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2013 DIGILAW 434 (GUJ)

BIPINBHAI RAMJIBHAI VEGAD v. STATE OF GUJARAT

2013-07-24

K.J.THAKER, K.S.JHAVERI

body2013
JUDGMENT : K.J.THAKER, J. 1. Since, both the appeals arise out of the common judgment and order of the trial Court, Dated : 11.07.2006, they are heard together and disposed of by this common judgment. 2. Criminal Appeal No. 1738 of 2006 is preferred by the original accused No.5, challenging his conviction recorded by the trial Court under Section 302 of the Indian Penal Code and imposing punishment of imprisonment for life and to pay fine of Rs.5,000/-and in default to undergo imprisonment for further five months as well as his conviction under Section 135 of the Bombay Police Act and imposing punishment of imprisonment for six months, whereas, Criminal Appeal No. 2079 of 2006 is filed by the State, challenging the acquittal of original accused Nos. 1 and 3, vide judgment and order rendered by the Ld. Presiding Officer, Fast Track Court No. 7, Surat, in Sessions Case No. 10 of 2004. 3. For the sake of brevity, all the accused shall be mentioned with their original numbers, respectively. 4. The brief facts leading to the filing of the present appeals are as under; 5. The complainant, Valjibhai Ramjibhai Siyora, was doing the business of carting of diamonds. Since, at the relevant point of time, the wife of the complainant had gone to her parental home for the purpose of delivery, the complainant used to stay at the house of his cousin, namely Bholabhai. In the complainant, it is that, earlier, the original accused No.5 used to come to the house of Bholabhai for dining. Once, accused No.5 teased the daughter of Bholabhai and on account of that Bholabhai had slapped accused No.5 and being enraged by the same, accused No.5 had threatened Bholabhai that “I shall not leave you and shall finish you at any time.” The accused No.5, then, stopped going to house of Bholabhai for dining purpose. The complainant, then, proceeded to narrate the alleged incident that took place on 03.10.2003, stating that after taking dinner, everybody went to sleep over the terrace of their house and in the morning at about 04:30 a.m., the sister-in-law of the complainant, i.e. the wife of Bholabhai, raised alarm that someone had attacked Bholabhai, and hence, the complainant, immediately went down and he found that blood was coming out from the backside of the head of his cousin. They, then, immediately took the injured to the hospital in an auto-rickshaw and on the way to hospital, the injured told the complainant and others that Bipinbhai, the original accused No.5, had caused injuries to him and had run away. When, the injured was taken to the hospital, he was declared dead. Hence, the complainant lodged the complaint. 6. On registration of the offence, police carried out the investigation and on finding prima facie evidence, filed charge-sheet against the accused persons. Here, it is pertinent to note that, at the relevant point of time, original accused No.2 was a minor, and hence, his case was separated by the trial Court from the original accused Nos. 1 and 3 to 5. At the time of trial, the accused Nos. 1 and 3 to 5 did not plead guilty and claimed to be tried, and hence, they were tried for the alleged offence and on completion of the trial, the trial Court passed the judgment and order, as referred to herein above. Hence, the present appeals. 7. To establish its case beyond reasonable doubt, the prosecution examined the following witnesses; PROSECUTION WITNESS NO. NAME OF THE WITNESS EXHIBIT NO. 1 Dr. Lavlesh Shardaprasad Sinha 14 2 Chhaganbhai Karsandas Mistri 20 3 Bharatbhai Laxmanbhai Aahir 25 4 Chhaganbhai Kapursinh DArbar 26 5 Nagjibhai Karsanbhai Makwana 28 6 Valjibhai Ramjibhai Siroya 36 7 Gangjibhai Ramjibhai Siroya 38 8 Manubhai Bhimabhai Kavad 39 9 Sangitaben Dulabhai 42 10 Rohitbhai Agarsang Brahmbhatt 46 11 Natvarbhai Mansikhbhai Gaur 48 12 Mansukhbhai Govindbhai 52 13 Dalubhai Valkubhai 53 14 Govindbhai Visandbhai Chaudhary 56 8. Over and above the aforesaid oral evidences, the prosecutionalso placed reliance on the following documentary evidences; SR. NO. PARTICULARS OF THE DOCUMENT EXHIBIT NO. Over and above the aforesaid oral evidences, the prosecutionalso placed reliance on the following documentary evidences; SR. NO. PARTICULARS OF THE DOCUMENT EXHIBIT NO. 1 Memorandum for registering the offence 57 2 Original Complaint 37 3 Inquest Panchnama 11 4 Panchnama of Search of the house of the accused 21 5 Panchnama of search of the house of the complainant 22 6 Panchnama of shirt of the complainant 27 7 Panchnama of the clothes found on the dead body 12 8 Cause of Death Certificate 17 9 Arrest Panchnama of the Accused 13 10 P. M. Note 16 11 The extract of Telephone Message Book No. 538/ 2003 of Varachha Police Station 51 12 Panchnama of the clothes of the accused 36 13 Arrest panchnama of the accused, Bipin 54 14 Panchnama of discovery of knife seized at the instance of accused Bipin 50 15 Panchnama of seizure of the clothes put on by the accused Bipin at the time of committing the offence 19 16 Notification of Commissioner of Police Prohibiting carrying of weapons 63 17 Memorandum written for carrying out inspection of the place of offence 58 18 Report sent to the FSL, Falsawadi 59 19 Receipt issued by FSL for receiving back the muddamal 60 20 FSL report 61 21 Report of Serology 62 9. Firstly, we shall deal with the acquittal appeal filed by the State, since, looking to the evidence, which has come on record, we are unable to concur ourselves with the view taken by the learned trial Judge and the reasons for the same are as under; (1) The presence of both the accused, i.e. accused Nos. 1 and 3, stands proved beyond reasonable doubt, (2) The offence took place at the house of the accused, (3) The place of incident has been identified by the panchas and they have supported the case of the prosecution; 10. For appreciating the aforesaid aspect, here, it would be relevant to refer to the evidence of the following witnesses; 11. Chhaganbhai Karsandas Mistri, who was a witness to the panchnama of the search of the house of the accused No.3, was examined at Exhibit-20. For appreciating the aforesaid aspect, here, it would be relevant to refer to the evidence of the following witnesses; 11. Chhaganbhai Karsandas Mistri, who was a witness to the panchnama of the search of the house of the accused No.3, was examined at Exhibit-20. This witness, in his examination-in-chief, stated that when they entered into the house of the accused they found that there were marks of blood on the walls as well as on the floor, which is stated to have been cleaned by accused No.4 with the help of socks, which was of blue colour. When this witness was shown the said socks before the Court, he identified the same as the one, which was recovered from the house of accused No.3. This witness, then, further stated that as to how the sample of blood was taken from the place of offence with the help of a piece of cotton and as to how the shoes and the love letters found from the suitcase of the accused etc. were seized. This witness also supported the case of the prosecution on the aspect of seizure of iron angle as well as the seizure of the clothes of the deceased, which were produced by one Bharatbhai. This witness, then, identified the aforesaid muddamal articles as well as his signatures on the slips, which were placed with the said articles. In his cross-examination, this witness stated that prior to the recording of panchnama, he had never gone either to the house of the accused or to that of the deceased. Meaning thereby, this witness is independent and is not related either to the prosecution or to the defence. This witness denied the suggestions that he had signed a ready-made panchnama and that no procedure, as stated above by him, was carried out in his presence. 12. Manubhai Bhimabhai Kavad, P.W.-8, who was an eye-witness of the incident, was examined at Exhibit-39. This witness denied the suggestions that he had signed a ready-made panchnama and that no procedure, as stated above by him, was carried out in his presence. 12. Manubhai Bhimabhai Kavad, P.W.-8, who was an eye-witness of the incident, was examined at Exhibit-39. This witness, in his examination-in- chief, has categorically narrated the entire incident, as to how he found the accused No.5 and the niece of the deceased, namely Sangita, in the early morning, in front of the house of the accused and as to what was the said witness told by the accused as well as Sangita and when this witness went to the room of the accused along with the deceased Bholabhai, how accused No.5 attempted to inflict injury on the deceased with the help of an iron angle and as to how this witness snatched away the same from the hands of accused No.5 and as to how the deceased fell down, and then, how accused Nos. 1 to 3 mounted over the deceased and accused No.5 inflicted knife blows on the deceased. This witness, then, stated that thereafter he informed P.W.-3, who brought the deceased down from the house of the accused and took him to the hospital. This witness, then, identified the said angle and knife, as muddamal Article Nos. 10 and 20, respectively. This witness was thoroughly cross-examined by the prosecution. In his cross-examination this witness denied the suggestions that he had not seen the alleged offence being committed and that he had not gone to the house of the accused along with the deceased, Bholabhai. P.W.-8 is an independent witness. The version of offence given by him is simple, clear and without any exaggeration, and hence, the same inspires confidence. 13. The evidence of P.W.-8 gets support from the evidence of Bharatbhai Laxmanbhai Aahir, P.W.- 3, who was examined at Exhibit-25. This witness, in his examination-in-chief, stated that when he went to fetch the deceased, he found that Kanu, Bipin, Shailesh, Arvind and Mukta, i.e. accused Nos. 1 to 5, were present there. In his cross-examination, this witness denied the suggestions that he came to know about the incident subsequently and was wrongly deposing, since, he happened to be the nephew of the deceased. Hence, the evidence of this witness also supports the case of the prosecution with regard to the presence of accused Nos. 1 to 5, were present there. In his cross-examination, this witness denied the suggestions that he came to know about the incident subsequently and was wrongly deposing, since, he happened to be the nephew of the deceased. Hence, the evidence of this witness also supports the case of the prosecution with regard to the presence of accused Nos. 1 to 5, at the place of offence. 14. The case of the prosecution also gets supports from the evidence of P.W.-6 and P.W.-7, who on hearing the shouts of their sister-in-law, i.e. the wife of the deceased, Chaturaben, got awoke and found the deceased in injured condition, and then, these witnesses had accompanied the deceased to the hospital, on the way to which the deceased had given the names of his assailants to them. 15. Sangitaben, P.W.-9, who is at the center of the entire incident, was examined at Exhibit-42. This witness, in her examination-in-chief, narrated the entire incident, reiterating what was already stated by P.W.-8. This witness, then, further stated that when the door was opened, a scuffle took place and the accused Nos. 1 to 3 and 5 caught hold of her uncle, and then, accused, No.5, firstly, tried to inflict blow with the iron angle on the deceased, which was snatched away by P.W.-8. The accused No.5, then, pulled out a knife and inflicted blows on the deceased. This witness was also exhaustively cross-examined by the defence, but, they failed to controvert her evidence with regard to the manner in which the alleged incident occurred as well as the role played by the accused persons. 16. The case of the prosecution also gets support from the evidence of panch witnesses, viz. (1) P.W.-4, who was a witness to the panchnama of seizure of the shirt of the complainant (Exhibit-27); (2) P.W.-5, who was witness to the panchnama of seizure of the clothes put on by the accused Nos. 1 to 3, at the time of the incident (Exhibit-35); (3) P.W.-12, who was witness to the panchnama of seizure of the clothes put on by accused No.5 at the time of the incident (Exhibit-49); who have fully supported the panchnamas for its procedure as well as the contents mentioned, therein. The report of FSL also supports the case of the prosecution, wherein, it was stated that the presence of blood of group ‘B’ was found on Specimen Nos. The report of FSL also supports the case of the prosecution, wherein, it was stated that the presence of blood of group ‘B’ was found on Specimen Nos. 1 (Socks), 4 and 5 (black shoes), 6 and 7 (slippers), 9 (knife) etc., which was the blood group of the deceased. This additional facts also points towards the guilt of the accused. 17. Thus, having discussed the oral as well as the documentary evidence, which has come on the record of the case, we are of the opinion that the prosecution has succeeded in establishing its case beyond reasonable doubt against accused Nos. 1, 3 and 5. Under the circumstances, we are of the opinion that the learned trial Judge was not justified in recording the acquittal of accused Nos. 1 and 3, and hence, the Criminal Appeal No.2079 of 2006, filed by the state requires to be allowed in part. 18. Insofar as the Criminal Appeal No. 1738 of 2006 filed by the original accused No.5 is concerned, the presence and participation of the original accused No.5 in the alleged offence stands proved beyond reasonable doubt by the evidence of P.W.-8 and P.W-9, who were present at the place of offence, while the alleged incident took place. The defence has not been able to controvert the evidence of these witnesses. Over and above that all the panch witnesses, as stated above, have supported the respective panchnamas. Thus, the guilt of the accused stands proved by the direct oral evidence of P.W.-8 and P.W.-9, who are eye witnesses, as well as by the documentary evidences. From the evidence of P.W.-1, who had performed P.M. on the body of the deceased and had noticed as many as six external injuries and three internal injuries, it becomes clear that this is a case of homicidal death. We are, therefore, of the opinion that the learned Judge rightly held accused No. 5 guilty for the act of causing death of Bholabhai, but, now what we have to determine is whether the learned Judge was justified in recording the conviction of accused No.5 under Section 302 of the Indian Penal Code or not. 19. In above view of the matter, here, it would be relevant to refer to a decision of the Hon’ble Apex Court in the case of “ANKUSH SHIVAJI GAIKWAD VS. STATE OF MAHARASHTRA”, 2013 (6) SCALE 778. 19. In above view of the matter, here, it would be relevant to refer to a decision of the Hon’ble Apex Court in the case of “ANKUSH SHIVAJI GAIKWAD VS. STATE OF MAHARASHTRA”, 2013 (6) SCALE 778. In that case, while the original accused Nos. 1 to 3 were passing through the filed of the deceased, wherein the crop of sugar-cane was taken by the deceased, the dog of the deceased started barking at them and being aggrieved thereby original accused No.1 hit the dog with an iron pipe and when the deceased objected to the same, there was exchange of hot words, which resulted into a scuffle, during which original accused Nos. 2 and 3 delivered kick and fist blows to the deceased, whereas, accused No.1 inflicted blow of iron pipe on the head of the deceased, on account of which the deceased expired, subsequently. The trial Court as well as the High Court held the accused No.1 guilty for the offence of murder and convicted him under Section 302. Being aggrieved there by the accused No.1 approached the Hon’ble Apex Court and the Apex Court, taking into consideration the facts and circumstances of the case that there was a sudden quarrel, modified the conviction of the accused No.1 from Section 302 to Section 304 (II) of the Indian Penal Code. 20. In the case on hand also, from the evidence of P.W.-6, P.W.-7 and P.W.-8, it becomes clear that a few months prior to the alleged incident there was a quarrel between the deceased and accused No.5 in connection with P.W.-9, Sangita. It has come on record, by way of seizure of love letters from the house of accused as well as from the oral evidence of P.W.-9 that there was an affair between her and the accused No.5. From the evidence of P.W.-8 and P.W.-9, it has also come on record that the alleged incident took place, when, on the date of the alleged incident, P.W.-9 went to meet the accused No.5 and they were spotted by P.W.-8, who in turn called the deceased, Bholabhai, and accompanied the deceased upto the house of the accused, where, after a brief scuffle the alleged incident took place. Thus, taking into consideration, the manner in which the alleged offence took place, though, accused Nos. Thus, taking into consideration, the manner in which the alleged offence took place, though, accused Nos. 1 to 3 and 5 can be said to be guilty of act of causing the death of the deceased, Bholabhai, it can not be said that there was any premeditation or intention on the part of the accused to cause death of Bholabhai. 21. There is a distinction in imposing the punishment in case of culpable homicide not amounting to murder and in the case on hand, as noted by us herein above, the prosecution is unable to show that there was premeditation or intention of committing murder on the part of the accused persons. As we held that there was no premeditation or intention on the part of the accused to cause the death of the deceased, since, there is history of past dispute prior to the alleged incident, the ends of the justice would be met if the original accused Nos. 1 to 3 are convicted for the offence punishable under Section 304 (Part-I) of the Indian Penal Code and are sentenced to undergo imprisonment for seven years and to pay fine of Rs.1,000/-and in default to undergo imprisonment for five months, whereas, looking to the role played by the original accused No. 5, though, his conviction is modified from Section 302, as recorded by the learned trial Judge, to Section 304(Part-I) of the Indian Penal Code, the ends of justice would be met, if, he is 22. For the reasons recorded herein above, following order is passed; (1) In the result, Criminal Appeal No. 1738 of 2006 is partly allowed and the judgment and order of the trial Court, Dated : 11.07.2006, convicting the original accused No.5 under Section 302 of the Indian Penal Code and imposing sentence of imprisonment for life and to pay fine of Rs.5,000/-is MODIFIED and the original accused No.1 is convicted under Section 304(PART-I) of the Indian Penal Code and is sentenced to undergo imprisonment for TEN YEARS and to pay a fine of Rs.1000/- and in case of default to undergo imprisonment for a period of five months. However, in view of the ratio laid down by the Hon’ble Apex Court in the case of “ANKUSH SHIVAJI GAIKWAD” (Supra) and in view of the provisions of Section 357 of the Code of Criminal Procedure, if, the original accused No.5 pays a compensation of Rs.1,50,000/-, within a period of TWELVE WEEKS from today, then, the period of imprisonment already UNDERGONE by him till date will be treated as sufficient and he will be released from the custody forthwith, if, he is not required in connection with any other case and in case of default to undergo imprisonment for a period of FIVE years. For the purpose of enabling the original accused No.5 to make arrangements for payment of the amount of fine, he shall be released from the custody on TEMPORARY BAIL for a period of TWELVE weeks from the date of his release, on his executing personal bond in the sum of Rs.10,000/-before the concerned jail authorities and, as stated above, in case of his failure to pay the fine within the aforesaid period, he will surrender before the jail authority or it will be open to the jail authorities to take appropriate steps to secure his custody. (2) Criminal Appeal No. 2079 of 2006 is also allowed in part and the judgment and order of the trial Court, Dated : 11.07.2006, is QUASHED and set aside to the extent it records the acquittal of the sentenced to undergo imprisonment for ten years and to pay fine of Rs.1,000/- in place of Rs.5,000/-. original accused Nos. 1 and 3 and they are also convicted for the offence punishable under under Section 304(PART-I) of the Indian Penal Code, but, looking to the role played by them, they are sentenced to undergo imprisonment for a period of SEVEN YEARS and to pay fine of Rs.1,000/-by each of them and in case of default to undergo imprisonment for a period of five months. However, in view of the ratio laid down by the Hon’ble Apex Court in the case of “ANKUSH SHIVAJI GAIKWAD” (Supra) and in view of the provisions of Section 357 of the Code of Criminal Procedure, if, the original accused Nos.1 and 3, EACH, pays a compensation of Rs.75,000/-, within a period of TWELVE WEEKS from today, then, the period of imprisonment already UNDERGONE by them till date will be treated as sufficient and they will be released from the custody forthwith, if, they are not required in connection with any other case and in case of default to undergo imprisonment for a period of FIVE years. In case of their failure to pay the amount of fine within the aforesaid period, they will surrender before the jail authority or it will be open to the jail authorities to take appropriate steps to secure their custody. (3) Out of the amount of fine, if any, received from the original accused Nos. 1, 3 and 5, an amount of Rs.1,000/-will be deducted and paid to the State and the remaining amount will be paid to the wife of the deceased, namely Chaturaben Bholabhai Siyora, Address : 221, 1st Floor, Jagdishnagar Society, Vibhag – 1, Nr. Varsha Society, Varachha, Surat, Dist. : Surat, or to her legal heirs by way of an account payee cheque. (4) Rest of the judgment and order of the trial Court stands confirmed. A writ of this judgment and order be sent to the concerned jail, forthwith.