{"id":169151,"date":"2010-08-18T00:00:00","date_gmt":"2010-08-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manoj-vs-unknown-on-18-august-2010"},"modified":"2016-03-21T20:05:35","modified_gmt":"2016-03-21T14:35:35","slug":"manoj-vs-unknown-on-18-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manoj-vs-unknown-on-18-august-2010","title":{"rendered":"Manoj vs Unknown on 18 August, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Manoj vs Unknown on 18 August, 2010<\/div>\n
Author: Mohit S. D.H.Waghela,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\n CR.A\n\t 1535\/2003               Order dated 25\/10\/2005                     \n\t               \t     Page #  14\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 1535 of 2003\n \n\nWith\n\n\n \n\nCRIMINAL\nAPPEAL No. 290 of 2004\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE M.S.SHAH\n\n\n \n\n              and \nHONOURABLE\nMR.JUSTICE D.H.WAGHELA\n \n \n=========================================================== \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n===========================================================\n\n\n \n\nMANOJ\n@ LATIF SHRILAL - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n===========================================================\n \nAppearance : \nMR\nPARESH UPADHYAY with MR VAIBHAV A VYAS for Appellant(s) : 1, \nMR RC\nKODEKAR APP for Opponent(s) :\n1, \n========================================================== \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE M.S.SHAH\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE D.H.WAGHELA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 25\/10\/2005  \n \nORAL JUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE M.S.SHAH)<\/p>\n
\tBoth these appeals are
\ndirected against the judgment and order dated 16.10.2003 passed by
\nthe learned Principal Judge, City Sessions Court, Ahmedabad in
\nSessions Case Nos.80 and 81 of 2002 convicting the appellants for the
\noffence punishable under 302 read with Section 34 IPC and sentencing
\nthem to life imprisonment and also sentencing them to pay fine of
\nRs.5,000\/- each in default rigorous imprisonment for three months.\n<\/p>\n
2.\tThe prosecution case,
\nbriefly stated, is that on 24.10.2001 at about 11.00 PM the
\nappellants herein (hereinafter referred to as accused Nos.1 and 2)
\nand four other accused (accused Nos.3 to 6) were moving from
\nNehrunagar Cross Roads after watching garbas. At that time the
\naccused were teasing and gesticulating before Chetnaben wife of
\ndeceased Narendrabhai Patel. Hence, the complainant (cousin brother
\nof the deceased) and the deceased had scolded the accused for teasing
\nChetnaben. Thereupon all the six accused abused the deceased and
\nassaulted the deceased and thereby committed the offence punishable
\nunder Sections  504, 352 and 114 IPC. The accused were further
\ncharged with the common intention of causing the death of deceased
\nNarendrabhai. All the accused had surrounded the deceased and accused
\nNo.1 snatched the knife from the waistband of accused No.2 and
\ninflicted a blow on the left thigh near the private part of the
\ndeceased. Since the people in the vicinity gathered together, the
\naccused ran away after leaving the car on the spot. In the course of
\nthe treatment, the deceased succumbed to the injuries. The accused
\nwere, therefore, charged with the offence punishable under Section
\n302 read with Section 114 and 34 IPC. Accused Nos.1 and 2 were also
\ncharged with the offence punishable under Section 135(1) of the
\nBombay Police Act, 1951 for using and carrying a knife in violation
\nof the notification under the Bombay Police Act, 1951. Accused No.1
\nwas also charged with the offence punishable under Sections 141 and
\n142 of the Bombay Police Act for entering the city of Ahmedabad in
\nviolation of the externment orders dated 14.3.2001.\n<\/p>\n
3.\tThe accused  pleaded
\nnot guilty and they were all tried by the City Sessions Court at
\nAhmedabad. Since accused No.6 had absconded, he was tried separately
\nin Sessions Case No.81 of 2002 and accused Nos.1 to 5 were tried in
\nSessions Case No.80 of 2002.\n<\/p>\n
4,\tThe prosecution led
\nthe following evidence :-\n<\/p>\n
\tPW 1 Complainant
\nRakeshbhai Ghanshyambhai Patel, Exh.15, cousin brother of the
\ndeceased  who was also travelling along with the deceased on a
\nseparate scooter.\n<\/p>\n
\tPW 20 Chetnaben
\nNarendrabhai Patel, Exh.70, wife of the deceased, who was also
\naccompanying the deceased on the same scooter.\n<\/p>\n
\tPW 17 Asmiben
\nRakeshbhai Patel Exh.63 wife of the complainant who was also
\ntravelling along with the complainant on the same scooter.\n<\/p>\n
\tPW 19 Dr Rohit
\nChimanlal Jariwala, Exh.67, Assistant Professor of Forensic Medicine
\nat the VS Hospital who performed the post-mortem and submitted the
\nreport Exh.68.\n<\/p>\n
\tThe prosecution also
\nexamined PW 22 Ashokbhai Ishwarbhai Patel Exh.74, Circle Inspector
\nwho prepared the map of the scene of offence, the panch witness, and
\nalso the panch witnesses for the panchnama for the scene of offence
\nand arrest panchnama were examined. The Investigating Officer and the
\npolice witnesses were also examined.\n<\/p>\n
5.\tAfter considering the
\noral and documentary evidence on record, the learned Sessions Judge
\ngave the finding that while the involvement of accused Nos. 5 and 6
\nwas not proved beyond reasonable doubt,  the presence of accused
\nNos.1 to 4 was proved beyond reasonable doubt, but the evidence on
\nrecord did not implicate accused Nos.3 and 4 for the offence in
\nquestion. In view of the teasing and gesticulating the deceased
\nasked complainant Rakeshbhai to stop their scooters and to wait for
\nthe accused coming in the Fiat car and they made the Fiat car stop
\nand scolded the accused for teasing the wife of the deceased. The
\nlearned Sessions Judge came to the conclusion  that after that
\naltercation, accused No.1 snatched the knife from the waistband of
\naccused No.2 and inflicted forcefully a knife blow on the thigh of
\nthe deceased near his private part, which resulted into rupture of
\nfemoral artery and, therefore, accused No.1 had intended to cause the
\ninjury which was sufficient in the ordinary course of nature to
\nresult into death and, therefore, accused No.1 was guilty of the
\noffence punishable under Section 302 IPC. The learned Sessions Judge
\nalso held that since accused No.2 was carrying a knife with him and
\nallowed accused No.1 to use the knife for inflicting such injury
\nwhich was sufficient in the ordinary course of nature  to result into
\ndeath of the deceased, accused No.2 was also guilty of the offence
\npunishable under Section 302 read with Section 34 IPC. Accordingly,
\nboth the accused came to be sentenced to suffer life imprisonment. It
\nis against the aforesaid judgment that two separate appeals are filed
\nby accused Nos.1 and 2.\n<\/p>\n
6.\tMr Paresh Upadhyay,
\nlearned counsel for the appellants has made the following submissions
\n:-\n<\/p>\n
(i)\t\tEven as per the
\nprosecution case, the incident took place when the deceased and the
\ncomplainant with their family members were returning from their
\nnative place at about 11.00 PM on 24.10.2001 and the accused were
\nreturning after watching garbas during Navratri festival. The
\ndeceased and the accused had never known each other previously.
\nAccording to the prosecution case, the incident occurred on account
\nof teasing of the wife of the deceased which led to the altercation
\nand the sudden fight. Hence there was no question of premeditation on
\nthe part of the accused. Only one knife blow was given by accused
\nNo.1 and that too on a non-vital part of the body of the deceased
\nand, therefore, the accused had not acted in a cruel manner. After
\ninflicting one blow on the deceased, the accused ran away and there
\nwas no question of the accused having taken any undue advantage or
\nacted in a cruel or unusual manner. Hence all the ingredients of
\nException 4 to Section 300 were satisfied and the case clearly went
\nout of Section 300.\n<\/p>\n
(ii)\t\tAt the most, the
\ncase would fall under Section 304 Part II because the accused had no
\nintention of causing the death or causing any injury which would be
\nsufficient in the ordinary course of nature to result into death.
\nThe knife blow was not given on any vital part of the body like head,
\nchest or abdomen. Even according to the medical evidence, a
\nnon-medical person would not have known that the knife blow on the
\npart between private part and the thigh of a person would result into
\nrupture of the femoral artery and, therefore, even if the knife blow
\nwas intended to be given by accused No.1 on that part of the body
\nwhere it landed, the accused did not have any intention or even
\nknowledge as contemplated by Section 304 Part I or 304 Part II.\n<\/p>\n
\tReliance is placed on
\nthe following decisions:-\n<\/p>\n
\t(i)\t\t1986 GLH 715<\/p>\n
\t(ii)\t\tAIR 1983 SC 463<\/p>\n
\t(iii)\t1981 GLH 500<\/p>\n
\t(iv)\t\tAIR 1968 SC 867<\/p>\n
\t(v)\t\t1994 Cr.LJ 3019<\/p>\n
\t(vi)\t\tAIR 1995 SC 2452<\/p>\n
\t(vii)\t1993 (1) GLH 382
\n(SC)<\/p>\n
\t(viii)\tAIR 1981 SC 1441<\/p>\n
\t(ix)\t\tAIR 1996 SC 3513<\/p>\n
7.\tOn the other hand, Mr
\nKodekar, learned APP has submitted that the accused were travelling
\nin the Fiat car and following the deceased and his wife for the
\npurpose of teasing and when the deceased scolded  them for doing so,
\nthe accused came out of the car and accused No.1 inflicted the knife
\nblow  on a vital part of the body of the deceased. Hence, the case
\ndid fall under Section 300 clause thirdly and that the learned
\nSessions Judge rightly convicted both the accused for the offence
\npunishable under Section 302 read with Section 34.\n<\/p>\n
8.\tHaving heard the
\nlearned counsel for the parties, we find considerable force in the
\nsubmission made on behalf of the accused that even as per the
\nprosecution case, the act of accused No.1 inflicting the knife blow
\non the body of the deceased was not a premeditated one. It appears
\nfrom the map of the scene of the offence Exh.76 (Page 649) that the
\ndistance between Nehrunagar circle from where the accused are stated
\nto have started teasing the wife of the deceased and the place of the
\nincident was only 500 mts. as per the deposition of PW 22 Ashokbhai
\nIshwarbhai Patel at Exh.74. Hence, even going by the prosecution
\ncase, the accused were moving in the Fiat car and the deceased and
\nhis wife had travelled the said distance on the scooter and,
\ntherefore, very short time must have elapsed during which the teasing
\ntook place or continued. Hence when the deceased asked the Fiat car
\ndriver to stop the vehicle and scolded the accused sitting in the car
\nfor teasing his wife, even as per the prosecution witnesses  the
\naltercation and the sudden assault by accused No.1 on the deceased
\ntook place within a matter of a few minutes. It is, therefore, not
\npossible to accept the prosecution plea that accused No.1 or any
\nother accused had entertained any intention of causing the death of
\nthe deceased or of causing any injury, which would be sufficient in
\nthe ordinary course of nature to cause the death of the deceased.
\nThere is also no dispute about the fact that only one knife blow was
\ngiven on the spot between the private part and thigh of the deceased
\nand the accused had thereafter run away. The accused had also not
\ninflicted any knife blow nor had they launched any assault on any
\nother prosecution witnesses who were accompanying the deceased.
\nTherefore, the accused cannot be said to have taken undue advantage
\nor having acted in a cruel or unusual manner.  It is true that from
\nthe evidence on record it transpires that the accused had indulged
\ninto the teasing of the wife of the deceased, but as per the
\nExplanation to Exception 4, it is immaterial in such cases which
\nparty offers the provocation or commits the first assault and,
\ntherefore, the act committed by accused No.1 in a sudden fight in the
\nheat of passion upon a sudden quarrel without premeditation fell
\nunder Exception 4 to Section 300.\n<\/p>\n
9.\tThe next question is
\nas to which offence is committed by accused No.1. Although initially
\nthe learned counsel for the appellants sought to contend that even
\naccused No.1 could not be guilty of any offence other than Section
\n324 or 326, in view of the law laid down in several decisions of this
\nCourt and the Apex Court, and particularly the decision of this Court
\nin Jabbar Suleman Dhoka vs. State of Gujarat,<\/a> 1986 GLH 715, the
\nlearned counsel for the appellants submitted that the only offence
\ncommitted by accused No.1 fell under Part II of Section 304 IPC.\n<\/p>\n
10.\tOn the other hand,
\nthe learned APP submitted that accused No.1 did have the intention of
\ncausing such a serious injury on the deceased that the case would
\nfall under Part I of Section 304 IPC.\n<\/p>\n
11.\tHaving heard the
\nlearned counsel for the parties at length and having gone through the
\nevidence on record including the medical evidence of PW 19 Dr Rohit
\nChimanlal Jariwala Ex.67 clearly stating that the deceased had
\nsustained an external injury 4 cms. X 2 cms. on the left thigh which
\ncut through the skin subcutaneous  tissue, the muscles in front of
\nthe femur bone and the left femoral artery and that a person not
\nknowing medical science would not know where the femoral artery is
\nsituate or its importance, we are of the view that accused No.1
\ncannot be said to have entertained any intention to cause an injury
\nwhich would be sufficient in the ordinary course of nature to cause
\nthe death.  As held by this Court in Jabbar Suleman Dhoka (supra),
\nlooking to the nature of the weapon used by the accused and
\nconsidering the fact that the blow was given on the thigh of the
\ndeceased, it can at the most be said that the accused had knowledge
\nthat by his act death may be the result and, therefore, the case
\nwould fall under Section 304 Part II.\n<\/p>\n
12.\tComing to the
\nquestion of sentence, as far as accused No.1 is concerned, Mr
\nUpadhyay learned counsel for the appellants submitted that in a
\nseries of decisions where conviction is under Section 304 Part II,
\nthe usual sentence is for a period of five years.\n<\/p>\n
\tOn the other hand, Mr
\nKodekar, learned APP submitted that apart from the nature of the
\ninjury resulting into the death of the deceased, the previous conduct
\nof the accused is also a relevant factor while deciding  the quantum
\nof sentence and that since accused No.1 and his associates are shown
\nto have indulged into teasing the wife of the deceased, which
\nnaturally provoked the deceased into scolding the accused, instead of
\nbeing apologetic for their conduct, the accused and particularly
\naccused No.1 had gone to the extent of inflicting fatal knife injury
\non the deceased and, therefore, the maximum sentence of ten years
\nshould be imposed on accused No.1.\n<\/p>\n
13.\tThough a reference
\nwas made to the charge of accused No.1 having violated the externment
\norder passed under the Bombay Police Act, since no such notification
\nwas produced on the record of the proceedings, the learned trial
\nJudge did not record any conviction of accused No.1 for the offence
\npunishable under the Bombay Police Act. However, taking an overall
\nview of all the relevant facts and circumstances  of the case
\nincluding the previous conduct of accused No.1 which resulted into
\nthe altercation, we are of the view that the interest of justice
\nwould be served if accused No.1 is sentenced to suffer rigorous
\nimprisonment for a period of seven years and to pay fine of
\nRs.5,000\/-  already imposed by the learned trial Judge.\n<\/p>\n
14.\tComing to the case
\nof accused No.2, while the acts or omission on his part may be
\nmorally reprehensible, we are unable to confirm the view of the
\nlearned trial Judge that accused No.2 was guilty of any offence
\npunishable under Section 302 or even 304 Part II read with Section\n<\/p>\n
34. It is true that if carrying a knife was in violation of the
\nprovisions of the Bombay Police Act, 1951, accused No.2 could have
\nbeen convicted for the said offence but even as per the prosecution
\ncase, accused No.2 had not given or offered the knife lying with him,
\nbut it was accused No.1 who snatched the knife from the waistband of
\naccused No.2.  In the above view of the matter also in view of our
\nfinding that the act committed by accused No.1 was not a premeditated
\none and that even the assault on the deceased by the accused was not
\na premeditated one, it is not possible to convict accused No.2 for
\nany offence of culpable homicide  with the aid of Section 34 or
\nSection 114 IPC or any other provision of IPC fastening vicarious
\nliability on the accused. Even so, in the background of the facts
\nnarrated hereinabove and in absence of any explanation as to why
\naccused No.2 was carrying a knife of 16.5 cms. Length and 2.8. cms of
\nwidth and the fact that accused No.2 did not himself use the knife
\nbut went out of the car along with  accused No.1 for assaulting the
\ndeceased, it appears to us that accused No.2 was guilty of the
\noffence punishable under Section 326 read with Section 34 IPC as
\ninfliction of the knife blow on the deceased was likely to put in
\ndanger life of the deceased.\n<\/p>\n
15.\tComing to the
\nquestion of sentence for accused No.2 since accused No.2 is held to
\nbe only vicariously liable even for the offence punishable under
\nSection 326 and since the said accused  has already undergone the
\nsentence for 3 years and 11 months and is on the verge of completing
\nfour year of imprisonment within a week, we are of the view that
\ninterest of justice would be served if accused No.2 is sentenced to
\nsuffer imprisonment already undergone.\n<\/p>\n
16.\tIn
\nview of the above discussion, both the appeals are partly allowed.
\nThe conviction of accused No.1 ?  Nimesh alias Gattu Nandlal for the
\noffence punishable under Section 302 read with Section 34 IPC is
\naltered to conviction for the offence punishable under Section 304
\nPart II IPC. Accused No.1 is sentenced to suffer imprisonment for a
\nperiod of 7(seven) years and to pay fine of Rs.5,000\/- (Rupees five
\nthousand), in default simple imprisonment for one year.\n<\/p>\n
\tThe
\nconviction of original accused No.2 ?  Manoj alias Latif Shrilal for
\nthe offence punishable under Section 302 read with Section 34 IPC is
\naltered to conviction under Section 326 read with Section 34 IPC.
\nAccused No.2 is sentenced to suffer the period of imprisonment
\nalready undergone by him. Accused No.2 Manoj alias Latif Shrilal is,
\ntherefore, ordered to be set free immediately unless required in any
\nother case for any other offence.\n<\/p>\n
\t\t\t\t\t\t\t\t(M.S.\n<\/p>\n
SHAH, J.)\t<\/p>\n
\t\t\t\t\t\t\t\t(D.H.\n<\/p>\n
WAGHELA, J.)<\/p>\n
zgs\/-\n<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Manoj vs Unknown on 18 August, 2010 Author: Mohit S. D.H.Waghela,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-169151","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nManoj vs Unknown on 18 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manoj-vs-unknown-on-18-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manoj vs Unknown on 18 August, 2010 - 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