Shyam vs State of Gujarat

Mr. Biren Vaishnav, J.(Oral)—Original accused nos. 1 to 6 - appellants herein have challenged the judgment and order dated 25.01.2012 passed by the 7th (Ad-Hoc) Additional Sessions Judge, Surat in Sessions Case No. 236 of 2009 whereby the appellant - accused has been convicted under Section 302 of Indian Penal Code and sentenced to life imprisonment and has been imposed fine of Rs. 10,000/-, in default, simple imprisonment for six months thereunder.

The facts leading to the alleged offence are that on 16.08.2009 while travelling in the general compartment of Ahmedabad - Puri Express, the accused had an altercation with a co-passenger - deceased Noorkhan Pathan and his family. As a result of this altercation with the deceased, the accused pushed the deceased out of the running train when the deceased was standing near wash basin adjacent to the door. It is the case of the prosecution that this incident occurred after the train had left Surat railway station at around 2230 hours and between Chaltan and Bagumara railway stations.

2.1 The appellant was apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions. The trial was initiated against the accused and during the course of trial the accused pleaded �not guilty� to the charge and his defence was one of total denial.

2.2 The prosecution examined the following witnesses whose evidence were read before us by learned advocate for both the sides:

P.W. No.

Name of Witness

Exhibit No.

1

Dr. Parth Desai

6

2

Saiyed Mehmood Saiyed Rehman

11

3

Pravinkumar Pandya

15

4

Sureshbhai Pawar

17

5

Zubeda Noorkhan Pathan

20

6

Miteshkumar Patel

23

7

Zayedabibi Iqbal Jamsherkhan

24

8

Yasin Jamsherkhan Pathan

25

9

Mukhtyar Shaikh Sattar

26

10

Nasirkhan Noorkhan Pathan

27

11

Gulabkhan Usmankhan

28

12

Mahendrakumar Sharma

29

13

Vasant Dandvate

30

14

Prashant Shrimant

31

15

Narsinh Vasava

32

16

Shambhukumarsinh Avdheshsinh

33

17

Ramlal Meena

34

18

Dashrathsinh Virpura

35

19

Sanmukhbhai Govindbhai

36

20

Rustambhai Gamit

37

21

Bhavsing Narayansing

38

22

Nitin Dayaram

39

23

Gambhirsinh Parmar

42

24

Bhupendra Kansara

43

2.3 The prosecution also exhibited the following documents which were perused by us during the course of hearing:

Sr. No.

Name of Documents

Exhibit No.

1

Post mortem note

7

2

Cause of death certificate

8

3

Panchnama of scene of offence

12

4

Inquest panchnama

14

5

Panchnama of clothes of deceased

18

6

Complaint

21

7

Yadi for spot investigation

40

8

Report given at the spot by FSL

41

9

Index

44

10

Arrest panchnama

45

11

Muddamal dispatch note

46

12

Certificate

47

13

Receipt of receiving muddamal by FSL

48

14

FSL report

49

15

Serological report

50

16

Report by physics department

51

2.4 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellant as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal.

Mr. Gajendra Baghel, learned advocate appearing for the appellant, submitted that there is nothing on record to establish that the accused is involved in this case except the complaint and the evidence of P.Ws. 5, 7 & 8 who are interested and related witnesses. He submitted that the trial court ought to have appreciated that the train was overcrowded and there were number of passengers boarding and alighting at Surat station and therefore the deceased had actually slipped out of the running train. He submitted that the prosecution has failed to examine independent witnesses who had witnessed the incident in question when the train was crowded with passengers.

Ms. C.M. Shah, learned APP, however, submitted that the trial court has given cogent reasons for sustaining the conviction under section 302 of Indian Penal Code and this court may not interfere in this appeal. It is submitted that the trial court has based the conviction not only on the evidence of eye witnesses but also considered entire circumstances of the case and the facts which are proved by cogent evidence. It is submitted that in view of the evidence of the police constable and the driver of the train which duly corroborates the evidence of eye witnesses, the trial court has rightly convicted the appellant - accused.

We have considered the case from all angles. The complaint was lodged by the widow of deceased and in the complaint she had stated that as a result of the altercation between the deceased and accused, the accused had pushed her husband - deceased out of the running train while he was at the wash basin after having had his supper. It was further the case in the compliant that she had seen the accused pushing her husband out of the train and therefore she shouted as a result of which one police constable Prashant Shrimant, who was in the third general compartment, came in on hearing the shouts and caught hold of the accused - appellant herein.

On a perusal of the medical evidence, more particularly, column no. 17 of the post mortem report, the injuries noted therein are under:

"17. (1) A laceration wound on back of scalp about 4 cm above occipital left side about 10 cm length & 5 cm breadth, �S� shaped on palpation the bones beneath the wound are fractured & soft tissue beneath bones scalp palpable from wound.

(2) Laceration wound on back of scalp about 15 cm from occipital protuded in app. Midline about 10 cm x 5 cm dimension and bone deep with underlying bone fractured & soft tissue (brain) palpable.

(3) A long incise wound over rt. Side beginning from rt. Nostril to rt. Angle of mount 3 � cm x 2 cm x 1 cm deep & bone deep surrounding conturiont & blood stains

(4) # of rt. Index finger at 1st phalanx closed type

(5) Puncture wound in front of rt. Ear auricle above 2 cm diameter & 1 inch deep surrounded by centurion.

(6) Minor abrasion wound on rt. Toe 4 x 3 cm

(7) Minor abrasion wound on back of abdomen at lever of L3-L4 vestebrae about 12 x 6 cm dimension."

The cause of death has been due to cardio-respiratory failure due to shock and grievous head trauma. The medical officer has deposed as P.W. 1 at Ex. 6 and has categorically stated that the death of the deceased occurred due to head injuries. The complainant - widow of deceased - Zubeda Noorkhan Pathan has been examined as P.W. 5 vide Ex. 20. This witness has categorically supported the contents of the complaint. Even other witness namely sister-in-law of deceased - Zayedabi Iqbal Jamsherkhan has deposed in her evidence at Ex. 24 that she had also seen the accused pushing the deceased - her brother-in-law out of the running train as she was standing near deceased. The other eye witness to the incident namely Yasir Jamsherkhan Pathan - P.W. 8 has also been examined vide Ex. 25 and this witness has also in his examination-in-chief has categorically stated the fact that he had witnessed the incident in question and that as he was also standing near the door he had seen the deceased being pushed out of the running train by accused - appellant herein.

The evidence of these eye witnesses has been corroborated by the driver of the train and also by the constable Prashant Shrimant who has been examined as P.W. 14 vide Ex. 31. This witness has deposed that he moved into the general compartment boggie no. 3 and hearing shouts he rushed to the boggie and caught hold the accused. It is therefore evident that the fact of the incident i.e. the act of the accused in pushing the deceased out of the running train cannot be disputed.

Mr. Gajendra Baghel, learned advocate appearing for the appellant has tried to contend that the eye witnesses were relatives of the deceased and that there were minor discrepancies as to the fact where the accused was caught after the train had stopped was material enough to disprove the incident in question. He has submitted that the finding of the trial court cannot be said to be in accordance with law. It is settled position of law that improvements or variations of the statements of the witnesses should be of such nature that it would create a definite doubt in the mind of the court that the witnesses are trying to state something which is not true and which is not duly corroborated by the statements of the other witnesses. Mr. Baghel has not been in a position to dispute the fact that the three witnesses namely the complainant Zubeda, Zaheeda and Yasin were travelling in the same train and that their statements have been corroborated by the driver of the train as well as the police constable and therefore it cannot be said that the findings arrived at by the trial court are erroneous.

The trial court has rightly observed that the complainant who is also an eye witness to the incident has supported the contents of the complaint and also stated the incident which triggered the present offence. The FIR is also found to be trustworthy and credible. The panch witnesses have supported the panchnamas. Even the scene of offence panchnama supports the case of the prosecution. The prosecution has been able to prove the case against the appellant-accused and therefore we see no reason to interfere.

However, in a recent decision of the Apex Court in the case of Bhaikon @ Bakul Borah v. State of Assam reported in JT 2013 (10) SC 373 has held as under:

"15. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. [Vide Life Convict @ Khoka Prasanta Sen v. B.K. Srivastava & Ors. (2013) 3 SCC 425, Mohinder Singh v. State of Punjab, (2013) 3 SCC 294, Sangeet and Anr. v. State of Haryana (2013) 2 SCC 452, Rameshbhai Chandubhai Rathod (2) v. State of Gujarat (2011) 2 SCC 764, Chhote Lal v. State of Madhya Pradesh (2011) 8 SCR 239, Mulla and Another v. State of Uttar Pradesh (2010) 3 SCC 508, Maru Ram v. Union of India & Ors. (1981) 1 SCC 107, State of Madhya Pradesh v. Ratan Singh & Others (1976) 3 SCC 470 and Gopal Vinayak Godse v. State of Maharashtra AIR 1961 SC 600].

In view of the clear decisions over decades, the argument of learned senior counsel for the appellant-accused is unsustainable, at the same time, we are not restricting the power of executive as provided in the Constitution of India. For adequate reasons, it is for the said authorities to exercise their power in an appropriate case."

For the foregoing reasons, appeal is hereby dismissed. The judgement and order dated 25.01.2012 passed by the 7th Ad-hoc Additional Sessions Judge, Surat in Sessions Case No. 236 of 2009 is confirmed. However, it is clarified that after the original accused serves sentence for 14 years his case may be considered for remission as it is not that life imprisonment should be treated till last breath and the case of the original accused may be reviewed by the appropriate authority considering the decision of Apex Court in the case of Bhaikon @ Bakul Borah (supra). The period of sentence already undergone shall be considered for remission and set off in accordance with law. R & P to be sent back forthwith.