CR.A/1920/2001 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 19 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD 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 ? ========================================= = BABUBHAI VIRABHAI BARIYA Versus STATE OF GUJARAT & ANOTHER ========================================= = Appearance : MR KARTIK V PANDYA for Appellant MS PUNANI, ADDL. PUBLIC PROSECUTOR for Respondent No.1 ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 10/12/2008 CR.A/1920/2001 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Panchmahal at Godhra on 6.12.2000 in Sessions Case No.176 of 2000 convicting him for the offence punishable under section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs.500/- in default thereof to undergo SI for 15 days. 2. The brief facts of the prosecution case are that on 4.3.2000 at about 6:00 p.m., the accused armed with weapons picked up quarrel about loading sand and accused Babubhai inflicted injury on the head of Babarbhai Sardar and caused his death. 3. On the basis of the first information report lodged by Bhodabhai Chhaganbhai, offence was registered and investigation was started. At the end of investigation, charge sheet came to be filed against the accused for the offence punishable under sections 302, 323 and 114 of the Indian Penal Code. As the offence was triable by Sessions Court, the case was committed to the Sessions Court and it was registered as Sessions Case No.176 of 2000. The learned Additional Sessions Judge framed charge Exh-2 for the aforesaid offence against the accused. The accused denied having committed the offence and claimed to be tried. CR.A/1920/2001 3/5 JUDGMENT Therefore, the prosecution adduced evidence. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973, stated that they are innocent and false case is filed against them. After hearing the learned Additional Public Prosecutor and learned advocate for the accused, the Court convicted the appellant accused for the offence punishable under section 302 of the Indian Penal Code and sentenced him as mentioned hereinbefore, but acquitted the other accused. Being aggrieved by the said decision, the accused has preferred this appeal. 4. We have heard learned advocate Mr. Kartik V. Pandya for the appellant and learned APP Ms. HB Punani at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court. 5. The learned advocate for the appellant has submitted that on account of quarrel, the incident has occurred and the convict had no intention to cause death, as only single injury was caused to the deceased. Therefore, the learned trial Judge ought not to have convicted the convict for the offence of murder and therefore, impugned judgment requires to be set aside. 6. Learned APP has submitted that the accused assaulted the deceased with pre-determined mind and there was preparation for committing the offence. Therefore, no interference is warranted in the impugned judgment and the CR.A/1920/2001 4/5 JUDGMENT appeal deserves to be dismissed. 7. The evidence of PW 2 Dr. Madan Kirpasi Exh-9 indicates that there was fracture on the skull of the deceased and cause of death was head injury. According to him, such injury was possible by hard and blunt substance. The postmortem report Exh-13 indicates that there was one injury on head and cause of death was shock due to head injury. Therefore, the death was homicidal in nature. 8. It appears from the prosecution case that it rests only upon the oral testimony of PW 9 Balvantbhai Chhaganbhai Exh- 30. The witness in his oral testimony deposed that while he was loading sand with Babar Sardar, accused Babu Vira hit iron pipe blow on the head of Babar Sardar. The evidence indicates that deceased died on account of head injury. The witness has been extensively cross examined but the defence has not been able to elicit that the witness is not telling the truth. Therefore, evidence of this witness establishes complicity of the appellant in the offence. Now, the question is to ascertain the intention of the appellant as to whether he intended to cause death? It appears that only one blow was inflicted to the deceased. In view of the fact that quarrel preceded the assault, it appears that the injury was caused to the deceased upon sudden quarrel. Looking to the injury, it cannot be said that offender took undue advantage. Hence, it is difficult to believe that the accused had any intention to cause murder. Therefore, considering the nature of weapon used in commission of the offence, nature of injury caused to deceased and the circumstances in which the injury was caused, the case would not fall under clause thirdly of section 300 of the Indian Penal CR.A/1920/2001 5/5 JUDGMENT Code. Therefore, the learned trial Judge has committed error in convicting the appellant convict for the offence of murder and hence, the conviction is required to be altered from section 302 to section 304 (Part I). 9. In view of the above, the Appeal is partly allowed. The judgment and order of conviction and sentence of the present appellant dated 6.12.2000 passed by the learned Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No. 176 of 2000 for the offence punishable under section 302 of the I.P. Code is altered to section 304 (Part I) of the Indian Penal Code and is sentenced to undergo RI for 10 years and to pay a fine of Rs.500/- in default thereof to undergo SI for 7 days. (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) shekhar/-