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2016 DIGILAW 872 (GUJ)

Jitendrasinh v. State of Gujarat

2016-04-22

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. This appeal is filed against the judgment and order dated 05.05.2011 passed by learned Additional Sessions Judge, Court No. 11, City Sessions Court, Ahmedabad, in Sessions Case No. 101 of 2010, whereby the present appellant-original accused was convicted for the offence punishable under Section 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life. The accused was also convicted for the offence punishable under Section 213 of IPC and ordered to undergo imprisonment for three months with a fine of Rs. 250/- and, in default of payment of fine, further imprisonment of fifteen days was imposed. For the offence punishable under Section 323 of IPC, the accused was ordered to undergo imprisonment for one month. No separate sentence was imposed for the offence punishable under Section 135 of the Bombay Police Act. 2. The case of the prosecution is that the complainant is the father-in-law of the accused. On 2.1.2010, the accused and his father had gone to the complainant's house to bring back his wife (Daughter of the complainant). However, the complainant told them to come on Sunday, therefore, they got angry on the complainant and started abusing him and then the accused had pushed the complainant, upon which he fell down, and thereafter they left the place. Thereafter, on the same day at about 6 O' clock in the evening the accused and his father had gone to the house of the complainant, at that time, Ratansing had said "buddhe ko kyu mara?". Therefore, the accused got angry and gave the blow of knife on the chest of Ratansing. Rajusing and Jyotiben intervened, therefore, the accused also gave blows of knife to them and ran away from the spot. Therefore, the complaint was lodged with Sardarnagar Police Station. 2.1 Upon filing of the complaint, investigation was carried out and the accused was arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution has examined following witnesses:- Sr. No. Name Exh. 1 Dr.Maheshkumar Purushottambhai Kapadiya 8 2 Dr. Alpesh Zaverbhai Shah. 13 3 Dr. Thereafter, charge was framed against the accused. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution has examined following witnesses:- Sr. No. Name Exh. 1 Dr.Maheshkumar Purushottambhai Kapadiya 8 2 Dr. Alpesh Zaverbhai Shah. 13 3 Dr. Laxmikant Nekchand Somani 18 4 Jyotiben Jitendrasing Harmansing Bhatiya, wife of the accused. 22 5 Jagitsing Balasing Rathod, Complainant. 23 6 Ukbalkaur Uttamsing Lotivan, daughter of the complainant. 26 7 Jasbirkaur majitsing Pothivala, daughter of the complainant. 27 8 Sanjusing Jagjitsing Rathod, son of the complainant. 28 9 Kuldeepsing Baljitsingh Chaudhari, son of the complainant. 29 10 Majitsing Balvirsing Pothivala. 31 11 Kishanbhai Khemchandbhai Sindhi. 32 12 Maganlal Pukhraj Pavar. 34 13 Gopalbhai Sureshbhai Solanki. 39 14 Kamlesh himmatram Jesvani. 42 15 Hasanand Hargoviddas Lalvani 45 16 Gajendrasing Tejsing Dhidhva. 46 17 Rameshkumar B. Joshi, IO. 49 2.3 The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Pm note. 12 2 Injury certificate of Jagdishsing. 14 3 Injury certificate of Jyotiben Jagdishsing. 19 4 Complaint. 24 5 Inquest panchnama. 30 6 Panchnama of seizure of clothes of the deceased. 33 7 Panchnama of the place of offence. 35 8 Panchnama under Section 25 of the Evidence Act. 40 9 Panchnama of seizure of clothes of witness Sanjusing Jagjitsing Rathod and Iqbalkumar Uttamsing Panjabi. 43 10 Yadi to FSL officer to come to the place of offence. 52 11 Panchnama of physical condition of the accused. 55 12 Muddamal dispatch note. 56 13 Receipt of muddamal being received by FSL. 57 14 Receipt of muddamal being received by FSL. 58 15 Forwarding letter to FSL officer. 59 16 Analysis report of FSL. 60 17 Forwarding letter to FSL officer. 64 18 Report of FSL. 65 19 Serological report of FSL. 66 20 Report of FSL. 67 2.4 At the end of trial, the Court below recorded further statement of the accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred by the accused before this Court. 3. Mr. Mrudul Barot, learned advocate appearing for the appellant-original accused has taken us through the evidence on record and submitted that the impugned judgment and order is against the evidence on record. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred by the accused before this Court. 3. Mr. Mrudul Barot, learned advocate appearing for the appellant-original accused has taken us through the evidence on record and submitted that the impugned judgment and order is against the evidence on record. He submitted that the prosecution has failed to prove its case against the accused. He also submitted that there are material omissions and contradictions in the evidence of prosecution witnesses and the trial Court has erred in convicting the accused on the basis of such evidence. He further submitted that the prosecution has failed to prove any motive for commission of the offence. He has also taken us through the medical evidence and postmortem report of the deceased and submitted that only one injury is the cause of death of the deceased, therefore, the trial Court has committed an error in convicting the accused. He further submitted that since the accused belongs to a particular community, which always keeps a knife with them, there was no intention on his part to commit the offence and it was never used as a weapon. In view of these, he prayed that benefit of doubt may be granted to the accused. He submitted that the appellant ought to have been acquitted from the charges levelled against him and prayed that this appeal may be allowed by setting aside the impugned judgment. In the alternative, he also submitted that even if this Court finds the accused guilty, since there was no intention or motive for the accused to commit the offence and this has happened in the heat of the moment, conviction of the accused may be converted to offence punishable under Section 304, Part-I of IPC. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the accused is just and proper and she has supported the conviction recorded by impugned judgment. She submitted that the trial Court has rightly appreciated the evidence on record and convicted the accused. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the accused is just and proper and she has supported the conviction recorded by impugned judgment. She submitted that the trial Court has rightly appreciated the evidence on record and convicted the accused. She has taken us through the postmortem report of the deceased and submitted that as per column No. 17, there were injuries on the chest of the deceased and the cause of death of the deceased is shock and hemorrhage due to stab injuries on the chest. She further submitted that the complainant and other witnesses have also supported the case of the prosecution, therefore, the trial Court has not committed any error in convicting the accused. She also submitted that it would improper to determine the culpability of the accused-appellant by assuming that he had inflicted only one injury on the deceased and on this count, it cannot be said that he is not guilty for the offence punishable under Section 302 of IPC. In support of her submission, she has relied upon the decision of the Apex Court in Som Raj alias Soma v. State of HP reported in AIR 2013 SC 1649 , wherein it is observed as under:-- "11. We shall now venture to apply the parameters laid down by this Court, to determine whether the accused-appellant herein can be stated to have intentionally caused such bodily injury to the deceased, as he knew was so imminently dangerous, that it would in all probability cause his death. First and foremost, it is apparent from the factual narration of the witnesses produced by the prosecution, that the accused-appellant was not carrying the 'darat' but had picked up the same from the house of Kishan Singh (PW2). A 'darat', as noticed above, is a traditional agricultural implement used for cutting branches of trees. It is also used by butchers for beheading goats and sheep. A 'darat' has a handle and a large cutting blade. Having picked up the 'darat' for committing an assault on the deceased, it is apparent that the accused-appellant was aware of the nature of injury he was likely to cause with the weapon of incident. From the statements of Dr. Suman Saxena (PW4) and Dr. A 'darat' has a handle and a large cutting blade. Having picked up the 'darat' for committing an assault on the deceased, it is apparent that the accused-appellant was aware of the nature of injury he was likely to cause with the weapon of incident. From the statements of Dr. Suman Saxena (PW4) and Dr. B.M. Gupta (PW5), the nature of injuries caused to the deceased has been brought out. A perusal thereof would leave no room for doubt, that the accused-appellant had chosen the sharp side of the 'darat' and not the blunt side. The ferocity with which the aforesaid blow was struck clearly emerges from the fact that the blow resulted in cutting through the skull of the deceased and caused a hole therein, resulting in exposing the brain tissue. When a blow with a deadly weapon is struck with ferocity, it is apparent that the assailant intends to cause bodily injury of a nature which he knows is so imminently dangerous, that it must in all probability cause death. The place where the blow was struck (at the back of the head of the deceased) by the accused-appellant, also leads to the same inference. It is not the case of the accused-appellant, that the occurrence arose out of a sudden quarrel. It is also not his case, that the blow was struck in the heat of the moment. It is not even his case, that he had retaliated as a consequence of provocation at the hands of the deceased. He has therefore no excuse, for such an extreme act. Another material fact is the relationship between the parties. The accused-appellant was an uncle to the deceased. In such circumstances, there is hardly any cause to doubt the intent and knowledge of the accused-appellant. Besides the aforesaid factual position, it would be incorrect to treat the instant incident as one wherein a single blow had been inflicted by the accused. As many as five witnesses of the occurrence have stated in unison, that the accused-appellant was in the process of inflicting a second blow on the deceased, when they caught hold of him, whereupon one of them (Mohinder Singh - PW6) snatched the 'darat' from the accused-appellant, and threw it away. In such a situation, it would improper to treat/determine the culpability of the accused-appellant by assuming, that he had inflicted only one injury on the deceased. In such a situation, it would improper to treat/determine the culpability of the accused-appellant by assuming, that he had inflicted only one injury on the deceased. Keeping in mind the parameters of the judgments referred to by the learned counsel for the rival parties (which have been extracted above), we have no doubt in our mind, that the accused-appellant must be deemed to have committed the offence of 'culpable homicide amounting to murder' under Section 302 of the Indian Penal Code, as the accused-appellant Som Raj had struck the 'darat' blow, with the intention of causing such bodily injury, which he knew was so imminently dangerous, that it would in all probability cause the death of Sardari Lal. Having recorded the aforesaid conclusion, we are satisfied, that the accused-appellant was justifiably convicted of the offence under Section 302 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for life, as also, to pay a fine of Rs. 10,000/- (and in default, to undergo further simple imprisonment for a period of one year)." 4.1 In view of these, she has submitted that the accused is rightly convicted and this Criminal Appeal filed by the accused may be dismissed. 5. We have heard Mr. Barot, learned advocate for the appellant-accused and Ms. C.M. Shah, learned APP appearing for the State. We have also gone through the impugned judgment and the evidence on record. From the medical evidence, it is clear that the deceased died due to stab injury on the chest. From the evidence of PW-1, Dr. Maheshkumar Kapadiya, it is clear that there were two cut marks even on the shirt which the deceased was wearing. He further deposed that there were two stab injuries on the chest of the deceased and these injuries could be caused by muddamal weapon knife. He further deposed that the reason for the death of the deceased is shock and hemorrhage due to stab injuries on the chest. This witness further deposed that these injuries were sufficient in the ordinary course of nature to cause death of a person. We have also gone through the evidence of PW-4, Jyotiben Bhatiya, who is the wife of the accused. This witness further deposed that these injuries were sufficient in the ordinary course of nature to cause death of a person. We have also gone through the evidence of PW-4, Jyotiben Bhatiya, who is the wife of the accused. She deposed that the accused (her husband) and his father had come to her house on the date of the incident and since her father asked them to come on Sunday, they got angry and a quarrel had started. She further deposed that on the same day the accused came back with his father for taking her home. At that time, a quarrel ensued between the accused and the deceased-Ratansing. She further deposed that the accused attacked Ratansing and caused injuries with knife. She further deposed that the accused also attacked her with knife and caused injury on her back. She further deposed that even her elder sister also sustained injury in the incident. PW-2, Jagjitsing Balasing Rathod, father-in-law of the accused has also supported the case of the prosecution. He deposed that since his daughter, Jyoti, underwent an operation, he had asked the accused to take her back after couple of days, upon which the accused got angry and pushed him. He has further deposed about the manner in which the incident has taken place in the evening. We have also gone through the evidence of PW-6, Iqbalkaur Uttamsing Lotivan, who also got injured in the incident. This witness has also supported the case of the prosecution. Evidence of these witnesses is also supported by medical evidence as they have taken treatment for the injuries sustained by them in the incident. We have also gone through the complaint, Exh. 24, wherein name of the accused was given immediately after the incident and the incident is also narrated. We have also gone through inquest panchnama, which also supported the case of the prosecution. In view of these, we are of the opinion that the prosecution has proved its case beyond reasonable doubt against the accused and it cannot give rise to any other conclusion except that the accused is guilty of the offence. Therefore, in our view, the prosecution has proved its case beyond reasonable doubt against the accused and the trial Court has not committed any error in convicting the accused for the offences alleged against him. Therefore, this appeal is required to be dismissed. 6. Therefore, in our view, the prosecution has proved its case beyond reasonable doubt against the accused and the trial Court has not committed any error in convicting the accused for the offences alleged against him. Therefore, this appeal is required to be dismissed. 6. For the foregoing reasons, this Criminal Appeal is dismissed. The impugned judgment and order dated 05.05.2011 passed by learned Additional Sessions Judge, Court No. 11, City Sessions Court, Ahmedabad, in Sessions Case No. 101 of 2010 is hereby confirmed. At this stage, Mr. Barot, learned advocate for the appellant-accused requested that the accused may be given benefit of remission after completion of requisite period. Therefore, it is observed that upon completion of requisite period, case of the accused may be considered for remission. The period of sentence already undergone by the accused be given set off to him. Bail bond, if any, stands cancelled. Record and proceedings be sent to the Court below forthwith.