Gujarat High Court
Kasam Mamad Notiyar vs State Of Gujarat on 13 October, 2023
Author: Gita Gopi
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 85 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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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 ?
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KASAM MAMAD NOTIYAR
Versus
STATE OF GUJARAT
============================================
Appearance:
DR. HARDIK K RAVAL(6366) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR RONAK B. RAVAL, APP for the Opponent(s)/Respondent(s) No. 1
============================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/10/2023
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The present appeal is filed by the accused / convict under Section 374 of the Code of Criminal Procedure, 1973, (for short, 'the Cr.P.C.') and is directed against the Page 1 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023 NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined judgment and order of conviction dated 20.11.2013 passed by the learned 7th Additional Sessions Judge, Bhuj - Kachchh in Sessions Case No.6 of 2011, wherein the Trial Court has convicted the appellant - accused / convict for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, 'the IPC') and sentenced him to undergo rigorous imprisonment of life and to pay a fine of Rs.1,000/- and in default to undergo a simple imprisonment of one month.
BRIEF FACTS : -
2. The brief facts leading to filing of the present appeal, as per the case of the prosecution and as per the charge framed against the accused at Exh.17 is that on 01.06.2010 at about 8 o'clock near Vanthan Chowk behind Dr.Sedhani's Clinic in the center of Natkhatrana, where the accused - Kasam Mammad and the deceased Ibrahim Sumar Notiyar had met, and accused initiated the brawl and gave a blow on the chest of the deceased - Ibrahim Sumar Notiyar with a sharp knife, causing serious injuries. The accused had ran away from the place of offence. The charge has been framed against the accused under Section 302 of the IPC.
3. The ground has been raised challenging the judgment of conviction to the effect that the prosecution case is full of infirmities and there are contradictions and Page 2 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023 NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined improvements material in nature, which creates serious doubts on the trustworthiness of the prosecution witness. The conviction is based on irrelevant consideration ignoring and discarding the material evidences on the record of the Court. Out of 24 witnesses as examined by the prosecution, the prosecution witnesses Nos.6, 11, 12, 13, 14 and 15 have turned hostile and not supported the case as per the charge and that fact has not been appreciated by the learned Trial Court. There are no eye- witness to the incident and other depositions have not supported the case of prosecution. Thus, the benefit of doubt ought to have been given.
SUBMISSIONS ON BEHALF OF THE APPELLANT - ACCUSED /CONVICT : -
4. Learned advocate Dr.Hardik K. Raval, appearing on behalf of the appellant - accused / convict, while placing reliance on the deposition of PW-16 - Abdullah Alimamad Notiyar at Exh.60 and PW-17 - Ismail Abdullah Notiyar at Exh.61, has submitted that the conduct of these witnesses creates doubts since their behaviour was not natural. Having found the deceased bleeding, none of them had informed the police and both remained silent, which itself creates suspicion.
5. Learned advocate Dr.Raval, has further submitted that the incident appears to be occurred, when all of three (i.e. the deceased and the PW-16 and the PW-17) had Page 3 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023 NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined followed the accused and as per the evidence of the doctor, if the deceased would have been immediately taken to the hospital then by medical treatment, he could have been saved, those facts have not been appreciated by the learned Trial Court.
6. Learned advocate Dr.Raval, has submitted that the charge framed against the accused does not reflect the motive behind the crime and the evidence of the witnesses are to the effect that the accused had committed theft of gold and silver ornaments from the house of Romatbai, who is the sister-in-law of Khamisha Abdullah Notiyar, examined as PW-1.
7. Learned advocate Dr.Raval, thus submitted that the allegations of having stolen the gold and silver ornaments and taking the cash of Rs.40,000/-, has not been proved by way of the panchas, who during the trial turned hostile and further, the person from whom, the ornaments have been recovered - Mahesh Keshavbhai Soni has not been examined to prove the motive behind the crime.
SUBMISSIONS ON BEHALF OF THE STATE : -
8. Per contra, learned Additional Public Prosecutor Mr.Ronak Raval, has submitted that the act of the accused holding the bloodstain knife and having given the blow on the chest itself shows criminal intent of committing Page 4 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023 NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined murder and those facts have been proved by the witnesses (PW-16 and PW-17) and their evidences get corroborated by the evidence of Dr.Ramzan O Lodra (PW-
19).
9. Learned Additional Public Prosecutor Mr.Raval, has submitted that the nature of injuries itself suggests that it is the criminal intention, which had led to the death of the person. Relying on the provisions of Section 302 of the IPC and the ingredients under Section 300 of the IPC, learned APP Mr.Raval, has submitted that the reasons given by the Trial Court are in accordance with the evidence on record and the witnesses have corroborated, where the PW-16 and 17 had immediately seen the deceased and had also seen the accused at the place of offence holding the bloodstain knife in his hand. The evidences of PW-16 and PW-17 have remained consistent.
10. Learned APP Mr.Raval, has stated that no substantial challenge has been given to both the witnesses and the conduct, as alleged, cannot create any doubt on the witnesses, who had followed the accused as he had on earlier date stolen the gold ornaments from the house of their relative and the accused too was related to them, hence, the immediate conduct of the witnesses would be to inform the other family members and further submitted that the complaint registered with regard to theft of gold and sliver ornaments and cash gets proved by the Page 5 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023 NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined recovery of stolen ornaments. The consistent facts have also been improved by other witnesses and the act of the accused of having stolen the gold ornaments on the earlier date also have been proved by the other witnesses and hence, it is submitted by the learned APP that the judgment and order of conviction is on proper appreciation of the evidences on record and no contrary facts have been brought to give any benefits of doubt to the accused.
ANALYSIS OF EVIDENCE:-
11. We have heard the learned advocates appearing for the respective parties at length and have also perused the judgment and order of the Trial Court.
12. The main witnesses are PW-16 and PW-17. The PW- 16 - Abdulla A. Notiyar, in his deposition has deposed that the accused had committed an offence of theft and he had taken the cash amount of Rs.40,000/- and the ornaments from Kasam Mamad Ramatbai's house, therefore, he along with Ismail A Notiyar and Ibrahim Sumar Notiyar had gone to see him on bike and they had gone towards Nakhatrana and when they had reached near the pool, Ibrahim wanted to answer the nature's call, so had parked the bike, he had gone behind Dr.Sedhani's Clinic to urinate. As per the evidence of the PW-16, he along with Ismail had gone in search of the accused, at that time, they heard some noise from the side of Dr.Sedhani's Clinic and when they reached there, they saw the accused holding a bloodstain Page 6 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023 NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined knife in his hand and deceased - Ibrahim had fallen down. Both of the witnesses (PW-16 and PW-17) followed the accused, who had entered in a lane towards the Rabari's house, thereafter they came back, where they found that deceased - Ibrahim had fallen down and according to the witnesses, Ibrahim had died there. The witness PW-16 stated that on the left side of the chest, there was a knife blow inflicted by the accused. The Police had come on the scene of offence and other people also had gathered there. The said evidence has remained unchallenged. The police had recorded the statement on the very same day. He had agreed that he had not gone to inform the police and affirmed that on the very same day of the theft, he had not gone out in search of the accused. The accused is brother-in-law and the deceased is maternal cousin of the PW-16.
The suggestion, which has been put up to the witness to falsify the fact of deceased going to urinate does not create any doubt with regard to the incident, as the accused was found at the place with the knife and the police had come at the place and other people too had gathered there.
13. The PW-17 has corroborated the evidence of PW-16 stating that they all three (i.e. PW-17 along with PW-16 and deceased), had gone in search of the accused since Page 7 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023 NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined Ibrahim had wanted to answer the nature's call, they had parked their bike near the handcart and when they were in search of the accused, as per the evidence of PW-17 which corroborated PW-16, the deceased and the accused met each other, the accused had given a knife blow on the chest of the deceased and and he and PW-16 had seen the bloodstain knife in the hand of the accused and they had ran after him to catch the accused, however he ran away in the lane and thereafter, they had come back at the place where the deceased was lying, he has also stated that when they came back, the deceased had taken his last breath.
The evidences of PW-16 and PW-17 are sterling in character. Both are the eye-witnesses to the incident in the form that the accused was last seen by them at the place of incident with the bloodstain knife. The accused had ran away from the place after committing the offence. In the cross-examination of PW-16 and PW-17, the commission of the offence has remained unchallenged. Both the witnesses have stated that the deceased died on the spot and thereafter, they had taken him to the hospital. The evidence of the PW-16 shows that the police had come on the place and the people too gathered there. The very presence of the accused get proved by the evidences of both the witnesses.
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14. Dr.Ramzan O. Lodra (PW-19) in his evidence has referred to the injuries and he has stated that it is 3.5 to 4 centimeter below nipple of the left side of the chest, it was sharp cutting penetration wound inside the chest. The description of the injury as shown in the PM note in column No.17, reads as under :-
"(1) Sharp cutting wound situated on left side of chest about 3.5 to 4 e.m. below left nipple directed from midially to to left side downward.
Size: 3 C.M . × 1.5 C.M. This wound penetrating inside the chest between 3rd and 4th left ribs. penetrating skin subcutaneous intercostal tissuer muscles pericardium and reaches heart and penetrates heart.
Depth of above mentioned wound from outside skin upto heart measures about 10 to 11 cms."
15. The injuries were found anti-morterm. The cause of death is "hypoglycemic shock after massive haemorrhage due to sever injury to heart".
16. The PW-18 - Romatbai A. Notiyar has been examined to prove the fact of theft of the ornaments from her house. She has given the details of the ornaments stolen and Page 9 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023 NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined have been stated that the cash amount of Rs.40,000/- was also taken away by the accused. She had filed a case at Lakhpat and she had informed about the theft to the husband at evening and thereafter, the police from Naran Sarovar came and inquired from her. She was not knowing the whereabouts of accused - Kasam and according to her evidence, her brother Ismail, Ibrahim and Khamisa and Ibhalabhai had gone in search of the accused. The accused is maternal brother-in-law, she had deposed that the accused had murdered her brother Ibrahim. The witness (PW-18) has proved the purpose of all three i.e. the deceased and both the witnesses PW-16 and PW-17, having gone in search of the accused.
17. Learned advocate Dr.Raval, appearing for the accused has relied upon the judgment of Amar Singh ; Inderjeet Singh Vs. State (NCT of Delhi) reported in 2020 LawSuit (SC) 635 to submit that the eye-witnesses had made no efforts to save the victim from the assault and the victim was not carried by the witness to the hospital and he was lying injured on place of incident, till the police came. It is submitted that the conduct of the eye-witness is inconsistent with ordinary course of human nature.
18. Here in the present case, all three (deceased, PW-16 and PW-17) had gone in search of the accused, they had parked the vehicle and deceased wanted to answer the Page 10 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023 NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined nature's call and rest, the PW-16 and PW-17 were also present at nearby place, after having heard the noise, they had immediately gone at the place and had seen the accused with the bloodstain knife and the deceased having fallen down. To the injury, which was given on the chest, both the witnesses has stated in their depositions that they found, the deceased had died on the spot. The police had come at the place of offence. The conduct of the witnesses does not create any doubt since the time of incident on 01.06.2010 is around 8 O'clock and the FIR came to be lodged at 10:55 hours. The deceased had died on the spot an thereafter, he was taken to the hospital and the fact that after chasing the accused at little distance, they have returned back where the deceased was lying. Thus, the very act of the witnesses show their concern towards the injured, however as per their evidences the deceased had died on the place of the offence and they had no other recourse but to inform their family members, hence their conduct does not appear to be unnatural, in these facts of the case, the judgment as referred by the learned advocate Dr.Raval, would not support in favour of the appellant. Hence, the facts proved on record does not create any doubt on the conduct of both the witnesses.
19. Learned Additional Public Prosecutor Mr.Raval has relied upon the judgment of Balu Sudam Khalde and Page 11 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023 NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined another Vs. the State of Maharashtra reported in 2023 LiveLaw (SC) 279, to support his argument that to the nature of injuries caused by dangerous weapon applied on the vital part of the body, there is no escape from the conclusion that it is a case of Section 302 of the IPC. Learned Additional Public Prosecutor Mr.Raval, referring to the jail remarks also states that the appellant
- accused is criminal minded person, who is accused in four other matters pending against him to specify as (i) before the Bhuj B-Division Police Station being CR No.I- 14/2018, Criminal Case No.898 of 2018 for the offence punishable under Sections 307, 323 and 506(2) of the IPC and Section 135 of the G.P. Act (ii) before the Matkuwa Police Station being CR No.I-05/2018, Criminal Case No. 140 of 2018, for the offence punishable under Section 307 and Section 135 of the G.P. Act (iii) before Nakhatrana Police Station being CR No.II-03/2018 for the offence punishable under Section 51(1)B of the Prison Act, all three cases are pending, however in the complaint registered before Bhuj City A- Division Police Station being CR No.II-3283/2019, wherein the accused has been released on bail vide 18.12.2021.
20. In the case of Balu Sudam Khalde and another (supra), the Hon'ble Apex Court has dealt with the Exception 4 of Section 300 of the IPC, in this regard, learned advocate Dr.Raval appearing for the appellant -
Page 12 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined accused has argued on the fact stating that there was some altercation between the deceased and the accused and if in a heat of passion because of sudden quarrel without any premeditation an act is committed then the benefit of Exception 4 is required to be given to the accused.
21. Paragraph Nos.58 & 59 of the judgment in the case of Balu Sudam Khalde and another (supra), refers to the provisions of Exception 4 and lays down regarding the satisfaction to bring the matter within the Exception 4 of Section 300 of the IPC. The said relevant paragraphs of the judgment, read as under : -
"58. A perusal of the provision would reveal that four conditions must be satisfied to bring the matter within Exception 4:
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in the heat of passion; and; that (iv) the assailant had not taken any undue advantage or acted in a cruel manner.
59. On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found."
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22. The above referred paragraphs state that to bring the case within the Exception 4, all the ingredients mentioned therein, must be found to be proved. The Exception 4 is to be applied if the death is caused without any premeditation. Here the fact suggests that the accused was found with the knife, which was deadly in nature. On the earlier date i.e. on 31.05.2010 as stated by the witness - Rohatbai, the accused had committed theft and the very next day i.e. on 01.06.2010, he was carrying knife with him, which itself shows the criminal intention of the accused. The facts of the case as proved by the PW-16 and PW-17 that Ibrahim had gone to urinate where he met the accused, both witnesses were there at the nearby place and when they heard some noise, both the witnesses had gone there and found Ibrahim having fallen on the ground and they had seen the accused holding bloodstain knife in his hand. There would not be any case of any sudden fight. Even the fact has come on record by way of proof that all three had gone in search of accused and when the deceased and the accused met, they both were alone there. Nothing has come on record of there being any proactive act from the side of the deceased, to have instigated or provoked the accused to inflict the blow on him. The evidence also reveals that the injuries inflicted was with much pressure and with a great force, which caused deadly injuries of wound about 3.5 to 4 c.m.
Page 14 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined it had penetrated heart from the skin to the heart and the depth of the wound from outside skin upto heart measures about 10-11 cms. The deceased was unarmed, this in fact would suggest that the assailant had in fact taken undue advantage and acted in a cruel manner, hence, the ingredients of Exception 4 of Section 300 of the IPC would not get satisfied in the present case, hence, the appellant
- accused cannot be granted any benefit under the exception.
23. The criminal intent of the accused is proved in this case, and the benefit as pleaded under Exception 4 of Section 300 of the IPC cannot be granted since the ingredients, which are necessary does not get satisfy.
24. In view of the evidences of the PW-16 and PW-17, the injury as proved by the evidence of doctor Ramjan supported by the PM note and looking the seriousness of the injuries inflicted with such pressure and with a great force, which caused deadly injuries of wound about 3.5 to 4 c.m. it has penetrated heart from the skin to the heart and the depth of the wound from outside skin upto heart measures about 10-11 cms and the cause of the death as concluded was the serious injuries and shock after massive hemorrhage due to the injury to the heart, hence, there is no doubt, it is the case of murder.
Page 15 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023NEUTRAL CITATION R/CR.A/85/2016 JUDGMENT DATED: 13/10/2023 undefined CONCLUSION :-
25. Overall view of the matter and the evidences as proved before the Trial Court, we are convinced that no case is made out by the appellant-accused, hence, the present appeal is bereft of merits. Accordingly, the appeal fails and the same is hereby dismissed.
26. As per the order-sheet dated 24.10.2019, it appears that there are three other offences registered against the appellant accused, as noted hereinabove.
27. Record and proceeding is ordered to be transmitted back to the concerned Trial Court forthwith.
Sd/-
(A. S. SUPEHIA, J) Sd/-
(GITA GOPI,J) MAHESH/14 Page 16 of 16 Downloaded on : Tue Oct 17 20:36:51 IST 2023