Gujarat High Court
Raju @ Tako Sarvadaman Tank (Kadiya ... vs The State Of on 2 July, 2013
Author: Ks Jhaveri
Bench: Ks Jhaveri
RAJU @ TAKO SARVADAMAN TANK (KADIYA KUMBHAR),....Appellant(s)V/STHE STATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/1829/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1829 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 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 ? ================================================================ RAJU @ TAKO SARVADAMAN TANK (KADIYA KUMBHAR),....Appellant(s) Versus THE STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: MS SADHANA SAGAR, ADVOCATE for the Appellant(s) No. 1 MS CM SHAH APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER Date : 02/07/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. The present appellant has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 30.6.2006 passed by the learned 3rd Fast Track Judge, Junagadh in Atrocity Sessions Case No. 18/2005, whereby, the learned trial Judge has convicted the appellants under sec. 302 of IPC and sentenced to undergo R/I for life and to pay a fine of Rs. 2000/-, in default, to undergo further imprisonment for two months. He is also convicted under section 37(1) and 135 of the B.P. Act, and sentenced to undergo R/I for one year and to pay a fine of Rs. 500/-, in default, to undergo further S/I for one month. Both the sentences were ordered to run concurrently and the appellant was also given set-off, which is impugned in this appeal.
The case of the prosecution is that on 24.5.2005, at about 1.00noon, the appellant was standing with his auto rickshaw near Kamdar Society, at that time, when nephew of complainant deceased Kanjibhai Rajabhai along with witnesses PW-16 Jethva Vijay @ Jingo Amrutlal and Chudasama Dinesh Nathabhai were passing near the auto rickshaw, there was some altercation with PW-16 Jethva Vijay @ Jingo Amrutlal. Therefore, The appellant had given knife blow below navel in the abdomen of deceased Kanjibhai Rajabhai and thereafter the appellants ran away with his auto rickshaw from the place of offence. Thereafter, the complainant came there and taken his nephew Kanjibhai Rajabhai to the Government Hospital, at Junagadh, where doctor had declared him as dead. Thereafter the complaint was filed.
The appellant accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was laid against the present appellants. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Atrocity Sessions Case No. 18/2005.
2.3 Thereafter, the Sessions Court framed the charge below Exh. 1 against the appellant for commission of the offence under section 302 of IPC and under sec. 135 of the BP Act and under section 3(2)(5) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant
-accused has pleaded not guilty and claimed to be tried.
To prove the case against the present appellants, the prosecution has examined22 witnesses and has relied on about 21 documents.
Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.
4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 30.6.2006 held the present appellant- original accused guilty of the charge levelled against him under sec. 302 of IPC and under sec. 37(1) and 135 of the BP Act, convicted and sentenced the appellant-accused, as stated above.
We have heard learned advocate Ms. Sadhna Sagar for the present appellant and Ms CM Shah learned APP for the respondent-State.
6. Ms Sagar learned advocate appearing for the present appellants has fairly submitted that he could not claim clean acquittal or could not claim the benefit of doubt and tried to persuade the Court that conviction under section 302 of IPC may be modified and the present appellants may be convicted under sec. 304 Part-I of IPC.
The learned advocate for the present appellants has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellant deserves to be given the benefit of doubt and be acquitted. Ms. Sadhna Sagar learned advocate for the appellant has relied on the decision of the Apex Court reported in AIR 1993 SC 319 in the case of Dharam Singh and ors, v. State of Punjab and AIR 1993 SC 1469 in the case of Bhimappa Jinnapa Naganur vs. State of Karnataka. She has further relied on the decision of the Division Bench of Allahabad High Court reported in 2002 Cri.L.J. 3660 in the case of Ram Sewak and etc. vs. State of U.P. and contended that the motive was not proved. She has unsuccessfully tried to propound the theory of the witnesses as doubtful, and that the FIR was also suspicious.
On the other hand, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellants and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed. Learned APP has further contended that this is a case of brutal murder, and therefore, no leniency should be shown to the accused since the injuries are on the vital part of the body, hence, no interference is called for and the appeal deserves to be dismissed.
9. Having gone through the entire record, it would be relevant to refer to section 299 and section 300 of IPC, which reads 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.
300. Murder.-
Except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
xxx xxx xxx xxx
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 extent 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.
10. Having gone through the above provisions, we are unable to persuade ourselves that it is a clear case of acquittal and the reason for the same is that the complaint was given by the uncle of the deceased, and therefore, there is no question of mistaken identity. PW-5 Dilipbhai Tulsi Ex. 26 and PW-6 Vijay Amrutlal Ex. 28 have identified the accused. They have narrated the incident. From their evidence, it is proved that the accused was present at the place of the offence. He has been identified and knife has been recovered from him. The medical evidence corroborates the injury. PW-1 Dr. Baghabhai Mangabhai Dabhi Ex. 9 has in his chief-examination has stated that after examining the dead-body, has opined that death was due to injury by sharp edged weapon which has been recovered as per the recovery panchnama. The conclusion from the evidence of PW-5 Dilipbhai Tulsi Ex. 26 and PW-6 Vijay Amrutlal Ex. 28 with the evidence of PW-7 Mansukh Atmaram Ex. 29, the presence of the accused at the place of incident cannot be doubted. The gist of their evidence in chief-examination and cross-examination that the presence of the accused is proved and inflicting of knife blow is also proved. The injuries were caused as per the PM report. There as a stab wound of abdomen which was 3.25cm x 1 cm above penis and the cause of death was shock due to abdominal injury and due to profused bleeding. Thus, it is proved that the accused was present and had given knife blow.
11. However, looking to the injuries, time of the incident and looking to the fact that there was no motive. The nature of injury, the part of the body, weapon used, will permit us to hold that the offence does not fall under sec. 304 Part-II of IPC. The relevant consideration and on appreciation of the evidence, it is clear that the motive was absent and it cannot be said that he had no knowledge that it likely to cause death but as there was intention to cause death or there was no motive, the case would fall within the purview of section 304 Part-I of IPC.
12. In the recent decision of the Apex Court reported in AIR 2013 SC 1484 in the case of Bakshish Ram and anr. vs. State of Punjab, wherein, the Apex Court has held that the High Court should apply its independent mind and record its own finding by making independent assessment of evidence.
13. In view of the above discussion, there is no doubt left in our mind about the guilt of the appellants. However, at the same time, we feel that looking to the totality of the facts and circumstances under which the alleged incident occurred, though, the knowledge of the fact of inflicting knife blow on the body of the deceased could be attributed to the present appellant, the intention cannot be.
14. We are, therefore, inclined to accept the submission of the learned advocate for the appellant that, in the facts and circumstances of the case, at the most, Section 304 Part-I would be attracted and not Section 302 of IPC. Hence, the appeal deserves to be allowed partly.
15. In the result, appeal is allowed in part. The impugned judgment and order dated 30.6.2006 passed by the learned 3rd Fast Track Judge, Junagadh in Atrocity Sessions Case No. 18/2005 recording the conviction of the present appellant herein under Section 302 of the IPC is modified and the present appellant is convicted under Section 304 (Part-I) of the Indian Penal Code and is sentenced to undergo R/I for ten years. Fine imposed is unaltered under both the heads. Rest of the judgment and order of the trial Court stands confirmed. R & P to be sent back to the trial Court, forthwith.
A writ of this order be sent to the concerned Jail Authority, forthwith.
(K.S.JHAVERI, J.) (K.J.THAKER, J) mandora/ Page 11 of 11