The State Of Gujarat vs Balwantbhai Mathurbhai Patel

Gujarat High Court

The State Of Gujarat vs Balwantbhai Mathurbhai Patel on 6 January, 2025

Author: Gita Gopi

Bench: A.S. Supehia, Gita Gopi

                                                                                                                         NEUTRAL CITATION




                           R/CR.A/1054/2003                                            JUDGMENT DATED: 06/01/2025

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                                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/CRIMINAL APPEAL NO. 1054 of 2003

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MR. JUSTICE A.S. SUPEHIA                                         Sd/-
                      and
                      HONOURABLE MS. JUSTICE GITA GOPI                                            Sd/-
                      =============================================
                                   Approved for Reporting                             Yes            No
                                                                                                      √
                      =============================================
                                               THE STATE OF GUJARAT
                                                      Versus
                                        BALWANTBHAI MATHURBHAI PATEL & ORS.
                      =============================================
                      Appearance:
                      MR HARDIK SONI, APP for the Appellant(s) No. 1
                      NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
                      =============================================
                        CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                              and
                              HONOURABLE MS. JUSTICE GITA GOPI
                                        Date : 06/01/2025
                                        ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE GITA GOPI)

1. The present appeal has been filed by the appellant - State under Section 378(1)(3) of the Criminal Procedure Code, 1973 (hereinafter referred as "the Code") against the judgment and order of acquittal dated 20.02.2003 passed by the learned Additional Sessions Judge, Panchmahals, (hereinafter referred as "the Trial Court") in Session Case No.240 of 2002, whereby the learned Trial Court Judge has acquitted the respondents - accused for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860, (in short, "the IPC"). The learned Trial Court has also granted the benefit of probation under the Page 1 of 8 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:33:27 IST 2025 NEUTRAL CITATION R/CR.A/1054/2003 JUDGMENT DATED: 06/01/2025 undefined Probation of Offenders Act, 1958, to the original accused Nos.2 and 3 i.e. Mathur Hemantbhai Patel (father of the deceased) and Soniben Balwantbhai Mathur (wife of the brother of the deceased), who were convicted for the offence under Section 323 of the IPC and directed to furnish surety of Rs.5,000/- for their good behavior, while the original accused No.1 - Balwantbhai Mathur Patel was found guilty for an offence under Part-II of Section 304 of the IPC and was ordered to undergo 5 years rigorous imprisonment and to pay fine of Rs.5,000/- and in default, further simple imprisonment of three months.

2. As per the case of the prosecution, on 08.06.2002, the complainant - Saguben wife of the deceased filed a complaint before the police station alleging that the elder brother of her husband along with his wife and father-in-law assaulted her husband stating the fact that on 05.06.2002, there was a marriage ceremony and the deceased had attended the same and at about 9 p.m., while returning to home, he found that the water-pump was working and he switched off the same under the impression that it was turned on by mistake and thereafter, he slept on the cot in the compound of his house. It was further alleged in the complaint that the accused No.1 - Balwantbhai Mathur Patel came there with a wooden- log(baton) and asked him as to why he has switched off the water-pump. The deceased replied that he thought that the water-pump was working by mistake and therefore, he disconnected the cable. Further, as per the prosecution case, the accused No.1 got agitated and gave him 3-4 blows with Page 2 of 8 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:33:27 IST 2025 NEUTRAL CITATION R/CR.A/1054/2003 JUDGMENT DATED: 06/01/2025 undefined wooden-log (baton) and it is also stated that the accused No.2

- father of the deceased and accused No.3 - wife of the accused No.1 came there and started abusing the deceased and the accused No.2 - Mathurbhai slapped the deceased on the face, while accused No.3 - Soniben gave kick blows on the stomach of the deceased.

3. Initially, the deceased was treated at local Dispensary, and on 08.06.2002, the condition of the deceased became critical and therefore, he was taken to Godhra Hospital and he succumbed on his way to the hospital. Thereafter, an FIR being I-CR No.132 of 2002 was registered on 08.06.2002 by the wife of the deceased before the Bariya Police Station for the offences punishable under Sections 302, 304, 323 read with 506(2) of the IPC. The wife of the deceased was examined as PW-2 at Exh.19. The complainant has reiterated the facts in her examination-in-chief. She states that when she had gone to intervene / release them, however, she was also threatened and assaulted. As per the say of the complainant, the accused No.2 had gone to call a doctor in the morning and while her uncle-in-law inquired from her husband, who had informed him that his father, brother and sister-in-law (bhabhi) had beaten him. The complainant states that till 4 O'clock in the evening, the accused No.2 - her father-in-law had not come with the doctor and thereafter, the accused - Balwant and her uncle-in- law - Manubhai Hemantbhai had taken the deceased to the Dispensary at Bariya. As per the deposition of the complainant, she herself has not joined them.

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4. The doctor (PW-1) - Dr.Madan Kishorilal Irpachi had conducted the postmortem on 08.06.2002. In his deposition, he has suggested that there was a rupture in the left lung area and he further states that because of the rupture in the lung area, there was internal hemorrhage, which has been the cause of the death of the deceased. The PM report is on record at Exh.18. The column No.17 of the said PM report suggests the external injuries on the upper part of the face with damaged nose, while no external injury has been found over the lung area. The cause of death, as noted in the PM report, is shock due to rupture in the lung area, which caused brain hemorrhage to the deceased.

5. In the cross-examination the complainant has stated that her husband was assaulted with wooden-log. She has denied the suggestion that prior to the incident, they had no good relation with the brother-in-law and the father-in-law. She deposed that the incident had occurred when the deceased switched off the water motor-pump and the elder brother had questioned about his action. The weapon, which is involved in the offence i.e. the wooden-log(baton), which is used for the agricultural purpose or an instrument like a wooden piece which is easily found where agricultural activities are undertaken.

6. The PW-4 - Gopsinh Chandubhai examined at Exh.22, is the brother of the complainant and before him too, the deceased had informed that he was assaulted by his brother, sister-in-law and his father.

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7. The PW-5 - Manubhai Hemantbhai, examined at Exh.23, who is the uncle of the deceased and brother of the accused No.2 before whom, both accused No.1 and accused No.2 had stated that they had beaten the deceased.

8. The learned trial Court Judge, while appreciating the evidence on record, has convicted under Section 323 of the IPC giving the benefit of probation to the accused Nos.2 and 3 against whom the allegation was of beating the deceased on the face and against the sister-in-law of giving kick blows on the abdomen. The accused No.1 was convicted under Section 304(2) of the IPC.

8.1 Learned Additional Public Prosecutor Mr.Hardik Soni, has submitted that the Trial Court has committed an error by not convicting all the accused under Section 302 read with Section 34 of the IPC, since the common intention was to murder. The continuous blow with the wooden club on the vital part is sufficient evidence to attract conviction for murder, hence he has urged to convert the conviction from Part-II of Section 304 to Section 302 of the IPC.

8.2 The observation to that effect of the learned Trial Court Judge requires consideration. The learned Trial Court Judge has noted that the reason behind the quarrel was switching off the water-pump motor, which was working for water flow on the agricultural land and that was the cause of quarrel between the deceased and the accused No.1, whho are brothers. The accused No.1 gave 3-4 blows of wooden log. The learned Trial Page 5 of 8 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:33:27 IST 2025 NEUTRAL CITATION R/CR.A/1054/2003 JUDGMENT DATED: 06/01/2025 undefined Court Judge has considered the weapon as a simple instrument observing that the same has caused internal injury without any external injury, and further noted that the death has occured after three days on the way while shifting the deceased to Godhra Hospital from Bariya Dispensary. Thus, observing that the treatment has been given to the deceased after a lapse of long period to the incident, therefore the learned Trial Court Judge has declined to convict the accused under Section 302 of the IPC.

9. The learned Trial Court has rightly considered the offence under Part-II of Section 304 of the IPC since the medical treatment was not immediately made available. The evidence of the complainant itself shows that on the very night of the incident, he was not taken to the hospital and thereafter also, the deceased was taken to the Dispensary at Bariya by the accused No.1 and the uncle of the deceased. The PW-7 - Medical Officer was present on 06.06.2002 at Bariya and according to him, at 6:10 in the evening, the injured deceased Narvatbhai Mathurbhai had come with his relative at the hospital. The history was given at the relevant point of time that he has fallen from the tree. The complainant was suffering from pain in the stomach and after giving primary treatment, the deceased was referred to Godhra Hospital. The injury, which was found in the report observed by the Doctor, who had conducted PM, found rupture in the lungs, which was internal injuries, while no external injuries could be found, though there was an allegation that he was incessantly assaulted with the wooden log by the accused No.1. The Page 6 of 8 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:33:27 IST 2025 NEUTRAL CITATION R/CR.A/1054/2003 JUDGMENT DATED: 06/01/2025 undefined incident is not denied by the witnesses.

10. The weapon as alleged in the offence, is wooden log and the fact that the treatment of the deceased was delayed and the injury caused is the rupture in the lungs area without any external injuries, the learned Judge has rightly considered the offence under Part-II of Section 304 of the IPC.

11. At this stage, it would be apposite to refer to the decision of the Supreme Court in the case of Anbazhagan Versus State, reported in AIR 2023 SC 3660. The Hon'ble Supreme Court while considering the ingredients with regard to the offence under Sections 299, 300 and 304 of the IPC, after referring to various judgments, has framed few important principles of law to distinguish the offence to be considered under Part-I and Part-II of 304 of the IPC. The Supreme Court has clearly laid down that, it would be an offence under Part-I of that section, if the case fall within 2nd part of Section 299 of the IPC. Explaining it further, it was held that, if the act of an accused person falls within the first two clauses of cases of culpable homicide, as described in Section 299 of the IPC, it is punishable under the first part of Section 304 of the IPC. However, if falls within the third clause, that is punishable under the second part of Section 304 of the IPC. The Supreme Court has, thus, further clarified that the offence would fall under first part of there is 'guilty intention,' but would not apply in a case where there is 'guilty knowledge'. The second part would apply when no such guilty intention could be gathered from the circumstances of the case.

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12. Here in this particular case, the injury which has been inflicted, was found as internal injuries on the lungs, which caused the rupture in the lungs, but no corresponding external injuries were found. More so, the incident has occurred for a very trivial cause, and the weapon which was used in the offence is a wooden log, which itself shows that there was no intention to cause the death of the deceased.

13. Thus, we do not find any irregularity and illegality in the appreciation of the evidence, as the learned Trial Court Judge has rightly considered the case and punished the accused No.1 under Part-II of Section 304 of the IPC with the benefit of probation given to other accused under the Probation of Offenders Act, 1958. Hence, the present appeal fails and the same stands dismissed.

14. Record and proceedings be sent back to the concerned Trial Court forthwith.

Sd/-

(A. S. SUPEHIA, J) Sd/-

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