IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1340 OF 2008

ASHOKKUMAR MAGABHAI VANKAR                        APPELLANT

                VERSUS

STATE OF GUJARAT                                  RESPONDENT

O R D E R

The High Court of Gujarat at Ahmedabad in Criminal Appeal  

No.301 of 1998 has affirmed the judgment and order passed by the  

Additional  Sessions  Judge,  Sabarkantha  at  Himatnagar  in  Sessions  

Case No.32 of 1996.  Being aggrieved by these judgments and orders,  

the appellant is before us in this appeal.  The learned counsel  

appearing  for  the  appellant,  initially,  would  submit  that  the  

conviction and sentence awarded by the Trial Court under Section 302  

of  the  Indian  Penal  Code  (for  short  'I.P.C.')  requires  to  be  

converted into an offence under Section 304 Part II of I.P.C. In  

support of that submission, learned counsel has taken us through a  

portion of the evidence and the conclusions reached by both the  

Trial Court and the High Court.  In our view, it would be suffice to  

refer only to para 31 of the judgment of the High Court to find out  

whether  the  submission  of  the  learned  counsel  for  the  appellant  

requires to be accepted. Para 31 of the judgment of the High Court  

reads as under :

: 2 :

“31. Viewed in the light of the aforesaid decision, in the  instant case it is true that the respondent had dealt one  single blow on the head of the deceased with a wooden  pestle.  The said wooden pestle was 39½  inches in length  and was thick at the lower end and narrow at the upper  end. The circumference of the upper end (handle) of the  pestle was about 4½ inches.  There was a steel ring fitted  on it at the lower end.  The act of the respondent, though  solitary in number had caused multiple fractures on the  skull  of  the  deceased  leading  to  almost  instantaneous  death.   Any  reasonable  person  with  any  stretch  of  imagination can come to the conclusion that such injury on  such a vital part of the body with such a weapon would  cause death.  The injury sustained by the deceased not  only exhibits the intention of the accused in causing the  death of the victim but also the knowledge of the accused  as to the likely consequence of such attack which could be  none other than causing the death of the victim.  In the  circumstance,  the  contention  raised  by  the  learned  Advocate  for  the  accused  that  this  was  a  case  of  a  solitary blow and therefore, intention to kill was not  established so as to bring the accused within the scope of  exception  to  Section  300  IPC  cannot  be  accepted.  Accordingly, there being no question of taking any other  view, the decisions relied upon by the learned counsel for  the appellant in support of the proposition that when two  views  are  possible,  the  view  that  favours  the  accused  ought to be considered do not render any assistance to the  case of the appellant....”   

It is the case of the Prosecution that P.W.4, with the  

help of a bamboo stick had meddled with a live wire and thereby, had  

caused the disappearance of the electricity supply to the house of  

the accused.  It is further the case of the Prosecution that the  

accused came out of his house with a long pestle and was quarreling  

with  P.W.4.   At  this  juncture,  Maganbhai   Khemabhai   (since  

deceased)   appeared   in   the   scene   and  tried to pacify P.W.4

: 3 :

and  the  accused.   The  accused  was  not  happy  because  of  the  

intervention of Maganbhai Khemabhai (since deceased), therefore, he  

had pushed him.  Further, the accused caught hold of the pestle,  

which had fallen down and he used it with such  force that the head  

of the deceased person was broken into pieces.  These aspects of the  

matter have been taken note of by both the Sessions Court as well as  

by the High Court to convict and sentence the accused person for an  

offence under Section 302 of the I.P.C. In our opinion, we do not  

see any error or legal infirmity in the findings and conclusions  

reached by both the Courts.  Therefore, no interference in the said  

orders and judgments is called for.  Accordingly, while affirming  

the  conviction  and  the  sentence  awarded  by  the  Trial  Court,  we  

reject this appeal.  Ordered accordingly.

......................J. (H.L. DATTU)

.......................J. (CHANDRAMAULI KR. PRASAD)

NEW DELHI; NOVEMBER 03, 2011