IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1237 of 2007 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE
MR.BHASKAR BHATTACHARYA
AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================================= CHIMANBHAI UKEDBHAI VASAVA Versus STATE OF GUJARAT ========================================== =============== Appearance :
MR HASMUKH R GURJAR, learned advocate for Appellant. MR KP RAWAL, ADDL. PUBLIC PROSECUTOR ========================================== =============== Date : 13/07/2012 CAV JUDGMENT (Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convict under section 302 of the Indian Penal Code and section 135 of the Bombay Police Act and is directed against the order of conviction and consequent sentence dated 9th August 2007 passed by the learned Sessions Judge, Vadodara in Sessions Case No. 159 of 2006. By the said order, the learned Sessions Judge sentenced the appellant for the offence punishable under section 302 of the Indian Penal Code with imprisonment for life and a fine of Rs.500/-, with further stipulation that in default of payment of fine, he would undergo a further simple imprisonment for a period of 30 days. The appellant was also sentenced to pay fine of Rs.100/- for the offence under Section 135 of the Bombay Police Act; in default of payment of fine, he was sentenced to suffer a further simple imprisonment for a period of 5 days.
2. Being dissatisfied, the accused has come up with the present appeal.
3. The case of the prosecution is as under:-
3.1 According to the complaint lodged by one Jayrambhai Revabhai Vasava, his family consisted of himself, his wife Revaben, a son named Sanjaybhai, aged about 22 years and a daughter, viz. Sarojben, aged about 20 years.
3.2 On 19th April 2006 at about 7-00 in the morning, he himself and his son Sanjay went to the field of one Jayantibhai Ambalal Patel for doing labour work. They returned at about 12.00 in the noon and took meal together. Thereafter, his son Sanjay went to the village Utraj to distribute marriage invitation cards of his daughter Saroj and returned at about 8.00 in the night. After taking dinner, his son went to attend Bhajan programme arranged at the home of Chandubhai Devjibhai Vasava. The other members of the family slept at his house.
3.3 On the next day, i.e. on 20th April 2006 when he got up in the morning at about 6.30, he came to know that his son did not return from the bhajan programme, and therefore, he went to search for him in the surrounding areas of the village. Meanwhile, at about 7.30 in the morning, he came to know that the dead-body of his son was lying at Jora Vaga. He, therefore, went there and found the dead-body of his son Sanjay which had wound marks caused by some sharp cutting instrument on throat, stomach and penis and blood had flowed out.
3.4 His son was in love with one Narmadaben, the daughter of Chimanbhai Ukedbhai Vasava, since last two years but the said Narmadaben was married subsequently to a different person. Narmadaben came back to the village for the last two days and the complainant apprehended that the murder of his son had been caused because of this love affair.
3.5 After lodging the complaint, the PSI, Sinor Police Station, prepared a panchnama of the place of the incident, inquest panchnama, the panchnama of the body of the accused, the panchnama of the clothes of the deceased, and the panchnama of the muddamal articles in the presence of panchas and also recorded statements of relevant witnesses as provided under section 161 of the Code of Criminal Procedure.
3.6 After the completion of investigation, the investigating officer submitted charge sheet on 10th July 2008 before the learned Judicial Magistrate First Class at Sinor as provided under section 173 of the Code of Criminal Procedure which came to be registered as Criminal Case No. 639 of 2006.
3.7 The learned Judicial Magistrate, First Class, Sinor, after making inquiry about the supply of copy of police papers free of cost to the accused as provided under section 207 of the Code of Criminal Procedure and upon satisfaction that the accused had engaged his own advocate for defence and having found that the case was exclusively triable by the Court of Sessions, committed the case to the Court of Sessions as provided under section 209 of the Code of Criminal Procedure by order dated 20th November 2006. Consequently, the same was registered as Sessions Case No. 159 of 2006.
3.8 Upon receiving the papers from the Judicial Magistrate, First Class, Sinor and having gone through the papers, the learned Sessions Judge framed the charge on 2nd December 2006 at Exh.3 as provided under section 228 of the Code of Criminal Procedure and read over the same to the accused. The accused pleaded “not guilty” and claimed to be tried.
3.9 Further statement of the accused was recorded on 15th June 2007 whereby the accused substantially denied the material evidence produced against him.
3.10 At the time of trial, the following pieces of documentary evidence were produced by the prosecution.
3.11 The prosecution also produced the following pieces of oral evidence.
3.12 The accused did not give any evidence, either oral or documentary on his behalf.
4. Ultimately, the learned Sessions Judge, Vadodara, by the order impugned in this appeal, found the accused guilty of an offence punishable under section 302 of the Indian Penal Code for committing murder and also under section 135 of the Bombay Police Act and sentenced the accused as indicated hereinabove.
5. Being dissatisfied, the accused has come up with the present appeal.
6. After hearing the learned counsel for the parties and after going through the materials on record, we find that the complainant, the witnesses, the deceased and the accused, all belong to the same village, viz. Dariyapura, and they knew each other very well. Therefore, there is no dispute about identification. It has also been established from the evidence on record that Sanjay, the son of the complainant, and Narmada, the daughter of the accused, were in love for more than two years prior to the incident. Narmada, however, was married to a different person. It is appears from evidence that Narmadaben and her in-laws had come to the village Dariyapura two days before the incident to attend the function arranged by her cousin, Chandubhai Devjibhai Vasava. It further appears from the record that dead-body of Sanjay was found lying in the deserted area known as “kotar” near Jora Vaga in the village Dariyapura in the early morning of 20th April 2006. More than eight injuries, including a grievous injury on his private part were caused to the deceased, which were sufficient to cause death in the ordinary course of nature. The death of the deceased Sanjay was, therefore, neither natural nor accidental nor suicidal but it was a homicidal one.
6.1 It further appears that the police seized the muddamal weapon [sickle] immediately after the arrest of the accused on the next day from his house under seizure panchnama in the presence of independent panch witness with whom the accused had no enmity at all. On the said muddamal weapon, the bloodstains of blood group 'B' were found. The accused was arrested on the next day of the incident and no injury was notified on his body while drawing panchnama. Still however, bloodstains of blood of 'B' group were found on his shirt as per FSL report.
6.2 There is also no dispute that Narmadaben was present in the village Dariyapura at the time of the incident. It further appears that Narmadaben, the daughter of the accused, gave evidence against her father to the extent that while she and her sister-in-law Manjuben were returning from the shop of Natwarbhai after purchasing Z-Vimal pouch, Sanjay met her and took her towards the chora and they were sitting there together when at that time, her father arrived there with stick and sickle and attacked Sanjay and a scuffle took place. At that time, according to Narmada, she left the place and went back to her house. After about 30 to 45 minutes, according to Narmada, the accused came back to the house and made an extra judicial confession before her that he had killed Sanjay. The dead-body of Sanjay, as indicated earlier, was found on the next morning.
7. Mr. Gurjar, the learned advocate appearing on behalf of the appellant, strenuously contended before us that the learned Sessions Judge erred in convicting the appellant solely on the basis of evidence adduced by Narmadaben. Mr. Gurjar contends that it appears from the evidence of Narmadaben that she did not actually see the use of the alleged weapon by her father. Mr. Gurjar submits that what has been stated by Narmadaben in her evidence is that she and Sanjay were gossiping in a dark place when her father appeared with weapons in his hands and thereafter, an altercation started between her father and Sanjay and in view of such altercation, she left the place. By relying upon the aforesaid evidence, Mr. Gurjar contends that even if the aforesaid statement is accepted, that does not lead to a conclusion that it was the accused who had actually killed Sanjay. Mr. Gurjar contends that from the nature of the injuries caused to Sanjay, it is apparent that such injuries must have been inflicted by more than one person, and thus, there was no justification to conclude that the appellant was involved in the actual assault and consequent death of Sanjay.
8. After going through the evidence of PW.4, Narmadaben, we find that in paragraph 4 of her deposition, she has specifically stated that her father had come to the place where she and Sanjay were gossiping and a scuffle took place between her father and Sanjay, and when the scuffle continued and turned out to be a serious one, she went away from that place and had gone back to her house. Narmadaben has further stated that about 30 to 45 minutes thereafter, her father returned home and told her that he had finished Sanjay. She has identified the sickle, which was in her father's hand at the time of the incident. In her cross-examination, a specific suggestion was put to her that Sanjay had also started hitting her father and caused him injuries, which she has denied. She has further stated that Sanjay had no weapon in his hands. She further stated that her father had hit Sanjay with a stick and until that point of time, she was present there. She has further stated that the sickle was in the right hand of her father and stick was in his left hand. She has further stated in her cross-examination that she could identify the clothes, which were put on by her father at the time of the incident, and it was stained with blood.
9. It is curious to note that in the cross-examination, no suggestion was given to Narmadaben that her father did not make an extra- judicial confession that he had finished Sanjay. It may also be noted here that the bloodstained wearing apparel of the accused was recovered from the house of the accused and the blood stains found on such wearing apparel is the same blood group of Sanjay. It may be further noted here that there was no injury on the body of the accused.
10. From the above evidence, it is clear that even if Narmadaben had not seen the actual act of killing Sanjay by the sharp weapon, the fact remains that she had seen the initial altercation between her father and Sanjay and first stick blow upon Sanjay by her father. Up to that stage, no suggestion to the contrary has been given. A suggestion was given to her that Sanjay had also given blows to the accused which she has denied. Her further statement that after about 30 to 45 minutes, her father came back with bloodstained wearing apparel and made a confession of killing Sanjay has not been controverted by even giving any suggestions to Narmadaben to the contrary.
11. If we take into consideration the above facts, there is no trace of doubt that the accused person, being enraged by the presence of Sanjay in the company of his married daughter with whom he had love affairs, first scolded Sanjay and then hit him with a stick. Thereafter, even if Narmadaben has not seen any further act on the part of her father inflicting blows with the sharp weapon, after about 30 to 45 minutes, her father came back with bloodstained wearing apparel and confessed before her that he had killed Sanjay. We have already pointed out earlier that on the next day morning, Sanjay's dead-body was found with various marks of injuries.
12. In the above circumstances, in our opinion, the learned Sessions Judge rightly held that no explanation has been given regarding the bloodstained wearing apparel of the accused on which the same blood group of Sanjay was found. In the case before us, there was no reason to disbelieve Narmadaben, who was none else than the daughter of the accused person. No suggestion has been given to her ascribing any motive for giving false statement involving her father.
13. In our opinion, the recovery of bloodstained weapon used for killing and the evidence adduced by the Doctor who had done the post mortem of Sanjay leaves no doubt that Sanjay was killed by the weapon recovered from the house of the accused.
14. We, thus, find that the direct evidence of Narmada upto the stage of her father giving a stick blow on Sanjay during the scuffle followed by an extra-judicial confession made by the accused before Narmadaben and the recovery of bloodstained wearing apparels of the accused and bloodstained weapon from his house leave no doubt that the prosecution has successfully proved that the accused person actually killed Sanjay.
15. Mr. Gurjar, the learned advocate appearing on behalf of the appellant, as a last resort submitted that it was, at the most, a case of culpable homicide not amounting to murder and such benefit may be given to the accused as the case comes within the first and the fourth exceptions of Section 300 of the Indian Penal Code.
15.1 To appreciate the said point, it will be relevant to quote the provisions contained in Section 300 of the Code which is quoted below:
“ 300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or-
3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.
Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:- First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Illustrations
(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was giving by a thing done in the exercise of the right of private defence.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.
Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.
Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
Illustration A, by instigation, voluntarily causes Z, a person under eighteen years of age, to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.”
15.2 Mr. Gujar, tried to bring the case within the first and the fourth exception.
15.3 So far as the first exception is concerned, we do not find any provocation given by the deceased. It appears that Sanjay and Narmada were sitting together while he came to attend the bhajan arranged by the cousin of Narmada. It is nobody’s case that they were found in a compromising position. When they were talking in an open place, the accused arrived with Sickle and stick in his hands and started beating Sanjay. Sanjay did not retaliate. Even there was no injury found on the body of the accused. In our opinion, in the facts of the present case, mere sitting together with Narmada cannot be described as a grave and sudden provocation so as to bring the case within the first exception. We cannot lose sight of the fact that Sanjay is a resident of the same village and he came to hear bhajan at the house of Narmada’s own cousin.
15.4 So far as the Exception 4 is concerned, we find that it was the accused who behaved in an unusual manner and having regard to the number of injuries and the manner of killing, we are unable to come to the conclusion that the accused did the act without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
16. After taking into considering the nature of injuries inflicted upon Sanjay, who had no weapon in his hands, benefit of provisions of section 304 IPC cannot be given to the accused person.
17. In the facts of the present case, in our opinion, the learned Sessions Judge rightly placed reliance on the evidence adduced by Narmadaben, which was also supported by medical evidence as well as recovery of muddamals such as bloodstained wearing apparel and weapon from the house of the appellant.
18. On consideration of the entire material record, we uphold the conviction and sentence recorded by the learned Sessions Judge in this case. The appeal is, thus, devoid of any merits, and is dismissed.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.]