Gujarat High Court
State Of Gujarat vs Hasmukhbhai Mohanbhai ... on 29 April, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
R/CR.A/338/1997 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 338 of 1997
With
CRIMINAL APPEAL NO. 339 of 1997
With
CRIMINAL APPEAL NO. 217 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
HASMUKHBHAI MOHANBHAI PATEL....Opponent(s)/Respondent(s)
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Appearance:
MS.JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR ADIL MEHTA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
Page 1 of 9
R/CR.A/338/1997 JUDGMENT
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 29/04/2015
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. All these appeals arise out of the judgment of the learned Additional Sessions Judge, Valsad, in Sessions Case No.18 of 1996. The accused was charged with offence punishable under Section 323, 504, 506(2) and 302 of the Indian Penal Code and Section 3(1)(x) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. By the common judgment, the trial Court convicted him for offence punishable under Section 304 PartII and sentenced to rigorous imprisonment of five years. For offence under Section 323, he was sentenced to rigorous imprisonment for three months. Fines were also imposed.
2. Briefly stated, the prosecution version was that one Kalubhai Pirabhai and his other family members were engaged in the labour work of sugarcane cutting at Bardoli Sugar factory. At the time of incident which took place on 21.05.1996, he was residing in the temporary huts. At about 1'O clock in the afternoon, Page 2 of 9 R/CR.A/338/1997 JUDGMENT the accused came to his hut in a temporary camp and asked him to cut his sugarcane. Kalubhai refused as it was a holiday. The accused got angry and beat up Kalubhai and other family members including giving one blow on head of Kalubhai's daughter Nakuben with a stick. They all thereupon went to the sugarcane field. Nakuben felt uneasy and, therefore, she was brought back to the camp where she died.
3. PW2, Kalubhai Pirabhai, Exh.14 was the first informant and an eyewitness. He deposed that in connection with the sugarcane cutting labour work, he was residing in a hut in the camp. On the date of the incident, accused came to his hut and asked him to cut the sugarcane. He refused saying it was a holiday. Accused got angry, took out a stick and hit him on the leg. His colabourer Manchharam came alongwith his wife, they were also beaten. Soon his wife and daughter came. Accused beat them up also. He gave a stick blow on the head of his daughter Nakuben. They all thereupon went to the sugarcane field. There Nakuben's health deteriorated. She was brought back to the camp where she died. They all first went to the hospital, took the treatment and then lodged the Page 3 of 9 R/CR.A/338/1997 JUDGMENT FIR.
In the crossexamination, he admitted that none of the blows given to the accused caused bleeding. His daughter was suffering from fever for which she was being treated. He had also taken his daughter for the treatment of jaundice to a hospital at Silvassa.
4. This witness had lodged FIR which is produced at Exh.15 in which he gave similar version. There were other eyewitnesses such as Baijabhai Kalubhai, PW5, Exh.20, Savabai Manchharam, PW6, Exh.21, Jibhav Rajaram, PW7, Exh.22, who gave similar version of the incident. It is not necessary to refer to testimony of these witnesses at any length since we are convinced about the involvement of the accused of giving stick blows to the deceased and other family members. Some of the eyewitness before the Court could not identify the accused, would not mean that he was not involved. We must realize that these witnesses were from interior region of State of Maharashtra. They had come temporarily for labour work. Their language was entirely different, which required the Court to take the help of interpreters. Their slow reaction before the Court or hesitation in expressing themselves could Page 4 of 9 R/CR.A/338/1997 JUDGMENT not be misinterpreted as unreliability of their testimony.
5. The short but crucial question is, which offence would the accused be convicted for. The trial Court convicted him for offences under Section 304 PartII of the Indian Penal Code. The State urges that the conviction should be under Section 302 of Indian Penal Code. The counsel for the accused would however argue that the conviction under Section 304 PartII itself was not justifiable. Answer to these questions must be gathered from medical evidence and the evidence of other eyewitness. In this context, we may refer to the deposition of Doctor Arvindbhai Gohil, PW8, Exh.24. He had examined injured Kalubhai and Manchharam, noted injuries caused by hard blunt substance. He had also carried out the postmortem of the deceased. In the postmortem note, Exh.27, he had recorded following external injuries:
1. Constiusion Rt. side of Neck just below Rt.
ear 7 cm x 2 cm Reddish brown.
2. Constiusion just below Rt. costal margin about 15 cm x 2 cm. Reddish brown.
3. Haematoma over scalp with contusion over Rt. tamporo parietal region. 7 cm x 5 cm, Page 5 of 9 R/CR.A/338/1997 JUDGMENT app.
Corresponding to such injuries, he noted following internal injuries;
Scalp Haematoma over Rt.temporo partiteal region with contusion 7 cm x 5 cm No evidence of fracture.
Subdural Haematoma over Rt. parietal surface of brain acbp 75 gm. clothed blood. diffuse carebral oetema.
6. According to him, the cause of death was Intracranial Hemorrhage.
7. This medical evidence when read with the eyewitness accounts would confirm that the accused gave one blow to the deceased on her head with a hard blunt substance like a stick. The fact that blow would not have been given with much force can be gathered from various circumstances. Firstly, this very accused gave blows to other persons causing no serious injuries to any of them. None of the injured including the deceased were bleeding on account of such blows. Secondly, Nakuben even after the assault, went alongwith other family members and Page 6 of 9 R/CR.A/338/1997 JUDGMENT labourers for cutting the sugarcane, clearly indicating that the effect of blow atleast immediately was not so severe as to render her completely incapable of any movement. Thirdly, even as per the postmortem report, there was no skull fracture or extensive internal injuries to the brain. The death was caused on account of brain hemorrhage.
8. Section 299 of the Indian Penal Code defines the offence of culpable homicide as one who causes death by doing any death with an intention of causing death or with an intention to cause any bodily injury as is likely to cause death or with a knowledge that he is likely to cause death. Section 304 prescribes punishment for the offences of culpable homicide not amounting to murder and as is well known worded in two parts. PartII of Section 304 prescribes punishment of imprisonment of either description for a term which may extend to 10 years or with fine if the act is done with a 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. In the present case one cannot attribute either intention or even knowledge on part of the accused to commit such Page 7 of 9 R/CR.A/338/1997 JUDGMENT an act which would cause an injury likely to cause death. As noted, though he did give one blow to Nakuben on head, apparently the blow was not given with any great force and thus, he cannot be attributed the knowledge that the injury was likely to cause death. His conviction therefore, under Section 304 PartII was not justified. He could and should have been convicted for the offence under Section 325 for causing grievous injury with a hard blunt substance. His conviction under Section 323 of the Indian Penal Code would remain unchanged. His jail record suggests that during the trial he remained in jail for over nine months. Considering such period already spent and considering the fact that nearly 20 years have passed since the incident, we award the sentence for offences under Section 325 as already undergone.
9. In the result, Criminal Appeal No.217 of 1997 filed by the accused is allowed in part. His conviction for offences under section 304 PartII is set aside. He is instead convicted for the offence under section 325 of the Indian Penal Code. His sentence is reduced to one already undergone. His conviction and sentence for the offence under section Page 8 of 9 R/CR.A/338/1997 JUDGMENT 323 is maintained. Direction for payment of fine remains unaltered. Criminal Appeal No.217 of 1997 is disposed of accordingly.
10. State Appeals being Criminal Appeal No.338 of 1997 and 339 of 1997 are consequently dismissed. R & P may be transmitted to concerned trial Court.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) ANKIT Page 9 of 9