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2015 DIGILAW 558 (GUJ)

State of Gujarat v. Palabhai Somabhai Harijan

2015-05-07

AKIL ABDUL HAMID KURESHI, V.M.PANCHOLI

body2015
Judgment Akil Abdul Hamid Kureshi, J. 1. These appeals are filed by the State Government challenging the judgment dated 01.10.1993 rendered by the Sessions Court, Jamnagar in Sessions Case No. 2 of 1993. The respondents-accused were charged with offences punishable under Sections 302, 324, 504 read with Section 34 and 114 of IPC. The learned Trial Judge convicted accused No. 3 for offence punishable under Section 304 Part-II of IPC and sentenced him to rigorous imprisonment of five years. The other two accused Nos. 1 and 2 were convicted for offence under Section 324 and sentenced to simple imprisonment of fifteen days. The State has, therefore, preferred Criminal Appeal No. 104 of 1994 insofar as all the accused were acquitted for offence under Section 302. The State has preferred Criminal Appeal No. 105 of 1994 seeking enhancement of sentence against accused No. 3 for his conviction under Section 304 Part-II of IPC. 2. Briefly stated, the prosecution version was that, on 01.10.1992, at about 11.30 at night, when complainant Premji Meethabhai and his brother Shyamjibhai were returning to their house from the field, the accused assaulted them. Accused No. 3 gave one blow with his axe on head of Shyamjibhai. The other two accused were carrying iron rods. They hit Shyamji with the rods. Accused No. 1 also gave a blow on the head of Premjibhai. Accused No. 2 gave a blow on his back. Shyamjibhai died later on during treatment. 3. PW 1 Premji Meethabhai Exh 11 was the injured eyewitness and also the first informant. He deposed that, on the night of the incident, he and his brother Shyamjibhai were returning home from their field at about 11.30 at night. The accused were standing. The accused assaulted them. Accused No. 3 Ruda Bechar hit Shyamjibhai with the axe on his head. The other two accused were carrying iron rod and hit Shyamjibhai with the rods. Accused No. 1 gave one blow on the head of this witness. Accused No. 2 hit him on the back. The other people gathered. They carried them home. Since he fainted, he did not know who these people were. His father Meethabhai also had received injuries. Accused No. 3 had hit him. They were taken to Irvin Hospital at Jamnagar. From Irvin Hospital his brother Shyamjibhai was taken to Ahmedabad where, during treatment he died. The other people gathered. They carried them home. Since he fainted, he did not know who these people were. His father Meethabhai also had received injuries. Accused No. 3 had hit him. They were taken to Irvin Hospital at Jamnagar. From Irvin Hospital his brother Shyamjibhai was taken to Ahmedabad where, during treatment he died. The FIR was recorded by the police at the hospital. 4. Dr. Khsamaben Hegde PW 3 Exh 20 had treated deceased Shyamjibhai at Jamnagar Hospital. He was brought to her at 7.30 in the morning next day. She had taken down the history given by the relatives of the patient as somebody having hit him with an axe the previous night. Patient was unconscious. She had noticed one injury on the head on the parietal region which could be caused by a blunt hard weapon. Looking to the serious condition of the patient, he was admitted. In the cross-examination, she agreed that if immediate treatment was given, the patient could have survived. As per her notes, Shyamjibhai had received only one injury on the head which could be caused by a stick or an iron rod. 5. Dr. Vinayakrav Patil, PW 5, Exh 35 had carried out the postmortem and noted the head injury and corresponding fracture of the scull. According to his opinion, death was due to hemorrhage and shock on sustaining the injuries. Other than the head injuries, he had noticed minor bruises and scratches on rest of the body. 6. The respective conviction of the accused is not under challenge. With respect to their involvement in causing injuries to deceased Shyamjibhai and his brother Premjibhai, PW 1, we have little doubt. The eyewitness accounts duly corroborated by medical evidence has been discussed by the Trial Court in the impugned judgment. We do not find it necessary to go into this aspect at any length. 7. The crucial question is, did the Trial Court commit an error in not convicting the accused for offence under Section 302and in handing down sentence of five years to accused No. 3 for offence under Section 304 Part-II. In this context, so far as accused Nos. 2 and 3 are concerned, the issue can be summarily disposed of. 7. The crucial question is, did the Trial Court commit an error in not convicting the accused for offence under Section 302and in handing down sentence of five years to accused No. 3 for offence under Section 304 Part-II. In this context, so far as accused Nos. 2 and 3 are concerned, the issue can be summarily disposed of. Even as per the prosecution and the prosecution witnesses, their role was of having given blows to deceased Shyamjibhai and his brother Premjibhai with iron rods on the parts of the body which cannot be termed as vital. None of the corresponding injuries were even remotely serious. In the cross examination of Premjibhai, PW 1, the previous animosity between the two sides and recent disagreement on account of religious ceremony was admitted. Thus, clearly the incident was not a pre-planned assault by all the three accused with premeditation to cause death. Each accused, therefore, would be responsible for his individual action. When these accused viz. accused No. 1 and 2 did not cause any serious injuries either to Shyamjibhai or Premjibhai, their conviction for offence under Section 324 calls for no interference. At any rate, they could never have been convicted for offence under Section 302. 8. Coming to the role of accused No. 3, it is established that he gave one blow on the head of the deceased Shyamjibhai with his axe. This blow caused serious injuries which, later on, resulted in his death. However, looking to established facts and circumstances, we do not find that the Trial Court committed any error in not convicting him for offence under Section302 of IPC. Firstly, as discussed earlier, his action was not premeditated. Secondly, he gave one blow with his axe. He could have given multiple blows but did not. Significantly, he used the blunt side of the axe and not the sharp side. This we cull out from the medical evidence where both the doctors were unanimous that the injury could have been caused by hard blunt substance and not a sharp edged weapon. Further, the injured did not succumb instantaneously. He could not be taken to a hospital at night for want of transportation. Dr. Khsamaben in her deposition stated that the patient was brought to her next day morning at about 7.30. He could have survived with timely treatment. Further, the injured did not succumb instantaneously. He could not be taken to a hospital at night for want of transportation. Dr. Khsamaben in her deposition stated that the patient was brought to her next day morning at about 7.30. He could have survived with timely treatment. Even otherwise after shifting injured Shyamjibhai under critical condition from Junagadh hospital to Ahmedabad, he survived for couple of days. By all accounts thus, even the accused No. 3 did not carry an intention to cause death. Under the circumstances, his conviction for offence under Section 304 was appropriate. His sentence of five years of imprisonment may seem on the lower side, however, it is well established that awarding sentence is primarily the discretion of the Court concerned. The Appellate Court would not interfere with the quantum of sentence unless it is shown to be grossly inadequate. Particularly, when the incident is more than 20 years old and when we do not find that the sentence can be categorized as grossly inadequate, at this distant point of time, we would not exercise the discretion to enhance the sentence. 9. In the result, criminal appeals are dismissed. R & P to be transmitted to the Trial Court. Appeal Dismissed.