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Gujarat High Court · body

2009 DIGILAW 490 (GUJ)

Vanrajsinh Vajesingh Gohil v. State of Gujarat

2009-07-22

H.B.ANTANI, J.R.VORA

body2009
Judgment H.B. Antani, J.—Instant appeal is preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (“the Code” for short) against judgment and order dated 28.10.2002 passed by the learned Sessions Judge, Vadodara in Sessions Case No. 35 of 2002 convicting the appellant for the offence punishable under Section 302 of I.P.C. for life imprisonment and fine of Rs. 1000/-, in default, R.I. for 6 months and under Section 324 of I.P.C., R.I. for one year and fine of Rs. 500/, in default, R.I. for three months. 2. The short facts giving rise to the present appeal are as under. 3. On 11.08.2001, the appellant, original accused No. 1 along with original accused No. 2, had a quarrel with deceased-Bhailalbhai Somabhai with regard to right of way and the appellant, who was armed with Dharia, assaulted deceased-Bhailalbhai Somabhai and caused fatal injuries to him, while original accused No. 2 aided and abetted the present appellant in the commission of offence. The complaint was given by Vanrajbhai Somabhai Bhalia on 11.08.2001 to the Savli police station. The investigation was conducted by the Investigating Officer and he visited the place of incident and prepared panchnama in presence of panch-witnesses. The clothes put on by deceased-Bhailalbhai were seized in the presence of panch-witnesses and panchnama with regard to the same was prepared. Panchnama of recovery of muddamal article used in the commission of offence was prepared in presence of the panch-witnesses. The muddamal recovered was sent to F.S.L. for the purpose of obtaining detailed analysis. The deceased, who sustained injuries in the scuffle, was taken to the hospital for giving immediate treatment. During the course of treatment, Bhailalbhai Somabhai expired and the postmortem on dead body of the deceased was carried out. The investigating officer recorded the statements of witnesses from the neighbourhood. The appellant was arrested during the course of investigation along with the co-accused and produced before the learned Judicial Magistrate First Class, who made over the case to the Sessions Court under Section 209 of the Code as the case was exclusively triable by the Sessions Court. The learned Sessions Judge framed charge vide Exh.5 against the appellant and original accused No. 2 for the offence punishable under Sections 302 read with Section 34 326,324,505 read with Sections 114 of I.P.C. as well as under Section 135(2) of the Bombay Police Act. The learned Sessions Judge framed charge vide Exh.5 against the appellant and original accused No. 2 for the offence punishable under Sections 302 read with Section 34 326,324,505 read with Sections 114 of I.P.C. as well as under Section 135(2) of the Bombay Police Act. The appellant pleaded not guilty to the charge levelled against him and, therefore, the matter was set down for full-fledged trial by the learned Sessions Judge. 4. The prosecution has examined following witnesses with a view to bring home the charge levelled against the appellant and original accused No. 2. P.W. Name of witness Exh. 1. Dr. Girish Ambalal 9 2. Dr. Shital Vasantlal Mistri 12 3. Dr. Kishor Pramodrai Desai 15 4. Vanrajbhai Somabhai 19 5. Moghiben Somabhai 22 6. Fogatbhai Ghanabhai Vankar 32 7. Bachubhai Bhagatbhai 34 8. Andarsinh Motibhai 38 9. Jayantibhai Dalsukhbhai 39 10. Jayantilal Ambalal Patel 40 5. The prosecution has produced following documentary evidence in order to prove involvement of the appellant in the commission of offence. Sr. No. Nature of document Exh. 1. Complaint given by Vanrajbhai 20 2. Panchnama of place of incident 23 3. Inquest panchnama 33 4. Panchnama with regard to clothes put on by deceased – Bhailalbhai 24 5. Panchnama of discovery of weapon used in the commission of offence 35 6. Yadi written to the medical officer to give treatment to Bhailalbhai and Moghiben 25 7. Certificate of injuries sustained by Bhailalbhai 10 8. Certificate of injuries sustained by Moghiben 11 9. Certificate issued by Dr.Shital 13 10. Yadi sent to carry out P.M. 17 Sr. No. Nature of document Exh. 11. P.M. note 16 12. Receipt given to the relatives with regard to handing over the dead body 21 13. Note which was sent to F.S.L. 26 14. Receipt given by F.S.L. in respect of Muddamal articles 27 15. Letter written by F.S.L. 28 16. Map of place of incident 30 6. The learned Judge, at the conclusion of the trial, recorded further statement of the appellant under Section 313 of the Code and the appellant denied his involvement in the commission of offence. 7. The learned Judge, on the strength of the oral and documentary evidence, held that the prosecution has proved that the incident took place on 11.08.2001 at about 12:00 pm. 7. The learned Judge, on the strength of the oral and documentary evidence, held that the prosecution has proved that the incident took place on 11.08.2001 at about 12:00 pm. wherein, the appellant, who was armed with dhariya, assaulted the deceased with a view to cause serious injuries which resulted in death of deceased. However, the learned Judge held that original accused No. 2 did not commit the offence alleged against her and, therefore, he acquitted original accused No. 2 for the offence punishable under Section 302 read with Section 34 as well as Section 326 read with Section 34 and Section 504 of I.P.C. as well as under Section 135 of the Bombay Police Act. The learned Judge considered the deposition adduced by PW.4-Vanrajbhai at Exh.19, who gave complaint to Savli police station with regard to incident which took place on 11.08.2001. The deposition adduced by Vanrajbhai makes it clear that on 11.08.2001, when the deceased was proceeding near the field of the appellant, the appellant had an altercation with him with regard to right of way and the appellant, who was armed with Dharia, gave fatal blows to the deceased. He identified the clothes put on by the deceased and shown to him during the course of deposition as well as the weapon used in the commission of offence. The deposition adduced by brother of deceased, namely, Vanrajbhai, vide Exh.19, gets necessary corroboration from the deposition of P.W. 5-Moghiben Somabhai vide Exh.22, the sister of deceased - Bhailalbhai who also sustained minor injuries in the scuffle which took place on 11.08.2001. Moghiben has deposed in her testimony that on 11.08.2001 at about 12:00 pm., the incident took place when she was going towards her residence. She has deposed that the quarrel took place between the deceased and the appellant with regard to right of way. The appellant, who, at the material point of time, was armed with dharia, committed assault on the deceased. Even Moghiben sustained minor injuries in the scuffle. She had identified the muddamal article-dharia and the clothes put on by her deceased brother during the course of deposition. The depositions of P.W. 1-Dr. Girish Ambalal vide Exh.9, who gave initial treatment to the deceased and P.W. 2 - Dr. Shital vide Exh.12, who gave treatment to the deceased from 11.08.2001 to 18.08.2001, corroborate the deposition adduced by Vanrajbhai and Moghiben. The depositions of P.W. 1-Dr. Girish Ambalal vide Exh.9, who gave initial treatment to the deceased and P.W. 2 - Dr. Shital vide Exh.12, who gave treatment to the deceased from 11.08.2001 to 18.08.2001, corroborate the deposition adduced by Vanrajbhai and Moghiben. P.W. 3-Dr.Kishor Pramodrai at Exh.15 carried out P.M. on the dead body of Bhailalbhai. Thus, the learned Judge held that the prosecution has, on the basis of the depositions adduced by Vanrajbhai, Moghiben, Dr. Girish Ambalal and Dr.Shital Mistri, established involvement of the appellant in the commission of offence punishable under Section 302 of I.P.C. The oral depositions given by witnesses get necessary corroboration from the panchnama of the place of incident vide Exh.23, inquest panchnama vide Exh.33, panchnama of the clothes put on by the deceased vide Exh.24, panchnama of recovery of weapon which was used in the commission of offence vide Exh.35 and the medical certificates issued to deceased - Bhailalbhai vide Exh.10 and Moghiben vide Exh.11. Thus, the learned Judge, on the basis of oral depositions and documentary evidence, convicted the appellant for the offence punishable under Sections 302 and 324 of IPC and imposed sentence of life imprisonment and fine of Rs. 1000/-, in default, R.I. for 6 months and R.I. for 1 year and fine of Rs. 500/-, in default, R.I. for 3 months respectfully. 8. Learned Advocate Mr. G.I. Desai, representing the appellant, submitted that the prosecution has not established the involvement of the appellant in the commission of offence. He submitted that the appellant, on the date of incident, i.e., 11.08.2001, was working in the factory and, therefore, he was not at all involved in the incident. On perusal of the deposition adduced by the prosecution and the documentary evidence, it becomes clear that the appellant was not present on the date of incident and he has been falsely implicated in the commission of offence punishable under Sections 302 and 324 of I.P.C. The learned Advocate submitted that even if the story of the prosecution is believed at its face value then the death of Bhailalbhai was caused due to negligence of the doctor and this fact is reflected in the depositions adduced by P.W. 1-Dr. Girish Ambalal vide Exh.9 and P.W. 2-Dr.Shital vide Exh.12. Dr. Girish gave initial treatment to the deceased in the S.S.G. hospital on 11.08.2001. Girish Ambalal vide Exh.9 and P.W. 2-Dr.Shital vide Exh.12. Dr. Girish gave initial treatment to the deceased in the S.S.G. hospital on 11.08.2001. Thereafter, the deceased was shifted to Maruti Surgical and Trauma hospital and there he was admitted as an indoor patient from 11.08.2001 to 18.08.2001. During the aforesaid period, no proper treatment was given to the deceased, as a result of which, he succumbed to the injuries. The learned advocate submitted that the prosecution has examined 10 witnesses. The deposition adduced by P.W. 4-Vanrajbhai vide Exh.19 and Moghiben Somabhai vide Exh.22 cannot be said to be trustworthy. Both the witnesses are related to the deceased and, therefore, their depositions are required to be scrutinized with proper care and caution. The prosecution has not examined other independent witnesses in order to prove inextricable involvement of the appellant in the commission of offence and as the necessary corroboration to the depositions adduced by Vanrajbhai and Moghiben vide Exhs.19 and 22 is not forthcoming, the involvement of the appellant in the commission of crime cannot be said to have been established by the prosecution beyond all reasonable doubt. The learned advocate submitted that even if it is believed that the appellant was armed with dharia and committed assault on deceased - Bhailalbhai, there was no intention on the part of the appellant to commit murder of the deceased and, therefore, the provisions of Section 302 of I.P.C. cannot be invoked in the facts and circumstances of the case. It was urged by the learned advocate that as there was no intention on the part of the appellant in committing gruesome murder of deceased - Bhailalbhai, the provisions contained either in Section 304 Part I or II can be attracted and he be awarded the punishment which he has already undergone till today. Thus, the learned advocate for the appellant submitted that the appeal preferred by the appellant deserves to be allowed and the order passed by the learned Judge is required to be quashed and set aside and the appellant be acquitted forthwith for the offence punishable under Sections 302 and 324 of I.P.C. 9. Learned A.P.P. Ms. Chetna M. Shah, representing the respondent-State, submitted that the prosecution has examined 10 witnesses with a view to prove the involvement of the appellant in the commission of offence. The incident in question took place on 11.08.2001. Learned A.P.P. Ms. Chetna M. Shah, representing the respondent-State, submitted that the prosecution has examined 10 witnesses with a view to prove the involvement of the appellant in the commission of offence. The incident in question took place on 11.08.2001. The appellant quarreled with deceased - Bhailalbhai with regard to right of way and, during the quarrel, he got infuriated and gave fatal blows to the deceased with dharia. The deceased, during the course of treatment, succumbed to the injuries. The prosecution has, by examining P.W. 4-Vanrajbhai vide Exh.19 and P.W. 5-Moghiben vide Exh.22 established, beyond all reasonable doubt, the involvement of the appellant in the commission of offence. The depositions adduced by these witnesses are corroborated by the depositions given by P.W. 1 - Dr.Girish Ambalal vide Exh.9 and P.W. 2 - Dr. Shital vide Exh.12. The panchnama of the place of incident at Exh.23, inquest panchnama at Exh.33, panchnama of the clothes put on by the deceased at Exh.24, panchnama of the recovery of dharia vide Exh.35, injury certificate given to the deceased and Moghiben vide Exhs.10 and 11 respectively and the P.M. report vide Exh.16 provide necessary corroboration indicating involvement of the appellant in the commission of crime. The report given by F.S.L. also corroborates the prosecution story about the involvement of the appellant in the commission of offence. Thus, the learned A.P.P. submitted that considering the overwhelming evidence against the appellant, the prosecution has successfully established each and every link connecting the appellant in the commission of crime. The learned Judge has rightly considered the evidence on record of the case and convicted the appellant for the offence punishable under Sections 302 and 324 of IPC and, therefore, the judgment and order passed by the learned Sessions Judge is required to be upheld and the appeal deserves to be dismissed. 10. We have heard learned advocate Mr. G.I. Desai for the appellant and learned A.P.P. Ms. Chetna M. Shah for the respondent-State at length and in great detail. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record of the case. 11. We have reappreicated the entire gamut of oral deposition and documentary evidence adduced by the prosecution in order to prove inextricable involvement of the appellant in the commission of offence. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record of the case. 11. We have reappreicated the entire gamut of oral deposition and documentary evidence adduced by the prosecution in order to prove inextricable involvement of the appellant in the commission of offence. We have also perused the reasonings given by the learned Judge while awarding sentence to the appellant under Sections 302 and 324 of I.P.C. 12. As per the prosecution case, the incident in question took place on 11.08.2001 near village Ranipura, Taluka Savli, Distt. Vododara. On the date of incident, deceased-Bhailalbhai Somabhai was proceeding to his residence. He was confronted by the appellant, who had an altercation with the deceased in respect of right of way used by the deceased. The appellant, who was armed with dharia got infuriated and assaulted deceased-Bhailalbhai and caused serious injuries to him. The deceased was initially taken to the S.S.G. hospital for immediate treatment and thereafter, he was taken to private hospital of Dr.Shital. He remained in the hospital of Dr. Shital from 11.08.2001 to 18.08.2001. In both the hospitals, he gave history with regard to assault committed by the appellant in a scuffle which took place on 11.08.2001. The complaint was given by Vanrajbhai - brother of the deceased to Savli police station. The prosecution has examined P.W. 4-Vanarajbhai vide Exh.19. He has deposed in his testimony that the incident took place on 11.08.2001 at about 12:00 pm. When the deceased along with Moghiben was proceeding towards residence, they were confronted by the appellant. He had a quarrel with the deceased with regard to right of way used by him. During the said quarrel, the appellant committed assault on deceased - Bhailalbhai with dharia. The deposition adduced by Vanrajbhai gets necessary corroboration from the deposition of P.W. 5-Moghiben vide Exh.22. Moghiben has reiterated in her deposition as to how the incident took place on 11.08.2001 and the manner in which the assault was committed by the appellant on her brother - Bhailalbhai. The depositions adduced by Vanrajbhai and Moghiben get necessary corroboration from the depositions of P.W. 1-Dr. Girish Ambalal vide Exh.9 and P.W. 2-Dr. Shital vide Exh.12. Both the doctors have narrated the history in their depositions and stated that the patient gave history with regard to assault committed by the appellant on 11.08.2001. The depositions adduced by Vanrajbhai and Moghiben get necessary corroboration from the depositions of P.W. 1-Dr. Girish Ambalal vide Exh.9 and P.W. 2-Dr. Shital vide Exh.12. Both the doctors have narrated the history in their depositions and stated that the patient gave history with regard to assault committed by the appellant on 11.08.2001. The injuries sustained by the deceased have been elaborately narrated by both the witnesses. The deposition adduced by P.W. 8-Andersinh Motibhai vide Exh.38 also makes it clear that the incident took place on 11.08.2001 and he had seen the incident wherein, Bhailalbhai and Moghiben sustained injuries. He had identified the muddamal article - dharia during the course of deposition. The prosecution has also examined panch-witnesses in order to prove corroboration to the prosecution story indicating involvement of the appellant in the commission of offence. We have considered the depositions of P.W. 6 - Fogatbhai Ghanabhai Vankar vide Exh.32, P.W. 7-Bachubhai vide Exh.34 and P.W. 9-Jayantibhai vide Exh.39. These witnesses have admitted the panchnama with regard to recovery of weapon, inquest panchnama as well as panchnama of the place of incident and also deposed that the panchnamas were prepared in their presence. We have also considered the deposition adduced by Jayantilal Ambalal, who carried out investigation. Thus, considering the overall evidence on record of the case and the reasonings given by the learned Judge while convicting the appellant for the offence punishable under Sections 302 and 324 of I.P.C., we are of the view that the prosecution has proved the involvement of the appellant in the commission of offence beyond all reasonable doubt by adducing cogent, convincing and conclusive evidence. 13. It has been strenuously urged by the learned advocate for the appellant that the appellant was not present on the date of incident. But, on perusal of the evidence on record of the case, the involvement and the presence of the appellant has been established by the prosecution in the ghastly murder of deceased-Bhailalbhai and, therefore, the contention raised by the learned advocate has no merit and deserves to be rejected and the same is hereby rejected. But, on perusal of the evidence on record of the case, the involvement and the presence of the appellant has been established by the prosecution in the ghastly murder of deceased-Bhailalbhai and, therefore, the contention raised by the learned advocate has no merit and deserves to be rejected and the same is hereby rejected. It has been urged by the learned advocate for the appellant that there was no intention of the appellant to commit murder of deceased-Bhailalbhai and, therefore, lesser punishment either under Section 304, Part I or II be imposed on the appellant and he be imposed the sentence which he has already undergone. However, considering the entire evidence on record of the case, it is clear that the appellant had an altercation with the deceased with regard to right of way and, during the altercation, he lost temper and caused fatal injuries to the deceased. The injuries were caused on vital part of the body of the deceased which are reflected in the oral depositions as well as documentary evidence on record of the case. 14. In view of the aforesaid evidence, the contention raised by the learned Advocate for the appellant that a lesser punishment be imposed on the appellant is without any merit and the same is hereby rejected. 15. For the foregoing reasons, the appeal is liable to fail and it is hereby dismissed. We hereby confirmed judgment and order dated 28.10.2002 passed by the learned Sessions Judge, Krasnodar convicting the appellant for the offence punishable under Section 302 for life imprisonment and fine of Rs. 1000/-, in default, R.I. for 6 months as well as punishment inflicted under Section 324 for R.I. for one year and fine of Rs. 500/-, in default, R.I. for 3 months. Muddamal article shall be disposed of in terms of the order passed by the learned Sessions Judge.