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Judgment
A.L. Dave, J.—The appellant challenges his conviction by City Sessions Court, Ahmedabad for the offences punishable u/s 302 of the
Indian Penal Code (''IPC'', for short) and Section 135 of the Bombay Police Act (''B.P. Act'', for short) by virtue of the judgment rendered in
Sessions Case No. 84 of 2002 on 24.10.2002. The appellant is sentenced to undergo imprisonment for life and to pay fine of Rs. 1000/-, in
default to undergo R.I for six months for the offence punishable u/s 302 of the IPC and for the offence punishable u/s 135 of the B.P. Act, he is
sentenced to undergo R.I for three months and fine of Rs. 500/-, in default to undergo R.I for three months.
1.1 The appellant is found guilty to have caused murder of one Viren Hargovindbhai Vaghela by giving knife blows at about 5.30 p.m. on
15.1.2002 near Babu Pan Centre at Isanpur, Ahmedabad. He is alleged to have given two knife blows on the right side lower abdomen of the
deceased and one injury on the right elbow with a knife. As per the prosecution case, the said incident occurred within the vision of Babubhai
Muljibhai-PW-4, Prakash B. Makwana-PW-5 and Tushar Gangaram-PW-6. As per the prosecution case, the deceased also gave an oral dying-
declaration before his mother Jyotiben Hargovindbhai (PW-12) to the effect that the knife blows were given by the appellant. This act of the
deceased, making a dying-declaration before his mother Jyotiben, was seen and heard by Ashvinbhai Pravinbhai-PW-11. The deceased was
taken to hospital, where he was initially examined by Dr. Mital Desai and then treated by other Doctors. Surgery was performed. However, he
succumbed to the injuries at 8.30 a.m. on 17.1.2002. An FIR was lodged by father of the deceased Hargovindbhai Vaghela, on basis of which
offence was registered and investigated. During the course of investigation, the appellant was arrested and he discovered the knife-weapon used in
the offence in presence of panch witness Danabhai Devabhai-PW-8. He also discovered his clothes, which he was wearing at the time of incident
in presence of panch witness Sureshbhai Vasrambhai-PW-9. The knife and the clothes were sent to the Forensic Science Laboratory (''FSL'', for
short) and they were found to carry blood-stains of the human blood Group ''O'', which is the group of the deceased. On basis of the above
investigation papers, the police having found sufficient material against the appellant, the police filed chargesheet in the Court of Metropolitan
Magistrate, Court No. 19. The case was then committed to the Court of sessions, and Sessions Case No. 84 of 2002 came to be registered.
1.2 The charge was framed against the appellant for offences punishable u/s 302 of the IPC and Section 135 of the B.P. Act. The accused
pleaded not guilty to the charge and claimed to be tried. Considering the evidence led by the prosecution, the sessions Court found that the charges
levelled against the appellant-accused were duly proved by the prosecution, and therefore, the accused-appellant came to be convicted and
sentenced, as stated in the earlier part of this judgment.
Learned advocate Mr. Jayesh Dave for the appellant submitted that as per the prosecution case, the incident was witnessed by PW-4, 5 and 6
Babubhai Muljibhai, Prakash B. Makwana and Tushar Gangaram. All these witnesses have not supported the prosecution case. He has submitted
that the incident has occurred suddenly due to some dispute on kite-flying between the deceased and the appellant. Mr. Dave submitted that even
as per the prosecution case, deceased and the appellant were good friends and had no grudge, grievance or animosity against each other, and
therefore, the case would fall under Exception 4 of Section 300 of the IPC. Even if the involvement of the appellant is believed, it would be
appropriate to record, however, that learned advocate Mr. Dave did not seriously contest the question of involvement of the appellant in the
incident. Mr. Dave submitted that the appellant is in jail for nearly seven years and has suffered sufficiently. He was aged 21 years when the
incident occurred. In the incident, he has not only lost his friend, but, his future also. His case may be sympathetically considered and appeal may
be appropriately allowed.
Learned APP Mr. Mengdey on the other-hand has opposed this appeal. He submitted that the three eye-witnesses have not supported the
prosecution case in toto, but, in substratum, they proved the involvement of the appellant in the incident. The question, whether Exception to
murder would be attracted or not, will have to be seen from the evidence on record. According to learned APP, the appellant has not taken any
plea, at the trial, about any of the Exception to the murder being attracted. Even in his further statement, u/s 313 of the Code of Criminal
Procedure, he has taken a plea of total non-involvement and false implication. Learned APP submitted further that no suggestion is put to any of
the witnesses to show that the case would fall under any of the Exceptions to Section 300 of the IPC. It was submitted that involvement of the
appellant is proved not only through the hostile eye-witnesses-PW-4,5 and 6, but, also through the evidence of Jyotiben Hargovindbhai, before
whom the deceased made an oral dying-declaration and witness Ashvinbhai Pravinbhai, who has seen and over-heard the deceased making such a
dying-declaration. Learned APP submitted further that there are circumstantial evidence, which would also lead to involvement of the appellant
namely-discovery of knife and clothes by the appellant in presence of panch witnesses, who have supported the prosecution case and find of blood
of the deceased on the knife as well as the clothes of the appellant, would prove the involvement of the appellant in the incident.
3.1 Learned APP submitted further that the appellant has inflicted three injuries on person of the deceased, two of them were in right lower
abdomen, and if the medical evidence is seen, they clearly show that the blows were given with force. The third injury on elbow is also not a simple
injury, because it was pierced through and through the elbow of the deceased. These three blows were inflicted upon the deceased, with knife,
when the deceased was unarmed, and in absence of any material to show any provocation etc., the case would fall within the definition of murder
and the trial Court was, therefore, justified in recording conviction u/s 302 of the IPC, so also Section 135 of the B.P. Act. He has submitted that
the appeal may be dismissed.
We have examined the record and proceedings in light of rival side contentions. It is true that as per the prosecution case, the incident was
witnessed by PW-4 Babubhai Muljibhai, PW-5 Prakash Makwana and PW-6 Tusharbhai Gangaram. However, none of them have supported the
prosecution case and are treated as hostile to the prosecution case. From reading of their depositions, it appears that though they did not admit to
have seen the actual occurrence, they do admit the presence of appellant and the deceased initially, and then later on having seen the deceased in
an injured condition, and then both the appellant and the deceased going away from the place.
4.1 Another factor is that the deceased after going home, gave oral dying-declaration before his mother Jyotiben Hargovindbhai-PW-12, wherein
he states that the appellant caused the knife injuries to him. This act of the deceased was seen and over-heard by witness Ashvinbhai Pravinbhai-
PW-11 and both Ashvinbhai and Jyotiben have lent whole-hearted support to the prosecution case. The cross-examination of this witness has not
been fruitful to the defence.
4.2 Witness Danabhai Devabhai is a panch to the discovery panchnama of knife, drawn u/s 27 of the Evidence Act. This witness has also
supported the prosecution case and discovery by the appellant is proved from Chandola Lake. Discovery of clothes of the appellant, which he was
wearing at the time of incident is proved through witness Sureshbhai Vasrambhai-PW-9.
4.3 The clothes of the appellant and the knife were sent to FSL for chemical examination and the Serologist report, Exh.43 clearly indicates that
they all contain blood-stains of the group of the deceased i.e. human blood Group ''O''.
4.4 All these factors would lead to an infallible conclusion about the involvement of the appellant in the incident.
Now, comes the question-whether any of the Exception, particularly Exception 4 to Section 300 of the IPC can be said to be attracted. In this
regard, despite close scrutiny of evidence of PW-4,5 and 6, who were eye-witnesses to the incident, we do not find any suggestion to have been
made to the witness, which would show presence of the ingredients of Exception 4 of Section 300 of IPC, namely, that the incident occurred
without premeditation, that there was a sudden fight and that the appellant acted in heat of passion or that there was a sudden quarrel or that the
appellant did not take any undue advantage of the situation or acted in a cruel or unusual manner. On the contrary, what emerges from evidence is
that there is no evidence to know how the incident occurred, what was the genesis of the incident. There is no evidence to show absence of any
motive or otherwise. There is no evidence to show, whether there was any quarrel or if there was a quarrel, whether it was sudden, and against
that there is evidence to show that the appellant inflicted three knife blows on the deceased. Nature of injury as indicated by medical evidence
would go to show that the blows were given with full force, damaging liver and intestine. The injury on right elbow was a piercing injury, running
through and through the elbow. We do not find any evidence to know wherefrom the knife came in possession of the appellant, whether it was
with him from the beginning or wherefrom took it at the time of incident, but, the fact remains that he did inflict three knife blows, which were
sufficient in the ordinary course of nature to cause death and that did in fact cause death of the deceased.
All these pieces of evidence, taken collectively, would deter us from accepting the submission made by learned advocate for the appellant that
the case would fall under Exception 4 or for that matter under any of Exceptions of Section 300 of the IPC. There is total lack of material on
record to draw an inference about presence of circumstance to attract an Exception to Section 300 of IPC.
In view of foregoing discussions, it cannot be said that trial Court erred in any manner in recording the conviction of the appellant for the
offences punishable u/s 302 of the IPC and Section 135 of the B.P. Act. We do not find any merit in the appeal, the appeal must fail, and hence
stands dismissed.