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2016 DIGILAW 942 (GUJ)

Narsinhbhai Manjibhai Damor v. State of Gujarat

2016-05-02

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. This appeal is filed against the judgment and order dated 28.11.2011, passed by the learned Additional District and Sessions Judge, Himmatnagar, Camp at Idar, whereby the present appellant-accused has been convicted for the offences punishable under Sections 302 of the Indian Penal Code (for short "IPC") and sentenced to undergo life imprisonment and fine of Rs. 5,000/- and in default of payment of fine, simple imprisonment for 1 year. The accused was also convicted under Section 135 of the Bombay Police Act, and sentenced to undergo rigorous imprisonment for 4 months and fine of Rs. 100/- and in default of payment of fine, simple imprisonment for 7 days. All these sentences were ordered to run concurrently. 2. The case of the prosecution in brief is that on 23.3.2010, at 20:00 hrs, the appellant-accused at village Dhuleta (Palla), had some scuffle regarding land with the deceased(his real brother) Ratibhai. During this scuffle, the accused gave stick blow on head of the deceased, thereby causing grievous injuries to the deceased, which resulted into death of the deceased. Thus, the accused was charged for the offence punishable under Section 302, 504 of the IPC. Moreover, on same day, date and time, Notification regarding Prohibition of Arms, issued by the District Magistrate was in force. Therefore, the accused was also charged under Section 135 of the Bombay Police Act. All the sentences were ordered to run concurrently. 3. On the basis of the complaint filed before the Police Sub Inspector, Shamlaji, investigation was carried out and the accused was arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same was committed to Sessions Court. Thereafter, charge was framed against the accused. The accused pleaded 'not guilty' and claimed to be tried. 4. During the trial, the prosecution has examined the following witnesses:- S. No. Name Exhibit No. 1. Dr. Suresh Shivram Agrawal 10 2. Shakriben Ranubhai Damor 15 3. Gauriben Manjibhai Damor 17 4. Somabhai Fatabhai Pandor 18 5. Madhubhai Badabhai Bamna 19 6. Singaji Badabhai Bamna 21 7. Sanjabhai Dhanabhai Pandor 22 8. Maganbhai Kanabhai Damor 23 9. Kanubhai Premjibhai Ninama 25 10. Govindbhai Bachubhai Damor 27 11. Singaji Rupaji Ninama 31 12. Adkhabhai Jethabhai Makwana 32 13. Dineshbhai Dahyabhai Solanki 38 14. Bhikhabhai Parshottambhai Panchal 40 15. Gauriben Manjibhai Damor 17 4. Somabhai Fatabhai Pandor 18 5. Madhubhai Badabhai Bamna 19 6. Singaji Badabhai Bamna 21 7. Sanjabhai Dhanabhai Pandor 22 8. Maganbhai Kanabhai Damor 23 9. Kanubhai Premjibhai Ninama 25 10. Govindbhai Bachubhai Damor 27 11. Singaji Rupaji Ninama 31 12. Adkhabhai Jethabhai Makwana 32 13. Dineshbhai Dahyabhai Solanki 38 14. Bhikhabhai Parshottambhai Panchal 40 15. Gunvantbhai Dhudabhai Prajapati 46 16. Laxmanbhai Thavraji Baara 51 17. Pravinbhai Adkhabhai Solanki 56 18. Nandlal Motibhai 57 19. Deepakbhai Ramanbhai Bhatia 60 5. During the trial, the prosecution has produced and relied upon the following documentary evidences:- S. No. Description Exhibit No. 1. Original Complaint 16 2. Inquest Panchnama 26 3. Panchnama of the place of offence 28 4. Panchnama regarding seizure of clothes 33 5. Panchnama regarding body condition of the accused and seizure of clothes of the accused 41 6. Panchnama regarding place of offence shown by the accused as well as production of Muddamal stick 42 7. Certificate of cause of death 13 8. P.M. Report 14 9. Primary Report of FSL 62 10. Notification of B.P. Act 63 11. Suchipatra and the order thereon 61 12. Inquest to fill Vardhi and order thereon 59 13. FTP message 64 14. Receipt of handing over of dead body 65 15. Yadi to draw map 52 16. Receipt of dispatch note of Muddamal sent to FSL 66 17. Receipt of Muddamal received at FSL 67 18. Yadi of PSI, Shamlaji written to Medical Officer, Shamlaji 11 19. Police Report sent to Civil Surgeon regarding death of the deceased 12 20. Slips of Panchnama 29, 30, 34 to 37 and 43 to 45 21. Map 53 22. Copy of Station Diary 58 23. Report of the FSL 68 6. At the end of trial, the Court below recorded further statements of the accused persons under Section 313 of Cr.P.C and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, the present appellant has approached this Court by way of present appeal. 7. Learned advocate for the appellant-accused has taken us through the evidence on record and submitted that the impugned judgment and order of conviction is against the evidence on record. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, the present appellant has approached this Court by way of present appeal. 7. Learned advocate for the appellant-accused has taken us through the evidence on record and submitted that the impugned judgment and order of conviction is against the evidence on record. The learned advocate has submitted that the trial Court has seriously erred in not considering the fact that the appellant and the deceased were the real brothers and that there was enmity amongst the brothers relating to some land property. Learned advocate further contended that the learned trial Court has not taken into consideration the fact that the crime in question had happened in a heat of a moment and out of the fit and anger, the appellant herein gave stick blow to the deceased, which resulted into the death of the deceased. Learned advocate for the appellant further contended that, even if the case of the prosecution is accepted, looking to the injuries as referred in PM Report at Exh.14, at paragraph 17, and cause of death at paragraph 23, the advocate submitted that the present case on hand falls under the purview of Section 304 part-I, of the IPC. Learned advocate further contended that even if the eye witnesses or other witnesses, the evidence of complainant along with PW-2 to PW-6, is concerned, the prosecution has miserably failed to prove the case against the present appellant. Learned counsel contended that after the occurrence of the incidence, the complainant had reached the place of offence. Hence, questions are raised by the learned counsel for the appellant about the credibility of the complaint given by the complainant. Furthermore, learned counsel has drawn the attention of the Court to Inquest Panchnama and P.M. Report, only singly blow is seen on the body of the deceased. Therefore, the learned advocate contended that offence punishable under Section 302 of the IPC be converted to offence punishable under Section 304 (part-1) of the IPC. 8. Learned counsel for the respondent has supported the case of the prosecution and contended that no case against the present accused is proved beyond reasonable doubt. 9. We have heard learned Counsel for both the sides and perused the documents on record. 8. Learned counsel for the respondent has supported the case of the prosecution and contended that no case against the present accused is proved beyond reasonable doubt. 9. We have heard learned Counsel for both the sides and perused the documents on record. Taking into account the Medical Evidence, PM Report at Exhibit-17, and the fact that single blow has caused death of the deceased, we hereby convert the offence of the accused to be punishable under Section 302 of the IPC to 304 (part-1) and the accused is ordered to undergo rigorous imprisonment for 10 years with fine as imposed by the trial Court. 10. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and order dated 28.11.2011, passed by the learned Additional District & Sessions Judge, Himmatnagar, Camp at Idar, in Sessions Case No. 95 of 2010, is modified to the extent that the conviction u/s. 302 of IPC is altered to one u/s. 304 part-1 of the IPC and the accused is ordered to undergo rigorous imprisonment for ten years without disturbing the order regarding fine and default sentence. The accused be given the benefit of set off for the period of sentence already undergone by the accused. The impugned judgment and order stands modified accordingly.