(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This appeal arises out of the judgment and order rendered by Sessions Court, Panchmahal at Godhra in Sessions Case No. 208 of 2004 on November 6, 2004 convicting the appellant for murder of his own brother punishable under Section 302 of IPC and sentencing him to imprisonment for life. The appellant was also convicted for offences punishable under Sections 504, 506(2) of IPC and sentenced to undergo Rigorous Imprisonment for two months and six months respectively and the appellant is already acquitted for offence under Section 135 of Bombay Police Act and hence this appeal by the original accused challenging the said judgment and order.
2. Brief facts of the case are that the appellant has a brother whose name is Fatabhai Abhabhai. They have a cousin Kalubhai. Kalubhai was got betrothal before Fatabhai though he was younger to Fatabhai. This disturbed the appellant and he therefore raised a quarrel with Kalubhai, Savitaben etc. On that ground Kalubhai went to lodge FIR with police. The appellant was therefore further aggrieved against his cousin brother Fatabhai as to why he permitted Kalubhai to go and lodge FIR. He, therefore, raised a quarrel with Fatabhai and in that quarrel he lost his selfcontrol and inflicted blows with stick on his head which ultimately resulted into death of Fatabhai. He also intimidated the persons on the spot.
2.1 An FIR was lodged in this context by Savitaben Hirabhai Rayjibhai Patel on the basis of which offence was registered and investigation started. At the end of investigation, the police found that there was adequate material against the appellant, and therefore, filed a charge sheet in the Court of JMFC, Shahera who committed the case to the Court of Sessions at Godhra at Panchmahal and Sessions Case No. 208 of 2004 came to be registered.
3. Charge was framed against accused at Exh.2. He pleaded not guilty to the charge and came to be tried. At the end of the trial, the trial Court found him guilty for the offences stated hereinabove and sentenced him as stated earlier and hence this appeal.
4. We have heard learned advocate Mr. Barot appearing for the appellant and learned Additional Public Prosecutor appearing for the respondent.
5. Mr.Barot, at the outset, submitted that as an officer of the Court he is not in a position to assail the judgment on involvement of the appellant in the incident but according to him the appellant could not have been convicted for the offence of murder. He, therefore, submitted that the appellant can at the best be said to have committed culpable homicide not amounting to murder punishable under Sections 304 of IPC.
6. Mr. Barot in order to substantiate his say drawn our attention to evidence of eye witness Savitaben Hirabhai (PW:3, Exh.12) as well as the evidence of Dr.Chandrahas Keshavrav (PW:10, Exh.30) and submitted that conjoint reading of these two pieces of evidence would show that the incident was not preplanned. It was an outcome of sentimental disturbance because of engagement of the younger brother in the family prior to an elder one and in that regard some altercation took place and the quarrel resulted into assault by the appellant. He cannot be said to have exceeded his position and therefore exception 4 to Section 304 would be attracted. Mr. Barot has taken through the medical evidence and the fact that it was caused by a stick which is a handy weapon in almost every house. Mr. Barot submitted that there is no history of any other dispute between the deceased and the appellant prior to the incident. They are real brothers and they were residing together. The case therefore would fall under Section 304 of IPC and the judgment and order of the trial Court therefore may be altered accordingly.
7. On the other hand, learned Additional Public Prosecutor has opposed this appeal. He submitted that as many as three blows have been given on vital part of the body by the appellant to the deceased and therefore the conviction is rightly recorded by the trial Court therefore could not have been any other intention then to cause death of the deceased. Learned APP therefore submitted that the appeal may be dismissed.
8. We have examined Records and Proceedings in context of rival submissions.
9. First informant Savitaben Hirabhai (PW:3) is examined at Exh.12.
She says that incident occurred at about 10:00 a.m. She was at her home. At that time, the appellant came there in drunken condition, gave abuse to Kalubhai. Therefore Kalubhai went to police station and at that time the appellant asked his brother deceased Fatabhai as to why he permitted Kalubhai to go to police station and then inflicted stick blows. The deceased fell down. The husband of the witness came and took the deceased to hospital in an autorickshaw. During the crossexamination, she states that there has been a dispute about property between deceased Fatabhai and appellant. She denies suggestion about the appellant's hand having been fractured by her husband. What emerges from crossexamination and what is of great relevance is that there was a quarrel at the time of incident. It transpires from evidence of this lady that stick blow was given by appellant to the deceased. In this context, if medical evidence of Dr.Chandrahas Keshavrav (PW:10, Exh.30) and postmortem note (Exh.31) are seen, it appears that the deceased had as many as six external injuries, contusion with abrasion on dorsal side of left and deformity of 2nd, 3rd, 4th and 5th base of fingers of left hand, and then three CLWs on the scalp and head besides internal injuries corresponding to the external injuries. The injuries are certified and stated to be sufficient in ordinary course of nature to cause death.
10. Evidence of Dr. Shivkumar Gohil (PW:2, Exh.8) would show that in this incident the appellant was also injured including a head injury.
11. The sum total of forgoing discussion would be that the appellant had grievance against Kalubhai for having got engaged at a younger age then the appellant's brother. This resulted into a quarrel. The appellant allegedly picked up a stick and gave beating to the deceased. The eye witness does not speak of multiple blows, however, the medical evidence shows that at least three blows were given by the appellant to the deceased on his head. Before that, there was an altercation and a quarrel in which the appellant himself suffered physical injury. It is nobody's case that the attack was preplanned. Against four injuries suffered by him, the appellant had given three blows on the head of the deceased. In our view, therefore, as the appellant's case would attract exception 4 to Section 300 as is submitted by the learned counsel for the appellant, there was no premeditated, there was an altercation followed by quarrel, there was loss of his control and there was resultant injury. All ingredients having been satisfied, we are of the view that the trial Court overlooked these aspects while convicting appellant for murder. The judgment and order by the Sessions Court is therefore required to be interfered with in exercise of appellate jurisdiction. The appeal is partly allowed. Conviction of the appellant is altered to one under Section 304 PartI of IPC from Section 302 of IPC with no change so far as conviction under Sections 504 and 506(2) is concerned. The appellant is sentenced to undergo Rigorous Imprisonment for nine years with fine of Rs.2000/ in default to undergo Simple Imprisonment for one month. So far as conviction under Sections 504 and 506(2) of IPC is concerned, the conviction is confirmed and the appellant would be acquitted for the offence under Section 135 of Bombay Police Act.
(A. L. DAVE, J.) amit (PARESH UPADHYAY, J.)