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CR.A/89719/1997 14/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 897 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? No.
2
To be
referred to the Reporter or not ? No.
3
Whether
their Lordships wish to see the fair copy of the judgment ? No.
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No.
5
Whether
it is to be circulated to the civil judge? No.
=========================================================
BEGADIYA
SOMABHAI KALABHAI & 3 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance :
MR
MC BAROT for Appellant(s) : 1 - 4.
MS MEETA
PANCHAL for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 14/10/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. The
appellants convicts have challenged the judgment and order of
conviction and sentence rendered on 30-8-1997 by learned Addl.
Sessions Judge, Banaskantha at Palanpur in Sessions Case No.45 of
1995 convicting the appellants for offences punishable u/ss. 302,
323, 324 read with Section 34 of the I.P. Code and u/s 135 of the
Bombay Police Act and sentenced them to undergo different sentences.
2. It was
the prosecution case that on 4-11-1994 at about 15-00 hours in
furtherance of their common intention to commit murder of Anada
Ratna, appellant Kala Kaala and Kaala Ratna committed his murder and
appellant Soma Kaala and appellant Vira Kaala caused injury with
stick having iron rings to Nopabhai Ratnabhai and Chandubhai
Bhemabhai and appellant Kala Kaala and appellant Kaala Ratna
abetted the accused in commission of offence and thereby committed
offences punishable u/s 302, 323, 324 and 34 of the I.P. Code and u/s
135 of the Bombay Police Act.
3. On the
basis of the first information report lodged by Nopabhai Ratnabhai
before Danta Police Station, offence was registered as I CR No.
107 of 1994 against the accused and the investigation was started.
On completion of investigation charge sheet against the accused for
the aforesaid offences was laid before the J.M.F.C., Danta. As the
offences were triable by Sessions Court, the case was committed to
the Sessions Case, Banaskantha at Palanpur and it was registered as
Sessions Case No. 45 of 2005. Learned Addl. Sessions Judge,
Banaskantha at Palanpur framed charge Exh.3 against the accused for
the aforesaid offences. On completion of recording of evidence, the
learned trial Judge explained to the accused the incriminating
circumstances appearing against them in the evidence. The accused
denied having committed the offence in their further statements
recorded u/s 313 of the Code of Criminal Procedure and stated that
they have been falsely implicated in the offence.
4. After
hearing the learned A.P.P. for the State and learned advocate for the
accused, the trial Court convicted the appellants and sentenced them
to undergo difference sentences. Being aggrieved by the said
decision, the accused have preferred the present appeal.
5. Heard
learned advocate Mr. M.C. Barot for the appellants and learned A.P.P.
Ms. Meeta Panchal for the respondent State at length and in great
detail. We have also perused the impugned judgment and records and
proceeding and proceedings of the trial court.
6. Mr.
Barot learned advocate for the appellants mainly submitted that the
prosecution witnesses have tried to suppress the real facts and there
are material contradictions in the evidence of the so called eye
witnesses. He also submitted that the incident occurred all of a
sudden as there was heated exchange of words which resulted into
clash and there was no premeditation or pre-plan to commit offence
and therefore the appellants could be convicted for minor offence.
7. Learned
A.P.P. Ms. Panchal submitted that the evidence clearly indicates that
the appellants had common intention to commit offence and there was
premeditation. The medical evidence as well as depositions of the
witnesses indicate that all the appellants with common intention to
commit offence attacked deceased and therefore the learned trial
Judge was justified in recording conviction. Hence, no interference
is warranted in the impugned judgment.
8. In view
of submissions of Mr. Barot, appellants have not disputed the
incident. Therefore, the only question is whether the case would
fall under Section 304 of the I.P. Code ?
9. It
appears from the prosecution case that appellants Kala Kaala and
Kaala Ratna committed murder of Anadabhai Begadiya and appellant
Soma Kaala and appellant Vira Kaala abetted. It is also the
prosecution case that appellants Soma Kaala and Vira Kaala caused
injury with stick to Nopabhai Ratna and Chandubhai Bhemabhai and
other appellants abetted in commission of offence.
10. The
prosecution examined injured P.W. 2 Nopabhai at Exh 18. This
witness lodged F.I.R. Exh. 39. It appears from the evidence of this
witness that the witness had heated exchange of words with appellant
Soma Kaala as he demanded money. The evidence also indicates that
on account of heated exchange of words other appellants came
running there and appellants Soma Kaala and Kala Kaala had bow and
arrow, appellants Kaala Ratna and Vira Kaala had stick having iron
rings and appellant Soma Kaala hit arrow on right side of his
forehead. According to the witness appellant Vira Kaala hit stick
having iron rings on his right wrist and backside of his head.
11. The
prosecution produced the injury certificate of the witness at Exh.
14. It indicates the following injuries. :
i. Incised
wound oblique 2.5 cm x ½ cm x ½ over right side of
forehead.
ii. C.L.W.
Vertical 1 cm x ½ cm x ½ cm over right forearm.
According
to the certificate injury No.1 was possible by sharp cutting
instrument and injury No. 2 was possible by hard and blunt object.
12. The
F.I.R. Exh. 39 also indicates that before the incident heated
exchange of words took place and the appellants Soma Kaala and Vira
Kaala assaulted P.W. 2 Nopabhai.
13. The
evidence indicates that there was exchange of words between P.W. 2
and appellant Soma Kaala who hit arrow on his forehead and appellant
Vira Kaala, hit stick on his right wrist. The Doctor’s evidence
indicates that such injuries were possible by arrow and stick. This
clearly indicates that on account of heated exchange of words the
incident occurred and the witness was injured.
14. According
to P.W. 3 Chandubhai Bhemabhai Exh. 25 he was also injured in the
assault by appellant Soma Kaala but there is no medical evidence to
show the injuries. Therefore, it is difficult to believe that the
witness was injured in the assault.
15. The
prosecution also examined eye-witness P.W. 4 Kamliben Anadabhai at
Exh. 26. The witness has deposed about the injuries to P.W. 2
Nopabhai and P.W. 3 Chandubhai.
16. In view
of above evidence, it clearly emerges that the incident occurred as
P.W. 2 demanded money from appellant Soma Kaala and there was
exchange of words and due to this heated exchange of words,
appellant Soma Kaala got enraged and inflicted injury and
appellant Vira Kaala also gave stick blow to P.W. 2. Therefore
complicity of appellant Soma Kaala and appellant Vira Kaala is
proved beyond reasonable doubt in causing injury to P.W. 2 but the
evidence does not indicate that they had abetted appellants Kala
Kaala and Kaala Ratna in committing murder of Anada Ratna. As
regards appellant Kaala Ratna, according to P.W. 2 he hit stick on
the head of deceased Anada Ratna. This version is supported by P.W.
4. The postmortem report Exh. 15 also indicates that injury was
found on head of the deceased and P.W. 1 Dr. Jayantibhai Ambaram
Exh. 13 has deposed that such injury was possible by stick.
Therefore, involvement of appellant Kaala Ratna in causing injury
to deceased is proved but there is no evidence to indicate that
appellant Kaala Ratna had common intention to commit murder of the
deceased. Analysing the evidence, it becomes clear that appellants
Soma Kaala and Vira Kaala caused injuries to P.W. 2 and appellant
Kaala Ratna caused injury to the decease but there is no evidence to
come to a conclusion that these appellants had common intention to
commit murder or to cause injury to P.W. 2 and P.W. 3.
17. As
regards death of Anada Ratna, the prosecution examined Medical
Officer P.W. 1 Dr. Jayantibhai Ambaram Patel at Exh. 13. The
witness performed postmortem of dead body of Anada Ratna. According
to him the injuries found on the dead body were recorded in
postmortem report Exh. 15 and certificate indicating cause of death
produced at Exh. 16 was issued by him. According to the Doctor,
injury No.1 was sufficient in the ordinary course of nature to cause
death and such injury was possible by muddamal arrow.
18. Postmortem
Exh. 15 indicates following external injuries in Column No.17.
i. Stabbing
wound oblique 2.5 cm x 1 cm size over right of epigastric region.
Omentum came out side through wound.
ii. C.L.Ws.
3 in no. oblique, 1 cm x ½ cm x ½ on left side of
parietal region of scalp.
iii.
C.L.W. Oblique 2.5 cm x ½ cm x ½ cm over left
temporal region of scalp.
iv. Abrasions
3 in no. of 1 cm size over left knee.
The cause
of death was shock due to intraperitoneal haemorrhage on account of
stabbing injury over abdomen.
19. As
observed earlier P.W. 2, P.W. 3 and P.W. 4 have deposed that as
P.W. 2 demanded money from appellant Soma Kaala, there was heated
exchange of words. They have also deposed that as deceased Anada
Ratna came running there appellant Kala Kaala hit arrow on his
abdomen. The medical evidence also indicates that such injury was the
cause of death. Therefore, the death was homicidal in nature and
appellant Kala Kaala was responsible for such injury. It also appears
that the deceased was not present at the place of incident when
there was exchange of words but came subsequently. Therefore there
was no premeditation and there was no intention on the part of
appellant Kala Kaala to assault the deceased. The incident occurred
all of a sudden in heat of passion. Considering the injury caused
by the appellant, it cannot be said that he acted in cruel or
unusual manner and took undue advantage of the situation. Therefore,
the case would fall into exception 4 to Section 300 of the I.P. Code
and hence learned trial Judge committed error in convicting
appellant Kala Kaala for the offence punishable u/s 302 of the I.P.
Code.
20. Scrutinising
the evidence it appears that there is no cogent, reliable and
convincing evidence to indicate that the appellants had common
intention to cause injury to P.W. 2 and in furtherance of common
intention, they attacked P.W. 2. Considering nature of injuries and
weapons used for inflicting the injuries appellant Soma Kaala,
Vira Kaala and Kaala Ratna could be convicted for the offence
punishable u/s 324 of the I.P. Code. Therefore, learned trial Judge
has committed error in convicting appellants No.1, 2 and 4 for the
offence punishable u/s 302, 323 read with Section 34 of the I.P. Code
and hence conviction of these appellants for such offences is
required to be set aside and their conviction for the offence
punishable u/s 324 of the I.P. Code and u/s 135 of the Bombay Police
Act is required to be confirmed.
21. As
regards murder of Anada, there is no evidence to indicate that there
was common intention of the appellants to commit his murder.
Therefore, it cannot be said that the appellants in furtherance of
their common intention caused murder of Anada.
22. Now the
Court will have to find out whether the appellant Kala Kaala could
be held guilty for the offence of murder or whether it falls within
the ambit of any exception enumerated in Section 300 of the I.P.
Code. It appears that there was quarrel preceding the incident and
the deceased tried to intervene in the quarrel. Therefore, the
manner in which incident has occurred and considering the medical
evidence it appears that the murder was committed without
premeditation in a sudden heat of passion. Therefore, in our
considered view, the present case would be governed by Section 304
Part I of the I.P. Code more particularly when only one blow was
given by appellant Kala Kaala. Therefore, approach of the learned
trial Judge being erroneous in law is liable to be quashed and set
aside.
23. Having
regard to the facts and circumstances of the case as well as the
manner in which the incident has taken place, appellant Kala Kaala
could be held guilty of offence punishable u/s 304 Part-I and not
u/s 302 of the I.P. Code.
24. We have
heard learned advocate Mr. Barot for the appellants and learned
A.P.P. Ms. Panchal for the respondent State on the question of
sentence. It is stated that appellant Kala Kaala has undergone
imprisonment of more than 10 years and other appellants were released
on bail by this Court pending the appeal. It is also submitted by
Mr. Barot that the manner in which the incident had occurred, it
would be just and proper that imprisonment already undergone by
them be imposed. In our view, considering the facts and
circumstances of the case this submission is required to be
accepted.
25. For
the foregoing reasons, the appeal is partly allowed and conviction of
the appellants Begadiya Soma Kaala, Begadiya Virabhai Kaala and
Begadiya Kaala Ratnabhai recorded vide judgment and order dated
30 8-1997 passed by the learned Addl. Sessions Judge, Banaskantha
at Palanpur in Sessions Case No. 45 of 1995 for the offence
punishable u/s 302, 323 read with Section 34 of the I.P. Code is
quashed and set aside. However, conviction of these appellants for
the offence punishable u/s 324 of the I.P. Code and u/s 135 of the
Bombay Police Act is confirmed. These appellants are directed to
undergo the sentence of rigorous imprisonment for the period already
undergone by them. Appellants No.1, 2 and 4 are on bail and
hence their bail bonds stand cancelled.
26.1 So
far as conviction of the appellant Begadiya Kala Kaala recorded
vide judgment and order dated 30-8-1997 passed by the learned
Addl. Sessions Judge, Banaskantha at Palanpur in Sessions Case No.
45 of 1995 for the offence punishable u/s 302 is concerned, it is
altered from Section 302 of the I.P. Code to Section 304 Part-I of
the I.P. Code and the appellant is directed to undergo sentence of
rigorous imprisonment for the period of 10 (Ten) years. Order of
conviction and sentence imposed by the trial court for the offence
punishable u/s 135 of the Bombay Police Act is confirmed. However,
conviction of this appellant for the offence punishable u/s 323, 324
read with 34 of the I.P. Code is set aside.
26.2 In
view of the jail report, it appears that appellant No. 3 – Begadiya
Kala Kaala has already undergone sentence of rigorous imprisonment
imposed by this Court. Therefore, the Superintendent, Ahmedabad
Central Jail, Ahmedabad is directed to set free appellant No.3
Begadiya Kala Kaala forthwith unless his presence is required in
any other case.
26.3 All
the sentences are ordered to run concurrently. The appellants are
entitled to get set off.
26.4 The muddamal be disposed of
as directed by the trial court.
(Bhagwati Prasad, J.)
(Bankim N. Mehta,J.)
/JVSatwara/
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