Mahiji Bhai Chandubhai Nayak vs State of Gujarat

Bankim N. Mehta, J.—The appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, 1973 and challenged the judgment dated 27-11-1998 passed by the learned Sessions Judge, Panchamahals at Godhara in Sessions Case No. 108 of 1998 convicting him for the offence punishable u/s 302 of the I.P. Code and sentencing him to undergo life imprisonment and to pay fine of Rs. 200/-, in default thereof, to undergo rigorous imprisonment of six months.

In brief the prosecution case is that on 27-1-1998 at about 20-00 hours when deceased Govindbhai Melabhai was sitting at his house with his wife and children the accused came to his house and started giving abuses, as why he (Govindbhai) did not take accused''s nephew Virubhai Dhirubhai and took deceased''s nephew Parvat as driver and therefore said Govindbhai asked the accused not to abuse, thereupon the accused got angry and assaulted Govindbhai by inflicting knife blow on lower part of left side of his chest and therefore Govindbhai raised shouts. On hearing the shouts the wife of deceased Shantaben and others came at the place of incident and rescued Govindbhai from further beating and the accused went towards his house and Govindbhai went to the police station and lodged the complaint.

On the basis of this complaint Lodged by Govindbhai Melabhai offence was registered as I CR No. 26 of 1998 at Halol Police Station for the offencs punishable u/s 324 and 504 of the I.P. Code and the victim was sent to Halol Government Hospital for treatment and investigation was started. During the course of the investigation, statements of the witnesses were recorded, panchnama of scene of offence, panchnama of discovery of muddamal weapon and panchnama of recovery of clothes were drawn. The victim was treated at S.S.G. Hospital, Vadodara and he succumbed to his injuries on 31-1-1998 during the treatment. So, dead body was sent for postmortem examination. Therefore the offence of murder punishable u/s 302 of the I.P. Code was added and accused was arrested during the course of investigation.

On completion of the investigation, charge sheet was laid before the Judicial Magistrate, First Class, Halol for the offences punishable u/s 302 and 504 of the I.P. Code against the accused. As the offence was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Panchamahals at Godhara and it was registered as Sessions Case No. 108 of 1998. Learned Sessions Judge, Panchamahals at Godhara framed charge Exh.3 against the accused for the offences punishable u/s 302 and 504 of the I.P. Code and the same was read over and explained to the accused who pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence by prosecution the learned trial Judge explained to the accused the incriminating circumstances appearing against him in the evidence. The accused in his further statement recorded u/s 313 of the Cri. Procedure Code denied having committed the offence.

After hearing the learned A.P.P. for the State and the learned advocate for the accused, the learned trial Judge found the accused guilty for the offence punishable u/s 302 of the I.P. Code and convicted and sentenced him as mentioned hereinabove and acquitted him for the offence punishable u/s 504 of the I.P. Code. Therefore, the accused has challenged the said judgment in this appeal.

Mr. Kedar G. Dave, was appointed as an advocate to appear in this case and conduct the appeal on behalf of the appellant. Mr. Dave showed his readiness to conduct the matter today itself. With a view to enable him to go through the papers sometime was given to him and after perusing the papers Mr. Dave made oral submissions in support of the appeal.

We have heard the learned advocate Mr. Kedar G. Dave for the appellant and learned A.P.P. Mr. H.M. Prachchhak for the respondent State and perused the record and proceedings of the case.

Learned advocate Mr. Dave submitted that the learned trial Judge has erred in reaching to the conclusion that the appellant had an intention to inflict the injuries as the medical evidence do not support the prosecution case, and therefore, no conviction can be based on such evidence. He submitted that the evidence indicates that on account sudden fight the alleged offence was committed, and therefore, the appellant could not have been convicted for the offence of murder and at the most the appellant could be said to have committed the offence of culpable homicide not amounting to murder. He submitted that there was no intension or motive on the part of the appellant to commit murder of Govindbhai. He submitted that the witnesses examined are the relatives of the deceased and no independent witnesses are examined and hence the judgment and order of conviction is erroneous and illegal and the same is required to be set aside and the appeal is required to be allowed.

Learned A.P.P. Mr. H.M. Prachchhak appearing for the respondent State submitted that the evidence indicates that the injury was caused on the vital part of the body of the deceased which was sufficient in the ordinary of nature to cause death. He also submitted that the eye witnesses have given detailed account of the injury which is in conformity with the medical evidence. Therefore, the learned trial Judge was justified in recording conviction against the appellant for the offence punishable u/s 302 of the I.P. Code and therefore no interference is warranted in the judgment of the trial court and consequently the appeal requires to be dismissed.

It appears from evidence that Govindbhai Melabhai gave first information report Exh.28 about the commission of the offence on 28-1-1998 at about 1-45 O''clock before Halol Police Station alleging that the appellant came to his house on the previous evening giving abuses as complainant did not employ nephew of the appellant as a driver and instead employed his own nephew as a driver and as the deceased requested him not to give abuses, the appellant got angry and assaulted the deceased with knife on the lower part of left side of the chest. In view of this F.I.R. it is clear that according to the informant (complainant) the appellant had inflicted only one knife blow on lower part of left side chest.

The prosecution examined P.W. 2 Dr. Rakeshkumar Chhaganlal Champaneriya at Exh. 10 who had treated the victim immediately after incident. The witness deposed that on examination he had found the following two injuries on Govindbhai:

i. Stab wound on left lower chest 3 cms x 1 cms.

ii. I/w on left upper arm 6 cms. x 1/4 x 1/4 cms.

The witness further deposed that such injuries were possible by muddamal knife. There is no cross-examination with regard to the injuries. In view of this evidence, we are of the view that the deceased sustained injury by knife on lower part of left side chest and other injury on left forearm. Medical Certificate Exh.11 also indicates the injuries sustained by the deceased. In view of this evidence, it is clear that the deceased had sustained one stab injury on lower part of left side of the chest.

The prosecution also examined P.W. 7 Shantaben Govindbhai at Exh. 25 who is alleged to have witnessed the incident. The witness deposed that on the date of the incident she and her husband were sitting near the door of their house and at that time the accused came there giving abuses; therefore, her husband went outside of the house and inquired as to whom the accused was giving abuses. She further deposed that meanwhile, the accused took out the knife and assaulted her husband on lower part of left side of the chest. In the cross-examination, the witness deposed that it took about four hours to reach Halol and denied that her husband was in the habit of consuming liquor. Except this, there is no other cross-examination of the witness. Analysing the evidence of this witness it appears that when the witness with her husband Govindbhai was sitting at her house the appellant came there and started giving abuses to Govindbhai as he did not employ appellant''s nephew as a driver but employed his own nephew as driver and therefore Govindbhai asked the appellant not to give abuses which angered the appellant and he inflicted the injury to Govindbhai. This shows that the appellant had inflicted only one blow to Govindbhai below his chest. It also shows that on account of quarrel with Govindbhai the appellant inflicted the injury.

The prosecution also examined P.W. 8 Parvatbhai Mansukhbhai at Exh. 26. The witness has not specifically stated about his presence at the time of occurrence of incident. In the cross-examination the witness denied that at the time of incident P.W. 7 Shantaben was at his house and on account of shouts she came out and thereafter they rushed at the place of incident. He also denied that he reached at the place of incident after about 15 minutes after taking his meal. This evidence does not demonstrate that the witness was present at the time of actual occurrence but it indicates that only one blow was given to the deceased.

On conjoint reading of the depositions of these witnesses it appears that only one blow of knife was inflicted on lower part of left side chest of deceased Govindbhai.

The prosecution examined P.W. 6 Dr. Kishorbhai Pramodray Desai at Exh. 18 who had performed postmortem of dead body of Govindbhai. The witness deposed that he found the following injuries on the dead body.

i. SSW of 4 x 0.5 cms over anterior axillary line lt. side, lower part of chest and upper part of hypochondrium region slightly obliquely placed with upper end medially and lower end laterally placed. Margins are blackish brown edematous. Partially healing.

ii. SSW of 20 x 0.5 cms over abdomen midline from xiphoi proceeds upto 2.00 cms below umbiliary. Partially healing. Marginally edematous.

iii. SSW of 2 x 0.5 cms lower part lt. side frank - obliquely placed. Upper Med. end. Medially and lower end laterally placed. Partially healing. Marginally edematous.

iv. Irregular abrasion of 4 x 2 cms over mid. part of right forearm antaro laterally. Partially healing. Blackish brown in colour.

The witness deposed that internal injury was corresponding to external injury No. 1 on the stomach. The injuries were ante-mortem and were caused on vital part of the body and were possible by muddamal knife. In the cross-examination, the witness deposed that external injuries No. 2 and 3 were surgical wounds and injuries Nos. 1 and 4 were inflicted by the weapon. The witnesses denied that septicemia is possible on account of injury by throne or dust in the injury on account of fall. Except that there is no other cross-examination with regard to the injuries. P.M. Note Exh. 19 indicates that cause of death of deceased is due to septicemia following injury sustained over abdomen. In view of this evidence, it transpires that the deceased died on account of the injury caused on lower part of left side of chest by sharp edged weapon. Looking to the nature of the injury, in our view, it was on the vital part of the body and the death was homicidal in nature.

It appears from the evidence that deceased was at his house and the appellant came abusing the deceased as the deceased employed his own nephew instead of appellant''s nephew. It also appears from the evidence that the deceased requested the appellant not to abuse him and therefore the appellant got angry and inflicted knife blow. In view of this evidence, it becomes clear that there was quarrel between the deceased and the appellant and on account such quarrel the appellant lost power of self control and inflicted injury by knife on vital part of the deceased. It also appears that the offence was committed without premeditation in sudden fight and in heat of passion. However, in view of the fact that the sharp edged weapon was used in commission of the offence and knife blow was inflicted on the vital part of the body of the deceased, it cannot be said that the appellant had no knowledge of resultant effect of the knife blow inflicted to the deceased. It cannot be said that the appellant had caused the injury with the intention of causing bodily injury by which death is caused. Therefore, the case of the appellant would fall under exceptions 1 and 4 to Section 300 of the I.P. Code as the appellant did not take undue advantage or acted in a cruel manner. Under the circumstances, the learned trial Judge was not justified in recording conviction for the offence punishable u/s 302 of the I.P. Code. However, looking to the nature of injury it can not be said that the appellant had no knowledge that such injury was likely to cause death, but it can be said that the injury was caused without any intention to cause death of Govindbhai. Therefore, the conviction of the appellant is required to be converted into Section 304 Part-II of the I.P. Code form Section 302 of the I.P. Code.

It appears from the evidence that the appellant was arrested on 5-2-1998 and since then he is in the custody. In view of the fact that the conviction is converted from Section 302 of the I.P. Code to Section 304 Part-II of the i.P. Code, we have heard the learned advocate for the appellant on the point of sentence. Learned advocate for the appellant pointed out that the appellant belongs to poor strata of the society and he is the earning member in his family and he is in the jail since the date of his arrest and therefore the period undergone in the jail would be just and proper sentence for the offence punishable u/s 304 Part-II of the I.P. Code.

In view of what is stated above, the appellant was in jail through out the trial and he is in the jail since 5-2-1998, we deem it fit, just and proper to alter the conviction from Section 302 to Section 304 Part II of the I.P. Code and the appellant is sentenced to under rigorous imprisonment for the period already undergone by him. Therefore, the appeal deserves to be allowed in part.

For the foregoing reasons, the appeal is partly allowed and conviction of the appellant recorded by the judgment and order dated 27-11-1998 passed by the learned Sessions Judge, Panchmahals at Godhara in Sessions Case No. 108 of 1998 for the offence punishable u/s 302 of the I.P. Code is altered from Section 302 of the I.P. Code to Section 304 Part-II of the I.P. Code and is directed to undergo sentence of rigorous imprisonment for the period already undergone by the appellant.