DHIRAJBHAI GORAKHBHAI NAYAK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) One Hasmukhbhai Patel (hereinafter referred to as the deceased) was the victim of homicidal death on 12-8-1993. The appellant Dhirajbhai was alleged to be the assailant. The learned Additional Sessions Judge, Surat, held him guilty of offence punishable under Section 302 of Indian Penal Code, 1860 (for short IPC) and sentenced to suffer imprisonment for life and to pay fine of Rs. 2,000/- with default stipulation. It was further directed that in case fine is paid, the same is to be paid to the deceaseds widow Dahiben as compensation. Appeal before the High Court to Gujarat did not bring any relief to the accused-appellant and by the impugned judgment conviction and sentence were upheld.

(2.) Accusations which led to trial of the accused-appellant are as follows: Dahiben (PW1) and the deceased were staying in house No. 7/1427 situated in Dhastripuara in the city of Surat with her two sons (Dhanesh (PW3) and Narendra. About 10 days prior to the date of occurrence accused-appellant had taken his small daughter to the in-laws house and have kept her there. On his return, the deceased scolded him for leaving a small child at a distant place and the accused was very angry for this interference in his personal matters and that led to quarrels - first verbal and then physical. Subsequently on the date of occurrence at about 1.30 p.m. when the deceased was sitting at a temple accused-appellant warned him and challenged him saying that if he wanted to fight he was ready for the same. This resulted in exchange of words and a fight. Resident of the locality and PW1 separated them. In the evening Naranbhai (PW8), a friend of deceased came to the house of deceased and told Dahiben that since the quarrel was going on in the house, he would take the deceased for seeing a movie. PW1 agreed and both PW8 and deceased went to see a movie late in the night. As it was mid night when they got back, PW 8 and deceased slept on the verandah of the house while PW1 and 3 slept inside the house. At about 4.00 a.m. in the morning on hearing shouts for help PW1 opened the door and went outside. In the meantime PW3 also woke up and he joined his mother outside the house. They saw the deceased in bleeding condition. They also found the accused-appellant delivering blows on the deceased. PW1 called out his name and asked him as to why he was doing this and if there was any problem, that could be sorted out in the morning. The appellant on hearing this immediately ran away. PW-1 went out and asked for help from the neighbours. Many of them came to her house. The deceased was taken to hospital where he breathed his last at about 4.45 a.m. First information report was lodged at the police station at 5.15 a.m. Investigation was undertaken and charge sheet was placed on completion of investigation. Ultimately, the matter came to trial by learned Additional Sessions Judge, Surat. Ten witnesses were examined to further the prosecution version. Testimony of PWs 1 and 3 was accepted to be credible and as noted above, learned Trial Judge convicted and sentenced the accused. The High Court in appeal, did not interfere.

(3.) Learned counsel for the appellant submitted that the Trial Court as well as the High Court lost sight of certain salient features of the case. The accused has taken a definite plea that PW 1 and PW 8 were the authors of the crime as they had an illicit relationship which was not liked by the deceased. On the night of occurrence they attacked the deceased and his wife was snuffed out. Strong reliance was placed on the evidence of PW 2 who realised from his statement made during investigation. It was submitted that evidence of such witness is not necessarily to be wiped out and that portion of evidence which helps either the prosecution or the defence can be taken note of. Presence of Dhanesh (PW 3) at the spot is clearly ruled out the evidence of PW 1. Additionally the medical evidence more particularly testimony of Dr. Rajivbhai (PW 7) clearly establishes that the injury which is stated to have been caused by the accused could not have been caused by the weapon claimed to be the weapon of assault. The name of PW3 being absent in the FIR, his presence is doubtful. Though PW1 claimed that her clothes and those of PW 8 were blood stained, when they tried to carry the deceased in injured condition to the hospital, the said apparels were not seized by the police and this has been accepted by the Investigating Officer. It was pointed out that the evidence of witnesses clearly shows that it was a dark night and it was impossible to see anything. So the claim of PW 1 and PW 3 that they saw the accused-appellant assaulting the deceased is clearly unacceptable.