Sanjaykumar Iswarlal Patel vs State Of Gujarat

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 610 of 2002 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE K.S. JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

Yes

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy of the No judgment ?

4 Whether this case involves a substantial question of law as No 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 ? No ================================================================ SANJAYKUMAR ISWARLAL PATEL Appellant(s) Versus STATE OF GUJARAT Opponent(s)/Respondent(s) ================================================================ Appearance:

MR RD DAVE, ADVOCATE for the Appellant(s) No. 1 MR KP RAVAL, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.S. JHAVERI and

HONOURABLE MR.JUSTICE K.J.THAKER

Date : 21/10/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE K.S. JHAVERI)

1. The present appeal is preferred by the original accused­appellant herein against the judgment and order of conviction and sentence dated 23.05.2002 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Ahmedabad in Sessions Case No. 223 of 2001, whereby the original accused was ordered to undergo rigorous imprisonment for life with a fine of Rs.1000/­(Rupees One Thousand Only) for the offence under section 302 of the Indian Penal Code and in default of payment of fine, he was ordered to undergo further rigorous imprisonment of 6 months. It was also ordered to give the accused set off for the period during which he was in jail.

2. Brief facts of the case are as under:­

2.1 The appellant­accused and the deceased­ Dashrathbhai@Bapubhai­Bapu Hargovindas Patel who was maternal uncle of the accused, were running their factory at Amar Estate, Naroda Road, Ahmedabad. All the financial transactions and other administrative works were being handled by the accused. The accused had a habit of consuming wine. He had also illicit relationship with one woman viz. Kalaben Dalpatbhai Jadav, working in the factory premises. When the deceased came to know about the said illicit relationship, he had scolded the accused. However, the accused continued such illicit relationship with her and also misappropriated the accounts. Further, from time to time, when the deceased asked the accused to furnish the accounts, the same were not furnished by the accused. Therefore, the deceased had taken back the key of the office from the accused. Hence, the accused hatched a conspiracy to commit murder of the deceased in the office. In the result, on 24.07.2001, when the deceased was in his office at Amar Estate and was checking the accounts, at that time, the appellant­accused, as per his preplanned conspiracy, inflicted stone blows on the head of the deceased and thereby, committed his murder. Thereafter, after locking the office, he had left the office and on the next day i.e. on 25.07.2001, the accused himself lodged a complaint before the City Kotda Police Station.

2.2 Consequent upon the complaint, the investigation was carried out. The inquest panchnama of the dead body and panchnama of place of offence were prepared. Mudamal were discovered from the place of offence and statements of the witnesses were recorded. The postmortem of the dead body of the deceased was also done.

2.3 At the end of investigation, it was found that the appellant­accused himself had committed murder of the deceased and he came to be arrested. Thereafter, the charge sheet was submitted against the present accused before the Court of Metropolitan Magistrate, Court No.3, Ahmedabad. The learned Magistrate committed the case under section 209 of the Code of Criminal Procedure to the Court of Sessions, Ahmedabad.

2.4 The charge against the present accused came to be framed vide Exh.1. The accused pleaded not guilty and claimed to be tried. The trial commenced wherein, witnesses were examined and other documentary evidences were adduced. After the evidence was over, further statement of the appellant­accused was recorded under section 313 of the Code of Criminal Procedure, 1973.

2.5 After hearing the learned advocates of both the parties and considering the evidences on record, the learned Judge passed the judgment and order as aforesaid. Being aggrieved and dissatisfied with the aforesaid judgment and order, the appellant has preferred the present appeal.

3. To bring home the charges levelled against the appellant, the prosecution examined following witnesses before the trial court:­

1. Dr.Ramanbhai Hargovindbhai Exh.7

2. Rohitbhai Visnubhai Exh.8

3. Hiraben Dashrathbhai Patel Exh.11

4. Mahamadsarif Chandmahamad Exh.12

5. Makwana Shankarbhai Exh.18

6. Buresingh Samokhilal Rajput Exh.20

7. Umeshchandra Chimanlal Soni Exh.22

8. Dr. Yogeshbhai Mahendrabhai Yadav Exh.36

9. Shivsankar Devkumar Sharma Exh.38

3.1 The prosecution also produced following documentary evidences in support of its case:­

1. list with 16 pages Exh.6

2. Discovery panchnama of cloths of the accused Exh.9

3. Discovery panchnama of mudamal Exh.13

4. Discovery panchnama of mudamal(full) Exh.19

5. Panchnama of place of offence Exh.23

6. Original complaint Exh.39

7. Report u/s 157 of Cr.P.C. Exh.40

8. Copy of vardhi taken by P.S.O. Exh.41

9. Photographs of place of offence A to D

10. Inquest Panchnama dated 25.07.2001 Exh.43

11. Discovery panchnama of cloths of deceased Exh.44

12. Discovery panchnama of vehicle and phone Exh.45

13. Original P.M. Note Exh.46

14. Report of place of offence by F.S.L. Exh.47

15. Dispatch note Exh.48

16. Receipt of mudamal received by F.S.L. Exh.49

17. F.S.L. Report Exh.50 to Exh.52

4. Before proceeding further, it would be relevant to refer to the evidence of P.W. No.1­Dr. Ramanbhai Hargovindbhai Patel who is brother of the deceased, at Exh.7. In his evidence at Exh.7, he has deposed that on 25.07.2001, at around 8:30 to 9:00 hours in the morning, he was at his bunglow and at that time, a phone call was received from one Visnubhai informing that something had happened to the deceased­ Dashrathbhai H. Patel. Thereafter, he immediately rushed at the factory of the deceased and on the road near Chamanpura bus stand, Vasantbhai and others, in the Maruti van, were coming from opposite side and they stopped him. Therefore, Ramanbhai parked his car outside and met Vasantbhai. In the van, he checked the deceased, but his pulse was not beating. Thereafter, he immediately took the deceased to his hospital and examined him there. He and his other doctor friends tried to save him, but in the result, they could not save the life of the deceased and declared him dead. Thereafter, he informed the police about the death of the deceased which, according to him, was caused due to injuries to him. He also informed the police that his death was caused due to head injuries and hemorrhage. Thereafter, the police rushed to his hospital and carried out panchnama of the dead body of the deceased. Thereafter, the dead body was sent to Civil Hospital for postmortem and after postmortem, dead body was given back to him.

5. It would also be relevant to refer to the evidence of P.W. No.3­Hiraben Dashrathbhai Patel who is widow of the deceased, at Exh.11. In her evidence at Exh.11, she has deposed that on 24.07.2001, at 5:00 p.m., the deceased, on his scooter, went at the factory. Upto 9:00 p.m., the deceased did not come at home and, therefore, she called at the factory, but no one received the call. On second phone­call also, no one received the call. At 10:30 p.m. also, her daughter phoned, but there was no response. Thereafter, her daughter phoned to the accused, but he did not receive the call. At 12:00 a.m. also, her son phoned at factory, but no one received the call. She also phoned outside the home of the accused, but no one received the call. At 1:30 a.m., her daughter further called at the factory, but no one received the call. Further, at 8:30 hours in the morning, she phoned at the factory, but on one received the call. Thereafter, she phoned outside the factory of the deceased and there, the accused received the call and told that he did not know the whereabouts of the deceased. Her son asked him whether his father had come there or not. The accused told that the scooter was parked there, but he did not know the whereabouts of the deceased. Her son further phoned at the factory and one Visnubhai, who is partner of the deceased in the business, received the phone at the factory and informed that his father i.e. deceased was in the meeting and also informed that he was injured. Thereafter, one of their relatives phoned and informed them that the deceased was taken to the hospital. Thereafter, she called to her brother­in­law­Dr. Ramanbhai Patel at his Gayatri Hospital and he told that he would send someone to take them to hospital. Thereafter, Visnubahi came to take them to the hospital and she with her son rushed to the Gayatri Hospital. There, she came to know that her husband had already passed away.

5.1 She has also deposed that the deceased informed her that the accused had misappropriated the amount of Rs.4 Lacs in the accounts. Before the date of incident, the accused had back pain and therefore, the deceased told him not to come at the factory, but still he continued to come to the factory. It was also informed to her that the accused had illicit relationship with one woman working in the factory and there were some letters in that regard and therefore, that woman was also discharged from the factory. It was also informed that the accused had given flat to that woman. The deceased advised to the accused and also threatened him and therefore also, one day, there was a quarrel between the accused and the deceased.

6. At this stage, it would be relevant to refer to the postmortem report of the deceased. In the postmortem report, following external injuries of the deceased were found:­ “( 1) Contused lacerated wound vertically situated over the (Rt) side of occipital region 3 X 0.5cm X bone deep in size both margins are irregular( 2) Contused lacerated wound situated vertically over the occipital region just 1cm parallel and medial to the injury No.

(1) irregular in shape 8 X 0.5cm X wore leep.(3) Lacerated would present over (lt) side of occipital region transverse 4 X 0.5cm X bone deep margins are contused and irregular.( 4) Lacerated wound present just 1cm lateral to the Injury No.(3) 8 X 0.5cm X bone deep ( 5) Lacerated wound present at distal part of(lt) little finger on palmer aspect e dislocation of terminal phalanx.( 6) # dislocation of (lt) index finger at Meta carpo phalongyl jaint.( 7) Contusion present over (lt) palm at(lt) hypothenar region 4 X 2.5cm raddish in catour.( 8) Lacerated wound present over (lt) palm at terminal phalanx of little finger 1 X 0.5cm x skin creep.(9) Ant bite mark seen present over anterior aspect of chest 18 X 15cm in area.

­Palpable # dislocation of (lt) shoulder joint.

Injury Nos.1 to 8 are anti­marterm in nature and injury No.9 is post­marterm in nature.”

6.1 In the postmortem report, following internal injuries of the deceased were found:­ ­Corresponding to External Injuries Scalp contusion seen over frontal region on (Rt) side 5 X 6cm in size.

­Scalp contusion over (lt) Tempo­parietal region 10 X 8cm ­Depressed conmuneted fracture of occipital bone 'T' shypeal 8cm upward vertical in mid line, 9cm transverse­Scalp contusion present over (Rt) side occipital bone 6 X 4cm e Underlying # of bones # Both posterior cranial and (Rt) anterior cranial fossa (3) Menengies intact and pale, Brain 1200gm showing sub arachnoid and sub dural and intra cranial hemorrhage all over brain surface e contusion of bone of frontal labe and (Rt) side of parietal labe.

Thus, from the postmortem report, it is established that the death of the deceased is a homicidal death.

7. Today, when the matter is called out, Mr. R.D. Dave, learned advocate appearing for the appellant has tendered an affidavit of widow of the deceased viz. Hiraben Dashrathbhai Patel. It is stated in the affidavit of the widow that the accused is suffering from cancer and two times, he has been operated. He has one son and one daughter and his father is also very sick. During the span of last two years, they have maintained good relation with the family of the accused and therefore, she has requested to release the accused keeping in mind these circumstances. Learned advocate for the appellant has also requested the Court that in view of peculiar facts that the accused is suffering from cancer, family members of the accused and the deceased are close relatives and family arrangement has been arrived at between the parties as also in view of the decision in case of Ankush Shivaji Gaikwad vs. State of Maharashtra reported in 2013(6) Scale 778 , the Court may take a sympathetic view in the matter by allowing the appeal of the appellant. He has also produced on record a receipt of compensation of Rs.75,000/­ (Rupees Seventy Five Thousand Only) paid to the widow of the deceased.

8. Mr. K.P.Raval, learned APP has supported the impugned judgment and order of the trial court. He has submitted that the prosecution has clearly established the case against the appellant and it is proved that it is because of the appellant, the death of the deceased was caused.

9. We have heard learned advocates of both the sides and gone through the impugned judgment and order passed by the trial court. We have also perused the oral as well as documentary evidences, affidavit tendered by widow of the deceased and receipt of payment of compensation to the widow.

10. In view of affidavit filed by widow of the deceased stating therein that the accused may be released keeping in mind his circumstances, their family relation and the fact that the receipt of compensation of Rs.75,000/­ paid to widow of the deceased is produced on record, as also the fact that the appellant is suffering from cancer, having two children and his father is also very sick and in view of fact that the elder brother of the victim Dr. Ramanbhai H. Patel, who is maternal uncle of the accused, will look after the appellant, this Court is inclined to take a sympathetic view in the matter.

11. Keeping in mind the evidences on record and subsequent development, we are of the opinion that end of justice would be served by passing the following order:­ The appeal is partly allowed . The conviction under section­302 of IPC is converted to section­ 304, Part­II of IPC and the sentence is reduced to 7 years. However the custodial sentence is restricted to already undergone. Rest of the punishment is suspended. In view of the fact that the accused is suffering from cancer and payment of Rs.75,000/­ is made, the accused is not required to surrender and the bail bond, if any, stands canceled. It is made clear that this order may not be treated as precedent and this order is passed in view of the fact that maternal uncle will look after the appellant.

(K.S.JHAVERI,J.) (K.J.THAKER,J) Chandrashekhar