Gujarat High Court
State Of Gujarat vs Dashrathsinh Bharatsinh Rathod on 14 September, 2021
Bench: Paresh Upadhyay, Ashokkumar C. Joshi
R/CR.A/1018/2021 JUDGMENT DATED: 14/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1018 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PARESH UPADHYAY
and
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy of
3 NO
the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution of NO
India or any order made thereunder ?
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STATE OF GUJARAT
Versus
DASHRATHSINH BHARATSINH RATHOD & ORS.
=======================================
Appearance:
MR HARDIK SONI, APP for the Appellant - State
=======================================
CORAM:HONOURABLE MR. JUSTICE PARESH UPADHYAY
and
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 14/09/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE PARESH UPADHYAY)
1. The State has filed this acquittal appeal challenging the
judgment and order passed by the 3 rd Additional Sessions Judge,
Panchmahals at Halol dated 17.01.2019 in Sessions Case No. 87
R/CR.A/1018/2021 JUDGMENT DATED: 14/09/2021
of 2017. The trial was held against three accused for having
committed the offences punishable under Sections 302, 323, 324,
504, 337 read with Section 114 of the Indian Penal Code, 1860
(herein after referred to as "the IPC") and Section 135 of the
Gujarat Police Act.
2. Heard Mr. Hardik Soni, learned Additional Public Prosecutor
for the appellant - State.
3. It is noted that the learned Additional Public Prosecutor has
taken this Court extensively through the judgment and order of
the learned Sessions Judge, so also the relevant evidence which
are on record, pursuant to the order of this Court dated
30.07.2021.
4.1 The learned Additional Public Prosecutor has submitted
that, in the face of the injuries sustained by the deceased, as
proved by medical evidence (as noted in paragraph 11 of the
impugned judgment), the final conclusion arrived at by the
Sessions Court that this was the case of having committed
offence under Section 304 (Part-II) of the IPC and not under
Section 302 of the IPC, is erroneous and the same needs to be
interfered with by this Court.
4.2 Alternatively, it is submitted that even if the final judgment
- that the accused was to be convicted for having committed the
offence punishable under section 304 (Part-II) of the IPC - is
accepted to be just and proper, the sentence of 7 years is on
lesser side and the same needs to be enhanced.
4.3 It is also submitted that, the acquittal recorded by the
R/CR.A/1018/2021 JUDGMENT DATED: 14/09/2021
Sessions Court qua the accused Nos. 2 and 3, even from the
charge of section 304, needs to be interfered with.
4.4 It is submitted that this appeal be entertained.
5. Having heard the learned Additional Public Prosecutor for
the State and having considered the material on record, this
Court finds as under:
5.1 The incident had taken place on 18.04.2016; place is
village: Sathrota, Taluka: Halol, District: Panchmahals.
5.2 The accused and the victim are neighbours.
5.3 There was some dispute about boundary / fencing between
two houses, which led to scuffle, which led to death of the victim.
5.4 Three persons are named as accused. One is a lady, who at
the relevant time was aged about 70 years. Other two are her
adult sons viz., accused No. 1 - Dashrathsinh Bharatsinh Rathod,
aged about 46 years and accused No. 2 - Sureshsinh Bharatsinh
Rathod, aged about 37 years. These three persons of one family
were charged for having committed the offences punishable
under section 302 IPC etc.
5.5 It is the case of the prosecution that, the accused No.1 -
Dashrathsinh Bharatsinh Rathod had inflicted blow with 'Dhariya'
and the accused No.2 - Sureshsinh Bharatsinh Rathod had used
an Axe. Their mother - Champaben Bharatsinh Rathod (accused
No.3) had allegedly thrown stones towards the victim.
R/CR.A/1018/2021 JUDGMENT DATED: 14/09/2021
5.6 The medical evidence on record, which is discussed in
paragraph 11 of the judgment and which is heavily relied by the
learned Additional Public Prosecutor, indicates that the cause of
death was the injury on the head of the victim of 3" x 0.5" with
the depth of 1 cm. It is also proved that the said injury was
sustained because of Dhariya blow.
5.7 The Sessions Court has, on the basis of the evidence
adduced before it, arrived at the judgment that, though it cannot
be disputed that homicidal death had taken place, it was not
murder. We find that, on the basis of the evidence on record and
considering the totality, the Sessions Court cannot be said to
have committed any error in that regard.
5.8 So far the injury sustained by the deceased is concerned,
he died of single blow. It is attributed to accused No.1.
5.9 On conjoint consideration of what is noted in Paras : 5.7 and
5.8 above, the accused No.1 could be convicted under Section
304 and not under Section 302 of IPC.
5.10 The judgment of the Sessions Court need not be interfered
with on this count.
6.1 Accused No.2 is convicted under Section 324 of the IPC. The
injury sustained by the deceased was a single blow and accused
No.1 is convicted for that. Acquittal of accused No.2 from the
charge of Section 302 of the IPC and further, not convicting him
even under Section 304 of the IPC, under these circumstances,
need not be interfered with.
R/CR.A/1018/2021 JUDGMENT DATED: 14/09/2021
6.2 The accused No.3 - (the mother), in any case, was alleged
to have thrown stone etc., towards the victim. Her acquittal also
does not call for any interference by this Court.
6.3 In totality, we find that, the impugned judgment and order
recorded by the Sessions Court, does not call for any interference
by this Court.
7. The alternative argument of the learned Additional Public
Prosecutor that, the sentence of rigorous imprisonment for seven
years qua accused No.1 is on lesser side and the same also needs
to be enhanced, needs to be rejected, because the discretion
exercised by the Sessions Court in this regard need not be
interfered with by this Court.
8. In totality, this Court finds that no interference is required in
the impugned judgment and order of the Sessions Court. This
appeal, therefore, needs to be dismissed.
9.1 While dismissing this appeal, it is clarified that, the findings
and observations of this Court in this judgment are on the basis
of the submissions made before this Court in the appeal filed by
the State after seeking leave of this Court under section 378(1)
(3) of the Criminal Procedure Code, 1973 and in the event, any
appeal is filed by the victim, the same may be examined on its
own merits.
9.2 We further clarify that, the conviction appeal filed by any of
the accused may also be considered on its own merits and non-
interference by this Court in the judgment of the Sessions Court
in this appeal, at the hands of the State, is not to mean
R/CR.A/1018/2021 JUDGMENT DATED: 14/09/2021
confirmation of the judgment of the Sessions Court.
10. This appeal is dismissed with above observations and
clarifications.
[ Paresh Upadhyay, J. ]
[ A. C. Joshi, J. ]
hiren
