Mahindra Mulji Kerai Patel v. State of Gujarat

G . . ~ .1.-: DR. ARIJIT PASAYAT, J. 1. Challenge 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 H A having caused homicidal death of one Kunverba Kanji (herein- I-- " after 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- B 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 ~j- two ladies and took the life of one and caused serious injuries to the other. After investigation, the Investigating Officer filed ~ c charge sheet, the trial was held as the accused pleaded inno- cence. Learned Additional Sessions Judge, KL!tch at Bhuj was 1 of the view that the accused was guilty of offence punishable >--- \--- under Section 324 IPC and was sentenced to undergo impris- onment for two years and pay fine of Rs. 2,000/- in default to D 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 ~-f-- default, to undergo S.I. for two months. Questioning the correct- ness of the order, the State preferred an appeal in terms of Sec- tion 378 of the Code of Criminal Procedure, 1973 (in short ,Code'). Primary challenge was to the acquittal of the accused f in respect of offences punishable under Section 302 and 307 IPC. The High Court on analysis of the evidence, more particu- larly that of PW1, the complainant and PW2, the Doctor, came to hold that the trial court was not justified in directing the ac- F quittal of the accused in respect of offence punishable under x._ Section 302 IPC. The High Court also said that the accused was guilty of offence punishable under Section 307 IPC. Ques- tioning the correctness of the order passed by the High Court, the present appeal has been filed. G Learned counsel for the appellant submitted that while ' ... convicting the appellant for offence punishable under Sections ;...l 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 con- ... MAHINDRA MULJI KERAI PATEL v. STATE 435 . OF GUJARAT [DR. ARIJIT PASAYAT, J.] --( viction in terms of Section 302 IPC. Reference is made to the A evidence of the Doctor PW2 to contend that there was no defi- nite opinion as to whether the injury inflicted could have caused death in the ordinary course. Learned counsel for the respon- dent on the other hand supported the judgment of the High Court. 2. Considering the evidence, and taking note of the nature B of the injury that was inflicted, we are of the considered view _j, that appropriate conviction would be under Section 304 Part- (II) IPC. The background facts show that there was pre-,medita- ' tion over exchange of words, one injury leading to the death - was inflicted. Though in all cases the number of injuries is not c the determinative factor for attracting Section 302 IPC, in the instant case, considering the nature of weapon used and sur- rounding factors, the conviction is altered. The conviction of the High Court under Section 307 IPC does not warrant any inter- ference and is accordingly upheld. Coming·to the question of D 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 custo- E dial 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. 3. The appeal is disposed of accordingly. F \ A' N.J. Appeal disposed of.