Research › Search › Judgment

Gujarat High Court · body

2011 DIGILAW 396 (GUJ)

Dipakbhai Vesabhai Chaudhari v. State of Gujarat

2011-05-05

A.L.DAVE, BANKIM N.MEHTA

body2011
Judgment Bankim.N. Mehta, J.—The appellant-convict has preferred this appeal and challenged the judgement and order of conviction passed by learned Presiding Officer, Fast Track Court, Vyara on 12.8.2005 in Sessions Case No. 53 of 2004 convicting him for the offence under Section 302 of the Indian Penal Code (“IPC” for short) and sentencing him to life imprisonment with fine of Rs. 1000/- and in default of payment of fine, to undergo simple imprisonment for six months. 2. According to the prosecution case, deceased Shivajihbai Chaudhari, father of the first informant, had suspicion that his wife Nainaben had illicit relation with the accused and on that account there were frequent quarrels between deceased Shivajibhai Chaudhari and Nainaben. The accused as a friend of Sandipbhai Chaudhari, son of deceased Shivajibhai Chaudhari, the first informant, used to visit the house of the deceased. On the previous day of the incident, the accused went to the house of the first informant and there were heated exchanges of words between the accused and the deceased. The mother of the first informant Nainaben persuaded the deceased and the accused. Therefore, the accused was moving with an axe after the father of the first informant. On 10.5.2004 at about 4.30 a.m. the accused inflicted injuries on the head of the deceased Shivajibhai Chaudhari with a weapon like axe. On account of the injuries, deceased Shivajibhai Chaudhari died. 3. On the basis of the FIR (first information report) lodged by Sandipbhai Chaudhari, son of deceased Shivajibhai Chaudhari, offence was registered and investigation was started. At the end of investigation, chargesheet came to be filed against the accused for the offence punishable under Section 302 of the IPC in the Court of Judicial Magistrate First Class, Vyara. As the offence was triable by the Court of Sessions, the case was committed to the Sessions Court, Vyara. 4. Learned Additional Sessions Judge framed charge Exh. 4 for the offence under Section 302 of the IPC against the accused. Charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution adduced evidence. On completing of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under Section 313 of the Criminal Procedure Code stated that he has been falsely implicated. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution adduced evidence. On completing of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under Section 313 of the Criminal Procedure Code stated that he has been falsely implicated. After hearing learned APP for the State and learned advocate for the accused, trial Court convicted the accused and imposed the sentence as stated hereinabove. 5. Being aggrieved by the said decision, the appellant-convict has preferred this appeal. 6. We have heard learned advocate Ms. Sandhya Natani for the appellant-convict and learned APP Mr. Pandya for the State at length and in great detail. We have also perused the impugned judgement and record & proceedings of the trial Court. 7. Learned advocate Ms. Natani mainly submitted that the entire case is based on circumstantial evidence as there is no eye witness to the incident but such circumstantial evidence did not connect the accused with the crime. She has also submitted that the panchas with regard to recovery of clothes of the accused have not supported prosecution case. Therefore, the trial Court committed an error in convicting the accused. 8. Learned A.P.P. Mr. Pandya submitted that the prosecution ha proved the case by unbroken chain of circumstances. The evidence also indicates that the accused was following the deceased with weapon like axe. Though the panchas of recovery of clothes have not supported prosecution case, the Investigating Officer has proved the panchnama. Therefore, the offence is proved beyond reasonable doublt. Therefore, the trial Court was justified in convicting the accused and no interference is warranted with the impugned judgement. 9. It appears from the evidence of PW – 13 Dr. Hemaxiben Amarsinghbhai Chaudhari examined at Exh. 24 that she peformed the postmortem on the dead body of Shivajibhai Chaudhari. This witness has deposed about external and internal injury found on the dead body of the deceased Shivajibhai Chaudhari. This witness has also deposed that the injuries found on the dead body of the deceased were sufficient in ordinary course of nature to cause death and such injuries were possible by muddamal article axe. Postmortem report Exh. 26 indicates the injuries found on the dead body. The cause of death was due to multiple injuries on skull leading to brain haemorrhage. Postmortem report Exh. 26 indicates the injuries found on the dead body. The cause of death was due to multiple injuries on skull leading to brain haemorrhage. This evidence clearly indicates that the death was homicidal in nature. 10. The prosecution has examined PW-1 Sandipbhai Shivajibhai Chaudhari, son of deceased Shivajibhai Chaudhari at Exh. 6. This witness has deposed that on the previous night at about 10.00 p.m. the accused came to his house with axe and at that time deceased was at his house. This witness has also deposed that the accused gave threats to his deceased father and the deceased had suspicion that the accused had illicit relation with his wife (mother of the witness). This witness has also deposed that after return of the deceased from marriage at 4.30 in the early morning, the accused came there with axe but as his sister opened the door, the accused left. Thereafter, the deceased left to go to his house and at about 6.30 a.m. they were informed that a dead body was lying near the house of Kuber. This witness has been cross-examined. However, the cross examination does not indicate that the involvement of the accused is not probable in the offence. This witness lodged FIR with regard to the incident. In the FIR also he has alleged that the accused came to the house in the early morning at about 3 O’clock with axe and thereafter the deceased left the house and his dead body with injuries was found. 11. The prosecution has also examined PW-2 Nainaben Shivajibhai Chaudhari, wife of the deceased at Exh. 8. She has also stated that the accused came with axe in the early morning and there were heated exchanges between the deceased and the accused and at about 6 O’clock in the morning dead body was found. 12. The prosecution has also examined PW-3 Anilbhai Udesinhbhai Chaudhari at Exh. 9. His evidence is also on the same lines of PW-1 Sandipbhai Shivajibhai and PW-2 Nainaben Shivajibhai. 13. In view of the above consistent evidence, it clearly emerges that there were quarrels between the deceased and the accused. Therefore, the accused was following the deceased with axe and came to the deceased in the early morning at about 4 O’clock. Thereafter, the dead body was found around 6 O’clock in the morning. 13. In view of the above consistent evidence, it clearly emerges that there were quarrels between the deceased and the accused. Therefore, the accused was following the deceased with axe and came to the deceased in the early morning at about 4 O’clock. Thereafter, the dead body was found around 6 O’clock in the morning. The presence of the accused near the place of incident is also established by the witnesses examined by the prosecution. Therefore, it can be easily said that on account of quarrels between the accused and the deceased, the accused followed the deceased with axe and on getting opportunity, the accused attacked the deceased with weapon. 14. The prosecution has produced panchnama of arrest of the accused at Exh. 28. It is true that the panchas to the panchnama have turned hostile and not supported the case of prosecution but the Investigating Officer PW-16 Virbhadrasinh Mahipatsinh Jadeja at Exh. 30 has deposed that the accused was arrested and panchnama Exh. 28 was drawn and the panchas signed the same in his presence. It also indicates that the trouser worn by the accused was also recovered by drawing panchnama. This witness has been cross-examined but he has not been cross-examined with regard to recovery of trouser. Therefore, there is no reason to disbelieve the panchnama and discard it. 15. Panchnama Exh. 28 indicates that the trouser recovered was having blood stains. Serological report produced at Exh. 35 indicates that the cloth was sent to forensic science laboratory for analysis. Report Exh. 36 indicates that blood group “B” was found on the trouser. It also indicates that the deceased had blood of “B” group. The accused has not explained the evidence with regard to blood stains. Similarly, panchnama Exh. 31 with regard to recovery of T-shirt of the accused indicates blood stains of “B” group. It is true that the panchas have not supported the panchnama but the Investigating Officer has proved the panchnama. Therefore, the panchnamas with regard to recovery of trouser and T-shirt of the accused can safely be relied upon to connect the accused with the offence. The accused has not explained the blood stains on these clothes. Therefore, in our view, the trial Court was justified in convicting the accused on the unexplained incriminating circumstances appearing in the evidence against the accused. 16. The accused has not explained the blood stains on these clothes. Therefore, in our view, the trial Court was justified in convicting the accused on the unexplained incriminating circumstances appearing in the evidence against the accused. 16. In view of the above, in our considered view, the prosecution has proved the case beyond reasonable doubt by unbroken chain of circumstances and learned trial Judge was justified in recording conviction of the accused for the offence of murder. Learned advocate for the appellant-convict has not been able to point out any infirmity in the judgement and therefore the appeal requires to be dismissed. 17. Accordingly, the appeal stands dismissed. The judgement and order passed by learned Presiding Officer, Fast Track Court, Vyara on 12.8.2005 in Sessions Case No. 53 of 2004 convicting the appellant for the offence under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 1000/- and in default of payment of fine, to undergo simple imprisonment for six months is confirmed.