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2017 DIGILAW 126 (GUJ)

State of Gujarat v. Thakerda Raysangji Shankerji

2017-01-19

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

body2017
JUDGMENT : Biren Vaishnav, J. 1. The State has come in appeal challenging the acquittal of the respondent - original accused. By judgment and order dated 31.07.1993 rendered by the Additional Sessions Judge, Banaskantha at Palanpur, the learned Judge has acquitted the accused under sections 302, 354 and 452 of the Indian Penal Code. 2. The charge against the accused, the respondent herein was framed at Ex. 3. It is the case of the prosecution that on 09.08.1991, at 10.30 in the morning, when the complainant Dhanabhai Khodabhai's daughter Madhuben Dhanabhai was cooking in the kitchen, the accused Raysangji Shankerji Thakerda entered the kitchen, bolted the kitchen door from inside and tried to outrage her modesty. Madhuben resisted, came out of the kitchen at which point the accused attacked her with a knife. The accused inflicted blows repeatedly on various parts of the body of the deceased as a result of which Madhuben succumbed to her injuries. A charge was, therefore, framed implicating the accused under sections 302, 354 and 452 of the Indian Penal Code. 3. P.W. 2- Dhanaji Khodaji is the original complainant and father of deceased Madhuben. According to this witness, Madhuben is the second daughter of the complainant. Pratap is a son who is married and whose wife's name is Manjuben. He has a field of his own, however, he was also working as a casual labourer in the field of Adambhai Momjibhai Muman. On the date of the incident, at 8 O'clock in the morning, he along with his son Pratap had gone to work in the field of Adambhai and his wife had gone to the nursery. At around 10.45 in the morning, his son Abhuji came running to the field and informed him that Madhuben had been attacked by accused Raysangji and therefore he should come back home. Dhanaji, therefore, along with his son Pratap and Adambhai accompanied with Abu ran back home. When they reached, they found Madhuben lying in the verandah. She was bleeding and was writhing in pain. He, thereafter, picked her up and put her on a cot. On being asked, Madhuben responded by saying that while she was in the kitchen cooking, Raysangji had entered the kitchen, closed the door from inside and tried to outrage her modesty. She ran out and thereafter she was attacked by Raysangji. She was repeatedly stabbed with a knife. He, thereafter, picked her up and put her on a cot. On being asked, Madhuben responded by saying that while she was in the kitchen cooking, Raysangji had entered the kitchen, closed the door from inside and tried to outrage her modesty. She ran out and thereafter she was attacked by Raysangji. She was repeatedly stabbed with a knife. She further narrated the fact that at the time when the incident was in progress Ratuji and Galaji had come running and tried to intervene. The accused Raysangji thereafter left the scene of the offence. This witness further states that when Madhuben narrated the whole incident his son Pratap, younger son Abhu, Adambhai and Galaji were present. Madhuben was injured and had suffered stab wounds on various parts of the body and she was bleeding. She was then carried in a jeep to the hospital. While being transported Madhuben was in a position to speak but when they reached Islampur, Madhuben succumbed to her injuries. They then went to Vadgam Police Station and lodged a complaint. The complaint has been produced at Ex. 13. Ratuji Godadji, Adambhai, Raghaji Chelaji, Galaji Chelaji had accompanied him in the jeep. He identified Raysangji who was present in the court on that day. He further testified that there were blood stains on the floor where Madhuben was lying. 3.1 P.W. 2 has been cross examined at length. In his cross examination, he stated that his daughter was married but had come back home as she was not happy at her matrimonial house. He further stated that on the date of the incident he alongwith his son Pratap had gone to the field of Adambhai. His wife Jamnaben and daughter Babi had stayed back home. He further stated in his cross examination that on being informed by Abhuji at Adambhai's field, they went home and saw Ratuji and Galaji present at the scene. He denied that when he reached his house, Madhuben had already succumbed to her injuries. The first information report is produced at Ex. 13. 4. P.W. 1 is one Dr. Dipak Pranami who carried out the post mortem of the body of deceased Madhuben. He was the Medical Officer at General Hospital, Banaskantha. According to the doctor, Madhuben suffered 13 external injuries. All the injuries were ante mortem. The first information report is produced at Ex. 13. 4. P.W. 1 is one Dr. Dipak Pranami who carried out the post mortem of the body of deceased Madhuben. He was the Medical Officer at General Hospital, Banaskantha. According to the doctor, Madhuben suffered 13 external injuries. All the injuries were ante mortem. This witness stated that the deceased had suffered an incise wound over right parietal region of scalp about 1 x 1/2 cm size and muscle deep and a stab wound about 3 x 2 cm size obliquely transverse in direction starting from right breast to left breast and left sternal region with blood deep to left pleura cavity and left sternum the length of which was about 8 cm amongst other injuries sustained by the deceased which have been listed in column No. 17 of the post mortem report at Ex. 10. 4.1 The cause of death in the opinion of this doctor was shock and hemorrhage due to the injuries received over the body. According to the opinion of this doctor, Madhuben died due to the injuries sustained and profuse bleeding that occurred due to multiple stab wounds she had suffered. Injury No. 2, according to this doctor, was sufficient to cause death. Such injuries were possible with a sharp edged instrument. Article No. 7, muddamal knife was identified which was a Rampuri knife and in the opinion of the doctor such injuries were possible with the knife so identified. Nothing substantial further comes out in the cross examination of the doctor. 5. The inquest panchnama has been produced at Ex. 15. The scene of offence panchnama is at Ex. 16. A brief reference may be made to these panchnamas which indicate that at the scene of offence, blood stains were found on the floor below the cot where Madhuben was made to lie by her father when she was found lying on the floor. Blood stains were also found on a pair of slippers lying under the cot and on the walls. The clothes of the deceased have been produced through panchnama at Ex. 17. 6. Ratuji Godadji has been examined as P.W. 3 at Ex. 19. According to this witness, Dhanaji Khodaji, the complainant is related to him. His house is at a distance of about 40 to 50 feet from that of the complainant. The clothes of the deceased have been produced through panchnama at Ex. 17. 6. Ratuji Godadji has been examined as P.W. 3 at Ex. 19. According to this witness, Dhanaji Khodaji, the complainant is related to him. His house is at a distance of about 40 to 50 feet from that of the complainant. He identified the accused Raysangji who was present in the court. This witness further testifies that the incident in question occurred at around 10.30 in the morning when he was at his residence. On hearing the shouts of a child, he ran towards the complainant's house. At that moment, he saw Madhuben lying on the floor of the verandah. Madhuben's brother Abhuji and a few other children were present and even the accused Raysangji was standing there. Abhuji at that time was telling others that his sister Madhuben had been stabbed by the accused. This witness then advised Abhuji to go and call his father and therefore Abhuji immediately left for the fields to call his father. After sometime, the complainant Dhanaji accompanied by Adambhai and son Pratap together with Abhuji came to the house. Madhuben was carried in a jeep to the dispensary. She was bleeding and her clothes were therefore blood stained. On the way to the hospital, Madhuben succumbed to her injuries at Islampur. This witness has however turned hostile. In the cross examination of this witness, he admits that when he reached the scene of the incident, Abhuji was present there and saw that Galaji Chelaji and the accused Raysangji were also present. Raysangji, thereafter, left the scene of the offence. 7. Galaji Hiraji is P.W. 4 who is examined at Ex. 20. According to him, when the incident occurred, he was at his home. On hearing shouts from Dhanaji's residence, he went to find out as to what had happened there. He saw Madhuben lying on a cot bleeding. Raghuji Godadji and other children were also present there. Abhuji also was present. This witness also turned hostile. In his cross examination, he stated that Ratuji had reached the scene before he did and he had immediately followed him on hearing the shouts. 8. P.W. 5, Ravaji Motiji has been examined at Ex. 21. He testified that he was at Ratuji Godadji's place talking to him and on hearing shouts from Dhanaji's home, he went towards Dhanaji's house. In his cross examination, he stated that Ratuji had reached the scene before he did and he had immediately followed him on hearing the shouts. 8. P.W. 5, Ravaji Motiji has been examined at Ex. 21. He testified that he was at Ratuji Godadji's place talking to him and on hearing shouts from Dhanaji's home, he went towards Dhanaji's house. He saw Abhuji, Ratuji Godadji and Galaji Hiraji standing in the verandah of Dhanaji's house where Madhuben was lying on the floor. This witness also has turned hostile. 9. Ravaji Chelaji, P.W. 6 has been examined at Ex. 21. He was the neighbour of the complainant. According to this witness, on the date when the incident happened, Dhanaji and his son Pratap had gone to work in the filed of Adambhai. At around 11, Dhanaji's younger son Abhuji had come to Adambhai's field and both the complainant and Adambhai had then gone towards their house. He also went towards Dhanaji's house. He saw Madhuben lying on the floor bleeding. She was thereafter put on a cot. The complainant Dhanaji asked Madhuben as to how she sustained the injuries to which the response from Madhuben was that when she was cooking in the kitchen, the accused Raysangji Shankerji tried to outrage her modesty and when she resisted she was repeatedly stabbed by a knife. This witness further stated that when Dhanaji had come home, he had come along with Adambhai and Pratap. Ratuji Galaji and Ravaji Chelaji were also present there. 9.1 In the cross examination, this witness states that his house and the house of the complainant had a common wall. In his cross examination, this witness further admits that when Abhuji came to call Dhanaji, Dhanaji was standing at a distance of about 300 feet from him but he did see Dhanaji leaving with Adambhai and therefore he also on seeing Dhanaji and Adambhai leaving towards their house, followed them. He admits that when he so followed Dhanaji, Ratuji Godadji and Galaji Hiraji had seen him approach his residence. 10. Abhuji Dhanaji, son of the complainant and brother of deceased has been examined as P.W. 7 at Ex. 25. According to this witness, on the date of the incident, his father and his brother Pratap had gone to work in the field of Adambhai and he was at home. His mother Jamna had gone to the nursery. 10. Abhuji Dhanaji, son of the complainant and brother of deceased has been examined as P.W. 7 at Ex. 25. According to this witness, on the date of the incident, his father and his brother Pratap had gone to work in the field of Adambhai and he was at home. His mother Jamna had gone to the nursery. His sister-in-law had also gone with Pratap to the field. Madhuben was in the kitchen cooking. He was playing outside at Masungbha's Limdi. He heard Madhuben's shouts and therefore immediately rushed back home when he saw accused Raysangji Shankerji present at his house with a knife. Madhuben was lying in the verandah. At that time, Ratuji Godadji and Galaji Hiraji were already there. They had tried to intervene at which instance the accused tried to attack both Ratuji and Galaji and thereafter the accused left the scene alongwith his knife. His sister was bleeding. He, therefore, immediately rushed to Adambhai's field to call his father and he specifically told him that his sister had been attacked by the accused Raysangji Shankerji. According to this witness, when Dhanaji came home and when Madhuben was asked about the incident, she categorically responded to the question by saying that she was attacked by the accused when she was cooking in the kitchen. Madhuben, his sister thereafter was shifted to the hospital. 10.1 In the cross examination, this witness says that he was playing alone and when he heard shouts, he ran towards his house. Ratuji Godadji and Galaji Hiraji also simultaneously reached the place. He further in his cross examination explains that Ratuji Godadji and Galaji Hiraji had reached before him. He denied the suggestion that Madhuben was not in a position to speak. Further in the cross examination, this witness says that when he ran on hearing the shouts, he saw the accused inflicting stab wounds on Madhuben. He also therefore shouted. On hearing his shouts, persons from the neighbourhood immediately rushed to his house. Ravaji Motiji also came over. On seeing people having gathered, the accused left the scene. Ratuji Godadji and Galaji Hiraji had also immediately come to his house. He further denied in his cross examination a suggestion that Madhuben was not in a position to speak. 11. P.W. 8, Karsanji Bhemaji is the panch witness of the discovery panchnama and the recovery panchnama at Ex. 27. On seeing people having gathered, the accused left the scene. Ratuji Godadji and Galaji Hiraji had also immediately come to his house. He further denied in his cross examination a suggestion that Madhuben was not in a position to speak. 11. P.W. 8, Karsanji Bhemaji is the panch witness of the discovery panchnama and the recovery panchnama at Ex. 27. This witness confirms having signed the panchnama whereby the accused had on his own volition produced the Rampuri knife used in the offence. The clothes that the accused was wearing namely the shirt and a trouser were also recovered. There were blood stains on the clothes and the knife. 12. Adambhai Momjibhai, P.W. 9 has been examined at Ex. 31. The complainant and Pratap were working in his field. According to this witness, both the complainant and his son were working in the field and at around 10.45 am, Abhuji had come to the field to call Dhanaji. He only could see Abhuji saying something to his father since he was at a distance. However, the complainant thereafter told him that since Madhuben had been attacked he was going to his house. When both Dhanaji and Pratap together with Abhuji left for home, he also followed them. On reaching Dhanaji's home, he found Madhuben lying on the floor bleeding. Ratuji Godadji, Galaji Hiraji and Ravaji Chelaji were present at the house as were Jamnaben and wife of Pratapbhai. He witnessed Madhuben narrating something to her father but since he was at a distance and she was not audible he could not hear what Madhuben was saying to her father. Madhuben was thereafter carried in a jeep to the dispensary and on the way to the dispensary at Islampur, according to this witness, she succumbed to her injuries. This witness also turned hostile. 13. P.W. 10, Kesarisinh Kathaji Zala is the Investigating Officer who has been examined at Ex. 32. The examination-in-chief indicates in detail the method and the manner in which the investigation was carried out. The suggestion that the complaint was frivolous was denied by him. 14. The report of the FSL and the serological report have been produced at Exs. 36 and 37 respectively. Blood stains have been found on the knife. 32. The examination-in-chief indicates in detail the method and the manner in which the investigation was carried out. The suggestion that the complaint was frivolous was denied by him. 14. The report of the FSL and the serological report have been produced at Exs. 36 and 37 respectively. Blood stains have been found on the knife. The clothes of the deceased namely the petticoat and blouse and the trousers of the accused all these articles have blood group A, that of the deceased. 15. In the light of these evidences which have come on record, the learned Additional Sessions Judge though holding that the death was homicidal found that the evidence was not credible enough to convict the accused. According to him, the reasons that went in acquitting the accused were as under: "(a) Abhuji, the child witness and brother of deceased Madhuben though witnessed the incident and thereafter proceeded further to inform the complainant of the act was not found to be a reliable witness. According to the learned Judge, when the complainant on being informed by his son went back home and asked Madhuben as to how the incident had occurred; Madhuben narrated the entire incident in question. According to the learned Judge, had Abhuji been present at the scene of the offence and witnessed the whole incident there was no reason for the complainant to have asked Madhuben about the incident and therefore in the opinion of the learned Judge, the fact that the father tried to elicit information from the daughter about the incident itself made Abhuji's presence at the scene of offence doubtful. (b) That Abhuji could have been present at the scene of offence was also doubtful. According to the learned Judge, as in his testimony, Abhuji had stated that he was playing at Mansungbha's limdi and was not in the neighbourhood, the fact that Ratuji Godadji P.W. 3 and Galaji Hiraji and Ravaji Motiji who were neighbours could reach the house simultaneously with Abhuji who was otherwise at a distance and not within the vicinity or the neighbourhood was seriously questioned by the learned Judge. Abhuji's presence at the time when the others had also reached the scene was therefore doubted by the learned Judge. (c) The learned Judge has further, thought it fit not to believe that Madhuben was in a position to give oral dying declaration. Abhuji's presence at the time when the others had also reached the scene was therefore doubted by the learned Judge. (c) The learned Judge has further, thought it fit not to believe that Madhuben was in a position to give oral dying declaration. On the basis of the medical evidence and on the basis of the testimonies of the witnesses who have turned hostile and who at some places have stated that Madhuben was not in a position to speak, the learned Judge has opined that looking to the nature of the injuries that Madhuben had sustained, the fact that she was in a position to give oral dying declaration was seriously in doubt. Further, the fact that Abhuji, the child witness could have gone to the field and came back which according to the learned Judge was at a distance of about 2 km back and forth did not give sufficient time for Madhuben to be physically fit and to be in a position to give the oral dying declaration. This coupled with the fact that the learned Judge had found the narration of Abhuji as to the injuries sustained by Madhuben to be at a variance in addition to his presence. Both these together, according to the learned Judge were not sufficient enough to believe the prosecution case. (d) Having found that the prosecution witnesses No. 3, 4 & 5 respectively have turned hostile, the learned Judge was of the opinion that their presence at the scene of the offence was highly doubtful. In the opinion of the learned Judge, even the testimony of Ravaji Chelaji P.W. 6 which supported the theory of the oral dying declaration was not credible in view of the fact that he was a related witness and a neighbour." These are the grounds on which the learned Sessions Judge thought it fit to acquit the accused of the offences charged for. 16. Mindful of the fact that this court should be loathed in re-appreciating evidence and disturbing the sentence of acquittal, on a re-appreciation of evidence at our hands, in our opinion the reasonings of the learned Judge in acquitting the accused cannot be sustained for the following reasons: "(i) P.W. 7 Abhuji Dhanaji, the brother of deceased Madhuben has unequivocally stated in his testimony that he went to the house on hearing the shouts of Madhuben. When he went there, he saw the accused Raysangji. Ratuji Godadji and Galaji Hiraji were present when he went there. They tried to intervene and when they did so, the accused tried to attack them and when the other persons approached, the accused left the scene. According to this witness, he thereafter on being so told by Ratuji Godadji went to the field and called his father. The testimony further indicates that he was proxy to the complainant's dialogue with the deceased Madhuben when she narrated the fact of she being attacked with a knife by the accused Raysangji. His testimony further indicates the presence of Ratuji Godadji and Galaji Hiraji when the incident occurred. A suggestion in the cross examination that Madhuben was not in a position to speak was denied by him. The witness also stood the test of cross examination when a suggestion put to him was denied and he categorically admitted that when he went on hearing the shouts he saw the accused Raysangji attacking Madhuben. (ii) Though P.W. 3 namely Ratuji Godadji, P.W. 4 Galaji Hiraji and P.W. 5 Ravaji Motiji have turned hostile, but from a collective reading of their testimonies, it is categorically borne out that all the three of them, on hearing Abhuji's shouts, had reached the scene of the offence. That all the three in their testimonies have also confirmed the presence of Abhuji, the son of the complainant. On a closer reading of the testimony of P.W. 3 Ratuji Godadji, it also comes out that it was at his instance that Abhuji went to call his father Dhanaji, the complainant. (iii) Though these witnesses have turned hostile, the fact that Abhuji was present at the scene of offence and had witnessed the incident, evidently cannot be doubted in view of the collective reading of the testimonies of these three witnesses. In our opinion, merely because on his return the complainant thought it fit to question his daughter on the facts of the incident and merely because the daughter did narrate the incident in question, it would not discount the presence of Abhuji at the scene of offence. The learned Judge therefore was evidently in error in not believing the testimony of Abhuji merely by doubting his presence when all the three witnesses as named hereinabove have confirmed his presence at the scene of offence. The learned Judge therefore was evidently in error in not believing the testimony of Abhuji merely by doubting his presence when all the three witnesses as named hereinabove have confirmed his presence at the scene of offence. (iv) Merely because Abhuji, the son of the complainant did not narrate the nature of the injuries and which according to the learned Judge were at variance from the medical report in the testimony of the doctor, would in no manner discount the creditworthiness of this witness and his presence at the scene of offence. On this count also we beg to differ with the reasonings of the learned Judge. (v) Even when the testimony of P.W. 8 - Adambhai is read, though he also has turned hostile, assuming without agreeing with the reasonings of the learned Judge that the testimony of Ratuji has to be eyed with suspicion in view of the fact that he is a near relative, Adamji as an independent witness has also confirmed in his testimony that Abhuji, the son of the complainant was present at the scene of offence. In his testimony, he has categorically also stated that when he followed the complainant together with Pratap and Abhuji, Ratuji Godadji, Galaji Hiraji and Ravaji Chelaji were also present. The presence of these witnesses therefore at the scene of incident has been sufficiently corroborated by this independent witness too and therefore there is no reason why their accounts of having seen Madhuben lying in a pool of blood at the scene of offence and her narrating the incident in question to the complainant cannot be believed. In our opinion, therefore there is no reason why the learned Judge could have discounted the oral dying declaration also and collectively discarded the testimony of these witnesses and extended the benefit of acquitting the accused whose presence was otherwise established by the evidence on record." 17. The discovery of the knife from the accused and the reports of the FSL and the serological report are corroborative evidences of the fact that the incident in question did happen and the accused was rightly implicated of the charge. Evidently this was not a case of false implication at the hands of the related witnesses. Therefore, the impugned judgment and order acquitting the accused deserves to be quashed and set aside. Evidently this was not a case of false implication at the hands of the related witnesses. Therefore, the impugned judgment and order acquitting the accused deserves to be quashed and set aside. The accused is required to be convicted of the charges levelled against him under sections 304, 354 and 452 of the Indian Penal Code. 18. Accordingly, the judgment and order dated 31.07.1993 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 113 of 1991 is hereby quashed and set aside. The respondent-accused is convicted of the offence charged against him under Sections 302, 354 and 452 of Indian Penal Code. Accordingly, the accused is directed to undergo rigorous imprisonment for life with fine of Rs. 1000/-, in default, rigorous imprisonment for six months under section 302 of Indian Penal Code. He shall undergo rigorous imprisonment for one year with fine of Rs. 500/- in default simple imprisonment for six months under section 354 of the Indian Penal Code. He shall also undergo rigorous imprisonment for seven years with fine of Rs. 1000/- in default, simple imprisonment for one year under section 452 of the Indian Penal Code. All the sentences shall run concurrently. The accused shall surrender to serve the rest of the sentence and the time to surrender is granted upto 19.03.2017. Bail and bail bond shall stand cancelled on surrender of the appellant or on 20.03.2017 whichever is earlier. Appeal is allowed accordingly. R & P to be transferred to the trial court forthwith.