HUSENKHAN HAMIRKHAN MALEK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT appeal arises out of a judgment and order rendered by Sessions Court, Patan on 28/06/2005 in Sessions Case No.80 of 2004 convicting the appellant for offence of murder of Muridkhan Khanji Malek and sentencing him to undergo imprisonment for life with a fine of Rs.10,000/- in default to undergo SI for one year.

(2.) AS per prosecution case, the incident occurred on 03/09/2004 at about 10:30 a.m. at Village Varahi near Chabutara. Deceased Muridkhan was sitting near the barber shop. The first informant and two other persons were also sitting nearby, when the appellant approached that place. Muridkhan demanded an amount of Rs.5,000/- which was due to him from the appellant on account of some injury having been caused to the mare of Muridkhan about one year prior to the incident. On demand being raised by deceased Muridkhan, a quarrel took place between the appellant and Muridkhan. In that quarrel, the appellant is alleged to have drawn a knife from his waist-band. Deceased Muridkhan caught hold of the knife to protect himself. There was grappling and scuffle. During this grappling, the appellant himself was hurt with the knife and, therefore, he attacked Muridkhan and in that fight, he gave three knife blows to the deceased, which resulted into his death. The appellant threw away the knife at the place and went away. Deceased Muridkhan was taken by others to hospital and he succumbed to the injuries on the way to the hospital. FIR was lodged by Ravaji Kanaji, on basis of which, investigation was started and, ultimately the Police having found sufficient material against the accused appellant to connect him with the crime, filed charge-sheet in the Court of the learned JMFC, Radhanpur, who in turn committed the case to the Court of Sessions and Sessions Case No.80 of 2004 came to be registered. Charge was framed against appellant at Exh.5 to which he pleaded not guilty and came to be tried.

(3.) LEARNED Advocate Mr.Patel submitted that it will not be possible for him to assail the judgment and prayed for a clean acquittal on merits. He, however, submitted that even if the facts of the prosecution case are accepted at face value, the case would fall under Exception 4 to Section 300 of the IPC, which would be punishable under Section 304 and not 302 of the IPC. He submitted that offence of murder is not constituted, if the prosecution evidence is seen. He submitted that the incident occurred suddenly without premeditation. There was quarrel and a fight and in that transaction, the deceased died. The appellant himself also suffered injury. He cannot be said to have taken undue advantage of situation or to have acted in a cruel manner. Therefore, Exception 4 to Section 300 of the IPC would be squarely applicable to the facts of the case. He submitted that the appellant is in jail for nearly eight years. His conviction may be altered from one for the offence of murder to one for the offence of culpable homicide not amounting to murder and he may be sentenced to undergo for the period already undergone by him.