IMPORTANT POINT
Unintentional homicide is not murder under Section 302 of IPC.

JUDGMENT

A.S. Supehia, J.—The instant appeal is directed against the judgment and order dated 10.12.2015 passed by 3rd Additional Sessions Judge Panchmahal at Godhra in Sessions Case No. 42 of 2013, wherein and whereby the appellant accused has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short “the IPC”) and sentenced to undergo life imprisonment and fine of Rs. 5,000/- is also imposed, in default, simple imprisonment of one year. He is also sentenced to undergo for six months imprisonment for the offence punishable under Section 323 of the IPC and fine of Rs. 500/- is also imposed, in default, simple imprisonment of one year.

Brief Facts

2. The case of the prosecution as per the charge at Exh.2 is that on 10.01.2013 at 13.00 hours, when the first informant, PW-1 was returning from his farm, he saw PW-11, Somabhai Andarsinh Parmar, who was going with the tractor filled with concrete and at that time, the accused was walking in the middle of the road and the said witness asked him to walk on the side of the road, due to which he got irritated and started abusing. At that time, the first informant was going from his field towards his home on his cycle with a spade affixed on its back side. It is further alleged that the complainant asked the accused not to quarrel with the witness and the accused pulled the spade from his cycle and then the first informant asked to return the spade, at that time he inflicted blow of spade on his hand and when the deceased-Hasmukhbhai Patel, who was going on his motorcycle from his field, warned not to quarrel, at that time the accused inflicted blow of spade on his head as well as on the face below left eye, which resulted into serious injuries and ultimately he succumbed to such injuries. The accused was charged for the offence punishable under Sections 302, 323 and 504 of the IPC as well as under Section 135 of the Gujarat Police Act.

3. The trial Court examined various witnesses and also after placing reliance on the documentary evidence has convicted the appellant as mentioned hereinabove for the offences for which he was charged.

Submissions on Behalf of Appellant (Convict)

4. Learned advocate Mr. Majmudar appearing for the appellant has submitted that the appellant has already undergone more than 10 years of sentence and if the evidence is perused closely, it reveals that the offence would not fall under the provisions of Section 302 of the IPC, but it will fall under section 304 of the IPC, since the evidence reveals that the accused is entitled to the benefit of Exception 4 enumerated under Section 300 of the IPC. In support of his submissions he has referred to the decision of the Hon’ble Supreme Court in case of Anbazhagan vs. State, AIR 2023 SC 3660 and also the judgment in the case of N. Ramkumar vs. State, AIR 2023 SC 4246. Thus, it is submitted that even if the evidence is accepted as it is, the accused can be convicted for maximum 10 years and since he has already undergone more than 10 years of sentence, his conviction may be set aside and he may be released.

5. Learned advocate Mr. Majmudar, while referring to the evidence of PW-1 (Exh.50) has submitted that he is the first informant and is a Government employee. It is submitted that his deposition does not reveal the involvement of the present appellant in the offence, since as per his deposition the incident has happened when the accused was quarreling with the tractor driver, whereas in the cross-examination, it is elicited that the quarrel was going on between one Kaushikbhai and the accused at Harijan Vas, when he had arrived. However, Kaushikbhai is not examined as a witness. It is further submitted that in the cross-examination he has admitted that the deceased - Hasmukhbhai was taken in the car of Kaushikbhai Patel to the dispensary. It is submitted that though his evidence would have been vital, he has not been examined.

6. Learned advocate Mr. Majmudar has submitted t