Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 292 (GUJ)

Arjunbhai Ramchandra Parte v. State of Gujarat

2013-06-11

K.J.Thaker, K.S.Jhaveri

body2013
Judgment K.J. Thaker, J.—The present appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 16.1.2004 passed by the learned Addl. Sessions Judge, Fast Track Court No. 5, Vadodara in Sessions Case No. 180/2003, whereby, the learned trial Judge has convicted the appellant for the offence under Section 302 of IPC and sentenced to undergo R/I for life, with fine of Rs. 5000/-, in default, to undergo further S/I for one year. 2.1 The case of the prosecution is that on 9.4.2003, at about 22.00 O’clock in the night, opposite the house of deceased Tukaram Parte, situated in Santkabir area in Vadodara city, accused have formed unlawful assembly and assaulted the deceased with deadly weapons like sword because of pending criminal case wherein the deceased was prime witness. The accused No. 1 present appellant had given sword blow on the head of the deceased, whereas accused No. 2 had given sword blow on the hand of the witness Eknath Ganpatrao Pawar and thereby committed the offence of murder of deceased Tukaram Parte. During that time, complainant and the neighbours came there and the accused persons ran away from the place of offence. Thereafter, complainant, his brother-in-law Namdev, Mahadev and Eknath have taken the deceased to S.S.G. Hospital, Vadodara, where the doctor has declared the deceased dead and thereafter the complaint was filed. 2.2 The appellant accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was hold against the present appellant. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 180/2003. 2.3 Thereafter, the Sessions Court framed the charge below Exh. 3 against the appellant for commission of the offence under Section 302 of IPC. The appellant-accused has pleaded not guilty and claimed to be tried. 2.4 To prove the case against the present appellant, the prosecution has examined the following witnesses: 1. PW-1 Dr. Sutpa Basu Ex. 13 2. PW-2 Dr. Girish Ambalal Patel Ex. 15 3. PW-3 Suresh Govindbhai Uttekar Ex. 18 4 PW-4 Eknath Ganpatrav Pawar Ex. 20 5. PW-5 Mahadev Indurav Patil Ex. 21 6. PW-6 Ramchandra Vitthalbhai Dandekar Ex. 22 7. PW-7 Rajubhai Bhagoji Pawar Ex. 24 8. PW-8 Vijaybhai Arjunbhai Pawar Ex. PW-1 Dr. Sutpa Basu Ex. 13 2. PW-2 Dr. Girish Ambalal Patel Ex. 15 3. PW-3 Suresh Govindbhai Uttekar Ex. 18 4 PW-4 Eknath Ganpatrav Pawar Ex. 20 5. PW-5 Mahadev Indurav Patil Ex. 21 6. PW-6 Ramchandra Vitthalbhai Dandekar Ex. 22 7. PW-7 Rajubhai Bhagoji Pawar Ex. 24 8. PW-8 Vijaybhai Arjunbhai Pawar Ex. 27 9. PW-9 Salimbhai Jummabhai Divan Ex. 32 10. PW-10 Firoz Gulambhai Malek Ex. 35 11. PW-11 Vasimbhai Ibrahim Shaikh Ex. 39 12. PW-12 Vasantbhai Arjunrav Tabekar Ex. 40 13. PW-13 Manharbhai Parsottambhai Varia Ex. 41 14. PW-14 Kishorsinh Bahadursinh Jadeja Ex. 44 2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused. 1. Complaint Ex. 19 2. Panchnama of scene of offence place Ex. 23 3. Inquest panchnama Ex. 26 4. Panchnama of clothes of deceased Ex. 34 5. Panchnama of person of accused Arjun Ex. 37 6. Panchnama of person of accused Manoj Ex. 38 7. Panchnama of weapon Ex. 31 8. Yadi for PM Ex. 45 9. PM Note Ex. 14 10. Receipt Ex. 46 11. Receipt Ex. 47 12. Copy of public order Ex. 48 13. Letter written to FSL Ex. 49 14. Dispatch Nondh Ex. 50 15. Letter received from FSL Ex. 51 16. FSL Report Ex. 52 17. Serological report Ex. 53 18. FSL report Ex. 54 19. Injury certificate Ex. 17 20. Injury certificate Ex. 16 3. Thereafter, after examining the witnesses, further statement of the appellant-accused under Section 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution. 4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 16.1.2004 held the present appellant-original accused No. 1 guilty of the charge levelled against him under Section 302 of IPC and convicted and sentenced the appellant-accused, as stated above. 5. We have heard learned advocate Mr. B.S. Patel for the appellant and Ms. Chetna M. Shah learned APP for the respondent-State. 6. Learned advocate Mr. B.S. Patel for the appellant has contended that out of all the accused, only one accused, that is, present appellant is convicted. He has taken us through the entire oral as well as documentary evidence. He has submitted that the overt-act is not proved. Chetna M. Shah learned APP for the respondent-State. 6. Learned advocate Mr. B.S. Patel for the appellant has contended that out of all the accused, only one accused, that is, present appellant is convicted. He has taken us through the entire oral as well as documentary evidence. He has submitted that the overt-act is not proved. It is further submitted that the evidence of complainant PW-3 Suresh Govindbhai Uttekar Ex. 18 is highly doubtful as he was not present when the incident took place and he does not specify the injuries caused by the present appellant-accused No. 1, and in his evidence, he has only mentioned that the specific role is attributed to the present appellant. The evidence of the doctor and the injuries do not match and the doctor who has performed the post mortem has very categorically mentioned that the death was due to the shock and haemorrhage. It is further submitted that death was due to cumulative injuries and the injury on the head was more fatal as there was fracture. It is submitted that if certain witnesses are not believed for other two accused, then the present appellant should also be given benefit of doubt. The evidence of PW-3 Mahadev Indurav Patil Ex. 21 is very doubtful and on that evidence no conviction can be imposed by the learned trial Judge. It has been further submitted that the eye witness PW-3 Mahadev Indurav Patil Ex. 21, in his evidence deposed that he had gone there after the incident, however, in his cross-examination, he admitted that he had reached there at 11.00pm therefore, it has also doubt his presence being there. He has improved his version in the ocular version and added certain facts which were not in his police statement. The documents only because exhibited, it cannot be said to be proved. It has been submitted that scene of offence place has been changed deliberately by the police and no blood stain was found from the scene of offence place. He has relied on the following decisions: 1. (2005) 10 SCC 614 Hem Raj vs. State of Haryana 2. 1991 Cri.LJ 1464 = (1991) 2 SCC 612 Buta Singh vs. The State of Punjab 7. He has further submitted that though the area has very thick population but the prosecution has examined only interested witnesses. He has relied on the following decisions: 1. (2005) 10 SCC 614 Hem Raj vs. State of Haryana 2. 1991 Cri.LJ 1464 = (1991) 2 SCC 612 Buta Singh vs. The State of Punjab 7. He has further submitted that though the area has very thick population but the prosecution has examined only interested witnesses. The wife of the deceased or children of the deceased or near relatives have not been examined and he has relied on the following decisions. 1 1991 Cri.L.J. 2976 Ramesh & Ors vs. State of U.P. 2. 2004 Cri.L.J. 1552 Satan & Ors vs. State of U.P. 3. 2008 Cri.L.J. 1880 Onkar Singh vs. State of H.P. 4. 1954 Cri.L.J. 338 Habeeb Mohammed vs. State of Hyderabad 5. 1976 Cri.L.J. 1504 Ramaswami vs. Muthu & Ors. 8. Mr. B.S. Patel learned advocate for the appellant has further submitted that the panchnama cannot be relied on as joint recovery of articles is not permissible. He has relied on the decision of this Court in the case of Dahyabhai Revabhai Chamar and Ors. vs. State of Gujarat, reported in 2009(1) GLH 245. 9. Mr. B.S. Patel further submitted that though the accused has sustained injuries, but such injuries on the accused are not explained by the prosecution and, therefore, benefit of doubt should go to the accused, for which, he has relied on the following decisions: 1. (2008) 3 SCC 709 Baburam and Ors. vs. State of Punjab 2. (2004) 1 SCC 152 Vajrapu Sambayya Naidu & Ors. vs. State of A.P. 3. (2003) 1 SCC 398 Raghunath vs. State of Haryana & Anr. 10. Lastly, Mr. B.S. Patel learned advocate for the appellant has contended that the appellant is falsely implicated in the offence due to previous enmity and it was the deceased who was aggressor and not the present appellant-accused. 11. As against this, learned APP Ms. Shah has submitted that except two witnesses, all the witnesses have supported the case of the prosecution. The eye witnesses, who are injured witnesses, their medical evidence is corroborated by the evidence of the doctor. The place of offence and the presence of the appellant is established. PW-3 Suresh Govindbhai Uttekar Ex. 18 and PW-5 Mahadev Indurav Patil Ex. 21 have admitted that the accused inflicted serious injuries on the neck. The FSL report shows the blood stain of the appellant. The place of offence and the presence of the appellant is established. PW-3 Suresh Govindbhai Uttekar Ex. 18 and PW-5 Mahadev Indurav Patil Ex. 21 have admitted that the accused inflicted serious injuries on the neck. The FSL report shows the blood stain of the appellant. Learned APP has further submitted that just because the other accused are given benefit of doubt, and when there are circumstances which has proved the chain and the chain is complete, the present appellant-accused has been rightly convicted by the learned trial Judge. The blood stains are found on both, on sword which has been recovered from the present appellant, which is sought to be used by the present appellant and on the clothes worn by the present appellant. Learned APP Ms. Shah has relied on the following decisions of the Apex Court. 1. (2012) 4 SCC 79 Mano Dutt & Anr. vs. State of Uttar Pradesh 2. (2012) 7 SCC 636 M. Sarvana alias K.D. Saravana vs. State of Karnataka 3. 2011 Cri.L.J. 2162 State of U.P. vs. Naresh and Ors. 12. On going through the factual aspects, apart from the decisions cited by Mr. B.S. Patel learned advocate for the present appellant, it is an admitted position on facts that the presence of the present appellant was found at the place of offence. In the recent decision of the Apex Court in the case of Mano Dutt & Anr. vs. State of Uttar Pradesh reported in (2012) 4 SCC 79 , wherein, the Apex Court has held that when the participation in case of common intention would not depend on extent of overt act. In this case, the testimony is such that non-examination of certain witnesses would not be fatal to the prosecution. The main aspect on which the learned APP has relied is Paras-38 to 40. Such non-explanation of injury of the accused can be fatal where injuries on person of accused were also of a serious nature, and were caused at the time of occurrence in question. In this case also, the evidence is clinching, creditworthy and the Court has distinguished the truth from falsehood, and therefore, no other view then that taken by the learned trial Judge can be taken by this Court even on re-appreciating of entire evidence. 13. In this case also, the evidence is clinching, creditworthy and the Court has distinguished the truth from falsehood, and therefore, no other view then that taken by the learned trial Judge can be taken by this Court even on re-appreciating of entire evidence. 13. In light of this decision, it will be now necessary for this Court to evaluate the evidence and all the material on record before this Court and that is cardinal principle, and therefore, we have perused entire evidence on record and therefore, three aspects which are required to be considered that even if the submissions of Mr. Patel is considered in its totality that the accused had also sustained injuries on his body that itself is not helpful to get the benefit of doubt, the reason being that he has not gone to any doctor and not lodged any complaint and this aspect has been considered and dealt with at length by the learned trial Judge and the same has been negatived against the present appellant. Further, while considering the evidence, it cannot be said that the blood stain was not found near the house of deceased and the reason being that it is a slum area and it is nobody’s case that blood stain was not found near the house of the deceased. Though learned advocate Mr. Patel tried to show that the temple was far away from the place of scene of offence and blood stain was found near the temple but the complainant and other evidence which corroborates the say of the injured witness will not permit this Court to take any other view then the one taken by the learned trial Judge. The decision reported in (2005)10 SCC 614 will not help the accused. In the said case, the evidence of related eye witnesses were found unreliable. In this case, Investigating Officer has submitted the report, wherein, he has shown the names of all the accused, and therefore, the registration of FIR cannot be found faulted with just because the children are not examined. In the said case, the evidence of related eye witnesses were found unreliable. In this case, Investigating Officer has submitted the report, wherein, he has shown the names of all the accused, and therefore, the registration of FIR cannot be found faulted with just because the children are not examined. The prosecution has been successful in bringing home the charge levelled against the present appellant on the basis of the evidence of three eye witnesses, who are injured witnesses and the decision of the Apex Court reported in (2008)11 SCC 186 will also not apply to the facts of the present case just because there was previous enmity between the deceased and present appellant. In this case, it has been proved that the accused and other persons who went to the area where the deceased was staying and the fact which goes against the present appellant is that the deceased was a prime witness in the earlier trial, and therefore, that was also a motive for the present appellant-accused to commit the murder of the deceased. The decision of the Apex Court, reported in 1991 Cri.L.J. 1464, the Apex Court has observed in Paras-8 & 9, as under: 8. We may now consider the evidence regarding the injuries to the appellant and his wife. Indisputably the appellant and his wife sustained injuries. This is clear from the evidence of PW 2-Dr. Manjit Singh. His evidence shows that the appellant had two sharp edged punctured wounds on the back and the chest and two abrasions on the left fore-arm and on the front of the chest. His wife, Gurbachan Kaur, had a scalp deep incised wound on the left parietal region, two sharp punctured wounds on the right thigh and the right gluteal region, a swelling around the ankle joint and an abrasion on the left shoulder joint. The prosecution witnesses have tried to explain these injuries by stating that they had received the same when they tried to block PWs 7 and 8 from going to the rescue of the deceased. It is their case that when they found the appellant and his wife attacking them, they hit back with their weapons and caused the injuries in question. It is their case that when they found the appellant and his wife attacking them, they hit back with their weapons and caused the injuries in question. The defence version is that when the assault was launched they received these injuries, they fought back and caused injuries to the deceased as well as PWs 7 and 8 but unfortunately the deceased succumbed to his injuries. In other words, according to them, they caused the injuries in exercise of their right of private defence. The High Court however, has taken the view that the injuries were caused to the appellant and his wife by the prosecution witnesses in exercise of their right of private defence. But here again if it is found that the incident occurred near the appellant’s ‘dera’ and the tubewell and not in the field as deposed by the prosecution witnesses, the substratum of the prosecution case would stand knocked out. As pointed out earlier the find of the blood and the deposition of DW-1 support the defence case. The reason for shifting the place of occurrence is obvious. If the incident occurred there and not in the disputed field, it would show that the prosecution party was the aggressor and not the appellant and his wife. It also does not stand to reason that the appellant would go to the disputed field with his wife and a 13 year boy to quarrel with men who were armed with deadly weapons. It is difficult to believe that he would expose his wife and son to the risk of being attacked. The defence version, therefore, seems to be probable. If that be so, the prosecution party had no right of self defence. Then the appellant and his wife would claim that benefit. 9. From the above state of evidence, it appears that the defence version regarding the incident is a probable one and is supported by the find of blood from near the tubewell which is adjacent to the ‘dera’ of the appellant. When two versions are before the Court, the version which is supported by objective evidence cannot be brushed aside lightly unless it has been properly explained. As stated earlier, the prosecution has not explained how blood was found from near the tubewell and no blood was found from the spot where according to them the incident occurred. When two versions are before the Court, the version which is supported by objective evidence cannot be brushed aside lightly unless it has been properly explained. As stated earlier, the prosecution has not explained how blood was found from near the tubewell and no blood was found from the spot where according to them the incident occurred. In addition to this, the factum regarding the delay in lodging of the First Information Report and the suspicion that it was delayed with a view to concocting the prosecution case and further the delay in forwarding the special report to the Magistrate as well as the case papers to the hospital shows that the investigation was not above board. In these circumstances, we think that the approach adopted by the Court below cannot be justified. 14. In the said decision, in Para-9 on which the reliance is placed, the Hon’ble Supreme Court has held that the objective evidence cannot be brushed aside lightly unless it has been properly explained. In this case, objective evidence is against the accused, and therefore, the same requires to be viewed in light of this observation. One more aspect which would weigh with this Court is that the discovery of the blood of the same group on the weapon of the offence and on the clothes of the accused and the deceased indicates that the accused was closed proximity of the deceased. (1995 SCC (Cri.) 1085). However, in that case, from the facts which are discussed above, if we go through Para-11 of the cited decision, it was the deceased and company who have gone to the disputed land. In this case, it is proved beyond reasonable doubt that it was the appellant who was aggressive and the blood stains were found where the incident has occurred and even if this is a minor discrepancy, the major fact is that the sword used by the present appellant and the clothes worn by him, bears his blood group. The judgments of the Allahabad High Court reported in 1991 Cri.L.J. 2976 and 2004 Cri.L.J. 1552 will have no bearing on the facts of this case. In this case, there is no defence that they used the private defence, and therefore, the said decision reported in 2004 Cri.L.J. 1552 will not be helpful to the present appellant. The judgments of the Allahabad High Court reported in 1991 Cri.L.J. 2976 and 2004 Cri.L.J. 1552 will have no bearing on the facts of this case. In this case, there is no defence that they used the private defence, and therefore, the said decision reported in 2004 Cri.L.J. 1552 will not be helpful to the present appellant. The decision of Himachal Pradesh High Court reported in 2008 Cri.L.J. 1880 will not help the present appellant, the reason being that, in this case, ocular version and the medical evidence are in consonance with each other and the defence plea has to be ruled out. In the decision of the Apex Court reported in 1954 Cri.L.J. 338 (Supreme Court)(1), it is very clear that the provisions under Section 8, 14 and 53 of the Evidence Act have been summarized. Section 114 of the Evidence Act is also very clear that it is not the quantity of the witnesses that is necessary for recording conviction. In this case, the quality is very clear that is of the highest regard and no reflection on the fairness of the trial can be attributed to the prosecution and therefore, the said decision will not help the present appellant. Having discussed the above decision, it is not necessary to deal with the other decision of Madras High Court reported in 1976 Cri.L.J. 1504 and the decision of the Allahabad High Court reported in 1985 Cri.L.J. 1822. 15. The decision for showing the explanation for the injury caused to the accused by the prosecution, it is only at the time of trial, the question is to be put to the police authority. Nothing is on record to show that the accused has tried to show that how the injuries are caused to him. Hence, all the three decisions will not help the accused as there is no clinching evidence against him. 16. The evidence of the eye-witness has been very consistent, clear and cogent. They have been corroborated by FIR and evidence of the other witnesses. Medical evidence also supports the same, and therefore, it cannot be said that when there is no evidence to show that other coaccused caused fatal injury, the appellant should be given benefit of doubt. In this case, his participation and his act are proved beyond reasonable doubt and he has been convicted under Section 302 of IPC. Medical evidence also supports the same, and therefore, it cannot be said that when there is no evidence to show that other coaccused caused fatal injury, the appellant should be given benefit of doubt. In this case, his participation and his act are proved beyond reasonable doubt and he has been convicted under Section 302 of IPC. There is number of injuries on the victim, and in absence of any material to show that the present appellant -accused had received injuries during the incident and/or for private defence, cannot throw out the prosecution case. 17. Court has a duty to separate the falsehood and if after scrutinising the remaining evidence carefully the same is found to be trustworthy and the substratum of the prosecution case remains intact, then prosecution case can be believed to that extent- Falsus in uno, falsus in omnibus, not applicable in India. In such cases, the trial Court was justified in taking the view that appellant alone was responsible for murder. Janardan Singh vs. State of Bihar, (2010) 3 SCC (Cri.) 253. 18. In appreciating evidence approach of Court must be integrated and not truncated or isolated.- Court must analyse and assess the evidence by yardstick of probabilities, its intrinsic value and animus of witnesses and thereafter reach its conclusion. 19. In the case on hand, where the trial Court has rightly assessed the evidence. For appreciating the evidence, the Court should read evidence as a whole. So read, if it appears to have a ring of truth, then discrepancies, inconsistencies, infirmities or deficiencies of minor nature not touching core of the case cannot be ground for rejecting the evidence the Court should sift the evidence to separate falsehood from truth. The Court should give due weight to appreciation of evidence made by trial court, as it has advantage of observing demeanour of witnesses and general tenor of the evidence. The Court should give due weight to appreciation of evidence made by trial court, as it has advantage of observing demeanour of witnesses and general tenor of the evidence. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness and to observe his demeanour, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate Court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. State of U.P. vs. Krishna Master, AIR 2010 SC 3071 = 2010 Cri.L.J. 3889 = (2010)94 AIC 257 = (2010)5 All LJ 423. This precedent applies to the facts of the present case and no different view can be taken then the one taken by the learned trial Judge. 20. We are in agreement with the submissions made by learned APP Ms. Shah. The fact that there were two panchnamas. The decision of the Division Bench of this Court reported in 2009(1) GLH 245 in the case of Dahyabhai Revabhai Chamar & Ors vs. State of Gujarat, cannot be read in isolation and in the said decision, the Division Bench has come to the conclusion that the prosecution has failed to establish the case beyond reasonable doubt. On scrutiny, we have found that the conduct of the witness is not at all doubtful. The presence at the place of occurrence as an eye witness has been proved beyond suspicion. The said decision will not help the present appellant because there is no improper, unreliable or improbable evidence of a witness. All the three witnesses have stood the cross-examination. We do not find any infirmities in the prosecution case and we find that no suspicion arises in the say of the witnesses. The scene of offence is also proved and on appreciating the evidence, no infirmity is found. The minor infirmities are there and they are what we would call is a minor contradiction which do not go to the root of the prosecution version and the same are to be ignored. In this case, there is no lacuna in the prosecution case. The minor infirmities are there and they are what we would call is a minor contradiction which do not go to the root of the prosecution version and the same are to be ignored. In this case, there is no lacuna in the prosecution case. The credibility of the witnesses is established beyond reasonable doubt and the conviction recorded under Section 302 of IPC is just and proper which is based on medical evidence corroborated by ocular version. 21. This appeal is dismissed. The impugned judgment and order of conviction and sentence dated 16.1.2004 passed by the learned Addl. Sessions Judge, Fast Track Court No. 5, Vadodara in Sessions Case No. 180/2003, is hereby confirmed. R & P to be sent back to the trial Court, forthwith. However, life would not be till last breath and his case may be considered by the appropriate authority.