Mahindra Mulji Kerai
Patel Vs. State of Gujarat  INSC 1726 (14 October 2008)
The Judgment of the
Court was delivered by DR. ARIJIT PASAYAT, J.
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.
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.
appeal is disposed of accordingly.
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