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CR.A/473/2005 6/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 473 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
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 ?
=========================================================
BHAYLALBHAI
MANGABHAI RATHWA - Appellant(s)
Versus
THE
STATE OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
MP SHAH for
Appellant(s): 1,MS. KRUTI M SHAH for Appellant(s) : 1,
MR HH
PARIKH ADDL. PUBLIC PROSECUTOR for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 29/04/2010
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellant is convicted by the Sessions Court, Chhota Udepur for the
offence of murder of one Kanaksing Bhimsing Rathwa by inflicting a
Dharia blow on the head of the deceased. The incident occurred on
12.7.2003 at about 2-30 PM at village Ghagharpura of Jetpur Pavi
taluka of Baroda district. The deceased happened to be the nephew of
the appellant. The appellant, Bhimsing, father of the victim, and
Khumansing are brothers and were having some disputes regarding land.
On the day of the incident, the appellant had gone to the house of
Amrutbhai Vechatbhai, who is also his nephew. The appellant,
Bhimsing, father of the deceased, and Vechatbhai were there. After
sometime Khumansing joined them. They had some discussion about the
property dispute, followed by an altercation, and then the fight. The
appellant was attacked upon with a wooden log by Bhimsing, whereas
his wife was attacked by Bhimsing, Kanaksing and Vijay. While the
episode was on, the appellant rushed to his house, which was located
at a short distance of about 70 feet, and came back with a Dharia and
inflicted a blow on the head of Kanaksingh, as a result of which,
Kanaksing fell down and the appellant went away. The deceased was
taken to hospital by relatives. From Jetpur Pavi hospital, he was
referred to SSG Hospital, Baroda, but while he was being taken to SSG
Hospital, Baroda, he succumbed to the injuries. An FIR was lodged by
Bhimsing Manga Rathwa. On the basis of the FIR, an offence was
registered by Jetpur Pavi police and investigated. Having found
sufficient material, a charge-sheet was filed in the Court of JMFC,
Chhota Udepur, who, in turn, committed the case of the Court of
Sessions.
2. Sessions
Case No.83 of 2003 was registered. Charge was framed against the
appellant at Exh.3 for the offence of murder and offence punishable
under Section 135 of the Bombay Police Act, to which he pleaded not
guilty and claimed to be tried.
3. The
trial Court having found that the charge of murder was proved,
convicted him for the same and sentenced him to undergo imprisonment
for life with a fine of Rs.1,000/-, in default, to undergo SI for
one month. He came to be acquitted for the offence punishable under
Section 135 of the Bombay Police Act. This appeal challenges the
judgment and order rendered by Sessions Court, Vadodara at Chhota
Udepur on 17.1.2005 in the said Sessions Case No.83 of 2003.
4. Incidentally,
the appellant lodged a cross complaint with Pavi Jetpur police
station in respect of this very incident and the police has
registered the offence and after investigating the same, filed
charge-sheet in the Court of JMFC, Chhota Udepur and is yet to be
committed and tried.
5. Learned
advocate Ms Shah for the appellant submitted that there are five
eye-witnesses to the incident and if their depositions are seen along
with the fact that the appellant has himself lodged an FIR in respect
of the same incident, it is difficult for her to press for a clean
acquittal or to press for non-involvement of the appellant in the
incident.
5.1 Ms
Shah, however, submitted that if the evidence of the eye-witnesses is
seen, it is clear that the appellant had gone to the house of his
nephew bare handed and had no weapon with him. Dispute, of course,
was there, which was sought to be solved with negotiations and, in
doing so, heat was generated. There was an altercation, followed by a
fight, where the appellant came to be assaulted upon with a wooden
log, so also his wife. This enraged the appellant and he, therefore,
rushed to his house located in a close proximity of the place of
incident, brought out a Dharia and inflicted a blow on Kanaksing, who
was actively participating in the incident, by pelting stones. The
appellant inflicted only one dharia blow. Unfortunately, the deceased
fell down and, ultimately, succumbed to the injuries. If the
appellant had any intention of causing death of the deceased, he
would have repeatedly inflicted the blows. The incident has,
therefore, occurred without pre-meditation, out of a quarrel and
fight. The intention of causing death of the deceased cannot be
attributed to the appellant and, therefore, the case would not fall
under Section 302 of IPC but his conviction may be altered to one
under Section 304 Part-II of IPC. Ms Shah, therefore, submitted that
the appeal may be allowed accordingly.
6. Learned
APP Mr Parikh has opposed this appeal. According to him, the
appellant had rushed to his house, and came back with a Dharia and
then inflicted a fatal blow on the deceased. The intention can be
inferred from the fact that he had rushed to his house, brought
Dharia, and caused fatal injury on vital part of the body of the
deceased, namely, head. According to Mr Parikh, therefore, this is a
clear case of murder and the trial Court is justified in convicting
the appellant for murder. The appeal does not call for any
interference in exercise of appellate jurisdiction. The appeal may,
therefore, be dismissed.
7. Ms
Shah is right when she contends that it is difficult for her to argue
for a clean acquittal or non-involvement of the appellant in the
incident. The prosecution has examined first informant Bhimsing Manga
Rathwa at Exh.7, Vijay Bhimsing Rathwa at Exh.10, Niruben Bhimsing
Rathwa at Exh.9, Ramesh Makabhai Rathwa at Exh.14 and Jayanti
Chhuniyabhai Rathwa at Exh.15.
7.1 These
are eye-witnesses to the incident and if their depositions are seen,
what emerges from their depositions as a whole, i.e.
examination-in-chief and cross-examination, is that the appellant had
gone to the house of his nephew Amrutbhai Vechatbhai. There all
brothers assembled, namely, Bhimsing, Khumansing and Vechatbhai. It
is also not in dispute that the brothers were having some dispute
over land. The discussion started and resulted into altercation. It
also emerges from the evidence of eye-witnesses that the appellant
and his wife both were assaulted upon by the others either with a
wooden log or with stones, as a result, the appellant rushed to his
house, brought a Dharia, and inflicted a blow on head of Kanaksing,
who was engaged in stone pelting. After the blow, Kanaksing fell down
and then was taken to the Community Heath Centre at Jetpur Pavi from
where he was referred to SSG Hospital, Baroda and died on the way.
The evidence of eye-witnesses also reveals that the appellant
inflicted only one blow on the head of the deceased. It also emerges
from the evidence that after the appellant inflicted a blow on the
deceased, he fell down and the episode stopped. Therefore,
necessarily, assault on the appellant and his wife was prior to the
appellant going to get the Dharia and inflicting the blow. One would
obviously be enraged if he and his wife both are assaulted upon by
others and same thing seems to have happened with the appellant. It
emerges from the evidence that they had assembled for negotiating
about the land dispute, which resulted into altercation, followed by
a fight and then the assault. There was no pre-meditation. The
appellant inflicted only one blow and cannot be said to have taken
any undue advantage of the situation. In our view, therefore,
Exception-4 to Section 300 would be attracted as all the ingredients
having been satisfied through the evidence of eye-witnesses.
8. Dr
Ramanlal Vaishnav is examined at Exh.25. He had performed the
post-mortem and prepared post-mortem notes at Exh.29. The post-mortem
notes indicate the cause of death to be extradural and subdural
hammertonea followed by incised wound on skull vacult. The doctor
also opined that the injuries were homicidal and were possible with
sharp cutting weapon. The injuries were ante-mortem and sufficient in
the ordinary course of nature to cause death.
9. In
light of the foregoing discussion, it is clear that there was no
intention on the part of the appellant to cause death of the deceased
and the offence of murder would not be constituted. It would be an
offence of culpable homicide not amounting to murder punishable under
Section 304 of IPC.
10. The
next question that arises for consideration is whether the case
would fall under Part-I or Part-II of Section 304 of IPC. According
to learned APP, it would fall under Part-I of Section 304, whereas
according to Ms Shah, it would be fall under Part-II of the said
section.
11. Considering
the evidence on record, it is clear that the appellant after being
assaulted, rushed to his house and brought Dharia. He inflicted only
one blow with Dharia on the head of the deceased, but the fact that
he used the Dharia and gave a blow on head of the deceased, which is
a vital organ, and considering the nature of injury, we are of the
view that the intention on the part of the appellant to cause injury
was with the knowledge that the act was likely to cause such bodily
injury as was likely to cause death and, therefore, the case would
fall under Part-I of Section 304 of IPC.
12.
The appeal would thus stand partly allowed. The appellant’s
conviction for the offence punishable under Section 302 of IPC is
altered to one punishable under Section 304 Part-I of IPC.
13. We
have heard both the sides on the quantum of punishment.
14. Ms
Shah submitted that the appellant is aged about 56 years and has a
wife, who is required to be looked after. His daughter, having
married, stays separately. Even otherwise, he is a poor man and,
therefore, minimum punishment may be inflicted.
15. Learned
APP Mr Parikh has opposed the submissions.
16. Having
regard to the facts and circumstances of the case, considering that
the conviction is altered from Section 302 to Section 304 Part-I of
IPC and the age factor of the appellant, social background, we are of
the view that ends of justice would be met if the appellant is
sentenced to undergo RI for 7 (seven) years with a fine of Rs.1,000/-
(Rupees one thousand), in default, SI for one month. The appellant
shall be entitled to the benefit of set off.
It
is directed accordingly.
(A.L.
DAVE, J.)
(BANKIM
N. MEHTA, J.)
zgs/-
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