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2011 DIGILAW 250 (GUJ)

Jayrambhai Nathabhai Vasava v. State of Gujarat

2011-03-25

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT : A.L. Dave, R.M. Chhaya, JJ. Present appeal arises out of judgment and order rendered by learned Additional Sessions Judge, Fast Track Court, Bharuch @ Rajpipla on 31.03.2005 in Sessions Case No.20 of 2005, convicting the appellant-accused for the offence of murder of Rameshbhai Ganglabhai Vasava under Sections 325 and 302 of the Indian Penal Code, 1860 ('IPC' for short) and sentencing him to suffer rigorous imprisonment for five years for the offence under Section 325 of IPC and to pay fine of Rs. 500/-, in default to undergo simple imprisonment 30 days and further sentencing him to imprisonment for life for the offence under Section 302 of IPC and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for two months. The sentences were ordered to run concurrently. 2. Brief facts giving rise to this appeal are that that deceased-Rameshbhai, resident of Village Valpor, Tal. Jhagadia, Dist. Bharuch, on 05.08.2004 at around 3:00 p.m. went alone for fishing at the river, situated in the village and around 5:00 p.m. while wife of the deceased, Jakhamiben, was at her residence (the first informant), she was informed by children of her neighbourhood that her husband was lying on the road, passing near the shade of Jayrambhai (i.e. the present appellant). That she immediately ran there and found that her husband was lying and upon asking, he replied that 'Jayrambhai Nathabhai Vasava has inflicted blow with axe on his head'. That when the first informant reached at the spot the accused was also standing there and upon asking 'Why have you assaulted my husband?', the accused replied that 'He has attacked the deceased and do whatever you like'. As the deceased was deadly injured, the first informant and her brother-in-law, Rajendra, Kokilaben Rameshbhai and others took the deceased in a jeep to Netram Hospital for treatment. That there was dispute of land originally belonging to their uncle Pohanabhai Ujambhai and as the deceased had played active role, with an intention to inflict serious injuries, assaulted the deceased. 3. As the deceased was deadly injured, the first informant and her brother-in-law, Rajendra, Kokilaben Rameshbhai and others took the deceased in a jeep to Netram Hospital for treatment. That there was dispute of land originally belonging to their uncle Pohanabhai Ujambhai and as the deceased had played active role, with an intention to inflict serious injuries, assaulted the deceased. 3. An F.I.R. came to be lodged by wife of the deceased, Jakhamiben Rameshbhai Vasava (PW-4) on 05.08.2004, with Valiya Police Station and after full-fledged investigation charge-sheet was submitted before learned Judicial Magistrate, First Class, Valiya, 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.20 of 2005. 4. Charges were framed by the trial Court against the accused below Exh.6 for the offences punishable under Sections 326 and 302 of the IPC. The accused had 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 appellant and recorded conviction by the judgment impugned in this appeal. Hence, this appeal. 6. Heard Mr. Mrudul M. Barot, learned advocate appearing on behalf of the appellant, while the respondent-State has been represented by the learned A.P.P. Mr. D.C.Sejpal. 7. Learned advocate Mr. Barot has taken us through the evidence of PW-4, Jakhamiben Rameshbhai Vasava, PW-12, Maheshbhai Ratanbhai Vasava, PW-14, Dr. Satishbhai Kantaprasad Kampte, as well as the evidence of PW- 18, Parvatsinh Parsing Ganasva, Investigating Officer. Mr. Barot submitted that there is no eye-witness to the alleged incident and the whole case of the prosecution is based on circumstantial evidence. He further submitted that the prosecution has not been able to establish the complete chain of circumstances. He submitted that child witness-Hasmukh, who informed PW- 4 about the alleged incident, has not been examined by the prosecution. He further submitted that there is contradiction in the name of the child witness in so far as evidence of PW-12, Maheshbhai, is concerned and, therefore, no reliance can be placed on so-called dying declaration of the deceased made before PW-4 and PW-12. He further submitted that there is contradiction in the name of the child witness in so far as evidence of PW-12, Maheshbhai, is concerned and, therefore, no reliance can be placed on so-called dying declaration of the deceased made before PW-4 and PW-12. He also submitted that there is material discrepancy in the case of the prosecution in as much as that the prosecution has not examined the doctor, who has first treated the deceased and, therefore, the dying declaration are not reliable. Mr. Barot also submitted that no independent witnesses have been examined and even the person who shifted the deceased to the hospital is not examined by the prosecution. He further submitted that no blood stains are found from the weapon axe, which was discovered at the instance of the accused at later point of time and, therefore, submitted that in the totality of the case of the prosecution the link with regard to child witness and blood stain is missing. He further submitted that blood stains are not found either from the clothes or scene of offence and submitted that the trial Court has wrongly believed the case of the prosecution. 7.1 Mr. Barot submitted that the prosecution has not been able to establish the motive, which is an important factor when the case of the prosecution is based on circumstantial evidence, and in absence of any independent witness having been examined, there must be corroboration of the version of the interested witness by independent witness before they can be relied upon. In support of his submissions Mr.Barot relied upon judgments of the Apex Court in the case of -- (i) Brundaban Moharana & Anr. v. State of Orissa, 2010 AIR SCW 7285; AND (ii) Bir Singh & Ors. v. State of Uttar Pradesh, (1977) 4 SCC 420 and submitted that the appeal may be allowed by setting aside the impugned judgment and order of conviction and sentence. 8. Learned A.P.P. Mr. D.C.Sejpal has opposed the present appeal and has submitted that the deceased has declared before his wife (PW-4) as well as PW-12 that he was assaulted by the accused with the axe and has given a blow in his head. Mr. 8. Learned A.P.P. Mr. D.C.Sejpal has opposed the present appeal and has submitted that the deceased has declared before his wife (PW-4) as well as PW-12 that he was assaulted by the accused with the axe and has given a blow in his head. Mr. Sejpal further submitted that it is clearly born out from the evidence of aforesaid witnesses that the accused has made an extra-judicial confession before both of them and has clearly stated that he has assaulted the accused and has further stated that do whatever you like. Mr. Sejpal also submitted that the incident took place on 05.08.2004 and it has clearly come on record that it was actually raining and, therefore, there is no possibility of any blood stains found on the scene of offence or the clothes or even the weapon used by the accused. He further submitted that the prosecution has been able to establish complete chain of circumstances and submitted that the trial Court has rightly believed the case of the prosecution and, therefore, 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 context of the rival submissions. 10. The prosecution has examined 20 witnesses out of which PW-4 and PW-12 are two witnesses before whom the deceased has given dying declaration informing that he was assaulted by the accused with the axe and even before these two witnesses the accused has made an extra CR. judicial confession by stating that he had assaulted the deceased with the axe and do whatever you like. 11. Upon reading the evidence of PW-4, Jakhamiben Rameshbhai Vasava (Exh.12), the first informant and wife of the deceased, we find that she has categorically stated that on being informed by the children of neighbourhood at about 5 O'clock, she along with PW-12, Mahesh, ran to the scene of offence and found the deceased injured. We also find that on inquiring the deceased replied that the accused has given blow on his head with the axe and the deceased was bleeding. We also find that on inquiring the deceased replied that the accused has given blow on his head with the axe and the deceased was bleeding. We also find that, on specifically asking that "Who else was present?", PW-4 replied that "Jayram was standing there." We find that on asking the accused, 'As to why he assaulted the deceased?', he replied "I have given blow with the axe and do whatever you like." 11.1 Upon further appreciating the oral testimony of PW-4, we find that thereafter PW-4, along with her relatives took the deceased to Netram Hospital in a jeep. Then the deceased was taken to Civil Hospital, Bharuch and then to Government Hospital, Vadodara and we find that even in Vadodara Hospital the doctor opined that they should take the victim to Ahmedabad. However, as PW-4 had no money, she brought the deceased in Government vehicle back to her village Valpor where the deceased succumbed to the injures on 07.08.2004 at around 2:00 p.m.. Upon cross-examination PW-4 supported the case of the prosecution. 12. Upon reading the oral testimony of PW-12, Mahesh Ratanbhai Vasava (Exh.28), we find that on being informed by PW-4, the first informant, he went to the scene of offence along with PW-4 and found the deceased lying on the road, passing near the house of Jayram Natha (the accused) and when PW-4, who happens to be aunty of PW-12, asked the deceased as to who has assaulted him, the deceased replied that Jayram Natha has inflicted blow with the axe on his head. The accused was also standing there and upon asking by PW-4 why have you assaulted my husband? the accused replied that 'I have attacked upon him and do whatever you like'. We find that this witness has also supported the case of the prosecution. 13. Upon reading the evidence of PW-15, Dr. Satishbhai Kantaprasad Kampte, (Exh.31), who performed autopsy on the dead body of the deceased, we find that the following external as well as internal injuries were found on the dead body of the deceased: External injuries: (i) An teraposterior directed 1" lenthy lacerated wound along with stiching 1-1/2 - 2 days old over the middle of volt of skull (ii) oblique directed 1/2" lenthy lacerated alongwith stiching 1 - 1/2 - 2 days old. Wound over the middle of fore head (on the frontal bone) Internal injuries: (i) 2-1/2" long anteroposterior fracture is present over the (Rt) perital bone at the site of wound. (ii) 1" long fracture oblique in direction present over the left middle of perital bone just near to the site of wound. We also find that this witness has opined that the external as well as internal injuries are possible by the weapon axe. We also find that he has specifically opined that from the type of injuries, it is always not necessary that the injured would be unconscious immediately but may become unconscious even after 1-2 days or even after one hour. According to him, the cause of death is "Secondary shock due to hemorrhage because of head injury. 14. Considering the over all evidence on record, we find that the prosecution has been able to establish the 'motive' in as much as it has come on record that there was dispute between the accused and the deceased with regard to bequeath of land belonging to his uncle Pohanabhai Ujambhai and the deceased had played active role for the same. Further, we find a ring of truth in the oral testimonies of PW-4 as well as PW-12 and only because they are related with each other they cannot be labeled as interested witnesses as there is enough corroborative evidence which proves the guilt of the accused. We find that the prosecution has been able to establish complete chain of circumstances and more particularly dying declaration of the deceased made before PW-4 and PW-12 that he was assaulted with the axe on his head by the accused. We also find that the accused has also confessed before them by way of extra-judicial confession that he had assaulted the deceased with the axe on his head and relentlessly has said 'Do whatever you want to do'. The contention that there are no blood stains found on the scene of offence or on the weapon or the clothes does not take the case of the accused any further. As stated aforesaid, that on the date of occurrence it was raining and, therefore, the same would be natural. 15. The contention that there are no blood stains found on the scene of offence or on the weapon or the clothes does not take the case of the accused any further. As stated aforesaid, that on the date of occurrence it was raining and, therefore, the same would be natural. 15. It is also required to be noted that the first informant (PW-4) and PW-12 are illiterate as well as rustic villagers still, however, we find that they are clear in their versions and oral testimonies of both these prosecution witnesses do not create any cloud of doubt on veracity of their versions and only because they are related they cannot be labeled as interested witnesses. It was a rainy day and the incident had occurred in 5:30 evening and it was come on record that except the accused no one was found near the scene of offence. The behaviour of PW-4, the first informant and the wife of the deceased, is natural as we find that she immediately informed her nephew (PW-12) and thereafter also informed other relatives, who were staying nearby. 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 instance 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. We find a ring of truth in the oral testimonies of both these witnesses. We also find behaviour of PW-4 to be completely natural. As stated aforesaid, PW-4 was illiterate and rustic villager and her evidence clearly establishes the fact that they were so poor that even though she took her husband (the deceased) for medical treatment first to Netram Hospital, then to Civil Hospital, Bharuch and then to Government Hospital, Vadodara, she brought back the deceased to the village as she could not afford further treatment at Ahmedabad and this version of PW-4 is corroborated with oral testimonies of PW-12 and PW-5. We therefore, find that the trial Court has rightly relied upon the oral testimonies of the said witnesses. 16. 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.