(Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY) 1. This appeal is directed against the judgment and order passed by learned Additional Sessions Judge, 5th Fast Track Court, Godhra, District Panchmahal in Sessions Case No.75 of 2006 dated 16th December 2006 by which the appellant was convicted for offence punishable under Section 302 of IPC and awarded rigorous imprisonment for life. Learned Sessions Judge further ordered fine of Rs.50,000/ and in default imposed sentence for one year.
2. The complaint was given at the night between March 78, 2006, at about 01:35 a.m. that the brother of the complainant was pushed by the accused in the well and on him being taken to hospital he was declared dead and thus the offence has taken place. The said complaint came to be registered as an FIR being IC.R.No. 30 of 2006 at Shahera Police Station, DistrictPanchmahal and after investigating the same, charge sheet came to be filed before appropriate Court and the case having been committed to the Court of sessions, charge came to be framed against the present appellantoriginal accused vide Exh.2, to the effect that the deceased was attacked by the accused, was pushed in well and ultimately died and thereby the offence under Sections 323, 504 and 302 was committed. The prosecution examined 17 witnesses in support of the case, the details of which are recorded in para:4 of the judgment. 26 documentary evidences came to be produced in support of prosecution case, the details of which are recorded in para:5 of the judgment.
3. We have heard Ms. Nisha Parikh, learned counsel for the appellant and Ms. Hansa Punani, learned Additional Public Prosecutor for the state. Both the learned advocates have taken us through the evidence on record.
4. Learned counsel for the appellant has contended that there are material contradictions, in the evidence of the original complainant who is sought to be projected as an eyewitness to the incident, and other evidences also, and the same would create doubt in the offence having been committed in the way it is projected by the prosecution and the benefit of doubt should be given in favour of the appellant. It is therefore, firstly contended that appellant should be acquitted of the charge held to be proved against him and in the alternative it is submitted that, even if the prosecution case is accepted to be true, considering the totality of the facts and material on record, it is not the case where it can be said that the appellant had any intention to kill the deceased and, therefore this is the case where offence ought not to have been proved as that of Sec. 302 of IPC but at the best could have been considered as an offence under Sec. 304 PartII of IPC. It is contended that this court may, on evaluating the evidence on record, alter the conviction of Sec.302 of IPC to Sec.304II of IPC and considering the sentence which the appellant has served for more than six years by this time, sentence be modified as what is undergone.
5. On the other hand, learned APP Mrs. Punani has supported the judgment and order recorded by learned Sessions Judge, and has contended that there is sufficient material on record to uphold the conviction under Section 302 of IPC.
6. Learned counsel for the appellant contended that original complainant Rekhaben (PW6, Exh.35) is the sister of the deceased and her version before the police at the time of complaint and her version before the Court at the time of taking her evidence, if compared, would demonstrate that there is material contradiction in her say and therefore, her evidence should not be treated as the evidence of an eyewitness. In her submission, if the say of that witness is taken out, then this would be a case of acquittal. Against this submission of learned counsel for the appellant on merits, learned APP has pointed out that these contradictions are not that material so as to make the evidence of that witness unbelievable altogether. In her submission, at the best the Court can evaluate that evidence, as to which part of evidence inspires confidence and the said exercise is already done by the learned Sessions Judge and considering that aspect, when the say of the eyewitnessthe original complainantthe sister of the deceased is not discarded, the same may not please be done by this court. We have gone through the first version of the complainant which is on record so also her evidence. In our view, the evidence of this witness can not be and need not be discarded and on the face of that piece of evidence we are unable to agree with the contention of learned counsel for the appellant that there is no legally acceptable evidence to connect the present appellant with the commission of offence and therefore first contention raised on behalf of the appellant that benefit of doubt should be given to the appellant is rejected.
7. Coming to the alternative submission of learned counsel for the appellant that even if the case of prosecution is accepted on its face value, then also the totality of facts would show that there was no intention of the appellant to kill the deceased, if panchnama of scene of offence which is on record in the form of Exh.14 if taken note of, then it is clear that the well in which the victim had fallen, had no fencing or wall on it and the water level in the said well was about 3 ft. The said well was not being used and there was grown grass of about 3 to 4 feet in the well and big stones were shown to have been lying inside the well. The prosecution theory that the appellant took the deceased towards the well with a view to kill him does not appear to be true, for the reason that it was appellant who took the deceased from his house towards his own (appellant's) house and on the way, it happened that such well came, there was heated exchange of words between both of them who happened to be cousin brothers and the appellant harshly told the deceased that last year he had thrown some pesticides in his field which has spoiled his crop. This was the point of hot discussion between both of them. Under these circumstances, the case of the prosecution was that the victim was pushed in well and the case of the defense was that it was the deceased who fell in the well. This aspect creates sufficient doubt whether this could be termed as an offence under Section 302 of IPC at all. To elaborate this, further evidence is required to be taken note of. The evidence of complainant herself goes to show that the appellant and the father of the appellant had taken the victim out of well and at that time he was alive. The evidence of Sarpanch Amarsinh Fatesinh Khant (PW13, Exh.44) also supports this version that the victim was taken out of well by the accused/appellant himself. The medical evidence is on record and Dr. Kamlesh Prasad (PW4, Exh.20) who conducted postmortem on the deceased has explained in detail the injuries which were found on the body of the deceased and on the basis of the postmortem report he deposed to the effect that the cause of death was suffocation because of drowning in water. As noted earlier the well was having water of about 3 feet. If the material discussed above is read collectively, a picture which emerges is that two cousin brothers in heated moments were going from victims residence to the appellant residence, in between unused well having no fencing and having water level of about 3 feet came, wherein the victim fell, as per the prosecution case he was pushed, and the appellant was also found in the well, taking out the victim with the help of his father. If all these facts are seen in totality, we are inclined to accept the contention of learned advocate for the appellant that the accused can, at the most, be said to have knowledge that by his act death may result but it can not be said that he had any intention to do so and thereby the case would fall within the ambit of Section 304 PartII of IPC.
8. Thus, on the overall appreciation of evidence which is on record as discussed above, we come to the conclusion that offence having been committed in this case, can not be termed as an offence under Section 302 of IPC but it falls under Sec. 304 PartII of IPC. The appeal stands allowed to this extent.
9. Coming to the next question, as to what sentence should be imposed for this offence, we find that maximum sentence provided for offence under Section 304 PartII is 10 years. Considering the manner in which the offence is alleged to have taken place and the post incident conduct of the appellant, our judicial conscience arrives at the judgment that imposition of seven years Rigorous Imprisonment, in the facts of this case would meet with the ends of justice.
10. In the facts and circumstances and for the reasons recorded above, we arrive at the judgment and pass order as under.
(I) The appellant is held guilty for offence punishable under Section 304 PartII of IPC. The conviction recorded by learned Sessions Judge, of the appellant, for the offence punishable under Section 302 of IPC is altered to conviction for the offence punishable under Section 304 PartII of IPC.
(II) The appellant is sentenced to suffer rigorous imprisonment for a period of seven years, for the offence held to be proved against him.
(III) The judgment and order passed by learned Additional Sessions Judge, Fast Track Court No.5, Godhra, DistrictPanchmahal in Sessions Case No. 75 of 2006 dated 16.12.2006, stands modified as under.
(a) Conviction of the appellant, for offence under Section 302 of IPC, stands modified as conviction under Section 304 PartII of IPC, and
(b) Sentence, of Rigorous Imprisonment for life and payment of fine of Rs.50,000/ and in default to undergo sentence of one year, stands modified to imposition of seven years Rigorous Imprisonment, as ordered above.
[Ravi R. Tripathi, J.] Amit [Paresh Upadhyay, J.]