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2019 Supreme(Guj) 1026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, A.C. Rao, JJ.
Vijaybhai Ravjibhai Vasava – Appellant
Versus
State of Gujarat – Respondent
R/Criminal Appeal No. 248 of 2019
Decided On : 02-04-2019
For the Appellant : HCLS Committee and Mrudul M. Barot
For the Respondent: Himanshu Patel, Addl. Public Prosecutor
Headnote:
Code of Criminal Procedure, 1973 –Section 374 – Indian Penal Code, 1860 , Sections 302 – Order of conviction and sentence passed – Investigating officer arrested the accused, recorded statements of the witnesses, got done the postmortem of the deceased, prepared inquest panchnama, prepared panchnama of the place of offence and carried out other investigation – Held, Attack was sudden and not premeditated. Such being the position, it cannot be held that the accused had the intention to kill the deceased or to cause such bodily injury as is likely to cause death. In the facts of the case on hand, all the requirements under Section 300 Exception 4 of the IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300 IPC is attracted to the fact situations and the appellant-accused is entitled to this benefit – Appeal partly allowed (Para 7, 8)
Facts of the Case:
On night patrolling near Outpost in village Areth, the accused all of a sudden came from behind and hit one blow with a stick on the head of Nashvantbhai Chaudhary, as a result of which he sustained head injuries and was shifted to New Civil Hospital, where he died during the treatment.
Finding of the Court:
Attack was sudden and not premeditated. Such being the position, it cannot be held that the accused had the intention to kill the deceased or to cause such bodily injury as is likely to cause death. In the facts of the case on hand, all the requirements under Section 300 Exception 4 of the IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300 IPC is attracted to the fact situations and the appellant-accused is entitled to this benefit.
Result: Appeal partly allowed
JUDGMENT :
A.C. Rao, J.
1. The appellant - original accused has preferred this Criminal Appeal under section 374 of the Code of Criminal Procedure challenging the judgment and order of conviction and sentence passed by the 7th Additional Sessions Judge, Bardoli, District Surat, Sessions Case No. 14 of 2016 dated 1/8/2018, by which the trial court convicted the appellant - original accused for the offence punishable under sections 302 Indian Penal Code, 1860 and sentenced him to undergo life imprisonment with fine of Rs. 5,000 and in default to deposit the amount of fine, ordered to undergo further simple Imprisonment for a period of one month. The trial court was pleased to grant benefit of set off as per section 428 of the Code of Criminal Procedure.
2. Case of the prosecution:-
Kamleshbhai Vinakbhai Vinayakbhai - Police Constable lodged the FIR being CR No. I-38 of 2016 with the Mandavi Police Station for the offence punishable under sections 302 of Indian Penal Code alleging inter-alia that the on 18/3/2016 at about 2.15 hours when Nashvantbhai Rumshibhai Chaudhri along with the other members of the Gram Rakshal Dal, working under the Mandavi Police Station, was on night patrolling near Outpost in village Areth, the accused all of a sudden came from behind and hit one blow with a stick on the head of Nashvantbhai Chaudhary, as a result of which he sustained head injuries and was shifted to New Civil Hospital, where he died during the treatment.
2.1. During the course of the investigation, the investigating officer arrested the accused, recorded statements of the witnesses, got done the postmortem of the deceased, prepared inquest panchnama, prepared panchnama of the place of offence and carried out other investigation. After completion of investigation, the investigating officer filed chargesheet under section 173 of the Code of Criminal Procedure in the competent court of the learned Judicial Magistrate, First Class, Mandavi and the case was registered as Criminal Case No. 424 of 2016.
2.2. Since the case was triable by the Court of Sessions, the Judicial Magistrate after providing copies of the Chargesheet papers to the accused, 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. 14 of 2016 in the Court of Sessions Judge, Bardoli.
2.3. The Sessions Court framed Charge against the accused at Ex. 5 and recorded Plea of the accused at Ex. 6. The accused pleaded not guilty and prayed for trial. The Sessions Case No. 14 of 2016 was assigned to the Additional Sessions Court, Bardoli, who conducted the trial in accordance with law.
2.4. The prosecution produced the following oral as well as documentary evidence:
| :ORAL EVIDENCE | ||
| Ex.No. | Particulars | Remarks |
| 20 | Chuniyabhai Laliyabhai Chaudhary | Witness |
| 21 | Prabhatbhai Masabhai Chaudhary | Witness |
| 22 | Mukundbhai Prabhakar Chalake | Witness |
| 29 | Kamleshbhai Vinayakbhai Borase | Witness |
| 8 | Thakorbhai Naginbhai Tavaliya | Panch witness |
| 13 | Manubhai Vanabhai Chaudhary | Panch witness |
| 18 | Umeshbhai Rameshbhai Chaudhary | Panch witness |
| 19 | Arunbhai Chimanhai Kansara | Panch witness |
| 23 | Dr.Kalpeshhai Maheshbhai Zanzarukiya | Doctor |
| 31 | Hemendrasinh Mahendrasinh Chauhan | Police witness |
| :DOCUMENTARY EVIDENCE | ||
| Sr. No. | Ex. No. | Particulars |
| 1 | 7 | Inquest Panchnama. |
| 2 | 9 | Panchnama of the physical condition of the accused. |
| 3 | 10 | Panchnama of the recovery of the clothes and blood samples of the deceased. |
| 4 | 11 | Slip bearing signature of the panchas found from the muddamal. |
| 5 | 12 | Slip bearing signature of the panchas found from the muddamal. |
| 6 | 14 | Panchnama of the place of offence. |
| 7 | ||
