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Judgment
K.J. Thaker, J.—The appellants, herein, are the father and son, who were original accused in Sessions Case No. 239 of 2008, and by way of this appeal they have challenged the judgment and order of the learned 5th Additional District and Sessions Judge, Surat, Dated: 06.11.2009, rendered in the aforesaid sessions case, whereby, both the appellants are convicted for the offence punishable u/s 302, 323, 188 and 114 of the IPC and are sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/- by each of them and in default to undergo rigorous imprisonment for one year. A complaint came to be lodged by Jayaben W/d. Kalubhai Shamjibhai Chavda, the complainant, before PI, Kapodra Police Station, Surat, wherein, she stated that she is residing at the address given in the complaint along with her husband and she is serving in a hospital. Then, she went on to narrate the alleged offence stating that on 06.06.2008, she dropped a patient at Madhuvan or Bhagirath Society in an auto-rickshaw and in another auto-rickshaw, she went to Sitaram Crossroads, where, she met her elder sister. From there, she along with her sister went to the place of offence and at that time, since, the deceased, i.e. her husband, called her over her cell phone, she asked him to come there. Hence, the deceased also went there and met them and after staying there for about 10-15 minutes, when the complainant and the deceased hired an auto-rickshaw for the purpose of dropping the elder sister of the complainant at her home, at that point of time both the appellants came out of a house, situated in the nearby society and they dragged the deceased out of auto-rickshaw. Then, appellant No. 1 caught hold of the deceased, whereas, appellant No. 2 inflicted several knife blows on the deceased and when the complainant tried to intervene, she was also inflicted injuries by appellant No. 1. It is, further, stated in the complainant that the complainant had earlier married to appellant No. 1 and out of the said wedlock, she gave birth to appellant No. 2. However, since, there was difference of opinions between the complainant and appellant No. 1, the complainant left the appellant No. 1 and, since then, started residing with the deceased for last about 10 years prior to the alleged incident as husband and wife and by keeping the grudge on account of the above, the appellants, herein, committed the alleged offence.
On registration of the offence, police carried out the investigation and on finding, prima facie evidence against the appellants, laid a charge-sheet against them, and then, the case was committed before the Sessions Court, Surat, for trial. At the time of trial, the accused did not plead guilty and claimed to be tried. Hence, the appellants were tried for the alleged offence.
To bring home the charges leveled against the appellants, the prosecution examined the following witnesses;
Apart from the aforesaid 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 appellants 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 appeal.
Heard, Mr. Parikh, learned Counsel for the appellant, and Mr. Soni, learned APP, on behalf of the respondent-State.
To prove the aspect that the deceased died of homicidal death, the prosecution examined P.W. 16-the doctor, who had performed PM on the body of the deceased, at Exhibit-36. This witness had found as many as 19 injuries on the body of the deceased at the time of PM, which are mentioned at Column No. 17 of the PM note. In his examination-in-chief, this witness stated that the injuries found by him on the body of the deceased were possible with the muddamal weapon. The learned Counsel for the original accused failed to controvert the evidence of this witness on material aspects by way of his cross-examination. Thus, from the evidence of P.W.-16, it becomes clear that the deceased died of homicidal death.
Having held that the deceased died of homicidal death, now, what we have to examine is, as to whether the appellants, herein, are the authors of the alleged offence or not? In order to appreciate the aforesaid aspect, here, it would be relevant to refer to the evidence of the complainant, who is an eye-witness of the alleged offence and who was examined as P.W.-1 by the prosecution. In her examination-in-chief, P.W.-1 reiterated the facts given by her in her police complaint, stating as to how she 1 along with her sister went to the place of offence, where, the deceased joined them and while they were preparing to leave the said place, as to how both the appellants came there and inflicted injuries on the deceased. This witness was exhaustively cross-examination by the learned Advocate for the accused persons, wherein, this witness stated that she had accepted the deceased as her husband and that at the time of offence, she was residing with him. In her cross-examination, this witness denied the suggestion that on the date of the alleged offence, she had not gone to fair and was present at the house of Labhuben and that the deceased was admitted in the hospital, where he subsequently expired. She also denied the suggestion that she subsequently went to the hospital and wrongly gave the names of the appellants. She also declined that she was falsely deposing.
In the case on hand, the complainant and both the appellants are related to each other, and hence, the question of misidentification does not arise. It has come on record that the accused No. 1 was former husband of P.W.-1 and accused No. 2 was her real son, and hence, there is no reason to believe that she would falsely involve them in the alleged offence, sparing the real culprits. The evidence of P.W.-1 also indicates the motive for committing the alleged offence by the appellants. Thus, the evidence of P.W.-1 leaves no manner of doubt in our mind about the guilt of the appellants.
The evidence of P.W.-1 gets support from the evidence of (1) P.W.-2, who was a witness to the inquest panchnama (Exhibit-11) and he partly supported the same, (2) P.W.-4 and P.W.-12, who were witnesses to the discovery panchnama (Exhibit-16) and they partly supported the same, (3) P.W.-5, who was a witness to the panchnama of place of offence (Exhibit-19) and he fully supported the same, (4) P.W. 10, who partly supported the panchnama of seizure of mobile (Exhibit-26), (5) P.W.-16, who prepared the map of the place of offence(Exhibit-41), (6) P.W.-18, who made entry with regard to the complaint in Station Diary, (7) P.W.-17-the Executive Magistrate, who conducted the TI parade of the accused, during which the complainant identified both the appellants as the accused persons, (8) P.W.-20-the doctor, who had provided the treatment to appellant No. 1 and (9) P.W.-22-the IO, who carried out the investigation into the alleged offence.
The case of the prosecution also gets support from the documentary evidence in the form of report of FSL (Exhibit-54), which indicates that the presence of human blood of group ''A'' was found on Muddamal Articles, i.e. (1) ''A'' (Sand), ''B'' (Control Sand), (3) D/1 and D/2 (Shirt and trouser), (4) ''E''(Saree), (5)''G1''(Shirt), (5) ''H'' (Knife), which was the blood group of the deceased. Moreover, the report of FSL(Exhibit-52) indicated that the cut marks found on the shirt of the deceased could be caused by the muddamal article ''H'' (knife).
Insofar as the evidence of P.W. Nos. 3, 6, 7, 8, 9, 11, 13, 14 are concerned, they did not support the case of the prosecution even a bit and were declared hostile. However, the hostile stand taken by these witnesses does not affect the case of the prosecution in any manner, since, the same stands proved by the evidence of the eye-witness, i.e. P.W.-1, which in turn gets support from the evidence of other witnesses as well as the documentary evidences. In view of the above discussion, we are of the opinion that the trial Court committed no error in convicting both the appellants u/s 302 of the IPC. So far as the default sentence of rigorous imprisonment for one year imposed by the trial Court in case of failure on the part of each of the appellants to pay fine of Rs. 10,000/- is concerned, same appears to be on higher side, and hence, the ends of the justice would met if the same is reduced to three months. In the result, the appeal is PARTLY ALLOWED. The judgment and order of the trial Court, Dated: 06.11.2009, convicting both the appellants for the offence under Sections 302, 323, 188 and 114 of the IPC and sentencing them to undergo imprisonment for life and to pay fine of Rs. 10,000/- by each of them is, though, CONFIRMED to that extent, same is modified to the extent it orders the appellants to undergo rigorous imprisonment for one year in case of default in payment of aforesaid fine and the default sentence is reduced to THREE MONTHS. It is, further, observed that taking into consideration the fact that appellant No. 1 is aged about 65 years and appellant No. 2 is a young man, aged about 25 years, the term ''imprisonment for life'' would not mean imprisonment till last breath of the appellants - accused and it shall be open to the State government to consider their case for release at appropriate stage. A copy of this order be sent to the concerned jail authority, forthwith.