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2016 DIGILAW 347 (GUJ)

Prakashbhai Bhikhabhai Parmar v. State of Gujarat

2016-02-12

G.B.SHAH, K.S.JHAVERI

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JUDGMENT ; K.S. Jhaveri, J. 1. Both these appeals are preferred against the judgment and order dated 23.06.2008 passed by learned Additional Sessions Judge, Court No. 6, Ahmedabad City in Sessions Case No. 184 of 2007, whereby all the accused were held guilty for offence punishable under Section 302 read with Section 34of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for life, however, the accused were acquitted from the charge of offence punishable under Section 135 (2) of the Bombay Police Act. Feeling aggrieved by the impugned judgment, accused No. 1 has preferred Criminal Appeal No. 2369 of 2008, while Criminal Appeal No. 357 of 2009 is preferred by accused Nos. 2 and 3. 2. The facts in brief giving rise to the filing of present appeal are as under:-- "2.1 It is the case of the prosecution that a quarrel took place between the deceased Karan Bahadur and the accused, when the accused went to give delivery of a gas cylinder. It is alleged that keeping enmity of this incident, the accused persons went on a motor cycle at the building where the deceased was serving as a security guard. Thereafter, the accused called the deceased on the pretext of asking address and accused No. 3 gave a blow with spade on the head of the deceased. The other accused abetted the offence. Accordingly, the complaint was filed against the accused. 2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses:-- 1. Jayantibhai Ratnabhai parni. 15 2. Jitendra Bhimrav Bhamre. 24 3. Smt. Gracy Gregarilima 31 4. Bhimbadur Neshtu Shahi 33 5. Chandraprakash Manvarsinh Chauhan 34 6. Smt. Jagruti Devang shah 35 7. Jigar Jayantilal bhavsar 38 8. Dr.Yashodha Chunilal Shah. 40 9. Dushyant Natubhai Patel 43 10. Jayantilal Manganlal Sgharma 44 11. Hemantkumar Babulal Pandya 52 12. Babuji Dinaji Solanki 60 2.4 The prosecution had also produced and relied upon following documentary evidence:-- 1. Panchnama 11 2. Chandraprakash Manvarsinh Chauhan 34 6. Smt. Jagruti Devang shah 35 7. Jigar Jayantilal bhavsar 38 8. Dr.Yashodha Chunilal Shah. 40 9. Dushyant Natubhai Patel 43 10. Jayantilal Manganlal Sgharma 44 11. Hemantkumar Babulal Pandya 52 12. Babuji Dinaji Solanki 60 2.4 The prosecution had also produced and relied upon following documentary evidence:-- 1. Panchnama 11 2. Panchnama of recovery of clothes of the deceased. 12 3. Panchnama of physical condition of accused Dinesh and Parkash 14 4. Panchnama 16 5. Original Panchnama. 27 6. Original complaint. 30 7. Delivery Slip of gas. 32 8. Postmortem report 36 9. Certificate for reason of death 37 10. Death certificate of the deceased along with other papers. 39 11. Copy of the affidavit given by wife of the deceased for donating his kidney. 41 12 Report regarding offence 45 13. Dispatch letter 53 14. Report of FSL 54 15. Medical certificate of Accused-Dinesh 57 2.5 At the end of trial, the Court below recorded further statement of accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court. 3. At the time of hearing of these appeal, Ms. Contractor and Ms. Amrtia Ajmera, learned advocates appearing for the appellants have taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellants. However, after arguing the matter at some length, they fairly conceded that in view of the medical evidence and statements of other witnesses, though the offence against the accused can be said to have been proved, they are arguing only on the quantum of punishment. It is submitted that the case of the prosecution is based on circumstantial evidence and there is no substantial evidence to connect the accused with the crime. It is also submitted that wife of the deceased is not an eye witness. It is further submitted that even the resident of the flat, one Ms. Gracy cannot be said to be an eye witness and even from her evidence it is clear that she could not identify the accused persons. It is further submitted that from the postmortem report it is clear that only one injury is the reason for death of the deceased. Gracy cannot be said to be an eye witness and even from her evidence it is clear that she could not identify the accused persons. It is further submitted that from the postmortem report it is clear that only one injury is the reason for death of the deceased. It is submitted that even if the presence of the accused at the scene of offence can be said to have been proved by the statement of Executive Magistrate, who undertook the test identification parade, looking to the medical evidence, it is clear that there was only one blow given by the accused, therefore, they could not have been convicted for offence under Section 302. It is, therefore, submitted that the trial Court has committed an error in convicting the accused for offence punishable under Section 302 of IPC and at the most it would fall under Section 304, Part-I of IPC. It is further submitted that considering all these circumstances, offence alleged against the accused may be converted to Section 304, Part-I from that of Section 302 of IPC. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused Nos. 1 to 3 is just and proper and she has supported the conviction recorded by impugned judgment. Learned APP has 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 by this Court. She also submitted that though there is only one blow, it is on the vital part of the body, therefore, the learned trial Judge has not committed any error while imposing the sentence on the accused. She also submitted that in view of evidence of Executive Magistrate, presence of the accused persons is established as they have been identified in test identification parade. Therefore, she submitted that no interference is called for in the present appeals. 5. We have heard Ms. Contractor and Ms. Amrita Ajmera, learned advocates for the appellants-accused and Ms. C.M. Shah, learned APP for the State. We have also gone through the impugned judgment as well as evidence on record. In view of the medical evidence, the reason for death is sub choral, intra cerebral and cerebellar haematoma and its complications. 5. We have heard Ms. Contractor and Ms. Amrita Ajmera, learned advocates for the appellants-accused and Ms. C.M. Shah, learned APP for the State. We have also gone through the impugned judgment as well as evidence on record. In view of the medical evidence, the reason for death is sub choral, intra cerebral and cerebellar haematoma and its complications. In view of this, it can be said that the injury caused by the accused is the reason for death of the deceased and this is unnatural death. However, since learned advocate for accused has argued the matter only on the quantum of punishment, we are not discussing the evidence in detail and we have considered the matter only on this limited point. We are now required to consider the submission of learned advocate as to whether the offence falls within Section 302 or 304, Part-I of IPC or not. Taking into consideration medical evidence, it is clear that only one injury is the reason for death of the deceased and that too as per the column No. 17 of the postmortem report, it is stitched wound from xiphisternum to pubic symphysis (vertical) and horizontal naval region. This is the only reason which has resulted into the death of the deceased, therefore, it leaves a room for the accused to argue that this is not a case for Section 302. Presence of the accused persons at the scene of offence is well established and discovery of the weapon is also made at the instance of the accused. Therefore, the trial Court has not committed any error in convicting the accused, however, looking to the medical evidence, it can be said that the accused were not having an intention to kill the deceased, therefore, the accused are guilty of offence under Section 304, Part I of IPC and not for the offence under Section 302 of IPC. We are also required to consider the facts that the incident in question took place in 2006 and ten years have passed since then. Therefore, in our opinion, these Criminal Appeals are required to be partly allowed by holding the accused persons guilty for offence under Section 304, Part I of IPC and not for offence under Section 302 of IPC and sentence imposed upon them is required to be reduced to ten years' rigorous imprisonment instead of life imprisonment. 6. Therefore, in our opinion, these Criminal Appeals are required to be partly allowed by holding the accused persons guilty for offence under Section 304, Part I of IPC and not for offence under Section 302 of IPC and sentence imposed upon them is required to be reduced to ten years' rigorous imprisonment instead of life imprisonment. 6. For the foregoing reasons, both these Criminal Appeals are partly allowed. The impugned judgment and order dated 23.06.2008 passed by learned Additional Sessions Judge, Court No. 6, Ahmedabad City in Sessions Case No. 184 of 2007 is modified and instead of offence punishable under Section 302of IPC, the appellants-original accused Nos. 1 to 3 are held guilty for offence punishable under Section304, Part-I of IPC and ordered to undergo ten years' rigorous imprisonment. The period of sentence already undergone by the accused be given set off to them. The accused shall surrender before the jail authorities within a period of twelve weeks from today to serve out the remaining period of sentence. Remaining part of the impugned judgment shall remain unaltered. Bail bond, if any, of the accused stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.