{"id":187373,"date":"2010-12-02T00:00:00","date_gmt":"2010-12-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-mr-lb-dabhi-app-for-on-2-december-2010"},"modified":"2015-06-25T01:51:04","modified_gmt":"2015-06-24T20:21:04","slug":"appearance-vs-mr-lb-dabhi-app-for-on-2-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-mr-lb-dabhi-app-for-on-2-december-2010","title":{"rendered":"Appearance : vs Mr Lb Dabhi App For on 2 December, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Appearance : vs Mr Lb Dabhi App For on 2 December, 2010<\/div>\n
Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice Bankim.N.Mehta,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/1755\/2005\t 18\/ 18\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 1755 of 2005\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.M.KAPADIA  \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE BANKIM.N.MEHTA\n \n \n======================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?YES\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not?NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment? NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder?NO\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge?NO\n\t\t\n\t\n\n \n\n \n======================================\n\n\n \n\nRAJUBHAI\nLAXMANBHAI VASAVA \n\n \n\nVersus\n \n\nSTATE\nOF GUJARAT \n\n \n\n======================================\n \nAppearance : \nMS\nSADHANA SAGAR for Appellant - Appointed \nMR LB DABHI APP for\nRespondent \n====================================== \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE A.M.KAPADIA\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE BANKIM.N.MEHTA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 02\/12\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.M.KAPADIA)<\/p>\n
1\t\tChallenge
\nin this Criminal Appeal filed under Section 374 of the Code of
\nCriminal Procedure, 1973 (“the Code” for short) is to the
\ncorrectness of the  judgment and order dated 7.7.2005, rendered in
\nSessions Case No. 14 of 2005, by the learned Additional Sessions
\nJudge and Presiding Officer, Fast Track Court No. 3, Bharuch,  by
\nwhich  the sole appellant – Rajubhai Laxmanbhai  Vasava
\n(`accused’ for short), has been convicted for the offence punishable
\nunder Section 302 of the Indian Penal Code  (`the IPC’ for short)
\nand sentenced to imprisonment for life  and fine of Rs. 5,000\/- i.d.,
\nSI for 3 months.\n<\/p>\n
2\t\tThe
\nprosecution case  as disclosed from the FIR and unfolded  during the
\ntrial as under:\n<\/p>\n
2.1\t\tIt
\nis the case of the prosecution that PW-1 Rameshbhai Amarsang Vasava
\nis doing labour in retail vegetables market. He had two sisters. His
\nelder sister is Chanchalben, aged about 24 years, whose marriage  has
\ntaken place in Maktampur and she has been residing at her matrimonial
\nhome. His younger sister is Laxmiben, aged about 21 years, whose
\nmarriage has taken place  with Rajubhai Laxmanbhai Vasava (accused)
\nprior to two years of the incident.  She had a daughter  named
\n`Joshna’  of one year old and has been  residing  at her matrimonial
\nhome  with the accused .\n<\/p>\n
2.2\t\tIt
\nis the further case of the prosecution  that  his father had died in
\na vehicular accident and therefore  a claim petition was filed
\nbefore the Tribunal and for  receiving the compensation amount
\nawarded by the Tribunal, he called his both sisters to his house and
\ntherefore they had been to his house since last seven days.  On
\n11.12.2002, at about 7’O clock in the evening,  his brother-in-law
\nJesingbhai Vasava came to his house   and went away  after saying his
\nsister Laxmiben to reach Zadeshwar till 8’O clock  in the evening on
\nFriday.  On the day of the incident i.e. on 13.12.2002, at 11’O
\nclock,   he along with his two sisters – Chanchalben and
\ndeceased Laxmiben and his mother Dahiben went to the  court at
\nBharuch and they were engaged in the court proceedings to receive the
\n compensation amount  awarded by the Tribunal. It is further alleged
\nin the complaint that all of them have returned to their house at
\naround 5.30 p.m.   and at around 7.30 p.m.  his sister Laxmiben went
\nto the house of his aunt Ambaben, who is residing in the same street.
\n He also went with her.  It is also alleged in the complaint that
\nwhen they were sitting  for dinner, his brother-in-law Raju (accused)
\n came there in angry mood and he started abusing his sister  and also
\ngiven  kick blows  on  her abdomen. Therefore, his sister Laxmiben
\nstarted crying and shouted and on hearing her shouts,  his aunt
\nAmbaben, his elder sister Chanchalben, his neighbour  Bhalabhai
\nJerambhai  and  himself rushed there  and all of them have tried to
\nrestrain the accused from giving more beatings to his sister
\nLaxmiben. At that time  many people  of the street have assembled
\nthere.  On seeing them, the accused ran away from there.  Thereafter,
\n  his sister – Laxmiben started omitting.  Therefore, she was shifted
\nto the  government hospital for  treatment.  After examining his
\nsister,  Doctor has  declared her dead. It is therefore alleged in
\nthe complaint by the complainant that  his brother-in-law   Rajubhai
\nLaxmanbhai Vasava  has killed his sister Laxmiben by giving kick
\nblows  on her abdomen.\n<\/p>\n
2.3\t\tThe
\naforesaid complaint was recorded by PW-6  – Ahmedkhan Akbarkhan
\nPathan, Writer of Bharuch City `B’ Division Police Station as per the
\nnarration given by the complainant – PW-1 Rameshbhai Amarsinh
\nVasava. He has also obtained  the signature of  the complainant
\nbeneath of the  said complaint, which is produced on record at
\nExhibit-10 on the basis of the complaint,  offence was registered
\nagainst  the accused at CR No. I-189 of 2002 for the offences
\npunishable under Sections  302, 323 and 504 of the IPC.  After
\nregistering  th offence,  PW-6  Ahmedkhan Akbarkhan Pathan went to
\nthe hospital  when the dead body of Laxmiben was lying.  Inquest was
\nheld on the dead body of Laxmiben in the presence of two panchas and
\nthe Executive Magistrate. Thereafter, the dead body was sent for
\nautopsy to the Government Hospital, Bharuch. Thereafter he has also
\ndrawn the panchnama of scene of offence. Thereafter,  he recorded the
\nstatements  of the witnesses.\n<\/p>\n
2.4\t\tOn
\nreceipt of the  postmortem report and on the basis of the  statements
\nof the witnesses, as incriminating  evidence was found against the
\naccused, he has filed  charge sheet against the accused  for the
\ncommission of  offence  under Section 302 of the IPC   in the Court
\nof learned Chief Judicial Magistrate, First Class, Bharuch.\n<\/p>\n
2.5\t\tAs
\nthe offence under  Section  302  of the IPC is exclusively triable by
\nthe Court of Sessions,  the learned JMFC, Bharuch,  committed the
\ncase to the Court of Sessions, Bharuch, where it was numbered as
\nSessions Case No. 14 of 2005.\n<\/p>\n
2.6\t\tThe
\nlearned Additional Sessions Judge and Presiding Officer, Fast Track
\nCourt No. 3, Bharuch, (the “Trial Court” for short) to
\nwhom the case was made over for trial,  framed charge against the
\naccused  for the commission of the offence punishable under Section
\n302 of the IPC.\n<\/p>\n
2.7\t\tThe
\ncharge was read over and explained  to the accused.  The accused
\npleaded not guilty  to the charge and claimed to be tried. Therefore,
\nhe was put to trial by the Trial Court  in Sessions Case No. 14 of
\n2005.\n<\/p>\n
2.8\t\tIn
\norder to bring home the charge levelled against the accused, the
\nprosecution has  examined  in all  six witnesses  and relied upon
\ntheir  oral testimonies. The details  of which are detailed in para-4
\nof the impugned judgment and order which are as under:\n<\/p>\n
PW.\n<\/p>\n
\t\t\t\tNo.\n<\/p>\n
Name<\/p>\n
Remarks<\/p>\n
Exh.\n<\/p>\n
\t\t\t\tNo.\n<\/p>\n
Page
\n\t\t\t\tNo.\n<\/p>\n
1<\/span><\/p>\n
Rameshbhai
\n\t\t\t\tAmarsangbhai Vasava<\/p>\n
Complainant<\/p>\n
09<\/span><\/p>\n
13<\/span><\/p>\n
2<\/span><\/p>\n
Ravishankar
\n\t\t\t\tRajendrabhai Jha<\/p>\n
Medical
\n\t\t\t\tOfficer<\/p>\n
13<\/span><\/p>\n
17<\/span><\/p>\n
3<\/span><\/p>\n
Ambaben
\n\t\t\t\tManilal Vasava <\/p>\n
Witness<\/p>\n
17<\/span><\/p>\n
33<\/span><\/p>\n
4<\/span><\/p>\n
Dahiben
\n\t\t\t\tAmarsangbhai Vasava<\/p>\n
Witness<\/p>\n
18<\/span><\/p>\n
33<\/span><\/p>\n
5<\/span><\/p>\n
Bhalabhai
\n\t\t\t\tZaverbhai Vasava <\/p>\n
Witness<\/p>\n
19<\/span><\/p>\n
34<\/span><\/p>\n
6<\/span><\/p>\n
Ahmedkhan
\n\t\t\t\tAkbarkhan Pathan <\/p>\n
Witness<\/p>\n
20<\/span><\/p>\n
35<\/span><\/p>\n
2.9\t\tTo
\nprove the culpability  of the accused,  the prosecution  has also
\nproduced  in all 7 documents and relied upon  the contents  of the
\nsame, details of which are detailed in para-4 of the impugned
\njudgment and order.\n<\/p>\n
2.10\t\tAfter
\nrecording of the evidence  of the prosecution witnesses  was over,
\nthe Trial Court explained to the accused the circumstances  appearing
\nagainst him and recorded his further statement under Section  313 of
\nthe Code. In his further statement, the accused denied  the case of
\nthe  prosecution  in its entirety  and reiterated  his innocence.
\nHe has also stated that deceased Laxmiben has received the amount of
\ncompensation on account of death of her father, who had died in
\nvehicular accident, and therefore after the death of Laxmiben, he
\nshould not get the said amount, therefore,  false case has been
\nfiled against him.   However, he has neither led any evidence nor
\nexamined any witness in support of his defence.\n<\/p>\n
2.11\t\tOn
\nappreciation, evaluation, analysis and scrutiny of the evidence on
\nrecord, the Trial Court came to the conclusion that the prosecution
\nhas successfully established that the deceased Laxmiben  had died a
\nhomicidal death and the accused is the author of the injuries  caused
\nto the deceased.  He has inflicted kick blows on the abdomen of the
\ndeceased,  and as a result thereof,  Laxmiben has died.  Therefore,
\nthe complicity of the accused for committing murder of  his wife
\nLaxmiben  has been duly proved.   On the aforesaid findings,  the
\nTrial Court  convicted the accused for the offence punishable under
\nSection 302 IPC  and sentenced to  imprisonment  for life and fine of
\nRs.  5,000\/- I.d., SI for  three months which has  given rise to
\ninstant appeal at the instance of the accused.\n<\/p>\n
3\t\tMs.\n<\/p>\n
Sadhna Sagar, learned Advocate appointed  by the  Legal Aid Committee
\nfor the accused, has vehemently assailed the impugned judgment and
\norder by contending that  the so called eye witnesses are the family
\nmembers  of the deceased and, therefore, no reliance can be placed
\nupon their oral testimonies. She has further submitted that  so far
\nas the deceased – Laxmiben had died  a homicidal death,  there
\nis no dispute.  However,  according to her,  the prosecution has not
\nproved   the case against the accused beyond  doubt as so called eye
\nwitnesses are  near and dear relatives of the deceased and,
\ntherefore, no reliance can be placed upon their oral testimonies.  It
\nis also  submitted by her that  accused being her husband, there was
\nno reason for him to kill his own wife.  Therefore, the prosecution
\nstory  is got up  and with a view to see that the accused may not get
\nthe amount of compensation received by Laxmiben  after her death,
\nfalse case has been filed  by her brother against him.  It is also
\nemphasized   by her that  the Trial Court has not appreciated  the
\nevidence in its true perspective and misdirected itself in
\nappreciating the evidence of the prosecution witnesses.  She,
\ntherefore, submitted that the impugned judgment and order  of
\nconviction and sentence is recorded against the evidence on record,
\nthe same deserves to be quashed and set aside by allowing the Appeal
\n and thereby acquitting the accused of the offence  with which he was
\ncharged. She, therefore, urges to allow this Appeal.\n<\/p>\n
3.1\t\tAlternatively,
\nit is also submitted by her that if at all the evidence of the
\nprosecution witnesses  is   accepted in its entirety,   then, at the
\nmost,  it is a case of  simple injury, punishable under Section 323
\nof the IPC, as the accused has inflicted  only kick blows  on the
\nabdomen, as a result thereof, her spleen has been ruptured and she
\ndied. She has further submitted that at the time when the accused
\ninflicted kick blows  on her abdomen, he had neither  any intention
\nnor any knowledge to kill her.  Therefore,  at the most,  he can be
\nconvicted for the offence punishable under Section  323 of the IPC.
\nHe is in jail for more than five years, therefore, the sentence
\nundergone by him may be treated  as substantive sentence   and he may
\nbe  ordered to be released forthwith, if his presence is not required
\n in connection with  any other case.  She, therefore, urges to pass
\nappropriate orders.\n<\/p>\n
4.\t\tPer
\ncontra,  Mr. L.B. Dabhi,  learned APP,  has fully supported  the
\nimpugned judgment and order throughout.  According to him,   the
\nprosecution  has successfully  established  the charge  levelled
\nagainst  the accused.   So far as the  oral evidence of eye witnesses
\n   is concerned,    there is no reason to disbelieve them.   In
\npresence of eye witnesses, the accused came  there and inflicted four
\nkick blows  on the abdomen of the deceased – Laxmiben, as a
\nresult thereof,   her spleen got ruptured  and she died.  Therefore,
\nprosecution has proved that  accused was  the author  of the injury
\ncaused to deceased  Laxmiben.\n<\/p>\n
4.1\t\tReplying
\nto   the contention  that the offence in question is one under
\nSection 323 of the IPC  because of simple injury  and not an offence
\nunder Section  302 of the IPC, he has submitted that because of the
\nfour kick blows  inflicted by the accused on the abdomen of the
\ndeceased Laxmiben,  her spleen got ruptured and she has died.   He
\nhas further submitted that as per the medical evidence on record,
\ndeceased Laxmiben was not of having any ailment nor her spleen was
\nenlarged  and therefore the accused had intention and knowledge  that
\n by  inflicting  kick blows on the abdomen,  the deceased would die.
\nTherefore, it is a case of murder punishable under Section 302 of the
\nIPC  and not the case of simple injury punishable under Section 323
\nof the IPC.\n<\/p>\n
4.2\t\tOn
\nthe aforesaid premises,  he has submitted that the appeal being
\ntotally devoid of any merit and deserves to be  dismissed and thereby
\n the order of conviction and sentence   passed by the Trial Court
\nagainst the accused requires to be confirmed. He, therefore, urges
\nto dismiss the Appeal.\n<\/p>\n
5.\t\tThis
\nCourt has considered the submissions advanced by the learned
\nAdvocates appearing for the parties and perused the impugned judgment
\nand order. This Court has undertaken a complete and comprehensive
\nappreciation of all vital features of the case and the entire
\nevidence on record, which is read and re-read by the learned
\nAdvocates of the parties with reference to broad and reasonable
\nprobabilities of the case. This Court has examined the entire
\nevidence on record for itself independently of the learned Judge of
\nthe trial Court and considered the arguments advanced on behalf of
\nthe accused and infirmities pressed, scrupulously with a view to find
\nout as to whether the Trial Court has rightly recorded the order of
\nconviction and sentence.\n<\/p>\n
6.\t\tSo
\nfar as the death of the deceased  being a homicidal one, the same
\nhas not been disputed by the learned Advocate for the accused and,
\nhence,  we need not discuss the same in detail.  Suffice it to say
\nthat the   prosecution has succeeded in  establishing   that the
\ndeath of  Laxmiben  was a homicidal one through the evidence of PW-2
\nDr. Ravishankar R. Jha, who has performed  autopsy  on   the dead
\nbody  of Laxmiben.  He has performed the postmortem with the panel of
\nDr. Binjoi  and also issued  the Postmortem Note which is produced at
\nExhibit-15 as well as  the  certificate  of cause of death which is
\nproduced   at Exhibit-16.\n<\/p>\n
6.1\t\tOn
\na conjoint reading of  the oral testimony of   PW-2 Dr.  Ravishankar
\nR. Jha, Medical Officer,  General Hospital, Bharuch as well as the
\npostmortem report at Exhibit-15 and  the Certificate at Exhibit-16,
\nthere is no manner of doubt that  the deceased had died  as a result
\nof injuries     on the vital organ i.e. spleen.  It is mentioned in
\nthe postmortem report  that the weight of the spleen was 100 grams
\nand there was  a lacerated tear of (6 x 1 x 1 \u00bd) cm  in the
\nconcave surface   on spleen.  It is also mentioned that  red\/white
\npulp disrupted the   capsule  torn and both the kidneys   are pale
\nand empty.     Therefore, according to us,   the Trial Court has
\nrightly   held that the  deceased  Laxmiben died a homicidal death
\nand we confirm the finding of the Trial Court.\n<\/p>\n
7\t\tNow
\nthe next question  which is required to be  answered by  us is as to
\nwhether  the accused is the author of   the injuries caused to the
\ndeceased.\n<\/p>\n
7.1\t\tIn
\nthis connection, the prosecution has mainly relied upon  the evidence
\nof PW-1 Rameshbhai Amarsang Vasava, complainant,  examined at
\nExhibit-9; PW-3   Ambaben Manilal  Vasava, eye witness, examined at
\nExhibit-17;  PW-4  Dahiben Amarsang Vasava, examined at Exhibit18,
\nand   PW-5  Bhalabhai Zaverbhai  Vasava,  examined at Exhibit-19.\n<\/p>\n
7.2\t\tPW-1
\nRameshbhai Amarsang Vasava, who is examined at Exhibit-9, he has,
\ninter alia, testified that his father has died in a vehicular
\naccident. He is residing   with his mother Dahiben and his wife
\nRanjaben and doing labour work   in retail vegetables market.  He has
\nthree sisters.  The elder sister is Chanchalben and the younger
\nsister is Laxmiben, whose marriage took place prior to two years  of
\nthe incident  with the accused.  Out of the said wedlock,  Laxmiben
\nhad  a female child, named,  `Joshna’ aged about one year.   As
\n his father had died in a vehicular accident and therefore  a claim
\npetition was filed  before the Tribunal, which was allowed by the
\nTribunal.  Therefore, he called his both sisters  at his residence
\nand they had been to his house since last seven days and on the date
\nof incident  all of them went to the Court to receive the cheque.
\nAfter receiving the cheque, they came to their residence  at around
\n5.30 p.m.   and at 7.30 p.m.  his sister Laxmiben went
\nto the house of his aunt Ambaben, who is residing in the same street.
\n He also went with her.  Thereafter, accused  came to the house  of
\nhis aunt  at about 9. 30 pm in angry mood and he started abusing his
\nsister Laxmiben and gave kick blows on her abdomen.  Therefore,
\nLaxmiben has become unconscious. The reason for giving  kick blows
\nwas that since his sister-Laxmiben came from the court late, the
\naccused got angry and provoked and therefore kick blows were given to
\nhis sister Laxmiben by the accused. Thereafter, all of them have
\ntaken his sister  to the government hospital where she was declared
\ndead.  Thereafter,  he lodged the complaint in this connection before
\n Bharuch City `B’ Division Police Station, which is produced at
\nExhibit-10.\n<\/p>\n
7.3\t\tThe
\nprosecution  has thereafter  examined and relied upon the oral
\ntestimony of  PW-3-Ambaben Manilal  Vasava, examined at Exhibit-17 as
\nan eye witness. She is the maternal aunt  of the deceased. She has
\nstated that the incident has taken place at 7.00 p.m.  At that time,
\nafter taking dinner,  Laxmiben was sitting  outside her house.  At
\nthat time,  accused came to Laxmiben and gave kick blows  on her
\nabdomen. She came to rescue Laximben.  Laxmiben shouted and on
\nhearing her shouts, Dahiben and Chachalben rushed to rescue  her, but
\non seeing them, the accused flee away from there.  They have taken
\nLaxmiben to the Civil Hospital, Bharuch, for treatment where she was
\ndeclared dead.  During the cross-examination, this witness   has
\nrepelled the suggestion that  at the time of incident she was not
\npresent.  She withstood the test of cross examination. Nothing
\nsubstantial  has been brought out which would impeach  the
\ncredibility of her evidence.\n<\/p>\n
7.4\t\tThe
\nprosecution has thereafter examined PW-4 Dahiben Amarsang Vasava,
\nexamined at Exhibit-18 and Bhalabhai Zaverbhai  Vasava, examined at
\nExhibit-19, who are the mother  and neighbour respectively.    It is
\ntrue that both these witnesses have not   seen the incident of giving
\nkick blows    by the accused to the deceased Laxmiben.  They  came to
\nknow  about the said incident  from PW-3 Ambaben Manilal Vasava.
\nPW-5 – Bhalabhai Zaverbhai Vasava  has also deposed that  when
\nhe came, accused was coming out of the house  after  giving kick
\nblows  to Laxmiben.  He caught hold of him and thereafter the accused
\nflee away.\n<\/p>\n
8\t\tOn
\noverall reappraisal of the evidence on record,  it is clear that
\nthere is only one eye witness   i.e. PW-3 Ambaben Manilal Vasava, who
\nhas in unequivocal terms  narrated the incident.  There is no reason
\nfor PW-3 Ambaben   to falsely depose against the accused, who is the
\nhusband of her niece.  It is true that  the prosecution has relied
\nupon the only eye witness.  It
\nis the settled principle of law by catena of decisions of
\nthe Supreme Court that if witnesses are near and dear  relatives of
\nthe victim, that fact itself alone is not sufficient to discard their
\n testimonies unless their evidence is impeachable and does not
\ninspire confidence. It is also the settled principle of  law by
\ncatena of decisions of the Supreme Court that even if  there is only
\nevidence of sole eye witness, if it is  of sterling quality and
\nunimpeachable, the same can be relied upon and the conviction can be
\nbased on the basis of it.   In the instant case, evidence of PW-3
\nAmbaben  is the sole eye witness, who is relative of both the
\ndeceased as well  accused.  There is no earthly reason for her to
\ndepose falsely against the accused.   Her evidence inspires not only
\nconfidence but trustworthy as well.  Therefore, reliance can be
\nplaced on her oral testimony to come to the conclusion   that the
\naccused is the author of the injury caused to the deceased. We,
\ntherefore, have no hesitation  in coming to the conclusion   that the
\naccused  is the author of the injury  caused to the deceased.\n<\/p>\n
9\t\tNow,
\nthe next question which is required to be  answered by us is whether
\nwhat offence has been committed by the accused.\n<\/p>\n
9.1\t\tThe
\ncontention of Ms. Sadhana Sagar,  learned Advocate for the accused
\nthat   the accused has inflicted  kick blows on the abdomen  of the
\ndeceased.  Therefore, he had neither  intention nor any knowledge to
\nkill  her.   She has further submitted that the accused has no
\nknowledge    that by giving  kick blows on her abdomen, her spleen
\nwould be ruptured.  Therefore  the offence which is said to have been
\n committed by the accused   is an offence punishable under Section
\n323 of the IPC.  We are not at all  impressed by the aforesaid
\nsubmission made by  Ms. Sadhana Sagar, learned Advocate for the
\nappellant – accused for the simple reason that  the spleen of
\nthe deceased was  not having any ailment  and the weight of the
\nspleen  was 100 grams, which is  the normal weight of the spleen of a
\nhealthy person nor the spleen was enlarged.  Therefore, spleen of the
\ndeceased was not having any ailment, however her spleen has been
\nruptured   because of the kick blows inflicted by the deceased.  At
\nthe same time, it can be said that the accused has no intention  to
\nkill   her  because the accused came without any lethal weapon and
\ngave kick blows  only.  Therefore,   according to us,  the offence
\nwhich is said to have been committed by the accused is an offence
\npunishable under Section 299 of the IPC,  culpable homicide, not
\namounting to murder, which is punishable  under Section 304  Part-II
\nof the IPC  because  at the time of giving kick blows,  though, he
\nhad no intention to kill her, but  he had the knowledge that by
\ngiving kick blows, in all probability,  the spleen of the deceased
\nwould be ruptured.\n<\/p>\n
10.\t\tSeen
\nin the above context,  so far as the  impugned judgment and order of
\nconviction and sentence passed by the Trial Court, convicting the
\naccused for the offence under Section  302 of the IPC deserves to be
\naltered  to  an offence punishable under  Section 299 of the IPC,
\nculpable homicide,  not amounting to murder, which is punishable
\nunder Section 304 Part-II of the IPC.\n<\/p>\n
11\t\tWe,
\ntherefore, hold that the accused  is guilty for the offence
\npunishable under Section 304 Part-II of the IPC.\n<\/p>\n
12.\t\tNow
\nthe question which is required to be  considered by us  is what
\nsentence should be awarded to the accused.  There are  catena of
\ndecisions  of the Supreme Court that when an offence of culpable
\nhomicide not amounting to murder  punishable under Section 304
\nPart-II of the IPC is made out, normally,  sentence of imprisonment
\nvaries from 4 to 5 years.  In the instant case, the jail remarks
\nsheet reveal that the appellant has  undergone  total period of   the
\nimprisonment of 5 years 8 months and 15 days.  Therefore, considering
\nthe facts and circumstances of the case,  we are of the considered
\nopinion that, the period undergone  by the appellant in jail  is just
\nand sufficient  punishment, which would meet the ends of justice.\n<\/p>\n
13\t\tFor
\nthe foregoing reasons,
\nthe
\nAppeal succeeds  in part  and accordingly
\n it is partly allowed. The conviction  recorded by the Trial Court
\nagainst the accused under Section 302 IPC is altered to  Section 304
\nPart-II of the IPC and he is  sentenced to suffer the imprisonment
\nalready undergone by him,  which is 5 years 08 months and 15 days
\nAccused
\nis in jail and, therefore the  Jail Authority is directed to  set him
\nat liberty forthwith if his presence is not required in connection
\nwith any other offence.\n<\/p>\n
(A.M.KAPADIA,
\nJ.)<\/p>\n
(B.N.MEHTA,
\nJ.)<\/p>\n
pnnair<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Appearance : vs Mr Lb Dabhi App For on 2 December, 2010 Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice Bankim.N.Mehta,&Nbsp; Gujarat High Court Case Information System Print CR.A\/1755\/2005 18\/ 18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1755 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ====================================== […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-187373","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAppearance : vs Mr Lb Dabhi App For on 2 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/appearance-vs-mr-lb-dabhi-app-for-on-2-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Appearance : vs Mr Lb Dabhi App For on 2 December, 2010 - 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