JASHUBHAI @ JASHVANTBHAI v. STATE OF GUJARAT

HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 27/11/2008 CR.A/68720/2001 JUDGMENT ORAL ORDER (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)

1. The appellant – convict has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Gandhinagar on 1.8.2001 in Sessions Case No.45 of 2001 convicting him for the offence punishable under section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs.100/- in default thereof to undergo simple imprisonment for fifteen days.

2. According to the prosecution case, the accused and the deceased Surekhaben were husband and wife and there were quarrels between them, as the accused was not doing any work. On 25.5.2000 at about 13:30 hrs., the accused picked up quarrel and hit a wooden log on the head of Surekhaben. On account of the injuries, Surekhaben died.

3. On the basis of first information report lodged by Jayantibhai Keshavlal Gajjar, an offence was registered and investigation was started. At the end of investigation, charge sheet came to be filed against the accused for the offence punishable under section 302 of the Indian Penal Code and under section 135 of the Bombay Police Act. As the offence was triable by Sessions Court, the case was committed to the Sessions Court, Ahmedabad Rural and it was registered as Sessions Case No.45 of 2001. The learned Additional Sessions Judge, Gandhinagar framed charge Exh-3 for the aforesaid CR.A/68720/2001 JUDGMENT offence against the accused. The accused denied having committed the offence and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973, denied having committed the offence. After hearing the learned Additional Public Prosecutor and learned advocate for the accused, the learned trial Judge convicted the accused for the offence punishable under section 302 of the Indian Penal Code and sentenced him as mentioned herienebefore. Being aggrieved by the said decision, the accused has preferred this appeal.

4. We have heard learned advocate Mr. N.K. Majmudar for the appellant and learned APP Mr. M.A. Patel at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court.

5. The learned advocate for the appellant submitted that only one blow was given to the deceased and it clearly indicates that there was no intention to kill the deceased and therefore, the learned trial Judge committed error in convicting the appellant for the offence of murder and therefore, the impugned judgment is required to be quashed and set aside.

6. The learned Additional Public Prosecutor submitted that there was no grave and sudden provocation and the injury was inflicted with pre-determined mind. Therefore, the learned Judge was justified in convicting the accused for murder and no interference is warranted in the impugned judgment. CR.A/68720/2001 JUDGMENT

7. The evidence of doctor PW 3 Dr. Maheshbhai Goswami Exh-11 indicates that there was injury on the head of the deceased and such injury was possible by wooden log and the injury was sufficient in the ordinary course of nature to cause death. The postmortem report Exh-12 indicates the external injuries. It also indicates that the cause of death was injuries sustained over head region. This clearly indicates that the death was homicidal.

8. It appears that PW 1 Jayantibhai Suthar Exh-7 lodged the first information report Exh-8, but he was not the eye witness but lodged the first information report on receiving information about the incident.

9. The evidence of PW 9 Babubhai Maganbhai Valand Exh-20 indicates that he was a neighbour of the accused. According to him, Surekhaben was being treated with cruelty by the accused. It also indicates that on the day of the incident, on hearing shouts from the house of the accused, he went there and found that Surekhaben was profusely bleeding from her head and the accused was sitting there with wooden log. The accused has not explained this incriminating circumstance. The evidence of this witness also indicates that his nephew Shailesh also went to the house of the accused on hearing shouts.

10. The evidence of PW 10 Shaileshbhai Valand Exh-21 also indicates that on hearing shouts, he went there and saw that the accused was sitting there with wooden log and Surekhaben was profusely bleeding from her head. CR.A/68720/2001 JUDGMENT

11. In view of above consistent evidence, it clearly emerges that the accused and the deceased were in their house and on hearing shouts of Surekhaben, both the witnesses went inside the house and found that Surekhaben was profusely bleeding from her head and the accused was present there with wooden log. Therefore, it appears that the accused assaulted Surekhaben with wooden log and on account of the injury, Surekhaben died. It also appears that at the time of incident, none except the deceased and accused was present in the house. No explanation with regard to this incriminating evidence has been offered by the accused. Therefore, in our view, the learned trial Judge was justified in convicting the accused and no interference is warranted in the impugned judgment.

12. In the result, the appeal fails and stands dismissed. The judgment and order of conviction and sentence passed by the the learned Addl. Sessions Judge, Gandhinagar on 1.8.2001 in Sessions Case No.45 of 2001 convicting the appellant for the offence punishable under section 302 of the Indian Penal Code, is confirmed. (BHAGWATI PRASAD, J.) (BANKIM.N.MEHTA, J.) shekhar/-