RAMESHBHAI VESTABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) INSTANT Appeal is preferred by the Appellant under Section 374 of the Code of Criminal Procedure, against the judgment and order, delivered by learned Additional Sessions Judge, Valsad at Navsari, on 11th of September,1994, in Sessions Case No. 129 of 1996, whereby the present appellant, being accused of the said Sessions Case, was convicted for the offence punishable under Section 307 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of three years and to pay fine of Rs. 500/-, in default, to undergo rigorous imprisonment of three months; the appellant was also convicted for the offence punishable under Section 324 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of six months and to pay fine of Rs. 200/-, in default, to undergo rigorous imprisonment of one month and also the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment of six months. 2 As per the brief facts of the case, present appellant is husband of PW- - Sevantiben but, however, the appellant accused did not permit Sevantiben to stay with him and even then on 2nd of December, 1995, at night hours, accused went to village Borigam at his in-laws house where Sevantiben was staying. At about 21. 30 hours, the accused was sleeping with Sevantiben and, therefore, complainant of this case, Gangaben, wife of the brother of Sevantiben, stated that why the accused was sleeping with Sevantiben when he was not prepared to take Sevantiben at his place. On account of this, accused was instigated and inflicted a knife blow in the chest of Gangaben and he inflicted other blow to Gangaben on left thigh. On hearing the shouts of Gangaben, PW-4 Kishanbhai Babarbhai who was passing nearby, entered in the house and at that time on seeing Kishanbhai, the accused inflicted knife blow in the abdomen of Kishanbhai. Vanitaben, sister of Sevantiben, tried to intervene, but accused also inflicted knife blow on right side of her chest. Hearing this commotion, brother of Sevantiben and husband of complainant - Gangaben, Magji, who was sleeping on the otla of the house, came running, but the accused dragged him in the backyard of the house and inflicted a very serious knife blow on the throat of Magji and when Magji returned from the backyard, he fell down on the ground and had died on the spot. Accused had run away from that spot. It appears that thereafter Kishanbhai, in injured condition, was taken to Bhilad Outpost where Dilipbhai Ratilal, Head Constable, was present and he advised the persons, who brought Kishanbhai to the Outpost, to take Kishanbhai to the hospital immediately. It appears that, other injured Gangaben and Vanitaben also, at his instance, were taken to Bhilad Community Health Center and from there to Haria Hospital at Vapi. Injured Kishanbhai also was taken to Bhilad Community Health Center and from there, to Haria Hospital at Vapi, where the injuries of all the three injured witnesses were treated. In this process, Head Constable Dilipbhai informed Outpost Incharge - Jamadar Ishwarsinh, at about 10. 30 about the incident when he was on night round at Bhilad Bus stand and he reached at Haria Hospital, Vapi, and recorded complaint of Gangaben at 6. 00 hours on 3. 12. 1995. Offence came to be registered at Umbergaon Police Station for the offences punishable under Sections 307, 324 and 302 of the Indian Penal Code against the accused. Initially, investigation like inquest panchnama, etc was done by PW-8 Ishwar Vajesinh, Desai, PSI. Thereafter, Raghuvirsinh Jayendrasinh Vala, PSI, GIDC Police Station, Vapi, took the investigation from him, who draw the panchnama of scene of offence, etc and thereafter the further investigation was done by Maheshkumar Babulal Nayak, PSI, Umbergaon Police Station, who arrested the accused and ultimately PW-13 Padyumansinh Vijaysinh Gohil, Second Police Sub-Inspector, Umbergaon Police Station, submitted charge sheet against the accused in the court of learned Judicial Magistrate, First Class at Umbergaon and the case was committed to the Court of Sessions and made over to the Trial Court. 3 Charge was framed against the accused vide Exhibit-2 on 15th of January, 1998 and he pleaded not guilty. Thereafter, prosecution examined as may as 13 witnesses and placed on record documentary evidence to prove its case. The learned Trial Judge thereafter brought to the attention of the accused the incriminating circumstances appearing against him, to which, he denied in toto. After hearing both the sides, the learned Trial Judge came to the above conclusion and, hence, this Appeal. 4 To prove its case, prosecution examined PW-1 Gangaben, injured eye witness, at Exhibit 8 and she stated that on the day of the incident, before the incident, the accused was making round of the house and thereafter at about 8. 00 he entered in the house and slept with Sevantiben. Therefore, she stated that why the accused was sleeping with Sevantiben when he was not prepared to take Sevantiben to his house. At that time, accused inflicted a knife blow on her chest and hearing shouts, Kishanbhai Babarbhai came running to her, to whom also, accused inflicted knife blow on abdomen and accused also inflicted knife blow to Vanitaben on her chest. Hearing this commotion, her husband, who was sleeping on the otla of the house, came in the house and her husband Magji was dragged by the accused in the backyard of the house and inflicted a serious knife blow on the throat of her husband, due to which he died. Gangaben identified the complaint, which is placed at Exhibit-9. Panchnama of scene of offence is produced at Exhibit-11. PW-2 Jitendra Ranjit, examined at Exhibit10, is panch of panchnama at Exhibit-11 and he has supported the panchnama and prosecution case. PW-3 Parsottam Keshabhai, examined at Exhibit-12 is panch of panchnama at Exhibit-13, which is alleged to be discovery panchnama of knife by the accused, but the witness has not supported the prosecution case. PW-4 Kishanbhai Babarbhai, injured witness, is examined at Exhibit-14 and he stated that while he was passing near the house of Magjibhai, he heard the shouts of Gangaben. He came running in the house and noticed that the accused had inflicted a knife blow to Gangaben on her chest. He tried to catch hold of the accused but accused inflicted a knife blow to Vanitaben as well. Hearing the shouts, Magjibhai was sleeping out side the house on the otla, came running, accused dragged Magjibhai in the backyard of the house and inflicted a knife blow on his throat, due to which, while coming towards the house, he had fallen down and had died. PW-5 Vanitaben Bhanabhai, examined at Exhibit-15 is also an injured witness and she also stated that the accused inflicted knife blows to Gangaben, Kishanbhai and to her and also to deceased Magjibhai on throat. PW-6 Dr. Rahul Kishankumar Tinku, examined at Exhibit-16, performed postmortem examination of deceased Magjibhai on 03rd of December, 1995 at Primary Health Center, Bhilad, and accordingly the deceased had the following external injuries. Stab wound supraclavicular region 2. 5 cm/1. 0 c. m. going deep. Lt. Common carotid artery completely cut. Lt. Jugular vein completely cut. There were, according to Doctor, internal injuries corresponding to external injuries and cause of death was haemorrhagic shock after stab injury to left common carotid artery. According to Doctor, the injury was ante mortem and was sufficient in the ordinary course of nature to cause death. Postmortem Note is placed at Exhibit-17. PW-7 Dr. Bipin L. Sakhiwala, is examined at Exhibit-18 and according to him, he examined Kishanbhai Babarbhai at Bhilad Community Health Center on 2nd December, 1995 at 10. 30 hours at night. He gave history of assault by knife. According to Doctor, he had a stab wound in right front over posterior axillary line. The patient was shifted to Haria Hospital, Vapi, for further management. He also examined Vanitaben on 03rd of December, 1995 at about 3. 15 hours. She also gave the same history and according to Doctor patient was conscious and cooperative. She had a stab wound over right side of chest going deep in thoracic cavity. The patient was shifted to Haria Hospital, Vapi, for further management. Like wise, he also examined Gangaben Magjibhai at the same time he examined Vanitaben and the patient had (i) stab wound over left chest and (2) incised wound over left thigh. She was also sent to Haria Hospital, Vapi for further management. PW-8 Ishwarsinh Vajesinh Desai, the then Police Constable, Bhilad Outpost, stated that Dilipbhai Ratilal, Police Constable, informed him that there was some quarrels in Borigam and the accused had murdered Magjibhai Bhanabhai and injured other persons. So, he went to Haria Hospital and recorded the complaint. Thereafter, he draw the inquest panchnama and handed over the investigation to PSI, GIDC, Vapi. PW-9 Raghuvirsinh Jayendrasinh Vala, is examined at Exhibit-24 is the second Investigating Officer, who took investigation from PW-8. He visited the scene of offence, draw panchnamas and recorded the statements of the injured. Thereafter, he entrusted the investigation on the same day at 18. 00 hours to PSI Maheshkumar Babulal Nayak of Umbergaon Police Station, who is PW-10. PW-10 Maheshkumar Babulal Nayak, third Investigating Officer, examined at Exhibit-25. According to him, he investigated the offence on 5th of December, 1995. Accused was arrested. He draw discovery panchnama and forwarded the muddamal, etc. to Forensic Science Laboratory. Forensic Science Laboratory opinions are on record at Exhibit-27 along with forwarding letter. Serological opinion is also placed on record. The map of the incident is placed on record at Exhibit-30. PW-11 Dilipbhai Ratilal, examined at Exhibit-29, stated that on the day of the incident, he was on duty at Bhilad Outpost where at about 10. 30 persons came from village Borigam and informed that a quarrel had taken place at Borigam and one person is died. One of the persons stated that in the said quarrel, Kishanbhai is injured by knife blows and when he went near the vehicle, wherein Kishanbhai was brought, he found that the injury was serious and advised persons to take Kishanbhai to the hospital immediately and thereafter he informed In-charge Jamadar, Ishwarsinh, who was on night round. PW-12 Dr. Rajendra Shriram Bhangale, examined at Exhibit - 31, was serving as Medical Officer at relevant time in Haria Hospital, Vapi. On 2nd of December, 1995, at about 11. 30, injured Kishanbhai Babarbhai was brought to him and in history the patient stated that accused had given him a stab injury at 9'o clock. On examination, he had a stab wound 1 inch length on right posterior axillary line obliquely placed with bleeding + about 2 above right ldiac chest. X-rays of abdomen did not reveal any abnormality. The Doctor also examined injured Gangaben on 3rd of December, 1995 at 5. 45 a. m. She also stated in history that the accused has given her stab wound and on examination he found that she had incised wound over left thigh M/3 4 in length with blood clots and stab wound on left side of chest 4 irregular. X-ray on chest revealed fracture of anterior end of left 7th rib. He also examined injured Vanitaben on the same day at 4. 45 a. m. She also gave history that the accused had inflicted stab wound to her and on examination, it was found that she had stab wound at right side of chest 4 cms long depth in right axillary line. X-ray revealed that non-homogeneous opacity in right lower zone, subcutaneous emphysema is noted in right chest wall. Three certificates issued by the Doctor are placed on record at Exhibits, 32, 33 and 34. PW-13 Padyumansinh Vijaysinh Gohil, examined at Exhibit 42, is the last Investigating Officer, who submitted the charge-sheet against the accused. 5 This is all the evidence of the prosecution. 6 Learned Advocate for the appellant Mr. B. S. Supheia vehemently submitted that the incident occurred at 9. 30 p. m. PW-11 Dilipbhai Ratilal was informed at 10. 30. At that juncture, name of the accused was not disclosed. Even PW-7 Dr. Bipinchandra Lallubhai Sakhiwala also stated in history that none of the injured disclosed the name of the accused, even then, PW-8 Ishwarsinh Vajesinh Desai, to whom, Dilipbhai conveyed the information, deposed that Dilipbhai Vajesinh conveyed to him that the accused had inflicted injuries to deceased and injured. Learned Advocate Mr. Supheia for the Appellant, therefore, submitted that the accused has been roped in by the injured after due consideration and to give the name of the accused appears to be an after thought, which is a serious infirmity. It is submitted that the FIR was lodged, undoubtedly, on the next day i. e. at 6. 00 a. m. in the hospital before Ishwarbhai and, therefore, the witness had enough time to cook a false story against the accused. This is probable, according to learned Advocate for the appellant, that in defence cross-examination it is suggested that wife of the accused Sevantiben had illicit relation with Kishanbhai. It is further submitted that having regard to the deposition of Gangaben, especially in cross-examination, she admitted that she was not able to speak properly and, therefore, the complaint was, in fact, offered by his brother. According to learned Advocate for the appellant, the brother of the deceased was not an eye witness and how then the FIR came to be recorded by him. This circumstance also suggests false implication of the accused in the case. It is further submitted that Gangaben in her deposition stated that she was not fully conscious and she was half conscious. No motive at all is attributed for the incident and against the accused to cause injuries to the injured and the deceased. On the contrary, it was the allegation that Kishanbhai had illicit relation with Sevantiben, there was no evidence at all that accused was not permitting Sevantiben to stay with him. Sevantiben, wife of the accused has not been examined, who is very material witness. Gangaben has also mentioned other names of witnesses, who were neighbours, but none of them had been examined. Further, it is submitted that role of Investigating agency is doubtful. The blood stained clothes of the injured and blood sample of the accused has not been collected by the investigating agency nor a panchanam of arrest of the accused has been drawn and, therefore, it appears that this is one sided investigation against the accused. Discovery panchnama has not been proved because only panch examined has turned hostile while second panch is not examined. Investigating Officer, in fact, failed to prove discovery panchnama. All are relatives and interested witnesses and no independent person is examined. It is, therefore, submitted that if the evidence is appreciated in this perspective, the conviction and sentence of the accused is erroneous and judgment and order impugned in this Appeal is required to be set aside. 7 While on the other hand, learned APP Mr. L. B. Dabhi, submitted that it must not be lost sight of that there are injured witnesses, whose injures are proved. No contradictions could be pointed out by the defence so far as the main prosecution case is concerned. Gangaben stated that the complaint was offered by her brother because she was not able to speak, means only that, her brother was there while she was giving the complaint. The motive of the crime is clear that the accused was not happy with his wife Sevantiben. There are reliable eye witnesses and when the incident has taken place in the house, there cannot be any independent witnesses and it cannot be said that roping the accused in this case was an after thought. When the prosecution case is proved beyond doubt by the reliable eye witnesses, prosecution is not required to examine further witnesses and, therefore, the plea that the material witnesses are of no avail to the defence. It is submitted by the learned APP Mr. Dabhi that the learned Trial Judge has rightly convicted the appellant - accused for the offences punishable under Sections 302, 307 and 324 of the Indian Penal Code and ultimately urged that the appeal be dismissed. 8 This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to the broad and reasonable probabilities of the case. This Court has also taken into consideration the contentions raised by both the learned Advocates in respect of this Criminal Appeal. 9 On re-appreciating of the evidence, it is found that there are three injured witnesses in this case. PW-1 Gangaben, who is complainant and is sister of Sevantiben, wife of the accused. They had injuries and those injuries were noted by PW-7 Dr. Dipin L. Sakhiwala, examined at Exhibit-18. He stated that at 10. 30 he examined Gangaben and thereafter after some hours he also examined Vanitaben and Kishanbhai Babarbhai at Bhilad Community Health Center. Injuries on the deceased has been proved by PW-6 Dr. Rahul Kishankumar Tinku, examined at Exhibit-16. There is no dispute that the death of Magji was homicidal death. In view of this, when injuries of all these three witnesses are proved beyond doubt, then, the question arises as to how to appreciate the evidence of these witnesses. It is established law that the evidence of injured witness must be given great weightage because on account of injury, the presence of injured witnesses at the time of place of occurrence cannot be doubted. They cannot have any reason to omit the real culprits and implicate falsely the accused persons. The evidence of injured witnesses cannot be doubted merely on some supposed natural conduct of a person during incident or after incident would not dislodge the truthful version of injured eye witnesses. There may be minor discrepancies in their evidence, but court appreciating the evidence of such witnesses, must not attach undue importance to minor discrepancies and must consider broad spectrum of the prosecution version. 10 In the present case, when we scanned the evidence of these three injured witnesses from the angle as aforesaid, we found that, there are, in fact, no contradictions at all so far as this spectrum of the prosecution case is concerned. Attempt is made to target the witnesses with irrelevant circumstances, for example, where Gangaben was standing when accused inflicted knife blow to her. Those contradictions are of no importance at all and, in fact, they are simple discrepancies and could be ignored totally. There is no contradiction pointed out going root to the prosecution case. We have scanned the cross-examination of each of the three witnesses, we found that, there is nothing in the cross-examination to indicate even that the presence of the witnesses would be doubtful or that their version about inflicting injuries by the accused would not be probable. In these circumstances, we are unable to accept the contention of the learned Advocate for the appellant that accused is roped in with premeditation. The evidence of these three witnesses are found reliable and credible, there is no reason at all to disbelieve their evidence. 11 The contention that the name of the accused was disclosed later on has no substance at all. In deposition PW-8 Ishwar Vajesinh Desai in no uncertain terms stated that PW-11 Dilipbhai Ratilal did convey him the name of the accused. It is true that PW-11 Dilipbhai Ratilal omitted this aspect in his deposition, but neither Dilipbhai Ratilal was confronted that nobody had conveyed him the name of the accused at 10. 30 nor Ishwarbhai Vajesinh Desai was confronted with this aspect that Dilipbhai Ratilal had not stated the name of the accused to PW-8 Iswharbhai Vajesinh Desai. Omission on the part of the Police Officer, would not weaken the case. Like wise, when three injured were examined by Dr. Bipin L. Sakhiwala, they were definitely under pain on account of injuries and, therefore, they stated in the history of the incident that they were injured in an attack by knife. Had any of the witnesses been asked name of the accused by the Doctor, perhaps, they might have given it. This is not the circumstance which would falsify the prosecution case. In any case, before the FIR was recorded, the name of the accused was disclosed. Overall appreciation of the evidence indicates that the name of the accused was disclosed at 10. 30 even before PW-11 Dilip Ratilal. 12 So far as the statement of Gangaben is concerned about recording of FIR by her brother, when that portion of the deposition is read as a whole, it gives an impression that, on account of injury, complainant Gangaben was in pain and was finding difficulty in speaking, her brother might have helped her in speaking and, therefore, she stated that the complaint was recorded by her brother. This circumstance is not so material as to disbelieve the prosecution case. 13 When the case is proved beyond reasonable doubt by the direct evidence, the evidence of discovery, etc becomes immaterial and remain as corroborative evidence only. 14 No other contention has been raised on behalf of the appellant. 15 In view of above, there is no substance in the Appeal and Appeal stands dismissed.