Chotubhai Bhangiyabhai Gamit vs State Of Gujarat

(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. By way of present appeal, original accused – appellant Chotubhai Bhangiyabhai Gamit has challenged the judgment and order datd 23.12.2005 passed by learned Additional Sessions Judge and Presiding Officer, 7th Fast Track Court, Vyara in Sessions Case No.32 of 2005 by which he has been convicted for the offence under Section 302 of Indian Penal Code and has been sentenced for life imprisonment, and fine of Rs.10,000/­, and in default R.I. for one year.

In this unfortunate incident the complainant is son of appellant – accused as well as victim Lilaben who has been killed by her husband – appellant.

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

2.1 That Anilbhai, son of Chotubhai Bhangiyabhai Gamit, aged about 15 years, studying in standard 10th in a school, lodged a complaint on 23.3.2005 with PSI of Valod Police Station of District Surat, and alleged that he along with his family members i.e. parents and with is elder brother were residing in a house at Village Valod. His elder brother Haribhai had gone to the field at about 7:00 o'clock in the evening. His brother was at the field and he was in the house, along with his father and mother. His mother had prepared dinner and he was taking the same at about 9:00 o'clock in the night. At that time, his father was talking with his mother and telling her that the house which is situated in Indira Awas, where they are living is in the name of his father and other house was in the name of Lilaben i.e. wife of appellant­accused. He was telling her that both the houses belonged to him. For that purpose, there was altercation between them. The altercation had taken place outside the room, and when he came out of the room, he saw his father had taken a wooden strip and gave three to four slap on the face of his mother. Pursuant to which she fell down in injured condition and the blood was oozing out from her body. It was alleged by him that, after giving blows by wooden strip on chest as well as on the neck, his father appellant­accused throw the wooden strip near the house and ran away from the place of the incident. Pursuant to the complaint lodged, the police officer started investigation, and after having found sufficient material against the accused, filed chargesheet in the Court of learned JMFC at Valod, who in turn, committed the case to the Court of learned Additional Sessions Judge at Vyara.

2.2 The learned Additional Sessions Judge framed a charge against the accused at Exh.4. On denial of the charges, the trial proceeded against the appellant­accused.

2.3 The prosecution was successful in getting the charge proved against the accused, and by judgment and order dated 23.12.2005 the learned Sessions Judge convicted and sentenced the accused as stated hereinabove.

3. Learned advocate Ms.Archana Amin appearing for the appellant has submitted that she does not want to challenge the involvement of the appellant­accused. However, she has prayed that looking to the facts and circumstances of the case, the appellant­accused shall be convicted for lesser offence and be sentenced accordingly. She has submitted that the case would fall within the purview of Exception 4 to Section 300 of IPC which is a culpable homicide not amounting to murder. She has submitted that the accused was discussing about their own houses with his wife, and after some quarrel and altercation, the accused lost his control in a heat of passion. There was no premeditation since the article used in the incident is a wooden strip which was lying near the place of incident when he took up and gave blows to the deceased. She has submitted that the case of the appellant would fall under the second part of Section 304 of IPC, since there was no intention on the part of the appellant­accused to cause such injury which would result into a death of a person.

4. On the other hand, learned APP Mr.Neeraj Soni has supported the reasons assigned by the trial court. He has submitted that the deceased received 11 injuries and the deceased sustained hair line fracture over left temporal region and, therefore, it cannot be said that there was no intention on the part of the appellant­accused to commit the offence. He has submitted that Exception 4 to Section 300 of IPC would not be applicable in the present case.

5. We have heard learned advocates appearing for the parties and have examined the Record & Proceedings as well as the depositions of 9 witnesses and perused the documentary evidence. Anilbhai Chotubhai, P.W.1 Exh.7 is the unfortunate son of appellant­accused, and the victim in the present case, who is aged about 15­16 years old and studying in standard 9th in the school when he deposed before the Court. It appears that his elder brother Haribhai was not present in the house and normal activities were going on in the house. His deceased mother had prepared dinner for her family, and in conversation about the ownership of house which belongs to either to the appellant or the victim was going on. He has stated that there was altercation between them. Suddenly the altercation was converted into a fight between them in which the appellant­ accused took a wooden strip in his hand and gave several blows to the deceased. Except this witness Anilbhai, there is no eye­witness to the incident. The other witnesses namely Naginbhai, P.W.2 Exh.9, who is brother of deceased, and Haribhai Chotubhai, P.W.4 Exh.14, another son of the appellant­accused aged about 20 years, are not the eye­ witnesses and have reached at the place of incidence after the occurrence of the scuffle which took place between husband and wife. It appears from the deposition of Naginbahi, the brother of the deceased that there was a love marriage between the appellant­accused and the victim, and it also appears that there were two houses which are adjacent to each other. Out of these two houses, one was constructed by the appellant­accused and the another house was granted by the Government under the scheme known as Indira Awas Yojna. It also appears that the elder son Haribhai is aged about 20 years and, therefore, it can be said that the appellant­accused and the deceased were residing together since more than 20 years.

Now, considering the facts and circumstances in which the incident took place at about 9:00 o'clock at the dinner time in the presence of the son, we are of the opinion that there was no premeditation on the part of the accused to commit the offence. The talks about the ownership of houses, suddenly come into a fight between husband and wife, and in the heat of passion, upon a sudden quarrel, the appellant­accused lost his control and took up a wooden strip and gave blows to the deceased and, therefore, it cannot be said that the accused had taken undue advantage of the sudden or had acted in a cruel or unusual manner. Looking to the size of wooden strip, it is about 3 feet long, 3 cm wide and having thickness of 2 cm only.

As far as the injury sustained by the deceased are seen, out of 11 injuries, 4 to 5 injuries are of C.L.W. over cheek, chin and upper lip. There is swelling over left side of cheek and bruises on shoulder and chest. She sustained fracture of left mendible region and fracture of 2nd rib. Though there is no external injury on the head but the doctor found hair line fracture over left temporal region. The doctor also found petechial haemorrhage on the left side temporal region. It is well settled principle of law that, while convicting a person, only number of injuries are not required to be looked into, but other circumstances emerges from the facts, are also required to be seen at the time of convicting a person under the provisions of IPC, particularly, under Section 302 and 304 of IPC. In the present case, as stated hereinabove, the case of the appellant is squarely covered within purview of Exception 4 to Section 300 of IPC and, therefore, the appellant is entitled for lesser punishment which is provided under Section 304 of IPC. Now, looking to the background of the case that the appellant­accused was living with his victim wife since more than 20 years and the relations were normal, it cannot be said that there was intention on the part of the accused to give such bodily injury which would result into a death of the person since there was no serious issues between them. Therefore, in our opinion, the case would fall within the definition of 2nd part of Section 304 of IPC.

6. For the foregoing reasons, the appeal is partly allowed. The judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge & Presiding Officer, 7th Fast Track Court, Vyara in Sessions Case No.32 of 2005 on 23.12.2005 for the offence punishable under Section 302 of the IPC is altered to one under Section 304 Part­II of the IPC. The appellant­accused is sentenced to undergo R.I. for 07 years. The fine is reduced to Rs.5,000/­, and in default to undergo R.I. for six months.

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