Babubhai @ Takhubhai Ratnabhai ... vs State Of Gujarat
2021 Latest Caselaw 5128 Guj

     R/CR.A/1246/2020                                  CAV JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/CRIMINAL APPEAL NO. 1246 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE BELA M. TRIVEDI                        Sd/-
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                     Sd/-

==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2   To be referred to the Reporter or not ?                        NO

3   Whether their Lordships wish to see the fair copy              NO
    of the judgment ?

4   Whether this case involves a substantial question              NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== BABUBHAI @ TAKHUBHAI RATNABHAI PAGI Versus STATE OF GUJARAT ========================================================== Appearance:

HCLS COMMITTEE(4998) for the Appellant(s) No. 1 MR PV PATADIYA(5924) for the Appellant(s) No. 1 MS CM SHAH APP (2) for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI and HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 15/04/2021

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN)

1.00. This Criminal Appeal has been preferred by the appellant - original accused under section 374(2) of the Code of Criminal Procedure challenging the legality and validity of the judgement and order of conviction and sentence passed by the learned Additional Sessions Judge and Presiding Officer, 2nd Fast Track Court, Godhara (hereinafter referred to as "the Sessions Court") in Sessions Case No.179 of 2009 dated 15/10/2010, by which the Sessions Judge convicted the appellant herein - original accused for the offences punishable under sections 302 and 452 of Indian Penal Code (hereinafter shall be referred to as "IPC" for short).

For the offence under section 302 of IPC, the Sessions Court sentenced the appellant / accused to undergo Life Imprisonment with fine of Rs.1,000/-, and in default of deposit of fine, directed to undergo further Simple Imprisonment for a period of three months.

For the offence under section of 452 of the IPC, the Sessions Court sentenced the appellant accused to undergo Rigorous Imprisonment for a period of three years with fine of Rs.1,000/-, and in default of deposit of fine, directed to undergo further Simple Imprisonment for a period of three months. The Sessions Court directed the appellant accused to undergo both the sentences concurrently and to grant benefit of set off under section 428 of the Code of Criminal Procedure.

2.00. The case of the prosecution, in nutshell is as under:-

The complainant - Rakeshbhai Rayjibhai Pagi lodged the FIR being CR No.I-87 of 2009 with Kothamba Police Station on

11/07/2009 for the offences punishable under sections 302, 452, 324 and 504 of IPC and under section 135 of Gujarat Police Act, alleging inter-alia that on 11/07/2009, he, his father and his mother - deceased Madhuben were sitting in the middle room of their house and his father Rayjibhai was cutting potato and at that time in the evening at about 19.30 hours, the accused - Babu Ratna Pagi entered into his house with open knife in his hand abusing his mother and father and he inflicted knife blow on the left arm of his mother - deceased. It is further stated that as such, the deceased in order to save herself, went into the kitchen wherein the accused caught-hold of her and brought her in the middle room and inflicted blow of knife on her chest. As such, the deceased succumbed to the injuries at the very moment and the accused also bitten his father on his left ankle and injured him.

2.01. After the registration of the FIR, the instigation was set into motion by the investigating officer, who recorded the statements of witnesses, obtained certificate of the injured, postmortem note of the deceased, arrested the accused, prepared inquest panchnama, etc.

2.02. On completion of the investigation, as there was sufficient evidence against the accused, the investigating officer filed Chargesheet against the accused under section 173(2) of the Code of Criminal Procedure in the Court of the Judicial Magistrate, First Class, Lunawada and the case was registered as Criminal Case No.1263 of 2009.

2.03. The case was exclusively triable by the Court of

Sessions, and therefore, the Judicial Magistrate, after providing copies of the Chargesheet papers to the accused free of costs, committed the case to the Court of Sessions under section 209 of the Cr.P.C. and the case was registered as Sessions Case No.179 of 2009 in the Sessions Court, Godhara.

2.04. Thereafter, the Sessions Court framed Charge against the accused at Ex.3 and Plea of the accused was recorded under section 228(2) of the Cr.P.C. at Ex.4. The accused pleaded not guilty and prayed for trial. Therefore, the trial court conducted the trial in accordance with law.

2.05. The prosecution produced the oral as well as documentary evidence, more particularly, the prosecution examined in all 12 witnesses and produced in all 14 documents.

2.06. Thereafter, Further Statement of the accused came to be recorded under section 313 of the Code of Criminal Procedure, wherein it was the case of the accused that he is innocent and falsely implicated in the offence.

2.07. After the conclusion of the trial, the Sessions Court convicted the appellant - accused for the offence under section 302 of IPC and imposed punishment of life imprisonment with fine and also convicted the appellant for the offence under section 452 of the IPC and sentenced the appellant accused to undergo Rigorous imprisonment for a period of three years with fine, as aforesaid.

2.08. Being aggrieved by the said judgement and order of

conviction and sentence, the appellant - accused has preferred this Criminal Appeal.

Submissions of the appellant accused :-

3.00. Mr.P.V. Patadiya, learned advocate appointed by High Court Legal Aid Services Committee, appearing on behalf of the appellant herein - original accused has made the following submissions:-

[1] The Sessions Court erred in convicting the appellant for the offence punishable under sections 302 and 452 of IPC and erred in sentencing the appellant for life imprisonment and three years, respectively.

[2] The Sessions Court failed to appreciate that there was no independent witness examined in the case and the panch witnesses had turned hostile. The deposition of the complainant was also not trustworthy, and therefore, the appellant-original accused should have been given a benefit of doubt by the Sessions Court.

[3] The Sessions Court failed to appreciate that the witnesses who have been examined are relatives of the deceased and interested witnesses and even the complainant and his father had animosity with the appellant accused since long and to some extent they have not supported the case of the prosecution.

[4] The Sessions Court failed to appreciate that the case of the prosecution is not supported by medical evidence and it is unsafe to convict the appellant accused in such a serious

offence of murder.

[5] The Sessions Court failed to appreciate that in the complaint and deposition of the complainant, the complainant has specifically stated that there was altercation between his father and the accused and thereafter the accused came into his house and inflicted knife blow to his mother - deceased and as such the incident has happened in the spur of moment and the appellant accused had no intention or knowledge to kill the deceased.

[6] The Sessions Court failed to appreciate that the witnesses are not trustworthy and the depositions of the witnesses are not consistent and reliable and most of the panchas have turned hostile.

[7] The Sessions Court failed to appreciate that the case of the prosecution is suffering from basic infirmities and there are major and material contradictions in the evidence of the prosecution witnesses about the place of offence.

[8] The Sessions Court failed to appreciate that even otherwise, ingredients for the offence under sections 302 and 452 of IPC are not made out or satisfied.

[9] Learned advocate for the appellant has raised a defence that the husband of the deceased has killed his wife with the knife with which he was cutting potato, due to illicit relation of his wife - deceased with the accused.

[10] Learned advocate for the appellant accused has relied on the decision in the case of Amar Singh Vs. State (NCT of Delhi) with Indrajeet Singh Vs. State (NCT of Delhi), reported in AIR 2020 S.C. 4894.

The aforesaid decision is a case of murder in which there was sole eye witness and the allegation is that the accused persons killed deceased by knife and hockey; eye witnesses, brothers of deceased claiming to be present at spot along with another independent eye witness making no attempt to save their brother from assault and out of three, two eye witnesses turned hostile. In the said decision, the Hon'ble Apex Court held that the conduct of eye witness either at the time of incident or immediately thereafter is not natural and does not inspire confidence which makes his presence on spot extremely doubtful. The Hon'ble Apex Court in the said decision has further held that there are material discrepancy between ocular testimony and medical evidence. The Hon'ble Apex Court in the said decision has further held that the prosecution failed to establish guilt of accused persons beyond reasonable doubt and consequently set aside the conviction.

Making above submissions and relying upon above decision, leaned advocate for the appellant prayed to allow this Appeal by quashing and setting aside the impugned judgement and order of conviction and sentence and order to release the appellant - original accused forthwith.

Contentions of the State :-

4.00. This Appeal is opposed by Ms.C.M. Shah, the learned APP appearing for the State. She has made the following

submissions :-

[1] The prosecution has successfully proved the case beyond reasonable doubt, by leading cogent and convincing evidence.

[2] The prosecution witnesses have supported the case of the prosecution.

[3] The judgement and order of conviction and sentence passed by the Sessions Court is on true appreciation of evidence and same is not perverse.

[4] No error has been committed by the Sessions Court in convicting the appellant for the offence under sections 302 and 452 of IPC and sentencing the accused for life imprisonment and three years, respectively.

[5] There is no reason for the complainant and the prosecution witnesses to falsely implicate the appellant.

5.00. On consideration of the evidence on record, the following facts emerge :-

5.01. The PW No.1 - Rakeshbhai Rayjibhai Pagi who was examined at Ex.6 has fully supported the case of the prosecution. He is the eye witness. He has deposed that he knows the accused. He has identified the accused. He has stated that the incident has occurred at 7.00 p.m. in the monsoon and at that time, he was in his house along with his mother and father and his father was cutting potato and he was sitting near

his father and his mother was sitting on the Otali. He has stated that the accused - appellant herein has inflicted knife blow on his mother and when his father intervened, the accused bitten him. He has further stated that the accused inflicted knife blow on the chest of his mother and on the hand. He has further stated that as at that time he shouted, Pravinbhai Maganbhai, who was Secretary of the dairy and others, rushed to his house and caught-hold the accused and police was called and the complaint was lodged by the complainant. He has further stated that the reason for the incident is that the accused used to harass the deceased and also had taken their bullock and as such the accused assaulted and killed his mother. The complainant has identified the accused in the open court. He has also identified his signature in the complaint.

The said witness was cross-examined by the defence lawyer and in the cross-examination, he has stated that his mother was having illicit relationship with the accused since last five years and same was known to him and his father. He has admitted that while Babu - accused was passing on the road, his father and he shouted bullock thief and the Babu - accused became angry and came into his house and there was scuffle between his father and the accused and his mother intervened. However, he has denied that in this scuffle, his mother got injury due to the knife with which his father was cutting potato. He has denied that his father has killed his mother and the accused has been falsely implicated in this offence.

5.02. PW No.3 - Rayjibhai Chhatrabhai who is examined at Ex.12. He happens to be the father of the complainant and husband of the deceased. He has stated in his deposition that

the incident occurred before 8 months on 11th in the evening at 7.30 p.m. and at that time, he was at his home along with his son Rakesh and wife Madhuben and at that time, Babu - accused came into his house with knife in his hand and he inflicted knife 2 or 3 blows on the chest of his wife, one on the hand of his wife and as his wife shouted, he intervened and the Babu - accused also beat him. As such, due to this incident and hearing the shouting, people gathered and Laxman and Pravin caught-hold the accused Babu and the accused was handed over to the police. The said witness has also identified the accused as well as the Muddamal weapon - knife in the open court.

The said witness has been cross-examined in which there are some minor contradictions brought on record. He has admitted that accused - Babu had stolen bullock and there was a dispute with the accused Babu regarding theft of bullock and due to the dispute, accused Babu gave back the bullock. He has denied that he had shouted Bullock thief. He has denied that his wife got injured in the scuffle with the knife with which he was cutting the potato.

5.03. The PW No.4 - Laxmanbhai Kalubhai Pagi who is examined at Ex.13 has stated in his deposition that he happens to be the neighbour of the complainant and he tried to catch the accused after the incident while he was running. He has deposed that his house and house of the Rayjibhai are adjoining to each other; the incident occurred at 7 O'clock prior to 8 months of the deposition. He has stated that when he was at his home, Rayjibhai shouted and hence he had run and come out and at that time he saw Babu Ratna - accused at the house of Rayjibhai and he tried to caught-hold Babu - accused, however,

he has not seen what was in the hands of the Babu - accused, but the Babu - accused ran away and Pravin who was coming from dairy caught-hold the Babu. He has further stated that when he saw in the house of Rayjibhai, Madhuben wad dead and she was having injuries on her chest and abdomen and she was in pool of blood. He has further stated that police was called and Babu was handed over to the police. The said witness has also identified the accused Babu.

In the cross-examination, the said witness has admitted that there was love affair between Babu - accused and Madhuben - deceased, which was known to Rayjibhai - husband of the deceased and mother of the complainant. He has admitted that Panch was also gathered due to relation between Babu - accused and Madhuben - deceased. He has also admitted that due to the relation of Babu - accused and Madhuben - deceased, there was a dispute between Babu - accused and Rayjibhai - father of the complainant. He has admitted that Babu - accused had taken away bullock of Rayjibhai which was returned back after the dispute between Babu - accused and Rayjibhai. He has also admitted that he had strain relation with the accused. However the said witness has clarified that due to the act of the accused, the relation was strained.

5.04. PW No.5 Pravinbhai Javanbhai is examined at Ex.14. He is the witness who has caught-hold of the accused when he was running after the commission of the offence and he is also residing near the house of Rayjibhai. He has stated in his deposition that the incident occurred on 11/07/2009 at 7.30 p.m. and at that time he was sitting in the office of the dairy and he heard shout of Rayjibhai and after closing the dairy, he went

to the house of Rayjibhai along with Maganbhai Parvatbhai and at that time, Babu was coming out of the house of Rayjibhai and Laxmanbhai caught-hold the accused, but he fled away but at that time Pravinbhai caught-hold the accused. He has further stated that as such other persons were also gathered there and police was called and the complaint was lodged by son of Rayjibhai and Police has recorded his statement.

In the cross-examination, nothing useful and favourable to the accused has come out.

5.05. PW No.6 Maganbhai Parbatbhai who is examined at Ex.15, was one of the persons gathered after the incident when the accused was running out of the house of Rayjibhai and he accompanied the Pravinbhai PW No.5. He has stated that the incident occurred on 11/07/2009 at 6.30 p.m. in the evening and when he was returning from dairy, at that time he heard the shout of Rayjibhai and he and Pravinbhai both ran towards the house of Rayjibhai and at that time, Babu was coming out of the house of Rayjibhai and Babu was caught-hold and police was called. He has stated that thereafter he had gone to the house of Rayjibhai and at that time, he saw that Madhuben was lying dead and lying in the pool of blood and having injury marks on her body. He has stated that the complaint was given by the son of Rayjibhai. This witness has also identified the accused.

This witness is also cross-examined, but nothing useful to the accused has come out on record.

5.06. PW No.7 Mithabhai Lalabhai Chamar is examined at Ex.16. He is the panch witness of the panchnama of seizure of clothes of the accused i.e. Pent and Shirt of the accused. The

said panchnama is produced at Ex.17. The said panch witness has identified the Pent and Shirt of the accused and also identified his signature on the panchnama. He has also identified the knife which was recovered at the instance of the accused in presence of the panch witnesses. The said panchnama is produced at Ex.20. He has also identified his signature on the said Panchnama.

This witness was cross-examined but nothing fruitful has come out from the cross examination which can create a doubt upon the working of the investigating officer and regarding drawing of the panchnama.

5.07. PW No.8 Balubhai Sardarbhai Pagi is examined at Ex.24. He is the panch witness of the panchnama of scene of offence. He has also supported the case of the prosecution. Panchnama of scene of offence is produced at Ex.25. The said witness has identified his signature on the panchnama of scene of offence Ex.25 and muddamal article which was seized by the investigating officer at the time of panchnama. This witness was also cross-examined, but nothing useful to the accused has come on record.

5.08. PW No.9 Bhagabhai Kalubhai is examined at Ex.30. The said witness is the uncle of the accused. He has deposed that the incident occurred on 11/07/2009 in the evening at 7 O'clock and at that time when he was at his house, Rayjibhai and Laxmanbhai shouted and he ran towards the house of Rayjibhai and on reaching there, he saw knife in the hand of Babu and the Babu tried to injure him also and Babu fled away from the hands of Rayjibhai and Laxmanbhai and ran towards

dairy where he was caught-hold by Pravinbhai and Maganbhai. He has further stated that thereafter he went in the house of Rayjibhai and he came to know that the deceased was Madhuben - wife of Rayjibhai and there were three injuries of knife and thereafter police was called and Babu was handed over to the police. The said witness has also identified the accused. He has also identified the knife which was in the hands of the accused.

This witness was also cross-examined but nothing useful to the accused has come on record.

5.09. PW No.10 Kalubhai Javanbhai is examined at Ex.32. He is the Panch witness of the inquest panchnama. He has also supported the case of the prosecution. He has also identified the accused because he is from the same village.

Medical Evidence :

5.10. PW No.2 Dr.Setalben Chetankumar Shah is examined at Ex.8. She is the medical officer who examined the injury of injured Rayjibhai - father of the complainant and she has also conducted the postmortem of the dead-body of the deceased. She has stated that she was working in the Lunawada Cottage Hospital on 12/7/2009 and on that day injured Rayjibhai was brought before her for examination. According to her, as per the history given by Rayjibhai before her, he was assaulted and bitten on 11/07/2009 at 7 p.m. As per the certificate given by the said doctor, there are two injuries, one injury was marks of human bite on the left hand below the elbow and on the right wrist and another injury was of swelling on the left thigh. She has stated that the said injuries were caused

within 24 hours and same were simple in nature and were possible by blunt instrument and bitting. The certificate to that effect has been produced on record at Ex.9. The said Doctor has deposed that the deceased was brought on 12/07/2009 and postmortem was started at 12.15 p.m. and was completed at 3.00 p.m. The said doctor has also deposed that the deceased had 5 external injuries, as mentioned in column No.17 of the postmortem report. The said Doctor has also deposed that the deceased has fractures of ribs No.4, 5 and 7 on the left side of her body. According to the said Doctor, all injuries were visible and ante-mortem in nature. According to the Doctor, time of death was between 18 and 24 hours and the injuries were possible by muddamal article No.9 - knife and all the injuries mentioned in column No.13 were sufficient to cause death. The said doctor has opined that the cause of death is hemorrhage shock due to heart and lung injury.

In the cross-examination of the said Doctor on the part of the accused, nothing has come on record which can falsify the say and opinion of the Doctor. This witness has supported the case of the prosecution and her evidence is corroborative.

5.11. PW No.12 - Bharatkumar Joytaram Chaudhary is examined at Ex.41. He is the investigating officer of the case. He has supported the case of the prosecution. He has also identified the accused who was present in the court. He has also identified the muddamal.

In the cross examination, he has denied that the panchnamas were not drawn in presence of the panchas. It is denied that he has not recorded statements of any independent

witness. It is denied that in his investigation it was revealed that as the deceased was having illicit relationship with the accused, the husband of the deceased killed the deceased with the knife with which he was cutting potato.

6.00. Heard the learned counsel for the respective parties at length. Considered the evidence on record.

6.01. Considering the evidence on record, it is clear that the case of the prosecution hinges on the evidence of two eyewitnesses i.e. complainant - son of the deceased and his father - husband of the deceased. Both the eye witnesses have fully supported the case of the prosecution. There are other witnesses also who have also supported the case of the prosecution. Two witnesses i.e. PW No.5 and PW No.6 had caught-hold of the accused while he was running away from the house of the deceased after commission of the offence. The said witnesses have also supported the case of the prosecution.

6.02. Learned advocate for the appellant has raised a defence that the husband of the deceased had killed his wife with the knife with which he was cutting potato, due to illicit relation of his wife - deceased with the accused. The defence story which is tried to be raised and brought on record in this appeal by the learned advocate for the appellant accused was not raised before the trial court. No such probable defence has been raised either in the cross-examination of any of the witnesses or in the further statement of the accused under section 313 of the Code of Criminal Procedure. Nothing has been brought on record during the cross examination of any of the witnesses which can even infer the story of the prosecution to be

improbable or false story.

6.03. There are some minor discrepancies and contradictions in the evidence of the prosecution witnesses, however, can not lead the entire prosecution case to be false.

6.04. It is a well settled law that if the evidence of even sole eye witness is found to be reliable, the same can be relied upon, and when evidence of sole eye witness is getting corroboration from the evidence of other witnesses, the evidence of sole eye witness is wholly reliable. In the case of Anil Phukan v.State of Assam, reported in (1993) SCC (Criminal) 810, Hon'ble the Apex Court broadly divided the evidence of sole eyewitness in three categories, namely. (i) wholly reliable, (ii) not found to be wholly reliable and (iii) wholly unreliable. If the evidence of solitary eyewitness is found to be wholly reliable, the conviction can be based on it, but if it is not found to be wholly reliable, the Court may insist for some corroboration before acting upon the evidence. However, when such evidence is found wholly unreliable and defective, then the same is required to be discarded in toto and no amount of corroboration can cure that defect. In order to prove its case beyond reasonable doubt, the evidence produced by the prosecution has to be qualitative and may not be quantitative in nature.

6.05. In the case of Namdeo V/s. State of Maharashtra [(2007) 14 SCC 150], Hon'ble Apex Copurt has held as under:

"28. From the aforesaid discussion, it is clear that Indian legal system does not insist on

plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872 ) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived." Similarly, in the case of Bipin Kumar Mondal V/s. State of West Bengal (2010) 12 SCC 91, this Court took the view, "..in fact, it is not the number and quantity but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. The test is whether evidence has a ring of truth, is cogent, trustworthy and reliable."

6.06. Here in this case, we are also of the opinion that though it is not case of solitary eye witness, but there are two eye witnesses and other witnesses who had caught-hold the accused while the accused was running after commission of the

offence. Nothing is on record to prove that the evidence of the witnesses are not reliable and there is no reason not to believe the evidence of those witnesses. The evidence of those witnesses are natural and their presence are found to be natural at the scene of offence. As such, here in this case, there is not only quantity of evidence but also quality of the evidence. The depositions of the witnesses are qualitative in nature pointing towards the guilt of the accused and the evidence of all the witnesses supports each other and supports the version of the prosecution case positively. At the same time, deposition - oral evidence of the witnesses are also supported by the Panch witnesses before whom Panchnamas were being drawn. The muddamal has been seized, inquest panchnama has been drawn and panchnama of scene of offence has been drawn. So, the ocular evidence of the witnesses has been corroborated by the documentary evidence and the main corroboration to the case of the prosecution is the medical evidence i.e. deposition of the Doctor and report of the FSL. The blood group of the deceased was analised and the blood group of the deceased was B. The serological report produced on record at Ex.48 also reveals that the blood group of the deceased was B and the bloodstains found on the clothes of the accused was also of blood group B. No explanation has been given by the defence, how blood-stains of B group which is the blood group of the deceased, has come on the clothes of the accused, more particularly when there is no case of injury to the accused in this case.

6.07. Considering the overall evidence on record, as stated above, more particularly the evidence of eye witness, it is clear that the prosecution has proved the case beyond reasonable

doubt. The trial court has evaluated the evidence on record in its true spirit and rightly convicted the accused for the offence under sections 302 and 452 of IPC and no error has been committed by the court below in sentencing the appellant accused for the life imprisonment.

7.00. In the result, present appeal fails and the same deserves to be dismissed and is accordingly dismissed. R&P be sent back at the earliest.

Sd/-

(BELA M. TRIVEDI, J)

Sd/-

(RAJENDRA M. SAREEN,J) R.H. PARMAR