CR.A/371/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 371 of 1987 With CRIMINAL APPEAL No. 372 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= STATE OF GUJARAT - Appellant Versus CHAMAR NARANBHAI JETHABHAI – Respondents ========================================================= Appearance : MR PD BHATE ADDL PUBLIC PROSECUTOR for Appellant: 1, MR MJ BUDDHBHATTI for Respondents: 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 28/07/2008 CR.A/371/1987 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The appellant State of Gujarat has preferred present Criminal Appeals challenging the judgment and order dated 23.4.1987 passed by learned Additional Sessions Judge, Surendranagar in Sessions Case No. 47 of 1986. 2. The accused Chamar Jetha, Narayan Jetha, Mirji Jetha have been charged for the offences punishable under Sections 302, 147, 143, 149, 324 of IPC in Sessions Case No. 47 of 1986. The learned Sessions Judge tried the aforesaid accused and acquitted the accused No. 1 of all the charges leveled against him. The learned Judge convicted the accused No. 2 for the offence under Section 324 of IPC and sentenced him to suffer two month S.I. The learned Judge convicted the accused No. 3 for the offence under Section 304(2) of IPC and sentenced him to suffer 4 years RI and also convicted the accused No. 3 for the offence under Section 324 of IPC and sentenced him to suffer 6 months R.I. The learned Judge acquitted the accused Nos. 2 and 3 for the offences under Section 302 read with Section 149 of IPC. 3. The prosecution story in short is that the complaint and accused were staying in the CR.A/371/1987 3/6 JUDGMENT Harijan Vas in Mathak Village Havad Taluka. There were some disputes between both the families about the land adjacent to the house of Narayan Jetha. Some litigation was also going on between the parties and therefore, their relations were stained. It has been alleged that on 13.4.1986 at about 1-30 PM, deceased Vala Arjun had gone to the temple for worship. His wife saw the accused passing from the near house of Narayan Jetha shouting 'kill''kill' and that they were armed with the weapons. The accused went towards Chamunda Mata Math. Shantaben followed them doubting that they might have gone towards the temple to kill her husband. It was further alleged that Murji Jetha accused No. 3, who had carried a knife with him and Narayan Jetha had in possession of iron pipe. The accused No. 3 Mulji Jetha gave knife blows on the chest and back of Vala Arjun. Therefore, Shantaben interposed when Narayan Jetha gave a blow with iron pipe on her head. It has been alleged that Vala Arjun died because of the injuries that he had received on his chest and back. 4. The prosecution had examined 23 witnesses to prove the case against the accused. 5. It is submitted by learned APP Shri Bhate that when Mulji Jetha gave knife blow on deceased Vala Arjan and when Shantaben intervened at that CR.A/371/1987 4/6 JUDGMENT time, Chaturbhai who is complainant came there and son of the deceased Shivala and Mulji Vala also came there. Narayan Jetha – accused No. 2 gave stick blow on the back of Shiva Vala. Chatur Hari went to the Sarpanch Gulasinh PW-11 and informed about the incident and as per his suggestion Arjan Vala was taken to Halvad hospital. Since there was no facility available at Matak, the deceased was taken on a motor cycle of Narendrabhai and they reached to Halvad. While going to Halvad, at Kadiyana village, the son-in-law of the deceased Shiva Khima was informed about the incident. Shiva Khima brought Shantaben, Valabhai, Shivabhai. During this period, Vala Arjan was expired. Chaturhari lodged a complaint vide CR. I. 17 of 1986 and PSI, Gigalani started investigation. For the same incident, complaint was also lodged by Mulji Jetha from Morbi hospital, which was transferred to Halvad police station vide CR. No. I.18 of 1986. 6. It is submitted by the APP that prosecution had examined Pravinchandra Harjivandas, Medical Officer of Morbi, he examined accused Mulji Jetha and Narayan Jetha. He found two injuries on right hand elbow. There were five injuries on the body of Mulji Jetha, he issued injury certificate Exh. 9 and 10 respectively. 7. The prosecution has also examined Nanalal CR.A/371/1987 5/6 JUDGMENT Amrutlal, Medical Officer vide Exh.11. He carried postmortem of deceased Arjan Vala. He found four injuries Exh. 11 in the postmortem note. According to this witnesses, there was one stab wound 1 ½ on the right chest and death was caused because of this injury and vein was also cut off. 8. Prosecution has examined eye witnesses Chaturhari Exh. 25, Shantaben Exh. 26, Mulji Vala Exh. 38, they have supported the case of the prosecution. 9. As per the submission of the advocate for the respondent Mr. Buddhbhatti, only one blow was given which was serious and there was no intention of accused to kill the deceased. Even medical evidence also supports this. Therefore, trial Court has rightly convicted accused No. 3 Mulji Jetha under Section 304(2) for four years RI and under Section 324 six month RI and acquitted under Section 302. 10.According to the learned advocate for the respondents the first injury is sufficient to cause death and medical evidence also supports this injury. Therefore, the Hon'ble Judge has believed that incident is not due to a pre-plan and without any intention to cause death or likely to cause death. So, conviction order passed by the learned trial Judge may not be CR.A/371/1987 6/6 JUDGMENT modified. 11.We have given our thoughtful consideration to the facts of the case. We are of the view that the conviction of accused No. 3 as recorded by the trial Court is required to be maintained. However, the sentence of accused No. 3 – Chamar Muljibhai Jethabhai is modified. Instead of undergoing the sentence, accused No. 3 is directed to pay fine of Rs.50,000/-. In default of payment of fine of Rs.50,000/-, accused No. 3 shall undergo the sentence as ordered by the trial Court. Out of the said amount, a sum of Rs.10,000/- is directed to be paid to the State Government. Balance amount of Rs.40,000/- is directed to be paid to the heirs of the deceased after due verification by trial Court. With the said observations, Criminal Appeal No. 371 of 1987 is dismissed. Criminal Appeal No. 372 of 1987 is partly allowed. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) pallav