IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 773 of 2007 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE PARESH UPADHYAY ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= THAKORE SHANABHAI MELABHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance :
MR PRATIK B BAROT for Appellant MR NEERAJ SONI APP for Opponent ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 16/10/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY)
1. This appeal is directed against the judgment and order of the Sessions Court, Ahmedabad (Rural), Ahmedabad, dated 5.3.2007, in Sessions Case No. 69/2006, whereby, the sole accused, the appellant, is convicted for the offence under Sec. 302 and 324 of IPC, and Sec. 135 of the Bombay Police Act and is sentenced as under.
(i) For the offence under Sec. 302 of IPC, R/I for life and fine of Rs. 1000/-, in default, R/I for six months
(ii) For the offence under sec. 324 of IPC R/I for one year and fine of Rs. 500/-, in default, R/I for two months No separate sentence is awarded for the offence under section 135 of the Bombay Police Act. Both the sentences are ordered to run concurrently. The accused is also given benefit of set off. It is, this judgment and order, which is under challenge in this appeal.
2. Heard Mr. Pratik Barot learned advocate for the appellant and Mr. Neeraj Soni learned APP for the respondent-State.
3. At the out-set, it is submitted on behalf of the appellant, by learned advocate Mr. Barot that the involvement of the appellant in the occurrence is not disputed. In his submission however, the incident had happened in hit of a moment, and there was no intention to kill the victim lady, who was staying like a wife, with her children, with the appellant for years. It is pointed out by the learned counsel for the appellant that the appellant and the victim had no serious dispute over any issue. The incident in question was also, even as per prosecution case, a fall out of a routine domestic and house hold issue like cooking of food. It is contended that the incident in question had occurred in a sudden fight; in the heat of passion; upon a sudden quarrel; and the appellant did not take any undue advantage or acted in a cruel or unusual manner, and thus, Exception-4 to Section 300 of IPC, would be attracted in the facts of this case and therefore the conviction for the offence of murder, as recorded by the Sessions Court be interfered with and the same be altered for culpable homicide not amounting to murder and sentence be modified appropriately.
4. On the other hand, learned APP Mr. Soni has supported the judgment and order of the Sessions Court and in substance, has submitted that sufficient evidence is on record, on the basis of which learned Sessions Judge has recorded the conviction and this Court may not interfere in the conviction and in turn, in the sentence awarded by the Sessions Court.
5.1 Having gone through the record, in the context of rival submissions, we find as under.
5.2 On 30.9.2005, a complaint Exh. 10 was given by one Dineshji, son of Babuji Chauhan to Aslali Police Station. The contents of the said complaint was to the effect that the complainant was staying at village Girmatha, Virpur Paru, Taluka Dascroi, District Ahmedabad, with his mother Kailashben (victim/ deceased), and was doing agricultural work. His father Babuji Thakor had died before 15 years. Out of wedlock of Babuji and Kailashben, they had two sons, the elder one is Dineshji (the complainant) and the younger one is named Kanuji. Three years after the death of the father of the complainant, the mother of the complainant Kailashben, started staying with the uncle of the complainant named Jayantiji Bhaijibhai like a wife, as per social customs and because of that staying, they had one son Apurva. The said uncle Jayantiji, with whom Kailashben was staying, also died before about three years from the date of the complaint. Thereafter, the complainant, her mother Kailashben and other two brothers, all started staying together at village Girmatha at Virpur Para. Before about three years, the mother of the complainant used to go for labour work at bore well of one Ishwarbhai Sarabhai Patel. There Shanabhai Melabhai Thakore (the appellant) also used to go and that is how they came in contact and started liking each other and started staying together. Thus, as per the complaint, the appellant and the deceased were staying like husband and wife under the same roof and it had continued for about three years till the date of the incident.
5.3 The complaint further stated that a day before occurrence i.e. on 29.9.2005, at about 7.00 O'clock in the evening, Kailashben (victim/ deceased) had some altercation with the appellant with regard to cooking of food and since the appellant attempted to beat the mother of the complainant and younger brothers, the mother of the complainant had gone to her aunt's house with all the three brothers, and they had stayed there for a night. Next day at about eight o'clock in the morning, when the complainant and her mother returned home, they saw that clothes and bedding were burnt by the appellant, for which, he was scolded and quarrel took place, in which, the knife lying in the house was taken by the appellant and he rushed towards the complainant, but the mother intervened, and therefore, the appellant shouted why she is intervening and she was asked to be away from him, but since she did not go away, she was given two blows by the appellant. Thereafter, the complainant and his mother ran out of the house. At that time, neighbour Champabhai Atmaram Chunara intervened, who also sustained injuries. As per the complaint, the appellant fled away from the place of occurrence with the knife used in commission of the offence. As per the complaint, mother fell down and she died. Thereafter, the complaint was given.
5.4 Based on the said complaint, the offence was registered by Aslali Police Station. The case was investigated and charge-sheet was filed in the Court of learned Judicial Magistrate, First Class, Ahmedabad (Rural), who in turn, committed the case to the Court of Sessions, Ahmedabad (Rural), which was given Sessions Case No. 69/2006.
6. The complainant, who is son of the deceased is examined as PW-2 Exh. 9. In the evidence, he came out with little different version about the occurance. He deposed saying that they are three brothers. The name of his mother is Champaben. On 30.9.2005, a quarrel had taken place on the issue of food. The appellant had asked why Rotlas are prepared, he wanted to have Khichadi. Thereafter, the appellant had started beating his mother and gave two blows with the knife. He, i.e. Dinesh (the complainant) tried to intervene and the appellant ran after this witness. Champakaka (PW-3) saved him. The said Champakaka had sustained injuries. The mother had died of injuries and she was taken to the hospital for post mortem. In the cross examination, he stated that the appellant, mother and the witness all were staying together under the same roof. The incident happened suddenly and before one could understand anything,in the blink of the moment, everything was over. The appellant and the victim had no differences of any kind and that there was no dispute between them on any count. According to him, the appellant was caught from the spot itself.
7. Champabhai Atmaram Chunara PW-3 is examined at Exh.11, who is injured witness. He deposed to the effect that in the morning, when he was brushing his teeth, the appellant gave blows to the victim. The witness had ran to stop the appellant from giving blows to the victim. He (the witness) sustained injuries. He identified the muddamal article no. 8 and states that he sustained injuries with the said knife. In the cross-examination, he accepts the suggestion that the incident happened in a spur of moment.
8. One Kaliben Ishwarbhai Parmar, PW-4 is examined at Exh.12. She stated that she is staying just opposite the house of the appellant and the victim. When this witness saw, the victim was injured because she heard shouts of the sons of the victim, she came to know that appellant had given blows by the knife. She also states that in the scuffle, Champakaka also got injured.
9. Dr. Bhavnaben Jayesh Parikh, PW-1, who had conducted the post mortem of the victim is examined at Exh. 5. She, in her deposition stated to the effect that on 30.9.2005, at about 3.00 O'clock in the after noon, she had started post mortem which got completed at 5.00 O'clock in the evening. The person of the victim had sustained two injuries. As per the post mortem report, the cause of death was shock and hemorrhage due to stab injury No. 1 on left side of chest.
10. From the above evidence on record, the picture which emerges is that, though not legally wedded, the relation of the appellant and victim was that like husband and wife. They were staying together for about three years with three sons of the deceased. Of those three sons, two were out of her first wed-lock with Babuji Chauhan. The third son was out of her staying with the brother of his late husband, named Jayantiji. The star witness, the complainant who gave complaint Ex.10 and evidence before the Court vide Exh. 9 gives two different versions. In the complaint, he had said about the quarrel having taken place on the day before occurrence and as per the complaint, the appellant rushed to attack said witness i.e. Dinesh and his mother intervened and in that quarrel she got injured and died of those injuries. In his evidence Exh. 9, the complainant gave altogether a different version about the genesis of the occurrence. As per his evidence, on 30.9.2005 in the morning, the appellant had entered into quarrel with the victim for the food as to why rotala is cooked and the appellant wanted to have khichdi. The appellant gave blows to the victim, and this witness tried to intervene. Thus, there is material contradiction with regard to genesis of the occurrence as per this sole eye witness. In his complaint, and while giving evidence before the court, however, he was consistent about the fact that the quarrel had taken place in a spur of moment. It has also come on record that there was no dispute of any kind between the appellant and victim. Since the learned advocate for the appellant has conceded about his presence and involvement in occurrence, the contradictions in the evidence of complainant/ PW-2 would not make material difference, except to the extent that the incident has not happened the way in which it is projected by prosecution, as reflected in the charge Exh. 2. Further, there is evidence that the incident happened in the quarrel in the family and the entire episode got over like the blink of an eye. It is also on record that the appellant and victim were staying as husband and wife and they had no dispute. Further, the medical evidence goes to show that the cause of death is one knife blow. On the face of these evidence, the say of PW-2 and PW-4 would not add anything to the prosecution case. The picture that emerges from this evidence shows that knife blow is given by the appellant without any premeditation. The same was in a sudden fight in the heat of passion upon a sudden quarrel and the appellant has not taken any undue advantage or acted in a cruel or unusual manner. Thus, Exception-4 to Section 300 of IPC, in our view, would be attracted in the facts of this case. On the face of this finding, we accept the contention of learned advocate for the appellant that the conviction for the offence committed by the appellant would attract punishment not for murder, but for culpable homicide not amounting to murder punishable under section 304 Part-II of IPC and the appeal needs to be allowed to this extent.
11. For the reasons recorded above, we arrive at the judgement and pass order as under.
(i) Conviction recorded by the Sessions Court, against the appellant for committing the offence of murder punishable under section 302 of IPC is altered to culpable homicide not amounting to murder punishable under Section 304 Part-II of IPC and the appellant is ordered to suffer R/I for six years for the said offence. Sentence awarded by the Sessions Court to under go R/I for life stands modified accordingly.
(ii) Conviction recorded by the Sessions Court CR.A/773/2007 10/10 JUDGMENT against the appellant under Section 324 of IPC and the sentence awarded for that offence is not interfered with.
(iii) Amount of fine and default sentence, for both the offences, as awarded by the Sessions Court, remains unaltered.
(iv) The order of the Sessions Court that both the sentences shall run concurrently and that the accused shall be given benefit of set-off, remains unaltered.
Appeal is partly allowed.
[A.L. DAVE, J.] [PARESH UPADHYAY, J.] mandora/