Bhavesh @ Karshan @ Gafal Bhojabhai Babariya vs State of Gujarat

K.J. Thaker, J.—This is an appeal by the original accused-the appellant, herein, challenging the judgment and order of the learned Additional Sessions Judge and Presiding Officer, 2nd Fast Track Court, Junagadh, rendered in Sessions Case No. 48 of 2009, Dated : 24.02.2011, whereby, the appellant is convicted for the offence u/s 302 of the IPC and is sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 1,000/- and in default to undergo further simple imprisonment. The appellant was also convicted u/s 135 of the Bombay Police Act and was sentenced to undergo simple imprisonment for one month. The brief facts of the case of the prosecution, as set out before the trial Court, reads as under;

A complaint came to be lodged by one Kambaiben W/o. Ovalabhai Mandanbhai Babariya on 26.03.2009 before PSI, ''B'' Division Police Station, Junagadh, wherein, she stated that she is residing at the address given in the complaint along with her husband and her son namely Punjo, who is also known as Pravin. The complainant, then, went to narrate the alleged offence stating that today at about 05:00 p.m., the son of her daughter, who is aged about 3 years, came to her and told her that he wanted to go to his uncle and while the complainant was taking him to the deceased, who had gone to the pan stall of one Dhirubapu Bavaji, she found that the appellant was inflicting knife blows on the deceased and the deceased was shouting for help. Then, the deceased was firstly taken to Keshod and from there to Junagadh, where he breathed his last. On registration of the complaint, police carried out investigation into the alleged offence and on finding prima facie evidence, laid charge-sheet against him before the Court of the Ld. JMFC, Keshod, and then, it was committed before the Sessions Court, Junagadh.

To bring home the charges leveled against the appellant, the prosecution examined the following witnesses;

Over and above the oral evidences, the prosecution also placed reliance on the following documentary evidences in support of its case;

At the end of the trial, the statements of the accused u/s 313 of the Cr.P.C. came to be recorded, and then, the trial Court passed the judgment and order, as referred to herein above. Hence, the present appeals.

Heard, Mr. Singh, learned Counsel for the appellant and learned APP on behalf of the opponent-State and perused the material on record with their assistance.

In order to establish that the deceased died of a homicidal death, the prosecution examined P.W.-7-the doctor, who had performed PM on the body of the deceased, at Exhibit-36. P.W.-7 in his examination-in-chief stated that at the time of PM, he had noticed following injuries on the body of the deceased, which are mentioned at Column No. 17 of the PM note;

(1) There was a stitched wound on the mid-backside of left hand and on opening

the same, it appeared to be 1.5 cms. deep upto the skin and its edge was sharp and the blood was found to be clotted there;

(2) There was a small incise wound on the front side of the left-hand palm and its edges were sharp and the blood was clotted there;

(3) One small stitched wound at the bottom of right hand, it was 1.5 cms. deep upto the skin;

(4) One stitched wound was found on the right side of the chest, at 7th inter-coastal space, on midclavicular line of about 4 cms., which was a stab wound and was transverse and its edges on both the sides were sharp and 7th rib was cut and blood was clotted there;

(5) There was a stitch wound of about 3 cms. on the outer right side of the abdomen, about 6 cms. above navel and it was a stab wound about skin deep and the blood clotted there was read.

According to P.W.-7, the cause of death of the deceased was shock due to abdominal hemorrhage and injury to vital organ, i.e. liver. In his cross-examination, P.W.-7 denied the suggestion that the injuries mentioned at Column No. 17 of the PM note, being stitch wounds, he had done only external examination and had prepared the PM report. From the cross-examination of P.W.-7, the defence failed to bring out anything which would help their case.

Thus, from the evidence of P.W.-7, there is no manner of doubt left in our mind that the deceased died of homicidal death. Having held, as above, now, what we have to examine is as to whether the trial Court was justified in holding the appellant guilty for the alleged offence or not?

With a view to prove the aforesaid aspect, the prosecution examined the complainant, who also happened to be the mother of the deceased, as P.W.-8. P.W.-8 was an eye-witness of the alleged offence. In her examination-in-chief, P.W.-8 reiterated the facts already given by her, in her complaint before the police, stating as to how she was going towards the pan stall along with the minor son of her daughter, where the deceased was standing, and at which point of time, she found that the appellant was inflicting blows on the deceased and the deceased was shouting for help and on seeing her, as to how the appellant run away and as to how the deceased was taken, firstly, to the hospital at Keshod and then to Junagadh, where the deceased succumbed to the injuries sustained by him. This witness, then, identified the muddamal article No. 3, as the weapon used by the appellant in committing the offence, before the Court. In her cross-examination, P.W.-7 denied the suggestion that she had not disclosed the name of the assailant of her son before the doctors at Keshod or at Junagadh. This witness also denied the suggestion that she had not witnessed the alleged offence and that the appellant had not inflicted knife blows on her son.

The case of the prosecution also gets support from the evidence of P.W.-9, who is another eye-witness of the alleged offence. In his examination-in-chief, P.W.-9 also narrated the entire incident in detail stating as to how the scuffle between the deceased and the appellant took place, and then, as to how the appellant inflicted knife blows on the deceased in front of the mother of the deceased. In his cross-examination P.W.-9 denied the suggestion that he had not seen the alleged offence being taking place.

The evidence of P.W.-7 gets corroboration from the evidence of P.W.-6 and P.W.-13, who had provided treatment to the deceased at Keshod and at Junagadh, respectively, and to whom the deceased had given the history of infliction of injuries by the appellant. P.W.-6 in his examination-in-chief stated that, though, the injuries sustained by the deceased were not such, which would cause instantaneous death, but, the same were serious enough to result into death. P.W.-13, at the time of his cross-examination, after perusing the muddamal knife, stated that the injuries noticed by him on the body of the deceased could be caused by the same. P.W. Nos. 6 and 13 are independent witnesses and their evidence remains uncontroverted on the material aspects.

The evidence of (1) P.W.-1, who was a panch to the inquest panchnama, (2) P.W.-14, who had reached the place of offence soon after it occurred and in whose presence the deceased had given the history of infliction of injuries by the appellant, (3) P.W.-16, who was examined to prove the public notification prohibiting carrying of arms, (4) P.W.-17, who had prepared the map of the place of offence also supports the case of the prosecution and points towards the guilt of the appellant only.

So far as the evidence of Nos. 11, 12 and 15 are concerned, they are not of much importance, since, they came to know about the alleged offence through others, whereas, P.W. Nos. 2, 3, 4, 5 and 10 are concerned, they did not support the case of the prosecution and were declared hostile.

In the case on hand, the alleged offence took place during the broad day light. The appellant, the complainant and the appellant are related to each other and are resident of the same locality, and hence, the question of misidentification does not arise. Moreover, history of the alleged offence before P.W. Nos. 6 and 13 was given by the deceased himself and these witnesses have fully supported the case of the prosecution on that count. P.W. Nos. 6 and 13 are independent witnesses and they are neither related to the complainant nor have they any enmity towards the appellant, and hence, there is no reason to disbelieve their evidence. Even, the Serological report of FSL, which indicated that the presence of human blood of group ''A'' was found on the muddamal knife, which was the blood group of the deceased, leaves no doubt in our mind about the guilt of the appellant. From the material on record, especially, the oral evidence of the witnesses, including eye-witness, it clearly stands established that there was neither any instigation nor threat of causing any harm to the appellant at the hands of the deceased and despite that the appellant attacked the deceased with a knife and inflicted injury on vital part of his body, i.e. liver, which resulted into the death of the deceased, and hence, it cannot be said that the alleged incident took place at the spur of the moment or that the appellant had no intention to do away with the deceased. Therefore, the appeal deserves to be dismissed. In the result, the appeal fails and is DISMISSED. The judgment and order of the trial Court, Dated : 24.02.2011," stands confirmed. It is, however, clarified that the appellant shall be given all the benefits, i.e. remission etc., as available to him under the law. It is, further, observed that the term ''Imprisonment for life'' would not mean the imprisonment till the last breath and it shall be open to the competent Authorities to consider the case of the accused for release at appropriate stage. A writ of this Court be sent to the concerned Jail Authority, forthwith.