IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1582 of 2003 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ HIMATBHAI @ DEVJIBHAI RANCHHODBHAI Appellant(s) Versus STATE OF GUJARAT Opponent(s)/Respondent(s) ================================================================ Appearance:
MRS NISHA M PARIKH, ADVOCATE for the Appellant(s) No. 1 MR KP RAVAL APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 21/10/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE K.J.THAKER) 1. The present appellant has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 22.7.2003 passed by the learned Addl. Sessions Judge, Fast Track Court No. 2, Bhavnagar in Sessions Case No. 91/2002, whereby, the learned trial Judge has convicted the present appellant – Ori. Accused under sec. 302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- in default, to undergo further S/I for fifteen days. The appellant is also convicted under sec.
135 of the Bombay Police Act and sentenced to undergo S/I for four months and to pay a fine of Rs 100/-, in default, to undergo further R/I for seven days, which is impugned in this appeal.
2.1 The brief facts of the prosecution case is that on 30.9.2001, at about 4.00p.m., when the original complainant – deceased was at her residence, at that time, the appellant-accused had thrown a wooden piece in her compound, and therefore, complainant had scolded the appellant and told him not to throw anything in her compound. Therefore, the appellant got excited and took out a sword from his house and had given blows on her head due to which, she sustained serious injuries. Thereafter, Mr Gagajibhai neighbour had taken her to Sir T. hospital, Bhavnagar, where she was given treatment. The doctor who was on duty, had informed the police about the incident. Therefore, Police Constable Shri Devashibhai Karshanbhai went to ward no. 9, Sir T. Hospital, Bhavnagar, where she was under treatment. The Police Constable had recorded the complaint given by the complainant and her thumb impression was also obtained. Thereafter, offence under section 326 and 504 of IPC and under section 135 of the Bombay Police Act was registered against the appellant. However the complainant died during treatment on 6.10.2001, and therefore, sec. 302 IPC was added in the complaint.
2.2 The appellant accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was laid against the present appellant. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 91/2002.
2.3 Thereafter, the Sessions Court framed the charge below Exh. 4 against the appellant for commission of the offence under section 302 of IPC. The present appellant -ori. Accused has pleaded not guilty and claimed to be tried.
2.4 To prove the case against the present appellant-ori. Accused, the prosecution has examined the following witnesses:
1. PW-1 Mathurbhai Khatabhai Ex. 11
2. PW-2 Gagajibhai Jasmatbhai Ex. 12
3. PW-3 Vijuben Savjibhai Ex. 13
4. PW-4 Rajesh Shashikant Ex. 21
5. PW-5 Dipakbhai Bhupatbhai Ex. 24
6. PW-6 Pushkarbhai Parmanandbhai Ex. 25
7. PW-7 Dr.Jitendra Harjivandas Ex. 29
8. PW-8 Anandbhai Mepabhai Ex. 32
9. PW-9 Madhuben Gagajibhai Ex. 33
10. PW-10 Dr.Basantkumari Mahera Ex. 34
11. PW-11 Dipakkumar Mohanlal Ex. 37
12. PW-12 Devashi Karshanbhai Ex. 43
13. PW-13 Mukeshbhai Dalpatbhai Ex. 46
14. PW-14 Dr. Satishbhai Kolele Ex. 49
15. PW-15 Mukeshbhai Anilbhai Ex. 52
16. PW-16 Tinubha Jalamsinh Ex. 53
17. PW-17 Ambarsinh Momarsinh Ex.54
2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused.
1. Order of PSO for investigation Ex. 14
2. Yadi for recording of DD Ex. 15
3. Inquest panchnama Ex. 16
4. Death form Ex. 17
5. Arrest panchnama Ex. 18
6. Panchnama Ex. 19
7. Panchnama of scene of offence place Ex. 22
8. Panchnama of person of accused Ex. 23
9. Discovery panchnama Ex. 26
10. Map of scene of offence Ex. 27
11. PM Note Ex.31
12. Medical certificate of deceased Manishaben Ex.35
13. Yadi for investigation Ex.40
18. Yadi to add sec. 302 IPC Ex. 57
19. Notification Ex. 58
20. Letter of FSL Ex. 59
21. FSL Report Ex. 60
22. Yadi to M.O. Bhavnagar for PM Ex. 61
3. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.
4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 22.7.2003 held the present appellant- original accused guilty of the charge levelled against him under sec. 302 of IPC and under sec. 135 of the Bombay Police Act, convicted and sentenced the appellant-accused, as stated above.
5. We have heard learned advocate Mrs. Nisha Parikh for the present appellant and Mr. K.P. Raval learned APP for the respondent-State.
6. Mrs Parikh learned advocate for the present appellant has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellant deserves to be given the benefit of doubt and be acquitted.
7. On the other hand, learned APP Ms. Shah has strongly opposed the contentions raised by the learned advocate for the present appellant and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed.
8. At the out set, it is to be noted that from 2004, after the appellant was released on temporary bail by this Court on the ground of his own sickness, for a period of 15 days, he has not reported back to the jail authority. In the year 2009, this Court took the view that his appeal should be heard after he surrenders to the jail authority. However, recently, the Division Bench of this Court has held that the appeal of the absconding accused can be heard and decided on merits, and that why the office has placed this appeal on Board and we have heard Mrs. Nisha Parikh learned advocate for the appellant.
9. Having considered minutely the evidence on record, oral as well as documentary evidence, which we have appreciated, re-appreciated and reconsidered in light of the latest decision of the Apex Court. Looking to the PM report, it cannot be said that the deceased died out of accidental or non-homicidal death. The postmortem report, on the basis of which, the learned trial Judge has come to the conclusion that it was a homicidal death, is also accepted by us and we concur with the same.
10. As far as evidence of PW-1 Mathurbhai Khatabhai Ex. 11 is concerned, in his evidence, he has mentioned that he has not identified the accused. It is not that he denied the victim of knowing the accused. Even he denies in the cross- examination that the deceased wife had given oral Dying Declaration that the accused had broken the fencing and had given her sword blow on the temporal region.
11. It is contended that the deceased died after six days. It is contended that the accused should be given benefit of doubt as PW-2 Gagajibhai Jasmatbhai Ex. 12, who turned hostile and also not identified the accused and the weapon used. The doctors who treated the deceased have categorically mentioned that the injury could not be possible with the sword which was shown to them. It is contended that all the panchas have turned hostile, and therefore, the accused should be acquitted or granted benefit of doubt and the appeal be allowed.
12. As against this, learned APP Mr. Raval has taken us through the oral evidence, medical evidence and the postmortem report and contended that the cause of death is shock and haemmorrhage due to head injury. It is contended that the injuries were sufficiently such that the accused had a knowledge and motive to do away with the deceased. It cannot be said that it was an action taken in a spur of moment. He has contended that this submission is also not made before the trial court that the incident has occurred in a spur of moment. He has relied on the dying declaration and the FIR given by deceased herself who died after six days.
13. Having gone through the entire record, the injuries enumerated in the list of injuries and the postmortem report cumulatively persuaded us to hold that we should concur with the conclusion reached by the learned trial Judge that the death is occurred and hold that it was a homicidal death.
14. As far as identity of the accused is concerned, the dying declaration cannot be found fault with in light of the latest decision of the Apex Court. Even if we believe that the dying declaration cannot be acted and could not have been acted upon by the learned trial Judge, the learned trial Judge before recording the conviction has narrated all the incidents and has considered the decision on the points of the Apex Court and this Court. We are convinced that the death occurred due to head injury and it was an accused alone who was the perpetrator of the offence.
15. There is some dispute about the place of offence. In her complaint, deceased has stated that when she was in the place of her hut, the appellant had attacked, whereas, in her dying declaration, she stated that when she came out of her yard, the appellant had given sword blow. Panchnama of scene of offence is at Ex. 22. The panchas have turned hostile. The map of scene of offence place is at Ex. 27. If we compare the map of scene of offence Ex. 27 with panchnama of scene of offence place 22, both are same. Therefore, the contention with regard to scene of offence place is devoid of any merits, and therefore, we are convinced that it was the accused alone who was the perpetrator of the murder and hence, the appeal deserves to be dismissed.
16. This takes us to the next point whether it was the accused who has committed the murder of the deceased. The reasons given by the learned trial Judge in para-39, 40 and 41 and the latest decision of the Apex Court in the case of Anujkumar Gupta alias Sethi Gupta v. State of Bihar, reported in AIR 2013 SC 3013 and the other incriminating circumstances proves that it was the accused alone who was the perpetrator of the crime and it was a gruesome murder. We concur with the reasonings given by the learned trial Judge and hold that the offence is made out against the present appellant-ori. Accused and the appeal deserves to be dismissed.
17. We are in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence.
18. In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 22.7.2003 passed by the learned Addl. Sessions Judge, Fast Track Court No. 2, Bhavnagar in Sessions Case No. 91/2002 is confirmed. R & P to be sent back to the trial Court, forthwith.
19. However, it is clarified that life would not be till last breath and after the appellant- accused surrenders before the jail authority for undergoing rest of his term, the State Government may consider his case for premature release after 14 years custodial sentence.
(K.S. JHAVERI, J.) (K.J. THAKER, J.) mandora/