CR.A/44920/2006 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 449 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 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 ? ========================================================= SHRI RATNAJI RAGHUNATHJI THAKORE - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR EE SAIYED for Appellant(s) : 1,MRS MUMTAZ SAIYED for Appellant(s) : 1, MR AJ DESAI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 10/11/2008 ORAL JUDGMENT 1. The instant appeal preferred under Section 374 of CR.A/44920/2006 2/11 JUDGMENT Criminal Procedure Code is directed against the judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No.5, Deesa at Deodar in Sessions Case No.91 of 2005 by which the learned Additional Sessions Judge convicted the appellant for the offence punishable under Section 504 of Indian Penal Code (IPC) for a period of 6 months of R.I. and fine of Rs.250/- in default further R.I. of 10 days and under Section 304 part-I of IPC for a period of 7 years of R.I. and fine of Rs.5,000/- in default further R.I. of 3 months. The learned Judge held that both the sentences shall run concurrently. 2. Being aggrieved by the aforesaid judgment rendered by the learned Additional Sessions Judge, the appellant-convict has preferred the present appeal. The short facts giving rise to the present appeal are stated herein below. 2.1 The incident in question took place on 17.3.2005 at about 8 O'Clock in the evening. The appellant had quarrel with the deceased and abused the deceased and demanded Rs.50/- from the deceased. The appellant during the altercation also got infuriated and gave the blow of the brick, which was lying nearby at the place of incident, on the head of the deceased. The charge against the appellant is framed vide Exh.2 and appellant pleaded not guilty to the charge levelled against him vide Exh.3 for the the offence punishable under Section 504 and 302 of Indian Penal Code. On the strength of the complaint the investigation was set in motion. The CR.A/44920/2006 3/11 JUDGMENT place where the actual incident had taken place had been visited by the Investigating Officer and the panchnama with regard to the place of incident was prepared in the presence of the panch witnesses. Due to the injury sustained by the deceased in the scuffle which took place on 17.3.2005, the deceased succumbed to the injuries and therefore, the dead body was sent to Referral Hospital and Community Health Center, Deodar, Banaskantha for autopsy. The muddamal articles, which were recovered, were sent to FSL for detailed analysis. On completion of the investigation and on receiving the report of the FSL as well as the postmortem report, the appellant was produced before the learned Judicial Magistrate First Class at Deodar, who in turn committed the case to the Sessions Court under Section 209 of Criminal Procedure Code as the offence is triable exclusively by the Sessions Court. 3. The learned Additional Sessions Judge framed the charge vide Exh.2 and as the accused pleaded not guilty to the charge levelled against him, the matter was set down for full-fledge trial before the learned Sessions Judge. The learned Sessions Judge examined following witnesses in order to prove the case of the prosecution. They are as under: (a) PW-1, Rameshji Valji Thakor vide Exh.8 (b) PW-2, Dineshkumar Natvarlal vide Exh.10 (c) PW-3, Jesungji Ramaji vide Exh.11 (d) PW-4, Taraben Hemchandji Somaji Thakor vide Exh.12 (e) PW-5, Haribhai Savdanbhai Thakor vide Exh.13 CR.A/44920/2006 4/11 JUDGMENT (f) PW-6, Hardasbhai Rabhabhai Thakor vide Exh.15 (g) PW-7, Patel Jayrambhai Bhemabhai vide Exh.17 (h) PW-8, Daduji Balvantji Thakor vide Exh.22 (i) PW-9, Mukeshkumar Jayatilal vide Exh.23 (j) PW-10, Dr.Pravinbhai Nathalal Solanki vide Exh.25 (k) PW-11, Samardan Dajibhai Gadhvi vide Exh.31 (l) PW-12, Babubhai Shankarbhai Parmar vide Exh.39 (m) PW-13, Gamjibhai Kanjibhai Barot vide Exh.45. 4. The prosecution has produced the following documentary evidence in order to bring home the guilt against the accused which are as under: a) The complaint given by Shri Rameshji Valji Thakor vide Exh.8. b) The panchnama of the place of the incident vide Exh.16. c) The inquest panchnama vide Exh.14. d) The panchnama with regard to seize of clothes at Exh.18. e) The panchnama of the discovery of brick which was used in the commission of offence vide Exh.24. f) The postmortem report vide Exh.26. g) The certificate with regard to the cause of death vide Exh.27. CR.A/44920/2006 5/11 JUDGMENT h) The yadi which was sent by the accused vide Exh.32. i) The yadi given to FSL vide Exh.33, 34, 35. j) The report of the FSL vide Exh.36. k) The receipt of the dead body which was handed over to the relatives to the victim vide Exh.42 and 43 etc. to the present case. 5. At the conclusion of the trial, the learned Additional Sessions Judge explained the incriminating evidence against the appellant and recorded the statement of the appellant under Section 313 of the Criminal Procedure Code and appellant raised the defence therein that false case was foisted on him and he was falsely implicated in the commission of offence. 6. The learned Additional Sessions Judge after going through the entire gamut of oral deposition and the documentary evidence held that the incident in question took place on 17.3.2005 wherein the appellant was involved in an altercation with the deceased. He gave abuses to the deceased and got infuriated. 7. During the altercation, he threw the brick lying nearby at the place of incident and cause serious injuries to the deceased. The learned Judge further held that considering the oral deposition adduced by PW-2, Dineshkumar Natvarlal vide Exh.10, PW-3, CR.A/44920/2006 6/11 JUDGMENT Jesungji Ramaji vide Exh.11 and PW-4, Taraben Hemchandji Somaji Thakor vide Exh.12 the prosecution has established the entire link connecting the appellant with the commission of crime. The learned Judge held that oral deposition adduced by the prosecution was corroborated by the deposition given by Dr. Pravinbhai Nathabhai Solanki, PW-10 at Exh.25 as well as the postmortem report and the FSL report produced by the prosecution. The prosecution has also placed reliance on the complaint given by Rameshji Valji Thakor vide Exh.9, the panchnama of the place of incident vide Exh.6, the inquest panchnama vide Exh.14, the panchnama with regard to seizure of cloth and discovery panchnama vide Exh.18 and 24 and has thus established further corroboration to the oral deposition adduced by prosecution and thus, the learned Judge held that prosecution has established the necessary corroboration to indicate the involvement of the appellant in the commission of crime. However, considering the oral evidence and the documentary evidence adduced by the prosecution, the learned Judge held that as the appellant had committed the offence of culpable homicide not amounting to murder, the case of the appellant would fall under Section 304 part-I of the Indian Penal Code and he, therefore, convicted the appellant for the said offence over a period of 7 years of R.I. and fine of Rs.5,000/- in default 3 months R.I. 8. The learned advocate for the appellant Shri E.E.Saiyed submitted that the learned Judge has misread the provisions contained in Section 302 as CR.A/44920/2006 7/11 JUDGMENT well as Section 304 part-I of the IPC. The learned advocate submitted that there was no intention of the appellant to cause death of the deceased. It was not premeditated. The incident took place on 17.3.2005 and during the altercation the appellant used abusive language and threw the brick lying at the place of the incident, and as a result of which the deceased sustained serious injuries and he ultimately succumbed to the injuries. The learned advocate fairly submitted that he does not dispute the incident nor involvement of the appellant in the commission of offence but since the offence in question was committed during the heat of the moment and as there was no intention on the part of the appellant of committing the murder of the victim, the sentence imposed by the learned Judge for a period of 7 years of R.I. and fine of Rs.5,000/- and in default R.I. for 3 months is harsh and therefore, the learned advocate submitted that considering the provisions of Section 304 part-II since the act was done by the appellant with the knowledge that it is likely to cause death of the victim but since it was done without any intention to cause death, his case would fall under Section 304 part-II and therefore, the sentence which the appellant has already undergone be imposed on him. The learned advocate submitted that appellant has already undergone 3 years and 7 months of R.I. out of 7 years of R.I. and therefore, it would be just and proper in the facts and circumstances of the case, if the sentence which is already undergone by the appellant is imposed on him under Section 304 part-II of the IPC. CR.A/44920/2006 8/11 JUDGMENT 9. The learned APP representing the State submitted that considering the deposition adduced by three eye witnesses, namely, PW-2, Dineshkumar Natvarlal vide Exh.10, PW-3, Jesungji Ramaji vide Exh.11, and PW-4, Taraben Hemchandraji Somaji Thakor vide Exh.12, it becomes clear that the appellant was involved in the commission of offence. The deposition adduced by these witnesses gets further corroboration by the deposition of Dr.Pravinbhai Nathalal Solanki PW-10, Exh.25. As the prosecution has established inextricable involvement of the appellant in the offence punishable under Section 304 part-I and Section 504 of Indian Penal Code, the learned Judge has rightly convicted the appellant for the said offence and no interference is called for in an appeal preferred by the appellant. The learned APP submitted that complaint given by Rameshji Valji Thakor at Exh.9, the panchnama of the place of incident Exh.10, the inquest panchnama vide Exh.14 and the panchnama of the recovery of clothes at Exh.18 and discovery of brick vide Exh.24 and the postmortem report vide Exh.26 and FSL report vide Exh.36 further provides necessary corroboration to the prosecution story. Thus, the learned APP submitted that prosecution has established the entire link connecting the appellant with the commission of offence in the most cogent, convincing and conclusive manner and therefore, the judgment rendered by the learned Sessions Judge convicting the appellant for the offence punishable under Section 504 of Indian Penal Code (IPC) for a period CR.A/44920/2006 9/11 JUDGMENT of 6 months of R.I. and fine of Rs.250/- in default further R.I. of 10 days and under Section 304 part-I of IPC for a period of 7 years of R.I. of 3 months requires to be upheld and the appeal be dismissed. 10.I have heard learned advocate Shri E.E. Saiyed for the appellant and learned APP, Shri A.J.Desai, for the respondent-State at length and in great detail. This Court has also undertaken a completed and comprehensive appreciation of all the vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 11.The prosecution has no-doubt established the involvement of the appellant in the commission of offence and the oral deposition adduced by PW-2, Dineshkumar Natvarlal, Exh.10, PW-3, Jesungji Ramaji Exh.11, PW-4, Taraben Hemchandraji Somaji Thakor Exh.12 gets necessary corroboration from the oral deposition adduced by Dr.Pravinbhai Nathalal Solanki, PW-10, at Exh.25. The deposition adduced by the panch witnesses as well as Investigating Officer is carefully perused by me. They have also provided necessary corroboration to the prosecution case. The prosecution has placed further reliance on the complaint given by Rameshji Valji Thakor at Exh.9, the panchnama of the place of incident vide Exh.6 panchnama of the recovery of the clothes vide Exh.18 panchnama of the recovery of the brick which was used in the commission of offence vide Exh.24, inquest panchnama vide Exh.14, FSL report vide CR.A/44920/2006 10/11 JUDGMENT Exh.36 and the postmortem report vide Exh.26 in corroboration of oral deposition adduced in the present case. Thus, considering the entire gamut and oral deposition and the documentary evidence the learned advocate for the appellant fairly submitted that he does not dispute the incident in question nor the involvement of the appellant in the commission of offence. Taking into account the provisions contained in Section 304 part-II, it is true that appellant was involved in the commission of offence and he gave blow on the vital part of the head of the deceased through the brick. However, considering the fact that the act done by the appellant is to cause bodily injury which is likely to cause death, the case of the appellant, in my considered view, would fall under Section 304 part- II of the IPC and therefore, the sentence which is imposed by the learned Judge while passing the order dated 13.2.2006 in Sessions Case No.91 of 2005 can be reduced from 7 years R.I. and fine of Rs.5,000/- in default further R.I. of 3 months to one of 5 years of R.I. and fine of Rs.5,000/- and in default further R.I. of 3 months under Section 304 part-II of IPC. The sentence imposed by the learned Judge for 6 months R.I. and fine of Rs.250/- in default 10 days R.I. would, in my considered view, requires to be maintained. 12.In view of the aforesaid facts and circumstances of the case, this appeal is partly allowed. Hence, the following order is passed: 13.The sentence imposed on the appellant for the CR.A/44920/2006 11/11 JUDGMENT offence punishable under Section 504 of Indian Penal Code for a period of 6 months of R.I. and fine of Rs.250/- in default 10 days of R.I. is upheld. 14.The sentence imposed on the appellant under Section 304 part-I for 7 years of R.I. and fine of Rs.5,000/- and in default further R.I. of 3 months is modified and appellant shall undergo the sentence of 5 years of R.I. and fine of Rs.5,000/- and in default further R.I. of 3 months under Section 304 part-II. The sentences shall run concurrently. The appellant would, however, be entitled to set off as per the rules. 15.Muddamal to be destroyed in terms of the order passed by the learned Additional Sessions Judge, 5th Fast Track Court, Deesa at Deodar. 16.The appeal stands disposed of accordingly. (H.B.ANTANI, J.) ashish//