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2011 DIGILAW 380 (GUJ)

Chaganbhai Damjibhai Vasava v. State of Gujarat

2011-05-03

A.L.DAVE, BANKIM N.MEHTA

body2011
Judgment Bankim.N. Mehta, J.—Appellant has preferred this appeal and challenged the judgment and order of conviction and sentence passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No. 7, Rajpipla, on 18.6.2005, in Sessions Case No. 104 of 2004, whereby convicted the appellant for the offence under Sections 302 and 324 of the I.P.Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default, to undergo SI for 15 days and SI for 1 year and to pay fine of Rs. 500/-, in default, to undergo SI for 8 days respectively. However, the accused is acquitted for the offence punishable under Sections 504 and 506(2) of the I.P. Code. 2. According to the prosecution case, there were disputes between Sundarsinh Ramjibhai and deceased Ramjibhai Danjibhai Vasava about their lands. On 7.6.2004, at about 20.00 hours, accused demanded mangoes from the first informant Sundarsinh Ramjibhai Vasava, but he refused and, therefore, the accused got enraged and hit wooden log on his head and right chin. Deceased Ramjibhai Danjibhai Vasava intervened and tried to rescue Sundarsinh Ramjibhai. Therefore, the accused also hit wooden log on his head and gave threats. On account of the injuries sustained, Ramjibhai Dhanjibhai Vasava died. 3. On the basis of the FIR filed by Sundarsinh Ramjibhai before Dediapada Police Station, an offence was registered and investigation was started. At the end of investigation, charge sheet came to be filed for the offences punishable under Sections 302, 324, 504 and 506(2) of the I.P. Code in the court of learned Judicial Magistrate, First Class, Dediapada. As the offence was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Rajpipla, and it was registered as Sessions Case No. 104 of 2004. The learned Additional Sessions Judge and Fast Track Court No. 7, Rajpipla, framed charge vide Exhibit-4 against the accused for the aforesaid offences. The charge was read over and explained to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. At the end of recording of evidence, the incriminating circumstances appearing against him in the evidence were explained to the accused. The accused in his further statement recorded under Section-313 of the Criminal Procedure Code, denied having committed the offence and stated that he is innocent. Therefore, the prosecution adduced evidence. At the end of recording of evidence, the incriminating circumstances appearing against him in the evidence were explained to the accused. The accused in his further statement recorded under Section-313 of the Criminal Procedure Code, denied having committed the offence and stated that he is innocent. It was also stated that the first informant - Sundarsinh Ramjibhai Vasava came to his house with wooden log and hit him. Therefore, he caught hold of the wooden log, and in doing so, Sundarsinh hit the wooden log on his head. Meanwhile, Ramjibhai also hit him by wooden log but he escaped from the attack and during the scuffle Ramjibhai tried to intervene and sustained injury on his head. After hearing the learned Advocate for the accused and learned APP, the Trial Court convicted the accused for the offences punishable under Sections-302 and 324 of the I.P. Code and imposed the sentences, as mentioned here-in-above, but acquitted him for the offences punishable under Sections 504 and 506(2) of the I.P. Code. Being aggrieved by the said judgment and order, the accused has preferred this Appeal. 4. Learned Advocate Mr. Goswami has restricted his argument to the extent that he does not dispute the incident and involvement of the appellant in the offence but, according to him, the incident occurred in a heat of passion and in the self-defence, the deceased sustained injuries. It is also submitted that there was no intention on the part of the appellant to cause fatal injury to the deceased and, therefore, he should be convicted for lesser offence of culpable homicide not amounting to murder. 5. On the other hand, learned APP Mr. K.L. Pandya has submitted that considering the evidence on record, it clearly emerges that there were disputes between the first informant and accused since long and with pre-meditation the assault was made and injuries were caused on vital part of the body. Therefore it is submitted that the Trial Court was justified in recording conviction for murder and no interference is warranted in the judgment and order of conviction and sentence passed by the Trial Court. Mr. Pandya, therefore, urged to dismiss the appeal and confirm the judgment and order of conviction and sentence recorded by the Trial Court against the accused. 6. We have heard Mr. Vilas G. Goswami, learned Advocate for the appellant and Mr. Mr. Pandya, therefore, urged to dismiss the appeal and confirm the judgment and order of conviction and sentence recorded by the Trial Court against the accused. 6. We have heard Mr. Vilas G. Goswami, learned Advocate for the appellant and Mr. K.L. Pandya, learned APP, for the respondent at length and in great detail. We have also perused the record and proceedings of the Trial Court in the context of rival submissions. The evidence of PW-4 Dr. Champakbhai Madhavbhai Vasava, examined at Exhibit-21 indicates that he treated the deceased, the first informant and also performed postmortem of deceased Ramjibhai. The postmortem note indicates that the deceased had one injury on his head and such injury was possible by muddamal wooden log. According to the witness, the death was caused on account of injury on head, a vital part of he body, by wooden log. 7. The Doctor has also deposed about the injuries to the first informant-Sundarsinh Ramjibhai. According to him, the injuries found on the person of Sundarsinh Ramjibhai were recorded in the medical certificate - Exhibit-24 and said injury No. 1 was possible by hard and blunt substance like wooden log. 8. The postmortem report, produced at Exhibit-26, indicates that one external injury of CLW was found on the head of the deceased. It also indicates that the cause of death was injury to vital organ “brain” by wooden log. This evidence indicates that the injury to the deceased was homicidal in nature. 9. In view of the above evidence, the prosecution has established that the first informant-Sundarsinh Ramjibhai sustained injuries by wooden log. 10. As regards the involvement of the accused in the offence, the evidence of PW-5 Sundarsinh Ramjibhai Vasava, examined at Exhibit-33, indicates that prior to the incident, there were quarrels between the accused and father of the complainant. On the night of incident, the accused made assault with wooden log on his head. Deceased Ramjibhai tried to intervene and to rescue him, the accused inflicted one blow by wooden log on the head of Ramjibhai and on account of that assault, Ramjibhai fell down. 11. The FIR - Exhibit-34 was lodged by PW-5 Sundarsinh Ramjibhai Vasava which also indicates that the accused made assault with wooden log on him and as Ramjibhai intervened to rescue him, the accused also hit wooden log on his head. 12. 11. The FIR - Exhibit-34 was lodged by PW-5 Sundarsinh Ramjibhai Vasava which also indicates that the accused made assault with wooden log on him and as Ramjibhai intervened to rescue him, the accused also hit wooden log on his head. 12. The prosecution also examined PW-7 Kheruben Ramsinh, examined at Exhibit-37. Her evidence is consistent with the evidence of complainant PW-5 Sundarsinh Ramjibhai Vasava. 13. In view of above, it clearly emerges that the accused made assault on PW-5 Sundarsinh Ramjibhai Vasava and as deceased Ramjibhai Danjibhai Vasava tried to intervene, he was also hit with wooden log. This evidence clearly indicates that there was no intention on the part of the accused to cause injury to the deceased, however, accidentally the wooden log was hit on his head. It can be said that the accused had knowledge that such assault would cause death but he had no intention to cause death. Therefore, the learned Trial Judge committed error in convicting the accused for the offence of murder of Ramjibhai and in the facts and circumstances of the case, the accused is required to be convicted for the lesser offence of culpable homicide not amounting to murder punishable under Section 304 Part-II of the I.P. Code. 14. So far as conviction under Section 324 of the I.P. Code is concerned, the evidence clearly indicates that the accused was responsible for the injuries to Sundarsinh Ramjibhai Vasava by wooden log. Therefore, no interference is warranted with regard to the conviction of the appellant-accused for the offence under Section 324 of the I.P. Code. 15. We have heard Mr. Goswami, learned Advocate for the appellant and Mr. K.L. Pandya, leaned APP for the respondent State with regard to the sentence. In our view, ends of justice would meet if the appellant–accused is sentenced to undergo imprisonment for a period of seven years with no change in the fine imposed by the Trial Court. 16. In the result, the appeal partly succeeds. The conviction and sentence recorded by the Trial Court against the accused – appellant under Section-302 of the I.P. Code is altered to one under Section 304 Part-II of I.P. Code and he is sentenced to undergo RI for a period of seven years and to pay fine of Rs. 1,000/-, in default, to undergo SI for 15 days. The conviction and sentence recorded by the Trial Court against the accused – appellant under Section-302 of the I.P. Code is altered to one under Section 304 Part-II of I.P. Code and he is sentenced to undergo RI for a period of seven years and to pay fine of Rs. 1,000/-, in default, to undergo SI for 15 days. His conviction and sentence recorded by the Trial Court for the offence under Section-324 of the I.P. Code is maintained and confirmed. Both the sentences shall run concurrently.