TAPUBHAI RAVATBHAI KATHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants have challenged their conviction under Sec. 302 read with Secs. 149, 147 and 148 of the I. P. Code as well as the sentence of imprisonment for life in respect of offence under Sec. 302 read with Sec. 149 and imprisonment for a period of one year in respect of the offence under Secs. 147 and 148, I.P.C. and to pay fine of Rs. 3000/- each, in default, further imprisonment for a period of three months. The appellant No. 2 has also challenged his further conviction under Sec. 506(2) of the Indian Penal Code as well as the sentence of imprisonment for a further period of one year and fine of Rs. 100/-, in default, further imprisonment for a period of three months recorded by the learned Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 24 of 1997, in the present appeal which is filed under Sec. 374(2) of the Code of Criminal Procedure, 1973

(2.) The prosecution case, in a nutshell, can be stated as follows : 2.1 The incident in question is alleged to have taken place at the field of Laghdirbhai Danabhai situated at Nagalka Road in sim of village Sanganpur, Tal. Dhandhuka on 27th September, 1996 at about 4-30 a.m. According to the prosecution version, the appellant No. 1 armed with a spear, the appellant No. 2 armed with a gun, the appellant Nos. 3 and 4 armed with axe and the accused No. 5 armed with dharia had on the said date and time unlawfully assembled in the said field with a common object of committing murder of deceased Aalubhai Jilubhai which was three fields away from the field of the deceased and caused several injuries to deceased Aalubhai Jilubhai on various parts of the body. At that time, hearing some rowdy commotion, the complainant Jilubha (P.W. 1) and his son Mansi (P.W. 3) rushed to the spot from their own field and they saw all the accused persons beating Alubha whereupon the appellant No. 2- Shantubhai stopped them at the point of gun. In the meantime, on account of the beating by the appellants-accused, deceased Aalubhai fell down and the appellants-accused fled away. Thereafter, Mansi, took the deceased to the hospital in a chhakada rickshaw, however, since the doctor was not present there, they left for Limdi hospital and while on their way to Limdi hospital the deceased Aalubhai had expired. At Limdi hospital, the doctor who examined Aalubhai declared him dead. The on-duty Police Officer, Limidi Hospital Shri Ashokkumar on receiving a vardi from Police Station Officer, Limdi Police Station on 27-9-1996 at about 7-30 a.m. for going to hospital in connection with the dead body of a person brought to the hospital, went to the hospital and after seeing the dead body he collected details from Jilubhai, P.W. 1 who happens to be the father of the deceased. Ashokkumar P.W. 8 then prepared the inquest panchnama of the dead body (Exh. 18) and the complaint as given by Jilubhai was also reduced into writing. Thereafter, he sent the complaint to Limdi Police Station along with the inquest panchnama for its registration and also forwarded the dead body for post mortem. However, since the offence in question was of the jurisdiction of Ranpur Police Station, Shri Ranabhai Vaghela of Limdi Police Station registered the complaint on 27-9-1996 and forwarded the same along with inquest panchnama to Ranpur Police Station. The P.S.I. Ranpur Police Station Mr. Bharatsinh Vaghela on receiving the said complaint on 27-9-1996 at about 2-00 p.m. registered the offence and commenced investigation. During the course of investigation, the Investigating Officer drew the panchnama of the scene of offence, recorded statements of witnesses and the accused persons came to be arrested on 1-10-1996. Thereafter, panchnama of the physical condition of the accused were made (Exh. 27), weapons were recovered under a discovery panchnama (Exh. 34). The clothes worn by the accused Ranubhai were also seized under a panchnama. The muddamal articles and the blood-stained earth and control earth were then sent for the chemical analysts and reports Exhs. 31 and 32 were received. At the conclusion of the investigation, the appellants were charge-sheeted and charge-sheet was submitted in the Court of learned J.M.F.C., Dhandhuka for the offences punishable under Sec. 302 read with Secs. 149, 506(2) and also under Sec. 135(1) read with Sec. 135(l)(d) of the Bombay Police Act. The accused No. 1 was also charge-sheeted for an offence punishable under Sec. 30 of the Arms Act. As the offences in question were exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court at Ahmedabad Rural for trial where it was numbered as Sessions Case No. 24 of 1997. The learned Sessions Judge framed charge against the accused for the alleged offences. The charge was read over and explained to the appellants who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined as many as eleven witnesses and also produced documentary evidence such as complaint, post mortem note, panchnama of the scene of offence and the discovery panchnama by virtue of the disclosure statement given by the accused. After recording of the evidence of prosecution witnesses was over, the learned Judge recorded the statement of the appellant-accused under Sec. 313 of the Criminal Procedure Code. In their further statement, the appellants-accused denied the case of the prosecution and stated that they have been falsely implicated in the commission of the crime. After hearing the learned Counsel for the respective parties, and on appreciation of the evidence adduced by the prosecution, the learned Sessions Judge passed the judgment and order of conviction and sentence as stated in Paragraph 1 of this judgment, giving rise to the present appeal.

(3.) Mr. A. D. Shah, learned Counsel for the appellants has firstly submitted that the medical evidence does not support the case of the prosecution inasmuch as the injuries sustained by the deceased are not possible by muddamal weapons, and therefore, the learned Judge has committed an error in holding that the accused persons have committed the murder of deceased Aalubhai by using the muddamal weapons. Scrutinising the evidence of the doctor, we find two conflicting versions one in favour of the accused and the other in favour of the prosecution in chief examination and cross-examination respectively, and therefore, the testimony of this witness cannot be relied upon as it lacks truthfulness. At the same time, if we look at the evidence of Jilubhai (P.W. 1) and Mansi (P.W. 3), we find the same to be consistent in all respects when they say that when they reached the scene of offence on hearing the rowdy commotion they saw accused No. 1 Tapubhai armed with spear, accused No. 2 armed with a gun, accused Nos. 3 and 4 Ranubhai and Babubhai armed with axe, and accused No. 5 Bhupatbhai armed with dharia jointly assaulting the deceased Aalubhai with their respective weapons. Moreover, the evidence of P.W. 1 is also found to be fully corroborating the statement made by him in the F.I.R. Thus, the credible, trustworthy and direct evidence of Jilubhai and Mansi who are eye-witnesses cannot be thrown out of consideration merely because they are relatives. Reference in this connection may be had to the decision rendered in the case of (i) State of U. P. v. Krishna Gopal & Anr., AIR 1988 SC 2154 (Para 13), and (ii) Ravi Kumar v. State of Punjab, 2005 (9) SCC 315 : AIR 2005 SC 1929 (Para 18). This submission of Mr. A. D. Shah for appellant, therefore, does not merit acceptance.