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2018 DIGILAW 387 (GUJ)

THAKORBHAI MOHANBHAI VASAVA v. STATE OF GUJARAT

2018-02-03

A.J.DESAI, R.P.DHOLARIA

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JUDGMENT : A.J. DESAI, J. 1. The present appeal is preferred by the accused-appellant herein against the judgment and order of conviction and sentence dated 8.12.2011 passed by the Learned 4th Additional Sessions Judge, Vadodara, in Sessions Case No.196 of 2010, whereby the original accused was ordered to undergo (I) life imprisonment for the offence punishable under Section 302 of the Indian Penal Code with a fine of Rs.1000/- and in default to pay fine to undergo imprisonment for one year, (ii) rigorous imprisonment for two years for the offence punishable under Section 452 of the Indian Penal Code with a fine of Rs.500/- and in default to pay fine to undergo simple imprisonment for three months. It was further ordered that all the sentences shall run concurrently. 2. Brief facts of the case are as under :- 2.1 According to prosecution case, on 25/11/09 at around about 9:30 at night the complainant namely Meenaben Golulbhai Vasava was cooking at her father's house at village Dhavat, Ta. Karjen. That the accused was residing near to the complainant house. On the date of incident the accused has come and demanded for physical and sexual relations from the complainant, the complainant has refused for the same and therefore the accused got angry and slapped the complainant near her right eye. 2.2 That the Pravinbhai came to save the complainant, but the accused also beaten Pravinbhai by pulling his hair and kick. The accused has also beaten Shaileshbhai on his right shoulder and near elbow, thereafter the accused has left the house of the complainant by saying that “today he will kill somebody” and came back with axe and hit the blow on the left side on the head near ear of the deceased i.e. Jethabhai Mavjibhai Vasava and runaway. 2.3 Therefore the deceased was taken for the treatment and the complainant has lodged complaint vide FIR No.I-213/09 before Karjen Police Station and the same was registered under Sections 302, 452, 323 and 504 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 2.4 Consequently, upon the complaint of the complainant, the appellant-accused was arrested and the investigation was carried out. 2.4 Consequently, upon the complaint of the complainant, the appellant-accused was arrested and the investigation was carried out. During the course of investigation, the statements of the witnesses were recorded and mudammal discovered were sent to F.S.L. Thereafter, the charge-sheet was submitted against the present accused for the offences punishable under Sections 302 and 452 of the Indian Penal Code and Section 135 of the Bombay Police Act before the learned 4th Additional Sessions Judge, Vadodara. 3. The charge against the present accused came to be framed vide Exh.5. The accused pleaded not guilty and claimed to be tried. The trial commenced wherein, in all, 14 witnesses were examined and 13 documentary evidence were adduced. After the evidence of the complainant was over, further statement of the appellant – accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. 4. After conclusion of the trial the Ld. Judge was pleased to hold guilty present appellant accused for the offence punishable under Section 302 of IPC. The learned Additional Sessions Judge was convicted and sentences life imprisonment and fine of Rs.1000/- failing which the appellant accused has to undergo one year simple imprisonment. Being aggrieved and dissatisfied with the aforesaid judgment and order, the appellant has preferred the present appeal. 5. To bring home the charges levelled against the appellant, the prosecution examined following witnesses before the trial Court :- The Prosecution has produced the following oral evidences in corroboration of their case. Being aggrieved and dissatisfied with the aforesaid judgment and order, the appellant has preferred the present appeal. 5. To bring home the charges levelled against the appellant, the prosecution examined following witnesses before the trial Court :- The Prosecution has produced the following oral evidences in corroboration of their case. No Name of Prosecution Witness P.W. No. Exh Panch Witnesses 1 Pujabhai Bijalbhai Vasava 4 11 2 Bharatkumar Rameshchandra Purohit 7 19 3 Jitsinh Mahijibhai Padhiyar 8 22 Complainant and Witnesses 4 Shaileshbhai Kanchanbhai Vasava 1 8 5 Sumitraben Manharbhai Vasava 2 9 6 Taraben Mangalbhai 3 10 7 Minaben Gokulbhai 5 16 8 Pravinbhai Kanchanbhai Vasava 6 18 9 Kanchanbhai Jethabhai Vasava 9 26 10 Gokalbhai Shanabhai Vasava 10 27 11 Kanjibhai Shanabhai Vasava 11 29 12 Bhupendrabhai Babarbhai Vasava 12 30 13 Dr.Bharatsinh Mansinh Chauhan (Doctor who performed P.M.) 13 32 14 Maganlal Narayanbhai Parmar (Investigating Officer) 14 39 The Prosecution has produced the following documentary evidences : No Name of the documentary evidence Exh 1 Panchnama of the scene of offence 12 2 Slip containing signatures of Panchas 13 3 Slip containing signatures of Panchas 14 4 Complaint of the complainant 17 5 Panchnama as per section-27 20 6 Slip containing signatures of Panchas 21 7 Panchnama of the clothes of deceased 23 8 Slip containing signatures of Panchas 24 9 Yadi for performing PM 33 10 Acknowledgment letter of PHC, Karjan for handing over PM report and blood sample to PI, Karjan. 34 11 Post Mortem Report 35 12 Viscera Report 36 13 Inquest Panchnama 40 14 Report sent alongwith dead body for performing P.M. 41 15 Letter written to FSL for inquiring about the scene of offence 42 16 Yadi written to Mamlatdar for preparing map of the scene of offence 43 17 Yadi written to FSL for sending Muddamal 44 18 Form sent to FSL, Vadodara for examination of Muddamal 45 19 Acknowledgement of FSL against receipt of Muddamal 46 20 Letter regarding examination of Muddamal written by FSL, Vadodara addressing PI, Karjan 47 21 FSL report 48 22 Report regarding visit of scene of incident 49 23 Serological examination report 50 6. Mr. P.V. Patadiya, learned advocate appearing for the appellant - accused would submit that the appellant does not challenge his involvement in the offence. Mr. P.V. Patadiya, learned advocate appearing for the appellant - accused would submit that the appellant does not challenge his involvement in the offence. However, he would like to make submission for converting the conviction from offence under section 302 of Indian Penal Code to Section 304 of IPC, since the offence is of mainly on the ground that the incident has taken place in sudden heat of moment. He would submit that there was no intention on the part of the appellant to commit murder as defined under Section 300 of Indian Penal Code. He would submit that his case would fall under exception of Section 300. Since, mainly on the ground that the incident has taken place in sudden heat of moment that there was no premeditation. He would further submit that only one blow was given to the deceased on the head, pursuant to which he died. He would submit that the deceased was aged about 75 years and there was not any serious injuries sustained by him, he succumbed to the same. He, therefore, would submit that the sentence be accordingly modified. He had taken me through the depositions of complainant Meenaben Gokulbhai (PW-5, Exh.-16), Shaileshbhai Kanchanbhai Vasava (PW-1, Exh.8), Sumitraben Manharbhai Vasava (PW-2, Exh.9), Taraben Mangalbhai (PW-3, Exh.10), Pravinbhai Kanchanbhai Vasava (PW-6, Exh.18) as well as deposition of Medical Officer, Doctor who was examined at Exh.32, PW-13. He has also relied upon the deposition of medical officer Dr. Bharatsinh Mansinh Chauhan (PW-13, Exh.32), who has carried out the postmortem report. He would submit by taking me through note at Exh.35, that only one blow admeasuring 2 cm. x 2cm. x 2 cm. of triangular size on temporary region of skull was given. He has also internal injuries referred in the postmortem note. He, therefore, would submit that the conviction be accordingly modified. 6.1 According to prosecution case, on 25/11/09 at round about 9.30 at night the complainant namely Meenaben Gokulbhai Vasava was cooking at her father's house at village Dhavat, Ta. Karjen. That the accused was residing near to the complainant house. On the date of incident the accused has come and demanded for physical and sexual relations from the complainant, the complainant has refused for the same and therefore the accused got angry and slapped the complainant near her right eye. Karjen. That the accused was residing near to the complainant house. On the date of incident the accused has come and demanded for physical and sexual relations from the complainant, the complainant has refused for the same and therefore the accused got angry and slapped the complainant near her right eye. 6.2 That the Pravinbhai came to save the complainant, but the accused also beaten Pravinbhai by pulling his hair and kick. The accused has also beaten Shaileshbhai on his right shoulder and near elbow, thereafter the accused has left the house of the complainant by saying that “today he will kill somebody” and came back with axe and hit the blow on the left side on the head near ear of the deceased i.e. Jethabhai Mavjibhai Vasavqa and runaway. 6.3 Therefore, the deceased was taken for the treatment and the complainant has lodged complain wide FIR No.I-213/09 before Karjen Police Station and the same was registered u/s 302, 452, 323 & 504 of IPC and u/s 135 of B.P. Act. 6.4 After conclusion of the trial the Ld. Judge was pleased to hold guilty present appellant accused for the offence punishable u/s.302 of IPC. The Ld. Addl. Sessions Judge has convicted and sentenced life imprisonment and fine of Rs.1000/- failing which the appellant accused has to undergo 6 months simple imprisonment. 7. On the other hand, Mr. Rutvij Oza, learned Additional Public Prosecutor appearing for opponent – State has opposed the present appeal and submited that the Trial Court has not committed any error in convicting the appellant under Section 302 of Indian Penal Code. He would submit that an axe blow was given. It was alleged by the complainant and proved by the complainant that illicit demand was made by the deceased to the complainant which was denied and therefore, when the deceased tried to call other persons, the appellant accused went to his house and came back with an axe and given a blow on the head, which resulted into death of deceased Jethabhai Mavjibhai Vasava. He would submit that the Medical Officer has categorically stated that the injuries sustained by the deceased is sufficient which would result in to death. He, would therefore, submit that the appeal may be dismissed. 8. He would submit that the Medical Officer has categorically stated that the injuries sustained by the deceased is sufficient which would result in to death. He, would therefore, submit that the appeal may be dismissed. 8. We have heard learned advocates appearing for the respective parties and perused the impugned judgment and record and proceedings and considered the depositions of all witnesses as well as documentary evidences like postmortem report, panchnama etc. 9. It is an undisputed fact that some quarrel took place at about 8:30 p.m. on the date of incident near the house of the complainant. It also appears from the depositions and from the cross examination of the witnesses that due to some exchange of words, quarrel took place between the parties, pursuant to which the appellant who was residing near the house of the complainant took out an axe and gave a blow to the deceased. Considering the injuries sustained by the deceased which is a result of one blow of axe and considering the back ground of the incident, we are of the opinion that the case would fall for acceptance of Section 300 of Indian Penal Code, and therefore, offence cannot be treated as murder and can be treated as culpable homicide and therefore, the appellant is required to be punished under Section 304 of the Indian Penal Code. However, in our opinion, the bodily injury to the deceased who was aged about 75 years and landed on the head would fall in first part of Section 304 of Indian Penal Code. 10. Hence, we are of the opinion that the appellant is required to be convicted under Section 304 (Part I) of the Indian Penal Code. As far as sentence is concerned, we are of the opinion that ten years of sentence would be appropriate. Accordingly, the appeal is allowed in part. The judgment and order of conviction dated 8.12.2011 passed by learned 4th Additional Sessions Judge, Vadodara in Sessions Case No.196 of 2010 is hereby modified. The appellant is hereby convicted for the offence punishable under Section 304(Part I) of the Indian Penal Code and is hereby ordered to undergo rigorous imprisonment for a period of 10 years.