Gujarat High Court
Manoj @ Bhimo Sureshbhai Makwana vs State Of Gujarat on 19 August, 2023
Bench: A.S. Supehia
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R/CR.A/348/2014 CAV JUDGMENT DATED: 19/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 348 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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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 ?
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MANOJ @ BHIMO SURESHBHAI MAKWANA & 1 other(s)
Versus
STATE OF GUJARAT
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Appearance:
MR BJ PRIYADARSHI(6016) for the Appellant(s) No. 2
MR P P MAJMUDAR(5284) for the Appellant(s) No. 1
MS DIVYANGNA JHALA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 19/08/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE M. R. MENGDEY)
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R/CR.A/348/2014 CAV JUDGMENT DATED: 19/08/2023
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1. The present appeal has been preferred by the appellants
under Section 374 of Cr.P.C challenging the judgment and order
dated 28.02.2012 passed by 2 nd Additional Sessions Judge,
Bhavnagar in Sessions Case No.26 of 2011, whereby the
appellants herein have been convicted for the offence punishable
under Section 302 r/w. Section 114 of the Indian Penal Code,
1860 (herein after referred to as the "IPC") and are sentenced to
undergo rigorous imprisonment for life and fine of Rs.1000/-
and in default of payment of fine, further simple imprisonment of
6 (Six) months is imposed. The appellant no.1 has also been
convicted for the offence punishable under Section 135 of the
Bombay Police Act and is sentenced to undergo simple
imprisonment of 6(Six) months and fine of Rs.500/- and in
default of payment of fine, further simple imprisonment of 1
(One) month is imposed. The appellant no.2 has been acquitted
for the offence punishable under Section 135 of the Bombay
Police Act. It is also ordered that sentence imposed upon the
appellants shall run concurrently.
2. The short facts giving rise to filing of present appeal are as
under: -
2.1 Prior to 15.12.2010, a quarrel took place between the
Deceased - Dharmesh Kismatbhai Dabhi and the present
appellants on the issue of collision of their vehicles. On
15.12.2010, at about 9.00 a.m., the deceased went outside from
his house where he was intercepted by the present appellants.
The appellant no.2 had caught hold the deceased and the
appellant no.1 had inflicted a knife blow upon the deceased. One
Dikeshbhai Imtiyazbhai Saiyad had informed about this incident
to the brother of the deceased - Nitinbhai Kismatbhai Dabhi,
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who along with other persons had taken the deceased to the
hospital where, he succumbed to the injuries. Subsequently, the
said Nitinbhai had lodged an FIR with the concerned Police
Station with regard to the incident.
3. The Investigating Agency, after conclusion of investigation,
filed charge-sheet against the appellants herein for the aforesaid
offence. Since the offence of 302 of the IPC was exclusively
triable by the Sessions Court, the Magistrate Committed the case
for trial to the Court of Sessions under Section 209 of the Code
of Criminal Procedure.
4. Upon the case being committed to the Sessions Court, the
Sessions Court vide Exh.3 framed the charge against the present
appellants on 03.03.2011. Since the present appellants pleaded
not guilty, they were put to trial. The prosecution has adduced
oral as well as documentary evidence to bring home the charge
against the present appellants.
5. The Sessions Court, after considering the evidence
adduced on record and after hearing both the sides, was pleased
to convict the appellants for the aforesaid offence vide impugned
judgment and order.
6. Being aggrieved and dissatisfied with the same, the
appellants have preferred present appeal.
7. Learned advocate for the appellants has submitted that the
FIR lodged by the brother of the deceased itself is doubtful and is
full of contradictions so also deposition of the first informant.
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7.1 Learned advocate for the appellants has submitted that the
case of prosecution is based upon 3(Three) eye-witnesses viz.
Sangitaben, who happens to be sister of the deceased, Dikesh,
who happens to be the friend of first informant and Brijesh
Chandubhai Mer, who happens to be the colleague of the
deceased. All these witnesses are interested witnesses, and
therefore, their depositions are not reliable.
7.2 Learned advocate for the appellants has submitted that the
depositions of these witnesses are full of contradictions which
also make their depositions unreliable. Upon perusal of the
material on record, in all probabilities, these witnesses would not
have seen the incident. Thus, the prosecution has falsely
projected these witnesses as eye-witnesses.
7.3 Learned advocate for the appellants submitted that the role
attributed to the appellant no.2 is to the effect that he had
caught hold of the deceased when the other appellant had
inflicted a fatal blow upon him. There is no material on record
indicating that the appellant no.2 had caught hold of the
deceased at the time of incident. There is no material whatsoever
to connect the appellant no.2 with the offence in question. He,
therefore, submitted that the Sessions Court has committed a
grave error in convicting the appellants for the offence in
question.
7.4 In the alternative, learned advocate for the appellants has
submitted that as it has come on record that prior to the
incident, some verbal exchanges were going on between the
deceased and the appellants, the incident in question was a
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result of grave and sudden provocation which falls under
Exception 4 to Section 300 of the IPC and thus, the incident
amounts to culpable homicide not amounting to murder, which
is punishable under Section 304(I) or 304(II) of the IPC. He has
submitted that the appellants have undergone sufficient
sentence for this offence. He, therefore, submitted to allow the
present appeal accordingly.
8. Learned Advocate has relied upon following judgments in
support of his submissions: -
"1.Balvir Singh Vs. State of Madhya of Pradesh reported in
(2019) 15 SCC 599.
2. Kala Singh @ Gurnam Singh Vs. State of Punjab reported in
(2021) 10 SCC 744.
3. Shahnaj Ali & Ors. Vs. State of Maharashtra & Ors. reported
in (2017) 13 SCC 481."
9. Learned APP opposes the appeal by submitting that the
case of prosecution is supported by as many as 3(Three) eye-
witnesses to the incident, who have supported the case of
prosecution in their respective depositions and thus, the
prosecution has successfully proved the charge levelled against
the present appellants and the Sessions Court has not
committed any error in passing the impugned judgment and
order. She, therefore, submitted to dismiss the present appeal.
10. Heard learned advocates for the parties and perused the
material available on record. The case of prosecution is based
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upon the depositions of eye-witnesses. The first in line is P.W.2
Sangitaben Kismatbhai Dabhi, who was examined on behalf of
prosecution at Exh.20. She happens to be the sister of the
deceased. In her deposition, she has stated that on the fateful
day in the morning, she was fetching water outside her house
and her younger brother i.e. the deceased Dharmesh went
outside for a walk. When she was fetching water, she heard
some commotion at Chimanlal Chawk, and therefore, she went
there and found that some quarrel was going on between the
appellants and her deceased-brother. She identifies both the
appellants before the Trial Court. She further states that
Dharmesh was given knife blow by Bhima i.e., appellant no.1
herein. In her deposition, she has further stated that when she
reached at the place of incident, there were only 4(Four) persons
present i.e., two appellants, deceased and she herself. She has
categorically stated in her deposition that there was no other
person present at the scene of offence except the aforesaid
4(Four) persons. She further goes on to state that the other
persons came to the scene of offence after they heard
commotion. The presence of this witness at the scene of offence
is quite natural, as she was fetching water outside her house.
When she heard commotion, she immediately rushed to the
place of incident and found the incident taking place. A doubt is
sought to be created about the deposition of this witness by
contending that she being the sister of the deceased, is an
interested witness. The law in this regard is now well settled that
the deposition of a witness cannot be out-rightly discarded just
because he or she happens to be an interested witness. There is
no reason to believe that the interested witness would always
give a coloured version falsely implicating the accused persons.
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This witness has been thoroughly cross-examined by the defence
and the defence could not elicit anything contrary than what was
stated by the witness in her examination in chief, in cross-
examination. From the deposition of this witness, it has been
proved that it was the appellant no.1, who had inflicted a knife
blow upon the deceased. However, this witness is completely
silent as regard the role of the appellant no.2. She merely states
that the appellant no.2 was also present at the scene of offence
and was quarreling with her deceased-brother. Except this, there
is nothing in the deposition of this witness implicating the
appellant no.2.
11. The second eye witness is P.W.3 Dikeshbhai Imtiyazbhai
Saiyad, who was examined on behalf of prosecution at Exh.25,
who happens to be the friend of the first informant and third eye
witness is P.W.5 Brijeshbhai Chandubhai Mer, who was
examined on behalf of prosecution at Exh.29, who happens to be
colleague of the deceased. From the material adduced on record,
the presence of these witnesses at the scene of offence and then
having seen the incident is doubtful. At the cost of repetition, it
is required to be recorded that witness - Sangitaben, in her
deposition, has very categorically stated that when she reached
to the scene of offence, there were only 4(Four) persons present
i.e., present appellants, deceased and she herself and all other
persons came to the scene of offence subsequently. Witness -
Sangitaben has categorically stated in her deposition that the so-
called eye-witnesses viz. Dikesh and Brijesh had also reached to
the scene of offence subsequently.
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12. Witness Dikesh has been cross-examined by the defence,
wherein he admits that he had made no attempt to rescue the
deceased. The conduct on the part of this witness appears
unusual, as the deceased was a brother of his friend i.e., the first
informant and if he had seen the deceased being attacked so
brutally, he would have intervened to rescue the deceased. Not
only that, this witness has also not raised any cries or shout to
save the deceased.
13. So far as the deposition of witness-Brijesh is concerned,
Investigating Officer Mr. Mukundbhai Manilal Adhyaru, in his
deposition at Exh.35 more particularly in his cross-examination
has stated that the said Brijesh, in his statement before the
Investigating Officer, had not stated at which specific place in
Chimanlal Chawk, the incident had taken place. He had also not
stated in his statement before the Police that the incident has
occurred in Chimanlal Chawk opposite the house of Mansukh
Baraiya. He has also not stated in his statement that he was
present at the Pan shop and was reading a newspaper and upon
hearing the commotion, he saw the incident. He has also not
stated that the quarrel was going on between the appellants and
the deceased and that the appellant no.2 had caught hold of the
deceased from behind and the appellant no.1 had inflicted a
knife blow upon the deceased. Thus, this witness has remained
completely silent as regard the material aspects in his statement
recorded by the Police during the course of investigation and
these facts have been stated by him for the first time in his
deposition before the Court. Therefore, the deposition of this
witness is also not reliable. Therefore, the depositions of the eye
witnesses except Sangitaben does not appear to be so reliable
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more particularly when witness Sangitaben says that the other
two eye witnesses were not present at the place at the time of
incident.
14. So far as the role attributed to the appellant no.2 is
concerned, the other material available on record is in the form
of deposition of first informant viz. Nitinbhai Kismatbhai Dabhi,
who happens to be the brother of the deceased. The First
Informant in his deposition as well as in the FIR has stated that
he had inquired about the incident with the deceased and the
deceased had informed him that he was caught from behind by
the appellant no.2 and appellant no.1 had inflicted a knife blow
upon him. In his cross-examination, this witness admits that
due to the injuries sustained by the deceased, he was not in a
position to speak. Therefore, the fact that the deceased had
informed him about the incident to the aforesaid effect, is
doubtful. Except this, there is no other material available on
record connecting the appellant no.2 with the offence in
question. It is true that the witness - Sangitaben states in her
deposition that the appellant no.2 was also present at the scene
of offence and was quarreling with the deceased. However, she
has completely remained silent as regard the role of the
appellant no.2. Thus, the prosecution has miserably failed in
bringing home the charge levelled against the appellant no.2.
Therefore, present appeal should succeed so far as appellant
no.2 is concerned.
15. The matter now requires consideration on the aspect of the
guilt of the appellant no.1. As discussed earlier, witness
Sangitaben has in no uncertain terms stated that it was the
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appellant no.1 who inflicted a knife blow upon the deceased. The
medical evidence on record is also clear that the injury inflicted
by appellant no.1 upon the deceased had proved to be fatal for
him. Thus, there is ample evidence on record to prove the role of
appellant no.1 in the incident. Now what is to be seen is as to
whether the appellant no.1 intended to kill the deceased with his
act. As per the case of prosecution, few days prior to the
incident, a quarrel took place between the appellants and
deceased on a vehicular accident and as a result of the said
incident, there was previous enmity between the deceased and
the appellants, and therefore, on the day of incident, the
deceased was intercepted by the present appellants and he was
done to death. Upon perusal of the entire record, the evidence
adduced by prosecution is completely silent as regard the
previous quarrel between the deceased and the appellants. It
also appears that the said aspect has also not been investigated
at all by the Investigating Agency. Contrary to the case of
prosecution, the first informant - Nitinbhai Kismatbhai Dabhi, in
his deposition has stated that there was no reason whatsoever
for the incident to take place. Though he has stated in the FIR
about the previous quarrel, however, in absence of any material
in this regard it is hard to believe that any such quarrel had
taken place between the deceased and the appellants few days
prior to the incident. The evidence is also completely silent on
the aspect of the appellant having killed the deceased due to
such previous quarrel. There is no material on record to prove
the fact that on the day of incident, the appellants herein had
intercepted the deceased with an intention to eliminate him
because of that previous quarrel with him. There is nothing on
record to indicate that the meeting between the deceased and the
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appellants on the fateful day was pre-determined by the
appellants. Therefore, there is a reason to believe that the
meeting of the deceased and the appellants on the fateful day
was merely a co-incident.
16. As has been proved by the deposition of witness-
Sangitaben when she reached to the place of offence, the
deceased and the appellants were quarreling, and thereafter,
appellant no.1 took out the knife and inflicted a blow on the
body of the deceased. Thus, the act on the part of the appellant
no.1 in inflicting the knife blow upon the deceased was not
premeditated, but appears to be a result of grave and sudden
provocation because of the quarrel which had erupted between
the deceased and the appellants on the fateful day.
17. The act on the part of the appellant no.1 falls under
Exception-4 to Section 300 of the IPC, which is punishable
under the provisions of Section 304(I) or 304(II) of the IPC. The
manner in which the incident had occurred, it cannot be said
that the act in question was committed by the appellant no.1
with an intention of causing death or of causing such bodily
injury as is likely to cause death. The appellant no.1 certainly
had knowledge that his act is likely to cause death, and
therefore, the act proved against the appellant no.1 is
punishable under the provisions of Section 304(II) of the IPC.
Therefore, this Court holds appellant no.1 guilty of the offence
punishable under Section 304(II) of the IPC instead of an offence
punishable under Section 302 of IPC and his conviction is thus
converted from Section 302 to Section 304 (II) IPC. The offence
for which appellant no.1 is held to be guilty, is punishable with
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imprisonment for a term which may extend to ten years. The jail
remarks indicate that appellant no.1 has already served
imprisonment for the term of 11 years and 8 months which is in
excess of the punishment prescribed for the offence in question.
Thus, the appellant no. 1 has already undergone the sentence
for the offence for which he is found guilty.
18. In view of the aforesaid discussion, the present appeal is
allowed so far as appellant no.2 and the impugned judgment and
order is ordered to be quashed and set aside qua appellant no.2
and is partly allowed to the aforesaid extent as regards appellant
no.1. It is reported that presently both the appellants are out on
bail. Their bail bonds shall stand cancelled. Record and
Proceedings be sent back to the concerned trial Court.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(M. R. MENGDEY,J)
GIRISH /3
