(Per : HONOURABLE MR.JUSTICE A.J. DESAI)
1. The appellants, father and son who are convicted by the learned Additional District and Sessions Judge, Gandhinagar, in Sessions Case No.32 of 2005 for the offences under Sections 302, 504 of Indian Penal Code, Section 135 of Bombay Police Act, and under Section 120(B) of Indian Penal Code read with Sections 302, 504 and 34 of Indian Penal Code, and sentenced for life imprisonment till end of life, and fine of Rs.5,000/-, in default, simple imprisonment for six months, for Section 504 rigorous imprisonment for three months and fine of Rs.100/-, in default, simple imprisonment for seven days for the offence under Section 135 of Bombay Police Act, have preferred this appeal and have challenged the judgment and order dated 1.6.2005 passed by learned Additional District & Sessions Judge, Gandhinagar. In the said incident, husband and wife lost their lives who were neighbours of the appellants.
2. The case of the prosecution led before the trial court is that, one FIR was lodged by one Milankumar Hargovinddas Makwana with Sector 7 Police Station at Gandhinagar alleging that the appellants attacked deceased Ashokbhai Punjabhai with deadly weapon like iron pipe and gave several blows on the person of the deceased. It was further alleged that when the accused were giving blows to deceased Ashokbhai, his wife namely Varshaben intervene and tried to save her husband from the attack. When she intervened and tried to stop the accused persons from giving further blows to her husband, both the accused gave several pipe blows to deceased Varshaben. Due to this attack, Ashokbhai as well as Varshaben received several injuries on several parts of the body which ultimately resulted into death of both these victims.
2.1 The case was investigated by Senior Police Inspector of Sector 7 Police Station, Gandhinagar, who after completion of investigation, filed chargesheet in the Court of learned JMFC at Gandhinagar, who, in turn, committed the case to the Court of Sessions and Sessions Case No.32 of 2005 came to be registered. The charge was framed against the accused, to which they pleaded not guilty and claimed to be tried. The accused denied the charges levelled against them and therefore trial took place. At the end of trial both the accused were convicted and sentenced as stated hereinabove.
3. The main attack on the judgment of the trial court by learned Senior Counsel Mr.K.B.Anandjiwala is with regard to accepting the oral testimony of the complainant as well as the child witness namely Kurul, aged about 9 years, who is son of the deceased, and who posed himself as an eye-witness to this incident. It was submitted that the deposition of complainant Milankumar Hargvoinddas Makwana P.W.1 Exh.21 is untrustworthy, since his testimony before the trial court is in contradiction with the deposition of the child witness.
3.1 The next submission made by learned counsel Mr.Anandjiwala is with regard to the oral dying declaration made by deceased Varshaben to the complainant about the offence committed by the present appellants which is accepted by the trial court. It is submitted that looking to the injuries received by deceased Varshaben, it was not possible for her to speak anything which is alleged to have been said to him. Similarly the trial court ought not to have accepted the deposition of child witness with regard to the same words spoken by deceased Varshaben before him who is aged about only 9 years when the incident took place.
3.2 The third submission made by learned counsel Mr.Anandjiwala is with regard to absence of any corroboration to the deposition of these two important witnesses.
3.3 The last submission made by learned counsel Mr.Anandjiwala is that, the investigation carried out by the police officer raises doubt since the time of discovery of weapon, which is used by appellant No.1, does not match which is mentioned in the panchnama since the Scientific Officer of Forensic Science Laboratory - P.W.11 Ex.53 deposed that, when he was present at the house of appellant No.1, the investigating officer was not present which is the same time mentioned in the panchnama.
4. On the other hand, learned APP Mr.R.C.Kodekar has supported the reasoning part of the judgment and order passed by the trial court in imposing the sentence. In response to the above-referred contentions, he has submitted that the defence had miserably failed in brining any contradiction in deposition of these two important witnesses. Their presence at the scene of offence is natural. He has further submitted that deceased Ashokbhai Punjabhai was brought dead before the doctor in the hospital, however, deceased Varshaben was brought before the doctor having suffered serious injuries but she was alive and immediate treatment was given. In view of this factual aspect, the trial court was right in accepting the dying declaration made by deceased Varshaben in presence of these two witnesses.
4.1 Learned APP further contended that though the child witness as well as the complainant are found trustworthy, it is not necessary to prove the case by corroborative piece of evidence. However, in the present case, the prosecution has examined as many as 21 witnesses in support of the case of the prosecution including the panchas, the doctors and has proved different documents including serological report with regard to clothes and weapons which were discovered/recovered by the Investigating Officer. All these evidence establish that the present appellants were the assailant and have committed the murder of husband and wife by using deadly weapons like iron pipe.
5. We have gone through the Record & Proceedings of the trial court and have perused and scrutinised the deposition of witnesses as well as documents produced by the prosecution.
6. It emerges from the fact that the deceased were resident of Block No.601/2 of Sector 3-C of Gandhinagar. Appellant No.2 Harshadkumar Mafatlal Rathod is resident of Block No.600/2 of Sector 3-C of Gandhinagar. Appellant No.1 Mafatbhai Kacharabhai Rathod, who happens to be father of appellant No.1 is resident of Sector 24 of Gandhinagar. Complainant Milankumar Hargovinddas Makwana is resident of Block No.576/1 of Sector 3-C of Gandhinagar. That means the deceased, appellant No.2 as well as the complainant were neighbours and were residing in very close proximity in Sector 3-C.
7. As per deposition of Milankumar Hargovinddas Makwana i.e. complainant, he immediately came out of his house on the fateful day i.e. 21.1.2005 at about 10:30 in the morning when he heard some altercation outside and near to his house. When he came out of his house, he found that there was some noise near the house of deceased Ashokbhai, therefor he immediately proceeded towards the house of deceased Ashokbhai. When he reached near the house of deceased, he found that deceased Ashokbhai and deceased Varshaben were seriously injured and were lying on an open plot which is adjacent to the house of deceased Ashokbhai. He also found that Kurul, son of these two deceased was standing near Ashokbhai as well as Varshaben. He was informed by Kurul, who is aged about 9 years, that appellant No.1 was abusing his mother and therefore his father went outside the house and requested the appellant No.1 not to use abusive language. Pursuant to this altercation, appellant No.1 as well as appellant No.2 used their iron pipe and gave pipe blows on the head of his father. His mother Varshaben, to save her husband from the attack, went there and at that time, she was also attacked by the appellants with the pipes. Thereafter along with Kurul, complainant Milanbhai went near Varshaben, and at that time Varshaben uttered that Mafatlal and Harshad who are the appellants, have severely beaten them. It was further stated by Milanbhai that she could not speak further thereafter. His father and brother Jigarbhai went to police station and the complainant Milanbhai went to fetch an Ambulance. When he reached with the Ambulance at the scene of offence, he found that the police had already taken Varshaben as well as Ashokbhai at the civil hospital, therefore, he went to the hospital in the same Ambulance and he found that Ashokbhai was declared dead and Varshaben was under treatment in the civil hospital. The Civil Hospital, Gandhinagar referred injured Varshaben to Ahmedabad Civil Hospital and, therefore, the complainant went back to his home. It is the say of the complainant that, after some time police reached at the place of incident, and since he was aware about the incident, he lodged a complaint with Sector 7 Police Station, Gandhinagar, which is proved by him in his deposition and which is exhibited at Exh.22. This witness is thoroughly cross-examined and the defence did try to establish that looking to his daily activities and his business, his presence at his home was not possible at the time of incident. This witness has stated that he is doing sundry business which starts at about 9:00 to 9:30 in the morning. However, he has denied that, on the date of incident, he had gone for his business and he was not present when the incident took place. This witness deposition is in consonance with the first information lodged by him and also with the deposition of Kurul, son of deceased Ashokbhai Vaghela and Varshaben Vaghela. Being a neighbour to the appellants accused as well as the deceased he has not tried to take one side by posing himself as an eye-witness. Close reading of his deposition, we are of the view that there are all possibilities that since Kurul was knowing this witness and who immediately reached at the place of incident and was standing near to him as well as deceased Varshaben, the child who is aged about 9 years must have described the incident which took in presence of him.
As far as making oral dying declaration by deceased Varshaben before the complainant in presence of Kurul, we would like to observe that Varshaben was injured on head and had received injuries on parietal region as well as occipital region but she was alive and was transferred to the hospital. Dr.Jayendra Ratilal Modi, P.W.9 Exh.49, who performed the post mortem and prepared notes thereto, in his cross-examination stated that, looking to the injuries, the supply of oxygen to the brain would be gradually decreased and subsequently the person would go into coma and thereafter only the person cannot speak. In the present case, the oral dying declaration is made by the deceased immediately after sustaining the injuries. In view of this aspect, we are of the opinion that the trial court has not committed any error in accepting the say of the complainant.
8. Now coming to the child witness Kurul, who was aged about 9 years at the time of incident is concerned, he was examined as P.W.7 at Exh.46 by the Sessions Court after examining his competency to depose in the court of law. The Sessions Court ascertained the competency of this child witness by putting several questions and came to the conclusion that the child was sufficiently intelligent to understand the seriousness of his deposing in the Court. It is true that a child particularly of tender age has good memory and no conscience. They can easily be taught stories which they believe to be true, and are influenced by fear and punishment or hope of reward and by desire of notoriety and, therefore, while considering the evidence of a child, these aspects are required to be considered whether the child witness is under any influence of fear or hope of reward when he deposes before the Court. In the present case, we have closely and very carefully considered the deposition of this child witness Kurul, who was exhaustively cross-examined by the defence. The endeavour of the defence to establish that since he was studying in the school and was attending tuition, he was not present at the time of offence, has been failed since the child has answered all questions which are found true comparing with the other evidence on record by trial court as well as by us. The description of the entire evidence narrated by him is natural and in very precise manner. He has deposed that, on the date of incident, when his mother went into backyard of his house, the appellant No.2 Harshadkumar Mafatlal Rathod (to whom the witness described as "Harshadkaka") started abusing his mother. His mother came into the house and informed his father about the conduct of appellant No.2. Therefore his father came out from his house and informed the appellant No.1 (who is described as "Mafatkaka" by this witness) and requested not to use filthy words. Pursuant to this, the appellant No.1 was annoyed and started quarreling with his father. After this altercation, the appellant No.1 went into the house of his son (appellant No.2) and thereafter the appellant No.1 along with appellant No.2 came with iron pipe in their hands and started beating his father with the pipe. His father received head injuries. It was further deposed by this child witness that, when the appellants were beating his father, his mother Varshaben tried to save him. At that time both these appellants gave pipe blows to her mother on the head. She made hue and cry and therefore number of peoples gathered and therefore the appellants went back in their own house along with the pipes.
9. He has deposed that his mother was asking for water and therefore he brought water from his house and gave it to his mother and at that time the complainant Milankumar came there and thereafter his mother stated that both these appellants-accused had given pipe blows to her as well as to his father.
He informed the complainant about the incident, and since his parents were lying in pool of blood, complainant Milanbhai went to fetch an Ambulance. He has further categorically deposed that thereafter the police reached at the place of incident and both of them were transferred to Civil Hospital. He has also identified the clothes of deceased as well as the accused persons and weapons used by the accused persons.
10. As stated hereinabove, though this child witness was exhaustively cross-examined, the defence, in our opinion, failed to establish that the child was a tutored one and he was not telling the truth.
11. In cross-examination he deposed that his father never used any abusive language at the time of incident towards the accused persons. He has categorically deposed that, appellant No.1 went in his own house and came along with the accused No.2, who happens to be of his son along with pipe and gave pipe blows. He has stated in the cross-examination itself that he has seen this assault but he was afraid and he went near his parents only after they fell on the ground.
12. It also appears from the cross-examination of this witness that the relations between about his father and family of appellants were not that much cordial.
13. It is an established position that the evidence of a child witness is to be taken with great caution. There should be close scrutiny of the evidence of child witness before the same is accepted by a court of law. It is also equally established that every child witness cannot be discredited as untrustworthy, for each case depends upon its particular facts and circumstances. In the present case, we find that the testimony of this child witness is consistent and reliable.
14. If the testimony of a child witness is accepted, then, in absence of corroboration, the Court can convict a person. In the present case, as stated hereinabove, we find that the child witness is telling the truth and is accepted as eye-witness to the incident and, therefore, we confirm the findings of the trial court that this child witness is a natural witness and his credibility cannot be questioned. We are, therefore, of the opinion that the trial court has committed no mistake in accepting the testimony of these most important witnesses.
15. In the present case, the prosecution has produced several documents which are proved by several witnesses in corroboration to the testimony of these two witnesses namely the complainant as well as the child witness. The discovery panchnama of weapons, panchnama of the clothes which are seized by the police authority of the accused at the time of arrest, inquest panchnama, scene of offence panchnama etc., are proved through panchas who fully supported the case of the prosecution.
16. We are not able to accept the last submission made by learned counsel for the appellants that the discovery of weapon is not believable. The panchnama Exh.57 which was carried out in the house of appellant No.1 was prepared between 16:40 to 17:30 hours on 21.1.2005. P.W.11 Nikunj M.Brambhatt, the Scientific Officer of FSL, who in his deposition says that the Investigating Officer was not present at the house of the appellants when he was examining the house of appellant No.1 around the same time. We have compared the time of this panchnama and what has been deposed by the Scientific Officer. As per panchnama Exh.57, the panchnama was carried out on 21.1.2005 between 18:40 to 19:30 hours. As per the deposition of P.W.11 Scientific Officer, he reached at the house of the appellants at 17:30 hours and was trying to collect some articles in the house of the appellant No.1. In his cross-examination, he has stated that he was present "approximately at about 7:00 o'clock in the evening" in the house. He has stated that, till he was in the house, the Investigating Officer has not visited the house. It is pertinent to note that the Scientific Officer was in the house since 17:30 hours but left the place approximately at about 19:00 hours in the evening and, therefore, we are of the opinion that no specific time has been mentioned by the Scientific Officer that at what time he had left the house. As per Exh.54 a report which was prepared by him, he has mentioned about his visit at the place of incident which shows that he had visited at about 17:30 hours. In the report he has not stated that for how much period and upto what time he remained in the house of appellant No.1 and, therefore, we are unable to accept the submissions made by learned counsel for the appellants that the police authority has not investigated the case in proper manner which creates doubt.
17. Now considering the serological report Exh.97, the blood group of deceased Ashokbhai is of "B group" which is found from the clothes of the deceased, from the pipe which was used by appellant No.1 and pant, shirt and banyan of appellant No.1. The blood group of deceased Varshaben is of "O group" which is found from the clothes of deceased Varshaben as well as from the pant of accused No.2. It is an admitted position that the accused persons received no injuries in this incident and have failed to explain in their further statement that how the blood stains of deceased persons were found on the clothes which they wear at the time of incident.
18. The last submission made by learned counsel for the appellant is that the case would fall within the definition of Exception 1 or Exception 4 of Section 300 of Indian Penal Code, since the incident took place in spur of a moment and in a sudden fight in the heat of passion upon a sudden quarrel which is of a trivial nature. He submitted that, due to grave and sudden provocation, the appellants lost their self-control and, therefore, the incident took place and the deceased received injuries and therefore the same would not amount to a murder as defined under Section 300 of Indian Penal Code.
19. We are unable to accept this submission in view of observations made by us hereinabove. As deposed by Kurul, there was no provocation by the deceased persons, and on the contrary after appellant No.1 had altercation with deceased Ashokbhai, he went in his house and came back in company with his son with deadly weapon and attacked the deceased who were totally unarmed. In view of this fact, this prayer is refused.
20. In view of what is stated hereinabove, the appeal deserves to be dismissed and the same is dismissed. The impugned judgment and order dated 1.6.2005 rendered in Sessions Case No.32 of 2005 by learned Additional District & Sessions Judge, Gandhinagar is confirmed.
( A.L. DAVE, J. ) ( A.J. DESAI, J. ) syed/ Top