CR.A/1211/1986 of GADU KALIA Vs STATE OF GUJARAT on 6 November 1995

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 Judgment ? ����� —

4. Whether this case involves 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? ���� —

=================================================================Shri Adil P. Mehta, Advocate for the appellants.Shri S.R. Divetia, Addl.Public Prosecutor for the respondent.=================================================================

Coram: A.N. Divecha,J. & H.R. Shelat,J.(5-12-1995)

ORAL JUDGMENT: (Per: H.R. Shelat, J.)

Delivering the judgement on 30th September 1986 inSessions Case No. 63 of 1985, the then learned AdditionalSessions Judge, Panchmahals at Godhra, convicted the appellantsof the offence under Section 302 read with Section 34, IndianPenal Code, and each one was sentenced to life imprisonment,consequent upon which the present appeal has been filed before

2. In short it is the prosecution case that deceased Mavala Agara Rathod and appellants are cousins. With regard to theiragricultural land, deceased had paid the land revenue. Out ofthe total land revenue paid, certain portion of the same was tobe borne by appellants. As certain amounts were paid by deceasedfor and on behalf of appellants so as to satisfy whole of theliability, he was pressing much for realisation of the sum fromappellants, and therefore appellants were annoyed. On 21stFebruary 1985 at 15.00 hours at Kaliyawad village deceaseddemanded the amount he spent for appellants. The appellantslosing the temper took the scythe (dharia) and gave the blows onthe head and shoulder as a result deceased sustained fatalinjuries to which he succumbed. A complaint was then lodged.The police officer commenced the investigation and at theconclusion of the investigation, the chargesheet againstappellants came to be filed before the learned JudicialMagistrate, (First Class) at Limkheda. As the learned JudicialMagistrate, (First Class) was not competent to hear and decidethe case of murder, he committed the case to the Court ofSessions at Godhra. The case then came to be numbered asSessions Case No. 63 of 1985. The then learned Sessions Judgeat Godhra assigned the matter to the then learned AdditionalSessions Judge at Godhra for hearing and disposal in accordancewith law. The learned Additional Sessions Judge then framed thecharge at Exh.2 to which appellants pleaded not guilty andclaimed to be tried. The prosecution then led necessary evidenceand at the conclusion of the hearing considering the rivalsubmissions and evidence on record, the learned Judge below cameto the conclusion that the prosecution, beyond reasonable doubtsucceeded in proving the charge. He therefore held bothappellants guilty and convicted and sentenced aforesaid. It isagainst that order, the present appeal has been preferred beforeus.

3. Mr. Adil Mehta, learned Advocate representing appellantslabouring much submitted that in the instant case appreciation ofevidence made is not at all consistent with the rules of law; itbeing slipshod and perverse, the judgment and order passed by thelower court were required to be disconcerted and set aside. Hethen took us to the evidence of different witnesses and submittedhow the learned Judge was not right in reaching to the particularconclusions against the appellants.

4. We have gone through the evidence on record and we see nojustification to interfere with the judgment and order passed bythe lower Court. Navsingh Agara, whose deposition has beenrecorded at Exh.13 hearing the shouts rushed to the place ofoffence. He could see that his brother Mavala was dead. Hisevidence is not shaken in the cross-examination and whatever he has stated is rightly accepted by the learned Judge whichsupports the case of the prosecution to the extent that Mavalawas injured and because of the injuries he died. Who causedinjuries is not made clear by this witness because he did not seethe incident. The prosecution has therefore examined KajubhaiNavsing at Exh.15. He has without missing any point, narratedthe manner in which the incident happened right from beginning toend. What transpires from his evidence is that because of theland revenue there was dissension between the two; and when thedeceased pressed much for the amount he spent for appellants,they were got annoyed and being in high dudgeon taking scythechased the deceased and gave scythe blows on the head andshoulder which this witness could see remaining at a very shortdistance. Because of the injuries Mavala died. This witness isnot assailed in the cross-examination effectively; on thecontrary, reading the cross-examination it appears that virtuallyappellants accepted the version of this witness. The versions ofthis witness inspire confidence leaving no room to doubt. Thelearned Judge has therefore rightly placed reliance thereon.Another witness, Navsingh Bhimabhai (Exh.16) has also supportedthe case of the prosecution. His house is situated about 40 feetaway from the place of the incident. He was in his house, heheard shouts and could see the incident. He went out and by thetime he reached to the place of incident, appellants had runaway. Mavala was lying in wounded condition. Mr. Adil Mehta,learned Advocate representing appellants contended that theevidence of this witness was highly doubtful because he could nothave seen the incident as the crop of the height of about 6 to 7feet was standing in the field. The contention is misconceivedbecause the panchnama on record shows that tur (a kind of pulse)crop was standing in the field, the height of which can never beordinarily more than 2 1/2 feet. One would therefore be able tosee from a distance of 40 feet. Nothing has been suggested tothe witness that he was not able to see clearly owing to one oranother obstruction. There is nothing on record to doubt hisversions. The lower Court cannot be said to have fallen in errorin placing reliance on the evidence of this witness.

5. One more aspect cannot be lost the sight of. The scythewas seized from appellants whereon bloodstains were found. Whenthe appellants were arrested their clothes were alsobloodstained. The clothes and scythe were sent to the ChemicalAnalyzer. The Chemical Analyzer found that the blood group ofthe bloodstain on the muddamal sent was 'A'. It may be mentionedthat blood group of the deceased was also 'A'. On the strengthof this blood group, the learned Judge has rightly connectedappellants with the charge levelled against them. There isnothing on record going to show that appellants were injured andtheir blood group was also 'A'. Under the circumstances, we seeno justification to interfere with the judgment and order passedby the lower Court. The appreciation of the evidence made is quite in consonance with law. On no other count, moresubmissions were made before us. In view of the matter, thejudgment and order passed by the lower Court are required to bemaintained. The appeal is devoid of merits and must fail. Inthe result, the appeal is hereby dismissed and judgment and orderof conviction and sentence passed by the lower Court aremaintained.

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