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CR.A/9919/1998 6/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No.99 of 1998
With
CRIMINAL
APPEAL No.137 of 1998
For
Approval and Signature:
HONOURABLE
MR. JUSTICE BHAGWATI PRASAD
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?
==========================================================
SAJAN
HUSEN - Appellant
Versus
STATE
OF GUJARAT - Respondent
==========================================================
Appearance :
MRS
SHILPA R SHAH for Appellant.
MR MAULIK
NANAVATI, APP for
Respondent.
==========================================================
CORAM
:
HONOURABLE
MR. JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR. JUSTICE BANKIM N. MEHTA
Date
: 14/10/2008
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR. JUSTICE BHAGWATI PRASAD)
These
two appeals have been filed challenging the judgment and order dated
02.01.1998 passed by the learned Additional Sessions Judge
(Atrocity), Special Court, Kutch-Bhuj in Special Case No.126 of 1997
whereby the Special Court has convicted the appellants of both the
appeals for the offence punishable under Section 302 read with
Section 114 of the Indian Penal Code [?SIPC?? for short] and
sentenced them to suffer life imprisonment and imposed fine of
Rs.5000=00 each, in default S.I. for six months.
2. Briefly
stated the case of the prosecution is that two years prior to the
incident of 13.02.1997, a quarrel had taken place between the
deceased Harijan Vajabhai and the present appellants over fence
allegedly put up by the appellants outside their hut in the slum
behind Cargo Petrol Pump. As a result of the said quarrel, the
relationship between the deceased and accused had become bitter. On
13.02.1997, at about 6.00-6.30 p.m., the accused persons had an
altercation with deceased Harijan Vajabhai Bhavabhai outside their
slum quarters; abuses were hurled by the accused and the deceased;
and the accused thereafter getting enraged gave one blow each with
the wooden-log on the face and head of the deceased. The accused
Suleman Husain gave a blow on the head of Vajabhai and accused Sajan
Husain gave a blow on the face of Vajabhai. Because of the injuries
caused by the said blows, Vajabhai died and a case of offence under
Section 302 IPC came to be registered against the present appellants.
It was also the case of the prosecution that deceased Vajabhai
belonged to Scheduled Caste and the appellants gave him castiest
abuses. Therefore, a charge under Section 3(2)(5) of the The
Scheduled Castes & The Scheduled Tribes (Prevention of
Atrocities) Act, 1989. The trial Court after appreciating the
evidence led by the prosecution found the appellants guilty of the
offence punishable under Section 302 IPC, but acquitted them of the
charge under the Atrocities Act.
3. Heard
Ms.Shilpa Shah, learned advocate for the appellants-accused in both
the appeals and Mr.Maulik Nanavati, learned Additional Public
Prosecutor for the respondent-State. They have also taken us through
the entire record of the trial Court.
4. Ms.Shah,
learned advocate for the appellants, argued at length, inter alia,
contending that most
of the witnesses examined by the prosecution including the
complainant ? Babu Kaya Harijan have turned hostile and not
supported the case of the prosecution. Each of these witnesses has
stated in their evidence that they reached the place of the offence
only after the deceased had fallen on the ground and that they have
not seen the actual commission of crime. Only two witnesses, P.W.-6
Velabhai Maheraman (uncle of deceased) and P.W.-8 Lakhibai Vajabhai
Harijan (wife of deceased) have supported the case of the
prosecution. However, she has submitted that neither of these two
witnesses had actually witnessed the incident and had come at the
place of the offence only after the deceased had fallen on the
ground. Even otherwise, being close relatives of the deceased, they
are interested witnesses and, therefore, also their evidence should
not be believed. She has also pointed out that there are several
contradictions and omissions in the evidence of these two witnesses
and there is no grain in their evidence which can form the basis of
the conviction and, therefore, the conviction of the appellants is
unsustainable.
5. On
scrutinizing the evidence of these two witnesses, we are not in a
position to accept the said submissions of the learned counsel. So
far as the assault on the deceased by the appellants is concerned,
the evidence of these two witnesses has remained unchallenged and on
the other hand, it gets corroboration from the evidence of the
doctor, who conducted the postmortem examination of the deceased.
6. It
is true that the complainant? Babubhai Kaya has turned hostile, but
in his cross-examination by the learned Prosecutor, he has admitted
to have given the complaint. As far as witnesses Vela Maheraman
(P.W.-6) and Lakhibai Vajabhai Harijan (P.W.-8) are concerned, though
they are related to the deceased, on this ground alone their evidence
cannot be discarded. Both these witnesses have stated about the
manner in which the incident had happened; the role played by the
accused and how the deceased was transferred to the hospital from the
place of incident. Nothing has been brought out in the
cross-examination, which would render their evidence doubtful or
incredible. On the contrary, we find that their evidence is
trustworthy and inspires confidence.
7. Ms.Shah,
learned advocate for the appellants, then urged that even if the
prosecution has been able to establish that appellant? Suleman
Kumbhar gave a blow on the head of the deceased and appellant? Sajan
Husen gave a blow on the face of the deceased, the evidence led by
the prosecution unhesitantly and unequivocally points out that the
accused never came with the intention of killing the deceased though
ultimately on account of certain hot exchange of words between the
deceased and the accused, the appellants gave blows with the
wooden-log and, therefore, the conviction will not be one under
Section 302 IPC but one under Section 304 IPC.
8. The
learned counsel appearing for the State on the other hand contended
that looking to the severity of the blow and the situs of the body
of the deceased where the blow was given, conclusively indicates the
intention, the same being to cause the murder and, thus, the offence
under Section 302 IPC.
9. To
appreciate the correctness of the rival submissions, we have examined
the evidence of P.W.-6, Velabhai Meraman and P.W.-8, Lakhiben
Vajabhai as also the complaint and the evidence of complainant P.W.-1
Babu Kaya. Their evidence clearly discloses that there was heated
altercation between the appellants and the deceased and that both
sides were abusing each other. As a result of such animated
conversation, the appellants got enraged and in the heat of the
moment gave a blow each on the head and face of the deceased. The
very fact that the appellants did not immediately assault the
deceased on his coming out of his quarter and that there was an
altercation preceding the actual assault suggests that the accused
never came with the intention of causing death of the deceased and it
was only because of circumstances they developed on spur of the
moment that the appellants gave the respective blows to the deceased.
At the same time, we are of the opinion that the appellants must be
held to have known the consequences of the blows being given and
since it was a single blow, the offence would be one under Part I of
Section 304 IPC.
We
are inclined to set aside the conviction of the appellants under
Section 302 IPC and instead convict them under Section 304 Part-I of
the IPC and sentence them to undergo rigorous imprisonemnt for ten
years and fine of Rs.5,000=00 each, in default, S.I. for six months.
10. For
the foregoing reasons, both the appeals are partly allowed. The
conviction of both the appellants is altered from Section 302 IPC to
one under Section 304 Part I of the IPC and the sentence is reduced
to ten years’ R.I. and fine of Rs.5,000=00, in default S.I. for six
months. On undergoing the sentence imposed and deposit of fine, the
appellants be set at liberty if not wanted in any other offence.
[Bhagwati
Prasad, J.]
[Bankim
N. Mehta, J.]
Rajendra
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