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2014 DIGILAW 39 (GUJ)

Hanif Dosmamad Samtani v. State of Gujarat

2014-01-15

JAYANT PATEL, Z.K.SAIYED

body2014
Judgment Jayant Patel, J.—The present Appeal is directed against the Judgment and the order dated 26.02.2010 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No. 3, Morbi, in sessions Case No. 49 of 2007, whereby the learned Sessions Judge has convicted the appellant accused for the offence under Section 302 of I.P. Code as well as under Section 324 of I.P. Code and sentenced him to suffer life imprisonment with fine of Rs. 2,000/- and further 3 months R.I. for default in payment of fine as well as awarded sentence of 2 years with fine of Rs. 1,000/- and further 2 months for default in payment of fine have been respectively imposed. 2. The short facts of the case are that the complaint was filed by Hajraben, wife of Asimbhai Isabhai (P.W.1) on 15.7.2007 with Morbi Police Station, stating inter-alia that in the evening at about 8.00 O’clock when she was with her father Kasambhai, mother Jaitunben and sister Raziyaben and younger sister, in her Varanda, at that time Hanifbhai, who is father in law of her brother Shermamad, had come and Hanifbhai took out knife and gave two blows on the stomach of her father. When her mother came in between, Dosu caught hold and gave blows to her mother on the back side as well as on thigh with knife and Nurali had given fist blow to her father. When they wanted to separate her mother, her father were shredded with the blood and they were shouting and as a result thereof other persons had also come and all the three accused had run away. The Police had investigated the said complaint and after investigation the charge-sheet was filed. The case was committed to the Sessions Court being Sessions Case No. 49 of 2007. The learned Sessions Judge framed the charge. The prosecution, in order to prove the guilt of the accused, has examined 13 witnesses, the details whereof are available at Para – 9 of the Judgment of the Sessions Judge. The prosecution has also produced 32 documents, the details whereof are at Para – 10 of the Judgment of the learned Sessions Judge. The learned Sessions Judge thereafter recorded the statement of accused under Section 313 of Cr.P.C. wherein the accused have denied the evidence against them. The prosecution has also produced 32 documents, the details whereof are at Para – 10 of the Judgment of the learned Sessions Judge. The learned Sessions Judge thereafter recorded the statement of accused under Section 313 of Cr.P.C. wherein the accused have denied the evidence against them. The learned Sessions Judge thereafter heard both the side, the prosecution as well as defence, and found the appellant – original Accused No. 1 guilty for the offence under Section 302 and 324 of I.P.Code. The learned Sessions Judge found that the case against Accused Nos. 2 & 3 is not proved beyond reasonable doubt and, therefore, the benefit was given. The learned Sessions Judge thereafter heard the defence for sentence and ultimately passed the above referred Judgment and the order whereby the appellant – Accused No. 1 has been convicted for life imprisonment for the offence under Section 302 of I.P. Code and convicted for 2 years R.I. for the offence under Section 324 of I.P.C. but has acquitted him for the offence under Section 135 of the Bombay Police Act. The learned Sessions Judge further directed the sentence to run concurrently. Under the circumstances, the present Appeal before this Court. It may be recorded that the State has not preferred any Appeal against the acquittal of original Accused Nos. 2 and 3. 3. Learned Counsel Mr. Shukla, appearing for the appellant as well as Mr. Jani, learned A.P.P. have taken us through the entire evidence available on the record. We have also considered the Judgment and the reasons recorded by the learned Sessions Judge. We have also heard learned Counsel appearing for the appellant – accused as well as Mr. Jani, learned APP for the State. 4. The evidence shows that Hajraben, complainant (P.W.1) at Exh.8 has supported the case of the prosecution for filing of the complaint and in her deposition she has stood by the case of the prosecution of giving blows by the accused to her father in the stomach and when her mother had intervened, the blows were also given to her on the back and thigh and they were blood shredded. The said witness (P.W.1) is also eye-witness to the incident. The said witness (P.W.1) is also eye-witness to the incident. In her cross examination no material contradiction has come out to the deposition of the witness to her testimony for giving blows with the knife by appellant – Hanif to her father as well as to her mother when she intervened. It is true that she has admitted in her cross-examination that the blow with the iron pipe was given by her father to accused – appellant. However, the defence has not been able to bring out any evidence as to whether such blow was given prior to the blows given by appellant – Hanif to her father or not. In cross-examination of the said witness, she has stated that the complaint was got recorded by her maternal uncle, but, in our view such would not result into disbelieving the eye-witness for the incident of giving blows by the appellant to her father and mother. At the most, the corroboration may be required which shall be considered at a later stage on the aspect of genuineness of the statement made in the complaint to the testimony of other witnesses. In our view, as stated hereinafter, the testimony of this witness for the incident in question of giving blows by appellant accused to her father and mother gets corroboration from the evidence of other witnesses. 5. The prosecution has examined Jetunben (P.W.2), Exh.12, who is injured eye-witness and the mother of the complainant. She has stated in her deposition that Hanif had given blow of knife to her husband and her husband had sustained injury in the stomach and 2 blows were given by the appellant and when she intervened the appellant gave blows to her on back side as well as on left thigh. The knife is identified by her and she has also identified the clothes of the deceased Kasambhai, who had subsequently expired. In her cross examination she has shown innocence about the iron pipe, but in our view such would not result into material contradiction to the say of the injured eye-witness who herself had intervened in the incident and had sustained injury. 6. The prosecution, in support of its case, has examined Dr. Hitesh Keshavlal Rathod (P.W. 3) Exh.13, who has performed Post Mortem of the deceased. The evidence of Dr. 6. The prosecution, in support of its case, has examined Dr. Hitesh Keshavlal Rathod (P.W. 3) Exh.13, who has performed Post Mortem of the deceased. The evidence of Dr. Hitesh Rathod is supporting the case of the prosecution because he has stated that about 15 injuries sustained by the deceased were found on the body at the time when the post mortem was performed. As per the opinion of said Doctor the cause of death is due to bleeding on account of injuries sustained on the stomach. He has also opined that injuries sustained by the deceased were sufficient to cause the death in normal course. He has further stated that Injuries No. 1, 2, 3, 11, 12, 13, 14, 15 could be caused with sharp edged weapon. In the cross examination he has specifically denied that the injuries could be caused if the person has fallen down or is pulled. 7. The prosecution has examined Dr. Omkarnath Desai (P.W. 4), Exh. 16, who has examined deceased Kasambhai when he was brought for treatment. In the medical history, as per testimony of Dr. Omkarnath, when the deceased was brought in the hospital he had stated before the Doctor that the appellant accused had assaulted him with knife. The injuries found by him when he examined the deceased are also supporting the case of the prosecution. The said doctor has examined another witness Jetunben (P.W.2) who is eye-witness to the incident. In the medical history Jetunben has also stated that Hanifbhai, Dosmohmed and others had attacked with the knife and caused injuries. The said doctor had also examined the appellant – accused and he has found that there was injury on the middle of scalp on the head of the appellant – accused. In the medical history, the appellant – accused had stated that the injury was caused by Kasambhai, the deceased, with knife and the pipe. But, in the opinion of the doctor the injury of appellant – accused was simple in nature. The medical certificates for the examination of the deceased, Jetunben and the appellant – accused have also come on record through his evidence. 8. The prosecution has also examined Dr. Dilip Jaysukhlal Parmar (P.W. 6), Ex. 23, who has examined Jetunben, who is injured eye-witness and his evidence also supports the case of the prosecution. 9. The medical certificates for the examination of the deceased, Jetunben and the appellant – accused have also come on record through his evidence. 8. The prosecution has also examined Dr. Dilip Jaysukhlal Parmar (P.W. 6), Ex. 23, who has examined Jetunben, who is injured eye-witness and his evidence also supports the case of the prosecution. 9. The aforesaid shows that the medical evidence is supporting the case of the prosecution for the injuries sustained by the deceased Kasambhai and the injured eye-witness Jetunben (P.W.2). 10. The prosecution, in support of its case, has further examined Shri Kiritsinh Bapalsinh Jhala (P.W. 13), Exh. 38, who is Police Officer and Investigating Officer. He has fully supported the case of the prosecution and in his testimony the inquest panchnama, panchnama for the scene of offence, panchnama of discovery of knife, recovery of clothes and other incriminating material has come on record. As per his testimony the samples were forwarded to the Forensic Science Laboratory (FSL) for scientific examination of incriminating material and also for testing of the blood. The FSL report has also come on record at Exh. 41 to 45. The scientific evidence of FSL shows that the deceased had blood group “O” and Jetunben (PW 2) who is another injured eye-witness is having blood group “B”. On the clothes of the appellant – accused the blood is found of “O” group which is matching with the blood group of the deceased. In the knife there were blood stains, one was on the pointed portion wherein the blood found is of “B” group matching to the blood group of Jetunben, but, in the other portion since the blood was not sufficient the group is not detected. In this manner the scientific evidence supports the case of the prosecution for the use of the weapon and also for the presence of the accused. 11. The aforesaid evidence led by the prosecution as such can be said as fully supporting the case for proving the guilt of the appellant – accused of committing crime for alleged offence of causing death of deceased Kasambhai by giving incriminate blows on the vital parts of the body and also giving blows upon injured eye-witness Jetunben (P.W.2) with the knife. The presence is established. The medical evidence supports the case of the prosecution and scientific evidence also supports the case of the prosecution. 12. The presence is established. The medical evidence supports the case of the prosecution and scientific evidence also supports the case of the prosecution. 12. Learned Counsel appearing for the appellant raised the contention that the complaint is not got recorded by the complainant (P.W.1), but her maternal uncle (Mama) has got the complaint registered. He, therefore, submitted that the such aspects would be fatal to the case of the prosecution and the accused would be entitled to the benefit. 13. We cannot accept the submission for the 2 reasons, one is that she in her testimony has stood by the contents of the complaint and further the statement made in the complaint is getting corroboration from the other evidence led by the prosecution, more particularly, of Jetunben (P.W.2), who is another injured eye-witness and the medical evidence of 3 doctors, examined by the prosecution. Under the circumstances, it cannot be said that such would be fatal to the case of the prosecution. 14. Learned Counsel for the appellant next contended that the injury was caused by deceased to the appellant – accused with pipe though Jetunben (P.W.2) has not supported the defence, but the complainant (P.W.1) has admitted the same and, therefore, it was submitted that the Court may consider the aspect of no intention on the part of the appellant – accused to cause death and the case may be considered as falling under Part-I or II of Section 304 of I.P. Code and the sentence be reduced accordingly. 15. It is true that in the testimony of complainant Hajraben (P.W.1) she has admitted in the cross examination that the blow of pipe was given by Kasambhai to the appellant – accused, but it does not transpire as to whether the blow was given by the deceased prior to the sustaining injury by the deceased with knife. Further, the evidence of other witnesses, more particularly, injured eye-witness Jetunben (P.W.2) shows that incriminate blows were given by the appellant – accused to the deceased Kasambhai. The circumstances of visit by the appellant – accused with the knife to the place of the deceased and giving incriminate blows of knife to the deceased show that there was intention to cause death of Kasambhai. Further, in the statement under Section 313 Cr.P.C. the said appellant – accused has not admitted the receipt of such blows by him. The circumstances of visit by the appellant – accused with the knife to the place of the deceased and giving incriminate blows of knife to the deceased show that there was intention to cause death of Kasambhai. Further, in the statement under Section 313 Cr.P.C. the said appellant – accused has not admitted the receipt of such blows by him. Not only that, but no suggestion is put-forward by the defence in the cross examination of any of the witness that there was scuffle or other dispute prior to the incident nor any suggestion is put-forward by the defence to any of the witnesses that the accused had circumstances for self defence or that there was any instigation by the deceased to the accused. Under the circumstances, we cannot accept the contention that the case would fall under Part – I or II of Section 304 I.P. Code and not under Section 302 I.P. Code as found by the learned Sessions Judge. 16. In view of the aforesaid observation and discussion we find that the ultimate decision taken by the learned Sessions Judge for holding the appellant – accused guilty for the offence under Section 302 and under Section 324 of I.P. Code cannot be said to be erroneous. Hence, the conviction and the sentence imposed by the learned Sessions Judge upon the appellant – accused was for no interference and, therefore, the same is confirmed. 17. The appeal, being meritless, is dismissed. R & P to be sent back to the trial Court. The bail bond, if any, shall stand cancelled.