Jesabhai Lakhamanbhai Hati Darbar vs State Of Gujarat

The present appeal has been filed by the appellants under Section 374(2) of the Criminal Procedure Code against the judgment and order dated 17.03.2003 passed by learned Additional Sessions Judge, 5th Fast Track Court, Veraval in Sessions Case No.33 of 2001, whereby (i) for the offence under Section 304 Part-I of the Indian Penal Code (herein after referred to as IPC for short), appellant No.1 was sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay Rs.1,000/- fine and in default of payment of fine, rigorous imprisonment for a period of three months was imposed (ii) for the offence under Section 201 of IPC, both the appellants were sentenced to undergo rigorous imprisonment for a period of three years and ordered to pay Rs.500/- fine and in default of payment of fine, rigorous imprisonment for a period of one month was imposed and (iii) for the offence under Section 177 read with Section 34 of IPC, the appellants were sentenced to undergo rigorous imprisonment for a period of one year and ordered to pay Rs.250/- fine and in default of payment of fine, rigorous imprisonment for a period of one month was imposed. All the sentences were ordered to run concurrently.

1.1 Since learned advocate for the appellants pointed out that appellant No.2-Lakhmanbhai Devabhai Hati Darbar died on 10.06.2012 during the pendency of this appeal, the appeal stands abated qua appellant No.2 and in view of this factual position, appellant No.1 only in this appeal is heard.

The short fact of the case is that on the day of incident i.e. on 04.04.2001, the present appellant No. 1 slapped the deceased, due to which, she fell down and thereafter, the appellant by his feet pressed the neck of the deceased and thereby, committed murder. As a result, the complaint was lodged with the police.

Investigation was carried out and charge-sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable, the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 3.1 In order to bring home the charges against the accused, prosecution has examined 18 witnesses and 19 documentary evidence.

3.2 Thereafter, after filing of closing purshis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused have denied the case of the prosecution and submitted that a false case is filed against them.

3.3 At the conclusion of trial and after appreciating evidence on record, the learned Judge vide impugned judgment, convicted the appellants-accused. Being aggrieved by and dissatisfied with the said judgment and order dated 17.03.2003 passed by learned Additional Sessions Judge, 5th Fast Track Court, Veraval in Sessions Case No.33 of 2001, the appellants-accused have preferred the present appeal before this Court.

It is submitted by learned advocate for the appellants that the judgment of the learned Additional Sessions Judge is quite erroneous on facts as well as on law. He also submitted that the learned Sessions Judge has not properly appreciated the evidence on record. He further submitted that the Court below has failed to appreciate that there were many glaring and serious infirmities in the case of prosecution which have been very lightly brushed aside by the learned Judge which has caused failure of justice. He also submitted that the judgment and order of conviction and sentence passed by the learned trial Judge is contrary to law and against the evidence on record. He also submitted that the learned trial Judge ought to have considered the fact that the prosecution has failed to prove the offence under Section 304 Part-I of IPC and the court therefore ought to have acquitted the appellants.

Per contra, learned APP has taken this Court through the evidence on record and has submitted that the judgment of the learned trial Judge is not such which calls for interference on the facts and the conviction of the accused should not be interfered with. She has submitted that the prosecution has succeeded in proving the case. She also submitted that even the witnesses have supported the case of the prosecution and therefore the impugned judgment may not be interfered with and it may be confirmed.

The record & proceedings clearly indicates that on the day of incident i.e. on 04.04.2001, the present appellant No.1 slapped the deceased, due to which, she fell down and thereafter, the appellant by his feet pressed the neck of the deceased and thereby, committed murder. Indisputably, during the course of drawing inquest panchnama, no feasible injury was found nor any weapon was found. The doctor opined the death of the deceased as a result of asphysix due to compression on neck.

In view of aforesaid nature of evidence, the learned trial court, solely based upon the extra judicial confession came to be made by the present appellant before the father of the deceased as also upon the strength of extra judicial confession getting some sort of corroboration from the medical evidence and other evidence on record, recorded the conviction under Section 304 Part-I of the Indian Penal Code instead of Section 302 of the IPC. This Court has minutely gone through the record & proceedings as also the reasons assigned by the learned trial court while convicting the appellant.

Taking into consideration the rival submissions of both the sides as well as the record & proceedings clearly indicating that the present appellant has already undergone the sentence of 4 years 4 months and 7 days during the trial and pendency of this appeal and that since the entire case of the prosecution rested on the extra judicial confession of the present appellant and except that no other evidence is available on record, in these peculiar facts and circumstances of the case, this Court deems it appropriate to maintain the conviction by reducing the sentence to already undergone by the present appellant.

For the reasons recorded above, the appeal is partly allowed. The judgment and order dated 17.03.2003 passed in Sessions Case No. 33 of 2001 by learned Additional Sessions Judge, 5th Fast Track Court, Veraval is hereby modified and the sentence is reduced to the sentence already undergone by the appellant. Further, it is made clear that the appellant needs not to surrender. The bail and bail bond stands cancelled.

Record and Proceedings be sent back to the trial Court concerned forthwith.