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2013 DIGILAW 365 (GUJ)

VIRAPPA S/O HANUMANTAPPA v. STATE OF GUJARAT

2013-07-03

K.J.THAKER, K.S.JHAVERI

body2013
JUDGMENT K.J. THAKER, J. 1. The present appellant has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 3.2.2007 passed by the learned Addl. Sessions Judge, Fast Track Court No. 4, Jamnagar in Sessions Case No. 91/2006, whereby, the learned trial Judge has convicted the appellant under sec. 302 of IPC and sentenced to undergo R/I for life and to pay a fine of Rs.1000/-, in default, to undergo further imprisonment for six months, which is impugned in this appeal. 2.1 The case of the prosecution is that the appellant was residing in the house of Ranabhai Karabhai at village Vibhapar in Bharvadvas along with Mahmad Nadimmiya Saifuddin Shaikh with other persons. That on 12.5.2006, at about 11.00 p.m. in the night, there was a quarrel between appellant and witness Bhimsha Nigrappa Dhangar and the appellant had given slap to Bhimsha, at that time, complainant Mahmad Nadimmiya Saifuddin Shaikh had intervened and favoured the witness Bhimsha and gave slap to the appellant. That keeping grudge in mind, the appellant had assaulted the father of the complainant deceased Nadimmiya Saifuddin Shaikh, who was sleeping in the terrace of the house, at about 1.00 O’clock to 2.30 O’clock in the night, with cement block and caused serious injury on the head of the deceased. Thereafter, the injured was first taken to Oswal Hospital and thereafter G.G. Hospital, Jamangar, where the doctor has declared him as dead. 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 laid 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 Atrocity Sessions Case No. 91/2006. 2.3 Thereafter, the Sessions Court framed the charge below Exh.-5 against the appellant for commission of the offence under section 302 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. Vindobhai Bhagvanjibhai Ex. 9 2. Harish Tulsibhai Ex. 10 3. Dr. Rahul Anilkumar Mehta Ex.11 4. Tumubha Bhikhubha Gohil Ex.15 5. Shabirsha Ibrahimsha Fakir Ex. 19 6. Ranabhai Karabhai Ex. 20 7. Jitubha Vibhaji Sodha Ex. 21 8. 2.4 To prove the case against the present appellant, the prosecution has examined the following witnesses: 1. Vindobhai Bhagvanjibhai Ex. 9 2. Harish Tulsibhai Ex. 10 3. Dr. Rahul Anilkumar Mehta Ex.11 4. Tumubha Bhikhubha Gohil Ex.15 5. Shabirsha Ibrahimsha Fakir Ex. 19 6. Ranabhai Karabhai Ex. 20 7. Jitubha Vibhaji Sodha Ex. 21 8. Karamshi Rajabhai Ex.24 9. Dr. Rakhalchandra Gopeshchandra Datta Ex. 30 10. Mohmad Nadimmiya Ex. 33 11. Ramprakash Ramlakhan Ex. 40 12. Rupgar Bhangar Gosai Ex. 41 13. Mahendrapratapsinh Shribasantusinh Ex. 52 14. Bhupatsinh Mansinh Solanki Ex. 53 2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused. 1. Yadi for PM Ex. 12 2. PM Report Ex. 13 3. Report of cause of death Ex. 14 4. Yadi to register the offence Ex. 16 5. True copy of Entry no. 25 of station diary Ex.17 6. Special Report Ex. 18 7. Map Ex. 22 8. Letter dated 5.7.2006 Ex. 23 9. Inquest panchnama Ex. 26 10. Panchnama of scene of offence Ex. 27 11. Panchnama of cloth of accused Ex. 28 12. Panchnama of box Ex. 29 13. Yadi for blood sample Ex. 31 14. Blood collection form Ex. 32 15. Yadi to send cause of death certificate Ex.42 16. Yadi to TDO, Jamnagar Ex. 43 17. Yadi to FSL Junagadh Ex. 44 18. Despatch nondh Ex. 45 19. Certificate Ex. 46 20. Original receipt of muddamal Ex. 47 21. Receipt Ex. 48 22. FSL report Ex. 49 23. Viscera report Ex. 50 24. Yadi Ex. 54 25. complaint Ex. 55 26. Discovery panchnama Ex. 56 27. Panchnama of scene of offence Ex. 57 28. Death enquiry Form Ex. 58 29. Yadi Ex. 59 30. Yadi for FSL Mobile Unit Ex. 60 31. Primary report Ex.61 32. Yadi Ex. 62 2.6 The defence has also examined one defence witness Ex. 65 and also relied upon one documentary evidence Ex. 66. 3. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of Cr. P.C. 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 3.2.2007 held the present appellant-original accused guilty of the charge levelled against him under sec. 313 of Cr. P.C. 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 3.2.2007 held the present appellant-original accused guilty of the charge levelled against him under sec. 302 of IPC, convicted and sentenced the appellant-accused, as stated above. 5. We have heard learned advocate Ms. Tripathi with Ms. Krishna G. Raval for the present appellant and Ms CM Shah learned APP for the respondent-State. 6. Ms Tripathi with Ms. Krishna G. Raval learned advocate appearing for the present appellant has fairly submitted that she 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 appellants may be convicted under sec. 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. 9. 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. 9. 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.-Whoever 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.” 10. 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 son of the deceased, and therefore, there is no question of mistaken identity. PW-10 Mahmad Nadimmiya Ex. 33, who is the son of the deceased, who along with other six people took the deceased to the hospital, but deceased succumbed to the injuries on the way and the doctor has declared him dead. The FIR was lodged immediately. The FSL report and the theory of last seen together and the evidence of all the witnesses would go to show that it was the accused alone who had committed the offence. We are unable to persuade ourselves to take a different view then the one taken by the learned trial Judge. However, as per the post mortem report and the medical evidence, the case was made out that it was a homicidal death. Injuries on the deceased shows that it was a single blow of cement block, may be in a heat of passion, and the deceased died due to shock on account of head injury. We are unable to persuade ourselves to accept the submission of the learned advocate for the appellant Ms. Krishna G. Raval assisted by Ms. Tripathi that this is a case of not offence under section 302 of IPC as no blood stains were found from the cement block. In this case, it would be necessary for us to rely on the old decision of the Privy Council in the case of Pulukuri Kottaya & Ors vs. Emperor, reported in AIR (34) 1947 Privy Council 67, as far as section 27 of the Evidence Act is concerned. 11. However, looking to the injuries, time of the incident and looking to the fact that there was no intention to cause death or there was no motive. The nature of injury, the part of the body, weapon used, will permit us to hold that the offence does not fall under sec. 304 Part-II of IPC. 11. However, looking to the injuries, time of the incident and looking to the fact that there was no intention to cause death or there was no motive. The nature of injury, the part of the body, weapon used, will permit us to hold that the offence does not fall under sec. 304 Part-II of IPC. The relevant consideration and on appreciation of the evidence, it is clear that the motive was absent and it cannot be said that he had no knowledge that injury was likely to cause death but as there was no motive to cause death, the case would fall within the purview of section 304 Part-I of IPC. 12. In the recent decision of the Apex Court reported in AIR 2013 SC 1484 in the case of Bakshish Ram and anr. vs. State of Punjab, wherein, the Apex Court has held that the High Court should apply its independent mind and record its own finding by making independent assessment of evidence. 13. In view of the above discussion, there is no doubt left in our mind about the guilt of the appellants. 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 assaulting with cement block on the head of the deceased could be attributed to the present appellant. 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 deserves to be allowed partly. 15. In the result, appeal is allowed in part. The impugned judgment and order dated 3.2.2007 passed by the learned Addl. Sessions Judge, Fast Track Court No. 4, Jamnagar in Sessions Case No. 91/2006 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. Fine as well as default sentence are unaltered. 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. Fine as well as default sentence are unaltered. 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. Appeal party allowed.