CR.A/675/1990 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 675 of 1990 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 ? ========================================================= BHUPATBHAI LAKHABHAI - Appellant(s) Versus STATE OF GUJ. - Opponent(s) ========================================================= Appearance : MR YOGESH S LAKHANI for Appellant(s) : 1,PARTY-IN-PERSON for Appellant(s) MR PD BHATE, APP for Opponent(s) ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 09/01/2008 ORAL JUDGMENT The appeal is directed against the judgment and order dated 22nd June 1990 rendered by the learned CR.A/675/1990 2/8 JUDGMENT Additional Sessions Judge, Junagadh in Sessions Case No.109/88. 2. The appellant original-accused No.1 was charged with offences punishable under section 302, 325, 323, 504 and 506(2) of the Indian Penal Code. By the impugned judgment, learned Additional Sessions Judge acquitted original accused No.2. However, the appellant-original accused No.1 was convicted for offence punishable under section 304 Part II of the Indian Penal Code and sentenced him to rigorous imprisonment for three years and also directed to pay fine of Rs.1,000/-. 3. Broadly stated, the prosecution case was that the appellant, Bhupat Lakhabhai and original accused No.2, Mahesh Lakhabhai had a quarrel with Kishor Virabhai, PW-1, Ex.19 about demand of Rs.2,000/- by the accused from the father of Kishore. Kishor was assaulted. He, thereafter, met deceased Bava Kala who happened to be his uncle and narrated the incident. Deceased Bava Kala along with Kishor therefore approached the accused and admonished them. The appellant, therefore, got excited. He gave one stick blow to the deceased on the head. The deceased was treated in a hospital. A few days thereafter, he succumbed to the injury. 4. The prosecution examined several witnesses to prove the charge. PW-1, Kishor Vira was examined at Ex.19. He stated that on the date of the incident CR.A/675/1990 3/8 JUDGMENT in the afternoon when he got down from a bus at Batva village and was proceeding towards his house, the appellant had stopped him and demanded Rs.2,000/- which according to the appellant, father of the witness owed to him. Original accused No.2 was also present and both of them used foul language and beat Kishor. Kishore thereupon met deceased Bava Kala and narrated the incident to him. Both of them thereupon went to the accused. Deceased admonished them. Thereupon, appellant got excited. The appellant had a 'gadia' (a heavy wooden stick made of bamboo). He gave one stick blow on his head just over his right eye. There were many other people present there. Witness and one Bava Raghav saved the deceased from further beating. 5. This eye-witness account is fully supported by Bava Raghav, PW-2, Ex.20. He also stated that at the time of incident, he was standing at some distance away from the accused and the deceased. They had a heated exchange. The appellant therefore gave one stick blow to the deceased on his forehead. He identified the stick used in the offence. 6. Eye-witness account of these two witnesses was corroborated by Ranjit Devdas, PW-4, Ex.22. He had, in his rickshaw, carried the injured Bava Kala to the hospital. The prosecution version gets further support from the medical evidence. PW-7, Dr.Girdharlal in his deposition, Ex.26, stated that he was the Medical Officer at Batva when the incident CR.A/675/1990 4/8 JUDGMENT took place. At about 4.25 in the afternoon, Bava Kala was brought to him at his hospital. He had one lacerated wound of the size of 3 x ½ c.m. on the forehead near the right eye. Another wound of the size of 3 x ½ c.m. was on the right eye itself. The witness had stitched the wound. He stated that with one single blow by the muddamal stick, the two injuries narrated above could have been caused. In the cross-examination, however, he stated that after treatment, the condition of the patient was good and he was talking freely with his relatives while laying down on the bed. 7. Dr.Naresh Kharod, PW-6, Ex.24 had carried out the post-mortem of the body of the deceased. He also found similar injuries on the head of the deceased. So far as internal injuries are concerned, he found that blood had clotted on the right hand side of skull. However, there was no fracture in the skull. He found that the right middle meningeal artery had been broken. He also found blood clotting under the brain cover on the frontal lope and right hand side of the perital lop. According to his opinion, death occurred due to bleeding and injuries to the deceased on the external and internal parts of the head. 8. On the above evidence, the learned Additional Sessions Judge came to the conclusion that the appellant was guilty of offence punishable under section 304 Part II of the Indian Penal Code. CR.A/675/1990 5/8 JUDGMENT 9. Insofar as involvement of the appellant in the said incident is concerned, there is hardly any doubt or debate possible. The incident was proved through reliable and cogent eye-witness account of PW-1, Kishor who narrated the entire incident and stated before the court the reason for the quarrel. His version was fully supported by witness Bava Raghav, Ex.20. Eye-witness accounts get further support from the evidence of Ranjit Devdas, PW-4, who was the rickshaw driver who had taken the injured Bava Kala in his rickshaw to the hospital. The injured was treated by Dr.Girdharlal, PW-7. In sofaras allegations against appellant of having given stick blow to the deceased leading to the death of the deceased is concerned, the same gets established from the evidence on record. 10. Question is, what offence the appellant thereby committed and what should be the sentence for such an offence. 11. Learned advocate Shri Darji appearing for the appellant submitted that the Trial Court committed an error in holding that the appellant had committed offence punishable under section 304 Part II of the Indian Penal Code. He strenuously urged that the appellant had given only one blow with a weapon which cannot be sated to be a dangerous weapon and the injury caused by the blow was also not serious. He pointed out that the deceased was CR.A/675/1990 6/8 JUDGMENT discharged from the hospital within one day. He succumbed to the injuries after 5 to 6 days due to internal hemorrhage and some further complications. He submitted that the injuries were simple in nature and under no circumstances it can be stated that the injuries were likely to cause death. 12. I have considered the evidence on record, particularly the medical evidence regarding the nature of injuries sustained by the deceased. It is true that the appellant is stated to have given one blow to the deceased on the head pursuant to the quarrel between the two. The blow was given with a heavy wooden stick and it was given on the vital part of the body, i.e. head. However, from the record, I find that the resultant injury was not so serious as to bring the offence within the parameters of section 304 Part II of the Indian Penal Code. To charge under section 304 part II, it is necessary to show that the act was done with a knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death. In the present case, the medical evidence suggests that there was no fracture of skull. In fact, Dr.Girdharlal who treated the deceased found that he was in sound condition and could freely talk to his relatives. The death of the deceased was primarily on account of the internal hemorrhage which might not have been spotted by Dr.Girdharlal who treated the deceased at the outset. Conviction of the appellant under section 304 would, therefore, not be justified. CR.A/675/1990 7/8 JUDGMENT 13. The appellant, however, cannot escape the liability of having committed offence punishable under section 325, if not 326 of the Indian Penal Code. He had caused grievous hurt. He had given a blow with a heavy stick on the head of the deceased. Though he may not be attributed knowledge that such injury is likely to cause death, nevertheless, he did cause hurt which would endanger life. Significantly, the deceased was aged about 70 years on the date of the incident. The appellant gave one blow on the head of the deceased with a heavy stick. Considering all these aspects of the matter, his conviction is converted into one under section 325 of the Indian Penal Code and his sentence is reduced to two years instead of three years as awarded by the Trial Court. 14. Learned advocate for the appellant vehemently submitted that the appellant be given benefit of probation. In support thereof, reliance was placed on two affidavits tendered before this Court today, one by the appellant and another sworn by the son of the deceased. I am unable to accept the request. It is true that there would have been some passage of time between the date of the incident and when I am dictating this judgment. Nevertheless, the appellant remained in jail only for two months. His act of extreme rashness and aggression of giving a blow on the head of an aged person with a heavy stick, which ultimately resulted in his death cannot be pardoned without any punishment at all. CR.A/675/1990 8/8 JUDGMENT 15.Under the circumstances, following order is passed: Conviction of the appellant is converted into one under section 325 of the Indian Penal Code and his sentence is reduced to two years of rigourous imprisonment. Direction for payment of fine remains unaltered. Bail bond stands cancelled. Appellant shall, however, have time upto 15th February 2008 to surrender. The appeal is disposed of accordingly. (Akil Kureshi, J.) (vjn)