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CR.A/2186/2004 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2186 of 2004
With
CRIMINAL
APPEAL No. 1956 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? No.
2
To
be referred to the Reporter or not ? No.
3
Whether
their Lordships wish to see the fair copy of the judgment ? No.
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 ? No.
5
Whether
it is to be circulated to the civil judge ? No.
=====================================
DEVIPUJAK
ASHOKBHAI HIRABHAI - Appellant(s)
Versus
THE
STATE OF GUJARAT Opponent(s)
======================================
Appearance:
In
Cri. Appeal Nos. 2186 of 2004 & 1956 of 2005
1.
Mr. Pratik Barot for Ms. Rekha H. Kapadia, Advocate
for
the appellants.
2.
Mr. H.H. Parikh, A.P.P. for the respondent State
======================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 26/03/2010
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. The
appellants convicts have filed both these appeals under Section
374 of the Code of Criminal Procedure, 1973 challenging the judgment
and order of conviction and sentence rendered by learned Additional
Sessions Judge, Fast Track Court No.1, Bhavnagar in Sessions Case
No. 32 of 2003 on 7-8-2003 convicting them for the offences
punishable u/ss 302, 201 and 34 of the Indian Penal Code and u/s
135 of the Bombay Police Act and sentencing them to undergo life
imprisonment and other sentences.
2. As
both these appeals arise out of the same judgment, they are heard and
decided by this common judgment.
3. According
to the prosecution case, on 30-9-2001 at about l9-30 hours deceased
Chandan Rayabhai the brother of first informant Amarshi Rayabhai
was breaking roof tiles of his house and was giving abuses. There
were heated verbal exchanges as the accused told Chandan not to give
abuses. Thereafter, accused Hira Bijalbhai, Ashok Hirabhai and Kili
Hirabhai made assault with knife and axe on Chandan and on account
injuries Chandan died. Accused Kusumben wife of Ashok Hirabhai
caused disappearance of knife used in the commission of offence.
4. On
the basis of First Information Report (FIR) lodged by Amarshi
Rayabhai offence was registered and investigation was started.
During the course of investigation, panchanama of scene of offence,
panchanama of discovery of weapons and panchanama of recovery of
clothes were drawn. Statement of the witnesses were recorded and
muddamal recovered during investigation was sent to Forensic Science
Laboratory for examination. At the end of investigation, accused
Hira Bijalbhai and accused Kusumben wife of accused Ashok Hirabhai
along with the appellants were arrested and charge sheet came to be
filed against the accused for offences punishable u/ss 302, 201, 34
and 504 of the I.P. Code and u/s 135 of the Bombay Police Act.
5. As
the offence of murder was triable by the court of Sessions, the case
was committed to Sessions Court, Bhavnagar and it was registered as
Sessions Case No. 32 of 2003. Learned Additional Sessions Judge,
Fast Track Court, Bhavnagar framed charge at Exh. 7 against the
accused. The charge was read over and explained to them. The accused
pleaded not guilty to the charge and claimed to be tried. Therefore,
the prosecution led evidence. At the end of recording of evidence,
the incriminating circumstances appearing in the evidence against
the accused were explained to them. The accused in their further
statement recorded u/s 313 of the Code of Criminal Procedure, 1973
stated that there was a cabin on the road and Amarshi had objected
to that cabin and hence false complaint is filed. It was also stated
that the witnesses are relatives of the deceased, and therefore,
they are giving false evidence.
6. After
hearing the learned Addl. Public Prosecutor learned advocate for
the accused and appreciating the evidence adduced by the
prosecution, the trial court by the impugned judgment convicted the
appellants convicts for the aforesaid offences. Accused Hira
Bijalbhai was convicted for the offence punishable u/s 324 and 504
of the I.P. Code and u/s 135 of the Bombay Police Act but acquitted
accused Kusumben wife of Ashokbhai Hirabhai of the charges levelled
against her. It is stated that accused Hira has not filed any
appeal against his conviction. Being aggrieved by the said decision,
the appellants convicts have preferred these appeals.
7. We
have heard learned Advocate Ms. Pratik Barot for appellants and
learned A.P.P. Mr. H.H. Parikh for the respondent State in both
these appeals. at length and in great detail. We have also perused
the impugned judgment and record and proceedings of the trial court.
8. Learned
Advocate Mr. Barot for appellants has mainly submitted that he
does not dispute the incident but according to him, the incident
occurred on account of grave and sudden provocation on the part of
the deceased and hence at the most the appellants accused could
have been convicted for the offence punishable u/s 304 Part-I or
Part-II of the I.P. Code. He has also submitted that no blood stain
was found on one of the knives, and therefore, the prosecution has
failed to prove use of one of the weapons. Hence, the learned trial
Judge has committed error in convicting the appellants accused
for the offence of murder and therefore both these appeals are
required to be allowed and the impugned judgment and order of
conviction and sentence is required to be altered and modified to
Section 304 Part-I or II of the I.P. Code.
9. Per
contra, learned A.P.P. Mr. Parikh has stated that the medical
evidence indicates that the deceased was assaulted by the accused
and several injuries were caused to the deceased. Therefore, the act
was premeditated and hence the learned trial Judge was justified in
recording conviction of the appellants accused for the offence
of murder. He has also submitted that it is always not necessary
that weapons used in offence must contain blood stains and
therefore the learned trial Judge was justified in relying upon the
evidence of the eye witnesses and hence no interference is warranted
in the impugned judgment and both these appeals deserve to be
dismissed.
10. The
evidence of P.W. 3 Dr. Sanjaybhai Omkarbhai Detha Exh. 19 who
performed postmortem of dead body of the deceased indicates that
four injuries were found on the dead body and such injuries were
possible by muddamal knife. According to him, the injuries were
sufficient in the ordinary course of nature to cause death.
Postmortem Report Exh. 20 indicates the external injuries found on
the dead body. According to him, the cause of death was shock and
haemorrhage and cardiorespiratory failure as a result of multiple
injuries sustained. In view of this evidence, it clearly emerges
that death was homicidal in nature and it was neither incidental nor
suicidal.
11. According
to learned advocate Mr. Barot, the case would fall under Exception 4
to Section 300 of the I.P. Code as the incident occurred without
premeditation in the heat of passion upon a sudden quarrel and
the accused not having taken undue advantage or did not act in a
cruel or unusual manner. In order to ascertain whether the incident
occurred in a sudden quarrel, the evidence of the eye witnesses is
required to be analysed.
12. The
evidence of P.W. 1 Amarshi Rayabhai Exh. 16 indicates that when
he went inside the house of Chandan, accused Hira Bijal made
assault on Chandan with axe and accused Ashok and accused Kili
assaulted him with knife. The witness has been extensively
cross-examined but the defence has not been able to elicit that
there was sudden quarrel and in the heat of passion the incident
occurred.
13. The
evidence of P.W. 2 Kalaben wife of Amarshi Rayabhai Exh. 18 also
indicates that the accused made assault on the deceased with deadly
weapons. The witness has been extensively cross-examined but the
defence has not been able to elicit anything in favour of it. The
evidence of this witness does not indicate that there was sudden
quarrel and the accused attacked the deceased in heat of passion.
14. In
view of above consistent evidence, it clearly emerges that the
accused armed with deadly weapons made assault on the deceased and
caused him fatal injuries. This clearly indicates the accused with
pre-determined mind armed with deadly weapons made assault on the
victim who was unarmed. The manner in which the incident has
occurred, it is difficult to believe that in the heat of passion
upon a sudden quarrel, the accused attacked the deceased.
Considering the number of injuries, in our view, the accused acted
in cruel manner and took undue advantage. Therefore, in our
considered view, the learned trial Judge was justified in recording
conviction for the offence punishable u/s 302 of the I.P. Code.
Hence, no inference is warranted in the impugned judgment and both
these appears are required to be dismissed.
15. In
view of above, both these appeals fail and stand dismissed and the
judgment and order of conviction and sentence passed by learned
Additional Sessions Judge, Fast Track Court No.1, Bhavnagar in
Sessions Case No. 32 of 2002 on 7th August, 2003, is
confirmed. The
muddamal be disposed of as directed by the trial court.
(A.L. Dave, J.)
(Bankim
N. Mehta, J.)
/JVSatwara/
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