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2015 DIGILAW 834 (GUJ)

Rafiqbhai Mohammadbhai Belim v. State of Gujarat

2015-08-27

K.J.THAKER, M.R.SHAH

body2015
Judgment M.R. Shah, J. 1. Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No. 5, Bhavnagar dated 16.06.2006 passed in Sessions Case No. 134 of 1998, by which the learned Sessions Court has convicted the accused for the offences punishable under section 302 of the Indian Penal Code read with Section 135 of the Bombay Police Act and sentenced the accused to undergo life imprisonment and fine of Rs. 10,000/-, in default, rigorous imprisonment for 2 years and imprisonment of three months and fine of Rs. 500/-, in default, rigorous imprisonment for 15 days, and hence, the appellant - original accused herein has preferred the present Criminal Appeal. 2. That the deceased Bhavnaben who subsequently succumbed to the injuries in the hospital lodged a complaint which was registered as C.R. No. 164/98 with 'A' Division Police Station, Bhavnagar against the accused for the offences punishable under Section 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act alleging inter-alia that the accused herein - Rafiq gave a knife blow on the thigh and she sustained serious injuries on the thigh. It was alleged that as the betrothal of the accused with the near relative of the complainant was broken and therefore, with a view to take revenge, while she was in the market alongwith others, the accused all of a sudden came with a knife and gave a knife blow on her thigh. The Investigating Officer - ASI after recording the statement of the deceased (when she was alive) and registering her statement as a First Information Report, started the investigation. He recorded the statement of other witnesses and he prepared the panchnama of the place of incident. At this stage, it is required to be noted that initially the First Information Report was registered against the accused which was for the offences punishable under Section 307 of the Indian Penal Code. However, subsequently the victim succumbed to the injuries and died in the hospital, and hence the offences punishable under Section 302 of the Indian Penal Code came to be added. It is also required to be noted at this stage that as such, the victim (deceased) succumbed to the injuries and died within two hours only. However, subsequently the victim succumbed to the injuries and died in the hospital, and hence the offences punishable under Section 302 of the Indian Penal Code came to be added. It is also required to be noted at this stage that as such, the victim (deceased) succumbed to the injuries and died within two hours only. That after conclusion of the investigation, the investigating officer filed the chargesheet against the accused for the offences punishable under Section 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Bhavnagar which was registered as Sessions Case No. 34/1998. That the learned Sessions Court framed the charge against the accused at Exhibit 16 for the offences punishable under Section 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act. After having sustained the injuries by knife, the original complainant (the deceased) Bhavnaben succumbed to the injuries. The accused pleaded not guilty and claimed to be tried for the above offences. 3. To prove the case against the accused, the prosecution examined the following witnesses :- Particulars Exhibit PW1 Ranjitsingh Nanabha 36 PW2 Jebunben Bhikhubhai 37 PW3 Zeenatben Bhikhubhai 38 PW4 Zeenatben Ahmedbhai 39 PW5 Dr. Kantibhai Jivrajbhai Nandoliya 40 PW6 Allauddinbhai Yakubbhai 43 PW7 Mehboobkhan Gulabkhan Baloch 45 PW8 Abdulbhai Hajibhai 46 PW9 Hareshbhai Maganbhai Patel 50 PW10 Sikandarbhai Karimbhai 53 PW11 Dr. Kantibhai Jivrajbhai Nandoliya 40 PW6 Allauddinbhai Yakubbhai 43 PW7 Mehboobkhan Gulabkhan Baloch 45 PW8 Abdulbhai Hajibhai 46 PW9 Hareshbhai Maganbhai Patel 50 PW10 Sikandarbhai Karimbhai 53 PW11 Dr. Jagsharan Ramdev Shrivastav 55 PW12 Prithvirajsingh Mahipatsingh Sarvaiya 62 The prosecution also produced on record the following documentary evidences :- Particulars Exhibit Inquest Panchnama 21 Dying Declaration 22 Report of Medical officer for P.M. 23 Yadi for addition of Section 302 to learned Judicial Magistrate First Class, Bhavnagar 24 Panchnama of Muddamal cloth 25 Yadi for map 26 Note for sending Muddamal to FSL, Junagadh 27 Receipt of Muddamal of FSL, Junagadh 28 Abstract of Entry 29 Abstract of learned Magistrate, Bhavnagar 30 FSL Report of Junagadh 31 Serological Report of FSL, Junagadh 32 Post Mortem Note 41 Panchnama of scene of offence 44 Panchnama of blood sample of accused 47 Complaint of the complainant 51 Yadi of P.S.O. to register complaint 52 MLC Case of sir T. Hospital, Bhavnagar 56 Medical Test record of Sir T. Hospital, Bhavnagar 57 Medical Certificate of the deceased Bhavnaben 58 Yadi of PSO for entrustment of enquiry 60 Panchnama of muddamal weapon 61 Abstract of Entry No. 12   of Station Diary 64 Writing of engagement of Moti Talav Sypoi Jamat 72 Photocopy of the Abstract of the O.P.D. Case Register 80 Photocopy of the Abstract of the Indoor Case Registrar 81 Abstract of M.L.C. Certificate registrar 82 Letter of M.O. Sir T. Hospital, Bhavnagar 85 4. After the closure of the recording of the evidence of the prosecution, further statement of the accused came to be recorded under Section 313 of the Criminal Procedure Code, wherein the accused denied having committed any offences as alleged. He infact denied that he was present at the time of the incident on 29.03.1988. On behalf of the defence, one - Ummarbhai Sultanbhai Qureshi came to be examined at Exhibit 71. He infact denied that he was present at the time of the incident on 29.03.1988. On behalf of the defence, one - Ummarbhai Sultanbhai Qureshi came to be examined at Exhibit 71. That thereafter on appreciation of evidence, more particularly, the dying declarations of the deceased, first which was in the form of a complaint/First Information Report before the ASI (Exhibit 51); (2) the history given by the deceased before the Doctor (PW11) was examined at Exhibit 57 and (3) recorded by the Trial Court in the Medical Certificate at Exhibit 58, and (4) the dying declaration and disclosing the name of the accused before her husband (PW1) and one - Jetunbibi, in which the name of one - Rafiq was consistently given and considering the nature of injuries sustained by the deceased and that she died within a period of two hours, by the impugned judgment and order, the Sessions Court has held the accused guilty of the offences punishable under Section 302 of the Indian Penal Code and sentenced the accused to undergo life imprisonment and fine of Rs. 10,000/-, in default, rigorous imprisonment for 2 years. That the Sessions also convicted the accused for the offences punishable under Section135 of the Bombay Police Act and imposed separate sentence of imprisonment of three months and fine of Rs. 500/-, in default, rigorous imprisonment for 15 days. 5. Feeling aggrieved by the impugned judgment and order of conviction and sentence imposed by the learned Sessions Court by which the accused has been convicted for the offences punishable under Section 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act, the appellant - original accused has preferred the present Appeal. 6. Learned Advocate Mr. Iqbal M. Malik appearing on behalf of the appellant - original accused has vehemently submitted that the Sessions Court has materially erred in convicting the appellant for the offences punishable under Section 302 of the Indian Penal Code. It is further submitted by learned Advocate appearing for the original accused that as such, there are contradictions in the deposition of witnesses with respect to from which side the accused came and inflicted the blow. It is submitted that some of the witnesses have stated that the accused came from behind and some of the witnesses have stated that the accused came from the opposite side. It is submitted that some of the witnesses have stated that the accused came from behind and some of the witnesses have stated that the accused came from the opposite side. It is submitted that therefore, in view of such contradictions, the learned Sessions Court ought to have given benefit of doubt to the appellant accused. It is further submitted by learned Advocate Mr. Iqbal M. Malik that assuming that the accused gave a knife blow and the deceased sustained injuries, in that case also there was only one blow and single injury. It is further submitted that even as per the case of the prosecution and even as established by the post mortem report, the blow given by the accused was not on the vital part of the body and therefore, it cannot be said that the there was an intention on part of the accused to kill the deceased. It is therefore, submitted that the learned Sessions Judge has materially erred in holding the accused guilty for the offences punishable under Section 302 of the Indian Penal Code. In the alternative, it is submitted that at the most, it can be a case which may fall under Section 304 Part I of the Indian Penal Code and/or Section 304 Part II of the Indian Penal Code and/or even under Section 307 of the Indian Penal Code. 7. The present Appeal is opposed by learned Additional Public Prosecutor Mr. H.K. Patel appearing for the State. It is vehemently submitted that in the facts and circumstances of the case and the manner in which the deceased sustained injuries and that she died within short time. That there was no altercation at that time and despite the above, the accused came with a deadly weapon, used the same and inflicted injuries on the deceased. The deceased died within a period of two hours and hence, it cannot be said that the Sessions Court has committed any error in convicting the accused for the offence punishable under Section 302 of the Indian Penal Code. Relying upon the Post Mortem Report and the injuries sustained by the deceased, it is vehemently submitted by learned Additional Public Prosecutor Mr. H.K. Patel that the accused used the knife with force, there was severe bleeding at the time of incident and the deceased died. Relying upon the Post Mortem Report and the injuries sustained by the deceased, it is vehemently submitted by learned Additional Public Prosecutor Mr. H.K. Patel that the accused used the knife with force, there was severe bleeding at the time of incident and the deceased died. It is submitted that no error has been committed by the learned Sessions Court in convicting the accused under Section 302 of the Indian Penal Code. It is further submitted that as such, there are no material contradictions. It is submitted that as such the dying declaration of the deceased firstly before her husband, i.e. PW1; thereafter before the Doctor giving the history at the time of getting treatment; and/or admission in the hospital of the deceased which has been recorded in the Medical Certificate; thirdly before the ASI who recorded the statement and which was recorded as First Information Report and fourthly, before Jetunbibi are sufficient to implicate the accused and to establish the fact that it was the accused alone who cause a knife blow on the deceased. It is submitted that therefore, no error has been committed by the learned Sessions Court in holding that it was the appellant who caused the injuries on the deceased. It is submitted that in fact, the accused is guilty for the offences punishable under Section 302 of the Indian Penal code read with Section 135 of the Bombay Police Act. Making the above submissions, it is requested to dismiss the present Appeal. 8. Heard the learned Advocates appearing on behalf of the respective parties at length. We have scanned the entire evidence on record - oral as well as documentary and we have as such reappreciated the entire evidence on record. At the outset, it is required to be noted that the accused has been convicted for the offences punishable under Sections 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act. On re-appreciation of the entire evidence on record, it appears that the prosecution has successfully proved that the death was a homicidal death. The presence of the accused at the time of incident is proved by cogent evidence. The factum of the accused himself causing injuries by knife on the deceased is proved. On re-appreciation of the entire evidence on record, it appears that the prosecution has successfully proved that the death was a homicidal death. The presence of the accused at the time of incident is proved by cogent evidence. The factum of the accused himself causing injuries by knife on the deceased is proved. On considering the documentary as well as the oral evidences led by the prosecution, it appears that it can be said that as such there are four dying declarations. First, the dying declaration can be said to be before her husband - Ranjitsingh (PW1), wherein he has categorically stated in his deposition that when having learnt that Bhavnaben, his wife has sustained injuries by knife, he immediately rushed to the place and at that time, Bhavnaben (the deceased) told him that Rafiq - the accused herein caused injury by knife on her. The aforesaid is further established and proved by the deposition of Jetunbibi - PW4 that Zeenatben Ahmedbhai who has been examined at Exhibit 39. She had also categorically stated that when she asked Bhavnaben as to what happened, she told that the accused Rafiq had run away after causing injuries on her by knife. The aforesaid two witnesses were cross examined by the defence, however, nothing adverse to the prosecution case has been culled out. The third dying declaration can be said to be before the Medical Officer - the Doctor who treated the deceased at the time the deceased was admitted to hospital. The Medical Officer/Dr. Jagsharan Ramdev Shrivastav (PW11) was examined at Exhibit 55, who had issued the Medical Certificate in which the history given by the deceased herself has been recorded, in which it is clearly mentioned that the Rafiq - the accused herein had inflicted a knife blow on her. Therefore, the history given by the deceased before the said Dr. Jagsharan Ramdev Shrivastav can be said to be a Dying Declaration. The Medical Certificate is produced at Exhibit 58 in which the history given by the deceased that Rafiq had caused injury on her is specifically mentioned. The fourth dying declaration is in the form of a statement recorded by the ASI, which was subsequently treated as a First Information Report given by the deceased herself. The Medical Certificate is produced at Exhibit 58 in which the history given by the deceased that Rafiq had caused injury on her is specifically mentioned. The fourth dying declaration is in the form of a statement recorded by the ASI, which was subsequently treated as a First Information Report given by the deceased herself. In the statement, which is subsequently considered as a First Information Report, she has categorically stated that the accused herein - Rafiq gave a knife blow on her. Considering the aforesaid, it cannot be said that the learned Sessions Court has committed any error in holding that it was the accused herein who had caused a knife blow on the deceased. 9. Now, the next question which is posed for consideration of this Court is whether in the facts and circumstances of the case, can it be said that this case would fall under Section 300 of the Indian Penal Code and can it be said that the accused had committed the offences punishable under Section 302 of the Indian Penal Code? Section 300 of the Indian Penal Code reads as under:-- "300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - Secondly.--If it is done with intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or - Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or - Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as it likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." 10. From the deposition of the Doctor and even as per the injuries mentioned in the Post Mortem Report and the manner and the force with which the accused caused the injuries on the deceased, may be on the thigh and may be a single injury, we are of the opinion that the case of the accused would fall under Section 304 Part I of the Indian Penal Code. It is also required to be noted that the depth of the injury was 11 cm and 3 cm long. It is also required to be noted that the deceased had expired in the hospital within two hours. As it is observed hereinabove, there was no altercation or provocation at all. The accused had a motive as his betrothal with the sister of the deceased was broken and he was of the opinion that it was the deceased because of whom the betrothal was broken. He came with a deadly weapon - a knife and without any reason at that time, i.e. without any altercation, all of a sudden, caused injury on the deceased with a knife. 11. In the said facts and circumstances of the case, we are of the opinion that considering the factual scenario and the manner of assault as alleged by the prosecution, in our considered view the proper conviction shall be under Section 304 Part I of the Indian Penal Code and the sentence of 10 years rigorous imprisonment would meet the end of justice. 12. In view of the above, the present Appeal succeeds in part. The appellant - original accused is held guilty for the offences punishable under Section 304 Part I of the Indian Penal Code read with Section 135 of the Bombay Police Act. For the offences punishable under Section 304 Part I of the Indian Penal Code, the appellant - original accused is sentenced to undergo ten (10) year rigorous imprisonment and the fine imposed by the learned Sessions Court is hereby maintained. However, it is ordered in default to pay the fine, the accused to undergo six months rigorous imprisonment. The conviction and sentence imposed by the learned Sessions Court for the offences punishable under Section 135of the Bombay Police Act is hereby maintained. However, it is ordered in default to pay the fine, the accused to undergo six months rigorous imprisonment. The conviction and sentence imposed by the learned Sessions Court for the offences punishable under Section 135of the Bombay Police Act is hereby maintained. It is reported that the accused is on bail pursuant to the order passed by the Division Bench of this Court dated 09.02.2009 passed in Criminal Miscellaneous Application No. 15202/2008 and subsequent order dated 22.01.2015 passed in Criminal Miscellaneous Application No. 1543/2015. Bail and bail bond, stands cancelled. Therefore, the appellant herein to surrender before the concerned jail authority to undergo the remaining sentence. However, the appellant shall be entitled to set-off as permissible under the law. Time to surrender is hereby granted upto 27th September, 2015. Appeal Partly Allowed.