Dineshbhai Bhikhabhai Bamcha vs State of Gujarat

Anant S. Dave, J.—This appeal is filed by the appellant challenging the impugned judgment and order of conviction and sentence passed by learned Additional Sessions Judge, Fast Track Court, Patan in Sessions Case No. 635 of 2002 convicting the appellant for the offences punishable u/s 302 and 506 of the Indian Penal Code and sentencing him to undergo imprisonment for life and fine of Rs. 10,000/-, in default to undergo S.I. for six months and further sentencing the appellant to undergo R.I. for 21/2 years and fine of Rs. 1,000/-, in default to undergo S.I. for six months. It was ordered that both the sentences shall run concurrently.

As per the prosecution case, complaint dated 05.06.2002 (Exh.54) was lodged stating that on 04.06.2002 at around 03.00 p.m. wife of the complainant Sitaben had gone to fetch water from public tap and had verbal altercation with Urmilaben, wife of Dineshbhai Bamcha-accused No. 1 herein. The above incident was reported by Sitaben at around 08.00 to 08.30 p.m. when the complainant returned to his residence and, after finishing dinner, the complainant told accused Dineshbhi that it was not proper to quarrel being a neighbour. All of a sudden, Dineshbhai accused No. 1, started abusing the complainant and even Urmilaben wife of accused No. 1, also abused Dineshbhai and suddenly Dineshbhai took out a knife and inflicted a blow on left side of the chest and upon shouting, younger brother of accused No. 1 Deepak Chandulal also came to the spot and inflicted fist and kick blows. At that time, Sitaben, wife of the deceased, and Sonalben, daughter of the deceased and other persons from the street tried to intervene and the complainant became unconscious. However, the complainant once again was threatened by the accused and administered threats to life. Later on, the injured complainant was shifted to Government Hospital, Patan, by his wife, daughter and other neighbours and considering the nature of injury, the complainant was advised to be shifted to Civil Hospital, Ahmedabad. However, wife of the complainant thought it fit to admit the complainant in the hospital of Dr. Raval at Patan. A minor operation was done by Dr. Raval, and due to heavy internal bleeding, ultimately the complainant succumbed to injuries.

The above complaint was recorded at private hospital of Dr. Raval by Head Constable Shri Bhikhabhai-PW 10 (Exh.43) and initially offences under Sections 323, 504, 506(2) and 34 were registered at City Police Station, Patan and later on since the complainant succumbed to injuries, Section 302 of IPC came to be added. The body of the deceased was removed to Civil Hospital, Patan and inquest panchnama (Exh.32) was drawn; Sitaben, PW 7 wife of complainant showed the scene of offence and panchnama of scene of offence (Exh.41) was drawn; muddamal articles, including clothes of the deceased, were taken into custody and panchnama (Exh.44) was drawn; the knife which was used in commission of the offence was also discovered by panchnama (Exh.39); all the articles were sent to FSL and upon receipt of report (Exh.68) and serological report (Exh.69), charge sheet came to be filed; and the case came to be committed u/s 209 of the Code to the Sessions Court. The learned Additional Sessions Judge, Fast Track Court, Patan, examined the following witnesses:

PW 1 Dr. Vinodrai Dhirajlal Raval Exh.16

PW 2 Dr. Jashwantbhai Revabhai Exh.20

PW 3 Dr. Bhagwatiprasad R. Patel Exh.25

PW 4 Ayubkhan Sardarkhan Nagori Exh.31

PW 5 Kanubhai Ambalal Modi Exh.33

PW 6 Babubhai Ambalal Modi Exh.40

PW 7 Sitaben Dhiruji Thakore Exh.50

PW 8 Sonalben Dhiruji Thakore Exh.51

PW 10 Bhikhabhai Manabhai Parmar Exh.53

PW 11 Bhavarsinh Kayamchand Rathod Exh.55

PW 12 Mahadevbhai Mewabhai Rabari Exh.61

PW 13 Ramsehchandra Baliram Patil Exh.65

The following documentary evidence was also produced and proved:

Exh.54 Complaint lodged by deceased-Dhirubhai

Exh.18 Case papers of deceased issued by

Dr. V.D. Raval

Exh.32 Inquest Panchnama

Exh.27 Postmortem notes

Exh.41 Panchnama of Scene of Office

Exh.68 FSL Report

Exh.69 Serology Report

Learned Sessions Judge, after appreciating the oral and documentary evidence, found that a case was made out in favour of the prosecution and against the accused for the offence u/s 300 of IPC and he ordered sentence of life imprisonment against accused No. 1 and gave benefit of doubt to accused Nos. 2 and 3.

The appeal is restricted by Ms. Sadhna Sagar, learned Counsel for the appellant, to convert the conviction to offence u/s 304 of IPC from Section 302 of IPC and requested to reduce the sentence on the grounds that the incident narrated by the complainant reveals sudden quarrel between the victim and his relatives and the accused and his relatives and the deceased had inflicted a single blow since the accused was incited by the victim and that the deceased had no intention to kill the deceased. She submits that, even as per the version of Sitaben (Exh.50), wife of the deceased, and Sonalben (Exh.51), daughter of deceased, had there been proper medical treatment administered to the deceased, as advised by the Medical Officer of the Government Hospital, Patan to immediately shift the injured complainant to Civil Hospital, Ahmedabad, the complainant could have survived the injury and due to negligence on the part of the wife of the deceased, the complainant died. She further submits that in view of the above facts and circumstances, a case is made out to convict the appellant u/s 304 IPC.

Mr. Shivang Shukla, learned Additional Public Prosecutor, appearing for the respondent-State vehemently submitted that conclusions of learned Sessions Judge, based on appreciation of oral as well as documentary evidence, do not leave any room for this Court to modify or convert the sentence u/s 302 - 304 Part-I or Part-II of IPC. He further submits that though the appellant had inflicted a single blow, considering the nature of injury on the vital part i.e. between 7th and 8th rib in the cage of chest of the deceased, which was sufficient in ordinary course to cause death and the intention to kill, the judgment of learned Sessions Judge does not require any interference by this Court.

Having heard learned Counsel for the parties and on perusal of the material on record, we are of the opinion that the prosecution has not established beyond reasonable doubt the necessary facts to bring its case within the definition of murder u/s 300 of IPC.

The testimonies of Sitaben (PW 7), wife of the deceased, and Sonalben (PW 8), daughter of the deceased, though establish the offence of culpable homicide, they failed to elicit intention on the part of the appellant to kill the deceased. They have deposed that Dhirubhai- deceased had told them that he would reprimand the appellant and quarrel had taken place between the complainant and the deceased. Sitaben (PW-7) has failed to explain as to how cover of the knife had come into her possession, when the knife was alleged to have been wielded, and a single blow was inflicted by the accused person. Even panchnama of scene of offence Exh.41 did not mention about blood on the `charpoy'' on which deceased-Dhirubhai was stabbed. No evidence is brought on record to indicate any motive for committing murder. At the same time, when Dhirubhai went to the accused to reprimand him pursuant to the quarrel which had taken place in the afternoon for fetching water from the public tap, heated exchange of words had taken place and due to sudden and grave provocation, the accused could have inflicted a blow without intention to kill. Though, it was advised by the in-charge Medical Officer of the Government Hospital, Patan, Sitaben (PW 7) wife of the deceased did not shift Dhirubhai to Civil Hospital, Ahmedabad where advanced medical treatment was available which could have saved life of her husband. Sonalben (PW 8) daughter of the deceased, aged about 15 years, clearly stated in her cross-examination that her father was lying on a `charpoy'' and the quarrel took place at the instance of his father. Not only that but heated exchange of words and abuses continued for about 10 minutes and even scuffle took place between the accused person and her father. The above version of Sonalben (PW 8) establishes verbal abuses, heated exchange of words and scuffle between the accused persons and the deceased for about 10 minutes. Therefore, though knife was alleged to have been brought by the accused person, it cannot be said that he had intention to kill the deceased by inflicting a single blow of knife in the chest, where wound measured at 4x0.5 cms. Considering the above aspects, we are of the opinion that learned Judge has committed an error in appreciating the evidence and convicting the appellant u/s 302 instead of u/s 304 of IPC.

In the facts and for the reasons discussed hereinabove, the appeal is partly allowed and the conviction of the appellant is converted from the offence punishable u/s 302 to conviction u/s 304 of IPC and accordingly sentence of imprisonment for life is reduced to R.I. for 10 years. The impugned judgment stands modified and the order of sentence stands substituted to the aforesaid extent. The appeal stands disposed accordingly.