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2018 DIGILAW 268 (GUJ)

DAHYABHAI MANGABHAI VASAVA v. STATE OF GUJARAT

2018-01-25

A.G.URAIZEE, ANANT S.DAVE

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JUDGMENT : ANANT S. DAVE, J. 1 This appeal under Section 374 of the Code of Criminal Procedure, 1973 [for short, `Code, 1973'] is preferred by the appellant against the judgment and order dated 15.06.2011 passed by the learned 3rd [Adhoc] Additional Sessions Judge, Bharuch, Camp at Ankleshwar in Sessions Case No.72 of 2010 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs.5,000/- in default to undergo simple imprisonment for 6 months. 2 The case of the prosecution has geneses in allegations of illicit relationship of wife of the complainant with that of accused and during night hours of the incident around 9:00 to 9:30 pm on 15.03.2010 the accused went inside the house and came out with iron rod and inflicted a blow on the head of deceased causing grievous injuries for which he took preliminary treatment at Civil Hospital, Bharuch and thereupon shifted to S.S.G. Hospital, Vadodara and on 16.03.2010 i.e. the next day morning at 9:00 am succumbed to the injuries. 2.1 At the end of investigation as the case was triable by the Sessions Court upon examination of evidence on record containing 18 PWS and 14 documentary evidence, the appellant came to be convicted and sentenced as stated above. 3 Mr. M.M.Saiyed, learned counsel for the appellant, has taken us through the entire record of the case containing oral as well as documentary evidence and submitted that PW1 and PW2 are brothers of PW8, who is the complainant and PW9 is a distant relative while PW13, PW14, PW14, PW15, PW16 and PW17 are panch witnesses of various panchnamas. The documentary evidence of map Exh.16 postmortem report Exh.19, complaint Exh.24, FSL report with serology Exh.47 and referred to testimonies of PW2, who in his examination-in-Chief specifically referred to name of Budhiyabhai, complainant, PW8, who received injury on head by iron rod by the accused and fell down on the ground and taken to the hospital. No doubt, it is fairly submitted that while recording such evidence whether it was genuine deposition of the PW2 or due to inadvertence or by any mistake such recording had taken place, but in the judgment learned trial Judge believed that it was a typographical error. Further, this witness referred to the scene of offence, nearby house of the accused. No doubt, it is fairly submitted that while recording such evidence whether it was genuine deposition of the PW2 or due to inadvertence or by any mistake such recording had taken place, but in the judgment learned trial Judge believed that it was a typographical error. Further, this witness referred to the scene of offence, nearby house of the accused. In his cross-examination, he admits that while sitting inside his house it would be difficult to see house of Budhiyabhai and when he reached the scene of offence his brother complainant PW8 was dragging Jamnaben, his elder sister-in-law [bhabhi] which was opposite to the house of Iqbalbhai. Further, this witness admits that when incident had taken place, PW8 was not there, but on his own improves upon and states that when PW2 and Santaben went to the scene of offence PW8 had already reached at the scene of offence. That very presence of the above witness is doubtful according to learned counsel for the appellant and PW3 and PW4, police constables, who were examined in the examination-in-chief confirms to have handed over clothes of deceased to the Investigating Officer after postmortem was carried out and dispatch of muddamal for examination to FSL in parcel containing 7 articles. However, this witness PW4 admits about mistake which had taken place in mentioning CR number correctly and instead of 51 of 2010 it is stated as 27 of 2010. That the doctor, PW6, who carried out postmortem on the next day i.e. 16.03.2010 between 16:00 to 17:10 hours referred to injury which were stitched and removal thereof reveal 8x3 cms. hematoma on fronto parietal region and another injury on which several small abrasions 0.5x0.5 cms and injuries were fresh and ante mortem, however, internal injuries were noticed which reveal clotting of blood in both temporal region and fracture of left frontal region. Hemorrhage was found which was also found on left perito fronto region. That cause of death was injury on brain and skull and due to trauma and possibility of such injury by an article like iron rod was not ruled out and it was sufficient in ordinary course to cause death. Hemorrhage was found which was also found on left perito fronto region. That cause of death was injury on brain and skull and due to trauma and possibility of such injury by an article like iron rod was not ruled out and it was sufficient in ordinary course to cause death. 3.1 It is next submitted that no mention was made about depth of wounds so noticed and rest of the evidence, including that of FSL report does not reveal blood stains on iron rod allegedly used by the appellant – accused. No material is brought on record about socalled illicit relationship with wife of the complainant and the deceased except the testimonies of PWs, who are relatives. Further, the origin of the crime was not brought on record and even the accused in a struggle tried to escape and inflicting of injury by iron rod in presence of 5 to 6 persons also creates doubt about the case put up by the prosecution. That the incident had taken place during night hours between 9:00 to 9:30 pm and visibility was so poor in absence of street lights and deposition to the extent of electricity bulb at the cabin-cum-residence of Iqbal would be insufficient to clearly describe about incident. Even complainant has not stated so in his complaint. Lack of intention and inflicting a single blow by iron rod and reluctance on the part of the wife of the PW8 to leave the premise of accused reveal a kind of quarrel and a struggle and even if case of the prosecution is believed, it would not fall under Section 300, but under exception to Section 300(4) of the IPC and therefore it is submitted that the impugned judgment of conviction and sentence may be quashed and set aside or in the alternative conviction may be converted from Section 302 to Section 304, Part II of IPC and reduced to the sentence accordingly. 4 As against the above, learned APP would contend that the version of the eye witnesses is in conformity with the complaint Exh.24 and particularly PW1, PW2, PW8, PW10 and PW11 fully support the case of the prosecution and injuries inflicted by iron rod that too on vital part of the body viz. 4 As against the above, learned APP would contend that the version of the eye witnesses is in conformity with the complaint Exh.24 and particularly PW1, PW2, PW8, PW10 and PW11 fully support the case of the prosecution and injuries inflicted by iron rod that too on vital part of the body viz. fronto perito region resulting into hemorrhage and even fracture would reveal the fact that the accused had gone inside his house and came out with iron rod and then inflicted injuries and, therefore, case put up by the defence cannot be accepted. Our attention is invited to testimonies of PW6 doctor, who carried out postmortem has fully supported case of the prosecution and even map prepared at Exh.16 of the scene of offence and panchnama from the scene of offence would reveal that the incident in question did take place nearby shop-cum-resident of Iqbal and distance of the residence of accused is not too far. Further, learned trial Judge has addressed to the above aspect and has concluded that sufficient light was available in view of testimonies of witnesses that electrical bulb was there nearby door of the shop-cum-residence of Iqbal. In a case like this, when all witnesses have deposed to the extent that wife of the complainant was at the residence of accused and her husband PW8 was insisting to join him itself strengthen the case of the prosecution that some kind of relationship was in existence with accused. 4.1 Be that as it may, according to learned APP, the crux and core of the case of the prosecution about accused inflicting injuries on the head of deceased resulting into death remained consistent throughout and when the testimonies of the witnesses are trustworthy, believable and reliable, mere absence of blood stain mark on iron rod in FSL report would not carry much significance since outer injuries on the head may not have immediately resulted into oozing blood out, but internal damage to the organ viz. brain was serious. About non-examination of incharge Medical Officer of Civil Hospital, Bharuch where the injured was taken treatment, considering the nature of treatment provided or even the injuries are not such type where lacuna will affect the case of the prosecution since nature of injuries, external damage and cause of death possibility of usage of iron rod, etc. is deposed by PW6 doctor who carried postmortem. is deposed by PW6 doctor who carried postmortem. Therefore, the conviction secured by the prosecution and the trial court has believed that the prosecution has proved its case beyond reasonable doubt, the appeal deserves to be rejected and no modification in the conviction so recorded by the trial court warrant any interference by this Court. 5 Having regard to the facts and circumstances of the case and on perusal of entire record of the case containing oral and documentary evidence in the context of submissions made by learned counsel for the appellant and learned APP visavia findings, reasons and conclusions drawn by learned trial Judge in the judgment under challenge, we have noticed the testimonies of witnesses to which reference is made in earlier part of the order and to the extent of consistence it is born out that accused was present at the scene of offence and wife of PW8 was reluctant to join and in the meanwhile some scuffle did take place in which shirt of the accused worn by him was torn off. That absence of intention is clearly revealed from the fact that as such no weapon was brought out from the house and whatever was handy viz. iron rod was taken out and a single blow was inflected, but at the same time such kind of act on the part of the accused certainly attributes that the vital part of the body on which it was inflicted would be sufficient in ordinary course to result into death. While improvements appeared in the testimonies of PW1, PW2, and PW8 including that of mistaken reference about PW8 receiving injury instead of deceased PW2, but core of the testimony did not affect the factum of accused inflicting injury by iron rod. That duty was cast upon the investigation to bring forth the best piece of evidence available on record since initiation of crime and absence of examination of Medical Officer of Civil Hospital, Bharuch is no doubt a serious lapse, but PW6 doctor, who performed postmortem has opined and confirmed about serious injuries, including fracture and hemorrhage and possibility of such injuries by iron rod resulting into death. However, noticing fresh blood while carrying autopsy after about 20 hours around 16:10 to 17:10 hours of next day of incident creates a doubt in the mind about timings etc. However, noticing fresh blood while carrying autopsy after about 20 hours around 16:10 to 17:10 hours of next day of incident creates a doubt in the mind about timings etc. of carrying out such autopsy, but again substance of charge against present appellant is established by the prosecution beyond reasonable doubt and thus involvement of the appellant in the crime for which he is convicted, is to be considered in the context of submissions made by learned counsel for the appellant for giving him benefit of exception of Section 300(4) of the IPC and we find that inflicting of injury by iron rod by the accused preceded by a kind of quarrel and relationship of the wife of the complainant PW8 alleged to have illicit relationship with accused and possibility of struggle is also not ruled out as the shirt of the accused was torn off and the accused had gone inside his house and immediately brought out an article like iron rod for which no intention could be attributed since single blow was inflicted over the head. Further, the appellant was bailed out by this court vie order dated 12.11.2014 in Criminal Misc. Application No.15399 of 2014 remained in jail for about 4 years, 6 months and 15 days and considering the lower strata of the society from which he hails being a tribal, all the above facts persuade us to modify the conviction under section 302 of the IPC to Section 304II of the IPC and to be sentenced accordingly. 6 In view of the above discussion, the criminal appeal is partly allowed. The impugned judgment and order dated 15.06.2011 passed by the learned 3rd [Adhoc] Additional Sessions Judge, Bharuch at Camp Ankleshwar in Sessions Case No.72 of 2010 is modified and, instead of offence punishable under Section 302 of the IPC, accused is convicted for the offence punishable under Section 304, Part II of IPC and reduced to the sentence already undergone i.e. 4 years, 6 months and 15 days, without disturbing the order regarding fine and default sentence. Bail bond, if any, of accused stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.