CR.A/414/2002 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 414 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 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 ? ======================================================= RAMUBHAI GULABBHAI HALPATI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MS CHETNABEN JOSHI for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 16/04/2008 CR.A/414/2002 2/16 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This appeal under Sec.374 of the Code of Criminal Procedure has been preferred by the appellant-original accused of Sessions Case No.152/2001, who has been charged and tried for the offence punishable under Sections 302, 323 and 504 of Indian Penal Code, wherein he was convicted to undergo imprisonment for life and fine of Rs.1,000/-, in default, to undergo simple imprisonment for one month for the offence under Section 302 of the Indian Penal Code and also convicted to undergo simple imprisonment for six months for the offence under Section 323 of the Indian Penal Code by the learned Additional Sessions Judge, Valsad at Navsari vide judgment and order dated 28.03.2002. However, the present appellant-accused was acquitted of the charge for the offence under Section 504 of the Indian Penal Code. 2.0 The prosecution version in a nutshell is as CR.A/414/2002 3/16 JUDGMENT follows :- 2.1 The complainant viz., Manuben wife of Lallubhai Narottambhai Rathod married to Lalluram Narottam Rathod on 26.02.2001. Out of wedlock, she delivered two daughters viz., Tinu aged 7 years and Daxa aged 5 years. Since the husband of the complainant was not keeping her well, she left her matrimonial house on 26.02.2001 and started residing at her parental home along with her two daughters. Thereafter, the complainant came in contact with on Rajubhai Vasava and love relations were developed. Said Rajubhai every now and then used to meet the complainant in night time at her residence, which was not liked by the appellant-accused. On 25.02.2001 at about 8 O'clock in the night, when the complainant was at her residence, her daughter viz., Tinu came and informed her that Raju pappa is calling you. Hence, the complainant had gone to meet said Raju. When the complainant was talking with said Raju, CR.A/414/2002 4/16 JUDGMENT the appellant-accused reached there, slapped her and asked her to leave the said place and, hence, she left the said place. Thereafter, the appellant-accused told said Raju as to why you are keeping relation with his sister and also abused him. Thereafter, the appellant-accused started giving stick blows on the different parts of the body. Hence, the complainant tried to rescue him, but the appellant-accused also beat her. No surrounding persons assembled there to rescue said Raju as the appellant-accused was booked in one offence in past and is a headstrong person. Thereafter, said Raju was taken to Navsari Hospital and, thereafter to Surat Hospital for further treatment, where during the course of treatment, he succumbed to the injuries. Accordingly, the complainant filed complaint on 26.02.2001. 2.2 Upon registration of the offence, the investigation was embarked upon. The Investigating Officer visited the scene of offence and drew the panchnama of scene of offence in the CR.A/414/2002 5/16 JUDGMENT presence of panchas, drew inquest panchnama in the presence of panchas, filled up the Maranottar Form and made arrangements for sending dead body for postmortem. Thereafter, the accused expressed his willingness to produce the muddamal alleged to have been used in the commission of offence. He therefore called the panchas and prepared primary panchnama and seized the muddamal at the instance of appellant- accused. He sent all the muddamal to FSL for analysis. On receiving the FSL report and postmortem note, same were kept in investigation file. Upon completion of investigation, he submitted the charge sheet against the accused in the Court of learned Chief Judicial Magistrate, Navsari, where it was numbered as Criminal Case No.1945/2001. 2.3 As the offence alleged against the accused was exclusively triable by the Court of Sessions, same was committed to the Court of Sessions at Navsari under Section 209 of the Criminal Procedure Code vide order dated 07.08.2001, where it was numbered as Sessions CR.A/414/2002 6/16 JUDGMENT Case No.152 of 2001. 2.4 Thereafter, the case was transferred and placed for trial before the learned Additional Sessions Court, Valsad at Navsari for disposing of the same on merits. 3.0 On production of the accused, the Learned Additional Sessions Judge framed charge vide Exh.3, wherein the appellant-accused pleaded not guilty to the charge and claimed to be tried. 3.1 To prove the charge against the accused, prosecution examined as many as 11 witnesses and placed reliance upon 13 documentary evidence. 3.2 On submission of closing purshis by the prosecution, learned Additional Sessions Judge recorded further statement of the accused under Sec.313 of Code of Criminal Procedure qua the incriminating question wherein the accused came out with the case of total denial. The accused did not examine any witness nor stepped into the witness box. CR.A/414/2002 7/16 JUDGMENT Therefore, after hearing the learned counsel appearing for the respective parties, learned Additional Sessions Judge delivered the impugned judgment giving rise to file the present appeal. 4.0 We have heard learned counsel for the appellant, Ms.Chetnaben Joshi and learned Additional Public Prosecutor, Mr.H.L. Jani for the respondent-State. 5.0 It has been mainly argued by the learned counsel for the appellant-accused, Ms.Joshi that the appellant is totally innocent and has been falsely involved into the crime in question. 5.1 It is argued that the complainant had relation with the deceased, which was not liked by the appellant-accused and on the day of incident, the complainant had gone to meet the deceased and incident took place and, hence, at the most, it is a case of sudden provocation, which resulted into 302 of the I.P.C. CR.A/414/2002 8/16 JUDGMENT 5.2 It has been argued that the prosecution has failed to establish the motive and intention. Not only that, according to her, the blow given by the accused to the victim was not with an intention either to kill or cause him serious injuries. 5.3 Lastly, it is argued that the appellant- accused is in jail since June, 2001 and, therefore, it is submitted that either the case may be treated as the one falling under Section 304, Part-II or may the sentence already undergone be treated as sufficient sentence, which will meet the ends of justice. 6.0 Mr.Jani, learned Additional Public Prosecutor appearing for the respondent-State has objected the arguments advanced by the learned counsel for the appellant-accused mainly on the ground that here in this case, the prosecution has proved the guilt against the accused beyond doubt. 6.1 He has taken us through the evidence of CR.A/414/2002 9/16 JUDGMENT complainant along with the medical evidence and submitted that the prosecution has proved the guilt against the accused. 6.2 Mr.Jani has, therefore, submitted that no lenient view be shown towards appellant- accused. 7.0 We have gone through the oral as well as documentary evidence along with the relevant part of the impugned judgment delivered by the Learned Additional Sessions Judge shown to us by the learned counsel for the respective parties. 7.1 P.W.No.2 viz., Manuben Lallubhai Rathod, Exh.15 is the complainant and also injured witness, who was present at the time of incident. This witness has categorically stated that since her husband had relation with one lady and also used to beat her, she left her matrimonial house and started residing at his parents' house along with her two daughters. This witness stated that she had love affair with the deceased and, hence, CR.A/414/2002 10/16 JUDGMENT the deceased used to meet her in night hours every now and then, which was not liked by the appellant-accused. This witness stated that the incident had taken place on 25.02.2001. This witness stated that on the day of incident, her daughter, Tinu came and informed her that Raju Pappa is calling you and, hence, this witness had gone to meet him. This witness stated that when she was talking with the deceased, the appellant- accused came and slapped her and asked to leave said place. This witness stated that thereafter, the appellant-accused started beating the deceased by giving stick blows on different parts of the body. This witness stated that when she tried to rescue the deceased, the appellant-accused gave stick blow to her. This witness stated that no person from the surrounding area tried to save the deceased as the appellant-accused is headstrong person. This witness stated that thereafter, the deceased was taken to Navsari CR.A/414/2002 11/16 JUDGMENT Hospital and, thereafter, to Surat, where during the course of treatment, the deceased succumbed to the injuries. This witness stated that she filed complaint against the appellant-accused. This witness identified the appellant-accused as also muddamal stick before the Court. This witness was thoroughly cross-examined by the other side, but nothing contrary has come on record, which turtle her evidence. 7.2 P.W.No.9 viz., Sudhaben Maganbhai, Exh.9 is the resident of same locality, where the incident had taken place. This witness stated that the incident had taken place on 25.02.2001. This witness stated that after taking dinner, she was sitting along with family members and, thereafter, the appellant-accused came and asked Manu as to why she is standing there and also slapped her. This witness stated that thereafter, altercation took place between the appellant- accused and the deceased. Thus, from the CR.A/414/2002 12/16 JUDGMENT evidence of this witness, the prosecution has proved the presence of the appellant-accused at the time of incident and the role played by the appellant-accused. 7.3 The prosecution has also examined three doctors viz., P.W.No.1 viz., Dr.Mehul Ramaniklal Deliwala, Exh.11, who treated the deceased at Navsari hospital and referred to Surat Hospital, P.W.No.6 viz. Dr.Ajaykumar Jankiprasad Sharma, Exh.20, who treated the deceased at Surat Hospital and P.W.No.7 viz., Dr.Mahammad Iqbal Hussain Kureshi, Exh.24, who performed the postmortem upon the dead body of the deceased. 7.4 Dr.Mehul Deliwala (P.W.No.1) has given primary treatment to the deceased and issued injury certificate, Exh.14. Upon perusal of the said certificate, following injuries were found :- (1) Swelling over Rt parotid region and past auricular region and Tf corner of mouth (confused swelling) (2) Confusion with blackening of skin over Lt hand upper arm on Rt side just over elbow. CR.A/414/2002 13/16 JUDGMENT 7.5 P.W.No.7 viz., Dr.Mahammad Iqbal Hussain Kureshi, Exh.24 is the doctor, who performed the postmortem. This witness stated that on 27.02.2001 at about 9:30 a.m., one dead body of Rajubhai Ramubhai Vasava was brought before him for the purpose of postmortem. This witness stated that he started postmortem at 10:00 a.m. and completed at 11:00 a.m. During the course of postmortem, following injuries were found :- (1) An abrasion with confusion over Rt.side of cheek. 4 cm x 3 cm dark red in colour. (2) Abrasion with confusion over upper part of Rt. cheek. 2 cm x 1 cm, dark red in colour. (3) Abrasion with confusion over top of Rt. shoulder. 2 cm x 2 cm. (4) An Abrasion over Rt. thigh. 2 cm x 1 cm, dark red in colour. 7.6 The said fact is also evident from Col.No.19, wherein the doctor has specifically narrated the internal injuries sustained by the deceased. 7.7 This witness opined the cause of death that shock due to hemorrhage as a result of head CR.A/414/2002 14/16 JUDGMENT injury. 7.8 Now the question, which is required to be taken into consideration is that the incident took place can be treated as 302 of the I.P.C. or to be falling under 304 Part-II. 9.0 We have evaluated the evidence in toto keeping in mind the above aspect of the matter and found that at the time of incident, the complainant, who is married sister of the appellant-accused, was standing in a public place with an unknown person and, hence, the appellant-accused enraged and gave slap to the complainant and, thereafter, started beating the deceased with stick by giving blow on the different parts of the body. In that view of the matter, the Learned Additional Sessions Judge has committed an error in convicting the appellant-accused under Section 302 of the I.P.C. as it is a case of sudden provocation and the muddamal stick used by the appellant-accused is not predetermined, but it was used as it was CR.A/414/2002 15/16 JUDGMENT lying there and, hence, it was not the intention or motive of the appellant-accused to kill the deceased or cause any injury, but to teach him lesson. Moreover, the injuries received by the deceased on the body are simple in nature and said fact is also admitted by the doctor. 9.1 It is a case of sudden provocation and, therefore, in absence of motive or intention, it cannot be said to be offence falling under Section 302 of the I.P.C. 9.2 Over and above, it is required to be noted that the appellant-accused has undergone approximately more than six and half years of sentence and if we consider his case of sudden provocation then, the case of the appellant falls under Section 304, Part II of the I.P.C. and the sentence, which he has undergone will meet the ends of justice. 9.3 In the result, the appeal is partly allowed. Judgment and Order of conviction and sentence dated 28.03.2002 delivered by the learned CR.A/414/2002 16/16 JUDGMENT Additional Sessions Judge, Valsad at Navsari in Sessions Case No.152 of 2001 are modified and the appellant-accused is convicted for the offence under Section 304, Part II of the Indian Penal Code and the sentence already undergone by him is ordered to be treated as the sufficient sentence imposed on him. He is, therefore, ordered to be set at liberty forthwith, if not required in any other offence. Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil