ZALA CHANDUBHA HEMATSINH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant was tried along with three others for offences punishable under S. 302, 326, 323 read with Section 34 of the Indian Penal Code. It is alleged that all of them attacked one Jagatsinh Narsinh, the deceased in the case. According to the prosecution there was a sudden confrontation and a quarrel and the appellant is said to have picked up a stone that was lying there and hurled against the deceased which unfortunately hit on the head and resulted in fracture of the skull of which the deceased died. Witness Public Witness 11 is a direct eyewitness. He also received injuries, therefore, his presence cannot be doubted. The trial court convicted all the four accused but on appeal the High court acquitted three of them but convicted the appellant under Section 302 indian Penal Code. A-2 convicted under Section 326 Indian Penal Code was, however, sentenced to the period already undergone. The appellant who is sentenced to imprisonment for life is before us.

(2.) We have perused the evidence of Public Witness 11, who is an injured witness and whose presence cannot be doubted. His version is simple. It is not necessary to give every detail spoken to by him. So far as the occurrence is concerned, he has specifically stated that it was a sudden affair and the accused picked up a stone which was lying there and hurled it against the deceased. Therefore, it cannot be said that he intended to cause the death of the deceased and consequently clause 1stly of Section 300 Indian Penal Code is not attracted. Now coming to clause 3rdly, which is relevant, the prosecution has to prove that he intended to cause that particular injury which unfortunately resulted into death and hurling a stone may not surely hit nor can it be said that by hurling such a stone the appellant intended to cause that particular injury which unfortunately resulted in the fracture of the skull. So far as the intention part of it is concerned, under clause 3rdly the circumstances must subjectively prove that he intended to causethat particular injury. However, by hurting such a stone he must have the knowledge that it was likely to cause death in which case it will be a case of culpable homicide. Accordingly, the conviction and sentence of the accused under Section 302 Indian Penal Code are set aside and instead he is convicted under Section 304, Part II, Indian Penal Code and sentenced to 7 years' rigorous imprisonment. Subject to the modification of the sentence, the appeal is dismissed.