Gujarat High CourtBegadiya vs State on 14 October, 2008Author:Bhagwati PrasadBench:Bhagwati PrasadGujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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CR.A/89719/1997	 14/ 14	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
APPEAL No. 897 of 1997
 

 
 
For
Approval and Signature:  
 
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD  
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
 
 
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1
		
		 
			 

Whether
			Reporters of Local Papers may be allowed to see the judgment ? No.
		
	

 
	  
	 
	  
		 
			 

2
		
		 
			 

To be
			referred to the Reporter or not ? No.
		
	

 
	  
	 
	  
		 
			 

3
		
		 
			 

Whether
			their Lordships wish to see the fair copy of the judgment ? No.
		
	

 
	  
	 
	  
		 
			 

4
		
		 
			 

Whether
			this case involves a substantial question of law as to the
			interpretation of the constitution of India, 1950 or any order
			made thereunder ? No.
		
	

 
	  
	 
	  
		 
			 

5
		
		 
			 

Whether
			it is to be circulated to the civil judge? No.
		
	

 

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BEGADIYA
SOMABHAI KALABHAI & 3 - Appellant(s)
 

Versus
 

STATE
OF GUJARAT - Opponent(s)
 

=========================================================
Appearance : 
MR
MC BAROT for Appellant(s) : 1 - 4. 
MS MEETA
PANCHAL for Opponent(s) :
1, 
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CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE BHAGWATI PRASAD
		
	
	 
		 
		 
			 

and
		
	
	 
		 
		 
			 

HONOURABLE
			MR.JUSTICE BANKIM.N.MEHTA
		
	

 

				Date
: 14/10/2008 

 

 
ORAL
JUDGMENT(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)1.	The
appellants   convicts  have challenged the judgment and order of
conviction and sentence  rendered on 30-8-1997 by learned Addl.
Sessions Judge, Banaskantha at Palanpur in Sessions Case No.45 of
1995  convicting the appellants for offences punishable u/ss. 302,
323, 324 read with Section 34 of the I.P. Code andu/s 135of the
Bombay Police Act and sentenced them to undergo different sentences.2.	It was
the prosecution case that on 4-11-1994 at about 15-00 hours in
furtherance of their common intention to commit murder of  Anada
Ratna, appellant Kala Kaala and Kaala Ratna committed  his murder and
appellant  Soma Kaala and appellant Vira Kaala caused injury with
stick having iron rings to  Nopabhai Ratnabhai and  Chandubhai
Bhemabhai and appellant Kala Kaala  and appellant  Kaala Ratna
abetted the accused  in commission of offence and thereby  committed
offences punishable u/s 302, 323, 324 and34of the I.P. Code andu/s
135of the Bombay Police Act.3.	On the
basis of the first information  report lodged by Nopabhai Ratnabhai
before Danta Police Station, offence was registered as I   CR No. 
107 of 1994  against the accused  and the investigation was started.
On completion of investigation charge sheet against the accused for
the aforesaid offences was laid before the J.M.F.C., Danta. As the
offences were triable by Sessions Court, the case was committed to
the Sessions Case, Banaskantha at Palanpur and it  was registered as
Sessions Case No. 45 of 2005. Learned Addl. Sessions Judge,
Banaskantha at Palanpur framed charge Exh.3 against the accused for
the aforesaid offences. On completion  of recording of evidence, the
learned trial Judge  explained to the accused the incriminating 
circumstances  appearing against them in the evidence. The accused 
denied having committed the offence in their further statements
recordedu/s 313of the Code of Criminal Procedure and  stated that
they have been falsely implicated in the offence.4.	After
hearing the learned A.P.P. for the State and learned advocate for the
accused, the trial Court convicted  the appellants and sentenced them
to undergo difference sentences. Being aggrieved  by the said
decision,  the accused have preferred the present appeal.5.	Heard
learned advocate Mr. M.C. Barot for the appellants and learned A.P.P.
Ms. Meeta Panchal for the respondent   State at length and in great
detail. We have also perused the impugned judgment and records and
proceeding and proceedings of the trial court.6.	Mr.
Barot learned advocate for the appellants mainly submitted that  the
prosecution witnesses have tried to suppress the real facts and there
are material contradictions in the evidence of the so called eye
witnesses. He also submitted that the incident occurred all of a
sudden as there was  heated  exchange of words which resulted into 
clash and there was no premeditation  or pre-plan  to commit offence
and therefore the appellants could be convicted for minor offence.7.	Learned
A.P.P. Ms. Panchal submitted that the evidence clearly indicates that
the appellants had common intention to commit offence and there was
premeditation. The medical evidence as well as depositions of the
witnesses indicate that all the appellants with common intention to
commit offence attacked deceased and therefore the learned trial
Judge was justified in recording conviction. Hence,  no interference 
is warranted in the impugned judgment.8.	In view
of  submissions of Mr. Barot, appellants have not disputed the
incident. Therefore, the only question  is whether the case would
fall under Section 304 of the I.P. Code ?9.	It
appears from the prosecution case that appellants  Kala Kaala  and 
Kaala Ratna  committed murder of Anadabhai Begadiya and appellant 
Soma Kaala and appellant  Vira Kaala  abetted.  It is also the
prosecution case that  appellants Soma Kaala  and Vira Kaala caused
injury with stick to Nopabhai Ratna and Chandubhai Bhemabhai and
other appellants abetted in commission of offence.10.	The
prosecution examined  injured P.W.  2  Nopabhai at  Exh 18. This
witness  lodged F.I.R. Exh. 39. It appears from the evidence of  this
witness that  the witness had heated exchange of words with appellant
Soma Kaala  as he demanded money. The evidence also indicates that 
on account of  heated  exchange of words other appellants  came
running  there and appellants Soma Kaala and Kala Kaala had bow  and
arrow, appellants Kaala Ratna and Vira Kaala  had stick having iron
rings and appellant Soma  Kaala  hit  arrow on  right side of his
forehead.  According to the witness appellant Vira Kaala hit stick
having iron rings on  his right wrist and backside of his head.11.	The
prosecution  produced the injury certificate of the witness at Exh.14. It indicates the following injuries. :i.	Incised
wound oblique 2.5 cm x ½ cm x ½ over right side of
forehead.ii.	C.L.W.
Vertical 1 cm x ½ cm x ½ cm over right forearm.According
to the certificate  injury No.1 was possible by sharp cutting
instrument and injury No. 2 was possible by hard and blunt object.12.	The
F.I.R. Exh. 39 also indicates  that before the incident heated
exchange of words took place and the appellants Soma Kaala and Vira
Kaala  assaulted  P.W. 2 Nopabhai.13.	The
evidence indicates that  there was exchange of words between P.W. 2
and  appellant Soma Kaala who hit arrow on his forehead and appellant
Vira Kaala, hit stick on his right wrist. The Doctor's evidence
indicates that  such injuries were possible by arrow and stick. This
clearly indicates that  on account of heated exchange of words the
incident occurred and the witness was injured.14.	According
to  P.W. 3 Chandubhai Bhemabhai  Exh. 25 he  was also injured in the
assault by appellant Soma Kaala but there is no medical evidence  to
show the injuries. Therefore,  it is difficult to believe that  the
witness was injured in the assault.15.	The
prosecution also  examined eye-witness P.W. 4 Kamliben Anadabhai  at
Exh. 26. The witness has deposed about  the injuries to P.W. 2
Nopabhai  and P.W. 3 Chandubhai.16.	In view
of above evidence, it clearly emerges that the incident occurred  as
P.W. 2 demanded money from  appellant Soma  Kaala and  there was 
exchange of words and due to this heated  exchange of words,
appellant Soma Kaala got enraged and inflicted injury   and  
appellant Vira Kaala  also gave stick blow  to P.W. 2. Therefore
complicity of appellant Soma Kaala  and appellant Vira Kaala is
proved beyond reasonable doubt in causing injury to P.W. 2 but the
evidence does not indicate that they had abetted appellants Kala
Kaala and Kaala Ratna in committing  murder of Anada Ratna. As
regards appellant Kaala Ratna, according to P.W. 2 he hit stick on
the head of deceased Anada Ratna. This version is supported by P.W.4. The postmortem report  Exh. 15 also indicates that injury was
found  on head  of the deceased and P.W. 1  Dr. Jayantibhai Ambaram
Exh. 13 has deposed that such injury was possible by stick.Therefore,  involvement of  appellant Kaala Ratna in causing injury
to deceased is proved but there is no evidence to indicate  that
appellant  Kaala Ratna had common intention to  commit murder of the
deceased. Analysing the evidence, it becomes clear  that appellants
Soma Kaala and Vira Kaala caused injuries to P.W. 2 and appellant
Kaala Ratna caused injury to the decease but there is no evidence to
come to a conclusion  that these appellants  had common intention to
commit murder or to cause injury to P.W. 2 and P.W. 3.17.	As
regards death of Anada Ratna, the prosecution examined Medical
Officer   P.W. 1  Dr. Jayantibhai Ambaram Patel at Exh. 13. The
witness  performed postmortem of  dead body of Anada Ratna. According
to him  the injuries found on the dead body were recorded  in
postmortem report Exh. 15 and certificate indicating cause of  death 
produced at Exh. 16 was issued by him. According to the Doctor,
injury No.1 was sufficient in the ordinary course of nature to cause
death and such injury was possible by muddamal arrow.18.	Postmortem
Exh. 15 indicates  following  external injuries in Column No.17.i.	Stabbing
wound oblique 2.5 cm x 1 cm size over right  of epigastric region.
Omentum came out side through wound.ii.	C.L.Ws.3 in no. oblique, 1 cm x ½ cm x ½ on left side  of
parietal region of scalp.iii.C.L.W.  Oblique 2.5 cm x ½ cm x ½ cm over left 
temporal region of scalp.iv.	Abrasions
 3 in no. of 1 cm size  over left knee.The cause
of death was shock due to intraperitoneal haemorrhage on account of
stabbing injury over abdomen.19.	As
observed earlier P.W. 2, P.W. 3  and P.W. 4 have deposed  that as
P.W. 2 demanded money from appellant  Soma Kaala, there was heated
exchange of words. They have also deposed that  as deceased  Anada
Ratna came running there appellant Kala Kaala hit arrow on his
abdomen. The medical evidence also indicates that such injury was the
cause of death. Therefore,   the death was homicidal in nature and 
appellant Kala Kaala was responsible for such injury. It also appears
that  the deceased was not present  at the place of incident when
there was exchange of words but came subsequently. Therefore there
was no premeditation and there was no intention on the part of
appellant Kala Kaala to assault the deceased.  The incident  occurred
 all of a sudden in heat of passion.  Considering the injury caused
by the appellant, it cannot be said that  he acted in cruel or
unusual manner and took undue advantage of the situation. Therefore, 
the case would  fall into exception 4 to Section 300 of the I.P. Code
and hence learned trial Judge committed  error in convicting
appellant  Kala Kaala for the offence punishable u/s 302 of the I.P.
Code.20.	Scrutinising
 the evidence it appears  that   there is no cogent, reliable and
convincing  evidence to indicate that the appellants had  common
intention to  cause injury to P.W. 2 and in furtherance of  common
intention, they attacked P.W. 2. Considering  nature of injuries and
weapons used for inflicting  the injuries   appellant Soma  Kaala,
Vira  Kaala and  Kaala Ratna could be convicted for the offence
punishable u/s 324 of the I.P. Code. Therefore, learned trial Judge
has committed  error in convicting appellants No.1, 2 and 4  for the
offence punishable u/s 302, 323 read withSection 34of the I.P. Code
and hence conviction of these appellants for such offences is
required to be set aside and  their conviction for the offence
punishable u/s 324 of the I.P. Code andu/s 135of the Bombay Police
Act is required to be confirmed.21.	 As
regards murder of Anada, there is no evidence to indicate that there
was common intention of  the appellants to commit his  murder.
Therefore, it cannot be  said that the appellants in furtherance of
their common intention   caused murder of Anada.22.	Now the
Court will have to find out  whether the  appellant Kala Kaala could
be held guilty for the offence of murder or  whether it falls within
the ambit of any exception enumerated in Section 300 of the I.P.
Code.  It appears   that there was quarrel preceding the incident and
the deceased  tried to intervene in the quarrel. Therefore,  the
manner  in which incident has  occurred and considering  the medical
evidence  it appears that the murder was committed without 
premeditation in a sudden heat of passion. Therefore, in our
considered view, the present case would be governed  by Section 304
Part   I of the I.P. Code more particularly when  only one blow was
given by appellant Kala Kaala. Therefore, approach of the learned
trial Judge being erroneous in law is liable to be quashed and set
aside.23.	Having
regard to the facts and circumstances of the case as well as the
manner in which the incident has taken place, appellant Kala Kaala 
could be held guilty of offence punishable u/s 304 Part-I   and not
u/s 302 of the I.P. Code.24.	We have
heard learned advocate Mr. Barot for the appellants and learned
A.P.P. Ms. Panchal for the respondent   State on the question of
sentence. It is stated that appellant Kala Kaala has undergone
imprisonment of more than 10 years and other appellants were released
on bail by this Court pending  the appeal. It is also submitted by
Mr. Barot that  the manner  in which the  incident  had occurred, it
would be just and proper   that imprisonment already undergone by
them be imposed.  In our view, considering  the facts and
circumstances  of the case this submission is required to be
accepted.25.	For
the foregoing reasons, the appeal is partly allowed and conviction of
 the appellants Begadiya Soma Kaala, Begadiya Virabhai Kaala and
Begadiya Kaala Ratnabhai recorded  vide  judgment and order  dated 
30 8-1997 passed by the learned Addl. Sessions Judge, Banaskantha
at Palanpur   in Sessions Case No. 45 of 1995 for the offence
punishable u/s  302, 323 read withSection 34of the I.P. Code  is
quashed and set aside. However, conviction  of these appellants for
the offence punishable u/s 324 of the I.P. Code andu/s  135of the
Bombay Police Act is confirmed. These appellants are directed to
undergo the sentence of rigorous imprisonment  for the period already
undergone by them.  Appellants No.1, 2 and 4  are   on bail  and
hence their   bail bonds   stand cancelled.26.1		So
far as conviction of  the appellant Begadiya Kala Kaala    recorded  
vide   judgment and order  dated 30-8-1997 passed by the learned
Addl. Sessions Judge, Banaskantha at Palanpur   in Sessions Case No.
45 of 1995 for the offence punishable u/s 302 is concerned,  it is
altered from Section 302 of the I.P. Code to Section 304 Part-I of
the I.P. Code  and the appellant  is directed to undergo sentence of
rigorous imprisonment for the period of 10  (Ten) years. Order of
conviction and sentence imposed by the trial court for the offence
punishableu/s 135of the Bombay Police Act is confirmed.  However,
conviction of this appellant for the offence punishable u/s 323, 324
read with  34 of the I.P. Code is set aside.26.2		In
view of the jail report, it appears that  appellant No. 3 -  Begadiya
Kala Kaala  has already undergone sentence of rigorous imprisonment 
imposed by this Court. Therefore, the Superintendent, Ahmedabad
Central Jail, Ahmedabad is directed to  set free appellant No.3  
Begadiya Kala Kaala forthwith  unless his presence is  required in
any other case.26.3		All
the sentences are ordered to run concurrently. The appellants are
entitled to get set off.26.4		The muddamal be disposed of
as directed by the trial court.(Bhagwati Prasad, J.)		
 


 


 


					
 


					(Bankim N. Mehta,J.)
 


 


 


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