BABUBHAI DAHYABHAI DABHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE challenge in this appeal is to the judgment and order rendered by the Additional Sessions Judge, 5th Fast Track Court, Nadiad on dated 1. 4. 2005 in Sessions Case No. 92 of 2001. By virtue of the impugned judgment and order rendered by the learned trial Judge, the appellant who was original accused in the aforesaid sessions case came to be convicted for the offence punishable under Section 307 of the Indian Penal Code ('ipc', for short) and was sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. 1000/-, in default to undergo further imprisonment for 6 months. Being aggrieved and dissatisfied with the impugned judgment and order, the original accused preferred this appeal. The prosecution case in nutshell is as under:-The incident occurred at about 2 a. m. during night hours on dated 11. 11. 2000 in the field of injured Girishbhai Harmanbhai situated in the outskirts of village Garmala, Tal. Matar, Dist. Kheda. The appellant-accused had mortgaged his land with injured Girishbhai and had borrowed money from Girishbhai. Subsequently, the accused had repaid the money of Girishbhai. Still, however, the accused used to demand Rs. 100/- from Girishbhai, to which Girishbhai refused. Thereupon, at the time and place of the incident, the accused inflicted blows of handle of diesel engine on the head of Girishbhai. Girishbhai sustained serious bodily injuries and he was immediately removed to the hospital. From the time he sustained serious bodily injuries in his head, he became unconscious and he regained consciousness after about 4 months. In connection with this offence, Vinubhai Harmanbhai, brother of injured Girishbhai lodged First Information Report ('fir', for short) in Matar Police Station. The FIR was registered and the police investigation was commenced, statements of material witnesses were recorded by the police, clothes of the accused and of injured Girishbhai were recovered by drawing panchnamas, weapon used in this offence i. e. metal handle of diesel engine was recovered at the instance of the accused by drawing discovery panchnama, necessary muddamal articles were sent to FSL for analysis, medical certificates of the injured - Girishbhai were obtained. After completion of the police investigation, chargesheet came to be filed in the Court of learned JMFC, Matar, for the offence punishable under Section 307 of the IPC. As the offence was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions at Nadiad. The learned trial Judge framed charge against the accused at Exh. 8 for the offence punishable under Section 307 of the IPC, to which the accused did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. After the completion of the evidence, the learned trial Judge recorded further statement of the accused under Section 313 of the Cr. P. C. and the accused in his further statement denied generally all the allegations levelled against him and stated that he was falsely implicated in this case. After appreciating the oral and documentary evidence adduced by the prosecution and after considering the arguments advanced by both the sides, the learned trial Judge delivered the impugned judgment, whereby he was pleased to convict the accused for the offence punishable under Section 307 of the IPC and awarded sentence as hereinabove described, hence the appeal. During the course of arguments, learned advocate Mr. Borad for the appellant - accused submitted that the impugned judgment delivered by the learned trial Judge is contrary to law and evidence on record. That as a matter of fact, the prosecution failed to prove its case beyond any reasonable doubt against accused. It is submitted that the police recorded statement of injured- Girishbhai after about belated delay of 4 months. That the entire prosecution case rests upon the depositions of injured-Girishbhai, first informant Vinubhai and Dakshaben, who happens to be the wife of injured Girishbhai. That the evidence adduced by all these three witnesses is full of contradictions and improvements. That the prosecution alleged that after committing the offence, the accused went to the house of injured Girishbhai and told his wife Dakshaben that he had killed Girishbhai. That such story advanced by the prosecution is quite unnatural and cannot be relied upon. That even considering the ocular evidence adduced by the prosecution and the medical evidence on record, there are material contradictions between the two sets of evidence. It is submitted that the medical evidence reveals that the injuries on the head of Girishbhai could have been caused by some sharp cutting instrument, whereas the prosecution has come forward with the case that the accused inflicted handle of diesel engine on the head of Girishbhai, which is admittedly not sharp cutting instrument, but, hard and blunt object. Therefore, it is submitted that the appeal be allowed and the conviction recorded by the learned trial Judge be set-aside and the appellant - accused be acquitted. Learned APP Mr. Bhatt vehemently opposed this appeal and submitted that considering the deposition of injured witness Girishbhai, the prosecution successfully proved its case. That the deposition of Girishbhai gets support from the testimonies of first informant Vinubhai and Dakshaben. That the medical evidence reveals that the injury sustained by Girishbhai was so severe that from the time he sustained injury, till four months throughout his medical treatment, he remained unconscious and as per the medical opinion, the injuries were sufficient in ordinary course of nature to cause death. It is submitted that miraculously and due to timely treatment, Girishbhai could be saved. Therefore, it is submitted that the appeal be dismissed. We have given our thoughtful considerations to the submissions made on behalf of both the sides. Considering the deposition of injured Girishbhai, Exh. 45, he narrated the incident in his deposition and clearly stated that during night hours, when he was in his field, the accused came to his field and inflicted blows of handle of diesel engine on his head. Before the trial Court as well as at the time of arguments before this Court on behalf of the appellant - accused it is submitted that the incident took place during night hours and admittedly, no electric light was on, and therefore, the prosecution failed to establish the identity of the accused. However, in the impugned judgment, the learned trial Judge rightly observed that it was a moonlit night and the accused was not unknown to Girishbhai, because not only there was money transaction between the two in past, but, even the accused was working in the field of Girishbhai. Considering the deposition of injured Girishbhai, the reasonings assigned by the learned trial Judge in his judgment about the identity of the accused, gets ample support. Further, considering the deposition of Girishbhai, there was verbal exchanges between himself and the accused before Girishbhai sustained injuries. Furthermore, considering the deposition of witness Dakshaben Girishbhai, Exh. 31, she stated that on the night when the incident occurred, she was at her home and was sleeping, but, she heard noise on the roof of her house and thereupon she was awakened and when she came out of her house, she saw that the accused had come there and the accused told her that he had killed Girishbhai. Hearing the noise, even brother of Girishbhai, Vinubhai had come to the house of Dakshaben and when the accused told Dakshaben that he had killed Girishbhai, at that time witness Vinubhai was also there. Considering the deposition of witness Vinubhai Harmanbhai, Exh. 39, he stated that he is brother of injured Girishbhai and that on the night of the incident, when he heard noise on the roof of the house of Girishbhai, he went to the house of Girishbhai and Girishbhai's wife Dakshaben was there and at that time the accused came near the house and the accused told Dakshaben that he had killed Girishbhai. He stated that thereupon he himself and one Pradeepbhai went to the field of Girishbhai and they saw Girishbhai lying in his field, in injured position. Under such circumstances, considering the depositions of injured Girishbhai, his wife Dakshaben and his brother first informant Vinubhai, we are of the opinion that the prosecution successfully proved the involvement of the accused in this offence. Learned advocate Mr. Borad submitted that in her cross-examination, witness Dakshaben stated that on the night of the incident, accused had never come to her house. We are of the opinion that the deposition of a witness is to be considered as a whole. The cross-examination of Dakshaben made on behalf of the accused runs into pages. It is true that Dakshaben stated that on the night of the incident, accused did not come in her house. However, the material aspect is that when Dakshaben heard some noise on the roof of her house, she came out from her house and therefore, she saw the accused. Thus, the accused met her outside her house and at that place the accused told her that he had killed Girishbhai and at that time the first informant Vinubhai was present. Considering the medical evidence on record and especially looking to the deposition of Dr. Chandana, Exh. 51, and the injury certificate, Exh. 52, it transpires that in all seven injuries were sustained by Girishbhai on his head. The injuries were on temporal region and left parietal occipital region, causing brain injury and avulsion injury on left ear. Considering the depositions of Dr. Suhas Vasudev, Exh. 41, Dr. Amin, Exh. 46 and Dr. Dinesh Chandana, Exh. 51 and the certificates issued by them, it clearly transpires that serious head injuries were sustained by Girishbhai, resulting into partial paralysis and deafness in left ear. Under such circumstances, considering the medical evidence on record, we are of the opinion that the learned trial Judge rightly observed that the prosecution successfully proved the offence punishable under Section 307 of the IPC. Considering the FSL report and especially the serological report, Exh. 65, it transpires that the blood group of injured Girishbhai is Group - B. The blood marks were found on the handle used as weapon by the accused, as well as on the pant of the accused, and the FSL report revealed that the blood mark was B Group. Thus, the circumstantial evidence supports the ocular evidence adduced by the prosecution. In light of the above discussions and considering the impugned judgment delivered by the learned trial Judge and re-appreciating the entire evidence adduced by the prosecution before the trial Court, we are of the opinion that the learned trial Judge did not err in coming to the conclusion that the prosecution proved its case beyond any reasonable doubt against the accused. Therefore, there is no reason whatsoever for this Court to interfere with the impugned judgment and order rendered by the learned trial Judge. For the foregoing reasons, the appeal deserves to be dismissed. The appeal therefore, stands dismissed.