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Judgment
K.J. Thaker, J.—Challenge in this appeal is to the judgment and order passed by the learned Addl. Sessions Judge, 5th Fast Track Court, Himmatnagar, Camp-Idar in Sessions Case No. 191 of 2006 whereby, the appellant, original accused, has been convicted for the offence punishable u/s. 302 of Indian Penal Code (for short, "the IPC") and sentenced to undergo imprisonment for life and fine of Rs. 1000/- and in case of default in making payment of fine, he was ordered to undergo simple imprisonment for further period of one year. The sentence already undergone by the accused was given as set-off. The facts in brief of the prosecution case are that the complainant herein, Bheraji Amraji Chauhan, is a resident of Village Ukhladungri and was earning his livelihood from agriculture. Earlier, the complainant was married to Puniben, daughter of Bhikhaji Dhanaji Ninama and out of the said wedlock, five children were born. However, before about three years from the date of alleged incident, the complainant and said Puniben got legally separated and one year later, he married Kaliben, daughter of Kashraji Sulji Limbad.
1.1 On 15.06.2006 at around 2300 hrs. while the complainant and his family members were sleeping, the appellant herein, who happened to be the former co-brother of the complainant, hurled abuses at the family of the complainant. On hearing the same, Kaliben came out of the house and asked the appellant not to use abusive language. However, the appellant got enraged and he took out a knife from his possession and knifed her in different parts of the body. On witnessing the incident, the complainant and his daughter-Jayaben immediately rushed to the scene of offence. As the condition of Kaliben was critical, they hired a private vehicle for taking her to the Hospital. However, Kaliben succumbed to the injuries before reaching Hospital. A complaint in connection with the aforesaid incident was lodged before Vijaynagar Police Station vide I-C.R. No. 55/2006 u/s. 302 and 504 IPC and Section 135 of Bombay Police Act. Necessary investigation was carried out and the appellant came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the magisterial Court. However, since the case was Sessions triable, it was committed to the Sessions Court for adjudication on merits.
1.2 During the course of trial, the prosecution has examined twelve witnesses;
1.3 The prosecution had collected and placed reliance upon several documentary evidence, more particularly, the complaint at Exhibit-16, inquest panchnama at Exhibit-24, panchnama of scene of offence at Exhibit-28, panchnama regarding seizure of clothes from the dead body at Exhibit-25, panchnama regarding seizure of clothes of accused at Exhibit-32, discovery panchnama at Exhibit-36, cause of death certificate at Exhibit-9, post-mortem note at Exhibit-10, forwarding letter to FSL at Exhibit-42, FSL Receipt at Exhibit-43, FSL Report and Serological Report at Exhibit-44, telephone wardhi at Exhibit-39, extract of station diary at Exhibit-41 and wireless message at Exhibit-45.
1.4 At the end of trial, the Court below passed the impugned judgment and order, which has led to the filing of present appeal.
Mr. J.M. Buddhbhatti learned counsel for the appellant submitted that the Court below committed serious error in convicting the appellant for the crime in question. He submitted that the testimonies on which the Court below has placed heavy reliance for recording conviction ought not to have been believed since the witnesses concerned are close relatives of deceased. He further submitted that there are material contradictions and omissions in their evidence and therefore also, the Court below ought not to have made their evidence the basis for recording conviction.
2.1 Mr. Buddhbhatti further submitted that prosecution has failed to prove the motive behind commission of the offence in question. In the alternative, he therefore submitted that at the most the accused could be convicted for the offence punishable u/s. 304 Part I or Part II IPC and not Section 302 IPC.
Learned APP supported the impugned judgment and order and submitted that the Court below has appreciated the evidence on record in its proper perspective. He submitted that the prosecution has been able to establish the guilt of accused before reasonable doubt. Therefore, the present appeal deserves to be dismissed.
Heard learned counsel for the respective parties. The medical evidence on record in the form of testimony of Dr. Hitesh Daljibhai Tabiyad (PW-1) and Post-mortem report (Exhibit-10) prove the factum of deceased having died a homicidal death. In column no. 17 of the Post-mortem report, the Doctor has described the injuries sustained by deceased in detail. Out of the total six injuries, five injuries were caused by a sharp-edged weapon, which, as per the testimony of PW-1, is the muddamal weapon - knife. Looking to the nature of injuries and medical evidence on record, it is established that the deceased died a homicidal death.
We have heard learned counsel for the respective parties and have perused the oral as well as documentary evidence on record. We have also gone through the impugned judgment and order passed by the Court below. The complainant herein, Bheraji Amraji Chauhan (PW-2) is the husband of deceased. In his testimony, the complainant has narrated the entire incident in detail. It is established from his evidence that on the date of incident while the complainant and his family members were resting inside their house, the appellant came there at around 2300 hrs. and began to hurl abuses. On hearing the abuses, the deceased-wife of complainant came out of the house and asked the appellant not to use abusive language. Being enraged thereby, the appellant took out a knife from his personal custody and thereafter, stabbed on different parts of the body of deceased. The complainant was cross-examined at length. However, he successfully stood the test of scrutiny and nothing incriminating has come out from his cross-examination. The complainant has narrated the same facts in his complaint (Exhibit-16).
The testimony of the complainant gets corroboration from the evidence of Jamnaben Bheraji (PW-3), who is the daughter of complainant. Her evidence also shows that she is an eye-witness to the incident in question.
The prosecution had examined Jayaben Bheraji (PW-4), who is also the daughter of complainant. She is a child witness and the Court below proceeded to examine her as a witness, after ascertaining her ability to lead evidence. She has also supported the prosecution case and the testimony of the complainant. We find that there are some minor contradictions in the testimony of this witness (PW-20) regarding the timing of arrival of this witness at the scene of offence. However, such contradictions are not material since there is no plea on the part of defence regarding misidentification by this witness and also since the appellant happened to be a close relative of this witness in the past. Therefore, there was no possibility of misidentification of the appellant. Further, though the incident took place during night hours, it is established from the panchnama of scene of offence (Exhibit-28) that visibility in the area was clear on account of the lighting from a nearby electric post. Thus, the testimony of the complainant (PW-2) gets sufficient corroboration from the evidence of Jamnaben Bheraji (PW-3) and Jayaben Bheraji (PW-4). All the three witnesses are eye witness to the incident in question and we find no reasons to disbelieve their testimonies.
The prosecution case also gets support from the recovery panchnama (Exhibit-36) prepared u/s. 27 of the Evidence Act. The FSL Report (Exhibit-44) proves the presence of human blood of group ''A'', which is that of deceased, on the muddamal weapon - knife and also on the clothes of appellant seized by way of panchnama (Exhibit-32). Thus, the recovery panchnama (Exhibit-36) and FSL Report (Exhibit-44) proves the involvement of appellant in the crime in question. There is no doubt regarding the identification of appellant since the appellant happened to be a near relative of the complainant in the past. Therefore, the question of misidentification also does not arise. Further, the aspect of motive is also proved. The very fact that the appellant had hidden the knife in his custody and had inflicted several blows on the deceased shows the intention of the appellant to do away the deceased.
Considering the oral as well as documentary evidence of record, we are of the considered opinion that the Court below has not committed any illegality much less any perversity in convicting the appellant for the offence in question. We are in complete agreement with the reasonings given by and the findings recorded by the Court below in its judgment and hence, find no reasons to entertain this appeal. However, so far as the portion of fine imposed by the Court below is concerned, we are of the view that it is on the higher side looking to the background of the appellant. Hence, the direction regarding fine deserves to be modified. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and order convicting the appellant, original accused, for the offence u/s. 302 Indian Penal Code is confirmed. However, the direction regarding imposition of fine of Rs. 1000/- [One thousand only] and default sentence thereof, is modified and instead the appellant-accused is directed to pay fine of Rs. 100/- [One hundred only] and in case of default, he shall have to undergo simple imprisonment for a further period of three months. It is clarified that imprisonment for life shall not mean imprisonment till last breath and that State Government may consider his case for grant of remission at the appropriate time. Rest of the impugned judgment and order remains unaltered. The appeal stands disposed of accordingly. Records and proceedings, if lying with this Court, be sent to the Court below forthwith.