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2011 DIGILAW 162 (GUJ)

MANUJI DUNGARJI BHEEL v. STATE OF GUJARAT

2011-03-04

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT (Per : HONOURABLE MR.JUSTICE R.M.CHHAYA) 1. The present appeal arises out of the judgment and order of conviction and sentence rendered in Sessions Case No. 190 of 2002 by the learned Additional Sessions Judge, Court No. 14, Ahmedabad City convicting the appellant ? accused under Section 302 of the I.P. Code sentencing him for life imprisonment vide judgment and order dated 19.05.2003. 2. Brief facts of the case are as under :- 2.1 That the present appellant and deceased Chanduji were residing at Ahmedabad and are real brothers. It is the case of prosecution that on 25.12.2001 at about 09:30 p.m., the accused assaulted the deceased with leg of cradle made out of wood and inflicted injuries on vital part of the body. Because of which, the deceased Chanduji was seriously injured and ultimately, succumbed to such injuries. 2.2 It is further the case of prosecution that on raising shout by Laheraben Keshaji, the next door neighbours ? Rajni Bhimaji and Sunil Jayantibhai Raval came at the place of incident, but the accused ran away from the scene of offence leaving the leg of cradle. Thereafter, Laheraben Keshaji filed the First Information Report with Shahibaug Police Station. The investigating agency investigated the offence under Section 302 of I.P. Code and submitted charge-sheet before the Court of learned Metropolitan Magistrate, Ahmedabad, who in turn, committed the same to the Court of learned City Sessions Judge, as the offences were exclusively triable by the Sessions Court. 2.3 The learned Additional Sessions Judge, Court No. 14, Ahmedabad framed charges at Exh. 2, to which the accused pleaded not guilty and therefore, the learned Additional City Sessions Judge, after recording the evidence and after full-fledged trial, has recorded the conviction vide judgment and order dated 19.05.2003, convicting and sentencing the accused under Section 302 of I.P. Code for life imprisonment. Being aggrieved by the said judgment and order of conviction and sentence, the present appeal is preferred. 3. Heard Shri Harshad K. Patel, learned advocate for the appellant ? accused and Shri D.C. Sejpal, learned APP for the State. 4. Shri Patel has contended that there are no eye-witness to the incident and that the evidence of PW1 ? Laheraben Keshaji is not believable and she cannot be considered to be an eye-witness to the incident. He has further pointed out that PW4 ? accused and Shri D.C. Sejpal, learned APP for the State. 4. Shri Patel has contended that there are no eye-witness to the incident and that the evidence of PW1 ? Laheraben Keshaji is not believable and she cannot be considered to be an eye-witness to the incident. He has further pointed out that PW4 ? Sunil Jayantibhai Raval, who was immediately present on the occurrence of crime, has not supported the case of prosecution. Shri Patel further submitted that there was no motive or intention on the part of the accused to commit the crime and ultimately, they were real brothers and there was no intention on the part of the accused to commit murder. Shri Patel further pointed out that the prosecution has not been able to prove the guilt in the chain of circumstances as well as the chain of circumstances is not complete and there is no corroborative evidence on record to establish the guilt of the accused. Shri Patel further pointed out that looking to the injuries, the same are not serious, but according to Shri Patel, the same is caused only by a single blow and therefore, Shri Patel submits that even though there is no evidence on record and even though the prosecution has failed to prove the charges, the learned Additional Sessions Judge has wrongly convicted the present accused and therefore, prayed for setting aside the conviction by allowing the present appeal. 5. Shri D.C. Sejpal, learned APP for the State opposed this appeal. Shri Sejpal has taken us through the oral evidence of PW1 ? Laheraben Keshaji as well as PW5 ? Shilpaben Kanubhai Yadav, the Medical Officer who performed the postmortem. Shri Sejpal further pointed out that there are multiple injuries on vital part of the body and the same are given by such force that the same has resulted into fracture of both frontal bones and on vital part of body like forehead. Shri Sejpal has further pointed out that as per the serological report at Exh.17, on the weapon used (Piyo), human blood group 'B' was found and the blood group of the deceased is also human blood group 'B'. Shri Sejpal, therefore, submitted that the prosecution has been able to squarely establish the guilt and has also relied upon the fact that the oral testimony of eye-witness ? Shri Sejpal, therefore, submitted that the prosecution has been able to squarely establish the guilt and has also relied upon the fact that the oral testimony of eye-witness ? PW1 is fully supported with corroborative evidence and more particularly, the medical evidence on record and he, therefore, submitted that the learned Additional Sessions Judge has rightly convicted the accused under Section 302 of the I.P. Code sentencing for life imprisonment and therefore, the appeal requires to be dismissed. 6. We have perused the evidence on record and have considered the rival submissions. From the oral testimony of PW1 who is an eye-witness, it clearly bornes out that the accused has assaulted the deceased with the leg of cradle and because of which, the deceased received multiple injuries upon vital part of his body. PW1 has clearly stated in the deposition that on raising shout, the accused ran away from the house leaving the leg of cradle at the scene of occurrence. We find no reason to disbelieve the oral testimony of PW1. On the contrary, on examining the medical evidence, we find a ring of truth in the testimony of PW1 who is an eye-witness and hence, the learned Additional Sessions Judge has rightly relied upon this piece of evidence. 7. The following external injuries are found upon the body of the deceased :- ?(1) 8 x 2 cm CLW on Right side of scalp vertical starting from medial of Right eye brow goes upwards. Brain matter is visible through would with palpable fractures. (2) 2 x 1 cm transverse CLW on left upper forehead 4 cm sup CLW to medial of left eye brow with palpable fractures. (3) 1 x 0.5 x 0.5 cm vertical CLW below Rt nostril. (4) 1 x 0.5 x 0.5 cm CLW in Right upper lip near Rt angle. (5) 3 x 3 cm contusion on Rt zygoma of face. (6) 4 x 4 cm contusion on left zygoma of face.? 8. The following internal injuries are found upon the body of the deceased :- ?(1) Multiple depresal fracture of both frontal bones, fracture fragment easily renewal manually. Linear fracture irregular extending in both parental bone. (2) Depressal fractures extending both eyeball cavity and fracture of both side masulla with disturbing upper jaw teeth socket. 8. The following internal injuries are found upon the body of the deceased :- ?(1) Multiple depresal fracture of both frontal bones, fracture fragment easily renewal manually. Linear fracture irregular extending in both parental bone. (2) Depressal fractures extending both eyeball cavity and fracture of both side masulla with disturbing upper jaw teeth socket. (3) Menings tear at Rt frontal lobe with laceration of Right frontal temporal lobe and left frontal lobe coming inter cubical hemorrhage.? 9. The prosecution has examined Dr. Shilpa Kanubhai Yadav, Exh.20, PW5, who had performed the postmortem of the deceased. In her oral testimony, the Doctor has clearly opined that the injuries upon the body of the deceased can be caused by heavy, hard and blunt substance and has further opined that the same can be caused by Muddamal Article No. 6 i.e. the wooden leg of cradle. We have also noted that the deceased had six external injuries. Injury No.1 on the right side of scalp on part of the brain. Similarly, injury No.2 is upon left upper forehead. In addition to this, on examination of the internal injuries received by the deceased, it cannot be inferred that only single blow was inflicted by the accused. The injuries indicate that the seat of injury and the force with which such injuries are caused are not only grave, but on vital part of the body and as per the medical evidence, the cause of death is shock and hemorrhage due to head injury. The sum total of this would lead to only one conclusion that the accused had intention to commit murder of the deceased. The accused had knowledge that the injuries caused on vital part of the body would cause death in ordinary course of nature and therefore, the present case would squarely fall within clause Thirdly of Section 300 of I.P. Code. 10. The serological report, Exh.17 also reveals that the blood found on the wooden leg of cradle ? the weapon is that of human blood group 'B' and the same matches with the blood group of the deceased i.e. human blood group 'B'. The prosecution has, thus, been able to prove the charges levelled against the accused. 11. We, therefore, hold that the learned Additional Sessions Judge has rightly convicted the accused under Section 302 of I.P. Code sentencing him for life imprisonment. 12. The prosecution has, thus, been able to prove the charges levelled against the accused. 11. We, therefore, hold that the learned Additional Sessions Judge has rightly convicted the accused under Section 302 of I.P. Code sentencing him for life imprisonment. 12. In the result, the appeal fails and the same is hereby dismissed.