PRABHUDAS SUGNOMAL SINDHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH these Criminal Appeals arise out of judgment and order rendered by learned Additional Sessions Judge, Rajkot on 23. 10. 2003 in Sessions Case No. 156 of 1994 whereby the learned trial Judge recorded conviction of Prabhudas Sugnomal Sindhi, who was original accused in the aforesaid Sessions Case and who is appellant in Criminal Appeal No. 471 of 2006, for the offence punishable under Section 304 Part II of the Indian Penal Code ('ipc' for short) and awarded sentence of rigorous imprisonment for five years and fine of Rs. 1,000/- and in default of payment of fine, simple imprisonment for one month. Thus the trial Court recorded acquittal of the accused for the offence of murder punishable under Section 302 IPC. The State of Gujarat preferred Criminal Appeal No. 237 of 2004 under Section 378 of the Code of Criminal Procedure ('cr. P. C. ' for short) challenging the acquittal of the accused for the offence of murder punishable under Section 302 IPC and as stated above, the accused challenged his conviction under Section 304 Part II of IPC by preferring Criminal Appeal No. 471 of 2006.

(2.) THE prosecution case, in nut-shell, is that the incident occurred at about 22:30 hours on 8. 8. 1998 near the house of deceased Dineshbhai Jayantibhai situated in street No. 3 of the area called "ramnathpara", Rajkot. As per the prosecution case, at the time of the incident, the accused requested deceased Dineshbhai to lend him money which request was turned down by the deceased and thereupon the deceased was abused by the accused and as per the prosecution case the accused inflicted a solitary blow with scissors on left side lower part of the abdomen of the deceased. The deceased was immediately removed to hospital for treatment. The hospital authority informed the police and the FIR of the deceased was taken by the police officer, Ex. 48, while the deceased was under treatment. During the course of treatment, on the third day, the deceased succumbed to the injuries. During the course of investigation, statements of material witnesses were recorded, muddamal scissors was recovered and after collecting required material for the purpose of lodgment of charge sheet, the charge sheet came to be filed in the Court of learned Chief Judicial Magistrate, Rajkot. Since the offence was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate committed the case to the Court of Sessions at Rajkot which was registered as Sessions Case No. 156 of 1994.

(3.) THE learned trial Judge framed charge at Ex. 1 against the accused for the offence punishable under Sections 302 and 504 of IPC and under Section 135 of the Bombay Police Act to which he did not plead guilty and claimed to be tried. Thereupon the prosecution adduced its oral as well as documentary evidence. The prosecution examined in all four witnesses and produced relevant documentary evidence. After the prosecution concluded its evidence, the learned trial Judge recorded further statement of the accused under Section 313 of the Cr. P. C. and the accused in his further statement denied generally all the incriminating circumstances put to him by the trial Court and stated that he was wrongly implicated in this case. After considering the evidence on record and the submissions made on behalf of both the sides, the learned trial Judge came to the conclusion that the prosecution successfully established the involvement of the accused in this case. However, the trial court came to the conclusion that considering the facts and circumstances of the case and the circumstances under which the incident occurred and the solitary injury having been sustained by the deceased, the act which can be said to have been constituted is culpable homicide not amounting to murder and not murder and, therefore, recorded conviction of the accused for the offence punishable under Section 304 Part II of IPC and recorded acquittal of the accused for the offence punishable under Section 302 IPC. This has given rise to the above referred two Criminal Appeals.