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2013 Supreme(Guj) 270
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
AKIL KURESHI & R.P. DHOLARIA, JJ.
MOHANBHAI GORJIBHAI PARGI - Appellant(s)
Versus
STATE OF GUJARAT - Opponent(s)/Respondent(s)
CRIMINAL APPEAL NO. 1152 of 2008
Decided on : 11/07/2013
MR. P.M. LAKHANI, ADVOCATE for the Appellant(s) No. 1
MRS. R.P. LAKHANI, ADVOCATE for the Appellant(s) No. 1
MS. PUNANI, APP for the Opponent(s)/Respondent(s) No. 1
Headnote:
Evidence Act - Section 27 - Criminal Procedure - Appeal is filed by original accused who has been convicted by learned Additional Sessions Judge - Accused was looking after the field of one Mohanbhai Nanjibhai and staying there in a small hut. Adjacent to this field there was an agricultural land of Kalubhai Parshottumbhai where in a small hut Natubhai Rambhai lived, accused suspected that deceased was having illicit relation with his wife, in the evening, the accused hit deceased with an axe on head causing fatal injuries. This incident was reported to Kalubhai Parshottumbhai at his residence. He, thereupon, along with Mohanbhai Nanjibhai and others went to the site in a tractor. They saw Natubhai lying bleeding. He was dead. They saw accused at some distance with an axe. He was instructed to drop the axe which he did. He was thereupon caught and later on handed over to police. Kalubhai Parshottumbhai lodged FIR in early hours -Held, Matter can be considered by appellate Court and such consideration would involve and justify referring to the police statement to ascertain whether the provisions of section 145 of the Evidence Act read with section 162(2) and the Explanation to section 162 of the Cr.P.C. Have been duly observed by the trial Court, and whether the omission really is there or not. Albeit, the exercise of power by the appellate Court is circumscribed by the provision of section 162 about the purpose for which any part of a police statement can be used at the trial. However, within the above permissible limits, the appellate court is empowered to verify the material which forms part of the evidence by virtue of the attention of the witness being drawn to that material in his cross-examination under section 145 of the Evidence Act to contradict him and the proof of such contradiction or omission as adduced at the trial. One has necessarily to read that portion of the statement which is used for contradiction and which is said to be duly proved in order to decide whether it really was duly proved. It would, therefore, be too naive to suggest that the appellate Court cannot even refer to or read that part of the police statement which has already been used for the purpose of contradicting the witness, for deciding whether any error is committed in drawing the attention of the witness to that part in his cross-examination as required by section 145 of the Evidence Act read with section 162 (1) of the Code and whether such part was duly proved in the deposition of the investigating officer, if disputed by the witness - Appeal is allowed.
PER MR. AKIL KURESHI, J.:
1. This appeal is filed by the original accused who has been convicted by the learned Additional Sessions Judge, Amreli by judgment dated 16.02.2008 rendered in Sessions Case No.102 of 2006 for offences punishable under Sections 302 and 323 of the Indian Penal Code. He has been sentenced to imprisonment for life.
2. Briefly stated the prosecution version is as follows:
2.1. Mohan Gorji – the accused was looking after the field of one Mohanbhai Nanjibhai and staying there in a small hut. Adjacent to this field there was an agricultural land of Kalubhai Parshottumbhai where in a small hut Natubhai Rambhai lived. The accused Mohan Gorji suspected that the deceased was having illicit relation with his wife. On 18.09.2006, at about 7:00 O'clock in the evening, the accused hit deceased Natubhai with an axe on the head causing fatal injuries. This incident was reported to Kalubhai Parshottumbhai at his residence. He, thereupon, along with Mohanbhai Nanjibhai and others went to the site in a tractor. They saw Natubhai lying bleeding. He was dead. They saw accused Mohan Gorji at some distance with an axe. He was instructed to drop the axe which he did. He was thereupon caught and later on handed over to the police. Kalubhai Parshottumbhai lodged FIR in the early hours on 19.09.2006.
3. Investigation was carried out, statements of witnesses were recorded. Several articles were seized. Charge-sheet was presented before the Magistrate who, in turn, committed the case for sessions trial. The learned Additional Sessions Judge framed charge at Exh.11. It was alleged that the accused had caused death of Natubhai Rambhai by giving an axe blow. He had also caused simple injuries to his wife, brother-in-law, witnesses Shankarbhai Dhulabhai and Vinodbhai Luvji with the axe.
4. Doctor Krishna Haryani – P.W. 1 – Exh.13 had carried out the postmortem of the body of the deceased. She had noted following injuries:
“1.Incised wound on Rt. Occipital – temporal region behind to Rt.Ear
-Triangular M shape
-vertical in size
-well define edge/and deep to #bone
CLW 4 inch / and parallel to 2 in No. size 2X2 inch/size 4 inch
with small bone pasticle
2. incised wound on Rt. Occipital Region (3) in No.
a. parallel to each other also 2 inch size
b. 2 inch size
c. 1 inch size
-vertical
-tissue tear
-sharp edges”
4.1. In her opinion, the cause of death was “cardio respiratory failure due to shock due to
intra cranial hemorrhage”
4.2. This Doctor also had treated the witnesses Vinod Luvji and Shankarbhai Dhudabhai. She had, in her case papers recorded the history of “injuries by the handle of the axe on/e
pain/tenderness on Rt. shoulder joint.”
5. Kalubhai Parshottumbhai – first informant – P.W.2 was examined at Exh.20. Before the Court he stated that on the date of the incident, at about 7:00 O'clock, the labours working on his field had come to his house and informed him that there had been a quarrel on the field between Natubhai and Mohan Gorji and Mohan Gorji had hit Natubhai with an axe. The witness, therefore, along with Mohanbhai and Rasikbhai proceeded to the field. On the way they met Shankarbhai and Vinubhai who told them that Mohan had hit them with the blunt part of the axe on the shoulder. They were also taken in the tractor. While walking over to the field after parking the tractor, they saw Natubhai lying dead on the edge of the field. He was bleeding from the nose. When they reached the field of Rasikbhai, about 100 feet away in the field of Mohanbhai, accused Mohan Gorji was standing with an axe in his hand. One of the persons, Goganbhai told the accused to put down the axe and come over to them. The accused Mohan Gorji, thereupon, dropped the axe and came over there. He was then tied to a tree and the police was informed about the incident. He was shown the muddamal article 10, the axe. He stated that it was the same axe which the accused Mohan Gorji was carrying.
5.1. In his cross-examination he agreed that he had seen the axe p
