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2018 DIGILAW 482 (GUJ)

Bhikhabhai Nanabhai Jinjala v. State of Gujarat

2018-02-10

BELA M.TRIVEDI, SONIA GOKANI

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JUDGMENT : BELA M. TRIVEDI, J. 1. The present appeal has been filed by the appellant-original accused under section 374 (2) of the Code of Criminal Procedure challenging the judgment and order of conviction and sentence dated 09.01.2012 passed by the 3rd Additional Sessions Judge, Bhavnagar, camp at Mahuva, rendered in Sessions Case No.9 of 2011, whereby the appellant-accused has been convicted for the offences punishable under sections 302 and 324 of IPC read with section 135 of the Bombay Police Act, and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/-in default thereof to undergo simple imprisonment for a period of 1 month. The appellant has also been convicted for the offence punishable under section 324 of IPC and sentenced to undergo rigorous imprisonment for a period of 3 years and pay fine of Rs.200/in default thereof to undergo simple imprisonment for a period of 15 days. 2. The case of the prosecution as unfolded before the Sessions Court was that on 29.09.2010, a complaint came to be lodged before the Talaja police station by the complainant Batukbhai Nanbhai Hadhiya in respect of death of his sister Baghuben. It was alleged inter alia that the complainant had six brothers and four sisters out of whom, his second sister i.e. Baghuben had married the accused Bhikhabhai Nanabhai Jinjala. Out of their wedlock, they had two sons and one daughter named Ramesh, Prakash and Manisha respectively. His brother-in-law Bhikhabhai was not doing any work and was of aggressive nature. He used to often quarrel with his sister and beat her. Therefore, his sister along with her children and husband had come to reside at village Ralgon i.e. the village of complainant. On 29.09.2010 at about 4.00 a.m. the complainant and his brothers were sleeping at their home, and at that time his cousin Bhavanbhai Mangabhai came and told them that some noise of quarrel was coming from the house of Baghuben. The complainant and his brothers therefore went to the house of their sister and saw that his sister Baghuben was lying on the cot in veranda of their house and was bleeding as she had received severe injuries on her head. She was not able to speak. The complainant and his brothers therefore went to the house of their sister and saw that his sister Baghuben was lying on the cot in veranda of their house and was bleeding as she had received severe injuries on her head. She was not able to speak. The complainant also saw that his niece Manisha was lying on the floor and was also seriously injured, and when asked his niece Manisha told in scattered language that her father had quarreled with her mother and he had injured her mother by giving blows with a steel hammer on her forehead, and that when she tried to intervene, her father also gave blows with the hammer on her ear and back. The complainant thereafter called the ambulance and took his sister and niece to Talaja government hospital for treatment. His brother-in-law i.e. accused had fled away from the place after the said incident. 3. The said complaint was registered at Talaja police station as C.R. No.I-86/2010 against the appellant-accused for the offences punishable under sections 302 and 307 of the IPC read with section 135 of the Bombay Police Act. Investigating Officer after carrying out the investigation and collecting sufficient evidence against the appellant-accused, had filed the charge sheet in the court of Judicial Magistrate First Class, who committed the case to the Sessions Court, which was registered as the Sessions Case No.9 of 2011. 4. The Sessions Court framed the charge against the appellant-accused at Exh.3 for the offence under section 302 and 307 of the Indian Penal Code and Section 135 of the Bombay Police Act. The Appellant-accused having denied the said charge and claimed to be tried, the prosecution led oral as well as the documentary evidence to prove the said charge. The prosecution had examined as many as 26 witnesses and produced number of documentary evidence to prove the guilt of the appellant-accused. In the further statement recorded under section 313 of the Code of Criminal Procedure, the appellant had denied the allegations made against him and stated that he was falsely implicated in the alleged incident. The Sessions Court after appreciating the evidence on the record convicted and sentenced the accused as stated here-in-above. 5. Learned Advocate Mr. Buddhbhatti for the appellant-accused submitted that the incident as alleged by the prosecution was not proved by the prosecution beyond reasonable doubt. The Sessions Court after appreciating the evidence on the record convicted and sentenced the accused as stated here-in-above. 5. Learned Advocate Mr. Buddhbhatti for the appellant-accused submitted that the incident as alleged by the prosecution was not proved by the prosecution beyond reasonable doubt. Most of the witnesses examined by the prosecution were interested witnesses being the brothers and the daughter of the deceased, and none of them had witnessed the incident in question. According to him, the injured witness Manisha who happened to be the daughter of the deceased and accused, also had admitted in her cross-examination that she had not seen the accused beating her mother. The witness Bhavanbhai, who had allegedly informed the complainant about the alleged incident had also turned hostile. Taking the Court to the medical evidence, he submitted that the injuries found on the body of the deceased were not possible to be inflicted by the muddamal article hammer. The witness Manisha also had not identified the mudamal hammer. Relying upon the decision of the Supreme Court in the case of State of Uttar Pradesh Vs. Ashok Dixit and Anr. reported in 2000 (2) GLH 352, he submitted that evidence of child witness must be evaluated carefully as a child may be swayed away by what others tell him and is an easy prey to tutoring. Relying upon the decision of the Supreme Court in the case of Mohinder Singh Vs. State of Punjab reported in AIR 1953 SC 415 , he submitted that the prosecution was required to prove the guilt of the accused by adducing positive evidence that the injuries found on the body of the deceased were possible with the alleged weapon hammer. 6. However, learned APP Mr. Ritvij Oza appearing for the respondent-State submitted that the time and place of the alleged incident is not disputed. The muddamal hammer was also found at the scene of offence. According to him, the daughter of the accused Manisha was also injured by the accused when she tried to intervene her father beating her mother with hammer, and she had no reason to give false evidence against her own father. He also submitted that merely because some of the witnesses were close relatives of the deceased, their evidence could not be brushed aside when they had reached to the house of the deceased immediately after the incident. 7. He also submitted that merely because some of the witnesses were close relatives of the deceased, their evidence could not be brushed aside when they had reached to the house of the deceased immediately after the incident. 7. At the outset, it may be stated that as per the settled legal proposition, the appellate Court has ample powers to reappreciate the evidence and come to an independent conclusion as to whether prosecution had brought home the guilt of the accused beyond reasonable doubt or not. In the instant case, it appears that the death of deceased Baghuben being a homicidal death was duly proved by the prosecution by examining the P.W. No.2 Dr. Maganbhai Bhojani, who had carried out the postmortem of the deceased. The cause of death as stated in the postmortem report at Exh.13 was “due to cardio respiratory failure due to hypovolumic shock due to hemorrhage due to multiple injuries over scalp.” The P.W. No.2 had stated in his evidence before the Court about the injuries found on the body of the deceased and stated that they were sufficient to cause death of a person in ordinary course of nature, and that such injuries were possible with the hard and blunt substance like hammer. The moot question therefore that arises before the Court is, whether the prosecution had proved beyond reasonable doubt that the said injuries were caused by the accused with the intention or knowledge to cause her death or that they were likely to cause her death, so as to hold him guilty for the charges levelled against him. 8. It is pertinent to note that amongst the witnesses examined by the prosecution, the evidence of P.W. No.24Manisha, who happened to be the daughter of the accused and the deceased, and who herself had received the injuries would be most relevant. The said witness Manisha in her evidence before the Court had categorically stated as to how the entire incident had taken place at about 4 a.m. when she was sleeping with her mother on the same cot. According to her, on 29.09.2010 at about 4.00 a.m. her father i.e. appellant had asked her mother to prepare tea, and thereafter, some altercation had taken place between her parents as her father had asked her mother not to go to the house of her (mother’s) brother. According to her, on 29.09.2010 at about 4.00 a.m. her father i.e. appellant had asked her mother to prepare tea, and thereafter, some altercation had taken place between her parents as her father had asked her mother not to go to the house of her (mother’s) brother. Thereafter, her father had given a blow with steel hammer on the head of her mother. Hearing the noise, she woke up and found that her mother was severally injured. She had further stated that when she tried to intervene, her father also gave blows on her head and on her back with the hammer. She had also stated that thereafter her father had run away from home. of course, in the cross-examination she had admitted that she had not heard the conversation, which had taken place between her parents before the alleged incident and that she was sleeping when her mother received the first blow. She had albeit stated that her mother was resisting and because of the noise she woke up. When she tried to shout, she was also beaten and then she became unconscious. 9. Mr. Buddhbhatti had tried to highlight the said admission made by the said witness Manisha to submit that the said witness having not actually seen her father beating her mother, and even otherwise she being of very young and tender age at the time of alleged incident her evidence required corroboration of other cogent evidence. In this regard it may be stated that as per the settled legal position, the testimony of child witness should not be rejected merely on the ground of witness being of tender age. The Court may seek corroboration, not as a rule but by way of caution. The said injured Manisha had categorically narrated the whole incident as to how her mother had received the injuries and how she was injured by her own father. The Court has no reason to misbelieve her version. It is also required to be noted that said Manisha was aged about 15 years of age at the time of incident and aged about 16 years at the time of giving her evidence before the Court. Hence, she could hardly be said to be a child. The Court has no reason to misbelieve her version. It is also required to be noted that said Manisha was aged about 15 years of age at the time of incident and aged about 16 years at the time of giving her evidence before the Court. Hence, she could hardly be said to be a child. It is needless to say that evidence of the person injured would be the most relevant piece of evidence and in the instant case the injured witness is none other than the daughter of the accused, apart from the fact that other witnesses had also fully corroborated the version of the prosecution. 10. Mr.Buddhbhatti had tried to emphasize that the witness Bhavanbhai, who had allegedly gone to inform the complainant had turned hostile. However, nothing material turns out from his evidence though he was declared hostile. As held by the Supreme Court in the case of Koli Lakhmanbhai Vs. State of Gujarat reported in AIR 2000 SC 210 , even the evidence of the hostile witness can be relied upon to extent to which it supports the prosecution version. In the instant case, the prosecution had examined the brothers of the deceased Baghuben and of the complainant Batukbhia Nanabhai, who had stated in their respective evidence that they had gone to the house of their sister Baghuben on the information given by the said witness Bhavanbhai. It is true that the evidence of related or interested witnesses should be meticulously and carefully examined, but their testimony could not be discarded only on the ground of they being the close relatives. In the instant case, the parents and brothers of the deceased except the brother Mepabhai, have categorically corroborated the version of the injured witness Manisha as regards the alleged incident and the injures received by her and her mother i.e. the deceased. Even the said witness Mepabhai had stated the history before the doctor who had treated the said Manisha, as recorded in the injury certificate at Exh.26 that she was assaulted by her father with hammer. Thus, the version of said injured gets corroboration from the reliable medical as well as oral evidence. 11. Even the said witness Mepabhai had stated the history before the doctor who had treated the said Manisha, as recorded in the injury certificate at Exh.26 that she was assaulted by her father with hammer. Thus, the version of said injured gets corroboration from the reliable medical as well as oral evidence. 11. Having regard to the totality of the facts and circumstances of the case, the Court is of the opinion that the Sessions Court has rightly considered and appreciated the evidence on record and convicted and sentenced the appellant-accused for the charges levelled against him, and the Court does not see any reason to interfere with the findings recorded by the Sessions Court. 12. In that view of the matter, the judgment and order dated 09.01.2012 of conviction and sentence passed by the 3rd Additional Sessions Judge, Bhavnagar in Sessions Case No.9 of 2011 is confirmed. The appeal being devoid of merits is dismissed. Record and proceedings, be sent back to the Court below forthwith.