ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE BHAGWATI PRASAD)
The present appeal has been filed by the appellant - original accused No. 1 challenging the judgment and order dated 23rd May 2003 passed by the learned Additional Sessions Judge, Court No. 2, Ahmedabad City in Sessions Case No. 181 of 2002. By the said judgment and order the learned Additional Sessions Judge acquitted original accused Nos. 2 and 3 and convicted the appellant - accused No. 1 for the offence under Section 302 of IPC and sentenced him to undergo life imprisonment with a fine of Rs. 1,000/-, in default to further undergo RI for six months.
Briefly stated the case of the prosecution is that on 28th May 2002 at about 10.45 PM deceased Anand and his wife Chandrikaben had quarreled and the altercations were going on and during the course of the altercations it was alleged that deceased - Anand Kanjibhai Solanki was assaulted by the present appellant with cricket bat on his head. When mother of the complainant had tried to intervene and she was also given a blow by the cricket bat. It is also alleged that when Pravinbhai, a neighbour tried to intervene, Pravinbhai was given blow on his head with cricket bat by the present appellant.
During the course of treatment, Gangaben died on 30 May 2002 while Anandkumar, husband of Chandrikaben died on 4 June 2002 during the course of treatment. Pravinbhai Mangalbhai also died during the course of treatment on 5 June 2002. On the basis of the complaint filed by Hitendra Kanjibhai Solanki, who is the brother of deceased - Anandkumar Solanki, the investigation was carried out and charge sheet was filed. The case was committed to the court of Sessions where the case was registered as Sessions Case No. 181 of 2002. At the conclusion of trial, the learned Sessions Judge acquitted original accused Nos. 2 and 3 and convicted the appellant - accused No. 1 as stated herein above.
Heard the learned counsel for the parties. In this unfortunate incident three persons lost their lives. The incident is of 28 May 2002. Deceased - Anandkumar sustained a simple blow on the day of the incident and succumbed to the injury on 4 June 2002. Gangaben, mother of deceased - Anandkumar also received superficial hurt on her head in the incident and succumbed to the injuries on 30 May 2002. Pravinbhai, who is a neighbour and who tried to interfere in the incident also sustained one injury on the head and succumbed to the injury on 5 June 2002. This shows that all the injured persons had sustained such injuries which were not cause of death. Unfortunately, they culminated into fatality only at a later point of time. We also observe that it was a case where Anand was married with Chandrikaben. This marriage was result of infatuation between the two. Then, Anand was having such habits which were not very conducive to the relationship of Chandrikaben and Anand. He used to spend his time in mehfils. On the day of the incident, one of the children of the wedlock of Chandrikaben and Anandkumar was having birth day and Anand was not present. Therefore, Gangaben, mother of Anand, and Chandrikaben went in search of Anand and found him in a mehfil. When he was requested to return home, he started using filthy language and belabouring both the women. Even after coming home he continued belabouring the women. In this process, neighbours came to intervene and so also came accused Nos. 1 to 3. Accused Nos. 2 and 3 have been acquitted. It is not clear as to who is holding cricket bat. From the testimony of eye witnesses it is not borne out as to who had the cricket bat in his hand. But, one of the witnesses, Vanitaben has assigned the bat to the appellant - original accused No. 1. Vanitaben has some grudge against the appellant. She is sister of deceased - Anand. In the initial version the Investigating Officer has stated that it was not coming out as to who was having the bat. Subsequently, it has come on the record in the form of statement of Vanitaben, which was recorded on 30 May 2002. Therefore, it is a case where a lurking doubt is emerging in the mind whether the cricket bat was in the hand of accused No. 1 or other accused persons. Looking to the incident in question it cannot be said that anybody has intention of killing anybody. The injuries inflicted are not capable of causing death in the regular course of nature. Looking to the nature of injuries it is unfortunate that three lives have been lost in a melee, but it has fallen on the head of accused No. 1. In that view of the matter, we are persuaded to accept the opinion of the learned counsel for the appellant that the case under Section 302 of IPC cannot be said to have been made out against the appellant. Learned counsel for the State could not make out any case under Section 302 of IPC. In that view of the matter, we consider that the conviction may be altered from Section 302 of IPC to 304 Part I of IPC. Sentence awarded under Section 302 of IPC is set aside. Instead, accused appellant is convicted under Section 304 Part-I of IPC and is sentenced to undergo RI for 10 years with a fine of Rs. 500, in default one week Simple Imprisonment.
In the result, the appeal is partly allowed. The conviction of the appellant is altered from Section 302 of IPC to Section 304 Part-I of IPC. In that view of the matter, the life sentence awarded to the appellant - accused is set aside and under Section 304 Part-I appellant - accused No. 1 is sentenced to 10 years RI and a fine of Rs. 500/-, in default SI for one week.