Kanubhai Maliyabhai Rathva and Others vs State of Gujarat

K.J. Thaker, J.—The appellants, herein, are the original accused in Sessions Case No. 164 of 2008 and by way of this appeal, they have challenged the judgment and order of the learned Additional Sessions Judge, Fast Track Court No. 1, Godhra, Dated: 31.03.2010, convicting and sentencing them as under;

(1) the original accused No. 1 is convicted for the offence punishable u/s 302 of the IPC and is sentenced to undergo imprisonment for life and to pay fine of Rs. 100/- and in default to undergo further rigorous imprisonment for 10 days; the original accused No. 1 is also convicted for the offence punishable u/s 324 of the IPC and is sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 100/- and in default to undergo further rigorous imprisonment for 10 days as well as u/s 135 of the Bombay Police Act and is sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 100/- and in default to undergo further rigorous imprisonment for 10 days;

(2) the original accused Nos. 2 and 3 are convicted for the offence punishable u/s 302 read with Section 34 of the IPC and to pay fine of Rs. 100/- and in default to undergo further rigorous imprisonment for 10 days as well as u/s 135 of the Bombay Police Act and is sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 100/- and in default to undergo further rigorous imprisonment for 10 days;

For the sake of convenience, all the appellants shall be mentioned as original accused with their respective number.

Before proceeding further, the note of the fact may be taken that original accused Nos. 2 and 3 were on bail pending trial and that they continue to remain on bail, even during the pendency of this appeal.

The brief facts, which culminated into the filing of the present appeal, reads as under;

A complaint came to be lodged by one Jukhliben on 09.05.2008, before PSI, Pavagadh Police Station, wherein, she stated that she is residing at the address given in the complaint along with her mother and younger brother, namely Ashok. It is, further, stated in the complaint by the complainant that she has four brothers and out of them one is Govind, who is a bachelor and who had lured away the wife of accused No. 1 before about four months prior to the alleged offence and who was not traceable, since then and on account of that accused No. 1 frequently used to visit the house of the complainant and used to threat them for handing back the custody of his wife to him.

The complainant, I then, went on to narrate the alleged offence stating that on the date of the alleged offence, in the afternoon at about 02:00 p.m., while her mother, namely Shantaben, was sleeping in the shed meant to keep the herd and the complainant was sitting in veranda of her house, accused No. 1, who was armed with a ''Paliya''(a sharp edged iron weapon), came there along with accused Nos. 2 and 3, who were armed with sticks, and started abusing the deceased. The accused No. 1, then, delivered one blow of ''Paliya'' on the neck of the deceased. The deceased also sustained injuries on her hands and when the complainant tried to intervene, she was also inflicted injuries by ''Paliya'' by accused No. 1, and then, they run away from the place of offence.

On registration of the complaint, police carried out investigation into the alleged offence and on finding prima facie evidence, a charge-sheet was laid against the appellants-accused Nos. 1 to 3 before the Court of the Ld. JMFC, Halol. However, since, the case was exclusively triable by a Court of Sessions, same was transferred to the Sessions Court, Godhra.

To prove the guilt of the appellants accused Nos. 1 to 3, the prosecution examined the following witnesses;

The prosecution also placed reliance on the following documentary evidences in support of its case;

At the end of the trial, the further statements of the accused Nos. 1 to 3 u/s 313 of the Cr. P.C. Came to be recorded. Then, the trial Court passed the judgment and order, as stated above. Hence, the present appeal.

Heard, Mr. Barot, learned Counsel for the appellants-original accused Nos. 1 to 3 and Ms. Shah, learned APP, on behalf of the respondent-State.

To establish that the death of the deceased, Shantaben, was a homicidal one, the prosecution examined P.W.-10, who had performed PM on the body of the deceased, at Exhibit-46. In his examination-in-chief, this witness stated that he commenced the PM of the body of the deceased at about 10:00 a.m. and completed the same at about 12:00 p.m. along with one Dr. K.S. Panchal. During the course of PM, this witness found following injuries, which find mention at Column No. 17 of the PM report;

(1) Incised wound (cut throat) on neck extending from 2 inch above middle end of Lt. Clavicle (stornal end) to obliquely upward direction on rt. Side of neck upto 3 inch above lateral end of (lt.) clavicle. Edges are averted & congested. Size: 5 1/2 inch X 3 inch X 11/2 inch structure cutting are:- skin, superficial, fascia, deep fascia, platyma, sternocluidomastoid, ant-jugular vein, superficial part of sub-medial salivary gland, sentimental branch of ferial artery, trachea art. Interiorly upto 2/3;

(2) Sharp cutting injury on (rt.) hand finger & thumb between 2nd and 3rd phalanxes of index & middle finger & thumb (1 cm X 0.5 cm. X 0.5 cm.) edges are averted;

(3) Sharp cutting injury on lt. Hand, index & mid. Finger of site of joining point of proximal & 2nd phalanx, transverse, edges averted (1.5 X 0.5 cm. X 0.5 cm.);

(4) little finger of (lt.) hand sharply cut from distal phalanx.

Thus, the evidence of P.W.-10 leaves no manner of doubt in our mind that the deceased died of a homicidal death. Now, what we have to examine is as to whether, the prosecution is able to establish the guilt of the accused Nos. 1 to 3 or not.

To prove its case beyond reasonable doubt, the prosecution examined the complainant as P.W.-8, who is an eye-witness and who had also sustained injuries during the alleged incident, at Exhibit-41. In her examination-in-chief, P.W.-8 reiterated the facts given by her in her complaint, stating as to how the accused No. 1 came at the place of offence armed with a paliya along with accused Nos. 2 and 3 and as to how accused No. 1 inflicted blow of paliya on the neck of the deceased and as to how he also tried to inflict injury on this witness, when she tried to intervene. This witness was exhaustively cross-examined by the learned Counsel for the original accused, however, he failed to controvert the evidence of P.W.-8 on material aspects. P.W.-8, in her cross-examination, denied the suggestions that no offence had taken place and that she had not witnessed the same and that she was deposing wrongly only with a view to see that they do not have to pay anything to accused No. 1 towards the ''daava'', as her brother had eloped the wife of accused No. 1.

In view of the fact that P.W.-8 had also sustained injury during the alleged offence, here, it would be relevant to refer to a decision of the Hon''ble Apex Court in the case of State of U.P. Vs. Naresh and Others, wherein the Hon''ble Apex Court observed that the evidence of an injured witness is accorded special status, since, his presence at the place of occurrence is beyond doubt and it is unlikely that he has spared the actual assailants in order to falsely implicate someone else, and therefore, his evidence should be relied upon, unless there are major contradictions and discrepancies, therein. In the case on hand also, the alleged offence took place during the broad day light. The accused Nos. 1 to 3 as well as the complainant are the residents of the same vicinity. Hence, the question of misidentification does not arise. Thus, in view of the aforesaid decision of the Hon''ble Apex Court, there is no doubt left in our mind about the guilt of accused Nos. 1 to 3. The evidence of P.W.-8 is simple, clear and without any exaggeration, and hence, inspires confidence.

The evidence of P.W.-8 gets support from the evidence of P.W.-9, who happens to be the son of the deceased and who is another eye-witness of the alleged offence. This witness also narrated the facts, which are similar to the complaint given by the complainant and her deposition and from the cross-examination of this witness, the learned Counsel for accused Nos. 1 to 3 failed to bring out anything which could help their case.

The case of the prosecution also gets support from the evidence of (1) P.W.-1, who was a witness to the inquest panchnama (Exhibit-9) of the body of the deceased, (2) P.W.-2, who partly supported the Inquest Panchnama(Exhibit-9), (3) P.W.-11, who had provided treatment to P.W.-8 on the date of alleged offence and who was given the history of infliction of injuries by ''Paliya'' by accused No. 1, (4) P.W.-12, who registered the FIR of the alleged offence, (5) P.W.-13, who carried out the investigation into the alleged offence.

As regards the evidence of P.W. Nos. 3, 4, 5, 6, 7 are concerned, they did not support the case of the prosecution even a bit and were declared hostile. However, the same does not affect the prosecution case in any manner, since, the evidence of P.W.-8 and P.W.-9, who are the eye-witnesses of the alleged offence, fully supports the case of the prosecution and proves the involvement of the accused Nos. 1 to 3 in the alleged offence beyond reasonable doubt.

Now, as regards the aspect of conviction of accused No. 1 u/s 302 of the IPC and that of accused Nos. 2 and 3 u/s 302 read with Section 114 of the IPC is concerned, P.W.-8 in the complaint given by her as well as in her deposition in clear terms stated that it was accused No. 1 alone, who inflicted ''Paliya'' blow on the deceased, and though, the presence of accused Nos. 2 and 3 wielding sticks is established by the evidence of P.W.-8, the fact remains that she does not attribute any overt act to them either in her complaint or in her deposition. Even, the evidence of P.W.-9, who is another eye-witness of the alleged offence, also does not indicate any active participation on the part of accused Nos. 2 and 3 in the alleged offence. In other words, from the evidence of P.W. Nos. 8 and 9, what can be inferred is that accused Nos. 2 and 3 were present with sticks at the place of offence, at the time of its commission and nothing beyound that. Therefore, though, we concur with the view taken by the trial Court convicting accused No. 1 u/s 302 of the IPC, we are unable to uphold the judgment and order of the trial Court to the extent it records the conviction of accused Nos. 2 and 3 u/s 302 read with Section 114 of the IPC and they are required to be acquitted of the charges under the aforesaid sections.

Insofar as the conviction of accused No. 1 under Sections 324 of the IPC and Section 135 of the Bombay Police Act as well as the conviction of accused Nos. 2 and 3 u/s 135 of the Bombay Police Act is concerned, in view of the above discussion, same requires no interference at the hands of this Court. In the result, the appeal is PARTLY ALLOWED. The judgment and order of the trial Court, Dated: 31.03.2010, is QUASHED and set aside to the extent it records conviction of the original accused Nos. 2 and 3 for the offence punishable u/s 302 read with Section 34 of the IPC and they are ACQUITTED of the charges under aforesaid sections. Rest of the judgment and order of the trial Court stands CONFIRMED. The original accused Nos. 2 and 3 are on bail, and hence, their bail bonds stand canceled and they are granted time of EIGHT WEEKS from today to surrender before the concerned jail authorities. A copy of this order be sent to the concerned jail authority, forthwith.