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Judgment
Being aggrieved by conviction and sentence under section 302 of the Indian Penal Code and having been sentenced for life imprisonment, accused has filed this appeal challenging the judgment and order dated 29.8.2011 rendered by the learned Additional Sessions Judge, Bharuch at Ankleshwar in Sessions Case No.125/2010.
A charge was framed by the learned Sessions Judge at exh.9. According to the charge, accused Rameshbhai Gordhanbhai Vasava was charged for offence under section 302 of the Indian Penal Code. According to the charge, on 21.8.2010, at around 8 in the evening, the accused attacked his father Gordhanbhai with a Kosh. The father succumbed to such injuries. Hence charge under section 302 of the IPC.
The complaint exh.12 about the incident was filed by Rajesh, the son of the deceased. According to him, he along with the other members of his family were sitting at the village. Prior to the date of the incident i.e. on 20.8.2010, according to the complainant, when he was returning home in the evening, he was informed by his father that Ramesh had misbehaved with his wife and therefore, he had dropped the children and the wife at her parents'' house. On 21st August, when he was leaving, there was an altercation between his brother Ramesh and his father on the premise that who should be served the food first. At that point of time, the complainant''s younger brother Ramesh entered into an argument. He thereafter, left. Subsequently, Rajesh was informed that his father had been attacked by Ramesh with a Kosh and had sustained injuries. When he went there, he found his father lying in a pool of blood and had sustained injuries on the head and on his face. Ramesh had fled from the scene. According to the complainant, Tulsiben had seen Ramesh leaving after attacking his father. After the incident, according to the complainant, he went to Sarpanch of the village Arvindbhai and narrated the incident. The complaint was accordingly lodged.
Rajeshbhai Gordhanbhai Vasava, Prosecution Witness No.1, the complainant, has been examined at exh.11. He however, has turned hostile.
Deceased Gordhanbhai''s mother and grandmother of the accused, Lakhiben Maganbhai Vasava, Prosecution Witness No.5 has been examined at exh.22. According to her, the incident occurred in front of the house. At that time, she was sitting with her son Gordhanbhai the deceased. Ramesh approached with a Kosh and attacked Gordhanbhai and inflicted three blows on the head of the deceased Gordhanbhai. Gordhanbhai sustained serious injuries and succumbed to such injuries. According to this witness, Gordhanbhai was thereafter, taken to Netrag dispensary and thereafter, to Valiya Government hospital where postmortem was carried out. According to this witness, there was a dispute pertaining to the land and that was the motive of the incident. This witness has been cross examined. She in her cross examination stated that the incident occurred at 6 in the evening. All the family members were present in the house. She admitted that she had impaired vision as a result of cataract and she also had impaired hearing. She denied the suggestion that there was no light in the house or that there was no street light and there was darkness when the incident occurred. She admitted that she was sitting outside the house when Ramesh came and carried out the attack. She admitted that she did not see Ramesh from a distance.
Tulsiben Muljibhai Vasava, Prosecution Witness No.7, the aunt of the accused and sister of deceased Gordhanbhai, was examined at exh.24. She in her testimony stated that the incident occurred in front of Lakhiben''s house. On hearing her shouts, she went out and saw Gordhanbhai, her brother being attacked with a Kosh by Ramesh. Gordhanbhai had sustained serious injuries on his head. The Sarpanch and other neighbours had gathered at the scene of the incident. Rajesh, elder brother of Ramesh, was in the neighbourhood. In her cross examination, she denied the suggestion that she was in the backyard sleeping and, therefore, could not have witnessed the incident. She stated that her house was facing Gordhanbhai''s house and was only at a distance of about 15 to 20 feet and that there was darkness when the incident occurred. She denied the suggestion that the complaint was lodged by the Sarpanch.
Muljibhai Devabhai, Prosecution Witness No.6, has been examined at exh.23. According to this witness, the incident occurred at 6 in the evening. The house of the deceased was behind his house. On hearing shouts, he came out and saw Ramesh attacking Gordhanbhai with a Kosh. Raju, the elder brother was in the neighbour''s house watching television. After the incident, his daughter Uma went and called Raju.
17 March 2017 This witness has been cross examined. He agreed to the suggestion that the incident happened outside Gordhanbhai''s house and that on hearing the shouts, he went to Gordhanbhai''s house. He agreed that when he went to the scene of the incident, the accused had already fled from the scene.
Dr.Sanjaysinh Srinivas Dubey, Prosecution Witness No. 16, who carried out the postmortem has been examined at exh.44. He was the medical officer of the Primary Health Centre. He carried out the postmortem on 22.8.2010. The postmortem report is produced at exh.45. The external injuries sustained by the deceased as a result of being attacked by Kosh are as follows : "Fracture which is open in naline seen in frontal and perital region - size 8 cm CLW6" x3" in right Frontal region above right eyebrow Fracture of nasal bone Mandible and maxillary bone, hyoid bone, of occipital bone, of ant cranical fossa, of frontal bone and of ant cranical fossa. Chestfracture of 2 and 3rd rib fracture seen in both side of chest."
Corresponding to such external injuries, following internal injuries were noticed :
"Vault of skull fracture blood extravastale into the scalp tissue from rupnnea Vanis, fracture of ant crinical fossa, fracture of frontal bone 8 cm, fracture of nasal bone, fracture of mandible and maxillary bone, of hyoid bone, of nasal bone, chestright side 2nd and 3rd ribs fracture seen, fracture of hyoid bone"
According to the doctor''s opinion, the death occurred due to multiple fractures on the head and on the ribs.
In his cross examination, he admitted that such injuries could have been sustained as a result of use of iron pipe or a rod.
Corroborative evidence in the form of discovery panchnama is at exh.21. The accused led the police party on a dirt track at an isolated road and from the bushes took out a Kosh which was used for the commission of the offence. The FSL report and the serological report at exh.39 are pointer to the fact that Kosh used to commit the offence had blood group ''B'' of the deceased and so did the clothes of the deceased and the accused.
On the appreciation of the evidence on record, the following points emerge : 1) Elder brother of the accused Rajeshbhai had filed a complaint on 22.8.2010 narrating the incident as it happened. In the complaint he has specifically stated that brother Ramesh the accused attacked his father when his grandmother was sitting besides him and when she was asked she specifically stated that Ramesh had attacked his father Gordhanbhai with the Kosh and then fled from the scene.
It is in light of this statement of fact made in the complaint that the evidence of Lakhiben Maganbhai Vasava, Prosecution Wintess No.5, needs to be assessed. In her examinationinchief, she has stated that the incident happened in front of her house when she was sitting with her son Gordhanbhai. At that point of time, Ramesh, son of Gordhanbhai advanced towards her son Gordhanbhai and attacked him with a Kosh. Gordhanbhai sustained injuries on his head. He collapsed and was profusely bleeding. The possible cause of the incident was the land disputes between the two. She in her cross examination also categorically stated that when the incident happened all the family members were present. The defence has tried to impeach the credibility of this witness by putting a suggestion that due to her impaired vision and hearing, she was not in a position to identify the accused. However, looking to the statement made in the complaint and the testimony in her examination in chief, it is evident that when the incident occurred, she was close to her son Gordhanbhai. Even Tulsiben Muljibhai Vasava, Prosecution Witness No.7, in her testimony has confirmed the version of the complainant and that of the mother Lakhiben and stated that the incident occurred in front of the house. On hearing the shouts, when she went out, she saw Ramesh attacking Gordhanbhai with a Kosh. She denied that she was not present at the scene and was in her backyard. Even Prosecution Witness No.6 Muljibhai Devabhai has confirmed that the incident occurred in front of Gordhanbhai''s house while he was sitting with his mother and on hearing shouts, he came out.
On reading the testimonies of all these three witnesses, evidently, the incident occurred in a closed neighbourhood where all the witnesses were in close proximity and therefore, there is no reason to disbelieve the version that they were not present or reached immediately on the occurrence of the incident.
On reading of the testimony of Dr.Sanjaysinh Srinivas Dubey, Prosecution Witness No. 16, together with the postmortem report at exh.45, evidently, the injuries on the deceased sustained were on the head. The deceased as a result of being attacked by Kosh had an open skull fracture in front region and also had fracture of nasal bone. He had also sustained fracture in 2nd and 3rd ribs and cause of death was fracture of multiple skull bone and ribs which caused severe blood loss leading to cardiorespiratory failure. Looking to the injuries sustained, it is apparent that the accused had the intention and knowledge to cause the death.
Learned advocate for the appellant has relied on the decisions of the Supreme Court in case of Gurdial Singh & ors. v. State of Punjab reported in 2011 Law Suit (SC) 59 and in case of Ravindra Shalik Naik v. State of Maharashtra reported in 2009 AIR (SC) 1709, to persuade us to convert the conviction of the accused from that of section 302 to section 304 Part I of the IPC. However, looking to the nature of the evidence on record and the injuries sustained, it is apparent that the accused inflicted blows on the deceased knowing fully well that such injuries would cause death. They were on the vital part of the body and evidently looking to the medical evidence on record, the submission of the learned advocate need not be accepted.
In view of the aforesaid reasons, the criminal appeal is dismissed. R&P may be transmitted back to the concerned trial Court.