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Judgment
H.B. Antani, J.—By filing the instant appeal u/s 374[2] of Code of Criminal Procedure, 1973 [hereafter referred to as ''the Code''], the appellants have challenged the judgment and order dated 31.3.2003 passed by the Additional Sessions Judge, [Fast Track Court], Himmatnagar, in Sessions Case No. 48 of 2002, by which the learned Judge convicted both the appellants u/s 302 read with Section 34 of IPC with life imprisonment and a fine of Rs. 2000/- each, in default, simple imprisonment for one year, and convicted appellant No. 1 for the offence punishable u/s 324 of IPC with rigorous imprisonment for two years and fine of Rs. 500/-, in default, simple imprisonment for three months.
The short facts giving rise to the present appeal are stated herein below.
As per the prosecution case, the incident in question took place on 29.12.2001 at about 8.00 p.m. in the evening. The appellants along with other accused, armed with deadly weapons, assaulted deceased Manguben Vaksibhai on her head and other vital part of the body and thereby committed the offence punishable u/s 302 read with Section 34 of IPC. The appellant No. 1 was armed with axe, while the appellant No. 2 was armed with stick. The appellant No. 2 attacked the deceased with stick and thereby aided and abetted the appellant No. 1 and other accused in committing the assault on the deceased Manguben. Thus, the appellant No. 2 committed the offence punishable u/s 324 read with Section 337 of IPC. Kishorbhai Vaksibhai Sadat gave a complaint to Bhiloda Police Station on 30.12.2001, wherein, he narrated the incident in an exhaustive manner as to how the assault was committed on deceased Manguben. On the strength of the complaint given by Kishorbhai, the Investigating Officer visited the place of incident and prepared panchnama in the presence of panch witnesses. The injured who sustained injuries were sent to the hospital for immediate treatment. The dead body of Manguben was sent to the hospital with a view to have post-mortem. The inquest panchnama of the deceased was also prepared in the presence of panch witnesses and the panchnama of the clothes put on by the deceased was prepared by the Investigating Officer. The Investigating Officer arrested the appellants and other accused who were involved in the commission of the offence. Muddamal which was recovered from the place of the incident was sent to Forensic Science Laboratory for the purpose of detailed analysis. After receiving the injury certificate, the post-mortem report as well as the report from the FSL, the appellants were charge-sheeted and produced before the Judicial Magistrate First Class at Bhiloda. The learned Magistrate committed the case to the Sessions Court u/s 209 of the Code as the case was exclusively triable by the Sessions Court.
The learned Sessions Judge framed the charge against the accused vide Exh.6 and they pleaded not guilty to the charge levelled against them. Therefore, the matter was set down for full-fledged trial before the learned Sessions Judge.
The prosecution has examined the following witnesses in order to prove the involvement of the appellants in commission of the offence. They are as under:
--------------------------------------------------------------------------- P.W. No. Name Exh. --------------------------------------------------------------------------- 1 Kishorbhai Vaksibhai Sadat 19 --------------------------------------------------------------------------- 2 Ramjibhai Surjibhai Sadat 21 --------------------------------------------------------------------------- 3 Vasuben Rupabhai Galabhai 22 --------------------------------------------------------------------------- 4 Dr. Samir Patel 23 --------------------------------------------------------------------------- 5 Galbabhai Sankabhai 34 --------------------------------------------------------------------------- 6 Mahendrasinh Zala 36 --------------------------------------------------------------------------- 7 Ratnaji Dhulaji 41 --------------------------------------------------------------------------- 8 Prabhuji Kanaji Pandor 44 --------------------------------------------------------------------------- 9 Head Constable and PSO Ramanbhai Patel 45 --------------------------------------------------------------------------- 10 PSI Dilipsinh Jadeja 46 ---------------------------------------------------------------------------
The prosecution has produced the following documentary evidence in order to establish the guilt of the appellants in commission of the offence. They are as under:
--------------------------------------------------------------------------- Sr.No Nature of documentary evidence Exh --------------------------------------------------------------------------- 1. Complaint given by Kishorbhai Vaksibhai 20 --------------------------------------------------------------------------- 2. Injury certificate issued to Kishorbhai 24 --------------------------------------------------------------------------- 3. Case papers regarding the injuries sustained 25 by Kishorbhai --------------------------------------------------------------------------- 4. Injury certificate issued to Ramjibhai 26 --------------------------------------------------------------------------- 5. Case papers regarding injuries sustained 27 by Ramjibhai --------------------------------------------------------------------------- 6. Yadi sent to the FSL for the purpose of 28 carrying out autopsy of deceased Manguben --------------------------------------------------------------------------- 7. Post-mortem report of the deceased 29 --------------------------------------------------------------------------- 8. Case papers regarding injuries sustained 30 by Manguben --------------------------------------------------------------------------- 9. Yadi sent to the Hospital to treat the 31 injured --------------------------------------------------------------------------- 10. The certificate with regard to cause of 32 death of deceased --------------------------------------------------------------------------- 11. The inquest panchnama of deceased 33 --------------------------------------------------------------------------- 12. The panchnama with regard to seizure of 35 clothes put on by the deceased --------------------------------------------------------------------------- 13. The Note which was sent to the FSL for 37 the purpose of detailed analysis of the muddamal --------------------------------------------------------------------------- 14. The letter received by FSL 38 --------------------------------------------------------------------------- 15. The report of the FSL 39 --------------------------------------------------------------------------- 16. Panchnama of the scene of offence 42 --------------------------------------------------------------------------- 17. The panchnama of the person of the 43 appellants ---------------------------------------------------------------------------
Learned Additional Sessions Judge, at the conclusion of the trial, recorded further statement of the appellants u/s 313 of the Code. The appellants pleaded before the learned Additional Sessions Judge that they were falsely implicated in the commission of offence and false case was foisted on them.
The learned Additional Sessions Judge, on the strength of the evidence adduced by the prosecution held that the incident in question took place on 29.12.2001 in village Vejpur at about 8.00 O''Clock. The appellants were armed with deadly weapons and abused Manguben and committed deadly assault on her. The deceased was abused by the appellants as the appellants had the apprehension that Manguben was a witch and therefore, they got rid of her. The appellants also caused injury to the complainant as well as one witness Ramjibhai on the head. Other accused used sticks and pelted stones on Manguben and other injured witnesses. The learned Judge held that the prosecution, on the basis of the oral depositions given by Kishorbhai and other witnesses, proved inextricable involvement of the appellants in the commission of offence and convicted the appellants for the offence punishable u/s 302 read with Section 34 as well as Section 324 read with Section 114 of IPC. The learned Judge further held that, on the basis of the oral depositions and documentary evidence, the prosecution has established the entire link connecting the appellants with the commission of the offence in cogent and conclusive manner and therefore, he convicted the appellants for the offences as stated above.
Learned advocate Ms. Shilpa R.Shah submitted that the charge against the appellants was framed vide Exh.6 for the offences punishable under Sections 302 and 324 as well as Section 337 read with Section 114 of IPC. The prosecution examined as many as 10 witnesses and produced documentary evidence in order to bring home the guilt against the appellants. The learned advocate submitted that the quarrel ensued between two parties, as a result of which, both the parties sustained injuries. The learned Judge ought to have taken into consideration the aforesaid aspect while awarding sentence to the appellants under Sections 302 and 324 as well as Section 337 read with Section 114 of IPC. The learned advocate submitted that there was no intention on the part of the appellants in committing the murder of Manguben in a scuffle which took place between both the sides. The learned advocate placed reliance on the exception carved out from Section 300 of IPC and submitted that the case of the appellants would fall under Exception No. 4 of Section 300 of IPC which reads as under:
Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Thus, fight took place between the two groups in the heat of a moment and on a provocation given by the other side, the appellants caused injuries to deceased Manguben and other persons, and, therefore, the case of the appellants would fall under Exception No. 4 of Section 300 of IPC. The learned advocate submitted that considering the provision contained in Section 304 of IPC, the act of the appellants was done without any intention of causing death and therefore, the case would fall u/s 304 Part II and the punishment as prescribed under Part-II of Section 304 is imprisonment of either description for a term which may extend 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. The learned advocate submitted that the learned Sessions Judge has not appreciated the entire gamut of oral depositions and documentary evidence in its true perspective while awarding sentence on the appellants. Therefore, the leanred advocate urged this Court to modify/alter the sentence from Section 302 of IPC to one under Part-II of Section 304 of IPC. Save and except the aforesaid contention with regard to modification of the sentence, no other contention is raised by the learned advocate representing the appellants. In fact, the learned advocate for the appellants submitted that there is no dispute about the involvement of the appellants in the commission of offence as well as the incident which took place on 29.12.2001. It was, therefore, submitted that considering the overall evidence on record of the case, sentence be modified on the appellant No. 1 from Section 302 - 304 Part-II of IPC, while the sentence of appellant No. 2 who is imposed rigorous imprisonment for two years and fine of Rs. 500/- should be considered as sufficient punishment imposed on him and appropriate order in that regard be passed.
Learned APP Mr. L.R. Pujari submitted that the prosecution has examined 10 witnesses and produced documentary evidence in order to prove the inextricable involvement of the appellants in the commission of offence. By adducing oral depositions, the prosecution has proved the entire link connecting the appellants with the commission of offence. The documentary evidence relied upon by the prosecution further corroborates the oral depositions and thus, the prosecution has proved the case against the appellants beyond all reasonable doubts. The learned APP submitted that the trial court has considered the entire evidence in its true perspective while awarding sentence on both the appellants, there is no reason to interfere with the order passed by the learned Sessions Judge awarding sentence to both the appellants and the order passed by the learned Judge requires to be confirmed and the appeal deserves to be dismissed.
We have heard the learned advocate Ms. Shilpa R. Shah for the appellants and learned APP Mr. L.R. Pujari for the respondent-State at length and in great detail. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record of the case with reference to broad and reasonable probabilities of the case.
On re-appreciation and re-evaluation of the entire evidence on record of the case, it is clear that the incident in question took place on 29.12.2001 at about 20.00 hrs at village Vejpur, Bhiloda Taluka in Sabarkantha District. The appellants, who were armed with deadly weapons assaulted Manguben and other witnesses and abused Manguben, as a result of which, she sustained injuries and succumbed to the injuries. P.W.1-Kishorbhai Vaksibhai has deposed in his testimony at Exh.19 that there was a dispute with the appellants in the past and a complaint was filed in Bhiloda Court. Likewise, Ramjibhai Surjibhai-P.W.2 has deposed in his testimony at Exh.21, reiterating that in past there was a dispute between both the sides and complaint was filed in Bhiloda Court. It is clear from the depositions adduced by the prosecution and the documentary evidence produced in the present case that the appellants had assaulted Manguben and other witnesses and caused serious injuries to them. Further both the parties had enmity since long and they had filed complaint in Bhiloda Court. We are aware of the exception carved out in Section 300 of IPC as well as Section 304 which has been heavily relied on by the learned advocate appearing on behalf of the appellants. It has been strenuously contended by the learned advocate for the appellants that due to enmity in past, both sides had an altercation and criminal cases were filed in the past. As there was enmity between both the sides, the present appellants assaulted Manguben and other witnesses on 29.12.2001. There was no intention on the part of the appellants to cause fatal injuries to Manguben. The appellants and other side were involved in an altercation wherein there was no premeditation. Act of the appellants, in our view, was done in the heat of passion on sudden quarrel and, therefore, the ends of justice would be met if the appellants are punished for the offence u/s 304 Part II for a period of 10 years instead of life imprisonment u/s 302 of IPC.
In view of the aforesaid facts and circumstances of the case, the appeal is partly allowed and the judgment and order dated 31.3.2003, passed by the Additional Sessions Judge, [Fast Track Court], Himmatnagar, in Sessions Case No. 48 of 2002 is modified as under:
Sentence imposed on both the appellants u/s 302 read with Section 34 of IPC is altered to one u/s 304 Part II of IPC for a period of 10 years'' rigorous imprisonment and fine of Rs. 2,000/- each, in default, further simple imprisonment of 1 year. Sentence imposed u/s 324 of IPC upon the appellant No. 1 to undergo 2 years'' rigorous imprisonment and fine of Rs. 500/-, in default, 3 months'' simple imprisonment, is confirmed. Sentence imposed under both the Sections upon the appellant No. 1 shall run concurrently. Muddamal articles are to be disposed of in terms of the order passed by the learned Additional Sessions Judge [Fast Track Court], Himmatnagar. Appellant No. 2 is on bail. He shall have to surrender before the jail authority immediately to undergo remainder of the sentence.