Gujarat High Court
Jivanbhai @ Jigneshbhai Bajrangi vs State Of on 2 April, 2013
Author: Ks Jhaveri
Bench: Ks Jhaveri
JIVANBHAI @ JIGNESHBHAI BAJRANGI....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/245/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 245 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE G.R.UDHWANI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ JIVANBHAI @ JIGNESHBHAI BAJRANGI....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: MR JM BUDDHBHATTI, ADVOCATE for the Appellant(s) No. 1 MR MAULIK NANAVATI, ADDL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 02/04/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) The present appeal is directed against the judgement and order of conviction dated 31.12.2005 passed by the Additional Sessions Judge, Ahmedabad in Sessions Case No. 135 of 2004, whereby the accused has been convicted of the charges leveled against him.
1.1 The accused is ordered to undergo life imprisonment and fine of Rs. 10,000/- in default simple imprisonment for two years for offence under section 302 of Indian Penal Code, rigorous imprisonment for seven years and fine of Rs. 1000/- in default simple imprisonment for one year for offence under section 363 of Indian Penal Code and life imprisonment and fine of Rs. 3000/- in default simple imprisonment for two years for offence under section 364 of Indian Penal Code.
1.2 The accused is given the benefit of set off and the sentences under sections 302 & 364 are ordered to be run concurrently whereas the sentence under section 363 is ordered to be run consecutively. It is also ordered by the court that out of the total amount of fine, amount of Rs. 10000/- be paid to the parents of the deceased by way of compensation as prescribed under Section 357 of the Criminal Procedure Code.
2. It is the case of the prosecution that on 08.08.2003 one Rajvirsinh Ramsinh Bhadoria found his five years old daughter Mohini missing after she was sent to buy milk from a nearby shop. He therefore filed a missing entry with the Meghaninagr Police Station. On 14.08.2003, the Rajasthan Police visited the house of the complainant intimating him that a girl aged five years had passed away, but her name was mentioned as Seema Bajrangi. It is the case of the prosecution that the complainant therefore went to Alvar Civil Hospital with the police on 15.08.2003 and identified the deceased as his daughter. It is the case of the prosecution that she had bruises at different places all over her body and also signs of burn injuries possibly with cigarette. There were abrasions and her soles were blackened. It is the case of the prosecution that it was learnt that the girl was admitted on 12.08.2003 in the evening by a boy who was thin built and of wheatish complexion who had stated before the hospital authorities that the girl was his sister and that their maternal uncle and aunt used to beat them. However, he soon left the hospital thereafter. Last rites were performed and a complaint had been given by Rajvirsinh and accordingly a report under section 157 of Cr.P.C was prepared by the concerned Police Inspector.
2.1 Thereafter the offence was registered initially referring the accused as an unknown person and the same was numbered as C.R. No. 164/2003 with Meghaninagar Police Station for the offences punishable u/s 302, 363 & 364 of Indian Penal Code. Investigation was carried out and during the course of investigation the accused was caught on 31.10.2003. A test identification parade was also conducted wherein the accused was identified and after sending various muddamal articles to the FSL and on completion of investigation, chargesheet was filed against the appellant. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.
2.2 The trial was initiated against the appellant and during the course of trial the prosecution examined following 18 witnesses as oral evidences:
(i) P.W. 1 Rajvirsing Ramsing Bhadoria Ex. 08 (Complainant and father of deceased)
(ii)P.W. 2 Kunvarji Jalpaprasad Ex. 09
(iii)P.W. 3 Manjibhai Bhikhabhai Mandali Ex. 12
(iv)P.W. 4 Mahavir Monji Sen Ex. 17
(v)P.W. 5 Arvindbhai Rameshbhai Patani Ex. 18
(vi)P.W. 6 Minaben Manoharsinh Bajrangi Ex. 19
(vii)P.W. 7 Sunayanaben Rabirsinh Bharodia Ex. 20
(viii)P.W. 8 Sanjaybhai Bansilal Chauhan Ex. 21
(ix)P.W. 9 Satishkumar Abhesinh Ex. 22
(x)P.W. 10 Jashodaben Shankarlal Ex. 23
(xi)P.W. 11 Dr. Mahendrakumar Gupta Ex. 24
(xii)P.W. 12 Ashokkumar Khyaliramji Jat Ex. 25
(xiii)P.W. 13 Khemchand Gayar Ex. 27
(xiv)P.W. 14 Babukhan Rahimkhan Muslim Ex. 29
(xv)P.W. 15 Ratnaji Panaji Ex. 33 (xvi)P.W. 16 Maherunissaben Tatigali Kadri Ex. 36 (xvii)P.W. 17- Lalubha Gopalsinh Zala Ex. 37 (xviii)P.W. 18- Nageshkumar Ramkishor Jadav Ex. 42 2.3 The prosecution also relied upon the following documents as documentary evidences:
(i)Extract of Janva Jog Entry dated 09.08.2003 Ex. 34
(ii)Original Complaint Ex. 38
(iii)Report of registration of offence u/s 157 of Cr.P.C dated 18.08.2003 Ex.
39
(iv)Panchnama
of scene of offence Ex. 40
(v)Panchnama
of seizure of clothes of deceased Ex. 41
(vi)Panchnama
where accused allegedly had shown the place of
offence Ex. 26
(vii)Panchnama
of arrest of accused Ex. 43
(viii)Certified
copy of post mortem note Ex. 30
(ix)Copy
of Yadi sent to Executive Magistrate Ex. 14
(x)Copy of panchnama of test identification parade Ex. 16
(xi)Injury certificate of the accused Ex. 46
(xii)Copy of dispatch note Ex. 47
(xiii)Receipt from FSL Ex. 48
(xiv)Opinion of FSL with forwarding letter Ex. 49
(xv)Documents received from Rajasthan Police Ex. 30-32 (xvi)Closing Purshis Ex. 52 2.4 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellant of the charges leveled against him by judgement and order dated 31.12.2005.
2.5 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal.
3. Mr. Buddhbhatti, learned advocate appearing for the appellant-original accused submitted that the trial court has committed an error in convicting the appellant- accused under sections 302 & 364 of the IPC in view of the fact that the prosecution has failed to prove the ingredients of section 302. He submitted that the prosecution having failed to prove that the injuries inflicted by the appellant - accused were caused with the intention of causing death, the trial court has committed an error in convicting the appellant - accused under section 302 of IPC.
4. As against that the learned Additional Public Prosecutor, Mr. Maulik Nanavati submitted that the prosecution has successfully proved the case against the appellant inasmuch as the statement of P.W. 4 who is the eye witness and who had seen the deceased along with the accused on 08.08.2003 evening corroborates the other evidences. He submitted that the injuries were inflicted upon the girl by the accused with the intention of causing bodily injury and the same was unattended to till the point of no return and finally the said injuries resulted in Septicemia causing death of the girl.
4.1 It is also submitted by Mr. Nanavati that the prosecution has examined relevant witnesses and from the statements of these witnesses as well as the documentary evidence it is clear that the prosecution has established that the victim was kidnapped by the present appellant.
5. In order to appreciate the arguments advanced by the learned counsel for the parties, we have minutely gone through the oral as well as the documentary evidence on record. It is not in dispute that the deceased Mohini-daughter of P.W. 1 went missing on 08.08.2003 while she had gone to a nearby shop to buy milk. A police complaint was filed in this regard on 09.08.2003 after frantic searches by the girl s father. The body of the deceased was found from Alvar Civil Hospital, Rajasthan after the father was intimated by the Alvar Police Officials. It is also not in dispute that the girl s body bore severe injuries like abrasions, wounds, burn marks etc.
6. With the above facts in view, it shall be relevant to refer to the testimonies of certain witnesses relied upon by the prosecution. The prosecution has examined P.W. 1, Rajvirsing Ramsing Bhadoria at Ex. 08 who is the complainant and father of deceased. He has deposed that on 08.08.2003, he had gone with his auto rickshaw bearing Registration No. GJ-1-T-1483 and returned home at around 07.30 pm. He stated that he was informed by his wife that their daughter Mohini had not returned home after she was sent to buy milk from nearby Kamdhenu shop at the end of their chawl which was a routine. He stated that therefore he went to the shop looking for his daughter but he found the shop closed. He thought that she might be playing somewhere around and tried to search he but to no avail. He stated that therefore on 09.08.2003, he chose to give the complaint of Missing Person at Meghaninagar Police Station wherein it was stated that his daughter was wearing a blue coloured frock with designs and a yellow coloured panty.
6.1 P.W. 1 has stated that on 11.08.2003, while he was standing with his friends at the end of his chawl, a man from a barber s shop nearby called him. When P.W. 1 went towards him, the said person told P.W. 1 that he had seen a girl with red coloured shorts and white coloured T-shirt with boy-cut hair in his chawl. To this P.W. 1 informed the said person that though he had recently cut the hair of his daughter in a boy-cut style she had not worn red coloured shorts and white coloured T-Shirt while she went missing but a blue coloured frock.
6.2 P.W. 1 stated that on 14.08.2003, Alvar Police came to his house and intimated him that a girl named Seema Bajrangi had passed away and that the address of the said girl was mentioned as that of the residential address of P.W. 1. He was asked to accompany the police to Alvar and identify the deceased. P.W. 1 therefore along with his brother-in-law went to Civil Hospital, Alvar the very next day and found that the deceased was indeed his daughter Mohini and not Seema Bajrangi as mentioned by them. The deceased had worn red coloured shorts and while coloured T-Shirt. He observed that there were abrasions all over her body and that there were signs of burn injuries with cigarettes. The soles of the deceased were also blackened completely.
6.3 P.W. 1 was informed that on 12.08.2003, a boy who was thin built admitted her to the hospital. A journalist had taken interview of the boy but did not photograph him. As described to P.W. 1 by the journalist, the boy was of medium height and was thin built and knew both Gujarati and Hindi languages and that he used to stammer and had difficulty in communicating. P.W. 1 thereafter informed the PSI that a person at the barber s shop at the end of the chawl had seen his daughter and had also given description of the girl.
7. P.W. 4- Mahavir Monji Sen is the eye witness in the present case and works with his brother-in-law who has a shop named Milan Hair Art . He corroborates the testimony of P.W. 1. He detailed upon the testimony by stating that on 08.08.2003, he saw a boy in the evening around 05.00 to 05.30 taking Mohini away by luring her and saying that he shall be feeding her water-balls (pakodi ). He thought that the boy might be a relative of the complainant . P.W. 4 identified the accused before the Court as the boy who had lured away the girl and had also identified the girl Mohini in the photograph.
7.1 It is required to be noted that on 18.08.2003 he told the police that he was knowing nothing about the incidence. However, he attributed the same on his fear. However, he came out with the true story on 14.11.2003. In his cross examination he confided about his knowledge about the abduction of Mohini but did not communicate to any of his relatives, colleagues or friends because he got apprehensive about his wife and children seeing the condition of the victim girl.
8. The trial court has rightly observed that this witness is not a got up or tutored witness and his testimony could inspire confidence even though initially he chose to plead ignorance and that fact also does not make him any less trustworthy. In fact he had earlier intimated P.W. 1 that he had seen the girl in his chawl with a boy cut hair and red coloured shorts and white T-Shirt which was actually the attire worn by the deceased when she was brought to the hospital by the accused.
9. Thereafter, P.W. 7 -Sunayanaben Rajvirsinh Bhadoria was examined at Ex. 20. Her testimony also corroborates the testimony of P.W. 1 and she has informed that after the death of their daughter Mohini they came to know that Jignesh had taken away their daughter by luring her for water balls (pakodi). She saw the photograph of her daughter and identified her. She stated that there were several injuries on her face and body parts and that only when some other girl Komal was abducted and when the accused was caught , they came to know that the man behind the kidnapping of their daughter was Jignesh-present appellant. It is pertinent to note here that P.W. 7 had deposed that her brother was present when Jignesh had admitted having kidnapped Mohini.
10. It shall also be relevant to go through the deposition of an important witness being P.W. 8 Sanjaybhai Bansilal Chauhan who has deposed that Jignesh who was his elder sister s brother-in-law used to live with her. He deposed that somewhere in 2003, a man accompanied Jignesh to the shop of P.W. 8 as Jignesh was inquiring about the address of P.W. 8. Jignesh had come with a small girl at around 06.00 pm when the brother and sister-in-law of P.W. 8 were present. P.W. 8 asked Jignesh as to why he was roaming around in that place to which he gave a casual answer just like that . On inquiring as to who the girl accompanying him was, he replied that it was the daughter of his maternal aunt. As the sister-in-law of P.W. 8 was also from Ahmedabad, she knew about the family history of Jignesh and therefore she asked him as to which maternal aunt he was talking about. P.W. 8 stated that Jignesh did not answer the said question and tried to evade the same. Therefore knowing very well that he was a vagabond, P.W. 8 tried to see him off after offering him a glass of water. P.W. 8 identified the accused and also identified the girl from the photograph as the girl who had accompanied Jignesh to his shop.
10.1 In the cross examination, P.W. 8 agreed that though he had a phone at his residence he could not talk to his sister about the incidence as she did not have a phone at her house. He was not aware if his sister had any complaints regarding Jignesh. P.W. 8 did not intimate the local police and also he did not inform the person who had brought Jignesh to P.W. 8 s shop to hand Jignesh to the police.
11. It shall also be pertinent to go through the deposition of another important witness who is P.W. 9- Satishkumar Abhaysinh examined by the prosecution at Ex. 22. This witness lives near Alvar railway station and sells sweets (revadi) in the train. As per his version, on 12.08.2003, he had seen Jignesh going towards Alvar railway station with a little girl. He stated that the girl had many injuries on her body. On inquiring about the girl, he was told by Jignesh that she was his sister and his paternal uncle and aunt had beaten her. P.W. 9 suggested Jignesh that as the girl s health was not proper, she be taken to the hospital.
11.1 P.W. 9 also stated that the girl was wearing white coloured T-shirt and red coloured shorts which were given by the owner of the house where he resided as the landlady also had a daughter of the same age as of the girl. P.W. 9 accompanied Jignesh to the Government Hospital along with another friend Rakesh and spent around Rs. 800/- for the treatment of the girl and also handed Rs. 300/- to Jignesh for further treatment. P.W. 9 stated that after around 14 days when he went to meet the girl, he was informed that she had passed away and had been taken away. He could not get in touch with Jignesh. He saw the photograph of the girl and confirmed that she was the same girl who was with the accused and was admitted to Civil Hospital.
12. P. W. 10 is the landlady and owner of the house where P.W. 9 resided. She also identified the photograph of the girl Mohini and the clothes worn by her at the time of her death and stated that these clothes were the one she had given to the accused so that the girl s dirty clothes could be changed. P.W. 10 also stated that when the accused visited her house with the girl, the girl had nail marks all over her body and was not making any movement and was almost unconscious.
13. Now the deposition of P.W. 13- Dr. Khemchand Gayar who was working as CMO in Rajiv Gandhi General Hospital, Alvar may be gone through. He has stated that when the girl was brought to him by the accused, she had fever and multiple abrasions. The girl was crying and one of her eyes was blackened. He, however, did not remember the clothes that the girl was wearing. He identified the accused as the person who had introduced himself as the maternal uncle of the girl. Considering the seriousness of the matter, the doctor referred the girl to the General Surgical Department and called up the Surgeon to inform him that the girl was unconscious and abdominal injuries sustained by her seemed to be serious.
14. The evidence of the doctor who performed the post mortem can also throw sufficient light on the case in question. From the post mortem report and the evidence of Dr. Mahendra Kumar Gupta who had performed post-mortem of the deceased, it is borne out that the death of the girl occurred due to Septicemia. According to Dr. Gupta, as per his statement, the injuries sustained by the girl cumulatively resulted into her death as there was septicemia and due to non-treatment of the injuries, pus formation had occurred. Though he agreed that in all cases septicemia does not result into death of the person but the treatment should be given to the patient at the earliest. The doctor also opined that in the present case age, poverty and anemic condition of the person also contributed to the injuries resulting into septicemia.
15. In view of the above statements, it is clear that P.Ws. 4, 7, 8, 9 & 10 have supported the main substratum of the prosecution version i.e. the victim Mohini was seen by these witnesses with the accused on the date of incident and after that in a pitiable condition. In fact P.W. 9 & 10 also helped the girl by giving her fresh clothes and admitting her in the hospital.
16. From the version of P.W. 6 Minaben Manoharsinh Barjrangi who is the sister-in-law of the accused, it is borne out that the accused was a vagabond and lived life on his own terms. She has specifically mentioned he was reckless person who never listened to anybody.
17. The girl was lured and kidnapped by the accused on 08.08.2003 and was admitted to the hospital on 12.08.2003. She expired on the very same day. During the period between 08.08.2003 and 12.08.2003, the girl seems to have been roaming with the accused which is corroborated by the versions of the witnesses. The accused lured her by promising her to feed water-balls (pakodi) and carried her all along to Palanpur, Revadi and finally to Alvar. The hair of the victim girl was cut short and the accused also lied to the witnesses about the veracity of the girl accompanying him. It is also pertinent to note that each and every witness identified the girl as the one who accompanied the accused. The deteriorating health of the girl as mentioned by the witnesses in their deposition corroborates the version of P.W. 13 - CMO and the injuries as mentioned in the post mortem report. We agree that the said conduct of the accused has attacted charges under section 363 of the IPC.
18. It is argued by learned advocate for the appellant that the prosecution has failed to prove ingredients of section 302 and that the charge of murder cannot be held to have been proved for the reason that the accused himself admitted her to the hospital. However, considering the evidence on record, it is clear that the girl was not ill or injured when she was kidnapped by accused. Therefore, there is no doubt that the accused had inflicted severe injuries upon the child so as to cause physical and mental trauma upon the child. He, finally, admitted her to the hospital, though under a different name and tried to get her treated. However, he ran away leaving her in the hospital after she died.
19. We are not oblivious of the fact that the injuries sustained by the girl-Mohini were very serious and the same when carried on without administering proper food & medicine proved to be fatal in a couple of days. The prosecution, however, failed to prove that any ingredient as mentioned under Section 302 of the Code is found in the present case. The prosecution has failed to prove that the accused had with a motive of killing the girl kidnapped her or that the accused had the slightest of knowledge that the said injuries shall result into Septicemia thereby causing her death. We are, therefore, of the opinion that it shall be improper for this Court to uphold the conviction and sentence under section 302 of the Code but considering the facts and circumstances of the case coupled with the injuries sustained by the girl, more particularly the cigarette burns, the ingredients of section 326 of IPC shall be attracted in the present case. Section 326 reads as under:
326. Voluntarily causing grievous hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
19.1 In view of the above, the conviction of the appellant under section 302 of the IPC is required to be converted to conviction under section
326. Considering the fact that charge under Section 302 is not attracted, charges uner section 364 shall also not be attracted in the present case and the same is required to be quashed and set aside.
20. We therefore pass the following order:
(i) The conviction of the appellant-original accused under Section 302 of the Indian Penal Code vide judgment and order dated 31.12.2005 passed by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No. 135 of 2004 is converted to conviction under Section 326 of Indian Penal Code. The conviction of the appellant original accused under Section 363 of the Indian Penal Code is upheld. However, the appellant original accused is acquitted of the charges levelled against him under Section 364 of Indian Penal Code.
(ii) The appellant original accused is ordered to undergo life imprisonment and is imposed fine of Rs. 10,000/- in default simple imprisonment for two years for offence punishable under section 326 of Indian Penal Code instead of section 302 of IPC. The sentence imposed under section 363 of the Indian Penal Code is confirmed. The sentence imposed under Sections 326 & 363 of IPC shall run concurrently.
(iii) The judgement and order dated 31.12.2005 is modified accordingly. Appeal is allowed to the aforesaid extent.
(K.S.JHAVERI, J.) (G.R.UDHWANI, J.) divya Page 17 of 17