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2016 DIGILAW 833 (GUJ)

Shivabhai Jinabhai Mer v. State of Gujarat

2016-04-13

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. This appeal is preferred against the judgment and order dated 31.05.2011, passed by Sessions Judge, Bhavnagar, in Sessions Case No. 122 of 2010, whereby the accused was held guilty for the offence punishable under Section 302 of the Indian Penal Code (for short, IPC) and ordered to undergo imprisonment for life and to pay fine of Rs. 1,000/- and, in default of payment of fine, the accused was ordered to undergo rigorous imprisonment for three months. The accused was also held guilty under Section 135 of the Bombay Police Act, and was ordered to pay fine of Rs. 250/- and in default of payment, to undergo Simple Imprisonment for one week. Feeling aggrieved by the impugned judgment, the accused has preferred the present Criminal Appeal. 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 on 27.04.2010, at about 08:00 p.m. the accused entered the house of the complainant with fatal equipment like 'Dhariya' at village Rohishada, Taluka: Palitana, District: Bhavnagar, as there was a dispute with regard to the house in which the complainant lived along with her deceased husband. The house in which the complainant and the deceased lived, happens to be the ancestral house of the deceased and the accused-appellant. The deceased was not vacating the house, since it was an ancestral property and hence, he too along with the accused-appellant had a share in it. Keeping a grudge of that, the accused entered the house of the complainant with 'Dhariya' and with an intention to murder gave blows of 'Dhariya' on the neck and head of the deceased, which led to the death of the deceased. The accused was therefore, charged u/sec. 302 of the I.P.C. Furthermore, on the same date, day and time, Notification of Prohibition of Arms Act issued by the District Magistrate was in force. In spite of this, the accused was found to be in possession of 'Dhariya' hence the accused was also charged u/s. 135 of the Bombay Police Act. 2.2 On the complaint being filed by the widow of the deceased before the P.S.I. Palitana (Rural) Police Station, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused person before the Magistrate Court. 2.2 On the complaint being filed by the widow of the deceased before the P.S.I. Palitana (Rural) Police Station, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused person 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:- S. No. Name Exhibit 1. Dr. Kalpnaben Harshadbhai Chauhan 8 2. Complainant Mithiben Ukabhai 10 3. Panch Mehboobbhai Sultanbhai 14 4. Panch Sanjaybhai Maljibhai Maru 16 5. Panch Kishorebhai Bhagabhai 17 6. Panch Batukbhai Mohanbhai 19 7. Panch Sajidbhai Shaukatali 20 8. Panch Asifbhai Usmanbhai 22 9. Panch Mukeshbhai Arjanbhai 23 10. Panch Aslambhai Kalubhai 25 11. Jagdishbhai Himmatbhai 27 12. Manjibhai alias Munna Raghavbhai 29 13. Dilipbhai Manibhai Barot 30 14. Naynben Zeenabhai Mer 34 15. Sumitkumar Jeetendrabhai Rajput 35 2.4 The prosecution had also produced and relied upon the following documentary evidence:- S. No. Description Exhibit 1. Postmortem Report 9 2. Complaint 11 3. Panchnama of Scene of Offence 12 4. Arrest memo of the accused 15 5. Panchnama regarding Muddamal recovery 18 6. Panchnama regarding seizure of deceased clothes and medical sample 21 7. Panchnama regarding medical sample 24 8. Panchnama of the dead body 32 9. Inquest Report 33 10. Serious Offence Report 36 11. Fax Message 37 12. Forwarding letter of medical sample sent to FSL 38 13. Forwarding letter regarding map 39 14. Map of place of offence 40 15. Yadi forwarding Muddamal 41 16. Receipt of the FSL 42 17. FSL forwarding letter 43 18. Analysis Report 44 19. Notification of Prohibition of Arms 45 20. Serological report 46 2.5 At the end of trial, the Court below recorded further statements of accused persons 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 this appeal, Mrs. Nisha M. Parikh, learned advocate for the appellant-original accused has contended that except the medical evidence and evidence at PW-13 and PW-15, all the witnesses have turned hostile. 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 this appeal, Mrs. Nisha M. Parikh, learned advocate for the appellant-original accused has contended that except the medical evidence and evidence at PW-13 and PW-15, all the witnesses have turned hostile. In that view of the matter, the prosecution has miserably failed to prove its case against the accused-appellant. In that view of the matter, the trial Court has committed an error in relying upon the evidence of the complainant-wife of the deceased. She further submitted that no independent witness has supported the case of the prosecution. However, after arguing the matter at some length, she 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, she is arguing only on the quantum of punishment. She submitted that the incident in question has occurred in the spur of the moment. Learned counsel for the appellant 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. Chetna M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellant-accused is just and proper and she has supported the conviction recorded by the 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 the learned trial Judge has not committed any error while imposing the sentence on the accused and, therefore, no interference is called for in the present appeal. 5. We have heard Mrs. Nisha M Parikh, learned advocate for the appellant-original accused and Ms. Chetna 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, injury with 'Dhariya' is established, therefore, it is clear that this is a case of murder. It is clear that the injuries with 'Dhariya' is the reason for death of the deceased and this is unnatural death. We have also gone through the impugned judgment as well as evidence on record. In view of the medical evidence, injury with 'Dhariya' is established, therefore, it is clear that this is a case of murder. It is clear that the injuries with 'Dhariya' is the reason for death of the deceased and this is unnatural death. However, since learned advocate for the 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 this limited point. We are required to consider the facts that the incident in question took place on 27.04.2010, six years have passed by then. The offence has happened in the spur of the moment. Therefore, in our opinion, this Criminal Appeal is required to be allowed-partly by holding the accused guilty for offence under Section 304, Part I of IPC and not for offence under Section 302 of IPC and sentence imposed upon him is required to be reduced to ten rigorous years imprisonment instead of life imprisonment. 6. For the foregoing reasons, this Criminal Appeal is partly allowed. The impugned judgment and order dated 31.05.2011, passed by Sessions Judge, Bhavnagar, in Sessions Case No. 122 of 2010, is modified and instead of offence punishable under Section 302 of IPC, the accused is held guilty for offence punishable under Section 304, 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 him. Remaining part of the impugned judgment shall remain unaltered. Bail bond, if any, stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.