ABDULKADAR MANSURMIYA MALEK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant was one of the seven accused put up for trial before the Court of Session for offence under Section 302 read with 149 Indian Penal Code as well for other lesser offences. The trial Court acquitted all the accused. The High Court on appeal at the instance of the State maintained the acquittal of six accused persons other than the appellant. The appeal vis-a-vis the appellant was allowed convicting him for offence under section 302 Indian Penal Code sentencing him to life imprisonment. Hence this appeal.

(2.) The deceased, Raghunath was a head constable. He along with other police personnel was on duty at the tomb of a Muslim saint where festivities were on, on the night intervening 31st May 1983 and 1st June 1983. At the site, temporary vendors had put up their stalls. It was reported to the deceased that at a particular spot, some people were indulging in gambling. In order to prevent that activity, he went to the spot along with his companion constables and attempted to catch the gamblers. A commotion took place due to the assault of the police and people were heard shouting to the police not to catch those supposed gamblers. It is alleged that the appellant was friendly with some of those gamblers. It is stated that at that juncture the appellant, present close by in his ice-cream vending truck, came to the spot and gave a knife injury to the deceased in his stomach. The deceased fell down. He was then taken to the hospital for medical relief. The deceased gave a dying declaration to psi Vaghela, Public witness. Ultimately he succumbed to his injury. This put the investigating machinery into motion and the ultimate trial and conviction of the appellant.

(3.) Learned counsel for the appellant made an effort to project that the judgment and order of the Court of Session was far more convincing than that of the High Court, maintaining that the latter Court had committed an error in reversing the well considered judgment of the first Court. Finding that our reaction to this stance was not favourable, he has taken up the plea that the offence committed, if at all, falls within Exception 4 of Section 300 and thus the offence of the appellant need to be scaled down to one under Section 304 Part II Indian Penal Code. According to him, initially there was an assault by the police inasmuch as its members attempted to catch the supposed gamblers in some of whom the appellant had interest, whereafter the offence by the appellant came to be committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the appellant having taken undue advantage or acted in a cruel or unusual manner. It has been highlighted that only one injury was given and the blow was not repeated. It could well be that he may have been attracted to the spot when things were heating up and had on arrival at the spot acted on the spur of the moment. Keeping this angle in view, learned counsel for the state also is of the same opinion, as projected by the learned counsel for the appellant, to the effect that the offence falls within Exception 4 of Section 300 and thus the conviction of the appellant could be brought down to section 304 Part II Indian Penal Code.