Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(Guj) 261

GUJARAT HIGH COURT
Hon’ble Mr. Justice K.S. Jhaveri & Hon’ble Mr. Justice K.J. Thaker
Antariyabhai Bhangdabhai Rathva
Versus
The State of Gujarat
Criminal Appeal No. 1533 of 2004—Decided on 05/07/2013

Advocates:
Appearance :
Mr. Harnish V. Darji, Advocate for the Appellant(s) No. 1.
Ms. C.M. Shah, Addl., Public Prosecutor, for the Opponent(s)/Respondent(s) No. 1.

Point in Issue :
Whether in the facts of the case conviction of appellant for murder of deceased is sustainable.

Headnote:[Indian] Penal Code, 1860 (Central Act 45 of 1860)—Section 302— Bombay Police Act, 1951 (Bom. Act No. 22 of 1951)—Section 135—Murder—Caused due to assault by way of a sharp and pointed weapon—Conviction—Appreciation of evidence—Finding of—Sustainability—On account of enmity accused alleged to have inflicted injuries to deceased resulting in his death—PW 1 is wife of the deceased and PW 5 is brother of the deceased and they fully support the prosecution—According to medical opinion cause of death of the deceased was injuries sustained by him on the head and brain cerebellum which could be caused by pointed and sharp weapon—The appellant has challenged statements of eye witnesses on ground of alleged contradiction and they being relatives of the deceased—Appellant also contended that prosecution has not examined any independent witness—Court however did not find any force in the contention raised by appellant—The witnesses in the case are deposing after a year and are from rural area—The contradiction alleged by appellant do not affect adversely the merit of the case—In the case it is important to note that accused appellant had surrendered before the police station himself for the alleged offence with weapons—His clothes and weapon have been found stained with blood group of accused—Ld. Advocated for appellant has failed to enable the Court to take different view to the one taken by trial Court.
       Held :
       Court is unable to accept any of these submissions, so far as PW 4 and PW 5 are concerned inasmuch as it is no doubt true that they are closely related to the deceased, PW 4 Medliben being wife of the deceased and PW 5 Bharat Sinh being brother and for that reason they may be interested witnesses. However, the law is well settled that the testimony of a partisan or interested witness cannot be discarded merely on that account. The testimony of such a witness cannot be equated with that of a tainted witness. [Para 11.1]
       Court is also unable to accept the submission of the learned Counsel for the appellant that if the prosecution does not produce independent witnesses and merely produces interested witnesses adverse inference be drawn. There is no law requiring the prosecution to necessarily produce independent witnesses and adverse inference be drawn merely on account of their non-production. [Para 12]
       The Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution. [Para 13]
       In this regard, it is relevant to note that the accused-appellant had surrendered before the police station in connection with the alleged offence. A panchnama was therefore done and the clothes of the accused and alleged muddamal dhariya both of which contained blood stains were seized. [Para 14]
       A perusal of the FSL report on the blood stains on the accused’s shirt and muddamal weapon shows that the blood group on them matches with that of the deceased. Even the mud collected from the scene of offence shows that the blood group is AB which is of the deceased’s. The same blood group is found on the stains on the clothes of the deceased. [Para 14.1]
       Moreover, as per the latest decision of the Apex Court, Court has appreciated, re-appreciated and re-evaluated the evidence led before the trial Court in its entirety but Court is unable to persuade ourselves to take a different view than the one taken by the trial Court. Learned advocate for the appellant is not in a position to point out any cogent evidence or circumstance so as to enable this Court to take a view contrary to the one taken by the trial Court. [Para 16]
       Law Laid Down :
       It is not the law that evidence of interested witness requires corroboration as a matter of necessity to rely on.

Judgment

K.S. Jhaveri, J.—The accused namely, Antariyabhai Bhangdabhai Rathva was charged with offence under Section 302 of Indian Penal Code and Section 135 of Bombay Police Act. The accused was found to be guilty of the offence with which he was charged by the Additional Sessions Judge & Fourth Fast Track Judge, Fast Track Court, Chhota Udaipur vide its judgment dated 06.08.2004 passed in Sessions Case No. 15 of 2003 and was awarded life imprisonment and was ordered to pay fine of Rs. 2000/-, in default, rigorous imprisonment for two months for the offence under Section 302 IPC. For the offence under Section 135 of B.P. Act, no separate punishment has been imposed. The appellant, being aggrieved and dissatisfied, by the said judgement and order of conviction dated 06.08.2004 has preferred this appeal.

2. The facts leading to the present appeal are as follows:—

2.1 A complaint was lodged by one Medliben Mithiyabhai on 29.11.2002 with Rangpur Police Station inter alia alleging that while she along with her husband, sister, brother-in-law and some other persons of her faliya were standing near Rangpur bus stand at around 2.30 pm waiting for transport, a jeep came there and they started loading the jeep with their luggage. At that time, the accused-Antariya Bhangda Rathva came there with dhariya and inflicted two blows on the head of the husband of the complainant with the dhariya. The husband of the complainant fell down on the road. The accused-appellant fled away from the scene of offence.

2.2 It is further stated in the complaint that she started shouting for help and many shopkeepers who had their shops nearby came there. She, thereafter, frantically ran to her sister’s house who lived nearby to inform her sister and brother-in-law. When she reached her sister’s house, she was told that her brother-in-law (sister’s husband) had gone for work and she therefore narrated the entire incident to her sister. The complainant and her sister thereafter reached Rangpur bus stand and it is stated that by that time police authorities had arrived at the scene of offence.

2.3 It is further stated in the complaint that the dead body of the deceased was taken in a vehicle and that her sister as well as daughters of elder brother-in-law (jeth) accompanied the deceased whereas the complainant, her sister and other persons went to the police station to lodge a complaint in this regard.

2.4 The complainant in her complaint has stated the motive of the accused-appellant in committing the alleged offence. She has stated that two years back the family of the deceased was involved in the murder of the nephew of the accused involving a lady Remliben and therefore the accused was holding a grudge against the deceased and his family members.

2.5 Thereafter, the offence was registered against the present appellant for the offences punishable under Section 302 of Indian Penal Code and Section 135 of B.P. Act. Investigation was carried out and charge-sheet was submitted against the appellant. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court which was thereafter transferred to Fast Track Court, Chhota Udepur.

2.6 The trial was initiated against the appellant and during the course of trial the prosecution examined following witnesses as oral evidences:

(i) P.W. 1 – Dr. Kishore Desai Ex. 09

(ii) P.W. 2 – Jinkiben Metabhai Ex. 13

(iii) P.W. 3 – Tersinghbhai Rathva Ex. 14

(iv) P.W. 4 – Mendliben Bhuvansingh Ex. 15

(v) P.W. 5 – Bharatsinh Mithiyabhai Ex. 16

(vi) P.W. 6 – Virsinghbhai Vajubhai Ex. 17

(vii) P.W. 7 – Jorliyabhai Rathva Ex. 18

(viii) P.W. 8 – Bhailalbhai Gatubhai Ex. 19

(ix) P.W. 9 – Dr. Avaniben Vyas Ex. 24

(x) P.W. 10 – Dr. Sunilkumar Patel Ex. 30

(xi) P.W. 11 – Akmabhai Damor Ex. 33

2.7 The prosecution also relied upon the following documents as documentary evidences:

(i) Complaint Ex. 42

(ii) Police Yadi Ex. 25

(iii) Medical Certificate (Bhuvansin

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2013 Supreme(Guj) 261

GUJARAT HIGH COURTHon’ble Mr. Justice K.S. Jhaveri & Hon’ble Mr. Justice K.J. ThakerAntariyabhai Bhangdabhai Rathva VersusThe State of GujaratCriminal Appeal No. 1533 of 2004—Decided on 05/07/2013

Point in Issue :Whether in the facts of the case conviction of appellant for murder of deceased is sustainable.

Cases Referred (3)

GUJARAT HIGH COURT
Hon’ble Mr. Justice K.S. Jhaveri & Hon’ble Mr. Justice K.J. Thaker
Antariyabhai Bhangdabhai Rathva
Versus
The State of Gujarat
Criminal Appeal No. 1533 of 2004—Decided on 05/07/2013

Point in Issue :
Whether in the facts of the case conviction of appellant for murder of deceased is sustainable.