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CR.A/132/1988 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 132 of 1988
With
CRIMINAL
APPEAL No. 447 of 1988
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=================================================
PARSHOTTAM
RAMA - Appellant
Versus
STATE
OF GUJARAT & 1 - Opponents
=================================================
Appearance : In CR.A: 132 of 1998
MR
AD SHAH for Appellant :
MR. MAULIK NANAVATI, LD. APP for Opponent
: 1,
NOTICE SERVED for Opponent : 2,
Appearance:
In CR.A. 447 of 1998
MR
MAULIK NANAVATI, LD. APP for Appellant
NOTICE
SERVED for Opponent No. 2 & 4
MR
AD SHAH for Opponent No.3
NOTICE
SERVED for Opponent No.1 by bailable warrant.
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 29/07/2008
ORAL
JUDGMENT
:
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
Both
the appeals arise out of the judgment & order dated 8th
March 1988 passed by learned Addl. City Sessions Judge,Ahmedabad in
Sessions Case No. 5 of 1987 by which the original accused No.3
Parshottam Rame came to be sentenced for the offence punishable
under section 304 Part-1 of I.P. Code, who preferred Criminal
Appeal No. 132 of 1988. Feeling aggrived by the said judgment the
State had preferred Criminal Appeal No. 447 of 1988 against all the
original accused persons. However at the time of admission of the
appeal, learned APP had not pressed the State appeal againt the
original accused No.5 Lallu Lala Chavda Vaghri.
Brief case of the
prosecution is that complainant Babubhai, deceased Vinodbhai and
Devjibhai were the three brothers. They were residing in a hut of
the chawl known as ?SParvatibai Chawl??, situated near Adwait
Ashram and opposite to Shankar Bhuvan of Shahpur. Devjibhai and
Vinodbhai have got their shop near Adwait Ashram. The original
accused no.1 to 4 are brothers, while accused no.5 Lallubhai is
their uncle. The case of the prosection is that accused no.1, Amrut
Rama and accused no.3 Parshottam Rama are the pick-pockerts and
police used to arrest both of them quite often, who suspected that
the complainant and his brothers were working as informants of the
police. That on 21/10/1986 at about 8.30 p.m. Complainant
Babubhai, his deceased brother Vinodbhai and their neighbours
Sureshbhai Alabhai and Natvarbhai Jivabhai had gone to the Pan-Bidi
cabin known as ?SGandhi Bridge Pan House?? for eating pan and
after ordering pan they were talking casually. At that time accused
no.3 Parshottam came there along with his three brothers i.e.
accused nos 1,2 and 4. According to the prosecution case accused
no.3 Parshottam inflictd a gupti blow on the left side chest of
Vinodbhai. Rest of the accused caught hold of deceased Vinodbhai and
again accused no.3 inflicted two to three more gupti blows to
Vinodbhai. Complainant and his companions raised shouts and hence
accused no. 1 to 4 ran away. Thereafter injured Vinodbhai was
shifted to V.S. Hospital, and on examination he was found dead.
The case was registered and subsequently the accused were arrested.
It is the case of the prosection that accused no.5 Lallubhai, who
is uncle of the accused gave shelter to all the accused knowing full
well that they had committed murder of Vinodbhai. On completion of
the investigation police filed charge sheet before the learned
Metropolitan Magistrate for the offences punishable under sections
302, 201, 212 and 34 of I.P. Code and also for offence punishable
under section 135 (1) of Bombay Police Act. Thereafter the case was
committed to the Court of Sessions where it was numbered as Sessions
Case No. 5 of 1987. After completion of the trial, Learned Addl.
Sessions Judge, Ahmedad, vide judgment & order dated 8th
March 1988 acquitted accused no.1,2,4 and 5 on the ground of
prossecution’s failure to prove case agaisnt them, however convicted
accused no.3 Parshottam Rama for offence under Section 304 Part-I of
I.P. Code.
Being
aggrieved and feeling dissatisfied by the judgment of acquittal of
accused no. 1,2, 4 and 5 appellant State has preferred Criminal
Appeal No. 447 of 1988; while the accused no.3 who was convicted for
offence under section 304-Part-1 by the judgment of learned Addl.
Sessions Judge, preferred Criminal Appeal No. 132 of 1988. At the
time of admission of appeals, State has not pressed appeal against
accused no.5 and hence Criminal Appeal No. 447 of 1998 now remains
to be decided only against accused no. 1,2 and 4 respectively.
Learned
counsel for the appellant in Criminal Appeal No. 132 of 1998 has
assailed the judgment of conviction of accused no.3 on the grounds
that it is difficult to place reliance upon the testimony of the
complainant’s side that accused no.3 inflicted know (gupti) blow on
the chest of the deceased Vinodbhai.
That the learned
Judge, while examing the prosecution case as to the motive for
acused no.1 to 4 to commmit murder, clearly recorded a finding that
the evidence regarding motive agaist the accused no.1 to 4 is quite
weak.
Learned Judge also
found in respect to the so called discovery of kife that the said
evidence was not sufficient to connect the accused no.3 with the
crime.
That, Learned Judge
seriously erred in recording the finding of guilt of accused no.3,
more particularly when it was observed that ?S from the detailed
discussions of the prosecution eivdence it must be said without
any hesitation that the prosecution has not been able to prove
beyond any reasonable doubt that the accused no.3 is guilt of the
offence of murder.?S However learned Judge, while considering the
defence of the accused no.3 that he had inflicted one knife blow
to deceased in exercise of right of private defence during the
statement recorded under section 313 I.P. Code, proceeded to
examine the justification of causing such injury by giving knife
blow.
Shri Shah, learned
counsel has further argued that the learned trial Judge while
considering statement of accused no.3 recorded under section 313,
proceeded to observe that the accused no.3 had no such apprehension
at the stage when he inflicted vital blow on the chest of the
deceased Vinodbhai.
Learned trial Judge
seriously erred in not accepting the opinon of Dr. Parikh who had
performed the post mortem and came to the conclusion that the
injuries sustained by the deceased were all possible during the
course of struggle to snatch away the knife. The medical evidence
completely substantiate the case of defence and the statement of
accused no.3 about the circumstances in which he caused injury on
the deceased.
Shri Shah therefore
submitted that the judgment of conviction passed against accused
no.3 may be quashed & set aside.
Learned
APP Shri. Nanavati has urged that the trial Court has accepted the
story of the prosecution that the accused no.3 was the author of the
injury inflicted. In that light when there was only one knife
injury it can not be said that the deceased was not the aggressor.
In that background right of private defence could not be given to
the accused. In any case the appeal of the accused where in he has
challenged his conviction under section 304 Part-I is not liable to
sustain because it is clearly established that the accused was the
author of the injury.
Learned counsel for
the accused supported the findings of the trial Court and urged that
benefit of right of private defence has rightly been given on the
point of sentence. In his appeal he stressed that about 1 ½
years of confinement has been suffered by the accused. At such a
distance of time, he may not be sent again to jail since the
injuries are found to be in the right of private defence.
We
have heard the learned counsels and have given our thoughtful
consideration to the facts obtaining on record.
The
case as stated clearly show that it was not a case of
pre-meditation. When two parties enter into a quarrel and one has
the worse of it, it follow that neither of the party can be given
advantage of the situation.
The
evidence led by the prosecution has been held to be untrustworthy.
Both the parties entered into a fight on Panshop a common meeting
ground ? not a fighting ground. The parties were not going to a
point of no return. In fact it was a situation where temper rose on
the spur of the moment.
The findings of the
trial Court are thus not required to be disturbed, however with
some modification in sentence in respect of accused no.3. The
substantive sentence awarded to the accused No.3 – Parshottam Rama
( Appellant in Criminal Appeal No. 132 of 1988 ) under Section 304
Part-I is reduced to the period already undergone. Except the
above modification, rest of the judgment is maintained. The appeal
of the State being Criminal Appeal No. 447 of 1988 is dismissed in
entirely. The appeal of the accused being Criminal Appeal No. 132 of
1988 is allowed in part to the extent of sentence as indicated
above. Bail Bonds are cancelled. Registry is directed to send
record & proceedings to the trial Court forthwith.
[
BHAGWATI PRASAD, J ]
[
S.R. BRAHMBHATT, J ]
/vgn
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