Thakorebhai Sanabhai Vasava vs State Of Gujarat

By means of filing this Appeal under Section 374 of the Code of Criminal Procedure, 1973 ["CrPC" for brevity], present appellant has challenged the judgment and order dated 02.11.2012 passed by the learned Sessions Judge, Bharuch in Sessions Case No. 59 of 2012, whereby, the appellant-original accused has been ordered to undergo rigorous imprisonment for life and pay fine of Rs. 10,000/-; and in default thereof, to undergo 30 days simple imprisonment for an offence punishable under Section 302 of the Indian Penal Code ["IPC" for brevity]; rigorous imprisonment for one year and pay fine of Rs. 2,000/-; and in default thereof, to undergo 10 days simple imprisonment for an offence punishable under Section 504 IPC and simple imprisonment for six months and pay fine of Rs. 1,000/-; and in default thereof, to undergo 5 days simple imprisonment for an offence punishable under Section 135 of the Bombay Police Act. All the sentences are ordered to run concurrently.

The facts, as emerging from the record are that the accused had given some amount as loan to the deceased Vijaybhai and on asking to return back the said loan amount, the deceased refused to return back and because of such refusal, at about 6.30 p.m. on 08.03.2012, the appellant-accused got angry and abused the deceased and inflicted three to four blows of axe on the head of the deceased and caused fatal injuries to him. Due to receiving of such head injuries said Vijaybhai died in the hospital and her sister Champaben lodged a complaint before Bharuch Rural Police Station, being CR No. I-18 of 2012.

In the Sessions case, upon production of the accused and ascertaining from him as to whether he had received copy of the case papers, he replied in the affirmative and thereafter, charge was framed against the accused which was read over and explained to him, wherein, he did not plead guilty and claimed to be tried. Accordingly, the prosecution laid oral as well as documentary evidence.

In the trial held, below mentioned witnesses were examined by the prosecution:

Sr. No.

Name

Exhibit

1

Champaben Prabhatbhai

8

2

Illiasbhai Valibhai Mansuri

10

3

Manilal Fulabhai Khristi

12

4

Keshavbhai Parsottambhai Vyas

14

5

Mangalbhai Vajesing Vasava

15

6

Sabbir Yusufbhai Patel

20

7

Dr. Sureshnandan Ramnarayan Yadav

24

8

Ravjibhai Abhesangbhai Pa.Va.

26

9

Budhabhai Nagjibhai Vasava

28

10

Parvatiben Jesangbhai

29

11

Ratanben Revlabhai Vasava

30

12

Salim Bharatsang Garasiya

31

13

Jaypalsinh Pravinsinh Jadeja

33

Moreover, the learned trial Judge has considered the below mentioned documentary evidence at the time of arriving at conclusion.

Sr. No.

Description

Exhibit

1

Complain

9

2

Inquest Panchnama

11

3

Panchnama seizing clothes from the dead body

13

4

Panchnama of body situation of the accused

16

5

Slips having signatures of panchas found from the muddamal

17 to 19

6

Panchnama of the place of offence

21

7

Slips having signatures of panchas found from the muddamal

22,23

8

PM Note

25

9

Abstract of Station diary

27

10

Report prepared by the FSL Officer after taking visit at the place of ofence

34

11

Forwarding note

35

12

Receipt of receiving muddamal by the FSL

36

13

Copy of the public notification regarding restriction of weapon

37

14

FSL Report

38

On completion of the said evidence in the Sessions Case, further statement of the ccused was recorded under Section 313 CrPC, wherein, he denied allegations and claimed to be innocent, which resulted into his conviction; as recorded aforestated.

Aggrieved appellant is before this Court in an Appeal preferred under Section 374 CrPC.

We have heard learned counsel of either side and perused the material on record.

Learned advocate appearing for the appellant has submitted that the impugned judgment and order passed by the learned Sessions Court convicting the present appellant-accused is completely based on the surmises and conjectures without considering the facts and circumstances of the case. It is further submitted that the appellant was quite innocent and was falsely implicated in the offence of murder of the deceased. That, there was no motive on the part of the accused and was never proved by the prosecution to commit murder. That, learned Sessions Judge has drawn inference against the appellant/accused, which were not based on legal evidence. It is further submitted by learned advocate for the appellant that if the Court is of the opinion that the judgment should be confirmed, then alternatively case of the appellant would not fall under Section 302 of the Indian Penal Code. That, if the act would be treated as culpable homicide, then also it would not be a murder as it was without premeditation and in a sudden fight in the heat of passion upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner. That, the case may fall under exception 4 of Section 300 IPC. Learned advocate for the appellant requested to quash and set aside the judgment and order convicting the present appellant under Section 302, 504 IPC and 135 of the Bombay Police Act and in the alternative to treat the case under exception 4 of Section 300 IPC and modify the order.

From the otherside, learned APP for the respondent-State has strongly supported the judgment and order passed by the Sessions Court arguing that after careful consideration of the evidence produced on record by the prosecution, the learned trial Judge has rightly appreciated the evidence. There is no infirmity or perversity in the findings arrived at by the learned Sessions Court. It is further submitted that it is the case of eye witnesses available with the prosecution and they have supported in their depositions before the Sessions Court saying that the present appellant was the accused person, who blowed with a weapon of axe upon the deceased Vijay and caused severe head injuries to him. That, the present accused ran away from the place of the offence after assaulting the deceased. That, medical officer has also supported the prosecution case and injuries received by the deceased and has opined that all the injuries were fatal to his life and was possible from the weapon used in the offence. That, medical evidence as well as ocular evidence was quite matching with each other. That, it was only intention on the part of the accused to commit murder of the deceased Vijay, as the amount given to him by the accused was not repaid on demand. No illegality is committed by the Sessions Court in convicting the accused. That, alternative arguments advanced by the learned advocate for the appellant for giving benefit of Exception 4 of Section 300 IPC cannot be granted, considering the fatal blows given to the deceased thrice or four times and the weapon axe used in the offence as well as medical evidence available with the prosecution. Hence, it was requested by learned APP for the respondent-State to dismiss the appeal.

We have carefully considered the rival contentions and perused the impugned judgment, evidence and materials placed on record.

Having considered the facts of the case, submissions made by learned advocate for the appellant as well as learned APP for the prosecution, it appears that Champaben Prabhatbhai, who happens to be sister of the deceased, had lodged a complaint before the Police on 8th March 2012. As per the averments made in the complaint, her brother, in the morning at about 8.00 a.m., visited her sister at village Dhamnad to see her and return back in the evening. She found that Thakorbhai Shanabhai Vasava was quarreling with her brother and was using abusive language by shouting, saying that the loan amount of Rs. 100/- was given to him and why he was not returning back the amount to him. The complainant came upon to the house, meanwhile the accused went into the house and came out with a weapon of axe. He blowed and gave 3 to 4 blows of weapon on the head of her brother. Her brother immediately fell down in a bleeding condition on the ground. She shouted for help, and therefore, the neighbourers staying in the nearby area reached to the place of the offence. The accused namely Thakorbhai ran away with the weapon of axe from the place of the offence. The complainant went to Shri Altafbhai, where her brother was working, but he was not available there. While she was returning to her home, she was informed by Shri Arvindbhai Vasava that her brother was died, and therefore, Sabbir Yusufbhai Patel informed the police.

This complaint was recorded by one Mr. Jaypalsinh Pravinsinh Jadeja-P.W.-13, who was examined vide Ex. 33. He has stated before the Court that he was on duty at Bharuch Taluka Police Station on 8th June 2012. He received telephonic message from Shri Sureshbhai ASI at about 19.25 p.m. that one murder was committed at village Bhadbhut and immediately this witness reached to the village and acquainted with the fact of the incident. He recorded the complaint of Champaben Prabhatbhai stating the facts that accused has committed murder of her brother on account of not returning back of Rs. 100/- by the deceased to the accused and blowing of axe on the head of the deceased.

While showing the complaint Ex. 9, this witness has supported that this complaint was given by the complainant namely Champaben Prabhatbhai and had identified the right hand thumb impression of the complainant.

This Champaben was examined as prosecution witness no. 1 vide Exhibit 8. She has deposed before the Court that on the date of this incident, there was a dispute with the accused in the compound. Accused was blowing by the weapon axe on her brother, and therefore, he fell down on the ground. He was died and the accused ran away from the place of offence. This witness has identified her thumb impression in the complaint Ex. 9 as well as the accused remained present before the Court. She has also identified the weapon axe, which was used in the offence by the accused. In the cross-examination, she has admitted that when the quarrel was continued, 10 to 15 persons were rushed at the place of the offence. She had no idea that on which topic, the quarrel was made between her brother and the accused. She has also admitted that one neighbour namely Sabbir Yusufbhai Patel informed the police and her complaint was recorded at the place of offence, which was read over to her, and thereafter, her thumb impression was taken. She has denied that there was dispute between the brother and the accused, and therefore, keeping grudge against the accused, his name was falsely given by her. It appears that there was no fruitful cross-examination in respect of giving blows by the accused with a weapon of axe and head injuries caused to the deceased. On this aspect deposition of the complainant was never challenged.

Illiasbhai Valibhai Mansuri-P.W.-2 (Ex. 10) has supported the say of the prosecution, who happens to be panch witness of the panchnama of the dead body of the deceased. According to this witness, it was identified by his sister Champaben Prabhatbhai. Head injuries received by the deceased were also identified by this witness in his deposition. It appears that only denial was taken in the cross-examination of putting the signature of this witness in a prepared panchnama. No other cross-examination of this witness was made by the defence. Other two witnesses examined by the prosecution ie., P.W.-3 Manilal Fulabhai Khristi and P.W.-4 Keshavbhai parsottambhai Vyas, who happen to be panchas of the panchnama of collecting the clothes of the deceased from the dead body were turned hostile, as they have not supported the prosecution case.

Mangalbhai Vajesing Vasava (P.W.-5), who happens to be panch witness of recovery of the weapon axe, has supported the prosecution and the facts of panchnama prepared by the investigating agency as well as seizing of the weapon. While showing the weapon axe-muddamal article No.7, this witness has stated that it was seized by the police in his presence. The panchnama of physical condition of the accused and recovery of his clothes was also prepared by the police in presence of this witness.

Sabbir Yusufbhai Patel (P.W.-6) has informed the police in respect of the incident taken place. While coming to the knowledge of the incident that one Thakor assaulting Shiva at village Bhadbhut with a weapon of axe, he immediately reached to the place of the offence and tried to find out the accused, but he has ran away from the place of incident. He informed the police and when police reached at the place of the offence, he informed the incident to the police. In his motor vehicle, dead body was shifted to the civil hospital at Bhadbhut for performing of post mortem. He also happens to be panch witness of the panchnama of place of offence. As per the deposition of this witness, in presence of another panch namely Ukkadbhai, place of the offence was shown to the police by the complainant Champaben. There was a blood stains surrounding three feet area at the place of the offence. Samples of control sand was seized by the police from the place of offence in a plastic tin and sealed the same affixing chit alongwith the signature of two pancahs, the panchnama was prepared. This witness has identified his signature and panchnama of place of offence was produced vide Ex. 16. Thereafter, this witness has further stated that on the information received by the police that the accused was hiding himself at one place, they entered in that place and accused was found sitting in that room. A panchnama of his physical condition of the accused was prepared in presence of two panchas. A weapon axe was also produced by the accused as well as clothes, which were seized by the police, as per the contents of the panchnama. Thus, both the panchnama were prepared and produced vide Ex. 21 and 22. No detailed cross-examination was made by the defence side.

P.W.-7 Dr. Sureshnandan Ramnayaran Yadav, who is the medical officer. Dead body of the deceased Vijaybhai alias Shivabhai Parbhatbhai Vasava was examined by this witness in civil hospital, Bharuch on 8th March 2012. Post mortem was started at 11.15 p.m. and was ended at 12.30 a.m. He has described the head injuries received by the deceased. All the four injuries were found ante mortem. As per the opinion of this witness, there was direct relation with the injuries shown in column No.17 and column No.19. All the injuries were possible by sharp cutting weapon. While showing muddamal article No. 7-weapon axe, this witness has opined that the injuries shown in the post mortem report at column no. 17 and 19 were possible by this weapon. This witness says that the injuries mentioned in column no. 17 and 19 were sufficient to cause death in natural course and thus, these injuries were sufficient to cause death. As per the further opinion of this witness, the death was possible before 7 to 8 hours prior to performing of post mortem report. In the cross examination, he has clearly denied that he is not in a position to opine that by what weapon, the injuries were caused to the deceased and he was died.

The prosecution has examined P.W.-9 Budhabhai Nagabhai Vasava vide ex. 28, it also appears that in presence of this witness on the date of Dhuleti in the evening, there was a dispute between the accused and the deceased. Three to four blows of axe were given by the accused to the deceased, and therefore, deceased Vijay fell down on the ground in bleeding condition. Thereafter, the accused along with axe ran away from the place of the offence. Of course, this witness had no knowledge that what was the reason of quarrel between the deceased and the accused. It appears that this witness is staying just opposite to the house of the deceased. He has clearly denied that on the date of this incident, it was Holy festival and faces of all the persons were covered by colour, and therefore, the accused and the deceased were not identified by him. He has further denied that he had a dispute with the deceased frequently, and therefore, due to this enmity, he was falsely involved by this witness.

Another prosecution witness No. 10-Parvatiben Jesangbhai has also deposed before the Court that while she was returning from her matrimonial home, on the date of the incident, the deceased was assaulted by the accused with an axe. While showing the weapon muddamal article No. 7 to this witness, she has stated that by this weapon ie., axe, the deceased was assaulted by the accused, and thereafter, he fell down on the ground and the accused ran way from the place. Ofcourse, as per her admission in her cross-examination, she has no knowledge on what account, the dispute was happened. On hearing the shouting, she came out from the home and found that the deceased was assaulted by the accused.

Another prosecution witness No. 11-Ratanben Revlabhai Vasava (Ex.30) has also supported the prosecution case saying that the deceased was assaulted by the accused with a weapon of axe on the day of Dhuleti. She has also identified the accused who remained present before the Court as well as muddamal article No. 7-weapon axe. As per her deposition, four to five blows were given to the deceased, and thereafter, on falling on the ground, the accused ran away from the place.

Another prosecution witness No.12-Salim Bharatsang Garasiya (Ex. 31) has seen the accused running away from the place of the offence. The Police caught the accused from one room of Ekara school. This witness has also identified the accused.

The Investigating Officer (P.W.-13) has also stated in his deposition vide ex. 33 regarding process carried out by him during the course of investigation. The material evidence was not controverted by the defence.

From the deposition of these witnesses, examined by the prosecution, it clearly transpires that the weapon used by the accused in committing offence was the axe. As per depositions of all the eye witnesses, who have present at the place of the offence, 3-4 fatal blows were given to the deceased and as per the deposition of the medical officer, fatal head injuries were received by the deceased. Due to these injuries only, he succumbed to death. All the injuries were sufficient to cause death in natural course.

From the facts of the case, submissions made by learned advocate for the appellant-accused, alternatively of converting the case of the prosecution under Exception 4 of Section 300 IPC would not be accepted. The intention of the accused was clearly proved by the prosecution as he used the weapon axe and specifically assaulted on the deceased by giving fatal blows on his head.

Relying upon the case of Ravi Kumar v. State of Punjab, reported in AIR 2005 SC 1929, it was submitted by learned advocate for the appellant that there was a sudden quarrel between the deceased and the accused-appellant and there was no premeditation. The prosecution has failed to prove that offender has taken undue advantage or acted in cruel or unusual manner. Therefore, the conviction of the appellant under Exception 4 of Section 300 IPC instead of Section 302 IPC may be considered by the Court.

The Apex Court in case of Palani v. State of Tamilnadu, reported in 2018(3) GLH 763, in similar type of case, has observed in para 20 as under:

"20. Where the case of the prosecution is based on the evidence of eye witnesses, the existence or non existence of motive, sufficiency or insufficiency of motive will not play such a major role as in the case which is based on circumstantial evidence. If the prosecution is able to prove its case or motive, it will be a corroborative piece of evidence; but if the prosecution had not been able to prove its case or motive or the motive suggested is too slender, that will not be a ground to doubt the prosecution case. When other evidence against the accused is clear and cogent as in the present case, absence of motive or insufficiency of motive is of no importance."

Upon proper appreciation of evidence, the Sessions Court has convicted the appellant/accused for causing the murder of the deceased Vijay and upon appreciation of evidence, the Court below recorded the findings of fact qua the appellant/accused caused the murder of deceased. We do not find any good ground warranting interference with the verdict of conviction.

Thus, we are of the opinion that learned Sessions Judge has rightly convicted the accused for the offence as stated above. In the result, this Criminal Appeal fails and is accordingly stands dismissed. The impugned judgment and order dated 02.11.2012 passed by the learned Sessions Judge, Bharuch in Sessions Case No. 59 of 2012 is hereby confirmed.

R&P to be transmitted back to the trial court.