CR.A/51420/2002 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 514 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No. 5 Whether it is to be circulated to the civil judge ? No. ================================================= RAMANBHAI FAKIRBHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================= Appearance : MR US BRAHMBHATT for Appellant(s) : 1, MS MITA S. PANCHAL for Respondent – State. ================================================= CR.A/51420/2002 2/8 JUDGMENT CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 02/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has preferred the present appeal u/s 374 (2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed on 6-6-2002 by learned Sessions Judge, Panchamahals at Godhara in Sessions Case No.43 of 2002 convicting him for offence punishable u/s 302 of the I.P. Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.1,000/- i/d to undergo R.I. for three months. 2. The case of the prosecution is that deceased Maniben was the mother of Gangaben who was married to Gajubhai Raghunath, the brother of accused Maniben Ramanbhai Fakirbhai. Gangaben was driven out of her matrimonial house and CR.A/51420/2002 3/8 JUDGMENT therefore she was residing with her mother deceased Maniben with her children. On 2-10-2001 at about 5-00 p.m. Gangaben and others were sitting on the 'otala' of their house, at that time, accused Ramanbhai Fakirbhai came there with with a big slit of wood with accused Maniben Ramanbhai and gave abuses to deceased Maniben and tried to take Gangaben to his house. As deceased Maniben tried to intervene, accused – Maniben gave her a push and so she fell down and accused Ramanbhai Fakirbhai hit the slit of wood on her head. On account of the injuries sustained on head, Maniben died. Therefore, the first information report was lodged by Manjulaben, wife of Mangabhai Vadilal. 3. On the basis of the First Information Report offence was registered and investigation was started. At the end of investigation, charge sheet was laid for the offence punishable u/ss 302, 504 and 114 of the I.P. Code against the accused. As the case was triable by the Sessions Court, the case was committed to Sessions Court, Panchmahals at Godhara and it was registered as Sessions Case No.43 of 2002. Learned trial Judge framed charge Exh. 2 for the aforesaid offences. The accused pleaded not guilty to the charge and claimed to be tried. Therefore the prosecution adduced evidence. CR.A/51420/2002 4/8 JUDGMENT 4. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused in their further statement recorded u/s 313 of the Code of Criminal Procedure, 1973 stated that false case is foisted upon them. 5. The learned trial Judge after having heard learned A.P.P. and learned advocate for the accused, convicted and sentenced the appellant. Being aggrieved by the said decision, the appellant – convict has preferred this appeal. 6. We have heard Mr. U.S. Brahmabhatt learned advocate for the appellant and Ms. Mita S. Panchal learned Addl. Public Prosecutor for the State at length and in great detail. We have perused the impugned judgment and record and proceedings of the trial court. 7. Mr. Brahmbhatt learned advocate for the appellant submitted that the appellant has inflicted only one blow without any intention to cause death and therefore the learned trial Judge committed error in convicting the appellant for the offence of murder. At the most, he could have been convicted for the offence of culpable CR.A/51420/2002 5/8 JUDGMENT homicide not amounting to murder and therefore the impugned judgment is required to be set aside. 8. Learned A.P.P. Ms. Panchal submitted that there were disputes between the deceased and the accused and assault was made with pre-determined mind. Therefore, the learned trail Judge was justified in convicting the appellant for the offence or murder and no interference is warranted in the impugned judgment and the appeal deserves to be dismissed. 9. P.W. 2 Dr. Subhashchandra Nathalal Sutariya Exh. 11 in his deposition deposed that the external injuries found on the dead body of the deceased were recorded in Postmortem Report Exh.13 and injury No.1 was possible by hard and blunt substance like slit of wood. The witness also deposed that the head injury was sufficient in the ordinary course of nature to cause death. 10. Postmortem Note Ex. 13 indicates that there were two injuries, out of which, one injury was on the head. It also indicates that death was caused on account of shock and haemrrohage due to head injury. This evidence indicates that deceased Maniben died on account of head injury sustained by her. Therefore, the death was CR.A/51420/2002 6/8 JUDGMENT homicidal in nature. 11. Now, the only question requires to be determined is whether the accused intended to inflict injuries with an intention to cause death or not. The evidence of P.W. 3 Manjulaben Mangabhai Exh. 14 indicates that the accused tried to take Gangaben to their house, to which the deceased and others resisted and the incident occurred. It appears that the accused had come to take Gangaben to their house and there was scuffle. Therefore, there was no intention on the part of the accused to attack the deceased and commit her murder. It appears that the murder was committed without pre-meditation in a sudden fight in a heat of passion upon a sudden quarrel. The accused has not taken undue advantage or acted in cruel manner. Therefore, the case would fall under Exception - 4 of Section 300 of the I.P. Code. Hence, the learned trial Judge committed error in convicting the appellant for the offence of murder punishable u/s 302 of the I.P. Code. 12. Considering the manner in which the incident ensued and the nature of weapon used, it suggests that the accused – appellant never had the intention of causing death and it was only because of circumstances that developed, in a CR.A/51420/2002 7/8 JUDGMENT spur of the moment, the appellant gave a blow to the deceased. At the same time, we are of the opinion that the appellant must have known the consequences of the blow being given and since it was a single blow, the offence would fall under Part I of Section 304 of the I.P. Code and therefore the conviction of the appellant is required to be altered from Section 302 of the I.P. Code to Section 304 Part – I of the I.P. Code 13. As regards the sentence, learned advocate for the appellant submitted that the appellant has been behind the bar since more than last seven years. 14. Therefore, considering the evidence on record and the totality of facts and circumstances of the case, we are inclined to set aside the conviction of the appellant under Section 302 IPC and instead convict the appellant under Section 304 Part-I of the IPC and sentence him to undergo rigorous imprisonment already undergone by him. Accordingly, conviction and sentence imposed by the learned trial Judge is altered from Section 302 of the I.P. Code to Section 304 Part – I of the I.P. Code and hence the this appeal is required to be partly allowed CR.A/51420/2002 8/8 JUDGMENT 15. In the result, the present appeal is partly allowed and judgment and order of conviction and sentence of appellant Ramanbhai Fakirbhai Ninama passed on 6-6-2002 by learned Sessions Judge, Panchmahals at Godhara in Sessions Case No. 43 of 2002 for the offence punishable u/s 302 of the I.P. Code is altered from Section 302 of the I.P. Code to Section 304 Part-I of the I.P. Code and the appellant is sentenced to undergo the imprisonment for the period already undergone by him. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim. N. Mehta, J.) /JVSatwara/