IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2104 of 2006 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== CHOTUBHAI BHANABHAI VASAVA Versus THE STATE OF GUJARAT ========================================== =============== Appearance :
MRS NISHA M PARIKH for Appellant.
MR KP RAWAL, ADDL. PUBLIC PROSECUTOR for Respondent.
========================================== =============== Date : 30/08/2012
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convicted person and is directed against an order of conviction and sentence dated 17th October 2006 passed by the learned Sessions Judge, Narmada, at Rajpipla, in Sessions Case No. 23 of 2006 and thereby holding that the appellant was guilty of the offence punishable under section 302 of the Indian Penal Code and imposing sentence of life imprisonment and a further fine of Rs.5000/-, with an additional stipulation that in default of payment of such fine, the convict would undergo further simple imprisonment for one year.
2. The translated version of the charges framed against the appellant are as under:
“On 2.5.2006 at about 12.00 hours or during that time, you, the accused Chhotubhai Bhanabhai Vasava, who happened to be the elder brother-in-law of the deceased, Ramilaben, the wife of Naranbhai Bhanabhai Vasava, had in your residential house at village Gamkuva Taluka Nandod, District Narmada quarreled with the deceased on the issue of Tadi [local liquor] as you were all residing together and in spite of being very well conversant with the fact that small axe is a deadly weapon and if one is attacked with it, it can cause injuries resulting in death of such person, with the intention of committing murder of the deceased Ramilaben Naranbhai Vasava had attacked her on the left side of her neck and on the other parts of the body with the deadly weapon and thereby had caused her death and after committing her murder, has run away from the spot of offence and thereby you have committed offences punishable under the provisions of Sec. 302 of the Indian Penal Code.”
3. The case made out by the prosecution may be summed up thus:
3.1 Ranjit Mariappa Vasava has lodged a complaint at Rajpipla Police Station on 2nd May 2006 to the effect that the he was residing at Village Gamkuva, Taluka Nandod, District Narmada with his wife, children, brother Narendra and sister Darshanaben and he earned his livelihood by doing agricultural labour work. When his mother, Ramilaben, had gone for agricultural labour work at Vadodara, she fell in love with his father and married him and in the said wedlock, three children were born, i.e., the complainant, his brother and a sister. The complainant was the eldest one, and his brother and sister being young were unmarried and staying with him. His father died about 10 years ago, and thereafter, his mother, Ramilaben along with the complainant, his brother and sister came to village Gamkuva. Thereafter, his mother, Ramilaben, contracted a second marriage about six years ago with one Naranbhai Bhanabhai Vasava, who at that time was unmarried, and they both were living together. The complainant, his family, his brother and sister were living separately.
3.2 On 2nd May 2006, the complainant had gone to Khakripara Vaga area in the vicinity of their village to graze his cattle and at about 12 O'clock, one Harnishbhai Bachalbhai Vasava, who is a resident of their village and who happens to be his friend, came to him and informed him that Chotubhai Bhanabhai Vasava had inflicted axe blows on Ramilaben, as a result of which, she died. After coming to know of such incident, he requested Harnish to take care of his cattle, came to his house and found that his mother was lying on the land adjoining to the house, with a deep cut on the left side of her neck from which blood was oozing out. At that time, Vasantaben, a daughter of Chhotubhai Bhanabhai Vasava, and her grandmother Iriben, sat near the dead-body of his mother and upon inquiring, they told that Naranbhai had gone for labour work and Ramilaben and all of them, were present in the house, and at about 12 O'clock, Chhotubhai Bhanabhai Vasava came back to the house and started quarrelling by alleging that somebody had drunk his tadi. Ramilaben told him not to quarrel and at that time, he started giving fist and kick blows to Ramilaben and when they intervened to rescue her, Chotubhai came with an axe in his hand from the house and inflicted an axe blow on Ramilaben on the left side of her neck as a result of which she fell down on the ground. Thereafter, Chotubhai also inflicted a second blow with the axe on the wrist of the left hand of Ramilaben. Thereafter, he threw away the axe and ran away from the place. Ramilaben immediately succumbed to the injuries. Vasantaben, the daughter of Chotubhai, stated that her father was assaulting Ramilaben and hence, she intervened for which she was also assaulted.
3.3 At that time, Mansukhbhai Virsingbhai Vasava and Natvar Virsingbhai Vasva of the village and others had arrived at the spot and after consultation with them, he went to Rajpipla Police Station along with Vasantaben Chhotubhai and Mansukhbhai Virsingbhai Vasava.
3.4 Mathursinh Ajmalsinh Pagi, P.I, Rajpipla Police Station had registered the offence based on the complaint of the complainant and took over the investigation of the case himself. He had gone to the spot of occurrence and in the presence of panchas, prepared panchnama, and thereafter, sent the dead-body for post mortem to the Government Hospital. Thereafter, he prepared a panchnama of the scene of offence and from the scene of offence, he had also seized the muddamal axe by recording a panchnama. Out of the witnesses present, the statements of Vasantaben, Mansukhbhai, Naranbhai, Jignesaben, Hiraben, Lakshmiben, Valjiabhai, Harnishbhai and Natubhai Virsingbhai etc. were recorded. He also seized the clothes on the dead-body of the deceased Ramilaben upon receipt thereof from the PSO. After recording a panchnama, he had sent the muddamal articles to Forensic Science Laboratory. The accused was not found. Thereafter, as he was transferred, the further investigation was done by T.K. Patel, the P.I. When PSI Pagi was in additional charge of PI of Rajpipla Police Station, the accused was found on 6th June 2004. Hence, the accused was arrested by executing an arrest panchnama. Thereafter, as T.K. Patel, PI, resumed his duty after enjoying leave, the further investigation was handed over to him. Upon finding ample evidence against the accused, he filed charge sheet against the accused.
3.5 The accused denied the charge and claimed to be tried.
3.6 At the time of hearing, the prosecution examined the following witnesses:-
3.7 The prosecution had also produced the following pieces of documentary evidence in support of its case.
3.8 Subsequently, the statements of the accused were taken under section 313 of the Code of Criminal Procedure wherein the accused denied the case of the prosecution, though he did not lead any evidence of his own.
3.9 As indicated earlier, the learned Sessions Judge, by the order impugned herein, found the appellant guilty and the imposed the sentence as indicated earlier.
4. Being dissatisfied, the convict has come up with the present appeal.
5. Ms. Parikh, the learned advocate appearing on behalf of the appellant, strenuously contended before us that the learned Sessions Judge erred in law in relying upon the evidence adduced on behalf of the prosecution, particularly, the daughter of the accused, with whom the accused had inimical relation because of the fact that he did not agree to her marriage proposal. Ms. Parikh submits that there are conflicting evidence on record indicating that there was no motive for killing Ramilaben. According to Ms. Parikh, it has been established from evidence on record that there was a strained relation between the accused and the deceased, as a result, the accused had been falsely implicated. She, therefore, prays for setting aside the order of conviction and sentence.
6. Mr. Rawal, the learned Additional Public Prosecutor, on the other hand has opposed the aforesaid contentions of Ms. Parikh and contended that own daughter of the appellant has given evidence against her father, and there is no reason to disbelieve such eyewitness. Mr. Rawal contends that apart from the said daughter, there are other eyewitnesses, who are also members of the family of the deceased and appellant, and the said witnesses have fully corroborated the version of the daughter of the appellant. Mr. Rawal, therefore, prays for dismissal of the appeal by affirming the order of conviction.
7. Therefore, the only question that arises for determination in this appeal is whether the learned Sessions Judge, in the facts of the present case, was justified in holding the appellant guilty of murder.
8. After hearing the learned counsel for the parties and after going through the materials on record, we find that PW.2., Dr. Dilipkumar Karshanbhai Parmar, the Doctor who conducted post mortem of the dead-body of the deceased has stated in his deposition that there was a deep wound injury of about 10 cms. X 8 cms. on the left side of the neck of the deceased in round shape wherein tissues, vein named coronary, lower portion of jaw, voice box, upper part of the windpipe, upper part of the food pipe were found to have been cut. Apart from that, on the backside of the left hand, there was one deep crush wound of about 7 cms. deep which had landed up to muscle, bone and up to the end of the muscle of the wrist. There was also one deep cut crushed wound on the left side of the face and one deep cut and crushed wound on the left side of the neck. He had opined that all these injuries were anti mortem. The Doctor has further stated heavy bleeding of the injuries resulted in breathing problem, which led to the death of the victim. He has further opined that the injuries inflicted on the body of the deceased can be inflicted with a sharp edged weapon and were sufficient in the ordinary course of nature to cause death. He has further deposed that the injuries sustained by the deceased can be inflicted with the muddamal article No.3, the axe, which was shown to him.
9. Vasantaben Chhotubhai, PW.1, the daughter of the appellant, who was aged 18 years, has deposed that the appellant was her father and the deceased was her aunt (uncle’s wife). She has further stated that after her marriage, she was residing at her matrimonial house at village Limatvada and prior to her marriage, at the time of incident, she was residing with her paternal uncle, Naranbhai and her aunt, the deceased Ramilaben, along with her sister Jignasha, her brother Paresh and grandmother Iriben. She has narrated the incident in detail, corroborating the prosecution case. According to her, in her presence her father asked as to who drank his tadi, and when Ramilaben asked him not to quarrel, the accused went inside the house, brought an axe and inflicted one blow on the neck of Ramilaben and also inflicted a second blow, and after throwing the axe, her father ran away. She has also identified the axe by which her father inflicted the injuries upon Ramilaben.
10. The said witness was consistent in her evidence and had denied the suggestion that as her father was opposing her marriage with her husband, she had given false deposition.
11. PW.3, Laxmiben Valjibhai Vasava, is also an eyewitness and she has deposed that she happened to be wife of the elder brother-in-law of the deceased. She has fully corroborated the evidence given by Vasantaben.
12. We further find that although the incident had occurred on 2nd May 2006, and although the accused was a member of the same family of the deceased, he was absconding and was found only in the month of June 2006, more than one month after the incident.
13. On consideration of the entire evidence on record, the learned Sessions Judge was satisfied with the version of the eyewitnesses and convicted the appellant for the charge of murder by rejecting the contention of the learned counsel for the accused that at the most, the case was one of culpable homicide not amounting to murder.
14. We have ourselves gone through the entire evidence on record, and are fully satisfied that in this case, there was no provocation on the part of the deceased, and the accused of his own had inflicted axe blows upon his brother's wife who was utterly helpless. The nature of injury clearly indicates that the appellant has acted in a cruel manner and as such, the case does not come within the exceptions of Section 300 of the Indian Penal Code.
15. On consideration of the entire material on record, we find that the prosecution has proved the case of murder beyond reasonable doubt by production of two eyewitnesses, of which one was none else than the own daughter of the appellant and we do not find any reason to disbelieve such evidence.
16. The appeal is, thus, devoid of any merits and accordingly, dismissed.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]