Kiranbhai Somabhai Makwan vs The State Of Gujarat

(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. By way of present Appeal, appellant­original accused has challenged the judgment and order dated 19.9.2006 passed by learned Additional Sessions Judge, Fast Track Court No.1, City Civil & Sessions Court, Ahmedabad City in Sessions Case No.252 of 2005 by which the appellant­ accused was convicted for the offence under Section 302 of Indian Penal Code and was sentenced for R.I. for life and fine of Rs.2,000/­, and in default S.I. for 15 days.

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

2.1 That on 16.9.2003 one Jaimin Jagdishkumar Bhatt lodged a complaint with Police Sub Inspector, Kanbha Police Station and alleged that his friend Bhigen @ Kawwali Kaushikbhai Desai had affair with one Nainisha, daughter of Kiranbhai Somabhai Makwan (present appellant­ accused). Since the parents of Nainisha did not approve the affair between Bhigen and the daughter Nainisha, Bhigen did not continue the said relations, but her father Kiranbhai Somabhai Makwan had doubts that his daughter Nainisha had continued the relationship with Bhigen and, therefore, he remained agitated. It was further alleged in the complaint that, on 15.9.2003 i.e. prior to lodging of the complaint, as per the routine, the complainant along with Bhigen and other two friends, Amit Jayantilal Chauhan and Yamal Bharatbhai Barot visited a pan shop situated at the end of Sector 3­K road. After having their pan and cigarrate etc., at the pan shop, everybody started towards their home, and after some distance, the accused Kiranbhai Somabhai Makwan i.e. father of Nainisha came from the direction where his house was situated and reached on the cross­road near the house of Suresh Soni, and started talking with Bhigen, and told him that, though, he had been time and again warned, why he is keeping relation with his daughter Nainisha, and after stating the same, he gave a blow with a knife on the right side of the chest of Bhigen and ran away with the knife which was used in the attack. Immediately Bhigen was taken to the hospital on the motor­cycle by Yamal and Amit and was shifted to Government/Corporation Hospital namely L.G.Hospital. The complainant went at the residence of Bhigen and informed his parents about the incident and reached the hospital where he found that Bhigen was died. The complaint was lodged by him on the next day. Pursuant to the complaint lodged by Jaimin Jagdishkumar Bhatt, the friend of deceased, the police personnel started investigation and after having found sufficient material against the accused filed chargesheet in the Court of learned Metropolitan Magistrate at Ahmedabad, who in turn committed the case in the Court of learned Sessions Judge at Ahmedabad. The case was registered as Sessions Case No.252 of 2005 and charge was framed at Exh.1 under Section 302 of Indian Penal Code.

2.2 According to the learned Sessions Judge, the prosecution was successful in establishing the case against the appellant­accused for which he was charged and the learned Sessions Judge convicted the accused under Section 302 of IPC and sentenced him as stated hereinabove.

3. Learned advocate Mr.Vipul M.Pancholi appearing for the appellant­accused at the outset has submitted that he does not challenge the conviction, however, has prayed that looking to the background of the case, the size of the weapon which has been used in the incident and the injuries sustained by the deceased, he may be sentenced for lesser offence. He has submitted that, since the deceased was trying to forcibly continue the love affair with his daughter Nainisha, he was agitated and because of the same, he got excited and gave one blow to the deceased, therefore it cannot be said that there was any intention on the part of the appellant­accused to kill the deceased, though he might have knowledge that giving a blow with a knife might result into death of a person. He has submitted that the deceased sustained only one injury that too with a knife of having 8 c.m. length (blade) and, therefore, he can be sentenced for the offence under IInd part of Section 304 of IPC.

4. On the other hand, learned APP Mr.Neeraj Soni has opposed this appeal and submissions made by learned advocate appearing for the accused. He has submitted that, looking to the injuries sustained by the deceased, it cannot be said that there was no intention on the part of the appellant­accused to kill the deceased. He has submitted that the accused was aware about the daily routine of the accused person and, therefore, with premeditation he came at the place of incident and gave a blow with the knife on the vital part which resulted to death of Bhigen.

5. We have heard learned advocates appearing for the parties and have perused the record and proceedings. Since the appellant­accused has not challenged his involvement in the offence, we would like to discuss whether the case falls within the purview of Section 304 of IPC or not. If we peruse the deposition of complainant Jaimin Jagdishkumar Bhatt, P.W.2 Exh.9 and other two eye­ witnesses namely Yamal Bharatbhai Barot, P.W.3 Exh.10 and Amit Jayantilal Chauhan, P.W.4 Exh.11, it emerges that deceased Bhigen had love affair with Nainisha i.e. daughter of appellant­accused since last about 3 to 4 years. It also appears that the parents of Nainisha had objection for the relationship. The appellant­accused being a father was agitated and was annoyed with the deceased. It also appears from the deposition that all the four friends were together when the appellant­accused gave a blow. It appears that there were some dialogues between the deceased and the accused, since it was question of future of his daughter and unapproved relationship, he lost his power of self control and gave one blow on the chest of the deceased. Looking to the injury which is also described in the P.M.Note at Exh.15 proved through Dr.Virendra Kanaiyalal Shah, P.W.11 Exh.23, that the deceased sustained one injury on right side of chest having 6 cm x 2.5 cm vertical stab wound, 4 cm lateral to midline 2 cm below the right nipple through the wound rib and intercostal muscles seen margin of wound sharply cut and inverted with effusion of blood in surrounding tissue lower angle acute and upper board. It is clear that the appellant­accused being a father of a young daughter, was agitated and annoyed with the deceased due to maintaining a relationship with his daughter. He has given only one blow that too with a very small domestic knife. However, looking to the part of body, selected by the accused, it can be derived that he had knowledge that there are possibilities that the person may die and, therefore, in our opinion, the case would fall under IInd Part of Section 304 of IPC. Looking to the injuries sustained by the deceased on the vital part, we are of the opinion that the appellant shall be convicted under Section 304 Part­II of the Indian Penal Code. The appellant­accused has already undergone the sentence for more than 8 years (about 8 years, 8 months and 22 days) as per the jail record produced by learned APP. Therefore, in our opinion, the appellant has undergone sufficient imprisonment.

6. In the result, the appeal is partly allowed. The judgment and order of conviction and sentenced rendered by the learned Additional Sessions Judge, Fast Track Court No.1, City Civil & Sessions Court, Ahmedabad City in Sessions Case No.252 of 2005 on 19.9.2006 is altered from one punishable under Section 302 of the Indian Penal Code to one punishable under Section 304 Part­II of the IPC. The appellant­accused is sentenced to imprisonment already undergone by him with a fine of Rs.500/­, in default, to undergo five days imprisonment.

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