CR.A/89420/2002 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 894 of 2002 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 ? ========================================= = BHARWAD GOBARBHAI WAGHABHAI Versus STATE OF GUJARAT ========================================= =Appearance : MR YN RAVANI for the Appellant MS MITA PANCHAL, ADDL PUBLIC PROSECUTOR for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 24/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed against the judgment and CR.A/89420/2002 2/6 JUDGMENT order dated 21.09.2002 passed by the learned Additional Sessions Judge, Fast Track Court, Amreli in Sessions Case No.256 of 2001. 2. The brief facts of the appeal of the case is to the effect that the present appellant and one Bharwad Lakhabhai Punabhai were charged for the offence punishable under Sections 504, 506(2), 114 and under Section 302 alternatively 307 read with Section 114 of the Indian Penal Code. The accused were further charged for the offence punishable under Sections 161 and 162 of Village Panchayat Act. 3. The accused were tried in Sessions Case No. 119 of 1999 by Additional Sessions Judge, Fast Track Court, Amreli. The learned Sessions Judge acquitted accused No.2 Bharwad Lakhabhai Punabhai and convicted the present appellant who was accused No.1 for the offence under Section 302 of IPC and section 161 of Village Panchayat Act. The accused No.1- present appellant was sentenced for life imprisonment for an offence under Section 302 of IPC while for the offence under Section 161 of Village Panchayat Act he was punished for one month's rigorous imprisonment. 4. The case of the prosecution, in brief, is to the effect that the present appellant and two other Shepherds were grazing the cattle at the farm of deceased, therefore, the deceased had gone to the accused persons and there she had scolded the accused persons. During this incident, the accused No.1 Bharwad Gobarbhai Waghabhai had given one axe blow on the head of the deceased Nanduben and she fell down. Due to this incident, there was commotion. The husband of deceased Lakhabhai Bhanabhai Parmar reached at the place of the incident. Later on, the nephew of the deceased Babubhai Kodi also came at the place of incident and the mother of the deceased Kesarben had also reached at the place. CR.A/89420/2002 3/6 JUDGMENT 5. The prosecution has examined these three witnesses. Lakhabhai is examined a t Exh.27. Babubhai who is nephew of the deceased is examined at Exh.30, while mother of the deceased Kesarben is examined at Exh.31. The complaint was given by the husband of the deceased Lakhabhai Bhanabhai Parmar on 12.3.1999. The mother of deceased Kesarben has not supported the case of the prosecution and she is declared as hostile. 6. Mr. Ravani, learned advocate for the accused person, has argued. He has argued that the case of the case of the prosecution is not believable. There are material contradictions in the evidence of the witnesses. Lakhabhai Parmar- husband of the deceased has given complaint, wherein the place of the incident is mentioned at his farm. The place of the panchnama, which is at Exh.26, shows that the incident has occurred at the farm of one Keshubhai which is adjacent farm of the deceased and Lakhabhai's farm. The learned advocate has further argued that the conduct of witness Lakhabhai Bhanabhai is unnatural. When he and his wife were present in the farm, plucking the cotton, he did not go to shepherds asking them to take away the cattle from the farm. At the time of incident also, he did not intervene. 7. The learned advocate further argued that the story narrated by the witness is not believable. In the complaint he has given description of the place of incident his own farm. In fact, Panchnama and blood stain shows that incident had occurred at adjacent farm. If the place of the incident is adjacent farm, incident could not have been seen by this witness as in between there is small nalia. The witness has tried to implicate other accused also. The complainant has tried to improve this story to a material extent which makes his version not believable. 8. The learned advocate has further argued that the presence of other witness Babubhai who is examined at Exh.30 is also CR.A/89420/2002 4/6 JUDGMENT doubtful. This witness is having his farm next to the farm of the deceased. He would have crossed the farm of the deceased, other farm of one Kanjibhai and then at the place of incident which is the farm of one Keshubhai. Considering the long distance to reach, it would not have been possible to reach the place immediately. Therefore, it is not possible to witness the incident. Even this witness has admitted that when he reached at the place, the shepherds were leaving the place, and he had not seen the actual incident. 9. Third witness Kesarben who is mother of the deceased is examined at Exh.31. She has stated that when she reached at the place, there was no one at the place and later on other two witnesses reached. This witness is declared hostile by the prosecution. 10. The learned advocate has further argued that the prosecution has suppressed the genesis of the incident. The damage of the crop is not investigated by the police. The complainant seems to have given this complaint due to some previous enmity. The police has not investigated this aspect also. He has further argued that the investigation done at Jesar Police Station is not brought on record. The police has not investigated about the damages of the crop. The police has not examined material witness. The police did not examine Mr. Gohil whose cart was brought. The police has also not examined one Janak who had immediately reached at the place of incident and did not examine one Jhaverbhai and Devrajbhai who had accompanied the deceased from village to Savarkundla and then Bhavnagar hospital. The police has also not brought on record the detail about the treatment given at Savarkundla hospital to the deceased. Under such circumstances, there is unfair police investigation. 11. Mr. Ravani has further argued that even if the case is CR.A/89420/2002 5/6 JUDGMENT believed as it is, then also, it was a case wherein there was deceased who herself had gone to initiate quarrel with the accused persons at the adjacent farm where incident had occurred. Even as per the complaint, she had gone to scold the accused persons, and, therefore, there was hot exchange of words between the parties. In such provocative situation, it is a case of one blow given by the accused- appellant. In any case, it is not an offence following under Section 302 of IPC. The accused person is not having criminal antecedents. They are rustic villagers. The axe is kept as a tradition by these shepherds for cutting the tree branches for feeding their cattle. In view of this fact, the prosecution case is believed as it is, alternatively, it is a case following under Section 304 Part II of IPC. The accused person who is appellant herein is in jail from the date of the incident, i.e. 13.3.1999. More than nine and half years period he has undergone the jail. 12. We have heard Ms. Mita Panchal, learned Additional Public Prosecutor. She has supported the case of prosecution. She has stated that the judgment of the learned Judge is correct and the prosecution has proved the case beyond doubt. 13. Without entering into larger issue, we are of the opinion that the incident had occurred in sudden provocation as deceased had gone to scold the accused persons and one axe blow is given to the deceased by the accused. It seems that it was not a pre- planned incident. There was no intention to commit the offence. It seems that the lady has chased the accused person to the next farm which is place of incident mentioned in the panchnama. Under such circumstances, we are inclined to accept the submission of the learned advocate that this case falls under Section 304 Part I of IPC. In view of this fact, we convert the conviction under Section 302 of IPC to Section 304 Part I of IPC. We further find that there is no evidence for committing offence CR.A/89420/2002 6/6 JUDGMENT under Section 161 of Village Panchayat Act about grazing of the cattle in the farm of the deceased person. We set aside the conviction under Section 161 of Village Panchayat Act. 14. In view of the above facts, the conviction awarded under Section 161 of the Village Panchayat Act, vide order dated 21.09.2002 by the Additional Sessions Judge, Fast Track Court, Amreli in Sessions Case No.256 of 2001, is set aside and the conviction under Section 302 of IPC is converted to the conviction under Section 304 Part I of IPC. The accused has already remained behind the bars for nine and half years. So, the substantive sentence undergone by him is sufficient to meet with the ends of justice. He is ordered to pay a fine of Rs.500/-, in default, one month rigorous imprisonment. Hence, the appeal of the appellant- accused No.1 Bharwad Gobarbhai is partly allowed, as indicated above. He is ordered to be released forthwith after payment of fine, if not required in any other case. (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) omkar