CR.A/519/2001 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 519 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 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 ? ======================================================= MAHESH VAGHABHAI HARIJAN - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MS SADHANA SAGAR for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 25/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) CR.A/519/2001 2/13 JUDGMENT 1.0 This appeal under Sec.374 of the Code of Criminal Procedure has been preferred by the appellant-original accused of Sessions Case No.351/1999 (Old Sessions Case No.148/1998), who has been charged and tried for the offence punishable under Section 302 of Indian Penal Code, wherein he was convicted to undergo imprisonment for life and fine of Rs.1,000/-, in default, to undergo simple imprisonment for thirty days for the offence under Section 302 of the Indian Penal Code by the learned Additional Sessions Judge, Veraval vide judgment and order dated 09.05.2001. However, the present appellant- accused was acquitted of the charges for the offence under Sections 323, 504 and 506(2) of the Indian Penal Code and under Section 135 of the Bombay Police Act. 2.0 The prosecution version in a nutshell is as follows :- 2.1 On 04.10.1998 at 7:00 p.m., the complainant viz., Vankar Mangesh Arjan Harija was CR.A/519/2001 3/13 JUDGMENT returning after chewing pan, at that time, the appellant-accused met him near bus stand of Khapat village and abused him. Thereafter, the appellant-accused started giving kick and fist blows. At that time, the cousin brother of the complainant viz., Jitubhai tried to intervene. Hence, the appellant-accused got excited and took out knife from his pant and gave blow of it in the stomach. As a result of that, said Jitubhai fell down and became unconscious and, hence, the appellant-accused fled away from the place of offence. Thereafter, said Jitubhai was taken to Government Hospital, Una. However, looking to his serious injuries, he was referred to Civil Hospital, Junagadh. On 05.10.1998, said Jitubhai (the deceased) succumbed to the injuries. Prior to death of the deceased, the complainant filed the complaint before Una Police Station, which came to be registered as Una Police Station I-C.R.No.321/1998 under Sections 326, 324, 323, 504, 506(2) of the Indian Penal Code and under Section 135 of CR.A/519/2001 4/13 JUDGMENT the Bombay Police Act. 2.2 Upon registration of the offence, the investigation was entrusted to Investigating Officer, Shri B.L. Vagh. In pursuance of that, he took over the investigation. Meanwhile, he received information at 2:35 in the early morning that the deceased succumbed to the injuries and, hence, he submitted report for adding Section 302 of the Indian Penal Code. Thereafter, he drew inquest panchnama in the presence of the panchas. He went to the scene of offence, prepared panchnama of scene of offence in the presence of panchas as well as complainant, seized muddamal and sent the same to FSL. He also recorded the statements of various witnesses and tried to search the accused and on availability of the accused, he arrested the accused by preparing arrest panchnama to that effect. Simultaneously, he filled up Maranottar form and also made arrangements to send the dead body for postmortem. On receiving the FSL as well as P.M. reports, CR.A/519/2001 5/13 JUDGMENT same were kept along with the investigation file. 4.0 Simultaneously, the present appellant-accused has also filed complaint against the complainant of this very case and one Jitubhai, which came to be registered before Una Police Station as I-C.R.No.92/1998 on 05.10.1998 at about 17:30 hours under Section 323 and 504 of the Indian Penal Code, which was produced at Exh.64. Said complaint is also part of the present case. 5.0 Upon completion of investigation, the charge sheet came to be submitted before the Learned Judicial Magistrate, First Class, Una. 5.1 As the offence alleged against the accused was exclusively triable by the Court of Sessions, same was committed to the Court of Sessions at Junagadh under Section 209 of the Criminal Procedure Code, where it was numbered as Sessions Case No.148 of 1998. 5.2 Thereafter, the case was transferred and placed for trial before the learned Additional Sessions Court, Veraval, where it CR.A/519/2001 6/13 JUDGMENT was renumbered as Sessions Case No.351/1999 for disposing of the same on merits. 5.3 On production of the accused, the Learned Additional Sessions Judge framed charge vide Exh.1, wherein the appellant-accused pleaded not guilty to the charge and claimed to be tried. 5.4 To prove the charge against the accused, prosecution examined as many as 22 witnesses and placed reliance upon 33 documentary evidence. 5.5 On submission of closing purshis by the prosecution, learned Additional Sessions Judge recorded further statement of the accused under Sec.313 of Code of Criminal Procedure qua the incriminating question wherein the accused came out with the case of total denial. The accused did not examine any witness nor stepped into the witness box. Therefore, after hearing the learned counsel appearing for the respective parties, learned Additional Sessions Judge delivered the impugned judgment giving rise to file the CR.A/519/2001 7/13 JUDGMENT present appeal. 6.0 We have heard learned counsel for the appellant, Ms.Sadhana Sagar and learned Additional Public Prosecutor, Mr.H.L. Jani for the respondent-State. 7.0 It has been mainly argued by the learned counsel for the appellant-accused, Ms.Sagar that the appellant is totally innocent and has been falsely involved into the crime in question. 7.1 It is argued that at the most, it is a case of sudden provocation, which resulted into a free fight and then 302 of the I.P.C. 7.2 It is argued that in this incident, even the appellant has also received injuries and, hence, he filed complaint (Exh.64) to that effect, which is also part of the record. 7.3 It is argued that the original quarrel was between the complainant and the appellant- accused and the deceased was the intervener. 7.4 It has been argued that the prosecution has failed to establish the motive and intention. Not only that, according to her, the blow CR.A/519/2001 8/13 JUDGMENT given by the accused to the victim was not with an intention either to kill or cause him serious injuries. 7.5 Ms.Sagar has taken us through the complaint filed by the appellant-accused, Exh.64 as well as specific averments made therein. 7.6 Lastly, it is argued that the appellant- accused is in jail since 1998 and he has practically undergone more than 9 years of sentence and, therefore, it is submitted that either the case may be treated as the one falling under Section 304, Part-I or may the sentence already undergone be treated as sufficient sentence, which will meet the ends of justice. 8.0 Mr.Jani, learned Additional Public Prosecutor appearing for the respondent-State has objected the arguments advanced by the learned counsel for the appellant-accused mainly on the ground that here in this case, the prosecution has proved the guilt against the accused beyond doubt. 8.1 He has taken us through the dying declaration CR.A/519/2001 9/13 JUDGMENT of the injured along with the evidence of complainant along with the medical evidence and submitted that the prosecution has proved the guilt against the accused. 8.2 It is submitted that as all are from the same community, same area and are relatives, they know each other since long. Moreover, prior to alleged incident, altercation has taken place and, therefore, question of misidentification may not be arisen at all. He has also taken us through the complaint, Exh.64 filed by the appellant, wherein he has admitted that he has assaulted the deceased with knife only for the purpose of saving his life. 8.3 Mr.Jani has, therefore, submitted that no lenient view be shown towards appellant- accused. 9.0 We have gone through the oral evidence of the complainant, complaint-Exh.54, complaint filed by the appellant-accused-Exh.64, medical evidence, P.M. Report and relevant portion of the reasoned judgment delivered by CR.A/519/2001 10/13 JUDGMENT the Court below. 9.1 It is required to be noted that here in this case, Ms.Sagar has fairly admitted the presence of the accused at the scene of offence along with the act. She has also fairly admitted that it was not the intention of the accused to kill the deceased as he was the intervener and the appellant-accused has nothing to do with the deceased. It is also fairly admitted that prior to alleged incident, altercation took place and then fight of kick and fist blow has taken place and during that period, as the deceased tried to intervene, to save himself, the accused took out knife and in that process, the deceased has received injuries by knife. As the question of identification has not been denied, we agree with the arguments advanced by the learned counsel for the appellant- accused and, therefore, we also believe the presence of the accused along with the deceased. 9.2 As far as blow is concerned, same has not CR.A/519/2001 11/13 JUDGMENT been disputed further by the learned counsel for the respective parties. 9.3 Now the question, which is required to be taken into consideration is that the blow given by the accused to the deceased can be treated as 302 of the I.P.C. or to be falling under 304 Part-I. 9.4 We have evaluated the evidence in toto keeping in mind the above aspect of the matter and found that at the time of first incident between the complainant and the accused, the deceased was not there, however, he came and tried to intervene. As per the complaint, Exh.64 filed by the appellant- accused, the complainant (appellant-accused) gave knife blow to the deceased to save himself and though it was not his intention to kill. Then also, injury has been received by the third party and not the complainant. It is a case of single blow resulting out of sudden provocation and, therefore, in absence of motive or intention, it cannot be said to be offence falling under Section 302 of the CR.A/519/2001 12/13 JUDGMENT I.P.C. 9.5 Over and above, it is required to be noted that the appellant-accused has already undergone 9 years of sentence and if we consider his case of one blow then, the case of the appellant falls under Section 304, Part I of the I.P.C. and the sentence, which he has undergone will meet the ends of justice. 9.6 Reliance is placed upon the judgments reported in AIR 2008 SC 406, Cr.L.J. 2005 578 and 2003 Cr.L.J. 2718. 10.0 The appeal is partly allowed. Judgment and Order of conviction and sentence dated 09.05.2001 delivered by the Learned Additional Sessions Judge, Veraval in Sessions Case No.351 of 1999 (Old Sessions Case No.148 of 1998) are modified and the sentence already undergone by the appellant- accused is ordered to be treated as the sufficient sentence imposed on him. He is, therefore, ordered to be set at liberty forthwith, if not required in any other CR.A/519/2001 13/13 JUDGMENT offence. Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil