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2021 DIGILAW 851 (GUJ)

Mangabhai Jesabhai Vaghela v. State of Gujarat

2021-09-22

A.J.DESAI, NIRZAR S.DESAI

body2021
JUDGMENT : A.J. Desai, J. 1. By way of the present appeal under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for short), the appellant – original accused No. 1 has challenged the judgement and order dated 30.08.2013 passed by learned Additional Sessions Judge, Bhavnagar in Sessions Case No.196 of 2012, by which, the appellant has been convicted for the offences punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo life imprisonment and has been imposed a fine of Rs.2000/- and in default of payment of fine, to undergo one year rigorous imprisonment as well as conviction under Section 135 of the Gujarat Police Act and has been convicted for one year rigorous imprisonment and has been imposed a fine of Rs.1,000/- and in default of payment of fine, to undergo rigorous imprisonment of three months. 2. The appeal came to be admitted on 23.01.2014. Record and proceedings have been tagged along with paper book. 3. Short facts emerge from the record of the appeal are as under: 3.1. One Ashokbhai Bhavsangbhai Solanki, resident of village Ishwariya, Taluka Shihor, District Bhavnagar lodged an FIR bearing C.R.No.I-28 of 2012 with Songadh Police Station, District Bhavnagar against five accused for the offences punishable under Sections 302, 147, 148, 149, 447, and 504 of the Indian Penal Code as well as under Section 135 of the Gujarat Police Act. The accused persons came to be arrested by the Investigating Officer and on completion of investigation, charge sheet was filed before learned Magisterial Court. Since the offences are triable by learned Sessions Judge, learned Magistrate committed the case to learned Sessions Judge. 3.2. By an order dated 31.12.2012, charge came to be framed by 3 rd Additional Sessions Judge, Bhavnagar vide Exh.6. Charges levelled against the accused are denied by each of the accused and therefore, the Public Prosecutor proceeded with the trial. In all, 14 witnesses were examined by the prosecution to prove the case whereas the defence examined only two witnesses in support of the say of all the accused that they have been wrongly implicated in the crime. Further statement under Section 313 of the Code was recorded. Each of the accused persons denied the case put forward by the prosecution. 3.3. Further statement under Section 313 of the Code was recorded. Each of the accused persons denied the case put forward by the prosecution. 3.3. Learned Sessions Judge, after considering the oral as well as documentary evidence like panchnama, map, post-mortem note etc., acquitted rest of four accused persons from the charges levelled against them; however, present appellant – original accused No. 1 came to be convicted as stated herein above. 3.4. Hence, this appeal. 4. Mr. Param Buch, learned advocate for Mr. Satyam Chhaya learned advocate appearing for the appellant, at the outset, would submit that the appellant accused does not want to challenge his involvement in the crime but would submit that it is not a case of murder as defined under Section 299 and 300 of the IPC but the case falls under exception 4 of Section 304 of the IPC which is treated as culpable homicide not murder and therefore, his case may be converted under Section 304 of the IPC. 5. Mr. Buch, learned advocate for the appellant, by taking us through the deposition of the complainant namely Ashokbhai Bhavsangbhai Solanki, which has been recorded at Exh. 37, would submit that his four brothers are residing in the same area (faliya), wherein, the appellant and his brothers are also residing adjacent to the house of the deceased and his brother’s houses. He would submit that the incident had taken place at around 8.30pm on 04.07.2012, which began with the altercation between the parties and continued to 35 to 40 minutes. He would submit that as per the case of the prosecution as well as per the case of the complainant, who happens to be real brother of the deceased, the appellant and his brothers are residing adjacent to the deceased. He would submit that as per the deposition, the incident had taken place on 04.07.2012 when the niece of the complainant went for natural call near the house of the complainant. The windows of the houses of brothers of the appellant, which are on the back side of the houses of brothers of the appellant, are opening in the area where the girl went for natural call. At that time, brothers of the deceased started quarreling with the brothers of the appellant to close the windows. The windows of the houses of brothers of the appellant, which are on the back side of the houses of brothers of the appellant, are opening in the area where the girl went for natural call. At that time, brothers of the deceased started quarreling with the brothers of the appellant to close the windows. The altercation continued for some time and subsequently, the brothers of the appellant and his nephew namely Bhavesh came near the house of the appellant. Meanwhile, the appellant, who is also residing in the vicinity of the brothers of the appellant, came at the place of incident and gave knife blow on abdominal part of Shantibhai. After giving knife blow to the Shanitbhai, they ran away from the place of incident. He would submit that since the dispute with regard to closing of only windows of the house of the brothers of the appellant was going on for some time, without any intention, the appellant gave a knife blow to Shantibhai pursuant to which Shantibhai died while he was taken to the hospital. By taking us cross-examination of witness namely Ashokbhai, he would submit that he has admitted that some disputes are going on with regard to closing of windows, which are opening in the area where the family members of the deceased and his brothers are using as an open urinal. He has also admitted that there are no other windows in the houses of the brothers of the appellant for light and air circulation and therefore, they used to keep the window open. He would further submit that he had admitted the entire incident about altercation continued for 35 to 45 minutes; however, suddenly one of the brothers to the quarreling party took out a knife and gave a blow to one of the brothers i.e. deceased Shantibhai without any intention. He would further submit that this witness has stated that when the appellant reached the the place of incident, there was no altercation. But by taking through the deposition of another eye witness, namely, Vijaybhai Shambhubhai Solanki P.W. 10 at Exh. 39 and particularly in the cross-examination, it is admitted that even after arrival of the present appellant, the altercation had continued. The said altercation continued for 2 to 3 minutes, in which, the incident of giving knife blow occurred. 6. Mr. But by taking through the deposition of another eye witness, namely, Vijaybhai Shambhubhai Solanki P.W. 10 at Exh. 39 and particularly in the cross-examination, it is admitted that even after arrival of the present appellant, the altercation had continued. The said altercation continued for 2 to 3 minutes, in which, the incident of giving knife blow occurred. 6. Mr. Buch, learned advocate, has also taken us through the depositions of witness namely Dr. Sanjaybhai Shyama Chaudhari, P.W.7 at Exh.31 who has performed the post-mortem along with witness namely Dr. Dipakbhai Jasubhai Makwana, PW.11 at Exh.42, who was also signatory of the post-mortem note at Ext.32. He would further submit that the prosecution is able to prove only one injury sustained by deceased Shantibhai. He would submit that deceased succumbed to sole injury, which is sustained by the deceased on his spleen and its vessels and except this injury, there is no external injury nor any fracture sustained by the deceased. By taking us through depositions of various witnesses, he would submit that the manner and method in which the incident had taken place, the case would fall under exception 4 of Section 304 of the IPC. He would submit that due to sudden fight between the neighbors and in a passion, the appellant took out a knife and gave single blow, which cannot be treated as the appellant acted upon cruelty in unusual manner. He would submit that there was no intention on the part of the appellant to cause death or to cause such bodily injury, which is likely to result into death and therefore, appellant may be convicted and sentenced accordingly under Section 304-II of the IPC. In support of his case, by relying upon the decision in case of Stalin V. State represented by the Inspector of Police reported in (2020) 9 SCC 524 , he would submit the Hon’ble Apex Court, after considering the several decisions delivered by the Hon’ble Apex Court itself, has held that the Court is supposed to examine the case of entire facts of the crime, when it is the case of single blow. Learned advocate for the appellant would submit that the appellant had already undergone eight years and five months imprisonment and therefore, considering the decision rendered by the Hon’ble Apex Court in case of Stalin (supra) and considering the fact that the appellant had no intention to cause death by giving knife blow, the appeal may be allowed and the conviction may be converted into 304-II of the IPC. 7. On the other hand, Mr. J.K. Shah, learned Additional Public Prosecutor, opposed this appeal. He would submit that as per the prosecution case, other accused, who have been acquitted by the trial Court and there is no appeal at the instance of the State Government against the acquittal, had gone near the house of the deceased but none of them were having any weapon but suddenly present appellant came with a knife and gave a blow on the abdominal i.e. vital part of the body, which resulted into death of Shantibhai within a couple of hours. He would submit that there was no reason for the appellant, to came with a knife, at the place where some altercation was going on for trivial issue. He would further submit that coming at a place of incident with a deadly weapon like knife, the appellant had intention to use the same and reached at the place where altercation was going on between his brothers and the complainant are party, took out the knife and gave fatal blow to Shantibhai. 8. By taking us through the depositions as well as post-mortem note, he would submit that the injury sustained by the deceased suggests that the knife was used with such a force, which resulted in immediate death of Shantibhai. He would submit that case would not fall in 304-II of the IPC. By taking us through the reasoning of the judgement delivered by learned Sessions Judge, he would submit that the learned Trial Court has rightly held that the case would not fall under Section 304 of the IPC as pleaded by the appellant. Hence, present appeal may be dismissed. 9. We have heard learned advocates appearing for the respective parties. Perused the depositions of the witnesses namely Ashokbhai Bhavsangbhai Solanki, PW.9 at Exh.37, Vijaybhai Sambhubhai Solanki, PW.10 at Exh.39 and Kajalben Pravinbhai Solanki, aged about 15 years, PW12 at Exh.45, Dr. Hence, present appeal may be dismissed. 9. We have heard learned advocates appearing for the respective parties. Perused the depositions of the witnesses namely Ashokbhai Bhavsangbhai Solanki, PW.9 at Exh.37, Vijaybhai Sambhubhai Solanki, PW.10 at Exh.39 and Kajalben Pravinbhai Solanki, aged about 15 years, PW12 at Exh.45, Dr. Sanjaybhai Shyama Chaudhari, PW.7 at Exh.31 and Dr.Dipakbhai Jasubhai Makwana, PW.11 at Exh.42 as well as postmortem note at Exh.32. We have also gone through the map produced by the prosecution at Exh.65. It appears from the depositions of all the witnesses, scene of panchnama at Exh.17 and map at Exh.65 that the doors of the houses of the complainant side are opened in a common area whereas the windows of the house of brothers of the appellant are opened in the common area whereas their doors are on the other side. As far as the house of appellant is concerned, the same is located, opposite to the house of brother of the appellant which is nearer to the house of the appellant side. Thus, it appears that the house of the appellant side and the complainant side are adjacent to each other. The place where Kajalben allegedly had gone for natural call in a narrow passage where the windows of the appellant side are opened. The incident had taken place in front of house of one of the brothers of deceased namely Sureshbhai Jasubhai. 10. We have also gone through the injury sustained by the deceased as referred in Column 17 of the post-mortem note at Exh.32, which reads as under: “On removal of bandage applied on left lower chest, there is a CLW left lower part of chest 1 1/2 inch anterior to mid auxillary line. Vertical ovele in shape which has clearly defined margine and congested edges, which measures 2 inches length x 1 inch breath x 4 inches in depth with share angle at lower end. Layer cut in following order. Skin – S.C. tissue – Muscle. Pestimoniul.” 11. It is also pertinent to note that except single injury, there are no external injuries found on the body of the deceased. The cause of death shown in postmortem note at Exh. Layer cut in following order. Skin – S.C. tissue – Muscle. Pestimoniul.” 11. It is also pertinent to note that except single injury, there are no external injuries found on the body of the deceased. The cause of death shown in postmortem note at Exh. 32, read as under: “After doing P.M. of Shantibhai Bhavsangbhai Solanki aged 27 years, the cause of death is Cardiorespiratory arrest due to hypovolenic shock due to intra abdominal hemorrhage due to injury to spleen and its vessels by sharp edged pointed weapon.” 12. This has been discussed in detail in view of the fact that keeping in mind the depositions of the witnesses, who have deposed how and in what manner, the entire incident had taken place. As far as the complainant Ashokbhai Solanki at Exh. 37 is concerned, in his deposition, he has stated about the altercation took place between the members of the deceased as well as the appellant. He has also admitted that the altercation continue for 35 to 40 minutes and during the altercation, present appellant came with a knife and gave one blow to one of the brothers of the complainant side. He has admitted in his cross-examination that though there are toilet and bathrooms in the faliya of the house of the complainant side, the same belongs to one of the brothers but the family members of the brothers were not permitted to use the same and therefore, they were compelled to use the open place as urinal where the windows of the appellant’s house are opened and they are supposed to keep it open for light and air circulation. Though this witness has denied about continuous altercation after the injury received by the appellant, but another witness namely Vijaybhai Sambhubhai Solanki, PW.10 at Exh.39 has categorically admitted in his cross-examination that even after the appellant came at the place of incident, the altercation continued for some time. As admitted by all the witnesses that altercation continued between two group of different family members of the opposite parties, one of them, who might have suggested to take out knife and gave one blow to one of the members and who have gathered at the scene of offence in connection with a trivial dispute and therefore, the case fall under exception 4 of Section 304 of the IPC. 13. 13. We have also gone through the decision in case of Stalin (Supra) relied by Mr. Buch, learned advocate for the appellant wherein the Hon’ble Apex Court, after considering the several decisions delivered by the Hon’ble Apex Court itself and considering the facts involved in that case and one blow received by the deceased, converted the conviction under Section 304-II of the IPC and sentenced accordingly. 14. Having considered overall facts of the case and the submission made by Mr. Buch, learned advocate for the appellant that there was no intention on the part of the appellant to cause death and the appellant has already undergone sentence of eight years and five months and also considered the decision in case of Stalin (supra), we are of the opinion that the appeal deserves to be partly allowed and therefore, we pass the following order: 15. The appeal is partly allowed. The judgement and order dated 30.08.2013 passed by the learned Additional Sessions Judge, Bhavnagar, in the Sessions Case No. 196 of 2012, convicting and sentencing the appellant for life imprisonment and imposing a fine of Rs.2000/- and in default of payment of fine, to undergo one year rigorous imprisonment is modified and altered from Section 302 of the IPC to Section 304-II of the IPC. The period of sentence already undergone by the appellant – convict shall be considered for remission and set off. The appellant be released forthwith, if not required in any other case. Rest of sentence is upheld. 16. R & P be sent back to the concerned Court forthwith.