Gujarat High Court
Hemraj Shankarlal Regar vs State Of Gujarat on 24 March, 2021
Equivalent citations: AIRONLINE 2021 GUJ 237
Author: A.J.Desai
Bench: A.J.Desai, A.S. Supehia
R/CR.A/1070/2016 JUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/CRIMINALAPPEALNO. 1070of 2016
FORAPPROVALANDSIGNATURE:
HONOURABLEMR. JUSTICEA.J.DESAI sd/-
and
HONOURABLEMR. JUSTICEA.S. SUPEHIA sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No to see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy No of the judgment ?
4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== HEMRAJSHANKARLALREGAR Versus STATEOF GUJARAT ========================================================== Appearance:
MR MRUDUL M BAROT(3750)for the Appellant(s)No. 1 MS KRINACALLA,LD.APP(2)for the Opponent(s)/Respondent(s)No. 1 ========================================================== CORAM: HONOURABLE MR. JUSTICE A.J.DESAI and HONOURABLE MR. JUSTICE A.S. SUPEHIA Date: 24/03/2021 ORALJUDGMENT (PER: HONOURABLEMR. JUSTICEA.J.DESAI) Page 1 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022 R/CR.A/1070/2016 JUDGMENT
1. By way of the present appeal under section 374(2) of the Code of Criminal Procedure, 1973, the appellant- convict has challenged the judgment and order of conviction dated 06/04/2016 passed by learned 8th Additional Sessions Judge, Gandhidham- Kutch in Sessions Case No.46 of 2009, by which the appellant has been convicted for the offence punishable under section 302 of the IPC and sentenced for life imprisonment and imposed fine of Rs.10,000/- and in default, shall undergo further one year simple imprisonment. The appellant is also convicted for the offence punishable under section 135 of the Gujarat Police Act and sentenced to undergo six months simple imprisonment and imposed fine of Rs.500/- and in default, to undergo further simple imprisonment of one month.
The appeal came to be admitted on 27/09/2016. It was brought to the notice of this Court that the appellant is behind bar since more than 11 years. It appears from the record that an order was passed by coordinate bench on 21/01/2019 that the appellant has undergone sentence of more than 9 years and therefore, the appeal was fixed for hearing after a period of three weeks. However due to pandemic during the whole year of 2020, the appeal was not heard. Again an application was moved by the appellant being Criminal Misc. Application No.1 of 2021 to release the appellant on bail during the pendency of the appeal, in which, coordinate bench of this Court passed an order on 18/02/2021 and appeal was fixed for hearing today, considering the fact that the appellant has undergone almost 11 years.
2. Short facts, arise from the record, are as under :
One Sureshkumar son of Kana Ramji, aged about 18 years, resident of Surat, lodged an FIR with Gandhidham Railway Police Station alleging that he along with his elder brother Bhavarlal, residing at Surat and having shop in Millennium Market at Surat. Since marriage of his relative was scheduled at Gandhidham, he along with his elder brother Page 2 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022 R/CR.A/1070/2016 JUDGMENT Bhavarlal, his sister-in-law Bhavridevi and cousin brother Pappu boarded the train at 9:30 pm on 16/04/2009 from Surat for Gandhidham and get down from the train at 7:50 am at Gandhidham. When they came out of the railway station at around 7:55 am, near Railway Musafarkhana he found his brother-in-law namely Hemrajbhai Shankarlal Regar - present appellant, resident of Gandhidham itself. Having seen them, the appellant told them that he had beaten his sister Manjuben, who has married to another brother of the complainant, namely Chhaganbhai. The appellant took out knife and gave knife blow on abdominal part of the Suresh and immediately gave another blow to his elder brother Bhavarlal and run away from the place. Both the persons were seriously injured and taken to the Hospital through 108 ambulance. FIR was recorded. It was further alleged that due to injuries sustained by his brother Bhavarlal, he succumbed to the death and accordingly FIR was lodged for the offence punishable under section 302 and 326 of the IPC as well as section 135 of the BP Act. Subsequently, the complainant namely Sureshkumar died on 21/04/2009 pursuant to the serious injuries sustained by him. The appellant came to be arrested by the Investigating Officer. On completion of investigation, charge-sheet was filed against the appellant. Thereafter, charge-sheet came to be forwarded to the concerned Judicial Magistrate, who committed the case to the learned Sessions Judge, who tried the offence. Charge came to be framed against the sole appellant for the offences punishable under section 302 of the IPC as well as Section 135 of the BP Act. The appellant has denied the charges levelled against him and therefore, trial proceeded further at the instance of the public prosecutor. Prosecution examined in all 27 witnesses to establish the charges levelled against the appellant-accused and produced several documents. The appellant did not examine any witness in his defence. Learned Sessions Judge after considering the depositions and documentary evidence, the appellant held guilty for the aforesaid offences and was convicted and sentenced as stated above. Hence, this appeal.Page 3 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022
R/CR.A/1070/2016 JUDGMENT 3.1 Mr.Mrudul Barot, learned advocate appearing for the
appellant would submit that the sister of the appellant namely Manjuben has married to Chhaganbhai, son of Kana Ramji and residing at Surat whereas sister of Chhaganbhai and two deceased persons, has married with the present appellant. He would submit that the appellant has been wrongly roped into the crime since there is no eye witnesses, who have seen actual occurrence of crime though they have reached Gandhidham along with two deceased.
3.2 By taking us through the deposition of Bhavridevi wd/o Bhavarlal PW-20 at Exh-55, he would submit that she has not actually seen occurrence of incident. She has seen the appellant on railway station. When she heard the scream of Sureshkumar as well as her husband Bhavarlal, she went into that direction, however, she has not seen the appellant. He has further argued that she has stated that knife was used by the appellant but the prosecution has tried to establish the case as if the knife is discovered at the instance of the appellant and therefore, this witness cannot be believable. Similar is the say of the another witness namely Pappu PW-21 at Exh-59. By taking us through his cross- examination, it was argued that though he claims to be witness of the crime, he has never tried to intervene and therefore also, his deposition cannot be believed.
3.3 It was further argued by learned advocate for the appellant that the deceased was not knowing Gujarati language, however the FIR as well as dying declaration were recorded in Gujarati language, which creates doubts about correctness of method of investigation. He would submit that no blood stains was found from the clothes of the accused and therefore, the appellant has been wrongly roped into crime and therefore, he may be acquitted.
Page 4 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022R/CR.A/1070/2016 JUDGMENT 3.4 He would submit that only close relatives of the deceased
have been examined, though alleged incident has taken place in the railway station area and number of independent witnesses were available for examination. He would submit that Investigating Officer ought to have examined independent witnesses, who were present at the time of occurrence of incident.
3.5 Mr.Barot, learned advocate for the appellant would further submit that if the court is not inclined to accept above referred arguments, he would like to request the court to treat the case as culpable homicide and not murder under Exception 1 of Section 300 of the IPC and sentence accordingly.
3.6 It was argued that it is an undisputed fact that the appellant- accused and deceased are relatives in both the ways. Sister of both deceased had married with the appellant whereas the appellant's sister had married to the real brother of the deceased persons, namely Chhaganbhai. By taking us through the FIR at Exh-89, it was argued that there was some altercation between the appellant and the deceased Suresh about ill treatment to the appellant's sister, who had married to Chhaganbhai and therefore, when the appellant had gone to receive his relatives i.e. two deceased persons and eye witnesses, some altercation took place between them and the appellant lost power of his self control and gave knife blows to each of the deceased. It was not an intention of the appellant to kill the deceased, who were his close relatives. He would submit that the appellant was working in a restaurant and therefore, it is natural that he would keep a knife with him and in spur of moment, the appellant took out knife and gave blow to the deceased persons. By taking us through the discovery panchnama, he would submit that knife alleged to have been used in the crime, is having handle of 9 cm whereas sharpen part is Page 5 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022 R/CR.A/1070/2016 JUDGMENT only of 7 cm and therefore, as the appellant is working in restaurant, he might be keeping such instrument used in kitchen with him in normal course.
3.7 By taking us through the deposition of Bhavridevi, he would submit that as per her say, she was standing at some distance when the appellant and deceased were talking in normal conditions and suddenly altercation took place between them and pursuant to which, the appellant lost his self control and inflicted knife blows to the deceased persons. He would submit that there is much improvement in her deposition before the Court about alleged motive premeditated. She has never disclosed before the Court that the appellant's sister Manjuben and brother-in-law namely Chhaganlal had called the appellant and asked him to kill both the deceased, who are real brothers of Chhaganlal. He would submit that the prosecution has deliberately not examined these two witnesses to prove the case about premeditated action on the part of the appellant.
3.8 By taking us through the deposition of the Investigating Officer namely Shahibkhan A.Pathan, PW-28 at Exh.72, he would submit that Investigating Officer has accepted the improvement made by eye witnesses namely Bhavridevi as well as Pappu about actual occurrence of incident. He would submit that appellant's sister had married to one of the brother of the deceased and the deceased Suresh quarreled with his sister, the appellant has lost power of his self-control and because of sudden provocation, he gave knife blows to both the deceased and therefore, the appellant is sentenced for the offence punishable under sections 302 of the IPC as well as Section 135 of the BP Act.
3.9 In support of his submission, he has relied upon the judgenent rendered by Division Bench of this Court in the case of Bharatsinh Khemabhai Masani V/s. State of Gujarat reported in Page 6 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022 R/CR.A/1070/2016 JUDGMENT 2009(3) GLH 231, and submitted that in the aforesaid case, the accused had given blow to different persons, who succumbed to the death and Division Bench has held the appellant guilty for the offence punishable under section 304 Part II of the IPC and therefore, he would submit that the appellant is behind bar since more than 11 years, his case may be considered under section 304 Part II of the IPC or imposed sentence undergone so far.
4.1 Ms.Krina Calla, learned Additional Public Prosecutor appearing for the respondent- State has vehemently opposed this appeal and submitted that eye witnesses examined by the prosecution are natural since they are close relatives of the deceased. Bhavaridevi - PW-20 at Exh-55, is wife of Bhavarlal, who had traveled with her husband, brother- in-law Suresh, her daughter and another nephew of her husband namely Pappu and reached at Gandhidham at around 7:50 am. Since the appellant and deceased are close relatives, the appellant was aware that family members of his sister had reached at Gandhidham, the appellant was waiting at Gandhidham railway station with premeditated intention to teach a lesson to the family members of his sister. Otherwise, there was no reason for him to go to the railway station with a knife and that too in the morning hours.
4.2 She would submit that eye witness namely Bhavridevi has actually seen the occurrence of an incident of giving blow to her husband Bhavarlal and brother-in-law Suresh, therefore submission made by learned advocate for the appellant, she has not seen the crime and only heard scream, is not believable.
She would submit that similar is the say of another witness Pappu PW-21 at Exh.59, who is nephew of the deceased and who had travelled along with Bhavridevi and deceased persons. She would submit that nothing has come out from cross-examination of this witness namely Page 7 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022 R/CR.A/1070/2016 JUDGMENT Pappu. Both these witnesses have identified the knife, which have been used in the crime. The knife was discovered at the instance of the appellant, which was sent to the FSL, As per FSL report, blood stains of the deceased have been found from the knife, which was discovered near railway station, at the instance of the appellant.
4.3 She would submit that when the eye witnesses, who are close relatives, have deposed in support of the case of the prosecution and their say have been supported by corroborative evidence, injury found in the FSL report, PM note, etc., it is not incumbent upon the prosecutor to examine all the witnesses. She would submit that the appellant had run away from the place of incident.
4.4 She would submit that it is true that FIR is recorded in Gujarati language by the Investigating Officer namely Shahibkhan A.Pathan, PW-28 at Exh.72. She would submit that Investigating Officer in his cross-examination has categorically stated that he had asked the deceased Sureshkumar in Hindi language and he gave answer in Hindi language and thereafter he translated the answer in gujarati language and accordingly recorded the FIR in gujarati language.
Apart from this aspect, Executive Magistrate namely Pravinchandra Maheshwari, PW-19 at Exh.50, who has recorded the dying declaration of Sureshkumar on 17/04/2009, has categorically stated that dying declaration though recorded in Gujarati, it was explained to the deceased in Hindi and thereafter dying declaration was translated in Gujarati language and accordingly dying declaration was recorded in Gujarati language. She would submit that Executive Magistrate has recorded dying declaration on 17/04/2009 at 16:15 hours after obtaining signature of medical officer and subsequently dying declaration was recorded, in which, the deceased has categorically alleged against the appellant of giving knife blows to him and his brother Bhavarlal. She Page 8 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022 R/CR.A/1070/2016 JUDGMENT would further submit that knife blows were given to two persons namely Sureshkumar and Bhavarlal and the said knife has been discovered at the instance of the appellant.
4.5 By taking us through the deposition of the Medical Officer Dr.Mithubhai R. Zola, PW-14 at Exh-35, she would submit that though there was a single blow, injury itself speaks about the force used by the offender. By taking us through the deposition of Dr.Manish J. Gandhi, PW-18 at Exh.47, she would submit that the deceased Suresh had received serious injuries on abdominal part of the body and due to which he succumbed to the death after four days. She would submit that both the Medical Officers have categorically stated that the injuries sustained by both the deceased persons are caused by the knife, which was discovered at the instance of the appellant.
4.6 As far as submission made by learned advocate appearing for the appellant with regard to Exception-1 of Section 300 of the IPC is concerned, she would submit that it is not a case, which would fall under Exception-1 of Section 300 of IPC since there is no grave and sudden provocation from the side of any of the deceased, which loosing the power of self control of the appellant. She would submit that nothing has come out about any type of grave and sudden provocation, which would make the appellant loosing the power of self-control and gave blows to both the deceased, that too on the vital part of the body i.e. abdominal. She would submit that presence of the appellant with a knife at the railway station itself establishes that the intention of the appellant was not just to receive them but to teach some lesson to them. In absence of any altercation between the parties, the appellant took out the knife from his pocket and gave two knife blows to Bhavarlal and one blow to Sureshkumar, who was only aged about 18 years. The appellant was fully aware that the blows given on the abdominal part of the body is eminently dangerous and there are all probability of causing death and Page 9 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022 R/CR.A/1070/2016 JUDGMENT therefore, this is a case of murder and therefore it cannot be stated that the case would fall under Exception 1 of Section 300 of the IPC. She would submit that all submissions made by Mr.Mrudul Barot, learned advocate appearing for the appellant about acquittal may be rejected and the appeal may be dismissed.
5. Heard learned advocates appearing for the respective parties and perused the record and proceedings of the case and scrutinized the depositions of the witnesses and examined the reasons assigned by the learned trial court for conviction.
6. It is an undisputed fact that the sister of the appellant had married with the real brother of the deceased persons. It also appears that sister of Chhaganbhai and two deceased persons had married with the present appellant. As per the FIR, lodged at the instance of deceased Suresh, it appears that there was some altercation took between him and his sister-in-law Manjuben, who happens to be sister of the appellant. As per the FIR itself, when the appellant went to the railway station, he firstly uttered the words that his sister was beaten on earlier occasion by the deceased Suresh and therefore, there is a reason to believe that intention of the appellant is not only just to receive the close relatives but to teach some lesson and therefore, he had gone to the railway station with a knife.
The appellant was initially talking nicely with the deceased, however suddenly in absence of any provocation, the appellant took out his knife and gave blows one by one to both the deceased and . pursuant to which, Bhavarlal was immediately succumbed to the death whereas Sureshkumar after four days.
7. There is no reason not to believe the say of the Investigating Officer, who recorded the FIR in Gujarati language, that the deceased Page 10 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022 R/CR.A/1070/2016 JUDGMENT was speaking in Hindi language and translated the same in Gujarati language and thereafter recorded the FIR in Gujarati language. Immediately Executive Magistrate, who has recorded the dying declaration, categorically stated that the deceased was speaking in Hindi language however after translating the same in Gujarati language, dying declaration was explained to him in Hindi language and thereafter, the same was recorded in Gujarati language and accordingly his thumb impression was taken on the dying declaration. Dying declaration Exh.52 also discloses that the deceased was explained the contents in Hindi language.
8. As far as submission made by Mr.Barot, learned advocate appearing for the appellant that Bhavridevi has not seen the actual occurrence of the incident is concerned, the same cannot be accepted since she has categorically stated that the appellant had given knife blows to her husband Bhavarlal and Suresh and thereafter he run away from the place. If cross-examination of entity is perused, she has stated that when two deceased persons and the appellant were talking, she was standing nearby and she had heard scream of Suresh and Bhanvarlal and gone into that direction and had seen blood coming out from the body of both the deceased persons. However, she has denied having not seen the appellant giving blow. Similarly witness Pappu PW-21 has also described the incident on the same line of Bhavridevi and stated that the appellant asked Sureshbhai why he had quarreled with his sister Manjuben and immediately took out knife from his pocket and immediately gave knife blow to Suresh and when Bhavarlal tried to caught hold the appellant, he gave knife blow to the Bhavarlal, There is no reason for not to believe eye witnesses to the crime. Apart from these witnesses, the case is collaborated by the depositions of the Medical Officers, who had done postmortem and prepared postmortem note and according to them, blow was given by the knife, which was discovered at the instance of the Page 11 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022 R/CR.A/1070/2016 JUDGMENT appellant and hence submission made by learned advocate for the appellant is not acceptable and is accordingly rejected.
9. As far as alternative submission made by learned advocate for the appellant about falling the case under Exception 1 of Section 300 of IPC is concerned, we have examined how and under which circumstances, the incident has taken place and in manner and method, the weapon has been used in the crime by the appellant. Exception 1 of Section 300 of the IPC, reads as under:
Exception 1. When culpable homicide is not murder. Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the
following provisos:
First. That the provocation is not
sought or voluntarily provoked by the
offender as an excuse for killing or
doing harm to any person.
Secondly. That the provocation is not
given by anything done in obedience to
the law, or by a public servant in the
lawful exercise of the powers of such
public servant.
Thirdly. That the provocation is not
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R/CR.A/1070/2016 JUDGMENT
given by anything done in the lawful
exercise of the right of private
defence.
10. If the appellant is asking to treat the case of culpable homicide and not of murder particularly under Exception 1 of Section 300 of IPC, the surrounding circumstance are required to be seen. Though there might be some dispute amongst family members, the deceased and the appellant's sister, who are family members, but there is nothing on record that when the deceased along with her family members arrived at Gandhidham from Surat and after meeting them, there was any provocation on the part of any of the deceased or any witnesses, who had travelled along with them. There is no grave or sudden provocation to the appellant at the instance of the deceased, pursuant to which, the appellant lost his self control and committed the act. Even if it is believed that there might be some dispute about family members, without any altercation, the way in which knife blow was given on the abdominal part of deceased Suresh as well as two knife blows was given to the deceased Bhavarlal.
Deceased Suresh has received the following internal injuries:
"Injury No.1 tracing to abdominal cavity for surgical laperotomy procedure. Injury No.2 measuring 3 x 1 cm size having rounded 1 cm diameter area inform of drainage procedure at inferelatery part. Reflct the under structure are stitched wound is tracing to abdominal cavity with cutting the structure."
Deceased Bhavarlal received the following internal injuries :
"Penetrating stab wound on abdominal horizontal and 7.5 cms above umbilicus.
size : 4 cms x 2 cms x 7.5 cms in depth."Page 13 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022
R/CR.A/1070/2016 JUDGMENT Both the injuries sustained by deceased suggest that huge force have been used by the appellant in giving knife blows to both deceased persons, knowingly fully well that it is eminent danger and would probable to cause death of a person. It is also pertinent to note that both the deceased had come to attend some marriage of relative and it is not the case of the appellant that they were totally unarmed and had travelled with female family member.
11. As far as the decision relied upon by Mr.Barot rendered in the case of Bharatsinh Khemabhai Masani (supra) is concerned, though it was case of double murder by the sole appellant, the court had converted sentence of section 302 of the IPC to Section 304 Part II of the IPC, facts are not applicable to the present case. In the said case, three persons had tried to caught hold the deceased and appellant-accused could not succeed, he took out a knife with him and for self-defence he wielded knife and wounds caused to both the deceased, to save from those persons and in such circumstances, the conviction was altered and therefore, this judgement would not help the appellant.
12. In the case of Bavisetti Kameswara Rao V/s. State of Andhra Pradesh reported in (2008)15 SCC 725, it has been held by Hon'ble Apex Court that merely on the basis of the single injury, the Court would not convert the case of Section 302 of IPC into Section 304 Part II of IPC. Nature of offence would certainly depend upon the other attendant circumstances whether the act was premeditated; the nature of weapon used as well as the nature of assault on the accused. In the present case, the appellant was present at the railway station in the morning with knife, which establishes his premeditation. The knife was used with force, which described the nature of offence in crime, which Page 14 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022 R/CR.A/1070/2016 JUDGMENT would not entitle the appellant to convert the case under section 304 Part II of the IPC.
13. Considering overall facts and circumstances of the case, we are not agree with the aforesaid submissions made by learned advocate for the appellant. This appeal deserves to be dismissed and is accordingly dismissed.
sd/-
(A.J.DESAI,J) sd/-
(A. S. SUPEHIA,J) DIPTI PATEL Page 15 of 15 Downloaded on : Thu Jan 13 10:44:11 IST 2022