Gujarat High Court
Vallabhbhai @ Pintu Mangabhai Rathod vs State Of ... on 6 July, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.A/74/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 74 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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VALLABHBHAI @ PINTU MANGABHAI RATHOD....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MS KIRAN D PANDEY, ADVOCATE for the Appellant(s) No. 1
MR JK SHAH, ADDL.PUBLIC PROSECUTOR for Opponent/Respondent No.1
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 06/07/2017
ORAL JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. This appeal under Section374(2) of the Code of Criminal Procedure, 1973 ("the Code", for short) is Page 1 of 53 HC-NIC Page 1 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT directed against the judgment and order dated 25.04.2011, passed by the learned Second Additional Sessions Judge, Bharuch, Camp at Ankleshwar, in Sessions Case No.92/2010, whereby the appellant original accused has been convicted and sentenced to undergo life imprisonment for the offence punishable under Section302 of the Indian Penal Code, 1860 ("the IPC", for short).
2. The case of the prosecution is based upon the complaint (Exhibit30) dated 10.06.2010, filed at Hansot Police Station by Manishaben, aged twenty years, daughter of Thakorbhai Kikabhai Rathod, resident of Rathod Faliyu, village Sunevkalla, Taluka Hansot, District Bharuch. The complainant is the younger sister of Ushaben who will hereinafter be referred to as the deceased. The complainant states that she was living with her parents, her deceased elder sister and brotherinlaw, Vallabh alias Pintu Mangubhai Rathod, the accused. They all used to earn their livelihood by working as agricultural labourers. The marriage of the deceased with the accused was solemnized seven years prior to the incident. A daughter, named Priyanka, was born to them but she Page 2 of 53 HC-NIC Page 2 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT died about a year ago. The deceased had the habit of chewing "Miraj" tobacco and the accused had the habit of consuming liquor. On 10.06.2010, at about 9.00 a.m., the complainant, along with the deceased and other persons from the village namely Sitaben Shantubhai Rathod, Ushaben Mansukhbhai Vasava, Manjuben Mansukhbhai Vasava and Gomanbhai Kalidas Rathod, along with other labourers living in the same "Faliya" (street), went to the field of Rajendrabhai Jentibhai Vasava (PW10) in which a crop of ladies finger was sown, for the purpose of doing weeding work. At about 12.00 noon, when the complainant and deceased came home for lunch, the accused was present there. When they were leaving the house after lunch the deceased started chewing tobacco, on account of which the accused got angry with her and started quarrelling. The deceased also started quarrelling with the accused. Thereafter, the complainant, accompanied by the deceased, returned to work in the field of PW10, where they worked upto 2.00 p.m. At about 2.30 in the afternoon, the accused came with an axe in his hand and went running to the spot where the deceased was doing weeding work. He gave a blow of the Page 3 of 53 HC-NIC Page 3 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT axe upon the head of the deceased, who shouted and fell down at the spot. Even though the deceased had fallen down, the accused gave two more blows with the axe on her head. Upon seeing this, the complainant and other labourers came towards the deceased in order to save her. The accused ran away towards the canal, taking the axe with him. The complainant and other labourers went to the deceased, who was bleeding profusely from her head. It appears that the scull of the deceased had cracked. The complainant tried to speak to the deceased but she did not reply. The complainant realized that she had died on the spot. After a short while Jashuben, the mother of the complainant, came running to the sport with other persons from the village. PW10 Rajendrabhai, the owner of the field, as well as PW1 Thakorbhai, the Sarpanch of the village, arrived at the spot. Upon seeing the dead body of the deceased, they started calling the Police from their mobile phones.
3. The complaint was registered as C.R.No.I26/2010 under Section302 of the Indian Penal Code. Thereafter, the investigation commenced. A charge Page 4 of 53 HC-NIC Page 4 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT sheet under Section302 of the Indian Penal Code was submitted before the learned Judicial Magistrate, First Class, Hansot, which was registered as Criminal Case No.754/2010. As the case was triable only by the Court of Sessions, it came to be committed to the Sessions Court, Bharuch, Camp at Ankleshwar, bearing Sessions Case No.92/2010.
4. To prove its case, the prosecution examined as many as fourteen witnesses and produced documentary evidence. In his statement under Section313 of the Code, the defence of the appellantaccused was that of total denial. However, to the question whether he had anything further to say, the appellantaccused stated that a false case has been foisted upon him and he would like to give a further statement in writing. Thereafter, the appellantaccused submitted a written statement, taking the defence that he had inflicted the blow with the axe on the head of the deceased due to sudden and grave provocation, as he had seen the deceased in a compromising position with one Ramesh Vasava from the neighbouring village. According to the accused, when he confronted the deceased, she used vulgar and derogatory language saying that "You are Page 5 of 53 HC-NIC Page 5 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT not a man and you are unable to do anything, therefore, I have to go to another man and I will continue to have intercourse with him and you can do nothing about it." According to the defence put up by the accused, the deceased openly talked about her illicit relationship with another man. She then pushed the accused, who fell down near the "Samadi" tree where some implements were lying. The hand of the accused fell upon the handle of an axe, which he picked up. In his agitation, he lost all control over his mind and body and, without considering the consequences, gave a blow with the axe on the head of the deceased. The accused states that he does not remember how many blows he inflicted on the head of the deceased. Thereafter, he threw the axe there and went home. It is the defence of the accused that he committed the act due to sudden and grave provocation but had no intention of killing the deceased.
5. Upon evaluating and appreciating the oral and documentary evidence on record, the Sessions Court did not believe the version of the defence that the accused inflicted axe blows on the head of the Page 6 of 53 HC-NIC Page 6 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT deceased, thereby causing her death, on account of sudden and grave provocation. It held that the present case did not fall under Exception1 of Section300 of the IPC and concluded that the charge of murder under Section302 of the IPC against the appellant stood proved beyond reasonable doubt and convicted him for the said offence. The appellant was sentenced to life imprisonment with a fine of Rs.5,000/, failing which he would have to suffer simple imprisonment for six months.
6. Aggrieved by the above judgment, the appellant is before this Court. At this stage, it would be fruitful to advert to the salient features of the oral and documentary evidence adduced by the prosecution. The defence did not examine any witnesses.
7. PW1 is Thakorbhai Maganbhai Patel, whose deposition is at Exhibit9. He is examined as a Panch witness of the Inquest Panchnama at Exhibit10. He is also the Sarpanch of the village. He has stated that the dead body of the deceased was lying in the field of PW10 and there was a wound on the side of the head of the deceased. He prepared the Panchnama, which is Page 7 of 53 HC-NIC Page 7 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT proved by him and identified his signature as Panch No.1 on the said Panchnama. He states that the other Panch witnesses, Jamalbhai and Hansaben, have also signed the Panchnama in his presence.
8. PW2 is Rameshbhai Chhaganbhai Vasava, who has deposed at Exhibit11. He is a Panch witness of the Panchnama of the "Control Sample of Mud" (Exhibit14) taken from a distance of about eight feet from the bloodsoaked mud, on the spot of the occurrence. He states that the said sample was sealed by the Police in his presence and a slip was put into the box which is signed by him as Panch No.1. He has stated that Panch No.2, Satish R. Vasava, has signed in his presence.
9. PW3 is Mehulbhai Bharatbhai Patel, who has deposed at Exhibit15. He is a Panch witness of the Panchnama of the arrest of the accused which is at Exhibit18. He has stated that on 10.06.2010, the Police approached him and asked him to accompany them to arrest the accused. He, accompanied by Rajesh Shantilal, went with the Police to the school in Juna Obha village, where they found the accused sleeping on Page 8 of 53 HC-NIC Page 8 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT the ledge. The Police arrested the accused in the presence of this witness. The pant worn by the accused was bloodstained and the Police made the accused change his clothes and took into possession the blood stained clothes worn by him, in the presence of this witness. This witness has identified the clothes taken out from the sealed packet and shown to him in the Court, as being those worn by the accused when he was arrested. He has identified his signature on the slip in the packet of clothes. He has stated that Panch witness No.2, Rajesh Shantilal, has signed in his presence and the other signature is that of Rajesh Shantilal. He has stated that the Panchnama was prepared in his presence. He has identified the accused as being the person who was arrested in his presence. In his crossexamination, this witness has denied the suggestion that the clothes, stated to be those worn by the accused, have been brought by the Police along with them.
10. PW4 is Prafullkumar Jentibhai Aahir, who has deposed at Exhibit20. He is a Panch witness of the recovery of the axe, the weapon of offence. The Recovery Panchnama is at Exhibit22. This witness has Page 9 of 53 HC-NIC Page 9 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT stated that the Hansot Police came in a jeep and asked him to accompany them to Sunevkalla village. The witness complied and saw that the accused was also sitting in the jeep. The accused took them to the field of ladiesfinger where the deceased was killed. The axe, which was in the neighbouring field of sugarcane, was taken out by the accused. A bunch of hair was stuck to the axe. The axe was wrapped in a cloth by the Police and sealed in the presence of this witness. On the seal being opened and the axe taken out, this witness identified it as being the same axe that was recovered at the behest of the accused. On a specific question being asked during crossexamination whether the accused had shown the axe which was hidden in the field of sugarcane, this witness replied in the affirmative and stated that the accused went into the field of sugarcane and took out the axe. This witness has proved the Panchnama.
11. The above four Panch witnesses have supported the case of the prosecution and proved the respective Panchnamas of which they are Panch witnesses. Their testimonies have not been controverted during cross Page 10 of 53 HC-NIC Page 10 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT examination.
12. We may now discuss the oral evidence of the more important eyewitnesses, whose testimonies would have a direct bearing on both the case of the prosecution and the defence. PW5, 6, 7, 8 (complainant) and 9 are eyewitnesses who were present at the spot and saw the incident.
13. PW5, Ushaben Mansukhbhai, has been examined at Exhibit25. She has stated that on the day of the incident she had gone to work as an agricultural labourer in the field of PW10. She was accompanied by other labourers such as Savitaben, Mangiben, Amishaben, Bharatiben, Gumanbhai, Jashuben etc. She went to work at 10.00 a.m. and returned home for lunch at 12.00 noon. Thereafter, at about 2.00 p.m., she returned to work in the field. At that time, the accused came from the direction of the sugarcane field to the place where his wife, the deceased, was working and aimed the axe at the deceased. The deceased started running and the accused ran after her. The accused caught the deceased from the back and made her fall to the ground. Thereafter, the accused gave axe Page 11 of 53 HC-NIC Page 11 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT blows on the head of the deceased, who died on the spot. This witness has stated that she saw the incident and has identified the accused in Court. In her crossexamination, this witness has categorically stated that though the accused also used to work as an agricultural labourer, he did not come for the work on the day of the incident. This witness has stated that an axe is used for the work of cutting trees and usually this work is given to male agricultural labourers whereas the work of weeding is given to women. On being asked whether the deceased, had come to work alone on that day, this witness answered that the sister of the deceased, Manishaben, had also come to the work with the deceased that day. This witness has categorically denied the suggestion that an altercation took place between the accused and the deceased. She states that she does not know the reason why the accused killed his wife. This witness has further stated that the spot where she was working is at a distance of eight to ten feet from where the deceased was working. She states that though the accused started saying something to the deceased, the deceased did not reply. She denies the suggestion that Page 12 of 53 HC-NIC Page 12 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT the accused told the deceased that he had seen what she was doing behind the bushes. She has further denied that the deceased had said that "You are not a man and you are unable to do anything, therefore, I have to go to another man and I will continue to have intercourse with him and you can do nothing about it." This witness categorically denies the suggestion that the deceased had used crude and vulgar language with the accused or that there was an altercation between them, leading to a scuffle. She also denies that the deceased pushed the accused hard, resulting in his falling down, where the handle of an axe lying there came into his hand. She denies that the accused gave axe blows on the head of the deceased due to the provocation given to him by the deceased. She, however, states that the accused threw the axe in the field after he had inflicted blows on the deceased. This witness states that she has not stated in the Police statement that the accused aimed the axe on the deceased and the deceased started running and the accused ran after her and threw her down.
14. PW6, Sitaben Shantubhai, whose deposition is at Exhibit26, is another eyewitness of the incident.
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R/CR.A/74/2012 JUDGMENT
She states that she had gone for work in the field of PW10 at about 10.00 in the morning. At about 12.00 noon, she came home for lunch and returned at about 2.00 p.m., and started doing weeding work in the field. At that point of time, the accused came from the sugarcane field upto his wife and gave a blow on her head with the axe. This witness states that she does not know from where the accused got the axe. She states that she saw the accused giving axe blows to the deceased. She has identified the accused as the one who gave the blows as well as the axe as the weapon of offence. She states that when the accused inflicted axe blows on the deceased, she fell down dead in the field. In crossexamination, this witness denies the suggestion that there was a quarrel between the accused and deceased or that the deceased had spoken in crude and vulgar language with the accused. She states that she was working at a distance of fifty to sixty feet from the spot where the incident took place and did not hear any altercation between the accused and the deceased. This witness has categorically denied that there was any provocation from the deceased to the accused. She has further Page 14 of 53 HC-NIC Page 14 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT denied that a scuffle took place between the accused and the deceased or that the deceased had pushed the accused, so that he fell near the "Samadi" tree. She denies that when he fell, the accused found the handle of the axe in his hand and, in his anger and provocation at the words of the deceased, killed her. She states that after giving axe blows to the deceased, the accused ran away. She denies that the accused threw the axe near the "Samadi" tree, but states that the axe was thrown by him in the sugarcane field before he went away. This witness denies the suggestion that the deceased had not have given birth to a child. She also denies that the deceased had illicit relations with Rameshbhai Vasava, from village Sunevkhurd.
15. The next eyewitness is PW7, Manjuben Mansukhbhai, whose deposition is at Exhibit27. She states that on the day of the incident she, along with Sitaben, Ushaben, Manishaben etc. had gone to work in the field of PW10. When she was working, the accused came upto the deceased. On seeing the accused the deceased started running. The accused ran after the deceased and gave two axe blows on her head and killed Page 15 of 53 HC-NIC Page 15 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT her. Thereafter, the accused ran away. The deceased fell down dead on the spot. During crossexamination, this witness reiterates that the deceased started running and the accused ran after her. She denies the suggestion that the deceased came running from the sugarcane field with the accused running after her. This witness also denies the suggestion that there was an altercation between the accused and the deceased or that the deceased had used crude and vulgar language during such altercation. This witness further denies the suggestion that the deceased had said that the accused was not capable of doing anything, therefore, she had to go to another man. This witness denies that the deceased pushed the accused or that the accused fell down and the handle of the axe came into his hand. This witness has also denied that the accused inflicted axe blows to the deceased due to provocation and anger. She states that the accused hit the deceased with the axe, threw it, and went away.
16. PW8, Manishaben Thakorebhai, is the complainant and sister of the deceased who also witnessed the incident. She states that on the day of the incident, she had gone to the field of PW10 to do weeding work, Page 16 of 53 HC-NIC Page 16 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT accompanied by her sister, the deceased and other girls from the village, namely, Shilaben, Bharatiben etc. They were all gone as agricultural labourers for weeding work in the field where a crop of ladies finger was sown. They went to work at about 10.00 a.m. and returned home at 12.00 p.m. for lunch. When she and the deceased came home for lunch, the accused had asked the deceased why she chewed "Miraj" tobacco and that she should stop chewing tobacco. Upon this, the deceased told the accused that he also chews tobacco and consumes liquor and he should leave these habits first. Thereafter, the deceased, accompanied by this witness and other labourers returned to the field of PW10 where they resumed their work. This witness states that, thereafter, the accused came at about 2.00 p.m. from the direction of the adjoining sugarcane field, to the spot where the deceased was working. The accused aimed the axe on the deceased. Upon seeing this, the deceased started running. The accused caught hold of her nighty and pushed her down. Thereafter, the accused gave axe blows to the deceased, as a result of which she died on the spot. The accused then ran away towards the village. This Page 17 of 53 HC-NIC Page 17 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT witness was subjected to an extensive cross examination, during which she stated that the accused used to live with her family after his marriage with the deceased as a "Ghar Jamai". She states that about one and a half years ago, there was a quarrel between the accused, deceased, their mother and other family members, as a result of which the accused went to Ahmedabad, where his mother lived. He stayed there only for one and a half months, after which he returned. This witness has denied the suggestion that the accused was thrown out of the house, or that he stayed in Ahmedabad for about a year. She states that the incident took place six months after the accused returned from Ahmedabad. Even after his return, the accused used to stay in the house of the deceased with her family. She further states that when the accused was in Ahmedabad, her sister, the deceased had given birth to a baby girl, who later died.
17. This witness has categorically denied the suggestion that while the accused was in Ahmedabad, the deceased had developed illicit relations with Rameshbhai Vasava, from village Sunevkhurd. She denies the suggestion that the said Rameshbhai Vasava used to Page 18 of 53 HC-NIC Page 18 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT work as an agricultural labourer along with them. She further denies that there used to be quarrels regarding the alleged illicit relation of the deceased between the accused and the deceased, or regarding the birth of the daughter of the deceased.
18. This witness categorically states that on the day of the incident, the accused had not come for work and nor had he gone to Hansot on that day. She states that the accused was at home when she left the house for work in the morning. She does not know where he went thereafter. This witness denies the suggestion that she came home alone for lunch or that she was not accompanied by the deceased, who had stated that she was not hungry and had stayed in the field. She further denies that her mother had asked her why she had come home alone or that she told her mother that the deceased was not hungry, therefore, she had come alone for lunch. This witness states in cross examination that men are also employed for agricultural labour along with women and an axe is usually used for cutting trees etc. She maintains that when she was working in the field, the accused suddenly came there and ran after his wife. She states Page 19 of 53 HC-NIC Page 19 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT that both ran towards the "Samadi" tree. However, she denies that there was any altercation between the two or that the accused had seen the deceased behind the bushes in a compromising position with Ramesh and therefore, he had started quarrelling with her. She denies the suggestion that the deceased had used vulgar language and stated that "You are not a man and you are unable to do anything, therefore, I have to go to another man and I will continue to have intercourse with him and you can do nothing about it." She categorically denies that there was a scuffle between the accused and the deceased and that the deceased pushed the accused, who fell near the "Samadi" tree where the axe was lying. She denies the suggestion that the handle of the axe came into the hand of the accused when he fell down. She also denies that the accused was provoked by the deceased and in anger and provocation, hit the deceased on the head with the axe. She states that after hitting the deceased, the accused threw the axe on the spot and walked away. This witness denies the suggestion that the axe used by the accused was given by her to the Police. She states that the accused showed the axe to Page 20 of 53 HC-NIC Page 20 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT the Police the next day. This witness has denied that she has deposed falsely in order to save the reputation of her sister, the deceased.
19. PW9, Bharatiben Manharbhai, who has deposed at Exhibit31 is another eyewitness of the incident. She has stated that on the day of the incident she, along with other labourers such as Ushaben, Manishaben, Gomanbhai etc. had gone to work in the field of PW10. They came home for lunch at about 12.00 noon and returned to the field at about 2.00 p.m. While they were working in the field, the accused ran towards the deceased with an axe. The deceased started running and the accused went after her, caught her and made her fall to the ground. The accused hit the deceased on the head with the axe and the deceased died on the spot. She states that she has seen the incident with her own eyes. In crossexamination, this witness states that an axe is used for cutting trees etc. and male agricultural labourers are usually given such work, whereas female agricultural labourers are given the work of weeding. She states that though the accused used to work as an agricultural labourer, Page 21 of 53 HC-NIC Page 21 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT however, on the day of the incident he had not come for such work. This witness further states, in answer to a question asked to her, that the deceased was accompanied by her sister, Manishaben. She categorically denies the suggestion that there was an altercation between the accused and the deceased and states that she does not know the reason why the accused killed the deceased. This witness states that the accused came towards the deceased and started quarrelling, but denies the suggestion that the deceased said anything in return. She denies that the accused had told the deceased that he knew what she was doing behind the bushes with that boy, as he had seen her. She further denies that the deceased had said to the accused that he is not a man and is incapable of doing anything, therefore, she would go to another man. She further denies that the deceased used crude and vulgar language or that there was a scuffle between the accused and the deceased. She denies that the deceased pushed the accused and made him fall to the ground or that the hand of the accused fell on the handle of an axe and he hit the deceased with the axe in anger upon being provoked by the words Page 22 of 53 HC-NIC Page 22 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT of the deceased. This witness states that after hitting the deceased with the axe, the accused threw the axe and went away.
20. Rajendrabhai Jentibhai, the owner of the field where the incident took place, has been examined as PW10. His deposition is at Exhibit33. He is not an eyewitness but came to the field after he was informed of the incident. He states that he had sown a crop of ladiesfinger in his field and on the day of the incident the deceased, her sister Manishaben, Sitaben, Manjuben and other labourers had come to work in the field. After explaining the work to the labourers at about 10.30 a.m., he had gone to Kapodara village. When he was at Kapodara, he was telephonically informed by the Sarpanch PW1 that one of the labourers working in his field, namely, Ushaben had been killed by her husband, the accused. He, therefore, immediately returned to the field where he saw the dead body of the deceased lying there. In crossexamination, this witness has stated that a small "Dhariya" is used for the purpose of weeding. He states that for cutting trees the male labourers use an axe. He denies the suggestion that on the day of Page 23 of 53 HC-NIC Page 23 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT the incident any male labourer had been engaged by him. He denies that Gomanbhai had been engaged as a labourer by him on that day.
21. The Sarpanch of the village Thakorbhai Maganbhai Patel has been examined as PW11 at Exhibit34. He has also been examined as PW1 as a Panch witness. He is not an eyewitness of the incident but reached the spot after being informed that the accused had killed the deceased with an axe in the field of PW10. He states that after he came to know of the incident, he informed the Police, who came there. He denies the suggestion that he has deposed falsely in order to save the reputation of the deceased.
22. Dr.Dakshesh Chimanlal Chauhan, who has performed the Postmortem upon the dead body of the deceased, has been examined as PW12 at Exhibit36. He describes the external injuries on the body. The deceased suffered three external injuries on her head. He states that due to these three head injuries, the scull of the deceased had cracked and brain matter could be seen. He categorically states that no fracture injuries were found on the body of the deceased. This witness Page 24 of 53 HC-NIC Page 24 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT describes the three internal injuries found on the body of the deceased which correspond to the external injuries. He has proved the Postmortem Report at Exhibit38, prepared by him. His deposition corresponds with the injuries described in the Postmortem Report. The cause of death, as stated in the Postmortem Report, is Cardiorespiratory failure due to traumatic Haemorrhagic shock caused by a fatal injury to the skull and brain. This witness has stated in the crossexamination that in the case of the deceased her stomach was found to be empty.
23. PW13, Surendrabhai Lakshmanbhai, is a Head Constable. His deposition is at Exhibit40. He has stated that at the time of handing over the body of the deceased for postmortem, the clothes worn by her were taken into custody and sealed by him and sent to the Forensic Science Laboratory for examination.
24. PW14, Jaypalsinh Pravinsinh Jadeja, is the Investigating Officer, who has been examined at Exhibit44. This witness states the details of the steps taken by him during the course of investigation, such as taking statements of witnesses etc. He further Page 25 of 53 HC-NIC Page 25 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT states that he was present when the Panchnama of the Scene of Offence was drawn up and the bloodsoakedmud and the control sample of mud were taken from the spot and sealed in different boxes. On getting the news regarding the accused, he went to Obha village along with other Panch witnesses where the accused was sleeping in the school building. He took a torch and search light and woke up the accused and asked him his name. The accused was wearing a black colour Tshirt and jeans, which had bloodstains on the back. He states that the clothes worn by the accused were taken into custody and the accused was given other clothes to wear. This witness further states that thereafter, they returned to Hansot. The weapon of offence, namely, the axe was recovered at the behest of the accused from the bushes. The axe was bloodstained and there was a bunch of hair on it. A Recovery Panchnama was drawn up in the presence of the Panch witnesses. Thereafter, the accused was taken into custody. This witness has denied the suggestion that the axe was lying at a place where it could be seen by all or that he was deposing falsely regarding the recovery of the axe. He denies that the axe was found near the body of Page 26 of 53 HC-NIC Page 26 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT the deceased.
25. The above, in a nutshell, is the oral evidence that has come on record. The documentary evidence, such as the Postmortem Report, corroborates the injuries received by the deceased as stated by the Doctor in his deposition. The Serology Report of the Forensic Science Laboratory indicates that there was a presence of human blood of GroupA in the blood soakedmud sample and the axe, the pant of the accused and the nighty worn by the deceased, as also on the bunch of hair stuck to the axe. A cotton swab blood from the body of the deceased was taken at the time of postmortem which, when examined serologically, showed the presence of human blood of the AGroup. On the basis of the above oral and documentary evidence, the Sessions Court arrived at the conclusion that the charge against the accused was proved beyond reasonable doubt.
26. In the background of the above evidence, Ms.Kiran Pandey, learned counsel for the appellant has submitted that the prosecution witnesses who have allegedly witnessed the incident and are stated to be Page 27 of 53 HC-NIC Page 27 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT eyewitnesses, all live in the same area. No independent witnesses have been examined. All these witnesses support the family of the deceased and the version of the prosecution. If the accused wanted to murder his wife there was no reason why he would wait for such a long time. The appellant could have done so when a daughter was born to the deceased while the appellant was in Ahmedabad.
26.1 It is submitted that the Trial Court has not properly appreciated the case put forward by the defence, regarding the grave provocation at the behest of the deceased to the accused, which led him to commit the offence. The Trial Court ought to have given the benefit of doubt to the accused insofar as the charge under Section302 of the IPC is concerned, holding that the case falls under Exception1 of Section300. 26.2 That certain witnesses have deposed that the appellant hit the deceased with an axe, threw it and ran away. The Police witness says that he had to search for the axe. The axe was ultimately stated to have been recovered from the place where the incident took place.
There is a contradiction in the depositions of the Page 28 of 53 HC-NIC Page 28 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT witnesses insofar as the axe is concerned. 26.3 That PW8, Manishaben, has stated that the appellant was running behind the deceased. However, it is not clear why the deceased was running behind her and this aspect has not been dealt with by the Trial Court at all. This is a fit case where the appellant ought to be extended the benefit of Exception1 to Section300 of the IPC and the offence ought to have been converted to culpable homicide not amounting to murder, as the appellant committed the act under grave provocation at the words of the deceased who stated that he is incapable of doing anything and she has to go to another man. The appellant lost his selfcontrol under this provocation and the incident took place in the heat of the moment as the appellant had seen the deceased in a compromising position. This aspect has not been examined in proper perspective by the Trial Court.
26.4 That the angle that the deceased did not come home for lunch with the other witnesses but stayed back in the field also indicates that she wanted to meet Ramesh. This aspect is corroborated by the Page 29 of 53 HC-NIC Page 29 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT evidence of PW12, the doctor, who performed the postmortem of the body of the deceased, who stated that the stomach of the deceased was empty. Had the deceased come home for lunch, there would have been food in her stomach.
26.5 That it has come in evidence that the deceased was wearing a nighty at the time of her death. Normally, a married woman would wear a Saree and the fact that she was wearing a nighty further indicates that she was going to meet Ramesh.
26.6 That it has come in the evidence of the witnesses that the owner of the field would normally give implements such as an axe to the labourers, therefore, this axe was not brought by the accused with him but was given to him by the owner of the field.
26.7 It is submitted that in view of the above, this Court may consider extending the benefit of Exception 1 of Section300 to the appellant and the offence may be converted to one under Section304 (PartI) IPC.
27. Per contra, Mr.J.K.Shah, learned Additional Page 30 of 53 HC-NIC Page 30 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT Public Prosecutor has submitted that there are five eyewitnesses who have seen the incident and have consistently deposed that the accused came upto the deceased at her place of work and inflicted axe blows on her head. They have all deposed that there was no altercation between the accused and the deceased and that the deceased never used crude or derogatory language to the accused so as to give credence to the theory of sudden and grave provocation that is being set up by the defence. The evidence of all these eye witnesses is consistent and cogent, therefore, the theory of grave and sudden provocation given by the deceased to the accused cannot be believed. 27.1 It is further submitted that the onus to prove sudden provocation is on the defence, which has not been discharged. This defence has emerged only in the Written Statement of the accused, but no witnesses have been examined in support of this angle. None of the prosecution witness have deposed regarding the presence of Ramesh, with whom the deceased allegedly had illicit relations and none saw him running away from the scene, as stated by the accused in his further statement.
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27.2 Learned Additional Public Prosecutor has further submitted that the evidence of PW12, Dr.Dakshesh Chimanlal Chauhan, reveals that there were three external injuries on the head of the deceased corresponding to three internal injuries. The present, therefore, is not a case of a single blow being inflicted upon the deceased due to grave or sudden provocation but a premeditated murder. That the entirety of the evidence on record does not point to any grave or sudden provocation and the defence has remained unsuccessful in proving the same before the Trail Court. The conviction of the accused under Section302 of the IPC is just and proper and there is no legitimate ground to convert it to Section304 (PartI) of the IPC.
27.3 In support of his submissions, learned Additional Public Prosecutor has relied upon certain judgments that the Court would deal with at the relevant stage.
28. After appreciating the evidence on record, the Trial Court arrived at the conclusion that the prosecution had proved its case beyond reasonable Page 32 of 53 HC-NIC Page 32 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT doubt. The case set up by the defence that the accused gave an axe blow to the deceased as a result of grave and sudden provocation was disbelieved by the Trial Court, interalia, on the ground that it does not get support from the testimonies of any of the eye witnesses, even in crossexamination. All the eye witnesses have denied the case put up by the appellant to the effect that there was an altercation between him and the deceased and the deceased used vulgar language and said that "You are not a man and you are unable to do anything, therefore, I have to go to another man and I will continue to have intercourse with him and you can do nothing about it."
29. Before this Court, learned counsel for the appellant has laid emphasis on aspect of grave and sudden provocation by the deceased leading to the incident taking place. It is, however, not denied that the incident took place. It is sought to be argued that the accused was incensed by the crude language allegedly used by the deceased and lost his self control, leading to the commission of the offence.
30. It has been submitted on behalf of the appellant Page 33 of 53 HC-NIC Page 33 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT that all the eyewitnesses live in the same area as the deceased, which makes them interested witnesses and renders their depositions unreliable. It has also been urged that no independent witnesses have been examined. We are unable to accept this argument as the eyewitnesses who have seen the offence taking place were working as agricultural labourers in the same field where the deceased was working. They may be living in the same street or area as the deceased. However, this fact, in itself, does not mean that they are untrustworthy or unreliable witnesses or that their testimonies cannot be believed on this ground alone. They are natural witnesses who happened to be working with the deceased on the fateful day. Just because they reside in the same locality cannot be a reason to discredit them or disregard their versions, which are otherwise consistent and corroborate each other on all material aspects. PWs5 to 9, who have witnessed the incident, have deposed that the appellant approached the deceased while she was working in the field and started saying something to her. He aimed the axe, which was in his hand, at her. On seeing this, the deceased ran and the accused ran Page 34 of 53 HC-NIC Page 34 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT after her. The accused caught hold of her and made her fall to the ground after which he inflicted axe blows on the head of the deceased. This version emerges with great clarity and consistency in the depositions of all the eyewitnesses. There may be slight variations in the description of the incident in the testimonies of certain witnesses, especially whether the appellant threw the axe on the spot after giving blows to the deceased or whether he threw it in the sugarcane field. This discrepancy, however, is not so material so as to go to the root of the testimonies of these witnesses, who have all categorically stated that the accused hit the deceased on the head with the axe and they have witnessed the incident. Besides, the axe was recovered at the behest of the accused.
31. All the above prosecution witnesses have categorically denied, even in crossexamination, that there was a scuffle between the deceased and the accused or that the deceased had pushed the accused so that he fell down on the ground and the handle of the axe came into his hand. They have further denied that the deceased had said to the accused that "You are not a man and you are unable to do anything, Page 35 of 53 HC-NIC Page 35 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT therefore, I have to go to another man and I will continue to have intercourse with him and you can do nothing about it."
32. The evidence on record, as discussed above, does not support the defence theory of the act being committed as a result of grave and sudden provocation, as sought to be urged on behalf of the appellant. Had there been any truth in the version of the defence, as stated in the written statement of the appellant, it would have got some corroboration from at least one witness who was present at the spot. There is no reason to believe that all the eyewitnesses have deposed falsely. They have no reason to do so and it is not the case of the defence that all, or any, of them are enmically disposed towards the appellant.
33. Only one prosecution witness, PW8, Manishaben who is also an eyewitness, is related to the deceased, being her sister. The evidence given by Manishaben is corroborated in all material aspects by the evidence of PWs4, 5, 6 and 7, who are not related to either PW8 or the deceased. PW8 has stated that at about 12.00 noon, she and the deceased had gone Page 36 of 53 HC-NIC Page 36 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT home for lunch. In the defence put up by the accused, it is stated that when the accused reached home at lunch time, he asked his motherinlaw (mother of the deceased) whether the deceased had come home for lunch and his motherinlaw had said that PW8 had come alone for lunch and told her that the deceased was not hungry so she had not come home. It is further the case of the defence that after lunch the accused was told by a friend that he had seen Ramesh Vasava coming towards the village. Suspecting that Ramesh Vasava was going to meet the deceased, the accused went to the sugarcane field, where he saw the deceased and Ramesh Vasava in a compromising position. On seeing him, Ramesh Vasava went away and the deceased ran towards the field of PW10 where other labourers were working. It is then that the deceased had said that "You are not a man and you are unable to do anything, therefore, I have to go to another man and I will continue to have intercourse with him and you can do nothing about it." This enraged and provoked the accused. The deceased then pushed the accused hard, causing him to fall down near the "Samadi" tree where the handle of the axe which was lying there, Page 37 of 53 HC-NIC Page 37 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT came into his hand. In his anger and provocation and without thinking of the consequence, the accused gave axe blows on the head of the deceased, without any intention of killing her.
34. It has come in the crossexamination of PW10, Rajendrabhai Jentilal, the owner of the field who had engaged the deceased and other witnesses as labourers to work on his field on that day that he had not engaged any male labourer on that day. The implements to work in the field are usually provided by the owner of the field. There are different implements for weeding and different implements for cutting trees and branches. An axe is used to cut trees and branches. The work of weeding is usually done by women labourers and the work of cutting trees and branches is given to male labourers. It has come in the evidence of other witnesses as well that on the day of the incident the accused was not working in the field of PW10. That being so, the story that the axe was given to the accused by PW10 is false. PW10 has also denied that the appellant was engaged as a labourer by him on the day of the incident. The appellant had brought the axe Page 38 of 53 HC-NIC Page 38 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT with him as stated by the eyewitnesses. The story that the deceased pushed him to the ground and the handle of the axe, which was already lying there, came into his hand is not believable and finds no corroboration from any quarter.
35. The case put up by the defence does not gather any support from the evidence on record. As has been noticed above, none of the eyewitnesses to the incident have referred to any grave and sudden provocation given by the deceased to the accused. On the contrary, they have categorically denied it. Their versions have stood the test of severe cross examination. The mother of the deceased has not been examined by the defence in order to bring out whether the deceased came home for lunch, or not. Neither has the friend of the accused, who purportedly told him that Ramesh Vasava was seen coming towards the village, been examined as a defence witness. PWs5 to 8 have categorically denied that the deceased had any illicit relations with a person called Ramesh Vasava. In addition, the presence of Ramesh Vasava, in or around the spot, or even in the adjoining sugarcane field where the accused purportedly saw him with the Page 39 of 53 HC-NIC Page 39 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT deceased, has not been established at all. None has deposed about his leaving the sugarcane field when the accused allegedly caught him with the deceased in a compromising position. There were so many labourers working in the field and if the defence version had any truth to it, at least one witness would have supported it.
36. In the case of Arun Raj Vs. Union of India and others, reported in (2010) 6 SCC 457 and relied upon by the learned Additional Public Prosecutor, the Supreme Court has dealt with the law regarding grave and sudden provocation and Exception1 to Section300 of the IPC, in the following manner :
"15. At this state itself, it is relevant to notice Section 300 IPC:
"Section300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly If it is done with the intention of Page 40 of 53 HC-NIC Page 40 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1When culpable homicide is not murder Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos FirstThat the provocations not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
SecondlyThat the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. ThirdlyThat the provocations not given by Page 41 of 53 HC-NIC Page 41 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT anything done in the lawful exercise of the right of private defence.
ExplanationWhether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact."
16. The aforesaid Section provides five exceptions wherein the culpable homicide would not amount to murder. Under Exception 1, an injury resulting into death of the person would not be considered as murder when the offender has lost his selfcontrol due to the grave and sudden provocation. It is also important to mention at this stage that the provision itself makes it clear by the Explanation provided, that what would constitute grave and sudden provocation, which would be enough to prevent the offence from amounting to murder, is a question of fact. Provocation is an external stimulus which can result into to loss of self control. Such provocation and the resulting reaction need to be measured from the surrounding circumstances. Here the provocation must be such as will upset not merely a hasty, hot tempered and hypersensitive person but also a person with clam nature and ordinary sense. What is sought by the law by creating the exception Page 42 of 53 HC-NIC Page 42 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT is that to take into consideration situations wherein a person with normal behavior reacting to the given incidence of provocation. Thus, the protection extended by the exception is to the normal person acting normally in the given situation."
37. Applying the aforesaid principles of law to the facts and evidence in the present case, we find that the appellant has failed to establish the aspect of grave and sudden provocation. After noticing several judgments of Foreign Courts and its own judgments, on this aspect, the Supreme Court has further held as below :
"29. It is clear from the above line of cases, that it is necessary to prove first that there was an intention of causing bodily injury; and that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. From the evidence on record, it is very clear that the appellant intended to cause death. In light of this finding, the evidence on record makes it clear that Section 304 Part II of the IPC will not be attracted. Further PW1, in his crossexamination asserts that the deceased held his hand out after he was stabbed in the chest. It is very likely that Page 43 of 53 HC-NIC Page 43 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT this action on the part of the deceased prevented the appellant from stabbing him multiple number of times. The argument might deserve some merit in case there is a sudden altercation which ensues in the heat of the moment and there is no deliberate planning."
38. From the evidence on record in the present case it emerges that there was clearly an intention on the part of the accused to give a bodily injury to the deceased. The injuries inflicted on the deceased were sufficient in the ordinary course of nature to cause death. There were three grave external and three corresponding internal injuries which any reasonable person would understand as being fatal.
39. In Sukhlal Sarkar Vs. Union of India and others, reported in (2012) 5 SCC 703, the Supreme Court has described the expression "grave and sudden provocation" as below :
"10. The meaning of the expressions "grave" and "sudden" provocation has come up for consideration before this Court in several cases and it is unnecessary to refer to the judgments in those cases. The expression "grave" indicate that provocation be of such Page 44 of 53 HC-NIC Page 44 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT a nature so as to give cause for alarm to the appellant. "Sudden" means an action which must be quick and unexpected so far as to provoke the appellant. The question whether provocation was grave and sudden is a question of fact and not one of law. Each case is to be considered according to its own facts.
11. Under Exception 1 of Section 300, provocation must be grave and sudden and must have by gravity and suddenness deprived the appellant of the power of selfcontrol, and not merely to set up provocation as a defence. It is not enough to show that the appellant was provoked into loosing his control, must be shown that the provocation was such as would in the circumstances have caused the reasonable man to loose his self control. A person could claim the benefit of provocation has to show that the provocation was grave and sudden that he was deprived of power of selfcontrol and that he caused the death of a person while he was still in that state of mind."
40. As stated earlier, the evidence reveals that the defence has failed to prove its theory of any provocation, leave alone grave and sudden provocation.
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41. In Raj Kumar Vs. State of Punjab, reported in (2015) 16 SCC 337, while discussing Exception1 to Section300 and whether the offence would amount to murder or culpable homicide not amounting to murder, the Supreme Court has held as below :
"8. In this appeal by special leave, challenging the correctness of the decision of the High Court, we have heard the learned counsel for both the parties. It was submitted on behalf of the appellant that though no positive evidence was led by the appellant in support of his plea of sudden and grave provocation, the material on record itself indicated that there were abuses hurled at him as a result of which he was provoked to fire upon the deceased. He thus submitted that the view taken by the trial court was a correct view which ought not to have been set aside by the High Court.
9. We have considered the rival submissions. It is worthwhile to note that in his statement under Section 313 of the Code of Criminal Procedure, the accused has come out with complete denial including the denial of his presence at the place of occurrence itself. He has chosen not to lead any positive evidence from his side. It is true that the plea of sudden and grave provocation can Page 46 of 53 HC-NIC Page 46 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT still be proved by him provided there is material on record. In that view of the matter, if we analyze the material, both the eye witnesses, namely, PW2 Anil Chhabar and PW3 Gurbachan Singh are quite cogent and consistent that there was an altercation and that soon thereafter the appellant took out his licensed weapon and fired upon the deceased. Even if we were to accept that any abuses were hurled by the deceased, questions such as who was responsible for such verbal altercation, who had initiated such verbal altercation, what was the extent of such abuse, whether such abuses would, in normal circumstances, have provoked a reasonable minded person still remain unanswered. These are issues which ought to have been proved by way of positive evidence or inferences clearly discernible from the record. We do not find any material even suggesting such inferences. In our view, the High Court was complete right and justified in negating the plea of "sudden and grave provocation". We, therefore, affirm the view taken by the High Court and dismiss the present appeal."
42. The above judgment squarely applies to the facts of the present case as the appellant has not chosen to lead any positive evidence in support of his plea of Page 47 of 53 HC-NIC Page 47 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT sudden and grave provocation at the behest of the deceased, as a result of which he inflicted axe blows on the head of the deceased.
43. From the evidence on record, especially the evidence of PW12, Dr.Dakshesh Chimanlal Chauhan which is corroborated by the Postmortem Report, there were three external injuries on the head of the deceased as below :
"(1) 11x4 cm. brain deep oblique clean incised wound M Lt.Parital region of scalp extending from the @ above Lt.Ear upto the lower part of occipital region.
(2) Massive 16 1/2 x 9 1/2 cm brain deep horizontal clean incised wound extending from the Lt.Parital region of scalp upto the midoccipital region.
(3) 7 1/2 x 5 cm brain deep vertical clean incised wound extending from the Rt.upper part of Occipital region of scalp upto the lower part of occipital reion. (This injury has crossed injury No.(2) from the Rt. Side). The whole of Lacerated and reptured brain material seen outside the above (1), (2), and (3) injuries."
44. There are also three internal injuries Page 48 of 53 HC-NIC Page 48 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT corresponding to the external injuries, which are described as under :
"(1) 8 1/2 x 3 1/2 cm cut injury of Lt.parital bone beneath injury No.1 of column No.17. (2) 12 x 4 cm cut injury of Lt. Parital bone beneath injury No.2 of column No.17. (3) 6 x 4 1/2 cm cut injury over upper part of occipital bone beneath injury No.3 of column No.17.
Massive laceration and rupture of brain matter on the Lt.parital region and occipital region. Lacerated part of brain material on posterior and lateral side seen lying out side of the skull."
45. All these injuries were antemortem. On being shown the axe, the weapon of offence, PW12 has stated that the injuries sustained by the deceased could have been inflicted by the said weapon.
46. The nature of injuries and the force with which the said injuries have been inflicted by the appellant on the head of the deceased, leaves no manner of doubt regarding the intention of the appellant to cause the death of the deceased or the knowledge that such injuries on a delicate part of the body could prove Page 49 of 53 HC-NIC Page 49 of 53 Created On Thu Jul 06 23:57:05 IST 2017 R/CR.A/74/2012 JUDGMENT fatal.
47. The accused gave three axe blows to the deceased on her head, which is the most sensitive part of the body. The blows were given with such force that the scull of the deceased had cracked open and brain material had come out. It cannot be believed that such forceful blows could have been given if the accused had no intention of killing the deceased.
48. The socalled contradiction in the depositions of witnesses insofar as the axe is concerned are not material, as the axe was recovered at the behest of the accused, who has led the Police to the sugarcane field where he had thrown it. The Panchnama in this regard has been proved by the Panch witnesses. The axe had a bunch of hair stuck to it which was found to belong to the deceased. As per the samples of blood soakedmud, the pant worn by the accused, the axe, and the nighty worn by the deceased, her blouse and the hair on the axe, were all stained with human blood of the Agroup, which is the blood group of the deceased, as verified from the cotton swab taken from the body of the deceased at the time of postmortem.
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49. The aspect that the deceased was wearing a nighty at the time of death cannot give rise to any presumption that she had donned such attire as she intended to have an illicit rendezvous, as suggested by learned counsel for the appellant. It has been submitted that normally a married woman would wear a Saree and the fact that the deceased was wearing a nighty raises a suspicion and lends support to the defence theory. The Court is unable to accept this submission merely because the deceased was wearing a nighty at the time of the incident cannot lead to a presumption that she intended to meet Ramesh Vasava.
50. The aspect that the stomach of the deceased was empty cannot led to a presumption that she did not come home for lunch only for the reason that she wanted to meet Ramesh Vasava. PW8 has categorically stated that the deceased came home for lunch along with her. The mother of the deceased, who has allegedly told the accused that the deceased did not come home for lunch has not been examined by the defence.
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51. Taking into consideration the totality of the evidence on record, this Court is firmly of the view that the case attempted to be set up by the appellant does not fall under Exception1 of Section300 of the Indian Penal Code and the conviction of the appellant under Section302 is just and proper. There is no material on record to convert the said offence into one under Section304 (PartI) of the Indian Penal Code.
52. The Trial Court has properly appreciated the evidence on record and has, in our view, rightly disbelieved the case set up by the defence as there is no material to support it. The defence has failed to produce sufficient material on record to bring the case under Exception1 of Section300 of the Indian Penal Code. There is no justifiable reason, therefore, to interfere with the conviction of the appellant under Section302 of the Indian Penal Code.
53. In view of the above, we find no merit in the appeal. The appeal is, therefore, dismissed.
(SMT. ABHILASHA KUMARI, J.)
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(A.J. SHASTRI, J.)
Gaurav+
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