CR.A/9919/1998 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.99 of 1998 With CRIMINAL APPEAL No.137 of 1998 For Approval and Signature: HONOURABLE MR. JUSTICE BHAGWATI PRASAD AND HONOURABLE MR. JUSTICE BANKIM N. MEHTA ========================================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 To be referred to the Reporter or not? 3 Whether Their Lordships wish to see the fair copy of the judgment? 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? 5 Whether it is to be circulated to the Civil Judge? ========================================================= = SAJAN HUSEN - Appellant Versus STATE OF GUJARAT - Respondent ========================================================= = Appearance : MRS SHILPA R SHAH for Appellant. MR MAULIK NANAVATI, APP for Respondent. ========================================================= = CORAM : HONOURABLE MR. JUSTICE BHAGWATI PRASAD and HONOURABLE MR. JUSTICE BANKIM N. MEHTA Date : 14/10/2008 CR.A/9919/1998 2/8 JUDGMENT COMMON ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE BHAGWATI PRASAD) These two appeals have been filed challenging the judgment and order dated 02.01.1998 passed by the learned Additional Sessions Judge (Atrocity), Special Court, Kutch-Bhuj in Special Case No.126 of 1997 whereby the Special Court has convicted the appellants of both the appeals for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code [“IPC” for short] and sentenced them to suffer life imprisonment and imposed fine of Rs.5000=00 each, in default S.I. for six months. 2. Briefly stated the case of the prosecution is that two years prior to the incident of 13.02.1997, a quarrel had taken place between the deceased Harijan Vajabhai and the present appellants over fence allegedly put up by the appellants outside their hut in the slum behind Cargo Petrol Pump. As a result of the said quarrel, the relationship between the deceased and accused had become bitter. On 13.02.1997, at about 6.00-6.30 p.m., the accused persons had an altercation with deceased Harijan Vajabhai Bhavabhai outside their slum quarters; abuses were hurled by the accused and the deceased; CR.A/9919/1998 3/8 JUDGMENT and the accused thereafter getting enraged gave one blow each with the wooden-log on the face and head of the deceased. The accused Suleman Husain gave a blow on the head of Vajabhai and accused Sajan Husain gave a blow on the face of Vajabhai. Because of the injuries caused by the said blows, Vajabhai died and a case of offence under Section 302 IPC came to be registered against the present appellants. It was also the case of the prosecution that deceased Vajabhai belonged to Scheduled Caste and the appellants gave him castiest abuses. Therefore, a charge under Section 3(2)(5) of the The Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities) Act, 1989. The trial Court after appreciating the evidence led by the prosecution found the appellants guilty of the offence punishable under Section 302 IPC, but acquitted them of the charge under the Atrocities Act. 3. Heard Ms.Shilpa Shah, learned advocate for the appellants-accused in both the appeals and Mr.Maulik Nanavati, learned Additional Public Prosecutor for the respondent-State. They have also taken us through the entire record of the trial Court. 4. Ms.Shah, learned advocate for the appellants, argued at CR.A/9919/1998 4/8 JUDGMENT length, inter alia, contending that most of the witnesses examined by the prosecution including the complainant – Babu Kaya Harijan have turned hostile and not supported the case of the prosecution. Each of these witnesses has stated in their evidence that they reached the place of the offence only after the deceased had fallen on the ground and that they have not seen the actual commission of crime. Only two witnesses, P.W.-6 Velabhai Maheraman (uncle of deceased) and P.W.-8 Lakhibai Vajabhai Harijan (wife of deceased) have supported the case of the prosecution. However, she has submitted that neither of these two witnesses had actually witnessed the incident and had come at the place of the offence only after the deceased had fallen on the ground. Even otherwise, being close relatives of the deceased, they are interested witnesses and, therefore, also their evidence should not be believed. She has also pointed out that there are several contradictions and omissions in the evidence of these two witnesses and there is no grain in their evidence which can form the basis of the conviction and, therefore, the conviction of the appellants is unsustainable. 5. On scrutinizing the evidence of these two witnesses, we are not in a position to accept the said submissions of the learned CR.A/9919/1998 5/8 JUDGMENT counsel. So far as the assault on the deceased by the appellants is concerned, the evidence of these two witnesses has remained unchallenged and on the other hand, it gets corroboration from the evidence of the doctor, who conducted the postmortem examination of the deceased. 6. It is true that the complainant–Babubhai Kaya has turned hostile, but in his cross-examination by the learned Prosecutor, he has admitted to have given the complaint. As far as witnesses Vela Maheraman (P.W.-6) and Lakhibai Vajabhai Harijan (P.W.-8) are concerned, though they are related to the deceased, on this ground alone their evidence cannot be discarded. Both these witnesses have stated about the manner in which the incident had happened; the role played by the accused and how the deceased was transferred to the hospital from the place of incident. Nothing has been brought out in the cross-examination, which would render their evidence doubtful or incredible. On the contrary, we find that their evidence is trustworthy and inspires confidence. 7. Ms.Shah, learned advocate for the appellants, then urged that even if the prosecution has been able to establish that CR.A/9919/1998 6/8 JUDGMENT appellant–Suleman Kumbhar gave a blow on the head of the deceased and appellant–Sajan Husen gave a blow on the face of the deceased, the evidence led by the prosecution unhesitantly and unequivocally points out that the accused never came with the intention of killing the deceased though ultimately on account of certain hot exchange of words between the deceased and the accused, the appellants gave blows with the wooden-log and, therefore, the conviction will not be one under Section 302 IPC but one under Section 304 IPC. 8. The learned counsel appearing for the State on the other hand contended that looking to the severity of the blow and the situs of the body of the deceased where the blow was given, conclusively indicates the intention, the same being to cause the murder and, thus, the offence under Section 302 IPC. 9. To appreciate the correctness of the rival submissions, we have examined the evidence of P.W.-6, Velabhai Meraman and P.W.-8, Lakhiben Vajabhai as also the complaint and the evidence of complainant P.W.-1 Babu Kaya. Their evidence clearly discloses that there was heated altercation between the appellants and the CR.A/9919/1998 7/8 JUDGMENT deceased and that both sides were abusing each other. As a result of such animated conversation, the appellants got enraged and in the heat of the moment gave a blow each on the head and face of the deceased. The very fact that the appellants did not immediately assault the deceased on his coming out of his quarter and that there was an altercation preceding the actual assault suggests that the accused never came with the intention of causing death of the deceased and it was only because of circumstances they developed on spur of the moment that the appellants gave the respective blows to the deceased. At the same time, we are of the opinion that the appellants must be held to have known the consequences of the blows being given and since it was a single blow, the offence would be one under Part I of Section 304 IPC. We are inclined to set aside the conviction of the appellants under Section 302 IPC and instead convict them under Section 304 Part-I of the IPC and sentence them to undergo rigorous imprisonemnt for ten years and fine of Rs.5,000=00 each, in default, S.I. for six months. 10. For the foregoing reasons, both the appeals are partly CR.A/9919/1998 8/8 JUDGMENT allowed. The conviction of both the appellants is altered from Section 302 IPC to one under Section 304 Part I of the IPC and the sentence is reduced to ten years' R.I. and fine of Rs.5,000=00, in default S.I. for six months. On undergoing the sentence imposed and deposit of fine, the appellants be set at liberty if not wanted in any other offence. [Bhagwati Prasad, J.] [Bankim N. Mehta, J.] Rajendra