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Gujarat High Court

Rameshbhai Motiram Rathod & 2 vs State Of ... on 26 August, 2014

Author: Ks Jhaveri

Bench: Ks Jhaveri

         R/CR.A/1448/2009                                   JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      CRIMINAL APPEAL NO. 1448 of 2009



FOR APPROVAL AND SIGNATURE:



HONOURABLE MR.JUSTICE KS JHAVERI


and
HONOURABLE MR.JUSTICE A.G.URAIZEE

================================================================

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 ?

================================================================
            RAMESHBHAI MOTIRAM RATHOD & 2....Appellant(s)
                              Versus
             STATE OF GUJARAT....Opponent(s)/Respondent(s)
================================================================
Appearance:
MR HEMANT B RAVAL, ADVOCATE for the Appellant(s) No. 1
MS. DIPABEN S THAKAR, ADVOCATE for the Appellant(s) No. 2 - 3
MS NISHA THAKORE, ADDL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
================================================================

          CORAM: HONOURABLE MR.JUSTICE KS JHAVERI


                                  Page 1 of 12
         R/CR.A/1448/2009                            JUDGMENT



                     and
                     HONOURABLE MR.JUSTICE A.G.URAIZEE

                            Date : 26/08/2014


                           ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE KS JHAVERI)

1. The appellants have challenged their conviction in Sessions Case No. 216 of 2008 whereby the appellants came to be convicted vide judgement and order dated 17.06.2009 by the City Civil & Sessions Judge, Ahmedabad. The learned Sessions Judge vide impugned judgement and order directed the appellants to suffer imprisonment for life and ifne of Rs. 1000/- each in default to undergo simple imprisonemnt for three months for offence punishable under section 302 read with section 114 of Indian Penal Code. The appellants were acquitted for offence punishable under section 135 of B.P. Act.

1.1 At the outset, it needs to be stated that the appellants no. 2 & 3 were released on furlough leave and temporary bail respectively but they misused the liberty granted in their favour and are absconding till date. However, in view of the order dated 17.02.2009 passed by a Co-ordinate Bench of this Court in Criminal Appeal No. 918 of 2001, this appeal being filed by absconding appellants - accused is proceeded with and decided on merits. Appellant no. 1 is still in jail.

2. It is the case of the prosecution that on 21.02.2008, the deceased, after coming from home work, had gone out of his Chawl when he had a quarrel with accused no. 1 regarding payment of money. Thereafter, at around 09.00 pm while the Page 2 of 12 R/CR.A/1448/2009 JUDGMENT deceased reached Radheshyam Chawl, the accused persons came with weapons and surrounded the deceased. It is the case of the prosecution that accused no. 1 gave sword blow, accused nos. 2 to 4 gave knife blows on the head, chest, leg and other parts of the body of deceased. As the deceased raised alarm, the complainant rushed to the scene of offence. The deceased was taken to hospital by the complainant and his son but he succumbed to the injuries.

2.1 A complaint was therefore lodged by Shardaben - wife of deceased with Naroda police station. In pursuance of this complaint, FIR vide Naroda Police Station, being CR No. I - 168 of 2008 came to be registered.

2.2 The investigation was taken up and after usual investigation, charge sheet 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 Ahmedabad under Section 209 of the Code. Upon committal, the case came to be registered as Sessions Case No. 216 of 2008 in Sessions Court, Ahmedabad. Charge vide Ex. 2 came to be framed against the appellants. They pleaded not guilty and claimed to be tried.

2.3 At the end of trial, after recording the statement of the accused under section 313 of the Cr.P.C and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants of the charges leveled against them by the impugned judgement and order.

Page 3 of 12

R/CR.A/1448/2009 JUDGMENT

3. Mr. Rawal, learned advocate appearing for the appellant no .1 submitted that the case of the appellant is based on the testimony of witnesses who happen to be wife, sister and son of the deceased. It is his further contention that though other eye witnesses were available, neither their statement under section 161 of the Code were recorded nor were they examined as Prosecution Witnesses. It is his further contention that the testimonies of such interested witnesses may not be taken into consideration. He submitted that the panchas have turned hostile. He has, therefore, urged that the trial court committed an error in convicting the appellant as the prosecution has failed to prove the case against the appellants beyond reasonable doubt.

4. Learned APP, Ms. Thakore supported the impugned judgment and order of conviction and sentence and contended that the weapon used for offence is discovered at the instance of the appellants vide discovery panchnama. She further contended that the FSL report reveals the blood stains of the deceased and that as held by the Apex Court in the case of R. Shaji vs. State of Kerala reported in AIR 2013 SC 651, it is not the number of witnesses but the quality of their evidence which is important. Hence, she has submitted that non-examination of so called witnesses does not in any way adversely effect the prosecution case. She has therefore submitted that the prosecution has successfully proved the case against the appellants and there is no substance in the appeal and the same may be dismissed. She submitted that the evidence of interested witnesses can be taken into consideration for proving the guilt of the accused. She has Page 4 of 12 R/CR.A/1448/2009 JUDGMENT submitted that the post mortem report, the evidence of eye witnesses and the panchnamas prove the guilt of the accused beyond reasonable doubt.

5. We have minutely gone through the oral and documentary evidence recorded during the course of trial. The prosecution has examined the widow of deceased Shardaben Vani as P.W. 2 vide Ex. 14. She has narrated the incident as it happened before her. She is subjected to stiff cross-examination but nothing helpful to the appellants is elicited. She has stated in her oral evidence that on the date of incident, the appellants had come with on bike and started assaulting the deceased. She has identified the accused persons in the court and stated that accused no. 1 had sword in his hand whereas accused nos. 2 to 4 had knives. She also identified the muddamal articles. This witness has stated the motive for the alleged offence to be a quarrel with regard to Rs. 2000/-. The evidence given by this witness is natural and unblemished.

5.1 P.W. 3 - Rajshri Vani is the sister of the deceased and an eye witness to the alleged incident. This witness has been examined vide Ex. 17 and she has stated that on the day of incident, while the deceased, his wife (PW 1) and this witness were returning after completing some religious rituals (puja) due to Holi festival, the accused persons came there and started assaulting the deceased. This witness has stated that they arrived on bikes with weapons and pushed the deceased who was walking in front of this witness. This witness has further stated that when they tried to intervene, the accused persons threatened them of dire consequences.

Page 5 of 12

R/CR.A/1448/2009 JUDGMENT 5.2 P.W. 4 - Aakash Vani, who is the son of the deceased is examined by the prosecution vide Ex. 27. This witness has stated that while he was watching t.v in his house, he heard his father's shout and therefore he rushed out of the house and saw that accused no. 1 was assaulting the deceased with a sword whereas the remaining accused were assaulting the deceased with knives. This witness has identified the accused and the muddamal articles in the court.

6. The contention of the learned advocate for the appellant that other eye witnesses are not examined by the prosecution and therefore it dents the prosecution case has no merits. The Apex Court in the case of R. Shaji (supra) relied upon by learned APP, Ms. Thakore in para 22 has observed as under:

"22. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. The legal system has laid emphasis on the value provided by each witness, as opposed to the multiplicity or plurality of witnesses. It is thus, the quality and not quantity, which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced over and above this, does not carry any weight. (Vide: Vadivelu Thevar v. State of Madras; AIR 1957 SC 614; Jagdish Prasad v. State of M.P. AIR 1994 SC 1251; Sunil Kumar v. State Govt. of NCT Page 6 of 12 R/CR.A/1448/2009 JUDGMENT of Delhi AIR 2004 SC 552; Namdeo v. State of Maharashtra AIR 2007 SC (Supp) 100; Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal AIR201O SC 3638; Mahesh & Anr. v. State of Madhya Pradesh (2011) 9 SCC 626; Kishan Chand v. State of Haryana JT 2013( 1) SC 222) : (AIR 2013 SC 357 : 2013 AIR SCW 210)."

6.1 Thus, it is not the number of witnesses examined by the prosecution that matters but the quality of the evidence given by the witnesses is important. If the evidence of solitary witness inspires confidence of the court in that case the conviction can always be based on the basis of evidence of such solitary eye witness. We are unable to accept the submission that the eye witnesses being related to the deceased are interested witnesses and therefore their testimonies cannot be relied upon. So far as PW 2, 3 & 4 are concerned, it is no doubt true that they are related to the deceased and for that reason they may be interested witness. However, the law is well settled that the testimony of a partisan or interested witness cannot be discarded merely on that account. The testimony of such a witness cannot be equated with that of a tainted witness.

6.2 We are also unable to accept the submission of the learned counsel for the appellant that if the prosecution does not produce independent witness and merely produces interested witnesses adverse inference be drawn. There is no law requiring the prosecution to necessarily produce independent witnesses and adverse inference be drawn merely on account of their non-production. As we have already stated in the foregoing paragraphs that P.Ws. 2, 3 & 4 have deposed in a very natural way and have stated the Page 7 of 12 R/CR.A/1448/2009 JUDGMENT incident as it seems to have happened. We do not find any improvement or exaggeration in their evidence.

7. Moreover, the evidence of P.Ws. 2 to 4 is supported by the evidence of Dr. Mustakahmed Shaikh, who is examined by the prosecution as P.W. 1 vide Ex. 12. From the evidence of this witness it transpires that the deceased had suffered as many as 15 injuries as reflected in column no. 17 of the post mortem report at Ex. 27. Column no. 17 of the post mortem report reads as under:

"17. (1) x 0.5 cm & scalp deep incise wound present over middle of posterior parietal region situated obliquely out end Rt. Side & post end lt. Side margins one slight abraded red colour. (2) 2.5 x 1 cm oblique, stab wound present over Rt.

Side of chest 2.5 cm inferomedial to Rt. Nipple & 6 cm lateral to midline upper and laterally, lower end medially lower angle acute & upper angle broad. Red colour.

(3) 2.1 cm, vertical stab wound present over Rt. Side of chest 10 cm below Rt. Nipple & 9 cm lateral to midline, lower angle acute & upper angle broad. Red in colour.

(4)2.5 x 1 cm transverse, stab wound present over Rt. Chest over midaxillary line 13 cm interolateral to Rt. Nipple. Medial angle acute & lateral angle broad. Red in colour.

(5) 1.5 x 1 cm transverse, stab wound present over Rt. Chest over lower costal margin 14 cm superolateral to umbilicus medial angle acute lateral angle broad. Red in colour.

(6) Linear, horizontal 5 x 0.2 cm abrasion present over front of Rt. Thigh in middle. Red in colour (7) 0.5 x 0.5 cm & muscle deep, vertical stab normal present over Lt. Side of back of chest over scapulae bone lower angel acute & upper angle broad. Red in colour.

(8) 1.5 x 0.5 cm & muscle deep, vertical stab wound present over back of chest at T3 vertebrae lower angle acute & upper angle broad. Red in Page 8 of 12 R/CR.A/1448/2009 JUDGMENT colour.

(9) 0.5 x 0.5 cm & muscle deep transverse stab wound present over back of chest & 3 cm below injury no. 8. Left angle acute & right angle broad. Red in colour.

(10) 0.5 x 0.5 cm & muscle deep stab wound present over back of lt. Chest, 22 cm below upper shooulder margins. Transversely situated medial angle acute & lateral angle broad. Red in colour. (11) 7 x 6 cm bruise present over back of knee over popliteal fossa red in colour.

(12) 2 x 1 cm, oblique stab wound present over back of Rt. Thigh at lower margin of Rt. Hip & 4 cm deep inferomedial angle acute & superolateral angle broad. Red in colour.

(13) 2 x 1 cm abrasion present over rt. Knee. Red in colour.

(14) 2 x 1 cm abrasion present over lower end of lt. Knee. Red in colour.

(15) 1.5 x 0.5 cm transverse, incise wound present over rt. Zygoma, 1 cm below lt. Lower eyelid, muscle deep & red in colour."

7.1 According to the information of the doctor, injuries no. 1 & 15 were incise wounds which were possible by way of weapons like sword, knife, dagger etc. He has stated that such injuries were sufficient to cause death in natural course. This witness has further stated in his evidence that the said injuries were possible by way of the muddamal weapons. Therefore we are of the opinion that the learned trial court has not committed any error in convicting the appellants under section 302 of Indian Penal Code.

8. In a recent decision of the Apex Court in the case of Bhaikon @ Bakul Borah vs. State of Assam reported in JT 2013 (10) SC 373 has held as under:

"15. This Court, in a series of decisions has held that life imprisonment means imprisonment for Page 9 of 12 R/CR.A/1448/2009 JUDGMENT whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. [Vide Life Convict @ Khoka Prasanta Sen vs. B.K. Srivastava & Ors. (2013) 3 SCC 425, Mohinder Singh vs. State of Punjab, (2013) 3 SCC 294, Sangeet and Anr. vs. State of Haryana (2013) 2 SCC 452, Rameshbhai Chandubhai Rathod (2) vs. State of Gujarat (2011) 2 SCC 764, Chhote Lal vs. State of Madhya Pradesh (2011) 8 SCR 239, Mulla and Another vs. State of Uttar Pradesh (2010) 3 SCC 508, Maru Ram vs. Union of India & Ors. (1981) 1 SCC 107, State of Madhya Pradesh vs. Ratan Singh & Others (1976) 3 SCC 470 and Gopal Vinayak Godse vs. State of Maharashtra AIR 1961 SC 600].

16. In view of the clear decisions over decades, the argument of learned senior counsel for the appellant-accused is unsustainable, at the same time, we are not restricting the power of executive as provided in the Constitution of India. For adequate reasons, it is for the said authorities to exercise their power in an appropriate case."

8.1 However, in view of the fact that the appellants no. 2 & 3 - accused no. 2 & 3 are absconding, we think it fit to issue appropriate directions as given by a co-ordinate Bench of this Court in Criminal Appeal No. 918 of 2001 vide judgement and order dated 17.02.2009. The same read as under:

"8. In view of the aforesaid, it appears that while dismissing the appeal on the ground that the accused-appellant is reported absconding, appropriate directions also deserve to be issued not only for the proper enforcement of the rule of law, but also to ensure that there is sincere effort by the police in this regard and the report thereof is made to the officer of the Court who may be assigned with such work.
Page 10 of 12
R/CR.A/1448/2009 JUDGMENT
9. Hence, the following order:
I. Non-bailable warrant shall be issued against the appellant-convict who is reported absconding, so as to bring him 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 him to the custody. II.If the appellant-convict is not found inspite of the effort by the police, his 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.
III.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.
IV.The report shall be submitted for compliance to the aforesaid direction by the Director General of Police to this Court within a period of 6 months from today and such report shall be placed before the Registrar(Judicial) of this Court. If the Registrar(Judicial) is of the view that the proper action is not taken, he will place the matter before the Court, taking up conviction appeal where the sentence is 10 years and above, for appropriate orders.
9. Appeal is hereby dismissed with the aforesaid directions.
Page 11 of 12
R/CR.A/1448/2009 JUDGMENT The judgement and order dated 17.06.2009 passed by the Additional Sessions Judge, City Civil & Sessions Court, FTC No. 2, Ahmedabad in Sessions Case No. 216 of 2008 is confirmed. However, life imprisonment as awarded by the trial court would not be till last breath and the case of the appellant no. 1 who is not absconding may be reviewed by the appropriate authority after 14 years of his serving sentence considering the decision of Apex Court in the case of Bhaikon @ Bakul Borah (supra). R & P, if lying with this court, to be sent back forthwith.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 12 of 12