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2016 DIGILAW 837 (GUJ)

Gulsing Godwabhai Rathwa v. State of Gujarat

2016-04-18

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. By way of this Appeal, the Appellant accused has felt aggrieved by the judgment and order of conviction and sentence dated 07.07.2011 passed by the learned 3rd Additional Sessions Judge, Jamnagar, in Sessions Case No. 56/2010 whereby the accused was convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine, simple imprisonment for a further period of six months. 2. The case of the prosecution is as under:-- "2.1. It is alleged that the accused herein on 13.03.2010 at about 19.30 hours and on 14.03.2010 at about 8.00 hours had consumed alcohol in the fields of the deceased near the well. The deceased had then asked the accused to water the fields to which the accused strongly objected and a fight took place in this regard. The accused got incensed and pushed the deceased into the well which was about 70 feet deep; the deceased received severe injuries on various parts of his body and he expired on account of the same. 2.2. A complaint in this regard was lodged with Dhrol Police Station, Jamnagar and at the end of the investigation, the charge-sheet against the accused were led in the Court of the learned Judicial Magistrate First Class, who in turn, committed the case to the Sessions Court, it being Sessions triable. The trial Court framed the charge, to which the accused pleaded not guilty and claimed to be tried. 2.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exh. Complainant Bharatsinh Bapuba Jadeja 15 Witness Vatubha Harisinh Jadeja 19 Panch Witness Yuvrajsinh Ramjubha Jadeja 20 Panch witness Vasudevgiri Ishwargiri Goswami 23 Panch witness Dalsukhbhai Babubhai Madhavacharya 25 Panch witness Pannalal Govindbhai Solanki 27 Panch witness Rukhabhai Bijalbhai Japda 29 Panch witness Abdul Gafar Abdul Ghani 32 Dr. Mahesh Mansukhbhai Tagadia 34 Investigating Officer Narubha Ranjitsinh Jadeja 39 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Mahesh Mansukhbhai Tagadia 34 Investigating Officer Narubha Ranjitsinh Jadeja 39 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Advertisement regarding the accidental death 16 Original complaint 17 Panchnama of the scene of offence 21 Inquest Panchnama 24 Demonstration Panchnama 26 Panchnama of arrest of the accused 28 Panchnama of the seizure of blood sample 33 Post Mortem Note 35 Death Certificate 36 Yadi written by the police for conducting the post mortem of the deceased 37 Yadi for conducting the inquest 41 Yadi for the blood samples collected 42 Yadi for the post mortem 43 Message written to the FSL for the Investigation 44 Report by the Mobile Unit of FSL 45 Yadi written to the FSL for the analysis of viscera 46 Receipt by the FSL for the muddamal received 47, 48 Forwarding letter of the FSL 49 Analysis Report of the FSL, Junagadh 50 2.4. At the end of the trial, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which the accused pleaded not guilty and stated that he has been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeal has been filed, as aforesaid." 3. Learned Advocate for the accused Mr. Mrudul M. Barot has taken this Court of the medical evidence and has argued on the aspect of charge. It is further submitted that the incident happened of all a sudden, in a spur of the moment and there was no pre-planned motive on part of the accused for pushing the deceased into the well which was very deep. It is further submitted that the accused at that juncture, was not aware that this act of his pushing the deceased into the well would cause his death. Considering the time that has elapsed and the unintended act of the accused as stated above, it is submitted that this Court may show mercy to the accused and convert the conviction of the accused to Section 304 Part I of the Indian Penal Code. 4. Learned Additional Public Prosecutor Ms. Considering the time that has elapsed and the unintended act of the accused as stated above, it is submitted that this Court may show mercy to the accused and convert the conviction of the accused to Section 304 Part I of the Indian Penal Code. 4. Learned Additional Public Prosecutor Ms. C.M. Shah has again taken this Court to the medical opinion of the Tutor, Forensic Medicine Department which states that the deceased 'died due to shock on account of head injury'. Learned Additional Public Prosecutor has also taken us to Column No. 17 of the said Report which is detailed and self-explanatory and it is stated that the act of the accused would amount to culpable homicide leading to murder. It is further submitted that the learned Judge has given cogent and convincing reasons to arrive at the conviction of the accused in the facts of the case and therefore, no interference is required at the hands of this Court. 5. We have heard learned Advocates appearing for the respective parties and perused the records of the case. At this stage, it would be relevant to refer to Section 302 of the Indian Penal Code which reads as under:-- "Punishment for murder. - Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine." We have gone through the evidences of the witnesses especially that of PW1 - Bharatsinh and PW2 - Vatubha as also the medical evidence. It surfaces on record that the both the accused and the deceased had been drinking and the incident of the accused pushing the deceased into a deep well had occurred all of a sudden when a scuffle had occurred between the two. It further transpires that there was no pre-planned motive on part of the accused to commit such an act and further, he did not have the sound knowledge of the fact that his act would result into the death of the deceased. It further transpires that there was no pre-planned motive on part of the accused to commit such an act and further, he did not have the sound knowledge of the fact that his act would result into the death of the deceased. Considering the submission advanced by learned Advocate for the accused and in the facts of the case, we are of the opinion that this Criminal Appeal is required to be allowed by holding the accused guilty for offence under Section 304, Part I of the Indian Penal Code and not for offence under Section 302 of the Indian Penal Code and sentence imposed upon the accused is required to be reduced to ten years imprisonment. 6. The present appeal is partly allowed. The judgment and order of conviction and sentence of the accused dated 07.07.2011 passed by the learned 3rd Additional sessions Judge, Jamnagar in Sessions Case No. 56/2010, is modified and altered from Section 302 of the Indian Penal Code to one under Section 304 Part I of the Indian Penal Code and the accused is sentenced to undergo rigorous imprisonment for ten (10) 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 period of sentence already undergone by the accused shall be considered for remission and set off in accordance with law. Record and proceedings be sent to the concerned Trial Court forthwith.