PARESH SHANTILAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant was charged and tried for the offences punishable under Sections 302 and 309 of the Indian Penal Code. The case against him was that on 01st September, 2000 at about 11. 00 a. m. , he committed murder of his step-mother Kanchanben by inflicting multiple blows on her abdomen, neck and other parts of the body with a 'gupti' and thereafter, the accused self-inflicted wounds on his own person and thereby committed murder of his step-mother Kanchanben and attempted to commit suicide. An F. I. R. was lodged with Bhayavadar Police Station on the basis of which investigation was made and chargesheet was filed in the Court of Judicial Magistrate First Class, Upleta who, in turn, committed the case to the Court of Sessions, Rajkot and Sessions Case No. 124 of 2000 came to be registered. The charge was framed against the accused at Exh. 1 for the offence of murder and attempted suicide. The accused pleaded not guilty to the charge and claimed to be tried. The Trial Court, after considering the evidence led by the prosecution, by its judgment and order dated 06th January, 2004, held that both the charges were proved against the accused and convicted him therefor. For the offence of murder, the Trial Court sentenced the appellant to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default, further imprisonment for a period of three months. No separate sentence was awarded for the offence of attempted suicide. It is this judgment of Fast Track Court No. 12, Gondal which is the subject matter of challenge in this appeal.

(2.) LEARNED senior advocate Mr. Lakhani for the appellant submitted that the prosecution case depends only on three pieces of evidence. First is the dying declaration of the accused before the Executive Magistrate which would now become his previous statement in view of the fact that he has survived. The second is the post-mortem notes of Kanchanben and the third is the medical certificate in respect of the injuries sustained by the accused himself. Mr. Lakhani submitted that the incident occurred in the house when there was no one in the house. The deceased was the step-mother of the accused. Both of them were found lying in the house in an injured condition with the door bolted from inside and as such, there is no direct evidence as to how the incident occurred. Mr. Lakhani submitted that the theory of prosecution that the accused committed murder of the deceased and then attempted to commit suicide is not supported by any cogent evidence. The evidence in the form of dying declaration which was the previous statement of the accused is at Exh. 50 which does not speak of the theory canvassed by the prosecution and the Trial Court, therefore, committed an error in convicting the appellant for the offence of murder or even attempted suicide. Exh. 50 would only reveal that he was assaulted upon by the deceased and the appellant exercised his right of private defence and in doing so, the death of the deceased occurred. He himself also suffered various injuries. Mr. Lakhani has drawn attention of this Court to the evidence of Medical Officer Dr. Akim Amaan (Exh. 29) who, in cross-examination, has admitted that the injuries on the accused were not simple but three injuries for which sutures were taken were of serious nature. He has also admitted that looking to the nature of injuries, the possibility of the injuries on the person of the accused being inflicted with a dagger is greater. He, therefore, submitted that the theory of the prosecution gets negatived by this evidence. The conviction under both the provisions, therefore, may be set aside and the appellant be acquitted of the charges by allowing the appeal.

(3.) LEARNED Additional Public Prosecutor has opposed this appeal. According to him, even if the theory of defence of the appellant is accepted, then the fact that it was in exercise of right of private defence that the deceased suffered injuries cannot be believed if the injuries on the person of the deceased are seen. The deceased had multiple serious injuries and, therefore, it cannot be a case of exceeding right of private defence. The learned Additional Public Prosecutor has also submitted that the case, therefore, would fall under the category of culpable homicide not amounting to murder, if not murder.