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Gujarat High Court · body

2010 DIGILAW 407 (GUJ)

Kalia Sabira Dhanuk v. State of Gujarat

2010-09-01

H.B.ANTANI, JAYANT PATEL

body2010
Judgment H.B. Antani, J.—Instant Appeal, filed under Section 374 (2) of the Criminal Procedure Code, 1973 (“Code” for short) is directed against the judgment dated 15.6.2004 rendered by the learned Additional Sessions Judge and 4th Fast Track Court, Vadodara at Chhota Udepur in Sessions Case No. 68 of 2003 by which the appellant is convicted for the offences punishable under Section 302 read with section 114 of Indian Penal Code and sentenced him to undergo life imprisonment and fine of Rs. 1,000/-, in default, further Rigorous Imprisonment of two months. The facts emerging from the record of the case are as under: 2. The incident in question took place on 15.5.2003 in the morning at about 5 a.m. The accused was staying near the house of the complainant. The deceased went to tap palm tree and as he was about to climb the tree, the appellant came there and had an altercation with the deceased. The appellant was provoked and he shot an arrow at the deceased who was standing near the palm tree. The arrow pierced the chest of the deceased-Revjibhai who died on the spot. The complaint was given by Sagadiben Revji, wife of the deceased on 4.2.2004 before the Police Sub-Inspector, Rangpur police station. On the strength of the complaint given by Sagadiben, the investigation was set in motion. The Investigating Officer visited the place of the incident and prepared panchnama of the place of the incident and panchnama with regard to recovery of muddamal article was also prepared. Statements of witnesses from the neighbourhood was recorded. The muddamal which was seized was sent to FSL for the purpose of detailed analysis. The Investigating Officer also sent the body of the deceased to Public Health Centre at Chhota Udepur for the purpose of performing post mortem. The appellant was arrested and produced before the learned Judicial Magistrate First Class at Chhota Udepur who in turn committed the case to the Sessions Court as the case is exclusively triable by the Sessions Court. On receipt of the FSL report as well as post mortem report, the appellant was charge sheeted. The learned Sessions Judge framed the charge against the appellant for the offence punishable under section 302 read with section 114 of Indian Penal Code as well as section 135 of the Bombay Police Act. 3. On receipt of the FSL report as well as post mortem report, the appellant was charge sheeted. The learned Sessions Judge framed the charge against the appellant for the offence punishable under section 302 read with section 114 of Indian Penal Code as well as section 135 of the Bombay Police Act. 3. The appellant pleaded not guilty to the charges levelled against him and claimed to be tried. The prosecution, therefore, examined the following witnesses: (1) PW 1 Sagadiben Revjibhai Exh. 8 (2) PW 2 Karsanbhai Tersinghbhai Exh.10 (3) PW 3 Dungarbhai Tersinghbhai Exh.11 (4) PW 4 Dr.Purshothambhai Kanjibhai Exh.12 (5) PW 5 Pratapbhai Bhurbhai Exh.15 (6) PW 6 Subhashbhai Dhanjibhai Rathva Exh.16 (7) PW 7 Guhadabhai Hatbhai Exh.19 (8) PW 8 Kutariyabhai Chimliyabhai Exh.23 (9) PW 9 Kanubhai Malabhai Exh.27 (10) PW 10 Dariyabhai Chimiliyabhai Exh.30 (11) PW 11 Akmabhai Damor Exh.31 The prosecution also produced the following documentary evidence: (1) The complaint : Exh.9 (2) The yadi which was sent by PSO to register the offence : Exh.32 (3) Yadi which was sent by PSO to PSI, Rangpur police station : Exh.33 (4) Wireless message for the purpose of inquest : Exh.34 (5) Inquest Panchnama : Exh.20 (6) Panchnama of the place of incident : Exh.17 (7) Yadi for post mortem note : Exh.13 (8) Post Mortem Note : Exh.14 (9) Panchnama with regard to recovery of the clothes of the deceased : Exh.21 (10) Panchnama with regard to blood sample collected : Exh.22 (11) Panchnama of the person of the appellant : Exh.35 (12) Note for sending the muddamal : Exh.36 (13) Receipt given by FSL : Exh.37 (14) FSL Report : Exh.38 (15) Yadi sent to the police to prepare map : Exh.28 (16) Map : Exh.29 4. After recording of the evidence on behalf of the prosecution witnesses was over, the learned Judge explained to the appellant, the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further statement, as required by Section 313 of the Code. In the further statement, the appellant had denied his involvement in the commission of offence. 5. On appreciation of evidence adduced by the prosecution, the learned Judge held that the deposition adduced by Sagadiben, PW 1 vide Exh.8 is supported by her own complaint vide Exh.9. In the further statement, the appellant had denied his involvement in the commission of offence. 5. On appreciation of evidence adduced by the prosecution, the learned Judge held that the deposition adduced by Sagadiben, PW 1 vide Exh.8 is supported by her own complaint vide Exh.9. She has, in clear and categorical terms, deposed in her testimony as to how the deceased was attacked by the appellant with arrow when he was about to climb a palm tree. She had also identified the appellant in the Court during the course of her deposition. Even the muddamal articles were identified by Sagadiben. The learned Judge held that the deposition adduced by Sagadiben is supported by medical evidence. Dr. Purshottambhai Kanjibhai Vankar, PW 4 is examined vide Exh.12. He carried out the post mortem of the deceased and in his deposition he has stated about the internal injuries and external injuries sustained by the deceased. Even the arrow was also found during the post mortem performed by him. The post mortem note which was prepared by him is also produced in the case which supports the version given by Dr. Purshottambhai Vankar. The learned Judge held that the oral deposition adduced by Sagadiben and the medical evidence is supported by the panchnama of the place of incident vide Ex.17, the panchnama with regard to the clothes recovered from the body of the deceased vide Exh.21, the FSL report vide Exh.38 and, therefore, the prosecution has conclusively established the involvement of the appellant in the commission of offence. 6. The prosecution has examined Akmabhai Damor, PW 11 who was working as PSI in the Rangpur police station on 15.5.2003. He has also deposed in his testimony as to how he proceeded with the investigation on receipt of the complaint. 6. The prosecution has examined Akmabhai Damor, PW 11 who was working as PSI in the Rangpur police station on 15.5.2003. He has also deposed in his testimony as to how he proceeded with the investigation on receipt of the complaint. The learned Judge, on the basis of the deposition adduced by PW 11 Akmabhai Damor, held that the prosecution has also established the panchnama with regard to recovery of the muddamal article, panchnama of place of incident as well as panchnama of recovery of the clothes in a conclusive manner and thus the learned Judge, on the basis of the evidence adduced by the prosecution witnesses, held that the prosecution has established the entire link in connecting the appellant with the commission of offence under section 302 of IPC and convicted the appellant for life imprisonment under section 302 of IPS and fine of Rs.1,000/- in default, to undergo further Rigorous Imprisonment of 2 months. 7. Learned Advocate Ms. Trusha Mehta appearing for the appellant submitted that the prosecution has not established the involvement of the appellant in the commission of offence by adducing cogent and convincing evidence. The deposition adduced by Sagadiben vide Exh.8 also does not inspire the necessary confidence as her deposition is not consistent and there are many contradictions in her deposition as well as the complaint given by her vide Exh.9. The learned Advocate has placed reliance on the deposition adduced by other witnesses and submitted that Panch witnesses had turned hostile and not supported the panchnama with regard to the place of incident, panchnama with regard to recovery of the clothes and panchnama with regard to recovery of the weapon and, therefore, the prosecution has also not established the place of incident, recovery of the weapon in a conclusive manner. Even on perusal of the medical evidence, more particularly the deposition adduced by Dr. Purshottambhai Vankar vide Exh.12 and the post mortem report produced vide Exh.14 do not support the prosecution case and, therefore, benefit of the same deserves to be given to the appellant. The FSL report also does not support the prosecution story about the involvement of the appellant in the commission of the offence. Purshottambhai Vankar vide Exh.12 and the post mortem report produced vide Exh.14 do not support the prosecution case and, therefore, benefit of the same deserves to be given to the appellant. The FSL report also does not support the prosecution story about the involvement of the appellant in the commission of the offence. Thus, the learned Advocate submitted that the prosecution has miserably failed to prove inextricable involvement of the appellant in the commission of the offence under section 302 of IPC and, therefore, the judgment rendered by the learned Sessions Judge deserves to be quashed and set aside and the appellant be exonerated for the offence punishable under section 302 of IPC. 8. Learned APP Mr K P Rawal representing the State submitted that the complaint was given by Sagadiben which is produced at Exh.9. In her complaint, she has in clear terms, narrated as to how and in what manner the appellant shot the deceased with arrow when the deceased was climbing the palm tree. Sagadiben has also deposed in her testimony at Exh.8 about the date of incident and the manner in which the incident took place. On the date of the incident, she was standing near the palm tree. At that time, the appellant had an altercation with the deceased and the appellant who was armed with arrow shot an arrow at the deceased and as the arrow pierced the deceased in the chest, he died on the spot. Learned APP submitted that the deposition adduced by the complainant is also supported by the deposition adduced by PW 3 Dungarbhai Tersinghbhai at Exh.11 wherein he has narrated as to in what manner the deceased was done to death by the appellant. PW 4, Dr. Purshottambhai Vankar who has been examined vide Exh.12 had carried out the post mortem of the deceased Revjibhai. He has narrated in his deposition about the internal and external injuries sustained by the deceased. The exact place in the chest where the arrow had pierced is also narrated by the Doctor. The post mortem report is produced vide Exh.14 wherein the injury sustained by the deceased are narrated. The cause of death mentioned in column No. 23 is due to hyponatremia (illegible) shock due to the injuries found in the lower part of the heart. Thus, the deposition adduced by the Doctor corroborates the deposition of the complainant-Sagadiben. 9. The post mortem report is produced vide Exh.14 wherein the injury sustained by the deceased are narrated. The cause of death mentioned in column No. 23 is due to hyponatremia (illegible) shock due to the injuries found in the lower part of the heart. Thus, the deposition adduced by the Doctor corroborates the deposition of the complainant-Sagadiben. 9. The prosecution has also placed reliance on the panchnama of the place of incident vide Exh.17 wherein the exact place where the incident took place has been mentioned. The panchnama of the clothes seized from the body of the deceased and the panchnama of the person of the appellant further corroborate the prosecution story connecting the involvement of the appellant in the commission of the crime. The FSL report which is produced vide Exh.38 also provides necessary corroboration to the prosecution story about the involvement of the appellant in a ghastly crime of murder. Thus, the learned APP submitted that the prosecution, on the basis of the oral deposition as well as documentary evidence, established the involvement of the appellant in the commission of offence and, therefore, the learned Sessions Judge has rightly convicted the appellant for the offence punishable under section 302 read with section 114 of IPC and as there is no infirmity in the judgment rendered by the learned Sessions Judge, the Appeal deserves to be dismissed. 10. This Court has heard learned Advocate appearing for the appellant and the learned APP appearing for the respondent-State at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to the broad and reasonable probabilities of the case. The prosecution has examined 11 witnesses in order to bring home the guilt against the appellant. 11. The incident in question took place on 15.5.2003 at about 5 a.m. in the morning when deceased Revji was about to climb a palm tree. The appellant who was armed with bow and arrow had altercations with the deceased and shot one arrow at the deceased who sustained serious injuries in the chest. As the arrow pierced the chest of the deceased, he died on the spot. The appellant who was armed with bow and arrow had altercations with the deceased and shot one arrow at the deceased who sustained serious injuries in the chest. As the arrow pierced the chest of the deceased, he died on the spot. The complaint was given by Sagadiben vide Exh.9 wherein she has narrated as to in what manner the altercation took place between the deceased and the appellant and how the deceased was attacked by the appellant. Sagadiben who has given her deposition vide Exh.8 has reiterated in her deposition about the incident and the manner in which the incident took place on 15.5.2003. She has deposed in her testimony that the incident took place at 5 am in the morning. Her husband was standing near the palm tree and when he was about to climb the palm tree to tap the palm tree, the appellant came there and had an altercation with the deceased. The appellant who was armed with the arrow shot an arrow at the deceased. The arrow pierced the chest of the deceased. The deceased sustained a fall from the palm tree. Another accused Duraliabhai also assaulted the deceased. She had identified the appellant during the course of her deposition. The muddamal article which was shown to her was also identified by her. The aforesaid version given by Sagadiben has not been dislodged by the defence side in the cross-examination. Karsanbhai, PW 2 examined at Exh.10, PW 5 Pratapbhai Bhurbhai at Exh.15, PW 6 Subhashbhai Dhanjibhai Rathva at Exh.16, PW 7 Guhadabhai Hatbhai at Exh.19, PW 8 Kutariyabhai Chimliyabhai at Exh.23 and PW 10 Dariyabhai Chimiliyabhai examined at Exh.30 have turned hostile and not supported the prosecution case. The deposition adduced by Dungarbhai Tersinghbhai, PW 3 vide Exh.13 supports the version given by Sagadiben vide Exh.8. Doctor Purshottambahi, PW 4 is examined vide Exh.12. He had carried out post mortem on the dead body of deceased Revjibhai. In his post mortem, he has narrated the injuries sustained by the deceased. During the course of cross-examination, he has deposed that injury No. 1 which is mentioned in column No. 17 could be caused with a sharp instrument while injury No. 2 could be caused with an arrow. The deposition adduced by the Doctor is supported by the post mortem report which is produced at Exh.14 to the present case. During the course of cross-examination, he has deposed that injury No. 1 which is mentioned in column No. 17 could be caused with a sharp instrument while injury No. 2 could be caused with an arrow. The deposition adduced by the Doctor is supported by the post mortem report which is produced at Exh.14 to the present case. The post mortem report narrates the injury sustained by the deceased and the cause of death in Column No. 23. The aforesaid version of Sagadiben and Dr.Purshottambhai is suppored by panchnama of the place of incident vide Exh.17, inquest panchnama at Exh.20, panchnama of clothes put on by the deceased at Exh.21 and the panchnama of the person of the appellant vide Exh.35 to the present case. 12. The FSL report Exh.38 is also carefully perused by us. On perusal of the report and the analysis given by the Asstt. Director of the FSL, it makes it clear that the appellant was involved in the gruesome murder of deceased Revjibhai. Thus, considering the entire gamut of oral deposition as well as the documentary evidence, the prosecution, in our view, has established the inextricable involvement of the appellant in the commission of offence. The prosecution has thus established the entire link connecting the appellant with the commission of the crime by adducing cogent, convincing and conclusive evidence. 13. In view of the oral and documentary evidence as discussed hereinabove, there is no force in the submissions canvassed by the learned Advocate for the appellant. The learned Judge has, therefore, rightly convicted the appellant for offence punishable under section 302 read with section 114 of IPC as well as section 135 of the Bombay Police Act and there is no reason to interfere with the findings given by the learned Sessions Judge and we do not see any reason to upset the findings rendered by the learned Sessions Judge. 14. For the foregoing reasons, the Appeal is dismissed. The impugned judgment dated 15.6.2004 rendered by the learned Additional Sessions Judge and 4th Fast Track Court, Chhota Udepur in Sessions Case No. 68 of 2003 convicting the appellant for the offences punishable under Section 302 read with section 114 of Indian Penal Code and sentencing him to undergo life imprisonment and fine of Rs. 1,000/-, in default, further Rigorous Imprisonment of two months is confirmed. 1,000/-, in default, further Rigorous Imprisonment of two months is confirmed. The muddamal article is to be disposed of in terms of the directions issued by the learned Sessions Judge in the impugned judgment.