Gujarat High Court
Tulasaram Dhularam Tikuram & vs State Of ... on 11 September, 2014
Bench: Ks Jhaveri, A.G.Uraizee
R/CR.A/2029/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2029 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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 ?
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TULASARAM DHULARAM TIKURAM & 1....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 2
MR VAIBHAV A VYAS, ADVOCATE for the Appellant(s) No. 2
MS KRISHNA U MISHRA, ADVOCATE for the Appellant(s) No. 1
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 11/09/2014
Page 1 of 11
R/CR.A/2029/2009 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The appellants are to trial in Sessions Case No.167 of 2008 in the Court of learned Sessions Judge and Presiding Officer, Fast Track Court No.2, Mehsana for the offence punishable under Section 302 and 201 of the Indian Penal Code (for short "the I.P. Code). By the impugned judgment and order dated 03.08.2009, the learned Trial Judge has convicted both the appellants for the offences punishable under Section 302 and 201 of the I.P. Code.
For conviction under Section 302 of the I.P. Code, the appellants have been sentenced to undergo life imprisonment and fine of Rs.5000/ each, in default of payment of fine, they shall undergo further simple imprisonment for three months. For conviction under Section 201 of the I.P. Code, the appellants have been sentenced to undergo imprisonment for two years. Both the sentences were directed to run concurrently and the appellants were given the benefit of set off.
2. At the outset it needs to be stated that the appellants have jumped temporary bail and is absconding since 02.08.2013 and 07.08.2013 respectively but in view of the decision of the Division Bench of this Court passed in Letters Patent Appeal No.918 of 2001 on 17.02.2009, the present appeal is taken up for final hearing and is decided on Page 2 of 11 R/CR.A/2029/2009 JUDGMENT merits.
3. The brief facts of the prosecution as disclosed during the trial is that the appellants who are the driver and cleaner respectively had gone with deceasedSindhi Kamalkhan @ Baba Ramjuba, resident of Jodhpur, on truck bearing registration No.RJ191G 2542 belonging to original complainantGullukhan Kammukhanji Sindhi. There was a altercation between the deceased and the appellants in connection with money for snakes demanded by the appellants and therefore, between 17:30 hours of 29.09.2007 and 11:15 hours of 3.10.2007 both the appellants banged the head of the deceased against the door of the cabin of the truck and throttled him. After committing the murder of the deceased the appellants locked the door of the cabin of the truck and with an intention to destroy the evidence fled to their native place. A complaint in respect of this incident was lodged by Gullukhan Kammukhan Sindhi. In pursuance of this complaint, FIR vide Mehsana Police Station ICR No. 315 of 2007 came to be registered.
4. The investigation was taken up and after usual investigation, chargesheet came to be filed against the appellants. The offences committed by the appellants were exclusively triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Sessions Court at Mehsana under Section 209 of the Code, where it was registered as Sessions case No.167 of 2008. Charge vide Exhibit3 Page 3 of 11 R/CR.A/2029/2009 JUDGMENT came to be framed against the appellants. They pleaded not guilty and claimed to be tried.
4.1 In order to bring home the charge against the appellants, the prosecution examined the following witnesses: Sl.No. Name of the Witness Ex. No. 1 Gullukhan Kammukhan Sindhi 10 2 Maheshkumar Govindbhai Sindhi 12 3 Lagdhirbhai Maneklal 13 4 Dr. Dilipkumar Keshavlal Thakkar 14 5 Ramanbhai Hemrajbhai Rajgor 16 6 Pasabhai Vashrambhai Parmar 18 7 Harising Bachubhai Zala 20 8 Bhurekha Jivankhan 21 9 Vinodji Chenaji Thakore 23 10 Bhalaji Babuji 37 11 Jitendraji Gordhanji Acharya 27 12 Shankarlal Tejram Maheswari 31 13 Saleemmohammad Nenukhan 32 14 Ayubkhan Muslam 33 15 Shivkumar Lalitkumar Garg 34 16 Jaipal Ganpatram 36 17 Panamkhan Faizdikhan Pathan 41 18 Randhirsinh Sardarsinh Dodiya 45 19 Rajendrakumar B Yagnik 46 20 Natwarsinh Dhirubha Zala 60 21 Punjabhai Ugabhai Khetaria 61 4.2. The prosecution also produced and relied upon the following documentary evidence during the Page 4 of 11 R/CR.A/2029/2009 JUDGMENT course of the trial.
Sl.No. Particulars Exh. No. 1 Original complaint 51 2 Panchnama of the place of offence 24 3 Inquest Panchnama 47 4 Panchnama of the cloths of the 28 deceased 5 Postmortem Note 15 6 Cause of death certificate 52 7 Panchnama of the body of the 17 accused 8 Serological report 59 9 FSL report 57
5. After conclusion of the trial, further statement under section 313 of the Code of the appellants came to be recorded. The defence in the further statement is of total denial. The learned trial Judge heard the arguments of learned APP and learned advocate for the appellants and after appreciating the evidence, recorded the judgment and order of conviction against the appellants as aforesaid. Therefore, the present appeal.
6. Learned advocates on either side have taken us through the documentary and oral evidence on record. We have independently and dispassionately applied our mind to this evidence.
7. Mr.Budhbhatti, learned advocate for Page 5 of 11 R/CR.A/2029/2009 JUDGMENT appellant No.1 has strenuously submitted that there is no evidence against the appellant No.1 and he was arrested on the basis of suspicion only. It is his further contention that FIR does not disclose the name of appellant No.1. It is his further contention that appellant No.1 has never worked on the truck belonging to the original complainantP.W.1. It is his further contention that P.W.4Dr.Dilipkumar Keshavlal Thakkar has given his opinion that it was difficult to say that death of the deceased was homicidal or not. Hence, he urged that the impugned judgment of conviction qua appellant No.1 may be set aside.
8. Learned advocate Mr.Vyas for the appellant No.2 has vehemently submitted that no witness has identified the appellant No.2 as perpetrator of the crime. It is his submission that Investigation Officer has stated in his oral evidence that appellant No.2 is the nephew of appellant No.1. He further contends that the appellant No.2 was arrested on the basis of the statement of coaccused i.e. appellant No.1, which is not a permissible evidence. He has further submitted that P.Ws. 13 and 14 have not stated the name of appellant No.2 in their respective evidence. Therefore, in his submission, there is no admissible evidence against the appellant No.2 and therefore, the impugned judgment and order may be quashed and set aside qua the appellant No.2 and he may be acquitted of all the charges levelled against him.
9. Mr.Soni, learned APP has supported the Page 6 of 11 R/CR.A/2029/2009 JUDGMENT impugned judgment and order of learned Trial Judge and has submitted that P.W.1original complainant, P.Ws.13 and 14 have stated that both these appellants have left with the deceased in the truck. Relying upon Exhibit38, Truck Engagement Form, learned APP Mr.Soni has submitted that this document reflects the name of the appellant No.1 as a driver of the truck and therefore there is sufficient evidence against the appellants to connect them with the crime.
9.1. It is his further contention that P.W.1 original complaint has identified both the appellants in the Court, therefore, the conviction of the present appellants is just and proper and does not warrant any interference in this appeal. In support of his contention, he relied upon the decision of the Apex Court in the case of Shyamal Ghosh Vs. State of West Bangal, reported in (2012) 7 SCC 646.
10. We have heard learned advocate Mr. Budhbhatti, learned advocate for appellant No.1, learned advocate Mr.Vyas for appellant No.2 and learned APP Mr. Soni for the respondentState.
11. The contention canvassed by learned advocate Mr. Budhbhatti and Mr. Vyas that names of both the appellants are not disclosed in the FIR and therefore, their involvement in the crime is doubtful, cannot be accepted. It is true that in Exhibit11FIR, original complainant has not referred the names of the appellants except stating that the appellant No.2 is Page 7 of 11 R/CR.A/2029/2009 JUDGMENT nephew of appellant No.1 but it is a settled proposition of law that FIR is only a piece of information disclosing cognizable offence. It need not contain minute details. On the basis of the FIR disclosing cognizable offence criminal investigation is put into motion and if during the course of investigation the names of the accused persons are disclosed then merely because their names were not given in the FIR would not render the prosecution case vulnerable. Here in the present case, P.W.1 had given sufficient indication as to the identity of the accused persons by saying that Choudhary was the driver while his nephew was conductor of his truck. On the basis of this information, investigation was carried out and ultimately it was revealed that the appellants were the driver and conductor respectively on the truck. Now the documentary evidence gets support from the oral evidence of original complainantP.W.1. This witness identifies both the appellants in the Court as being the driver and conductor on his truck, who had gone along with the deceased. Moreover, P.Ws. 13 and 14 have also corroborated the evidence of P.W.1 that both these appellants were driver and conductor respectively on the truck. It needs to be mentioned here that these material witnesses are subjected to crossexamination but no suggestion is put to them that the appellants are not in any way related and that they are not the driver and conductor respectively of the truck.
12. The Truck Engagement Form, Exhibit38, shows Page 8 of 11 R/CR.A/2029/2009 JUDGMENT that on truck bearing Registration No.GJ19IG 2542, Tulsiram was the driver and therefore, the contention of Mr.Budhbhatti that appellant No.1 has never worked on the truck belonging to the original complainant P.W.1 is devoid of substance.
13. The Apex Court in the case of Shyamal Ghosh (supra) has held that identification of accused in the Court is good identification. Here in the presence case P.W.1original complainant knew both the appellants by face and thereafter identifies them in the Court and therefore, the identity of the appellants is proved by the prosecution. From the evidence of P.Ws. 1 , 13 and 14, the prosecution has successfully proved that the deceased was last seen in the company of the appellants and therefore, we are of the opinion that the learned Trial Judge has not committed any error in recording the judgment and order of conviction.
14. Under these circumstances, we are in complete agreement with the view taken by the learned Trial Judge. The trial Court has assigned cogent and convincing reasons for arriving at the conclusion. We do not find any illegality much less any perversity in the findings recorded by the trial Court. This appeal lacks of merits.
15. For the foregoing reasons, the present appeal is dismissed. The judgment and order dated Page 9 of 11 R/CR.A/2029/2009 JUDGMENT 03.08.2009 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.2, Mehsana, in Sessions Case No.167 of 2008 is hereby confirmed.
16. The appellants are reported to be absconding. Therefore, no remission shall be granted to them and the authorities shall abide by the following directions: (I) Nonbailable warrant shall be issued against the appellantsoriginal accused who are reported absconding, so as to bring them to the custody/jail. The Director General of Police shall assign the work of enforcement of the warrant to the concerned Police Officer not below the rank of P.I. for tracing the accused and to put them to the custody.
If the appellantsoriginal accused are not found inspite of the effort by the police, their property shall be attached and the appropriate action shall be taken for attachment and disposal of the property as per the Code of Criminal Procedure.
(ii) The officer who may be marked by the Director General of Police will also undertake the aforesaid action for attachment and for disposal of the property in accordance with law.
Page 10 of 11R/CR.A/2029/2009 JUDGMENT Record & Proceedings, be sent back to the trial court concerned forthwith.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) pawan Page 11 of 11