CR.A/255/1997 of STATE OF GUJARAT Vs KOLI SAVJIBHAI GANDABHAI on 29 December 2008

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL No. 254 of 1997With CRIMINAL APPEAL No. 255 of 1997

For Approval and Signature:

HONOURABLE MR.JUSTICE A.L.DAVE

HONOURABLE MR.JUSTICE J.C.UPADHYAYA

=========================================================1[Whether Reporters of Local Papers may be allowed ]to see the judgment ?

2To be referred to the Reporter or not ?

3[Whether their Lordships wish to see the fair copy ]of the judgment ?of the judgment ?

Whether this case involves a substantial question of law as to the interpretation of the of law as to the interpretation of the 4constitution of India, 1950 or any order made thereunder ?constitution of India, 1950 or any order made thereunder ?

5[Whether it is to be circulated to the civil judge ]??

=========================================================STATE OF GUJARAT - AppellantVersus KOLI SAVJIBHAI GANDABHAI – Respondent =========================================================

Appearance :MR UR BHATT, ADDL.PUBLIC PROSECUTORfor Appellant.NOTICE SERVED for Respondent.(MR JV DESAI) for Respondent.

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CORAM :HONOURABLE MR.JUSTICE A.L.DAVE

and

HONOURABLE MR.JUSTICE J.C.UPADHYAYA

Date : 29/12/2008

COMMON ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE A.L.DAVE)

These two appeals are preferred by the State against the judgment and order rendered by the Sessions Court, Surendranagar, in Sessions Case No.76/1995, on 30[th] January, 1997.

2. The facts of the case, in brief, are that the incident occurred on 6.6.1995 at about 5.15 p.m., in the main Bazar of Lakhtar, when the present respondent-accused allegedly inflicted two hockey stick blows on one Pranjivandas Dharamshibhai, on account of a quarrel that erupted because of some sale transaction of a house. It is also alleged that the respondent intimidated the deceased by saying that if the deceased did not sell the house to him, the respondent would kill him. After the incident, victim Pranjivandas Dharamshibhai went to the police station and lodged the FIR, on the basis of which, the offence was registered and investigation was started. The police, after investigation, filed charge sheet in the Court of learned J.M.F.C. Lakhtar, who, in turn, committed the case to the Court of Sessions, as the offences were triable exclusively by the Court of Sessions, and Sessions Case No.76/95 came to be registered.

2.1Charge was framed against the respondent at Exh.2 for the offences punishable under Sections 302 & 506(2) of the Indian Penal Code and Section 135 of the Bombay Police Act.

3. The trial Court, after considering the evidence led by the prosecution, came to the conclusion that the prosecution was successful in proving the involvement of the respondent in the offence. However, the Court was of the view that the offence, for which the respondent can be convicted, was one punishable under Section 304 Part-II of the Indian Penal Code and not under Section 302 I.P.C. The Court recorded that the incident occurred in a sudden quarrel. The Court also observed that there was only one blow given by the respondent to the deceased on his head with a hockey stick, the other blow was given on leg and, therefore, the intention to cause death cannot be inferred. It would, therefore, not constitute an offence of murder, but, an offence of culpable homicide not amounting to murder. The trial Court, accordingly, recorded the conviction under Section 304 Part-II of I.P.C, and sentenced the respondent to undergo R.I for six years and to pay a fine of Rs.1,000/-, in default, to undergo S.I for three months. The trial Court, however, did not award any separate sentence for the offences punishable under Sections 323 & 506(2) of I.P.C. The respondent was, however, not convicted for the offence punishable under Section 135 of the Bombay Police Act.

4. The State has preferred these two appeals. Criminal Appeal No.255/1997 is preferred under Section 378 of Cri.P.C., against the acquittal of the respondent for the offence punishable under Section 302 I.P.C., whereas Criminal Appeal No.254/1997 is preferred praying for enhancement of sentence.

5. We have heard learned A.P.P. Mr.U.R.Bhatt for the appellant-State. The respondent-accused has chosen not to oppose these appeals, subsequent to the death of his learned advocate Mr.J.V.Desai, despite notice.

6. We have examined the record and proceedings of the case.

7. So far as Criminal Appeal No.255/1997 is concerned, it challenges the order of acquittal recorded by the trial Court for the offence punishable under Section 302 IPC. On going through the evidence, we find that there is adequate evidence to show that the incident occurred all of a sudden, in a heat of moment. The blows were given with a hockey stick, which is a sports equipment and not a weapon. That apart, only one blow is given on vital part of the body, the other blow is given on the leg. It has also come in the evidence that after the incident, the victim himself went to the police station and lodged the FIR (Exh.12) and on his way back, he fell down. Even as per the prosecution case, the respondent is alleged to have intimidated the deceased that if he did not sell the house to him, the respondent would kill him. This would show that he could not have intended to cause death of the victim. The agreement to sell was executed two months prior to the incident, which led to the dispute. The medical evidence is not positive to indicate that the injuries caused to the deceased were sufficient in the ordinary course of nature to cause death. Keeping all these aspects in the mind, we are of the view that the trial Court was justified in not convicting the respondent-accused for the offence of murder punishable under Section 302 IPC. We, therefore, do not find any merits in Criminal Appeal No.255/1997 preferred by the State.

8. So far as Criminal Appeal No. 254/1997 is concerned, it is for enhancement of sentence. The learned Judge has recorded certain reasons while awarding the sentence. We find that the incident had occurred all of a sudden. Further, the injuries are caused with a hockey stick, which is a sports equipment and not weapon. Only one blow is given on the vital part of the body, which has not resulted into instantaneous death, and from what is put in the mouth of the respondent, it is clear that he could not have intended to cause the death of the victim at that point of time. The quarrel has taken place suddenly for execution of a sale-deed. If that be so, and if the victim was murdered, then there would have been no question of getting sale-deed executed.

CR.A/254/1997

Under the circumstances, we are of the view that the appeal for enhancement of sentence also does not satisfy the parameters prescribed under the existing law. The sentence awarded by the trial Court cannot be considered to be shockingly disproportionate to the offence, in light of the facts of the case. The discretion cannot be said to have been exercised in an arbitrary manner. The learned Judge has given reasons for fixing the quantum of sentence. The conviction is one under Section 304 Part-II of I.P.C., which is punishable with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, which would mean that only fine can be imposed.

9. Last but not the least. It would also be appropriate to consider that the sentence was awarded on 30[th] January, 1997 and almost 12 years have gone by.

9.1For the reasons stated hereinabove, we are of the view that there are no merits in the appeal for enhancement of sentence also.

10. For the foregoing reasons, both the appeals must fail and are dismissed.

[A.L.Dave,J.]J.C.Upadhyaya,J.]