CR.A/43420/2007 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.434 of 2007 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? ========================================================= = RAJPUT SOLANKI JAYSINHBHAI @ CHAKABHAI VIRSINHBHAI - Appellant Versus THE STATE OF GUJARAT - Respondent ========================================================= = Appearance : MR HN JHALA with MR ASHISH M DAGLI for Appellant. MS HANSA B PUNANI, APP for Respondent. ========================================================= = CORAM : HONOURABLE MR. JUSTICE BHAGWATI PRASAD and HONOURABLE MR. JUSTICE BANKIM N. MEHTA Date : 10/10/2008 ORAL JUDGMENT CR.A/43420/2007 2/12 JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM N. MEHTA) The appellant, who is convicted of the offence punishable under Section 302 of the Indian Penal Code [“IPC” for short] and sentenced to R.I. for life and fine of Rs.10,000=00, in default of S.I. for one year, has moved this appeal under Section 374 of the Code of Criminal Procedure, 1973. 2. On the basis of First Information Report lodged by Bhikhabhai Mansingbhai Rajput @ Bachubhai on 28.11.2005 before Dhrangadhra Taluka Police Station, an offence punishable under Section 302 of the IPC and Section 135 of the Bombay Police Act, 1951 was registered at C.R.No.I-141 of 2005 against the appellant-convict and the investigation was started. On completion of the investigation, charge-sheet came to be laid in the Court of learned Additional Chief Judicial Magistrate, Dhrangadhra. As the offence was exclusively triable by Court of Sessions, it was committed to Sessions Court and registered as Sessions Case No.9 of 2006. The learned Additional Sessions, Dhrangadhra framed charge at Exhibit 10 against the appellant for the offence punishable under Section 302 of the IPC. The appellant pleaded not guilty to the charge and claimed to be tried. Therefore, the CR.A/43420/2007 3/12 JUDGMENT prosecution adduced evidence to prove the charge. On completion of recording of the evidence, incriminating circumstances appearing in the evidence against the appellant were explained to him. The appellant in his further statement recorded under Section 313 of the Code denied having committed the offence and stated that before about 2 days of death of Gambhirsinh, while doing wiring work on telephone pole, he fell down and sustained injuries. It is further stated that after the incident in question, he was taken to Police Station at Dhrangadhra and was beaten, but he did not disclose the fact as he was threatened by the Police. Thus, on account of beating by the Police, he had sustained injuries. 3. After hearing, the learned trial Judge believed the prosecution evidence and convicted the appellant as mentioned hereinabove. Being aggrieved by the said decision, the appellant has preferred this appeal. 4. We have heard Mr.H.N.Jhala, learned advocate for the appellant-convict and Ms.Hansa B. Punani, learned Additional Public Prosecutor for the respondent-State. CR.A/43420/2007 4/12 JUDGMENT 5. It is submitted by Mr.Jhala, learned advocate for the appellant-accused that the evidence adduced by the prosecution does not indicate complicity of the appellant in the offence. The injuries are not found on the vital organs of the body. It is also submitted that the evidence is shaky and there are number of contradictions, which raise suspicion about the prosecution case. It is also submitted that it was in the self-defence that the injuries were caused to the deceased and, therefore, the appellant could not have been convicted for the offence of murder and at the most, the appellant could have been convicted for the offence punishable under Section 304 Part I of the IPC. 6. Ms.Punani, learned Additional Public Prosecutor for the State has submitted that looking to the numbers of injuries even if they were caused in self-defence, the appellant exceeded in exercise of right of self-defence and, therefore, the learned trial Judge was justified in convicting the appellant for the offence of murder. 7. According to the prosecution, deceased Gambhirsinh was the brother of first informant – Bhikhabhai and the appellant was their cousin brother and they were neighbours. It is also the prosecution case CR.A/43420/2007 5/12 JUDGMENT that before about three months of the incident, there was fight as the appellant beat mother and sister of the first informant. Therefore, the first informant and deceased Gambhirsinh intervened and a complaint was filed at Dhrangadhra Taluka Police Station against the appellant and, hence, the appellant had a grievance since then. According to the prosecution case at about 7.30 in the evening on the date of incident while returning home from his field when the first informant reached near a step-well at Anand Chawk, he saw his brother Gambhirsinh and the appellant quarreling. Therefore, he went near them and saw that the appellant, armed with knife, hit one blow on the belly and another blow on the chest of his brother Gambhirsinh and ran away towards step-well. Thereafter, Gambhirsinh was taken to the hospital and was declared dead. 8. It appears from the prosecution case that earlier there was quarrel between the appellant and family of the first informant–Bhikhabhai and a complaint was filed against the appellant in the Police Station. It also appears that on the day of incident, when the informant was returning home, he saw that the deceased and the appellant were quarreling and, thereafter, the incident ensued. In order to prove the charge, the CR.A/43420/2007 6/12 JUDGMENT prosecution examined first informant, P.W.-1 Bhikhabhai Mansangbhai Solanki at Exhibit 17. According to the witness, before about three months of the incident, there was a quarrel between the female members of his family and the female members of family of the appellant and, therefore, a complaint was lodged before Dhrangadhra Taluka Police Station. Since then the appellant was keeping grudge. The evidence also indicates that on the day of incident, when he was passing near the step-well, he saw his elder brother Gambhirsinh quarreling with the appellant, who was abusing his elder brother. The evidence also indicates that when he went near his elder brother, he saw that the appellant had given one knife blow below the left shoulder and another blow on the belly. Thereafter, the injured was taken to the hospital and the appellant ran away with the knife. The evidence also indicates that the witness lodged the FIR at Exhibit 18. This evidence also indicates that when the witness reached the place of the incident, deceased Gambhirsinh and the appellant were quarreling. Therefore, it appears that the incident ensued on account of quarrel between the deceased and the appellant and except the first informant, none was present. 9. First Information Report (Exhibit 18) also CR.A/43420/2007 7/12 JUDGMENT indicates that when the informant was passing near the step-well, deceased Gambhirsinh and the appellant were quarreling and the appellant inflicted two blows to Gambhirsinh. It also indicates that there were disputes between the two families prior to the incident and a complaint was also filed against the appellant in that regard. 10. The prosecution examined P.W.-6 – Dhirajkumar Jagdishprasad Tivari at Exhibit 26, who performed postmortem of deceased Gambhirsinh. According to the witness, the deceased had following external injuries: “Stab wound (2.5 cm. x 1 cm.) oblige 7.5 cm.. above umbilicus on (rt) side & 2.5 cm. Away from midline through which a loof of intestine is protruding out Direction – upward and backward.” According the witness, the injuries were ante mortem and were possible by the muddamal article knife. According to him, such injuries were in ordinary course of nature sufficient to cause death. The prosecution produced postmortem report at Exhibit 31. It indicates the external as well as internal injuries on the dead body. According to the report, cause of death was haemorrhagic shock due to injuries to liver. This medical evidence clearly indicates that Injury No.1 was caused on CR.A/43420/2007 8/12 JUDGMENT the vital part of the body and on account of haemorrhagic shock due to injury to the liver, death was occurred. This evidence indicates that death of Gambhirsinh was homicidal in nature. 11. The prosecution examined P.W.-12 Dr.Chandrakant Kasturchand Shah at Exhibit 45, who treated the appellant on 27.11.2005. According to the witness, he was serving as Medical Officer in the Government Hospital at Lakhtar and on 27.11.2005 at about 22 hours, the appellant had come to him as he had sustained injury below his left eye. According to the witness, it was explained that such injury was caused on account of quarrel. The witness had issued medical certificate at Exhibit 47 with regard to the injuries and the treatment given to the injured. Injury Certificate (Exhibit 47) indicates that the appellant was treated for the injury below the left eye and the injury was fresh and simple. According to the prosecution case, the incident occurred on 27.11.2005 at about 19.30 hours. The evidence of P.W.-12 and the medical certificate (Exhibit 47) indicate that the appellant, with history of injury in a quarrel, wen to the Government Hospital and took treatment. 12. The prosecution examined P.W.-13 Madhubha Jivubha Rana at Exhibit 48. According to the witness, the CR.A/43420/2007 9/12 JUDGMENT appellant with bloodstains came to him at about 22.00 hours on 27.11.2005 and lodged an FIR for the offence punishable under Section 324 of IPC and Section 135 of the Bombay Police Act against Gambhirsinh Mansing Solanki and it was registered as I-C.R.No.141 of 2005. The prosecution produced report under Section 154 of the Code of Criminal Procedure, 1973 at Exhibit 49. It appears from the report that the appellant had a quarrel with Gambhirsinh at about 18.30 hours in the evening near the step-well and Gambhirsinh got enraged and inflicted a knife blow below his right eye. Now, conjoint reading of testimony of P.W.-12, injury certificate and FIR of the appellant and testimony of P.W.-13 discloses that in the incident occurred at about 6.30 in the evening, the appellant sustained injury allegedly inflicted by deceased Gambhirsinh. Therefore, explanation offered by the appellant with regard to injury cannot be accepted. This evidence clearly indicates that the appellant was involved in the incident wherein Gambhirsinh died. 13. Mr.Jhala, learned advocate appearing for the appellant submitted that the incident occurred as the appellant while exercising right of private defence caused injury to the deceased and, therefore, he could not be convicted for the offence of murder. As observed CR.A/43420/2007 10/12 JUDGMENT earlier, before the incident, there was quarrel between the deceased and the appellant. P.W.-1 has also stated that he saw the appellant and the deceased quarreling. The First Information Report (Exhibit 18) also indicates that there was quarrel before the incident in question. The medical certificate regarding treatment taken by the appellant also indicates that he had also sustained injury in the quarrel. This evidence clearly indicates that the incident ensued all of a sudden when there were heated exchanges of words between the appellant and deceased Gambhirsinh. Therefore, there was no intention on the part of the appellant to cause death of Gambhirsinh as quarrel preceded the assault. In view of the fact that the appellant had also sustained injuries, it appears that the appellant assaulted the deceased while exercising his right of private defence. The postmortem report (Exhibit 31) indicates two injuries out of which one injury was caused on vital part of the body and such injury resulted into death of the deceased. Therefore, the appellant has exceeded in exercising his right of private defence. The evidence indicates that there was no intention on the part of the appellant to assault the deceased as the appellant did not assault the deceased immediately. The injuries found on the dead body of the deceased do not indicate that the appellant had CR.A/43420/2007 11/12 JUDGMENT acted cruelly or taken any undue advantage of the situation. The evidence indicates that the death was caused without premeditation in a sudden fight in heat of passion upon a sudden quarrel without any intention to cause death. Under the circumstances, we are of the view that the case would be governed by Part-I of Section 304 of the IPC more particularly when only one blow was given on the vital part of the body. We notice that the learned trial Judge, after taking into consideration the medical evidence on record indicating that the injury sustained by the deceased was sufficient to cause his death in ordinary course of nature, did not make any further inquiry as to whether the case was governed by any of the exceptions enumerated in Section 300 IPC. Therefore, the approach made by the learned trial Judge being erroneous in law is liable to be set aside. Having regard to the facts and circumstances of the case as well as the manner in which the incident had taken place, we are of the opinion that the case comes within exception (4) of Section 300 of the IPC and the appellant is guilty of offence under Part I of Section 304 and not under Section 302 IPC. 14. For the foregoing reasons, the appeal is partly allowed. The conviction of the appellant under Section CR.A/43420/2007 12/12 JUDGMENT 302 of IPC is altered to that under Section 304 Part I of IPC. As regards sentence to be imposed, we have heard learned advocate for the appellant and learned Additional Public Prosecutor. The record of the case indicates that the appellant was arrested on 29.11.2005. Therefore, looking to the circumstances in which the offence is committed and having heard the learned advocates for the parties on sentence, the sentence of R.I. for life imposed by the learned Additional District & Sessions Judge, Dhrangadhra in Sessions Case No.9 of 2006 is modified and the appellant-accused is sentenced to suffer R.I. for five years and to pay fine of Rs.10,000=00 [Rupees Ten Thousand Only], in default S.I. for one year. [Bhagwati Prasad, J.] [Bankim N. Mehta, J.] R a j e n d r a