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2009 DIGILAW 326 (GUJ)

Vijaybhai Somabhai Parmar v. State of Gujarat

2009-05-04

ANANT S.DAVE, D.H.WAGHELA

body2009
Judgment D.H. Waghela, J.—This appeal is preferred from the common judgment dated 07.01.2003 of learned Additional Sessions Judge (Fast Track), Rajkot in Sessions Case Nos. 30 of 2001 and 31 of 2001 whereby the appellant is convicted for the offence punishable under Section 302 of Indian Penal Code and Section 25(1)(a) and Section 27(3) of the Arms Act, 1959. He is sentenced to imprisonment for life with other sentences and fines. The appeal is restricted by learned counsel Shri P.S. Gondaliya, appearing for the appellant to urging the issue of conversion of conviction from Sections 302 to 304 of IPC and to reducing the sentence accordingly. It was generally submitted by him that the appellant was himself a victim of atrocities and had presented himself and lodged the FIR immediately after the alleged offence, in the peculiar facts and circumstances of the case. 2. The relevant facts emerging from the arguments of learned counsel for the appellant and learned APP after perusal of relevant evidence on record are that the appellant lodged the FIR at 10.45 a.m. on 2.11.2000 about the incident of the victim being killed at around 9.30 a.m. According to that FIR being CR No. 785 of 2000 registered at Rajkot Taluka Police Station, the victim Ajitsinh had quarelled with the parents of the appellant on 21.10.2000 and issued threats of cutting the appellant into pieces on account of their objection to water supply at the public water tap being diverted to the use of a tea cabin. The victim was alleged to have intervened in support of the person running the tea cabin. While issuing threats and throwing words of abuse on the parents of the appellant, the victim was also alleged to have clarified that he was not afraid of any atrocity case even as he knew the appellant to be belonging to Scheduled Caste. According to the complaint, the appellant had approached an advocate and approached the Commissioner of Police with an application on 23.10.2000. Thereafter, the victim was alleged to be threatening the appellant whenever they came across each other on the public road. Therefore, he had started carrying with him a country-made pistol which he had bought in 1995. 3. On 2.11.2000, while the appellant had stopped for buying a cigarette at a pan shop, the victim had come to the nearby laundry and, seeing the appellant, he had initiated quarrel. Therefore, he had started carrying with him a country-made pistol which he had bought in 1995. 3. On 2.11.2000, while the appellant had stopped for buying a cigarette at a pan shop, the victim had come to the nearby laundry and, seeing the appellant, he had initiated quarrel. Upon being attacked, the appellant had fired at the victim at a close range which resulted into death of the victim. After fleeing from the spot, the appellant consulted his brother and upon his advice, presented himself at the Taluka Police Station with the pistol, according to the complaint (Exhibit 77). 4. During the course of trial, four eye-witnesses and mother of the appellant were examined for prosecution. According to P.W. 1 (Exhibit 19), he had come out of his shop upon hearing the quarrel taking place between the appellant and the victim and he saw the appellant taking out his pistol from near his waist and when the victim was trying to catch hold of the weapon, he was fired at. He admitted in his cross-examination that many other people had gathered around the spot and they were asking both the persons to stop the quarrel, as the exchange of words was heating up. He categorically stated that the appellant had not fired till the victim had proceeded towards him and extended his hand, obviously for grabbing the weapon. P.W. 2 (Exhibit 20), having cabin near the spot also made similar statement and conceded in his cross-examination that the deceased had made no attempt to run away or escape any injury when the appellant had taken out the weapon. P.W. 3-Rameshbhai Premjibhai (Exhibit 38) was running a pan shop where the appellant had come to buy a cigarette and broadly corroborated the other eye witnesses. The other eye witness viz. Babubhai Bhavanbhai (Exhibit 39), also stated that there was heated exchange of words between the appellant and the victim and even a scuffle, before the firing took place. 5. The mother of the appellant, examined by prosecution at Exhibit 55, deposed that the deceased and Badhabhai Bharwad, who was running the tea shop and diverting supply of water from public tap, had come to the residence and quarreled with the appellant and left after issuing threats. 5. The mother of the appellant, examined by prosecution at Exhibit 55, deposed that the deceased and Badhabhai Bharwad, who was running the tea shop and diverting supply of water from public tap, had come to the residence and quarreled with the appellant and left after issuing threats. P.W. 5 Dr.Navinchandra Nanalal Joshi of the Civil Hospital, Rajkot deposed at Exhibit 40 that the appellant was examined by him on 02.11.2000 and injuries of abrasion were found on the thumb and index finger of the appellant. 6. Since there is no dispute or controversy about the fact that the victim was killed by the appellant by the use of country-made pistol and bullet has pierced vital parts of the body of the deceased from close range, it could not be gainsaid that it is a case of culpable homicide. However, it was also clear from the evidence on record that the incident was not and could not have been in any manner planned by the appellant since the meeting of both the persons at the spot was clearly per chance. Secondly, the weapon appeared to have been carried and flaunted by the appellant after provocation and with a view to defend himself. There was evidence of sudden quarrel and fight and no planning or premeditation could be attributed to the appellant. Therefore, even if intention of causing such bodily injury as was likely to cause death were attributed to the appellant, culpable homicide would not amount to murder and could be punished under Section 304 of IPC. 7. Learned APP Mr. Pujari submitted that in order to be covered by any of the exceptions to the definition of murder under Section 300 of IPC, the accused has to lead evidence and prove the facts required for the purpose. The argument, however, could not be supported by any logic or precedent. 8. In the facts and for the reasons briefly discussed hereinabove, the appeal is partly allowed and converting the conviction of the appellant for the offence punishable under Section 302 of IPC to the offence of culpable homicide punishable under Section 304 of IPC, the order of sentence is modified to the extent that the appellant shall stand sentenced to ten years of rigorous imprisonment. All the sentences imposed for other sections of the Arms Act and the IPC shall run concurrently with the sentence imposed by this order. All the sentences imposed for other sections of the Arms Act and the IPC shall run concurrently with the sentence imposed by this order. The remaining part of the impugned order regarding other sentences and fines is not disturbed. The appeal, accordingly, stands disposed as partly allowed.