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2014 Supreme(Guj) 118
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHASKAR BHATTACHARYA and J.B.PARDIWALA, JJ.
MANGLU JIVABHAI JALSANIYA - Appellant(s)
Versus
STATE OF GUJARAT - Opponent(s)/Respondent(s)
CRIMINAL APPEAL NO. 644 of 2009
Decided on : 09/04/2014
MS MEENU KUMAR, ADVOCATE for the Appellant(s) No. 1
MR KP RAVAL, APP for the Opponent(s)/Respondent(s) No. 1
Headnote:
Code of Criminal Procedure, 1973 – Section 209 – Indian Penal Code, 1860 – Section 302 – accused has habit of committing theft –Accused with view to seek revenge, on day of incident inflicted single injury on chest of deceased with knife near gate of Middle School – First Information Report was lodged – Victim was taken to Hospital – Doctor declared "brought dead" –Order of conviction and sentence passed by Additional Session Judge, in Sessions Case – By the aforesaid order, Additional Sessions Judge found appellant guilty of offence punishable under Section 302 of Indian Penal Code and consequently sentenced him to suffer life imprisonment and fine – In default of payment of fine, appellant was directed to undergo further simple imprisonment for four months – Aggrieved by said order accused filed an appeal – Held, Trial Court did not take pains to see that panchnama was read over to panch before it was exhibited – A panchnama which can be used only to corroborate the panch has to be read over to the panch and only thereafter it can be exhibited – It is also necessary that trial Judge ensures that panchnama is read over to panch witness and thereafter panchnama is exhibited after following procedure, as indicated above –Circumstance of recovery of weapon of offence, the knife, is also hardly of any consequence in the background in which the same was recovered –Trial Court committed serious error by placing reliance on evidence of PW-2, the PW-3 and the PW-4 in finding the accused guilty of offence of murder – Order of conviction and sentence are hereby set aside – Appeal allowed.
J.B. PARDIWALA, J.
1. The present appeal is at the instance of a convict-accused of the offence under Section 302 of the Indian Penal Code and is directed against an order of conviction and sentence dated 2nd July 2008 passed by the learned Additional Session Judge, 2nd Fast Track Court, Amreli, in Sessions Case No.20 of 2007. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently sentenced him to suffer life imprisonment and fine of Rs.1,000/-. In default of payment of fine, the appellant was directed to undergo further simple imprisonment for four months.
2. CASE OF THE PROSECUTION:-
2.1 The accused was in the habit of committing theft. A month and a half before the date of the incident, the accused had come to the agricultural field of the deceased and at the point of time the deceased had driven him out by rebuking him. The accused felt bad and with a view to seek revenge, on the day of the incident at around 1:30 in the afternoon inflicted a single injury on the chest of the deceased with a knife near the gate of the Middle School situated at Bagasara town.
2.2 It appears that the PW-2, Hasmukhbhai Govindbhai Trapasiya, the elder brother of the deceased, lodged a First Information Report, Exh.18, at the Bagasara Police Station, stating that the deceased was his younger brother. The PW-2 stated in the FIR that on 22nd November 2006 in the afternoon hours while he was at his home, one Ghanshyam Lakhani and Chandubhai Suhagia came running and informed him that his brother Vitthal, the deceased, had been stabbed near the Middle School by the accused with a knife. On learning about the same, the PW-1 and others reached near the Middle School and at that point of time, the PW-3, Kalubhai, and the PW-4, Mukeshbhai were putting the deceased in a rickshaw, in a bleeding condition. He has further stated in the FIR that at that point of time he inquired with his brother and his brother replied that the accused had inflicted injury with a knife. Thereafter, the deceased did not utter anything. He has further stated that the PW-3, Kalubhai Mohanbhai and the PW4, Mukeshbhai conveyed to him that they witnessed the accused inflicting injury on the deceased with a knife while they were passing through the road. He has further stated that thereafter the deceased was taken to Bagasara Government Hospital in an auto-rickshaw of Haribhai Sodhvadia and upon examination by the doctor his brother was declared “brought dead”. He has further stated that while at the hospital a person named Haribhai Sodhvadia conveyed him that the accused after inflicting injury rushed towards him in anger and threatened to kill him by showing a knife.
2.3 On the complaint being lodged by the brother of the deceased, the investigation had commenced. The inquest panchnama of the dead body of the deceased was drawn, Exh.27, in presence of the panch witnesses. The scene of offence panchnama, Exh.25, was drawn in presence of the panch witnesses. The clothes worn by the deceased at the time of the incident were collected by drawing a panchnama, Exh.29. The dead body of the deceased was sent for postmortem examination and the postmortem report, Exh.11, revealed that the deceased had sustained a stab injury on his chest and the cause of death assigned in the postmortem report was respiratory failure due to shock as a result of injury to the major vessels. The election card recovered from the pocket of the deceased was collected by drawing a panchnama, Exh.31. The accused was arrested and the arrest panchnama, Exh.34, was drawn in presence of the panch witnesses. After the arrest of the accused, the blood sample of the accused as well as the deceased was collected by drawing a panchnama, Exh.36. The muddamal articles collected in the course of investigation were sent to the Forensic Science Laboratory for chemical analysis. The serological test re
