SANJAY GULAB SOLANKI vs STATE OF GUJARAT

This appeal is filed by the original accused who challenged the judgement dated 29.03.2012 rendered by the Additional Sessions Judge, Rajkot in Sessions Case No. 192 of 2009.

Briefly stated, the prosecution version was that accused Sanjay Solanki was recently married to one Kajal. Accused, however, suspected his wife of having illicit relations with one Popatbhai. As a result, at about 09.15 at night of 13.08.2009, the accused assaulted his wife with a knife giving multiple blows causing serious injuries. At that time, Kajal?s young cousin sister Bhumika was also present. After the assault, accused ran away from the place leaving the knife inside the body of the wife. Kajal was shifted to a hospital where she died about 7 days later. A charge was therefore framed under sections 307, 302 and 188 of the Indian Penal Code. The prosecution evidence against accused revolves around the deposition of child witness Bhumika @ Dhingu, P.W. 11 and the dying declaration of Kajal, Ex. 50 recorded by Ramnikbhai Vachhani P.W. 14, Ex. 49, the Executive Magistrate. The prosecution would also rely on the history recorded by Dr. Altafbhai Osmanbhai Dal, P.W. 13, Ex. 43 who had first treated Kajal at Rajkot Civil hospital. According to him, Kajal herself had given the history of being assaulted with knife by her husband.

We may record the gist of the evidence. Kumar Vinodbhai Solanki, P.W. 10, Ex. 31, the brother of the deceased Kajal was also the first informant. He deposed that Kajal had got married to the accused about a year back. On the date of the incident, he received a phone call from his uncle informing him that Kajal was stabbed with a knife by Sanjay and she was in government hospital. He, therefore, rushed to the hospital along with other relatives where upon asking his cousin sister Bhumi, he learnt that Sanjay had stabbed Kajal with knife near Prem Mandir about 5 to 6 times. When Kajal ran across the road, the accused held the knife against the throat of Bhumi forcing her to come back and stabbed her a few times more. According to the witness, the reason for the assault was that the accused suspected Kajal of having an affair with one Popatbhai with whom previously talks of her engagement were going on. His complaint was registered at the Civil hospital itself which was produced at Ex. 32.

3.1 In the cross-examination, he agreed to the suggestion that his mother was involved in several criminal cases for which she was also once detained under PASA. In the police statement, he had not referred to the accused holding a knife on the throat of Bhumi to call back Kajal. He denied that Kajal was in fact assaulted by Popatbhai and his friends since Popatbhai was interested in marrying Kajal which did not materialize.

Bhumika @ Dhingu, P.W. 11, Ex. 34 was aged about 6 years at the time of the incident. After putting her general questions to ascertain her ability to comprehend and give answers to the questions, the learned judge proceeded to record her deposition in which she stated that Kajal was her elder sister who had been killed by Sanjay. She identified Sanjay before the court. She elaborated that at the time of the incident, she and her sister Kajal had gone to a fair with the accused. After taking refreshments at the fair, the accused took them to a deserted place where he slapped Kajal couple of times and then took out a knife and stabbed her in the stomach and in the eye. When the knife did not come out from the eye, the accused ran away.

4.1 In the cross-examination, she stated that she did not know that her sister had died but knew that she was assaulted. She denied that she was not present when the incident took place or that it was not the accused who had given the knife blows to Kajal.

In seriously injured condition, Kajal was rushed to the Rajkot Civil hospital where she was first treated by Dr. Altafbhai Osmanbhai Dal, P.W. 13, Ex. 43. In the case papers, Ex. 45, he had recorded as many as 12 incise wounds on the entire body as under:

(1) Stab injury over lt. eye ball c stab injury eye ball (knife inside lt. eye ball)

(2) Incised cut wound over Rt. side abdomen 2" lat. to umbillicus c Intestine are come out cavity

(3) Incised cut wound over lt. Forearm lat. aspect oblique

(4) Incised cut wound over lt. Temporal Rg. 3 cm x 1 cm x muscle deep c other incised cut wound over ant. aspect of lt. Thigh one oblique & one transverse

(6) Incised cut wound over chest Transverse below breast 2 cm x 1 cm, muscle deep

(7) Incised cut wound over lt side chest above the breast 2 cm x 1 cm x muscle deep

(8) Incised cut wound over lt. Thigh medial aspect about 6" x 3" x muscle deep.

(9) Incised cut wound over lt. Hand 3 cm x 1 cm x muscle deep

(10) Incised cut wound over lt. side of abdomen 4 cm x 2 cm x cavity deep

(11) Incised cut wound over Rt. forearm oblique direction 5 cm x 2 cm x muscle deep

(12) Incised cut wound over lt. forearm c elbow joint 5 cm x 2 cm x muscle deep

5.1 From the said notings, it can be gathered that as suggested by the child witness, the knife was still inside the eye when Kajal was taken to the hospital. In this very document, he had recorded the history of assault as injury by husband Sanjaybhai Gulabbhai Solanki by knife half an hour back. It was also recorded that the history was given by the patient herself. In his deposition also, this doctor had pointed out that when the patient was brought to him at 09.59 at night, she had given the history which he had recorded.

5.2 In the cross-examination, the defence did not seriously challenge the history recorded by the doctor or that such history was not given by the girl herself.

Ramnikbhai Vachhani, P.W. 14, Ex. 49 was the Executive Magistrate who recorded the dying declaration which he produced at Ex. 50. He had gone to the hospital at 11.15 am on 14.08.2009 with a police yadi. He had recorded the dying declaration in presence of the doctor. In the said dying declaration, the girl had given her full name, address, age, educational and family background. After these many details, she was asked about the incident to which she stated that the previous day i.e. on 13.08.2009, in the evening between 7 and 8, her husband had taken her and her cousin sister Bhumika in an autorickshaw in the pretext of going to Big Bazaar. They all got down at Prem Mandir on the University Road where her husband had given several blows with a knife on her body. She had fallen down on the ground losing consciousness. She was brought to the hospital in an ambulance but did not know who brought her there. She also stated that Sanjay ran away after giving the last blow in the eye and leaving the knife inside. She gave two reasons for the assault. One that she did not agree to purchasing clothes for Sanjay which led to a quarrel between them and the other reason was that her husband suspected her character.

6.1 In the cross-examination, this witness was questioned on the ability of the injured to give proper replies and the reason why though the girl was literate instead of her signature her thumb impression was obtained.

Umeshgiri Bhavgiri, P.W. 15, Ex. 53 was the police constable at the Gandhigram police station at the relevant time. He deposed that at the time of the incident, he was posted as a mobile in-charge. From the control room, he received a message that one lady is lying profusely bleeding near Prem Mandir. He, therefore, rushed to the place and found that the ambulance had arrived. He ensured shifting of the profusely bleeding woman to the hospital. He referred to the presence of a young girl with her.

Dr. Hetalkumar Chhaganbhai Kiyatha, P.W. 12, Ex. 35 was a Medical Officer at Rajkot hospital who had carried out the postmortem. He produced the postmortem notes at Ex. 36. Since we have already noted the stab injuries recorded by Dr. Altafbhai Dal, P.W. 13 in the medical case papers, Ex. 45 and since Kajal had died nearly 7 days later during which she was given medical treatment which included performance of surgery, it is not necessary to refer the injuries noted by the doctors in the postmortem note. According to the witness, the cause of death was due to cardio-respiratory failure on account of multiple injuries and its complications.

Dr. Narendrakumar Patel, P.W. 1, Ex. 10 was a Medical Officer at Rajkot government hospital. He had examined the accused on 18.08.2009 and recorded the minor wound of 1 cm on his finger which had already healed. The prosecution would suggest that this indicated that the accused himself may have got such cut during the assault.

Mukundsinh Balvantsinh Raj, P.W. 22, Ex. 82 was the Investigating Officer who gave detailed account of the investigation carried out by him during the course of the investigation. The various articles collected during the course of the investigation were sent for forensic analysis. The FSL report read with the Serological report would show that both the accused as well as the deceased had blood group ?O?. It was the blood of this group which was found from the clothes of the deceased and also of the accused and the knife.

This in the nutshell is the evidence on record. On the basis of such evidence, the learned trial judge convicted the accused for offences under sections 302 and 188 of the Indian Penal Code and sentenced him to life imprisonment. Fine was also imposed.

As noted, principally the evidence against the accused comprises of the deposition of child witness Bhumika, P.W. 11 and the two dying declarations, one recorded by the Executive Magistrate and the other recorded by Dr. Altafbhai Osmanbhai Dal, P.W. 13 as history given by the patient herself. We may refer to these materials in some detail.

Bhumika, P.W. 11, Ex. 34 of course was aged barely about 6 years when the incident took place. Her evidence, therefore, will have to be scrutinized very carefully. One would also seek corroboration, if available, from the record. Despite her tender age, the learned Sessions Judge found her capable of understanding common questions and giving proper answers. After ascertaining her ability in this respect, she was asked about the actual incident. She pointed out that she had gone out with the accused and his wife who happened to be her cousin sister. When they were at an isolated place, the accused stabbed Kajal several times. Final blow was given in the eye. When the knife did not come out, the accused ran away. The witness stood the test of crossexamination. She clarified that she did not know that Kajal had died but knew that she was stabbed. We are conscious that the first informant Kumar Vinodbhai, P.W. 10 had given a version in his deposition that Kajal was once stabbed a few times and when she tried to run away, the accused held the knife on the throat of Bhumi and forced her to come back. This according to Kumar was told to him by Bhumi at the hospital. However, the witness himself in the crossexamination agreed that he had not stated this in his police statement. Bhumika herself had not given any such version either in the police statement or before the court. This exaggeration by the first informant would not taint the evidence of Bhumika, the child witness. Bhumika?s presence is not seriously disputed. Umeshgiri Bhavgiri, P.W. 15, the police constable who had rushed at the scene of incidence first and helped Kajal being shifted to the hospital in an ambulance had also referred to the presence of a young girl with Kajal. We have no reason to doubt, dispute or disbelieve the version of this witness. If any needed, there was ample corroboration on record.

Dr. Altafbhai Osmanbhai Dal, P.W. 13 had the occasion to first treat Kajal at the Civil hospital, Rajkot. In the case papers, he had recorded the history of being assaulted by the husband with knife. He had noted down that the history was given by Kajal herself. Interestingly, in such medical papers he had written down the name of the husband as Sanjay Gulabbhai Solanki. Kajal was taken in an ambulance even before her relatives could arrive. Recording of the full name of the husband of Kajal, therefore, in the history lends credence to the doctor?s assertion that such history was given by Kajal herself.

In addition to this oral dying declaration made by Kajal to the doctor, we have a detailed written dying declaration recorded by the Executive Magistrate. In the dying declaration at Ex. 50, Kajal had stated that she was stabbed several times with a knife by her husband who ran away leaving the knife in the eye and in such condition Dr. Altaf Dal had also found the patient when she was brought to him at the Civil hospital. Kajal had also in such dying declaration given her full name, address, age, educational and family background suggesting that she was coherent and was able to give proper answers. The dying declaration was recorded in the presence of a doctor.

The evidence in the form of deposition of Bhumika, P.W. 11 and the dying declaration is duly corroborated by the medical evidence. The nature of injuries as recorded by Dr. Altaf Dal in the case papers Ex. 45 and the postmortem note, Ex. 36 match with the prosecution case of accused having stabbed Kajal several times all over the body and therefore several stab injuries including one in the eye from where the knife itself was found. We have no hesitation about the involvement of accused in causing such injuries. The accused was arrested nearly five days later and offered no explanation for his disappearance though his wife was critically ill. His this conduct would also be a relevant factor. The alternative contention that the accused did not intend to cause death and his conviction should therefore be converted into one under section 304 of the Indian Penal Code also cannot be accepted. Looking to the nature of injuries, the weapon used and the fact that the injuries were caused on vulnerable and vital part of the body, there is not escape from the fact that the accused had caused injuries with the intention of causing death. His conviction and sentence is therefore upheld.

Criminal appeal is accordingly dismissed. R & P to be transferred back to the trial court forthwith.