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CR.A
1535/2003 Order dated 25/10/2005
Page # 14
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1535 of 2003
With
CRIMINAL
APPEAL No. 290 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.S.SHAH
and
HONOURABLE
MR.JUSTICE D.H.WAGHELA
===========================================================
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 ?
===========================================================
MANOJ
@ LATIF SHRILAL - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
===========================================================
Appearance :
MR
PARESH UPADHYAY with MR VAIBHAV A VYAS for Appellant(s) : 1,
MR RC
KODEKAR APP for Opponent(s) :
1,
==========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.S.SHAH
and
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 25/10/2005
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE M.S.SHAH)
Both these appeals are
directed against the judgment and order dated 16.10.2003 passed by
the learned Principal Judge, City Sessions Court, Ahmedabad in
Sessions Case Nos.80 and 81 of 2002 convicting the appellants for the
offence punishable under 302 read with Section 34 IPC and sentencing
them to life imprisonment and also sentencing them to pay fine of
Rs.5,000/- each in default rigorous imprisonment for three months.
2. The prosecution case,
briefly stated, is that on 24.10.2001 at about 11.00 PM the
appellants herein (hereinafter referred to as accused Nos.1 and 2)
and four other accused (accused Nos.3 to 6) were moving from
Nehrunagar Cross Roads after watching garbas. At that time the
accused were teasing and gesticulating before Chetnaben wife of
deceased Narendrabhai Patel. Hence, the complainant (cousin brother
of the deceased) and the deceased had scolded the accused for teasing
Chetnaben. Thereupon all the six accused abused the deceased and
assaulted the deceased and thereby committed the offence punishable
under Sections 504, 352 and 114 IPC. The accused were further
charged with the common intention of causing the death of deceased
Narendrabhai. All the accused had surrounded the deceased and accused
No.1 snatched the knife from the waistband of accused No.2 and
inflicted a blow on the left thigh near the private part of the
deceased. Since the people in the vicinity gathered together, the
accused ran away after leaving the car on the spot. In the course of
the treatment, the deceased succumbed to the injuries. The accused
were, therefore, charged with the offence punishable under Section
302 read with Section 114 and 34 IPC. Accused Nos.1 and 2 were also
charged with the offence punishable under Section 135(1) of the
Bombay Police Act, 1951 for using and carrying a knife in violation
of the notification under the Bombay Police Act, 1951. Accused No.1
was also charged with the offence punishable under Sections 141 and
142 of the Bombay Police Act for entering the city of Ahmedabad in
violation of the externment orders dated 14.3.2001.
3. The accused pleaded
not guilty and they were all tried by the City Sessions Court at
Ahmedabad. Since accused No.6 had absconded, he was tried separately
in Sessions Case No.81 of 2002 and accused Nos.1 to 5 were tried in
Sessions Case No.80 of 2002.
4, The prosecution led
the following evidence :-
PW 1 Complainant
Rakeshbhai Ghanshyambhai Patel, Exh.15, cousin brother of the
deceased who was also travelling along with the deceased on a
separate scooter.
PW 20 Chetnaben
Narendrabhai Patel, Exh.70, wife of the deceased, who was also
accompanying the deceased on the same scooter.
PW 17 Asmiben
Rakeshbhai Patel Exh.63 wife of the complainant who was also
travelling along with the complainant on the same scooter.
PW 19 Dr Rohit
Chimanlal Jariwala, Exh.67, Assistant Professor of Forensic Medicine
at the VS Hospital who performed the post-mortem and submitted the
report Exh.68.
The prosecution also
examined PW 22 Ashokbhai Ishwarbhai Patel Exh.74, Circle Inspector
who prepared the map of the scene of offence, the panch witness, and
also the panch witnesses for the panchnama for the scene of offence
and arrest panchnama were examined. The Investigating Officer and the
police witnesses were also examined.
5. After considering the
oral and documentary evidence on record, the learned Sessions Judge
gave the finding that while the involvement of accused Nos. 5 and 6
was not proved beyond reasonable doubt, the presence of accused
Nos.1 to 4 was proved beyond reasonable doubt, but the evidence on
record did not implicate accused Nos.3 and 4 for the offence in
question. In view of the teasing and gesticulating the deceased
asked complainant Rakeshbhai to stop their scooters and to wait for
the accused coming in the Fiat car and they made the Fiat car stop
and scolded the accused for teasing the wife of the deceased. The
learned Sessions Judge came to the conclusion that after that
altercation, accused No.1 snatched the knife from the waistband of
accused No.2 and inflicted forcefully a knife blow on the thigh of
the deceased near his private part, which resulted into rupture of
femoral artery and, therefore, accused No.1 had intended to cause the
injury which was sufficient in the ordinary course of nature to
result into death and, therefore, accused No.1 was guilty of the
offence punishable under Section 302 IPC. The learned Sessions Judge
also held that since accused No.2 was carrying a knife with him and
allowed accused No.1 to use the knife for inflicting such injury
which was sufficient in the ordinary course of nature to result into
death of the deceased, accused No.2 was also guilty of the offence
punishable under Section 302 read with Section 34 IPC. Accordingly,
both the accused came to be sentenced to suffer life imprisonment. It
is against the aforesaid judgment that two separate appeals are filed
by accused Nos.1 and 2.
6. Mr Paresh Upadhyay,
learned counsel for the appellants has made the following submissions
:-
(i) Even as per the
prosecution case, the incident took place when the deceased and the
complainant with their family members were returning from their
native place at about 11.00 PM on 24.10.2001 and the accused were
returning after watching garbas during Navratri festival. The
deceased and the accused had never known each other previously.
According to the prosecution case, the incident occurred on account
of teasing of the wife of the deceased which led to the altercation
and the sudden fight. Hence there was no question of premeditation on
the part of the accused. Only one knife blow was given by accused
No.1 and that too on a non-vital part of the body of the deceased
and, therefore, the accused had not acted in a cruel manner. After
inflicting one blow on the deceased, the accused ran away and there
was no question of the accused having taken any undue advantage or
acted in a cruel or unusual manner. Hence all the ingredients of
Exception 4 to Section 300 were satisfied and the case clearly went
out of Section 300.
(ii) At the most, the
case would fall under Section 304 Part II because the accused had no
intention of causing the death or causing any injury which would be
sufficient in the ordinary course of nature to result into death.
The knife blow was not given on any vital part of the body like head,
chest or abdomen. Even according to the medical evidence, a
non-medical person would not have known that the knife blow on the
part between private part and the thigh of a person would result into
rupture of the femoral artery and, therefore, even if the knife blow
was intended to be given by accused No.1 on that part of the body
where it landed, the accused did not have any intention or even
knowledge as contemplated by Section 304 Part I or 304 Part II.
Reliance is placed on
the following decisions:-
(i) 1986 GLH 715
(ii) AIR 1983 SC 463
(iii) 1981 GLH 500
(iv) AIR 1968 SC 867
(v) 1994 Cr.LJ 3019
(vi) AIR 1995 SC 2452
(vii) 1993 (1) GLH 382
(SC)
(viii) AIR 1981 SC 1441
(ix) AIR 1996 SC 3513
7. On the other hand, Mr
Kodekar, learned APP has submitted that the accused were travelling
in the Fiat car and following the deceased and his wife for the
purpose of teasing and when the deceased scolded them for doing so,
the accused came out of the car and accused No.1 inflicted the knife
blow on a vital part of the body of the deceased. Hence, the case
did fall under Section 300 clause thirdly and that the learned
Sessions Judge rightly convicted both the accused for the offence
punishable under Section 302 read with Section 34.
8. Having heard the
learned counsel for the parties, we find considerable force in the
submission made on behalf of the accused that even as per the
prosecution case, the act of accused No.1 inflicting the knife blow
on the body of the deceased was not a premeditated one. It appears
from the map of the scene of the offence Exh.76 (Page 649) that the
distance between Nehrunagar circle from where the accused are stated
to have started teasing the wife of the deceased and the place of the
incident was only 500 mts. as per the deposition of PW 22 Ashokbhai
Ishwarbhai Patel at Exh.74. Hence, even going by the prosecution
case, the accused were moving in the Fiat car and the deceased and
his wife had travelled the said distance on the scooter and,
therefore, very short time must have elapsed during which the teasing
took place or continued. Hence when the deceased asked the Fiat car
driver to stop the vehicle and scolded the accused sitting in the car
for teasing his wife, even as per the prosecution witnesses the
altercation and the sudden assault by accused No.1 on the deceased
took place within a matter of a few minutes. It is, therefore, not
possible to accept the prosecution plea that accused No.1 or any
other accused had entertained any intention of causing the death of
the deceased or of causing any injury, which would be sufficient in
the ordinary course of nature to cause the death of the deceased.
There is also no dispute about the fact that only one knife blow was
given on the spot between the private part and thigh of the deceased
and the accused had thereafter run away. The accused had also not
inflicted any knife blow nor had they launched any assault on any
other prosecution witnesses who were accompanying the deceased.
Therefore, the accused cannot be said to have taken undue advantage
or having acted in a cruel or unusual manner. It is true that from
the evidence on record it transpires that the accused had indulged
into the teasing of the wife of the deceased, but as per the
Explanation to Exception 4, it is immaterial in such cases which
party offers the provocation or commits the first assault and,
therefore, the act committed by accused No.1 in a sudden fight in the
heat of passion upon a sudden quarrel without premeditation fell
under Exception 4 to Section 300.
9. The next question is
as to which offence is committed by accused No.1. Although initially
the learned counsel for the appellants sought to contend that even
accused No.1 could not be guilty of any offence other than Section
324 or 326, in view of the law laid down in several decisions of this
Court and the Apex Court, and particularly the decision of this Court
in Jabbar Suleman Dhoka vs. State of Gujarat, 1986 GLH 715, the
learned counsel for the appellants submitted that the only offence
committed by accused No.1 fell under Part II of Section 304 IPC.
10. On the other hand,
the learned APP submitted that accused No.1 did have the intention of
causing such a serious injury on the deceased that the case would
fall under Part I of Section 304 IPC.
11. Having heard the
learned counsel for the parties at length and having gone through the
evidence on record including the medical evidence of PW 19 Dr Rohit
Chimanlal Jariwala Ex.67 clearly stating that the deceased had
sustained an external injury 4 cms. X 2 cms. on the left thigh which
cut through the skin subcutaneous tissue, the muscles in front of
the femur bone and the left femoral artery and that a person not
knowing medical science would not know where the femoral artery is
situate or its importance, we are of the view that accused No.1
cannot be said to have entertained any intention to cause an injury
which would be sufficient in the ordinary course of nature to cause
the death. As held by this Court in Jabbar Suleman Dhoka (supra),
looking to the nature of the weapon used by the accused and
considering the fact that the blow was given on the thigh of the
deceased, it can at the most be said that the accused had knowledge
that by his act death may be the result and, therefore, the case
would fall under Section 304 Part II.
12. Coming to the
question of sentence, as far as accused No.1 is concerned, Mr
Upadhyay learned counsel for the appellants submitted that in a
series of decisions where conviction is under Section 304 Part II,
the usual sentence is for a period of five years.
On the other hand, Mr
Kodekar, learned APP submitted that apart from the nature of the
injury resulting into the death of the deceased, the previous conduct
of the accused is also a relevant factor while deciding the quantum
of sentence and that since accused No.1 and his associates are shown
to have indulged into teasing the wife of the deceased, which
naturally provoked the deceased into scolding the accused, instead of
being apologetic for their conduct, the accused and particularly
accused No.1 had gone to the extent of inflicting fatal knife injury
on the deceased and, therefore, the maximum sentence of ten years
should be imposed on accused No.1.
13. Though a reference
was made to the charge of accused No.1 having violated the externment
order passed under the Bombay Police Act, since no such notification
was produced on the record of the proceedings, the learned trial
Judge did not record any conviction of accused No.1 for the offence
punishable under the Bombay Police Act. However, taking an overall
view of all the relevant facts and circumstances of the case
including the previous conduct of accused No.1 which resulted into
the altercation, we are of the view that the interest of justice
would be served if accused No.1 is sentenced to suffer rigorous
imprisonment for a period of seven years and to pay fine of
Rs.5,000/- already imposed by the learned trial Judge.
14. Coming to the case
of accused No.2, while the acts or omission on his part may be
morally reprehensible, we are unable to confirm the view of the
learned trial Judge that accused No.2 was guilty of any offence
punishable under Section 302 or even 304 Part II read with Section
34. It is true that if carrying a knife was in violation of the
provisions of the Bombay Police Act, 1951, accused No.2 could have
been convicted for the said offence but even as per the prosecution
case, accused No.2 had not given or offered the knife lying with him,
but it was accused No.1 who snatched the knife from the waistband of
accused No.2. In the above view of the matter also in view of our
finding that the act committed by accused No.1 was not a premeditated
one and that even the assault on the deceased by the accused was not
a premeditated one, it is not possible to convict accused No.2 for
any offence of culpable homicide with the aid of Section 34 or
Section 114 IPC or any other provision of IPC fastening vicarious
liability on the accused. Even so, in the background of the facts
narrated hereinabove and in absence of any explanation as to why
accused No.2 was carrying a knife of 16.5 cms. Length and 2.8. cms of
width and the fact that accused No.2 did not himself use the knife
but went out of the car along with accused No.1 for assaulting the
deceased, it appears to us that accused No.2 was guilty of the
offence punishable under Section 326 read with Section 34 IPC as
infliction of the knife blow on the deceased was likely to put in
danger life of the deceased.
15. Coming to the
question of sentence for accused No.2 since accused No.2 is held to
be only vicariously liable even for the offence punishable under
Section 326 and since the said accused has already undergone the
sentence for 3 years and 11 months and is on the verge of completing
four year of imprisonment within a week, we are of the view that
interest of justice would be served if accused No.2 is sentenced to
suffer imprisonment already undergone.
16. In
view of the above discussion, both the appeals are partly allowed.
The conviction of accused No.1 ? Nimesh alias Gattu Nandlal for the
offence punishable under Section 302 read with Section 34 IPC is
altered to conviction for the offence punishable under Section 304
Part II IPC. Accused No.1 is sentenced to suffer imprisonment for a
period of 7(seven) years and to pay fine of Rs.5,000/- (Rupees five
thousand), in default simple imprisonment for one year.
The
conviction of original accused No.2 ? Manoj alias Latif Shrilal for
the offence punishable under Section 302 read with Section 34 IPC is
altered to conviction under Section 326 read with Section 34 IPC.
Accused No.2 is sentenced to suffer the period of imprisonment
already undergone by him. Accused No.2 Manoj alias Latif Shrilal is,
therefore, ordered to be set free immediately unless required in any
other case for any other offence.
(M.S.
SHAH, J.)
(D.H.
WAGHELA, J.)
zgs/-
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