Malaji Vs. State of Gujarat
J U D G M E N T
Deepak Verma, J.
1. On account of homicidal
death of Jethusing on the intervening night of 2/3.04.1994 at about 2 a.m. Appellant
was charged and prosecuted for commission of the offence under Section 302 of
the Indian Penal Code (for short 'IPC') and under Section 135 (1) of the Bombay
Police Act. On appreciation of evidence available on record, Additional Sessions
Judge, Banaskantha at Palanpur in Sessions Case No. 137 of 1994, decided on 07.03.1998,
found the Appellant guilty for commission of the said offence and awarded him life
imprisonment and a fine of Rs. 500/-, and in default to undergo further R.I,
for 3 months under Section 302 of the IPC and 4 months simple imprisonment and fine
of Rs. 100/- and in default to undergo further imprisonment of 15 days under Section
135 (1) of Bombay Police Act. The sentences were directed to run concurrently.
2. Feeling aggrieved thereof,
Appellant filed Criminal Appeal No. 597 of 1998 before the Division Bench of the
High Court of Gujarat at Ahmedabad. The High Court, after categorically examining
the oral and documentary evidence available on record came to the conclusion
that no case for interference was made out, affirmed the judgment and order of Trial
Court and thus dismissed the appeal.
3. The Appellant therefore
feeling aggrieved by the aforesaid impugned judgment and order of conviction recorded
by the Division Bench of the High Court, is before us challenging the same on variety
4. Before we proceed to
decide the grounds raised at the time of hearing, it is necessary to narrate the
facts of the case in nutshell, which stand as under:
5. On 2.4.1994 at about 6
o' Clock, deceased Jethusing and his agriculture partner Fueo Rabari had gone to
cultivate the field of Karshanbhai Patel in their village and returned at about
12 O' clock midnight, after cultivating the same. Then Jethusing went to sleep in
Oshri outside Orda, whereas his wife Pepaben and their son Pintu were also sleeping
at the same place but on another cot. Father of the complainant i.e. Paragji and
Feuo were sleeping in Verandah whereas, brother of the complainant named Vaghji
was sleeping outside verandah and youngest brother of the complainant Deepji was
watering castor plants. On the intervening night of 2/3.4.1994, at about 2.00 a.m.,
Pepaben raised shouts for help. On hearing the same, complainant - Viramji Paragji,
his wife and other members of the family were woken up. Complainant and other family
members, went to the place where Jethusing, his wife Pepaben and their son were
sleeping. On reaching the spot, they found that Pepaben was raising alarm to save
her husband Jethusing. Complainant found that Jethusing had received severe
injuries on his face and was bleeding profusely. Looking to the gravity and
seriousness of the matter, Viramji Paragji and his other brother Surajsing and Fueo
placed injured Jethusing in the tractor to take him to Dhanera Hospital.
6. On way to hospital, they
met Appellant and one Kanabhai Mulabhai, who also accompanied them to the
hospital. The Doctor on duty examined him and declared the deceased brought dead.
Thereafter, the complainant went to Dhanera Police Station and lodged his complaint.
It is pertinent to mention here that at that time PW -3 Pepaben had not disclosed
the name of the Appellant as assailant to anyone including the complainant who
had lodged the FIR. To this she has offered an explanation that at that time her
uppermost anxiety was to take her injured husband to the hospital for treatment,
therefore, the name of the Appellant could not be mentioned in the FIR. Only after
Jethusing was taken to the hospital, Pepaben informed PW-5 - Deepji Paragji and
PW-6 - Vaghji Paragji, brothers of the deceased that injury was caused on the
person of the deceased by Appellant, with the aid of an axe. On hearing this, they
informed Pepaben that while entering the field, they had also seen Appellant going
away from the field, with an axe in his hand.
7. FIR lodged by complainant
Viramji Paragji was handed over to the Police Sub Inspector of Aagathala Police
Station, for investigation. After completion of usual formalities and collecting
incriminating articles, statements of the witnesses were recorded by him, who were
conversant with the facts of the case. Thereafter, arrangements were made for sending
the body for postmortem at Dhanera Hospital.
8. Further investigation
in the case was conducted by Circle Police Inspector, Tharad. While in police custody,
Appellant made disclosure statements pursuant to which blood stained adhivato (scarf
to be tied as head gear) and blood stained axe were discovered from the place shown
by Appellant. The incriminating articles seized during the course of investigation
were sent to Forensic Science Laboratory (FSL) for analysis. On completion of the
investigation, the Appellant was charged and prosecuted for commission of the aforesaid
offences as mentioned hereinabove.
9. The Appellant denied the
charges and submitted that he is innocent and prayed for absolving the charges levelled
against him. The criminal investigation machinery was set into motion on the strength
of the report submitted by complainant PW-2 -Viramji Paragji on 03.04.1994 itself.
No doubt, it is true that in the same, the name of the Appellant has not been mentioned
but it has been categorically mentioned that someone had assaulted his brother with
an axe and after assault had ran away. The assault was on the right side of the
mouth, and on the forehead with some sharp weapon.
10. Formal FIR was
registered at the Police Station on the strength of the aforesaid complaint. But
as soon as PW-3, Pepaben had become little composed after the shock which she faced
due to the incident, she had disclosed the name of Appellant to PW-5, Deepji Paragji
Rajput and PW-6, Vaghji Paragji Rajput (as stated hereinabove). Their statements
were recorded under Section 161 of Code of Criminal Procedure (in short 'Cr.P.C.'),
soon after the incident and this fact is clearly borne out from the records.
11. It has neither been challenged
before us nor was challenged before the High Court or the District Sessions Court
that deceased Jethusing had met with homicidal death, which even otherwise stands
proved from the evidence of PW-1, Dr. Shamaldas Mohanlal Adhvan, who had performed
the postmortem of the dead body of the deceased. He has disclosed the nature of
fatal blow sustained by deceased on his face. He has testified to the postmortem
report in his examination in para-2 thereof which also describes the nature of injury
sustained by the deceased. The said injury fully corroborates with the nature of
injury, disclosed by PW-3, Pepaben to others. Thus from this evidence, it could
not be disputed before us that PW-3 was stating the truth and the deceased had met
the homicidal death, on account of severe wounds inflicted upon his face by an
12. We have accordingly
heard Ms. Usha Reddy, learned counsel for the Appellant and Mr. Kamaldeep
Dayal, Ms. Hemantika Wahi and Ms. Suveni Banerjee, learned counsel for the
Respondent State at length and have also perused the records.
13. 13.PW-2, Viramji
Paragji who lodged the FIR had given the reasons as to why initially in the complaint
the name of Appellant could not be mentioned but which was stated expressly by him
subsequently on getting necessary information from PW-5, Deepji Paragji and PW-6,
Vaghji Paragji who in turn were informed by PW-3, Pepaben, Wife of the deceased.
The star witness in the case is PW-3, Pepaben, who was sleeping next to her husband
alongwith her small child aged 1 = years. She happened to know the Appellant as
they all are related. According to her at about 2 a.m. midnight the Appellant had
inflicted a heavy and hard blow on the face of her husband with an axe. On
hearing the painful shriek of her husband, she woke up and saw the Appellant standing
with the axe in his hand. Since the electric bulb was already lit, it was throwing
sufficient light in which PW-3 could comfortably recognise Appellant. She has also
said that soon, thereafter, she raised an alarm, on which several persons had
14. The statement of Pepaben
stands fully proved and corroborated from the evidence of PW-5 and PW-6, who were
informed soon after the incident as to how, the injury was inflicted by the Appellant
on her husband. Their statements also reveal that they were in the vicinity of the
scene of crime and were among the many members of the victim's family who had rushed
to the spot as soon as they heard the PW-3's wails and shrieks. Thus under Section
6 of the Indian Evidence Act, 1872 (hereinafter referred to as "the
Act"), PW-5 and PW-6 were to be treated as Res Gestae witnesses. Their evidence
lends full support to the case of prosecution and corroborates the evidence of
P.W.3 Pepaben. She had first disclosed the full description of the incident including
the name of Appellant to them, thus they would be Res Gestae witnesses. In the light
of aforesaid evidence of PW-2, Viramji Paragji (complainant), PW-3, Pepaben, PW-5,
Deepji Paragji and PW-6, Vaghji Paragji, it fully stands proved and established
that the Appellant had caused the fatal blow on the person of the deceased causing
his death. Single blow was so hard and powerful that it caused his death
15. However, at this stage
it is also pertinent to point out that another crucial link with commission of the
said offence by the Appellant stands proved from the FSL report. As mentioned hereinabove,
during the course of investigation Appellant's blood stained scarf, blood-stained
axe, used in the commission of the offence were recovered from the place of discovery.
Same were sent for serological report along with mattress, sand, shirt, big scarf,
waistcoat, turban, watch, belt etc. belonging to the deceased. Human blood of
group 'O' which was also the blood group of the deceased was found in all the articles
including Appellant's scarf and the axe. These findings could not be satisfactorily
refuted by the Appellant. Thus from the FSL report it is conclusively
established that it was Appellant and only Appellant who had caused the fatal blow
on the deceased. There could not have been any other better link connecting the
Appellant with the commission of the said offence.
16. After critical examination
of the evidence of P.W.3 Pepaben, P.W.2 Pragji, P.W.5 Deepji and P.W.6 Wagji, it
is clearly established that Appellant was the person who had caused the fatal blow
on the deceased. Their evidence stands fully corroborated with each other's version.
There was no reason why they should have unnecessarily implicated the Appellant,
had he not been the perpetrator of the crime. Their evidence is of sterling
quality and deserves to be accepted.
17. Thus, in our considered
opinion, the prosecution has fully established beyond shadow of any doubt that
it was Appellant and none else who had caused the fatal blow on the person of
the deceased which ultimately caused his death.
18. In this view of the matter,
looking to the facts of the case from all the angles, we are of the considered opinion
that there is no scope for any interference in the concurrent findings recorded
by the two courts below. Appeal being devoid of any merit and substance,
deserves to be dismissed. It is accordingly dismissed.
[ASOK KUMAR GANGULY]