Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 906 (GUJ)

Dineshbhai Jayantibhai Tadvi v. State of Gujarat

2016-04-27

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. By way of this Appeal, the appellant accused has felt aggrieved by the judgment and order of conviction and sentence dated 22.11.2010 passed by the learned Sessions Judge, Narmada at Rajpipla in Sessions Case No. 22/2010 whereby the accused was convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life and pay a fine of Rs. 3,000/- and in default of payment of fine, further simple imprisonment for a period of six months. The accused was acquitted for the offence punishable under Section 135 of the Bombay Police Act. The accused was given the benefit of set off for the period undergone in jail. 2. The case of the prosecution is as under:-- "2.1. It is the case of the complainant that on 03.04.2010 all the family members had their dinner and had gone to sleep. The Sarpanch of Nagatpore (Koti) Gajendrabhai Ramabhai Tadvi came at around 11.00 p.m. and informed the complainant that the brother-in-law of the complainant (sister's husband) - Dineshbhai had inflicted an axe blow on the neck of the complainant's sister - Induben and her body was lying in the house itself. Hearing this, the complainant and another member in the family - Natubhai Sundarbhai Tadvi rushed to the complainant's sister's home and found that there was no one present in the home and Induben was lying dead. There were marks of injuries inflicted by the axe on the neck of the deceased and the axe also had blood stains on it. Besides the body of the deceased, there was a shirt having blood stains. 2.2. On the basis of the complaint lodged by the complainant at Kevadia Police Station registered as I-C.R. No. 5/2010, the investigation commenced. At the end of the investigation, the chargesheet against the accused were filed in the Court of the learned Judicial Magistrate First Class, who in turn, committed the case to the Sessions Court, it being Sessions triable. The trial Court framed the charge, to which the accused pleaded not guilty and claimed to be tried. 2.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exh. PW1 – Medical Officer Fr. The trial Court framed the charge, to which the accused pleaded not guilty and claimed to be tried. 2.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exh. PW1 – Medical Officer Fr. Subodh Kamleshkumar Patel 7 PW2 – Complaint Jivanbhai Jinabhai Tadvi 10 PW3 – Panch Witness Gulabhai Kuvarjibhai Tadvi 12 PW4 – Panch Witness Pravinbhai Madhubhai Tadvi 14 PW5 – Witness Amitaben Hiteshbhai Tadvi 17 PW6 – Witness Hiteshbhai Gordhanbhai Tadvi 18 PW7 – Panch Witness Iqbalkhan Ismailkhan Pathan 19 PW8 – Investigating officer Kanchanbhai Nanjibhai Rathva 22 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Police Yadi 8 Post Mortem Report 9 Panchnama of the scene of offence 13 Inquest panchnama 15 Panchnama of the seizure of clothes from the body of the deceased 20 Panchnama of the position of body of the accused 21 Original complaint 23 Local FSL Report 24 Forwarding Note 25 FSL Report 26 Seriological Report 27 2.4. At the end of the trial, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which the accused pleaded not guilty and stated that he has been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeal has been filed, as aforesaid." 3. Learned Advocate for the accused Mr. Umang H. Oza has taken this Court to the evidences led by the complainant as well as other evidences and has submitted that the entire case rests on circumstantial evidence. Learned Advocate for the accused has also taken this Court to the medical evidence which states that the cause of death is on account of 'hemorrhagic shock following multiple injury'. It is further submitted that there were no eye witnesses to the above incident and therefore, the motive qua the accused to commit the murder of the deceased cannot be proved and therefore, the case of the prosecution is doubtful. Considering the above, it is submitted that the benefit of doubt should be granted to the appellant accused herein and the judgment and order of conviction and sentence of the learned Judge should be converted into Section 304 Part II of the Indian Penal Code. 4. Considering the above, it is submitted that the benefit of doubt should be granted to the appellant accused herein and the judgment and order of conviction and sentence of the learned Judge should be converted into Section 304 Part II of the Indian Penal Code. 4. Learned Additional Public Prosecutor Mr. Pranav Trivedi has taken this Court to the judgment and order of the learned Sessions Judge and has submitted that the learned Judge has given cogent and convincing reasons to arrive at the conviction and sentence of the accused. It is submitted that the deceased and the accused herein were relatives and the accused had harboured a suspicion on his own wife and therefore, he had committed the above act of murder. It is also submitted the evidence of PW6 - Hiteshbhai Gordhanbhai Tadvi clearly states that he had seen the accused running away from the scene of offence. Considering the above, it is submitted that the acts of the accused would amount to culpable homicide leading to murder and therefore, this Court should not interfere in the well reasoned judgment and order of the learned Sessions Judge. 5. We have heard learned Advocates appearing for the respective parties and perused the records of the case. At this stage, we would like to refer to the post mortem Report of the deceased. Relevant part of the said Report is reproduced as under:-- 17. External Injuries : Their nature, position, dimensions and direction to be accurately stated, their probable age and caused to be noted. : 1) A large cut measuring 7cm x 4cm x 4cm depth over neck at left side back. 2) Along cut over front neck left side measuring 4cm x 1cm x ½ cm deep with a horizontal cut in the middle. 3)Three horizontal cut at the back around the left side of the neck measuring a) 3cm x 1cm x ½cm deep b) 3cm x ½cm x ½cm deep c) 2½cm x ½cm x ½cm deep 4) A traverse cut over right side of neck measuring 4cm x 3cm x 1cm 5) On right shoulder an abrasion wound of 4cm x ¼cm. 6) A small cut 1cm x ½cm over left joint. It would also be relevant to refer to Section 302 of the Indian Penal Code which reads as under:-- "Punishment for murder. 6) A small cut 1cm x ½cm over left joint. It would also be relevant to refer to Section 302 of the Indian Penal Code which reads as under:-- "Punishment for murder. -- Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine." From the above, and as certified by the Doctor who conducted the post mortem report, it is not in dispute that the cause of death of the deceased was due to hemorrhagic shock following multiple injury. The injuries further reveal that the act of the accused was that of culpable homicide leading to murder. The evidence led by particularly PW6 - Hiteshbhai Gordhanbhai Tadvi all arrive to the conclusion that it was the accused who was present at the scene of offence and who had carried out the attacks on the deceased which ultimately resulted into her death. Besides, the accused has not been able to explain his absence after the commission of the crime. In the facts of the case, we are of the view that the learned Sessions Judge had minutely examined all the evidences that were led by the prosecution and has given cogent and convincing reasons to hand over the sentence as stated above and prosecution has proved the case beyond reasonable doubt. Therefore, we are in complete agreement with the view taken by the learned Sessions Judge. 6. The Appeal is devoid of merits and is dismissed accordingly. The judgment and order of conviction and sentence dated 22.11.2010 passed by the learned Sessions Judge, Narmada at Rajpipla in Sessions Case No. 22/2010 is hereby confirmed. The State may consider the period of sentence already undergone by the accused for remission, in accordance with law at the appropriate period of time. Record and proceedings be sent to the concerned Trial Court forthwith.