IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1035 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 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 ?
========================================================= PRAVINBHAI DAMANBHAI TADVI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance :
MR HARNISH V DARJI for Appellant(s) : 1, MR RC KODEKAR APP for Opponent(s) : 1, =========================================================
CORAM : HONOURABLE MR.JUSTICE A.L.DAVE
and HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 23/03/2012 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE)
1. The appellant was the accused before Sessions Court, Vadodara, and was tried for offence of murder. He came to be convicted by judgement and order dated 16.05.2006 for the offence of murder punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life with a fine of Rupees One Thousand, in default, imprisonment for fifteen days. He was also convicted for offence punishable under Section 135 of the Bombay Police Act, 1951, and was sentenced to simple imprisonment for two months. Both the sentences were ordered to run concurrently. It is this judgement in Sessions Case No.286 of 2005 dated 16.05.2006 by Sessions Court, Vadodara, which is under challenge.
2. The prosecution case in brief is that the appellant had eloped with Sonalben, sister of Kalpeshbhai Bhailalbhai Tadvi, the first informant, about two months prior to 19.07.2005. However, the appellant and Sonalben were separated by intervention of the community people as per their customs. It is the case of the prosecution that keeping a grudge on this count, the appellant went to the house of the first informant- Kalpeshbhai Bhailalbhai Tadvi in the night of 18.07.2005, where several persons were sleeping outside the houses, including the first informant, and one Dilipbhai Ambubhai Tadvi. The first informant and Dilipbhai Ambubhai Tadvi were sleeping on otla of a house. When the appellant went there with a knife and inflicted four blows on abdominal portion of the deceased, it resulted in his death. A First Information Report was lodged with Sankheda Police Station by Kalpeshbhai Bhailalbhai Tadvi, and the offence was registered and investigated. After investigation, the police having found sufficient material, filed charge sheet in the court of Judicial Magistrate First Class, Sankheda, which in turn committed the case to the court of Sessions at Vadodara, and Sessions Case No.286 of 2005 came to be registered. Charge was framed against the accused at Exh.4 to which he pleaded not guilty and came to be tried. The trial court found that the prosecution was able to prove the case by adducing proper evidence and recorded conviction, as stated hereinabove, and hence this appeal.
3. We have heard learned advocate Mr. Harnish V. Darji for the appellant and learned A.P.P. Mr. R.C. Kodekar for the respondent-State.
4. Mr. Darji submitted that the incident has occurred in the wee hours in a village where everybody was sleeping. As per the prosecution case itself, the attack was committed when everybody was asleep and the witnesses, who woke up after hearing cry of the deceased, all that they admit to have noticed is the assailant escaping. They have, therefore, seen only the back of the appellant, and possibility of a mistaken identity cannot be ruled out. Mr. Darji submitted further that the accused had taken a plea of alibi that he was at his aunt's place and not in the town, and therefore, the trial court committed an error in not appreciating the defence plea. Mr. Darji submitted further that the motive, which is sought to be established against the appellant, is that he had grievance against the first informant being instrumental in breaking the appellant's relationship with Sonalben, but, in fact, that is a stale cause. Much time had lapsed in between, and nothing had happened, therefore, the motive which is sought to be attributed is also not correct, and therefore, this appeal may be allowed.
5. Learned A.P.P., Mr. R.C. Kodekar, on the other hand submitted that there are four witnesses who have seen the appellant running away after committing the assault. The appellant has given multiple blows with a knife in the abdomen with a force, which has resulted into the death of the deceased. The assault was committed on a sleeping person in the early morning hours when the appellant had no reason to be there ordinarily. So, the appellant went to the place with an intention to cause death. This aspect is established by the fact that he was carrying the knife with him, which he has in fact used.
Mr. Kodekar further submitted that the knife has been discovered in the presence of panch witnesses, which aspect is proved, as the knife carries bloodstains of the group of the deceased, namely `B' group. He further submitted that the accused was arrested within hours, and when he was arrested, his clothes were found stained with blood. That group of blood is also of the deceased, namely `B' group. It is also worth to note that when the appellant was arrested, there was no mark of any injury on his person, and therefore, the possibility of that blood being of his own is ruled out, and the appellant failed to explain presence of blood of the group of the deceased on his clothes. Taking all these factors collectively, the trial court is justified in recording the conviction of the appellant, and therefore, the appeal may be dismissed.
6. We have examined the rival submissions from the record and proceedings.
7. If the charge is seen, it indicates that the appellant was charged with two offences, namely, murder of Dilipbhai Ambubhai Tadvi, and the second charge was of breach of notification issued under Section 27 of the Bombay Police Act, 1951, punishable under Section 135 of the Bombay Police Act.
8. So far as the offence is concerned, the prosecution has examined P.W.1, P.W.2, P.W.3 and P.W.5 as eye-witnesses. It is true that all these witnesses admit that they have not seen the actual act of assault by the appellant on the deceased. What they say is that they heard a cry of the deceased and woke up and found the appellant escaping from the place. The evidence would reveal that it emerges in the cross-examination itself that though it was night time, there was light in the area, with the help of which the witness was able to see the time also. It is not the case of the defence that the witnesses did not know the appellant from the beginning. Therefore, the appellant was known to the witnesses from the beginning, which would make it easier for them to identify him, even while looking at his back.
9. However, even if it is found that there is an element of some doubt about the ability of the witness in identifying the assailant, there is another piece of evidence in the form of arrest panchnama of the appellant. The appellant was arrested within hours of the incident. When he was arrested, his clothes were found to be stained with blood with no mark of any injury on his person. The clothes were sent to Forensic Science Laboratory, and the blood was found to be of the group of the deceased. In absence of any injury on his own person, and even otherwise, it is upto the accused to explain as to how his clothes came to be stained with blood, and accused has unfortunately not been able to tender any explanation on this aspect.
Additionally, the accused has discovered a knife, which carried blood marks of the group of the deceased. This discovery is proved through witness Samir Ruknuddin Shaikh (P.W.12 - Exh.26). It, therefore, stands established that the knife was concealed by the accused-appellant, which is discovered by him, and it is found by Forensic Science Laboratory to be carrying blood marks of the group of the deceased.
10. The essence of going through this discussion is that the appellant was seen escaping from the place of the incident after giving knife blows to the deceased. He was then arrested with bloodstains on clothes, and police recovered a knife from him, which carries the blood of the deceased, and for which he tenders no explanation. In our view, therefore, the prosecution has been able to establish guilt of the accused.
11. We may record here that it is not in dispute that the death of the deceased was homicide, and he died of multiple injuries on his chest. It was one of the contentions that as per the prosecution case, the appellant at the best had a motive to cause death of the first informant, and not that of the deceased Dilipbhai Ambubhai Tadvi. However, if a man attacks a sleeping person with a knife and causes multiple injuries on vital part of the body, there cannot be any other intention, but to cause death of such a person. If such intention was to cause death of the first informant, and somebody else has fallen victim, the case would be governed by Section 301 of the Indian Penal Code, which provides that it will be the same offence as if the injury was caused to the person sought to be attacked. In such fact situation, we do not find any merit in the appeal. The appeal must fail. It stands dismissed.
(A.L. DAVE, J.)
(N.V. ANJARIA, J.)
(SN DEVU PPS)