DHOLIA RAVJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Appellant who was accused No. 1 at the Sessions trial has been convicted by the learned Sessions Judge of Baroda under section 302 Indian Penal Code for having caused the death of one Vajiria Debra and under section 326 Indian Penal Code for having voluntarily caused grievous hurt to one Bai Pidi wife of Vajiria Debra.

(2.) In his examination at the Sessions trial the appellant made the following statement:-

(3.) He therefore admitted of having caused injuries with a Dharia to both Vajiria and Bai Pidi and his case was that he had done so in the exercise of his right of private defense. In view of the admission made by the appellant in his examination at the trial and in view of the evidence of the prosecution witnesses the learned Sessions Judge held that the appellant had caused the death of Vajiria and had also voluntarily caused grievous hurt to Bai Pidi although according to the learned Sessions Judge the motive suggested by the prosecution was not true. But on the contrary it was Vajiria and his wife Bai Pidi who suspected the wife of appellant No. 1 to be a Dakan or witch. The learned Sessions Judge also disbelieved the persecution case that the deceased Vajiria was dragged out of the house. According to the learned Judge the incident happened outside the house of the deceased in the Vada of one Abhesang which adjoins the house of Vajiria on the north. Admittedly there was an injury on the forehead of accused No. 1 which was a bleeding injury. But the learned Sessions Judge thought that the injury was of a minor nature whereas injury No. 5 on the deceased which was on the neck was sufficient in the ordinary course of nature to cause death. The learned Sessions Judge therefore held that appellant did more harm than was necessary for the purpose of private defense and that therefore the case did not fall under Exception II to section 300 Indian Penal Code. As appellant admittedly had caused a number of injuries with his Dharia the learned Sessions Judge thought that appellant had an intention of doing more harm than was necessary for the purpose of defense and therefore according to him Exception II to section 300 Indian Penal Code did not apply. The learned Sessions Judge therefore convicted the appellant under section 302 Indian Penal Code for having caused the death of Vajiria and under section 326 Indian Penal Code for having voluntarily caused grievous hurt with a Dharia to Bai Pidi At the Sessions trial the learned Advocate for the accused No. 1 had merely argued that accused No. 1 was not guilty under section 302 Indian Penal Code but only under section 304 Part 1. In the appeal before us the learned Counsel for the appellant has argued that the appellant is entitled to an acquittal because he acted in the exercise of private right of defense because he (the deceased) had given him a blow with his Dinga and Bai Pidi had also caught hold of him and had pressed his testicles. It is urged by the learned Counsel for the appellant that the statement of the accused on this point would justify the inference that the appellate was acting in the exercise of the right of private defense and therefore he was entitled to acquittal. The findings of the learned Sessions Judge that Vajiria died as a result of injuries caused to him by the appellant that these injuries were five in number as testified by the Medical Officer and that Bai Pidi had also received grievous hurt were not challenged by the learned Counsel for the appellant The appellant had himself admitted in his examination at the Sessions trial that he had caused injuries to both Vajiria and his wife Bai Pidi with his Dharia which according to him lay at the scene of offence.