Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 973 (GUJ)

Deepak Manga Maru v. State of Gujarat

2016-05-04

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. This appeal is filed against the judgment and order dated 12.07.2011 passed by learned Sessions Judge, Surat, in Sessions Case No. 298 of 2009, whereby the present appellant-original accused was convicted for the offence punishable under Sections 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for life with a fine of Rs. 1,000/- and, in default of payment of fine, further simple imprisonment of one year was awarded. 2. The case of the prosecution is that the accused was building a hut in the open space opposite Patali Hanuman Temple, Mugalisara, Surat, therefore, the priest of the temple, Avdhesdasji, asked him not to do so. Therefore, the accused took up a quarrel with him. On 6.6.2008, when said priest came out of the temple after doing prayers, at about 10.15 a.m., the accused started a quarrel with him and also started beating him. As a woman working in the temple had seen it and shouted, complainant and two cooks Lalit and Mishraji reached there. At that time, the accused attacked said Avdheshdasji with a knife and caused injuries on his chest and hand. Since Lalit tried to save the priest, he was also attacked with the knife and an injury was caused on his face by the accused. Thereafter, again the accused caused knife blows to the priest. Since the priest was profusely bleeding he was shifted to Civil Hospital, where he was declared dead. Therefore, the complaint was lodged against the accused with police. 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 was 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:- S. No. Name Exhibit 1. Sanjay Shitalprasad 10 2. Mahemud Abdul 12 3. Amarsinhbhai Bhagvanbhai 14 4. Saiyed Asfak Saiyed Abbas 19 5. Dilipbhai Laxmanbhai 25 6. Mukeshbhai Narottambhai 27 7. Usman Abdul Kadar 28 8. Mohd. Sharif Mohd. Umar 29 9. Mansur Yunusbhai 31 10. Ravindra Sakharam 36 11. Jagdishchandra Chunilal 40 12. Alpesh Ambubhai 41 13. Mitesh Satishbhai 43 14. Majfar Mansukh Shaikh 46 15. Imtiyaz Ismail 49 16. Amarsinhbhai Bhagvanbhai 14 4. Saiyed Asfak Saiyed Abbas 19 5. Dilipbhai Laxmanbhai 25 6. Mukeshbhai Narottambhai 27 7. Usman Abdul Kadar 28 8. Mohd. Sharif Mohd. Umar 29 9. Mansur Yunusbhai 31 10. Ravindra Sakharam 36 11. Jagdishchandra Chunilal 40 12. Alpesh Ambubhai 41 13. Mitesh Satishbhai 43 14. Majfar Mansukh Shaikh 46 15. Imtiyaz Ismail 49 16. Ambaben Hiralal 50 17. Modh. Iqbal Shaikh Ajgarali 51 18. Abdulgani Shaikh 52 19. Avdehdas Ramgajadhardas 54 20. Naresh Jagmohan Shekhadiya 55 21. Haridas Totaram Vairagi 56 22. Kundan Vitthal Aahir 58 23. Javedali Mohd. Ali 59 24. Rajubhai Devabhai Ahir 60 25. Rajesh Prabhubhai 61 26. Dr. Shaktikumar Jivanbhai Ambaliya 62 27. Dr. Gaurang Jagdishchandra Patel 65 28. Bhanubhai Laghabhai Vavaiya 68 29. Rajabhai Govabhai Desai 77 30. Raybhansinh Kanaji Chavda 85 2.3 The prosecution has also produced and relied upon following documentary evidence:- S. No. Description Exhibit 1. Complaint 11 2. Inquest panchnama 13 3. Panchnama of the place of offence 15 4. Panchnama of the clothes of the deceased given by the doctor 20 5. Panchnama of seizure of motor cycle and the purse of the accused as he ran away 26 6. Panchnama of search of house of the accused 30 7. Discovery panchnama 32 8. Arrest panchnama 42 9. Panchnama of seizure of jeans pant and one another article from the place shown by the accused 47 10. Yadi written for taking blood sample 63 11. Case papers of Lalitbhai Shubhkantbhai 64 12. PM Note 66 13. Cause of death certificate 67 14. Notification of the Police Commissioner 69 15. Report to FSL for giving report after analysis of muddamal 70 16. Dispatch note 71 17. Receipt of the muddamal 72 18. Report of FSL 73 19. Serology report 74 20. Report of the information regarding vehicle received from RTO 75 21. Suchipatra 78 22. Spot visit report of FSL 79 23. Report to FSL for giving report after analysis of muddamal 80 24. Dispatch note 81 25. Receipt of muddamal 82 26. Report of FSL 83 27. Serology report 84 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. Serology report 84 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. Maulik Soni, 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 submitted that majority of the prosecution witnesses have turned hostile and the prosecution has failed to prove its case against the accused. He further submitted that the complainant and cooks being the employees of the temple have supported the case of the prosecution and the appellant is wrongly roped in, since he is a poor man. He further submitted that real culprit has gone scot-free and the present appellant has been wrongly convicted by the trial Court. He further submitted that even the panchas of the inquest panchnama, discovery panchnama and scene of offence panchnama have turned hostile. He further submitted that even PW-17 to PW-20 have also turned hostile. He further submitted that the prosecution has failed to prove that the injuries caused to the deceased were caused with muddamal weapon knife. In view of all these submissions, he prayed to allow present appeal by setting aside the impugned judgment. He further submitted that even if this Court finds the accused guilty, considering the fact that there is only one injury which has resulted into death of the deceased, the accused may be granted benefit of exception as provided in Section 300 and the punishment imposed upon him may be suitably altered. 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 submitted that the complainant is a natural witness and he reached the scene of offence immediately. She submitted that the trial Court has rightly appreciated the evidence on record and convicted the accused. She submitted that the complainant is a natural witness and he reached the scene of offence immediately. She further submitted that one Mishraji and Lalit had also reached the scene of offence along with the complainant. She further submitted that though one Lalit, who also received injuries in the incident is not examined, the fact of his receiving the injuries is supported by the medical evidence. She further submitted that PW-8, 9 and 11 have also strongly supported the case of the prosecution, therefore, the trial Court has rightly convicted the accused. 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. Soni, 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 hemorrhage as a result of stab injury to heart. From column No. 17 of the postmortem report, it is clear that there were as many as five injuries caused to the deceased and two of them were stab injuries, which were caused on the vital part of the body. We have gone through the deposition of Sanjay Shitalprasad, PW-1, Exh. 10, wherein he has deposed that the incident had happened on 6.6.2008 and at that time he was in the kitchen and after hearing the shouts he came out. He deposed that at that time the accused was fighting with the deceased. He further deposed that along with him Lalit and Mishraji had also came running to the spot. He deposed that the accused caused injuries with knife to the accused and since Mishraji and Lalit intervened, Lalit also received injuries. He further deposed that the accused was saying, "why you are not allowing me to build a hut." Even the panch of the panchnama of discovery of muddamal knife has also supported the case of the prosecution. He deposed that the accused caused injuries with knife to the accused and since Mishraji and Lalit intervened, Lalit also received injuries. He further deposed that the accused was saying, "why you are not allowing me to build a hut." Even the panch of the panchnama of discovery of muddamal knife has also supported the case of the prosecution. It has also come on record that the blood group of the deceased was "B" and the blood found from the place of incident, clothes of the accused and the muddamal knife was also of "B" group, therefore, this evidence also supports 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. For the foregoing reasons, this Criminal Appeal is dismissed. The impugned judgment and order dated 12.07.2011 passed by learned Sessions Judge, Surat, in Sessions Case No. 298 of 2009 is hereby confirmed. At this stage, Mr. Soni, 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 14 years' imprisonment, the State Government may consider the case of the accused 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 back to the Court below forthwith.