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2009 DIGILAW 525 (GUJ)

Mangubhai Rangalabhai Ghanak v. State of Gujarat

2009-07-31

H.B.ANTANI, J.R.VORA

body2009
Judgment J.R. Vora, J.—Instant appeal is preferred under Section 374 of the Criminal Procedure Code, 1973 against the judgment and order dated 15th November, 2003 rendered by learned 5th Joint District & Additional Sessions Judge, Fast Track Court, Chhotaudepur in Sessions Case No.33 of 2002 whereby the present appellant - accused came to be convicted by the trial Court for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default to undergo rigorous imprisonment of one month. The appellant - accused was also charged for the offence punishable under Section 504 of the Indian Penal Code. The trial Judge acquitted the appellant - accused for the aforesaid offence and there is no appeal against the said acquittal. 2. As per the brief facts of the prosecution case, the brother of the accused who is deceased in the incident named as Bachubhai Rangalabhai was residing along with his wife Ditaliben and children at Village : Malaja, Taluka : Chhotaudepur. Accused was also staying at Village : Malaja and were doing labour work for their maintenance. On 26th March, 2001, it was informed to deceased and the accused that their maternal uncle one Toyabhai had died at Village : Lagami and, therefore, accused - Mangubhai and deceased Bachubhai both went to Village : Lagami from Village : Malaja. According to the customs in the caste, the relatives were required to gift a cloth to deceased Toyabhai, but the deceased Bachubhai had no financial source to gift such cloth. While accused gifted cloth to deceased maternal uncle Toyabhai. After the cremation ceremony, accused as well as deceased returned to Village : Malaja at 6.00 p.m. The deceased, after taking meal at night at 7.00 p.m. to 7.30 p.m., was sleeping in a cot in courtyard of their house, at that time accused came there and started abusing deceased Bachubhai. The accused was alleging that why deceased Bachubhai did not gift a cloth to their maternal uncle who had died. The deceased, thereupon, replied that he had no wherewithal to gift a cloth to deceased maternal uncle. On that, accused became angry, he ran towards his house, which was nearby, took arrow and bow from his house and pelted the arrow on the body of the deceased. The deceased, thereupon, replied that he had no wherewithal to gift a cloth to deceased maternal uncle. On that, accused became angry, he ran towards his house, which was nearby, took arrow and bow from his house and pelted the arrow on the body of the deceased. The arrow was hit and penetrated on left side around belly button of the deceased and, therefore, the deceased had fallen down on the ground. On hearing the commotion, Nathubhai Chhagalabhai, Mathurbhai Chhagalabhai and Gagubhai Chhagalabhai ran to the scene of offence and in the meantime, thereafter, accused ran away from the spot. The deceased was taken to Community Health Centre at Chhotaudepur where he was treated by P.W. 6 Dr. Kailashchandra Ramlalji Devada. In the meantime, Ditaliben wife of the deceased went to Chhotaudepur Police Station and gave her complaint in respect of the incident to P.S.I. Mahimakumar Narendrabhai Pandya at 23.45 hours. The crime came to be registered, the investigation started. The deceased was required surgery and, therefore, he was transferred to Surgical Ward. It appears before that in pursuance of the police yadi, Executive Magistrate Bharatbhai Udesinh Rathva recorded dying declaration of the deceased on the same day which is placed at Ex.13 and accordingly, the accused pelted the arrow upon the deceased which became fatal. It appears that after surgery, during the treatment deceased Bachubhai died on 1st April, 2001 and P.W. 6 Dr. Kailashchandra Ramlalji Devda performed postmortem and postmortem note is placed on record vide Ex.33. The cause of death reported to be septicemia due to penetrating wound in the abdomen. On crime being registered and deceased Bachubhai died during the treatment, Investigating Officer prepared inquest panchnama, panchnama of scene of offence and from the scene of offence, front part of arrow was recovered and was sent to F.S.L. Initially, the offence came to be registered under Section 326 of the Indian Penal Code and, thereafter, it was converted under Section 302 of the Indian Penal Code. A charge-sheet came to be submitted against the accused - appellant in the Court of Judicial Magistrate, First Class at Chhotaudepur, who in turn committed the case to the Court of Sessions and the case was committed to the trial Court being Sessions Case No.33 of 2002. 3. A charge-sheet came to be submitted against the accused - appellant in the Court of Judicial Magistrate, First Class at Chhotaudepur, who in turn committed the case to the Court of Sessions and the case was committed to the trial Court being Sessions Case No.33 of 2002. 3. Learned trial Judge framed the charge against the accused - appellant for the offences punishable under Sections 302 and 504 of the Indian Penal Code on 13th August, 2002 which is at Ex.4 to which the accused pleaded not guilty and hence, the prosecution examined the following six witnesses. Sr. No. P.W. Ex. 1. Ditaliben wife of Bachubhai 9 2. Bharatbhai Udesinh Rathva 11 3. Mathurbhai Chhagalabhai Rathva 14 Sr. No. P.W. Ex. 4. Gagubhai Chhagalabhai Rathva 15 5. Mahimakumar Narendrabhai Pandya 19 6. Dr.Kailashchandra Ramlalji Devda 30 4. The prosecution has also tendered the following documentary evidence. Sr. No. Particulars Ex. 1. Original yadi wrote to Executive Magistrate 12 2. Dying Declaration (D.D.) 13 3. Panchnama of production of bow of arrow 16 4. Panchnama of scene of offence 17 5. Inquest panchnama 18 6. Complaint of the complainant 20 7. Yadi of Medical Officer 21 8. Report made to Senior Officer 22 9. Report of PSI to add charge under Section 302 of the IPC 23 10. Yadi for Postmortem 24 11. Yadi for preparing map 25 12. Yadi of Medical Officer sent Police 26 13. Police Yadi by C.M.O., Chhotaudepur 27 14. Receipt of F.S.L regarding receiving of muddamal 28 15. F.S.L. Report 29 16. Medical certificate of injured 31 17. Ex. 26 32 18. Postmortem Note 33 5. Learned trial Judge, thereafter, brought incriminating circumstances appearing in the evidence against the accused to his notice and the defence of the accused was of total denial. Learned advocate for the defence as well as APP were heard and ultimately, the trial Judge came to the above conclusion of convicting and sentencing of the accused for the offence punishable under Section 302 of the Indian Penal Code and hence, this appeal. 6. Learned Advocate Mr. M.O. Barod for the appellant vehemently urged that though the prosecution attempted to prove the charge directly through the evidence, but among the witnesses P.W. 1 Ditaliben Bachubhai and P.W. 3 Mathurbhai Chhagalabhai both eye witnesses, there are contradictions as to the incident and other contradictions. 6. Learned Advocate Mr. M.O. Barod for the appellant vehemently urged that though the prosecution attempted to prove the charge directly through the evidence, but among the witnesses P.W. 1 Ditaliben Bachubhai and P.W. 3 Mathurbhai Chhagalabhai both eye witnesses, there are contradictions as to the incident and other contradictions. It is submitted that the witnesses have admitted that it was a dark night and it was not possible for the witnesses to identify the accused. Moreover, there is contradiction in the evidence of P.W. 1 Ditaliben widow of deceased Bachubhai with her complaint which is proved in Paragraph Nos. 8 and 9 of the evidence of the Investigating Officer, P.W. 5 Mahimakumar Narendrabhai Pandya and, therefore, no reliance whatsoever could be placed upon the evidence of eye witnesses. There is contradiction between the deposition of P.W. 1 Ditaliben Bachubhai and P.W. 3 Mathurbhai Chhagalabhai about what altercation took place between the deceased and accused. It is submitted that though P.W. 2 Bharatbhai Udesinh Rathva recorded the dying declaration at Ex.13 but nowhere prosecution established that the deceased was in fit State of mind to offer dying declaration and on the contrary the witnesses stated that the deceased was althrough out unconscious. Panchnamas of recovering of front part of arrow as well as scene of offence could not be proved by the prosecution through the evidence of P.W. 4 Gagubhai Chhagalabhai and, therefore, the accused is required to be acquitted from the charges, alternatively, it is also submitted that there is no motive behind the crime as deceased and accused who are real brothers. It is submitted that even if it is proved that the incident is established, no intention can be attributed to the accused as there was only one blow and that too on account of sudden provocation as the deceased refused to gift a cloth to dead maternal uncle. It is submitted that death has been caused after five days of the incident and because of septicemia, which appears to be on account of improper treatment. It is submitted that therefore, at the most, the accused could be held liable under Part-II of Section 304 of the Indian Penal Code for culpable homicide not amounting to murder and nor under Section 302 culpable homicide amounting to murder. 7. Learned APP Mr. It is submitted that therefore, at the most, the accused could be held liable under Part-II of Section 304 of the Indian Penal Code for culpable homicide not amounting to murder and nor under Section 302 culpable homicide amounting to murder. 7. Learned APP Mr. L.B. Dabhi for the respondent - State has submitted that in criminal cases, it is not the requirement that the prosecution in all cases should establish motive. The case has been proved against the accused by the prosecution through direct evidence from the eye-witnesses who are natural and their presence cannot be doubted at the scene of offence. It is submitted that in dying declaration at Ex.13, it is mentioned that the Executive Magistrate Bharabhai Chhagalabhai Rathva ascertained from Doctor whether patient was competent enough to offer dying declaration and, thereafter, only he recorded dying declaration. Nothing is alleged against P.W. 2 Bharatbhai Udesinh Rathva by the defence. Panchnama of scene of offence has been proved and according to the F.S.L. opinion, front part of the arrow which was found from the scene of offence was sent to the F.S.L and contained blood group of the deceased and hence, not only the prosecution has proved its case beyond doubt, but there is no scope that the case falls under any part of Section 304 of the Indian Penal Code. It is submitted that the learned trial Judge did not error in convicting and sentencing the accused for the offence punishable under Section 302 of the Indian Penal Code. 8. We have undertaken complete and comprehensive scrutiny of all vital features of the case and the entire evidence on record, has been reappreciated by us with reference to the broad and reasonable probabilities arising out of the case. We have also gone through the threadbare scrutiny of the Record & Proceedings of the trial Court. We have taken into consideration the contentions raised by both the sides in this appeal. 9. Before re-appreciating the evidence, it must be noted that when the prosecution proposes to establish the case through direct evidence of eye witnesses, it is the duty of the Court to appreciate such evidence carefully. The evidence of eye-witnesses cannot be brushed aside lightly or on imaginary or flimsy ground. 9. Before re-appreciating the evidence, it must be noted that when the prosecution proposes to establish the case through direct evidence of eye witnesses, it is the duty of the Court to appreciate such evidence carefully. The evidence of eye-witnesses cannot be brushed aside lightly or on imaginary or flimsy ground. Ordinarily, an eye-witness is worthy of credence unless it is established that the witness has reason to fabricate the case against the accused and that the facts from other evidence on record establish that it would not be just and proper to rely upon such witnesses. In cases of eye witnesses, such evidence is required to be tested by considering as to what was the proximity of the witnesses with the scene of offence, what was the opportunity available to them to have witnessed the incident, whether the particular eye-witness was capable of observing of incident taking place and reproduce the same before the Court etc. Once it is established that the presence of the eye-witness at the scene of offence was natural and that he had an opportunity to observe the incident, then unless it is shown that the evidence of an eye-witness is tainted for the sound reasons, such evidence must be acted upon. 10. In the present case, two eye-witnesses have been examined by the prosecution and they are P.W. 1 Ditaliben Bachubhai examined at Ex.9 who filed the complaint and P.W. 3 Mathurbhai Chhagalabhai examined at Ex.14. P.W. 1 Ditaliben Bachubhai in uncertain terms deposed that the accused and deceased had been to Village : Lagami on account of death of their maternal uncle. They had returned at 6.00 p.m. to their Village : Malaja. According to their customs, the relatives had to gift a cloth to deceased relative which was performed by the accused but could not be performed by the deceased as he had no wherewithal to gift a cloth to their maternal uncle. Therefore, in the evening when deceased was in the courtyard of the house and P.W. 1 was inside the house the accused came there swinging and picked up quarrel with the deceased as to why deceased had not gifted a cloth to their maternal uncle. Thereupon, the deceased stated that he had no money to gift the cloth. Therefore, in the evening when deceased was in the courtyard of the house and P.W. 1 was inside the house the accused came there swinging and picked up quarrel with the deceased as to why deceased had not gifted a cloth to their maternal uncle. Thereupon, the deceased stated that he had no money to gift the cloth. Thereafter, the accused went to his house and took the arrow and bow and pelted arrow upon the body of the deceased, which was hit on left side of stomach around belly button. The deceased was taken to the Hospital by Madhurbhai Chhagalabhai and Gagubhai Chhagalabhai at Chhotaudepur and she had filed a complaint. In cross-examination, she confirmed the fact of giving complaint and stated that for five days, deceased was at the hospital and one surgery was done at midnight. She stated that her husband regained conscious on the next day. She stated that the house of the accused was situated at a distance of 15-20 feet away on southern side of her house. She stated that the arrow which was in the stomach of the body of her husband was taken out by her with force. The accused was apprehended, but he escaped from the scene of offence. In the evidence of Investigating Officer, only contradiction was proved in respect of when accused and deceased returned to Village : Malaja and at the time of incident whether the deceased was near the door or in the courtyard. In the complaint, this fact has not been stated by the complainant, but she stated that her husband was sleeping on a cot in the courtyard of the house. There was some contradiction between the deposition and the complaint about the altercation took place between the accused and deceased. Except that there is no contradiction so far as the manner in which the incident had occurred. 11. Likewise P.W. 3 Mathurbhai Chhagalabhai Rathva examined at Ex.14 also stated that accused and deceased had been to Village : Lagami and returned at about 8.00 p.m. The witness was at his house and heard that the accused was saying to the deceased that why the deceased had not gifted a cloth to their maternal uncle. On account of this altercation, the accused pelted an arrow upon the body of the deceased which was hit nearby belly button of the deceased. On account of this altercation, the accused pelted an arrow upon the body of the deceased which was hit nearby belly button of the deceased. The deceased had fallen down on the ground and was taken to hospital and who had died after five days. He has been cross-examined by the defence and stated that at about 9.00 at night the deceased was taken for surgery which did not end till midnight. He was at the hospital, and till next day, the deceased had not regained consciousness. Police had been to the hospital and was inquiring from Ditaliben. He stated that the deceased was unconscious right from the time, he was taken to hospital till next day. In the evidence of Investigating Officer, the contradictions are proved in respect of exact words exchanged between the accused and the deceased at the time of the incident. It is proved that the witnesses did not State before the police that the blow of arrow was hit on the belly button of the deceased. Except that there are no contradictions in the evidence of these witnesses and we re-appreciated the evidence of these two witnesses, it becomes very clear that the presence of these two witnesses is natural at the scene of offence. One of them is wife of the deceased, she would be naturally present at the time of the incident. The second witness Madhurbhai is also staying nearby the house of the accused and the deceased. Both witnesses are supporting to each other. There may be some discrepancy in narrating the incident in their own expression which could not be considered to be contradiction affecting the prosecution case. The contradiction in re-appreciating the exact words of altercation took place between the accused and the deceased is also not material contradiction as to going to the root of the prosecution case. It is proved that both the witnesses were present at the scene of offence. Both the witnesses have withstood the cross-examinations of the defence, but except above stated contradiction, nothing is brought about why these two witnesses had deposed falsely and tried to implicate the accused who is real brother of the deceased and let escape the real culprit. The allegation made that both the brothers had joint agricultural land and on that account the accused was falsely involved by these witnesses, appears not to be believable. The allegation made that both the brothers had joint agricultural land and on that account the accused was falsely involved by these witnesses, appears not to be believable. There is no reason that why these witnesses should not be believed. There was no enmity between the witnesses and the accused as to falsely implicate the accused in this case. The evidence of these two witnesses is convincing and reliable. Even scrutinizing surrounding circumstances, set up and the environment in which the crime was committed along with the relationship with the accused, it is found that the evidence of these two witnesses is inspiring confidence about what they have stated in their depositions. The complaint is filed by Ditaliben immediately after the incident. We have no reason to discard the evidence of these two witnesses and the learned trial Judge rightly relied upon these two witnesses. 12. The death was culpable homicide is not much in dispute. P.W. 6 Dr. Kailashchandra Ramlalji Devda examined the patient on 26th March, 2001 when he was brought to Community Health Centre at Chhotaudepur. According to his deposition and certificate produced at Ex.31, the deceased had following injuries. “A penetrating (Arrow Injury) wound horizontal on abdomen above and deep to umbilicus 2” x 1" x Intestinal deep (Abdominal cavity deep). Part of omentum came out of wound contain, oriented, pulse.” P.W. 6 Dr. Kailashchandra Ramlalji Devda further stated that thereafter, on 1st April, 2001 the deceased died and he had conducted the postmortem from 10.20 a.m to 12.20 p.m. Doctor stated three penetrating wounds in postmortem note which is placed at Ex.33. (1) A penetrating wound stitched on abdomen above deep to umbilicus horizontal 2". (2) A Laparotomy stitched incision on abdomen middle to 5 cm above, umbilicus an 9 cm below umbilicus. (3) Tubing drain incision on abdomen lt. flank 2 cm long. There were internal injuries on the body of the deceased and laparotomy operation was also performed. In internal injuries, there were injuries in the stomach as well as in intestine. Doctor deposed that these injuries were sufficient to cause death in ordinary course of nature, and were ante-mortem. The cause of death as deposed by the Doctor was due to septicemia due to penetrating wound in the abdomen and thus, the culpable homicide is proved beyond doubt. 13. Doctor deposed that these injuries were sufficient to cause death in ordinary course of nature, and were ante-mortem. The cause of death as deposed by the Doctor was due to septicemia due to penetrating wound in the abdomen and thus, the culpable homicide is proved beyond doubt. 13. It is necessary to note here that Ex.13 dying declaration is also corroborative piece of evidence for which P.W. 2 Bharatbhai Udesinhbhai Rathva, Executive Magistrate has been examined at Ex.11. He has stated that in the evening of the day of the incident he had received a yadi from police and went to Chhotaudepur Referral Hospital and recorded dying declaration of the deceased which he has produced at Ex.13 and in such dying declaration cause of dispute which deceased narrated was that the accused pelted an arrow upon him on account of altercation for the fact that he had not gifted a cloth to his deceased maternal uncle. True that Doctor has not endorsed a certificate in dying declaration but that is not requirement of law. It is true that P.W. 2 could not prove that when he actually recorded dying declaration and hence, the time of recording the dying declaration could not be proved. But what appears from the evidence of P.W. 2 is clear that whenever dying declaration was recorded the deceased was in fit State of mind to offer dying declaration and, therefore, this is also a corroborative piece of evidence. 14. Panchnama of scene of offence placed at Ex.17 is proved through the evidence of P.W. 4 Gagubhai Chhagalabhai Rathva. It is also proved by panchnama at Ex.17, the first sharp weapon of the arrow has been recovered from the scene of offence and sent to F.S.L. and it was found that on that arrow blood group of deceased i.e. “B” human blood group was found. This is also a corroborative piece of evidence. 15. On over all appreciation of the evidence it clearly appears that the prosecution has proved the case against the accused beyond doubt and now while considering the alternative arguments advanced by the learned Advocate for the appellant is concerned, what is found is this that though the death is caused after five days of the incident and on account of septicemia but it must not be forgotten that the septicemia was on account of the wound caused by the arrow. There is nothing on the record to suggest that the death was on account of improper treatment or delay in medical treatment. No provocation, according to the prosecution case, was given by the deceased to the accused. The fact remains that P.W. 6 Dr. Kailashchandra established that the injury caused to the deceased was sufficient in ordinary course of nature to cause death. Only because septicemia was caused, it could not be said that the death was not on account of wound. One who inflicts injury, he has done so with intention to inflict the injury is normal role unless it is proved otherwise that there was no intention on the part of the accused to cause any injury. In the present case, what is proved is that the accused after altercation ran to his house and fetched arrow and bow and pelted the arrow blow on the body of the deceased and in these circumstances, it could not be said that the accused had no intention to cause the injury which is caused by him. Thus, we are unable to accept the contention of the learned Advocate for the appellant that even if the incident is proved, the accused was liable to lessor offence of culpable homicide not amounting to murder. 16. Ultimately, the conviction and sentence awarded by the trial Court which is impugned in this appeal appears to be proper and requires no interference and hence, the appeal is meritless. Therefore, the following final order is passed. Appeal stands dismissed. Muddamal to be disposed of in terms of the direction given by the trial Court.