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2017 DIGILAW 780 (GUJ)

Bhupendrasingh v. State of Gujarat

2017-04-11

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

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JUDGMENT : Biren Vaishnav, J. 1. This appeal has been filed by the convict challenging his conviction and sentence for the offences under section 302 of IPC. 2. By the judgment and order dated 26.06.2012 passed by the learned Additional Sessions Judge, Ahmedabad City, the appellant-accused has been sentenced to undergo life imprisonment and fine of Rs. 5000/- in default thereof. For the offence under section 135 of the Bombay Police Act, he has been acquitted. The charge at Exh 3 was framed by the learned Sessions Judge which reads thus: "Devilal Udaji Chandel, owner of a pan shop demanded from the accused a sum that the accused owed to him towards some cold drinks that he had consumed. On such demand being made on 11.01.2010 at about 2:45 in the afternoon, the accused with a knife in his hand inflicted repeated blows causing Devilal's death. The accused was, therefore, charged for offence under section 302 of IPC." 3. Mukeshbhai Jivanbhai Tandel was the first informant and an eyewitness. He was examined as PW 1 at Exh 13. According to the informant, he was the owner of a factory at Rakhial near Chakudia Mahadev Temple. Devilal had a shop next door. He further testified that he had seen Bhupendrabhai inflicting two blows on Devlilal. Devilal was profusely bleeding. He alongwith his brother, therefore, immediately rushed to the shop and carried Devilal to the Shardaben Hospital. According to this witness, the cause of the incident as narrated by Devilal when he was being taken to the hospital was an argument that Devilal had with accused Bhupendra about the money that he owed to him. The incident occurred at 3:00 in the afternoon. This witness further stated that he had seen the accused attacking the deceased with a knife. He identified the muddamal article knife. This witness further testified that after Devilal was attacked, he along with his brother Jagdish had tried to intervene and stop the fight, at which point of time, the accused tried to attack his brother. Devilal was carried to the hospital with the help of the complainant's brother Jagdish and Devilal's son. His brother Yogesh also accompanied the two to the Shardaben Hospital in an auto rickshaw. He confirmed to have lodged the first information report at Exh 14. The witness was cross-examined. Devilal was carried to the hospital with the help of the complainant's brother Jagdish and Devilal's son. His brother Yogesh also accompanied the two to the Shardaben Hospital in an auto rickshaw. He confirmed to have lodged the first information report at Exh 14. The witness was cross-examined. He agreed to the suggestion that Yogesh, his brother had accompanied him in an auto rickshaw and they had carried Devilal to the hospital at around 3:50 in the afternoon. This witness was cross-examined on the proximity of Devilal's shop. He agreed that between the shop of Devilal and his, there was one shop at a distance of about 15 to 20 ft. He agreed to the suggestion made that he had seen Devilal falling on the ground when being attacked by the accused Bhupendrabhai. 4. PW 9, Yogesh Jivanlal Tandel was examined at Exh 38. He was the brother of the complainant and also an eyewitness to the incident. According to his testimony, at the time when the incident occurred he along with his brother Mukeshbhai was present at the shop. It was at around 2:45 in the afternoon that he saw Devilal and the accused Bhupendrabhai arguing with each other. In the midst of the arguments, he saw the accused taking out a knife and attacking the deceased Devlilal. This incident occurred in front of Devilal's shop. This witness was also cross examined on the issue of the proximity of his shop to that of Devilal's and he admitted that the shop was at a distance of about 15 to 20 ft. When the incident occurred, he had witnessed the entire incident. 5. Dr. Narendrabhai Kothari, PW 11, was the Medical Officer who has been examined at Exh 40. He initially treated the deceased at the Shardaben Hospital. The defence has tried to capitalize on the cross examination of this witness to say that no history was recorded in the medical certificate issued by this doctor at Exh 41. 6. Dr. Beenaben Kantilal Parikh, PW 8, Exh 35 had carried out the postmortem. The postmortem report has been produced at Exh 36 in which it is stated that the deceased sustained injuries as a result of being inflicted repeated blows by the knife. The external injuries that have been recorded in the testimony of this doctor are as under: "1. Dr. Beenaben Kantilal Parikh, PW 8, Exh 35 had carried out the postmortem. The postmortem report has been produced at Exh 36 in which it is stated that the deceased sustained injuries as a result of being inflicted repeated blows by the knife. The external injuries that have been recorded in the testimony of this doctor are as under: "1. 5x2 cm vertical stab wound on right abdomen 5 cm suprolateral to umbilicus and 2 cm right to mid-line upper angle acute lower angle broad; 2. 4x2.5 cm vertical triangular shape stab wound with angle inferior on right upper chest 2 cm medial to anterior axillary fold and 6 cm suprolateral to nipple lower angle acute upper angle broad; 3. 4x2 cm oblique stab wound on right upper lateral chest directed downwards backwards 5 cm below axilla in midaxillary line with 3 cm linear ailing effect at upper and anterior angle upper angle acute lower angle broad; 4. 4x2 cm vertical stab wound on left upper chest over medial clavicular region 3 cm left to midline and 10 cm superomedial to left nipple lower angle acute upper angle broad; 5. 4x2 cm vertical stab wound on left upper chest 2.5 cm fat 2.5 cm lateral and parallel to injury No. 4, lower angle acute upper angle broad; 6. 3x2 cm vertical triangular stab wound with angle upper on left lateral chest 7 cm posterior axillary fold in posterior axillary line, upper angle acute lower angle broad; 7. 4x0.5x0.5 cm transverse incised wound on back of right forearm 9 cm above wrist; 8. 6 cm transverse linear incised wound limited to skin on left upper arm just lateral to anterior axillary fold; 9. 3x1 cm vertical stab wound on medial aspect of left arm 10 cm below axillary fold upper angle acute lower angle broad; 10. 1.5x0.5x1 transverse incised wound on left index finger at anterolateral aspect of proximal ip joint All the stab wounds having margins sharply cut and inverted blood and clots present at margins and tract of all stab wounds and incised wounds." 7. Internal injuries are as under: "Injury No. 1 goes in abdominal cavity upwards laterally wall, peritoneum, mesentery, small intestine through and through lateral and inferior of rt liver 1.5x0.5x1 cm causing haemoperitonneum about 400 ml, course of wound about 7 cm. Internal injuries are as under: "Injury No. 1 goes in abdominal cavity upwards laterally wall, peritoneum, mesentery, small intestine through and through lateral and inferior of rt liver 1.5x0.5x1 cm causing haemoperitonneum about 400 ml, course of wound about 7 cm. Injury No. 2 goes upwards medially behind clavicle in neck soft tissue and muscles 8 cm deep. Injury No. 3 goes upwards backwards 7 cm chest wall muscle deep outside cavity. Injury No. 4 goes downwards medially cutting chest wall and rib and clavicle, ascending aorta near arch with pericardial covering 2x0.5 cm causing hemorrhage, left haemorthrorax 250 ml, haemopericardium 100 ml, course of wound about 7 cm. Injury No. 5 goes upwards medially above clavicle 7 cm deep neck cutting soft tissue and muscles Injury No. 6 goes upwards backwards 6 cm muscle deep in wall outside cavity." 8. In the opinion of the doctor, the cause of death was due to shock and hemorrhage as a result of multiple stab wounds over the body. The testimony of the doctor further confirmed that the nature of wounds that the deceased sustained was possible to have been caused by the muddamal article knife. 9. PW 5 is the panch witness of the discovery panchnama at Exh 27. He has supported the panchnama. The reading of Exh 27 panchnama elicits the fact that the accused led the police party through the road of Chakudia Mahadev temple. They got off from the jeep at the wall of a school. From behind an electric pole of the Torrent company, he took a knife which was used for the commission of the offence. The FSL report together with the serological report is produced at Exh 55. The blood group of the deceased is 'B' which was found on the muddamal article knife that was used to carry out the offence. 10. This is the nature of evidence on record. 11. Complainant Mukeshbhai Jivanbhai Tandel, PW 1 was an eyewitness to the incident. He had a factory right next to the shop of the deceased. From the version that the complainant narrated in the complaint at Exh 14 which is supported through his testimony at Exh 13, what is indicated is that the complainant who was the owner of a factory next door had seen Devilal being hit with a knife at the hands of Bhupendrabhai, the accused. From the version that the complainant narrated in the complaint at Exh 14 which is supported through his testimony at Exh 13, what is indicated is that the complainant who was the owner of a factory next door had seen Devilal being hit with a knife at the hands of Bhupendrabhai, the accused. He carried Devilal to the hospital in the company of his brother Yogesh. That the shop was in the vicinity of the pan shop of the deceased has also come out in the cross examination of this witness. 12. Yogesh Jivanlal Tandel, PW 9, the brother of the complainant who was also present at the shop on the date of the incident has categorically stated that he had seen Devilal and the accused Bhupendrabhai arguing in front of their shop. In the midst of the argument, according to the testimony of this witness, accused Bhupendrabhai took out a knife and repeatedly inflicted blows on Devilal. That they are the witnesses to the incident who ought to have clearly seen the incident is also confirmed from the cross examination of this witness, that he was at a distance of about 15 to 20 ft from the place where the incident occurred. From the scene of the offence panchnama which is at Exh 17 it is apparent that the shops were on a public road and the proximity of the two shops was not in dispute. 13. Medical evidence on record describes the nature of injuries that the deceased sustained due to repeated blows which resulted in as many as two stab wounds inflicted on Devilal by the accused Bhupendrabhai. 14. The discovery panchnama, through which the weapon which was used was discovered at the hands of the accused and scientific evidence in terms of the serological report at Exh 55 which confirms the presence of blood group 'B' on the weapon, the knife support the prosecution case that it was the accused, who carried out the offensive act. 15. Learned advocate for the appellant Ms. Sadhna Sagar has contended that looking to the evidence on record, there was no premeditation, that the incident occurred at the spur of the moment and looking to the injuries, the conviction be altered from that under section 302 to one under section 304 Part II. 15. Learned advocate for the appellant Ms. Sadhna Sagar has contended that looking to the evidence on record, there was no premeditation, that the incident occurred at the spur of the moment and looking to the injuries, the conviction be altered from that under section 302 to one under section 304 Part II. From the eyewitnesses' accounts of witnesses Mukeshbhai and Yogeshbhai, it is evident that Devilal and Bhupendrabhai, the accused, had entered into an argument at which point of time the accused who had wielded a knife, attacked deceased Devilal. Medical evidence on record indicates that the deceased sustained as many as 10 stab wounds as a result of being attacked with a knife. 16. In order to fall within the exception under section 300, culpable homicide is not a murder if it is committed without premeditation, in a sudden fight and when the offender having taken advantage of or acted in a cruel or unusual manner. 17. From the evidence of Yogeshbhai PW 9, the brother of the complainant who was also an eyewitness, what is evident is that he had seen the accused arguing with Devilal. Even the complainant Mukeshbhai has, in his complaint as well as in his testimony stated that when they saw Bhupendrabhai hitting the deceased with the knife and when they tried to intervene, the accused ran after his brother Yogeshbhai and also tried to attack him with the knife. The nature of medical evidence on record indicates that the intention of the accused was evident from the nature of injuries and that there was an argument prior to the occurrence of the incident, leaves us to believe that it would not fall within the exception so as to warrant alteration of conviction from that under section 302 to section 304 Part II. 18. Having assessed the evidence, we are of the opinion that the conviction and sentence rendered by the learned Additional sessions Judge finding the appellant guilty for the offence under section 302 of IPC needs to be confirmed. 19. Appeal stands dismissed accordingly. Judgment and order dated 26.06.2012 rendered by the learned Additional Sessions Judge, Ahmedabad City is confirmed. Appeal Dismissed.