State Of Gujarat vs Ramanbhai Mangalbhai Baria

M. R. Mengdey, J

The present Appeal has been filed by the Appellant - State of Gujarat under Section 378(1)(3) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 18.7.1998 passed by the learned Additional Sessions Judge, Panchmahals at Godhra in Sessions Case No. 158 of 1997 whereby the Respondent - Original Accused herein came to be acquitted of the charge for offence punishable under Section 302 of the Indian Penal Code ("IPC") and, instead, was convicted for offence punishable under Section 304 Part - II of IPC.

The facts and circumstances giving rise to the filing of the present Appeal are such that on the fateful day, the deceased and his family members were sleeping in their house. At the time of dawn, the Respondent went to the house of the deceased, who was sleeping and asked him, as to why he was not bringing his wife back, and assaulted the deceased with a spade. After the incident, the deceased was taken to the Hospital at Shehra from where he was shifted to the Hospital at Godhra, where, after 10 days of the incident, he succumbed to the injuries and died. The FIR in that regard came to be lodged by the wife of the deceased namely Kapuriben Chatrabhai on 21.7.1997. On the basis of the said information, an offence came to be registered against the present Respondent initially for offence punishable under Section 307 of IPC. Subsequently, upon the death of the deceased, the offence punishable under Section 302 of IPC was added to the FIR. The investigating agency, after conclusion of investigation, filed charge sheet against the present Respondent for offence punishable under Sections 302 and 504 of IPC. Since the offence charged against the Respondent was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions under Section 209 of the Code of Criminal Procedure.

The learned Sessions Judge framed the charge against the present Respondent for the offence punishable under Sections 302 and 504 of IPC and Section 135 of the Bombay Police Act vide Exh. 2 and recorded the plea of the Respondent vide Exh.3. Since the Respondent pleaded not guilty, he was put to trial. The prosecution has examined as many as 9 witnesses and had also produced certain documentary evidences to bring home the charge levelled against the Respondent. The learned Sessions Judge, after considering the evidence on record and after hearing the learned Advocates appearing for both the sides, was pleased to acquit the Respondent from the charge of offence punishable under Section 302 of IPC and, instead convicted him for the offence punishable under Section 304 Part - II of the IPC and imposed sentence of R.I. for 4 years and fine of Rs.100/- vide the impugned judgment and order.

Being aggrieved by and dissatisfied with the same, the Appellant - State has preferred the present Appeal.

Heard learned APP Mr. Ronak B. Raval for the Appellant - State. He submitted that it was the early morning at 5 O' Clock when the incident had occurred. At that time, the deceased was sleeping in his house and the Respondent entered his house armed with a spade and straightway assaulted the deceased, who sustained grievous injuries and succumbed to the same and died. Having regard to the fact that the Respondent had entered the house of the deceased armed with a spade and had inflicted a blow upon the head of the deceased, clearly indicates that there was intention on the part of the Respondent to eliminate the deceased. He also submitted that the Respondent had grudge against the deceased as he was not making any efforts to bring the wife of the Respondent back, and therefore, the Respondent herein also had a motive to eliminate the deceased. He also submitted that the Respondent had assaulted the deceased with a spade and had inflicted a blow on the head of the deceased, which is the vital part of the body. This conduct on the part of the Respondent clearly indicates that the assault by him on the deceased was a premeditated one. He submitted that the learned Sessions Judge has committed a grave error in overlooking these facts. He therefore submitted to allow the present Appeal and convict the Respondent for offence punishable under Section 302 and sentence him with punishment appropriate in accordance with law.

Though served, nobody appeared for the Respondent.

Heard learned APP Mr. Ronak B. Raval for the Appellant - State. As per the case of prosecution, the genesis of the incident is such that the Respondent and the deceased are the real brothers and were living in the houses adjacent to each other. The wife of the Respondent had left her matrimonial house due to some differences between her and the Respondent. The Respondent wanted his elder brother i.e. the deceased to intervene and bring his wife back to her matrimonial house. However, the deceased was not behaving as per the expectation of the Respondent. Therefore the Respondent got agitated and went to the house of the deceased in the early morning when the deceased was sleeping. From the evidence adduced on record, it appears that, after the Respondent went to the house of the deceased, he asked the deceased as to why he was not bringing his wife back. Thereafter, he had assaulted the deceased with a spade. Had the Respondent had an intention to kill the deceased, he would have assaulted him when the deceased was fast asleep.

Upon perusal of the FIR, which is on record vide Exh.24, it appears that the Respondent, after entering the house, told the deceased that he had sent his wife to her parental house and the deceased is restraining her parents from sending her back to her matrimonial house. Thereafter the Respondent started abusing the deceased and got agitated and assaulted the deceased with a spade. Thus, it is not that the Respondent, after having entered the house of the deceased, had at once assaulted him. From the evidence adduced on record, it appears that some heated exchange had taken place between the Respondent and the deceased. Therefore, there is a reason to believe that, as a result of the said heated exchange, the Respondent got provoked and assaulted the deceased. The depositions of the wife and the daughter of the deceased indicate that there was no enmity between the Respondent and the deceased and both of them loved each other. Having regard to these facts as well as the facts narrated herein above, it does not appear that the assault by the Respondent upon the deceased was premeditated. It is also required to be noted at this stage that the Respondent had inflicted only a single blow upon the deceased and the deceased had expired after almost 10 days from the date of incident. Thus, the death of the deceased was not an instantaneous after the incident. This indicates that the injury inflicted by the present Respondent upon the deceased was not brutal.

Dr. Bina K. Parikh who performed the postmortem on the body of the deceased had been examined vide Exh.9. She, in her deposition, has admitted that, if the deceased had received timely treatment there were chances of him having been saved. She also describes the nature of internal injuries sustained by the deceased. Upon perusal of the nature of injuries they do not appear to be brutal in nature.

In view of the aforesaid facts, the incident in question would fall under Exception - 4 to Section 300 of the IPC, and therefore, when there is no material attributing any intention on the part of the Respondent to kill the deceased, the learned Sessions Judge cannot be said to have committed any error in convicting the Respondent for the offence punishable under Section 304 Part-II instead of Section 302 of the IPC.

As per the settled legal position, the scope for this Court in interfering with the findings of fact recorded by the Trial Court, while considering the Appeal against acquittal is very limited. The findings recorded by the Trial Court can be interfered with by this Court only if such findings are found to be perverse or contrary to law. Having perused the entire evidence, it cannot be said that the findings recorded by the learned Sessions Judge are perverse or erroneous in law.

In view of the aforesaid discussion, the Appeal is devoid of any merit and therefore the same is hereby dismissed. R&P be sent back to the concerned Court.