IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1037 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE PARESH UPADHYAY ========================================================= 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 ?
========================================================= VITTHALBHAI BABULAL GAJJAR - Appellant Versus STATE OF GUJARAT - Opponent ========================================================= Appearance :
MR BHAVESH D HAJARE for Appellant MR NEERAJ SONI APP for Opponent – State ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 27/09/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY)
1. This appeal is directed against the judgment and order dated 5.5.2006 passed by the Sessions Court, Mehsana, in Sessions Case No. 18/2006, whereby, the sole accused, the appellant, is convicted for the offence under Section 302 of IPC and Section 135 of the Bombay Police Act, and is sentenced as under. For the offence under Section 302 of IPC R/I for life and fine of Rs. 500/-, in default, to undergo S/I for one month. For the offence under section 135 of the Bombay Police Act, S/I for one month and fine of Rs. 100/-, in default, to undergo S/I for five days. It is further ordered that both the sentences would run concurrently. It is this judgment and order, which is under challenge in this appeal.
2. The case of the prosecution is to the effect that, on 23.11.2005, at about 5.00 O'clock in the afternoon, the mother of the appellant was murdered by the present appellant by giving Axe blow on her throat, at her house. The house is at Kumbharvas at Visnagar District: Mehsana. The motive for killing the mother, as attributed by the prosecution, is that the appellant used to nurture the grievance that right from his birth, the appellant was not looked after properly by the mother and that the mother was of loose character.
3. After investigation of offence, charge sheet was filed in the court of JMFC, Visnagar, which in turn committed the case to the court of session at Mehsana. The case was registered as Sessions Case No: 18 of 2006. Charge was framed vide Exh.4 against the accused, who pleaded not guilty and was tried. During trial prosecution relied on 41 documents including 18 witnesses, details of which are reflected in para 4 of the impugned judgement recorded by the sessions court. On conclusion of the trial, sessions court found that the prosecution has been able to prove the charge against the accused, the present appellant, beyond reasonable doubt, resultantly recording conviction and awarding sentence as aforesaid, giving rise to this appeal.
4. We have heard Mr. Bhavesh Hajare learned advocate for the appellant and Mr. Neeraj Soni learned APP for the respondent-State.
5. Learned counsel for the appellant has contended that there is false implication of the present appellant. In support of his say, he relied on his written statement Exh.53, which was requested to be treated as part of his further statement recorded under section 313 of Cr.P.C. before the learned Sessions Judge. The contents of the said statement is to the effect that on the date of occurrence, when the appellant went to see his parents and brother at his residence, at Visnagar, neither brother nor father was present at home, and the dead-body of his mother was lying in the house. He states he went to the police station and informed that somebody has killed my mother and the police implicated him only in the said offence. Learned advocate for the appellant further submitted that the evidence on record is not sufficient to bring home the charge, and in any case, it creates sufficient doubt about the involvement of the present appellant, and therefore, it is urged that conviction may be interfered with and the appellant be acquitted.
6. On the other hand, learned APP has supported the conviction and sentence as recorded by the Sessions Court. It is contended that there is ample evidence on record which connects the accused with the commission of the offence and conviction be not interfered with.
7. Having examined the material on record, we find that the father of the appellant-Babulal Keshavlal Gajjar, who is the husband of the deceased, is examined as PW-6 Exh. 19. The brother Dharmendra Babulal Gajjar is examined as PW-8 Exh. 24. The deposition of both these family members, who had no reason to falsely implicate their own son/brother, clearly revealed that the appellant was not staying with them. He used to occasionally come to their house only to beat the mother and to harass the family members. His hatred towards mother had reached to that level that he had beaten the mother and threatened her of dire consequences, and therefore, a written complaint was given by the father of the appellant to Police Inspector, Visnagar Police Station on 2.4.2005 Exh.20. In continuation of that complaint, the statements of father Babulal Keshavlal Gajjar and mother Laxmiben-the victim, were recorded by the police on 3.4.2005 being Exh. 21 and 22, respectively, which is duly proved by the evidence of Head Constable Vakilkhan Alikhan Pathan PW-14 Exh.31. The evidence of father and brother of the appellant, which even otherwise is dependable, gets further corroboration form the contents of contemporaneous record like Exh. 20,21 and 22. These documents show that beating by the appellant to his mother was not a new thing for him and the parents had avoided going to police to avoid social humiliation, but when the pain, according to them, became unbearable, they approached the police. In this back ground, if the occurrence on 23.11.2005 is seen from the evidence of Dr. Mansingbhai Laljibhai Chaudhary PW-2 Exh. 11 and cause of death, as reflected in the post mortem report; which is stated to be shock due to hemorrhage; due to the injury over vital vessels, there is no dispute about the fact that the death of the victim was homicidal death. The mudamal article Axe, is also recovered, in presence of the appellant, from the spot itself. When this is put to him, in his statement under Sec.313 of Cr.P.C., he stated that he had no comments to offer. Further, the FSL report Exh.49 and Serological report Exh.50 unerringly connects the appellant with the offence. The blood group of the deceased was 'AB' and blood group of the accused-appellant is 'A'. Clothes recovered from the body of the appellant, were stained with blood having blood group of 'AB'.
8. On the basis of this material on record, we find that the Sessions Court rightly came to the conclusion that the prosecution has proved the case beyond reasonable doubt against the appellant of having committed the offence punishable under sec. 302 of IPC. The same cannot be termed as erroneous in any manner, and therefore, in our view, there is no force in this appeal. The same deserves to be dismissed and the same is dismissed.
[A.L. DAVE, J.] [PARESH UPADHYAY, J.] mandora/