CR.A/132/1988 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 132 of 1988 With CRIMINAL APPEAL No. 447 of 1988 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 ? ================================================= PARSHOTTAM RAMA - Appellant Versus STATE OF GUJARAT & 1 - Opponents ================================================= Appearance : In CR.A: 132 of 1998 MR AD SHAH for Appellant : MR. MAULIK NANAVATI, LD. APP for Opponent : 1, NOTICE SERVED for Opponent : 2, Appearance: In CR.A. 447 of 1998 MR MAULIK NANAVATI, LD. APP for Appellant NOTICE SERVED for Opponent No. 2 & 4 MR AD SHAH for Opponent No.3 NOTICE SERVED for Opponent No.1 by bailable warrant. ================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 29/07/2008 CR.A/132/1988 2/6 JUDGMENT ORAL JUDGMENT: (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. Both the appeals arise out of the judgment & order dated 8th March 1988 passed by learned Addl. City Sessions Judge,Ahmedabad in Sessions Case No. 5 of 1987 by which the original accused No.3 Parshottam Rame came to be sentenced for the offence punishable under section 304 Part- 1 of I.P. Code, who preferred Criminal Appeal No. 132 of 1988. Feeling aggrived by the said judgment the State had preferred Criminal Appeal No. 447 of 1988 against all the original accused persons. However at the time of admission of the appeal, learned APP had not pressed the State appeal againt the original accused No.5 Lallu Lala Chavda Vaghri. 2. Brief case of the prosecution is that complainant Babubhai, deceased Vinodbhai and Devjibhai were the three brothers. They were residing in a hut of the chawl known as “Parvatibai Chawl”, situated near Adwait Ashram and opposite to Shankar Bhuvan of Shahpur. Devjibhai and Vinodbhai have got their shop near Adwait Ashram. The original accused no.1 to 4 are brothers, while accused no.5 Lallubhai is their uncle. The case of the prosection is that accused no.1, Amrut Rama and accused no.3 Parshottam Rama are the pick- pockerts and police used to arrest both of them quite often, who suspected that the complainant and his brothers were working as informants of the police. That on 21/10/1986 at about 8.30 p.m. Complainant Babubhai, his deceased brother Vinodbhai and their neighbours Sureshbhai Alabhai and Natvarbhai Jivabhai had gone to the Pan-Bidi cabin known as “Gandhi Bridge Pan House” for eating pan and after ordering pan they were talking casually. At that time accused no.3 CR.A/132/1988 3/6 JUDGMENT Parshottam came there along with his three brothers i.e. accused nos 1,2 and 4. According to the prosecution case accused no.3 Parshottam inflictd a gupti blow on the left side chest of Vinodbhai. Rest of the accused caught hold of deceased Vinodbhai and again accused no.3 inflicted two to three more gupti blows to Vinodbhai. Complainant and his companions raised shouts and hence accused no. 1 to 4 ran away. Thereafter injured Vinodbhai was shifted to V.S. Hospital, and on examination he was found dead. The case was registered and subsequently the accused were arrested. It is the case of the prosection that accused no.5 Lallubhai, who is uncle of the accused gave shelter to all the accused knowing full well that they had committed murder of Vinodbhai. On completion of the investigation police filed charge sheet before the learned Metropolitan Magistrate for the offences punishable under sections 302, 201, 212 and 34 of I.P. Code and also for offence punishable under section 135 (1) of Bombay Police Act. Thereafter the case was committed to the Court of Sessions where it was numbered as Sessions Case No. 5 of 1987. After completion of the trial, Learned Addl. Sessions Judge, Ahmedad, vide judgment & order dated 8th March 1988 acquitted accused no.1,2,4 and 5 on the ground of prossecution's failure to prove case agaisnt them, however convicted accused no.3 Parshottam Rama for offence under Section 304 Part-I of I.P. Code. 3. Being aggrieved and feeling dissatisfied by the judgment of acquittal of accused no. 1,2, 4 and 5 appellant State has preferred Criminal Appeal No. 447 of 1988; while the accused no.3 who was convicted for offence under section 304-Part-1 by the judgment of learned Addl. Sessions Judge, preferred Criminal Appeal No. 132 of 1988. At the time of admission of appeals, State has not pressed appeal against accused no.5 CR.A/132/1988 4/6 JUDGMENT and hence Criminal Appeal No. 447 of 1998 now remains to be decided only against accused no. 1,2 and 4 respectively. 4. Learned counsel for the appellant in Criminal Appeal No. 132 of 1998 has assailed the judgment of conviction of accused no.3 on the grounds that it is difficult to place reliance upon the testimony of the complainant's side that accused no.3 inflicted know (gupti) blow on the chest of the deceased Vinodbhai. 4.1 That the learned Judge, while examing the prosecution case as to the motive for acused no.1 to 4 to commmit murder, clearly recorded a finding that the evidence regarding motive agaist the accused no.1 to 4 is quite weak. 4.2 Learned Judge also found in respect to the so called discovery of kife that the said evidence was not sufficient to connect the accused no.3 with the crime. 4.3 That, Learned Judge seriously erred in recording the finding of guilt of accused no.3, more particularly when it was observed that “ from the detailed discussions of the prosecution eivdence it must be said without any hesitation that the prosecution has not been able to prove beyond any reasonable doubt that the accused no.3 is guilt of the offence of murder.“ However learned Judge, while considering the defence of the accused no.3 that he had inflicted one knife blow to deceased in exercise of right of private defence during the statement recorded under section 313 I.P. Code, proceeded to examine the justification of causing such injury by giving knife blow. 4.4 Shri Shah, learned counsel has further argued that the learned trial Judge while considering statement of accused no.3 CR.A/132/1988 5/6 JUDGMENT recorded under section 313, proceeded to observe that the accused no.3 had no such apprehension at the stage when he inflicted vital blow on the chest of the deceased Vinodbhai. 4.5 Learned trial Judge seriously erred in not accepting the opinon of Dr. Parikh who had performed the post mortem and came to the conclusion that the injuries sustained by the deceased were all possible during the course of struggle to snatch away the knife. The medical evidence completely substantiate the case of defence and the statement of accused no.3 about the circumstances in which he caused injury on the deceased. 4.6 Shri Shah therefore submitted that the judgment of conviction passed against accused no.3 may be quashed & set aside. 5. Learned APP Shri. Nanavati has urged that the trial Court has accepted the story of the prosecution that the accused no.3 was the author of the injury inflicted. In that light when there was only one knife injury it can not be said that the deceased was not the aggressor. In that background right of private defence could not be given to the accused. In any case the appeal of the accused where in he has challenged his conviction under section 304 Part-I is not liable to sustain because it is clearly established that the accused was the author of the injury. 6. Learned counsel for the accused supported the findings of the trial Court and urged that benefit of right of private defence has rightly been given on the point of sentence. In his appeal he stressed that about 1 ½ years of confinement has been suffered by the accused. At such a distance of time, he may not be sent again to jail since the injuries are found to be in the right of private defence. CR.A/132/1988 6/6 JUDGMENT 7. We have heard the learned counsels and have given our thoughtful consideration to the facts obtaining on record. 8. The case as stated clearly show that it was not a case of pre- meditation. When two parties enter into a quarrel and one has the worse of it, it follow that neither of the party can be given advantage of the situation. 9. The evidence led by the prosecution has been held to be untrustworthy. Both the parties entered into a fight on Panshop a common meeting ground – not a fighting ground. The parties were not going to a point of no return. In fact it was a situation where temper rose on the spur of the moment. 10. The findings of the trial Court are thus not required to be disturbed, however with some modification in sentence in respect of accused no.3. The substantive sentence awarded to the accused No.3 - Parshottam Rama ( Appellant in Criminal Appeal No. 132 of 1988 ) under Section 304 Part-I is reduced to the period already undergone. Except the above modification, rest of the judgment is maintained. The appeal of the State being Criminal Appeal No. 447 of 1988 is dismissed in entirely. The appeal of the accused being Criminal Appeal No. 132 of 1988 is allowed in part to the extent of sentence as indicated above. Bail Bonds are cancelled. Registry is directed to send record & proceedings to the trial Court forthwith. [ BHAGWATI PRASAD, J ] [ S.R. BRAHMBHATT, J ] /vgn