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2009 Supreme(Guj) 468
2010 (1) GCD 714 (Guj) (DB)
Hon’ble Mr. Justice J.R. Vora &
Hon’ble Mr. Justice H.B. Antani
Natha Bhovan Gediya
Versus
State of Gujarat
Criminal Appeal No. 879 of 2003—Decided on 10/08/2009
Mr. P.B. Khambholja for Mr. N.K. Majmudar, for the Appellant.
Mr. L.R. Pujari, APP for the Opponent.
Point in Issue :
Whether in the facts and circumstances conviction of appellant for offence of murder sustainable?
Headnote:[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 302 and 323 — Bombay Police Act — Section 135 — Murder — Injuries caused on head with wooden Log — Conviction — Appreciation of evidence — Sustainability — Appellant being unhappy about share of land given to him on the date of incident he went to the house of complainant mother of deceased and inflicted injuries on head of deceased with Wooden Log and as a result of injuries deceased died — He also assaulted the complainant — Court having perused the entire evidence on record concluded that appellant had no intention to cause fatal injuries to deceased and there was no premeditation on the part of appellant to cause such injuries — Appellant was, therefore, liable to be convicted under Section 304 Part II of the Code — Court, therefore, maintaining conviction of appellant under Section 323 and Police Act converted his conviction under Sections 302 to 304 Part II and sentenced him accordingly.
Held :
The incident in question took place on 16.04.2002 at 6 O’clock in the morning. On the date of incident, the appellant was not happy about the share in the land and, therefore, he went to the house of complainant. On reaching the house of the complainant, he assaulted Chako-son of the complainant, who was sleeping on the cot with wooden log on his head and thereby caused serious injuries to him. The deceased, as a result of the injuries, immediately was taken to the hospital where he ultimately succumbed to the injuries. It is pertinent to note that there was a dispute between the appellant, Champaben and her son with regard to the land. Previously also, a litigation was filed in respect of the dispute regarding the land. As the appellant had apprehension that because of his dispute with the son of the complainant with regard to land, he might, as well, be assaulted by Chako, he had given N.C. Complaint on 16.04.2002 wherein, he has stated that on 15.04.2002, when he was sitting with his wife-Hansa at about 8 O’clock in his house, Chako visited his house and abused him. Thereafter, he and his wife-Hansa closed the door and went to sleep. When he started to go for work on the next day in the morning at 6 O’clock, he had apprehension that Chako might as well assault him because of the abusive language used by him on the previous night. He, therefore, kept wooden log with him in case of any scuffle which might ensue in the morning on 16.04.2002. Thus, on perusal of Exh.56, it becomes clear that the real bone of contention between both sides was the share in the land. When the deceased abused the appellant on the previous night i.e. on 15.04.2002, the appellant had apprehension that he might be assaulted by Chako.
[Para 11]
In view of the facts and circumstances of the case, it becomes clear that the appellant had no intention to cause fatal injuries to deceased-Chako on 16.04.2002 and there was no premeditation on the part of the appellant to cause fatal injuries. Therefore, the case of the appellant, in our considered view, would fall under the Exception carved out under Section 300 of I.P.C. and, therefore, the appellant, in Court view, can be imposed the sentence under Section 304 Part II of I.P.C. [Para 12]
Law Laid Down :
When there is no intention to cause death act of accused would fall under exception of Section 300 and he will be liable to be convicted under Section 304 Part II IPC.
H.B. Antani, J.—This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (“the Code” for short), is directed against the judgment and order dated 29.03.2003 passed by the learned Additional Sessions Judge, 6th F.T.C., Junagadh in Sessions Case No. 51 of 2002 by which, the learned Judge convicted the appellant for the offence punishable under Section 302 for life imprisonment and fine of Rs. 1000/-, in default, S.I. for one month; under Section 323 of I.P.C. R.I. for six months and fine of Rs. 500/-, in default, S.I. for 15 days and under Section 135 of the Bombay Police Act, S.I. for six months and fine of Rs. 500/-, in default, S.I. for 7 days. The learned Judge held that all the sentences shall run concurrently.
2. The short facts giving rise to the present appeal are as under.
3. As per the prosecution case, the appellant, who had quarrel with his nephew with regard to share in the land, assaulted deceased-Chako with the wooden log when he was fast asleep in the bed in wee hours on 16.04.2002. The deceased sustained serious injuries and was immediately taken to the Visavadar civil hospital where, he was declared dead. The complaint was given by Champaben on 16.04.2002 at Visavadar police station wherein, she has narrated the manner in which her son-Chako was assaulted by the appellant. In pursuance of the complaint filed by Champaben, the offence was registered against the appellant under Sections 302 and 323 of I.P.C. as well as under Section 135 of the Bombay Police Act. The investigating officer visited the place of incident and prepared panchnama of the place of incident. Complainant-Champaben, who sustained injuries in the incident, was sent to the hospital for giving immediate treatment. The muddamal which was recovered from the scene of offence was sent to F.S.L. for the purpose of detailed analysis. Inquest panchnama of the dead body of deceased-Chako was prepared in presence of panch witnesses. Thereafter, postmortem was carried out and the detailed report of P.M. was obtained by the investigating officer. The statements of the witnesses were recorded from the neighbourhood and, on receipt of the report from F.S.L., P.M. report etc., the accused was charge sheeted and produced before the learned Magistrate at Visavadar who, in turn, committed the case to the Sessions Court under Section 209 of the Code as the case was exclusively Triable by the Sessions Court. When the case was remitted to the Sessions Court, it was numbered as Sessions Case No. 51 of 2002. The charge against the appellant was framed vide Exh.4 and the appellant pleaded not guilty to the charge levelled against him. Thereafter, the matter was set-down for full-fledged trial before the learned Sessions Court.
4. The prosecution has examined following witnesses in order to prove the involvement of the appellant in the commission of offence.
P.W. Name of prosecution witness Exh.
1 Vitthalbhai Dahyabhai 26
2 Bhupatbhai Vallabhbhai Malaviya 28
P.W. Name of prosecution witness Exh.
3 Prafulkumar Chhaganlal 36
4 Jayantibhai Lakshmanbhai 38
5 Fulabhai Bhanabhai 39
6 Champaben Chhaganbhai 40
7 Mohanbhai Bhovanbhai 41
8 Dr. Sumit Bharatbhai Jagani 42
9 Dr. Girishkumar Lakhabhai 50
10 Bharat Sukanath Suryavanshi- PSO
