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CR.A/909/2002 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 909 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================
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 ?
=========================================
ARVIND
MANSUKH MAKWANA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MS
J.R.ACHARYA for Appellant
MR LB DABHI, ADDL. PUBLIC PROSECUTOR for
Respondent
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 22/02/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellant came to be tried by Sessions Court, Junagadh for the
offence of murder of Nirmalaben, wife of Jagdish Shantilal Solanki,
by entering into her house located at Raghuvir Society of Junagadh,
on 11.2.1998 at about 13:00 hours and came to be convicted therefor
by judgement and order dated 16th July 2002 in Sessions
Case No.65 of 1998.
The
brief facts of the case are that the appellant and deceased
Nirmalaben were in an affair for a long time. Somehow, the victim
refused to continue the relationship which annoyed the appellant.
He, therefore, went to her house at 13:00 hours on 11.2.1998 and
inflicted a knife blow on right side of the chest of the victim,
which ultimately resulted into her death. The incident was seen by
the children of the victim. On the victim and the children raising
alarm, the neighbours arrived and the appellant was caught in the
process of escaping. The victim was taken to the hospital, where
she gave history to the doctor, whereafter her dying declaration was
recorded by the Executive Magistrate. Her FIR was also recorded by
police. In the history to the doctor as well as in the FIR and the
dying declaration, she has implicated the appellant. The police
filed chargesheet against the appellant in the Court of the learned
Chief Judicial Magistrate, Junagadh, who in turn committed the case
to the Court of Sessions, and Sessions Case No.65 of 1998 came to be
registered.
(2.1) Charge
was framed against the appellant accused at exh.1 for the
offences punishable under Sections 452 and 302 of Indian Penal Code,
to which he pleaded not guilty and came to be tried. The Trial
Court convicted him for both the offences and sentenced to undergo
imprisonment for rigorous imprisonment for a period of five years
with a fine of Rs.500/-, in default, to undergo rigorous
imprisonment for one month for the offence punishable under Section
452 of IPC, whereas he came to be convicted for a lesser offence
punishable under Section 304 Part-I of IPC and sentenced to undergo
imprisonment for life with a fine of Rs.1,000/-, in default, to
undergo rigorous imprisonment for two months. The sentences were
ordered to run concurrently and hence, this appeal.
We
have heard learned advocate Ms.J.R.Acharya for the appellant and
learned Additional Public Prosecutor Mr.L.B.Dabhi for the State.
Learned
advocate for the appellant submitted that it would not be possible
to assail the judgement on question of involvement of the appellant
in the incident considering the quality of evidence led by the
prosecution. However, the Trial Court erred in convicting the
appellant for offence punishable under Section 304 Part-I of IPC, it
should have been under Section 304 Part-II of IPC. In order to
support this contention, our attention is drawn to the fact that the
knife which is allegedly used by the appellant in commission of the
crime is an ordinary domestic kitchen knife. The blow was given on
provocation. Only one blow is given. The appellant and the victim
had been maintaining relations for a long time and suddenly, the
victim refused to continue with the relationship which may have
agitated the appellant, whereupon he got provoked and assaulted the
victim. The assailant cannot be considered to be with an intention
for the reason that he has given only one knife blow. It was,
therefore, submitted that the conviction may be altered from one
punishable under Section 304 Part-I of IPC to one punishable under
Section 304 Part-II of IPC, and sentence may appropriately be
reduced. The appellant is in jail for a long time and therefore,
the sentence already undergone may be considered as adequate for the
purpose. The appeal may, therefore, accordingly, be allowed.
The
learned Additional Public Prosecutor Mr.Dabhi has opposed the
appeal. According to him, the knife, though may be a domestic one,
its size is not so small. The blow is given on vital part of the
body, which has resulted into injury to the liver. The version of
the eye-witness child only indicates that the appellant came, around
that time the victim came out of the bathroom after cleaning vessels
and the appellant inflicted knife blow. As such, there was no
provocation by the deceased and therefore, the appeal may be
dismissed.
We
have considered rival side submissions and have examined the record
and proceedings in that context.
The
involvement of the appellant in the incident is not in dispute, and
rightly so in our opinion. The evidence of eye-witness Kaushik
Rajeshbhai Solanki, exh.31 clearly implicates the appellant. The
witness is subjected to cross-examination in detail, but nothing
turns on it. No material contradiction, omission or improvement is
indicated to render the deposition doubtful.
(7.1) In
support of evidence of Kaushik Rajeshbhai Solanki, there is evidence
in form of the dying declaration, exh.26, recorded by witness
Maheshbhai Bhikhabhai Dafda, Executive Magistrate, at exh.24. The
deposition indicates that no doubt about the genuineness of
recording of the dying declaration can be raised. He took all
precautions before recording dying declaration as to conscious and
fit state of mind of the declarant, the victim and then, the dying
declaration clearly implicates the appellant. In view of the
evidence of Kaushik Rajeshbhai Solanki, no doubt can be raised about
truthfulness of the dying declaration either. In our opinion,
therefore, learned advocate for the appellant is justified in not
disputing the involvement of the appellant in the incident.
It
would be whether relevant to examine the genesis of the incident or
how the incident occurred. In this context, the evidence of a child
witness Kaushik Rajeshbhai Solanki, exh.31, is relevant. He says
that he had not gone to the school as there was a meeting of the
teachers. His father had gone to work. He came back for lunch at
about 12:00 hours noon and left for work at about 12:30 p.m.
Witness says that he was playing with his sister Guddi on the cot
which is in the room. Then one person came into the room. Around
that time, his mother came to the room from bathroom after cleaning
vessels and the person inflicted knife blow on her chest. His
mother was pushed on the cot. From the bleeding from her chest,
there are marks of blood on the cot and on the floor. The man who
had assaulted, tried to escape, but was caught by Pathakbhai and
others. The witness has been cross-examined at length, but no
question is put on his version about the incident, nor even a
challenge is made to his version about the incident. The dying
declaration was recorded by Maheshbhai Bhikhabhai Dafda, Executive
Magistrate, at exh.24. In that dying declaration also, she has
stated that she was maintaining an affair with the
accused-appellant. When she refused to continue the relationship
and asked him not to go to her place, he got provoked and inflicted
knife blow on her chest.
From
the ocular evidence as well as documentary evidence, contemporaneous
in nature in the form of FIR and dying declaration, we find that the
appellant went to the house of the victim at about 13:00 hours of
the day when ordinarily no male could be at home. After entering
the house, there is one version which says that he inflicted knife
blow straightaway. That version has remained unchallenged. There
is another version which says that, because the victim refused to
continue with the relationship, he inflicted knife blow. But the
fact remains, he went to the house of the victim with a knife and
inflicted the blow upon the victim, which resulted into her death.
The size of the blade of the knife was about 14 cm x 2.5 cm. The
blow is given on the chest which has resulted into a deep injury
damaging the liver.
If
all these factors are taken collectively, we are of the view that
the argument that the case would fall under Section 304 Part-II of
IPC, cannot be accepted. It is difficult to attribute mere
knowledge that the injury caused by the appellant was likely to
cause death of the victim in light of the above evidence. The State
has not preferred any appeal to challenge acquittal under Section
302 of IPC. Under the circumstances, in our view, the conviction of
the appellant or the sentence does not call for any interference in
exercise of appellate jurisdiction. The act on the part of the
appellant of entering the house with a knife and inflicting the blow
on vital part of the body of the deceased with that knife with a
force that the knife went deep into thoracic cavity and damaged the
liver, resulting in her death, cannot be considered unintentional.
In the circumstances, the submission that conviction under Section
304 Part-I of IPC is not sustainable, cannot be accepted.
It
was argued that the sentence awarded by the Trial Court of
imprisonment for life is too harsh and may be reduced. In this
context, in our view, considering the circumstances in which the
incident has occurred, namely, the appellant entering the house of
the victim and inflicting knife blow on her chest, either for no
reason or for her refusing to continue illicit relationship with the
appellant, would not justify any assault, least a life-taking
assault on part of the appellant. The sentence awarded, therefore,
does not call for any interference at our end.
The
appeal, therefore, must fail. Stands dismissed. The judgement and
order dated 16th July 2002 rendered in Sessions Case
No.65 of 1998 by the Sessions Court, Junagadh, is hereby confirmed.
[A.L.DAVE,
J.]
[HARSHA
DEVANI, J.]
parmar*
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