DHARSHIBHAI KHODABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HAVING been found guilty of the offence punishable under Section 302 of Indian Penal Code ( for short "IPC" ) read with Section 25(1)(b)(a) of the Arms Act, the appellant who was interalia sentenced to life imprisonment by impugned judgment and order dated 24.2.2006 passed by learned Additional Sessions Judge, Second Fast Track Court, Deesa in Sessions Case No.32 of 2005 is in appeal before this Court.

(2.) AT the outset, learned counsel for the appellant urged before this Court that, assuming that the incident as alleged had taken place, no motive as alleged was proved, and that at the most, looking to the fact that immediately prior to the incident there was a conversation between the deceased and the appellant for about three minutes, it was the case of grave and sudden provocation inasmuch as the appellant was aggrieved by the fact of the deceased having taken part in helping the elopement of the wife of the appellant. He, therefore, contended that the appellant may be extended the benefit of Clause IV of Section 300 of IPC.

(3.) HAVING considered the arguments advanced by the parties as also having gone through the evidence on record, it cannot be disputed that the deceased Kunvarji was done to death by indiscriminate firing resorted to by the appellant while chasing him to kill after challenging the deceased that he should be killed as he was also a person responsible in helping the elopement of wife of the appellant. The weapon of offence was seized from the custody of the appellant through discovery panchnama. It is true that panchas of such discovery have turned hostile, however, in view of the decision rendered in Vinugiri Motigiri Vs. State of Gujarat [ 2002(1) GLH 176 ], wherein this Court held that Section 27 of the Evidence Act, panchnama need no corroboration from the panchas if the weapon as stated by the accused is ultimately discovered. The fact that the bullets etc. were recovered from the body of the deceased as well as from the scene of offence were fired from the weapon of offence discovered as above is corroborated by scientific evidence on record. The fact as to presence of the appellant, the complainant, witness Kamuben, and appellant having challenged the deceased, and after heated exchanges, the appellant having fired from the range of less than 10 ft and deceased having sustained bullet injuries on the spot of the site of the offence is established from the testimony of P.W.4 Exh.15 and P.W.6 Exh.24 respectively. The doctor P.W.1 Exh.8 also confirms about the bullet injuries on the person of the deceased and exit wound as also the fact that two of the bullets were located from the body of the deceased. He has passed the test of crossexamination by disputing the suggestion that the exit wound would be smaller than the entry wound inasmuch as it is stated in medical jurisprudence that, depending upon the type of bullet, exit wound be broader than the entry wound. The doctor also identified the possibility of sustenance of bullet injuries by weapon which was discovered and shown to him. Learned counsel for the appellant further submitted that, in fact, the complainant himself and one Thakor Gangarambhai Bhurabhai who was shown as witness but not examined in this case were arrayed as accused persons in the complaint lodged by P.W.4 Kamuben before the learned JMFC, Vav in respect of the same offence. To establish this fact, the defence witness being the lawyer, who drafted the complaint at the instance of P.W.4 was examined, who confirmed that fact that on instructions given by P.W.4, he had arrayed the said persons as offender in the said complaint. The said complaint was also brought on record. On perusal of which, it transpires that, substantially P.W.4 stands corroborated by the contents thereof except for the fact that she suspected the complainant as one of the offender on mere ground that he, after heated altercation, and while the appellant aimed the weapon of offence at the deceased, the complainant started running in the opposite direction of the direction the deceased was running and no attempt was made by him to save the deceased. P.W.4 appears to have drawn inference from this fact that the complainant and the other individual mentioned above were hand in glove, since when the deceased was attacked by appellant, they ran away. It is also seen from the record that the learned Magistrate, after getting verification from P.W.4 decided the complaint to be tagged along with present proceedings, and ultimately, the said complaint came to be handed over to the Investigator of this case, who investigated the case and laid chargesheet excluding P.W.4 as well as other persons as accused. It is pertinent to note that both the complainant and the P.W.4 disputed the suggestion put to them in the crossexamination that they were accused in the above complaint. Under any case, it is seen from the record that there was ample evidence against the appellant, and therefore, mere arraying of some more persons as accused as above would not stand to the benefit of the appellant. Hence, we do not find any substance in this argument as well. Further, the fact that the appellant was armed with a deadly weapon well before the deceased reached him, perhaps waiting for him at the scene of offence and the fact that he had stolen the weapon of offence from his brother's custody which fact has become relevant from testimony of D.W.2, who, of course deposes about the appellant having been acquitted in the said case, corroborate the prosecution case that the appellant was in illegal possession of weapon of offence. The only inference that could be drawn from the fact that he was waiting at the scene of offence with the deadly weapon and immediately on the sight of the deceased, started heated altercation with him and challenged him that he will be done to death, belies the story put forward by the learned counsel for the appellant that the appellant was induced to use firm arm on grave and sudden provocation by the deceased. We are, therefore, unable to accept this contention. No arguments were advanced by any of the parties.