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2015 DIGILAW 1257 (GUJ)

Ranjitsinh Dajibhai Chawda v. State of Gujarat

2015-12-08

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. Present appeal is directed against the judgment and order dated 10/10/2002 passed by the learned Additional Sessions Judge, Ahmedabad City, Ahmedabad in Sessions Case No. 24 of 2001, whereby, the appellant herein - original accused No. 2 came to be convicted for the offence punishable under Section 323 r/w. 114 and 302 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and for the offence punishable under Section 323 of the IPC, he was sentenced to undergo simple imprisonment for three months. Whereas, for the offence punishable under Section 302 of the IPC, he was sentenced to undergo life imprisonment. Both the sentences were to run concurrently. 2. Brief facts of the prosecution case are that on 04/07/2000 at about 8 o'clock, the complainant and the wife of accused No. 2 had an altercation as the complainant drew a drainage to pass on the rain water, which accumulated near the house of the accused. Thereafter, when the husband of the complainant returned home after job, she apprised the incident to him and hence, he reprimanded the accused due to which, the accused got excited and went near the house of the complainant and attacked her husband with kick and fist blows and thereby, caused severe injuries. The accused No. 2 caught hold the head of the husband of the complainant with heirs and hit it with wall and thereby, committed his murder. Thus, the accused committed the alleged offence for which, a complaint came to be lodged against the accused. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the City Sessions Court, Ahmedabad. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under: ORAL EVIDENCE S/n. Name of Witness Exh. 1. Jayaben Surendrasinh Rajzada 12 2. Dr. Rohit Zariwala 13 3. Maulik Surendrasinh Rajzada 15 4. Rajubhai Dhirajlal Gondaliya 16 5. Rameshkumar Sakharam Gavle 17 6. Dr. Bhavin Choksi 21 7. Udesinh Nathusinh 23 8. D. B. Bhatt 24 9. 1. Jayaben Surendrasinh Rajzada 12 2. Dr. Rohit Zariwala 13 3. Maulik Surendrasinh Rajzada 15 4. Rajubhai Dhirajlal Gondaliya 16 5. Rameshkumar Sakharam Gavle 17 6. Dr. Bhavin Choksi 21 7. Udesinh Nathusinh 23 8. D. B. Bhatt 24 9. Punjabhai Ganeshbhai 30 2.4 At the end of the trial, Further Statements of the accused under Section 313 of Code were recorded in which they pleaded not guilty and false implication. Thus, after recording above-referred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant - accused No. 2 as aforesaid by impugned judgment and order, being aggrieved and dissatisfied with the same, the appellant - accused No. 2 has preferred the present appeal. 3. We have heard learned advocate Mr. Harsh Gajjar for Mr. P.R. Nanavati, learned advocate for the appellant - accused No. 2 and Ms. C.M. Shah, learned Additional Public Prosecutor, for the State. 3.1 From the medical evidence, more particularly, the PM Note of the deceased, it appears that the deceased had sustained following injuries: "i) 0.5 x 0.5 cm red coloured abrasion present on inner aspect of left ankle; ii) 4 cm x 3 cm red contusion on front of chest just left to midplane 2 cm below suprasternal notch; iii) 6 cm x 4 cm red contusion on inner aspect right thigh just above right knee; iv) 2 cm x 3 cm red bruise on inner aspect of upper 1/3rd of right leg; v) 0.8 cm x 0.5 cm red contusion with abrasion on back of chest 4 cm left to midplane at T7 plane; vi) contusion of right buttock, transverse, 6 cm x 1 cm present on about mid of inner half of right buttock." 3.2 Looking to the aforesaid injuries, it appears that the death of the deceased was unnatural and cause of death of the deceased was 'shock of head injury'. Therefore, it was a culpable homicide. However, Mr. Therefore, it was a culpable homicide. However, Mr. Gajjar, learned advocate for the appellant - accused No. 2, contended that, if at all the incident as put forward by the prosecution had occurred, then also, it will not fall into culpable homicide amounting to murder and will fall under the exceptions narrated under Section 300 of the IPC as the incident had occurred in a spur of the moment and there was no intention or motive on the part of the accused behind committing such a crime and accordingly, this Court may consider the case accordingly and without prejudice to his rights and contentions, he eventually requested to convert the offence, at least under Section 304(I) of the IPC. In support of his submission, he relied upon an order of the Hon'ble Apex Court in the case of Mirza Hidayatullah Baig v. State of Maharashtra, reported in (1979) 3 SCC 321 . 4. Whereas, Ms. Shah, learned Additional Public Prosecutor for the State, supported the impugned judgment and order of the trial Court and contended that as the same having been passed in accordance with law and on due appreciation of the evidence on record and looking to such a brutal act performed by the appellant, no sympathy is required to be shown and ultimately, requested this Court to dismiss the present appeal. 5. We have examined the matter carefully and gone through the evidence on record. We have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. Considering the evidence on record, more particularly, the medical evidence, it is clear that the death of the deceased was homicidal. However, looking to the facts of the case, it appears that the incident had occurred in a spur of the moment and there was no intention or motive appears to have been there on the part of the accused No. 2 in committing such a crime. Accordingly, when the offence is already proved by the prosecution beyond reasonable doubt and the learned trial Judge has discussed each and every aspects of the matter, we deem proper not to discuss the same in detail. Accordingly, when the offence is already proved by the prosecution beyond reasonable doubt and the learned trial Judge has discussed each and every aspects of the matter, we deem proper not to discuss the same in detail. However, taking into consideration the fact that the incident had occurred in a spur of the moment, this Court is of the opinion that it will fall under the exceptions to Section 300 of the IPC and accordingly, interest of justice would meet if the offence punishable under Section 302 of the IPC for which, the present appellant - original accused is sentenced to life imprisonment, is modified and converted to offence punishable under Section 304(I) of the IPC and accordingly, the sentence is reduced to imprisonment for 10 years. 6. In view of the aforesaid discussion, present appeal succeeds in part and the impugned judgment and order dated 10/10/2002 passed by the learned Additional Sessions Judge, Ahmedabad City, Ahmedabad in Sessions Case No. 24 of 2001 is modified to the aforesaid extent and it is held that offence punishable under Section 302 of the IPC for which the appellant - original accused No. 2 is awarded sentence of life imprisonment by the trial Court, is converted into the offence punishable under Section 304(I) of the IPC and accordingly, he is sentenced to undergo ten years' rigorous imprisonment. Accordingly, he is directed to surrender before the concerned jail authority within 10 weeks from today so serve the remaining sentence, if any. He may be given benefit of set off for the period he has undergone. The rest of the impugned judgment and order shall remain unaltered. Bail bonds, if any, shall stand cancelled. Registry to return the R&P, if any, to the trial Court forthwith.