(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The appellant came to be tried by Sessions Court, Surat at Vyara, in Sessions Case No. 27/2005 for the offences punishable under section 302 and 307 of IPC and under sec. 135 of the Bombay Police Act. The trial Court convicted him for the offence of murder and attempted murder under sec.
302 and 307 of IPC, respectively, by judgment and order dated 31.8.2006. The appellant is sentenced to undergo life imprisonment for the charge of murder and he is also sentenced to undergo imprisonment for life with fine of Rs. 500/-, in default, to undergo further R/I for six months for the charge of attempted murder.
2. As per the prosecution case, the incident took place at about 6.30am on 2.1.2005 in the outskirts of village Paghaddhuva. It is the case of the prosecution that the appellant was working with one Gamiyabhai Deviyabhai, and on the previous day of the incident, he was scolded by Gamiyabhai and was asked to leave the job. The appellant did not leave the place and next day morning, i.e. on the day of incident, he asked for a cup of tea from the wife of said Gamiyabhai, which was denied to him. He, therefore, attacked Gamiyabhai with an Axe and he also attacked Iruben – wife of Gamiyabhai. In the meantime, Rupsingbhai Jatariyabhai Vasava came there and tried to intervene, but the appellant attacked him as well, with Axe. Iruben and Rupsing succumbed to the injuries and died, whereas, Gamiyabhai survived the injuries. An FIR was lodged in this context by Sumanbhai Rupsinh Vasava with Songadh Police Station, camp at Paghaddhuva. On the basis of the FIR, offence was registered and case was investigated. At the end of investigation, charge-sheet was filed against the appellant in the Court of learned Judicial Magistrate, First Class, Vyara, who in turn, committed the case to the Court of Sessions, which was registered as Sessions Case No. 27/2005.
3. The charge was framed against the appellant at Exh. 8, to which he pleaded not guilty and came to be tried.
4. The appellant is represented by learned advocate Mr. Pratik Barot and the State is represented by learned APP Mr. Neeraj Soni.
5. Mr Barot learned advocate for the appellant submitted that the prosecution case has erroneously been accepted by the trial court. The version of the eye witness suffers from the true facts and ought not to have been accepted, and that the persons claiming to be the witnesses are interested witnesses, and therefore, this appeal may be allowed.
6. Mr. Barot further submitted that the eye witness to the incident is victim himself, namely, Gamiyabhai and second witness Fatesinh Holiyabhai is also an interested and chance witness. This has not been considered by the trial Court. According to him, the evidence is not sufficient to connect the appellant with the offence and he has been wrongly roped in the case, and therefore, this appeal may be allowed.
7. Mr. Barot submitted that the circumstances were such that the appellant was scolded in the previous evening and was asked to leave the job and in the morning, when he asked for a cup of tea, the same was denied, as a result of which, the appellant got provoked and lost self-control and, therefore, alternatively, his case may be treated as one attracting punishment under sec.
304 Part-I of IPC.
8. Learned APP submitted that eye witness Gamiyabhai himself is an injured, and therefore, his presence at the scene of offence cannot be doubted. There is nothing to show that Gamiyabhai or witness Fatesinh Holiyabhai has any axe to grind against the accused and they have no reason to falsely implicate the appellant. The appeal, therefore, be dismissed.
9. Having considered the rival submissions, we notice that here is a case where two persons, namely, Rupsinh and Iruben, have lost their lives at the hands of the appellant, who attacked them with an Axe, for no fault on their part. Similarly, Gamiyabhai also came to be attacked with Axe and injuries have been caused on vital parts of the body. This aspect has been proved through the evidence of Gamiyabhai at Exh. 30 and Fatesinh Holiyabhai at Exh. 31. The injuries caused to Gamiyabhai were of serious nature and had they resulted in death, the appellant would have been guilty of murder.
10. This we find from the evidence of Gamiyabhai Exh.
30. He is the husband of Iruben. He identified the appellant. He has a field near the field of Fatesinh. On the day of incident, he was working in the field of appellant, who demanded tea from Iruben and Iruben said that there is no sugar, and ultimately, denied tea to him, as a result of which, the appellant attacked Iruben with an Axe. The blows were given on head and on left side of the face. Gamiyabhai, therefore, tried to intervene and he was also attacked upon by the appellant with an Axe on head and left shoulder. He then became unconscious. The witness said that Rupsing also tried to intervene and he was also attacked upon by the appellant and succumbed to the injuries caused to him. There is medical evidence in the form of deposition of Dr. Harshidaben Nathubhai Gamit Exh. 11, where she has stated about she having performed postmortem of Rupsing. There were as many as five external injuries noticed by her besides internal injuries. She has also stated that Iruben brought before her on 2.11.2005 with head fracture injuries besides an incised wound of 10 x 5 cm size on left side of head and she had treated her and sent to New Civil Hospital, Surat. She had also examined Gamiyabhai on that day and had noticed injuries on head, besides a cut wound of size 8 x 1 cm by muscle deep behind the left shoulder. This witness has been cross-examined, but no material emerges which can help the appellant.
11. Postmortem of dead-body of Iruben was carried out by Dr. Pranav Vinodchandra Prajapati, who is examined at Exh. 23. He had noticed three external injuries besides several other internal injuries. The postmortem notes are at Exh. 25. In both the cases, the cause of death is shock due to haemorrhage as a result of cranio cerebral damage. The doctors have opined that injuries were possible by muddamal Axe, and looking to the nature of injuries, no doubt is left that they were homicidal resulting in death of two deceased persons.
12. So far as injuries to Gamiyabhai are concerned, the medical certificate is at Exh. 17. He had CLW on the middle of occipital region which was bone deep besides the fracture and incised wound.
13. The evidence of Dr. Harshidaben would show that Gamiyabhai had following injuries:
1. one CLW 5cm x 0.5cm bone deep on the occipital region with depressed fracture.
2. Incised wound on the left shoulder of the size of 8 x 1 cm muscle deep.
Looking to the nature of injuries suffered by Gamiyabhai, it is clear that they were caused on vital parts of body with an Axe and were of grievous nature.
14. The evidence of Gamiyabhai has been scanned and we do not find any reason to doubt his evidence for the reason that he himself was injured in the episode and his version is supported by another eye witness Fatesinh, who is examined at Exh. 31. He said that the incident occurred on 2.1.2005 at about 6.30am, and at the time of incident, he was going to his field, where he noticed appellant Devakubhai beating Gamiyabhai with an Axe. At that time, Rupsinh was asking Devkubhai that why he is doing so, then Rupsinh told him that Devakubhai had demanded tea from Iruben and on her denying, the appellant had beaten Gamiyabhai. This witness had not only seen the actual act of assault by the appellant on Rupsinh, but he also narrates what happened just prior to attack. He gives the details of all injuries. Keeping this piece of evidence in light, we do not find any discrepancy or defect in the evidence led by the prosecution and the trial Court was justified in convicting the appellant. Two lives are lost and one person is seriously injured with an Axe for no justifiable reason.
15. As regards alternative submission made by learned advocate Mr. Barot regarding the appellant getting provoked suddenly resulting in loss of self control, we may state that the act of scolding by Gamiyabhai occurred in the previous evening and the chapter got closed. Whatever grievance that the appellant had, could not have resulted into loss of self control because the episode of attacking Gamiyabhai occurred in the next morning after almost 12 hours time which time was sufficient for the provocation to cool down. Further, the attack on deceased Iruben was on account of her denying a cup of tea which she tried to justify by saying that there was no sugar, and as such, no provocation can be said to have been offered by Iruben at the time of incident or prior thereto. The alternative plea also therefore, cannot be accepted.
16. The appeal, therefore, must fail and is dismissed.
[A.L. DAVE, J.] [PARESH UPADHYAY, J.] mandora/