CR.A/44319/1987 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 443 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 Versus KATHI RANUBHA DADBHAI SANKLI & OTHERS ====================================== Appearance : Mr PD Bhate, Additional Public Prosecutor for the Appellant MS CHETNABEN JOSHI for Opponent(s) : 1 - 3. ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 05/08/2008 CR.A/44319/1987 2/7 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been preferred by the State of Gujarat against the judgement and order of acquittal dated 4.5.1985 passed by the learned Sessions Judge, Surendranagar in Sessions Case No.62 of 1986. The case of the prosecution is that on 7th August 1986 at about 2 PM in the sim of village Sankali, Taluka Wadhwan, District Surendranagar, which is situated at Sankali, Bhadiad Road, accused No.1 inflicted Farsi-Axe blows on the deceased with the intention of causing his death. The accused Nos.2 and 3 instigated accused No.1 in the commission of offence. It is also alleged that accused No.1 had voluntarily caused simple hurt by means of blunt portion of the Farsi to Janakben Bavabhai while accused Nos.2 and 3 executed stick blow on Chatur Bavabhai to his deaf and dumb son of the deceased. A complaint was lodged by Jivuben who is wife of the deceased before the Head Constable at MGS Hospital, Surendranagar and the Constable sent the said complaint at Wadhwan Police Station for registration. As per the complaint of Jivuben, on the date of incident, i.e. on 7th August 1986 after taking lunch, she had gone to the field along with her deaf and dumb son, Chatur Bavabhai and her husband – deceased Bava Ratna also followed her. In the meantime, a cow belonging to accused No.1 strayed into their field and therefore her husband shooed away the said cow. CR.A/44319/1987 3/7 JUDGMENT After seeing this, accused No.1 and his father, accused No.2 and his brother, accused No.3 all came there and accused No.1 executed Farsi Axe blow on the head portion of her husband. Complainant – Jivuben as well as her deaf and dumb son tried to intervene, but accused No.2 executed stick blow on her son while accused No.3 has also executed stick blow on him. In the meanwhile, her daughter – Janki had come to the scene of offence and they ultimately brought the deceased at Santhi (Plough) and from there they went up to the village board of Kerala and from there they went to Wadhwan in ST Bus and thereafter they took rickshaw to reach MSG Hospital, Surendranagar. At the end of the investigation, charge sheet was submitted and the case was committed to learned Sessions Judge for trial. The charge was framed Exhibit 3. Accused pleaded not guilty and hence after holding full-fledged trial, the accused were acquitted under Section 302 of the Indian Penal Code, but were convicted under Section 304 Part 2 of the Indian Penal Code and were sentenced to undergo RI for seven years and to pay a fine of Rs.2,000/-, in default to suffer further RI for one year. Being aggrieved and dissatisfied with the said judgment and order of the State Government preferred a present appeal before this Honourable Court. Learned Additional Public Prosecutor, Shri P.D.Bhate made following arguments on the basis of which acquittal order under Section 302, 323 and 114 was sought to be reversed considering the evidence on record:- (1)It is submitted by the learned Additional Public Prosecutor that prosecution has examined 14 witnesses in support of its case and number of documentary evidences were also produced to CR.A/44319/1987 4/7 JUDGMENT strengthen the case of the prosecution. (2)It is submitted by learned Additional Public Prosecutor that prosecution has examined Devjibhai Chimjibhai Vadher, Medical Officer, MSG Hospital, Surendranagar vide Exhibit 8, PW 1. According to his deposition, on 7th August 1986 at 9 PM dead body of Bava Ratna was brought by P.G. Wadhwan City. Post Mortem was started on 6.45 PM to 8.00 PM on 8th August 1986. According to the witness there was one external injury, sutured wound on the left fronto parietal region vertical and oblique size 2-1/4”. He opined that external injury was ante mortem and this injury was necessarily fatal. I cannot say whether the injury might have been caused by the Malmudda Article No.5 by the Axe (Farsi), as the wound was suture wound the injury could be caused by the reverse side of the Axe. (3)It is submitted by the learned Additional Public Prosecutor that the prosecution has examined Anjanaben Narendrabhai, Exhibit 12, PW 2. She examined Chatur Bavabhai on 8th August 1986, who is son of the deceased. She found two external injuries on his person. (4)It is submitted by the learned Additional Public Prosecutor that the prosecution has examined Jivuben Bavabhai, PW 4. She is wife of the deceased and she lodged the complaint. According to her version at the time when she along with her daughter and son, Chatur and her husband went to the field, at that time, cow belonging to accused No.1 entered their field and therefore her husband shooed away the cow. At that time, Ranubhai came and gave Farsi blow on the head of her husband. Her daughter – Jankiben tried to save him, but she was also beaten by blunt portion of Farsi. She went to her CR.A/44319/1987 5/7 JUDGMENT husband. At that time, accused No.2 Dadbhai pushed her and when her son started running, accused No.2 gave stick blow on his back as well as on his legs. She identified the accused in the court room. Thereafter, the deceased was taken at Surendranagar police station and from there she lodged the complaint. (5)It is submitted by the learned Additional Public Prosecutor that the prosecution has also examined Dr Ghanshyam Parmanand, PW 5, who is Medical Officer of MSG Hospital, Surendranagar. According to his version, on 7th August 1986 Bava Ratna was brought to him at about 4.20 PM without police yadi. He was unconscious. He noticed history that Bava Ratna was assaulted with Farsi. He noticed three injuries of CLW of 2¼”, ¼” and ¼” vertically oblique on left parietal region of head. According to him, the said injury was grievous and must have been caused by hard and blunt object. According to him, Bava Ratna died on the same day at 7.15 PM. He issued certificate which is at Exhibit 20. According to him, the injury could have been caused by back portion of Farsi. (6)It is submitted by the learned Additional Public Prosecutor that prosecution has also examined Janakben Bavabhai, daughter of the deceased who is eye-witness, PW 6. She repeated the story which was deposed by PW 4, Jivuben Bavabhai. (7)It is submitted by the learned Additional Public Prosecutor that the prosecution has also examined Khodabhai Harkhabhai, PW 7 and Prabhuraibhai Ramjibhai, PW 8 who has informed about the incident to Janak, daughter of the deceased. (8)It is submitted by the learned Additional Public Prosecutor that the prosecution has also examined Bhanuben Gandadas, Head Constable and PW 13 Laxmabhai Kanubhai Chauhan, Police CR.A/44319/1987 6/7 JUDGMENT Sub-Inspector, PW 14. (9)It is submitted by the learned Additional Public Prosecutor that in the statement of 313 of Criminal Procedure Code, accused No.1 says that deceased had given Dhariya blow on his head, but he saved this blow with stick. Had he not saved this blow with this stick, he would have died. This statement is at Exhibit 45. (10)Considering the deposition of Medical Officer, PW 1 and Dr Ghanshyambhai Parmanand, PW 5 the learned Judge noticed that one Farsi blow was given on the head of the deceased. The Medical Officer is supported by the eye witness – Jivuben Bavabhai, PW 4 and her daughter Janakben Bavabhai, PW 6. Considering this fact the learned Judge acquitted accused No.1 under Section 302 of Indian Penal Code and convicted him under Section 304 Part 2of the IPC and acquitted accused Nos.2 and 3 are acquitted under Section 302 and 323 read with Section 114 of the Indian Penal Code. Per contra, the learned counsel for defense urged that the case of the prosecution against accused No.2 and 3 was not rightly made by prosecution. No conspiracy can be said to be hatched at all. The incident was a sudden one and therefore the findings of the trial Court are correct. The learned counsel further argued that the incident was not premeditated. On the matter of cattle trespass feelings of the parties got enraged and they entered into quarrel. There was no harm caused than the one which can be considered necessary if the defence version is accepted. CR.A/44319/1987 7/7 JUDGMENT When an act takes place all of a sudden without premeditation and being enraged on some count, then, it cannot be said that the findings of the trial Court on that count can be faulted with. The accused NO.1 has not challenged the findings of the trial Court on his convicting under Section 304 II of the Indian Penal Code. We think rightly so. Here we take note of the fact that the accused having not challenged the finding has suffered the sentence. At the present distance of time the conviction under Section 304-II of IPC does not appear to be such a value that the same deserves to be interfered with. Consequently, we affirm the findings of the trial Court and uphold the acquittal under Section 302 of IPC of the accused No.1 and acquittal of accused Nos.2 and 3 under Sections 302, 323 read with Section 114 of IPC. Consequently, the appeal is dismissed. Bail bonds, if any, are cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd