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2011 DIGILAW 370 (GUJ)

Narendra Ramsing Nayak v. State of Gujarat

2011-04-29

A.L.DAVE, BANKIM N.MEHTA

body2011
Judgment Bankim N. Mehta, J.—The appellant accused has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 and has challenged the judgment and order of conviction and sentence dated 23.9.2005 passed by the learned 3rd Addl. Sessions Judge, Vadodara in Sessions Case No. 47 of 2005 convicting him for the offence under Section 302 of the IPC and under Section 135 of the Bombay Police Act and sentencing him to undergo life imprisonment and to pay fine of Rs. 500/- in default to undergo RI for three months for the offence punishable under Section 302 of the IPC, but no separate sentence was inflicted for the offence under Section 135 of the Bombay Police Act. 2. According to the prosecution case, on the night of 26.11.2004, accused and his wife Ambaben went to the terrace of the house to sleep. At about 2:30 to 3:00 a.m., accused came down from the terrace and informed witness Varshaben that he has killed Ambaben. Therefore, witness Varshaben and others went to the terrace and found Ambaben lying in pool of blood. Therefore, Ambaben was taken to the Government Health Centre, where the doctor declared her dead. Therefore, FIR was lodged by Ganpatsinh Nayak before Chhani Police Station, Vadodara City. 3. On the basis of the FIR, offence was registered and investigation was started. During the course of investigation, the dead body was sent for postmortem, panchnama of scene of offence and recovery of weapons were drawn, statements of witnesses were recorded and the accused was arrested. On completion of investigation, charge sheet was filed against the accused for the offence of murder of Ambaben in the court of learned JMFC, Vadodara. As the offence was triable by the court of Sessions, the case was committed to the Sessions Court and it was registered as Sessions Case No. 47 of 2005. Learned 3rd Addl. Sessions Judge, Vadodara framed charge Exh-5 for the aforesaid offence against the accused. The charge was read over and explained to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The charge was read over and explained to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused in his further statement stated that at the time of incident, he was sleeping and his wife and his brother were in inebriated condition and on account of that, she might have fell down on the pestle and she might have sustained injuries. After hearing learned advocate for the accused and learned APP for the State, learned trial Judge by his judgment dated 23.9.2005 convicted the accused and sentenced him as mentioned herein above. Being aggrieved by the said decision, the accused has preferred this appeal. 4. We have heard learned advocate Mr. Barot for the appellant and learned APP Mr. Pandya for the respondent State at length and in great detail. We have also perused the impugned judgment and record and proceedings. 5. Learned advocate Mr. Barot mainly submitted that he does not dispute the incident and involvement of the accused in the offence, but in view of the fact that the incident occurred in a heat of passion and only one injury was caused to the deceased, the accused could not have been convicted for the offence of murder, at the most, he could have been convicted for the offence of culpable homicidal not amounting to murder. He also submitted that the witness examined by the prosecution clearly indicates that there was quarrel before the incident and the medical evidence also indicates that only one injury was caused to the deceased. Therefore, the learned trial Judge committed error in convicting the accused for the offence of murder and hence, the appeal is required to be allowed to that extent and conviction is required to be altered to Section 304 of the IPC. 6. Learned APP Mr. Pandya supported the judgment and stated that the evidence of witness do not indicate that prior to the incident, there was quarrel between the accused and the deceased. He also submitted that though the medical evidence indicates no other external injury, but looking to the internal injuries found on the dead body, it clearly emerges that more injuries were inflicted on the deceased. He also submitted that though the medical evidence indicates no other external injury, but looking to the internal injuries found on the dead body, it clearly emerges that more injuries were inflicted on the deceased. Therefore, the learned trial Judge was justified in recording conviction and no interference is warranted in the impugned judgment. 7. The prosecution has examined PW 1 Dr. Seema at Exh-8 to prove the postmortem conducted by her. According to the witness, there were six internal injuries on the dead body and the injuries were possible by hard and blunt weapon. The witness has also deposed that such injuries were possible by muddamal pestle. According to her, the injuries were sufficient in the ordinary course of nature to cause death. In the cross-examination, the witness has stated that the injuries found on the dead body were possible by a single blow. The postmortem report Exh-9 indicates the internal injuries. As per the postmortem report, the cause of death was due to injury to brain leading to excessive hemorrhage leading to shock and brain damage. This medical evidence clearly indicates that on account of internal injuries caused by muddamal pestle, the death was caused. Therefore, it is difficult to accept that there was only single blow given to the deceased. 8. The prosecution has examined PW 2 Ganpatbhai Nayak Exh-11, the younger brother of the accused and PW 3 Varshaben Nayak Exh-13, the cousin sister of the accused. Both these witnesses have supported the prosecution case. It emerges from their deposition that the accused after the incident informed them about the incident and admitted that he was responsible for injuries to the deceased. The witnesses have been cross-examined, but the defence has not been able to dislodge their evidence. The evidence of these witnesses indicate that the accused inflicted injuries with an intention to cause death of the deceased. The accused also made extra-judicial confession with regard to his involvement in the incident before these witnesses. The defence has not been able to elicit that the incident occurred on account of quarrel between the deceased and the accused. Even no suggestion has been made to the witnesses that prior to the incident there was quarrel between the accused and the deceased. Therefore, submission that the incident occurred in a heat of passion cannot be accepted. The defence has not been able to elicit that the incident occurred on account of quarrel between the deceased and the accused. Even no suggestion has been made to the witnesses that prior to the incident there was quarrel between the accused and the deceased. Therefore, submission that the incident occurred in a heat of passion cannot be accepted. Therefore, conviction of the accused for the offence of murder is well-founded and no interference is warranted with regard to that finding. 9. As regards conviction under Section 135 of the Bombay Police Act, the weapon used in the offence is a household implement used inside the house and therefore, it cannot be covered under the notification, as alleged by the prosecution. Therefore, the conviction for offence under Section 135 is required to be set aside. 10. In the result, the appeal partly succeeds. The conviction and sentence recorded under Section 302 of the IPC by the 3rd Additional Sessions Judge, Vadodara on 23.9.2005 in Sessions Case No. 47 of 2005, is hereby confirmed. The conviction and sentence recorded under Section 135 of the Bombay Police Act by the 3rd Additional Sessions Judge, Vadodara on 23.9.2005 in Sessions Case No. 47 of 2005, is hereby quashed and set aside.” P P P P P