CR.A/603/1987 of KARSANBHAI HIRABHAI TADVI Vs STATE O F GUJ on 3 July 1995

1. Whether Reporters of Local Papers may beallowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether their Lordships wish to see the faircopy of judgment ?

4. Whether this case involves a substantialquestion of law as to the interpretation ofthe Constitution of India, 1950 or any ordermade thereunder ?

5. Whether it is to be circulated to the Civil Judge ?

Karsanbhai Hirabhai Tadavi...................Appellant ���Versus State of Gujarat............................Respondent Mr.H.M.Chinoy, Advocvate ( Amicus Curiae) for theappellant.

Mr. J.A.Shelat, Addl.PP for

��CORAM:B.C.PATEL & K.R.VYAS,JJ

���10TH JULY,1995

ORAL JUDGMENT: (PER: K.R.VYAS,J)

The present appeal arises out of the judgment and order dated 23rdJuly, 1987 passed by the learned Additional Sessions Judge, Bharuch , Camp atRajpipla in Sessions Case No.78/86 convicting the appellant for the offence ofcausing murder of Ganpat Jetha by inflicting an axe blow on his head,punishable under section 302 of the Indian Penal Code and sentencing him tosuffer R.I. for life.

It is the case of the prosecution that the marriage of the brother'ssister of the deceased Ganpat was arranged on 6-5-86 and as the appellant wasa headstrong person; had given knife blow to one Ramesh Dahya on the last Holifestival, he was expelled from the community and, therefore, was not invitedby the deceased for the dinner in the marriage. It appears that there weresome exchange of words between the deceased and the appellant on this countprior to the incident. On 5-5-86 at about 2.30 a.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased was.m. when the deceased wa ( PW 4 ) the wife of the

( PW 4 ) the wife of the

deceased was sitting near the cot of the deceased as Mahendra, her grand son,was passing tools, she saw the appellant coming with an axe. She shouted forhelp. However, the appellant inflicted an axe blow on the head of herhusband. The appellant after causing injury immediately ran away leaving theaxe there as he could not remove it from the head of the deceased . Onhearing the shouts, her son Vikram ( PW 5 ) with his wife Savita came out fromtheir room. Ramila told them that the appellant had caused injury to thedeceased. Vithalbhai ( PW 3 ), the uncle-in-law of Ramila was called, wholater on filed the complaint ( Ex.8 ) with the Vavdi Outpost. Mr. R.A.Patel,PSI, Rajpipla Police Station, on the basis of the complaint, registered theoffence under section 302 of the IPC and started investigation. Afterrecording the statements, preparing the relevant Panchnamas, sending the deadbody for post-mortem , collecting the muddamal axe from the scene of offencepot-mortem , collecting the muddamal axe from the scene of offencepost-mortem ,ollecting the muddamal axe from the scene of offencepost-mortem , collecting te muddamal axe from the scene of offencepost-mortem , collecting the muddamalxe from the scene of offencepost-mortem , collecting the muddamal axe from thescene of offencepost-mortem , collecting the muddamal axe from the scene of ofencepost-mortem , collecting the muddamal axe from the scene of offencepost-motem , collecting the muddamal axe from the scene of offencepost-mortem , colleting the muddamal axe from the scene of offencepost-mortem , collecting the mudamal axe from the scene of offencepost-mortem , collecting the muddamal axe fom the scene of offencepost-mortem , collecting the muddamal axe from the scenof offencepost-mortem , collecting the muddamal axe from the scene of offenceost-mortem , collecting the muddamal axe from the scene of offencepost-mortemcolle les and sending them for chemical analysis, on the basis of theprima facie case against the appellant, he chargesheeted the appellant.

The learned Additional Sessions Judge, on the basis of the evidencecollected against the appellant found the appellant guilty of committingmurder of deceased Ganpat and convicted him under section 302 IPC and, asstated above, sentenced him to suffer R.I. for life. Hence the appellant haspreferred the present appeal.

Mr.H.M.Chinoy, learned Advocate ( appointed as amicus curiae ) for theappellant has taken us through the evidence of all the material witnesses. Hesubmitted that no reliance can be placed on the sole testimony of eye-witnessBai Ramila ( PW 4 ). He further submitted that Bai Ramila's evidence does notget any corroboration from the evidence of the other witnesses, particularlyregarding the finding of the muddamal axe. Mr. Chinoy finally submitted thatconsidering the fact that there was a delay in filing the complaint by aboutngthe fact that there was a delay in filing the complaint by aboutng the fact tht there was a delay in filing the complaint by aboutng the fact that there wasa delay in filing the complaint by aboutng the fact that there was a delay iniling the complaint by aboutng the fact that there was a delay in filing the c mplaint by aboutng the fact that there was a delay in filing the complaint byboutng the fact that there was a delay in filing the complaint by aboutng theact that there was a delay in filing the complaint by aboutng the fact that thre was a delay in filing the complaint by aboutng the fact that there was a deay in filing the complaint by aboutng the fact that there was a delay in filinthe complaint by aboutng the fact that there was a delay in filing the complant by aboutng the fact that there was a delay in filing the complaint by aboutg the fact that there was a delay in filing the complaint by aboutng the facthat t reliance can be placed on the evidence of the prosecutionwitnesses.

In the instant case, the prosecution has mainly relied on the evidenceof Bai Ramila (PW 4) the wife of the deceased Ganpat. Regarding the cause ofthe incident, she stated in her evidence that the appellant is a headstrongand a quarrelsome person. He inflicted a knife blow on one Ramesh Dahya onthe last Holi festival and, therefore, the Tadvi community people expelled himfrom the community. Therefore, her husband had, in fact, specifically toldthe appellant not to attend the marriage dinner of the daughter of his brotherAmbalal and in that connection there was also hot exchange of words betweenthem before about 4 or 5 days. Since the appellant was not invited to attendthe marriage function, he was bearing a grudge against the deceased.Regarding the incident, she stated that her husband was lying on the cotoutside the house and she was sitting just by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her grandjust by his right side when her gra lamp was lightening in the house.

In the Maholla there was an electric pole with the electric light on. Theappellant came with an axe and inflicted a blow on the head of the deceased.She cried for help and therefore the appellant ran away leaving the axealready pierced in the head of the deceased. On hearing the shouts, her sonVikram and his wife Savita came. She thereafter had gone to inform Vithalbhaiwho came with her at the scene of offence. Nothing is taken out in hercross-examination and she has remained consistent in her version deposed inher examination-in-chief. There is, therefore, no reason for us to discardher testimony. She is the wife of the deceased and her presence at the sceneof offence was obvious. She was sitting outside her house just by the side ofthe cot on which her husband was sleeping and her grand son was answeringnatural call. The said fact is also found in the Panchnama of the scene ofoat the complainant Vithalbhai (PW 3), except on certain minor points.

the complainant Vithalbhai (PW 3), except on certain minor points.

Bai Ramila (PW 4) in her evidence has stated that the axe was lyingpierced in the head of her husbande while Vithalbhai in his evidence hasstated that he saw the axe pierced in the head whereas it is not so stated inthe complaint. Vikram (PW 5 ) in his evidence has stated that the axe waslying below the cot of his father . Now this discrepancy in the versions ofthese witnesses about the lying of the axe is too trifle a thing which doesnot affect the oral testimony of the witnesses. As far as the broad facts ofthe incident are concerned, the evidence of the witnesses corroborates eachother. In any case, this is not a circumstance which would totally destroythe prosecution case.

Mr.Chinoy, learned Advocate for the appellant, made a grievance thateven though the incident in question happened at about 2.30 a.m., Vithalbhai(PW 3) lodged the complaint with Vavdi Outpost at 8.00 a.m. He submitted thplint with Vavdi Outpost at 8.00 a.m. He submitted thplaint with Vavdi Outpostt 8.00 a.m. He submitted thplaint with Vavdi Outpost at 8.00 a.m. He submittd thplaint with Vavdi Outpost at 8.00 a.m. He submitted thplaint with Vavdi Otpost at 8.00 a.m. He submitted thplaint with Vavdi Outpost at 8.00 a.m. Heubmitted thplaint with Vavdi Outpost at 8.00 a.m. He submitted thplaint withavdi Outpost at 8.00 a.m. He submitted thplaint with Vavdi Outpost at 8.00 a.. He submitted thplaint with Vavdi Outpost at 8.00 a.m. He submitted thplainwith Vavdi Outpost at 8.00 a.m. He submitted thplaint with Vavdi Outpost at.00 a.m. He submitted thplaint with Vavdi Outpost at 8.00 a.m. He submittedhplaint with Vavdi Outpost at 8.00 a.m. He submitted thplaint with Vavdi Outpst at 8.00 a.m. He submitted thplaint with Vavdi Outpost at 8.00 a.m. He subitted thplaint with Vavdi Outpost at 8.00 a.m. He submitted thplaint with Vavi Outpost at 8.00 n fter due deliberations with other ten to fifteen persons and, therefore, the story put forward by the prosecution is notbelievable. We are not impressed by this submission for the simple reasonthat the incident happened at about 2.30 a.m. and it was but natural that theprosecution witnesses would try to stay with the members of the deceased as 2.30 a.m. being odd hours one would not like to rush to the police stationand instead would prefer to wait till the morning. This is particularly withreference to the Adivasi community the prosecution witnesses belong to.Furthermore, Vavdi Outpost is situated at a distance of about 3 kilometersfrom the scene of offence. These persons had no vehicle. Therefore, theconduct of the complainant in lodging the complaint immediately in the morningis but natural. We are, therefore, of the opinion that there was no delay onthe part of the complainant in lodging the complaint. The ft marriage of the brother's daughter of the deceased was arranged on 6-5-86,many persons might have fathered and, therefore, if the issue was discussedwith them and there was talk regarding the incident with those persons, itcannot be called a deliberation on the part of the prosecution witnessesbefore lodging the complaint. As stated above, the entire case rests on thesole testimony of Bai Ramila and her evidence is truthful, natural and suffersfrom no infirmity. We are, therefore, of the opinion that the learnedAdditional Sessions Judge was perfectly justified in placing reliance on herevidence and convicting the appellant.

Since we are in total agreement with the reasoning of the learnedAdditional Sessions Judge, and as we do not find any merit in this appeal, itfails and is dismissed.

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MR.JUSTICE B.C.PATEL