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2011 DIGILAW 372 (GUJ)

Prakashbhai Chandubhai Barot v. State of Gujarat

2011-04-29

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT : R.M. Chhaya, J. This appeal arises out of the judgment and order passed by learned Additional Sessions Judge, Vadodara on 20.10.1999 in Sessions Case No.43 of 1998, convicting the appellants-accused for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 ('IPC' for short) and sentencing them to rigorous imprisonment for life for the offence punishable under Section 302 of the IPC and imposing a fine of Rs.500/- each, in default, to undergo further simple imprisonment (S.I.) for 15 days. Further, appellant No.1-Prakash Chandubhai Barot (original accused No.1) was ordered to suffer S.I. for a period of one month and imposing fine of Rs.100/-, in default, to undergo further S.I. for six days for the offence punishable under Section 135 of the B.P. Act. The sentences imposed are to run consecutively. 2. For the sake of convenience, original accused No.1, Prakash Chandubhai Barot, who is appellant No.1 herein, is addressed to as Accused No.1 (A- 1) and original accused No.2 Jaggu @ Jagdishbhai Chandubhai Barot, who is appellant No.2 herein, is addressed to as Accused No.2 (A-2) and original accused No.3 Nirmalaben @ Niruben Chandubhai Barot, who is appellant No.3 herein, is addressed to as Accused No.3 (A-3) in this judgment. 3. The short facts of the prosecution case are that on 07.08.1997 between 3:00 p.m. to 3:30 p.m. on information received from the son of deceased Premilaben (hereinafter referred to as "the deceased" for the sake of convenience), PW-1, Bhartiben Kishorbhai Barot, PW-2, Narmadaben wd/of Narayanbhai, and PW-3, Jayeshbhai Narayan Barot, (hereinafter referred to as "PW-1", “PW- 2” and “PW-3” respectively for the sake of convenience) went to Atma Jyoti Ashram and when they were reached near Atma Jyoti Ashram by an auto rickshaw around 4:30 p.m., they found that A-2 had caught hold of the deceased and A-3 was instigating A-1 and A-2 to 'pierce the deceased' with knife by saying 'bhichkavi de' and A-1 inflicted blows with knife on the chest of the deceased. Thereafter, the deceased was taken to S.S.G. Hospital, Vadodara by PW-1, PW-2 and PW- 3, however, she succumbed to the said injuries and that thereby all the accused have committed offences punishable under Section 302 read with Section 34 of the IPC and Section 135 of the B.P. Act. 4. Thereafter, the deceased was taken to S.S.G. Hospital, Vadodara by PW-1, PW-2 and PW- 3, however, she succumbed to the said injuries and that thereby all the accused have committed offences punishable under Section 302 read with Section 34 of the IPC and Section 135 of the B.P. Act. 4. An FIR was lodged by PW-1 before Gorva Police Station, Vadodara, alleging the aforesaid offences against the present accused-appellants. On the basis of the FIR above-mentioned, the police started investigation and on completion of investigation, police submitted charge-sheet against the accused-appellants for the offences punishable under Section 302 read with Section 34 of the IPC and Section 135 of the B.P. Act. 5. Learned Chief Judicial Magistrate, Vadodara on receipt of such charge-sheet so submitted by the police, committed the case to the Court of learned Sessions Judge, Vadodara as the case was being exclusively triable by the Court of Session. 6. During the course of trial the prosecution examined the following witnesses as oral evidence: 1 Complainant Bhartiben Kishorbhai Shanabhai Barot Exh.10 2 PW-2 Narmadaben Narayanbhai Exh.14 3 PW-3 Jayeshbhai Narayanbhai Barot Exh.15 4 PW-4 Pankajbhai Kishorbhai Barot Exh.16 5 PW-5 Kishorbhai Girdharlal Barot Exh.17 6 PW-6 Anil Ratanlal Shah Exh.18 7 PW-7 Izazahmed Mustakahemad Shaikh Exh.21 8 PW-8 Bhupendra Bhikhabhai Rajput Exh.23 9 PW-9 Kiran Baburao Revade Exh.25 10 PW-10 Urmilaben Babubhai Exh.26 11 PW-11 Vishnubhai Ramesh Sharma Exh.29 12 PW-12 Ashok Vitthaldas Panchal Exh.30 13 PW-13 Dr.Kishor Pramodrai Desai Exh.31 14 PW-14 Gopal Babubhai Shah Exh.34 15 PW-15 Dr.Sunil Mavji Patel Exh.35 16 PW-16 Head Con. Ramanbhai Nathabhai Rathwa Exh.37 17 PW-17 Police Jamadar Kesharising Samantsing Exh.39 18 PW-18 Narendra Ranjitbhai Mali Exh.41 19 PW-19 Police Jamadar Shremantrao Mansing Rao Exh.42 20 PW-20 P.I.Jaywantsing Raubha Waghela Exh.48 7. The learned Judge, on appearance of the accused appellants and on perusal of the materials available on record, including the police papers as well as also upon hearing the learned counsel for the parties, framed charges below Exh.3 against all the accused under Section 302 read with Section 34 of the IPC and also framed charge under Section 135 of the B.P. Act against A-1. As per the aforesaid charge (Exh.3) A-2 was holding the deceased and A-3 instigated A-1 and and A-2 to 'pierce the deceased' with knife by saying 'bhichkavi de' and A-1 inflicted blows with knife on the chest of the deceased, who happens to be sister-in-law (bhabhi) and A-1 inflicted blows with the knife and thereby committed the aforesaid alleged offences. The entire charges were read over to the accused appellants to which they pleaded not guilty and claimed to be tried. 8. The trial court proceeded with the trial and after considering all evidence led by the prosecution, came to the conclusion that the prosecution has successfully established the charges levelled against the present accused appellants and specifically believed that the case of the prosecution, which is based on chain of circumstances, being complete and uninterrupted. Later on the prosecution evidence was recorded and on relying upon the same, the learned trial Judge had reached to the conclusion that the offences punishable under Section 302 read with Section 34 of the IPC were duly established against all the accused appellants and Section 135 of the B.P. Act were duly established against A-1. The learned trial Judge, therefore, had recorded conviction of the accused-appellants, as aforesaid, by the impugned judgment and order dated 20.10.1999. Hence, the present appeal is filed by the accused-appellants against the aforesaid impugned judgment and order recording conviction of the appellants. 9. Heard Mr. K.B. Anandjiwala, learned advocate appearing on behalf of the accused appellants, while the respondent-State has been represented by the learned A.P.P. Mr. K.L. Pandya. 10. Learned advocate Mr. Anandjiwala has taken us to the oral evidence of prosecution witnesses and has urged that there are omissions as regard the role played by A-1 and A-2. It is further submitted that in the FIR itself no overt act is attributed qua A-3. It is further argued that there are certain contradictions in the evidence and the prosecution has not been able to establish from the evidence on record beyond doubt that the appellants-accused have committed offence punishable under Section 302 of the IPC. Learned advocate Mr. It is further submitted that in the FIR itself no overt act is attributed qua A-3. It is further argued that there are certain contradictions in the evidence and the prosecution has not been able to establish from the evidence on record beyond doubt that the appellants-accused have committed offence punishable under Section 302 of the IPC. Learned advocate Mr. Anandjiwala specifically relying upon the oral testimony of PW-20, Jayvantsing Raubha Waghela, and has contended that the testimony of eye-witness, more particularly testimonies of PW-1, PW-2 and PW-3, is not believable and as there are omissions as regards the role played by the accused, the same creates doubt and, therefore benefit of the same should be given to the appellants-original accused. 11. As against this, learned A.P.P. Mr. K.L. Pandya, has opposed the present appeal and has supported the impugned judgment and order passed by learned trial Judge and contended that the learned trial Court was perfectly justified in its judgment of conviction and sentence looking to the evidence on record of the case. Mr. Pandya further submitted that there are eye-witnesses, which have been examined as PW-1, PW-2 and PW- 3 and all of them have seen the occurrence of the offences. Learned A.P.P. has further submitted that the medical evidence as well as the report of Forensic Science Laboratory (FSL) clearly prove the guilt of the present appellants and has, therefore, submitted that the appeal requires to be dismissed. 12. We have examined the record and proceedings in context of the rival submissions made by both the sides. 13. At the outset it is worthwhile to note that in the charges framed by learned trial Judge (Exh.3) no charge for catching hold of the victim is levelled against A-3 only charge against A-3 was of instigating A-1 and A-2. 14. It is pertinent to note that PW-1, who is the first informant and an eye-witness, has stated in her deposition that A-2 had caught hold of the hand of the deceased. 14. It is pertinent to note that PW-1, who is the first informant and an eye-witness, has stated in her deposition that A-2 had caught hold of the hand of the deceased. It is further deposed that when she, along with Narmadaben and Jayesh, got down from the rickshaw, A-3 instigated A-1 and A-2 by stating 'bhichkavi de' as the sisters-in-law (nanands) have come at the spot of incident and immediately thereafter A-1 inflicted blows upon the deceased with the knife on the right side of the chest and because of such an assault, the deceased fell down and thereafter PW-1, PW-2 and PW-3, took the deceased to S.S.G. Hospital, Vadodara and the deceased succumbed to the injuries during treatment at 6:00 in the evening on the same day. It is worthwhile to note that on a specific question asked by the court that what was the reason for piercing the deceased, the answer given by PW-1 was that Shri Kishor Girdharlal Barot had illicit relation A-3 and the deceased was taken in order to clarify the said aspect. Similarly prosecution has also examined another eye-witness, PW-2 (Exh.14) as well as PW-3 (Exh.15) and both of them have given the same version as given by PW-1. 14.1. The ring of truth in the version of PW-1 would not in any manner diminish by certain omissions as relied upon by the accused. 15. The medical evidence of the case clearly indicates that the deceased had received serious injuries on vital part of her body i.e. chest. It clearly indicates that two stab wounds were found on the right side of the chest, that very injuries, on such vital part of the body of the deceased, were the cause of death of the deceased. The medical evidence clearly reveals that the cause of death is due to hemorrhagic shock following injury to vital organs, the liver and the lung. It is quite evident from the above injuries, which can be caused by knife that too with adequate force in such a manner that the same has gone deep to the extent of 2 x 1 c.m. right upto 8th rib and such a blow would be possible only when the deceased was held in such a manner so as to give proper force and room to the assailant. 16. PW-13, Dr. 16. PW-13, Dr. Kishor Pramodrai Desai, who performed autopsy of the deceased on 08.08.1997, has stated that both external and internal injuries can be caused by the knife and has clearly stated the extent of injuries sustained by the deceased. Even on appreciation of the evidence in the form of FSL report, the same also indicates that the blood group on the knife, petticoat, blouse and saree of the deceased is shown human blood group 'O', which happens to be the blood group of the deceased. 17. The evidence on record clearly shows that the deceased received injuries on vital part of the body inflicted by A-1 and the same was sufficient in ordinary course of nature to cause death. It also transpires from the evidence on record that presence of the eye-witnesses at the time and place of incident was natural, coupled with the fact that all the eye-witnesses have given consistent evidence and we see no reason to disbelieve the same. The place of incident and the manner in which the blows are given on the person of the deceased are relevant factors to decide the guilt on the part of the accused and culminate effect of the evidence on record leads to the conclusion that the accused had an intention to cause injuries which would cause death in ordinary course of nature and thus, the prosecution has been able to prove the guilt of the accused. 18. On appreciation of evidence on record the prosecution has thus been able to prove the guilt of accused Nos. 1 and 2 and the learned Sessions Court was right in convicting the said appellants under Section 302 read with Section 34 of the IPC as well as Section 135 of the B.P. Act. 19. It is also worthwhile to note that no charge for murder or common intention has been framed against A-3. The role allegedly played by her, even as per the version of three eye-witnesses, would not take the case of the prosecution against her any further for those offence, no conviction can be based against A-3 under Section 302 read with Section 34 of the IPC in absence of that charge against her. 20. The role allegedly played by her, even as per the version of three eye-witnesses, would not take the case of the prosecution against her any further for those offence, no conviction can be based against A-3 under Section 302 read with Section 34 of the IPC in absence of that charge against her. 20. For the foregoing reasons, we allow the appeal in part, by setting aside the conviction and sentence recorded vide judgment and order dated 20.10.1999 passed by learned Additional Sessions Judge, Vadodara in Sessions Case No.43 of 1998 against accused No.3-Nirmalaben @ Niruben wife of Chandubhai Barot and confirming the conviction and sentence recorded against appellant Nos. 1 and 2. Appellant No.3-Nirmalaben @ Niruben wife of Chandubhai Barot be set at liberty forthwith, unless she is required in any other case. Fine, if paid by her, be refunded to her. Appeal partly allowed.