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2013 DIGILAW 297 (GUJ)

Raisingbhai Hemabhai Baria v. State of Gujarat

2013-06-12

K.J.THAKER, K.S.JHAVERI

body2013
Judgment K.J. Thaker, J.—The present appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 30.6.2005 passed by the learned Addl. Sessions Judge, 6th Fast Track Court, Panchmahals at Godhra in Sessions Case No. 19/2005, whereby, the learned trial Judge has convicted the appellant under Section 302 of IPC and sentenced to undergo R/I for life and to pay a fine of Rs. 500/-, in default, to undergo further imprisonment for one month. The appellant is also convicted under Section 452 of IPC and sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs. 300/-, in default, to undergo further imprisonment for 15 days, which is impugned in this appeal. 2.1 The case of the prosecution is that on 9.10.2004, at about 4.00 O’clock in the early morning, has committed the murder of Chhatrabhai Nathabhai, who was husband of complainant Gangaben when they were sleeping in their house by inflicting Axe blow on the neck of deceased Chhatrabhai Nathabhai because of the earlier quarrel took place between the children. Thereafter the complaint was filed. 2.2 The appellant accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was hold against the present appellant. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 19/2005. 2.3 Thereafter, the Sessions Court framed the charge below Exh. 2 against the appellant for commission of the offence under Section 302, 452 and 201 of IPC. The appellant -accused has pleaded not guilty and claimed to be tried. 2.4 To prove the case against the present appellant, the prosecution has examined the following witnesses: 1. PW-1Gangaben Chhatrabhai Nathabhai Baria Ex.7 2. PW-2 Balvant Chhatrabhai Baria Ex. 8 3. PW-3 Jasvant Balvantbhai Baria Ex. 9 4. PW-4 Shankarbhai Amrabhai Naik Ex. 13 5. PW-5 Dr. Nirav P. Hamirani Ex. 15 6. PW-6 Dipsinh Pratapsinh Patel Ex. 19 7. PW-7 Shantilal Kanubhai Garasiya Ex. 23 8. PW-8 Narendrasinh Magansinh Parmar Ex. 45 9. PW-9 Kishorbhai Angarbhai Katara Ex. 48 2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused. 1. Inquest panchnama Ex.10 2. PW-5 Dr. Nirav P. Hamirani Ex. 15 6. PW-6 Dipsinh Pratapsinh Patel Ex. 19 7. PW-7 Shantilal Kanubhai Garasiya Ex. 23 8. PW-8 Narendrasinh Magansinh Parmar Ex. 45 9. PW-9 Kishorbhai Angarbhai Katara Ex. 48 2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused. 1. Inquest panchnama Ex.10 2. Panchnama of scene of offence place Ex. 11 3. Panchnama of clothes of deadbody Ex. 12 4. Slip of muddamal Ex. 14 5. PM Note Ex. 16 6. Yadi for P.M. & certificate Ex. 17 7. cause of death certificate Ex. 18 8. Map Ex. 21 9. Complaint Ex. 24 10. Report to PSO Ex. 25 11. Panchnama of person of accused Ex. 26 12. Panchnama under Section 27 Ex. 27 13. Panchanama of muddamal Axe Ex. 28 14. Report to CJM, Godhra Ex. 29 15. Yadi to FSL Vadodara Ex. 30 16. Certificate Ex. 31 17. Despatch Note of muddamal Ex. 32 18. Receipt Ex. 33 19. Yadi to Mamlatdar for map Ex. 34 20. Copy of wireless message Ex. 35 21. Yadi to Executive Magistrate Ex. 36 22. Police report Ex.37 23. Receipt Ex. 38 24. Forwarding letter Ex. 39 25. Report of FSL Vadodara Ex. 40 26. Serology report Ex. 41 27. Original slip Ex. 46 28. Original slip Ex. 47 3. Thereafter, after examining the witnesses, further statement of the appellant-accused under Section 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution. 4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 30.6.2005 held the present appellant- original accused No. 1 guilty of the charge levelled against him under Section 302 and 452 of IPC and convicted and sentenced the appellant-accused, as stated above. 5. We have heard learned advocate Mr. P.H. Buch for the present appellant and Ms. Chetna M. Shah learned APP for the respondent-State. 6. Mr. P.H. Buch learned advocate appearing for the present appellant has fairly submitted that he could not claim clean acquittal or could not claim the benefit of doubt and tried to persuade the Court that conviction under Section 302 of IPC may be modified and the present appellant may be convicted under Section 304 Part-I of IPC. 7. 6. Mr. P.H. Buch learned advocate appearing for the present appellant has fairly submitted that he could not claim clean acquittal or could not claim the benefit of doubt and tried to persuade the Court that conviction under Section 302 of IPC may be modified and the present appellant may be convicted under Section 304 Part-I of IPC. 7. The learned advocate for the present appellant has contended that the trial Court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellant deserves to be given the benefit of doubt and be acquitted. 8. On the other hand, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellant and has submitted that the trial Court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed. Learned APP has further contended that this is a case of brutal murder and therefore no leniency should be shown to the accused since the injuries are on the vital part of the body, hence, no interference is called for and the appeal deserves to be dismissed. 8. Having gone through the entire record, it would be relevant to refer to Section 299 and Section 300 of IPC, which reads as under: 299. Culpable homicide.—Who ever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Culpable homicide.—Who ever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder.—Except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” xxx xxx xxx xxx 304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, Or With imprisonment of either description for a term which may extent to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 9. Having gone through the above provisions, we are unable to persuade ourselves that it is a clear case of acquittal and the reason for the same is that the complaint was given by the wife of the deceased, and therefore, there is no question of mistaken identity. Having gone through the above provisions, we are unable to persuade ourselves that it is a clear case of acquittal and the reason for the same is that the complaint was given by the wife of the deceased, and therefore, there is no question of mistaken identity. Moreover, there dies not appear to be any palpable reason as to why the complainant would involve her nephew in such a serious offence, which would ruin the life of his entire family. The complainant has stood to her FIR and categorically narrated the entire incident as to what had happened prior to the alleged incident. 10. The post mortem report which is corroborated with the inquest panchanama shows that the injuries were on the vital part of the body, however, it was a single blow. The death was due to front lower neck injury caused by heavy sharp object. The post mortem report reads as follows: “1. There is single, sharp, punctured wound present over the lower part of neck, on the auterior aspect, 1 inch above the upper border of manubrium sterm bone, of size (Horizontal) 6cm x (verticle) 4 cm x 4 ½ cm (Depth), Horizontal direction. Fresh as well as clotted blood present in the wound. Vital organs are cut in the vicinity of wound. 2. There is a small around 1 inch abrasion present over the tip of little finger of right hand with slight stained with blood.” 11. The FSL report also shows that the blood was of the accused. PW-8 Narendrasinh Magansinh Parmar Ex.45 has supported the panchnama and we are unable to accept the submission made by the learned advocate Mr. Buch appearing for the present appellant that the incident did not involve the accused. It is the medical evidence which categorically shows that it is culpable homicide looking to the injury. Point No. 2 and 3 shows that the cause was minor dispute between the children and six people came at the spot and injured the deceased, however, only the present appellant-accused has been identified. It is only on the basis of this that the learned trial Judge has convicted the present appellant-accused. It cannot be said that because of single blow and further on the vital part, therefore, we are unable to accept the submission of learned advocate for the appellant that it would fall under Section 304 Part-II of IPC. 12. It is only on the basis of this that the learned trial Judge has convicted the present appellant-accused. It cannot be said that because of single blow and further on the vital part, therefore, we are unable to accept the submission of learned advocate for the appellant that it would fall under Section 304 Part-II of IPC. 12. In view of the above discussion, there is no doubt left in our mind about the guilt of the appellant. However, at the same time, we feel that looking to the totality of the facts and circumstances under which the alleged incident occurred, though, the knowledge of the fact of inflicting knife blows on the body of the deceased could be attributed to the present appellant, the intention cannot be. Hence, it would be relevant to refer to a decision of the Apex Court in the case of Sukhbir Singh vs. State of Haryana, reported in 2002(2) GLH 313. In the said case, the facts were almost similar in nature. In that case also, after the initial altercation, the accused person departed and then came back with several other persons and challenged the deceased and inflicted blows on his person, as a consequence of which he died. In that case, the Apex Court found that in view of the lack of common object or premeditation and considering the evidence of heat of passion upon a sudden quarrel, the offence would fall under Exception 4 to Section 300 of the Indian Penal Code. 13. There is a distinction in imposing the punishment in case of culpable homicide not amounting to murder and the prosecution is unable to show that there was premeditation or intention of committing murder in the case on hand. As we held there was no intention on the part of the appellant to cause the death and as there was certain altercation prior to the alleged incident, it appears that the same might have provoked the appellant and would have led him to commit the alleged offence. 14. We are, therefore, inclined to accept the submission of the learned advocate for the appellant that in the facts and circumstances of the case, at the most, Section 304 Part-I would be attracted and not Section 302 of IPC. Hence, the appeal deservesto be allowed partly. 15. In the result, the appeal is allowed in part. 14. We are, therefore, inclined to accept the submission of the learned advocate for the appellant that in the facts and circumstances of the case, at the most, Section 304 Part-I would be attracted and not Section 302 of IPC. Hence, the appeal deservesto be allowed partly. 15. In the result, the appeal is allowed in part. The impugned judgment and order dated 30.6.2005 passed by the learned Addl. Sessions Judge, 6th Fast Track Court, Panchmahals at Godhra in Sessions Case No. 19/2005 recording the conviction of the present appellant herein under Section 302 of the IPC is modified and the present appellant is convicted under Section 304 (Part-I) of the Indian Penal Code and is sentenced to undergo R/I for ten years. Rest of the judgment and order of the trial Court stands confirmed. R & P to be sent back to the trial Court, forthwith. A writ of this order be sent to the concerned Jail Authority, forthwith.