VIJAYBHAI @ NAGI KALUBHAI MAKVANA vs STATE OF GUJARAT

The present conviction Appeal has been filed by the appellant-original accused under Section 374(2) of the Cr. P.C., against the Judgment and order dated 30.01.2015 rendered by the learned Additional Sessions Judge, Bhavnagar, in Sessions Case No.215 of 2013, whereby the appellant-accused was

convicted for the offence punishable under Section 304 Part-II of the Indian Penal Code and sentenced to undergo five years simple imprisonment with fine of Rs.5000/-, in default of payment of fine, further simple imprisonment of six months and acquitted from the offence under Section 504 of the IPC and 135 of the Gujarat Police Act.

It is the case of the prosecution that on 22.08.2013 at about 22:30 o''clock, when Hareshbhai @ Bablu Parshurambhai Butani, Pankajbhai @ Bhandaro Sureshbhai Saantani, deceased Dinesh Nandumal Vagani and the complainant were sitting on "Otla" of Bebubhai Bakalawal at Rasala Camp, Opposite Sant Khanuram Templel, the appellant-accused came there on his Motorcycle No.GJ-4-BM-3631 and demanded mobile phone from the friend of the complainant-Dinesh. As deceased-Dinesh refused to give, the appellant-accused got exited and started giving abuses and gave knife blow on upper back side of the right leg of the deceased and thereby caused serious injury to him and deceased succumbed to be injury. The complaint lodged the complainant that the appellant-accused made breach of notification of District Magistrate.

The complaint was lodged by the complainant before the Bhavnagar ''A'' Division Station vide C.R.No.I-145 of 2013. The investigation was carried out and statements of witnesses were recorded. Postmortem was made by the doctor. Panchanama of scene of offence was drawn and arrest as well as recovery panchnama were prepared. Clothes of the appellant were recovered and Yadi was sent to FSL. Medical papers were tagged with the investigation papers. Thereafter, accused was arrested and after collecting sufficient evidence

by the Investigating Agency, charge-sheet was filed before the learned Judicial Magistrate First Class, Bhavnagar, which was numbered as Criminal Case No.7311 of 2013. As the said case was exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate, Bhavnagar, committed the case to learned Sessions Judge, Bhavnagar, which was thereafter, numbered as Sessions Case No.215 of 2013.

On the basis of above allegations, charge was framed against the appellant-accused vide Exh.13 and read-over and explained to the appellant-accused for the alleged offences and plea was recorded, wherein, appellant-accused pleaded not guilty to the charge and claimed to be tried vide Exh.14.

In order to bring home the charges against the accused person, prosecution has examined several witnesses and also produced documentary evidences.

After considering the oral as well as documentary evidence and after hearing the parties, learned Additional Sessions Judge, Bhavnagar vide impugned judgment and order held the appellant-accused guilty to the charges levelled against him, and convicted and sentenced the appellant- accused, as stated above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Bhavnagar, the present appellant-accused has preferred this appeal.

Heard Mr.Hardik Dave, learned advocate for the appellant-accused, and Mr.N.J.Shah, learned Additional Public

Prosecutor for the respondent-State.

Mr.Hardik Dave, learned counsel appearing for the appellant, has contended that the judgment and order passed by the learned Sessions Judge is illegal, invalid and improper. He has also contended that the learned Sessions Judge has not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the learned Sessions Judge has not considered the probable defence of the appellant and has wrongly convicted the appellant. Learned advocate for the appellant-appellant argued at length and contended that the judgment and order of the learned trial Judge is against the provisions of law and learned trial Judge has wrongly considered the evidence of the prosecution and wrongly convicted them for the alleged offences. Mr. Dave drew attention of the Court to several witnesses examined by the prosecution. Prosecution has examined panch witness Mr. Sanjaysinh Vikramsinh Jadeja at Exh.16, who has drawn panchnama of recovery of blood sample, however, he was declared hostile. The second panch witness PW-2, Ajaybhai Hareshbhai Mehta at Exh.17, also subsequently was declared hostile. The prosecution has examined Dr.Kamleshkumar Suresbhai Lad at Exh.19, who stated that no internal injury was found from the head of the deceased. He stated that following injury was found from the body of the deceased in column No.17 of P.M.Note, which reads as under:

"5.2 cm x 2xm x 7 cm deep stab would present at postero medial aspect of right thigh, which is transversally placed. Its medial ens is 16 cm above

from medial condyle of femur (knee joint). Margins are clean cut and hemorrhage. Clotted blood present in around lateral end-acute angle, medial end-obtue angle. Direction of stab would is toward upward, toward (Anteriorly) and laterally stab would cutting skin subtutenous tissue, underlying muscle, nerves and major vessels (Femoral and its branches). On dissection of wound, clotted blood present in compartment of thighs surrounding around."

He stated that age of the injury was prior to 12 hours of the incident and the said injury could be possible by the recovered muddamal, but Mr. Dave drew attention of the Court to cross-examination of this witness, in which he stated that injury shown in column No.17 of Postmortem, is not sufficient to cause death. Therefore, prosecution failed to establish its probable defence beyond reasonable doubt. Eye-witness, complainant-PW4 Mr. Manish Rameshkumar was examined at Exh.23. He gave totally contradictory version and his presence is not established at the place of offence. As per the evidence of this witness, it is not proved that who shifted the deceased to the hospital. He contended that when presence of this witness is not established at the place of offence, benefit of doubt is required to be given to the appellant-accused. Mr. Dave read the evidence of PW-5 Bharatbhai Manubhai, who was examined at Exh.23/A and contended that this is also an eye-witness and his presence at the scene of offence is also not established, as he narrated contradictory story to the prosecution, eventhough the learned trial Judge has considered his evidence. He read the evidence of PW6 Deepaben Nandumal Vaghani, who was examined at Exh.24A, who is mother of the deceased. The said witness has fairly admitted that she has not seen the offence and therefore, she is not supporting the case of prosecution.

Mr. Dave read the evidence of PW7 Jaywantiben Manharlal, who was examined at Exh.25, wherein, she stated that she has no personal knowledge regarding the incident. The prosecution has examined another eye-witness PW8 Pankajbhai Sureshbhai, at Exh.26, however, his presence is also not established at the scene of offence and his deposition does not inspire confidence as there is doubt and discrepancy in his version. He read the inquest panchnama at Exh.28 and evidence of PW-9 panch-Anilbhai Kishanchand, who stated that injury found from the body of the deceased was simple in nature. The prosecution has examined PW-10 Puranbbhai Parshuram, who has drawn the panchnama of place of offence and defence has clearly established its defence by way of this in cross-examination. Mr. Dave read the evidence of PW11 panch Vijaybhai Chandubhai, who was examined at Exh.32, who has drawn the panchnama of arrest. Mr. Dave vehemently argued that panchnama of arrest of the appellant is not drawn in accordance with law. He read the evidence of PW12 Shankarbhai Pelumal, who recovered clothes of the appellant, who was declared hostile. Panch witness PW13 to PW15 have not supported the case of the prosecution. Prosecution has examined PW16 to PW19 and contended that evidence of these witnesses cannot be believed without corroboration with the other witnesses. Mr. Dave drew attention of the Court to medical evidence of the doctor, who carried out the postmortem and argued that he has disclosed that single blow was given on the back upper portion of the leg of the deceased, but the appellant has no knowledge about the vital parts of the body, as he is layman. During the scuffle between the deceased and appellant injury caused to the deceased and

it was not the intention of the deceased. He submitted that second blow was not given to the deceased. The eye-witnesses have also fairly admitted that knife blow was given to the upper back portion of the leg, however, it was not the intention of the appellant to kill the deceased. In present case from the FSL and Serological reports, cut-mark was found, but when contents of the panchnama are not proved beyond reasonable doubt, circumstantial evidence cannot be considered in support of the prosecution case. He then contended that when knowledge and intention is not established, learned trial Court ought not to have sentenced the appellant for the offence under Section 304(2) of the IPC. Therefore, the learned trial Judge has committed grave error by not following the provisions of law and convicted the appellant against the provisions of law. If defence version of the appellant-accused may be considered, then sentence is required to be reduced from Section 304(2) to Section 324 of IPC. Considering the undergone period and appellant is in jail till today, he has a good case to reduce the sentence from Section 304(2) of IPC to Section 324 of IPC.

As against this, Mr.N.J.Shah, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Sessions Judge is absolutely just and proper. She has contended that the prosecution has proved its case beyond reasonable doubt. She has contended that looking to the overall facts and circumstances of the case, and evidence produced on record, the order passed by the learned Sessions Judge is absolutely just and legal and is not required to be interfered with. Mr.Shah has read the charge and contended that present appellant accused and deceased were friends and

appellant-accused demanded mobile phone from the deceased. When deceased refused to give mobile, knife blow was given to the deceased on vital part of the body by the appellant-accused and thereby, caused serious injury and decease succumbed to the injury. The artery of the deceased got damaged because blow of the sharp knife was given forcefully and the deceased received fatal injury. Therefore, it appears that the intention of the appellant-accused is to kill the deceased. He contended that medical expert stated in his evidence that injury could be possible due to muddamal weapon knife only, which was discovered from the possession of the appellant-accused and cut-mark was found from the pant of the deceased. The said cut-mark is required to be compared with the size of the blade of the knife. The injury found from the body of the deceased is fully supported by the circumstantial evidence i.e. FSL report. He read the FSL report and argued that from the blade of the knife and clothes of the deceased, blood of the deceased was found and therefore, circumstantial evidence is supporting the case of the prosecution. The prosecution has examined many eye- witnesses and their presence at the scene of offence to establish the role of the appellant-accused established and therefore, their evidence can be considered as reliable and trustworthy. Even in cross-examination, the defence could not come out from the charges levelled against him. Further, intention and knowledge of the appellant-accused cannot be considered at this stage. As far as the injury from the body of the deceased is concerned, the learned trial Judge has awarded lesser punishment. He fairly admitted that State has not filed any appeal for enhancement. Looking to the evidence produced on record, it is clear that the learned trial Judge has

not committed any error in convicting the appellant-accused. Even in statement recorded under Section 313 of the Cr.P.C., the appellant could not rebut the presumption and he would not be able to explain that how his blood was found from his clothes and knife. Lastly, he contended that learned trial Judge has rightly convicted the present appellant-accused and therefore, she prayed to dismiss this appeal.

I have gone through the impugned judgment and order passed by the learned Sessions Judge and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellants.

The prosecution has examined panchas, eye-witnesses, medical expert and police witnesses. In present case, some of the panch witnesses declared hostile. First of all, the appellant was arrested in presence of panchas and evidence of the panchas is supporting the prosecution case. In present case, knife was recovered from the possession of the appellant- accused and the said weapon-knife was identified by the eye- witnesses. The doctor also gave opinion that injury is possible by the said muddamal knife only. It is argued by Mr. Dave, learned advocate for the petitioner that eye-witnesses have given contradictory versions. If the evidence of eye-witnesses is perused minutely, their presence is established at the place of offence and therefore, their evidence is reliable and trustworthy. It is required to be noted that the muddamal knife recovered from the possession of the appellant-accused, was identified by eye-witnesses. From the blade of the weapon, blood of the deceased was found. Further, as per the

serological report of the FSL, if the cut-mark from the back portion of the pant of the deceased is compared with the blade of the weapon, it is proved that blow was given by the said muddamal knife. Therefore, it is the duty of the appellant to explain how the blood of the deceased was found from his cloth. As per the statement recorded under Section 313 of the Cr.P.C. and opinion given by the doctor, learned trial Judge has rightly found involvement of the appellant in the alleged offence and convicted him. It is proved that knife blow was given by the appellant-accused to the deceased and he succumbed to the said injury. Therefore, role of the present appellant is established and prima-facie case is made against the appellant-accused. Learned trial Judge has rightly convicted the appellant-accused for the offence punishable under Section 304 (2) of the IPC . In fact, the learned counsel for the appellant could not make any argument which could dent the case of the prosecution even a bit. Taking into account the aforesaid evidence appearing on record, the learned trial Court convicted the appellant, and rightly so, as I do not find any reason to deviate therefrom.

Mr. Dave, learned advocate has prayed to reduce the sentence to some extent, but looking to the nature of injuries which are on vital parts of the body of the injured, the said request cannot be acceded to.

I am, therefore, of the opinion that the learned trial Judge has not committed any error in holding the appellant- accused guilty for the offences alleged against him and sentence awarded to him. Therefore, no interference is required. The judgment and order of conviction and sentence

dated 30.01.2015 rendered by the learned Additional Sessions Judge, Bhavnagar, in Sessions Case No.215 of 2013, is hereby confirmed. The present Criminal Appeal deserves to be dismissed and is hereby dismissed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.