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2011 DIGILAW 225 (GUJ)

Savji Motibhai Vaghri v. State of Gujarat

2011-03-17

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT : R.M. Chhaya, J. Present appeal arises out of judgment and order rendered by learned Sessions Judge, Surendranagar on 28.06.2000 in Sessions Case No.46 of 1999, convicting the appellant-accused for the offence of murder of Motibhai Reyabhai Vedva Vaghri punishable under Section 302 of the Indian Penal Code, 1860 ('IPC' for short) and sentencing him to imprisonment for life and to pay a fine of Rs. 5,000/-, in default to further undergo simple imprisonment for two months. For offence under Section 135 of the Bombay Police Act, 1951 ('the B.P. Act' for short) the trial Court acquitted the appellant-accused. Original accused No.2- Bachubhai Madhubhai Vedva Vaghri (A2) was acquitted by the trial Court of all the charges by the said judgment. 2. Brief facts giving rise to this appeal are that the incident has taken place at Village Chobari, Tal. Chotila, Dist. Surendranagar in the house of the deceased at around 21:30 hrs. on 11.04.1999. The appellant-accused, is the son of the deceased. That on the said day, after having his supper, while the deceased was sleeping on a cot in the compound of his house, the present appellant and A2 (since acquitted) entered the house and upon instigation by A2, who was armed with a stick, the appellant-accused assaulted the deceased with a dharia and gave a blow on his forehead and also inflicted blows on the other parts of the body of the deceased. That wife of the deceased, Rajuben Motibhai (PW-1), who was sleeping on the floor just beside the cot of the deceased, saw the accused inflicting blow with dharia on the forehead of the deceased. PW-1, therefore, raised shouts on seeing the occurrence, because of which daughters of the deceased as well as nephew (Vinubhai) and guest Jagubhai woke up and, therefore, both the accused ran away. That thereafter PW-1 and other family members took the deceased in a tempo to Civil Hospital, Chotila from where he was referred to Civil Hospital, Rajkot for further treatment and ultimately he was admitted to a private hospital known as Madhuram Hospital at Rajkot, where during treatment, on 12.04.2009 at about 23.50 hrs., the deceased succumbed to the injuries. 3. That thereafter PW-1 and other family members took the deceased in a tempo to Civil Hospital, Chotila from where he was referred to Civil Hospital, Rajkot for further treatment and ultimately he was admitted to a private hospital known as Madhuram Hospital at Rajkot, where during treatment, on 12.04.2009 at about 23.50 hrs., the deceased succumbed to the injuries. 3. An F.I.R. came to be lodged by PW-1 with Chotila Taluka Police Station and after full-fledged investigation charge-sheet was submitted before learned Judicial Magistrate, First Class, Chotila, who in turn, committed the case to the court of Sessions as the case was being exclusively triable by the Court of Sessions and the same was registered as Sessions Case No.46 of 1999. 4. Charges were framed by the trial Court against the accused below Exh. 3 for the offences punishable under Section 302 read with Section 114 of the IPC and Section 135 of the B.P. Act. The accused pleaded not guilty to the charges and claimed to be tried. 5. After considering the evidence led by the prosecution, the trial Court came to the conclusion that the prosecution was successful in proving the charges against the accused and recorded conviction by the judgment impugned in this appeal. Hence, the present appeal. 6. Heard Mr. Vivek N. Mapara, learned advocate appearing on behalf of the appellant-accused, while the respondent-State has been represented by the learned A.P.P. Mr. Divyesh C. Sejpal. 7. Learned advocate Mr. Mapara has taken us through the oral testimonies of PW-1, the first informant and wife of the deceased, and Jagubhai Vastabhai (PW-3), brother in law of the deceased, in particular and has pointed out that the whole case of the prosecution is based on oral testimony of solitary eyewitness PW-1. He submitted that she is the wife of the deceased and step-mother of the appellant-accused and that she had grudge against the accused and, therefore, she has falsely implicated the present appellant-accused. He further pointed out that PW-2 as well as PW-3 are the interested witnesses and even though there were other independent witnesses, the prosecution has not chosen to examine them and the oral testimonies of the prosecution witnesses, more particularly PW-1 and PW-3 are unreliable and not trustworthy. Mr. He further pointed out that PW-2 as well as PW-3 are the interested witnesses and even though there were other independent witnesses, the prosecution has not chosen to examine them and the oral testimonies of the prosecution witnesses, more particularly PW-1 and PW-3 are unreliable and not trustworthy. Mr. Mapara further pointed out that it has come on record that there was no animosity between the accused and the deceased but in fact they were in bond of love and affection as father and son. Mr. Mapara further pointed out that no specific motive is attributed to the appellant-accused for committing the alleged offence and the prosecution has not been able to prove this vital fact. He, therefore, submitted that looking to the aforesaid facts, the appeal may be allowed by setting aside the impugned judgment and order of conviction and sentence. 8. Learned A.P.P. Mr. Divyesh C. Sejpal has opposed the present appeal and has submitted that the prosecution has proved the case on the basis of evidence to its hilt. He further submitted that only because PW-1 is a solitary eye-witness of the incident and relative of the deceased, her oral testimony cannot be discarded on that ground alone. Mr. Sejpal submitted that she has seen the occurrence of crime, which gets complete corroboration with evidence of Vejuben d/o. Motibhai (PW-2) as well as PW-3. Mr. Sejpal has also taken us through the evidence of PW-8, Dr. Ashwinkumar Devrajbhai Tank (Exh.18), who performed autopsy on the dead body of the deceased as well as PW-13, Dr. Hemang Harishchandra Vasavda (Exh.25), who treated the deceased at his hospital. Mr. Sejpal submitted that ocular evidence on record gets corroboration from the medical evidence. He further submitted that as per the serological report (Exh.45), the clothes of the accused were found blood stained and as per the said report human blood was found on the clothes of the deceased and the same matched with the blood group of the deceased. Mr. Sejpal submitted that it is a full proof case and the trial Court has rightly believed the case of the prosecution. He submitted that the appeal is devoid of any merits and the same deserves to be dismissed. 9. We have examined the record and proceedings in the context of rival submissions. 10. Mr. Sejpal submitted that it is a full proof case and the trial Court has rightly believed the case of the prosecution. He submitted that the appeal is devoid of any merits and the same deserves to be dismissed. 9. We have examined the record and proceedings in the context of rival submissions. 10. Upon reading the evidence of PW-1, who is an eye-witness and wife of the deceased (Exh.6), we find that after having supper, she was sleeping on the floor just beside the cot of the deceased. We also find that her daughters were sleeping in the 'osri' (Verandah). We also find that she has clearly narrated the fact that the appellant-accused had come to the house with A2 and gave a blow on the forehead of the deceased with the dharia in his possession. We further find that the appellant-accused was residing with his maternal uncle (A2). She further stated that even though his share from the property was already given by the deceased, the accused used to demand his share again. In the cross-examination of this witness we find that she has supported the case of the prosecution. We also find in her cross-examination that she has clearly stated that the deceased had love towards the appellant-accused and that the deceased had solemnised marriage of the appellant-accused. In her cross-examination we further find that she has categorically denied that the accused had affection either towards her deceased husband or towards her. 11. Upon reading the evidence of PW-2, daughter of the deceased (Exh.7), we find that on the date of incident, after having supper, while she was sleeping on the floor beside her mother, she woke up hearing cries of her mother. Upon asking her, she disclosed that the accused Savji Moti, after giving blows with dharia to the deceased, fled away. She further stated that the said fact was stated by her father to her mother. We also find that PW-2 also stated that she saw the appellant-accused Savji Moti with dharia on the spot. In her cross-examination we also find that she has stated that the accused used to visit her father (the deceased) and used to demand his share. 12. We also find that PW-2 also stated that she saw the appellant-accused Savji Moti with dharia on the spot. In her cross-examination we also find that she has stated that the accused used to visit her father (the deceased) and used to demand his share. 12. From the evidence of PW-3, Jagubhai Vastabhai (Exh.8), who happens to be the brother-in-law of the deceased, we find that upon hearing the shouts raised by PW-1, he woke up and noticed a dharia blow on the head of the deceased. We also find the said witness has stated that after giving the blow, the accused fled away and the other person, who accompanied the accused, followed the accused. This witness has supported the case of the prosecution and has withstood the test of cross-examination. 13. Going through the evidence of PW-13, Dr. Hemang Vasavda (Exh.25), a Surgeon of Madhuram Hospital, Rajkot, we find that the deceased was brought to his hospital at about 3:50 a.m. on 12.04.1999 and, at that time, he noticed the following three injuries: (i) S.W. 25.00 to 3.00 cm Rt. Frontal (ii) Skull fracture (iii) Intracerebral Hemorrhage Rt. Frontal (iv) Multiple intracranial hemorrhages. We also find that PW-13 opined that “such injuries are because of sharp weapon used with force (i.e. dharia/axe).” 14. Upon reading the evidence of PW-8, Dr. Ashwinkumar Devrajbhai Tank (Exh.18), a Medical Officer in Civil Hospital, Rajkot, who performed autopsy on the dead body of the deceased, we find that the following internal injuries were found on the dead body of the deceased: Internal injuries: After removal of stiches there is Hematoma seen over (R) supra Orbital Region, gray matter of brain seen after removal of Hematoma - clotted blood. # Supra orbital (R) and # frontal bone transversely extending from (R) forehead to (L) middle forehead Hematoma seen over # site. Brain and its membrane are congested. Gray matter of Brain seen at (R) (supra) orbital region with Hematoma, Laceration of brain. Subcranial haemorrhage at (R) frontal temporal region Basal astern cerebral sulei and ventricular system are congested due to cerebral oedema. (R) Chamber of heart full with clotted blood, (L) chamber empty. According to the doctor, the cause of death was “shock due to intracranial haemorrhage due to injury to vital organ like brain on account of Assaulted injury.” 15. Subcranial haemorrhage at (R) frontal temporal region Basal astern cerebral sulei and ventricular system are congested due to cerebral oedema. (R) Chamber of heart full with clotted blood, (L) chamber empty. According to the doctor, the cause of death was “shock due to intracranial haemorrhage due to injury to vital organ like brain on account of Assaulted injury.” 15. The sum total of the above discussion is that the prosecution has been able to prove the charges levelled against the appellant-accused. It has clearly come on record that the appellant-accused, being the step-son, used to demand his share from the property of the deceased, even though the deceased had already parted with his share. The prosecution has, therefore, successfully been able to establish the motive. The oral testimony of PW-1, who is the eye-witness, is corroborated by other evidence on record, including medical evidence. In this context, we may observe that it is a settled proposition of law that evidence of related witnesses cannot be discarded as evidence of interested witnesses. Being relative is not synonymous to term 'interested witness'. Interested witness is he who is interested in ensuring conviction of the accused for whatever reasons and not the witness who is relative of the deceased or who is interested in ensuring conviction of the miscreant. In the instant case, there is no evidence to show that any of the witnesses had any grievance against the accused to attribute particular motive for them to be interested in ensuring the conviction. 16. From the oral testimonies of PW-2 and PW-3 so also the medical evidence as well as the serological report, we find that the oral testimonies of these witnesses are trustworthy and that there exists a ring of truth in their version and, therefore, in our opinion, the trial Court was right in convicting the appellant. We find from the serological report (Exh.45) that human blood of group 'A', which was the blood group of the deceased, was found from the weapon dharia and the clothes of the deceased. It may be noted that no injuries are caused on the person of the accused and no explanation is given by the accused as regards the blood stains found on his clothes i.e. bush-shirt and pants. Cumulatively the prosecution has been able to establish the guilt of the appellant upto the hilt. 17. It may be noted that no injuries are caused on the person of the accused and no explanation is given by the accused as regards the blood stains found on his clothes i.e. bush-shirt and pants. Cumulatively the prosecution has been able to establish the guilt of the appellant upto the hilt. 17. The sum total of the foregoing discussion is that the trial Court has properly appreciated the evidence on record and has held the appellant guilty. We do not find any merits in the appeal. No interference is called for in exercise of our appellant powers. The appeal must fail and stands dismissed. Appeal dismissed.