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2009 DIGILAW 385 (GUJ)

Raysingbhai Shanabhai Punjara v. State of Gujarat

2009-05-14

BANKIM N.MEHTA, BHAGWATI PRASAD

body2009
Judgment Bankim N. Mehta, J.—The appellant - convict has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Sabarkantha Camp at Modasa on 14.8.2003 in Sessions Case No. 115 of 2001 convicting him for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs. 2000/- in default thereof to undergo rigorous imprisonment for 3 months. 2. According to the prosecution case, the lands of the accused and deceased Babubhai Laxmanbhai were adjoining to each other and there was a dispute with regard to right of way between them. On 15.6.2001 at about 10:45 a.m., the accused made assault with knife on Babubhai Laxmanbhai and caused injuries. Injured Babubhai died during the treatment. 3. On the basis of the first information report lodged by Hirabhai Punabhai Pujara, offence was registered and investigation was started. At the end of investigation, charge sheet came to be filed against the accused for the offence punishable under Section 302 of the Indian Penal Code. As the offence was Triable by Sessions Court, the case was committed to the Sessions Court and it was registered as Sessions Case No. 115 of 2001. The learned Additional Sessions Judge framed charge Exhibit 2 for the aforesaid offence against the accused. The accused pleaded not guilty and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under Section 313 of the Code of Criminal Procedure, 1973, stated that in order to grab his land, false case is filed against him. After hearing the learned Additional Public Prosecutor and learned advocate for the accused, the Court convicted the accused. Being aggrieved by the said decision, the accused has preferred this appeal. 4. We have heard learned advocate Ms. Sadhana Sagar for the appellant and learned APP Mr. A.J. Desai at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court. 5. Learned Advocate Ms. Being aggrieved by the said decision, the accused has preferred this appeal. 4. We have heard learned advocate Ms. Sadhana Sagar for the appellant and learned APP Mr. A.J. Desai at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court. 5. Learned Advocate Ms. Sagar has submitted that the alleged incident ensued at a scarcity work where number of persons were present but the prosecution has not examined independent witness and all the witnesses examined are relatives of the deceased, therefore, the learned trial Judge committed error in relying upon their evidence. She has also submitted that if this argument is not accepted then in the alternative, as only one injury was caused to the deceased and the incident occurred on account of quarrel, it cannot be said that there was any intention on the part of the accused to commit murder and therefore, conviction be altered to Section 304 (Part I) of the Indian Penal Code. 6. Learned APP Mr. Desai has submitted that there is no evidence to indicate that there was quarrel prior to the incident and the evidence indicates that the accused made assault without provocation with an intention to cause death of Babubhai. He has also submitted that the accused is also relative to the witnesses and in absence of cogent evidence to indicate that the witnesses examined are not stating the truth, it cannot be said that the witnesses have falsely implicated the accused. He has also submitted that there is no evidence of sudden provocation and therefore, the learned trial Judge was justified in recording conviction under Section 302 of the Indian Penal Code and no interference is warranted in the impugned judgment and the appeal deserves to be dismissed. 7. The evidence of P.W. 1 Hiraji Punaji Exhibit 10 indicates that the accused came from behind and made assault on Babubhai Laxmanbhai with knife. It also indicates that the witness inquired from Babubhai the reason for assault and Babubhai informed him that on account of dispute with regard to way, the accused has made assault with knife. The evidence of this witness also indicates that when the assault was made, Ratnaji Dolaji, Laxmanji Ramaji, Ramaji Gemaji and Ramiben Pratapji were present. This evidence clearly indicates that the accused caused fatal injury with knife to the deceased. 8. The evidence of this witness also indicates that when the assault was made, Ratnaji Dolaji, Laxmanji Ramaji, Ramaji Gemaji and Ramiben Pratapji were present. This evidence clearly indicates that the accused caused fatal injury with knife to the deceased. 8. First information report Exhibit 11 lodged by Hiraji Punaji also indicates that the accused made assault with knife on Babubhai and Ramiben Pratapji, Lakhmanbhai Hamabhai, Ramaji Bhemaji and Ratnaji Dolaji were present at the time of incident. 9. The evidence of P.W. 7 Ramaji Exhibit 23, P.W. 8 Bhemaji Exhibit 24, P.W. 9 Laxmanji Exhibit 25, P.W. 10 Ratnaji Exhibit 26 also support the prosecution case that the accused made assault on Babubhai. The report Exhibit 33 under Section 154 of the Code of Criminal Procedure indicates that the first information report was lodged at 12:50 for the incident ensued at 10-45. Therefore, the first information report was lodged immediately after the incident naming therein the witnesses present at the time of incident. Therefore, the learned trial Judge was justified in relying upon the evidence of these witnesses to connect the accused with the offence. There is nothing to indicate that the witnesses were falsely implicating the accused, as they were related to the deceased. On the contrary, it appears from their evidence that P.W. 9 Laxmanji was the brother of the accused and P.W. 10 Ratnaji was only a relative of the deceased. Therefore, it cannot be said that as the witnesses were relatives to the deceased, they are falsely implicating the accused. 10. The evidence of the P.W. 11 Dr. Manubhai Hirabhai Solanki Exhibit 27, who performed the postmortem, indicates that the internal injuries recorded in column No. 21 of postmortem note are corresponding to the external injury recorded in column No. 17 of the postmortem report and such injury was possible by knife. According to the witnesses, the injuries were sufficient in the ordinary course of nature to cause death. The postmortem report Exhibit 29 indicates the injuries found on the dead body. It also indicates that cause of death was hemorrhagic shock as a result of injury over small bowel (iliam park). This evidence indicates that the injury with knife was caused on the vital organ of the deceased. 11. It is submitted by the learned advocate Ms. The postmortem report Exhibit 29 indicates the injuries found on the dead body. It also indicates that cause of death was hemorrhagic shock as a result of injury over small bowel (iliam park). This evidence indicates that the injury with knife was caused on the vital organ of the deceased. 11. It is submitted by the learned advocate Ms. Sagar that the incident ensued on account of quarrel and there was no intention to commit murder as only one blow was given. She has tried to rely upon the evidence of P.W. 14 Manjulaben Exhibit 37 - wife of deceased Babubhai, wherein she has deposed that prior to the incident, there was quarrel between the accused and the deceased Babubhai. First information report does not indicate the presence of the witness at the time of incident. It appears from the cross-examination of the witness that she was not an eyewitness to the incident. Therefore, it cannot be said that quarrel preceded the incident. Therefore, there is no evidence to indicate that there was provocation instigating the accused to attack the deceased. On the contrary, the evidence indicates that the accused with an intention to commit murder of Babubhai armed with knife attacked him. Therefore, it was an attack with an intention to cause murder of Babubhai. Therefore, submission that the conviction be altered to Section 304 (Part I) of the Indian Penal Code cannot be accepted. 12. In the result, the appeal fails and is accordingly dismissed. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Sabarkantha Camp at Modasa on 14.8.2003 in Sessions Case No. 115 of 2001, is hereby confirmed. 13. In view of dismissal of main appeal, Criminal Misc. Application No. 2583 of 2009 is also dismissed.