Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 57 (GUJ)

Govindbhai Mavjibhai Bhathvar v. State of Gujarat

2020-01-10

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

body2020
JUDGMENT : Vireshkumar B. Mayani, J. 1. The present appeal is directed against the judgment and order of conviction and sentence dated 23.12.2013 passed by the learned 5th Additional Sessions Judge, Bhavnagar Camp at Botad in Sessions Case no.96 of 2013, whereby the appellant has been convicted for the offence punishable under Section 302 of the IPC and has been sentenced to undergo life imprisonment and fine of Rs.5,000/and in default, to undergo simple imprisonment for one year. The appellant also came to be convicted under Section 135 of the Gujarat Police Act and was sentenced to undergo simple imprisonment for one month and fine of Rs.500/and in default, to undergo simple imprisonment for seven days. The learned Sessions Judge also directed that all sentences shall run concurrently. 2. It was the case of the prosecution that the incident occurred on 18.2.2013 at about 7.15 p.m. at Ambedkar Chowk at Botad. It was the case of the prosecution that the original complainant and the deceased went to Ambedkar Chowk at Botad for purchasing Pan Masala and were standing near Pan shop. It further reveals that at that moment, the accused reached Pan shop and parked their motorbike. It was the case of the prosecution that the deceased – Pintu was standing near Pan shop and the appellant and other person accompanying him stated that you have become Don Makwana and when the deceased – Pintu inquired as to what damage has been caused by him, the appellant took out his knife and gave one blow with the knife on the chest of the deceased – Pintu. It is the say of the prosecution that another person – Tapubhai Mavjibhai instigated the appellant by stating that he should not remain alive. On the aforesaid factual matrix, FIR was lodged with Botad Police Station being Exh.14. The investigation was carried out by the police authorities and the charge was framed and as the appellant did not plead guilty and preferred to be tried, the trial was conducted. The prosecution examined 8 Prosecution Witnesses including the complainant and relied upon the documentary evidences, such as, inquest Panchnama Exh.17, Panchnama of scene of occurrence at Exh.18, Panchnama of the clothes of the accused at Exh.19, medical case papers of Pareshbhai at Exh.22, discovery panchnama of knife at Exh.32, station diary Exh.34, serological report at Exh.50 in particular. The prosecution examined 8 Prosecution Witnesses including the complainant and relied upon the documentary evidences, such as, inquest Panchnama Exh.17, Panchnama of scene of occurrence at Exh.18, Panchnama of the clothes of the accused at Exh.19, medical case papers of Pareshbhai at Exh.22, discovery panchnama of knife at Exh.32, station diary Exh.34, serological report at Exh.50 in particular. The learned Sessions Court, after appreciation of the evidence on record, came to the conclusion that the appellant – accused is guilty of the offence of murder and convicted for the offence punishable under Section 302 of the IPC and Section 135 of the Gujarat Police Act as described above. The learned Sessions Court was pleased to acquit original accused no.2– Tapubhai Mavjibhai Bathvar. The appellant –original accused no.1 – Govindbhai Mavjibhai Bathvar, being aggrieved by the said judgment and order of conviction and sentence, has preferred this appeal. 3. Heard Mr. P.M. Lakhani, learned advocate for the appellant and Mr. Hardik Soni, learned Additional Public Prosecutor for the respondent – State. 4. Mr. P.M. Lakhani, learned advocate for the appellant has contended as under: 4.1That, the socalled witness posed himself to be the eyewitness has turned hostile and has not supported the case of the prosecution and the prosecution has not been able to prove the guilt against the appellant. It was contended that the learned Sessions Judge has therefore committed an error in appreciating the evidence on record and has wrongly convicted the appellant. 4.2 Referring to deposition of PW1 Maheshbhai Rameshbhai Makwana, complainant in particular as well as other Prosecution Witnesses, it was contended that none of the witnesses have supported the case of the prosecution. It was further contended that injuries received by the deceased are not caused by knife and even though there was evidence on record, the learned Trial Court has committed an error and has wrongly believed the case of the prosecution. It was therefore contended that the impugned judgment and order of conviction and sentence is bad in law and facts and therefore, the same deserves to be quashed and set aside. It was further contended that the panch witness of the discovery panchnama of knife has not supported the case of the prosecution. Still however, the learned Sessions Judge has discarded the defence taken by the appellant to the effect that the deceased died due to injuries caused by centering plate. It was further contended that the panch witness of the discovery panchnama of knife has not supported the case of the prosecution. Still however, the learned Sessions Judge has discarded the defence taken by the appellant to the effect that the deceased died due to injuries caused by centering plate. It was also contended that even if the evidence of Medical Officer, PW4 –Dr. Bharatbhai Hargovindbhai Chavda is taken into consideration, in his cross-examination, he has categorically admitted the fact that sharp injury which was found on the body of the deceased can be caused by triangular plate. It was further contended that panch of the appellant's clothes is not examined and therefore, on that ground alone, the appellant is entitled to reasonable doubt, which should go in favour of the appellant. 4.3 It was further contended that the learned Sessions Judge has erred in not appreciating the serological report and has failed to appreciate that the prosecution has not been able to prove the case at all much less beyond doubt. It was further contended that in the case on hand, the learned Sessions Judge has convicted the appellant, whereas, on the same set of evidence, the learned Sessions Judge has acquitted the accused no.2 – Tapubhai Mavjibhai Bathvar. According to Mr. Lakhani, the incident as per the contentions raised by the complainant in the FIR at Exh.14 has not happened and the deceased died because of the injuries received because of triangular plate. It was therefore contended that the appeal may be allowed. 5. Per contra, Mr. Hardik Soni, learned Additional Public Prosecutor for the respondent – State has opposed the appeal. It was contended that the appellant had produced on record of the Sessions Case by Exh.12 the compromise purshis which is unknown to the criminal jurisprudence. According to the learned Additional Public Prosecutor, the appellant was strong enough to win over the witnesses who have categorically seen the offence committed by the appellant and the instigation by the original accused no.2. 5.1 Mr. Soni referred to and relied upon the deposition of PW4 – Dr. Bharatbhai Hargovindbhai Chavda and contended that the said witness is an independent witness and his testimony cannot be brushed aside. Mr. 5.1 Mr. Soni referred to and relied upon the deposition of PW4 – Dr. Bharatbhai Hargovindbhai Chavda and contended that the said witness is an independent witness and his testimony cannot be brushed aside. Mr. Soni, referring to the deposition of PW4, contended that uncle of the deceased who took the deceased to the hospital had given the history that he was attacked by the appellant by knife at 7.30 at Botad. It was further contended that the contentions raised by the appellant that the Doctor opined that the injury caused by the deceased can also be caused by a triangular plate which was lying near the scene of occurrence is misreading of the evidence of the said witness. It was contended that in his cross-examination, the said witness Dr. Bharatbhai Hargovindbhai Chavda has categorically denied the fact that the injuries received by the deceased was because of fall upon the triangular plate. Mr. Soni referring to the serological report at Exh.50, contended that clothes of the appellant is found to be blood stained and group of which was "O" positive which was blood group of the deceased. It was further contended that no explanation is rendered by the appellant for the same. Mr. Soni contended that even though the complainant – PW1 has turned hostile in his examination-in-chief which can be read into by this Court has categorically stated that he gave the FIR at Exh.14. On the aforesaid grounds, Mr. Soni contended that the learned Trial Court has committed no error in appreciating the evidence on record and the appeal, being meritless, deserves to be dismissed. 6. No other or further submissions, grounds and/or contentions are made by the learned advocates appearing for the respective parties. 7. The complainant – Maheshbhai Rameshbhai Makwana was examined as PW1 Exh.13. Though an eyewitness, he has not supported the case of the prosecution and has been declared hostile. However, in his examination-in-chief, he has stated that he did lodge FIR at Exh.14. However, in his cross-examination, he has totally changed his version even as regards the weapon used and the injury upon the deceased. 8. The another witness – Dhavalbhai Hareshbhai is examined as PW2 at Exh.15 who has also not supported the case of the prosecution and has turned hostile. However, in his cross-examination, he has totally changed his version even as regards the weapon used and the injury upon the deceased. 8. The another witness – Dhavalbhai Hareshbhai is examined as PW2 at Exh.15 who has also not supported the case of the prosecution and has turned hostile. The other witness relied upon by the prosecution is one Jitendrabhai Manjibhai who is eyewitness, PW3 at Exh.16 who has also not supported the case of the prosecution and has been turned hostile and has in fact even denied the fact that the deceased was attacked by knife by the appellant. 9. The prosecution has also examined PW4 Dr. Bharatbhai Hargovindbhai Chavda at Exh.20. The said witness has categorically stated that he was working as Medical Officer in Sonavala Hospital and on 18.2.2013, Jitubhai Makwana brought his nephew Paresh @ Pintu Hareshbhai Makwana. He has stated that when Pareshbhai was brought, his pulse as well as his breathing had stopped and blood was found coming out from nostrils as well as from mouth of Pareshbhai. He has stated that on inquiry being made, Jitubhai Manjibhai Makwana, the uncle of the deceased informed him that the present appellant at about 7.30 hrs. in the evening assaulted the deceased with knife. He has also stated that one Ratibhai was also accompanying the appellant. He has further stated that the deceased was declared to be dead and the procedure was adopted by him as a Doctor. He has also stated that he had noticed injury on the right side of the chest of the deceased and has also stated that the right side second rib was also found to have been broken. He has also stated that he had noticed injury in the right side diaphragm of the lungs of the deceased. He has also opined that the injuries found on the deceased can be caused by a weapon like knife. In his cross-examination, he has admitted the fact that the injuries caused to the deceased can be caused by a triangular plate. However, he has categorically denied the fact that if a person falls on such triangular plate, the person can receive the injuries as received by the deceased. 10. Shamjibhai Ganeshbhai Dabhi, PW5 at Exh.31 who is the Panch witness for the discovery of the weapon knife has turned hostile and does not support the case of the prosecution. 11. However, he has categorically denied the fact that if a person falls on such triangular plate, the person can receive the injuries as received by the deceased. 10. Shamjibhai Ganeshbhai Dabhi, PW5 at Exh.31 who is the Panch witness for the discovery of the weapon knife has turned hostile and does not support the case of the prosecution. 11. The prosecution has also examined Raghavdan Hemubhai Gadhvi, PW6 at Exh.33 who was working as Police Constable in Botad Police Station who has deposed that he has made entry no.15/13 in the police station diary about the incident and was incharge of the Police Station between 08.00 hrs. to 24.00 hrs. on 18.2.2013. He has also stated that on the same day, he received Yadi from Dr. Bharatbhai Hargovindbhai Chavda from Sonavala Hospital, on the basis of which, the entries have been made and has further narrated that Police Sub-Inspector Karangia was the investigating officer. 12. The prosecution has examined Bhupatbhai Arjanbhai Chauhan, PW7 at Exh.37 and also was the Panch witness for the discovery of knife who has not supported the case of the prosecution. 13. The prosecution has thereafter also examined investigating officer – Karshanbhai Nathubhai Karangia, PW8 at Exh.38. The said witness has categorically stated the manner in which the investigation was carried out by him including the discovery of the knife and the statements recorded. He has also stated that he forwarded the same weapon as well as other articles, such as, clothes, etc. to FSL. He has also identified both the accused who were present in the Court including the appellant. Even in his cross-examination, he has stood the test of his testimony. He has categorically denied that he himself had recorded the statement of all the witnesses at his Police Station. He has also denied the fact that the injuries sustained by the deceased were not caused by the knife. The prosecution has also brought on record the serological report at Exh.50. 14. We have perused the paper book of the learned Trial court. It deserves to be noted that the complainant – PW1 – Maheshbhai Rameshbhai Makwana has turned hostile and has not supported the case of the prosecution. However, under such circumstances, the version of such a witness made in the examination-in-chief can be considered. The same shows that he had filed an FIR at Exh.14. It deserves to be noted that the complainant – PW1 – Maheshbhai Rameshbhai Makwana has turned hostile and has not supported the case of the prosecution. However, under such circumstances, the version of such a witness made in the examination-in-chief can be considered. The same shows that he had filed an FIR at Exh.14. The said witness has not denied the fact that he gave the FIR in question. On bare perusal of the said FIR, the said witness has stated that the appellant took out knife and caught hold of the arm of the deceased and gave a blow on the chest with a knife. The following injury is found from the postmortem note at Exh.24: “1. Stab Wound over the Rt. side of upper chest wall, near 2 communicate away from sternum .. Rt. side 4 cm below to medical and of Rt. clavide size about (3 cm x 1.5 cm x deep to lung) in vertical place. with ... and acute and ... and ab.. with sharp cut margin. NAD NO Skull # Brain Ma... Pale # (cut) of Rt. 2 nd rib. (2 cm away from sternum) Rt. pleura cut parallel to injury mentioned of about 350 .. of blood in Rt. pleural cavity Lt. Pleura – normal Normal Rt. lung middle lobe stab wound of about (2.5 cm x 4.5 x 0.5 communicate) with damage of Rt. pulmomary vesseb. Normal In.. with Rt. atrium and Rt. ventricle empty” 15. Upon appreciating the evidence of PW4 – Dr. Bharatbhai Hargovindbhai Chavda, he has categorically stated that the injuries which are noticed by him on the body of the deceased clearly deal with the injuries mentioned in the postmortem note. Upon further appreciating the evidence of the said witness, he has stated that one Jitubhai Makwana who happens to be uncle of the deceased had stated before him that the deceased was assaulted by Govindbhai Mavjibhai Bathvar the present appellant at about 07:30 hrs. with a knife. Even in his cross-examination, though he has stated that stab injuries can be caused by a triangular plate, he has denied the fact that if a person falls on a triangular plate would sustain injuries similar to the injuries sustained by the deceased. Even M.L.C. at Exh.22 reads thus: “18/2/13 745 PM No pulse No Respiration Pupildilated fixed pt. expired -Inform relatives Inform Police Put dead body in pm room. Even M.L.C. at Exh.22 reads thus: “18/2/13 745 PM No pulse No Respiration Pupildilated fixed pt. expired -Inform relatives Inform Police Put dead body in pm room. bleeding from nostrils & oral cavity stab wound over the Rt. sided of chest (upper part) h/o assaulted done with Knife by Govindbhai mavjibhai Bathava at about 730 p, to 18213 at Botad. H/O – Given by Jitubhai Mavjibhai Makvwana.” 16. The aforesaid facts therefore clearly establishes the fact that the evidence of PW4– Dr. Bharatbhai Hargovindbhai Chavda clearly supports the case of the prosecution. In view of the above, the prosecution has established that deceased Pareshbhai @ Pintu died due to culpable homicide. Now it is important to establish that the author of the injury sustained by the deceased is the accused –appellant. Two eyewitnesses i.e. the complainant – Maheshbhai Rameshbhai Makwana and Jitendra Manjibhai Makwana had not supported the case of the prosecution and they were declared hostile. As per the submission of the learned APP, these witnesses were win over. In such a situation, when direct evidence is not available as eyewitnesses were hostile, we have to see the other circumstantial evidence. Here in the present case, the eyewitness – Jitendra Manjibhai Makwana had given history before the Doctor linking the appellant with the offence and the said Doctor had sent intimation regarding this fact to police and the said police was examined before the Court. Doctor has no reason to give false history. The clothes of the appellant were found to be blood stained which was found to be “O” i.e. blood group of the deceased and there is no explanation whatsoever by the appellant and such independent evidence is required to be appreciated in the case on hand. The cumulative effect of the abovementioned circumstances establish that the appellant had inflicted blow and therefore, deceased Pareshbhai @ Pintu died. The learned Sessions Judge has therefore committed no error in appreciating the evidence as such. 17. However, considering the fact that only one single blow is alleged and the injury as noted hereinabove was also a stab injury and the injury i.e. stab injury over right side of upper chest wall. In all the cases, where the deceased died due to single blow, cannot be considered as culpable homicide not amounting to murder. 17. However, considering the fact that only one single blow is alleged and the injury as noted hereinabove was also a stab injury and the injury i.e. stab injury over right side of upper chest wall. In all the cases, where the deceased died due to single blow, cannot be considered as culpable homicide not amounting to murder. But, at the time of appreciating evidence, the intention or knowledge that the injury is likely resulted into death or not is to be considered by the Court. The intention and the abovementioned knowledge can be gathered from the relevant fact prevailing in each case. Here in the present case on hand, there is only single blow upon right side of the chest of deceased. As per the case of prosecution, the deceased and complainant were standing and at that time, appellant came there, at that time, some altercation took place between them and appellant had inflicted blow upon the right side of the chest of deceased. Thereafter, the deceased ran away and afterwards fell down. Here at that time, the appellant had not run behind the deceased even though he had all the opportunity to run behind, caught the deceased and inflict more other blows to kill him. Therefore, there is no intention to kill the deceased. Moreover, everyone knows that the heart is at left side of the chest. The deceased died due to blow upon right side of the chest and therefore, it cannot be said that the appellant had inflicted blow with the knowledge as mentioned above. Therefore, the same amounts to culpable homicide and the same would fall within the exception of Section 300 of the IPC and there was no intention or knowledge as mentioned above for the death of deceased and thereby to commit murder and considering the single blow given by the appellant, the same, upon re-appreciation of the evidence on record, would amount to culpable homicide not amounting to murder and therefore, the appellant deserves to be convicted for the offence punishable under Section 304 Part II of the IPC instead of Section 302 of the IPC and upon re-appreciation of the evidence on record, the judgment and order of conviction for the death of deceased Pareshbhai @ Pintu therefore deserves to be upheld. Though the conviction is confirmed, the conviction deserves to be altered to Section 304 Part II of the IPC and the appellant deserves to be convicted for the offence punishable under Section 304 Part II of the IPC. Record indicates that the appellant is in jail since almost eight and a half years. 18. Resultantly, the appeal is partly allowed. The judgment and order of conviction and sentence dated 23.12.2013 passed by the learned 5th Additional Sessions Judge, Bhavnagar Camp at Botad in Sessions Case no.96 of 2013 is hereby quashed and set aside. The conviction under Section 302 of the IPC is hereby quashed and set aside and the conviction is altered to the extent that the convict–Govindbhai Mavjibhai Bathvar is convicted for the offence punishable under Section 304 Part II of the IPC and the sentence is hereby awarded to the extent of sentence undergone by himself. The convict–Govindbhai Mavjibhai Bathvar is in jail and therefore, if he is not required in any other offence, then, he shall be released forthwith. Fine awarded by the learned Trial Court of Rs.5,000/remains as it is, whereas, the conviction under Section 135 of the Bombay Police Act and the sentence of fine remains unaltered. Registry is directed to send back the record and proceedings to the Trial Court forthwith.