CR.A/70920/2002 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 709 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 ? ========================================= = DHARMENDRA @ DHAMO SURESHKUMARPADHIYAR Versus STATE OF GUJARAT ========================================= = Appearance : MR LAXMANSINH M ZALA for Appellant MS MITA PANCHAL, ADDL. PUBLIC PROSECUTOR for Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 11/12/2008 ORAL JUDGMENT CR.A/70920/2002 2/6 JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by the learned Sessions Judge, Surendranagar on 29.6.2002 in Sessions Case No.12 of 2001 convicting him for the offence punishable under section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs.5000/- in default thereof to undergo rigorous imprisonment for six months. 2. According to the prosecution case, earlier the accused had a love affair with one Rimpal. On 29.10.2000 at about 7:30 p.m., deceased Chintan was going on Luna Moped on a pillion seat with Rimpal. When they reached near Cooperative Jean Gate on the road going to Alankar Talkies, the accused came on cycle from their behind, stopped the Luna and caught hold of Chintan and had a scuffle with him. The accused gave knife blow to Chintan and on account of the injury, Chintan died. 3. On the basis of the first information report lodged by Niranjanbhai Ravishankar Joshi, - father of the deceased, offence was registered and investigation was started. At the end of investigation, charge sheet came to be filed against the accused for the offence punishable under sections 302 and 201 of the Indian Penal Code and section 135 of the Bombay Police Act. As the offence was triable by Sessions Court, the case was committed to the Sessions Court and it was registered as Sessions Case No.12 of 2001. The learned Additional Sessions Judge framed charge Exh-10 for the aforesaid offence against CR.A/70920/2002 3/6 JUDGMENT the accused. The accused denied having committed the offence and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973, denied having committed the offence and also filed written statement stating that after breaking his love affair with Rimpal, there were quarrels between him and the Rimpal; Rimpal had a fear that as she was a daughter of Harijan father and her lover Chintan was a Brahmin, the accused would inform the parents of Chintan and thereby, would create hurdles in their marriage. Therefore, with a view to take revenge, Rimpal and her mother Alkaben have fabricated false complaint and he is innocent. 4. After hearing the learned Additional Public Prosecutor and learned advocate for the accused, the Court convicted the accused for the offence punishable under section 302 of the Indian Penal Code and sentenced him as mentioned herienebefore. Being aggrieved by the said decision, the accused has preferred this appeal. 5. We have heard learned advocate Mr. Laxmansinh M. Zala for the appellant and learned APP Ms. Mita Panchal at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court. 6. The learned advocate for the appellant has submitted that the evidence indicates that there was a scuffle and on account of that, the accused caused the injury. There was no CR.A/70920/2002 4/6 JUDGMENT previous enmity and the accused has not taken any undue advantage and therefore, the accused could not to have been convicted for the offence of murder and therefore, the conviction is required to be altered from section 302 to section 304 (Part I) of the IPC. 7. Learned APP has submitted that there is clinching evidence indicating that the accused attacked the deceased with pre-determined and therefore, no interference is warranted in the impugned judgment. 8. In view of the fact that the appellant has not challenged the conviction, only question requires to be ascertained is whether the case would fall under section 304 (Part I) of the IPC and not under section 302 of the IPC. It appears from the prosecution case that there was a love affair between accused and Rimpal. Thereafter, for some reasons, the love affair ended in disruption of relation and Rimpal started moving with deceased Chintan and this enraged the accused and the untoward incident occurred. 9. FIR Exh-27 filed by the father of the deceased indicates that it was filed on the basis of information given to the informant by Rimpal, who was with the deceased at the time of incident. Therefore, the evidence of Rimpal is required to be scrutinized. 10. The evidence of PW 8 Rimpal Khodidas Solanki Exh-29 indicates that earlier she had a love affair with the accused but his mother had stopped her. Thereafter, there was a talk of her marriage with deceased Chintan. The accused did not like CR.A/70920/2002 5/6 JUDGMENT this and hence, on the day of incident at about 7:30 p.m., when she and Chintan were going on a Luna Moped, the accused stopped the vehicle, caught hold of the deceased, therefore there was exchange of abuses. The evidence also indicates that there was scuffle between the deceased and the accused. It also indicates that the deceased asked the witness to go and therefore, she left but after going few steps, she returned and saw the accused assaulting the deceased with knife. It appears that on account of exchange of abuses and scuffle, the accused got enraged and assaulted the deceased. The medical evidence of postmortem report Exh-33 indicates that one stab wound was inflicted on the left part of the chest. There is nothing to indicate that the accused had any information that the deceased was to come at the place of incident. It was only a matter of chance that the accused and the deceased met at the place of incident and the incident ensued. Therefore, the murder was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, and looking to the injury it cannot be said that the accused had taken undue advantage or acted in a cruel or usual manner. Therefore, the case would not fall under clause thirdly of section 300 of the IPC, but would fall under Exception (4) to section 300 of the IPC. Therefore, the learned trial Judge committed error in convicting the accused for the offence of murder and therefore, the conviction is required to be altered from section 302 to section 304 (Part I) of IPC. 11. As regards the sentence, it is submitted that the accused has undergone almost 8 years of imprisonment and therefore, the imprisonment already undergone would be appropriate punishment. CR.A/70920/2002 6/6 JUDGMENT 12. As observed earlier, the evidence indicates that PW 8 Rimpal had earlier developed relation with the accused but that relation had to be snapped Thereafter, she developed relation with the deceased. The evidence clearly indicates that the incident occurred on account of broken love affair. There is no criminal antecedent of the accused. Therefore, the manner in which the incident has occurred, we are of the view that the imprisonment already undergone by the accused would be just and adequate punishment for the offence committed by the accused. 13. In the result, the appeal is partly allowed. The judgment and order of conviction of the present appellant passed by the learned Sessions Judge, Surendranagar on 29.6.2002 in Sessions Case No.12 of 2001 for the offence punishable under section 302 of the I.P. Code is altered to section 304 (Part I) of the Indian Penal Code and the substantive sentence is reduced to the period already undergone. The accused is ordered to be released forthwith, if not required in any other case. (BHAGWATI PRASAD, J.) shekhar/- (BANKIM N. MEHTA, J.)