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CR.A/2018/2005 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2018 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE V. M. SAHAI
=========================================================
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 ?
=========================================================
KHODABHAI
RAIJIBHAI RATHODIYA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
PRATIK B BAROT for
Appellant(s) : 1,
MR AJ DESAI, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE V. M. SAHAI
Date
: 03/02/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
1. The
appellant is convicted for the offence of murder of his wife, Sumiben
Khodabhai on 24.1.2005 at about 10.00 p.m.in their own house,
preceded by an altercation and a quarrel, by causing injury on the
head of the deceased with the help of a wooden log. The judgment was
rendered by the Sessions Court, Vadodara on 12.8.2005 in Sessions
Case No.95 of 2005.
2. The
brief facts of the case are as under:
2.1 The
appellant and his wife Sumiben were staying at their house located at
Juna Bazar area of village Karjan. They had led a married life of
about 10 years. On 24.1.2005, there was an altercation/quarrel
between them in which the appellant inflicted multiple blows with a
wooden log on his wife Sumiben, to which she succumbed. An FIR was
lodged with Dabhoi Police Station. The case was investigated and
charge sheet was filed in the Court of learned JMFC, Dabhoi. Learned
JMFC, Dabhoi, in turn, committed the case to a Court of Sessions, as
the case was triable exclusively by the Court of Sessions, where
Sessions Case No.95 of 2005 came to be registered.
2.2 Charge
was framed at Exh.2, to which, the accused-appellant pleaded not
guilty and claimed to be tried. Considering the evidence led by the
prosecution, the trial Court came to the conclusion that the
appellant was guilty of murder of his wife and, therefore, convicted
and sentenced him to undergo imprisonment for life vide judgment and
order dated 12.8.2005, as stated above and, hence, this appeal.
3. Learned
advocate Mr.Pratik Barot appearing for the appellant submitted that
looking to the evidence, facts and circumstances of the case, he does
not press for a clear acquittal. According to him the case depends
on circumstantial evidence and the circumstances would connect the
appellant with the death of the deceased and not for murder. He
submitted that the appellant had no motive worth the name for causing
death of the deceased. They had a married life of about 10 years,
during which, there had been no dispute or quarrel and there is no
allegation of any such nature against the appellant. It appears that
on the day of the incident, when both the appellant and his wife
deceased Sumiben were in their house, some dispute occurred and the
appellant picked up a wooden log and hit her causing injuries. It is
not a case of cold blooded murder and for that matter, it would be a
case for seeking clean acquittal when, in absence of motive, the case
depends on circumstantial evidence. However, Mr.Barot submitted that
in view of the fact that the incident had occurred in the late
evening and in the house of the appellant, where there was none other
than the appellant and his wife, he is unable to press for clean
acquittal. However, the appellant has a daughter aged about 15 years
to be looked after and the appellant repents of what has happened and
even the charge indicates that there was a quarrel between the
appellant and his wife. He, therefore, press for conviction for a
lesser offence and lesser punishment.
4. We
have examined the record and proceedings and also the evidence. While
learned advocate for the appellant is not disputing the involvement
of the appellant in the occurrence, the question that arises for
determination is whether the case of the appellant falls within the
definition of “murder” and not under homicidal death
amounting to murder.
5. The
case of the prosecution is that the period of married span is about
10 years and it is nobody’s case that their matrimonial life was
disturbed in any manner or that there had been quarrels quite often.
The charge sheet that is framed at Exh.2 goes to show that there was
an altercation/quarrel followed by beating the deceased with a wooden
log. The wooden log that was used is usually available in the house
of agriculturists as such wooden logs are used in bullock carts.
There is no direct evidence as to what had happened on the eventful
day and it is not known. There is no previous history of dispute
between the appellant and his wife except that, on that day, an
altercation for whatever reason had taken place and in such an
eventuality, possibility of the appellant having lost his control on
the spur of the moment and having beaten up the deceased cannot be
ruled out. In our opinion, benefit of the exceptions to Section 300
of IPC ought to have been extended to the appellant also when the
charge sheet is of a quarrel followed by the occurrence of the
incident. Under the circumstances, we find that the offence for which
the appellant can be convicted would be of a lesser nature, in the
sense that the offence would not be murder or but culpable homicide
not amounting to murder.
6. In
view of the fact that the incident has taken place in the house of
the appellant and only a blow by the wooden log was given on the head
of the deceased, which has resulted into the death of the deceased,
though multiple blows were inflicted on other parts of the body, the
ends of justice will be met if the appellant is convicted for the
offence of culpable homicide not amounting to murder punishable under
Section 304 of IPC and sentenced to undergo rigorous imprisonment for
seven years and to pay a fine of Rs.250/-, in default, to undergo
further simple imprisonment for one week.
7. In
the result, the appeal stands partly allowed. The conviction of the
appellant for the offence of murder punishable under Section 302 of
IPC as imposed by the trial Court vide judgment and order dated
12.8.2005 in Sessions Case No.95 of 2005 is altered to one punishable
under Section 304 of IPC. The appellant is ordered to undergo
rigorous imprisonment for seven years and to pay a fine of Rs.250/-,
in default, to undergo further simple imprisonment for one week.
(A.L.Dave,
J.)
Sreeram. (V.M.Sahai,
J.)
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