The appellant, accused No.1 before City Sessions Court, Ahmedabad in Sessions Case No.10 of 2003 along with two others viz., Rajaram Krishnamurti Vinjun and Rakesh Rajaram Vinjun, were tried as accused No.2 and accused No.3 respectively. The Sessions Case was disposed of by judgment dated 14/10/2005, whereunder the appellant was convicted for an offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo RI for life with a fine of Rs.5,000/, in default, to undergo RI for three months. The appellant was also convicted for offence punishable under Section 324 read with Section 34 of the IPC, but no separate sentence was awarded. So far as offence punishable under Section 135 of the Bombay Police Act is concerned, the appellant came to be acquitted. 1.1 By the impugned judgment, the trial Court acquitted A2 Rajaram Krishnamurti Vinjun; whereas convicted A3 Rakesh Rajaram Vinjun for the offence punishable under Section 324 of the IPC. He has however chosen not to challenge his conviction. As such, A1 is before us with this appeal challenging his conviction.
2. The prosecution case, in brief, is that the appellant owned an autorickshaw which was given to Kantibhai Rupalbhai to ply on hire basis. On 14/09/2001, A1 and A3 demanded Rs.700/ from said Kantibhai as overdue from him on the said account and, there was a quarrel in that context in Raipur Area of Ahmedabad city, and thereafter at about 12:30 O'clock near Khokhra Circle, there was again quarrel and fight for that very purpose and in that transaction, it is alleged that A3 inflicted a blow with iron pipe on the head of Vijay Ashokbhai Chauhan. A2 Rajaram Krishnamurti Vinjun caught hold of Kantibhai and A1 inflicted two knife blows on victim – Kantibhai on the chest and abdominal area, as a result of which, Kantibhai died.
3. The incident was witnessed by at least four persons who have been examined as eye witnesses by the prosecution. Pursuant to lodging of FIR by PW No.1 – Rohit Ganpatbhai Chunara, offence was registered by Amraiwadi Police Station. The case was investigated and chargesheet was filed in the Court of learned Metropolitan Magistrate, Ahmedabad, who in turn, committed the case to the City Sessions Court and Sessions Case No.10 of 2003 came to be registered.
3.1 Charge was framed against accused at Exh.2. All the three pleaded not guilty to the charge and claimed to be tried. At the end of trial, the learned trial Court acquitted A2, whereas convicted A1 for the offence of murder of Kantibhai and causing injury to victim – Vijay Kantibhai. The trial Court also convicted A3 for the offence of causing injury to Vijay with an iron pipe and convicted them, as stated herein above. Hence this appeal.
4. Learned Advocate Mr.Vaibhav Vyas appearing for the appellant submitted that appellant is A1, who is alleged to have inflicted two knife blows. He submitted that having gone through the evidence, he as an Officer of the Court, is not in a position to peach the case any further than to urge for altering the conviction to one punishable under Section 304 of the IPC from one under Section 302 of the IPC. He submitted that it appears that there was a dispute in respect of hire charges of the autorickshaw, which had occurred earlier in the day and which reoccurred at the time of incident, where A1 caused death of Kantibhai and A3 caused hurt to Kantibhai with a deadly weapon like pipe. He submitted further that the incident occurred in a manner which would attract Exception – 4 to Section 300 of the IPC and, therefore, the case would be punishable under Section 304 of the IPC under Part I. Mr.Vyas, therefore, submitted that appeal may be appropriately allowed.
5. Learned APP Mr.Soni, on the other hand submitted that the appellant had used a deadly weapon like knife and had caused two injuries. He, therefore, cannot claim benefit of culpable homicide not amounting to murder and the conviction is well founded. He, however, submitted that if the Court comes to the conclusion that the appellant is guilty of culpable homicide not amounting to murder and not murder then at least 10 years imprisonment may be awarded.
6. We have gone through the record and proceedings of the case in context of rival submissions.
7. Since learned Advocate for the appellant is not disputing involvement of the appellant and is only pressing for reducing the conviction for lesser offence, we may not dwell on other aspects.
8. The prosecution has examined first informant – Rohit Ganpatbhai Chunara at Exh.11, Vijay Ashokrav Chauhan at Exh.15, Pravinbhai Rameshbhai Pavar at Exh.17, Mahendrabhai Ramchandra at Exh.19 as eyewitnesses. Out of these witnesses, PW No.2 – Vijay Ashokrav Chauhan, is an injured eyewitness. From the evidence of this witness, it emerges that before the actual occurrence, there was a quarrel followed by a fight resulting into the death of the victim.
9. The earlier dispute, on account of money due from the deceased which had taken place at Raipur, had come to an end. Again when they met, there was an altercation and in that altercation, there was a fight, as can be seen from the deposition of injured eyewitness–Vijay and in that transaction, the present incident had occurred.
9.1 It would be appropriate to record, at this stage, that in this episode, A1 as well as A3 also suffered injuries. None of the eye witnesses say anything as to the cause of these injuries, but this certainly reflects possibility of a fight having taken place. It is nobody's case that the presence of the deceased at the place of incident was in a routine manner or that his availability at the place of incident was known to the accused. It is, therefore, too far to fetch inference that the accused persons came there with premeditation. Since there was a dispute on monetary transaction, an altercation was natural, followed by a fight, where A1 and A3 both suffered injuries and in that transaction, A1, who is present appellant, is alleged to have inflicted two knife blows on the deceased. If PM Note is seen, injuries on chest appear to be of a serious nature and fatal. Whereas, the injury in the abdomen, if seen, is a CLS 1 x 0.5 cm and, therefore, the fatal injury is injury No.1. Differently put, only one blow is found to be fatal.
10. In our view, Mr.Vyas, was justified in contending that Exception – 4 to Section 300 of the IPC would be attracted.
11. The appeal, therefore, deserves to be allowed and the same is partly allowed. The judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge, Court No.13, Ahmedabad in Sessions Case No.10 of 2003 on 14/10/2005 is altered from one punishable under Section 302 of the IPC to one punishable under Section 304 PartI of the IPC. The sentence of appellant – org. accused No.1 Rohan @ Kailash Rajaram Vinjun (Madrasi) is altered from imprisonment for life with fine of Rs.5,000/ to RI for seven years with a fine of Rs.3,000/, in default, further sentence of 15 days.
(A L DAVE, J.) (PARESH UPADHYAY, J.) sompura