CHANDUBHAI CHHITTABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeals are directed against an order of the learned Additional Sessions Judge, Panchmahals Godhra in Sessions Case No. 117 of 1983 on his file. The appellant-accused Chandubhai Chhitabhai was prosecuted on an allegation that on 11.3.1983 at about 7.00 a.m. at village Desar, he had inflicted two paliya blows on Bai Janki, wife of Jayantilal who had also remarried with one Vasanti. At the relevant time, Bai Janki had gone to the river pond to fetch water. While she was returning, she had to pass by the house of the accused. The house of the deceased i.e. her husband Jayantis house and the present appellants house are in the same street at a short distance. The accused is alleged to have caught hold of Bai Janki by her hand as he wanted that Bai Janki should marry with him. Janki raised shouts save, save),. The accused got enraged by this. He was armed with a paliya (a curved weapon with a sharp steel blade). He inflicted one blow on the head of the deceased with such ferocity that it went deep upto the depth of 3 and even the brain matter came out. Not being satisfied with this, the accused once again gave another blow on the shoulder and this second blow though it was second in point of time, it was not less in ferocity in as much as it resulted into the fracture of the selpular bone and it has cut the same bone into two pieces. On hearing the shouts of Janki, many persons came to the scene of offence. The accused went inside his house and he behaved like armed bull in a china shop and he started darbing arrows. A complaint was lodged at about 11.30 as the police station is quite at some distance from the scene of offence. After completing the investigating, the accused was arraigned before the learned AddI. Sessions Judge for an offence punishable U/s. 302 of the I.P.C. The learned AddI. Sessions Judge accepted the prosecution version and came to the conclusion that the offence was brought home against the accused. He, however, came to the conclusion that the offence could not be one punishable under Sec. 302 I.P.C., but would be one punishable under Section 304 (I) of the IPC. He, therefore, convicted the accused for the said offence and sentenced him to 7 years R. I. and also imposed a fine of Rs. 500/- in default further RI. for 6 months. Being aggrieved by the said order, the appellant accused has preferred the present appeal from jail and the State of Gujarat being aggrieved by the learned Sessions Judges order bringing down the offence from one punishable under Sec. 302 I. P. C. has also challenged the said order on the ground that the proper conviction should have been under section 302 I.P.C.

(2.) For the reasons now to be recorded, we feel that while the appeal filed by the accused requires to be dismissed, one filed by the State of Gujarat requires to be allowed. Mr. A.K. Mankad (learned advocate appointed to assist the court on behalf of the accused) took us through the judgment and the evidence of material prosecution witnesses and while Mr. Mankad could not urge anything whereby a dent could be made in the order of conviction, Mr. Mankad tried to substantive the reasoning of the learned AddI. Sessions Judge for bringing down the offence from one punishable under section 302 I.P.C. to section 304 (I) I.P.C.

(3.) As against this, Mr. J. U. Mehta, the learned PP. urged that the reasons given by the learned AddI. Sessions Judge for bringing down the offence to culpable homicide not amounting to murder are not only unsustainable but they are totally frivolous. We are tempted to agree with Mr. J. U. Mehta.