MAHINDRA MULJI KERAI PATEL

v.

STATE OF GUJARAT

(Criminal Appeal No. 925 of 2001)

OCTOBER 14, 2008

[DR. ARIJIT PASAYAT AND C. K. THAKKER, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the

judgment of a Division Bench of the Gujarat High Court. The

appellant faced trial for offence punishable under Sections 302, 307

and 506 (2) of Indian Penal Code, 1860 (in short ‚IPC‘) for having

caused homicidal death of one Kunverba Kanji (hereinafter referred

to as the ‚deceased‘) and causing injuries to Jasuben Premji, the

complainant. The occurence took place on 18.12.1989 at about 7

p.m. The background of the occurence was that the appellant was

supposedly in love with the grand-daughter of the deceased i.e. the

daughter of the complainant Jasuben Premji. As the two ladies

objected to the proposal of marriage given by the accused, he took

out his anger on the two ladies and took the life of one and caused

serious injuries to the other. After investigation, the Investigating

Officer filed charge sheet, the trial was held as the accused pleaded

innocence. Learned Additional Sessions Judge, Kutch at Bhuj was of

the view that the accused was guilty of offence punishable under

Section 324 IPC and was sentenced to undergo imprisonment for

two years and pay fine of Rs. 2,000/- in default to undergo S.I. for six

months. The accused was also found guilty of offence punishable

under Section 452 and was sentenced to undergo imprisonment for

one year and fine of Rs. 500/-, in default, to undergo S.I. for two

months. Questioning the correctness of the order, the State preferred

an appeal in terms of Section 378 of the Code of Criminal Procedure,

1973 (in short ‚Code‘). Primary challenge was to the acquittal of the

accused in respect of offences punishable under Section 302 and

307 IPC. The High Court on analysis of the evidence, more

particularly that of PW1, the complainant and PW2, the Doctor, came

to hold that the trial court was not justified in directing the acquittal of

the accused in respect of offence punishable under Section 302 IPC.

The High Court also said that the accused was guilty of offence

punishable under Section 307 IPC. Questioning the correctness of

the order passed by the High Court, the present appeal has been

filed.

Learned counsel for the appellant submitted that while

convicting the appellant for offence punishable under Sections 302

and 307 IPC the High Court lost sight of the fact that the weapon

which was purportedly used was a small dharia (FAGA). The medical

evidence also does not make out a case for conviction in terms of

Section 302 IPC. Reference is made to the evidence of the Doctor

PW2 to contend that there was no definite opinion as to whether the

injury inflicted could have caused death in the ordinary course.

Learned counsel for the respondent on the other hand supported the

judgment of the High Court.

2. Considering the evidence, and taking note of the nature of the

injury that was inflicted, we are of the considered view that

appropriate conviction would be under Section 304 Part-(II) IPC. The

background facts show that there was pre-,meditation over exchange

of words, one injury leading to the death was inflicted. Though in all

cases the number of injuries is not the determinative factor for

attracting Section 302 IPC, in the instant case, considering the

nature of weapon used and surrounding factors, the conviction is

altered. The conviction of the High Court under Section 307 IPC does

not warrant any interference and is accordingly upheld. Coming to

the question of sentence , it needs to be noted that occurence took

place on 18.12.1989 that too over a matter concerning the refusal of

the deceased and the informant to the marriage proposal. He was

about 19 years of age at the relevant point of time. Considering the

peculiar facts of the case, we are of the view tha