CR.A/69220/2002 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 692 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. ================================================= SARDARBHAI CHANDUBHAI DAMOR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ================================================= Appearance : MS SADHANA SAGAR for Appellant MS MITA S PANCHAL APP for Respondent - State ================================================= CR.A/69220/2002 2/8 JUDGMENT CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 04/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has filed the present appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed on 31-7-2002 by Addl. Sessions Judge, Sabarkantha at Himatnagar in Sessions Case No.122 of 2001 for offences punishable u/s 302 of the I.P. Code and sentencing him to undergo imprisonment for life and to pay fine of Rs.1000/- i/d to undergo imprisonment for six months. 2. In brief the prosecution case was that Subhashbhai, Rooseveltbhai and deceased Ashishbhai @ Sanjaykumar were the brothers and were attending a marriage on 9-6-2001. The accused was playing casio (Musical instrument) CR.A/69220/2002 3/8 JUDGMENT in the marriage ceremony. Roosevelt asked the accused to play Casio properly. Thereupon the accused stopped playing Casio and came running towards Roosevelt with a weapon like dagger. Therefore, Subhashbhai and Ashish @ Sanjay tried to catch the accused, but he inflicted dagger blow on the back of Ashish @ Sanjay and on account of injuries Ashish @ Sanjay died. 3. On the basis of the complaint lodged by Subhashbhai Rameshbhai, investigation was started. At the end of investigation charge sheet was laid against the accused for the offence punishable u/s 302 of the I.P. Code. As the case was triable by Sessions Court, the case was committed to Sessions Court, Sabarkantha at Himatnagar and it was registered as Sessions Case No. 122 of 2001. Learned Addl. Sessions Judge, Sabarkantha at Himatnagar framed charge Exh. 7 against accused for the aforesaid offence. The accused pleaded not guilty to the charge and claimed to be tried and therefore the prosecution adduced evidence. 4. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against him in the evidence. The accused in his further statement recorded u/s 313 of the Criminal CR.A/69220/2002 4/8 JUDGMENT Procedure Code, 1973 stated that false case is foisted upon him. 5. The learned trial Judge after learned A.P.P. and learned advocate for the accused and appreciating the evidence led by the prosecution found the charge against accused as proved and convicted him for the offence punishable u/s 302 of the I.P. Code and imposed the sentence as stated hereinabove. Being aggrieved by the said decision, the appellant – convict has preferred this appeal. 6. We have heard Ms. Sadhana Sagar for the appellant and Ms. Mita Panchal, learned Addl. Public Prosecution for the respondent - State at length and in great detail. We have perused the impugned judgment and record and proceedings of the trial court. 7. Learned advocate Ms. Sadhana Sagar submitted that there was only one fatal blow and it was inflicted without any intention to cause murder and therefore the learned trial Judge committed error in convicting the appellant for the offence of murder. Hence, interference is warranted in the impugned judgment and the appeal is required to be allowed. CR.A/69220/2002 5/8 JUDGMENT 8. Learned A.P.P. Ms. Panchal submitted that looking to injury, the accused was very well knowing that injury is likely to cause death and therefore there was intention on the part of the accused to cause death. Hence, the learned trial Judge was justified in convicting the appellant for the offence of murder and no interference is called for in the impugned judgment. 9. The evidence of P.W. 1 Dr. Dalabhai Fusabhai Parmar Exh. 10 indicates that one injury was caused to the deceased by one side sharp edged weapon and it was sufficient in the ordinary course of nature to cause death and such injury was possible was muddamal weapon. Postmortem Report Exh.12 also indicates that there was one injury on back of the deceased and the cause of death was injury to left lung leading to haemmrrohagic shock. In view of this, it is established beyond reasonable doubt that the death was homicidal in nature. 10. The evidence of P.W.7 Roosevelt Rameshbhai Katara Exh. 33 indicates that the accused was playing Casio in the marriage ceremony but he stopped playing it. The evidence also indicates that there was quarrel and the accused caught hold of the witness and the accused attacked CR.A/69220/2002 6/8 JUDGMENT Ashish @ Sanjay with dagger and ran away. Therefore there was quarrel between the witness and the accused and the deceased was not a party to the quarrel. There is nothing to indicate that the accused ever intended to assault Ashish @ Sanjay and to cause his death. 11. The evidence of P.W. 2 Subhashchandra Rameshbhai Exh. 16 indicates that as Roosevelt asked the accused to play Casio properly the accused came with dagger to assault and as the witness and Ashish @ Sanjay tried to rescue Roosevelt, the accused hit dagger blow on the back of Ashish. The witness has lodged F.I.R. Exh. 17. It also indicates that the accused tried to assault Roosevelt and therefore the first informant and Ashish tried to rescue him and the accused gave dagger blow on the back of the deceased. This evidence also indicates that there was quarrel between Roosevelt and the accused and the accused wanted to assault Roosevelt but Ashish was hit with dagger. Therefore, the accused did not intend to assault the deceased but as the deceased tried to intervene he was hit with dagger. 12. The evidence of P.W. 13 Kalpanaben Rameshbhai Exh. 41 indicates that there was quarrel and at that time the accused hit dagger on back of the CR.A/69220/2002 7/8 JUDGMENT deceased. It also indicates that the weapon was hit while Ashish @ Sanjay tried to intervene in the fight. 13. In view of above, it emerges that there was quarrel between the accused and Roosevelt and the deceased was hit, when he tried to intervene. Therefore, the accused had no intention to commit murder of Ashish. Therefore death was caused without pre-meditation, in a sudden fight in the heat of passion and the accused did not take undue advantage. Considering the nature of injury sustained by the deceased, in our considered view, the learned trial Judge committed error in convicting the accused for the offence of murder. Therefore, the cause would fall under Section 304 Part-I of the I.P. Code and to that extent the appeal is require to be allowed. 14. In the result, the present appeal is partly allowed and conviction and sentence of appellant Sardarbhai Chandubhai Damor recorded vide judgment and order dated 31-7-2002 by learned Addl. Sessions Judge, Sabarkantha at Himatnagar in Sessions Case No. 122 of 2001 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 CR.A/69220/2002 8/8 JUDGMENT sentenced to undergo sentence of rigorous imprisonment for the period of 10 years and to pay fine of Rs.500/- in default thereof to undergo rigorous imprisonment for one week. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/