Gujarat High Court
State Of Gujarat vs Chadabhai Bhagabha Chauhan on 27 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/862/2010 JUDGMENT DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 862 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
CHADABHAI BHAGABHA CHAUHAN & ANR.
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Appearance:
MR JAY MEHTA, APP for the Appellant(s) No. 1
MR PATHIV BHATT, ADVOCATE for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 27/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This enhancement appeal is being filed by the State of
Gujarat under Section 377 of the Code of Criminal
Procedure, 1973 against the order of sentence dated
08.02.2010 passed by the learned Additional Sessions
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Judge, Fast Track Court, Nadiad at Kheda in Sessions
Case No.45 of 2009.
2. The respondents-original accused no.1 and 2 along with
2 others were came to be tried for the offence
punishable under Sections 302, 307, 326, 504 read
with Section 34 of the IPC and Section 135 of the
Bombay Police Act. At the end of trial, Accused No.1-
Chadabhai Chauhan and Accused no.2-Somabhai
Chauhan were acquitted for the offence under Sections
302 and 504 of the IPC, however, Accused no.2
Somabhai-respondent no.2 found guilty of the offence,
culpable homicide not amounting to murder under
Section 304 Part I of the IPC. The respondent-accused
no.1 Chadabhai Chauhan found guilty for the offence
punishable under Sections 326 and 307 of the IPC and
they were sentenced as under:
Sections of IPC Punishment Fine In default
Accused no. 1 326 RI for four years Rs.2500/-
Accused no. 1 307 RI for seven years Rs.4000/-
Accused no. 2 304 Part-I RI for ten years Rs.5000/-
The accused were directed to undergo the above
sentences concurrently.
3. Facts and circumstances giving rise to this appeal are
that, the complaianant and the accused are resident of
village; Baladi, Taluka: Mahudha, Dist.: Kheda and they
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are also relatives. On 05.07.2008, the complainant PW-
1 - Naresh Chauhan, his father - Ramjibhai and uncle -
Abhabhai PW-12, had gone to their field for cultivation.
The field of the accused is adjacent to the field of the
complainant party.
According to case of the prosecution, in the noon
hours i.e. at 12 noon, the accused in number 4 came
to the field of the complainant party and asked the
deceased Ramjibhai and his brother PW-12 Abhabhai,
keep vacant some of the portion of the land, as it has
been used for personal purpose i.e. bathing and the
area, which was asked to keep vacant, is near the
house of the accused. Since long, the dispute was
going on with respect to said land. The PW-1 as well as
deceased Ramjibhai as well as his brother PW-12
Abhabhai, refused to keep the said portion of land
vacant and confronted that the said land is in their
possession and since long they are cultivating. On this
issue, heated exchange of words were taken place and
according to case of the prosecution, the accused party
hurled abusive and then, assaulted the deceased
Ramjibhai, his brother PW-12 Abhabhai with the
weapon Scythe (Dharia) and stick. The accused No. 1
Chaddabhai Bhagabhai gave a blow on the left
shoulder of the PW-12 Abhabhai with Scythe and due
to the said blow, the left forearm was amputated. The
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accused Chaddabhai again gave a blow on the right
hand of the PW-12 Abhabhai, which has resulted into
amputation of right thumb and right index fingure and
also injured him on his right thigh. The deceased
Ramjibhai when intervened, the accused No.2 -
Somabhai, gave a blow with Scythe Dharia over his left
shoulder. It is further case of the prosecution that, the
accused Nos. 3 and 4 i.e. respondents herein were
present armed with wooden stick at the spot and
assaulted the deceased as well as his brother Abhabhai
PW-12. In order to save the deceased as well as
injured, the persons near the vicinity of the area came
there and due to hue and cry, the accused fled away
from the place. The deceased Ramjibhai and injured
immediately taken to the Civil Hospital, Nadiad, and
thereafter referred to Higher Center at Ahmedabad.
The deceased Ramjibhai was declared dead by the
doctor at Ahmedabad, whereas, the injured Abhabhai
PW-12, was admitted in the orthopaedic department at
Ahmedabad for a period commencing from 05.07.2008
to 16.07.2008.
PW-1 - son of deceased Ramjibhai lodged an FIR
at Nadiad and the offence came to be registered with
Mahudha Police Station being I-C.R.No. 83 of 2008,
under Sections 307, 326, 504 read with Section 34 of
the IPC and Section 135 of the Bombay Police Act. The
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father of PW.1 - Ramjibhai who sustained injuries over
his left hand, died during the treatment, as a result, the
I.O. had added the Section 302 of the IPC with the
permission of the Court.
The investigating officer PW.22, during the
investigation of the case, took visit the place of
occurrence and in the presence of two independent
witnesses, drew the panchnama of place of incident
and collected the samples of blood etc. for FSL
purpose. The I.O. then recorded the statements of
material witnesses. The I.O. on account of death of
Ramjibhai sent his body to the Government Hospital for
postmortem and collected the P.M. Note as well as
treatment case papers of the witnesses and deceased.
The I.O. also arrested the accused herein and
recovered the weapons used in the crime. The I.O.
thereafter, sent the muddamal articles for FSL purpose
and after receiving the necessary reports, he found
sufficient evidence for the charge of murder and
causing grievous injuries to the witnesses, as a result
of which, he filed chargesheet against the accused
before the Jurisdictional Magistrate who committed the
case of the concerned sessions court at Nadiad.
4. After due framing of charge and upon the accused
pleading not guilty, the trial commenced before the
Sessions Court at Kheda.
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5. In order to prove the charge against the accused, the
prosecution examined 22 witnesses and exhibited 22
documents.
Oral evidence
PW 1 - Exh. 17 Nareshbhai Ramabhai Chauhan, Complainant
PW 2 - Exh. 20 Amarsinh Ratansinh Parmar, panch witness
PW 3 - Exh. 22 Chandusinh Kalusinh Bhojani, panch witness
PW 4 - Exh. 23 Prabhatbhai Ramanbhai Chauhan, panch witness
PW 5 - Exh. 25 Ramabhai Chaturbhai Sodhaparmar, panch witness
PW 6 - Exh. 26 Yusufkhan Akarkhan Pathan, panch witness
PW 7 - Exh. 30 Dilawarkhan Usmankhan Pathan, panch witness
PW 8 - Exh. 32 Manharbhai Bhailalbhai Patel, panch witness
PW 9 - Exh. 33 Jayantibhai Hathibhai Talpada, panch witness
PW 10 - Exh. 34 Mahammedmiya Allamiya Malek, panch witness
PW 11 - Exh. 36 Ranabhai Karmanbhai Koli, medical officer
PW 12 - Exh. 37 Abhabhai Shanabhai Chauhan
PW 13 - Exh. 38 Kantaben Ramabhai Chauhan
PW 14 - Exh. 40 Yakubmiya Nayibmiya Malek, Executive Magistrate
PW 15 - Exh. 43 Arvindbhai Vajabhai Chauhan
PW 16 - Exh. 41 Dr. Maheshkumar Parshottambhai Kapadia, medical officer
PW 17 - Exh. 52 Dr. Manishbhai Bachubhai, medical officer
PW 18 - Exh. 54 Dr. Nilakshiben Kantilal, medical officer
PW 19 - Exh. 58 Maganbhai Nagarbhai Talpada, police station officer
PW 20 - Exh. 59 Shatusih Kalusinh Rathod, police sub-inspector
PW 21 - Exh. 61 Dashrathbhai Ramabhai Panchal, police station officer
PW 22 - Exh. 63 Babulal Motan Patil, investigation officer
The prosecution also adduced following documentary
evidence:
Documentary evidence
Exh. 18 Complaint
Exh. 21 Panchanama of scene of offence
Exh. 24 Panchanama of clothes of injured Abhabhai Shanabhai
Exh. 27 Panchanama of physical examination of accused
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Exh. 28 Panchanama of recovery of clothes of accused Chadabhai and
weapons
Exh. 29 Inquest Panchanama
Exh. 31 Panchanama of clothes of Ramabhai Shanabhai
Exh. 35 Panchanama of clothes of accused
Exh. 47 Post-mortem note
Exh. 42 Dying declaration of Abhabhai Shanabhai
Exh. 48 Medical certificate of cause of death
Exh. 53 Injury certificate of Abhabhai
Exh. 55 Certificate of deceased Ramabhai Shanabhai
Exh. 56 Certificate of injured Abhabhai Shanabhai
Exh. 64 Post-mortem Form
Exh. 65 Receipt of handing over dead body
Exh. 66 Map of scene of offence
Exh. 67 Forwarding note
Exh. 68 FSL receipt
Exh. 69 FSL letter
Exh. 70 FSL report
Exh. 71 Serological report
6. After closure of the prosecution evidence, the
respondent-accused along with 2 other accused, were
questioned under Section 313 Cr.P.C. to which they
stated that, they were innocent and had been falsely
implicated in the serious offence of murder.
7. Though opportunity was extended, no evidence was
tendered from the side of accused-respondents.
8. After conclusion of trial, relying principally on the
deposition of PW.1, PW.12 and medical evidence
including the postmortem report, the Sessions Court
held responsible the respondent no.2 Somabhai for
causing the death of Ramjibhai under Section 304 Part I
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of the IPC and was sentenced to undergo 10 years
imprisonment with fine Rs.5000/- and in default
thereof, further imprisonment of 1 year. The
respondent-accused no.1 was held guilty by the court
below for attempt to murder and causing injuries to the
PW.12-Abhabhai and was directed to undergo 7 years
imprisonment and 1 year under Section 307 and 326 of
the IPC respectively.
9. In the aforesaid facts and circumstances, being
aggrieved with the sentence imposed by the court
below upon the original accused no.1 and 2, the State
has preferred the appeal under Section 377 of the
Cr.P.C.
10. We have heard learned State counsel Mr. Jay Mehta
and Mr. Parthiv Bhatt for the respective parties.
11. Mr. Jay Mehta, learned APP assailing the order of
sentence, has submitted that, the respondents-accused
with an intention to kill the deceased Ramjibhai as well
as PW.12 Abhabhai, caused the fatal injuries with the
weapon scythe. The court below held guilty the
respondent - accused no.2 for the offence culpable
homicide not amounting to murder under Section 304
Part I of the IPC and same is punishable with
imprisonment for life or imprisonment to be extended
up to 10 years. Despite of these facts, the court below
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instead of imposing maximum punishment, sentenced
the respondent - accused no.2 to undergo 10 years
imprisonment which seems to be grossly inadequate
and while imposing the sentence of 10 years, the court
below has not recorded sound and sufficient reasons
which clearly shows that the court below has not rightly
exercised its discretion.
12. In such circumstances, Mr. Jay Mehta, learned APP
prays that, there being merits in this appeal and same
may be allowed and the respondent-accused be
awarded with maximum sentence as prescribed under
Section 304 Part I and Section 326 of the IPC.
13. On the other hand, Mr. Parthiv Bhatt, learned counsel
appearing for the respondents-accused opposing the
contentions, has submitted that, the question of
sentence is a matter of discretion and in the facts of
the present case, the court below has assigned
sufficient reasons while sentencing the accused and
considering the age as well as the factors discussed by
the court below in its judgment, it cannot be said that,
the sentence imposed is grossly inadequate. In such
circumstances, he prays that, no case is made out
warranting interference with the order of sentence.
14. It is settled legal position of law that the question of
sentence is a matter of discretion and when discretion
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has been properly exercised along accepted judicial
lines, the Appellate Court should not interfere to the
detriment of an accused person, except for very strong
reasons which must be disclosed on the face of the
judgment. The sentence imposed by the Trial Court
should not be lightly interfered with and should not be
enhanced unless the Appellate Court comes to the
conclusion on entire evidence that the sentence is
inadequate.
15. In light of the settled position of law and applying the
same to the facts of present case, we do not find any
ground to interfere with the sentence imposed. The
respondents-accused have already undergone their
respective sentences. Admittedly, the accused and the
complainant party were relatives and due to dispute of
demarcation of the farm land, the unfortunate incident
had arisen. The court below while imposing the
sentence, has considered the aforesaid aspects
including the age of the accused and all other
attending circumstances. In such circumstances, the
sentence imposed cannot be termed as grossly
inadequate and when the learned court below
exercised its discretion judicially, no ground exists to
interfere with the discretion exercised by the trial
court.
16. For the aforesaid reasons, the appeal fails and it is
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hereby dismissed. Registry shall send the R & P to the
concerned Trial Court henceforth.
Sd/-
(ILESH J. VORA,J)
Sd/-
(HEMANT M. PRACHCHHAK,J)
TAUSIF SAIYED
