Gujarat High Court
Jadeja Radhusinh @ Madhuji Rajubha vs State Of on 29 July, 2013
Author: Akil Kureshi
Bench: Akil Kureshi
JADEJA RADHUSINH @ MADHUJI RAJUBHA....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/2111/2009 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 2111 of 2009 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ JADEJA RADHUSINH @ MADHUJI RAJUBHA....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: MR DASHRATH CHAUHAN, ADVOCATE for the Appellant(s) No. 1 MR HL JANI, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 29/07/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) This appeal is filed by the original accused no.2, who was convicted by the learned Additional Sessions Judge, Mehsana in Sessions Case No.44/2009 for offences punishable under sections 302, 504, 506(2) of IPC. He was sentenced to imprisonment for life for offence punishable under section 302 of IPC. For other offences, lesser sentences to run concurrently were awarded.
There were originally three accused. The other two accused were however, acquitted. The prosecution version was that the accused no.1 Vajesingh, brother of the present appellant had developed friendly relations with the wife of one Ashok i.e. son of the complainant. Deceased Bharatbhai was the brother of Ashok. Due to such relations Bharat and others had heated exchanges of words with the accused and their family members. On the date of incident i.e. on 3.1.2009 at about 8:30 at night, three accused had come to the house of the complainant and called out Bharat. When Bharat came out present appellant accused no.2 gave one stick blow to him on his head. Thereupon, he fell down bleeding from the head. Thereupon the crowd gathered. All the accused thereafter, left the place.
As noted learned Sessions Judge acquitted the other two accused but convicted the present appellant for offences punishable under sections 302, 504, 506(2) of the IPC.
Learned counsel Shri Balvantsinh Solanki for the appellant stated under instructions that insofar as finding of guilt against the present appellant is concerned, he is not disputing the same looking to the entire evidence on record and in particular, eyewitnesses account. He however, submitted that the conviction was erroneously recorded by learned Judge under section 302 of the IPC and instead pleaded that same be converted into a lesser offence of section 304 Part-I or Part-II of the IPC. He therefore, prayed for reduction of the sentence.
Learned APP Shri Jani pointed out that there was sufficient evidence on record against the appellant of his clear involvement in the alleged incident.
In view of the clear concession given by the counsel for the appellant, we do not find it necessary to record in detail the evidence of the prosecution and assess the same to ascertain whether involvement of the present appellant was rightly believed. That being the foregone conclusion, the sole question that survives for our consideration is whether the conviction under section 302 of IPC was justified or what was made out was a lesser offence punishable under section 304 of IPC. In this context, we may briefly refer to the eyewitness account.
Counsel for the appellant provided all the material depositions and documents. Filing of the paper book is therefore dispensed with.
Complainant-Chaganbhai Manilal Rawal, PW-1, exh.13, had deposed that due to the over friendly relations developed by Vajesing with the wife of Ashok, he was stopped from coming for labour work. This had led to some quarrels. On the night of the incident at about 8:15 when they were having their meals, the accused came to their house and called out Bharat. When Bharat came out, Madhuji, present appellant gave a stick blow on his head upon which he fell down on the ground bleeding. The three accused thereupon ran away towards their house. The other people came and took Bharat to the hospital in an ambulance. He was treated at different hospitals and ultimately died on 14.1.2009.
Similar version has also been given by PW-2 (exh.14) and PW-3(exh.18).
From the above witnesses, it emerges clearly that the accused no.2 present appellant had given one stick blow to the deceased. There were no other injuries caused, nor any other weapons used by any accused. They had quickly ran away after Bharat fell down due to the blow. The injured survived for nearly 12 days after the incident.
Section 299 of the IPC defines the term culpable homicide as under :
299.
Culpable homicide Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 300 defines the term murder and provides that except in the cases thereafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death. Section 302 as is widely known provides for punishment for offence of murder. Section 304 prescribed punishment for culpable homicide not amounting to murder and reads as under :
304.
Punishment for culpable homicide not amounting to murder Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
From sections 299 and 300 of the IPC, the prime difference between the offence of murder and culpable homicide not amounting to murder is the degree of intention or the knowledge as the case may be. Under section 300, the act of culpable homicide would be murder if it is done with the intention of causing death, whereas the act which is done with the intention of causing bodily injury as is likely to cause death or with the knowledge that the person is likely to cause death falls under the category of culpable homicide. In the present case, looking to the nature of injuries caused, the fact that only one blow was given, that though three persons allegedly had come only one person gave the blow, that the injury did not cause instantaneous death and that the injured survived for nearly 12 days, all are indications to suggest that the act was not done with the intention of causing death. If that was the intention, noting prevented the accused from giving more blows and/or using other weapons. Considering the facts and circumstances of the case, we are of the view that case clearly fell in the first part of section 304 of IPC.
In case of Pappu v.
State of Mahdya Pradesh reported in AIR 2006 Supreme Court 2659, where only one blow was given, the Court observed that merely because one blow is used, section 300 cannot be ruled out and that would depend upon the weapon used, the size of the weapon, force with which blow is given etc. In the said case, conviction was recorded under section 304 Part-II instead of section 302 of IPC. We are informed that the accused was young boy aged about 22 years on the date of the incident. He has no criminal antecedents.
Considering the facts and circumstances of the case, the appeal is allowed in part. The conviction of the appellant is converted from that under section 302 of IPC to section 304 Part-I of the IPC. Sentence for such offence is reduced to 10 years rigorous imprisonment. Rest of the conviction and sentence for other offences is upheld. All the sentences shall run concurrently. Appeal is disposed of accordingly.
R and P be sent back to the trial Court.
(AKIL KURESHI, J.) (R.P.DHOLARIA,J.) raghu Page 7 of 7