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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, A.C. RAO, JJ.
Navabkhan Ahemadkhan Pathan & Ors. - Appellant
Versus
State of Gujarat - Respondent
Criminal Appeal No. 835 of 2016
Decided On : 19-03-2019
Criminal Law – Criminal Trial – Code of Criminal Procedure, 1973 – Section 374 – Indian Penal Code, 1860 – Sections 302 r/w 120(B), 114 and 326 – Offence of Grievous hurt and Murder – Criminal conspiracy/ Assault – Convicted – Questioning the legality and validity of the judgment and order of conviction and sentence passed by the Sessions Judge – Alleged that all the accused in collusion with each-other hatched a criminal conspiracy to kill deceased – Deceased was travelling from his house towards Railway Station when he reached at Railway Station Platform No.1, at that time, accused No.2 inflicted blows with an iron pipe on legs of deceased and accused Nos.3 showed an iron pipe to accused No.2 and he threw away deceased on road – Accused No.1 took accused Nos.2 and 3 at place of the offence on bike of accused No.4. and accused No.4 hatched conspiracy and laid an assault on deceased keeping grudge with deceased on account of divorce between daughter of deceased and accused No.4 – Accused No.4 had hired the other co-accused for assaulting deceased and had also given his bike to other accused – Accused Nos.1, 2 and 3 after causing serious injuries with iron pipe, ran away on the bike of the accused No.4. It is stated in the FIR that deceased was taken to Hospital for treatment where he died during treatment – Held, Trial court, after appreciating the evidence, has precisely established the presence of accused at the scene of offence and his involvement in the crime and weapon - iron pipe – There cannot be any ostensible evidence in this regard because it is a mental state of the assailant, but the mental state can be inferred with the conduct and surrounding circumstances – Court view that If the blow is not given n vital part of the body like head with such a force which results in injuries sustained by the deceased, knowledge, on the part of the assailant tat the act was likely to cause death can safely be inferred. However, the crucial issue is as to which was the appropriate provision to be applied looking to the overall evidence – Trial court has not adverted to any reason apropos the submissions made by the accused that the injuries to the victim are not sufficient to cause death in ordinary course – Injury inflicted are not on the vital part of the body which could be resulted in death. In the light of the circumstances and scenario presented before us, it is hard to accept that there was an intention of the accused of causing murder – There is sufficient evidence that the accused in connivance with each other had inflicted grievous hurt to the victim – It would be appropriate to hold the accused guilty of causing grievous hurt which would bring the present case within the ambit of section 326 of the IPC – Therefore Trial court erred in convicting the accused for the offence under section 302 instead of section 326 and hence conviction is required to be altered to one under section 326 of IPC and the sentence is required to be reduced to the period already undergone – Conviction of appellants is altered to section 326 of IPC and the sentence of the appellants is reduced to the period already undergone – impugned judgment and order of sentence passed by the Sessions Judge quashed and set aside – Appeal partly allowed. (Paras 6 and 7)
A.C. RAO, J.
1. The appellants - original accused Nos.1, 3 and 4 have preferred this Criminal Appeal under section 374 of the Code of Criminal Procedure questioning the legality and validity of the judgment and order of conviction and sentence passed by the Sessions Judge, Anand in Sessions Case No.71 of 2012 dated 10/3/2016. The Sessions Judge convicted the appellants herein - original accused Nos.1, 3 & 4 for the offence punishable under sections 302 read with sections 120(B) and 114 of Indian Penal Code, 1860 sentenced them to undergo life imprisonment with fine of Rs.25,000/- each and in case of non-payment of the fine, directed to undergo further simple imprisonment for a period of five years. The Sessions Judge was pleased to grant benefit of set off as per section 428 of the Code of Criminal Procedure.
2. The case of the prosecution, in nutshell is that, the first informant - Janakben Prakashchandra Shah, wife of the deceased, lodged the FIR being CR No.I-5 of 20 with the Anand Railway Police Station for the offence punishable under sections 302, 120(B) and 114 of IPC and section 135 of Bombay Police Act on 6/5/2011, inter-alia alleging that at 8.30 O'clock in the morning on 6/5/2011, all the accused in collusion with each-other hatched a criminal conspiracy to kill the deceased. The deceased Prakashchandra Ambalal Shah was travelling from his house towards Vasad Railway Station. When he reached at the southern side of the Vasad Railway Station Platform No.1, at that time, the accused No.2 inflicted blows with an iron pipe on the legs of the deceased. The accused Nos.3 showed an iron pipe to the accused No.2 and he threw away the deceased on the road. The accused No.1 took the accused Nos.2 and 3 at the place of the offence on the bike of the accused No.4. It is alleged that the accused No.4 hatched the conspiracy and laid an assault on the deceased keeping the grudge with the deceased on account of the divorce between the daughter of the deceased and the accused No.4. The divorce had taken place at the instance of the deceased. It is alleged that the accused No.4 had hired the other co-accused for assaulting the deceased and had also given his bike to other accused. It is alleged that the accused Nos.1, 2 and 3 after causing serious injuries with iron pipe, ran away on the bike of the accused No.4. It is stated in the FIR that the deceased was taken to Anand Hospital for treatment where he died during the treatment. The FIR came tobe registered for the offence punishable under sections 302, 120(B) and 114 of IPC.
2.01. After registration of the FIR, investigating officer started investigation and prepared panchnama of the place of offence, called FSL Team, prepared inquest panchnama, sent the dead-body of the deceased for postmortem, recorded statement of the witnesses, recovered muddamal, send muddamal to the FSL, got prepared map of the place of offence, got details of the mobile of accused Rajeshbhai, obtained permission for lie detection test of accused Rajeshbhai, arrested the accused, recovered weapon and prepared panchnama for recovery of the weapon, done identification parade of the accused before the Executive Magistrate and other investigation.
2.02. Since there was sufficient evidence against the accused, on completion of the investigation, the investigating officer filed charge-sheet against the accused under section 173 of the Code of Criminal Procedure in the competent court of the Chief Judicial Magistrate, Anand and the case was registered as Criminal Case.
2.03. Since the case was triable by the Court of Sessions, the Judicial Magistrate after providing copies of the Charge-sheet papers to the accused free of costs, committed the case to the Sessions Court under section 209 of the Cr.P.C. and the case was re-registered as Sessions Case No.71 of 2012 in the Court of Sessions Judge, Anand.
2.04
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