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2017 DIGILAW 235 (GUJ)

Amarsingh Bhulabhai Patel v. State of Gujarat

2017-01-31

Z.K.SAIYED

body2017
JUDGMENT : Z.K. Saiyed, J. 1. The present appellant - original accused of Sessions Case No. 50 of 1999, who is convicted by the learned Additional Sessions Judge, Panchmahal, Godhra, for the offence punishable under Section 304-II of the Indian Penal Code for a period of five years' rigorous imprisonment with a fine of Rs. 1,000/- and in default of payment of fine, for a further period of one month's rigorous imprisonment, has challenged the judgment and order of acquittal dated 04.12.2001, passed by the learned Additional Sessions Judge. 2. The short facts of the prosecution case are as under: 2.1 That on 21.11.1997, at about 6 o'clock in the evening, at Village Parabiya just near to the house of the present appellant, present incident took place. On 22.11.1997 at around 3 o'clock in the morning, before Police Sub-Inspector, Morva, complaint was disclosed. It was alleged that on 21.07.1997 at about 5 o'clock in the evening, when sister Urmilaben was coming back from the shop and as per her statement, when she was coming back from the Pan Galla, at that time, brother-in-law of the present appellant Amarsinh met her on road and told her to accompany him, as he is also going near to her house. She has given her tape to Amarsinh. When they reached near the farm of Zavra Magan Bhindi, at that time, Amarsinh had caught hold her hands and pulled her. Upon screaming done by her, Amarsinh ran away with the tape. It is further alleged that when the said incident was heard by the complainant Arjunsinh, the complainant, Urmila and her mother Surajben went to the house of Amarsinh and when they shouted, Amarsinh came out of the house and got excited and abused them. The appellant gave a kick blow on the stomach of the mother Surajben, to which she was fallen down and other accused Amrabhai Bhulabhai got enraged and run behind the complainant with a stick in his hand. He has also given a blow on the stomach of the mother Surajben and the complainant was also given kick and fist blows by Jaswant Balwant. It is further alleged that due to the injury caused to the mother Surajben, she died there and, therefore, the complaint under Sections 302, 354, 323 and 114 of the Indian Penal Code was registered. 3. The Investigating Officer has recorded the statements of the witnesses. It is further alleged that due to the injury caused to the mother Surajben, she died there and, therefore, the complaint under Sections 302, 354, 323 and 114 of the Indian Penal Code was registered. 3. The Investigating Officer has recorded the statements of the witnesses. Inquest Panchnama was also drawn. The dead body was sent for postmortem. The place of Panchnama was also prepared. Cloth of the deceased was also recovered. Muddamal under Section 27 of the Evidence Act was also recovered. The accused were arrested and a Postmortem Note was attached with the investigation papers. Thereafter, the charge-sheet was filed before the learned Judicial Magistrate, First Class, Santrampur. The same was committed to the Sessions Court and the Sessions Court has framed the charge. The statements were also recorded and just to prove the case of the prosecution, the prosecution has produced oral and documentary evidences of Prosecution Witness No. 1- Dr. Lalitkumar Desai at Exh. 6, Postmortem Note at Exh. 7, deposition of Prosecution Witness No. 2 - Arjunbhai at Exh. 8, complaint at Exh. 9, deposition of Raysingbhai, Prosecution Witness No. 3, who is the Panch of the Discovery Panchnama at Exh. 11, place of Panchnama at Exh. 17, Panchnama of the recovery of the cloths of the deceased at Exh. 18, recovery Panchnama at Exh. 12, deposition of eyewitness Urmilaben Prosecution Witness No. 4 examined at Exh. 13, deposition of Fulabhai, Prosecution Witness No. 5 at Exh. 14 and deposition of Investigating Officer Rajeshbhai, Prosecution Witness No. 6 at Exh. 15, Inquest Panchnama at Exh. 16 and map of the place of the offence at Exh. 20. Thereafter, the closing purshish was filed and the statements of the accused under Section 313 of the Code of Criminal Procedure, 1973, were recorded. The arguments of both the parties were also heard and after perusal of the evidence and arguments made by both the parties, the learned Judge has convicted original accused No. 1 for the offence punishable under Section 304-II of the Indian Penal Code and accused No. 2 was acquitted. Against the impugned judgment and order, the present appeal has been filed by the appellant- original accused No. 1. 4. Mr. J.S. Parikh, learned advocate for Mr. Against the impugned judgment and order, the present appeal has been filed by the appellant- original accused No. 1. 4. Mr. J.S. Parikh, learned advocate for Mr. Niral R. Mehta, learned counsel for the appellant, has read the charge and contended that the originally, the complaint was registered for the offence under Section 302 of the Indian Penal Code. He has further submitted that as far as the definition of murder is concerned, it is described under the provisions of Section 300 of the Indian Penal Code. He has further submitted that if the offence of murder is registered against anyone, the ingredients of Section 300 of the Indian Penal Code is required to be attracted. He has further submitted that as far as the injury found from the dead body of the deceased is concerned, the same was examined and it was found that the spleen was brushed. He has further submitted that as far as the case of the prosecution is concerned, one kick blow and one stick blow was given on the stomach of the deceased. However, it is the duty of the prosecution to establish that blows were given with an intention to kill the deceased. He has further submitted that as per the evidence of the complainant and eye-witness is concerned, they have not produced any oral or documentary evidence to show that the assault which was made by the appellant was with an intention to kill the deceased. He has further submitted that as far as the provisions of Section 27 of the Evidence Act is concerned, the ingredients are required to be proved beyond reasonable doubt. He has read the evidence of the complainant as also the cross-examination and argued that actually the complainant provoked the appellant-accused and resultantly, the incident took place. He has argued that in the result of the argument and evidence adduced before the Trial Court, the Trial Court has not considered the defence of the appellant. He has further argued that the Trial Court has committed a grave error in convicting the present appellant for the offence under Section 304-II of the Indian Penal Code as the present is simply a case of Section 325 or 324 of the Indian Penal Code, when the intention was not established beyond reasonable doubt. He has further argued that the Trial Court has committed a grave error in convicting the present appellant for the offence under Section 304-II of the Indian Penal Code as the present is simply a case of Section 325 or 324 of the Indian Penal Code, when the intention was not established beyond reasonable doubt. Therefore, he has prayed to reduce the sentence from 304-II of the Indian Penal Code to 324 of the Indian Penal Code. He has further prayed that the appellant accused be released on probation. 5. Ms. Monali Bhatt, learned Additional Public Prosecutor, has also read the charge and contended that originally the complaint was lodged by the complainant for the offence punishable under Section 302 of the Indian Penal Code. She has submitted that the dead body was also examined and the Postmortem was also done. She has drawn the attention of the Court to the injuries found on the dead body of the deceased and argued that as far as the evidence of the expert witness is concerned, he has disclosed that spleen of the deceased was found rupture. She has further submitted that the deceased was aged 50 years at the time of the incident and she was given kick and fist blows in such a force which resulted into her death. She has further submitted from the oral evidence of the doctor i.e. Prosecution Witness No. 1 that the appellant has never made any question to this witness to establish his probable defence. She has further argued that the injury which is found from the body of the deceased that can be considered a blow which was given in such a force that resulted fatal. She has further read the evidence of the complainant, in which it was stated that when the complainant and eyewitness went to the place of the present appellant-accused, at that time, he was excited and an attack was made by him to the deceased as well as the witnesses and as a result, a blow was given to the deceased which was resulted in the death of the deceased. She has further submitted that discovery Panchnama of weapon was also made and submitted to the Investigating Officer. She has further submitted that discovery Panchnama of weapon was also made and submitted to the Investigating Officer. She has further argued that from the overall perusal of the order of the Trial Court, the evidence of the prosecution witness is considered properly and the Trial Court has rightly convicted the present appellant-accused for the offence punishable under Section 304-II of the Indian Penal Code and the appeal be dismissed. 6. Heard learned counsel for the respective parties and perused the evidences of the prosecution witnesses. 7. In the present case, the only question which arises for consideration is that if there is an intention to cause injury to any person and if that injury results in fatal, then whether the punishment can be awarded under the provisions of Section 304-II, or not. Mr. Parikh has argued at length from the oral and documentary evidences and submitted that this is not a case of 304-II but it is a case which falls under the provisions of Section 323 of the Indian Penal Code. 8. This Court has minutely perused the oral evidence of the Medical Expert examined at Prosecution Witness No. 1 and from the contention of the Postmortem Note, it appears that due to the injury received on the stomach that was resulted in fatal and the deceased died. The doctor has disclosed that spleen was found damaged and in a brushed position. Now, the only question can be considered that how the spleen was brushed. This Court has after minutely perusing the cross-examination of the witness also, has found that the defence could not establish that the deceased was in habit of consuming liquor and in result of that bad habit, spleen was damaged. As per the Medical Jurisprudence, it is true that due to such a habit, it can be happened and injury can be possible by falling down on the earth. But here, as per the evidences of the eye-witness and Medical Expert, it is coming out that one kick blow was given on the stomach and one stick blow was given on the same part of the body of the deceased. This Court has perused the Postmortem Note and is of the opinion that when the kick blow was given in such a force that spleen of the deceased was brushed and she was expired. 9. This Court has perused the Postmortem Note and is of the opinion that when the kick blow was given in such a force that spleen of the deceased was brushed and she was expired. 9. Insofar as the question regarding the intention is concerned, which is also required to be considered at this stage, from the injury found from the body of the deceased, it is clear that the kick blow was given with sufficient force which reveals the intention of the present appellant accused and the Trial Court has rightly convicted the present appellant- accused for the offence punishable under Section 304-II of the Indian Penal Code. 10. In view of the above discussion, the appeal is dismissed. The impugned judgment and order dated 04.12.2001, passed by the learned Additional Sessions Judge, Panchmahal, Godhra, in Sessions Case No. 50 of 1999, is hereby confirmed. Since the appellant-accused is on bail, his bail bond stands cancelled and he is directed to surrender to custody within a period of four weeks from today.