Gujarat High Court
Govindbhai Ghelabhai Nayak vs State Of Gujarat on 6 November, 1998
Equivalent citations: (1999)2GLR1635
Author: A.L. Dave
Bench: A.L. Dave
JUDGMENT A.L. Dave, J.
1. The present appeal arises out of a judgment and order passed by the learned Sessions Judge, Valsad, at Navsari, in Sessions Case No. 18 of 1987 before him on 12th October, 1989. The appellant was charged for murder of Dharmeshbhai Rameshbhai and for attempt to commit murder of Ushaben Rameshbhai, Laduben Bhanabhai and Kusumben Dhirubhai and came to be convicted for all the offences that he was charged with. He was sentenced to undergo life imprisonment for the offence of murder with a specific direction that he has to undergo the said imprisonment till his last breath. No separate sentence was awarded to the accused for the attempts on lives of Ushaben, Laduben and Kusumben, although he was convicted for the same. The said judgment and order is challenged by the accused in this appeal.
2. The brief facts of the case are that the accused was working for about four years with Rameshbhai Makanji of village Kaliara of Chikhli taluka of Valsad District. Ushaben is the wife of Rameshbhai Makanji. Their younger son was Dharmesh. On 6th March, 1984, Rameshbhai had gone to the fields. One servant had gone to the wadi (field). The other servant had come from the field at about 8-30 a.m., Ushaben was in the house. The elder son of Rameshbhai was studying and Ushaben was cooking. The accused was sitting in the courtyard and was having breakfast. At that time minor Dharmesh, who was having breakfast, went to the accused and started having the breakfast together. After the breakfast was over, Dharmesh said something to the accused. The accused took an axe from the veranda and gave a blow on right cheek of Ushaben. He inflicted another blow with axe on head of Dharmesh. Because of the alarm raised by these two persons, the neighbours came and accused inflicted axe blows on Kusumben and Laduben, who had come to the rescue. People from neighbourhood rushed in, caught hold of the accused, tied him with a tree, shifted the injured persons to the hospital and Ramanlal lodged F.I.R. in this regard with the police. The police registered the offence and started investigation. On the other hand, Dharmesh died while he was in hospital. The police after investigation, filed charge-sheet against the accused in the Court of learned Judicial Magistrate, First Class, Chikhli, who, in turn, committed the case to the Court of Session. At the trial before the Sessions Court, the accused pleaded not guilty and expressed his desire to face the trial. He has pleaded innocence. Some mental derangement was noticed by the learned trial Judge and he had referred the accused to Civil Surgeon and, in turn, to Mental Hospital at Baroda. The trial proceeded after certificate of fitness was received from mental hospital. The learned trial Judge, after considering the evidence on record, came to a conclusion that the prosecution had successfully proved the case against the accused and passed the impugned judgment and order. It is this judgment that is challenged in this appeal.
3. We have heard Mr. S. G. Uppal, learned Advocate for the appellant and Mr. D. N. Patel, learned Additional Public Prosecutor for the respondent-State. We have been taken through the relevant and material pieces of evidence by both of them. We have taken into consideration the pieces of evidence recorded by the learned trial Judge and find that no error is committed by the learned trial Judge in coming to the conclusion that the prosecution has successfully proved guilt of the accused.
4. The bone of contention on behalf of the appellant is that the learned trial Judge has committed an error in evaluating the evidence. The accused had no motive for committing this offence. The story that is given by eye-witnesses is improbable and cannot inspire the confidence of a judicial conscience. The accused, therefore, ought to have been acquitted. It was further contended that the learned trial Judge has, after convicting the accused, directed that the accused should undergo life imprisonment and then further observed that the sentence would be operative till his last breath. This order made by the learned Sessions Judge is erroneous in law and, therefore, even if the conviction is upheld, this part may be removed.
5. Mr. D. N. Patel, learned Additional Public Prosecutor, on the other hand, submitted that, if the evidence is considered, the witnesses have given a natural version about what they witnessed. The appellant-accused has acted in an indiscreet and indiscriminate manner and, for no rhyme or reason, has caused death of a young innocent child and, therefore, there is no need for any interference in the impugned judgment and order, on merits. As regards the contention that the order of the learned Sessions Judge regarding implementation of the order till the last breath of the accused, Mr. Patel submitted that it is only making the order explicit, otherwise life imprisonment is supposed to exist till life exists. It has not affected the right of the accused in any manner and, therefore, the appeal may be dismissed.
6. Witness-Laxmanbhai Jinabhai in Ex. 30 says that he is the neighbour of Rameshbhai. On 6th March, 1984, he was at his residence around 9-00 to 10-00 a.m., and was with Murarbhai Dahyabhai. His sister-in-law Naynaben had come, who was in the kitchen. They heard some shouts coming from the house of Rameshbhai and, therefore, he himself, Murarbhai and Naynaben rushed to the house of Rameshbhai. They saw Kusumben coming out of the house of Rameshbhai. Accused was following her with an axe in his hand. In the courtyard of Kusumben, accused gave an axe blow on head and two blows on cheek of Kusumben. The accused then rushed towards them and they, therefore, ran away. The accused gave one axe blow on head of a buffalo which was tied on a tree. In that transaction, the blade of the axe got detached from the handle and the accused, therefore, ran away. People chased him, caught hold of him, brought him to the house of Rameshbhai and tied him with a mango tree. He noticed that Ushaben had sustained injury on head and Dharmesh also had sustained injury on head and was lying bleeding. Laduben was also lying there injured with injuries on cheek and head. Dharmesh and Laduben were unconscious. Ushaben, on being asked, informed that the accused was teasing Dharmesh. She, therefore, asked the accused not to do so and the accused, therefore, flared up and gave first axe blow to her and then to Dharmeshbhai. The witness has been cross-examined, but to no assistance to the defence.
7. Dr. Sureshchandra Sanghvi has been examined at Ex. 31. He says that he had treated Dharmeshbhai, Laduben, Ushaben and Kusumben. He gives details of the injuries found on person of these persons. He opined that the injuries on all the persons were caused with muddamal axe. He had informed Billimora Police on telephone. He says that the boy-Dharmesh died during the course of treatment. He had issued certificate in respect of injuries to all these persons. This doctor is cross-examined but to no benefit to the defence. Doctor Trikambhai L. Patel, Ex. 36, is examined to prove the injury on the buffalo. He is a Government Veterinary Surgeon working at Chikhli.
8. Witnesses-Naynaben Nathubhai, examined at Ex. 38, Ushaben Rameshbhai, at Ex. 42 and Kusumben, at Ex. 43, in terms, support the prosecution case. Their depositions have remained unshaken in the cross-examination. They are all injured eye-witnesses and there is no reason to disbelieve their version. To add extra credence to the prosecution case, as emerging from depositions of these witnesses, Bai Kamala is examined at Ex. 44. She is an eye-witness to the incident. She saw accused causing injury to Kusumben.
9. It transpires thus from the evidence that the accused inflicted fatal injuries to Dharmesh, which proved to be successful in causing his death. He also caused serious injuries to Ushaben, Laduben and Kusumben, who fortunately survived despite grave injuries on vital parts of the body. It also transpires that the accused has given these blows for no justifiable reason. It is not even his case. His case is that of total denial. A young boy of about 4 years of age and a lady as against a strongly built agricultural worker, as the accused is, definitely could not have caused any danger to the life of the accused nor have they given any provocation to the accused grave enough to provocate him to the extent that he would cause fatal injuries to a young boy of four years and grievous and serious injuries to Ushaben. The other two injured were the neighbours, who had come on hearing the shouts and, as such, there is no reason for the accused to hurt them with deadly weapon like axe. The learned trial Judge has, therefore, rightly come to a conclusion that the prosecution has successfully proved the case against the accused.
Having found that the prosecution has successfully established the charge against the accused, we are now faced to address another important question whether the learned Sessions Judge was justified in ordering that the order of imprisonment will continue to operate till the last breath of the accused.
10. In this regard, term 'life imprisonment' itself indicates that the sentence of imprisonment is supposed to last till the accused survives. But, at the same time, certain provisions of law need to be taken into consideration. Section 55 of the Indian Penal Code and Section 433-A of Code of Criminal Procedure have to be taken into consideration, which run as under:
55. Commutation of sentence of imprisonment for life :- In every case in which sentence of imprisonment for life shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years.
433 A. Restriction on powers of remission or commutation in certain cases.
Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
The actual effect of the observation made by the learned Sessions Judge that the sentence would continue to operate till the last breath of the accused will, therefore, come in the way of commutation of sentence and/or remission of sentence and render these provisions nugatory.
11. In this regard, a very similar question had come up to be determined by a Larger Bench of this Court in the case of Dipakkumar Bhanuprasad Updhyay v. State of Gujarat and Ors. as reported in [1998(1)] XXXIX (1) GLR 1 (FB), wherein one of us (R. K. Abichandani, J.) was a party and Bench has dealt with this question in greater detail. It would be appropriate to quote the following observations, which can squarely apply to the present case as well (at page No. 7 of GLR):
13. It is settled legal position that a sentence of imprisonment for life is not a sentence which would expire automatically after the expiry of 20 years including remissions. The sentence would ensure till the life time of the prisoner as it is not possible to fix the period of his remaining natural life. A sentence of imprisonment for life cannot automatically treated as one for a definite period in absence of any provision to that effect in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. There is no rule conferring an indefeasible right on a prisoner sentenced to imprisonment for life to an unconditional release on the expiry of a particular term including remissions. The Rules under the Prisons Act do not substitute a lesser sentence for a sentence of imprisonment for life. Whatever be their releases on furlough or parole, the life convicts still have to undergo imprisonment for the remainder of their life. The Supreme Court reaffirmed the ratio of Gopal Godse v. State of Maharashtra , in Maru Ram's case (supra), holding that imprisonment for life lasts until the last breath and whatever the length of remission earned, the prisoner can claim release only if the remaining sentence is remitted by the Government. In Ashok Kumar's case (supra) the Supreme Court after referring to the ratio of Godse's case (supra) and Maru Ram's case (supra) held that where a person has been sentenced to imprisonment for life, the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and do not acquire significance until the sentence is remitted under Section 432 of the Code, in which case the remission would be subject to limitation of Section 433A of the Code, unless of course power is exercised under Article 72 or 161 of the Constitution. The State Government has, however, a discretion under Section 432 of the Code to remit the remaining part of the sentence and order release of the convicted prisoner, subject to the embargo on its right imposed under Section 433A of the Code. Such an embargo does not exist when Governor exercises power under Article 161 of the Constitution, and the limits of remission that the Governor sets in his order would not be subject to any judicial review and it would not be open for us to give an elastic meaning to the expression "imprisonment" occurring therein more particularly when the meaning is made specific by describing it as "actual imprisonment".
12. We are, of a firm view that the direction of the learned Sessions Judge that 'the sentence of life imprisonment will operate till the last breath of the accused encroaches upon the power of the State or the executive wing to consider the case of the accused for remission or for commuting the sentence. This very aspect can be seen from a different angle. It can be said that it causes disparity among life convicts. The accused-appellant's case will be put on a separate footing as compared to the other life convicts whose case would be open to be considered for remission or commutation of sentence. This would adversely affect his right to equality before the law and, therefore, the extended direction given by the learned Sessions Judge that the sentence of imprisonment for life imposed on the accused-appellant shall run till his last breath cannot be upheld and the same is, therefore, hereby set aside, while confirming the conviction of the appellant and imposition of sentence of imprisonment for life and fine.
The appeal is, therefore, dismissed with the above modification in the operative part of the order.