Kanabhai Sidibhai Dodia vs State Of Gujarat

The appellant has preferred the present appeal under Section 374 of the Code of Criminal Procedure challenging the judgment and order of conviction dated 17.04.2003 passed in Sessions Case No. 55 of 2001 (Old Case No. 10 of 1991) by learned Additional Sessions Judge, 5th Fast Track Court, Veraval, whereby (i) for the offence under Section 304 Part-I of the Indian Penal Code (hereinafter referred to as "IPC" for short), the appellant was sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay Rs.5000/- fine and in default of payment of fine, rigorous imprisonment for a period of six months was imposed (ii) for the offence under Section 25(1)(A) of the Arms Act, the appellant was 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 two months was imposed. Both the sentences were ordered to run concurrently.

The short fact of the case is that on 09.09.1990 at about 14.30 hours, the appellant-accused, with an intention to commit murder of the deceased, caused fatal injuries to the deceased by using firearm without having permit of it. The deceased succumbed to the injuries and died. Thereby, the appellant committed offences punishable under Section 302 of IPC and Section 25(1)(A) of the Arms Act.

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, the prosecution has examined the witnesses and produced the documentary evidence.

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

3.3 At the conclusion of trial and after appreciating evidence on record, the learned trail court delivered the judgment. Being aggrieved by said judgment and order of conviction dated 17.04.2003 passed in Sessions Case No. 55 of 2001 (Old Case No. 10 of 1991) by learned Additional Sessions Judge, 5th Fast Track Court, Veraval, the appellant-accused has preferred the present appeal before this Court.

Learned advocate Mr. Hriday Buch for the appellant has taken this Court through the entire record & proceedings and argued that the incident in question happened in the year 1990 i.e. about 29 years back and the present appellant has already reached the age of 70 years. He has argued that the scenario to the incident indicates that the present appellant and the victim both were partners and occupied themselves in agricultural work. He has further argued that there were some disputes as regards cropping wherein the present appellant was carrying only agricultural operation, whereas the deceased was residing at Rajkot and used to come for supervision. He has argued that on the day of incident i.e. on 9.9.1990 at about 14.30 hours at farm house, there were some altercations and scuffle between the appellant and the deceased as deposed by the son of the deceased as well as other two witnesses - Deepak and Jasatapu who had witnessed the part of incident and their oral depositions are clearly getting corroboration from the medical evidence as well as evidence of ballistic expert Mr. Khandelwala that if there would have scuffle between them, injury could have been found over the person of the present appellant. He has argued that in the incident, the appellant was also caused injuries and one pellet was removed from the body of the appellant, whereas one another pellet is still in the body of the appellant nearby his lungs. In the aforesaid scenario, learned advocate for the appellant has requested that in order to put an end to the matter due to intervening period of 29 years, the conviction be modified appropriately by reducing the sentence and enhancing the fine.

On the other hand, learned Additional Public Prosecutor Ms. Monali Bhatt has supported the impugned judgment of the learned trial court and argued that since the victim has lost his life and though the firearm belonged to the deceased, it is alleged to have been used by the present appellant accused, no leniency be shown to the appellant. She has argued that the learned trial court has rightly extended the benefit to him and therefore, no further leniency or reduction in sentence is warranted taking into consideration the facts and circumstances of the case.

The record & proceedings clearly indicates that the present appellant accused came to be acquitted for the offence under Section 302 of IPC while recording the reasons based upon various points of determination. The learned trial court has clearly and categorically recorded that the incident in question happened during the course of altercations and scuffle. The learned trial court held that the case falls in Explanation 4 to Section 300 and accordingly, convicted the appellant accused under Section 304, Part I of IPC.

This Court has minutely gone through the material evidence on record and has also made conjoint reading of evidence of crucial witnesses - Deepak and Jasatapu along with oral evidence of the Doctor and ballistic expert Mr. Khandelwala. Oral evidence as regards altercations and scuffle is getting full corroboration from the evidence of ballistic expert. Furthermore, on evaluation of entire evidence on record, it appears that the present appellant was carrying his agricultural operation at the farm house-scene of incident and suddenly, the deceased arrived at with his licenced gun. Initially, there were some altercations and thereafter, scuffle and during that score, gun came to be broken into two parts, but were separated from each other and that fact has also been certified by Mr. Khandelwala. That fact is also getting corroboration from other evidence on record. The present appellant also received two pellets' injuries and undergone treatment for about a week. Out of two pellets, one pellet was removed from the body of the appellant, whereas one pellet is still there in the body nearby lungs of the appellant as noted above.

Indisputably, the incident in question is not predetermined and even the learned trial court has also recorded that the incident took place suddenly during the course of altercations which culminated into scuffle and ultimately, the death of the deceased. In that view of the matter, the intention on part of the appellant could not have been to murder the deceased. Consequently therefore, at the most, whenever the appellant tried to snatch the gun from the deceased, the knowledge can be imputed upon him by usage of such a weapon. It is likely to cause death. On that count, the present appellant could have been found guilty of commission of offence under Part-II of Section 304 instead of Part-I thereof.

On the aspect of sentence, since the appellant had also become the victim of incident and had received two pellets' injuries, out of which, one pellet was removed and one pellet is still there in the body of the appellant nearby his lungs as it is not possible to remove from his body, the argument advanced by learned advocate for the appellant is in consonance with the record & proceedings and it deserves to be accepted. The incident in question happened on the heat of moment about 29 years back and now the present appellant has already reached the age of 70 years. The record also indicates that the appellant has already undergone the sentence of about five months.

In the result, this appeal is partly allowed. The judgment and order of conviction dated 17.04.2003 passed in Sessions Case No. 55 of 2001 (Old Case No. 10 of 1991) by learned Additional Sessions Judge, 5th Fast Track Court, Veraval is hereby modified to the extent that the appellant is convicted for the offence punishable under Section 304 Part-II instead of Section 304 Part-I and the sentence is reduced to already undergone by him and in lieu thereof, he shall deposit Rs.5 Lacs towards fine within a period of two months before the learned trial court and out of the said amount of fine, Rs.2,50,000/- shall be invested in the name of Smt. Sardagauriben - widow of the deceased Manubhai Mohanbhai Jani for a period of two years with periodical interest payable to her. After two years, the said amount shall be handed over to her. At the relevant time, Smt. Sardagauriben was residing at Village Sugada, Taluka Kodinar, District Junagadh and at present, she resides at Rajkot.

In default of payment of fine of Rs.5 Lacs, the appellant shall undergo the sentence of one year.

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