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CR.A/906/2005 3/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 906 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
========================================================
BABUBHAI
DAHYABHAI DABHI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
========================================================
Appearance :
THROUGH
JAIL for Appellant(s) : 1,MADANSINGH O BAROD for Appellant(s) : 1,
UR
BHATT, APP for Opponent(s) :
1,
========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 17/11/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
The
challenge in this appeal is to the judgment and order rendered by
the Additional Sessions Judge, 5th Fast Track Court,
Nadiad on dated 1.4.2005 in Sessions Case No.92 of 2001. By virtue
of the impugned judgment and order rendered by the learned trial
Judge, the appellant who was original accused in the aforesaid
sessions case came to be convicted for the offence punishable under
Section 307 of the Indian Penal Code (‘IPC‘, for short) and was
sentenced to undergo rigorous imprisonment for 10 years and fine of
Rs.1000/-, in default to undergo further imprisonment for 6 months.
Being aggrieved and dissatisfied with the impugned judgment and
order, the original accused preferred this appeal.
The
prosecution case in nutshell is as under:-
The
incident occurred at about 2 a.m. during night hours on dated
11.11.2000 in the field of injured Girishbhai Harmanbhai situated
in the outskirts of village Garmala, Tal.Matar, Dist.Kheda. The
appellant-accused had mortgaged his land with injured Girishbhai
and had borrowed money from Girishbhai. Subsequently, the accused
had repaid the money of Girishbhai. Still, however, the accused
used to demand Rs.100/- from Girishbhai, to which Girishbhai
refused. Thereupon, at the time and place of the incident, the
accused inflicted blows of handle of diesel engine on the head of
Girishbhai. Girishbhai sustained serious bodily injuries and he was
immediately removed to the hospital. From the time he sustained
serious bodily injuries in his head, he became unconscious and he
regained consciousness after about 4 months. In connection with
this offence, Vinubhai Harmanbhai, brother of injured Girishbhai
lodged First Information Report (‘FIR’, for short) in Matar Police
Station. The FIR was registered and the police investigation was
commenced, statements of material witnesses were recorded by the
police, clothes of the accused and of injured Girishbhai were
recovered by drawing panchnamas, weapon used in this offence i.e.
metal handle of diesel engine was recovered at the instance of the
accused by drawing discovery panchnama, necessary muddamal articles
were sent to FSL for analysis, medical certificates of the injured
– Girishbhai were obtained. After completion of the police
investigation, chargesheet came to be filed in the Court of learned
JMFC, Matar, for the offence punishable under Section 307 of the
IPC. As the offence was exclusively triable by the Court of
Sessions, learned Magistrate committed the case to the Court of
Sessions at Nadiad.
The
learned trial Judge framed charge against the accused at Exh.8 for
the offence punishable under Section 307 of the IPC, to which the
accused did not plead guilty and claimed to be tried. Thereupon,
the prosecution adduced its oral and documentary evidence. After
the completion of the evidence, the learned trial Judge recorded
further statement of the accused under Section 313 of the Cr.P.C.
and the accused in his further statement denied generally all the
allegations levelled against him and stated that he was falsely
implicated in this case.
After
appreciating the oral and documentary evidence adduced by the
prosecution and after considering the arguments advanced by both
the sides, the learned trial Judge delivered the impugned judgment,
whereby he was pleased to convict the accused for the offence
punishable under Section 307 of the IPC and awarded sentence as
hereinabove described, hence the appeal.
During
the course of arguments, learned advocate Mr.Borad for the appellant
accused submitted that the impugned judgment delivered by the
learned trial Judge is contrary to law and evidence on record. That
as a matter of fact, the prosecution failed to prove its case beyond
any reasonable doubt against accused. It is submitted that the
police recorded statement of injured- Girishbhai after about belated
delay of 4 months. That the entire prosecution case rests upon the
depositions of injured-Girishbhai, first informant Vinubhai and
Dakshaben, who happens to be the wife of injured Girishbhai. That
the evidence adduced by all these three witnesses is full of
contradictions and improvements. That the prosecution alleged that
after committing the offence, the accused went to the house of
injured Girishbhai and told his wife Dakshaben that he had killed
Girishbhai. That such story advanced by the prosecution is quite
unnatural and cannot be relied upon. That even considering the
ocular evidence adduced by the prosecution and the medical evidence
on record, there are material contradictions between the two sets of
evidence. It is submitted that the medical evidence reveals that the
injuries on the head of Girishbhai could have been caused by some
sharp cutting instrument, whereas the prosecution has come forward
with the case that the accused inflicted handle of diesel engine on
the head of Girishbhai, which is admittedly not sharp cutting
instrument, but, hard and blunt object. Therefore, it is submitted
that the appeal be allowed and the conviction recorded by the
learned trial Judge be set-aside and the appellant accused be
acquitted.
Learned
APP Mr.Bhatt vehemently opposed this appeal and submitted that
considering the deposition of injured witness Girishbhai, the
prosecution successfully proved its case. That the deposition of
Girishbhai gets support from the testimonies of first informant
Vinubhai and Dakshaben. That the medical evidence reveals that the
injury sustained by Girishbhai was so severe that from the time he
sustained injury, till four months throughout his medical treatment,
he remained unconscious and as per the medical opinion, the injuries
were sufficient in ordinary course of nature to cause death. It is
submitted that miraculously and due to timely treatment, Girishbhai
could be saved. Therefore, it is submitted that the appeal be
dismissed.
We
have given our thoughtful considerations to the submissions made on
behalf of both the sides. Considering the deposition of injured
Girishbhai, Exh.45, he narrated the incident in his deposition and
clearly stated that during night hours, when he was in his field,
the accused came to his field and inflicted blows of handle of
diesel engine on his head. Before the trial Court as well as at the
time of arguments before this Court on behalf of the appellant
accused it is submitted that the incident took place during night
hours and admittedly, no electric light was on, and therefore, the
prosecution failed to establish the identity of the accused.
However, in the impugned judgment, the learned trial Judge rightly
observed that it was a moonlit night and the accused was not unknown
to Girishbhai, because not only there was money transaction between
the two in past, but, even the accused was working in the field of
Girishbhai. Considering the deposition of injured Girishbhai, the
reasonings assigned by the learned trial Judge in his judgment about
the identity of the accused, gets ample support. Further,
considering the deposition of Girishbhai, there was verbal exchanges
between himself and the accused before Girishbhai sustained
injuries.
Furthermore,
considering the deposition of witness Dakshaben Girishbhai, Exh.31,
she stated that on the night when the incident occurred, she was at
her home and was sleeping, but, she heard noise on the roof of her
house and thereupon she was awakened and when she came out of her
house, she saw that the accused had come there and the accused told
her that he had killed Girishbhai. Hearing the noise, even brother
of Girishbhai, Vinubhai had come to the house of Dakshaben and when
the accused told Dakshaben that he had killed Girishbhai, at that
time witness Vinubhai was also there. Considering the deposition of
witness Vinubhai Harmanbhai, Exh.39, he stated that he is brother
of injured Girishbhai and that on the night of the incident, when
he heard noise on the roof of the house of Girishbhai, he went to
the house of Girishbhai and Girishbhai’s wife Dakshaben was there
and at that time the accused came near the house and the accused
told Dakshaben that he had killed Girishbhai. He stated that
thereupon he himself and one Pradeepbhai went to the field of
Girishbhai and they saw Girishbhai lying in his field, in injured
position.
Under
such circumstances, considering the depositions of injured
Girishbhai, his wife Dakshaben and his brother first informant
Vinubhai, we are of the opinion that the prosecution successfully
proved the involvement of the accused in this offence. Learned
advocate Mr.Borad submitted that in her cross-examination, witness
Dakshaben stated that on the night of the incident, accused had
never come to her house. We are of the opinion that the deposition
of a witness is to be considered as a whole. The cross-examination
of Dakshaben made on behalf of the accused runs into pages. It is
true that Dakshaben stated that on the night of the incident,
accused did not come in her house. However, the material aspect is
that when Dakshaben heard some noise on the roof of her house, she
came out from her house and therefore, she saw the accused. Thus,
the accused met her outside her house and at that place the accused
told her that he had killed Girishbhai and at that time the first
informant Vinubhai was present.
Considering
the medical evidence on record and especially looking to the
deposition of Dr.Chandana, Exh.51, and the injury certificate,
Exh.52, it transpires that in all seven injuries were sustained by
Girishbhai on his head. The injuries were on temporal region and
left parietal occipital region, causing brain injury and avulsion
injury on left ear. Considering the depositions of Dr.Suhas Vasudev,
Exh.41, Dr.Amin, Exh.46 and Dr.Dinesh Chandana, Exh.51 and the
certificates issued by them, it clearly transpires that serious head
injuries were sustained by Girishbhai, resulting into partial
paralysis and deafness in left ear. Under such circumstances,
considering the medical evidence on record, we are of the opinion
that the learned trial Judge rightly observed that the prosecution
successfully proved the offence punishable under Section 307 of the
IPC.
Considering
the FSL report and especially the serological report, Exh.65, it
transpires that the blood group of injured Girishbhai is Group
B . The blood marks were found on the handle used as weapon by
the accused, as well as on the pant of the accused, and the FSL
report revealed that the blood mark was B Group. Thus, the
circumstantial evidence supports the ocular evidence adduced by the
prosecution.
In
light of the above discussions and considering the impugned judgment
delivered by the learned trial Judge and re-appreciating the entire
evidence adduced by the prosecution before the trial Court, we are
of the opinion that the learned trial Judge did not err in coming to
the conclusion that the prosecution proved its case beyond any
reasonable doubt against the accused. Therefore, there is no reason
whatsoever for this Court to interfere with the impugned judgment
and order rendered by the learned trial Judge.
For
the foregoing reasons, the appeal deserves to be dismissed. The
appeal therefore, stands dismissed.
(A.L.DAVE,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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