This appeal arises out of the judgment and order of conviction rendered by the Sessions Court, Veraval in Sessions Case No.5 of 2004 on 29/11/2005 for the offences punishable under Sections 302, 447 and 504 of the Indian Penal Code and under Section 135 of the Bombay Police Act. The appellant is sentenced to undergo imprisonment for life for the offence punishable under Section 302 of the IPC and to pay a fine of Rs.2,000/ in default, RI for one year. The trial Court has not awarded separate sentences so far as the other offences are concerned. 2. The facts of the prosecution case, in brief, are that one Shantiben, wife of deceased – Babubhai lodged a complaint before the Kodinar Police Station on 05/12/2003 that the accused – appellant, who happens to be cousin of the deceased, came to her residence and started abusing her. At that time, her brotherinlaw and his wife tried to solve the dispute which was going between them. However, in the meanwhile, her husband deceased – Babubhai Jasabhai came there and at that time, accused started abusing her husband also. As per her version in FIR, altercation was going on between the accused and her husband wherein the accused took out a knife and gave one blow on the chest of the deceased and thereafter accused ran away from the place of incident. The injured was taken to Hospital at Kodinar where he was declared dead. The reason for fight was that an amount of Rs.200/ was owed by the accused from the deceased and against that the accused had given his motorcycle to the deceased.
3. The offence was registered and investigated and after having found sufficient evidence against the accused, the Police filed chargesheet in the Court of learned JMFC, Kodinar, who in turn, committed the case to the Court of Sessions and Sessions Case No.5 of 2004 came to be registered. Charge was framed against the accused at Exh.21, to which, he pleaded not guilty and claimed to be tried. The trial Court found that the prosecution was successful in proving the charge against the appellant and, therefore, recorded his conviction and sentenced him, as stated herein above.
4. We have heard learned Advocate Mr.Barot for the appellant and learned APP Mr.Soni for the respondent – State of Gujarat. We have also examined the record and proceedings in context of rival submissions.
5. Mr.Barot learned Advocate for the appellant submitted that he does not challenge the reasonings assigning by the trial Court about involvement of the accused and his endeavour would be to bring the accused for the lesser punishment, which would be, in his submission, punishable under Section 304 of the IPC.
6. To support his contention, Mr. Barot has submitted that PW No.1 Shantiben wife of Babubhai, who has been examined at Exh.24, has stated in her deposition that the accused came at her residence and started abusing. It also transpires from her deposition that at that time, the deceased was not at his residence. The dispute was of Rs.200/ for which the accused had given his motorcycle to the deceased and therefore, the altercation started and suddenly the accused gave a knife blow on the chest of her husband.
7. He, however, submitted that even if the facts of the prosecution case are accepted at the face value, the case would fall under Exception 4 to Section 300 of the IPC, which would be punishable under Section 304 and not under Section 302 of the IPC. He submitted that offence of murder is not constituted, if the prosecution evidence is seen. He submitted that the incident occurred suddenly without premeditation. There was quarrel and a free fight and in that transaction, the deceased died. The accused cannot be said to have taken undue advantage of situation or to have acted in a cruel manner. Therefor, Exception 4 to Section 300 of the IPC would be squarely applicable to the facts of the case. Therefore, conviction may be altered from the offence of murder to one for the offence of culpable homicide not amounting to murder and he may be sentenced to undergo for the period already undergone by him.
8. On the other hand, learned APP Mr.Dabhi has submitted that the incident took place near the house of the deceased where the accused came with a knife and started quarrel and gave a knife blow on the chest of the deceased, which is a vital part of the body, which resulted into his death and, therefore, Exception 4 to Section 300 of the IPC cannot be resorted to. According to Mr. Dabhi, it is a clear case of murder which is properly established by the prosecution and is held to have been established by the trial Court. Therefore, this Court may not exercise its appellate jurisdiction and the appeal may be dismissed.
9. We have considered rival submissions made by learned Advocates appearing for the respective parties.
10. If the evidence of PW No.1Shantiben (Exh.24), who posed herself as an eyewitness and lodged a complaint (Exh.25), is seen, she has admitted in her crossexamination that when she came out of her house, she found her husband in injured condition. She further admits that she had not seen the accused giving knife blow to her husband or accused running away from the place of incident. In view of these specific admissions made by this witness, she cannot be believed to be an eyewitness to the incident.
11. Now, if the evidence of PW No.16 – Jayaben daughter of Babubhai, (Exh.51), who was aged about 11 years of age at the time of the incident, is seen, she, in her deposition, has stated that when she reached at the place of the incident, she found that a quarrel was going on between her father and her uncle i.e. accused and there was some scuffle. Her uncle took out a knife and gave a blow on the chest of her father. The defence could not successfully cull out anything about the accused not being present at the scene of offence or about her not seeing the incident.
12. If the evidence of PW No.20Dr.Kiritbhai Mohanbhai Hariyani, (Exh.63), is seen, it appears from his deposition that he had initially treated the deceased and thereafter prepared the postmortem note and he found one stabbed wound on the chest of the deceased which resulted into death of the deceased. Except, this injury, no injuries are found as per the postmortem note (Exh.65).
13. Now, if the discovery panchnama (Exh.33) is seen, it appears that the size of the knife, which was used in the incident, was 4”length and 1.5 Centimeter width.
14. Thus, the overall picture emerges that the incident took place between the cousins without any premeditation and in a sudden fight, in a heat of passion in which the accused has not taken undue advantage of the situation. Having found only one blow, though on the vital part of the body, the same was not of a cruel nature or in an unusual manner. We are, therefore, of the opinion that since the appellant gave only one knife blow on the chest of the deceased, a presumption that he had no knowledge that it was likely to cause death, can be inferred and, therefore, part II of Section 304 of the IPC would be attracted and not Section 302 of the IPC, for which he has been held guilty by the trial Court.
15. In light of the above discussion, the appeal stands partly allowed. The conviction and sentence imposed by the learned Presiding Officer, 6th Fast Track Court, Veraval, camp at Una in Sessions Case No.5 of 2004 by judgment and order dated 29/11/2005 for the offence punishable under Section 302 of the IPC is altered to one punishable under Section 304 PartII of the IPC. The appellant is sentenced to undergo RI for a period of 06 years with no change in fine. The conviction under Sections 447 and 504 of the IPC and under Section 135 of the Bombay Police Act is upheld.
(A L DAVE, J.) (A J DESAI, J.) sompura