CR.A/273/2000 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 273 of 2000 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 ? ================================================= CHANDUBHAI BHUPATBHAI PARMAR - Appellant(s) Versus STATE OF GUJART & 1 - Opponent(s) ================================================= Appearance : MS REKHA H KAPADIA for Appellant(s) : 1, MS MS PANCHAL APP for Opponent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 10/01/2008 CR.A/273/2000 2/15 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1. This appeal under Sec.374 of the Code of Criminal Procedure has been preferred by the appellant-original accused no.1 of Sessions Case No.85/1999, who has been charged and tried for the offence punishable under Sections 302, 307, 325 read with Section 114 of Indian Penal Code as well as under Section 135 of the Bombay Police Act, wherein he was convicted to undergo imprisonment for life and fine of Rs.500/-, in default, to undergo rigorous imprisonment for one year for the offence under Section 302 of the Indian Penal Code and also convicted to undergo rigorous imprisonment for three years and fine of Rs.500/-, in default, to undergo rigorous imprisonment for six months for the offence under Section 325 of the Indian Penal Code by the learned Additional Sessions Judge, Panchmahal at Godhara vide judgment and order dated 01.03.2000. However, he was acquitted CR.A/273/2000 3/15 JUDGMENT for the offence under Section 307 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 2. The case of the prosecution in short is as under :- 2.1 On 22.01.1999 at about 7 p.m., the brother of the complainant viz., Pratapbhai Parmar, who was mentally retarded, was moving near the cabin of the accused. At that time, as the appellant-accused and his wife teased him, he threw one stone on the cabin of the accused. Hence, the accused got excited, stepped down from the cabin and started giving kick and fist blows to him. On raising screams for help, the complainant and other relatives reached the scene of offence and saw that the appellant-accused and his wife (original accused no.2) were abusing his brother and also beating him. Hence, the complainant- Naravatbhai @ Budhabhai, Ramsing Laxmanbhai and the deceased-Maheshbhai Laxmanbhai tried to intervene. At that time, the accused took iron rod and gave blow of it on the head to CR.A/273/2000 4/15 JUDGMENT the deceased. As a result of that, he received serious injuries on the head and fell down on the spot and, thereafter, the accused ran away from the place of offence. Thereafter, the deceased was taken to Government Hospital, Halol and, thereafter, he was shifted to S.S.G. Hospital, where he was declared dead. Accordingly, complaint to that effect came to be filed with Halod Police Station, which came to be registered as Halod Police Station I-C.R.No.28/1999 for the offence under Sections 302, 323, 504 and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 2.2 Police started investigation. They prepared inquest panchnama in the presence of panchas, filled up Maranottar Form and also made arrangement to send the dead body for postmortem. Simultaneously, he also went to the scene of offence and drew the panchnama of scene of offence in the presence of panchas. He also recorded the statements of various witnesses and arrested the accused by CR.A/273/2000 5/15 JUDGMENT preparing arrest panchnama and also drew body position panchanma of the deceased. Since the accused showed willingness to produce the weapon alleged to have been used in the commission of offence, two panchas were called and prepared primary panchnama at Halod Police Station. Thereafter, the Investigating Officer along with the accused, panchas and other police personnel proceeded in a jeep as guided by the accused. Thereafter, accused asked to stop the jeep at a particular place and he found out and produced the muddamal iron rod. Same was seized by preparing panchnama. He also sent muddamal to FSL. On receiving the FSL as well as P.M. reports, same were kept along with the investigation file. 2.3 Upon completion of investigation, the charge sheet came to be submitted before the Learned Judicial Magistrate, First Class, Halol. 2.4 As the offence alleged against the accused was exclusively triable by the Court of Sessions, same was committed to the Court of CR.A/273/2000 6/15 JUDGMENT Sessions at Panchmahal under Section 209 of the Criminal Procedure Code, where it was numbered as Sessions Case No.85 of 1999. 2.5 Thereafter, the case was transferred and placed for trial before the learned Additional Sessions Court, Panchmahal at Godhara for disposing of the same on merits and on production of the accused, the Learned Additional Sessions Judge framed charge vide Exh.2, wherein the appellant-accused pleaded not guilty to the charge and claimed to be tried. 2.6 To prove the charge against the accused, prosecution examined as many as 7 witnesses and placed reliance upon several documentary evidence. 2.7 On submission of closing purshis by the prosecution, learned Sessions Judge recorded further statement of the accused under Sec.313 of Cr.P.C. 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 CR.A/273/2000 7/15 JUDGMENT witness box. Therefore, after hearing the learned counsel appearing for the respective parties, learned Sessions Judge delivered the impugned judgment giving rise to file the present appeal. 3. We have heard learned counsel for the appellant, Ms.R.H. Kapadia and learned Additional Public Prosecutor, Ms.M.S. Panchal for the respondent-State. 4. It has been mainly argued by the learned counsel for the appellant-accused, Ms.Kapadia that it is a case of free fight between two groups i.e. on one side, the appellant and his family member and on the other side, the whole villagers including the relatives of the deceased. During the incident, the cabin of the accused was also looted and the accused also received injuries on his left hand. The accused, therefore, filed complaint to that effect against the complainant of this case and others, which is first in time. As per the prosecution case, initially a quarrel took place between Pratap and Chandu CR.A/273/2000 8/15 JUDGMENT (appellant-accused) but the person, who succumbed to the injuries is one Mahesh, who according to the prosecution, tried to intervene in the quarrel and, therefore, it is argued that the intention of the appellant was not to kill or assault him, but during the process of free fight, he received injuries and, therefore, it cannot be said that it was his intention to kill the deceased. It is also argued that it is a case of one blow and the weapon used is iron rod, which even as per the say of the prosecution, the accused was using for the purpose of opening and closing the cabin and, therefore, it cannot be said that it was a planned murder, but it can be said that during the process of quarrel, he took the iron rod, which was easily available and the same has been used and, therefore, according to her, at the most, the case falls under Section 304 Part-II of the Indian Penal Code. 5. Ms.Panchal, learned Additional Public Prosecutor appearing for the respondent-State CR.A/273/2000 9/15 JUDGMENT has also taken us through the relevant portion of the impugned judgment and submitted that in this case, the appellant- accused killed an innocent person, who tried to intervene in the quarrel and for that, he selected the vital part of the body and gave blow of iron rod on the head of the deceased and, therefore, no mercy should be shown to him. 6.1 We have gone through the oral as well as documentary evidence shown to us by the learned counsel for the respective parties along with the reasoned judgment delivered by the Court below. 6.2 It is required to be noted that during the course of the arguments, the learned counsel for the appellant-accused, Ms.Kapadia has made it clear that she is not disputing the homicidal death then also, to assist the Court, she has taken us through the inquest panchnama, Exh.6, P.M. Note, Exh.17 and the evidence of P.W.No.1 viz., Dr.Vijaysinh Ganpatsinh Rathod, Exh.16, through whom, the CR.A/273/2000 10/15 JUDGMENT prosecution has proved the P.M.Note, Exh.17. From the above referred evidence, the prosecution has proved that it is a case of homicidal death. We are not discussing further into the matter as we share the same view as discussed and detailed in the reasoned judgment regarding homicidal death. 6.3 We have gone through the oral evidence of three witnesses i.e. P.W.No.2 viz., Narvatbhai Khodabhai at Exh.18, through whom, the prosecution has proved complaint at Exh.19, P.W.No.3 viz., Sanjaykumar Govindbhai at Exh.22 and P.W.No.5 viz., Arvindbhai Somabhai at Exh.24. It is required to be noted that the say of the above referred witnesses is that the incident took place initially between Pratap and Chandu i.e. the appellant-accused and as per the evidence of above referred witnesses, when they reached at the scene of offence after hearing the shouts for help, they saw that the accused was giving kick and fist blows to Pratap and, hence, they tried to intervene and during CR.A/273/2000 11/15 JUDGMENT that process, Mahesh and one other witness received injuries. It is the case of the prosecution that the deceased was the intervener and during that process, he received injuries. The above referred witnesses further deposed that it was the appellant, who gave iron rod blow on the head of the deceased. It has been established from the evidence of above referred witnesses that the quarrel was not between the deceased and the appellant-accused, but the deceased was the intervener, who received injuries in this process and succumbed to those injuries. During the course examination of the above referred three witnesses, another story is established, which reveals that in this incident, even the appellant-accused also received fracture on his left hand in the free fight and for that he himself went to Police Station and filed the complaint against the complainant and other persons prior in time for rioting etc. This fact has been admitted by the complainant in his CR.A/273/2000 12/15 JUDGMENT cross-examination and also by the Investigating Officer (P.W.No.7, G.S. Pavar, Exh.31). Second story which has been established is that there was some quarrel, wherein free fight has taken place between two groups on one side the appellant-accused and his family members and on the other side, the whole villagers as the appellant-accused had no other relatives in the said village. It is also required to be noted that it is a case of one blow to the deceased and the weapons used is iron rod and same has been proved by the prosecution by way of oral evidence of doctor (P.W.No.1, Exh.16) and P.M. Note. It is also established that the said rod was being used by the appellant- accused for opening and closing his cabin and during the course of scuffle, he took said iron rod, which was easily available to him and gave blow on the head of the deceased and as a result of that, the deceased received head injuries. Thus, it can be safely said that it was a free fight. Even if it was not CR.A/273/2000 13/15 JUDGMENT a free fight between Pratap and the appellant-accused then also, the deceased was the intervener and during that scuffle, the deceased received injuries and succumbed to the same and, therefore, it can be safely said that there was no intention for the appellant-accused to kill the deceased and same has also been established from the weapon which he had immediately taken and used. 6.4 It is also required to be noted that the incident is of the year 1999 and the complainant and the deceased are tribal of village. Only a single blow has been inflicted by the appellant-accused and for that the appellant is in judicial custody since 23rd January, 1999 as undergoing prisoner. He has already undergone almost 9 years of imprisonment and he himself has received injuries i.e. fracture on his left hand in the crime in question and, therefore, one can safely say that it is a case, which false under Section 304 Part-II of the Indian CR.A/273/2000 14/15 JUDGMENT Penal Code as we believe that it will meet the ends of justice. Reliance has been placed upon the judgments reported in AIR 1982 SC 172 in the case of Kulwant Rai V/s. State of Punjab, AIR 1988 SC 115 in the case of State of Karnataka V/s. Shivalingaiah, AIR 2003 SC 785 in the case of Suraj Bhan V/s. State of Haryana, AIR 2006 SC 2659 in the case of Pappu V/s. State of Madhya Pradesh, 2003(3) GLH 380 in the case of Chimanbhai Laljibhai & Anr. V/s. State of Gujarat, 2002 SCC (Cri) 1834 in the case of Ruli Ram & Anr. V/s. State of Haryana, (2007)3 SCC 119 in the case of Mohd. Shakeel V/s. State of A.P. and (2006) 10 SCC 172 in the case of Ramreddy Rajesh Khanna Reddy & Anr. V/s. State of A.P. 6. The appeal is partly allowed. Judgment and Order of conviction and sentence dated 01.03.2000 delivered by the Learned Additional Sessions Judge, Panchmahal at Godhara in Sessions Case No.85 of 1999 are modified and the sentence already undergone by the appellant-accused is ordered to be CR.A/273/2000 15/15 JUDGMENT treated as the sufficient sentence imposed on him. He is, therefore, ordered to be set at liberty forthwith, if not required in any other offence. Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil