Prajapati Jagdishbhai Venabhai vs State of Gujarat

H.B. Antani, J.—This appeal, preferred u/s 374[2] of Code of Criminal Procedure, 1973 is directed against the judgment dated 30.4.2002 rendered by the Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No. 127 of 2001 by which, the learned Judge convicted the appellant for the offences punishable u/s 302 of IPC and sentenced him to suffer life imprisonment and fine of Rs. 1000/-, in default, further imprisonment of 60 days.

The short facts giving rise to the present appeal are stated as under:

As per the prosecution case, on 29.7.2001, at about 19.00 hrs, deceased and his father Bababhai Galbabhai were tethering cattle near their house. The appellant, with a view to settle old enmity had an altercation with the deceased and his father and took out a knife and gave knife blow to the deceased Prakashbhai on the left hand side of the chest and thereby he committed murder of Prakashbhai and committed offence under Sections 302 and 504 of IPC. The complaint was given by one Pasabhai Galbabhai Prajapati on 29.7.2001 to the Police Sub Inspector, Talod Police Station, wherein, he narrated gruesome murder committed by the appellant. The Invesigating Officer visited the place of incident and prepared panchnama of the scene of offence in presence of panch witnesses. Panchnama of the recovery of muddamal as well as panchnama of the clothes put on by the deceased were prepared in presence of panch witnesses. Inquest panchnama was, thereafter, prepared by the Investigating Officer. Muddamal which was seized, was sent to Forensic Science Laboratory [FSL] for the purpose of analysis. The injured who sustained injury was sent to the hospital for the purpose of giving immediate treatment. On receipt of the medical report as well as FSL report, the appellant was produced before the Judicial Magistrate First Class at Prantij, who, in turn, committed the case to the Sessions Court u/s 209 of Code of Criminal Procedure ["Code" for short]. Learned Sessions Judge framed the charge against the appellant for the offence punishable under Sections 302 and 504 of IPC vide Exh.6 and the appellant pleaded not guilty to the charge levelled against him. In view of the aforesaid facts, the matter was set down for full-fledged trial before the Sessions Court.

Prosecution has examined the following witnesses in order to bring home the guilt against the appellant, they are as under:

--------------------------------------------------------------------------- PW No. Name Exh. --------------------------------------------------------------------------- 1 Bhikhabhai Maganbhai 9 --------------------------------------------------------------------------- 2 Pashabhai Galbabhai Prajapati 14 --------------------------------------------------------------------------- 3 Bababhai Galbabhai Prajapati 16 --------------------------------------------------------------------------- 4 Popatbhai Bababhai Prajapati 17 --------------------------------------------------------------------------- 5 Kantibhai Chhaganbhai Prajapati 18 --------------------------------------------------------------------------- 6 Babubhai Shamalbhai Patel 19 --------------------------------------------------------------------------- 7 Ratusinh Paljibhai Makwana 20 --------------------------------------------------------------------------- 8 Kalusinh Nathusinh Parmar 21 --------------------------------------------------------------------------- 9 Nilamsinh Ratansinh Zala 22 --------------------------------------------------------------------------- 10 Takhatsinh Javansinh Rathod 24 --------------------------------------------------------------------------- 11 Dinusinh Udesinh Rathod 25 --------------------------------------------------------------------------- 12 Manharbhai Ranchhodbhai Patel 27 --------------------------------------------------------------------------- 13 Rameshbhai Kalabhai Pagi 29 --------------------------------------------------------------------------- 14 Almuddin Samsuddin Luhar 31 --------------------------------------------------------------------------- 15 Kantilal Ranchhodlal Patel 33 --------------------------------------------------------------------------- 16 Balvantsinh Dhulsinh Chauhan 37 --------------------------------------------------------------------------- 17 Jagdishbhai Keshavbhai Prajapati 39 --------------------------------------------------------------------------- 18 Gabhaji Dhulaji Chamar 40 --------------------------------------------------------------------------- 19 Nabimiya Umarmiya Shaikh 41 --------------------------------------------------------------------------- 20 Shankarbhai Parsottambhai Patel 45 ---------------------------------------------------------------------------

The prosecution has produced the following documentary evidence to prove the involvement of the appellant in the commission of the offence, they are as under:

--------------------------------------------------------------------------- Sr.No Nature of documentary evidence Exh. --------------------------------------------------------------------------- 1 Complaint 15 --------------------------------------------------------------------------- 2 Inquest panchnama 38 --------------------------------------------------------------------------- 3 Panchnama of scene of offence 28 --------------------------------------------------------------------------- 4 Panchnama of person of accused and 26 recovery of clothes put on by the accused --------------------------------------------------------------------------- 5 Panchnama of clothes put on by the deceased 23 --------------------------------------------------------------------------- 6 Panchnama of discovery of weapon produced 30 by the accused --------------------------------------------------------------------------- 7 Office copy of Yadi sent for post-mortem of 12 the dead body. --------------------------------------------------------------------------- 8 Office copy of Yadi sent for treatment of 34 the accused. --------------------------------------------------------------------------- 9 Certificate of injury of the accused 35 --------------------------------------------------------------------------- 10 Copy of complaint given by accused against --- the deceased and Popatbhai --------------------------------------------------------------------------- 11 P.M. Note of deceased Prakashbhai 10 --------------------------------------------------------------------------- 12 Dispatch Yadi sent to FSL 53 --------------------------------------------------------------------------- 13 FSL report 54 ---------------------------------------------------------------------------

The learned Judge, at the conclusion of the trial, recorded further statement of the appellant u/s 313 of the Code and put incriminating material against the appellant. The appellant pleaded before the Court that he was innocent and was falsely implicated in the commission of offence under Sections 302 and 504 of IPC.

The learned Additional Sessions Judge, on the strength of the oral deposition and documentary evidence held that the deceased Prakash died on 29.7.2001 when he was assaulted by the appellant in his own house when he was tethering the cattle. The learned Judge held that the appellant gave fatal blow to the deceased Prakash on his left hand side of the chest, which resulted in his instant death. The complaint was given by Pasabhai Galbabhai, uncle of the accused. The learned Judge considered the depositions given by P.W.3 Bababhai Galbabhai [Exh.16] and P.W.4 Popatbhai Bababhai [Exh.17] and held that both the witnesses narrated the incident in exhaustive manner in their depositions. During their depositions, they indicated the manner in which the incident took place and how the deceased was assaulted by the appellant in an altercation which took place on 29.7.2001. Even muddamal articles were identified by both the witnesses during the course of their depositions. The learned Judge held that the prosecution, on the basis of the depositions adduced by the above two witnesses established involvement of the appellant in the commission of offence. Learned Judge further held that the oral depositions given by the two witnesses were supported by the documentary evidence such as panchnama of scene of offence Exh. 28, panchnama of clothes put on by the deceased vide Exh.23, inquest panchnama Exh. 38, as well as post-mortem report Exh. 10, wherein, in Col. No. 23, cause of death has been mentioned as haemorrhage due to injury to the vital organ like left lung and heart. The FSL report further corroborated the version given by the two witnesses. Thus, the learned Judge held that the prosecution, on the basis of oral depositions and documentary evidence, established the involvement of the appellant in the commission of offence and convicted the appellant for the offence u/s 302 for life imprisonment and fine of Rs. 1000/-, in default, further imprisonment of 60 days. However, for the reasons recorded in the judgment, the learned Judge acquitted the appellant for the offence punishable u/s 504 of IPC.

Learned advocate Ms. Sadhna Sagar, representing the appellant submitted that prosecution has examined in all 20 witnesses in order to bring home the guilt against the appellant. Complaint was given by Pashabhai Galbabhai vide Exh.15, but during the course of his deposition, Pashabhai Galbabhai has turned hostile and not supported the prosecution case. Learned advocate submitted that in view of the aforesaid facts and circumstances of the case, since the complainant has not supported the prosecution case, the entire case of the prosecution would fall flat on the ground and therefore, the appellant requires to be acquitted forthwith. Learned advocate submitted that the quarrel took place between both the parties, wherein, it was very difficult to ascertain as to who was the aggressor, who was really attacked during the aggression by the other side. In view of the aforesaid facts and circumstances, the prosecution story indicating the involvement of the appellant in the commission of offence does not inspire confidence of the Court and therefore, the appellant deserves to be acquitted. Learned advocate submitted that the investigation was not carried out in scrupulous manner. Map of the place of the incident was not prepared by the Investigating Officer so as to pinpoint the place where the offence was committed. In view of the aforesaid facts and circumstances, the prosecution story indicating involvement of the appellant deserves to be rejected out of hand and the appellant be acquitted for the offence u/s 302 of IPC. The learned advocate submitted that when there are two sets of evidence adduced by the prosecution, the evidence which is in favour of the appellant deserves to be accepted and therefore, benefit of same be given to the appellant and he be acquitted for the offence u/s 302 of IPC. Learned advocate submitted that even though the prosecution has examined 20 witnesses and produced documentary evidence in support thereof, there are many chinks in the armour of the prosecution case. Even there are many contradictions in the oral depositions adduced by the prosecution and therefore, benefit of same requires to be given to the appellant and he deserves to be acquitted.

Learned APP Ms. Chetna Shah, representing the State submitted that the prosecution has examined 20 witnesses in order to prove the involvement of the appellant in the commission of offence. Learned APP submitted that it is true that the complainant Pashabhai Galbabhai who gave complaint vide Exh.15, turned hostile and did not support the prosecution case, but the evidence given by two other witnesses, namely, P.W.3 Bababhai Galbabhai [Exh.16] and P.W.4 Popatbhai Bababhai [Exh.17] inspire necessary confidence of the Court and therefore, the learned Judge has rightly convicted the appellant for the offence u/s 302 of IPC. Learned APP submitted that the depositions adduced by the two witnesses get necessary corroboration in the form of panchnama of the scene of offence Exh. 28, recovery panchnama of the muddamal article Exh. 30, panchnama of recovery of clothes put on by the deceased Exh. 26, post-mortem report produced vide Exh.10 and more particularly, the cause of death mentioned in Col. No. 23 makes it abundantly clear that the deceased died because of haemorragic shock due to the injury to the vital organ like left lung and heart. FSL report Exh. 54 further corroborates the involvement of the appellant in the commission of offence as blood stains were found on the clothes put on by the deceased and on the weapon which was used in the commission of offence. Thus, the prosecution story gets complete support even from the documentary evidence adduced by it. Learned APP submitted that in view of the voluminous evidence adduced by the prosecution, the learned Judge has rightly convicted the appellant for the offence u/s 302 of IPC and there is no reason to interfere with the order passed by the learned Additional Sessions Judge and the appeal deserves to be dismissed.

We have heard the learned advocate Ms. Sadhna Sagar for the appellant and learned APP Ms. Chetna M. Shah for the respondent-State at length and in great detail. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record of the case with reference to broad and reasonable probabilities of the case.

We have taken into consideration the entire gamut of oral depositions and the documentary evidence on which prosecution has placed heavy reliance in order to prove inextricable involvement of the appellant in commission of offence u/s 302 of IPC. As per the prosecution case, the incident in question took place on 29.7.2001 at about 19-00 hrs in the village Fojawada, Talod Taluka, District-Sabarkantha. On the date of the incident, the deceased and witness Bababhai Galbabhai were tethering cattle near their house. The appellant who was armed with weapon approached the deceased as well as witness Bababhai Galbabhai and had an altercation with regard to non-payment of amount of the house which was sold to them. The deceased and Bababhai Galbabhai requested the appellant not to give abuses, but the appellant, during the heated arguments, took out the knife and gave knife blow to the deceased Prakash on the left hand side of the chest. As a result of which, the deceased succumbed to the injuries. The prosecution has examined complainant Pashabhai Galbabhai, but unfortunately, during the course of deposition, he turned hostile and did not support the prosecution case. P.W.3 Bababhai Galbabhai has been examined vide Exh.16 and brother of the deceased, namely, Popatbhai Bababhai P.W.4 has been examined vide Exh.17. Both the witnesses narrated the story indicating the involvement of the appellant in the commission of the offence and how the appellant was armed with deadly weapon and committed assault on the deceased Prakash, has been exhaustively narrated by them in their depositions. During the course of their depositions, both the witnesses identified muddamal article No. 9, i.e knife which was used in the commission of offence, as well as other muddamal articles which were shown to them. Version given by the two witnesses in the examination-in-chief could not be dislodged by the defence side in the cross-examination. The prosecution has examined panch witnesses and some of the panch witnesses have not supported the prosecution story. However, the Investigating Officer P.W.20-Shankarbhai Parsottambhai Patel who has been examined vide Exh.45 has narrated in detail as to how panchnama of the place of incident, inquest panchnama, panchnama of clothes put on by the deceased etc were prepared in the presence of the panch witnesses. The depositions adduced by Bababhai Galbabhai [P.W.3] vide Exh.16 and Popatbhai Galbabhai [P.W.4] vide Exh.17 get necessary support from the deposition adduced by Medical Officer Bhikhabhai Maganbhai [P.W.1] vide Exh.9 who had performed post-mortem on the dead body of Prakash Bababhai Prajapati. He has narrated the external injuries as well as internal injuries sustained by the deceased. In Col. No. 23, cause of the death is mentioned as haemorrhagic shock due to injury to the vital organs like left lung and heart. In his examination-in-chief, the doctor has deposed that death of the deceased could have been caused with the muddamal article No. 9 which was the weapon used in the commission of offence. The prosecution case gets further corroboration from the deposition adduced by P.W.15 Kantilal Ranchhodlal Patel who has been examined vide Exh.33. He had examined the injured and had issued medical certificate vide Exh.35. We have perused the report of FSL produced vide Exh.54 to the present case. Thus, considering the entire oral depositions and the documentary evidence, we are of the considered view that the prosecution has established the involvement of the appellant in the commission of offence u/s 302 of IPC. The depositions adduced by P.W.3 Bababhai Galbabhai vide Exh.16 and P.W.4 Popatbhai Bababhai Exh.17 are unassailable. Even the depositions adduced by these two witnesses are amply supported by the documentary evidence such as panchnama of place of incident Exh.28, inquest panchnama Exh.38, panchnama of clothes put on by the deceased Exh.23, panchnama of recovery of weapon Exh.30, post-mortem report Exh. 10, medical certificate and FSL report Exh.54. Thus, the prosecution has, in our view, established each and every link connecting the appellant with the commission of offence u/s 302 of IPC. We have also perused the reasons assigned by the learned Judge while convicting the appellant for the offence u/s 302 of IPC and we do not see any reason to interfere with the findings given by the learned Judge as the learned Judge has appreciated the oral depositions and documentary evidence in their true perspective while convicting the appellant for the offence u/s 302 of IPC.

For the foregoing reasons, there is no substance in the appeal preferred by the appellant and the same is dismissed. Judgment and order dated 30th April, 2002 rendered by Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No. 127 of 2001 is hereby upheld. Muddamal articles are to be disposed of in terms of the order passed by the learned Additional Sessions Judge, Sabarkantha at Himmatnagar.