Chiniyabhai Rataniyabhai Rathava vs State Of Gujarat

(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. By way of this appeal, the original accused has challenged the judgment and order dated 22.6.2006 passed by learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.1, Chhota Udepur of District Vadodara in Sessions Case No.24 of 2005 by which he has been convicted for the offence under Section 302 of Indian Penal Code and has been sentenced for R.I. for life and fine of Rs.100/­, and in default, R.I. for one month.

2. The brief facts of the prosecution case are as under:­

2.1 That one Viliya Rataniyabhai Rathava, resident of Village Raicha of Taluka Kwant, District Vadodara lodged a complaint on 8.9.2004 alleging against the present appellant­accused, who is his real brother, that the appellant­accused, who was residing at another Village Palasada, was living along with his wife with his in­laws (popularly known in India as “Gharjamai”) at their home since number of years. A resident of Palasada, visited the complainant on 7.9.2004 in the morning and informed that his brother Chiliya (present appellant) is making uproar at his residence and, therefore, the complainant along with his other brothers, went to Village Palasada and returned to their Village Raicha along with appellant – accused. On the same day i.e. on 7.9.2004 when the complainant along with appellant­accused were doing their agriculture activities of pilling the maize at about 11:00 o'clock in the night, their mother Balgiben asked the appellant­accused that why he was making uproar at his in­laws house where he is residing, and why he is not changing for the better purpose. Pursuant to which the appellant­accused got excited and took away a piece of wood which was kept for cross­wire to support the bullock­cart and gave a blow on the head of his mother. Pursuant to which, Balgiben fell down and there was blood oozing out from her head profousingly. She was taken to the hospital where she was declared dead by the doctor. The complaint was lodged by him on the next day i.e. 8.9.2004 which was investigated by Police Sub Inspector, Kawant Police Station of Vadodara District. After having found sufficient material against the accused, a chargesheet was filed in the Court of learned JMFC at Chhota­Udepur, who in turn committed the case in the Court of learned Sessions Judge at Chhota­Udepur, Vadodara District.

2.2 The charge Exh.3 which was framed by the learned Additional Sessions Judge, Chhota­Udepur, was denied by the appellant­accused and claimed to be tried.

2.3 The prosecution was successful in establishing the charge under Section 302 of IPC against the appellant­ accused, however, failed in establishing the charge under Section 504 of IPC and under Section 135 of Bombay Police Act. The learned Additional Sessions Judge by judgment dated 22.6.2006, convicted the appellant­accused and sentenced for life as stated hereinabove.

3. Learned advocate Mr.Mrudul Barot appearing for the appellant has submitted that he does not challenge the involvement of the appellant­accused in the said incident where the appellant has lost his mother due to the said incident. However, he has submitted that, if the facts and circumstances of the case are looked into, the case would not be covered under Section 300 of IPC which can be treated as a murder, but the appellant can be convicted for lesser offence which would fall under 2nd part of Section 304 of IPC. In support of his submission, he has taken us through the depositions of witnesses as well as the documentary evidence. He submits that his case would fall under 1st Exception to Section 300 of IPC. He submits that since the appellant – accused was residing at his in­laws house as a Gharjamai, and was commented by the deceased with regard to the same, he got provoked and lost his power of self­control and gave a blow with wooden log which was lying besides him. He further submitted that at the most it can be said that the appellant had knowledge for his act of giving a blow with wooden log, may cause death, but, there was no intention on his part to kill his aged mother and, therefore, second part of Section 304 would be applicable in the present case.

4. On the other hand, learned APP Mr.Neeraj Soni appearing for the respondent­State has supported the reasons assigned by the trial court for convicting the appellant­accused under Section 302 of IPC, and submitted that the ingredients of 1st Exception would not be applicable in the present case. He submitted that, looking to the injuries sustained by the deceased, who was aged about 90 years, the appellant used the weapon with full force and gave a blow on the head which is a vital part of the body. In view of this, the appellant­accused cannot be convicted for lesser offence as prayed by learned advocate for the appellant­accused.

5. We have heard learned advocates appearing for the parties and have gone through the Record & Proceedings of the case. The prosecution examined as many as 10 witnesses and proved several documentary evidence. Viliya Rataniyabhai Rathava, who is the complainant, has been examined as prosecution witness No.1 at Exh.19. He has supported the prosecution case by adhering to his complaint (Exh.20) which was lodged with the Kwant Police Station on 8.9.2004. It appears from that the appellant­accused was residing with his in­laws at other Village Palasada and he was brought at the residence of Viliya Rataniyabhai Rathava at Village Raicha since the appellant was making uproar at his in­laws house. It has also come in the cross­ examination of this witness that the appellant­accused was residing with his in­laws since number of years. He has admitted in cross­examination that there was some altercation between the appellant and the deceased about his behaviour at his in­laws house for which the appellant­ accused got provoked. He has also admitted that the appellant­accused has not stated that he will kill his mother. He has also admitted that the appellant has not asked any land which belongs to his forefather. He has submitted that, though, the appellant was offered the land which belongs to their forefather, the same was refused by the appellant. Therefore there was no dispute about the property between appellant­accused, his brothers or with the mother.

A judicial note can be taken that, in India if a person lives with his in­laws as Gharjamai, he is not looked upon with respect in the society. If a person lives as Gharjamai under compelling circumstances, his mental condition may be different than a normal person having his own family. Here we have to decide whether the provocation was grave and sudden to loose the power of self­control in a peculiar facts and circumstances. If a person aged about 44 years at the time of incident, residing with his in­laws as Gharjamai, and if a person advises him or makes comment with regard to the same, in all probability, his paining nerve is touched resulting in loss of power of self­control. In the present case, the deceased was a mother with whom the appellant­ accused was not residing since number of years and had waived his right of share from the property of his forefather, He otherwise had not severed relationship with family and was a man with reasons. Some how, he reacted strongly to the comment which is unusual. He cannot be said to have intention to kill his mother. His conduct of picking up a wooden log lying near the place of incident, where all the family members were doing their agriculture activities, and giving one blow, cannot constitute an intentional act of causing death of his mother. In the peculiar facts and circumstances of the case, the comment by mother on the conduct of accused was an act causing grave and sudden provocation to the accused whereby the appellant had lost power of self­control and, therefore, in our view, the case would be covered under Exception 1 to Section 300 of IPC.

Now, considering the case under Section 304 of IPC, as stated hereinabove, we are of the opinion that the case would fall under 2nd part of Section 304 of IPC, since we have held that the appellant­accused had no intention to cause death of his own mother.

6. In the result, the appeal stands allowed. The conviction and sentence recorded by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.1, Chhota­Udepur, Vadodara in Sessions Case No.24 of 2005 for the offences under Section 302 of Indian Penal Code is hereby converted into IInd part of Section 304 of Indian Penal Code, and the appellant­accused is sentenced to undergo R.I. for a period of eight years with no change in fine.

(A L DAVE, J.) (A J DESAI, J.) syed/