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Hon’ble Mr. Justice A.L. Dave &
Hon’ble Mr. Justice N.V. Anjaria
Pravinbhai Damanbhai Tadvi
Versus
State of Gujarat
Criminal Appeal No. 1035 of 2006—Decided on 27/03/2012
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Section 302 — Bombay Police Act, 1951 (Bom. Act No. 22 of 1951) — Sections 27 and 135 — Murder — Conviction — Appreciation of evidence — Finding of — Sustainability — It is the case of the prosecution that keeping the grudge of separation of Sonalben Sister of Kalpeshbhai Bhaulabhai Tadvi with him accused appellant went to the house of first informant brother of Sonalben with knife and inflicted several injuries to deceased Dilipbhai Ambubhai who was sleeping with informant and committed his murder — The eye witnesses examined by prosecution admits to have not seen the action of actual inflicting of injuries by and to deceased but held seen appellant escaping from the place of the incident after giving knife blows to deceased accused was thereafter soon arrested with bloodstains on clothes and police recovered the knife from him which carried the blood of deceased and for which accused appellant has tendered no explanation — Contention raised that accused appellant at best can have the motive to murder the first informant but not the deceased — However Court held that if a man attacks a sleeping man with a knife and causes multiple injuries on vital part of the body there can not be any other intention but to cause death of such person — Even if the intention was to commit murder of first informant and some body else is murdered the case would be governed by Section 301 of the Code which would make no difference — Court hence found no merit in the appeal.
Held :
Additionally, the accused has discovered a knife, which carried blood marks of the group of the deceased. This discovery is proved through witness Samir Ruknuddin Shaikh (P.W.12 - Exh.26). It, therefore, stands established that the knife was concealed by the accused-appellant, which is discovered by him, and it is found by Forensic Science Laboratory to be carrying blood marks of the group of the deceased. [Para 9]
The essence of going through this discussion is that the appellant was seen escaping from the place of the incident after giving knife blows to the deceased. He was then arrested with bloodstains on clothes, and police recovered a knife from him, which carries the blood of the deceased, and for which he tenders no explanation. In our view, therefore, the prosecution has been able to establish guilt of the accused.
[Para 10]
It is not in dispute that the death of the deceased was homicide, and he died of multiple injuries on his chest. It was one of the contentions that as per the prosecution case, the appellant at the best had a motive to cause death of the first informant, and not that of the deceased Dilipbhai Ambubhai Tadvi. However, if a man attacks a sleeping person with a knife and causes multiple injuries on vital part of the body, there cannot be any other intention, but to cause death of such a person. If such intention was to cause death of the first informant, and somebody else has fallen victim, the case would be governed by Section 301 of the Indian Penal Code, which provides that it will be the same offence as if the injury was caused to the person sought to be attacked. In such fact situation, Court does not find any merit in the appeal.
[Para 11]
Law Laid Down :
If intention was to cause death of first informant and some body else have fallen victim it would be the same offence as if the injury was to the person sought to be attacked.
A.L. Dave, J.—The appellant was the accused before Sessions Court, Vadodara, and was tried for offence of murder. He came to be convicted by judgement and order dated 16.05.2006 for the offence of murder punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life with a fine of Rupees One Thousand, in default, imprisonment for fifteen days. He was also convicted for offence punishable under Section 135 of the Bombay Police Act, 1951, and was sentenced to simple imprisonment for two months. Both the sentences were ordered to run concurrently. It is this judgement in Sessions Case No. 286 of 2005 dated 16.05.2006 by Sessions Court, Vadodara, which is under challenge.
2. The prosecution case in brief is that the appellant had eloped with Sonalben, sister of Kalpeshbhai Bhailalbhai Tadvi, the first informant, about two months prior to 19.07.2005. However, the appellant and Sonalben were separated by intervention of the community people as per their customs. It is the case of the prosecution that keeping a grudge on this count, the appellant went to the house of the first informant- Kalpeshbhai Bhailalbhai Tadvi in the night of 18.07.2005, where several persons were sleeping outside the houses, including the first informant, and one Dilipbhai Ambubhai Tadvi. The first informant and Dilipbhai Ambubhai Tadvi were sleeping on otla of a house. When the appellant went there with a knife and inflicted four blows on abdominal portion of the deceased, it resulted in his death. A First Information Report was lodged with Sankheda Police Station by Kalpeshbhai Bhailalbhai Tadvi, and the offence was registered and investigated. After investigation, the police having found sufficient material, filed charge sheet in the court of Judicial Magistrate First Class, Sankheda, which in turn committed the case to the court of Sessions at Vadodara, and Sessions Case No. 286 of 2005 came to be registered. Charge was framed against the accused at Exh.4 to which he pleaded not guilty and came to be tried. The trial court found that the prosecution was able to prove the case by adducing proper evidence and recorded conviction, as stated hereinabove, and hence this appeal.
3. We have heard learned advocate Mr. Harnish vs. Darji for the appellant and learned A.P.P. Mr. R.C. Kodekar for the respondent-State.
4. Mr. Darji submitted that the incident has occurred in the wee hours in a village where everybody was sleeping. As per the prosecution case itself, the attack was committed when everybody was asleep and the witnesses, who woke up after hearing cry of the deceased, all that they admit to have noticed is the assailant escaping. They have, therefore, seen only the back of the appellant, and possibility of a mistaken identity cannot be ruled out. Mr. Darji submitted further that the accused had taken a plea of alibi that he was at his aunt’s place and not in the town, and therefore, the trial court committed an error in not appreciating the defence plea. Mr. Darji submitted further that the motive, which is sought to be established against the appellant, is that he had grievance against the first informant being instrumental in breaking the appellant’s relationship with Sonalben, but, in fact, that is a stale cause. Much time had lapsed in between, and nothing had happened, therefore, the motive which is sought to be attributed is also not correct, and therefore, this appeal may be allowed.
5. Learned A.P.P., Mr. R.C. Kodekar, on the other hand submitted that there are four witnesses who have seen the appellant running away after committing the assault. The appellant has given multiple blows with a knife in the abdomen with a force, which has resulted into the death of the deceased. The assault was committed on a sleeping person in the early morning hours when the appellant had no reason to be there ordinarily. So, the appellant went to the place with an intention to cause death. This aspect is established by
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