Gujarat High Court
Mahendrasinh Prithvisinh Vaghela vs State Of Gujarat on 5 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1044 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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MAHENDRASINH PRITHVISINH VAGHELA
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant
MR. RADHESH Y VYAS(7060) for the Appellant
MR JAY MEHTA APP for the Respondent
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 05/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This conviction appeal is filed by the appellant - sole
accused - Mahendrasinh Vaghela, against the
judgment of conviction and order of sentence dated
25.02.2014, passed by the learned Additional Sessions
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Judge, Banaskantha-Palanpur in Sessions Case no. 7 of
2013, wherein, the appellant came to be tried for
offence punishable under Section 302 of the Indian
Penal Code, 1860 ('IPC', for short).
2. The case of the prosecution leading to conviction of
the appellant - accused is as follows:-
2.1 The appellant accused Mahendrasinh Vaghela and
deceased Vijaysinh were real brothers and residing in
the same village namely Bhanpur, Tal.: Hadad, Dist.:
Banaskantha. The deceased Vijaysinh was residing
with his family along with his parents independently.
Both the brothers doing farming works in their
respective fields. The relations of both of them were
not cordial. It is in these background facts, on
15.11.2012 at about 6-00 PM, the appellant accused
elder brother of the deceased, killed the deceased
Vijaysinh, inflicting several blows of axe on his head
of the deceased. According to prosecution case, the
farm labourer PW-5 - Dharmabhai Shaklabhai was
the sole eye-witness of the incident and at the time
of incident, he was doing farming work on the field of
one Joravarsinh. The witness PW-5 saw the incident
at the distance of 15 to 20 meter and despite of his
request made to the accused not to kill the
deceased, the accused did not hid the request and
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brutally killed his brother.
2.2 The sole eye-witness Dharmabhai Shaklabhai
immediately rushed to the village, where near the
village dairy, he informed PW-11 about the incident
of killing. The father of the deceased PW-3,
Pruthvirajsinh Vaghela at the time of incident was on
the way to attend dead ceremony of the person, who
died. The accused when he left the place of incident,
met the PW-3 and on asking by his father PW-3 about
why he was here, the accused, replied that, due to
personal work he is going to house. The PW-3 father
was informed by the village people that his son was
killed by the appellant accused and deceased was
lying in the pool of blood near the farm of
Joravarsinh. The father and others went to the place
of incident where the deceased was lying in a pool of
blood and having suffered multiple head injuries and
he was found unconscious. The appellant accused
came at the place and confessed about the act of
killing before the witnesses and father PW-3. The
motive behind the murder was that before two year
of prior to the incident, the deceased assaulted the
appellant accused and keeping grudge of the said
incident, the accused killed his brother mercilessly.
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2.3 PW-3 and others took the deceased nearby hospital,
where he declared 'brought dead'. The PW-3 father
lodged an FIR with the Hadad Police Station and
disclosed the aforementioned facts in his FIR (Exh.
17). The Investigating Officer PW-10, sent the dead
body of the deceased for postmortem. He took the
visit of the place of incident and in the presence of
independent witnesses drew the panchnama of the
incident and collected the blood samples for FSL
purpose. The I.O. recorded the statement of the
witnesses, including the statement of PW-5 - eye
witness. He arrested the accused and at the instance
of accused and in presence of independent panchas,
seized and recovered the weapon axe and drew the
panchnama in terms of Section 27 of the Evidence
Act. After obtaining the copy of the PM report, sent
the muddamal including the weapon for examination
of chemical examination and finally filed the
chargesheet against the accused for the murder. The
Magistrate committed the case to the court of
session under Section 209 of the Cr.P.C. Upon
committal, the Sessions Trial being Sessions Case No.
7 of 2013 came to be registered.
2.4 After due framing of charge and upon the accused
pleading not guilty, the trial commenced before the
Sessions Judge. Prosecution examined 12 witnesses
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and exhibited 27 documents.
Oral evidence
PW 1- Exh. 9 Dr. Aizaz Mahammadyusuf Vekariya,
medical officer
PW 2- Exh. 12 Dr. Rajesh Vitthalbhai Joshipara, medical
officer
PW 3- Exh. 16 Pruthvisinh Mansinh Vaghela, complainant
PW 4- Exh. 18 Chatrasinh Kishorsinh Vaghela, panch
witness
PW 5- Exh. 23 Dharmabhai Sankalabhai
PW 6- Exh. 27 Rajendrasinh Vikramsinh Vaghela, panch
witness
PW 7- Exh. 30 Chandansinh Devisinh Vaghela, panch
witness
PW 8- Exh. 35 Lalsinh Bhanwarsinh Vaghela, panch
witness
PW 9- Exh. 37 Balvantbhai Bhimabhai Begadiya, circle
inspector
PW 10- Exh. Mahendrabhai Dahyabhai Parmar,
41 investigation officer
PW 11- Exh. Premsinh Joravarsinh Vaghela
PW 12 - Exh. Suryaba Pruthvisinh Vaghela
Documentary Evidence :
Exh. 10 Letter for investigation
Exh. 17 Complaint
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Exh. 19 Panchanama of scene of offence
Exh. 24 Inquest panchanama
Exh. 25 Panchanama of recovery of clothes from body of
deceased
Exh. 29 Panchanama of seizure of weapon
Exh. 31 Panchanama of physical examination of accused
Exh. 38 Map of scene of offence
Exh. 42 Suchipatra
Exh. 43 ETP message
Exh. 44 ETP message to Superintendent of Police,
Banaskantha
Exh. 45 Special report for serious offence
Exh. 46 Call form to Superintendent of Police,
Banaskantha
Exh. 47 Report by FSL, Patan
Exh. 48 Copy of Telephone register of Hadad Police
Station
Exh. 49 Vardhi report by Circle Inspector, Himmatnagar
Exh. 50 Telephone vardhi
Exh. 51 Report of medical officer, Himmatnagar
Exh. 52 Inquest yadi
Exh. 53 Police report for post-mortem
Exh. 54 Yadi for obtaining certificate of cause of death
Exh. 55 Yadi for medical examination of accused
Exh. 56 Form of medical examination of accused
Exh. 57 Copy of yadi for drawing map of scene of
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offence
Exh. 58 Forwarding note for articles
Exh. 59 FSL letter
Exh. 60 FSL report
3. After closure of the prosecution evidence, the
appellant accused was questioned under Section 313
of the Cr.P.C., to which, he stated that, he was
innocent of all charges leveled and he had been
falsely implicated. Though opportunity was extended,
no evidence was tendered from the side of the
appellant accused.
4. The learned Sessions Judge relying on the testimony
of PW-5, who was an eye-witness to the incident and
basing on the depositions of PW-3 & PW-11, before
whom the accused confessed his guilt, found the
appellant guilty of the appellant charge of murder and
he has been convicted and sentenced under Section
302 of the Indian Penal Code to suffer a life
imprisonment and fine of Rs.500/-, in default
imprisonment for one month.
5. Challenging the said conviction and sentence, the
appellant has filed this appeal.
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6. The learned counsel Mr. Radhesh Vyas, appearing for
and on behalf of the appellant accused assailed the
conviction and sentence mainly on the following
grounds :
(i) The testimony of the sole eye-witness PW-5 is not
wholly reliable in absence of corroboration to his
evidence, the conviction is not sustainable in eye
of law.
(ii) The extra judicial confession before the close
relatives, who are interested witnesses, does not
inspire confidence.
(iii) The medical evidence is contrary to the eye-
witness's version. The doctors said that injuries
could not be possible with sharp edged weapon
axe and therefore, the injuries found and proved
from the record, cannot correspondent with what
appears from the medical evidence and in that
view of the matter, the benefit should be given to
the accused.
7. On the other hand, learned Additional Public
Prosecutor Mr. Jay Mehta for the respondent State
vehemently opposed the appeal and contended that,
no error could be said to have been committed by
the Court below in holding the appellant guilty of the
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offence punishable under Section 302; the presence
of PW-5 at the scene of offence was natural and he
has no reason or motive to depose against the
appellant accused; that there is no evidence to the
effect that, PW-5 is the tutor witness and at the
behest of PW-3 and PW-11, he is telling lie so as to
convict him; that PW-1 Doctor who had conducted
the Postmortem on the body of the deceased clearly
opined that the deceased was died due to multiple
head injuries and the injuries were sufficient in
ordinary court to cause the death; that PW-2 Dr.
Rajesh Joshiyara, Medical Officer, had opined that,
the injuries sustained could be possible by the
weapon axe ; that, the PW-5 is illiterate person and
his evidence should be evaluated after considering
his background and therefore, merely statement
made by him that the appellant caused injuries with
the sharp edged weapon cannot be a sole ground to
reject his evidence, which has been corroborated by
the evidence of extra judicial confession made by the
accused before PW-3 and others. In such
circumstances, Mr. Jay Mehta, would urge that, the
learned trial court on correct appreciation of
evidence, has convicted the appellant accused, which
does not require any interference and therefore, he
prays for dismissal of the appeal.
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8. Before adverting to the submissions, we deem it fit to
refer in brief the evidence recorded before the trial
Court.
9. The case of the prosecution basically rests on the
testimony of PW-5, PW-3, PW-11 and 12. So far
medical evidence is concerned, PW-1 is the doctor,
who had conducted Postmortem on the body of the
deceased, whereas, PW-2 is the Medical Officer,
before whom the deceased was brought for
treatment.
10. PW-1 Dr. Aizaz Vekariya, who had conducted the
Postmortem on the body of the deceased, noticed
and noted in the PM report Exh. 11 following external
and internal injuries. The doctor was on duty as
Medical Officer at Civil Hospital at Himmatnagar and
while conducting Postmortem with the panel doctors,
he found, the external injuries mentioned in column
no. 17 in the PM note, which read thus:
Head (1) CLW (8x2cmx bone deep) over rt
frontal region spindal shape.
(2) CLW (10 x 2 cm x bone deep) on urt parito
temporal region "C" Shape.
(3) CLW (8Cmx 2 cm x bone deep) over Lt.
Partial region of Head.
(4) CLW (12cmx2cmxbone deep) Stinting from
Lt temporo partial region and exterior over It
occipital region.
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(5) CLW (5 cm x 2 cm x bone deep) on lt mid
partial region.
(6) CLW (8cmx 2cmx bone deep) Shape "" over
Lt occipital region.
PW-1 also noticed and noted the internal injuries
which were in the nature of multiple fractures on the
parietal and temporal born which reads thus:
* Abrasion's on rt cheek
* Abrasion on lower lip
* Abrasion's on Lt Shoulder
* Abrasion over nose.
* Abrasion on rt and pent of lower leg
* Abrasion Lt and pent of lower leg
* Abrasion on Lt lower chest
* Abrasion on Lt fracture.
According to doctor, the injuries found on the
body of the deceased are sufficient in ordinary course
to cause death and it could be possible by weapon
axe and cause of death is multiple head injuries.
In the cross-examination, the doctor has
admitted that, the external injuries nos. 1 to 6 could
not be possible by sharp cutting instrument.
However, he has denied the suggestion that, by
weapon axe, the injuries could not be possible.
11. PW-2 Dr. R.V. Joshiyara before whom the deceased
was brought without police yadi. The doctor was on
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duty as a Medical Officer with Khedbrahma Hospital,
The Doctor has stated that when the deceased
brought before him, he was unconscious and on
examination, he found multiple injuries on the scalp
and on further examination, he noticed the following
six injuries:
(1) CLW over rt. frontal region Spindal Shape 8 x
2 cm Bone deep.
(2) CLW 6 cm x 2 cm x bone deep over Lt.
Parital region of Head.
(3) CLW on rt. Parito-Temporal region "C" Shape
( 9cmx2xbone deep)
(4) CLW (12cmx2cmxbonedeep Starting from Lt.
temporo Parital region extended to Occipital
region.
(5) CLW 5 cm x 2 cm x Bone deep on Lt.
midparital region
(6) Star Shape CLW 6 cm x 2 cm Bone deep at
Occipital region
Bleeding from mouth and ear.
Left eye Swelling
Lower eye middle CLW 1/2 cm verticle
According to doctor, the injuries were serious in
nature and it could be possible by axe weapon. In the
cross-examination, he admitted that, the injuries
could be possible with blunt substance, however,
considering the hard tissue found in the skull, the
injuries could be possible by axe.
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12. PW:3 Pruthvisinh Vaghela who is the father of the
deceased and the complainant, in his chief
examination, has stated that his elder son - appellant
Mahendrasinh after his marriage, was residing
independently, whereas the deceased younger son
was residing with him in the same village. So far as
incident part is concerned, he stated that on
15.11.2012, when he was on the way towards the
house of one Bhambarsinh Lalsingh, the appellant
accused met him and upon inquiry, he said that, he
came back because of some pending works and went
to his house. The witness has further stated that after
conversation with the accused, when he proceeded
towards the house of Bhambharsinh and before he
could reach there, he met Premsinh Joravarsinh and
Rajendrasinh Joravarsinh, who happened to be a
distant relative. The witness was told that your son
Mahendrasinh appellant has killed the deceased
Vijaysinh and he was lying near the farm of
Joravarsinh. Thereafter, the witness went to the place
of occurrence where he saw the deceased his son
lying with the full of blood. The witness has further
stated that when he was at the place of incident, the
appellant accused came there and upon asking him
that who has killed the deceased, the appellant
accused stated that he has killed the deceased with
the weapon axe and at that time, the farm labourer
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PW:5 Dharmabhai was present and told the PW:1 that
the appellant killed the deceased with axe. The
witness has further stated that the deceased was in a
critical condition and unconscious. The witness and
others took the deceased to the CHC, Khedbrahma
and after taking primary treatment there, he was
referred to the higher center due to the critical
conditions of the deceased. The deceased
succumbed to injuries at Civil Hospital, Himmatnagar.
The witness has further stated that after arrival of
the police at the hospital, he lodged an FIR which he
had produced at Exh.:17.
In the cross examination, the witness PW:3 has
stated that the appellant accused met him nearby
the milk dairy of the village. The witness has denied
the suggestion that before the doctor of
Khedbrahma, it was disclosed that the deceased
found at the place in a critical condition. It is also
denied by the witness that before two years of the
incident, the deceased had caused grievous injuries
to the appellant accused. It is also denied by the
witness that he was not knowing that who has killed
the deceased and on the basis of suspicion, the FIR
against the appellant is being lodged. It is also
denied by the witness that the accused never
confessed before him about killing of deceased by
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him.
13. PW:5 Dharmabhai Sanklabhai who is the material
witness as he claimed to be an eyewitness of the
incident. According to say of the witness, at the
relevant time, he along with his wife employed as
farm labourer one Joravarsinh and was residing in the
field and as a care taker, he was doing farming work.
The witness has stated that the incident happened on
the next day of the Diwali festival at about 06:00
p.m. and at that time, he was milking a buffalo and to
fetch water, he came nearby the well and he saw the
appellants Mahendrasinh and Vijaysinh were fighting
and in the process of said quarrel, the appellant
Mahendrasinh inflicted blows on the head of
deceased with weapon axe and inflicted 5 to 6 blows,
as a result of which, the deceased Vijaysinh fell on
the floor. The witness has further stated that he
requested Mahendrasinh saying that please do not
beat the deceased, but he did not restrain himself.
The witness has further stated that after the incident,
he immediately came in the village and nearby the
milk dairy, he told the facts of the incident to the
father of the deceased PW:3 and others. The witness
has further stated that after informing the PW:3 and
others about the incident, he came again at the place
of incident along with the PW:3 and village people
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and at that time, the appellant accused also came
there and he was asked by the persons assembled
over there about who has killed the deceased and he
replied that he does not know and when he
confronted, the appellant accused confessed and
admitted that he has killed the deceased the witness
has further stated that the deceased was taken to
nearby hospital and thereafter, when police came at
the place, his reply was recorded by the police. The
witness has identified the weapon axe and the
clothes of the deceased as well as the accused.
In the cross examination, the eyewitness PW:5,
makeshift house for his residential purpose
temporary constructed which is at the distance of 20
mtrs. from the place of incident. It is denied to the
suggestion asked by the defence that there is no any
farm land of the accused or complainant situated
nearby the place of incident. The witness has stated
that the sharp edge of the weapon was being
inflicted by the accused. The witness has stated that
at distance of 15 ft. he had seen the incident. The
witness has admitted that he did not make hue and
cry to save the deceased. The witness has stated
that before the incident, he heard the shouting and
that is why, he immediately rushed at the place of
incident. The witness has denied to the suggestion
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put-forth by the defence that he has not seen the
incident and after 24 hours of the incident, he was
got up as witness and was telling lie about the
incident.
14. PW:11 Premsinh Vaghela has been examined to
prove the factum of extra judicial confession
allegedly made by the accused. The witness was
informed by PW:5 about the incident and after arrival
of the father of the deceased PW:3, he along with
others went to the place of the incident, where the
accused were present and on asking him about who
has killed the deceased, the accused confessed
before him as well as other that he has killed the
deceased. In the cross examination, the witness has
denied that PW:5 farm labourer was staying in the
farm of one Patel of the village. In the cross
examination, the witness has stated that the accused
has confessed before his father PW:3 and did not say
anything to him.
15. PW:12 Suryaben Vaghela, who is the mother of the
deceased and according to her statement, accused
confessed before her that he has killed the deceased.
In the cross examination, the witness has denied to
the suggestion that the deceased had caused the
injuries to the appellant before two years of the
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incident. The witness has denied that at the behest of
her husband PW:3, she is deposing against the
appellant accused.
16. PW:10 Mahendra Parmar had investigated the case
and at the relevant time, he was discharging his
duties as PSI at Hadad Police Station. The I.O. has
stated that after receiving the message from PSO, he
immediately rushed to the Civil Hospital,
Himmatnagar where the deceased was brought for
treatment. The I.O. has further stated that he met the
PW:3 father of the deceased at the hospital and after
preliminary inquiry, he recorded his complaint on
16.11.2012, during 04:00 p.m. to 05:00 p.m. The I.O.,
thereafter, entrusted the investigation of the case
and proceeded to investigate the case. He sent the
dead body of the deceased for postmortem and then,
took visit at the scene of offence where he drew the
panchnama in the presence of independent
witnesses and recorded the statement of material
witnesses and arrested the accused and obtained the
medical certificates. The I.O. during the investigation,
at the instance of the accused, in the presence of
independent witnesses, seized and recovered the
weapons axe and thereafter, sent the muddamal
including the weapon for chemical analysis at
Ahmedabad and finally, filed the chargesheet against
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the accused. In the cross examination, he denied to
the suggestion that there are contradictory facts of
the incident, disclosed before the doctor as well as in
the complaint and through got-up witness, the
accused has been framed.
17. We have heard learned counsels for the respective
parties and considered their rival submissions made
hereinabove and also went through the record with
utmost circumspection.
18. In the case on hand, the question arises for our
consideration as to whether the accused appellant is
the author of crime or not and the learned Trial Court
is justified in convicting the accused under Section
302 of the Indian Penal Code ?
19. The counsel for the appellant as referred above,
raised the contentions that the testimony of sole
eyewitness PW:5 does not inspire confidence and in
absence of any corroboration, the learned Trial Court
could not have convicted the appellant. The law and
precedent on the points are settled. The Supreme
Court in its various judgments, held and observed
that there is no rule of law that the testimony of
single witness cannot be accepted and the conviction
cannot be based on such evidence, if believed. The
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testimony of single witness, if it is straightforward,
cogent and if believed, he sufficient to prove the
prosecution case and when case rests on the sole
testimony of eyewitness, the same should wholly
reliable.
In light of the law laid down by the Supreme Court
and considering the peculiar facts and circumstances
of present case, the issue is whether the sole
testimony of PW:5 is reliable, cogent and inspire
confidence or not ? On careful examination of
testimony of PW:5, it emerges that he is tribal and
illiterate person. It is not in dispute that he was not
employee as a farm labourer by Joravarsinh. It is tried
to establish that he was employed by one Patel of the
village but the witness PW:11 has specifically
explained in his deposition that in the entire village,
no any person belongs to Patel Community is living.
Thus, we have no doubt about the presence of the
PW:5 at the place of incident as in a makeshift house,
he was living with his wife and at the relevant time,
after hearing the shouting, he rushed to the place of
incident. The defence has tried to establish that PW:5
is a got-up witness, but nothing on record to show
that at the behest of PW:3, he is telling lie. On
perusal of the oral evidence adduced by the
prosecution, except PW:5, no one present nearby the
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place of incident and therefore, his presence at the
place of the incident was natural. The witness PW:5
has no any enmity with the appellant accused and
nothing on record that due to enmity, he is deposing
against the accused. The witness PW:5 after the
incident, immediately came at the milk dairy where
he informed the village people as well as father of
the deceased about killing of the deceased by the
appellant accused. It is relevant to note that in the
presence of PW:5, the accused confessed before the
PW:3 and others about the killing of the deceased. In
such circumstances, on careful examination of the
testimony of PW:5 which has got corroboration from
the evidence of extra judicial confession and medical
evidence, we find his evidence cogent, creditworthy,
reliable and inspire confidence. In such
circumstances, we do not find merits in the
submissions that the evidence of PW:5 is not wholly
reliable.
20. The next issue relates to extra judicial confession
allegedly made by the accused. It was submitted
that, the evidence on this aspect does not inspire
confidence and more particularly father of the
appellant accused, is interested witness and
therefore, the evidence of PW-3 before whom the
confession made by the accused could not have been
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relied by the trail Court. The law on the subject extra
judicial confession is well settled. The Supreme court
in its various judgments time and again observed and
held that, the extra judicial confession, though a
weak type of evidence, can form the basis for
conviction, if the confession made by the accused is
voluntary, true and trustworthy. In other words, if it
inspires the confidence, it can be acted upon. So far
as evidentiary value of extra judicial confession is
concerned, the Supreme Court, in the case of
Podyami Sukada Vs. State of M.P. (2010 Cri.L.J.
4273), held that the evidentiary value of extra
judicial confession depends upon the trustworthiness
witness before whom confession is made. It was
further held by the Supreme Court that law does not
contemplates that evidence of confession should in
all cases be corroborated and it is not an inflexible
rule that in no case conviction can be bases solely on
extra judicial confession. It is basically in the realm of
appreciation of evidence and question of fact to be
decided in the facts and circumstances of each case.
In light of the law propounded by the Supreme
Court and considering the peculiar facts of the
present case, in our opinion, the statement given by
the accused to his father PW-3 and mother PW-12,
that he had killed the deceased is in the form of extra
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judicial confession and is admissible in evidence. On
going through the testimony of the witnesses before
whom the statement was made, we are satisfied that
their evidence is reliable, acceptable and inspire our
confidence. It is relevant to note that, no father can
falsely implicate his own son. According to statement
of the witnesses on the day of incident, one death
took place in the village and in honour of said death,
PW-3, was on way to attend the rituals at the house
of person, who was died. The accused herein met the
PW-3 in the way as he was also suppose to attend
said rituals but somehow he gave false reply to his
father that due to some work, he came return back.
The PW-3 got the message from the village people
nearby milk dairy, where he met PW-5, who had
witnessed the incident and when PW-3 reached at
the place of incident, the accused also came there
and on asking by the witness, he made a statement
that, he has killed the deceased because of past
enmity with him. On the same footing, the PW-12
mother before whom the accused made a statement.
The PW-5, who had witnesses the incident, confirmed
the facts of statement allegedly made by the accused
before the witnesses. In such circumstances, in
absence of any enmity, there is no reason for the
father and mother to rope the accused in the serious
charge of murder. Thus, the statement of the
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accused before the witnesses got corroboration from
the evidence of PW-5. In such circumstances, the
submission about non-reliability of the extra judicial
confession has no any merits.
21. The counsel Mr. Vyas, raised the issue that there are
material contradiction and discrepancies between the
ocular and medical evidence. In this regard, it is
submitted that the accused is alleged to be armed
with axe, but so far medical evidence is concerned,
no any incise wounds found on the body of the
deceased. The PW-5 in his cross-examination clearly
stated that the injuries were caused with the sharp
edge of the weapon. The PM doctor PW-1 has
admitted that, injuries could not be possible through
sharp cutting weapon and therefore, the medical
evidence is contrary to eye witness version and the
benefit thereof can be extended to the accused. We
have carefully examined the oral as well as
documentary evidence. The injuries found on the
body of the deceased were contused lacerated
wounds which generally involve a bruise or blunt
trauma that tears the skin. In medical language, the
CLW refers to an injury that involves both contusions
(bruising) and lacerations (tear or cut in the skin) and
these type of wound is typically result of blunt force
trauma. In the case on hand, both the doctors i.e.
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PW-1 and PW-2 have opined that, the injuries found
on the body of the deceased could be possible by
weapon axe. The doctor PW-2, who had given a
primary treatment, categorically stated that he noted
the hard tissues in the skull and therefore, with the
weapon axe, the injuries of CLW could be possible.
The position of law on this aspect is well set. In cases,
where there is contradiction between the medical
evidence and ocular evidence, can be crystallized to
the effect that though the ocular testimony of the
witness has greater evidentiary value vis-à-vis
medical evidence, when the medical evidence makes
the ocular test improbable that becomes relevant
factor in process of evaluation of medical evidence.
In this case, two doctors have categorically stated
that the injuries found on the body of the deceased
could be possible by weapon axe and more
particularly PW-2 has clarified that due to hardness of
the tissues, the injuries would be possible by weapon
axe. We may clarify that PW-5 is a tribal and illiterate
person. The Court cannot expect the technical
knowledge about use of hard or sharp edge weapon
from the illiterate person. Thus, whatever admission
made by PW-5 that the accused inflicted sharp edge
of the axe, become insignificant, in view of the
medical opinion of the two doctors. Under these
circumstances, it cannot be said that the oral
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evidence is irreconcilable with medical testimony and
no benefit would be available to the accused.
22. For the aforementioned reasons, it is proved and
established that, on 15.11.2012 at village: Bhanpur,
around 6-00 PM the deceased Vijaysinh Vaghela died
due to injuries caused by the appellant accused with
the weapon axe. There is a charge of murder, as
defined under Section 300 of the Indian Penal Code.
Under clause III of Section 300, culpable homicide is
murder, if the following conditions are satisfied
namely: (a) that the act which causes death is done
with the intention of causes death or is done with the
intention of causing bodily injury; and (b) that the
injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death. In other
words, it must be proved that there was an intention
to inflict that particular bodily injury, which in the
ordinary course of nature was sufficient to cause
death. In the case on hand, as per the medical
evidence, the deceased was having injuries over right
frontal region and right parito temporal region and all
the six injuries found on the body of the deceased
were born deep and due to said injuries, there were
intracranial hamrhage with sub arahnoid hamrhge
and sub dural hamrhge. As per the opinion of the
doctor PW-1, the injuries were sufficient in ordinary
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course of nature to cause the death and it could be
possible by weapon axe and within short span of
time, the deceased died at the civil hospital. On
perusal of the evidence on record, the injuries were
found on the vital part of the body and it is not the
case of the accused that, he had no any intention to
inflict such injuries on the head and was intended to
cause injuries on some other part of the body. In
such circumstances, considering the nature of
injuries, the manner in which the repeated blows
being given on the head of the deceased with
weapon axe, it can be inferred that the act on the
part of the appellant accused was done with intention
of causing death and as per the medical evidence,
the injuries were sufficient in the ordinary course of
nature to cause death and circumstances further
shows that in absence of any indication to show that
injuries inflicted were accidental or unintentional and
that some other kind of injury was intended to be
inflicted, the presumption would be that, the vary
injury suffered by the deceased was intended to kill
and in that view of the matter, we came to
conclusion that the act of the accused fall within the
clause thirdly and fourthly of Section 300 of Indian
Penal Code, which read as under :
Section 300 : xxxxxx
Secondly, ............
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Thirdly, : if it is done with intention of causing
bodily injury to any person, and the bodily injury
intended to be inflicted is sufficient in the ordinary
course of action 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
it likely to cause death and commit such an act,
without any excuse for incurring the risk of causing
death or such injuries as aforesaid.
23. In view of the aforesaid discussions, after analysis of
the evidence and impugned judgment of conviction,
we are satisfied that, prosecution has proved its case
with sufficient oral and documentary evidence,
beyond all reasonable doubt, that the appellant was
the author of the crime and the trial Court has rightly
found the appellant accused guilty for act of murder
punishable under Sections 302 of the IPC. We do not
find any scope for interference with the findings of
conviction and sentence recorded by the trial Court.
24. In the result, this conviction appeal deserves to be
dismissed and is hereby dismissed. The conviction and
sentence are upheld. R&P, if any, be sent back to the
trial Court forthwith.
(ILESH J. VORA,J)
(HEMANT M. PRACHCHHAK,J)
P.S. JOSHI
