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2016 DIGILAW 897 (GUJ)

Ramanjee v. State of Gujarat

2016-04-26

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 21.07.2011 passed by the learned Additional District and Sessions Judge, Himmatnagar Camp at Idar in Sessions Case No. 33/2010 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. The accused was also convicted for the offence punishable under Section 135 of the Bombay Police Act and was sentenced to undergo rigorous imprisonment for four months and fine of Rs. 100/=, and in default of payment of fine, simple imprisonment for 7 days. Both the sentences were ordered to run concurrently and the accused was given the benefit of set off for the period of imprisonment in jail. 2. The case of the prosecution is as under:-- "2.1. On 18.11.2009 at about 5.30 pm, the wife of the complainant - Lilaben who had gone to deliver milk was returning back to the village was accosted by the accused herein. It is alleged that the accused asked Lilaben as to 'why she was not talking with him and why she refused to keep any love relations with him?' The accused is alleged to have pulled Lilaben, but at that juncture, the complainant's son - Mukesh intervened. So the accused threatened Mukesh. Mukesh came home and informed his father about the entire incident. Therefore, the complainant - Bakaji and his son went to the house of the accused to reprimand him but the accused allegedly gave threats. Again, the complainant and his brother - Dahyaji went to reprimand the accused for his lewd act with Lilaben but the accused was not available at his house. While returning back, both the complainant and his brother - Dahyaji happened to see the accused on the way. Dahyaji asked the accused as to why he was harassing his sister-in-law?. A verbal exchange of words ensued and thereafter, the accused is alleged to have pushed Dahyaji and also inflicted stick blows on Dahyaji, in the result, he was rendered unconscious and was not able to speak. Shouts for help were called, and many villagers gathered. Dahyaji asked the accused as to why he was harassing his sister-in-law?. A verbal exchange of words ensued and thereafter, the accused is alleged to have pushed Dahyaji and also inflicted stick blows on Dahyaji, in the result, he was rendered unconscious and was not able to speak. Shouts for help were called, and many villagers gathered. Dahyaji was shifted to the complainant's house and he expired there itself. Dahyaji was rushed to the Civil Hospital, Idar where he was pronounced dead. 2.2. A complaint in this regard was lodged and the investigation commenced and at the end of the investigation, the chargesheet 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. Dr. Gajendra Sherdan Gadhavi 10 Complaint – Bakaji Kuvarji Chauhan 23 Lilaben Bakaji Chauhab 26 Maheshkumar Bakaji chauhan 27 Ramilaben Dahyaji chauhan 29 Sartanji Somaji Thakore 33 Karanji Shankarji chauhan 37 Adkhaji Bhatiji chauhan 38 Pruthvisinh Dansinh Makwana 41 Nathubhai Sengabhai Desai 45 Mahipatsinh Roopsinh chachu 54 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Gajendra Sherdan Gadhavi 10 Complaint – Bakaji Kuvarji Chauhan 23 Lilaben Bakaji Chauhab 26 Maheshkumar Bakaji chauhan 27 Ramilaben Dahyaji chauhan 29 Sartanji Somaji Thakore 33 Karanji Shankarji chauhan 37 Adkhaji Bhatiji chauhan 38 Pruthvisinh Dansinh Makwana 41 Nathubhai Sengabhai Desai 45 Mahipatsinh Roopsinh chachu 54 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Yadi written by the PSI to the Medical officer 11 Cause of Death Certificate 13 Post Mortem Report 14 Receipt about body being handed over 16 Panchnama of the scene of offence 17 Inquest panchnama 18 Panchnama of the seizure of clothes from the body of the deceased 19 Panchnama of the position of the body of the accused 20 Panchnama of the seizure of the Shirt worm by the deceased 21 Original complaint 24 Panchnama of the clothes seized from the body of the accused 34 Slips of the panchnamas 35, 36, 40 Panchnama of wooden log used in the commission of the offence 39 Forwarding letter for the muddamal sent 48 Receipt about the muddamal received by the FSL 49 Forwarding letter about the preparation of map of scene of offence 43 Map of the scene of offence 44 Message Form 46 True Copy of Station Diary 47 Yadi written to the learned Executive Magistrate for the inquest to be carried out 50 Report of the Wireless Message 53 Alcohol Examination Certificate 56 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. P.S. Chaudhary 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 and in a spur of the moment and there was no pre-planned motive. It is further submitted that the accused at that juncture, was not aware that this act of his pushing the deceased and later inflicting blows would cause his death. It is further submitted that the incident happened of all a sudden and in a spur of the moment and there was no pre-planned motive. It is further submitted that the accused at that juncture, was not aware that this act of his pushing the deceased and later inflicting blows 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 also 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 Medical Officer, R.H. & Community Health Centre, Idar District, Sabarkantha which states that the cause of death was due to 'injury to vital organ of brain leading to hemorrhagic shock and death'. 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 vehemently submitted that the act of the accused asking for the favour as stated above from Lilaben can be termed to be immoral in the facts of the case and therefore, no leniency should be shown by this Court. 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, we are of the view that 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 1[imprisonment for life], and shall also be liable to fine." We have gone through the evidences of the witnesses especially that of the complainant as also the medical evidence. Column No. 17 of the Post Mortem Report qua the deceased reads as under:-- "(1) CLW - 7 cm x 0.5 cm x bone deep vertical ovr rt. side parietal region. Column No. 17 of the Post Mortem Report qua the deceased reads as under:-- "(1) CLW - 7 cm x 0.5 cm x bone deep vertical ovr rt. side parietal region. Margin of wound - irregular clotted blood present." It surfaces on record that the incident had occurred all of a sudden when a scuffle had occurred between the two parties. 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 Section302 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 21.07.2011 passed by the learned Additional District and Sessions Judge, Himmatnagar Camp at Idar in Sessions Case No. 33/2010, is modified and altered from Section302 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, as the case may be, in accordance with law. Record and proceedings be sent to the concerned Trial Court forthwith.