MAHINDRA MULJI KERAI PATEL v.

STATE OF GUJARAT (Criminal Appeal No. 925 of 2001)

OCTOBER 14, 2008 [DR. ARIJIT PASAYAT AND C. K. THAKKER, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J.  1. Challenge in this appeal is to the judgment  of  a  Division  Bench  of  the  Gujarat  High  Court.  The appellant faced trial for offence punishable under Sections 302, 307 and 506 (2) of Indian Penal Code, 1860 (in short ‚IPC‘) for having caused homicidal death of one Kunverba Kanji (hereinafter referred to as  the ‚deceased‘)  and causing  injuries  to  Jasuben Premji,  the complainant.  The occurence took place on 18.12.1989  at  about  7 p.m. The background of the occurence was that the appellant was supposedly in love with the grand-daughter of the deceased i.e. the daughter  of  the  complainant  Jasuben  Premji.  As  the  two  ladies objected to the proposal of marriage given by the accused, he took out his anger on the two ladies and took the life of one and caused serious  injuries  to  the  other.  After  investigation,  the  Investigating Officer filed charge sheet, the trial was held as the accused pleaded innocence. Learned Additional Sessions Judge, Kutch at Bhuj was of the  view that  the accused was guilty of  offence  punishable  under Section 324 IPC and was sentenced to  undergo imprisonment  for two years and pay fine of Rs. 2,000/- in default to undergo S.I. for six months.  The accused was also found guilty  of  offence punishable under Section 452 and was sentenced to undergo imprisonment for one year and fine of  Rs.  500/-,  in default,  to  undergo S.I.  for  two months. Questioning the correctness of the order, the State preferred an appeal in terms of Section 378 of the Code of Criminal Procedure, 1973 (in short ‚Code‘). Primary challenge was to the acquittal of the accused in respect  of  offences punishable under Section 302 and 307  IPC.  The  High  Court  on  analysis  of  the  evidence,  more particularly that of PW1, the complainant and PW2, the Doctor, came to hold that the trial court was not justified in directing the acquittal of the accused in respect of offence punishable under Section 302 IPC. The  High  Court  also  said  that  the  accused  was  guilty  of  offence punishable under Section 307 IPC. Questioning the correctness of

the order passed by the High Court,  the present appeal has been filed.  

Learned  counsel  for  the  appellant  submitted  that  while convicting the appellant for offence punishable under Sections 302 and 307 IPC the High Court lost sight of the fact that the weapon which was purportedly used was a small dharia (FAGA). The medical evidence also does not make out a case for conviction in terms of Section 302 IPC. Reference is made to the evidence of the Doctor PW2 to contend that there was no definite opinion as to whether the injury  inflicted  could  have  caused  death  in  the  ordinary  course. Learned counsel for the respondent on the other hand supported the judgment of the High Court.  

2. Considering the evidence, and taking note of the nature of the injury  that  was  inflicted,  we  are  of  the  considered  view  that appropriate conviction would be under Section 304 Part-(II) IPC. The background facts show that there was pre-,meditation over exchange of words, one injury leading to the death was inflicted. Though in all cases  the  number  of  injuries  is  not  the  determinative  factor  for attracting  Section  302  IPC,  in  the  instant  case,  considering  the nature of  weapon used and surrounding  factors,  the  conviction  is altered. The conviction of the High Court under Section 307 IPC does not  warrant  any interference and is accordingly upheld.  Coming to the question of sentence , it needs to be noted that occurence took place on 18.12.1989 that too over a matter concerning the refusal of the deceased and the informant to the marriage proposal.  He was about 19 years of age at the relevant point of time. Considering the peculiar  facts  of  the  case,  we  are  of  the  view that  the  custodial sentence of six years would meet the ends of justice. The appellant was  released  pursuant  to  the  order  dated  10.05.2002.  He  shall surrender to custody forthwith to serve remainder of sentence.

3. The appeal is disposed of accordingly.