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Judgment
A.L. Dave, J.—The appellant is convicted by the Sessions Court, Chhota Udepur for the offence of murder of one Kanaksing Bhimsing
Rathwa by inflicting a Dharia blow on the head of the deceased. The incident occurred on 12.7.2003 at about 2-30 PM at village Ghagharpura of
Jetpur Pavi taluka of Baroda district. The deceased happened to be the nephew of the appellant. The appellant, Bhimsing, father of the victim, and
Khumansing are brothers and were having some disputes regarding land. On the day of the incident, the appellant had gone to the house of
Amrutbhai Vechatbhai, who is also his nephew. The appellant, Bhimsing, father of the deceased, and Vechatbhai were there. After sometime
Khumansing joined them. They had some discussion about the property dispute, followed by an altercation, and then the fight. The appellant was
attacked upon with a wooden log by Bhimsing, whereas his wife was attacked by Bhimsing, Kanaksing and Vijay. While the episode was on, the
appellant rushed to his house, which was located at a short distance of about 70 feet, and came back with a Dharia and inflicted a blow on the
head of Kanaksingh, as a result of which, Kanaksing fell down and the appellant went away. The deceased was taken to hospital by relatives.
From Jetpur Pavi hospital, he was referred to SSG Hospital, Baroda, but while he was being taken to SSG Hospital, Baroda, he succumbed to
the injuries. An FIR was lodged by Bhimsing Manga Rathwa. On the basis of the FIR, an offence was registered by Jetpur Pavi police and
investigated. Having found sufficient material, a charge-sheet was filed in the Court of JMFC, Chhota Udepur, who, in turn, committed the case of
the Court of Sessions.
Sessions Case No. 83 of 2003 was registered. Charge was framed against the appellant at Exh.3 for the offence of murder and offence
punishable u/s 135 of the Bombay Police Act, to which he pleaded not guilty and claimed to be tried.
The trial Court having found that the charge of murder was proved, convicted him for the same and sentenced him to undergo imprisonment for
life with a fine of Rs. 1,000/-, in default, to undergo SI for one month. He came to be acquitted for the offence punishable u/s 135 of the Bombay
Police Act. This appeal challenges the judgment and order rendered by Sessions Court, Vadodara at Chhota Udepur on 17.1.2005 in the said
Sessions Case No. 83 of 2003.
Incidentally, the appellant lodged a cross complaint with Pavi Jetpur police station in respect of this very incident and the police has registered
the offence and after investigating the same, filed charge-sheet in the Court of JMFC, Chhota Udepur and is yet to be committed and tried.
Learned advocate Ms Shah for the appellant submitted that there are five eye-witnesses to the incident and if their depositions are seen along
with the fact that the appellant has himself lodged an FIR in respect of the same incident, it is difficult for her to press for a clean acquittal or to
press for non-involvement of the appellant in the incident.
5.1 Ms Shah, however, submitted that if the evidence of the eye-witnesses is seen, it is clear that the appellant had gone to the house of his nephew
bare handed and had no weapon with him. Dispute, of course, was there, which was sought to be solved with negotiations and, in doing so, heat
was generated. There was an altercation, followed by a fight, where the appellant came to be assaulted upon with a wooden log, so also his wife.
This enraged the appellant and he, therefore, rushed to his house located in a close proximity of the place of incident, brought out a Dharia and
inflicted a blow on Kanaksing, who was actively participating in the incident, by pelting stones. The appellant inflicted only one dharia blow.
Unfortunately, the deceased fell down and, ultimately, succumbed to the injuries. If the appellant had any intention of causing death of the
deceased, he would have repeatedly inflicted the blows. The incident has, therefore, occurred without pre-meditation, out of a quarrel and fight.
The intention of causing death of the deceased cannot be attributed to the appellant and, therefore, the case would not fall u/s 302 of IPC but his
conviction may be altered to one u/s 304 Part-II of IPC. Ms Shah, therefore, submitted that the appeal may be allowed accordingly.
Learned APP Mr Parikh has opposed this appeal. According to him, the appellant had rushed to his house, and came back with a Dharia and
then inflicted a fatal blow on the deceased. The intention can be inferred from the fact that he had rushed to his house, brought Dharia, and caused
fatal injury on vital part of the body of the deceased, namely, head. According to Mr Parikh, therefore, this is a clear case of murder and the trial
Court is justified in convicting the appellant for murder. The appeal does not call for any interference in exercise of appellate jurisdiction. The
appeal may, therefore, be dismissed.
Ms Shah is right when she contends that it is difficult for her to argue for a clean acquittal or non-involvement of the appellant in the incident. The
prosecution has examined first informant Bhimsing Manga Rathwa at Exh.7, Vijay Bhimsing Rathwa at Exh.10, Niruben Bhimsing Rathwa at
Exh.9, Ramesh Makabhai Rathwa at Exh.14 and Jayanti Chhuniyabhai Rathwa at Exh.15.
7.1 These are eye-witnesses to the incident and if their depositions are seen, what emerges from their depositions as a whole, i.e. examination-in-
chief and cross-examination, is that the appellant had gone to the house of his nephew Amrutbhai Vechatbhai. There all brothers assembled,
namely, Bhimsing, Khumansing and Vechatbhai. It is also not in dispute that the brothers were having some dispute over land. The discussion
started and resulted into altercation. It also emerges from the evidence of eye-witnesses that the appellant and his wife both were assaulted upon
by the others either with a wooden log or with stones, as a result, the appellant rushed to his house, brought a Dharia, and inflicted a blow on head
of Kanaksing, who was engaged in stone pelting. After the blow, Kanaksing fell down and then was taken to the Community Heath Centre at
Jetpur Pavi from where he was referred to SSG Hospital, Baroda and died on the way. The evidence of eye-witnesses also reveals that the
appellant inflicted only one blow on the head of the deceased. It also emerges from the evidence that after the appellant inflicted a blow on the
deceased, he fell down and the episode stopped. Therefore, necessarily, assault on the appellant and his wife was prior to the appellant going to
get the Dharia and inflicting the blow. One would obviously be enraged if he and his wife both are assaulted upon by others and same thing seems
to have happened with the appellant. It emerges from the evidence that they had assembled for negotiating about the land dispute, which resulted
into altercation, followed by a fight and then the assault. There was no pre-meditation. The appellant inflicted only one blow and cannot be said to
have taken any undue advantage of the situation. In our view, therefore, Exception-4 to Section 300 would be attracted as all the ingredients
having been satisfied through the evidence of eye-witnesses.
Dr Ramanlal Vaishnav is examined at Exh.25. He had performed the post-mortem and prepared post-mortem notes at Exh.29. The post-
mortem notes indicate the cause of death to be extradural and subdural hammertonea followed by incised wound on skull vacult. The doctor also
opined that the injuries were homicidal and were possible with sharp cutting weapon. The injuries were ante-mortem and sufficient in the ordinary
course of nature to cause death.
In light of the foregoing discussion, it is clear that there was no intention on the part of the appellant to cause death of the deceased and the
offence of murder would not be constituted. It would be an offence of culpable homicide not amounting to murder punishable u/s 304 of IPC.
The next question that arises for consideration is whether the case would fall under Part-I or Part-II of Section 304 of IPC. According to
learned APP, it would fall under Part-I of Section 304, whereas according to Ms Shah, it would be fall under Part-II of the said section.
Considering the evidence on record, it is clear that the appellant after being assaulted, rushed to his house and brought Dharia. He inflicted only
one blow with Dharia on the head of the deceased, but the fact that he used the Dharia and gave a blow on head of the deceased, which is a vital
organ, and considering the nature of injury, we are of the view that the intention on the part of the appellant to cause injury was with the knowledge
that the act was likely to cause such bodily injury as was likely to cause death and, therefore, the case would fall under Part-I of Section 304 of
IPC.
The appeal would thus stand partly allowed. The appellant''s conviction for the offence punishable u/s 302 of IPC is altered to one punishable
u/s 304 Part-I of IPC.
We have heard both the sides on the quantum of punishment.
Ms Shah submitted that the appellant is aged about 56 years and has a wife, who is required to be looked after. His daughter, having married,
stays separately. Even otherwise, he is a poor man and, therefore, minimum punishment may be inflicted.
Learned APP Mr Parikh has opposed the submissions.
Having regard to the facts and circumstances of the case, considering that the conviction is altered from Section 302 to Section 304 Part-I of
IPC and the age factor of the appellant, social background, we are of the view that ends of justice would be met if the appellant is sentenced to
undergo RI for 7 (seven) years with a fine of Rs. 1,000/- (Rupees one thousand), in default, SI for one month. The appellant shall be entitled to the
benefit of set off.
It is directed accordingly.