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2016 DIGILAW 887 (GUJ)

Gulabbhai Babarbhai Patel v. State of Gujarat

2016-04-25

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 26.03.2012 passed by the learned Additional Sessions Judge, Valsad, in Sessions Case No. 47/2009 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. 1,000/= and in default of payment of fine, simple imprisonment for a further period of six months. However, the accused was acquitted for the offences punishable under Sections 504,506(2) read with Sections 114 of the Indian Penal Code. The accused was given set off for the period undergone in jail. 2. The case of the prosecution is as under:-- 2.1. On 24.06.2009 at about 20.30 hours, it is alleged that all the original accused had a heated exchange with the deceased - Koyabhai Bulabhai and his wife - Rekhaben in respect of collection of money from the sale of wood. It is alleged that thereafter, all the original accused used abusive language, gave kick and fist blows and thereafter, inflicted blows with a wooden log on the forehead of Rakshaben and another blow on the head of Koyabhai. Because of the grievous injuries suffered, Koyabhai expired and threats were also allegedly administered to other witnesses. 2.2. A complaint was lodged in this regard and the investigation commenced. The weapons used in the commission of crime was recovered and at the end of the investigation, the chargesheet against the accused were filed 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. Panch witness Devabhai Naginbhai 2 Complainant Nayleshbhai Koyabhai Patel 13 Panch Witness Jagdishbhai Govindbhai 15 Witness Rakshaben Koyabhai 17 Witness Rajeshbhai Pramodray Desai 19 Witness Rajeshbhai Pramodray Desai 19 Dr. Jitesh Chaganbhai Raut 23 Dr. Ramjibhai Sitaram Yadav 35 Dr. Dineshprasad Jaguprasad 37 Dr. 2.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exh. Panch witness Devabhai Naginbhai 2 Complainant Nayleshbhai Koyabhai Patel 13 Panch Witness Jagdishbhai Govindbhai 15 Witness Rakshaben Koyabhai 17 Witness Rajeshbhai Pramodray Desai 19 Witness Rajeshbhai Pramodray Desai 19 Dr. Jitesh Chaganbhai Raut 23 Dr. Ramjibhai Sitaram Yadav 35 Dr. Dineshprasad Jaguprasad 37 Dr. Mitesh Navinchandra Desai 42 Witness Kalusinh Gopalbhai 45 Witness Raosaheb Nathubhai Patil 47 Witness Ashish Koyabhai Patel 53 Witness Sarojben Naileshbhai 56 Circle Inspector Witness Babubhai Karshanbhai 62 Witness Gulabbhai Maganbhai Patel 83 Witness Nitinbhai Bakulbhai Patel 88 Witness Sangitaben Jinubhai Patel 92 Police Witness Dipakkumar Bhaghubhai 94 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Panchnama of the scene of offence 9 Panchnama of the seizure of the nightdress (nighty) of Rekhaben 10 Inquest panchnama of the deceased Koyabhai 11 Panchnama of the seizure of clothes of the deceased Koyabhai 12 Complaint 14 Panchnama of the position of the body of the accused 16 Referral letter of Dr. Mitesh N. Desai 20 CT Scan Report of the deceased 21 Hospital Certificate of the deceased Kasturba 22 Letter written by the Medical Officer, Dharampur in respect of the injuries suffered by the accused 24 Certificate regarding the treatment given to Gulabbhai Babarbhai 25 Certificate regarding the treatment given to Ramanbai Babarbhai 26 Letter written by the Medical Officer, Dharampur in respect of the treatment given to Witness Rakshaben 27 Certificate regarding the treatment given to Witness Rakshaben 28 Letter written by the Medical Officer, Dharampur in respect of the treatment given to Witness Ashishbhai 29 Certificate regarding the treatment given to Witness Ashishbhai 30 Certificate of Gulabhbhai Babarbhai 31 Certificate of Ramanbhai Babarbhai 32 Certificate of Rakshaben Koyabhai 33 Case Certificate of Ashishbhai Koyabhai 34 Cause of Death Certificate of the deceased Koyabhai 39 Post Mortem Report of the deceased Koyabhai 40 Certificate given by Dr. Mitesh N. Patel qua the Witness Rakshaben 43 Certificate given by Dr. Mitesh N. Patel qua the deceased – Koyabhai 44 Photocopy of the Station Diary Entry 50 Map of the scene of offence 63 Panchnama of seizure of the wooden log 86 Letter regarding the sending of muddamal to FSL 98 Receipt of the FSL about the muddamal received 99 Analysis Report of the muddamal 101,102 2.4. Mitesh N. Patel qua the deceased – Koyabhai 44 Photocopy of the Station Diary Entry 50 Map of the scene of offence 63 Panchnama of seizure of the wooden log 86 Letter regarding the sending of muddamal to FSL 98 Receipt of the FSL about the muddamal received 99 Analysis Report of the muddamal 101,102 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 Ms. Yogini H. Upadhyay has taken this Court to 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 the death was on account of a single blow. It is further submitted that the accused at that juncture, was not aware that this act of his inflicting a single blow would cause the death of the deceased. 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 Mr. Pranav Trivedi has again taken this Court to the medical opinion of the Medical Officer, General Hospital, Valsad which states that the cause of death is 'due to shock due to intracranial haemorrhage due = skull bone'. Learned Additional Public Prosecutor has also taken us to Column No. 17 of the said Report which is 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. 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 PW8 - Dr. Dineshprasad Jaguprasad who performed the post mortem of the deceased. Column No. 17 of the said Report qua the deceased states '(1) Scalp injury stitch taken RT parieto temporal illegible 4x5 cm and (2) (N)U[[er chest (CLW) blackish". It surfaces on record that the both the sides had a hot exchange of words and then blows were inflicted as stated above. 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 26.03.2012 passed by the learned Additional Sessions Judge, Valsad, in Sessions Case No. 47/2009, 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 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.