Gujarat High Court
Dafer Habib Abdulbhai Nathwani vs State Of on 11 September, 2013
Author: Ks Jhaveri
Bench: Ks Jhaveri
DAFER HABIB ABDULBHAI NATHWANI....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/1350/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1350 of 2008 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 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 ? ================================================================ DAFER HABIB ABDULBHAI NATHWANI....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: MR PV PATADIYA, HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1 MR KP RAVAL, PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER Date : 11/09/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. The appellant, herein, who was original accused in Sessions Case No. 58 of 2006 and who was convicted by the learned Additional Sessions Judge, 6th Fast Track Court, Veraval, for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment for one year as well as for the offence punishable under Section 135 of the Bombay Police Act and was sentenced to undergo simple imprisonment for four months and to pay fine of Rs.100/- and in default to undergo further simple imprisonment for one month, is before us, assailing the aforesaid order by way of the present appeal.
2. The brief facts of the case of the prosecution, as set out before the trial Court, reads as under;
3. A complaint was given by the deceased complainant, Gaturbhai Nathabhai Chudasama, on 22.05.2006, wherein, he stated that the wife of the present appellant, namely Khatu Dafer, was residing with him for last about four years. It was, further, stated in the complaint that before about one month prior to the alleged incident, Dafer Khatu, had gone to Dhrol and on the date of the alleged incident, the complainant came to know that Khatu was present at the house of the appellant, and hence, he went there in the afternoon at about 12:00 p.m.. When the deceased complainant reached there, the appellant was present, who took the deceased complainant on the bank of river Hiran and inflicted knife blows on him and on account of that the complainant fell down. However, the son of the appellant Haji Habib came there running and intervened. The injured complainant was, then, taken to the hospital, where, he lodged the complaint. Later on, the injured complainant succumbed to his injuries on 23.05.2006, and hence, the offence under Section 307 of the IPC came to be substituted with Section 302 of the IPC. The police authorities, then, carried out the investigation and as, prima facie, evidence were found against the appellant, charge sheet was laid against him.
4. To prove the guilt of the accused beyond reasonable doubt, the prosecution examined the following witnesses;
PROSECUTION WITNESS NO.
NAME OF THE WITNESS EXHIBIT NO.
1Dr. Jay Harilal Mehta 6 2 Dr. Tariq Yasin Baloch 14 3 Dr. Hitesh Keshavlal 20 4 Dr. Atul Chandulal 26 5 Kishor Vitthaldas Devani 31 6 Pancha Samat 35 7 Devsi Sarman 37 8 Gopal Parsottambhai 38 9 Bijalbhai Govindbhai 40 10 Sureshchandra Amrutlal 43 11 Arjan Oghadbhai 46 12 Kanti Hirabhai 48 13 Rakesh Ramabhai 50 14 Manda Sajanbhai 52 15 Vikram Vinodbhai 53 16 Hajibhai Habibbhai 55 17 Khatuben Habibibhai 56 18 Hamidaben Hajibhai 57 19 Punitbhai Narottambhai 58 20 Mandabhai Sajanbhai 59 21 Tapubhai Naranbhai 60 22 Amubhai Rambhai 64 23 Talsibhai Majibhai 68 24 Jayendrasinh Chandubha 73 25 Bhupatsinh Gavabhai 78
5. Over and above the aforesaid oral evidences, the prosecution also placed reliance on the following documentary evidences;
SR.
NO.
PARTICULARS OF THE DOCUMENT EXHIBIT NO.
1Letter written by Prabhas Patan Police to PHC 7 2 Injury certificate of Haji Habib Nathwani 8 3 Letter written by Prabhas Patan Police to PHC 9 4 Medical certificate of Gaturbhai Nathabhai 15 5 Memorandum written to Govt. Hospital, Rajkot, for performing PM on the deadbody 21 6 PM form of the complainant 22 7 Inquest Panchnama 23 8 PM Note of the complainant 24 9 Cause of Death Report 25 10 MLC certificate of the complainant issued by Junagarh Hospital 28 11 Memorandum written to Executive Magistrate for obtaining a copy of the D.D. 34 12 Memorandum written to the Circle Inspector for preparing map of the place of offence 44 13 Panchnama of collection of blood sample of the complainant 54 14 Writing addressed to MO, after obtaining clothes of the complainant 80 15 Memorandum of transfer of patient 81 16 Writing addressed to FSL 82 17 Muddamal despatch note 83 18 Receipt issued by FSL 84 19 Forwarding by FSL 85 20 Report of FSL (Biology Dept.) 86 21 Forwarding letter of FSL 87 22 Report of FSL (Physics Dept.) 88 23 Notification prohibiting carrying of arms 91 24 The extract of Station Diary of Pradyumnanagar Police Station, Rajkot 92 25 The extract of information register of Pradyumnanagar Police Station, Rajkot 93 26 Receipt issued in respect of handing over of custody of the deadbody 97 27 The extract of Telephone Register of Prabhas Patan Police Station 98 28 he extract of Station Diary of Prabhas Patan Police Station 99 29 Log Book (Dt. :
22.05.2006 to 25.05.2006) 100
6. At the time of trial, the appellant did not plead guilty and claimed to be tried, whereupon, he was tried for the alleged offence and the trial Court passed the judgment and order, as referred to herein above. Hence, the present appeal.
7. Heard learned Counsel for the appellant, Mr. Patadiya, who is appearing through HCLS and the learned APP, Mr. Raval, on behalf of the State and also perused the material on record with their assistance.
8. In the case on hand, the complaint(Exhibit-76) was given by the deceased, Gaturbhai Nathabhai Chudasama, himself, while he was undergoing treatment at the hospital. In the complaint given by him, the deceased has narrated the entire incident in detail, as to how he went to the house of the appellant in search of Khatu Dafer, P.W.-17, who was residing with him for last about four years, and from there, as to how, he was deceitfully taken to the bank of river Hiran by the appellant and was inflicted knife blows and as to how he was saved by the son of the appellant, P.W.-16, and he was brought to the hospital by P.W.-17. It is pertinent to note that P.W.-16 did not support the case of the prosecution and was declared hostile. However, the facts narrated in the complaint by the deceased, gets support from the evidence of P.W.-17, i.e. the wife of the appellant, herein. P.W.-17 in her evidence stated that the appellant instead of doing any work was committing thefts and he also used to quarrel with her and on account of that she went to reside with the deceased. P.W.-17, then, in clear terms stated that on account of love affair between her and the deceased, the appellant done away with the deceased. In her cross-examination, P.W.-17 stated that she came to know about the fact of infliction of injuries on the deceased by the appellant, firstly, through her son, P.W.-16, and subsequently through the deceased, himself. P.W.-17 denied the suggestion that it is not true that the appellant had not inflicted knife blows on the deceased and that her son, P.W.-16, did not tell her anything. The evidence of P.W.-17 gets support from the evidence of P.W.-2, who had attended the deceased at Government Hospital, Veraval. P.W.-2, in his examination-in-chief, stated that on 22.05.2006, while he was on duty, P.W.-17 came to the hospital with the deceased and she gave the history of infliction of injury with knife by one Habib Abdulla Nathwani. This witness was also cross-examined at length by the defence, but, nothing could be brought out from the same, which could help its case. The evidence of P.W.-4 are also on the same line as that of P.W.-2. P.W.-4 had attended and provided the treatment to the deceased at Government Hospital, Junagarh. P.W.-4 stated that he was also given the history of infliction of injury on the deceased by one Habib Abdul. P.W.-4, at the time of his examination-in-chief after perusing Muddamal Article No. 4, knife, opined that the injuries found by him on the body of the deceased were possible with the same. In his cross-examination, P.W.-4 denied the suggestion that it is not true that the injuries found by him were not possible with Muddamal Article No.4, Knife. The evidence of P.W.-2 stands corroborated by the evidence of P.W.-5, who had recorded the D.D. Of the deceased. P.W.-5, in his examination-in-chief, stated that he commenced the recording of D.D. Of the deceased, after obtaining necessary certificate with regard to the fitness of the deceased from P.W.-2. P.W.-5 stated that he was asking the question and the deceased was replying the same and on completion of the recording of the statement of the deceased, P.W.-5 had obtained the signature of the deceased, thereon. In his cross-examination, P.W.-5 denied the suggestion that, at the time of recording of the statement, the deceased was under the influence of alcohol and was not in a position to answer the questions put to him by P.W.-5. It is pertinent to note that when P.W.-5 asked deceased as to how the alleged incident took place? The deceased narrated the entire incident stating that the wife of Habib Abdul Nathwani, namely Khatu, who is aged about 36 years, had been residing with him for last about four years, and today, while he was proceeding towards Veraval and reached near bank of river Hiran, Habib, i.e. the appellant, was present there, who took him to the bank of river Hiran and inflicted knife blows on him after getting me drink liquor and run away. The evidence of P.W.3, who had performed P.M. on the body of the deceased and who had found the injuries, as narrated by the complainant in the complaint, suggests that this is a case of homicidal death. From the above discussion, it is clear that it is the appellant alone, who is the author of the alleged offence.
9. The case of the prosecution also gets support from the evidence of (1) P.W.-7, who was a witness to the panchnama of the place of offence (Exhibit-36), (2) P.W.-8, who was a witness to the panchnama of the arrest of the accused (Exhibit-39), (3) P.W.-9 and P.W.-19, who were witnesses to the panchnama of the discovery of muddamal knife(Exhibit-41), (4) P.W.-10, who had prepared the map of the place of offence (Exhibit-45), (5) P.W.-11, who was a witness to the panchnama of the seizure of the clothes of the accused (Exhibit-47), (6) P.W.-12, who was a witness to the panchnama of seizure of the bottles containing blood sample of the appellant (Exhibit-49), (7) P.W.-8, who was a witness to the panchnama of the arrest of the accused (Exhibit-39), (8) P.W.-13, who was a witness to the panchnama of the seizure of the clothes of the deceased (Exhibit-51), (9) P.W.-14, who was a witness to the Inquest Panchnama (Exhibit-23), (10) P.W.-15, who was a witness to the seizure of blood sample of the deceased (Exhibit-54).
10. The case of the prosecution also gets established from the documentary evidence in the form of Complaint (Exhibit-70), D.D. (Exhibit-33), Inquest Panchnama (Exhibit-23) etc. We are, therefore, of the opinion that the trial Court committed no error in passing the impugned judgment and order. However, in view of the fact that the financial condition of the appellant is not sound and even the present appeal is also conducted by an advocate appointed through HCLS Committee, it would be just and proper, if the amount of fine imposted by the trial Court for the offence under Section 302 is reduced to Rs.100/- and the period of imprisonment in default is also reduced to one month.
11. In the result, the appeal is ALLOWED in PART. The judgment and order of the trial Court, Dated : 29.12.2007, is CONFIRMED to the extent it records the conviction of the appellant under SECTION 302 of the IPC, but, same is modified to the extent it imposes the fine of Rs.1,000/- on the appellant and in default to undergo simple imprisonment for four months and it is substituted with the fine of Rs.100/- and in default to undergo simple imprisonment for ONE MONTH. Rest of the judgment and order of the trial Court, stands CONFIRMED. It is needless to say that the appellant shall be granted all the benefits, i.e. remission etc., as available to him under the law. It shall be open to the competent authority to consider the case of the appellant for release, after completion of fourteen years. A copy of this order be sent to the concerned jail authority, forthwith.
(K.S.JHAVERI, J.) (K.J.THAKER, J) UMESH Page 12 of 12