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2013 Supreme(Guj) 332
Gujarat High Court
Hon’ble Mr. Justice Akil Kureshi & Hon’ble Mr. Justice R.P. Dholaria
Bharatbhai Vaghabhai Koli
Versus
State of Gujarat
Criminal Appeal No. 1372 of 2008—Decided on 06/08/2013
Appearance :
Mr. K.I. Kazi, Advocate for the Appellant No. 1.
Mr. H.L. Jani, APP, for the Opponent/Respondent No. 1.
Point in Issue :
Whether in the facts and circumstances of the conviction of appellant accused for the murder of the deceased — Sustainable.
Headnote:Head Note :
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Section 302 — Bombay Police Act — Section 135 — Murder — Stab injury over abdomen with knife — Conviction — Appreciation of evidence — Finding as to — Sustainability — Prosecution has examined 20 witnesses and has produced 34 documents to prove that accused committed the murder of the deceased by causing stab injury over his abdomen by knife — To prove that it was homicidal death two medical officers PW. 3 and PW. 1 are examined — PW. 3 was first to attend the deceased when he was brought to Community Health Centre and PW. 1 is the doctor who carried out the post mortem of deceased — They have stated that deceased had received the stab injury on his stomach and it was serious injury to which deceased succumbed — Dr. PW 3 also identified the knife and stated that alleged injury to the deceased is possible with the said knife — PW. 4 and PW. 13 are examined as eye witnesses to the incident — They have clearly supported the prosecution case — They have also deposed that two days before the present incident there was altercation between the deceased and accused regarding lighting of fire-Crackers — Besides the evidence of these two eye witnesses PW. 2 is the complainant in the case — He also corroborated the evidence of PWs. 4 and 13 — In order to prove the discovery of muddamal art. 1, knife the prosecution has produced Panchnama Exh. 48 — The Panchas of Exh. 48 have turned hostile but they admit their signatures on recovery memo — In the light of the evidence of above witnesses and other witnesses supported by medical evidence and recovery of muddamal, prosecution has prove the offence of murder against the present appellant — He is therefore rightly convicted for the said offence by the trial Court — Court confirmed the judgment of trial Court.
Held :
In order to prove that the death of the deceased Dhanjibhai was homicidal, the prosecution has examined Dr. Rakesh Markand Maitri who was the Medical Officer at Community Health Centre, Vinchhiya before whom the deceased Dhanjibhai Valjibhai Bhatiya was brought at about 8:30 p.m. on the day of incident.
In his opinion, the injury found on the body of the injured is possible with this knife and the injury was very serious. In the cross-examination he has, however, admitted that the deceased has not given any name of the assailants. [Para 11]
The Doctor who was on duty had examined Dhanjibhai and found him dead. He deposed that he has carried out the postmortem of the deceased upon receipt of death report from the police and inquest panchnama. The Doctor has admitted that the injury No. 1 is possible with the muddamal article No. 11, knife. He produced the postmortem report at Exh. 22. [Para 12]
So far as discovery panchnama is concerned, we may note that though the Panchas had turned hostile, on going through the evidence of the Investigating Officer in whose presence the aforesaid panchnama was carried out, he has clearly and categorically deposed that the aforesaid panchnama has been drawn in his presence and in presence of Panchas and Panchas have also admitted their signatures on the said panchnama. After having admitted their signatures on the discovery panchnama, the Panchas turned hostile. [Para 23]
It can be seen from the aforesaid evidence on record that the prosecution has successfully brought on record that the victim Dhanjibhai was there at the place of incident along with the complainant and other three eye-witnesses viz. Lakhman Vala, Devraj Vira and Savsi Karshanbhai. Upon infliction of knife blow on the deceased Dhanjibhai they shouted due to which other persons viz. Vala Hama, Lakhman Hama, Virambhai Motibhai, etc. also came to the place of the incident. This fact is revealing from the FIR Exh.28 itself which has been lodged by the first informant before the Police Sub Inspector, Pradyuman Nagar Police Station, Rajkot at about 00:30 hours on the same night when the incident occurred. [Para 26]
From perusal of the aforesaid evidence of complainant as well as three eye-witnesses, it can be seen that their evidence regarding motive of the incident, genesis of the incident and the accused Bharat Vaghabhai inflicted a knife blow on the stomach of the deceased Dhanjibhai is coherent, consistent and identical. In our scrutiny of the aforesaid evidence of the eye-witnesses, we find it trustworthy and reliable for recording the conviction of the accused Bharat Vaghabhai. [Para 30]
Law Laid Down :
It is open for the prosecution to rely on the contents of the Panchnama when the Panchas have admitted their signatures on the Panchnama and recitals of the Panchnama were proved through the Investigating Officer.
R.P. Dholaria, J.—The appellant has, by way of preferring present appeal, challenged the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Limbdi (hereinafter referred to as the learned Judge) in Sessions Case No. 9 of 2007 whereby the appellant accused has been held guilty of the offences punishable under Section 302 of Indian Penal Code and under Section 135 of the Bombay Police Act and awarded sentence of life imprisonment for the offence punishable under Section 302 of Indian Penal Code and 6 months’ simple imprisonment for the offence punishable under Section 135 of the Bombay Police Act. The learned Judge has also imposed fine of Rs. 5000 (Rupees five thousand only) for the offence punishable under Section 302 of Indian Penal Code and in default of payment of fine, the appellant was directed to undergo 1 year’s rigorous imprisonment. So far as offence under Section 135 of Bombay Police Act is concerned, the learned Judge has imposed fine of Rs. 500/- (Rupees five hundred only) and in default of payment of fine, the appellant was directed to undergo 1 month’s simple imprisonment. Both the sentences were ordered to run concurrently.
2. Filtering out unnecessary details, brief facts of the case may be stated as under:
2.1. It is the case of the prosecution that on account of previous animosity arisen on the day of Diwali regarding lighting of fire-crackers, on 24.10.2006, at about 8:00p.m., present appellant along with accused Nos. 2 and 3 had come near the shop of one Gopal Babar in village Samdhiyala of Sayla Taluka and accused Nos. 2 and 3 caught hold the deceased Dhanjibhai Valabhai Rabari and accused No.1 inflicted a fatal knife blow to the deceased on his stomach which caused grievous injury to the deceased due to which he succumbed to the injuries within few hours.
2.2. The cousin brother of the deceased i.e. Aapabhai Lakhmanbhai, thereupon, lodged the first information before the Pradhuman Nagar Police Station, Rajkot. As the incident was occurred within the jurisdiction of Sayla Police Station, the said FIR was transmitted to the Sayla Police Station. Thereupon, the investigation was carried out. The statements of various witnesses were recorded. Panchnamas were drawn. Postmortem of the dead-body was carried out. The muddamal articles recovered under various panchnamas were sent for analysis at Forensic Science Laboratory. The chargesheet was filed before the concerned Court. The case was committed for sessions trial. The charge was framed. The learned Additional Sessions Judge, Limbdi has rendered his judgment of conviction and sentence dated 12.02.2008 in Sessions Case No. 9 of 2007 inter alia convicting the appellant herein and sentencing him to undergo life imprisonment and other sentences as narrated above with fine.
3. Being aggrieved by and dissatisfied with the said judgment of conviction and sentence, the appellant has preferred present appeal.
4. The learned Additional Sessions Judge framed the charge against the present appellant as well as other two accused vide Exh.3 that on account of ill-feeling with complainant Aapabhai Lakhmanbhai Rabari developed on the day of Diwali on account of lighting of firecrackers, at 8:00 p.m. on 24.10.2006, near the shop of Gopal Babar situated at village Samadhiyala of Sayla Taluka, accused Nos. 2 and 3 caught hold the deceased Dhanjibhai Valabhai Rabari and accused No. 1 Bharatbhai Vaghabhai inflicted a fatal knife blow on the stomach of the deceased Dhanjibhai Valabhai and thereby committed his murder. Thus, the appellant was charged with the offence of murder and also charged with the offence of keeping deadly weapon such as knife with him and thereby committed the breach of the notification issued by the District Magistrate under Section 135 of the Bombay Police Act. The accused were also charged with the offence punishable under Section 323 read with Section 114 of Indian Penal Code.
5. In order to prove the aforesaid
