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CR.A/1649/2004 1/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1649 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================
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 ?
=========================================
RATIYABHAI
KAGALIYABHAI GAMIT - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================
Appearance :
MS
SADHANA SAGAR for
Appellant(s) : 1,
MR LB DABHI, ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 22/01/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
By
this appeal, the appellant challenges the judgement and order
rendered by the Sessions Court, Surat, at Vyara, in Sessions Case
No.13 of 2004 dated 15th September 2004. The appellant
came to be convicted for the offence punishable under Section 302 of
the Indian Penal Code and was sentenced to undergo imprisonment for
life and to pay fine of Rs.500/-, in default, to undergo rigorous
imprisonment for one month. He was charged for an offence
punishable under Section 506(2) of IPC, for which he came to be
acquitted by the impugned judgement and order.
The
case against the appellant is that he committed murder of Vastupal
Budhiyabhai Gamit on 27th June 2003 at about 11:45 a.m.
in the outskirts of village Sadadun. He is alleged to have committed
murder of the victim by inflicting an axe blow on the head of the
victim. The motive attributed is a dispute regarding land. It is
alleged that the appellant nurtured a feeling that the good land had
gone to the share of the victim.
The
incident was seen by Meeraben, Nurjiben and Kantubhai, who are all
examined as PW 1, PW-2 and PW-3 respectively. Meeraben lodged the
FIR with Songadh Police Station, on the basis of which the offence
was registered and case investigated. The police having found
sufficient material, lodged a chargesheet in the Court of the
Judicial Magistrate First Class, Vyara, who in turn, committed the
case to the Court of Sessions and Sessions Case No.13 of 2004 came
to be registered.
Charge
was framed against the accused at exh.5, to which he pleaded not
guilty and claimed to be tried. After considering the evidence, the
Trial Court found that the prosecution was successful in proving the
case against the accused and therefore, recorded conviction and
hence, this appeal by the accused convict.
We
have heard learned advocate Ms.Sadhna Sagar for the appellant and
learned Additional Public Prosecutor Mr.L.B.Dabhi for the respondent
State.
According
to learned advocate Ms.Sagar, the prosecution evidence is
inconsistent. She submitted that the medical evidence is not
produced to support the prosecution case that treatment was given to
the victim. Had the victim received some treatment, probably he
could have survived. Ms.Sagar submitted that the witnesses are all
relatives and they have a bias against the accused and cannot be
considered as truthful witnesses. The appeal, therefore, be
allowed.
Learned
Additional Public Prosecutor Mr.Dabhi, on the other hand, opposed
this appeal. He has taken us through the evidence of eye-witnesses
Meeraben, Nurjiben and Kantubhai, PW-1, PW-2 and PW-3 respectively,
and submitted that the evidence of these witnesses is consistent and
cogent. That they being relatives, their presence at the place of
incident is natural. The witnesses also happened to be the close
relatives of the victim and therefore, there is no reason to
disbelieve their versions.
Mr.Dabhi
submitted that though single blow injury is caused to the deceased
by the appellant, the injury is caused with such a force and has
resulted into grave impact that the death occurred almost
immediately.
PW-1
Meeraben is examined at exh.10. She is the wife of victim –
Vastupal Budhiyabhai. She states that she and her husband had gone
to the field for sowing maize. At about 11.00 a.m., her mother
in-law Nurjiben came. They, therefore, had a recess from work. She
says that at that time, the accused came there and raised a dispute
about land saying that he is given less land and then, the accused
inflicted a blow with an axe on the victim, who fell to the ground.
The witness says that then the accused intimidated them. She says
that her mother-in-law had taken her husband in her lap and she was
also assaulted upon, however, she has not suffered any injury. The
assailant accused thereafter escaped along with axe. The
witness has been cross-examined about the scene of offence. She is
also cross-examined on the question of knowledge of Gujarati. She
states that she went to Songadh Police Station along with her mother
in-law and admits that she does not know the contents of the FIR.
She says that she narrated the incident in Gamit dialect, which was
written down by the police in Gujarati. She admits that her clothes
were stained with blood as her husband was bleeding profusely. The
witness denies the suggestion that she is not telling the truth
about the occurrence and is wrongly implicating the accused
appellant. Many questions are put to the witness regarding
topography of the place of incident, but nothing turns out of it.
Witness
Nurjiben Budhiyabhai Gamit is examined at exh.12. She is also an
eye-witness. She says that PW-1 Meeraben and she were in the field.
At that time, the accused appellant came to their field and
inflicted an axe blow on the left occipital region of her son
Vastupal. She, therefore, intervened, but the accused also wielded
a blow on her, however, she moved aside and could avoid the blow.
Kantubhai and Rekiyabhai also came there on hearing the shouts.
Victim Vastupal had fallen to the ground and was bleeding from head.
The accused assaulted on the ground that why he is being given less
share. The witness says that she cannot say with certainty that the
muddamal axe was the very same axe which was used by the accused in
commission of the offence as the accused was wielding the same.
(10.1) The
witness has been cross-examined and she denies the suggestion that
before she could reach the field, the incident was over. She also
denies the suggestion that she had not seen the occurrence and that
she is falsely implicating the accused appellant.
(10.2) Witness
Kantubhai Kagadiyabhai Gamit is examined at exh.13. He also deposes
on same line. He also did not identify the muddamal axe with
certainty on the same ground that the accused was running with the
axe in his hand. During his cross-examination, the suggestions that
he has seen the incident and is falsely implicating the accused
appellant, are flatly denied by him.
Witness
Rekiyabhai Nendadabhai Gamit is examined at exh.14. He says that
on hearing the shouts, he went towards the field to find that
Ratiyabhai was running with an axe in his hand. He says that he had
noticed an axe in the hand of the accused appellant. He
identified the muddamal article No.3 to be the same as the weapon
the accused had in his hand. During cross-examination, again stock
suggestions are put which are denied by the witness.
What
emerges from the above stated evidence is that the incident was seen
by as many as four eye witnesses, whose presence at the place was
natural. They have denied the suggestion that they were not there.
That apart, their version about how the incident occurred is
consistent. All of them say that the accused appellant went to
the field of the victim and quarreled with him on the ground that
why he is being provided with less share and then, inflicted the axe
blow on the left occipital region of the victim. Thus, the
appellant was the aggressor who went to the field of the victim.
There he picked up the quarrel and assaulted the victim with an axe,
which was in his hand from the very beginning. It is true that
there was some dispute between the accused and the victim about
sharing the property, but at the time of occurrence, no ground for
any provocation was provided to the accused by the victim. The
accused had no reason to go to the field of the appellant,
particularly with an axe. Still he goes there, picks up a quarrel
and then assaults the deceased. Although the blow is one, the seat
of injury and the force with which the injury is caused would speak
of a clear intention to cause death of the deceased. The case does
not fall and cannot fall within any of the exceptions to Section 300
of IPC. We find that the witnesses have told the truth to the
Court. The two lady witnesses have said that they cannot identify
the weapon as it was being wielded, otherwise they could have very
well said that they can identify and could have identified the
muddamal weapon that being the only weapon in the case. In this set
of circumstances, the evidence which is adduced by the prosecution,
has rightly been accepted by the Trial Court.
(12.1) The
medical evidence also indicates that, in post-mortem note exh.26,
while recording external injuries, the doctor recorded presence of
chop wound over left side of face passing through middle of first
ear separating it into two halves. The medical opinion was that the
death was outcome of the injury to left internal jugular vein
following injury by sharp and heavy weapon.
The
Trial Court, therefore, was justified in convicting the appellant.
No interference is called for in the judgement and finding of the
Trial court in exercise of appellate jurisdiction.
The
appeal, therefore, must fail. Stands rejected.
[A.L.DAVE,
J.]
[HARSHA
DEVANI, J.]
parmar*
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