STATE OF GUJARAT Vs. RANJITSINH GAMBHIRSINH DABHI

JUDGEMENT

(1.) The question which arises for consideration of the Court in this appeal is, whether the offence committed by the respondent is punishable under section 302 of the Indian Penal Code or Part-II of Section 304 of the Indian Penal Code. This question arises in the following circumstances:

(2.) Deceased Govindbhai Sardarji Thakor was residing in Mohanlal ni Chawl, Gomtipur, Ahmedabad. On May 28, 1990 at about 8.30 P.M. after taking dinner, he went out of his house to purchase bidi and match-box and also to bring his minor son who was playing outside the chawl of his residence. When he went out, his mother, wife and other family members were in the house. After an hour or so, 2 - 3 children came to the house of the deceased and informed Shantaben who was mother of the deceased that some quarrel had taken place between the deceased and respondent, as a result of which, the respondent had inflicted a knife blow on the abdomen of the deceased. On receiving the said information, Shantaben went to the place of incident and found her son lying there bleeding profusely. Shantaben arranged for removal of deceased to Shardaben Hospital in a rickshaw owned by Prahladbhai Nanjibhai Raval. According to Shantaben, on way to Shardaben Hospital, deceased informed her that a sudden quarrel had taken place with the respondent, as a result of which, the respondent had given a blow with knife on abdomen of the deceased and run away. The deceased was admitted in emergency ward of Shardaben Hospital, where he was treated by Dr. Kathad Arsibhai Ramabhai. At the hospital, first information report was lodged by Shantaben. On the strength of the said information, investigation was started and the respondent was arrested on 29/05/1990. During the course of investigation, weapon alleged to have been used in commission of the offence was recovered pursuant to the information provided by the respondent. Initially, offence punishable under section 307 I.P.C. was registered, but during the course of treatment Govindbhai expired and, therefore, offence under section 302 I.P.C. was added. On expiry of Govindbhai, his dead body was sent for postmortem and autopsy was performed by Dr. Gaurang Govindbhai Kothari. The investigating officer had recorded statements of witnesses who were conversant with the incident in question. At the conclusion of investigation, respondent was chargesheeted for the offence punishable under section 302 I.P.C. read with section 135 of the Bombay Police Act, 1951. As the offence punishable under section 302 I.P.C. is exclusively triable by Court of Sessions, the case was committed to Sessions Court for trial where it was numbered as Sessions Case No.208/90. The learned Additional City Sessions Judge had framed charge against the respondent for the offence punishable under section 302 I.P.C. read with section 135 of the Bombay Police Act. The charge was read over and explained to the respondent, who pleaded not guilty to the charge and claimed to be tried. Therefore, prosecution examined; (1) Shantaben Sardarji Thakor, PW 1 at Exh.16, (2) Shaileshkumar Chhaganlal, PW 2 at Exh.21, (3) Kirankumar Rameshchandra, PW 3 at Exh.23, (4) Harcharan Kanjimal Sharma, PW 4 at Exh.24, (5) Dr. Kathad Arsibhai Ramabhai, PW 5 at Exh.30, and (6) Dr. Gaurang Govindbhai Kothari, PW 6, Exh.31, to bring home guilt to the accused. The prosecution also produced documentary evidence, such asinquest report at Exh.7, panchnama of place of incident at Exh.8, postmortem notes prepared by Dr. GaurangKothari at Exh. 10, report received from Forensic Science Laboratory at Exh.14, order promulgated by Commissioner of Police under section 37(1) of the Bombay Police Act, 1951 prohibiting carrying on arms, knives, spears, guns etc. at Exh.15, first information report lodged by Shantaben at Exh.26 etc. to prove its case against respondent. On appreciation of evidence led by the prosecution, learned Judge held that it was proved that the respondent had inflicted blow on the abdomen of the deceased, which ultimately resulted in his death, but it was not proved by the prosecution that respondent had inflicted the said blow with intention to cause death of the deceased and therefore, the respondent was guilty of an offence punishable under section 304 Part-II of the Indian Penal Code. In view of the above-referred to findings, the learned Additional City Sessions Judge by judgment and order dated 20/03/1991 acquitted the respondent of the offence punishable under section 302 I.P.C., but convicted him under section 304 Part-II of I.P.C. read with section 135(1) of the Bombay Police Act sentencing him to suffer R.I. for five years and pay a fine of Rs. 1000.00, i/d. to undergo S.I. for three months, giving rise to present appeal. We may mention that no separate punishment was imposed on the respondent under section 135(1) of the Bombay Police Act.

(3.) Mr. S.R.Divetia, learned Counsel for the appellant submitted that the respondent was armed with deadly weapon before quarrel took place and, therefore, intention to cause death of deceased Govindbhai ought to have been attributed to the respondent. It was claimed that as per the medical evidence, injury was sufficient in the ordinary course of nature to cause death and evidence of medical officer, who performed autopsy, indicated that intestine was cut as well as all the parts of intestines were also damaged and the wound had gone so deep that because of injury, 1500 ML.CC blood had collected in the stomach region and, therefore, the respondent ought to have been convicted under section 302 I.P.C. The learned Counsel stressed that the respondent had caused stab injury to the deceased with such a force that ultimately it had proved fatal and, therefore, his conviction under section 304 Part-II of I.P.C. is not justified at all.