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2016 DIGILAW 978 (GUJ)

Gumanbhai Anudiyabhai Dhanuk v. State of Gujarat

2016-05-05

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. This appeal is directed against the judgment and order passed by the learned 4th Addl. District & Sessions Judge, Vadodara, Camp at Chota Udepur in Sessions Case No. 41 of 2011 dated 17.03.2012 whereby, the appellant, original accused, has been convicted for the offence punishable u/s. 302 IPC and has been sentenced to undergo imprisonment for life and fine of Rs. 1000/- and in default, RI for one year. The sentence already undergone by the accused was given set-off. 2. The facts in brief are as under; "On 29.06.2010, at around 1800 hrs., the original complainant, Malsing Udaliya Dhanuk and his family were at their home situated at Chiliyawant. At that time, the appellant herein, original accused No. 1 and original accused No. 2 came near their house and began to hurl abuses at Nankiben, the mother of complainant, inter alia stating that she is a witch and was responsible for the death of the son of original accused No. 2. The complainant asked them to stop using such language. On hearing this, the appellant got enraged and inflicted a 'paliya' blow on the head of Nankiben, which, ultimately, resulted into her death." 2.1 A complaint in connection with the aforesaid incident was lodged with Rangpur Police Station vide I-C.R. No. 40/2010. Necessary investigation was done and the accused persons came to be arrested. At the end of investigation, charge-sheet was filed against the accused persons before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately, trial was initiated. 2.2 During the trial, the prosecution had examined following witnesses; Wt. No. Name of Witness Exhibit No. 1 Malsing Udaliyabhai Dhanuk 6 2 Sadliben malsing Dhanuk 10 3 Mesliben Thavariyabhai Dhanuk 11 4 Sadudabhai Dutiyabhai Dhanuk 12 5 Bhursing Alsingbhai Rathwa 14 6 Dr. Satish Jagdish Prasad 17 7 Radiyabhai Nayakdabhai Dhanuk 21 8 Samdubhai Bajudiyabhai Dhanuk 22 9 Kanubhai Malabhai Rathwa 24 10 Dholiyabhai Dutiyabhai Dhanuk 28 11 Natadabhai Gohaidabhai Dhanuk 29 12 Ramanbhai Mangabhai Rathwa 32 13 Sambhatbhai Chandubhai Rathwa 35 3. The prosecution had produced and relied upon several documentary evidence, particularly, complaint at Exh. 7, panchnama of scene of offence at Exh. 13, inquest panchnama at Exh. 15, Postmortem report at Exh. 20, discovery panchnama at Exh. 31 and FSL Report at Exh. 39. 4. The prosecution had produced and relied upon several documentary evidence, particularly, complaint at Exh. 7, panchnama of scene of offence at Exh. 13, inquest panchnama at Exh. 15, Postmortem report at Exh. 20, discovery panchnama at Exh. 31 and FSL Report at Exh. 39. 4. At the end of trial, the Court below recorded further statement of accused persons u/s. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order by which original accused No. 1, the appellant herein, was convicted, whereas, original accused No. 2 came to be acquitted of all the charges. Being aggrieved by the impugned judgment and order of conviction, the appellant has filed the present appeal. 5. Ms. Kruti M. Shah, learned counsel for the appellant-accused, submitted that the Court below committed serious error in convicting the appellant for the alleged offence. It was submitted that the Court below lost sight of the fact that though independent witnesses were available, nobody was examined and only interested witnesses have been examined. 5.1 It was further submitted that as per the panchnama of place of incident, the house of sister of complainant is not situated near the place of incident. Thus, it becomes doubtful as to whether the so-called eye-witnesses have actually witnessed the incident or not. It is also submitted that there are contradictions and omissions in the deposition of witnesses and that the Court below has failed to appreciate the same. 5.2 Learned counsel Ms. Shah further submitted that the medical evidence on record does not support the prosecution story inasmuch as the Doctor has deposed that injury sustained by deceased was not possible by muddamal - paliya. Hence, the Court below committed serious error in convicting the appellant for the alleged offence. 5.3 Alternatively, it was submitted that the Court below ought not to have convicted the appellant u/s.302 IPC since the Postmortem report (Exh. 20) proves that deceased died of a single injury on the chest. It was, therefore, prayed the conviction of the appellant may be altered to Section 304 Part-I or Part-II IPC. 6. Ms. C.M. Shah, learned APP, supported the impugned judgment and order and submitted that the evidence of complainant, Malsing Udaliyabhai Dhanuk (PW-1) and other witnesses establish the guilt of appellant beyond reasonable doubt. Though the witness is related to the deceased but, his evidence is found to be reliable on all material aspects of the case. 6. Ms. C.M. Shah, learned APP, supported the impugned judgment and order and submitted that the evidence of complainant, Malsing Udaliyabhai Dhanuk (PW-1) and other witnesses establish the guilt of appellant beyond reasonable doubt. Though the witness is related to the deceased but, his evidence is found to be reliable on all material aspects of the case. Hence, the Court below was completely justified in convicting the appellant for the offence u/s. 302 IPC. 7. We have heard learned counsel for both the sides and perused the documents on record. Dr. Satish Jagdish Prasad (PW-6) is the Medical Officer, who had performed the autopsy of deceased. In the Postmortem report (Exh. 20), the cause of death has been stated as "shock due to cardio-respiratory arrest resulting from injury on the head and brain damage". Thus, from the deposition of PW-6 and the Postmortem report (Exh. 20), it is established that deceased died a homicidal death. 8. From the evidence on record, it appears that there are three eye-witnesses to the incident in question, viz. the complainant, Malsing Udaliyabhai Dhanuk (PW-1), his wife-Sadliben Malsing Dhanuk (PW-2) and his sister-Mesliben Thavariyabhai Dhanuk (PW-3). It transpires from the record that the incident in question took place near the house of complainant. Therefore, the presence of these witnesses at the place of incident is genuine and natural. 9. Having gone through the depositions of these three witnesses, it is established that they are eye-witnesses to the incident in question. On all material aspects, their evidence supports the prosecution story. All the witnesses have categorically deposed about the appellant having inflicted a 'paliya' blow on the deceased, which gets support from the medical evidence on record. It is a matter of record that appellant and complainant are cousin brothers. Therefore, there does not arise any question of misidentification also. Hence, the Court below was completely justified in relying upon the evidence of these three witnesses for recording conviction. 10. Apart from the oral evidence on record, the prosecution case also gets support from the discovery panchnama (Exh. 31). Though the panch witnesses have turned hostile but, the prosecution has been successful in proving the panchnama from the evidence of the Investigating Officer. The FSL Report (Exh. 39) also supports the prosecution case. Thus, the prosecution has been successful in establishing the guilt of appellant beyond reasonable doubt. 11. 31). Though the panch witnesses have turned hostile but, the prosecution has been successful in proving the panchnama from the evidence of the Investigating Officer. The FSL Report (Exh. 39) also supports the prosecution case. Thus, the prosecution has been successful in establishing the guilt of appellant beyond reasonable doubt. 11. Insofar as conviction of the appellant u/s. 302 IPC is concerned, we are of the view that the same is erroneous since the evidence on record does not prove that the appellant carried the intention to kill the deceased. The nature of injuries sustained by deceased and the fact that incident took place near the house of complainant puts the act of the appellant under the Exceptions of Section 300 IPC and therefore, the appellant shall stand guilty of the offence of culpable homicide not amounting to murder falling u/s. 304 Part-I IPC. Hence, the conviction of the appellant deserves to be altered to one Section304 Part-I IPC with the punishment of imprisonment for ten years. 12. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and order passed in Sessions Case No. 41/2011 dated 17.03.2012 is modified to the extent that conviction of appellant, original accused, u/s. 302 IPC is altered to one u/s. 304 Part-I IPC and the appellant is sentenced to undergo imprisonment for Ten Years, without disturbing the order regarding fine and default sentence. Rest of the impugned judgment and order remains unaltered. The appeal stands disposed of accordingly. Records and proceedings, if lying here, be sent to the Court below forthwith.