CR.A/28320/2002 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 283 of 2002 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. ===================================================== MADHABHAI PUNJABHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : MS. SADHANA SAGAR FOR MR BS SUPEHIA for Appellant MR. MUKESH A PATEL APP for respodent – State. ===================================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and CR.A/28320/2002 2/7 JUDGMENT HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 28/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has filed the present appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction passed on 30-01-2002 by Addl. Sessions Judge, Surendranagar in Sessions Case No.68 of 2000 for offence punishable u/s 302 of the I.P. Code and u/s 135 of the Bombay Police Act and sentencing him to undergo imprisonment for life and to pay fine of Rs.5000/- i/d to undergo simple imprisonment for six months for the offence of murder of Jashabhai Gordhanbhai, to undergo life imprisonment and to pay fine of Rs.5,000/-, in default thereof, to undergo simple imprisonment for six months for the offence of murder of Gordhanbhai and to undergo simple imprisonment for six months and to pay fine of Rs.1000/- in default thereof to undergo simple imprisonment for two months for the offence punishable u/s 135 (1) of the Bombay Police Act. 2. In brief the prosecution case was that there were disputes between the accused and the deceased about their agricultural lands. On 5-5-2000 at about CR.A/28320/2002 3/7 JUDGMENT 10-00 a.m., the appellant – accused assaulted both the deceased with “dhariya” and caused their death. 3. On the basis of the complaint lodged by Manjuben, widow of Jagabhai Gordhanbhai, offence was registered and investigation was started. At the end of investigation charge sheet was laid against the accused for the offence punishable u/ss 302, 504-114 of the I.P. Code and u/s l35 of the Bombay Police Act. As the case was triable by Sessions Court, the case was committed to Sessions Court, Surendranagar and it was registered as Sessions Case No. 68 of 2000. Learned Addl. Sessions Judge, Surendranagar framed charge Exh. 8 against accused for the aforesaid offences. 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 false case is foisted upon them. 5. The learned trial Judge after appreciating the evidence led by the prosecution and relying on the evidence found the charge against appellant as proved and convicted him for the offence punishable u/s 302 of the I.P. Code and u/s 135 of the Bombay Police Act and imposed the sentence as stated CR.A/28320/2002 4/7 JUDGMENT hereinabove. But acquitted accused No. 2 Manguben w/o Madhabhai Punjabhai. Being aggrieved by the said decision, the appellant – convict has preferred this appeal. 6. We have heard Ms. Sadhana Sagar for Mr. B.S. Supehia learned advocate for the appellant and Mr. Mukesh A. Patel, learned Addl. Public Prosecution for the respondent - State at length and in great detail. We have perused the impugned judgment and record and proceedings of the trial court. 7. Learned advocate Ms. Sadhana Sagar submitted that there is no convincing and reliable evidence to convict the accused. As there were disputes between the complainant and the accused, false case is filed. Therefore, the appeal is required to be be allowed. 8. Learned A.P.P. Ms. Panchal submitted that the the evidence proves beyond reasonable doubt that the accused with pre-determined mind attacked the deceased and therefore no interference is called for in the impugned judgment. 9. P.W. 1 Manjuben Jagabhai Exh. 21 is the first informant. According to her evidence, deceased Gordhanbhai Pujabhai was her father-in-law and Jashabhai Gordhanbhai was her brother-in-law and there were disputes between the accused and deceased Gordhanbhai with regard to ancestral property. CR.A/28320/2002 5/7 JUDGMENT According to her evidence, she, her father-in-law Gordhanbhai and her brother-in-law Jashabhai were residing separately in the same 'khadki' and the accused had a house at the southern side of her house. On the day of incident, at about 10-00 in the morning, when her brother-in-law Jashabhai came out of the house, he raised shouts, therefore, she and her father-in-law Gordhanbhai came out of the house and saw that accused Madhabhai was giving 'dhariya' blows to Jashabhai and also gave 'dhariya' blow to Gordhanbhai. Her evidence also indicates that she lodged first information report with regard to the incident. 10. The witness has been extensively cross- examined. It appears from the cross-examination that on hearing shouts of Jashabhai, the witness came out of the house and saw accused Madhabhai inflicting 'dhariya' blows to Jashabhai. It also indicates that on hearing shouts deceased Gordhanbhai also came out of the house and while he was going towards Jashabhai the accused also hit Gordhanbhai with 'dhariya'. The defence has not been able to impeach her evidence despite lengthy cross-examination. First Information Report Exh. 22 also indicates that on hearing shouts from Jashabhai the informant came out of the house and saw that the accused was inflicting 'dhariya' blows to Jashabhai and as her father-in-law Gordhanbhai tried to separate them, the accused also assaulted Gordhanbhai with 'dhariya'. CR.A/28320/2002 6/7 JUDGMENT 11. The evidence of P.W. 2 Dr. Pranav Narendrabhai Thakar Exh. 31 indicates that postmortem examination of Jashabhai and Gordhanbhai was performed by the witness. According to the witness, the injuries found on the dead bodies were sufficient in the ordinary course of nature to cause death and such injuries were possible by weapon like 'dhariya'. Postmortem reports of Gordhanbhai and Jashabhai indicate external injuries on the dead bodies and the cause of death was haemrrohagic shock due to blood loss due to injury. Postmortem Reports also indicate that the injuries were on vital parts of the bodies. Therefore, the death were homicidal in nature. 12. In view of above, it appears that there were disputes between the two brothers about the ancestral property and on account of such disputes accused Madhabhai assaulted the deceased with 'dhariya' without any grave and sudden provocation. Looking to the injuries, death of Jashabhai and Gordhanbhai were brutal. The prosecution evidence is consistent and no infirmity is pointed out in the impugned judgment. Therefore, the learned trial Judge was justified in convicting the appellant and no interference is warranted in the impugned judgment. 13. In view of above, the present Criminal Appeal fails and is dismissed. The judgment and order of conviction and sentence rendered by the learned Addl. sessions Judge, Surendranagar on 30-01-2002 in Sessions Case No. 68 of 2000 for the offence CR.A/28320/2002 7/7 JUDGMENT punishable u/s 302 of the I.P. Code and u/s 135 of the Bombay Police Act is confirmed. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/