(Per : HONOURABLE MR.JUSTICE A.J. DESAI)
1. By way of present appeal, the appellants - convicts have challenged the judgment and order dated 19.12.2005 passed in Sessions Case No.72 of 2004 by which the learned Presiding Officer, Fast Track Court No.7, Jam Khambhaliya, District Jamnagar convicted the appellants and sentenced for R.I. for life for the offences under Section 302 read with Section 114 of Indian Penal Code.
2. As per the prosecution case, the appellants, who are resident of Village Morzar of Taluka Bhanvad attacked the deceased Nagajan @ Nagji Mulubhai on 8.5.2004 at about 11:30 hours with deadly weapons like weeding plough and a large stick and gave several blows to deceased when the deceased was travelling in his bullock-cart. Due to serious injuries sustained by Nagajan Mulubhai, he succumbed to the injuries. Babubhai Nagajan, who is son of the deceased, reached the place of the incident where the deceased informed him that the appellants-accused had beaten him with the said deadly weapons. Accordingly Babubhai lodged a complaint with Bhanvad Police Station. The offence was investigated and a chargesheet was filed in the Court of learned JMFC at Bhanvad, who in turn committed the case in the Court of learned Sessions Judge at Jam Khambhaliya.
2.1 The learned Presiding Officer, Fast Track Court No.7, Jam Khambhaliya framed a charge at Exh.15. The accused persons pleaded not guilty and therefore the case was proceeded further.
2.2 The prosecution examined in all 12 witnesses including doctor as well as one eye-witness, and 5 witnesses before whom the deceased made dying declaration about the assailant and panch witnesses as well as police officers.
3. The judgment of the trial court is assailed by learned advocate Mr.Jayprakash I.Umot for the appellants mainly on the ground that the only eye-witness has not supported the case of prosecution and, therefore, in absence of other such witnesses, the learned Judge ought to have acquitted the accused persons from the charges levelled against them.
3.1 Another contention raised by learned advocate for the appellants is that the dying declarations made by the deceased before the witnesses are not trustworthy since they are relatives of deceased.
3.2 The third contention raised by learned advocate for the appellants is that, in absence of other circumstantial evidence like absence of serological report and improper panchnama of discover of weapon etc., the chain of circumstantial evidence is not completed and, therefore, the trial court ought not to have accepted the case of the prosecution which is solely relied on the dying declaration.
3.3 In support of his contention, the learned advocate for the appellants has relied upon the following decisions.
(i) Heikrujam Chaoba Singh Vs. State of Manipur reported in AIR 2000 SC
59.
(ii) Arun Bhanudas Pawar Vs. State of Maharashtra reported in (2008) 11 SCC 232.
(iii) Waikhom Yaima Singh Vs. State of Manipur reported in (2011) 13 SCC
125.
4. On the other hand, learned APP Mr.L.B.Dabhi has supported the reasons assigned by the trial court, and submitted that, the eye-witness Jayantibhai did not support to the incident in question, the dying declaration made by the deceased is required to be accepted, since out of five such witnesses, two witnesses namely Vinodbhai Alabhai Rathod (P.W. 3 Exh.29) and Pradipbhai Tejabhai Bagada (P.W.5 Exh.31) are independent witnesses. Pradipbhai Tejabhai Bagada is the Sarpanch of the Village where the appellants as well as the deceased were residing at the time of incident. He further submitted that there is no discrepancies in the deposition of these witnesses about the words uttered by deceased Nagjibhai, who had categorically made declaration that the appellants had attacked with the deadly weapons as stated hereinabove. He has further submitted that the dying declaration made by the deceased is reliable, voluntary and the truthful one and which can be made sole basis for conviction.
5. We have carefully gone through the Record & Proceedings and have closely scrutinise the deposition of the witnesses.
The incident took place on the road where the deceased was travelling all alone in a bullock-cart, he was attacked by the appellants with deadly weapons. When complainant Babubhai was informed at his residence that his father was attacked, he immediately reached at the place of incident with his uncle Rajabhai Mulubhai in a rickshaw where he found that his father was lying on the ground in a pool of blood near the farm of one Jayantibhai. On inquiry his father informed him that when he was travelling in a bullock-cart, appellant No.1 was standing near the farm of Jayantibhai. His father further requested him not to use abusive language and was trying to tie the weeding plough with his bullock cart, appellant No.1 gave blows with the said weeding plough in his head and at that time appellant No.2 came with a long stick and also gave blows to him. Except this, the deceased did not tell anything to him.
When this dying declaration was made by the deceased before the complainant Babubhai, his uncle Rajabhai Mulubhai was also present as both of them have reached at the place of incident in a rickshaw as stated hereinabove. Rajabhai Mulubhai P.W.4 Exh.30 has fully supported this witness and we do not find any contradiction in deposition of these two witnesses who are cross-examined by the defence in detail.
Vinodbhai Alabhai Rathod, Prosecution Witness No.3 (Exh.29) is an independent witness, who was the first person to reach at the place of incident since he was passing through on the said road on his bicycle. When he saw deceased Nagjibhai lying on a floor, he inquired with him about the injury he sustained. Deceased Nagjibhai informed him that the appellants-accused had beaten him. He, therefore, immediately went on his bicycle at the residence of the deceased where Rajabhai was present. After informing Rajabhai (P.W.4), he went back to his home.
Since the deceased was seriously injured, Babubhai as well as Rajabhai thought it fit to take the injured at his residence. Pradipbhai Tejabhai Bagada (P.W.5) (Ex.31) being a Sarpanch reached at the residence of the deceased where he found that the injured was lying in a coat. Upon inquiry to deceased, he was told that the appellants had attacked with deadly weapons. At that time another son of deceased name Vrajlal @ Vejo Nagjibhai was also present, in whose presence the deceased uttered a similar words which were spoken by the deceased. Vrajlal is examined by prosecution who has supported the case of prosecution.
The deceased was then transferred to hospital at Bhanwad which is about 9 k.m. away from the place of Village Morzar. When they reached at the hospital, Nagjibhai was declared dead by the doctor.
6. With regard to the injuries sustained by the deceased, Dr. Ukabhai Dhanabhai Chandrawadiya, P.W. No.1 Exh.20, who performed the post-mortem and prepared notes thereto has described the injuries in detailed sustained by the deceased. As per the deposition, the cause of the death is the injury sustained by the deceased on the head. The defence failed in bringing out in the deposition of doctor that the deceased was unable to speak anything as proved by the prosecution through several witnesses. We do not find any question put by the defence about the condition of the deceased and fitness of his mind to utter some words, looking to the injuries received by him so that the doctor can answer the same. He has categorically deposed that person must have fallen after getting the blow but he cannot say that after sustaining the injuries, at what time the injured, succumbed to the injuries. He cannot say that before how many hours, the person might have expired when the dead body was brought before him for post mortem.
7. Now considering the case of Heikrujam Chaoba Singh (supra) which is relied by the appellants, the same would not be applicable in the present case, since in the said case only two brothers of deceased were examined before whom the dying declaration was made by the deceased and no other witness was examined by the prosecution. The Hon'ble Apex Court also held that the two dying declarations were different from each other and on that ground the persons were acquitted. In the present case, as stated hereinabove, the prosecution has examined two independent witnesses including one being a Sarpanch of the Village, and we also found that there is no difference in the deposition of these witnesses about the words uttered by the deceased in their presence.
In case of Arun Bhanudas Pawar (supra), the Hon'ble Apex Court did not accept the oral dying declaration made by only one witness i.e. mother of the deceased. In that case also the prosecution had not examined any independent person about the dying declaration. The mother had not stated anything about dying declaration in her statement before police which was improved in her deposition before the Court.
In case of Waikhom Yaima Singh (supra), the Hon'ble Apex Court did not accept the dying declaration on the ground that there were no exact words uttered by the deceased available on the record, particularly because of the failure of the memory of the witnesses who were said to have heard it. The facts are different in the present case.
8. We are aware that the oral dying declaration must be considered with care and caution. In the present case, after considering the same with care and caution, we find that the oral dying declaration made by the deceased was made voluntarily and is reliable and, therefore, can be sole basis for conviction.
9. Now, considering the abetment for which both the appellants are convicted, the fact emerges from the case that the incident took place near a farm which neither belongs to the appellants-accused nor to the deceased, the deceased was travelling all alone in his bullock-cart. There was enmity between the families of the accused as well as the deceased. The role played by each of the accused by using the deadly weapons, is corroborated by the doctor who has confirmed the injuries sustained by the deceased were possible by the weapons used by the accused. We are of the opinion that both the appellants-accused are equally liable to be held guilty for the offence of murder.
10. In view of what is stated hereinabove, we do not find any infirmity with the reasons assigned by the trial court in convicting the appellants-accused and sentenced for life imprisonment. Hence, the appeal is dismissed. The impugned judgment and order dated 19.12.2005 rendered in Sessions Case No.72 of 2004 by learned Presiding Officer, Fast Track Court No.7, Jam Khambhaliya, District Jamnagar is confirmed.
( A.L. DAVE, J. ) ( A.J. DESAI, J. ) syed/ Top