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2013 DIGILAW 566 (GUJ)

Makhmalsinh v. State of Gujarat

2013-09-17

K.J.THAKER, K.S.JHAVERI

body2013
JUDGMENT K. S. JHAVERI, J. Against the judgment and order rendered by the learned Addl. Sessions Judge, Fast Track Court No.1, Mehsana in Sessions Case No.62 of 2004 dated 30.10.2004 whereby, the appellant, original accused, has been convicted for the offence u/S.302 of Indian Penal Code (for short, the IPC) and Section 135 of Bombay Police Act (for short, the BP Act), this appeal has been preferred. For conviction u/S.302, IPC, the appellant has been sentenced to undergo imprisonment for life and fine of Rs.10,000/- and in default, imprisonment for a further period of one year and for conviction u/S.135, BP Act, he has been sentenced to undergo simple imprisonment for three months and fine of Rs.100/- and in case of default, simple imprisonment for a further period of seven days. 2. The prosecution case, in brief, is that on 20.12.2003 at around 08.30 hrs., the complainant, Rajnikanth alias Rasikbhai Viram-bhai Patel, left by foot for the bus-stand for going to Unjha. While he was waiting at the bus-stand along with other commuters, including one Padhiyar Jitubhai Premjibhai, who was known to him, he noticed that a man, aged somewhere between 3035 years, hit said Padhiyar Jitubhai Premjibhai on the head with a cement brick. The assailant continued the assault by inflicting another 4-5 blows. In the said incident, injured Padhiyar Jitubhai sustained severe injuries and died on the spot. On noticing the brutal assault, the commuters and other passers-by encircled the appellant-accused and assaulted him black and blue. Police was called and the injured appellant was apprehended. 2.1 A complaint in connection with the above incident was lodged before Unjha Police Station vide I-C. R. No.397/2003. Necessary investigation was carried and ultimately, charge-sheet came to be filed against the appellant before the concerned Magisterial Court. But, since the case was sessions triable, it was committed to the Sessions Court, Mehsana for adjudication on merits. 2.2 During the trial, the prosecution has examined twelve witnesses, viz. PW1 Dr. Kamleshbhai Pitambarbhai Itadariya at Exhibit 7, PW2 Rajnikanth alias Rasikbhai Virambhai at Exhibit-10, PW3 Jesinghbhai Haribhai at Exhibit-12, PW4 Gambhirsinh Dalpatsinh Jhala at Exhibit-13, PW5 Girishkumar Danabhai Patel at Exhibit-14, PW6 Ramaji Dalaji at Exhibit-16, PW7 Sureshbhai Ganeshdas Patel at Exhibit-18, PW8 Rameshbhai Bhagabhai at Exhibit-20, PW9 Ganpatsinh Kesarisinh Vaghela at Exhibit-26, PW10 Dr. Rajendrakumar B. Joshi at Exhibit-26, PW11 Kantibhai Nathubhai at Exhibit-36 and PW12 Amarsinh Bhikhusinh Bhimavat at Exhibit-38. Rajendrakumar B. Joshi at Exhibit-26, PW11 Kantibhai Nathubhai at Exhibit-36 and PW12 Amarsinh Bhikhusinh Bhimavat at Exhibit-38. 2.3 The prosecution had collected and placed reliance upon several documentary evidence, particularly, the complaint at Exhibit-11, panchnama of scene of offence at Exhibit-15, inquest panchnama at Exhibit-17, panchnama regarding physical condition of accused and seizure of clothes worn by accused at the relevant time at Exhibit-21, Post-mortem report at Exhibit-8, Medical Certificate of deceased at Exhibit-9, Notification of DM at Exhibit-40, FSL Report at Exhibit-31 and Serological Report at Exhibit-32. 2.4 At the end of trial, the Court below recorded further statement of accused u/S. 313, Cr.P.C. and ultimately, passed the impugned judgment and order, which has led to the filing of present appeal. 3. Mr. CB Dastoor learned counsel for the appellant submitted that the Court below has committed serious error in law and on facts in convicting the appellant for the alleged offence. He submitted that the appellant had sustained bodily injuries in the alleged incident but, the prosecution has not been able to explain the said aspect. It is not established from the record that deceased died at the hands of the appellant. Further, there are omissions and contradictions in the testimony of witnesses, which renders the ocular evidence led by the prosecution shaky and unreliable. He, therefore, submitted that the impugned judgment of conviction deserves to be quashed and set aside and the appellant deserves to be acquitted of the charges levelled against him. 3.1 In the alternative, learned counsel Mr. Dastoor submitted that conviction of the appellant u/S.302 IPC could not be sustained under any circumstances considering the fact that the alleged incident came to be committed in the spur of moment. 3.2 Learned counsel submitted that the appellant is a vagabond and had committed the act out of severe depression. There was no intention or motive on the part of the appellant to commit the crime and that the offence was committed since the deceased was found to be damaging public property at the relevant point of time. Hence, the conviction of the appellant u/S.302, IPC is erroneous and it deserves to be altered to Section 304, Part II IPC. 4. Ms. Hence, the conviction of the appellant u/S.302, IPC is erroneous and it deserves to be altered to Section 304, Part II IPC. 4. Ms. CM Shah learned APP supported the impugned judgment and submitted that though there may be minor discrepancies in the ocular evidence on record but, it proves the presence and involvement of the appellant in the crime. She submitted that the Court below has appreciated the evidence on record in its proper perspective and has rightly recorded the conclusion regarding guilt of the appellant u/S.302, IPC. She, therefore, submitted that the present appeal deserves to be rejected. 5. We have heard learned counsel for the respective parties and have perused the oral as well as documentary evidence on record. We have also gone through the impugned judgment and order rendered by the Court below. The prosecution has placed heavy reliance upon the testimony of complainant, Rajnikant alias Rasikbhai Virambhai (PW2), who has been cited as an eye-witness. From his testimony, it appears that on the date of incident, while the complainant was waiting at the bus-stand along with other commuters, the appellant inflicted several blows on the head of deceased with a cement brick. The complainant has identified the appellant as the assailant before the Court below and has narrated similar facts in his complaint (Exhibit-11).The complainant has been cross-examined at length by the other side, however, nothing incriminating has come out, which may render his evidence unreliable or non-trustworthy. 6. It is true that the complainant had not met the appellant prior to the incident in question and that he had noticed him, for the first time, only when the appellant had carried out the brutal assault on the deceased. But, the fact that the appellant had hit several blows on the head of deceased with a cement brick and that to in broad daylight gave reasonable opportunity to the complainant and other commuters to identify the assailant. It is not even the case of the defence that the assailant was masked at the relevant point of time. 7. Another notable event is that the appellant was beaten up black and blue by the commuters and passers-by no soon as the appellant stopped his brutal assault on the deceased. The said fact is evident from the testimony of Dr. 7. Another notable event is that the appellant was beaten up black and blue by the commuters and passers-by no soon as the appellant stopped his brutal assault on the deceased. The said fact is evident from the testimony of Dr. Rajendrakumar B. Joshi (PW-10), who had given necessary treatment to the appellant while he was brought at General Hospital, Mehsana in the evening. This witness has issued the medical Certificate (Exhibit-35) regarding the injuries sustained by the appellant. In the history given before the Doctor (PW-10), the appellant had stated that he had sustained the injuries on account of assault by stones. 8. Here, it is pertinent to note that the incident in question took place on 20.12.2003 at around 09.30 hrs. and that the appellant was taken into custody by the police in the morning hours itself. But, having been beaten up black and blue by the commuters and passers-by, the police took the appellant to Civil Hospital, Mehsana where he took treatment until 25.12.2003, on which date, he was formally arrested by the police. The said fact is established from the testimony of Amarsinh Bhikusinh Bhimavat (PW-12), Ganpatsinh Kesrisinh Vaghela (PW-9) and arrest panchnama (Exhibit-27). 9. Having examined the ocular evidence on record, we find that the testimony of complainant gets corroboration from the evidence of Jesangbhai Haribhai (PW-3) and Gambhirsinh Dalpatsinh Jhala (PW-4). Both PW-3 and PW-4 are also eye-witness to the incident in question. They have narrated similar facts, as has been deposed by the complainant (PW-2). 10. It is true that there are minor discrepancies in the testimony of prosecution witnesses. However, in our considered opinion, such minor discrepancies would not have much bearing to the prosecution case in view of the fact that presence and involvement of the appellant in the incident is established beyond reasonable doubt. The fact that the appellant was beaten up black and blue and was pelted stones at the scene of offence itself by the commuters and subsequently, had to be admitted at Civil Hospital, Mehsana for necessary treatment proves the involvement of the appellant in the crime in question. Thus, though there may be minor discrepancies in the testimonies of witnesses but, the presence, role and involvement of the appellant has been successfully proved by the prosecution. Thus, though there may be minor discrepancies in the testimonies of witnesses but, the presence, role and involvement of the appellant has been successfully proved by the prosecution. The incident in question took place in broad daylight in a public place and therefore, there does not arise any question of misidentification, particularly, when the witnesses had the occasion to witness the assault on deceased at the hands of the appellant and the subsequent event of mob fury. 11. Considering the ocular evidence on record, there does not remain any doubts in our mind regarding the fact that the deceased died a homicidal death. The medical evidence on record in the form of testimony of Dr. Kamleshbhai Pitambarbhai Itadariya (PW-1) and the Post-mortem report (Exhibit-8) prove the same beyond reasonable doubt. In column No.17 of the post-mortem report, the external injuries found on the dead body have been narrated in detail. The Doctor has also opined that the injuries sustained by deceased were possible with the muddamal weapon. Thus, the overt act of the appellant gets corroboration from the medical evidence on record. 12. Insofar as the alternate submission advanced by learned counsel for the appellant regarding conviction u/S.304, IPC is concerned, we find substance in it. The ocular version on record shows that the incident in question occurred at a public place being a bus-stand in front of several commuters. The appellant, without any provocation by the deceased, assaulted him by using a cement brick. The appellant is a native of Madhya Pradesh State and the record shows that he was not known to either the deceased or any of the witnesses. Considering the background facts and the medical evidence on record, we find that there is no mens rea behind the commission of the offence in question. The act appears to have been committed out of deep frustration on being a vagabond. 13. Looking to the mental and economic condition of the appellant, we are of the opinion that conviction of the appellant u/S.302, IPC is improper and inappropriate and it deserves to be altered to one u/S.304 Part I, IPC. 14. Insofar as the conviction of appellant u/S.135, BP Act is concerned, we find that no breach of the Notification of District Magistrate had taken place. Under such circumstances, the conviction u/S.135 BP, Act is required to be quashed and set aside. 14. Insofar as the conviction of appellant u/S.135, BP Act is concerned, we find that no breach of the Notification of District Magistrate had taken place. Under such circumstances, the conviction u/S.135 BP, Act is required to be quashed and set aside. Hence, the impugned judgment and order is required to be modified accordingly. 15. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and order passed in Sessions Case No.62/2004 dated 30.10.2004 is modified to the extent that conviction of the appellant, original accused, u/S. 302, IPC is altered to one punishable u/S.304 Part-I, IPC; whereas, the conviction u/S.135 of Bombay Police Act and sentence imposed thereon, is quashed and set aside. For conviction u/S.304 Part-I, IPC, the appellant is sentenced to undergo imprisonment for TEN YEARS and fine of Rs.10,000/- and the default sentence in case of non-payment of fine is fixed at one month. Rest of the impugned judgment remains unaltered. The appellant shall be given the benefit of set-off. The appellant, original accused, is on bail and therefore, his bail bonds stand cancelled. He is directed to surrender to custody within a period of Eight Weeks from today failing which the investigating agency shall take necessary action against him in accordance with law. The appellant may be granted the benefit of remission, if his case is found to be suitable by the State at the appropriate time. Appeal partly allowed.