GORDHANBHAI MATHURBHAI VASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) SOLE appellant ('the accused' for short) was charged and tried by the learned Additional Sessions Judge, Vadodara ('the trial Court' for short) for the offence punishable under Section 302 of the Indian Penal Code ('IPC' for short) and under Section 135 of the Bombay Police Act ('BP Act' for short) in Sessions Case No.41 of 2000 on the accusation that he has committed murder of his sister -in -law Nankiben, in a very petty and trifle dispute of not lending money by her to him. At the end of the trial, the accused was found guilty of the offences with which he was charged and, therefore, the trial court vide judgment and order dated 14.9.2000 convicted him for the said offences and sentenced to imprisonment for life and fine of Rs.1,000/ - i.d., RI for six months for the offence under Section 302 IPC and RI for three months and fine of Rs.100/ - i.d., RI for ten days for the offence under Section 135 of the BP Act.

(2.) THE prosecution case as disclosed from the telephone vardhi received by P.W.10, Kantibhai Balabhai Rathwa, ASI, Karjan Police Station and unfolded during trial is as under:

(3.) MS . Sadhna Sagar, learned advocate for the accused appointed by the Legal Aid Committee for the accused, has fairly conceded that deceased Nankiben has died a homicidal death. She has also conceded that the accused is the author of the injuries caused to the deceased. She has contended that there is inconsistency in the testimonies of eye witnesses and the medical evidence. Eye witnesses say that only a single blow was given by the accused whereas medical evidence shows five injuries on the dead body of Nankiben. According to her only one blow was given on the head of Nankiben by the accused and therefore the offence does not amount to murder but it amounts to culpable homicide not amounting to murder. According to her, there was no intention on the part of the accused to commit murder of Nankiben who is his sister -in -law. The incident had taken place on a trifle and petty matter. The accused demanded money which Nankiben refused to lend and therefore the accused suddenly got excited and inflicted a single blow with a wooden log and thereafter he ran away and he has not acted cruelly or in an unusual manner and has also not taken undue advantage. Therefore, offence is not murder but it is culpable homicide not amounting to murder punishable under Section 304 Part I or II IPC. The accused has undergone imprisonment of seven years and since the offence committed by the accused is under Section 304 Part I or II IPC, the custodial sentence undergone by him may be treated as substantive sentence. She therefore urged to allow the appeal partly qua sentence only and appropriate order in this connection may be passed.