CR.A/1609/2003 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1609 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= MAGANBHAI BHIKHABHAI BHANGI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS DR KACHHAVAH for Appellant(s) : 1,MR KAMLESH KACHHAVAH for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 10/01/2008 ORAL JUDGMENT 1. The appeal is directed against the judgement and order dated 11.08.2003 rendered by learned Additional Sessions Judge, Palanpur in Sessions CR.A/1609/2003 2/6 JUDGMENT Case No.153/2002. 2. The appellant herein was the original accused. He and co-accused were charged with offence punishable under Section 302 of the Indian Penal Code. Accused No.2 was acquitted. The appellant herein i.e. accused No.1 was convicted under Section 304 Part-II and sentenced to five years of rigorous imprisonment. 3. Broadly stated, the prosecution case was that on 21.6.2002 at about 12 O' clock in the afternoon pursuant to a quarrel with the wife of the deceased Laxmanbhai Ganeshbhai, appellant gave fist and kick blows to him on his stomach and thereby caused his death. 4. Kantaben Nenaji-PW3(exh.13) was supposed to be an eyewitness. She however, turned hostile and did not support the prosecution case. So is the case of Kantaben Achlabhai-PW4(exh.14). Paruben Bhemaji-PW5(exh.15) stated in her deposition that on the date of incident, she had heard commotion and had seen that the appellant was fighting with Laxmanbhai. These people thereafter, went towards the village. 5. Kailasben Paragbhai-PW8(exh.21) is the wife of deceased Laxmanbhai. She stated that on the date of incident the appellant had come to her house and had inquired about her husband. She told him CR.A/1609/2003 3/6 JUDGMENT that he has gone to collect fodder. The appellant thereupon left the place. Sometime thereafter, her husband came to home and told her that she is going to meet the appellant. The appellant was near the hand-pump at that time. He gave kick and fist blows to her husband. She was present at that time. She was also pushed. He had left thereafter. Her husband had complained that he does not feel well. They therefore, went to Amirgadh to lodge the complaint. From there, they went to the hospital where he was kept for a day. From there he was referred to Palanpur and, thereafter, to Ahmedabad. At Ahmedabad her husband expired. 6. Dr. Akhilesh Giriraj Mishra-PW1(exh.7) was the medical officer at the Health Centre, Amirgadh. He had first treated the deceased on 21.6.2002. He did not find any external injuries on his body. He gave him some medicines and allowed him to go. Patient came back on 22.6.2002 and complained that he is finding it difficult to pass urine. He therefore, suspected that there may be internal injury and referred the patient to Palanpur Civil hospital. 7. Dr. Devabhai Becharbhai Varvadiya(exh.10) was the medical officer at Palanpur civil hospital. He had treated Laxmanbhai on 22.6.2002. He had taken his X-ray and found that in his stomach gas had collected. He referred the patient to CR.A/1609/2003 4/6 JUDGMENT civil hospital at Ahmedabad. 8. Dr. Dipakkumar Champaklal Jagani was the medical officer in civil hospital at Ahmedabad. He had carried out the postmortem of body of the deceased. He opined that death could be caused on account of injuries resulting from kick blows given in the stomach leading to side complications. He found that death was on account of deposition of blood in the stomach. 9. From the evidence on record, it can be easily seen that insofar as involvement of the appellant in the incident is concerned, same remains firmly established. Though certain eyewitnesses turned hostile and did not support prosecution, wife of the deceased Kailasben Paragbhai-PW8 had narrated the incident. She was present when the appellant had quarreled with the deceased and had given him kick blows in the stomach and thereafter, the appellant left the place. The injured complained of uneasiness. They first went to the police to lodge the complaint and, thereafter, to the hospital at Amirgadh. Deposition of witness Kailasben Paragbhai-PW8, wife of the deceased is fully corroborated by Dr. Akhilesh Giriraj Mishra-PW1. He had treated the patient on 21.6.2002. At that time patient had given history of being beaten by a blunt substance. CR.A/1609/2003 5/6 JUDGMENT 10.There is no reason to discard the eyewitness account of Kailasben-PW8. No material contradiction has been extracted by the defence in their cross examination. Guilt of the appellant thus stands proved. 11.Question however is what offence did he ommit and what should be the appropriate sentence for the same. It may be noted that in his deposition, Dr. Akhilesh Giriraj Mishra-PW1 stated that Laxmanbhai had come to his dispensary himself and he was walking. He left the dispensary also similarly. Next day when he came back for further treatment, Laxmanbhai was walking. It may also be noted that as per the wife of Laxmanbhai, they had first gone to the police station before going to hospital. Additionally, Dr. Akhilesh Giriraj Mishra-PW1 did not notice any external injuries on the body of the deceased when he went to him for treatment. All these would demonstrate that though the death of deceased can be related to kick blows given to him by the appellant, the injury caused by the appellant cannot be termed as one which was inflicted with a knowledge that it is likely to cause death or cause such bodily injuries as is likely to cause death. His conviction under Section 304 Part II of the Indian Penal Code was thus not justified. At best, the appellant could have been attributed to voluntarily causing grievous hurt. He would CR.A/1609/2003 6/6 JUDGMENT appropriately be convicted under Section 325 of the Indian Penal Code. His sentenced also requires to be reduced. 12.Considering the facts and circumstances of the case, following order is passed : 1) Conviction of the appellant is converted to one under Section 325 of the Indian Penal Code. 2) Sentence of the appellant is reduced to three years of rigorous imprisonment. 3) Directions for payment of fine remains unaltered. The appeal is disposed of accordingly. (Akil Kureshi,J.) (raghu)