Gujarat High Court
Kamlesh @ Lalo Rameshkumar vs State Of Gujarat on 11 August, 2023
Bench: A.Y. Kogje
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 934 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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KAMLESH @ LALO RAMESHKUMAR
Versus
STATE OF GUJARAT
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Appearance:
MR SAURIN A SHAH(791) for the Appellant(s) No. 1
MR VICKY B MEHTA(5422) for the Opponent(s)/Respondent(s) No. 1
MS. SHWETA S. LODHA for the Opponent(s)/Respondent(s) No. 1
MS. SHRUTI PATHAK, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
Page 1 of 36
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HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 11/08/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. Present Appeal by the convict under Section-374 of the Code of
Criminal Procedure, 1973, is preferred against the judgment and order
dated 05-06-2020 passed in Sessions Case No.136 of 2014 by 3 rd
Additional Sessions Judge [Special Judge (POCSO and Special Fast Track)]
at Rajkot recording conviction of the appellant for the offences under
Sections-302 of the Indian Penal Code and under Section-135(1) of the
G.P. Act.
2. By the aforesaid judgment and order, the appellant is ordered to
undergo sentence as under:
Default in making
Section Sentence Fine
payment of fine
302 of 25 Years Rigorous 3 months Rigorous
5,000/-
IPC Imprisonment Imprisonment
135(1)
4 months Rigorous 10 days Rigorous
of G.P. 500/-
Imprisonment Imprisonment
Act
3. The appeal was admitted by order dated 13-10-2020 and the
Record and Proceedings were called for. Along with an application, the
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Paper-book has also been submitted. The complainant side is represented
by the private Advocate. This Court had directed under order dated 18-
07-2023 for taking up the main matter on 09-08-2023 and with the
consent of all the parties and considering the time spent by the appellant
in custody, the appeal is taken up for hearing.
4. The Sessions Case arises out of the incident, which took place on
07-04-2014, for which the F.I.R. being C.R. No.I-106 of 2014 was
recorded. The incident was informed by the complainant- Kiranbhai
Chhaganbhai Mandir, wherein on 07-04-2019 at about 6.00 p.m., he was
present at the house of his sister Madhuben during that time, his brother-
in-law Bhupatbhai had come and informed to him (complainant) that
when he was being sat near his house upon chair at that time, Lalo
whose name is Kamlesh had quarreled with him and told that why he is
being sat there then the complainant gone at the house of his brother-in-
law along with Bhupatbhai then his sister Gunvantiben had told that they
will convince Manjuben, mother of Lala, therefore, the complainant, her
brother-in-law Bhupatbhai, Gunvantiben went to talk with Manjuben and
then Manjuben had by making phone called to her son; Kamlesh @ Lalo
and Kamlesh @ Lalo Rameshbhai Mehta came at about 7.00 - 7:15 p.m.
and they all were standing in the street and he (Kamlesh) went in the
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house and came out of his house with knife and telling to his sister and
brother-in-law that why they are abusing his mother and by telling this
he has forcefully given one blow at the right side due to his sister
Gunvantiben, who fell down then Kamlesh had given indiscriminatory
blows with knife to his brother-in-law Bhupatbhai at his chest and
stomach and his sister Manjuben was preventing to him inspite he was
continuous giving blows. Further he felt that Kamlesh also will kill him
due to that he fled by running and he had made call to number 100 and
108 and made call to Chhayaben, D/o. Bhupatbhai and informed her
about the incident.
5. Learned Advocate for the appellant has submitted that it is the
case where two deaths have taken place, but the reason behind this fact
that the deceased and the informant had assaulted the mother of the
appellant- Manjuben, because of which, she received injury and was
bleeding. The appellant having lost self-control upon seeing this sight,
had carried out assault by use of knife.
5.1 Learned Advocate for the appellant has submitted that the issue of
altercation interse being neighbors was too trivial and incident would
definitely not result into such assault, which could cause the death of
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two individuals and therefore, being infuriated at the prevailing
circumstances, the death caused should be treated to be an outcome of
accidental incident.
5.2 Learned Advocate for the appellant has submitted that the
prosecution has not come with clean hands as the very genesis of the
incident has been suppressed. Starting point of issue was an assault made
by the deceased and the informant on his mother and the informant
though being witness to the incident, has not given out this initial story
as to what triggered the incident and therefore, benefit should go to the
appellant as genesis of the offence is suppressed.
5.3 Learned Advocate for the appellant has submitted that the
prosecution has deliberately divided the incident in two parts to add
gravity to the offence and the witness for second part of incident is
planted witness, as his statement has been recorded after period of one
month and five days of the incident. Not only that, but two Investigating
Officers, who have successively carried out the investigation, in their
deposition, have not indicated the manner in which, this witness can be
treated as an eye-witness.
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5.4 Learned Advocate for the appellant has submitted that theory of
the prosecution is also inconsistent with regard to the chronology of
attack by the appellant on the deceased. It is submitted that on the basis
that the F.S.L. report showed the presence of blood of Gunvantiben on
the knife and therefore, only her blood was found on the knife and no
blood-stain was found on the knife of that of Bhupatbhai. Therefore, it is
submitted that theory proposed by the prosecution on the basis of eye-
witness that first Gunvantiben was attacked and caused knife injury.
Thereafter, Bhupatbhai was assaulted with knife causing injury, cannot be
believed and therefore, the appellant is entitled to get the benefit of
doubt.
5.5 Learned Advocate for the appellant has submitted that theory of
the prosecution is also inconsistent as according to the prosecution, the
deceased-Bhupatbhai was assaulted twice, first nearby residence and later
on nearby house of one Narendrasinh, but the deceased-Bhupatbhai
assaulted later on at another place of assault, then definitely, his blood-
stains would be found on the knife. Not only that but the evidence of
eye-witness of the second incident, PW-14 cannot be believed at all, as
he has stepped into investigation at-least 15 days after the incident.
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5.6 Learned Advocate for the appellant has again on the point of
suppression of genesis submitted that PW-22; Trijugnarayan Mishra, who
was on hospital duty, has deposed that three persons were brought in for
the treatment, which included Manjuben; mother of the appellant and in
the history, has recorded that the injury was caused on account of the
assault by the wooden log in the fight with deceased-Bhupatbhai,
deceased- Gunvantiben and brother of Gunvantiben; informant. From the
evidence of this witness, it is clear that mother of the appellant was first
assaulted because of which, the appellant felt infuriated, angered. The
prosecution having hidden this important aspect, benefit should go to the
appellant. It is submitted that this version given by Manjuben, when she
was brought to the hospital, was at 8.25 pm, whereas the F.I.R. came to
be registered on 22.10 pm.
5.7 Learned Advocate for the appellant has submitted that PW-22 has
also indicated that it was one Shailesh, who had brought the deceased to
the hospital and one Jignesh, Dipak, who brought Gunvantiben in
unconscious condition to the hospital. It is submitted that had the
prosecution examined these two witnesses, many things would have been
revealed, but by not examining these two witnesses, the prosecution has
tried to hide many things, which otherwise would have surface in favour
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of the appellant.
5.8 Learned Advocate for the appellant has submitted that the
prosecution has relied upon the evidence of PW-12; Rupaben Gohel. In
support of its case that she had seen the appellant running away from
the place and at that time, his uniform was blood-stain. It is submitted
that immediately after the incident, case of the prosecution is that the
Police has immediately reached the scene of offence and put security
around crime scene. Therefore, there was no scope of appellant being at
home after the assault, but from the investigation case papers, blood-stain
cloths were recovered from the house of the appellant. Therefore,
question is that if no witness has seen the appellant after running away,
returning back to the house, then how did the blood-stain cloths came to
be recovered from the house of the appellant. Therefore, this witness is
not consistent with the case of the prosecution.
5.9 Learned Advocate for the appellant has submitted that PW-14;
Devjibhai Sukhabhai Chauhan is the main witness on whom, the
prosecution is heavily relying. He is the witness to the assault carried out
by the appellant on Bhupatbhai near the house of Narendrasinh. This
witness is planted witness in as much as his statement was recorded after
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15 days and his deposition is full of contradiction. It is submitted that he
has clearly deposed in his cross-examination that he is not aware,
whether the assailant had caused assault on Bhupatbhai on two occasions,
whereas clear case of the prosecution is of assault to Bhupatbhai at two
different locations. It is submitted that in so far as this witness is
concerned, he has a history in which he has been accused of serious
crime of murder and therefore, should not be relied upon. It is submitted
that this witness is only got-up witness to lent credence to the evidence
of other eye-witnesses, whose evidences are shaky.
5.10 Learned Advocate for the appellant has thereafter drawn attention
of this Court to the evidence of the Investigating Officer; PW-25. In his
cross examination, he has deposed that Devjibhai Sukhabhai Chauhan is
an eye-witness, was never conveyed to him by any of his Police Staff in
his investigation. It was also revealed that accused after assault had left
the place of offence.
5.11 Learned Advocate for the appellant has lastly drawn attention of
this Court to PW-24, who is the witness, who has deposed about the
Closure Report of the complaint regarding assault to Manjuben, which
according to the appellant is triggering point for the entire incident. He
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has drawn attention of this Court to Exh-150 and submitted that the
prosecution had procedurally erred in closing investigation / inquiry in
connection with the incident of assault on mother of the appellant;
Manjuben and this is done only to help the prosecution to strengthen the
case against the appellant. He has therefore, summed up his argument
raising five contentions. Firstly, the prosecution has not come out with
clear case from the beginning, as the prosecution has attempted to
suppress the genesis of the incident i.e. assault on his mother. Secondly,
the evidence of the prosecution shows the chronology of assault; first on
Gunvantiben and thereafter, on Bhupatbhai. However, FSL report only
shows blood-stain of Gunvantiben on the knife. Therefore, thirdly
sequence of assault has also been suppressed by the prosecution.
Fourthly, PW-12 cannot be believed to have seen the accused in blood-
stain cloths, as the accused had fled from the scene, but the blood-stain
cloths were found from the house. Fifthly, second part of the incident of
assault by knife, which is sought to be proved by PW-14, whose
statement is recorded after one month and five days and therefore,
cannot be treated to be truthful witness.
5.12 Learned Advocate for the appellant has lastly submitted that even
if the incident is believed, then also, the Court may take into
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consideration the surrounding circumstances, which lead to commission of
crime and therefore, consider to record conviction under Section-304 of
the Indian Penal Code in place of under Sections-302 of the Indian Penal
Code.
6. As against this, learned Additional Public Prosecutor has opposed
the Appeal and has submitted that attempt on the part of the appellant
to consider the incident as aggravated response of the appellant on
account of the assault, which was carried out on his mother by three
individuals. It is submitted that even if the defense story is to be
believed, then also, the appellant far exceeded use of force, which lead
to death of two persons. It is submitted that though the defense has
proposed theory that the assault was mainly upon the deceased-
Bhupatbhai, but it was Gunvantiben, who intervened in the assault and
accidentally received injury, cannot be believed in view of clear cut
evidence of eye-witnesses, whose presence was natural and their
testimony has remained unimpeached. It is submitted that even from the
cross examination of this witnesses, there is no reason to disbelieve these
witnesses.
6.1 Learned APP has submitted that PW-14; Devjibhai Sukhabhai
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Chauhan has to be treated as truthful eye-witness, as his presence is
natural being resident of neighboring area and his conduct was very
natural, when he saw the assault, he tried to get in touch with the
Authorities. Therefore, merely because the Police failed to record his
statement for longer period, would not challenge the credibility of the
witness. In his deposition including cross examination, he has deposed
that he did inform about he being witness, but he was informed by the
Police that for the purpose of his evidence, he will be called later. In the
cross examination of this witness, nothing is brought on record to doubt
his presence, merely because, he has a history of being accused of serious
offence, will not discredit his evidence.
6.2 Learned APP has thereafter drawn attention of this Court to the
scene of offence Panchnama as well as sketch of the scene of offence and
submitted that blood samples collected from two locations of scene of
offence completely corroborates theory of the prosecution that deceased-
Gunvantiben and deceased-Bhupatbhai, first assaulted near their residence
and when Bhupatbhai tried to run away, the appellant followed him and
carried out second assault and therefore, blood samples collected from
both the sides shown the presence of blood group of deceased-Bhupatbhai
at both the places.
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6.3 Learned APP has submitted that the chronology of assault has been
clearly described by the witnesses and therefore, if the defense claims
that on account of the blood-stain found on the knife, chronology is
defective, then it is submitted that FSL report is only corroborative piece
of evidence and therefore, when the witnesses have clearly deposed about
the chronology of assault upon first Gunvantiben, then on Bhupatbhai,
merely absence of blood group of Bhupatbhai, cannot create doubt on the
evidence of eye-witnesses.
6.4 Learned APP has further submitted that the evidence of Doctor,
who performed the Postmortem would show large number of injuries.
This in itself is sufficient to indicate that the incident was not merely a
scuffle. It is submitted that there is sufficient evidence to corroborate eye-
witnesses, as the Police has immediately undertaken the investigation by
reaching to the scene of offence and said scene of offence was also
secured. Therefore, samples were taken immediately without there being
any scope of tampering. It is submitted that cloths of the accused were
recovered under panchnama. On these cloths, blood-stain was found of
the blood group belonging to both the deceased persons. It is clear that
though blood group of accused is the same as that of the one deceased,
but there is nothing on record to indicate that the accused has sustained
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any injury thereby ruling out the presence of blood-stain of the
appellant's blood on his cloths.
6.5 Learned APP has submitted that the prosecution has also placed on
record the evidence of co-employee, who has deposed that though the
appellant was to report on duty, he had not reported on duty between
07-04-2014 to 08-04-2014 i.e. before he was arrested. Learned APP has
thereafter drawn attention of this Court to the evidence of PW-22 and
PW-23, both of whom are the Police Officers on their respective duty at
Hospital and Police Station and submitted that the entries made in the
respective Diary are corresponding to each other and therefore, the
investigation has taken place in correct sequence.
6.6 Learned APP has drawn attention of this Court to Exh-198 and
indicated that one of the witness being name Kankuben, though witness
had not deposed, as she was threatened by the relatives of the appellant
and in this regard, separate complaint was filed.
7. Learned Advocate Ms. Shweta S. Lodha appearing for the
complainant has adopted the arguments made on behalf of learned APP.
Learned APP and learned Advocate Ms. Shweta S. Lodha have cited the
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decisions of the Apex Court as under:
(1) Arun Raj vs Union Of India & Ors reported in (2010) 6 SCC 457, (2)
State Of Uttarakhand vs Sachendra Singh Rawat reported in (2022) 4 SCC
227. In support of their argument that type of weapon used in carrying
out assault and the manner in which the assault takes place, is an
important aspect to derive the intention of the assailant.
(3) Sheik Rafi vs State Of Andhra Pradesh & Anr reported in (2007) 13
SCC 76 to submit that the number of injuries caused in quick succession
cannot be treated to be result of grave and sudden provocation.
(4) State Of Rajasthan vs Kanhaiya Lal reported in (2019) 5 SCC 639 to
submit that even if it is a case of single blow, still on the basis of
surrounding circumstances, offence under Section-302 can be made out.
8. In rejoinder, learned Advocate for the appellant has reiterated that
his submission to cast the doubt on the entire case of prosecution has
relied upon the decision of the Apex Court in case of Muthu vs State
reported in AIR 2008 SC 1 submitting that the appellant is entitled to
benefit in view of grave and sudden provocation caused to him resulting
in the assault. For the same point, he has relied upon the decision of the
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Apex Court in case of Gurdip Singh And Anr. vs State Of Punjab reported
in AIR 1987 SC 1151.
8.1 Learned Advocate for the appellant has brought to the knowledge
of this Court the circumstances prevailing, where three family members
namely aged mother, wife and minor child is completely dependent upon
the appellant and has drawn attention of this Court to the Certificate,
issued by the Rajkot Central Jail dated 31-07-2023 to indicate that the
appellant is doing his jail duties with utmost in the jail.
9. Having heard learned Advocates for the parties and having perused
documents on record, it appears that this is a case, which arises out of
the incident, which took place on 07-04-2014 at approximately 19.00
hours, when the appellant who is Policeman, carried out assault with
knife upon one Bhupatbhai Tariaya (deceased) and his wife Gunvantiben
Tariaya (deceased), who were his neighbors, on account of internal
dispute about sitting near the residential premises. Perusal of the
impugned judgment and order does indicate the necessary procedure
undertaken during the course of investigation, filing of charge-sheet and
of committing of the Sessions case. The Court has taken note of stagewise
procedure followed in concluding the trial, which includes the recording
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of Statement under Section-313 of Cr.P.C. The Sessions Court has also
mentioned about the number of witnesses examined as well as the
documentary evidences proved during the course of the trial.
9.1 The Sessions Court has thereafter upon conclusion of the trial, has
recorded conviction of the appellant for the offences under Section-302 of
the Indian Penal Code and under Section-135(1) of the G.P. Act and has
ordered to undergo rigorous imprisonment of 25 Years without any
remission for the offence under Section-302 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment of 4 months for offence
under Section-135(1) of the G.P. Act.
9.2 PW-20; Kiranbhai Chhaganbhai Mandir; Exh-126 is an eye-witness
and informant and brother of the deceased-Gunvantiben. In his
deposition, he has deposed that while he was at his sister; Madhuben's
place residing in the vicinity of the deceased, his brother-in-law
Bhupatbhai came to call him and informed him that his neighbour;
Kamlesh @ Lalo (appellant) has quarreled with him on the issue of sitting
on chair on the 'Otla' of his house and therefore, all the three went to
complaint about it to mother of the present appellant, so that she may
console the appellant. In the meantime, while they were talking to
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Manjuben about the issue, Manjuben called the appellant and in the
meantime, the appellant came to his house, went inside the house, came
out with knife and started assaulting. Firstly, he injured Gunvantiben
with knife with great force on the back and his Sister; Gunvantiben
collapsed there. Thereafter, he indiscriminately assaulted Bhupatbhai on
stomach and chest. At that stage, Manjuben tried to intervene, but the
appellant continued assault. Getting scared, this witness escaped from the
place and called up the daughter of the deceased and dialed both 100
and 108. After the incident, he once again went back to the place of
assault and he got to know that to save himself, Bhupatbhai also tried to
run and he ran towards the house of Narendrasinh, where again the
appellant assaulted the deceased near the house of Narendrasinh. This
witness has deposed that at the time of incident, the appellant was
wearing Police uniform and he was able to identify the appellant in the
Court by name.
9.3 He was questioned about the cloths worn by the both deceased as
well as and was questioned with regards to the improvement in his
deposition, in so far as it relates to cloths worn by both the deceased at
the time of assault. He has also improved with regard to the cloths worn
by the appellant, as he has deposed that in the statement before the
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Police, he has not stated that the appellant was wearing 'Khakhi'
uniform. He was thereafter cross examined about his relations with the
deceased couple, as well as other family members and profession that he
was following. He was pertinently questioned about the fact that
Bharatbhai who is husband of Madhuben, sister of this witness, who was
in the Police at the relevant time. Beyond this, there does not appear to
be any substantial evidence extracted from this witness in the cross
examination.
9.4 This witness was cross examined with regard to sequence of assault
to confirm that Gunvantiben was assaulted first because of which, she fell
down and thereafter, Bhupatbhai was assaulted, but Gunvantiben was not
assaulted thereafter. He was also questioned with regard to his conduct of
running away from the place instead of coming to rescue of his relatives,
who were being assaulted. This witness has come out as truthful witness
particularly his presence at the time and place of offence is natural. He
has truthfully given reason of him being there to complaint about the
appellant to mother of the appellant.
9.5 This witness has also deposed that upon seeing the manner in
which assault has taken place on his sister and brother-in-law, he felt
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that he would also be assaulted and therefore, he ran away from scene to
save himself. However, he dialed 100 and 108, which is confirmed by the
record and this witness also called up one Chhayaben, who is daughter of
the deceased. To this witness, F.I.R. is given vide Exh-145 and in the
F.I.R., there is no mentioned with regard to the assault, which took place
near the house of Narendrasinh.
9.6 Chhayaben Dave is also examined as PW-13. In her deposition vide
Exh-81, she confirms approximate time at which her 'Mama', informant
gave phone call and informed her about assault being carried out by
Kamlesh @ Lalo (appellant). This witness has also deposed that without
any delay, she immediately reached the residence of her parents. There,
she came to know that mother was already shifted to the hospital and
father was lying in injured condition near the residence of Narendrasinh
in injured condition. This witness thereafter manages to take father to
Sterling Hospital.
9.7 PW-12; Rupaben Nitinbhai Gohel; Exh-80 is another witness, who
is resident of neighborhood and she has deposed that on 07-04-2014 in
the evening hours, she could hear commotion and heard that some
Policeman had assaulted with knife and when she came out of her house,
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she showed Kamlesh @ Lalo (appellant) in Police dress passing from there
and his cloths were stained with blood. He went near the wall of the
Airport and went away. In the cross examination of this witness, cross
questions were put with regard to the location of her house in
comparison to the house of the deceased, where the incident took place
and thereafter, the house of Narendrasinh, where also incident took
place. She was questioned by using name of the respective houses
belonging to her neighbors.
9.8 In the cross examination, question was put as to whether she
would be able to identify the Police uniform of incident, if at a time, ten
different Police uniforms are shown to her.
9.9 PW-14; Devjibhai Sukhabhai Chauhan, Exh-86, has deposed that on
07-04-2014 in the evening hours, he heard commotion, while he was at
his residence and when he came out, he showed Bhupatbhai near the
gate of residence of Narendrasinh and was seriously injured. When he
was standing there, he approached Bhupatbhai, Bhupatbhai told him that
Lalo has assaulted him with knife. When he inquired, which Lalo,
Bhupatbhai replied that it was Kamlesh; Policewala, who has assaulted
with knife and therefore, this witness wanted to go to his house to call
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for help or dial 108. In the meantime, the appellant arrived there and
again assaulted Bhupatbhai and there Bhupatbhai collapsed. He deposed
that Lalo was dressed in Police uniform and thereafter, he came to know
that the incident took place on account of the quarrel of Bhupatbhai
sitting outside his home. The evidence of this witness is mainly
challenged by the defense on the ground that he is got-up witness,
because his statement was not recorded immediately. He has admitted
that though he is aware of legal proceedings, he has not gone on his
own to give his statement, but after 15-20 days, the Police had called
him for recording his statement. Upon questions put in cross examination
regarding manner in which, there was delay in recording his statement,
he has stated that when he narrated to the Police about this, then the
Police themselves has told that the Police will call him later. He has
reiterated that in his Police statement, he had stated that when he asked
Bhupatbhai about his injury, at that time, Bhupatbhai narrated that Lalo
had given knife blow and when this witness asked, who is Lalo, at that
time, Bhupatbhai conveyed that Kamlesh @ Lalo, who is residing near
me and thereafter, he went to his house to bring phone and call 108. At
that time, Kamlesh @ Lalo came again. This version varied from his
evidence in chief, where he states that Bhupatbhai referred to Lalo as
Kamlesh Policevalo, whereas in his statement before the Police, he has
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not referred Kamlesh as Kamlesh Policewalo. The fact that evidence of
this witness was recorded after delay, which is evident from the evidence
of the Investigating Officer; PW-25, who in his cross examination, has
deposed that if any person, who is an eye-witness to offence, who comes
before him, then he has to record the statement as the Investigating
Officer. This witness has deposed that he has never refused to record the
statement of Devjibhai Sukhabhai Chauhan and from amongst his staff,
nobody had intimated him about the fact that Devjibhai Sukhabhai
Chauhan is an eye-witness. Therefore, the fact that the evidence of this
witness was recorded belatedly. This witness has deposed that the Police
statement was recorded after 15 to 20 days of the incident, which took
place on 07-04-2014.
9.10 Though the defense has strongly challenged the evidence of this
witness on the ground of delay in recording the evidence, even if this
witness is not to be treated as wholly reliable witness, still, there are
circumstances, which corroborates the version of this witness. Firstly, it is
not in question that this witness is resident of neighborhood and his
residence is just near to the house of Narendrasinh. His presence
therefore, at the scene of offence is natural. His conduct after he sees
Bhupatbhai in injuries, is very natural and lastly, fact that during the
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course of investigation, blood-stains were found exactly at the place,
which is near to the residence of Narendrasinh corroborates the evidence
of this witness.
9.11 The Sessions Court has also taken into consideration this
submission about the delay in recording statement of Devjibhai Sukhabhai
Chauhan and it has come on record that though the incident has
occurred on 07-04-2014, his statement was recorded only on 12-05-2014.
This aspect is coming out in the evidence of PW-26; Virbhadrasinh
Mahipatsinh Jadeja, who was one of the Investigating Officer. This
witness has answered in the cross examination that after incident or
within two days, Devjibhai Sukhabhai Chauhan did not come to him for
recording his statement as an eye-witness. He has also deposed that he
was not aware of the fact that Devjibhai Sukhabhai Chauhan was
acquainted with the facts of the case till said Devjibhai's statement was
recorded on 12-05-2014. Despite this, the Sessions Court has accepted the
evidence of Devjibhai and this Court also, though having found this
witness not to be wholly reliable, but in view of his version getting
corroboration from other circumstances, the Court finds evidence of this
witness to be sufficient to corroborate evidence of other eye-witnesses
and theory of the prosecution and therefore, does not accept submission
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of defense that this witness is got-up witness.
9.12 Exh-43 is the panchnama of scene of offence, which is proved by
the witness; PW-2; Sahid Sahbudin; Exh-42. He has supported that case of
the prosecution and in the panchnama, exact location of the incident and
location of blood-stains at the scene of offence are also recorded. Perusal
of Exh-43 does indicate that the blood-stains were found at two places;
one near the cement 'otla' near Chamunda Bhuvan and another near the
house name; 'Pitru Krupa' (house of Narendrasinh). This panchnama is
also indicating that during the course of investigation, blood samples on
the ground were systematically taken by cotton thread and sealed for the
purpose of F.S.L. The Court has also taken into consideration the map
prepared during the course of investigation of the scene of offence and
corelating the same with Exh-43, two locations, where the assault has
taken place and blood-stains found can be easily corelated.
9.13 F.S.L. Report; Exh-163 would indicate that cotton thread taken by
way of sample from two locations, where blood-stains were found, were
identified as Parcel Nos. A, B, C, E and H. Blood group of deceased-
Gunvantiben is blood group-B, whereas blood group of deceased-
Bhupatbhai was A. Therefore, sample-A, which is from Chamunda Bhuvan
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finds presence of both Blood Group-A and Blood Group-B, whereas
sample-H, which is sample collected from ''Pitru Krupa' consist of only
blood group-A. Thereby confirming the fact that assault was made at
Chamunda Bhuvan on both Gunvantiben and Bhupatbhai, whereas second
assault appears to have been made at location near 'Pitru Krupa'
(residence of Narendrasinh), where the extent of spread of blood was at
two places at Chamunda Bhuvan, it was 4 x 4 foot and 2 x1 foot,
whereas near 'Pitru Krupa', it was 4x4 foot. It is also recorded that from
7 foot away from 'Chamunda Bhuvan' also, Blood-stains were seen,
samples of which were collected. Exh-50 is panchnama drawn for the
recovery of cloths of the deceased. Witness; Hitesh Solanki and witness;
Allaudin Ganchi were examined vide Exh-49 and Exh-52 respectively.
However, they have not supported the case of the prosecution with
regard to execution of the panchnama. PW-25; Investigating Officer
during his deposition has deposed that Exh-50; panchnama was searched
of the house of the appellant and was recorded as per the say of the
panch witnesses and Exh-50 was given to this documents. Slip; Exh-51
also consisted of signatures of panch witnesses and the Investigating
Officer. Perusal of the cross examination of PW-25 does not seriously
challenge the content of Exh-50, as no questions have been put in the
cross examination in this regard. Therefore, there is no reason to
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disbelieve the content of this panchnama, wherein from the residence of
appellant, the Police uniform, which the appellant had worn at the time
of incident was recovered, but even name-plate of the appellant with
Buckle No. was also recovered.
9.14 The F.S.L. Report; Exh-162 indicates the cloths of the appellant at
Mark-Q. Serology Report shows the presence of blood-stains consisting
both of Group-A and B. The Court finds that Q-1 being pent had seven
stains each of Group-B and A respectively and Q-2 being pent of the
appellant had four stains, both of Group-B and A respectively. Therefore,
this evidence is sufficient to corroborate the case of the prosecution in
this regard.
9.15 Exh-56 is the Arrest panchnama, which was proved by the
prosecution-witness; Jayraj Rathod at Exh-55, wherein he has deposed
that the appellant himself remained present before the Police Station and
at that time, he was wearing cloths, which were described in the
panchnama. He had quoted arrest on the next day i.e. on 08-04-2014 at
4.15 at Gandhigram Police Station. It is after the arrest, immediately at
4.45, the panchnama of recovery of the cloths from the house was
executed (Exh-50). Thereby indicating that the Investigating Agency has
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acted forthwith leaving no ground for manipulation, as is argued by the
Defense Counsel. With regard to the recovery of blood stain uniform, the
Defense has argued that immediately after the incident having taken
place, the Police Bandobast was installed and there is no witness to show
that the appellant went back to his residence as the Prosecution Witness-
12 had seen the accused leaving from that place. Appreciating the
evidence of PW-12, it cannot be said that deposition of this witness is to
the effect that the appellant had fled from the place after the offence.
Deposition of this witness merely indicates that she had seen the
appellant passing by her towards Airport wall, when he was in the Police
uniform, which was blood-stain. Therefore, argument of Defense that the
appellant had escaped after the incident, cannot be accepted.
9.16 Main argument of Defense with regard to the suppression of
genesis that the incident was triggered by the assault on the mother of
the appellant, which infuriated the appellant to cause assault, is not
borne out from the record. The evidence brought on record by way of
Exh-161, which is Medical Case Papers dated 28-04-2014, which has the
Entry of Manjuben being brought to the Hospital at 8.06 pm on 07-04-
2014 giving history of assault and injury by Bhupatbhai, Gunvantiben and
her brother, which information was recorded in the Station Diary. In this
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connection, PW-24; Nagjibhai Bharadva is examined. Through him Exh-
150 has come on record, which is the Report upon the Station Diary
made being No.6 of 2014 and upon recording the statement of said
Manjuben, she had fallen down on account of push and received injury.
The entry in Station Diary was made to that effect closing the case. It
was the say of the Defense that the prosecution has failed in not bringing
on record the nature of statement made by said Manjuben and therefore,
it is an attempt on the part of the prosecution to suppress.
9.17 The Court has taken into consideration the Record and Proceedings
particularly because the report at Exh-150 does indicate closing of the
case of assault on Manjuben referring to the statement recorded, which
has been forwarded to the Investigating Officer of this case. From the
Record and Proceedings, the Court has taken into consideration the
statement of Manjuben; wife of Rameshbhai Nandlal Mehta recorded on
08-04-2014, wherein she has stated that as she wanted to prevent the
fight from becoming big, she intervened and fell down. As a result of
which, she received injuries on the thumb of her left hand and
thereafter, she was semi-conscious and therefore, report at Exh-150 was
justified report on the basis of statement of the very person. Therefore,
the case of the Defense about the assault by the deceased persons and
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informant upon mother of the appellant triggered the incident cannot be
believed.
9.18 Exh-161 itself is indicative of superficial nature of injury sustained
and that the patient (Manjuben) taking discharge against the medical
advice. In this connection, it would be pertinent to observe that in
statement under Section-313, specific question was put with regard to
Exh-150 and the evidence of the prosecution witness; Nagjibhai Bharadva,
the appellant has merely denied the same and has stated that the Report
is fabricated. Therefore also, the Defense has failed to give proper
explanation against the evidence of closer of report and therefore, theory
of defense of assault on his mother triggered the incident is not
believable.
9.19 The Apex Court in case of Arun Raj (supra) with regard to the
nature of weapon and to ascertain the intention, had taken into
consideration the argument of the Counsel regarding use of a kitchen
knife, which with sharp edges is a dangerous weapon and the appellant
would be aware that such a weapon is capable of causing death or
serious bodily injury, that can cause death. Therefore, negating argument
on behalf of the appellant therein, the Court held that when there was
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an intention to cause bodily injury and injury intended to be inflicted
was sufficient in the ordinary course of nature to cause death, intention
to cause death can be derived.
9.20 By observing the facts of the aforesaid case, the Court held that it
was after due deliberation on the part of the appellant that he assaulted
the deceased a day after, he misbehaved with him and therefore,
contention of not causing intention was negated. In the present case also,
if the medical evidence brought on record by the prosecution by
examining Dr.Jagdishchandra Tank at Exh-31, deceased-Bhupatbhai had
received 12 injuries, whereas the deceased - Gunvantiben had received 2
injuries. Close description of such injuries would clearly indicate that all
such injuries were near the vital parts of the body and were inflicted by
using great force. The evidence of Postmortem performing Doctor, who
opined that nature of injuries sustained on both the deceased was
possible by knife, which is Muddamal Article No.18. Cross examination of
this witness does not elicit anything against the theory of the prosecution.
9.21 On the similar lines, the Apex Court in case of State Of
Uttarakhand vs Sachendra Singh Rawat (supra) in Para-10 and Para-14
has observed as under with regard to the intention to cause death.
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"10. In the case of Pulicherla Nagaraju (supra), this Court had an
occasion to consider the case of culpable homicide not amounting to
murder and the intention to cause death. It was observed and held
by this Court that the intention to cause death can be gathered
generally from a combination of a few or several of the following,
among other, circumstances: (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused or was picked up
from the spot; (iii) whether the blow is aimed at a vital part of the
body; (iv) the amount of force employed in causing injury; (v)
whether the act was in the course of sudden quarrel or sudden fight
or free for all fight; (vi) whether the incident occurs by chance or
whether there was any premeditation; (vii) whether there was any
prior enmity or whether the deceased was a stranger; (viii) whether
there was any grave and sudden provocation, and if so, the cause
for such provocation; (ix) whether it was in the heat of passion; (x)
whether the person inflicting the injury has taken undue advantage
or has acted in a cruel and unusual manner; (xi) whether the
accused dealt a single blow or several blows.
"14. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and the fact that the
accused gave several blows/multiple blows on the vital part of the
body - head which resulted into grievous injuries and he used
"Phakadiyat" with such a force which resulted in Skull fracture and
a frontal wound on left side and wounds with 34 stitches on the
left side of the skull extended from mid of the left side of the skull
along with coronal sutures of 16 cm, we are of the opinion that the
case would fall under Clauses thirdly and fourthly of Section 300
IPC."
9.22 Therefore, considering the aforesaid observations of the Apex Court
and the fact that the appellant has delivered several blows on the vital
parts of the body of two of the deceased persons, the Court cannot come
to any other conclusion, but the act would clearly fall in Clauses Thirdly
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and Fourthly of Section-300 of the I.P.C., thereby culpable homicide can
be said to be amounting to murder.
9.23 The Court has also taken into consideration the decision of the
Apex Court in case of State Of U.P vs Lakhmi reported in (1998) 4 SCC
336, which observes that burden of proving an Exception to Section 300
of IPC is on the accused and though therefore, the accused may have
adopted another alternative defence, which may not refer to Exception
No.1 of Section 300 of IPC, he cannot be denied the benefit of the
Exception, but for such purpose, the Court has to cull out the materials
on the basis of evidence pointing to the existence of such circumstances
leading to the Exception No.1. It is true that failure to set up such a
defence would not act against the appellant-accused and that this fact can
be proved even from the defence evidence or even through the
prosecution evidence by showing a preponderance of probability.
9.24 In the opinion of the Court, as discussed herein above with regard
to the evidence at Exh-150 Report, the Court is of the view that even
from the evidence of the prosecution, the circumstances not coming on
record that it was assault made by the deceased and the informant upon
Manjuben that triggered the event of assault by the appellant upon the
deceased.
9.25 Therefore, considering the overall evidence of the prosecution,
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there does not arise circumstance, which can lead this Court to believe
that any act could be attributed to the deceased or the informant, which
would have lead to losing of self-control of the appellant to cause such
assault, resulting into death of two individuals.
9.26 The Court has taken into consideration the impugned judgment and
order and on perusal, considering the reasons assigned in the impugned
judgment and order and so also, the reasons mentioned herein above, the
Court dose not deem it fit to interfere with recording of the conviction of
the appellant for the offences under Sections-302 of the Indian Penal
Code and under Section-135(1) of the G.P. Act.
10. While not interfering with the conviction of the accused for the
offence as aforesaid, the Court has taken into consideration the order of
sentence, where the convict is sentenced to undergo rigorous
imprisonment for a period of 25 years without any kind of remission and
fine of Rs.5,000/-. It would be appropriate to mention, at this stage, that
while imposing the sentence of rigorous imprisonment, with regard to
further observations of 'without any kind of remission', the Court has to
observe that grant of remission is governed under Section-432 of Cr.P.C.
and such is the power of an appropriate Government. The Apex Court in
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case of K. Pandurangan v/s. SRR Vehisamy reported in AIR 2003 SC
3318, has held that right to grant remission is governed by the provision
of under Section-432 of Cr.P.C. and the power is vested with the
appropriate Government and not with the Court. Grant of remission is the
matter of policy and it is for the Executive branch of the Government to
take such decision with regard to the remission.
11. Perusal of the impugned judgment and order does not indicate any
specific reason assigned in the further order or otherwise, justifying the
direction of rigorous imprisonment without any kind of remission.
Therefore, the Court to that extent is inclined to interfere in the
operative order and quash and set aside the part of sentence to the
extent of 'without any kind of remission' and therefore, now the convict,
upon his conviction under Sections-302 of the Indian Penal Code, is
sentenced to undergo rigorous imprisonment for a period of 25 years and
fine of Rs.5,000/- and in default, rigorous imprisonment for a period of 3
months.
12. In the result, the appeal fails and is dismissed. The impugned
judgment and order of conviction and sentence dated 05-06-2020 passed
in Sessions Case No.136 of 2014 by 3 rd Additional Sessions Judge [Special
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Judge (POCSO and Special Fast Track)] at Rajkot stands confirmed.
However, sentence stands modified to the aforesaid extent. Bail and bail
bonds of the accused, if any, stands discharged. Record and Proceedings
be sent back to the concerned Trial Court."
Sd/-
(A.Y. KOGJE, J)
Sd/-
(HASMUKH D. SUTHAR,J)
PARESH SOMPURA
