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CR.A/540/2004 6/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 540 of 2004
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 ?
=========================================================
VINUBHAI
RADIYA @ RAVJIBHAI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
THROUGH
JAIL for
Appellant(s) : 1,MS NITA C BANKER for Appellant(s) : 1,
MR MR
MENGDEY APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 02/03/2010
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellant came to be tried and convicted by Sessions Court at Chhota
Udepur in Sessions Case No.79 of 2002 for the offence of murder of
his brother Chhaganbhai and causing hurt to one Jiniabhai. He was
also tried for offence punishable under Section 135 of the Bombay
Police Act. However, the trial Court found that the offences of
murder and causing hurt punishable under Sections 302 and 323 of IPC
were proved against him and the offence punishable under Section 135
of the Bombay Police Act was not proved by the prosecution. The trial
Court, therefore, convicted the appellant of the offences punishable
under Section 302 and 323 of IPC and sentenced him to undergo
imprisonment for life with a fine of Rs.1,000/-, in default, RI for
two months, and for the offence of causing hurt with RI for 6 months
respectively. The trial Court acquitted the appellant for the offence
punishable under Section 135 of the Bombay Police Act. Hence, this
appeal.
2. As
per the prosecution case, the incident occurred around 4-00 PM on
1.6.2002 in the osri of house of the victim Chhaganbhai located at
village Guda Tal. Chhota Udepur. The appellant was allegedly
quarrelling with his sister and at that time Jiniabhai as well as
victim Chhaganbhai intervened and, therefore, the appellant assaulted
them with wooden pestle. Jiniabhai suffered multiple injuries whereas
Chhaganbhai was dealt with a blow on his head and another on his
mandible. The head injury ultimately resulted into death of
Chhaganbhai and, therefore, an FIR was lodged by PW-4 Chimanbhai. On
the basis of that FIR the police investigated the case and filed
chargesheet in the Court of JMFC, Chhota Udepur, who in turn
committed the case to the Court of Sessions and Sessions Case No.79
of 2002 came to be registered.
2.1 Charge
was framed against the accused at Exh.6 for the offences punishable
under Sections 302 and 326 of IPC and 135 of the Bombay Police Act
to which the accused pleaded not guilty and came to be tried.
2.2. At
the end of trial, the Sessions Court found that the charge
punishable under Sections 302 of IPC and 323 of IPC were proved
against the appellant and, therefore, recorded his conviction for the
said offences and awarded sentences as stated in the earlier part of
this judgment. The Sessions Court acquitted the appellant of charge
of offence punishable under Section 135 of the Bombay Police Act. The
sentences were ordered to run concurrently. The benefit of set off
was also given to the appellant.
3. The
appellant’s prayer for suspension of sentence and grant of bail was
rejected. The appellant absconded from 12.1.2008 till 8.10.2009 for a
period of 636 days and at present he is in jail since 8.10.2009.
4. Learned
advocate Ms Banker appearing for the appellant submitted that the
incident was witnessed by PW 4, 5 and 6 namely Chimanbhai, Velkiben
and Jiniabhai. They have deposed at Exhs. 22, 23 and 24 respectively
and clearly implicated the appellant. She is, therefore, not in a
position to assail the judgment so far as the involvement of the
appellant is concerned.
4.1 Ms
Banker submitted that the appellant would only challenge the
conviction under Section 302 of IPC. Admittedly, the incident
occurred all of a sudden, there was no premeditation alleged. The
deceased intervened in a quarrel between the appellant and his sister
and was dealt with a single blow on his head, which proved to be
fatal. There could not have been any intention on the part of the
appellant to cause death of the victim Chhaganbhai and, therefore,
the trial Court erred in convicting the appellant for the offence of
murder. Ms Banker, therefore, submitted that the conviction may be
altered accordingly.
5. Learned
APP Mr Mengdey has opposed the appeal. According to him, the
intention may creep in any moment. It is the mental status and has to
be inferred from the conduct of the accused. The accused has turned
on the victim Chhaganbhai the moment Chhaganbhai intervened in the
quarrel between the accused – appellant and his sister. It has come
in evidence during cross-examination that Chhaganbhai did not offer
any provocation to the appellant and, therefore, none of the
exception to Section 300 would be attracted. The conviction is,
therefore, rightly recorded and the appeal may be dismissed.
6. We
have examined the record and proceedings in context of rival side
submissions.
7. At
the outset, we may record that after going through the evidence of
first informant Chimanbhai PW -4, Velkiben PW-5 and Jiniabhai PW-6,
who are all eye-witnesses to the incident, Ms Banker was justified in
not pressing for a clean acquittal on the ground of non-involvement
of the appellant. These witnesses clearly indicated how the incident
occurred and how the appellant reacted to intervention by Jiniabhai
and Chhaganbhai.
8. The
only question, therefore, that requires to be considered is whether
the case would call for the punishment under Section 302 of IPC or
304 of IPC.
9. Upon
reading the evidence of the eye-witnesses, it is clear that the
appellant was quarrelling with his sister and when the deceased
intervened, he inflicted blows with wooden pestle. One blow landed on
the head whereas the other blow landed near the mandible on the neck
of the deceased. This would show that he inflicted at least two
blows on the vital part of the body. It is true that he could not
have anticipated intervention by deceased Chhaganbhai, but when
Chhaganbhai intervened he has given blow on head of Chhaganbhai with
wooden pestle with force, which damaged the skull of Chhaganbhai so
also the brain resulting into his death. The picture, therefore, that
emerges is that when the incident started the appellant did not have
any intention of causing death of Chhaganbhai, but when Chhaganbhai
intervened the appellant inflicted two blows on vital part of the
victim namely, head and mandible, which ultimately resulted into
death of victim Chhaganbhai. The injuries were sufficient in the
ordinary course of nature to cause death as testified by Dr. R.R.
Upadhyay Exh.16. In our opinion, therefore, the case would attract
the provisions contained in Section 304 Part-I and not 302 IPC. The
trial Court was, therefore, in error in convicting the appellant for
the offence of murder of Chhaganbhai. The appellant may not have
intended to cause death of Chhaganbhai, but he certainly had
intention of causing such bodily injury which was likely to cause his
death and, therefore, the conviction of the appellant has to be
altered from one punishable under Section 302 of IPC to 304 Part-I of
IPC so far as the involvement of the appellant in the incident
resulting into death of Chhaganbhai is concerned.
10. So
far as conviction of the appellant under Section 323 of IPC is
concerned, we find from the medical evidence of Dr Avniben Prathmesh
Exh.12 and Dr. Pravinaben Pravinchandra Exh.20 that there were
multiple injuries in the form of CLWs found on person of Jiniabhai.
The injuries were simple in nature and the trial Court was,
therefore, justified in convicting the appellant under Section 323 of
IPC. No appeal against acquittal under Section 326 is preferred by
the State and, therefore, no interference is called for in that part
of the finding of the trial Court. Having found that the conviction
of the appellant under Section 323 is well founded, we do not deem it
proper to interfere with the quantum of sentence.
11. So
far as the other offence is concerned, as discussed earlier, the
conviction of the appellant under Section 302 of IPC would stand
altered to conviction under Section 304 Part-I of IPC.
12. We
have heard learned advocate Ms Banker on the question of quantum so
also learned APP.
13. Ms
Banker submitted that the appellant is a victim of circumstances
where his act has resulted into death of his own brother. There were
no disputes between the brothers earlier. The appellant hails from a
less educated strata of Society, has three children to take care of
and, therefore, minimum sentence may be awarded.
14. Mr
Mengdey has submitted that the appellant absconded for 636 days and
has actually undergone sentence of 5 years 10 months and 24 days. He
may be appropriately punished.
15. Having
regard to the circumstances of the case, we are of the view that the
ends of justice would be met if the appellant is awarded RI for 8
(eight) years with no change in fine.
16. For
the foregoing reasons, the appeal is partly allowed. The conviction
of the appellant under Section 323 of IPC is confirmed. So far as the
conviction of the appellant under Section 302 of IPC is concerned,
the same is altered to conviction under Section 304 Part-I of IPC and
therefore, the sentence awarded by the trial Court is altered and the
appellant is awarded RI for 8 years with no change in fine. Both the
sentences would run concurrently and the appellant would also be
entitled for the benefit of set off.
(A.L.
DAVE, J.)
(BANKIM
N. MEHTA, J.)
zgs/-
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