CR.A/85820/2001 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 858 of 2001 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. ========================================================= RAMDARAS SHANKER GUPTA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR SUNIL C PATEL for Appellant(s) : 1, MR MUKESH A. PATEL APP for Respondent – State. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 26/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) CR.A/85820/2001 2/7 JUDGMENT 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 passed on 11-10-2001 by Addl. Sessions Judge, Valsad Camp in Sessions Case No.69 of 1999 for offence punishable u/s 302 of the I.P. Code and sentencing him to undergo imprisonment for life and to pay fine of Rs.500/- i/d to undergo simple imprisonment for one week. 2. In brief the prosecution case was that in the evening of previous day of the incident, accused came to the house of Vijay Bahadur Rampat at about 4-00 p.m. and demanded a chair and asked wife of Vijay Bahadur to prepare tea, but she refused. Therefore, the accused left the place after altercation. Thereafter at about 9-00 p.m. Vijay Bahadur Rampat and his father Rampat went to the house of the accused and scolded him. At night Vijay Bahadur and his wife were sleeping inside the room and his father was sleeping on “otala” in front of the room. At about 2-30 at night on hearing screams Vijay Bahadur and his wife came out of the room and saw the accused running away with a knife like weapon. On inquiry, his father informed them that accused had hit him with knife.. On account of injuries Rampat died. 3. On the basis of First Information Report lodged by Vijay Bahadur, investigation was started. At the CR.A/85820/2001 3/7 JUDGMENT end of investigation, charge sheet was filed against the accused for the offence punishable u/ss 302-504 of the I.P. Code and u/s 135 of the Bombay Police Act. As the case was triable by Sessions Court, the case was committed to Sessions Court, Valsad Camp and it was registered as Sessions Case No. 69 of 1999. Learned trial Judge framed charge Exh. 2 against accused for the aforesaid offences. The accused pleaded not guilty to the charge and claimed to be tried. 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 Procedure Code, 1973 stated that he is innocent and has not committed any offence and false case is foisted upon him. 5. The learned trial Judge after considering 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 above. Being aggrieved by the said decision, the appellant – convicted has preferred this appeal. 6. We have heard Mr. Sunil C. Patel learned advocate for the appellant and Mr. Mukesh A. Patel, learned Addl. Public Prosecution for the respondent - State CR.A/85820/2001 4/7 JUDGMENT at length and in great detail. We have perused the impugned judgment and record and proceedings of the trial court. 7. Learned advocate Mr. Patel for the appellant submitted that the incident occurred on account of grave and sudden provocation and therefore the learned trial Judge was not justified in convicting the appellant u/s 302 of the I.P. Code. 8. Learned A.P.P. Mr. Patel submitted that there is clinching evidence to indicate that murder was committed with pre-determined mind. There is no evidence to indicate that the incident occurred on account of grave and sudden provocation and therefore the learned trial Judge was justified in convicting the appellant and no interference is called for in the impugned judgment. 9. The evidence of P.W. 4 Vijay Bahadur Rampat Chauhan Exh.20 indicates that the accused came to his house in his absence and demanded chair from his wife and asked his wife to prepare tea, but as she refused the accused left the place and again came with a person and picked up quarrel. It also indicates that when the witness returned home his wife informed him about the incident and therefore the witness and his father Rampat went to the house of the accused. Thereafter at about 1-30 and 2-00 at night on CR.A/85820/2001 5/7 JUDGMENT hearing screams, the witness and his wife came out of the room and saw that the accused had attacked his father with knife outside the room. The witness has been extensively cross-examined but the defence has not been able to elicit that the witness did not see the incident. It is true that there is some improvement in the oral deposition with regard to incident. But this improvement is minor one and it does not go to the root of the prosecution case. This evidence clearly indicates that the accused was responsible for the assault and the injuries caused to the deceased. 10. According to the defence, it was grave and sudden provocation but considering the cross- examination of the witness it appears that the accused has even denied his presence at the place of incident. In our considered view, this cannot be accepted. There is nothing on record to indicate that there was provocation immediately before the incident. On the contrary, it appears that the accused with pre-determined mind armed with deadly weapon like knife assaulted the deceased. Therefore, it cannot be said that on account of grave and sudden provocation the accused attacked the deceased. 11. The Evidence of P.W. 1 Dr. Pradeepkumar CR.A/85820/2001 6/7 JUDGMENT Ramdatt Pure Exh. 7 indicates that injury No. 1 was sufficient in the ordinary course of nature to cause death and such injury was possible by muddamal knife. 12. Postmortem Report Exh. 8 indicates that two injuries were caused to the deceased and cause of death was shock due to injuries to vital organ liver. Therefore, the death was homicidal. 13. In view of above, it clearly emerges that the accused assaulted the deceased with deadly weapon with pre-determined mind and there was no grave and sudden provocation. Therefore, the learned trial Judge was justified in convicting the accused for the offence of murder. The learned advocate for the appellant has not been able to point out any infirmity in the impugned judgment. Under the circumstances, no interference is warranted in the impugned judgment and the appeal does not merit acceptance. 14. In the result, present Criminal Appeal fails and is dismissed. The judgment and order of conviction and sentence of present appellant dated 11-10-2001 recorded by the learned Addl. Sessions Judge, Valsad Camp in Sessions Case No. 69 of 1999 for the offence punishable u/s CR.A/85820/2001 7/7 JUDGMENT 302 of the I.P. Code, is confirmed. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/