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2011 DIGILAW 747 (GUJ)

Jagatsinh Ratansinh Solanki v. State of Gujarat

2011-11-15

A.L.DAVE, BANKIM N.MEHTA

body2011
Judgment Bankim N. Mehta, J.—The appellant has preferred this appeal and challenged the judgement and order of conviction and sentence passed by learned Additional Sessions Judge, Fast Track Court No. 3, Himatnagar on 21.1.2004 in Sessions Case No. 215 of 2003 convicting him for the offence under Section 302 of Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs. 200/-, in default, to further undergo rigorous imprisonment for one month. 2. According to the prosecution case, accused had a suspicion that deceased Hemtaji @ Himmatsinh Pujsinh Makwana had illicit relation with his wife Rajuben. Therefore, keeping grudge of the suspicion, on 21.8.2003 at about 10.30 hours the accused caused two injuries with dharia on the neck of said Hemtaji. On account of the injuries, Hemtaji died. 3. On the basis of the First Information Report lodged by Jalamsinh Pujsinh Makwana before Gambhoi Police Station, offence was registered and investigation was started. During the course of investigation, panchnama of scene of offence and inquest panchnama were drawn, dead body was sent for postmortem and statements of the witnesses were recorded. The accused produced weapon dharia used in the commission of offence. Therefore, the weapon was recovered by drawing panchnama. Muddamals were sent to F.S.L. On completion of investigation, charge sheet came to be filed against the accused for the offence under Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act in the Court of learned Chief Judicial Magistrate, Himatnagar. As the offence was triable by the Court of Sessions, the case was committed to the Sessions Court, Sabarkantha at Himatnagar and it was registered as Sessions Case No. 215 of 2003. Learned Additional Sessions Judge framed charge Exh. 5 for the offence under Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act. Charge was read over and explained to the accused who pleaded not guilty and claimed to be tried . Therefore, the prosecution adduced evidence. On completion of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. Charge was read over and explained to the accused who pleaded not guilty and claimed to be tried . Therefore, the prosecution adduced evidence. On completion 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, 1973, stated that on account of suspicion that the deceased had illicit relation with his wife and earlier there was an altercation between him and the deceased and therefore keeping grudge of the same, false case is filed against him. The accused examined his wife Rajuben Jagatsinh Solanki as defence witness. 4. After hearing learned Additional Public Prosecutor and learned advocate for the accused, trial Court by the impugned judgement convicted and sentenced the accused for the offence under Section 302 of the Indian Penal Code and acquitted him for the offence under Section 135 of the Bombay Police Act. 5. Being aggrieved by the said decision the accused has preferred this appeal. 6. We have heard learned advocate Mr. Bhatt for the appellant and learned Additional Public Prosecutor Mr. Pandya for the respondent at length and in great detail. We have also perused the impugned judgement and record & proceedings of the trial Court. 7. Learned advocate Mr. Bhatt submitted that according to the prosecution case the witness Sonalben was eye witness to the incident but on analysis of evidence of this witness it does not indicate that she was an eye witness to the incident. He also submitted that on account of provocation the incident occurred and only two injuries were caused to the deceased and therefore the trial Court committed error in convicting the accused for the offence of murder and therefore the manner in which the incident had occurred the accused could be convicted for the offence of culpable homicide not amounting to murder. He did not challenge the fact that the incident ensued and the deceased had sustained injuries as per the prosecution case. 8. Learned Additional Public Prosecutor Mr. Pandya submitted that the evidence of Sonalben indicates that she had witnessed the incident and the defence has not been able to point out any infirmity in her evidence. He did not challenge the fact that the incident ensued and the deceased had sustained injuries as per the prosecution case. 8. Learned Additional Public Prosecutor Mr. Pandya submitted that the evidence of Sonalben indicates that she had witnessed the incident and the defence has not been able to point out any infirmity in her evidence. He also submitted that the accused himself produced the weapon used in the commission of offence and the Forensic Science Laboratory report also indicates that there were blood stained marks of blood group of the deceased. Therefore, involvement of the accused is proved beyond reasonable doubt. He also submitted that the defence has not been able to establish that there was provocation by the deceased. Therefore, the trial Court was justified in convicting the accused for the offence of murder and no interference is warranted with the impugned judgement. 9. It appears from the prosecution case that the cause for the incident was illicit relation between deceased Hemtaji and wife of the accused. In order to prove the charge, the prosecution examined eye witness Sonalben Himatsinh Jhala as PW-2 at Exh. 11. 10. PW-2 Sonalben is a child witness aged about 14 years at the time of recording of her evidence. It appears from the deposition of this witness that while she was taking cattle for grazing, when she came near the house of the accused, she saw her father Hemtaji coming and thereafter the accused came with dharia and attacked her father Hemtaji. She has also deposed that there were talks, about relations between the wife of the accused and the deceased. The witness has been cross-examined by the accused. However, there is no cross examination to support the defence that before the incident there was provocation from the deceased. The witness had identified the weapon. On reappreciation of evidence of this witness it clearly emerges that the witness had seen the incident involving the accused. The evidence of this witness also indicates that the accused made the assault without provocation. There is nothing to indicate that the evidence of this witness is not reliable. 11. The accused examined his wife Rajuben Jagatsinh Solanki as defence witness No. 1 at Exh. 48. According to the witness the deceased came to their house with dharia and sustained injuries as he fell down. There is nothing to indicate that the evidence of this witness is not reliable. 11. The accused examined his wife Rajuben Jagatsinh Solanki as defence witness No. 1 at Exh. 48. According to the witness the deceased came to their house with dharia and sustained injuries as he fell down. According to the witness the deceased fell twice and hence two injuries were caused to him. The witness has identified the weapon. The witness has also deposed that accused surrendered before the police. In the cross-examination she has admitted that as deceased Hemtaji was talking with her, the accused did not like. She has also admitted that the accused had suspicion that the deceased had illicit relation with her. The evidence also indicates that the weapon used in the commission of offence was identified by the witness but she has tried to explain the incident by saying that the deceased came with dharia and on account of fall on dharia the deceased sustained fatal injuries. In our view it is difficult to believe that the injuries would be possible by such fall. This evidence makes it clear that the incident occurred near the house of the accused but it is difficult to believe the reason for injury given by the witness. This defence has not been put up by the accused before eye witness Sonalben. Even in the further statement recorded under Section 313 of the Criminal Procedure Code this defence has not been put up. This defence is contrary to the defence taken up while cross-examining witness Sonalben. On analysis of this evidence, it emerges that the accused has not disputed the fact that the accused had suspicion that the deceased had illicit relation with her and the deceased sustained fatal injuries by the weapon produced by the accused when he surrendered before police. F.S.L. Report Exh. 45 also indicates blood stain marks of the deceased on the weapon. Therefore, now the question is whether deceased died on account of fall on the weapon as claimed by the accused. The medical evidence of PW-7 Dr. Vinaykumar does not support this suggestion. As observed earlier, this defence is not put up before eye witness Sonalben. Therefore, in our view it is difficult to believe that accused was not responsible for the fatal injuries to the deceased. 12. It is true that panchnama Exh. The medical evidence of PW-7 Dr. Vinaykumar does not support this suggestion. As observed earlier, this defence is not put up before eye witness Sonalben. Therefore, in our view it is difficult to believe that accused was not responsible for the fatal injuries to the deceased. 12. It is true that panchnama Exh. 31 with respect to recovery of muddamal dharia has not been supported by the pancha - PW-10 Vadansinh Somsinh but Investigating Officer PW-13 Rambhai Vania at Exh. 39 has proved panchnama Exh. 31. In view of the fact that the defence witness Rajuben has also identified the weapon, in our view, it can safely be said that the muddamal dharia produced by the accused at the police station was used in the commission of offence. FSL report Exh. 45 indicates that muddamal dharia was having blood stain of blood group of deceased Hemtaji. The accused has not offered any satisfactory explanation with regard to the same. Therefore, in our view, the prosecution has proved beyond reasonable doubt that muddamal dharia produced during investigation was used in the commission of offence. 13. Medical evidence of PW-7 Dr. Vinaykumar Ramvilas Singh Exh. 20 and postmortem report Exh. 21 also indicate that the injuries sustained by the deceased were fatal injuries and caused on vital organ of the body. Therefore, the prosecution has successfully proved that death of Hemtaji was homicidal in nature. 14. In view of above evidence it clearly emerges that on account of suspicion that the deceased had illicit relation with his wife, the accused made the assault with dharia on the accused and therefore death of Hemtaji was cold blooded murder. The defence has not been able to establish that on account of grave and sudden provocation the incident occurred. Therefore, trial Court was justified in convicting the accused for the offence of murder. 15. Learned advocate Mr. Bhatt has not been able to point out any infirmity in the impugned judgment requiring interference by this Court. Therefore, the appeal is required to be dismissed. 16. In the result, the appeal is dismissed. The judgement and order of conviction and sentence passed by learned Additional Sessions Judge, Fast Track Court No. 3, Himatnagar, on 21.01.2004 in Sessions Case No. 215 of 2003 is confirmed.