CR.A/30620/2001 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 306 of 2001 With CRIMINAL MISC. APPLICAION NO. 14567 OF 2008 IN CRIMIAL APPEAL NO.306 OF 2001 With CRIMINAL APPEAL No. 528 of 2001 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. ===================================================== RAJUBHAI BUDHASINGH @ BHORUBHAI MAHAVAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : CR.A/30620/2001 2/9 JUDGMENT In Cri Appeal No.306 of 2001 with Criminal Misc. Application No. 14567 of 2008 MR BHARAT K DAVE for Appellant/applicant MS. H.B.PUNANI APP for Respondent/opponent -State In Criminal Appeal No. 528 of 2001 Ms. H.B. PUNANI APP for appellant – State. Mr. Bharat K. Dave, respondents ===================================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 15/12/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has preferred Criminal Appeal No. 306 of 2001 under Section 374 (2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed on 15-2-2001 by Addl. Sessions Judge, Panchmahals Camp at Dahod in Sessions Case No.74 of 2000 for offences punishable u/s 302 of the I.P. Code and sentencing him to undergo imprisonment for life and to pay fine of Rs.2,500/- i/d to undergo simple imprisonment for three months. 2. State has also preferred Criminal Appeal No. 528 of 2001 against the judgment and order of the trial CR.A/30620/2001 3/9 JUDGMENT court acquitting the other accused. 3. Since both the appeals arise out of the same judgment they are heard and decided by this common judgment. 4. In brief the prosecution case was that on the previous day of incident, when Kallu @ Ashikali Bafati Saiyed with Pappu @ Sanjaysingh Thakor went to see one Bhanabhai, there was altercation with accused Rajubhai Budhasingh, his younger brother – accused Dinesh Budhasinh and their father Anil @ Bhoyu Budhasingh @ Bhorubhai Mahavar. On the day of incident, Kallu @ Ashikali Bafati and Pappu @ Sanjaysingh started to go to Godhra road on the scooter at about 1-30 p.m. Kallu @ Ashikali Bafati was driving scooter and Pappu @ Sanjaysingh was on pillion seat of the scooter. At that time accused Rajubhai, his brother Dinesh with iron pipe and their another brother with stick, one person with iron pipe came there and accused Rajubhai hit iron pipe on the back and head of Pappu @ Sanjaysingh. Accused Dinesh also gave iron pipe blows to Kallu @ Ashikali Bafati. On account of injuries Pappu @ Sanjaysingh died. 5. On the basis of the first information report lodged by Kallu @ Ashikali Bafati offence was registered and investigation was started. At the end of investigation charge sheet was laid against the accused for the offence punishable u/s 302, 325 and CR.A/30620/2001 4/9 JUDGMENT 114 of the I.P. Code. As the case was triable by Sessions Court, the case was committed to Sessions Court, Panchmahals Camp at Dahod and it was registered as Sessions Case No. 74 of 2000. Learned Addl. Sessions Judge, Panchmahals Camp at Dahod framed charge Exh. 2 against accused for the aforesaid offences. The accused pleaded not guilty to the charge and claimed to be tried and therefore the prosecution adduced evidence. 6. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused in their further statement recorded u/s 313 of the Criminal Procedure Code, 1973 stated that they have not committed offence and false case is foisted upon them. 7. After hearing learned A.P.P. and learned advocate for the accused, the learned trial Judge convicted accused Rajubhai Budhasingh and sentenced him as mentioned hereinabove. The learned trial Judge also convicted accused Dinesh Budhasingh but granted him benefit under Section 360 of Criminal Procedure Code, 1973. The trial court acquitted other accused. Being aggrieved by the decision, the appellant – convict has preferred appeal against conviction. State has also preferred acquittal appeal against the same judgment. 8. We have heard learned advocate Mr. Bharat K. Dave CR.A/30620/2001 5/9 JUDGMENT for the appellant-convict and for the respondents in Criminal Appeal No.528 of 2001 and Ms. H.B. Punani, learned Addl. Public Prosecution for the State at length and in great detail. We have perused the impugned judgment and record and proceedings of the trial court. 9. So far as conviction appeal is concerned, learned advocate Mr. Dave for the appellant - convict submitted that the manner in which the incident occurred the learned trial Judge committed error in convicting the appellant for the offence of murder. There is no evidence to indicate that there was an intention on the part of the appellant – convict to cause fatal injury. Hence, interference is warranted in the impugned judgment and the appeal is required to be allowed. Per contra, learned A.P.P. Ms. Punani submitted that the medical evidence indicates that fatal injury was caused on the vital part of the deceased. Therefore, the learned trial Judge was justified in convicting the appellant – convict for the offence of murder and no interference is warranted in the impugned judgment. 10. As regards acquittal appeal, learned A.P.P. Ms. Punani submitted that the learned trial Judge committed error in disbelieving the prosecution evidence with regard to the injury caused to the witness. Therefore, acquittal appeal is required to be allowed and interference is warranted in the impugned judgment. As against this, learned advocate CR.A/30620/2001 6/9 JUDGMENT Mr. Dave for the respondents – accused submitted that in absence of cogent evidence the learned trial Judge was justified in acquitting the accused – respondents. Therefore, no interference is warranted in the impugned judgment and acquittal appeal is required to be dismissed. 11. It appears from the prosecution case that there was quarrel on the previous day of incident and on account of the quarrel the deceased was attacked and accused Rajubhai caused the fatal injury. Therefore, now the only question required to be decided is whether the assault was caused with an intention to cause death ? 12. P.W. 1 Kallubhai @ Ashikali Bafati Saiyed Exh. 13 is an eye witness to the incident. It appears from his evidence that accused Rajubhai hit iron pipe on back side of head of Pappu @ Sanjaysingh. The evidence of this witness also indicates that the witness was driving the scooter and the deceased was on the pillion seat of the scooter. The evidence of this witness also indicates that there was quarrel on the previous day of the incident. First Information Report Exh. 14 indicates that accused Rajubhai gave one iron pipe blow on the back and another blow on head of the deceased. P.M. Report Exh. 23 indicates that there were three injuries on the dead body and injury No.3 caused on occipital region was fatal injury. Therefore, there appears to be discrepancy in the evidence with regard to blows given to the CR.A/30620/2001 7/9 JUDGMENT deceased. It appears that no injury was found on the back of the deceased. The medical evidence is contrary to oral version of P.W. 1. It also appears that the incident occurred when the scooter was in motion. Therefore, it is difficult to believe that the accused intended to cause injury on particular part of the body. 14. The evidence of P.W. 3 Jayeshkumar Devendra Sharma Exh. 21 indicates that deceased Pappu @ Sanjaysingh was attacked with iron pipe by accused Rajubhai when he was on pillion seat of scooter and scooter was in motion. It appears that as only one blow was hit on the head of the deceased, that too, while the scooter was in motion, it is difficult to believe that the accused caused the death with intention of causing death and the case would not fall under Clause Thirdly of Section 300 of the I.P. Code. 15. The manner in which the incident occurred, in our considered view, learned trial Judge committed error in convicting accused Rajubhai for the offence of murder and the case of accused Rajubhai would fall under Section 304 Part – I of the I.P. Code. 16. As regards sentence, learned advocate for the appellant submitted that the appellant accused has been in jail since last more than 7 years. Considering the manner in which the offence is committed, the conviction of the accused Rajubhai is CR.A/30620/2001 8/9 JUDGMENT required to be altered from Section 302 of the I.P. Code to Section 304 Part-I of the I.P. Code and just and appropriate sentence would be sentence of rigorous imprisonment for the period already undergone by him. 17. As regards acquittal appeal, learned A.P.P. has not been able to point out any infirmity in the impugned judgment acquitting the other accused. The learned trial Judge has assigned sufficient and cogent reasons for recording acquittal of other accused. Therefore, the acquittal appeal does not merit acceptance. 18. For the foregoing reasons, Criminal Appeal No. 306 of 2001 is partly allowed and judgment and order of conviction and sentence of appellant Rajubhai Budhasingh passed on 15-2-2001 by learned Additional Sessions Judge, Panchmahals, Camp at Dahod in Sessions Case No. 74 of 2000 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 appellant – Rajubhai Budhasingh @ Bhorubhai is sentenced to undergo the sentence of rigorous imprisonment for the period already undergone by him. Appellant – Rajubhai Budhasingh @ Bhorubhai is ordered to set free forthwith unless he is required in any other case. CR.A/30620/2001 9/9 JUDGMENT 19. Criminal Appeal No. 528 of 2001 fails and stands dismissed and judgment and order of acquittal passed on 15-2-2001 by learned Additional Sessions Judge, Panchmahals, Camp at Dahod in Sessions Case No. 74 of 2000 acquitting other accused is confirmed. 20. In view of the common judgment rendered in Criminal Appeals Nos.306 of 2001 & 528 of 2001, Criminal Misc. Application No. 14567 of 2008 does not survive and stands disposed of accordingly. 21. The muddamal be disposed of as directed by the Trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/