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2016 DIGILAW 280 (GUJ)

Thakore Velaji Amthaji v. State of Gujarat

2016-02-05

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. Heard learned Advocates for the respective parties. 2. Criminal Appeal No. 1998/2008 is an appeal preferred by the original accused No. 4 - Thakore Velaji Amthaji, No. 5 - Thakore Dasharat Velaji and No. 6 - Thakore Tinaji Velaji against their conviction and sentence whereas Criminal Appeal No. 3133/2008 is an appeal preferred by the original accused No. 1 - Thakore Chanduji Takhaji, No. 2 - Thakor Thakhaji Amthaji, No. 3 - Thakor Kaluji Takhaji and No. 7 - Thakor Babuji Takhaji. 3. Both the Appeals are directed against the judgment and order of conviction and sentence dated 17.04.2008 of the learned Additional Sessions Judge, Fast Track Court No. 1, Mahesana in Sessions Case No. 121/2007 whereby the accused No. 1, 2, 3, 4, 5, 6 and 7 were sentenced to undergo under Section 302 of the Indian Penal Code, rigorous imprisonment for life with fine of Rs. 2,500/-, in default simple imprisonment of two years. All the accused were sentenced to undergo under Sections 147 and148 of the Indian Penal Code, rigorous imprisonment of two years each and fine of Rs. 1,000/-, in default simple imprisonment for six months. Further, under Section 323 of the Indian Penal Code, all the accused were sentenced to undergo rigorous imprisonment of one year and fine of Rs. 1,000/-, in default simple imprisonment of three months. Under Section 324 of the Indian Penal Code, the accused were sentenced to undergo rigorous imprisonment of three years and fine of Rs. 1,500/-, in default simple imprisonment. Under Section 504 of the Indian Penal Code, the accused were sentenced to undergo rigorous imprisonment of two years with a fine of Rs. 500/-, in default simple imprisonment for a six months. Under Section 506(2) of the Indian Penal Code, the accused were sentenced to undergo rigorous imprisonment of three years, with a fine of Rs. 1,000/-, in default simple imprisonment for a period of one year. All the accused were given the benefit of doubt and were acquitted of the offences punishable under Sections 336 and 337 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 4. The case in brief and the incident which occurred on 18.06.2007 are as under:-- 4.1. All the accused were given the benefit of doubt and were acquitted of the offences punishable under Sections 336 and 337 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 4. The case in brief and the incident which occurred on 18.06.2007 are as under:-- 4.1. It is the case of the prosecution that the complainant who is engaged in doing diamond labour work is residing with his family at Palodar. All the accused herein were residing near his house. At about 9.00 pm, the complainant alongwith the other accused was watching a TV Serial in the house of one Thakor Bhopaji. As they were many people who watching the TV Serial and were obstructing the view of the complainant, the complainant requested the accused to sit down. Incensed with this, the accused are alleged to have hurled abuses at the complainant. The original accused No. 2, 4 and 6 were armed with a stick, the original accused No. 3 with a sword and the original accused No. 5 armed with a dharia, chased and assaulted the entire family of the complainant. The complainant, his sister, his son and another person sustained serious injuries. The accused is alleged to have thrown a stone on one - Thakore Kaluji, because of which he become unconscious. Kaluji later on expired. 4.2. A complaint this regard was lodged by the complainant and the investigation was carried out. The chargesheet was submitted in the Court of the learned Magistrate which was committed to the learned Sessions Court. The accused pleaded not guilty and claimed to be tried. 4.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exh. Dr. Dipakkumar Vittalbhai Parmar 16 Prahladji Hajuji Thakore 33 Majuben Harchandji Thakore 36 Bharatji Harchandji Thakore 37 Vaghela Viramsinh Mahendrasinh 50 Shaileshbhai Valjibhai Raval 56 Patel Vinodkumar Jagjivandas 64 Sanjaiji Ramaji thakor 18 Navnitbhai Joitaram Patel 82 Udaji Harchandji Thakor 89 Rameshbhai Manilal Patel 90 Ravishal Ramlakhan Pathak 92 Dr. Bhavesh Vrajlal Nayak 99 Kantaben Shambudas Patel 101 Becharbhai Mulabhai Solanki 102 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Bhavesh Vrajlal Nayak 99 Kantaben Shambudas Patel 101 Becharbhai Mulabhai Solanki 102 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Depute Order of PSO 38 Telephone message of PSO 39 Letter written to the PSO for registration of offence 40 Wireless message written to the Police Officer 41 Inquest panchnama of the deceased ThakoreKaluji 43 Report of P.M. Cause of death 19 Certificate of cause of death 18 Panchnama of clothes of the deceased 44 Report of FSL Mobile investigation report 45 Medical Certificate of KantabenKuverji 20 Medical Certificate of UdajiArjanji 21 Medical Certificate of AkashjiPrahladji 22 Complaint of PrahladjiHajurji 34 Medical Certificate of BhikibenUdaji 23 Medical Certificate of RaibenAbuji 24 Post Mortem Report of ThakorKanujiPrahladji 17 Panchnama of the accused persons 69 Panchnama u/s. 27 of the Evidence Act 83 Panchnama of accused Babuji 46 Medical Certificate of Manjiben 26 Medical Certificate of Harjanji Prahladji 28 Medical Certificate of Bharatji Harjanji 30 Notification of the District Magistrate regarding registration of weapons 47 Report of FSL 48 Despatch Note of muddamal 49 4.4. At the end of the trial, the learned Additional Sessions Judge passed the above judgment and order. 5. Learned Advocates appearing for the accused in both the appeals have taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the accused. It is also submitted that as per the medical evidence, the cause of death is due to internal hemorrhage on account of injury to spleen and stomach and the offence in question will not fall under Section 302 of IPC and it may fall under Section 304, Part-II of IPC. It is further submitted that the accused were not knowing that their act would result into death of the deceased and, therefore, considering all these circumstances, the offence alleged against the accused may be converted to Section 304, Part-II from that of Section 302 of IPC. Reliance is placed upon the decision of the Hon'ble Apex Court rendered in Criminal Appeal No. 1130 of 2008 arising out of SLP (Crl.) No. 3368 of 2008 in the case of Vashrambhai Rambhai Barpara Vs. Reliance is placed upon the decision of the Hon'ble Apex Court rendered in Criminal Appeal No. 1130 of 2008 arising out of SLP (Crl.) No. 3368 of 2008 in the case of Vashrambhai Rambhai Barpara Vs. State of Gujarat dated 21/07/2008 and it is submitted that in a similarly situated circumstance like the present case wherein the cause of death was due to shock and hemorrhage due to multiple injury and injury and injury to spleen, the conviction of the accused was altered to one under Section 324 of the IPC to one under Section 304 Part-II of the IPC. Reliance was placed in the case of State of Gujarat Vs. Babu Kava [2003 (4) GLR 892] wherein also the similar view was taken while altering the conviction of the accused. 6. Learned Additional Public Prosecutor Ms. C.M. Shah has submitted that the order of conviction recorded against the accused persons is just and proper and she has supported the conviction recorded by impugned judgment. It is further contended that taking into consideration the medical evidence, evidence of the complainant, and other witnesses, the view taken by the trial Court is just and proper and no interference is called for. Learned Additional Public Prosecutor also submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused persons and, therefore, no interference is called for in the present appeals. 7. We have heard learned Advocates appearing for the respective parties and have also gone through the evidence on record. We have also perused the medical evidence. The cause of death shown in the report is due to internal hemorrhage due to injury to spleen and stomach. Therefore, it is clear that this injury is the reason for death of the deceased and this is an unnatural death. Now coming to the point whether it falls within 302, or 304, part-II, taking into consideration the injury, leaves a room for the accused to argue that this is not a case for offence under Section 302 of IPC. We are of the opinion that the trial Court has not committed any error in convicting the accused persons, however, looking to the nature of the injury, it can be said that the accused are guilty of offence under Section 304, Part II of IPC and not for the offence under Section 302 of IPC. We are of the opinion that the trial Court has not committed any error in convicting the accused persons, however, looking to the nature of the injury, it can be said that the accused are guilty of offence under Section 304, Part II of IPC and not for the offence under Section 302 of IPC. Further, the Hon'ble Apex Court in Vashrambhai Rambhai Barpara (supra) has also considered the similar nature of injuries like the present one and has altered the conviction, the relevant part of which reads thus: "Having considered the submissions made on behalf of the respective parties, and having regard to the nature of the injuries to the deceased and since there is no explanation as to what had caused rupture of the spleen in the absence of any external injury to the vital parts of the abdomen, we are inclined to agree with Mr. Arora's submissions that the injuries do not attract the provisions of Section 304 Part II, I.P.C. under which provision the High Court has convicted the appellant and has awarded sentence. Accordingly, we alter the conviction to one under Section 324 of the IPC and also reduce the sentence to a period of one year, and increase the fine to Rs. 10,000/- which is to be paid to the victim's family." 8. Thus, in light of the above and in light of the discussions made herein above, all these appeals are required to be allowed by holding the accused guilty for offence under Section 304, Part II of IPC and not for the offence under Section 302 of IPC and sentence imposed upon them is required to be reduced to five years imprisonment. 9. The Appeals are partly allowed. The judgment and order of conviction and sentence of the appellants accused under challenge, i.e. dated 17.04.2008 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Mahesana in Sessions Case No. 121/2007 is modified and altered from Section 302 of the Indian Penal Code to one under Section 304 Part II of the Indian Penal Code and the appellants are 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. 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. It is reported that the accused are on bail, and hence, they shall surrender to the jail authorities within a period of twelve weeks from today to serve the remaining period of the above sentence and if the accused do not do so, the jail authorities shall take appropriate steps to see that the accused are arrested and undergoes the sentence as awarded by this Court. Bail bond of the accused stands cancelled. The period of sentence already undergone shall be considered for remission and set off in accordance with law. Record and proceedings be sent to the concerned Trial Court forthwith.