Hariom Bava @ Madhubhai Hiralal Desai vs State of Gujarat and Another

Bankim N. Mehta, J.—The appellant - convict has filed this appeal u/s 374 of the Code of Criminal Procedure, 1973 challenging the judgment and order of conviction and sentence rendered by learned Addl. Sessions Judge, Third Fast Track Court, Dahod in Sessions Case No. 395 of 2004 convicting him for the offence punishable u/s 302 of the I.P. Code and u/s 135 of the Bombay Police Act and sentencing him to suffer life imprisonment and to pay fine of Rs. 500/-, in default thereof, to suffer simple imprisonment for one month for the offence punishable u/s 302 of the I.P. Code and to undergo rigorous imprisonment for one year and to pay fine of Rs. 250/-, in default thereof to suffer simple imprisonment for one month for the offence punishable u/s 135 of the Bombay Police Act.

According to the prosecution case, on 24-5-2004 at about 11-00 hours, deceased Surmalbhai Motibhai demanded account of construction of the temple from the accused, and therefore, the accused got enraged and made assault with ''gupti'' on Surmalbhai and caused him several injuries. On account of such injuries, Surmalbhai died.

On the basis of First Information Report (FIR) lodged by Karmaben Surmalbhai widow of the deceased, offence was registered and investigation was started. During the course of investigation, panchanama of scene of offence, panchanama of discovery of weapons and panchanama of recovery of clothes were drawn. Statement of the witnesses were recorded and muddamal recovered during investigation was sent to Forensic Science Laboratory. At the end of investigation, charge sheet came to be filed against the accused for the aforesaid offences.

As the offence was triable by the court of Sessions, the case was committed to Sessions Court, Dahod and it was registered as Sessions Case No. 395 of 2004. Learned Addl. Sessions Judge, Third Fast Track Court, Dahod framed charge at Exh. 2 against the accused for the aforesaid offences. The charge was read over and explained to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution led evidence. At the end of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded u/s 313 of the Code of Criminal Procedure, 1973 stated that he has been falsely implicated in the offence with a view to make him leave temple and false case is filed against him.

After hearing the learned Addl. Public Prosecutor and learned advocate for the accused, the trial court convicted and awarded sentences as mentioned hereinabove. Being aggrieved by the said decision, the convict - accused has preferred this appeal.

We have heard learned Advocate Mr. B.S. Supehia for the appellant and learned A.P.P. Mr. M.R. Mengdey for the respondent - State at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial court.

Learned Advocate Mr. Supehia for the appellant - convict submitted that there is no direct evidence to indicate involvement of the accused in the offence, and that dying declaration allegedly made by the deceased and extra judicial confession made by the accused could not have been relied upon by the learned trial Judge as there is no corroboration. Hence, benefit of doubt is required to be given to the accused and the impugned judgment is required to be set aside.

Per contra, learned A.P.P. Mr. Mengdey submitted that there is clinching evidence to indicate involvement of the accused in the offence, and therefore, the learned trial Judge was justified in recording conviction of the appellant and no interference is warranted in the impugned judgment.

As regards homicidal death, the evidence of P.W. 1 Ashokbhai Devidas Bachani Exh. 5 and postmortem report Exh. 6 indicate that the deceased sustained about three injuries on his person and injury Nos. 1 and 2 were sufficient in the ordinary course of nature to cause death. The evidence also indicates that the injuries were possible by ''gupti''. Postmortem report Exh. 6 also indicates that cause of death was haemorrhage following injuries to lung (Left) and transverso colon. This evidence clearly indicates that death was homicidal in nature and it was neither suicidal nor accidental.

The evidence of P.W. 2 Karamaben Surmalbhai Exh. 9 and P.W. 5 Bhikhabhai Mansingbhai Exh. 24 indicates that the deceased made oral dying declaration with regard to the cause of his injuries. On perusal of their oral evidence, it appears that the deceased made a statement as to the circumstances of the transaction which resulted in his death. The statement indicates that the accused was responsible for fatal injuries. The witnesses have been extensively cross-examined but the defence has not been able to elicit anything in their favour. Even the accused has not been able to indicate that the deceased was not in a fit state of mind to give such dying declaration.

The evidence of P.W. 6 Kasnabhai Mansingbhai Parmar Exh. 25 indicates that the accused made extra judicial confession before him. According to this witness, after the incident the accused came to his house and confessed that he had made assault with ''gupti'' on the deceased. The witness has been extensively cross-examined but the accused has not been able to indicate that the accused did not make extra judicial confession with regard to his involvement in the offence. It appears that the accused in order to explain his action told the witness that the deceased was in inebriated condition and was pelting stones and giving abuses and so there was quarrel and incident occurred. On examination of panchnama of place of incident Exh. 20, we do not find presence of stones at the place of incident. Similarly, on perusal of postmortem report Exh. 6, we find that stomach of the deceased was empty. Thus, the defence that the deceased was in inebriated condition and was pelting stones cannot be beleived. It also appears that the extra judicial confession was voluntarily made. Therefore, there is no reason to discard the evidence of extra judicial confession made by the accused.

The F.S.L. Report Exh. 33 indicates that ''kurta'' of deceased contained blood stains of the deceased. The accused has not offered any explanation in that regard.

In view of above consistent evidence, the learned trial Judge was justified in recording conviction of the appellant - accused and hence no interference is warranted in the impugned judgment.

In the result, the present appeal fails and is dismissed and the judgment and order of conviction and sentence dated 29-03-2005 passed by the learned Addl. Sessions Judge, Third Fast Track Court, Dahod in Sessions Case No. 395 of 2004 is confirmed. The muddamal be disposed of as directed by the trial court.