Dilipbhai Devjibhai Patel vs State of Gujarat

J.C. Upadhyaya, J.—Both these appeals arise out of a judgment and order rendered by learned Additional Sessions Judge, Fast Track Court No. 4, Navsari on 13.10.2004 in Sessions Case No. 29 of 2004, whereby, appellant Dilipbhai Devjibhai, who was original accused No. 2, and appellant Dahyabhai Devjibhai, who was original accused No. 1, came to be convicted for the offence punishable u/s 302 read with Section 34 of the Indian Penal Code and each of them was sentenced to undergo life imprisonment and fine of Rs. 1,000/- and in default of payment of fine, simple imprisonment for two months for the aforesaid offence.

The prosecution case, in nutshell, is that the incident occurred at about 2.30 p.m. on 19.5.2004 in the outskirt of village Kukda, Taluka Vansada. It is the case of the prosecution that field of deceased Gulabbhai Ranchhodbhai is adjacent to the field of both the accused, who are brothers. Deceased Gulabbhai happened to be the uncle of the accused. On the day of incident, deceased Gulabbhai was cutting trees in his field and one tree fell on the land of the accused. Both the accused asked deceased Gulabbhai as to how his tree fell on their land and they quarreled with each other and at that time, it is alleged that deceased was holding a dharia, which the accused snatched away from the deceased and accused No. 2 Dilipbhai inflicted blow with reverse side of dharia (blunt side of dharia) on the body of the deceased and accused No. 1 Dahyabhai inflicted blows with wooden handle of dharia on the body of the deceased. The deceased succumbed to the injuries. PW 1 Ambaben Gulabhai, widow of the deceased, reported the incident to police and her FIR was registered. During the course of investigation, statements of material witnesses were recorded. After collecting required material for the purpose of lodgment of charge-sheet, charge-sheet came to be filed in the court of learned Judicial Magistrate First Class, Vansada. Since the offence was exclusively triable by the court of Sessions, the learned J.M.F.C., Vansada committed the case to Court of Sessions at Navsari, which was numbered as Sessions Case No. 29 of 2004.

2.1. The learned Trial Court framed charge against the appellant at Exh.2 to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. After the prosecution concluded its oral evidence, the learned Trial Judge recorded further statement of both the accused u/s 313 Code of Criminal Procedure and the appellants-accused in their further statements, denied generally all allegations levelled against them by the prosecution and stated that they were falsely implicated in this case. After appreciating the evidence on record and the submissions made on behalf of both the side, the learned Trial Judge recorded conviction of both the accused persons for the offence punishable u/s 302 read with Section 34 IPC and awarded the sentence as hereinabove referred to in this judgment.

Learned advocate Ms. Sadhana Sagar for both the appellants-accused stated that considering the evidence of eye witness, who is examined by the prosecution, it is difficult to assail the involvement of both the accused in this incident. It is therefore submitted that the involvement of both the accused in the incident is not disputed. However, it is submitted that considering the evidence on record, there was a quarrel between the deceased and both the accused and that weapon dharia was not brought by any of the accused but dharia was held by the deceased. Considering the medical evidence on record, the deceased sustained injuries, like abrasions and contusions, and the cause of death is reported to be ''Peritonitis due to perfovation due to abdominal injury''. That, therefore, the Trial Court erred in recording conviction of the appellants for the offence or murder, but the offence which can be said to have been made out is culpable homicide not amounting to murder punishable u/s 304 Part-II IPC.

Per contra, Mr. M.G. Nanavati, learned Additional Public Prosecutor representing the State submitted that it is true that the ocular evidence reveals that none of the accused was armed with dharia but dharia was with deceased Gulabbhai. That the blunt side of dharia was used by appellant accused No. 2 Dilipbhai while causing injury to the deceased and appellant accused No. 1 Dahyabhai caused injury to the deceased with wooden handle of dharia. The medical evidence reveals that there was perfovation of 2 c.m. X 2 c.m. at Pyloric region of stomach, which resulted in death. It is therefore, submitted considering the facts and circumstances of the case, the Trial Court has rightly recorded conviction of the appellants for the offence of murder.

We have examined the record and proceedings in context with the submissions made by the rival sides.

Examining the record of the case, the submissions made on behalf of both the sides and considering the evidence of eye witness namely PW 1 Ambaben, widow of the deceased, and PW 2 Jaymatiben Sanmukhbhai, daughter-in-law of the deceased, the prosecution successfully proved the involvement of both the appellants in the incident. On behalf of the appellants, their involvement is not challenged. However, considering the evidence of eye witnesses, it clearly transpires that the motive behind the incident is very minor. The deceased was cutting trees and one of the trees fell on the land of the accused and the accused thereupon complained about it to the deceased and some quarrel took place between them. It further transpires that none of the accused persons was armed with dharia. Dharia was held by the deceased himself. Further more, the evidence reveals that blunt side of dharia as well as wooden handle of dharia were used while causing injuries to the deceased. The medical evidence reveals that the deceased sustained injuries, like contusions and abrasions, and only one wound of nature of incised wound, it was on right elbow. It further transpires that there was perforations of 2 c.m. X 2 c.m. at pyloric region of stomach and cause of death is ''Peritonitis'' due to abdominal injury. Considering the above aspect of the matter, we are of the considered opinion that the case does not fall within the category thirdly of Section 300 IPC, but only knowledge that such bodily injury is likely to cause death can be attributed to the accused persons. Thus, considering the facts and circumstances of the case, we are of the considered opinion that the offence of murder punishable u/s 302 IPC cannot be said to have been made out but offence punishable u/s 304 Part-II IPC can be said to have been made out. Thus, the conviction is required to be altered. Accordingly, considering the facts and circumstances of the case, R.I. for 7 years and fine of Rs. 500/- and in default of payment of fine, S.I. for one month would be the just and proper sentence.

Both the appeals are partly allowed. Conviction of appellants Dilipbhai Devjibhai Patel and Dahyabhai Devjibhai Patel recorded by the learned Additional Sessions Judge, Fast Track Court No. 4, Navsari on 13.10.2004 in Sessions Case No. 29 of 2004 for the offence punishable u/s 302 read with Section 34 IPC is altered to one u/s 304 Part-II read with Section 34 IPC and each of the appellants is sentenced to undergo R.I. for 7 years and fine of Rs. 500/- each and in default of payment of fine, S.I. for one month. Their sentence recorded by the learned Trial Court for the offence punishable u/s 302 read with Section 34 IPC is set aside.