THAKARDA HAMIRJI GAJUJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal has been preferred by the appellant-accused against the judgment and order dated 31.12.1983 passed by the learned Sessions Judge Mehsana in Sessions Case No. 108 whereby the learned Sessions Judge convicted the appellant-accused for the offence punishable under sec. 304 Part-II of the I.P. Code and convicting him to suffer rigorous imprisonment for 4 years. However by the impugned judgment and order the learned Sessions Judge had acquitted appellant accused for the offence punishable under sec. 302 of the I.P. Code.

(2.) The prosecution case in brief is that complainant Kanaji Chelaji is younger brother of deceased Rupaji Chelaji. Both brothers are staying seperately. A day before the day of incident. Rupaji had gone to Patan and returned back at about 5.00 p.m. with accused Thakarda Hamirji Gaguji. Deceased introduced accused to the complainant. Accused slept in the house of Rupaji on that night. On the day of incident 11.8.83 accused and Rupaji had gone to Patan in the S.T. bus at 1.00 p.m. They reached Patan at 2.00 p.m. and had gone in the Bazar. It is the case of the prosecution that near Hingalaj Chachar Rupaji demanded money from accused. Thereafter they moved in Bazar. When they reached near Bank of Baroda building. Rupaji again demanded money from the accused. There was some altercation between the two. Rupaji gave a fist blow on the nose of accused and thereupon accused brought out knife from the pocket of his pant and holding the knife with both the hands he gave knife blow on the chest of Rupaji. Rupaji brought that knife out from the chest and tried to inflict blow on the accused and accused suffered injury on the back. Thereafter both of them fell down. Rupaji died on the spot. At that time Hargovan Keshavlal and Vaktuji Pradhanji came there. After some time police came at the place of incident. Complaint was lodged against the accused for the offence punishable under sec. 302 of the I.P. Code. As accused was also injured he was sent to medical treatment in the hospital and thereafter accused came to be arrested on 13.8.1983. After completion of investigation a charge-sheet was submitted in the court of the learned Judicial Magistrate (F.C.) Patan for the offence punishable under sec. 302 of the I.P. Code. As the offence is triable by the court of Sessions the learned J.M.F.C. committed the case to the court of Sessions at Patan. Accused came to be tried by the learned Sessions Judge. Accused pleaded not guilty to the charge and claimed to be tried. After considering prosecution evidence the learned Sessions Judge hold the accused guilty for the offence punishable under sec. 304 Part-II of the I.P. Code since according to the learned Sessions Judge there was no intention on the part of the accused to commit murder of the deceased Rupaji. The learned Sessions Judge therefore acquitted the accused of the offence punishable under sec. 302 of the I.P. Code and convicted him for the offence punishable under sec. 304 Part-II of the I.P. Code and sentenced him to suffer rigorous imprisonment for four years. Hence present appeal.

(3.) Mr. K.G. Sheth learned counsel (appointed) for the Appellant-accused vehemently submitted that in view of the medical evidence coupled with the evidence of prosecution witnesses this is a case of private defence and the [decided as per court order at 9.2.93] appellant accused is entitled to the benefit of Exception-2 to section 300 of the I.P. Code. Hence his conviction under sec-304 Part-II of the I.P. Code is bad in law and requires to be quashed and set aside and appellant accused requires to be acquitted. Mr. M.A. Bukhari learned Addl. P.P. supported the judgment of the learned Sessions Judge and submitted that the findings and reasonings given by the learned Sessions Judge for convicting the appellant accused for the offence under sec. 304 Part-II of the I.P. Code and sentencing him as aforesaid are just legal and supported by the evidence on record. He therefore submitted that the judgment and order of the learned Sessions Judge requires to be upheld.