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SUPREME COURT OF INDIA
FAKKIR MOHAMED IBRAHIM KALIFULLA, UDAY UMESH LALIT, JJ.
Harijan Jivrajbhai Badhabhai - Appellant
Versus
State of Gujarat - Respondent
Criminal Appeal No.1694 of 2009
Decided On : 11-05-2016
(b) Criminal trial – Presence of witness at the place of occurrence – PW 28, a police officer present in adjoining court room waiting to give hi evidence – Commotion in court room where occurrence took place naturally attracted his attention and drawn him to the PoO – Further, being posted in the area for 10 years he was naturally able to identify both the accused – His presence cannot be doubted. (Para 13)
Facts of the case;
One Dalpat was required to attend the Court of 6th Joint Civil Judge (Senior Division) and Judicial Magistrate First class, Bhavnagar as an accused and was standing with his co-accused PW 29 Mahendra in the corridor next to the Courtroom waiting for their case to be called out. On the very day original accused No.1 Keshu Badha also had a case listed in that Court for framing of charges. While Dalpat was waiting in the corridor, Accused No.1 Keshu Badha and Accused No.2 Jivraj Badha i.e. the appellant came running with sharp cutting weapons in their hands. Apprehending danger to his life, Dalpat rushed into the Courtroom but both the accused chased him into the Courtroom.
Both the accused killed Dalpat with their weapons.
The trial court convicted both A1 Keshu Badha and A2 Jivraj Badha of the offence punishable under Section 302 IPC and sentenced them to undergo rigorous imprisonment for life and to pay fine of Rs.10000/- each, in default whereof to undergo further rigorous imprisonment for two years.
Accused No. 1 Keshu Badha died during the pendency of the appeal before High Court and the appeal at his instance stood abated. The High Court affirmed the conviction and sentence of A2 Jivraj Badha, appellant herein and dismissed his appeal.
Finding of the Court:
There is no infirmity in the impugned order.
Result: Appeal dismissed.
JUDGMENT :
Uday Umesh Lalit, J.
1. This appeal by special leave at the instance original Accused No.2, seeks to challenge the judgment and order dated 16.02.2009 passed by the High Court of Gujarat at Ahmedabad dismissing Criminal Appeal No. 1035 of 2002 preferred by the appellant challenging his conviction and sentence in Sessions Case No. 62 of 1998, Rajkot, for offence punishable under Section 302 of the Indian Penal Code (for short IPC).
2. The incident giving rise to the present matter occurred on 16.09.1997 around 11:30 a.m. in the Courtroom of 6th Joint Civil Judge (Senior Division) and Judicial Magistrate First class, Bhavnagar. According to the prosecution one Dalpat was required to attend the 6th Court as an accused and was standing with his co-accused PW 29 Mahendra in the corridor next to the Courtroom waiting for their case to be called out. On the very day original accused No.1 Keshu Badha also had a case listed in that Court for framing of charges. While Dalpat was waiting in the corridor, Accused No.1 Keshu Badha and Accused No.2 Jivraj Badha i.e. the appellant came running with sharp cutting weapons in their hands. Apprehending danger to his life, Dalpat rushed into the Courtroom but both the accused chased him into the Courtroom. PW 25 C.R. Thakkar was the Presiding Officer of the Court while PW 30 Bhanji was Court Duty Constable sitting at the entrance of the Courtroom. The other members of Court staff present in the Courtroom were PW 23 Harshaben, Court Clerk, PW 24 Ajitbhai Court Clerk, PW 31 Arvindbhai, Junior Clerk.
3. As Dalpat ran into the Courtroom with both the accused chasing him with sharp cutting weapons, there was commotion and people started running helter skelter. PW 25 C.R. Thakkar jumped from the dias and along with the other Court staff ran out. Both the accused gave sharp cutting injuries to Dalpat who collapsed near the dias. According to the prosecution this incident was witnessed by PW 30 Bhanji-Court Duty Constable, PW 29 Mahendra co-accused of said Dalpat and PW 28 P.S.I Kanubhai Patel who was present in the adjoining Court of the Additional Sessions Judge in connection with a case wherein he was one of the witnesses. Having heard the commotion in the adjoining Court, PW 28 PSI Kanubhai, rushed to Courtroom No.6 and found that Dalpat was being assaulted by both the accused. In order to capture the assaulting accused, PW 28 Kanubhai with the help of PW 30 Bhanji closed the door of the Court from outside and also closed the shutter of the lobby and then went to inform local police. He asked Head Constable Barot to make a call and while returning back to Courtroom No.6 came to know that two persons with a big knife had run away from the back side of the Courtroom. He tried to chase them but could not arrest them.
4. PW 39 Police Inspector L.K. Chudawat who was present in Bhavnagar P.S. received a message about the scuffle in Courtroom No.6 and he rushed along with other staff. When he reached, he found crowd having gathered in front of the Court and found shutter of the Courtroom closed.
After the shutter was opened, he found Dalpat lying dead near the dias with sharp cutting injuries. The assailants however had made good their escape by removing a grill. He conducted inquest panchnama at about 12:00 noon in respect of dead body and arranged for sending the dead body to the hospital for post-mortem which was conducted between 1:00 pm to 2:00 pm. Since the incident had taken place inside the Courtroom, PW 39 P.I. Chudawat felt it necessary to inquire from the Presiding Officer but PW 25 C.R. Thakkar refused to lodge the complaint. He thereafter inquired from PW 30 Bhanji about the details regarding the occurrence. In the First Information Report which was lodged at about 3 p.m. on the basis of statement of PW 30 Bhanji, initially three persons were named as accused. Apart from A1 Keshu Badha and A2 Jivraj Badha one Vikram Jesingh was also named. PW 39 P.I. Chudawat recovered two sheaths of knife
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