Bhailo @ Dharmendra Savjibhai Makwan Koli vs State of Gujarat

K.J. Thaker, J.—When the matter was called out, learned advocate Mr. H.N. Joshi, appearing for the appellant stated that his client had taken away the papers from him and therefore, he is not appearing for the appellant. However, at the request of the Court, he has been appointed as Amicus Curiae and has assisted the Court from his old memories of the matter. It appears that the appellant had taken away the papers from Mr. H.N. Joshi, on 13th May, 2013 but till date has not engaged any advocate to appear on his behalf. By way of this appeal, the appellant, original accused, has challenged the judgment and order passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 6, Veraval, in Sessions Case No. 06/2006 dated 17.11.2007, whereby, the appellant herein, original accused, has been convicted for the offences punishable u/s. 302 of the Indian Penal Code (for short, "the IPC") and u/s 135 of the Bombay Police Act.

For conviction u/s.302 of the IPC, the appellant has been sentenced to undergo imprisonment for life and fine of Rs. 1,000/- and in case of default of payment of fine, simple imprisonment for a further period of one year. For conviction u/s.135 of the Bombay Police Act, appellant has been sentenced to undergo rigorous imprisonment for four months and fine of Rs. 100/- and in default of payment of fine, simple imprisonment for a further period of seven days. Both the sentences were ordered to run concurrently and the appellant has been given the benefit of setoff.

The brief facts of this case are that a complaint was lodged by the complainant-Dhirubhai Babubhai Vagehela before the Talala Police Station. It is alleged in the complaint that on 02.12.2005, at about 11:00 pm. a message was given to him by one Manishbhai Bavajibhai that his cousin brother Milan had quarrel with one Bhailo @ Dharmendra Savjibhai, appellant herein, near the water tank situated at village Talala. Therefore, the informant went to the place of incident and saw that his cousin brother, Milan was lying near the water tank in a pool of blood and when the complainant inquired from Milan about the incident, he replied that he and the Bhailo @ Dharmednra Savjibhai, were sitting and sharing light moments and at that time due to sudden provocation, the appellant inflicted a knife blow on the left side on his chest. It is alleged in the complaint that at the place of incident one Kishorebhai Meghjibhai and Nanubhai Jetsurbhai were present. Thereafter, the said Milan was taken to the Government Hospital, however, on the way, he succumbed to the said injuries. Thereafter, the complaint was

2.1. After necessary investigation was carried out and the appellant came to be arrested. On completion of investigation, charge-sheet was filed before the appropriate Court. Since the case was Sessions triable, it was committed to Sessions Court, Veraval. The appellant herein pleaded not guilty and therefore, charge was framed and trial was initiated.

2.2. During the trial, the prosecution examined as many as 21 witnesses, viz. Dr. Jagatbhai Chandrakantbhai Unarkat, who was examined as P.W.1 at Exh.6, Karshanbhai Kanabhai as P.W.2 at Exh.17, Kanubhai Nathbhai as P.W.3 at Exh.18, Lakhubhai Jethsurbhai Boria as P.W.4 at Exh.19, Bhikhabhai Bhanabhai Rathod as P.W.5 at Exh.20, Vinaykumar Babulal as P.W.6 at Exh.22, Tapubhai Kanjibhai as P.W.7 at Exh.24, Rameshbhai Kanjibhai Makwana as P.W.8 at Exh.25, Bhimsinhbhai Rambhai as P.W.9 at Exh.27, Habijbhai Mamadbhai as P.W.10 at Exh.28, Sunilbhai Devabhai as P.W.11 at Exh.30, Dhirubhai Babubhai Vaghela as P.W.12 at Exh.31, Manishbhai Bharatbhai Agrawat as P.W.13 at Exh.33, Kishorbhai Meghjibhai Makwana as P.W.14, at Exh.34, Nanubhai Jethsurbhai as P.W.15 at Exh.37, Rameshbhai Ranabhai as P.W.16 at Exh.37, Hansaben as P.W.17 at Exh.43, Sanjay Jikubhai Vaghela as P.W.18 at Exh.44, Sonalben Jijubhai as P.W.19 at Exh.45, Vikramsingh as P.W.20 and Mansukhbhai Devsibhai as P.W.21 at Exh.69.

2.3. The prosecution had also relied upon several documentary evidence, more particularly the Inquest Panchanama at Exh.8, Post mortem note at Exh.10, F.S.L. Report at Exh.13, Panchanama of the place of offence at Exh.21, Discovery Panchanama at Exh.14, and the complaint at Exh.32.

2.4. At the end of trial, the Court below recorded the further statement of the accused u/s. 313 of the Criminal Procedure Code and ultimately, passed the impugned judgment and order of conviction, which is under challenge in the present appeal.

Learned advocate for the appellant has submitted that the trial Court has passed the impugned judgment and order without appreciating the evidence on record. He further submitted that the incident in question had occurred in the heat of the moment, the appellant did not intent to kill the victim or to cause such grievous injuries, which shall lead to her death. He, therefore, submitted that considering aforesaid facts, this Court may consider the case of the present appellant u/s 304 (Part I) or (Part II) of IPC.

Learned APP appearing for the respondent-State has submitted that the trial Court after appreciating the evidence on record has passed the impugned judgment order. He further submitted that the trial Court has rightly passed the impugned order since there were ample direct and indirect evidences on record to connect the appellant with the crime. She has relied upon the latest decision of the Apex Court in the case of Som Raj @ Soma Vs. State of H.P., .

We have heard learned advocate appearing for the appellant and learned APP appearing for the respondent-State and perused the oral as well as documentary evidence on record. The fact that deceased died a homicidal death stands amply proved by the testimony of PW-1-Dr. Jagatbhai Chandrakantbhai Unarkat, who has been examined vide Exhibit-17. He has categorically stated in his evidence that cause of death of the deceased is due to cardio rupture cause shock and death. Thus, from the evidence of this witness, it is crystal clear that the death of the deceased is a homicidal death.

The prosecution witness No. 12-Dhirubhai Babubhai Vaghela, the complainant, has been examined vide Exh.31. In his evidence, he stated that on the day of incident at about 11:00 hours, one Manishbhai Bavajibhai came to his house and said that Milan and Bhailo, appellant herein, were fighting and the appellant has given a knife blow to Milan. Therefore, he went to the place of incident and found his cousin brother Milan lying near the water tank in a pool of blood and at that time, one Kishor Manji and Nanubhai Jethsurbhai were standing there. This witness also stated that when he inquired from Milan about the incident, he said that he and the present appellant were sitting and sharing light moments and at that time, due to sudden provocation, the appellant inflicted a knife blow on the left side of his chest. Thereafter, said Milan was taken the Government Hospital with the help of other persons. However, on the way Milan succumbed to the said injuries. Thereafter, the complainant went to the police station and filed the complaint. In the cross-examination, this witness stated that when he reached to the place of incident, Milan was in conscious state. Further, nothing incriminating has been born out from the cross-examination of this witness to disbelieve the evidence of this witness.

The prosecution witness No. 17-Hansaben, mother of the deceased, has been examined at Exh.43. In her evidence, she deposed that on the date of incident his son, Milan after dinner went to the market for consuming Pan. At about 10.30 pm. one Manish Bavji came to her house and told that Bhailo, present appellant and Milan were quarreling and Bhaila, accused herein inflicted a knife blow to Milan. Thereafter, this witness along with his family members went to the place of incident and saw that Milan was lying on the floor. She further stated that when she asked Milan about the incident, he told her that the present appellant inflicted knife blow to me. This witness also stated that with the help of other family members Milan was taken to the hospital. However, he died on the way.

In the cross-examination, this witness stated that his son used to go for consuming Pan after taking his dinner and used to return home late night. She further stated that there was no dispute between the appellant and his son. This witness also stated that when she reached the place of incident, deceased was in conscious state and on asking him about the incident, his son told her that the present appellant inflicted a knife blow to him.

Further, the evidence of P.W.16 (Rameshbhai Ranabhai), P.W.18 (Sanjay Jikubhai Vaghela), P.W.19 (Sonalben Jijubhai) and P.W.20 (gets corroboration from the testimony of this witness i.e.P.W.17 (Vikramsingh). Apart from that, the documentary evidence in the form of FSL report also supports the prosecution case.

Considering the evidence of these witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant u/s 302 of the Indian Penal Code should be upheld or the conviction deserves to be converted u/s 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 and Section 300 of the Indian Penal Code, which reads as under:-

Culpable homicide:- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Murder.- Except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

2ndly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or

3rdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

4thly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

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Punishment for culpable homicide not amounting to murder: - Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

Or

With imprisonment of either description for a term which may extent to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

On consideration of the evidence of the witness as also medical evidence including the post mortem report, it is clear that the the incident in question occurred at the spur of the moment. There was no preplan or any premeditation on the part of the accused and the incident occurred on a very trivial issue. It has come on record that the accused and the deceased were the friends and it could not be said that the accused had taken any undue advantage or acted in a cruel manner. Therefore, we find that the accused had no intention to kill his friend and the offence appears to have been committed on account of heat of passion.

As far as the death of Milan is concerned, as narrated above, the injury was on the vital part of the body with the weapon used by original accused. There was no overt act on the part of original accused to cause death and therefore, the sentence imposed upon him cannot be sustained in the eyes of law. Considering the principle laid down by the Apex Court in Budhi Lal Vs. State of Uttarakhand, , the original accused cannot be said to have committed the offence of murder. In the cited case, the Apex Court has discussed the distinction between bodily injury likely to cause death and bodily injury sufficient to cause death.

The decision relied upon by the learned APP in the case of Som Raj @ Soma (supra) will not apply to the facts of the present case since in that case the accused picked up ''darat'', an agricultural implement used for cutting of trees and also used by butchers for beheading goats and sheep for assaulting deceased and struck a blow with ferocity on the back side of head of the deceased, which resulted in cutting through skull of deceased and caused hole therein and when the accused was caught by the witness he was in process of inflicting second blow on the deceased. However, in this case, the accused had inflicted only one blow on the deceased. Thus, the facts of the present are materially different from the one cited by learned APP appearing for the respondent-State.

Considering the above aspects, we have no hesitation to hold that the conviction of the present appellant cannot be sustained u/s 302 of the IPC, but the appropriate section under which the appellant ought to have been convicted is section 304 part-I of the IPC.

So far as section 135 of the Bombay Police Act, is concerned, considering the facts of the case, we find that the prosecution has not been able to prove that the ingredients of offence punishable u/s 135 of the Bombay Police Act are present in this case. Under such circumstances, we find that the conviction of the appellant u/s 498(A) of the IPC is erroneous and deserves to be quashed and set aside. For the reasons recorded in the judgment pronounced today, the present appeal is partly allowed. The judgment and order of conviction and sentence under challenge is modified to the extent that the conviction of the appellant, original accused, u/s 302 of the Indian Penal Code is altered and modified to one u/s 304 part I of the Indian Penal Code, whereas the conviction of the appellant, original accused, u/s 135 of the Bombay Police Act is quashed and set aside. For conviction u/s 304 Part I of the Indian Penal Code, the appellant is sentenced to undergo rigorous imprisonment for 10 (ten) years and fine of Rs. 1,000/- and in case of default in making the payment of fine he is ordered to undergo simple imprisonment for a further period of 2 (two) months. The rest of the part of the judgment and order of conviction and sentence remains unaltered. The fine, if any, paid by the accused for conviction and sentence u/s 135 of the Bombay Police Act shall be refunded to the appellant on proper identification. The appellant be granted the benefit of remission as admissible. R & P, if any, be sent back forthwith.