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2016 DIGILAW 988 (GUJ)

Hareshbhai Jilubhai Dhandhal v. State of Gujarat

2016-05-05

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. This appeal is preferred by accused No. 1 against the judgment and order dated 24.08.2012 passed by 6th Additional Sessions Judge, Rajkot, in Sessions Case No. 75 of 2009, whereby accused No. 1 was convicted 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. 5,000/- and in default of payment of fine, accused No. 1 was ordered to undergo further simple imprisonment for six months. By the impugned judgment, accused No. 1 was also convicted for the offence punishable under Section 307 of IPC and sentenced to suffer imprisonment for life and to pay fine of Rs. 1,000/- and in default of payment of fine, accused No. 1 was ordered to undergo further simple imprisonment of six months. Accused No. 3 was also convicted for the offences punishable under Sections 324 of IPC and 135 of the Bombay Police Act, while accused Nos. 2 and 4 were acquitted of the charges levelled against them. Being aggrieved by the impugned judgment, accused No. 1 has preferred present appeal before this Court. 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 the accused were having grudge against the complainant as a quarrel took place between the accused and the complainant at the time when they went to the Court at the time of hearing of a case. Therefore, on 12.12.2008, accused No. 1 in collusion with other accused persons planned to kill the accused and attacked him. It is alleged that accused No. 1 assaulted the deceased with a knife and caused injury in his chest. It is also alleged that accused Nos. 2 to 4 attacked the deceased with stick and caused injuries. With these allegations, the complaint was filed against the accused. 2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused 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. At the end of investigation, charge-sheet was filed against the accused 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. Kadvabhai Danabhai 17 2. Pratapbhai Hakubhjai Dhandhal 29 3. Chaprajbhai Chhelbhai Dhandhal 31 4. Mukeshbhai Bhikhabhai 37 5. Rameshbhai Jinabhai 42 5A Raghavbhai Jivrajbhai Dobariya 43 6. Bharatbhai Valkubhai Khachar 45 7. Babubhai Kathadbhai 48 8. Nathabhai Lakhabhai 51 9. Jentibhai Nagjibhai Savliya 52 10. Valkubhai Danbhai Khachar 57 11. Ramkubhai Punjbhai Gida 58 12. Vinubhai Dehabhai Kukadiya 60 13. Yogeshbhai Bhupatbhai 62 14. Vitthalbhai Tapubhai 64 15. Devjibhai Nanjibhai 65 16. Ramkubhai Devayatbhai Khachar 66 17. Jorubha Pithubha Dhandhal 67 18. Bavkubhai Aapabhai 71 19. Bhupatbhai Aapabhai Dhandhal 72 20. Dr. Ramnivas Ramlakhan 73 21. Dr. Somabhai Mohanbhai Kateshiya 78 22. Dr. Haridas Narbheram Desani 82 23. Purshottambhai Ganabhai Rathod 87 2.4 The prosecution had also produced and relied upon following documentary evidence:- S. No. Description Exhibit 1. Panchnama of the place of offence 18 2. Panchnama of the seizure of clothes of the deceased 30 3. Panchnama of seizure of clothes of Jorubha Pithubha, Bhupatbhai Aapabhai and Bavkubhai Aapabhai 35 4. Arrest panchnama of the accused and panchnama of seizure of clothes of the accused 38 5. Panchnama of seizure of muddamal knife 42 6. Panchnama of physical condition of the complainant 49 7. Discovery panchnama of stick, dero and badiko used in the offence 53 8. Panchnama of arrest and physical condition of accused no. 4 57 9. Complaint 63 10. Transfer form of the patient 74 11. Medical certificate of Jorubha Pithubha of Jasdan Hospital 75 12. Medical certificate of Jorubha Pithubha of Rajkot Government Hospital 76 13. Medical certificate of Bavkubhai Aapabhai of Rajkot Government Hospital 77 14. Indoor case paper of Yogeshbhai Bhuptbhai of Kateshiya Hospital 79 15. Medical certificate of Yogeshbhai Bhupatbhai 80 16. Yadi by Bhadla Police Station for giving medical certificate of the complainant 81 17. Yadi written by ASI of Jasdan Police Station for postmortem 83 18. PM report 84 19. Postmortem form 85 20. MLC case papers of deceased Munnabhai 86 21. Yadi for registering the offence 88 22. Medical certificate of Yogeshbhai Bhupatbhai 80 16. Yadi by Bhadla Police Station for giving medical certificate of the complainant 81 17. Yadi written by ASI of Jasdan Police Station for postmortem 83 18. PM report 84 19. Postmortem form 85 20. MLC case papers of deceased Munnabhai 86 21. Yadi for registering the offence 88 22. Report of serious offence 89 23. Yadi for giving medical certificate for injuries 90 24. Medical certificate of Bavkubhai Aapabhai 91 25. Medical certificate of Bhupatbhai Aapabhai 92 26. Yadi to Executive Magistrate to come for inquest 93 27. Inquest panchnama 94 28. Receipt of handing over dead body of Munnabhai 95 29. Letter for sending muddamal for analysis 96 30. Muddamal dispatch note 97 31. Description of muddamal 98 32. Sample 99 33. Certificate of authority 100 34. Receipt of muddamal 101 35. Letter written by FSL, Junagadh to take back muddamal 102 36. Forwarding letter of FSL with its report 103 37. Notification 104 38. Yadi for preparing and sending map of the place of offence 105 39. Yadi for sending map of the place of offence 106 40. Panch rojkam 107 41. Map of the place of offence 108 42. Injury certificate of Bhupatbhai Aapabhai 109 43. Serological report along with forwarding letter 110 44. Depute order 111 45. Depute order 112 46. Depute order 113 47. Extract of station diary entry no. 10/08 114 48. Extract of station diary entry no. 14/08 115 49. Copy of depute order for investigation 116 50. Complaint in the form of Section 154 118 51. Forwarding letter containing summary of the offence 119 2.5 At the end of trial, the Court below recorded further statements of accused 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 by accused No. 1. 3. At the time of hearing of this appeal, Mr. Ashish Dagli, learned advocate for the appellant-original accused No. 1 has taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellant. 3. At the time of hearing of this appeal, Mr. Ashish Dagli, learned advocate for the appellant-original accused No. 1 has taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellant. However, after arguing the matter at some length, he fairly conceded that in view of the medical evidence and statements of other witnesses, though the offence against accused No. 1 can be said to have been proved, he is arguing only on the quantum of punishment. He submitted that the incident in question has occurred in the spur of the moment and there was no pre-planning nor there was any intention on the part of the accused to kill the deceased, therefore, the trial Court has committed an error in convicting accused No. 1 for the offence punishable under Section 307 of IPC. He also submitted that for the incident in question, cross-complaints have been filed and the accused have also received injuries. He submitted that accused Nos. 1 to 3 had received injuries in the incident. Accused No. 1 received injury in parietal region, while accused No. 2 received injury on the forehead. Therefore, it can be said that it is a case of free fight and the trial Court has committed an error in convicting present appellant for the offences punishable under Sections 302 and 307 of IPC. He also submitted that though the presence of the accused at the scene of offence is proved, looking to the medical evidence, it is clear that there was only one blow given by accused No. 1, therefore, he could not have been convicted for offence under Section 302. He, therefore, submitted that the trial Court has committed an error in convicting the accused for offence punishable under Section 302 of IPC and at the most it would fall under Section 304, Part-I of IPC. He 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. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellant-accused No. 1 is just and proper and she has supported the conviction recorded by impugned judgment. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellant-accused No. 1 is just and proper and she has supported the conviction recorded by 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 further submitted that the injury caused by the accused was on the vital part of the body, therefore, this Court may not show any leniency towards accused No. 1. 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 Mr. Ashish Dagli, learned advocate for the appellant-accused No. 1 and Ms. C.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, the reason for death is cardio-respiratory arrest due to hemorrhagic shock because of injury on heart, therefore, it is clear that this is a case of murder. In view of this, it can be said that the injury caused by accused No. 1 is the reason for death of the deceased and this is unnatural death. However, since learned advocate for 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 now required to consider the submission of learned advocate as to whether the offence falls within Section 302 or 304, Part-I of IPC. Taking into consideration medical evidence, it is clear that only one injury is the reason for death of the deceased, therefore, it leaves a room for the accused to argue that this is not a case for Section 302. Only one injury on the chest of the deceased is the reason for death. However, it has come on record that in the present case, cross-complaints have been filed and the accused have also received injuries in the incident, therefore, presence of accused No. 1 as well as injury caused by him is not in dispute. Only one injury on the chest of the deceased is the reason for death. However, it has come on record that in the present case, cross-complaints have been filed and the accused have also received injuries in the incident, therefore, presence of accused No. 1 as well as injury caused by him is not in dispute. Therefore, the trial Court has not committed any error in convicting accused No. 1, however, looking to the medical evidence and the fact that the incident happened in the spur of the moment and the accused have also received injuries, it can be said that accused No. 1 is guilty of offence under Section 304, Part I of IPC and not for the offence under Section 302 of IPC. We are also required to consider the facts that the incident in question took place in 2008, eight years have passed and looking to the fact that there was no pre-planning or intention on the part of accused No. 1 to commit murder, in our opinion, the trial Court has also committed an error in awarding life sentence to accused No. 1 for the offence punishable under Section 307 of IPC and sentence imposed under Section 307 of IPC is also required to be reduced. Therefore, this Criminal Appeal is required to be allowed by holding accused No. 1 guilty for offence under Section 304, Part I of IPC and not for offence under Section 302 of IPC, moreover, sentence imposed upon him for offence punishable under Section 307 of IPC is also required to be reduced to seven years imprisonment instead of life imprisonment. 6. For the foregoing reasons, this appeal is partly allowed. So far as present appellant-accused No. 1 is concerned, the impugned judgment and order dated 24.08.2012 passed by 6th Additional Sessions Judge, Rajkot, in Sessions Case No. 75 of 2009 is modified and, instead of offence punishable under Section 302 of IPC, accused No. 1 is convicted for the offence punishable under Section 304, Part-I of IPC and ordered to undergo rigorous imprisonment for a period of ten years, without disturbing the order regarding fine and default sentence. Conviction of accused No. 1 for the offence punishable under Section 307 of IPC is upheld, however, sentence imposed for this offence is reduced to seven years rigorous imprisonment instead of life imprisonment, without disturbing the order regarding fine and default sentence. Conviction of accused No. 1 for the offence punishable under Section 307 of IPC is upheld, however, sentence imposed for this offence is reduced to seven years rigorous imprisonment instead of life imprisonment, without disturbing the order regarding fine and default sentence. Remaining part of the impugned judgment shall remain unaltered so far as accused No. 1 is concerned. The period of sentence already undergone by accused No. 1 be given set off to him. Accused No. 1 may also be given benefit of remission in accordance with law. Bail bond, if any, of accused No. 1 stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.