STATE OF GUJARAT Vs. BABU KAVA

JUDGEMENT

(1.) These two appeals arise out of a judgment and order dated September 18, 1995 rendered by learned Additional City Sessions Judge, (Court No.18), Ahmedabad City in Sessions Case No.114 of 1992 by which the appellants ('accused' for short) of Criminal Appeal No.917 of 1995 came to be convicted of the offences under Sections 304 Part II and 323 read with Section 114 of the Indian Penal Code ('IPC' for short) and A-1 and A-3 were sentenced to suffer R.I. for a period of five years for commission of the offence under Section 304 Part II of the IPC whereas A-2 was sentenced to suffer S.I. for a period of five years for commission of the offence under Section 304 Part II read with Section 114 of the IPC and also S.I. for a period of three months for the offence under Section 323 of the IPC.

(2.) Criminal Appeal No.1149 of 1995 is filed by the State under the provisions of Section 378 of the Code of Criminal Procedure ('the Code' for short) challenging the acquittal of the accused of the offence under Section 302 of the IPC as according to the State, offence against the accused under Section 302 of the IPC has been duly proved whereas Criminal Appeal No.917 of 1995 is filed by the accused under Section 374 (2) of the Code challenging the order of conviction of the offence under Section 304 Part II as well as Section 323 of the IPC.

(3.) The basic facts of the case have been detailed in the judgment of the learned Additional Sessions Judge, therefore, it is not expedient for us to repeat the same all over again in verbatim in detail in this judgment. However, the basic facts which are necessary to be discussed in this appeal are that: 3.1. Complainant - Vimlaben and the accused belong to same caste and were doing business of old clothes in Lala Kaka Market, Delhi Darwaja, Ahmedabad since 1991. The complainant's husband deceased Gordhanbhai was from Panchal community (blacksmith) with whom she had an affair and married with him. Prior to the incident, that is, during Navratri festival, two children of A-1 and A-2 (who are husband and wife) had died. At that time the complainant Vimlaben told them that if they had given treatment their children would have survived. At that time A-1 and A-2 abused the complainant. 3.2. On 10.11.1991 at 1 O' clock A-1 and A-2 came near the house of the complainant. At that time also the complainant told the same thing and thereupon A-1 and A-2 abused the complainant. 3.3. The alleged incident had taken place on 11.11.1991. At that time the complainant and her deceased husband Gordhanbhai came near Lala Kaka Market where the business of old clothes was being carried out. At that time all the accused came there. A-2 told the complainant that she was not concerned with the death of her children and she should not interfere in their affairs. Thereafter A-2 abused the complainant and caught hold of her hair on head and gave fist blow on her chest. At that time the complainant's husband deceased Gordhanbhai came to rescue her. At that time A-1 and A-3 intervened and they gave fist blows to Gordhanbhai. At that time Babuben and Alwain Christian intervened and came to the rescue of the deceased Gordhanbhai. Thereafter accused went away from there. After the alleged incident, deceased Gordhanbhai became unconscious and, therefore, the complainant with the help of intervener took her husband at her home in a rickshaw. Thereafter deceased Gordhanbhai was shifted to emergency ward of V.S. Hospital where he died. 3.4. A complaint for the aforesaid incident was filed by Vimlaben at V.S. Hospital which was transferred to Madhavpura Police Station against the accused for beating her as well as killing her husband by beating him. The complaint was registered as FIR No.I-528/1991 at Madhavpura Police Station. After registering the complaint, investigation was put into motion. Kalavadara PSI took charge of the investigation. He prepared the inquest Panchnama, sent the dead body for autopsy and thereafter transferred the investigation to A.P. Patel, Police Inspector. During the course of the investigation made by A.P. Patel, Police Inspector, clothes and ring of deceased Gordhanbhai were recovered, recorded statements of the witnesses, prepared Panchnama and arrested the accused. He also recorded N.C. complaint No. 722 of 1991 for commission of the offence under sections 323, 504 and 114 of IPC filed by the accused No.3 against deceased Gordhanbhai as well as the complainant Vimlaben. On receipt of the autopsy report, as evidence was divulged against the accused, he filed charge-sheet against the accused for commission of the offences under sections 302 and 323 read with section 114 of the IPC in the court of learned Metropolitan Magistrate, Ahmedabad. 3.5. On committal, the learned Additional Sessions Judge framed charge at Ex.2 against the accused for commission of the offences under Sections 302 and 323 read with section 114 of IPC. The charge was read over and explained to them and they pleaded not guilty to the same and claimed to be tried. 3.6. To prove the culpability of the accused, the prosecution examined in all seven witnesses and also produced documents upon which heavy reliance was placed. 3.7. The learned trial Judge thereafter recorded further statements of the accused under Section 313 of the Code after the recording of the evidence of the prosecution witnesses was over wherein also they denied the prosecution case and repeated that they are innocent persons. However, they did not lead any evidence nor examine themselves on oath. 3.8. On appreciation, evaluation and analysis of the evidence led by the prosecution witnesses, the learned trial Judge came to the conclusion that the prosecution has proved the alleged incident of beating the deceased by the accused by fist and as a result thereof the deceased died of a homicidal death. He has also recorded the finding that though homicidal death is proved it was not a murder as there was no intention to cause the death of the deceased by the accused. The accused had knowledge when they gave the fist blows that the injury was sufficient in the ordinary course of nature to cause death of the deceased punishable under section 304 Part II of the IPC and, therefore, offence under Section 302 of IPC is not proved but offence under Section 304 Part II of IPC is proved and, therefore, A-1 and A-3 have committed offence under Section 304 part II of IPC whereas A-2 has committed offence under Section 304 Part II and Section 323 read with section 114 of the IPC as she has abetted in committing the offence and also beaten the complainant Vimlaben who has been injured by her and resultantly he passed the order of conviction and sentence to which reference is made in earlier paragraphs of this judgment. It is this finding, ultimate conclusion and resultant order of conviction and sentence which has given rise to the present two appeals one at the instance of the State and the second at the instance of the accused.