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2004 Supreme(Guj) 122
Gujarat High Court
Judgename :B.J.Shethna, J.R.Vora
BABAR MAHESH DHIRUBHAI - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL APPEAL216 of 1997
Decided On : 03/01/2004
Headnote:
Criminal Law – Criminal Trial – Indian Penal Code, 1860 – Sections 302, 304 Part-I and 450 – Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989 – Section 3 (1) (15) – Offence of Murder – House-trespass in order to commit offence – Extrajudicial confession – Prosecution case, accused - appellant is married to one Hansaben daugher of Danabhai Laxmanbhai of village Khajudra before one year of incident marriage between accused and Hansaben had taken place Before said marriage, Hansaben, wife of the accused was staying at village with her parents – Deceased was residing as a tenant in the house of one Mohanbhai Darji on account of neighbourhood, deceased was often visiting house of Hansaben and Hansaben was also helping the deceased in preparing food and cleaning his house. However few months before Hansaben married to the appellant accused, when Holy festival was near, Hansaben went to house of deceased for cleaning and when she was doing cleaning work, deceased after closing doors of house committed rape on Hansaben – On day of the incident appellant accused got up early and after cleaning teeth, went tothe house of deceased he was called by her mother-in-law for breakfast and accused replied that he was to return immediately – Thereafter, shouts were heard and when mother-in-law of the accused came out, she found that accused was coming out of house of deceased running and got in their house deceased was shouting and came out from the doors abutting to the road and after going some distance ahead on the road had fallen down – Held, It is evidence of medical expert stated that accused had also injuries and injuries nos. 2, 3 and 4 inflicted on person of deceased may be the result of the scuffle and the genesis of the prosecution case, there cannot be any other conclusion except that act of accused is squarely covered by Exception-4 of Section 300 of e IPC – Not find premeditation on part of accused while he went to the house of the deceased – On the contrary, find sudden fight between the accused and the deceased and the act committed in the heat of passion upon a sudden quarrel between the accused and deceased – Clear cut statement of the accused in extrajudicial confession that on account of Rs. 300. 00 there were altercations between the accused and the deceased and with the background of the facts of the prosecution case, the inescapable conclusion from these circumstances would be as sudden fight between two took place, and in the heat of passion, the accused appellant inflicted knife blows, which was only a penknife to the deceased and also received injuries – When PW-1, Medical Officer stated that injury No. 1 a stab wound on left side chest was fatal and other injuries No. 2, 3 and 4 may be result of scuffle, and having regard to the circumstances of the case as discussed, it is clear that it cannot be said that the accused - appellant had taken any undue advantage or had acted in a cruel or unusual manner – Trial Judge failed to appreciate this important aspect of the matter. The net result of this discussion is that the accused appellant cannot be held guilty for the offence under Section 302 of the Indian Penal Code but the act is covered by Exception 4 of Section 300 IPC and since injury caused to deceased were with intention, falls within Ist part of Section 304 of IPC – Appeal is partly allowed. (Paras 16 to 18)
( 1 ) THIS Appeal is preferred by accused Babar Mahesh Dhirubhai of Session Case No. 17 of 1996 of the Court of Sessions at Junagadh against the judgment and order delivered by learned Sessions Judge, Junagadh, on 15th of February, 1997 convicting the present appellant for the charges proved against him under Section 302 of the Indian Penal Code and sentencing him for life imprisonment. Learned Sessions Judge though found the accused - appellant guilty for the offence under Section 450 of the Indian Penal Code but did not award any separate sentence. The appellant accused was acquitted of the charges framed against him under Section 3 (1) (15) of the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989 for which it appears that no appeal by the State has been preferred.
( 2 ) THE incident leading to the prosecution of accused appellant occurred on 24. 11. 1995 at about 8. 00 a. m. According to prosecution case, accused - appellant is married to one Hansaben daugher of Danabhai Laxmanbhai of village Khajudra. Before one year of the incident, the marriage between the accused and Hansaben had taken place. Before the said marriage, Hansaben, wife of the accused was staying at village Khajudra with her parents. Deceased Fulsingh Mohanbhai Vasava belonged to Surat District, serving as Teacher in the village school was residing just opposite the house of Hansaben. The deceased Fulsingh Mohanbhai Vasava was residing as a tenant in the house of one Mohanbhai Darji. On account of neighbourhood, deceased was often visiting the house of Hansaben and Hansaben was also helping the deceased in preparing food and cleaning his house. However few months before Hansaben married to the appellant accused, when Holy festival was near, Hansaben went to the house of deceased Fulsingh Mohanbhai Vasava for cleaning at about 11. 00 a. m. and when she was doing cleaning work, deceased Fulsingh after closing doors of the house committed rape on Hansaben. On account of apprehension that their reputation will be damaged, no complaint was filed either by Hansaben or her parents, and thereafter Hansaben married to the accused appellant. However, on first wedding night accused appellant found that his wife Hansaben had intercourse with someone before the marriage. Hansaben admitted before her husband that once the deceased Fulsingh had committed rape upon her and from that day the accused appellant was maintaining grudge against deceased Fulsingh. On the day of the incident, there was one religious procession in neighbouring village Simar and, therefore, on earlier day, Hansaben and accused appellant both had come to Khajudra to take part in the said religious festival. On the day of the incident, the appellant accused got up early and after cleaning teeth, went to the house of deceased Fulsingh Mohanbhai Vasava. He was called by her mother-in-law Radhaben for breakfast and accused replied that he was to return immediately. Thereafter, shouts were heard and when mother-in-law of the accused Radhaben came out, she found that the accused was coming out of the house of the deceased running and got in their house. The deceased was shouting and came out from the doors abutting to the road and after going some distance ahead on the road had fallen down. He was smeared with blood. At that time, Rama Jodha, PW-12 and Kanabhai Polabhai, PW-5 who were standing at the cabin of Pancha Manda came and noticed that the accused was running towards the house of Danabhai from the house of the deceased. Some students of the village school informed about the incident to the Headmaster PW-2 Manshukhgiri Umdegiri. He came to the scene of offence and thereafter he informed Sarpanch of the village Atubhai PW-11. Atubhai after coming to the scene of offence inquired about what had happened and PW-3 Danabhai, father-in-law of the appellant - accused stated that the accused appellant had injured the deceased. At that time accused - appellant was pre
