CR.A/78020/2001 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 780 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ===================================================== ==== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No. 5 Whether it is to be circulated to the civil judge ? No. ===================================================== RAJENDRASINH KHENGARSINH WALA & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : MR MM TIRMIZI for Appellant(s) : 1 - 2. PUBLIC PROSECUTOR for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and CR.A/78020/2001 2/9 JUDGMENT HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 23/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellants – convicts have preferred these appeals under Section 374 (2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by Addl. Sessions Judge, Bhavnagar, Camp : Mahuva on 21-4--2001 in Sessions Case No.343 of 1998 convicting them for offences punishable u/s 302-114 of the I.P. Code and sentencing them to undergo life imprisonment and to pay fine of Rs.10,000/-, in default thereof, to undergo simple imprisonment for one year. 2. In brief the prosecution case was that before about eight days of incident, Niroobha cousin brother of accused Rajendrasinh gave abuses to deceased Firozbhai Ismailbhai without any reason. Therefore, Firozbhai scolded him. On the day of incident, at about 1-00 p.m. While Firozbhai was driving his passengers to Valavav from Mahuva in his tempo, when he reached near Shitalamata temple on Sathrana road, accused Rajendrasinh and accused Mahendrasinh blocked the road and accused Rajendrasinh with axe and accused Mahendrasinh with iron pipe started assault. On account of assault, CR.A/78020/2001 3/9 JUDGMENT Firozbhai sustained injuries and was taken to Mahuva Government Hospital for treatment and he lodged first information report with regard to incident. Firozbhai succumbed to the injuries during treatment. 3. On the basis of the first information report, offence was registered and investigation was started. At the end of investigation charge sheet was laid against the accused for the aforesaid offences. As the offence was triable by Sessions Court, the case was committed to Sessions Court, Bhavnagar, Camp Mahuva and it was registered as Sessions Cases No. 34 of 2001. Learned Addl. Sessions Judge, Bhavnagar, Camp : Mahuva framed charge Exh.4 for the offence punishable u/ss 302, 323, 325 and 114 of the I.P. Code and u/s 135 of the Bombay Police Act. The accused pleaded not guilty to the charge and claimed to be tried and therefore the prosecution adduced evidence. 4. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused in their further statement recorded u/s 313 of the Criminal Procedure Code, 1973 stated that they have not committed the offence and false case is foisted upon them. Accused Mahendrasinh also stated in his further statement that he is not aware about the incident and his name is Aniruddhsinh and not Mahendrasinh as alleged by CR.A/78020/2001 4/9 JUDGMENT the prosecution. He also produced copy of identity card issued by the Government. 5. After hearing learned A.P.P. and learned advocate for the accused, the learned trial Judge convicted accused as aforesaid. Being aggrieved by the said decision, the convicts have preferred this appeal. 6. We have heard learned advocate Mr. M.M. Tirmizi for the convicts - appellants and learned A.P.P. Ms. Mita S. Panchal. We have perused the impugned judgment and record and proceedings of the trial court. 7. Learned advocate for the appellants has submitted that as the deceased has died after lodging the first information report, it would be a dying declaration and considering the tenor of the first information report the deceased was not in a fit state of mind. Therefore, it could not be relied upon. He has also submitted that there is discrepancy between the first information report and the medical history given by the deceased. Therefore, the learned trial Judge committed error in convicting the appellants and hence the impugned judgment is required to be set aside. 8. Learned A.P.P. Ms. Panchal has submitted that the prosecution has proved the case by unbroken chain of evidence and there is nothing to indicate that the deceased was not in a fit state of mind when he CR.A/78020/2001 5/9 JUDGMENT lodged the first information report and therefore the learned trial Judge was justified in relying upon the evidence and no interference is warranted in the impugned judgment. 9. It appears from the prosecution case that when the deceased was taking passengers from Mahuva to Valavad in a tempo, both the accused blocked the road and accused Rajendrasinh inflicted axe blow and accused Mahendrasinh inflicted iron pipe blow on the head of the deceased. 10. The evidence of P.W. 9 Dr. Ashokbhai Laljibhai Vadher Exh. 28 who performed postmortem examination indicates that the deceased had about eight injuries and out of that injuries, injury No. 1 was on the head and it was possible by sharp cutting weapon like axe and such injury was sufficient in the ordinary course of nature to cause death. According to him, other injuries were possible by hard and blunt substance like iron pipe. Postmortem Report Exh. 32 also indicates the external injuries found on the dead body and the cause of death was cardio respiratory arrest caused hypovalaemic shock following multiple injury on the body. In view of this evidence, it appears that injury caused on the head by axe was responsible for the death of Firozbhai. 11. According to the prosecution case, accused Rajendrasinh was holding axe and had inflicted blow CR.A/78020/2001 6/9 JUDGMENT on the head of the deceased. The evidence indicates that on account of head injury inflicted by accused Rajendrasinh Firozbhai died. Therefore, participation of accused Rajendrasinh in commission of the offence is established beyond reasonable doubt. 12. As regards participation of accused Mahendrasinh is concerned, according to the prosecution case, he was holding iron pipe and had also given iron pipe blow on the head of the deceased. The medical evidence does not indicate any other injury on the head caused by iron pipe. Hence, it appears that accused Mahendrasinh did not cause any injury on the head of the deceased with iron pipe. 13. The evidence of P.W. 14 Babubhai Mahmadbhai Ghanchi Exh. 42 indicates that after the incident he reached at the place of occurrence and found injured Firoz, lying beneath the tempo and on inquiry with Firoz, he was informed that the accused had inflicted the injuries with axe and iron pipe. As after making statement, Firoz had died, this statement would be a dying declaration. This statement indicates participation of both the accused in causing injury to the victim. The witness has been extensively cross-examined, but nothing has been elicited to hold that the witness is not reliable or that he is not telling truth. In view of this evidence, the prosecution case with regard to the role played by each of the accused gets CR.A/78020/2001 7/9 JUDGMENT corroboration. 14. The prosecution has also produced First Information Report Exh. 46 lodged by the deceased. It indicates that both the accused inflicted axe blow and iron pipe blow on head and was indiscriminately assaulted by both the accused. 15. The prosecution has examined P.W. 16 Ismailbhai Kasambhai Ghanchi at Exh. 48. According to the witness, on receiving information about the incident, he went to the hospital and Firoz informed him that both the accused had beaten him. 16. In view of consistent evidence, it becomes clear that accused Rajendrasinh caused injury with axe on the head of the deceased. The injury caused by accused Rajendrasinh was fatal in nature. The learned advocate for the appellants could not point out any discrepancy in the evidence in that regard. There is nothing to point out that the deceased was not in a fit state of mind to lodge the first information report or that there are material discrepancies in the medical evidence and the first information report. Therefore, the learned trial Judge was justified in recording conviction of accused Rajendrasinh. 17. So far as conviction of accused Mahendrasinh is concerned, the learned advocate for the appellants submitted that accused No. 2 Mahendrasinh is wrongly CR.A/78020/2001 8/9 JUDGMENT prosecuted as he is Aniruddhsinh. But there is nothing to indicate that accused Mahendrasinh was wrongly prosecuted. Therefore, this submission cannot be accepted. 18. As regards role attributed by accused Mahendrasinh is concerned, it appears that he inflicted injuries with iron pipe but the injuries were not caused on vital parts of the body. There is also nothing to indicate that offence was abetted by accused Mahendrasinh or the act was actually committed in pursuance of abetment. Considering the nature of the injuries caused to the deceased, in our considered view, the learned trial Judge committed error in convicting accused Mahendrasinh for the offence of murder. Considering the nature of the injuries found on the dead body caused with iron pipe, in our candid opinion, accused Mahendrasinh could be convicted the offence punishable u/s 325 of the I.P. Code. 19. As regards sentence, it is submitted that accused Mahendrasinh has been in jail since more than last 10 years. Considering the role attributed to him, just and appropriate punishment would be the rigorous imprisonment already gone by him. 20. In the result, the appeal of appellant No. 1 - Rajendrasinh Triphenylarsine Wala is dismissed and judgment and order rendered on 21-4-2001 by learned Addl. Sessions Judge, Bhavnagar, Camp : Mahuva in CR.A/78020/2001 9/9 JUDGMENT Sessions Case No. 34 of 1998 is confirmed, whereas the appeal of appellant No. 2 – Mahendrasinh Khengarsinh Wala is partly allowed and the said judgment rendered by the trial court is set aside and he is convicted for the offence punishable u/s 325 of the I.P. Code and is sentenced to undergo rigorous imprisonment for the period already undergone by him. He is ordered to set free forthwith if he is not required in any other case. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/