercation between the complainant (wife of deceased) and the
\ndeceased. Place of incident is the house of the deceased himself.
\nThereafter, the present appellant had run away. The wife of the
\ndeceased filed FIR, wherein name of the present appellant was given
\nwith all details. The said FIR is at Exh-14 in the Sessions Case.
\nThereafter, the appellant was arrested and after completion of
\ninvestigation, charge-sheet was filed. Sessions Case No.242 of 1991
\nwas registered against the appellant. Upon evidence for the offence
\npunishable under Section 302 of the Indian Penal Code, the appellant
\nwas convicted and sentenced to undergo life imprisonment and,
\ntherefore, this appeal has been preferred by the convict- appellant.\n<\/p>\n
3.\t\tWe
\nhave heard learned counsel for the appellant, who has mainly
\nsubmitted that the prosecution has failed to prove offence beyond
\nreasonable doubt against the appellant. The so called eye witness is
\nnot an eye-witness at all. There were no blood stain on the weapon.
\nPanch witnesses have turned hostile. The panchnama of discovery of
\nweapon; panchnama of clothes of the accused and other panchnamas have
\nnot been proved by the prosecution. There are no material evidence
\ncollected and presented by the prosecution and, therefore, the
\njudgement and order of conviction  passed by the Trial Court deserves
\nto be quashed and set aside.\n<\/p>\n
4.\t\tLearned
\nAdditional Public Prosecutor for the respondent- State submitted that
\nthere are more than one eye-witness, who have been examined by the
\nprosecution and they have proved the offence beyond reasonable doubts
\ncommitted by the present appellant. Learned Additional Public
\nProsecutor for the respondent further submitted that it is the
\npresent appellant, who having relation with the wife of the deceased,
\nwas instigating her and, therefore, on several occasions, there were
\naltercations between the deceased husband and complainant wife.
\nEye-witnesses were natural eye-witnesses and their presence was
\nnatural at the time of offence. The appellant came to the house of
\nthe deceased and caused injuries by spear typed pointed iron bar. All
\nthe injuries have been caused on the vital part of the body, mainly
\non the head of the deceased. Panchnama of scene of offence has been
\nproved by PW-2, who has given clear deposition before the Court.
\nProsecution witnesses Nos.4 and 5 are eye-witnesses. Even PW-6 had
\nalso seen the appellant running away with weapon from the scene of
\noffence. Police witnesses have proved the rest of the panchnamas.
\nThere is enough corroboration to the evidence of the eye-witnesses
\nand, therefore, the offence has been proved beyond reasonable doubt
\nagainst the appellant and, therefore, the judgement and order of
\nconviction and sentence may not be altered by this Court. No error
\nhas been committed by the Trial Court in appreciating the evidence.\n<\/p>\n
\t\tLearned
\nAdditional Public Prosecutor submitted that the present appellant had
\nrun away from the jail while doing agriculture work in the jail.
\nThus, the present appellant is absconding accused.\n<\/p>\n
5.\t\tWe
\nhave perused the record and heard the learned counsel for the
\nappellant at length. She has read and re-read the evidence collected
\nduring the course of investigation. On 15th August,1991,
\nas per PW-4 namely Bhagubhai Fatesingh Vasava at Exh-15 at 20-30
\nhours, when he had gone to the house of the deceased, he had seen the
\npresent appellant causing injuries to the deceased. Looking to his
\ndeposition, it appears that he is a trustworthy witness. He has given
\nclear narration of the whole incident. How the whole incident
\nhappened, has been narrated by him. The appellant was causing
\ninjuries by spear typed pointed iron bar to the deceased. He has also
\nnarrated that the appellant had thereafter run away and wife of the
\ndeceased had also run away. During his cross-examination, nothing is
\ncoming out in favour of the accused-appellant. On the contrary, in
\nhis cross-examination also, he has accurately narrated about the
\nwhole incident, weapon and the identification of the accused. Accused
\nand PW-4 are residing in the same village and, therefore, accused was
\nknowing him.\n<\/p>\n
6.\t\tLooking
\nto the deposition given by PW-5 namely Zambiben Nagariyabhai Vasava,
\nit appears that she was also present along with P.W.No.4 at the time
\nof incident at the house of the deceased. Both P.W.Nos.4 & 5 had
\ngone at the house of deceased for collecting remains of supper. She
\nhas also seen the incident. It has been stated in her deposition that
\nthe present appellant had caused injuries by spear typed pointed iron
\nbar on the head of the deceased. Thereafter, the present appellant
\nhad run away. P.W.Nos.4 and 5 are the persons, who were carrying
\ncattle of various persons for grazing and, they were returning at
\ntwilight time. Looking to her deposition, she has clearly narrated
\nthe whole incident and there are no material omissions and
\ncontradictions in her deposition. Looking to the cross-examination,
\nnothing is taken away or shaken from her in examination-in-chief. On
\nthe contrary, she has clearly narrated in the cross-examination that
\nshe knows the appellant. Therefore, there is no question of
\nmisidentity of the appellant. Her presence at the time of scene of
\noffence was natural one. Looking to her deposition, she is a
\ntrustworthy witness. Thus, looking to the evidence of P.W.Nos.4 and
\n5, who are eye-witnesses, the prosecution has proved the case against
\nthe present appellant beyond reasonable doubt.\n<\/p>\n
7.\t\tLooking
\nto the deposition of PW-6, who is Gimblabhai Nadabhai Chaudhari and
\nsupporting witness, it has been narrated by him that at about 8:30
\np.m., he heard cries of P.W.Nos.4 and 5 and this is how, he came to
\nknow about the incident. He rushed to the house of the deceased and
\nhe had seen the appellant running away with weapon and the deceased
\nwas lying with injuries. Thereafter, this witness P.W.No.6 and his
\nbrother as well as P.W.No.4 were chasing the present appellant, but,
\nthe present appellant had run away quickly after the incident. This
\nwitness had also identified the appellant in the Court. Looking to
\nhis deposition, his presence is also a natural one. Nothing is coming
\nout in the cross-examination of the witness, in favour of the present
\nappellant. There are no omissions and contradictions in his
\nstatement. Looking to the deposition of this witness, he has clearly
\nsupported the evidence given by the eye-witnesses namely P.W.Nos.4
\nand 5. Thus, there is enough corroboration to the depositions of the
\neye-witnesses by the deposition of P.W.No.6.\n<\/p>\n
8.\t\tLooking
\nto the deposition of Dr.Navinchandra Revabhai Chaudhari, P.W.No.1 at
\nExh-7, who had performed postmortem of the deceased, there are
\nseveral injuries caused on the head of the deceased. There are as
\nmany as eight injuries pointed out in his deposition. There are also
\nfractures to the deceased. It has also been deposed by the Doctor
\nthat all these injuries were caused by the weapon, shown to him,
\nwhich was discovered at the beheast of the appellant. There were
\nfollowing injuries reflected in the postmortem note:\n<\/p>\n
(a)\tClean incised wound over the
\nright frontal region 2.5 cm x 0.5 cm. X 1 cm;\n<\/p>\n
(b)\tright lat.angle of eye 2 cm x 0.5
\ncm x 1 cm;\n<\/p>\n
(c)\tRight Maxillary region 3 cm x 0.5
\ncm x 1.5 cm;\n<\/p>\n
(d)\tC.L.W. over the occipital region
\n0.5 cm x 0.5 cm;\n<\/p>\n
(e)\tupper jaw two median teeth fell, <\/p>\n
(f)\tC.L.W over the lower lip 1 cm x
\n0.5 cm;\n<\/p>\n
(g)\tright angle of mandible clean
\nincised wound 2.5 cm x 0.5 cm x 1.5 cm;\n<\/p>\n
\tright side neck lat.side abrasion 4
\ncm x 2 cm.\n<\/p>\n
(h)\tFracture of nasel bone.\n<\/p>\n
(i)\tFracture of right maxillary bone.\n<\/p>\n
Postmortem
\nnote is at Exh-8, also corroborates the occular evidence given by
\nP.W.Nos.4 and 5. Thus, there is  enough corroboration to the evidence
\nof eye-witnesses by this postmortem note and by the evidence of
\nP.W.No.1 Dr.Navinchandra Chaudhari.\n<\/p>\n
9.\t\tLooking
\nto the deposition of Revliben Khalpabhai Vasava ?  P.W.No.3, who is
\na wife of the deceased, has turned hostile, but, looking to her
\ndeposition, it appears that she has admitted her signature on FIR and
\nlooking to the FIR, which is at Exh-14, she has clearly narrated the
\nwhole incident. Name of the present appellant has been given in the
\nFIR. Nature of weapon is also given in the FIR. Thus, FIR at Exh-14,
\nwhich was recorded at Mandvi Police Station bearing C.R. No.I-121 of
\n1991, which is an immediate version of the whole  incident also
\ncorroborates the deposition of the eye-witnesses namely P.W.Nos. 4
\nand 5. Thus, prosecution has proved the case beyond reasonable doubt
\nagainst the present appellant.\n<\/p>\n
10.\t\tLooking
\nto the deposition of P.W.No.2 namely Babubhai Gimjibhai Chaudhari,
\nwho is a panch-witness of scene of offence panchnama at Exh-12; there
\nwere blood stains at the scene of offence. The scene of offence is
\nthe house of the deceased and this witness has admitted his signature
\non the scene of offence panchnama. Thus, the scene of offence
\npanchnama at Exh-12 also corroborates the depositions of P.W.Nos.4
\nand 5. Looking to the deposition of police witness at Exh-27, who is
\nPravinsinh Ranjitsinh, who has narrated that the offence was
\nregistered and investigated and has also narrated how the various
\npanchnamas were drawn. Map of whole incident is at Exh-31, which also
\nreveals that the incident has taken place in front of the house of
\nthe deceased. Looking to his deposition, there is enough
\ncorroboration to the deposition of the eye-witnesses and has proved
\nvarious panchnamas.\n<\/p>\n
11.\t\tThus,
\nfrom the evaluation of the evidence,
\nit appears that P.W.Nos.4 and 5 are natural witnesses and their
\npresence at the scene of offence was natural one. They were engaged
\nfor carrying cattle of villagers for grazing. They were returning at
\nevening hours and they had gone to the house of the deceased and they
\nwitnessed the whole incident. They have named the appellant. They
\nwere knowing the appellant. There is a clear narration of the weapon
\nand they have also narrated that it is the present appellant, who had
\ncaused head injury to the deceased. Even looking to the deposition of
\nP.W.No.6, who is supporting witness, who rushed to scene of offence
\nhearing cries of P.W.Nos.4 and 5, there is corroboration to evidence
\nof P.W.Nos.4 & 5. They rushed immediately after hearing the cries
\nof P.W.Nos.4 & 5. They have seen deceased Khalpabhai, lying with
\ninjuries and they have also seen the appellant running away with
\nweapon. With the help of P.W.No.2, scene of offence panchnama at
\nExh-12 has also been proved, which also corroborates the evidence of
\nP.W.Nos.4, 5 and 6. Nothing is coming out in cross-examination of
\nthese witnesses, in favour of the appellant. Looking to the medical
\nevidence, given by P.W.No.1 Navinchandra Chaudhari, he has performed
\npostmortem of the deceased, there were several injuries upon the
\ndeceased on the vital part of the body i.e. on the head of the
\ndeceased. Looking to the cause of death also, the deceased had
\nexpired due to head injury. Thus, postmortem note at Exh-8 also
\nprovides enough corroboration to the depositions of P.W.Nos.4, 5 and\n<\/p>\n
6. Looking to these depositions, no error has been committed by the
\nTrial Court in appreciating the evidence and has rightly come to the
\nconclusion that the offence has been proved beyond reasonable doubt.
\nEye-witnesses are natural eye-witnesses. They are not got up
\nwitnesses. Looking to the totality of the witnesses, they are
\ntrustworthy witnesses, having enough corroboration with other
\nevidences given by P.W.Nos.6, 2 and 1 and also enough corroboration
\nthrough documentary evidence like complaint at Exh-14, postmortem
\nnote at Exh-8, scene of offence panchnama at Exh-12, eye-witnesses
\nhave also identified the appellant. Looking to the deposition of
\nwitnesses, the injury is sufficient, in ordinary course of nature, to
\ncause death of the deceased. Therefore, as per Clause thirdly of
\nSection 300 of the Indian Penal Code, an offence of murder has been
\ncommitted by the appellant. There are no omissions and contradictions
\nin the depositions of the eye-witnesses.\n<\/p>\n
12.\t\tAs
\na cumulative effect of the aforesaid facts, we see no reason to alter
\nthe judgement and order of conviction and sentence dated 7th
\nMay,1993 passed by learned Additional Sessions Judge, Surat in
\nSessions Case No.242 of 1991. It is the present appellant, who has
\ncommitted an offence of murder of the deceased.\n<\/p>\n
13.\t\tLearned
\nAdditional Public Prosecutor submitted that the appellant has run
\naway from judicial custody. At present, he is an absconding accused
\nsince 17th October,1997. There is no substance in this
\nappeal and, therefore, the same is hereby dismissed.\n<\/p>\n
\t\t\t\t\t\t\t(R.P.DHOLAKIA,J)<\/p>\n
               \t\t\t(D.N.PATEL,J)<\/p>\n
*dipti<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Gambirbhai vs This on 24 October, 2008 Author: R.P.Dholakia,&Nbsp;Honourable Mr.Justice Patel,&Nbsp; Gujarat High Court Case Information System Print CR.A\/594\/1993 12\/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 594 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE DN PATEL ========================================================= 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-68222","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGambirbhai vs This on 24 October, 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\/gambirbhai-vs-this-on-24-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gambirbhai vs This on 24 October, 2008 - 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