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CR.A/557/2005 1/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 557 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================
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 ?
=========================================
THAKORE
GUGAJI CHANDUJI AND ANOTHER
Versus
THE
STATE OF GUJARAT AND ANOTHER
=========================================
Appearance :
MR
NASIR SAIYED for MR EE SAIYED for the Appellants
MR HH PARIKH,
ADDL. PUBLIC PROSECUTOR for the
Respondent
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 26/03/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. The
appellants convict have preferred this appeal challenging the
judgment and order of conviction and sentence passed by the learned
Addl. Sessions Judge, Fast Track Court No.3, Mehsana in Sessions Case
No.189 of 2004 convicting them for the offences punishable u/s 302,
323 and 504 r/w 114 of the IPC and section 135 of the Bombay Police
Act and sentencing them to undergo various sentences.
2. According
to the prosecution case, there were disputes of right of way between
the accused and the complainant. Keeping grudge thereof, on
25.6.2004 at about 18:00 hrs. when, Vina sister of the complainant
Jashwantji went to fetch water, accused Lakhaji and one Jitaji
Chanduji asked her not to come to fetch water and gave abuses.
Hence, Jashwantji and deceased Hamirji asked them not to give
abuses. Therefore, the accused got enraged and started beating Vina
with kicks and fist blows. Therefore, Jashwantji and deceased
Hamirji intervened. Accused Gugaji taking side of accused Lakhaji
brought stick and caused injury with stick blows on the head of
Hamirji. On account of the head injury, Hamirji died.
3.
On the basis of the first information report lodged by Jashwantji,
offence was registered and investigation was started. At the end of
investigation, charge sheet came to be filed against the accused for
the aforesaid offences. Jitaji Chanduji was also arrested in the
offence, but as he was a Juvenile, his case was transferred to the
Juvenile Court. As the offence against the appellants was triable by
the Sessions Court, the case was committed to the Sessions Court and
it was registered as Sessions Case No.189 of 2004. The learned
Additional Sessions Judge framed charge Exh-2 for the aforesaid
offences against the accused. The accused pleaded not guilty to the
charge and claimed to be tried. Therefore, the prosecution adduced
evidence. On completion of recording of evidence, the incriminating
circumstances appearing in the evidence against the accused were
explained to them. The accused in their further statement recorded
under section 313 of the Code of Criminal Procedure, 1973, stated
that they are innocent. The accused also filed written statement and
stated that Vina had relation with accused Lakhaji and therefore, his
mother had asked Vina not to come to fetch water and on the day of
incident, in the afternoon, there were heated exchanges between
Vinaben and mother of accused Lakhaji. Thereafter, in the evening,
Jashwantji and deceased Hamirji came with sticks and Jashwantji gave
a push with stick on the head of accused Lakhaji and deceased Hamirji
hit stick on the back of accused Gugaji. Thereafter, while going to
police station to lodge complaint in auto rickshaw on account of fall
from auto rickshaw, Hamirji sustained injuries and therefore, false
complaint is filed.
4. After
hearing the learned Additional Public Prosecutor and learned advocate
for the appellants accused, the trial Court recorded that the
prosecution has successfully proved the charge levelled against the
accused beyond reasonable doubt and therefore, convicted them as
mentioned hereinbefore. Being aggrieved by the said decision, the
accused have preferred this appeal.
5. We
have heard learned advocate Mr. Nasir Saiyed for Mr. EE Saiyed,
learned advocate for the appellants and learned APP Mr. Parikh at
length and in great detail. We have also perused the impugned
judgment and record and proceedings of the trial Court.
6. Learned
advocate for the appellants has not disputed the incident and has
submitted that on account of grave and sudden provocation, the
incident occurred and there was no intention on the part of the
accused to commit murder of the deceased and therefore, at the most,
the accused could be convicted for the offence under section 304
(Part II) of the IPC and therefore, the impugned judgment requires
interference.
7. As
against this, learned APP Mr. Parikh has submitted that there is no
evidence that there was grave and sudden provocation, but the
evidence indicates that the accused with pre-determined mind attacked
the deceased and caused his murder, therefore, the learned trial
Judge was justified in recording conviction for murder and no
interference is warranted in the impugned judgment.
8. The
evidence of PW 4 Dr. Yogesh Jadav Exh-13 indicates that the external
injury recorded in the postmortem note was possible by stick. The
postmortem report Exh-14 indicates the external injury and cause of
death was shock and hemorrhage due to head injury. This evidence
clearly indicates that the deceased died on account of head injury
and therefore, the death was homicidal in nature.
9. Now
as regards the nature of offence, the FIR lodged by Jashwantji
produced at Exh-37 indicates that there were disputes between the
accused and the complainant. It also indicates that before the
incident, there were heated exchanges between Vina and the accused
and hence, the complainant and his brother Hamirji intervened,
therefore, accused Gugaji Chanduji came running with the stick and
hit it on the head of Hamirji.
10. The
evidence of PW 5 Khodaji Gandaji Exh-16 also indicates that there was
scuffle and thereafter the incident ensued. It also indicates that
before scuffle there were verbal exchanges.
11. The
evidence of PW 3 Vina also indicates that accused Lakhaji gave her
kicks and accused Gugaji was not present, but as Jashwantji and
Hamirji intervened, he came there with stick and the incident
occurred.
12. In
view of above evidence, it clearly emerges that there was quarrel as
the accused asked Vina not to take water and accused Gugaji taking
side of accused Lakhaji came with stick and gave one blow on the head
of the deceased. It also appears that the other external injuries
indicated in the postmortem report were surgical wounds. Therefore,
death was resulted on account of one blow. The manner in which
incident occurred and the nature of weapon used in the offence, it
cannot be said that accused Gugaji with an intention to cause murder
of Hamirji attacked him. Therefore, the learned trial Judge
committed error in convicting accused Gugaji for the offence of
murder. As regards conviction of accused Lakhaji for the offence u/s
302 and 504 of the IPC, the evidence of PW 3 Vinaben indicates that
accused Lakhaji gave her kick and fist blows. The accused have not
challenged this version in the cross examination. It also appears
from her deposition that she has not deposed about the prosecution
case with regard to giving abuses. Analyzing the evidence, it
appears that he did not play any role in causing death of Hamirji.
Therefore, the learned trial Judge committed error in convicting the
accused for the offence u/s 302 and 504 of the IPC, but was justified
in convicting accused Lakhaji for the offence u/s 323 of the IPC.
13. As
regards conviction u/s 135 of the Bombay Police Act, no evidence with
regard to notification has been produced. Therefore, the learned
trial Judge committed error in convicting the accused for the offence
u/s 135 of the Bombay Police Act.
14. We
have heard learned advocate for the appellants and learned APP with
regard to sentence. Having regard to the evidence on record and
facts of the case, the conviction of accused Gugaji is required to be
altered from section 302 to section 304 (Part II) of the IPC and
conviction of accused Lakhaji u/s 302 of the IPC is required to be
set aside.
15. In
view of above, in our view, the learned trial Judge committed error
in convicting accused Gugaji Chanduji for the offence u/s 323 and
504 of the IPC and also u/s 135 of the Bombay Police Act and also
committed error in convicting accused Lakhaji for the offence u/s 302
and 504 of the IPC and also u/s 135 of the Bombay Police Act.
16. In
the result, the appeal is partly allowed. The conviction of
appellant accused No.1 Thakor Gugaji Chanduji recorded by judgment
and order dated 21.2.2005 passed by the learned Addl. Sessions
Judge, Fast Track Court No.3, Mehsana in Sessions Case No. 189 of
2004 for the offence punishable u/s 302 of the IPC is altered from
Section 302 of the IPC to Section 304 Part-II of the IPC and is
directed to undergo sentence of rigorous imprisonment for a period of
7 (seven) years and to pay fine of Rs.500/-, in default thereof to
undergo SI for 15 (fifteen) days. However, he is acquitted for the
offences u/s 323 and 504 r/w 114 of the IPC and also u/s 135 of the
Bombay Police Act.
As
regards the appellant accused No.2 Thakor Lakhaji Chanduji, his
conviction u/s 302, 114 and 504 of the IPC and also u/s 135 of the
Bombay Police Act is set aside. However, he is convicted for the
offence u/s 323 of the IPC and sentenced to undergo imprisonment for
1 (one) year and to pay fine of Rs.500/-, in default thereof, to
undergo SI for 15 (fifteen) days.
The
accused would be entitled for benefit of set off.
(A.L.
DAVE, J) (BANKIM.N.MEHTA, J)
shekhar/-
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