Gujarat High Court
Vishnu Vershibhai Koli & 2 vs State Of ... on 10 July, 2014
Author: K.S.Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
R/CR.A/220/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 220 of 2009
With
CRIMINAL APPEAL NO. 810 of 2011
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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VISHNU VERSHIBHAI KOLI & 2....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Appellant(s) No.1-3
MR. H.L. JANI, LEARNED APP 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 : 10/07/2014
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.G.URAIZEE) Page 1 of 13 R/CR.A/220/2009 JUDGMENT
1. Since both these appeals are directed against the common judgment and order of learned Additional Sessions Judge, Kachchh at Gandhidham, they are being disposed by this common judgment. The appellant of Criminal appeal No. 810 of 2011 was original accused No.1 and appellants of Criminal Appeal No.220 of 2009 were original accused Nos. 2 to 4 before the learned Trial Judge in Sessions Case No.55 of 2007.
2. The appellants were put to trial for the offences punishable under Section 302 read with Section 114 and Section 324 read with Section 114 of the Indian Penal Code [hereinafter referred to as "the I.P. Code"] and under Section 135 of the Bombay Police Act. They came to be convicted for these offences under Section 235 (2) of the Code of Criminal Procedure and are directed to suffer imprisonment as under: Sr. Criminal Appeal No. Particulars of sentence No. 1 Criminal Appeal No.220 Life imprisonment and fine of Rs.2000/, Indefault of 2009 Simple imprisonment for six months for offence punishable under Section 302 read with Section 114 of the I.P. Code.
Simple imprisonment for one year and fine of Rs.500/, indefault simple imprisonment for fifteen days for the offence punishable under Section Page 2 of 13 R/CR.A/220/2009 JUDGMENT 324 read with Section 114 of the I.P. Code.
No separate sentence for the offence punishable under Section 135 of the Bombay Police Act.
2 Criminal Appeal No.810 Life imprisonment and fine of 2011 of Rs.2000/, Indefault Simple imprisonment for six months for offence punishable under Section 302 read with Section 114 of the I.P. Code.
Rigorous imprisonment for one year and fine of Rs.500/, indefault simple imprisonment for fifteen days for the offence punishable under Section 324 read with Section 114 of the I.P. Code.
No separate sentence for the offence punishable under Section 135 of the Bombay Police Act.
2.1. All the sentences were ordered to run concurrently and the original accused were given the benefit of set off
3. For the sake of convenience, the appellant of Criminal Appeal No.810 of 2011 i.e. Ranchhod Popat Thakor shall be referred as appellant No.1 and the appellants of Criminal Appeal No.220 of 2009 i.e. Vishnu Vershibhai Koli, Bharat Vershibhai Koli and Baldev Jashibhai Koli shall be referred as appellant Nos.2,3 & 4 respectively.
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4. The short matrix of the prosecution case as disclosed during the trial is that original complainantJalabhai Jaisingbhai Thakor accosted the appellants for having misbehaving with Rekhaben, daughter of the deceasedNanubhai and therefore, on 15.06.2007 at about 20:00 hours the appellants got enraged and appellant No.1Ranchhod Popat Thakor gave a Dharia blow on the neck of the deceasedNanubhai Magan Koli and also attacked on the original complainant by Dharia and caused injuries on his neck. The other appellants namely appellant Nos.2, 3 and 4 help each other in commission of this crime and thereby caused the death of Nanubhai Magan Koli and injuries to the original complainant. The complaint in respect of this incident was lodged by the complainant with Adipur Police Station. In pursuance of this complaint, FIR vide Adipur Police Station ICR. No.73 of 2007 came to be registered.
4.1. 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 Gandhidham under section 209 of the Code, where it was registered as Sessions Case No.55 of 2007. Charge vide Exhibit2 came to be framed against the appellants. They pleaded not guilty and claimed to be tried.
4.2. In order to bring home the charge against Page 4 of 13 R/CR.A/220/2009 JUDGMENT the appellants, the prosecution examined the following witnesses: Sl.Nos. Name of the Witness Ex.Nos.
1 Dineshbhai Dayabhai Aahir 22 2 Babubhai Rudabhai Aahir 24 3 Akbar Khamisha 25 4 Naranbhai Manjibhai Marvada 27 5 Niranjan Pritamlal 29 6 Shivraj Budhabhai Gadgi 30 7 Popatbhai Khodabhai 32 8 Ghanshyam Jadega 33 9 Valji Panar 35 10 Jalabhai Jasingbhai Thakor 38 11 Shaktabhai@ Chakti Popatbhai Thakor 42 12 Labhuben Thakor 43 13 Champaben Nanubhai 44 14 Rekhaben Nanubhai Agani 45 15 Ranchhod Jagmal 46 16 Vishnu Nanu Agani 47 17 Harish Mahadeva Waghari 48 18 Dr.Arbind Kumar Surendrakumar Sinha 49 19 Chaturbhai Gelabhai 56 20 Raju Sharma 58 21 Jitubhai Laljibhai Ghera 60 22 Nitesh Pandya 62 23 Mahipat Singh 64 24 Gulabbhai Pataria 694.3. The prosecution also produced and relied upon the following documentary evidence during the course of the trial.
Page 5 of 13R/CR.A/220/2009 JUDGMENT Sl.Nos. Particulars Ex. Nos. 1 Inquest Panchnama 23 2 Panchnama of the cloths of the 28 deceased 3 Arrest Panchnama of the accused 31 4 Panchnama of the place of the 70 offence 5 Original complainant 40 6 FSL report 73 7 Post mortem Note 50 8 Medical Certificate 51 and 52 9 Death certificate 49
4.4. 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 appeals.
5. We have been taken through the oral and documentary evidence by learned advocates for the appellants and learned APP for the respondentState. We have independently and dispassionately applied our mind to this evidence.
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6. The contention of learned advocate Mr. Dagli is that there is no intention on the part of the appellants particularly appellant No.1 to cause the death of the deceasedNanubhai. He has drawn our attention to the charge, Exhibit2 framed against the appellants and has further contended that except appellant No.1Ranchhod Popat Thakor rest of the appellants are charged with commission of lessor offence i.e. under Section 326/324 read with Section 114 of the I.P. Code.
6.1. It is further contention of learned advocate Mr. Dagli that the incident had taken place because of the socalled misbehaviour with Rekhaben, daughter of the deceased and therefore, he has urged that the trial Court has committed an error in convicting the appellant No.1Ranchhod Popat Thakor under Section 302 of the IPC whereas he ought to have been convicted under Section 304 partI and rest of the appellants ought to have been held responsible for causing simple injuries. Hence, he has urged that the sentence passed against the appellants may be modified accordingly.
7. Learned advocate Ms. Vijayalakshmi for the appellant of Criminal Appeal No.810 of 2009 has adopted the arguments of Mr. Dagli.
8. On the other hand, learned Additional Public Prosecutor Mr. Jani, for the respondentState has submitted that there is no germane reason to interfere with the impugned judgment and order of conviction Page 7 of 13 R/CR.A/220/2009 JUDGMENT passed by the Trial Court. He has submitted on the basis of the oral evidence of the material witnesses namely Jala Jaysingbhai Thakor,P.W.10, Champaben Nanubhai, P.W.13, Rekhaben Nanubhai, P.W.14 and Ranchhod Jagmal, P.W.15 that the prosecution has proved the case against the appellants beyond reasonable doubt and therefore, the appeal may be dismissed.
9. We have heard learned advocate Mr. Dagli for the appellants of Criminal Appeal No.220 of 2009 and learned advocate Ms. Vijayalakshmi for the appellants of Criminal Appeal No.810 of 2011 and learned Additional Public Prosecutor Mr.Jani for the respondentState.
10. The Trial Court has framed the charge against the appellants vide Exhibit2. It is very clear from the charge that only the appellant No.1 Ranchhod Popat was charged with the commission of offence under Section 302 albeit read with Section 114 of the I.P. Code while rest of the appellants are charged with Section 326/324 read with Section 114 of the I.P. Code. In the backdrop of this charge, the ocular evidence led before the trial Court is examined. First of all original complainantJalabhai Jaisingbhai Thakor [P.W.10] has stated in his oral statement that appellant No.1Ranchhod popat Thakor gave a Dharia blow on the neck of the deceased while he has also gave blow by Dharia on the head and neck of this witness. He also stated that appellant No.4 Page 8 of 13 R/CR.A/220/2009 JUDGMENT Baldev Jashibhai Koli gave Dharia blow on the neck of the deceased. Moreover, the evidence of this witness goes to say that he does not know what other accused persons did. Hence, it is very clear from the oral evidence of the original complainant that he attributes the cause of injuries sustained by the deceased and himself to appellant No.1Ranchhod Popat Thakor and appellant No.4Baldev Jashibhai Koli.
11. Next witness examined on behalf of the prosecution is Labhuben Jalabhai Thakor, P.W.1 2, who is the wife of the original complainant. She simply said that appellant No.4Baldev Jashibhai Koli killed the deceasedNanubhai Magan Koli and appellant No.1 Ranchhod Popat Thakor caused injuries to her husband [P.W.10]. The wife of deceasedNanubhai Magan Koli has examined as P.W.13. From the evidence of this witness, it is clear that she is not an eye witness to the incident in question but she was informed about the incident by Labhuben (P.W.12) that her husband was killed by Baldevappellant No.4.
12. The incident in question was occurred on account of so called misbehavour with Rekhaben, who is examined as P.W.14, who simply states in her oral evidence that all the appellants had killed her father by giving Dharia blows.
13. Similar is the evidence of Ranchhod Jagmal [P.W.15], who attributes the fatal blow suffered by the deceased to appellant No.4Baldev and states that Page 9 of 13 R/CR.A/220/2009 JUDGMENT appellant No.1Ranchhod Popat Thakor gave Dharia blow to original complainant.
14. Thus, from the close scrutiny of the oral evidence of the above material witnesses, it becomes explicitly clear that they are speaking of the part played by appellant No.1Ranchhod Popat and appellant No.4Baldev in the commission of the crime, and are absolutely silent about the role played by other appellants, though they were present. But, at the same time the fact remains that the defence is not able to dislodge the prosecution that all the appellants had in furtherance of their common intention, to teach lesson to the deceasedNanubhai Magan Koli and complainantJalabhai Jesing Thakor, as they were accosted for having misbehaved with Rekhaben, daughter of the deceased, and therefore, their participation in the offence is proved by the prosecution.
15. So far as the quantum of punishment is concerned, we are of the considered opinion that looking to the charge, Exhibit2 framed against the appellants as well as the ocular version of all the witnesses during the trial, makes it abundantly clear that it was the appellant No.1Ranchbod Popat i.e. the appellant of Criminal Appeal No.810 of 2011 who caused the fatal blow to the deceased and therefore, he is the only one, who can be fastened with the liability of killing deceasedNanubhai.
16. Now, if we considered the evidence of the Page 10 of 13 R/CR.A/220/2009 JUDGMENT doctor recorded during the course of the trial and column No.17 Post mortem Note, Exhibit15, it reveals that the injuries suffered by the deceased is an incised wound from lower part of neck to chest in left side. External carotid artery was cut and the cause of death is hemorrhagic shock due to incised wound and damaged external carotid artery. Dr. Arbind Sinha (P.W.18), who had performed the autopsy of the deceased stated in the crossexamination that had immediate steps to stop the bleeding being taken, the deceased would have been saved.
17. We are of the opinion that in view of this medical opinion, it is difficult to sustain the conviction of appellant No.1 under Section 302 of the I.P. Code and we are of the opinion that it is required to be quashed and set aside.
18. So far as the other appellants are concerned, the case of the prosecution is that original complainant-Jalabhai[P.W.10] had suffered simple injury on the head and neck and rest of the appellants, according to the oral evidence, have not played any active role in the commission of the offence, though they were present along with the appellant No.1, who caused the injuries, we are of the opinion that their conviction under Section 302 also cannot be sustained and it is required to be quashed and set aside and accordingly the impugned judgment and order is required to be modified.
19 For the aforesaid reasons, the present appeals are partly allowed.
(i) Insofar as the appellant of Criminal Appeal Page 11 of 13 R/CR.A/220/2009 JUDGMENT No.810 of 2011, namely, Ranchhod Popat Thakor [original accused No.1] is concerned, the judgment and order of conviction and sentence under challenge stands modified and the conviction under Section 302 of the Indian Penal Code is altered to one under Section 304 PartI of the Indian Penal Code and he is sentenced to undergo rigorous imprisonment for a period of 10 (ten) years. The rest of the part of the judgment and order of conviction and sentence shall remain unaltered qua the appellant of Criminal Appeal No.810 of 2011.
(ii) So far as the appellants of Criminal Appeal No.220 of 2009 i.e. Vishnu Vershibhai Koli, Bharat Vershibhai Koli and Baldev Jashibhai Koli [original accused Nos. 2 to 4] are concerned, the judgment and order of conviction and sentence under challenge stands modified and the conviction under Section 302 of the Indian Penal Code is quashed and set aside. The rest of the part of the judgment and order of conviction and sentence under Section 324 read with Section 114 of the IPC shall remain unaltered qua the appellants of Criminal Appeal No.220 of 2009.
The Bail bonds stand cancelled.
(iii) All the appellants be given the benefit of remission as admissible under the law. Record and Proceedings be sent back to the trial court concerned forthwith.
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(K.S.JHAVERI, J.)
(A.G.URAIZEE,J)
pawan
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