(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This appeal arises out of the judgment and order rendered by Sessions Court, Banaskantha, in Sessions Case No.87 of 2005 on January, 07 2006, whereby the appellant came to be convicted under Section 235(2) of the Criminal Procedure Code, 1973 for an offence punishable under section 302 of IPC and sentenced to imprisonment for life with a fine of Rs.500/-, in default of payment, to undergo further for a period of
3 months. He also came to be convicted for an offence punishable under section 135 of the Bombay Police Act, but no separate sentence was awarded. However, gave benefit of set off.
2. The prosecution case, in brief, is that on 5.3.2005 at about 12 noon, the appellant and Panriben were going to the field of Nathubhai and three other persons were chasing them. Nathubhai inquired of them as to whether they would like to work in the field on crop share basis or not, to which they denied. Therefore, Nathubhai told him to surrender to police and in that transaction, there was a fight in which Nathubhai was injured and succumbed to the injuries. FIR was given by Narsangbhai Bhemjibhai Patel, on basis of which, offence was registered with Chhapi Police Station and after investigation, charge-sheet was filed in the Court of learned Judicial Magistrate First Class, Banaskantha at Palanpur and committed to the Court of Sessions and Sessions Case No. 87 of 2005 came to be registered. Charge was framed against the accused at exh.4 for offence punishable under Section 302 of IPC and Section 135 of the Bombay Police Act, to which he pleaded not guilty and came to be tried. At the end of the trial, the Trial Court found that the prosecution was successful in proving charges against the accused and, therefore, convicted him by judgment and order impugned and awarded sentence as stated hereinabove. Hence, this appeal by the convict.
3. Heard learned advocate Mr. Chhara for the appellant and learned APP, Mr. Soni, for the respondent-State.
4. Learned advocate Mr. Chhara submitted that he does not dispute the involvement of the appellant in the incident, but according to him, the act of the appellant would not fall within the purview of Section 302 of IPC, but would attract section 304 II of IPC. He submitted that the case of the appellant, if viewed from the evidence led by the prosecution before the Trial Court, it would be clear that the appellant and Panriben were strangers to the place and they were not known to Nathubhai and, therefore, they had no motive or cause to have any intention to cause his death. Mr. Chhara submitted further that it also transpires from the evidence that actually Panriben and even the appellant were attacked by the other side and that resulted into provocation to the appellant and the incident occurred out of loss of self control. Mr. Chhara submitted further that if the evidence is seen, it also transpires that Panriben was sexually assaulted. She was in company of the appellant and the appellant acted in a manner which a normal prudent man would do to protect the dignity and/or life of Panriben. As such, he cannot be said have exceeded the right of private defence but even if it is so, it would, at the best, attract provisions of Section 304 II of IPC. The judgment impugned may, therefore, be suitably altered. Mr. Chhara submitted that the appellant has been in jail since 5.3.2005, i.e. almost for a period of 7 years and 6 months, and, therefore, has suffered sufficient punishment and the same may be awarded.
5. Learned APP, Mr. Soni, has opposed this appeal.
According to him, the evidence does not support the case of the appellant. He has assaulted Nathubhai with a grip, which is normally worn on the finger around the palm without any reason and, therefore, it is he who has started or initiated the dispute. He would not get the benefit as it is claimed by the learned advocate. The appeal may, therefore, be dismissed.
6. We have gone through the records and proceedings of the case and have examined the same in context of rival submissions.
7. Since the involvement of the appellant in incident is not in dispute, what is required to be examined is, how the incident occurred, what was the genesis and what was the sequence of the incident and whether the benefit as claimed by the appellant would be available to the appellant or not.
8. The prosecution has examined Jesangbhai Nathubhai Patel at exh.11 as eye-witness. He says that when he, his father deceased Nathubhai, his mother Gabliben, his brothers Virji and Mansang and his sister were in the field picking up the crop, at that time accused and Panriben, appearing to be love birds were passing through the field and at that time Nathubhai inquired of them whether they would like to work on crop share basis, to which they said no. In response thereto, Nathubhai indicated that if they would flee away, they will have to be handed over to the police. The witness says that the boy, i.e. accused, felt that Nathubhai will catch them and, therefore, he inflicted a fist blow on the girl because of which she started bleeding and when his father Nathubhai went to catch him, he inflicted a knife blow on his chest. Thereafter, they brought Nathubhai to Nandotra in a tractor and from there they went to Hospital of Dr. Paresh Patel and then was taken to Mehsana Hospital where he was declared dead. The witness has been cross-examined and he admits that when Nathubhai asked the boy and the girl to surrender to the police, the boy was annoyed. He also admits that he is not sure, whether that young man came there with an intention to cause death of his father, but he certainly says, by admitting, that when the appellant was told that he would be made to surrender before the police, he was annoyed.
9. Witness Panriben is examined at Exh.24 and she states in her examination-in-chief that the man, who talked to them, started dragging her and tried to outrage her modesty. She therefore, raised cries. She also states that thereafter, the Patels attacked accused- appellant Ashokbhai and in that transaction who suffered, what type of injury and how, is not known to her.
10. With the above evidences on record, it is clear that the appellant and Panriben were strangers to the area. Promptly they eloped together and were passing through the field of Nathubhai where they were asked to work on crop share basis, to which they denied. The denial was apprehended by Nathubhai and, therefore, he said that “since you have eloped, we will make you surrender to police” and in that transaction, there was a scuffle and an attempt was made to outrage modesty of Panriben. This aggravated the situation and the appellant gave a knife blow upon Nathubhai, the deceased. He has given only one blow with a small domestic knife which tribals normally carry with them. It is, therefore, difficult for us to read an intention on the part of the appellant to cause death of Nathubhai. Innocent love birds were sought to be engaged as labourers on crop share basis and upon denial they were sought to be handed over to the police. As if, that was not enough, an assault was committed on the lady Panriben and she describes it as an attempt to outrage her modesty. The appellant has acted in a natural manner where any person would be annoyed and try to protect his female companion. The accused was assaulted upon, is a fact, which he has taken as a plea in his defence and is reasonably established by a medical evidence led by the prosecution itself. It is admitted by eye-witness that the appellant was annoyed because the deceased insisted upon him to surrender to police when the appellant said no to work with the deceased. Therefore, the deceased offered provocation to the appellant, then Panriben was assaulted upon so also the appellant and this prompted the appellant to resist and exert force against the deceased which he could have done in exercise of right of private defence. The appellant, by no stretch of imagination, can be said to have intentionally caused death of the deceased. His case would not attract a punishment under Section 302 of IPC and considering the evidence, he can be held responsible for a culpable homicide not amounting to murder punishable under Section 304 of IPC.
11. Addressing the question, whether it would be Part-I or Part-II of Section 304 of IPC, we may observe that intention confronted in Part-I of Section 304 is difficult to conceive, as stated by us in earlier part of this judgment. At the best, he can be attributed to knowledge and, therefore, the conviction of the appellant can be recorded for offence of culpable homicide not amounting to murder punishable under Section 304 II of IPC. The appeal, therefore, merits part allowance.
12. The appeal is partly allowed. Conviction of the appellant imposed by the learned Additional Sessions Judge, Banaskantha at Palanpur passed in Sessions Case No.87 of 2005 dated 07.10.2006, is altered from one punishable under Section 302 of IPC to one punishable under Section 304 II of IPC and he is punished with imprisonment for a period of sentence already undergone by him with no change in fine.
(A.L.DAVE,J.) (PARESH UPADHYAY, J.) piyush