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2016 DIGILAW 917 (GUJ)

Krunalbhai Bharatbhai Patel v. State of Gujarat

2016-04-28

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. This appeal is filed against the judgment and order dated 25.08.2011 passed by learned Sessions Judge, Surat, in Sessions Case No. 194 of 2010, whereby the present appellant-original accused was convicted for the offence punishable under Sections 302 and 114 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life with a fine of Rs. 1,000/- and, in default of payment of fine, further simple imprisonment of one month was awarded. 2. The case of the prosecution is that present appellant along with one juvenile accused went to 9th Floor, "B" Block of Prime Arcade, for the purpose of stealing the coil of the lift. At that time, watchman of the building, Rameshkumar Parasnath Varma, had seen them. Therefore, the juvenile accused caught hold of said Rameshkumar and the present appellant attacked with knife and caused injuries on neck, chest, stomach and face. Said Rameshkumar succumbed to these injuries. Therefore, the complaint was lodged against the accused with police. 2.1 Upon filing of the complaint, investigation was carried out and the accused was arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same was committed to Sessions Court. Thereafter, charge was framed against the accused. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution has examined following witnesses:- Sr. No. Name Exh. 1 Prembhai Shitalbhai Lohana 9 2 Dr. Anilbhai Talaviya 11 3 Rajesh Babulal Bhalodiya 15 4 Narendra Ganeshbhai Rohit 17 5 Dr. Navinlal Natvarlal Fisadiya 18 6 Shital Peshumal Lohana 19-A 7 Bhinankbhai Rameshbhai Dalal 21 8 Bhavesh Mahendrabhai Patel 23 9 Dharmesh Ramesh Shirsagar 30 10 Jitubhai Gangaram Kahar 31 11 Vikramsinh Jethusinh Rathod 32 12 Satpal Mohabatsinh 39 13 Prabhabhai Rambhai Desai 40 14 Natvarbhai Nathabhai, ASI 67 15 Dr. Omkar Sitaram Chudhary 79 2.3 The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Description Exh. Omkar Sitaram Chudhary 79 2.3 The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Original complaint 10 2 Yadi written for the postmortem of the dead body 12 3 PM note 13 4 Copy of the cause of death certificate 14 5 Discovery panchnama of the weapon used in the offence and the clothes 16 6 Treatment certificate of accused-Krunal 18 7 Inquest panchnama 20 8 Panchnama of the place of offence 22 Panchnama of seizure of clothes of the deceased after PM 24 9 Yadi regarding the note made by PSI, DCB, with regard to the proceedings as per Section 41 (1) A of Cr.P.C. 33 10 Arrest panchnama of the accused 34 11 Yadi written for preparing map of the place of offence 36 12 Map of the place of offence 37 13 Yadi for registering the offence 41 14 Primary report of FSL, Surat 42 15 Dispatch note 52 16 Receipt of muddamal being received by FSL 53 17 Forwarding letter of FSL 54 18 FSL report 55 19 Serology report 56 20 Forwarding letter of physics department 57 21 Report of physics department 58 22 Application for getting permission for TI parade 59 23 Report regarding non-availability of witness for TI parade 60 24 Copy of the postmortem form 61 25 Report of finger print expert 62 26 Report of the dog squad 63 27 Application for recording statement as per Section 164 of Cr.P.C. 64 28 Map of the place of offence 65 29 Special report of serious offence 69 30 Yadi for preparing map of the place of offence 70 31 Copy of the notification of the Commissioner 71 32 Certificate of medical examination of the juvenile accused-Sagar 80 33 Medical certificate of the accused-Krunal 81 2.4 At the end of trial, the Court below recorded further statement of the accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred by the accused before this Court. 3. Mr. Hardik Dave, learned advocate appearing for the appellant-original accused has taken us through the evidence on record and submitted that the impugned judgment and order is against the evidence on record. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred by the accused before this Court. 3. Mr. Hardik Dave, learned advocate appearing for the appellant-original accused has taken us through the evidence on record and submitted that the impugned judgment and order is against the evidence on record. He submitted that the prosecution has failed to prove its case against the accused. He submitted that this case is based on circumstantial evidence and the prosecution has failed to prove the chain of circumstances which may prove the guilt of the accused. He also submitted that there are material omissions and contradictions in the evidence of prosecution witnesses and the trial Court has erred in convicting the accused on the basis of such evidence. He further submitted that the prosecution has failed to prove any motive for commission of the offence. He further submitted that there is no eye witness to the offence and no one has seen the accused with the deceased before commission of offence. He further submitted that the knife was discovered at the instance of juvenile accused-Sagar and, therefore, the trial Court has committed an error in convicting present appellant. He also submitted that joint discovery panchnama is not admissible in evidence. He further submitted that since the blood found on the muddamal knife was of deceased and since it was discovered at the instance of another accused, present appellant is wrongly convicted by the trial Court. He submitted that this is not a substantive piece of evidence and the trial Court could not have convicted present appellant on the basis of this evidence. He also submitted that even if the evidence of PW-4 is believed as to dropping the accused in front of the building in question, there is no witness, who had seen the accused entering the building. In view of these, he prayed that the appellant may be acquitted from the charges levelled against him and this appeal may be allowed by setting aside the impugned judgment. In view of these, he prayed that the appellant may be acquitted from the charges levelled against him and this appeal may be allowed by setting aside the impugned judgment. In the alternative, he also submitted that even if this Court finds the accused guilty, since there was no intention or motive for the accused to commit the offence and this might have happened in the heat of the moment, conviction of the accused may be converted to offence punishable under Section 304, Part-I or Part-II of IPC, as may be found proper by this Honourable Court. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the accused is just and proper and she has supported the conviction recorded by impugned judgment. She submitted that the trial Court has rightly appreciated the evidence on record and convicted the accused. She submitted that as per the evidence of Chairman of the society, it is clear that the lift man of the building was missing. She further submitted that PW-4, rickshaw driver, has stated that he dropped the accused in front of the building at about 8 p.m. and at about 9.30 p.m. they were taken back by him. This witness has further deposed that the accused was injured and the accused had stated that some scuffle took place and he got the injury and, for this injury, treatment was also taken by the accused. She further submitted that even the discovery panchnama and report of FSL also supports the case of the prosecution. She further submitted that the complainant and other witnesses have also supported the case of the prosecution, therefore, the trial Court has not committed any error in convicting the accused. In view of these, she has submitted that the accused is rightly convicted and this Criminal Appeal filed by the accused may be dismissed. 5. We have heard Mr. Dave, learned advocate for the appellant-accused and Ms. C.M. Shah, learned APP appearing for the State. We have also gone through the impugned judgment and the evidence on record. From the medical evidence, it is clear that the deceased died due to hemorrhage as a result of multiple injuries over the body of the deceased. 5. We have heard Mr. Dave, learned advocate for the appellant-accused and Ms. C.M. Shah, learned APP appearing for the State. We have also gone through the impugned judgment and the evidence on record. From the medical evidence, it is clear that the deceased died due to hemorrhage as a result of multiple injuries over the body of the deceased. From column No. 17 of the postmortem report, it is clear that there were as many as 13 injuries caused to the deceased. We have also gone through the evidence of PW-1, 4 and 5. PW-1, Prembhai Shitalbhai Vaghela, Exh.9, has stated in his evidence that he is the President of the Prime Arcade Apartment. This witness further deposed that on 4.3.2010, one of the resident of the apartment, viz. Pramodbhai Desai, had telephoned him and informed that dead body of the watchman is lying in the gallery leading to water tank. He further deposed that there were marks of injuries on the neck and stomach of the deceased. This witness has further deposed that on 3.3.2010 at about 12 in the night, one Ashwinbhai had informed him that the watchman of the society is not present. Therefore, he along with watchmen of 'A' and 'C' towers went in search of the watchman but he could not find him. 6. PW-4, Narendra Ganeshbhai Rohit, Exh.24, has stated in his evidence that he was driving rickshaw in March 2010. He also deposed that he was knowing the accused as they used to come to Palanpur Jakatnaka, Surat. He has deposed that on 3.3.2010 at 8 p.m. he had picked up the accused from Palanpur Jakatnaka and dropped them opposite Prime Arcade. This witness has deposed that the accused told him that they were going for the work of lift. He further deposed that thereafter he went away in search of other passengers. However, at about 9 to 9.15 he received a phone call from the accused-Krunal and he asked the witness to take them away. He further deposed that at about 9.30 p.m. accused persons reached near Vidhyakunj School, where the witness was standing. He further deposed that accused-Krunal had an injury on his hand and blood was coming out of it, therefore, he asked as to what has happened? The accused informed that a scuffle took place. Thereupon, the witness took the accused to the clinic of Dr. He further deposed that accused-Krunal had an injury on his hand and blood was coming out of it, therefore, he asked as to what has happened? The accused informed that a scuffle took place. Thereupon, the witness took the accused to the clinic of Dr. Navinbhai Fisadiya, where the accused was treated. This witness has identified the accused-Krunal in the Court. PW-5, Dr. Navinbhai Fisadiya, Exh.18 has stated in his evidence that on 3.3.2010, PW-4, Narendra had brought accused-Krunal for treatment between 9.30 to 10.00 p.m. at his residence. He deposed that there was an injury on the right hand of the accused-Krunal and he had done the dressing. He also identified accused-Krunal in the Court. Therefore, treatment taken by the accused for the injury cannot be disputed. 7. We have also gone through the postmortem report of the deceased. There were as many as 13 injuries on the body of the deceased and most of them were stab wounds. This witness further deposed that these injuries were sufficient in the ordinary course of nature to cause death of a person. Not only that the doctor has opined that the deceased would have died 24 to 36 hours before the postmortem, therefore, this time matches with the time of presence of the accused at the scene of offence. It is also stated by the accused before PW-4 that they were going for work of lift in the building and the dead body of the deceased was also found near lift. Therefore, their presence at the scene of offence is established. PW-13, Prabhabhai Rambhai Desai, Investigating Officer, Exh.40, has deposed that on 8.3.2010 the accused were arrested and they had shown the place of offence and the knife was also discovered at their instance. From the FSL report, it is clear that the blood found on the clothes of the accused was of the deceased as it was of "B" group, while blood group of the accused is "AB". In view of these, we are of the opinion that the prosecution has proved its case beyond reasonable doubt against the accused and it cannot give rise to any other conclusion except that the accused is guilty of the offence. In view of these, we are of the opinion that the prosecution has proved its case beyond reasonable doubt against the accused and it cannot give rise to any other conclusion except that the accused is guilty of the offence. Therefore, in our view, the prosecution has proved its case beyond reasonable doubt against the accused and the trial Court has not committed any error in convicting the accused for the offences alleged against him. Therefore, this appeal is required to be dismissed. 8. For the foregoing reasons, this Criminal Appeal is dismissed. The impugned judgment and order dated 25.08.2011 passed by learned Sessions Judge, Surat, in Sessions Case No. 194 of 2010 is hereby confirmed. At this stage, Mr. Dave, learned advocate for the appellant-accused requested that the accused may be given benefit of remission after completion of requisite period. Therefore, it is observed that upon completion of 14 years' imprisonment, the State Government may consider the case of the accused for remission. The period of sentence already undergone by the accused be given set off to him. Bail bond, if any, stands cancelled. Record and proceedings be sent to the Court below forthwith.