CR.A/56720/2000 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 567 of 2000 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 ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 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 ? No. 5 Whether it is to be circulated to the civil judge ? No. ========================================================= JAGDISH ALIAS JOKHAM MAFATLAL ODHALAL (MARVADI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR SHAKIL S SHAIKH for Appellant(s) : 1, MR MAULIK NANAVATI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 21/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The present appeal challenges the judgment and CR.A/56720/2000 2/6 JUDGMENT order dated 12-5-2000 passed by Addl. Sessions Judge, Court No.10, Ahmedabad in Sessions Case No.281 of 1999 convicting the appellant for offences punishable u/s 302 of the I.P. Code and u/s 135 of the Bombay Police Act sentencing him to suffer imprisonment for life and to pay fine of Rs.500/- i/d to undergo R.I. For 15 days and for the offence punishable u/s 302 of the I.P. Code fine of Rs.500/- i/d to undergo R.I. for 15 days. 2. The case of the prosecution is that on 18-7-1999 at about 4-30 p.m. in the evening the appellant – original accused, deceased Lalit, P.W. 2 Manoj Agrawal and others were playing cards on the terrace of Block No.27 of Sonaria Block. At that time, there was an altercation between the appellant and Lalit over demand of Rs.10/- by the appellant from Lalit. P.W. Manoj and others intervened and separated the two. The appellant thereafter went downstairs. After about 5 minutes he returned to the terrace armed with a knife and gave a blow on the neck of Lalit. As a result of the said injury, Lalit died and case u/s 302 of the I.P. Code came to be registered against the appellant. After the investigation, charge sheet came to filed against the accused Jagdish and he was put on trial. 3. The learned trial Judge after appreciating the evidence led by the prosecution, and relying on the evidence of the complainant P.W. 1 Dipakkumar, eye CR.A/56720/2000 3/6 JUDGMENT witness P.W. 2 Manoj and the medical evidence, found the charge against the accused as proved and convicted him for the offence punishable u/s 302 of the I.P. Code and imposed the sentence as stated above. Being aggrieved by the said decision, the appellant – convicted has preferred this appeal. 4. Heard Mr. Shaikh learned advocate for the appellant and Mr. Maulik Nanavati, learned Addl. Public Prosecution for the State and with their assistance, we have perused the record and proceedings of the trial court. 5. Mr. Shaikh learned advocate for the appellant fairly submitted that in view of the unshaken and unimpeached ocular evidence of P.W. 2 Manoj and the evidence of the complainant P.W. 1 Dipakkumar he would not be in a position to assail the finding of guilt. He, however, submitted that the learned Judge was not right in convicting the accused for offence under Section 302 and ought to have convicted him under Section 304 Part I of the Penal Code. We are inclined to accept this submission of the learned Counsel. PW-2 Manoj is an eye-witness to the incident. His evidence is trust-worthy and reliable. He has stated that while they were all playing cards on the terrace there was a quarrel between the accused and the deceased. He and others present at the place had to intervene and separate the accused and deceased. The accused left angrily and returned CR.A/56720/2000 4/6 JUDGMENT after a few minutes and gave a blow with knife to the deceased. PW-1 Dipakkumar, brother of the deceased and the complainant of the present case, has also stated that while he was standing near the grocery store, the accused came up to him and told him that his brother Lalit has slapped him while they were playing cards and threatened to see him for the said act. The accused then went towards his house. After a few minutes, this witness saw the accused going towards terrace of Block No. 27. He too followed him to the terrace and saw his brother lying in a pool of blood. On inquiring he was told by Lalit that the accused had inflicted a knife blow to him. The evidence of these two witnesses clearly establishes that some altercation had taken place between the accused and the deceased on the terrace where they were playing cards. It further appears that the deceased had given a slap to the accused and therefore the accused had angrily left the terrace. It was because of this incident that the accused had got enraged and assaulted the deceased by bringing a knife from his house. The attack does not appear to be pre-meditated or planned but appears to have been made in a fit of rage. Also, a single injury has been inflicted by the accused. The very fact that the that there was an altercation preceding the actual assault suggests that the accused never had the intention of causing death of the deceased in the first instance and it was only because of circumstances they developed on spur of the moment CR.A/56720/2000 5/6 JUDGMENT that the appellant gave the blow to the deceased. At the same time, we are of the opinion that the appellant must be held to have known the consequences of the blow being given and since it was a single blow, the offence would be one under Part I of Section 304 of the IPC. 6. Therefore, considering the evidence on record and the totality of facts and circumstances of the case, we are inclined to set aside the conviction of the appellant under Section 302 IPC and instead convict him under Section 304 Part-I of the IPC and sentence them to undergo rigorous imprisonment for ten years and fine of Rs.500=00 each, in default, S.I. for six months. 7. For the reasons recorded in the judgment, the present appeal is partly allowed and conviction and sentence of appellant Jagdish alias Jokham Mafatlal Odhala (Marvadi) recorded vide judgment and order dated 12-5-2000 by learned Addl. City Sessions Judge, Court No.10, Ahmedabad in Sessions Case No. 281 of 1999 for the offence punishable u/s 302 of the I.P. Code is altered from Section 302 of the I.P. Code to Section 304 Part-I of the I.P. Code and the appellant is directed to undergo sentence of rigorous imprisonment for the period of 10 years and to pay fine of Rs.150/- in default thereof to CR.A/56720/2000 6/6 JUDGMENT undergo rigorous imprisonment for 15 days. The order of conviction and sentence imposed by the trial court for the offence punishable u/s l35 of the Bombay Police Act is confirmed. Both the sentences are ordered to run concurrently. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta,J) /JVSatwara/