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2016 DIGILAW 205 (GUJ)

Patel Nareshbhai Laljibhai v. State of Gujarat

2016-01-28

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. Challenge is made to the judgment and order dated 29.11.2006 passed by learned Additional Sessions Judge and Presiding Officer, 8th Fast Track Court, Rajkot in Sessions Case No. 17 of 1994 in this appeal whereby learned Sessions Judge has been pleased to convict the accused herein and imposed the sentence upon them to undergo life imprisonment and fine of Rs. 100/- each in default, to undergo four months imprisonment for the offence punishable under section 302 read with section 34 of IPC. 2. The broad facts of the case are that on 6.9.1992 at around 5.00 hours in the morning at village Pipardi, near house of accused No. 3, the accused Nos. 1 to 3 in collusion with one another, accused No. 2 inflicted with stick and accused No. 3 inflicted iron pipe on the head of Mohanbhai Khimabhai and caused his death with an intention and thereby committed the offence of murder and hence they were charged for the offences punishable under section 302 and 34 of IPC. The accused are also charged for the offences punishable under sections 147 and 148 of IPC as the accused were armed with deadly weapons like stick and sickle and gathered illegally near the house of complainant - Bhimjibhai Mohanbhai on the same day at about 7.00 to 8.00 am with an intention to attack on the witnesses. The accused are also charged for the offence punishable under section 307 read with section 149 of IPC as well as for the offence punishable under sections 326, 325, 323 read with section 149 of IPC. 3. Therefore, FIR came to be registered before the Police Station. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the accused. 3.1 As the case was exclusively triable by the court of sessions, the same was committed to the Court of Sessions. The charge was framed against the accused at Exh.1. The accused pleaded not guilty to the charge and claimed to be tried. To prove the case against the accused, the prosecution has examined the following witnesses. Nos. Name of Witness Exh. 1. Bhimjibhai Mohanbhai 61 2. Nanukhima 66 3. Dalsukhbhai Premjibhai 73 4. Govindbhai Mohanbhai 75 5. Ghanshyambhai Laljibhai Laganda 79 6. Nagarbhai Keshabhai 85 7. Maganbhai Jadavbhai Rajpara 99 8. Bhupatbhai Malubhai Gohil 102 9. Gajesangbhai Naranbhai 107 10. To prove the case against the accused, the prosecution has examined the following witnesses. Nos. Name of Witness Exh. 1. Bhimjibhai Mohanbhai 61 2. Nanukhima 66 3. Dalsukhbhai Premjibhai 73 4. Govindbhai Mohanbhai 75 5. Ghanshyambhai Laljibhai Laganda 79 6. Nagarbhai Keshabhai 85 7. Maganbhai Jadavbhai Rajpara 99 8. Bhupatbhai Malubhai Gohil 102 9. Gajesangbhai Naranbhai 107 10. Manharbhai Popatbhai Patel 109 11. Avcharbhai Devkaranbhai Patel 111 12. Dolatsing Naranbhai 117 13. Pravinsinh Meruji Jadeja 131 14. Dr. Dhirajlal Maganlal Bhatt 155 15. Ramchandrasinh Bahadursinh Jhala 156 16. Bhogilal Jechandra Mehta 161 3.2 The prosecution has also produced the as many as 25 documentary evidences viz. Panchnama Exh.63, complaint report of Nanubhai Khimjibhai Exh.66, Panchnama of local place Exhs.100 and 101, Arrest Panchnama Exhs.106 and 107, Yadi Exh.139, Inquest Panchnama Exh.143, P.M. Report Exh.145 etc. 3.3 At the end of the trial, after recording the statement of the accused under section 313 of the Cr. PC and hearing the arguments on behalf of the prosecution and the defence, the trial Court delivered the judgment and order, as stated above. 3.4 Being aggrieved by the same, the appellants-original accused Nos. 1 to 3 have preferred the aforesaid Criminal Appeal before this Court. 4. We have heard Mr. Kazi, learned counsel for the appellants and Mr. L.R. Pujari, learned APP for the respondent State. 5. At the outset, it is submitted by Mr. Kazi, learned counsel for the appellants that dying declaration which has been recorded vide Exh.158 contains no kind of certification from the doctor before recording the same and, therefore, it is suspicious. He submitted that the medical evidence and evidence of complainant do not prove the commission of offence in the manner in which it is alleged. In his submission, therefore, learned trial Judge has committed serious error in convicting the accused for the offence punishable under section 302 of IPC by passing the impugned order. He submitted that the incident in question has taken place on 6.9.1992 whereas the deceased has died on 22.9.1992 and the cause of death is shock due to Septicemia Brain due to injury to scalp. He submitted that the Court below ought not to have convicted the accused for the offence under section 302 of IPC and at the most, they could have been convicted u/s. 304 Part-II of IPC. He submitted that the Court below ought not to have convicted the accused for the offence under section 302 of IPC and at the most, they could have been convicted u/s. 304 Part-II of IPC. In support of his submissions, learned advocate for the appellants relied upon the decision in the case of Maniben vs. State of Gujarat, (2009) 8 SCC 796 and also the decision in the case of B.N. Kavatakar and Another vs. State of Karnataka, 1994 Supp (1) SCC 304. 6. On the other hand, Mr. L.R. Pujari, learned APP has supported the impugned judgment insofar as the conviction of accused is concerned. He, however, submitted that the Court below ought not to have acquitted the other accused other than the appellants herein of the charges levelled against them and ought to have convicted them for the said offence also. 7. We have examined the matter carefully and gone through the evidence on record. We have appreciated, re-appreciated and re-evaluated the evidence on the touchstone of latest decision of the Hon'ble Apex Court. The medical evidence of Doctor Dhirajlal Maganlal Bhatt who has performed the postmortem has narrated the cause of death in column No. 23 of the postmortem that the death has caused due to shock due to Septicemia Brain due to injury to scalp. It is the contention of learned counsel for the appellants that death is caused after 16 days from the date of incident in question. Learned advocate for the appellants has restricted his argument on the question of quantum of sentence. Thus, in view of the evidence of the Doctor who has performed the postmortem and narrated the incident completely and whose evidence has gone unimpeachable in the cross examination, we find that conviction of the accused u/s. 302 of IPC is erroneous. Therefore, we find substance in the submission advanced by learned counsel Mr. Kazi that the offence committed by the accused would fall u/s. 304 Part-II of IPC. Therefore, we find substance in the submission advanced by learned counsel Mr. Kazi that the offence committed by the accused would fall u/s. 304 Part-II of IPC. Therefore, taking into consideration the medical evidence on record and as contended by learned advocate for the appellants that the death is caused after 16 days from the date of incident in question and in view of the decisions of the Apex Court in the case of Maniben (supra) and B.N. Kavatakar (supra), we are of the considered opinion that conviction u/s. 302 IPC of the accused is required to be altered to one u/s. 304 Part-II IPC and the accused are required to be ordered to undergo imprisonment for five years. 8. In view of the above, Criminal Appeal stands partly allowed. The impugned judgment and order dated 29.11.2006 passed by learned Additional Sessions Judge and Presiding Officer, 8th Fast Track Court, Rajkot in Sessions Case No. 17 of 1994 is modified to the extent that conviction u/s. 302 IPC of accused Nos. 1 to 3 is altered to one u/s. 304 Part-II IPC and the accused are ordered to undergo rigorous imprisonment for five years. The period of sentence already undergone by the accused be given set off. If the accused are on bail and if they have not undergone the rigorous imprisonment for five years, the accused shall surrender before the jail authority to serve the remaining sentence within a period of twelve weeks. Bail bond, if any, of the accused stands cancelled. Rest of the impugned judgment and order is not disturbed. Records and proceedings, if lying here, be sent to the trial Court concerned forthwith.