Gujarat High Court
State Of Gujarat vs Manoj Khimji ... on 9 April, 2015
Bench: Akil Kureshi, Vipul M. Pancholi
R/CR.A/288/1997 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 288 of 1997
With
CRIMINAL APPEAL NO. 305 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 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 or any order made
thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
MANOJ KHIMJI OSHAVLAL....Opponent(s)/Respondent(s)
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Appearance:
MS CHETNA SHAH, APP for the Appellant(s) No. 1
MR PRATIK B BAROT, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 09/04/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) Page 1 of 8 R/CR.A/288/1997 JUDGMENT
1. Both these appeals are filed by the State challenging the judgment dated 06.01.1997 passed by the learned Sessions Judge, KutchBhuj in Sessions Case No.69 of 1994. The respondent accused was charged with offence punishable under Section 302 of IPC. By the impugned judgment, the learned Sessions Judge convicted him for offence u/s. 304 Part II and sentenced him to Rigorous Imprisonment of six years and find of Rs.500/ was also imposed. To challenge the acquittal of the accused for offence under Section 302, State has preferred Criminal Appeal No.305 of 1997 and for enhancement of sentence under Section 304 Part II awarded by the Sessions Court, the State has preferred Criminal Appeal No.288 of 1997. The accused has not preferred any appeal and would have presumably served out the sentence.
2. Briefly stated, the prosecution version was that on the date of the incident i.e. 14.05.1994, when Pethabhai Ambabhai was sleeping in the veranda of his house, at about 2:00 O'clock, the accused came to his house with an axe and gave one axe blow on his forehead and another axe blow on his wrist. His wife Santokben came screaming, upon which the accused left the axe there and ran away. The injured was first taken to the hospital at Bhachau, where after preliminary treatment, he was sent to Bhuj. Operations were performed for his head injury. However, on 6th January 1994 while still under treatment he died.
3. Insofar as the involvement of respondent accused in causing death of the deceased is concerned, there is little doubt in our minds. The prosecution had relied heavily on the eyewitness Page 2 of 8 R/CR.A/288/1997 JUDGMENT account of Santokben, wife of the deceased, P.W.2, Exh.13. She had witnessed the incident and seen the accused giving two blows. She was herself sitting nearby when her husband was sleeping and was attacked. The Executive Magistrate had also recorded the dying declaration on 14.05.1994 after the doctor at General Hospital, Bhuj, certified that he was able to give his statement. In such statement, he had disclosed that because of family reasons nearly 25 years back, the agriculture land was partitioned. He did not have relations with his brother's son who was also residing nearby since then. Since 10 years even they did not have talking terms. The accused is his nephew who was otherwise working at Mumbai and had come to the village since couple of months. Keeping the grudge for the past disputes in the family, he came in the afternoon with an axe and gave blows on the head and on the hand. In this declaration, the deceased referred to two blows on the head and two on the hand. The evidence, however, suggests that there was one blow each.
4. Such evidence was duly corroborated by the medical evidence of Doctor Nitin Virabhai, P.W.1, Exh.11, who had first treated the deceased at Bhachau Community Health Centre, Dr. Dipen Amrutlal Shah, P.W.12, Exh.35, the surgeon at General Hospital, Bhuj and Dr. Dilipkumar Keshavlal Thakkar, P.W.8, Exh.24, who had carried out the postmortem. All three doctors had recorded one head injury possibly by sharp side of an axe and one on the wrist of the left side also possibly by the same instrument. There was other evidence led further credence to the eyewitness account. However, it is not necessary to discuss such evidence in detailed primarily Page 3 of 8 R/CR.A/288/1997 JUDGMENT because there is no conviction appeal and secondly because we are fully satisfied with the finding of the trial Court that accused is involved in commission of the offence was perfectly justified.
5. The crucial question is of which offence it can be stated to have been committed and the sentencing. In this context, learned APP Ms. Chetna Shah relying on the decision of Supreme Court in the case of Som Raj alias Soma v. State of H.P., reported in AIR 2013 Supreme Court 1649, submitted that the accused had given a blow with an axe on the vital part of the body. The use of the force can be gathered from the corresponding damage on the head. Even if, therefore, this is a case of one blow on the vital part of the body, the accused cannot escape the liability under Section 302 of IPC.
6. On the other hand, learned counsel Shri Pratik Barot submitted that the accused was aged about 70 years at the time of incident. He survived nearly 25 days after the assault. Doctors' evidence would suggest that there was considerable delay in shifting him to the hospital first at Bhachau and thereafter at Bhuj. Even then he was responding well to the treatment and operations. Suddenly he died on 06.06.1994. The death, therefore, cannot be solely attributed to the injuries. Even the Doctor who had carried out the postmortem, therefore, did not give any such conclusive opinion.
7. Counsel further submitted that this was a case of single blow on vital part of the body. Though the accused had opportunity to Page 4 of 8 R/CR.A/288/1997 JUDGMENT given more blows, he did not do so. He was a young man of 22 years at the time of the incident. The incident is old one and he would have by now served out the sentence.
8. Counsel relied on following decisions.
1. In case of Sompal Singh & Anr. v. State of U.P., reported in 2014 Cri. L.J. 3143, in which the accused have used sharp edged weapon to cause injuries on the head. The Court came to the conclusion that the accused knew that death might ensue because of the assault. The Court confirmed the conviction under Section 304 Part I of IPC.
2. In the case of Gulshan & Others v. State of Punjab, reported in 1990(Supp) Supreme Court Cases 682, in which on the basis that the accused were young boys at the time of incident and that the incident was old one and further that the deceased died after 6 days of the injuries, the Court converted the conviction under Section 302 read with Section 34 into one under Section 304 Part I read with Section 34 and commuted the sentence to one already undergone, which we were told by the counsel, was approximately six years. The Court made following observations:
"3. On the facts stated above in our opinion offence under Section 302 could not be attributed to them. Therefore, conviction of the two appellants under Section 302 read with Section 34 could not be maintained. They could only be convicted for an offence under Section 304 Part I and Section 304 Part I read with Section 34. In the circumstances of the Page 5 of 8 R/CR.A/288/1997 JUDGMENT case, in our opinion, sentence normally would be that of seven years. But in the circumstances of this case and looking to the age of the appellants and the time that has elapsed after they were released on bail, in our opinion, sentence already undergone will meet the ends of justice."
9. Doctor Nitin Virabhai, P.W.1 had recorded one incised wound of 11cm x 4 cm on temporal region 1 cm above the eyebrow.
10. Doctor Dipen Amrutlal Shah had noted that the ventricle was severed. There was damage on the eyeballs and there was skull fracture. The patient was treated for the such purpose. This treatment was went up to 18.05.1994. When the condition of the patient improved, the operation was performed on 25.05.1994. Further treatment was given on 01.06.1994 for joint's dislocation of his jaws after which the condition of the patient was better. However, suddenly he died on 06.06.1994. Dr. Dilipkumar Keshavlal Thakkar, P.W.8, who had performed the postmortem agreed in the crossexamination that the patient died after 25 to 26 days of the incident. Due to this he was unable to give the precise opinion as to the cause of death. In his P.M. note Exh. 25, he had recorded the cause of death as infection of brain due to head injury.
11. The evidence on record, thus, suggest that the accused gave one blow on the head of the deceased with the sharp side of the axe causing serious head injury. Another blow was given on the wrist. The deceased survived for nearly 25 days. He was aged about 70 years. He died while still under treatment. According to the Page 6 of 8 R/CR.A/288/1997 JUDGMENT doctor, the cause of death was infection in the brain.
12. It is undoubtedly true that the accused used an instrument which could cause serious damage if used with required force. It is also true that the blow was given on the vital part of the body. However, it is also true that the accused had an opportunity to give more blows but he did not. Section 304 of IPC provides for punishment for culpable homicide not amounting to murder. Part I thereof provides that 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. In the present case, from the evidence, it can certainly be stated that the accused did cause such bodily injury which was likely to cause death. His conviction, therefore, would more appropriately beyond Part I of Section 304 and not Part II where the death is caused by an act which is done with the knowledge that he is likely to cause death but without intention to cause death or to cause such bodily injury as was likely to cause death. As observed by the Supreme Court in the case of Gulshan & Others (Supra), under such circumstances, sentence greater than six years may be warranted. The present one is the case involving the accused who was at the relevant time 22 years old. Incident is of 1994. More than 20 years have been passed since then. The accused who was awarded six years has already served out the sentence.
Page 7 of 8R/CR.A/288/1997 JUDGMENT
13. Under the circumstances, subject to above observations, both the appeals are dismissed. R & P be transmitted to the trial Court.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) Jani Page 8 of 8