Gulal vs Unknown on 4 August, 2008

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CR.A/1363/2004	 9/ 9	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
APPEAL No. 1363 of 2004
 

 
 
For
Approval and Signature:  
 
HONOURABLE
MR.JUSTICE MD SHAH
 
 
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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 ?
		
	

 

=========================================================

 

GULAL
ZIMMARIA RATHVA - Appellant(s)
 

Versus
 

THE
STATE OF GUJARAT - Opponent(s)
 

=========================================================
 
Appearance
: 
MR
JM BUDDHBHATTI for
Appellant
 

MR UR
BHATT, APP for
Opponent 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE MD SHAH
		
	

 

				Date
: 04/08/2008 

 

 
 
ORAL
JUDGMENT

1. Heard
learned advocate Mr.J.M.Buddhbhatti who is appearing as amicus
curiae for the appellant-accused and learned APP Mr.U.R.Bhatt for
the opponent-State.

2. By
way of filing this appeal under Section 374 of the Cr.PC, the
appellant has challenged the judgment and order of conviction and
sentence dated 25.6.2004 passed by the learned Addl.Sessions Judge &
4th Fast Track Judge, Fast Track Court, Chhota-udepur,
against the appellant for the offence punishable under Section 304(2)
of IPC in Criminal Case No.77 of 2003 convicting and sentencing him
to undergo rigorous imprisonment of seven years and to pay fine of
Rs.1,000/-, in default, to further undergo rigorous imprisonment of
two months. The appellant was however, acquitted for the offences
punishable under Sections 302, 323 and 504 of IPC and Section 135 of
the Bombay Police Act. He was also given the benefit of set-off under
Section 428 of Cr.PC.

3. The
case of the prosecution is that, the complainant Lakhiben, now widow
of deceased Keslabhai Rathwa was residing at village Chichaba, Taluka
Kawant, Dist. Vadodara with her family. According to the
prosecution, the incident took place on 23.6.2003 at about 6.30 p.m.
when the complainant was at her house. Her husband Keslabhai was
standing in the open space nearby the house of the appellant,
Gulalbhai Zamariyabhai Rathwa. It is alleged that at that time,
Gulalbhai, appellant herein, asked the deceased Keslabhai, husband of
the complainant as to why the entire crop of Ladies Finger from his
land was collected instead of the crop from the portion of the
deceased and the appellant accused to abuse him and the wife of the
complainant restrained him from abusing and on saying so by the wife
of complainant, the appellant accused got infuriated and went to his
house and came with a ?SPaliya?? (Dinga) and inflicted a blow with
the blunt portion of the ?SPaliya?? on the head of the deceased.
She immediately snatched away the weapon from the appellant-accused
and thereafter, along with her husband, she went to Kawant Police
Station where she lodged the complaint. On the basis of the said
complaint, the offence was registered as Kawant Police Station
C.R.No.II-43 of 2003 for the offences punishable under Sections 323
and 504 of IPC and under Section 135 of the Bombay Police Act. On
24.6.2003, the injured died at SSG Hospital during treatment and
therefore, Section 302 of IPC was added and the report under Section
157 of Cr.PC was submitted before the Court. During the
investigation, statements of witnesses were recorded, Inquest
panchnama, panchnama of scene of offence and panchnama of recovery of
clothes as well as weapons were drawn; sample of blood from the soil
was collected and the muddamal items were sent to the Forensic
Science Laboratory (FSL) for analysis. It is the prosecution case
that the complaint Exh.36 was also recorded and the offence was
registered. The accused was also sent to hospital for treatment. At
the end of investigation, the charge sheet was filed as referred to
above. Since the court of learned JMFC has no jurisdiction to try
the case, it was committed to the Court of Sessions which was
numbered as Sessions Case No. 77 of 2003.

4. The
Charge was framed at Exh.4 against the present appellant-accused for
the offences punishable under Sections 302, 323, and 504 of IPC and
Section 135 of the Bombay Police Act. The appellant-accused denied
the charges and claimed to be tried.

5.
The further statement of the accused under Section 313 of Cr.PC was
recorded wherein also, the appellant accused submitted that he has
been falsely involved in committing the offence.

6. The
prosecution has examined the following witnesses:

PW-1
Lekhiben Keslabhai ? Exh.9

PW-2
Meeraben Keslabhai ? Exh.10

PW-3
Vesalbhai Amariyabhai Rathwa ? Exh.11

PW-4
Dr.Rajkumar Indradev Tiwari ? Exh.13

PW-5
Ranjanbhai Gordhanbhai ? Exh.19

PW-6
Rupjibhai Udariyabhai Rathwa ? Exh.23

PW-7
Natubhai Rataniyabhai Rathwa ? Exh.24

PW-8
Dr.Ashok Krishnalal Mahajan ? Exh.25

PW-9
Savjibhai Jerambhai Vakhariya ? Exh.32

PW-10
Dr.Atulbhai Prabhakarbhai Gupte ? Exh.44

7. The
prosecution also relied upon the following documents:

Complaint
of Lakhiben ? Exh.33

Medical
Certificate of Feslabhai ? Exh.14

Vardhi
of deceased Feslabhai ? Exh.34

Wireless
message for adding Sec.302 Exh.42

Police
Yadi for conducting inquest ? Exh.35

Inquest
Panchnama ? Exh.28

Panchnama
of scene of offence ? Exh.21

Police
Yadi for P.M. – Exh.27

P.M.Note
? Exh.26

Panchnama
of clothes on the dead body of deceased – Exh.29

Panchnama
of Health condition of the accused ? Exh.30

Recovery
Panchnama of Paliya ? Exh.38

Forwarding
note ? Exh.39

Receipt
? Exh.40

F.S.L.

Report ? Exh.41

Medical
Certificate of accused ? Exh.16

Panchnama
of place of offence ? Exh.30

Panchnama
of production of Paliya by Meeraben ? Exh.22

Production
of original F.I.R.(Accused)

F.I.R.

– Complainant (Lakhiben)

8.
The prosecution has examined PW-1-Lakhiben Keslabhai ? Exh.9, who
is wife of the deceased, and the complainant. She has deposed that
she along with her husband were walking towards their house and she
reached the house first. At that time, the appellant ? accused
inflicted blow on the head of her husband with Paliya and this
incident was happened in front of the house of the appellant-accused.
The appellant’s house is close to her house. She has deposed that the
incident took place at about 6 O’Clock in the evening. There was no
reason to inflict Paliya blow to her husband. Thereafter, she along
with some other persons took her husband to Kawant Hospital. She has
given the complaint about the incident at Kawant Police Station.
From Kawant Hospital, her husband was shifted to SSG Hospital
Vadodara for better treatment, accompanying him. She has stated that
during the treatment, her husband expired. She has identified the
appellant and the weapon used in the incident. In her cross
examination, she has stated that at first instance, she took her
husband in a ?SChakada?? directly to Kawant police station, where
she has lodged the complaint. She has stated that in her presence,
the police questioned her husband. She has further stated that she
reached the Police Station at about 7 O’Clock in the evening and
denied that they spent about one hour in the Police Station.
Thereafter, she has taken her husband to the hospital and the Doctor
on duty talked to her husband to which, her husband was giving
answer. Thereafter her husband was taken in a Govt. vehicle to
Vadodara and reached Vadodara at about 3 O’Clock in the early
morning. She has further stated that there was no accident or
anything happened during their travel from Kawant to Vadodara. The
Doctor had talked to her husband, but he was not in a position talk.
The Doctor gave her husband the necessary treatment, but he expired
on the next day at about 3 O’Clock in the afternoon. Her husband was
not in a position to talk till then. The statement was taken by the
police from her at about 6 O’Clock, after the death of her husband.
She has denied that the appellant-accused had drunk and was in an
inebriated condition at the time of incident. She has admitted that
she has given the statement that on the day of incident at about 6
O’Clock, she was at her house and her husband was standing in the
front side of the appellant’s house, which is nearby her house. She
has also admitted that it is true that she has written in the
complaint before the police that at the time of incident, the
appellant had asked him as to why the crop of Ladies Finger had been
collected. She has stated that she has been watering Ladies Finger
grown at the portion of her land only and not in the portion of the
appellant.

6. I
have heard learned advocate Buddhabhatti, who is appearing as amicus
curiae, appointed through Legal
Aid Committee, on behalf of the appellant-accused and learned
APP Mr.U.R.Bhatt.

7. Learned
advocate Mr.Budhhbhatti has taken this Court through the entire
evidence on record and submitted that taking into consideration the
cross complaint which is produced at Exh.36, the presence of the
present appellant-accused was well established by the prosecution.
He submitted that taking into consideration the complaint which is
produced at Exh.33, it seems that a quarrel had taken place in
connection with the collection of crop of Ladies Finger alone by the
complainant’s husband. As per the PM report also, which is produced
as Exh.26, only one injury is found on the head of the deceased on
the left-hand side temporal region and fracture was there. It has
also come in evidence that, firstly, the injured along with his
wife-complainant had gone to Police Station instead of going to
hospital and the complaint was lodged by the complainant. So, cross
complaint Exh.36 clearly suggests that all of a sudden the quarrel
had taken place and accused as well as the deceased both were injured
in the scuffle, but as a result of the same, deceased received
somewhat serious injury. Therefore, the trial Court has rightly
convicted the accused for the offence punishable under Section 304(2)
of IPC. He further submitted that the appellant-accused is in jail
since more than 8 years, and a poor person having no criminal
antecedents and hence, the appeal is required to be allowed
considering the peculiar facts and circumstances of the case.

8. The
witness Meeraben Keslabhai – PW-2 ? Exh.10 has also stated in her
deposition the same story as per that of the complainant Lekhiben.
She has also identified the accused as well as the weapon used in
committing the offence. Same is the position with witness PW-3
Vesalbhai Amariyabhai Rathwa ? Exh.11. So also, the evidence of
other witnesses is of somewhat similar nature, though there are
certain minor contradictions.

9. Considering
the above, the appeal deserves to be allowed and it is hereby partly
allowed. So far as the judgment and order of conviction and sentence
dated 25.6.2004 passed by the learned Addl.Sessions Judge & 4th
Fast Track Judge, Fast Track Court, Chhota-udepur, against the
appellant for the offence punishable under Section 304(2) of IPC in
Criminal Case No.77 of 2003 is concerned, while confirming the order
of conviction, the order of sentence is modified and reduced to the
extent that the period of sentence which the appellant-accused has
already undergone be treated as the sentence imposed upon him. The
appellant-accused is ordered to be released forthwith. Bail bond, if
any, shall stand cancelled.

(M.D.Shah, J.)

Sreeram.

   

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