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2016 DIGILAW 979 (GUJ)

Kanubhai Lakhabhai Chaudhary 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 Principal District & Sessions Judge, Tapi at Vyara in Sessions Case No. 54 of 2010 dated 26.07.2012 whereby, the appellant, original accused, has been convicted for the offences punishable u/s. 302 IPC and Section135 of B.P. Act. For conviction u/s. 302 IPC, the appellant has been sentenced to undergo imprisonment for life and fine of Rs. 500/- and in default, SI for seven days; and for conviction u/s. 135 B.P. Act, he has been sentenced to undergo SI for four months and fine of Rs. 100/- and in default, SI for seven days. Both the above sentences were ordered to run concurrently and the sentence already undergone by the accused was given set-off. 2. The facts in brief are as under; "The original complainant, Kapilaben Kushalbhai Chaudhary is a resident of Village Borakhdi, Taluka Vyara, District Tapi. Jantiben, the maternal aunt of the complainant, was residing along with her family in the same village. The appellant herein, original accused, was residing in the neighborhood of the complainant." 2.1 On 04.09.2010 at around 1730 hrs., while the complainant was passing near the house of Arunaben, who is the daughter of her aunt, she noticed that a mango tree that had grown in the veranda of their house had been cut down. The complainant, thereafter, returned to her home. Around that time, she noticed that her aunt Jantiben passed through the road in front of the house, during which time, she was cursing about the cutting of the mango tree. Thereafter, her aunt-Jantiben went to the house of the appellant herein and questioned him as to why he had cut down the mango tree, which resulted into a quarrel between them. After some time, Jantiben returned towards her house. At around 1745 hrs., the appellant came from the behind with an axe and inflicted an axe blow on the neck of Jantiben on account of which Jantiben sustained severe injury and fell on the ground. The complainant and other family members rushed to the scene, by which time, the appellant left the place. 2.2 A complaint in connection with the aforesaid incident was lodged with Vyara Police Station vide I-C.R. No. 133/2010. Necessary investigation was done and the accused came to be arrested. The complainant and other family members rushed to the scene, by which time, the appellant left the place. 2.2 A complaint in connection with the aforesaid incident was lodged with Vyara Police Station vide I-C.R. No. 133/2010. Necessary investigation was done and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately, trial was initiated. 2.3 During the trial, the prosecution had examined following witnesses; Wt. No. Name of Witness Exhibit No. 1 Dr. Tarlika Chandubhai Chaudhary 8 2 Kapilaben Khushalbhai Chaudhary 23 3 Bhikhiben Keshabhai Gamit 25 4 Riteshbhai Mohanbhai Chaudhary 27 5 Lakhdiben Bavjibhai Chaudhary 28 6 Kokilaben Nileshbhai Chaudhary 29 7 Nileshbhai Gamanbhai Chaudhary 30 8 Maheshbhai Govindbhai Chaudhary 31 9 Riteshbhai Dhirubhai Chaudhary 32 10 Jitendrabhai Harsing Chaudhary 34 11 Chimanbhai Machabhai Chaudhary 36 12 Rakeshbhai Natubhai Chaudhary 38 13 Manubhai Kesabhai Chaudhary 39 14 Roopsing Kesabhai Chaudhary 41 15 Pravinbhai Roopsing Chaudhary 42 16 Jinabhai Chaganbhai Chaudhary 43 17 Gamanbhai Posliyabhai Chaudhary 46 18 Arunaben Roopsing Chaudhary 49 19 Ramchandrabhai Bhila Chaudhary 50 20 Dhirubhai Govind Kanthariya 51 3. The prosecution had produced and relied upon several documentary evidence, particularly, the Postmortem report at Exh. 13, inquest panchnama at Exh. 14, Preliminary report of FSL at Exh. 17, complaint at Exh. 24, panchnama of scene of offence at Exh. 33, FSL Report at Exh. 53 and Serological Report at Exh. 54. 4. At the end of trial, the Court below recorded further statement of accused u/s. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal. 5. Mr. Pratik Barot, learned counsel appearing on behalf of the appellant, fairly conceded that he would not be in a position to assail the impugned judgment on merits insofar as the involvement of appellant in the crime is concerned. He, however, submitted that since the deceased died on account of a single blow, the conviction of appellant may be altered to Section 304 Part-I IPC. 5.1 In support of his submissions, learned counsel Mr. He, however, submitted that since the deceased died on account of a single blow, the conviction of appellant may be altered to Section 304 Part-I IPC. 5.1 In support of his submissions, learned counsel Mr. Barot placed reliance upon the following decisions; "(A) Ghapoo Yadav and others v. State of M.P., (2003) 3 SCC 528 wherein, it has been held that Exception 4 of Section 300 can be invoked if death is caused; (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. (B) Nanak Ram v. State of Rajasthan, 2014 (1) Crimes 244 (SC) wherein, it has been held that where death was caused on account of injuries inflicted in sudden quarrel and it was found that out of 9 injuries only one injury proved to be fatal, then Exception 4 of Section 300 would apply and the offence would fall u/s. 304 Part-I IPC." 6. Ms. C.M. Shah, learned APP, submitted that though death was caused on account of the single axe blow on the neck, the deceased had sustained two other axe blow injuries at the hands of the appellant, which is evident from the Postmortem report. She submitted that the appellant had caused injuries to the deceased, without there being any provocation or instigation at the ends of the deceased. Hence, the conviction recorded by the Court below u/s. 302 IPC is just and legal. 7. We have heard learned counsel for both the sides and perused the documents on record. The prosecution placed reliance upon the evidence of Dr. Tarlikaben Chandubhai Chaudhary (PW-1) to prove the aspect of homicidal death. This witness is the Medical Officer, who had performed the autopsy. In the Postmortem report (Exh. 13), cause of death has been stated as "cardio-respiratory arrest due to injury over the trachea and great vessels of the neck, which led to severe hemorrhagic shock". Having considered the medical evidence on record, there remains no doubt in our minds that deceased died a homicidal death. 8. The prosecution projected complainant-Kapilaben Khushalbhai Chaudhary (PW-2) as an eye-witness to the incident in question. In her evidence, she categorically deposed about the role played by the appellant. It is established from her evidence that the appellant was residing in her neighborhood. 8. The prosecution projected complainant-Kapilaben Khushalbhai Chaudhary (PW-2) as an eye-witness to the incident in question. In her evidence, she categorically deposed about the role played by the appellant. It is established from her evidence that the appellant was residing in her neighborhood. Therefore, there does not arise any question of misidentifying the assailant. 9. Apparently, the dispute took place on account of a trivial issue relating to cutting of a tree. It transpires from the evidence of complainant (PW-2) that after the verbal quarrel of deceased with the appellant got over, the deceased left for her house. While the deceased was passing through the road situated near the house of complainant, the appellant attacked the deceased from behind with an axe. The record also shows that the aforesaid assault took place fifteen minutes after the deceased left for her house. This sequence of events establish that there was no provocation or instigation at the ends of deceased, which had compelled the appellant to commit the crime. This shows the mental condition of the appellant and proves the fact that he was furious with the deceased for having come up to his residence and for reprimanding him. 10. Having gone through the evidence of complainant (PW-2), it is established that she is an eye-witness to the incident in question. Her testimony gets corroboration from the complaint (Exh. 24). This witness has been cross-examined at length by the other side, however, nothing incriminating has come out, as would render her evidence unreliable or non-trustworthy. 11. The prosecution case gets support from the evidence of Riteshbhai Mohanbhai Chaudhary (PW-4), who is the son-in-law of deceased and Kokilaben Nileshbhai Chaudhary (PW-6), who is the relative of deceased. Both have narrated facts similar to that of complainant (PW-2). Having gone through the evidence of these two witnesses, we have no hesitation in holding that they are also eye-witness to the incident in question. 12. Considering the oral evidence on record in the form of testimony of complainant, Kapilaben Khushalbhai Chaudhary (PW-2), Riteshbhai Mohanbhai Chaudhary (PW-4), and Kokilaben Nileshbhai Chaudhary (PW-6), we are of the view that the Court below has not committed any error in convicting the appellant for the crime in question. 13. An alternate submission was raised by learned counsel Mr. 12. Considering the oral evidence on record in the form of testimony of complainant, Kapilaben Khushalbhai Chaudhary (PW-2), Riteshbhai Mohanbhai Chaudhary (PW-4), and Kokilaben Nileshbhai Chaudhary (PW-6), we are of the view that the Court below has not committed any error in convicting the appellant for the crime in question. 13. An alternate submission was raised by learned counsel Mr. Barot that conviction of the appellant may be altered to Section 304 Part-I IPC on the ground that death was caused on account of single blow. In this context, it would be relevant to refer to a decision of the Apex Court in the case of Som Ram @ Soma v. State of H.P. reported in AIR 2013 SC 1649 . In that case, it was held that culpability of accused cannot be determined by assuming that he had inflicted only one injury on the deceased and that if the injury inflicted by accused was imminently dangerous and in all probability, would have caused death of deceased, then conviction of accused for the offence of murder was proper. 14. In the present case, the medical evidence on record shows that deceased died on account of fatal injury sustained on the neck, which was sufficient to cause death. Therefore, though the deceased died of a single blow, the conviction of accused could not be altered to Section 304 Part-I IPC since the injury on the neck was sufficient to cause death in the ordinary course of nature. Hence, the decisions relied upon by learned counsel for the appellant shall not be of any help to the appellant. In view of the aforesaid, the conviction of appellant would essentially fall u/s. 302 IPC and not u/s. 304 Part-I IPC in view of the principle rendered in Som Ram's case (supra). 15. For the foregoing reasons, the appeal is dismissed. The impugned judgment and order passed by the learned Principal District & Sessions Judge, Tapi at Vyara in Sessions Case No. 54/2010 dated 26.07.2012 stands confirmed. It is, however, clarified that imprisonment for life shall not mean imprisonment till the last breath and that the State may grant benefit of remission to the appellant, original accused, at the appropriate time. The appeal stands disposed of accordingly. Records and proceedings, if lying here, be sent to the trial Court forthwith.