RABARI BHIKA HAMALYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is directed against the order of conviction recorded by the learned AddI. Sessions Judge, Gondal in Sessions Case No. 11/83.

(2.) The appellant-accused was prosecuted for an offence punishable under Section 302 of the Indian Penal Code. It appears that on 26th December. 1982 the incident in which the appellant and the deceased were involved took place at Paneli Rly. Station between 4.30 P.M. and 6.30 P.M. The appellant is alleged to have taken up a heavy wooden implement which is used for measuring the leave of the Railway tracks. Just in the middle of the said wooden implement in a metal frame there was mercury where by the level of the railway tracks can be measured. His not the case of the prosecution that the accused was carrying with him the weapon. There was heated exchange of words between the appellant and deceased. There was no previous enmity between the two rather they were never known to each other. The accused got enraged in the heated exchange of words, took up the weapon which was lying handy there and inflicted a blow on the head of the deceased. The blow given by the heavy implement resulted in internal damage and the deceased succumbed to the injuries. The appellant was, therefore, arraigned before the learned AddI. Sessions Judge on the above count and the learned AddI. Sessions Judge on appreciation of evidence came to the conclusion that the offence was brought home against the appellant. He, therefore, convicted him for an offence punishable under Section 302 of the Indian Penal Code and proceeded to sentence him in accordance with law. It is that particular order of conviction which is now on anvil before us in the present appeal.

(3.) Mr. Anandjiwala, the learned Advocate appearing for the appellant-accused very frankly conceded him at the outset in view of the evidence of the eye witness which has received corroboration from the medical testimony as well and coupled with the fact that the appellant was apprehended immediately after the incident, he will not be able to assail the order of conviction. However, Mr. Anandjiwala only urged that the learned Trial Judge has erred in convicting the appellant for the offence punishable under Section 301 I.P.C. inasmuch as there was no history of previous enmity and the entire incident had taken place on account of heated exchange of words between the appellant and the deceased. Mr. Anandjiwala also urged that the weapon also was not being carried by the appellant with him but be had simply picked up the said implement which was lying handy at the station and had inflicted blows. Therefore, according to Mr. Anandjiwala it cannot be said that the accused had intended to bring about the death of the accused, Mr. S.P. Dave, the learned Public Prosecutor also could not meet this particular argument and support the judgment of the learned Trial Judge so far it seeks to hold the appellant responsible (or the offence punishable under Section 302 of the Indian Penal Code. The question which remains is as to whether the appellant can be convicted for an offence punishable under Section 304 Part-I of the Indian Penal Code or under Section 304 Part-Il of the Indian Penal Code and according to Mr. Dave the learned PP. as blow was inflicted on the vital part with considerable force which resulted a serious internal damage, the accused should be convicted for the offence punishable under Section 304 Part-I I.P.C. we, therefore, feel that the incident had taken place in the process of heated exchange of words and that the appellant had inflicted only one blow that too by means of a weapon which was lying handy. The mere fact that he inflicted injury which resulted in death or which proved to be fatal, cannot be sufficient to attributed to the accused appellant an intention to bring about the death. We feel that the appellant-accused can be attributed with the knowledge that his act was likely to cause death but he cannot be said to have intended to bring about the death. Dr. Nalinkant Baxi (P.W. 12) Exh. 29 was shown muddamal weapon and looking at the weapon he said that it is not necessary that a great amount of force would be required to be used for bringing about the internal damage which was found in the cranium of the deceased on post-mortem examination. It appears to be of considerable weight. The damage was, therefore, not on account of furious nature of the blow but it was on account of heavy weight of the weapon. The accused had not specifically intended to use this weapon as stated before.