(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The appellants were the accused before Sessions Court, Chhotaudepur in Sessions Case No.18 of 2004, who have been charged with an offence of murder, attempted murder, grievous hurt, hurt, etc., allegedly committed by them on 26/12/2003, in the outskirts of Village Vajepur Tal. Kwant. The trial Court by judgment and order dated 19/12/2005 convicted them for the offence punishable under Section 302 r/w Section 114 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay a fine of Rs.100/- each, in default, RI for one month. They were also convicted for an offence punishable under Section 323 r/w Section 114 of the IPC and were fined with Rs.100/-, in default to suffer SI for three months. However, for the offence punishable under Sections 307, 325, 504 r/w Section 114 of the IPC, they came to be acquitted. Against their conviction, A-1 Jayantibhai Amarsing Nayak has preferred Criminal Appeal No.47 of 2006, A-2–Raysingbhai Amarsing Nayak has preferred Criminal Appeal No.48 of 2006 and, A-3 Manilal Amarsing Nayak has preferred Criminal Appeal No.49 of 2006, who were org. accused No.1, 2 and 3 respectively before the trial Court.
2. As per prosecution case, A-1 – Jayantibhai Amarsing Nayak was armed with an iron pipe and remaining two accused viz., A-2 –Raysingbhai Amarsing Nayak and A-3 – Manilal Amarsing Nayak, were armed with Dinga (a small wooden log). As per the prosecution case, on 26/12/2003 at about 6:00 p.m., deceased – Mangu Junagla alongwith complainant –Kugriben and her husband –Ranchhodbhai were passing by the place of incident, they came across the three accused persons, where the accused persons picked up a quarrel as to why Mangu Jungla is not calling his daughter-in-law (who incidentally happens to be the sister of the accused persons). The quarrel turned into an attack by the accused with the respective weapons, where the complainant, Ranchhod and his brother-in-law were dealt with pipe and dinga. Deceased suffered a head injury with the pipe, which resulted into the death. Ranchhod was also badly injured. The accused persons actively participated in the assault and aided and abetted each other.
2.1 FIR was lodged by complainant – Kugriben with Kwant Police Station, who in turn registered the offence and investigated the case. Having found sufficient material against the accused persons, a charge-sheet was filed in the Court of learned JMFC, Chhotaudepur, who in turn, committed the case to the Court of Sessions and Sessions Case No.18 of 2004 came to be registered.
2.2 Charge was framed against the accused persons at Exh.7, to which each of them pleaded not guilty and claimed to be tried. The Sessions Court found that the prosecution was successful in establishing the guilt against the accused and, therefore, convicted and sentenced them, as stated herein above and therefore this appeal.
3. The appellants are represented by learned Advocate Mr.Pratik Barot, whereas, the State is represented by learned APP, Mr.Dabhi.
4. Learned Advocate Mr.Barot submitted that he does not propose to assail the judgment so far as involvement of the accused persons in the incident is concerned, but, he proposes to submit that they could not have been convicted for an offence of murder. He submitted that there was no preplanned meeting. The three accused persons are real brothers, whose married sister is not called at the matrimonial house by her in-laws, because of which, they were agitated and when they came across deceased – Mangu Jangla, father-in-law of the girl, they tried to persuade him to call his daughter-in-law and in doing so, some heat was generated. There was some altercation, ultimately, resulting into a fight. He submitted further that the weapons attributed to the appellants are ordinarily carried by agriculturist with them. It is not the case of the prosecution that this meeting was preplanned. Mr.Barot submitted further that the incident occurred suddenly and the accused – appellants are young and as they were got agitated and ultimately, the deceased suffered injuries, but there could not have been any intention to cause his death. If the manner in which the incident occurred is examined, no injuries are suffered by the victim on their seat of the body. Except one, no injury is on vital part of the body. The injuries are superficial in nature and, therefore, intention of causing death cannot be attributed to any of the accused. The trial Court, therefore, committed an error in recording the conviction and awarding sentence. He submitted that the appeal may therefore be allowed to that extent and the sentence may be reduced to the sentence already undergone by the accused person. According to Mr.Barot, not Section 302 of the IPC, but Section 304 Part-II of the IPC would be attracted.
5. Learned APP Mr.Dabhi has opposed this appeal. According to him, the trio were armed with weapons. They attacked their own relatives and caused death of one of them. Mr.Dabhi submitted that one can understand about the Dinga, but possession of pipe would speak volumes about the intention on the part of the accused and, therefore, the trial Court was justified in convicting the appellants for the offence of murder. By way of alternative submission, Mr.Dabhi submitted that, if the Court comes to the conclusion that Section 304 and not Section 302 of the IPC would be attracted, then the offence would be punishable under Part –I of Section 304 and not Part –II.
6. We have examined the record and proceedings of the case in context of rival submissions.
7. The prosecution has examined Kugriben Ranchhodbhai Nayak at Exh.13 and Ranchhodbhai Movasiya at Exh.15. It is clear from the evidence of these two witnesses that their presence at the place of incident alongwith the accused persons was purely co-incidental.
8. The deceased, his wife – Kugriben and witness – Ranchhod had all gone to Vajepur to attend an after death ceremony at the house of one – Narubhai. They met each other at the house of Raising where there was an altercation in respect of not calling Kangliben-sister of the accused and daughter-in-law of deceased –Mangu Jungla. The altercation resulted into a quarrel and A-1 inflicted a pipe blow on the head of the deceased. As a result of which, complainant's husband fell down. The deceased was given blows on his leg as well, as a result of which, he fell down. According to her, A–1 - Jayanti gave her a blow with pipe on her head; whereas A-3 –Manilal also gave blow of Dinga on her leg, as a result of which, she fell down and became unconscious and regained conscious on next morning. When she regained conscious, she found that her brother-in-law died and her husband was unconscious.
8.1 Evidence of these two witnesses, if taken at face value, makes it clear that meeting was unplanned, there was a quarrel on account of the accused persons being agitated because of non-calling of their sister, the weapons used cannot be considered as deadly weapons, they are normal agricultural implements and the injuries caused on the person of the deceased, except one, were on non- vital part of body and that too of superficial nature.
9. It is difficult to attribute intention of causing death of the deceased to the assailants and, therefore, in our opinion when a blow is given on head in a sudden fight and looking to the nature of injury, at the best, it can be attributed that the blow was given with knowledge that it was likely to cause death. This would attract Part II of Section 304 of the IPC.
9.1 All the accused persons have participated in the assault, as is emerging from evidence and as is not disputed by them and, therefore, they can be said to be sharing common intention which may have crept in at the last moment, so also, they would be guilty of the offence of aiding and abetting.
9.2 In our opinion, therefore, the case is one punishable under Section 304 Part II r/w Sections 323 and 114 of the IPC.
10. We have heard learned Advocates and learned APP on quantum of punishment. We learnt from learned APP that org. accused No.2 – Raysingbhai Amarsing Nayak is absconding since 19/03/2008, but he has already undergone 04 years, 02 months and 08 days imprisonment. We also learnt that org. accused No.3 –Manilal Amarsing Nayak has already undergone imprisonment for 08 years, 05 months and 23 days. His conduct in the jail is found to be quite good and there is no history of any abscondence on his part Org. accused No.1 – Jayantibhai Amarsing Nayak had also absconded, but at presently he is in jail and he has undergone 05 years, 04 months and 26 days imprisonment uptil now.
11. In our view, the appellants, undisputedly, are not any hardcore criminals. They are real brothers of a sister, who has been deserted by her in-laws and that disturbance or agitation ended in this episode.
12. In our view, therefore, ends of justice would be met if the conviction of the accused-appellants is altered from one punishable under Section 302 of the IPC to one punishable under Section 304 Part II of the IPC and they are sentenced to undergo RI for six years.
13. In the result, Criminal Appeal Nos.47, 48 and 49 of 2006 stand partly allowed. The judgment and order of conviction and sentence rendered by the learned Presiding Officer & Additional Sessions Judge, Fast Track Court No.3, Chhotaudepur, Dist: Vadodara in Sessions Case No.18 of 2004 on 19/12/2005 for the offence punishable under Section 302 of the IPC is altered to one punishable under Section 304 Part-II 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 323 read with Section 114 of the IPC is upheld alongwith sentence and fine.
(A L DAVE, J.)
(A J DESAI, J.)
sompura