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2016 DIGILAW 109 (GUJ)

Mukesh Manilal Kaka (Brahman) v. State of Gujarat

2016-01-15

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Heard learned Advocate for the appellant Mr. Amrish K. Pandya and learned Additional Public Prosecutor for the respondent - State Mr. L.R. Pujari. 2. By way of this Appeal, the appellant accused has felt aggrieved by the judgment and order of conviction and sentence dated 03.11.2006 of the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No. 3, Vadodara in Special Atrocity Case No. 110/1999 whereby the appellant herein under Section 302 of the Indian Penal Code was sentenced to undergo rigorous imprisonment for life and fine of Rs. 2,000/-, in default rigorous imprisonment for two years. The accused was acquitted of the offences punishable under Section 3(2)(5) of the Prevention of the Atrocities Act. 3. The case in brief is as under :- "3.1. The complainant and PC Sunil Jayram were standing near the STD/PCO shop situated besides Makarpura Police Station, Baroda. At 19.00 hours, the account writer head of the police station Jibhabhai Nanabhai Rohit also came there. At that time, the appellant was talking with PC Sunil Jayram and on watching the deceased, the appellant got excited and started giving fist blows, due to which the deceased fell down on the road and dashed with the cemented corner of the drainage pit and became unconscious. The appellant allegedly ran away from the scene. The deceased was taken to the hospital and was declared dead. Upon inquiry, the complainant came to know that the deceased was having an illicit relationship with the wife of the appellant and out of this enmity, the incident occurred and thus, the present complaint came to be filed against the appellant. 3.2. Pursuant to the above First Information Report, the appellant came to be arrested and on completion of the investigation, the chargesheet was filed and appellant was charged for the above offences. 3.3. At the time of the trial, the prosecution examined the following witnesses :- Particulars Exh. Complainant – Laxmanbhai Shankarbhai Mali 27 Sunilbhai Jayrambhai Machhi 29 Santbaksh Bhagwansinh Rajput 30 Medical Officer – Dr. 3.3. At the time of the trial, the prosecution examined the following witnesses :- Particulars Exh. Complainant – Laxmanbhai Shankarbhai Mali 27 Sunilbhai Jayrambhai Machhi 29 Santbaksh Bhagwansinh Rajput 30 Medical Officer – Dr. Haresh Budhabhai Kothari 31 Kanaksinh Fatesinh Chavda 35 Ajitsinh Pratpsinh Chavda 37 Shantaben Govindbhi 38 Investigating officer Ghanshyamsinh Nirubha Jhala 39 The prosecution also relied upon various documentary evidence, some of them are :- Particulars Exhibit Original complaint of the complainant 28 Panchnama of the scene of offence 21 Inquest Panchnama 22 Panchnama of the seizure of the clothes of the deceased 23 Panchnama of the photographs produced 36 Yadi written for conducting the post mortem of the deceased 24 Postmortem Note of the deceased 32 Certificate given by the Medical officer 33 Certificate regarding the caste of the deceased 25 Receipt for the receipt of the body of the deceased 26 3.4. At the end of the trial, the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No. 3, Vadodara passed the above cited judgment and order of conviction and sentence." 4. Learned Advocate for the appellant Mr. Amrish K. Pandya has submitted that complainant himself has stated in his deposition that he had heard about the relationship of the deceased with the wife of appellant, which clearly shows that he himself had no personal knowledge of the relationship of the deceased with the wife of the appellant. The PW2 - Sunilbhai Jayrambhai Machhi who is an eye witness has stated in the deposition that he had no personal knowledge that the deceased was having relations with the wife of the appellant. It is further submitted that the learned Judge has failed to appreciate that no statement of the wife of the appellant nor that of the photographer is recorded. No negative of the photograph is obtained. Thus, the learned Judge has failed to appreciate that no intention or motive is clearly revealed out during the investigation. Hence, ingredients of Section 302 of the Indian Penal Code are not applicable in the instant case. Considering the above, it is submitted that this is a fit case which requires the interference of this Court and the judgment and order of the learned Judge be upturned. 5. Learned Additional Public Prosecutor for the respondent - State Mr. Hence, ingredients of Section 302 of the Indian Penal Code are not applicable in the instant case. Considering the above, it is submitted that this is a fit case which requires the interference of this Court and the judgment and order of the learned Judge be upturned. 5. Learned Additional Public Prosecutor for the respondent - State Mr. L.R. Pujari has assailed the judgment and order of the learned Sessions Judge and has submitted that this case does not require the interference of this Court. 6. We have learned Advocates for the parties and perused the records of the case. At this stage, it is necessary to refer to Section 302 of the Indian Penal Code which reads as under :- "302. Punishment for murder. -Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine." We have also perused the medical evidence and the Certificate dated 19.10.1999 issued by the Department of Forensic Medicine, Medical College & SSG Hospital, Baroda which states the cause of death as 'shock of hemorrhage and following injury on head, chest and abdomen'. We have also perused the Report submitted by the Tutor, Department of Forensic Medical, Medical College & SSG Hospital, Baroda which is detailed, self-explanatory and wherein the injuries suffered by the deceased are given. 7. In view of the above, the Appeal is partly allowed. The judgment and conviction of the appellant under challenge is modified and altered from Section 302 of the Indian Penal Code to one under Section304 Part II of the Indian Penal Code and the appellant is sentenced to undergo rigorous imprisonment for five years instead of life imprisonment. The rest of the part of the judgment and order of conviction and sentence remains unaltered. The fine and in default punishment as imposed by the trial court is maintained. If the appellant has already served the aforesaid period of sentence, he shall be set at liberty forthwith, provided he is not required by the Jail Authority for any other purpose. Record and proceedings be sent to the concerned Trial Court forthwith.