Mevabhai Bhikhabhai Gamar vs State of Gujarat

K.S. Jhaveri, J.—The appellants-original accused Nos. 1 and 2 have preferred Criminal Appeal No. 2948 of 2008 and appellant-original accused No. 3 has preferred Criminal Appeal No. 773 of 2009, under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 30-9-2008 passed by the learned Addl. Sessions Judge, and Presiding Officer, 5th Fast Track Court, Palanpur in Sessions Case No. 164 of 2007, whereby, the learned trial Judge has convicted the appellants-original accused Nos. 1, 2 and 3 under Sec. 302 read with Sec. 34 of I.P.C. and sentenced them to undergo imprisonment for life. The appellants-original accused Nos. 1, 2 and 3 also convicted under Sec. 326 of I.P.C. and sentenced to undergo R.I. for 7 years. The appellants-original accused Nos. 1, 2 and 3 further convicted under Sec. 504 of I.P.C. and under Sec. 135 of the Bombay Police Act and sentenced to undergo R.I. for three months, which is impugned in these appeals. Since both the appeals arise from same judgment and order of the learned trial Judge, they are disposed of by this common judgment. The case of the prosecution is that on 16-8-2007, at about 8-00 a.m., the complainant was carrying on agricultural activity, at that time, his father Netabhai Bhikhabhai was attacked with an intention to kill him by accused No. 1 by axe, and accused Nos. 2 and 3 by knife and committed the murder of deceased Netabhai Bhikhabhai. When complainant intervened to save his deceased father, he was also attacked by accused Nos. 2 and 3. Appellants-accused have also abused and thereby committed an offence under Sec. 504 of I.P.C. Therefore, a complaint was lodged.

1.1. The accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the accused. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 164 of 2007.

1.2. Thereafter, the Sessions Court framed the charge below Exh. 3 against the accused for commission of the offence under Secs. 302, 326 and 504 read with Sec. 34 of I.P.C. and under Sec. 135 of the Bombay Police Act. The accused have pleaded not guilty and claimed to be tried.

1.3. To prove the case against the present appellants-accused, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned Advocate for the appellants-accused:

P.W. 1 Dr. Tarifkhan Yusufkhan Javat Exh. 12

P.W. 2 Dr. Rakeshkumar Mafatlal Patel Exh. 20

P.W. 3 Chhaganbhai Netabhai Gamar Exh. 23

P.W. 4 Naranbhai Netabhai Gamar Exh. 27

P.W. 5 Manjuben Netabhai Gamar Exh. 29

P.W. 6 Khetabhai Ratabhai Gamar Exh. 31

P.W. 7 Shankarlal Devilal Joshi Exh. 35

P.W. 8 Narendrakumar Chandrakantbhai Thakkar Exh. 39

P.W. 9 Naranbhai Pabubhai Gamar Exh. 40

P.W. 10 Khengarbhai Senabhai Gamar Exh. 45

P.W. 11 Virmabhai Ghudabhai Gamar Exh. 49

P.W. 12 Jethabhai Bhikhabhai Gamar Exh. 53

P.W. 13 Vachaliben Chhaganbhai Gamar Exh. 54

P.W. 14 Sureshbhai Netabhai Gamar Exh. 55

P.W. 15 Chhapuben Netabhai Gamar Exh. 56

P.W. 16 Laduben Reshmabhai Gamar Exh. 57

P.W. 17 Pravinsinh Karansinh Chauhan Exh. 59

P.W. 18 Amrutbhai Singaji Menat Exh. 67

Ramjibhai Muljibhai Lata Exh. 71

1.4. The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused:

Yadi for post-mortem Exh. 13

Inquest panchnama Exh. 46

Order for investigation Exh. 60

Post-mortem Note Exh. 14

Complaint Exh. 24

Recovery panchnama Exh. 36

Panchnama of scene of offence Exh. 52

Index Exh. 72

Notification Exh. 70

Message to Executive Magistrate Exh. 61

Fax message Exh. 74

Fax message Exh. 75

Special report Exh. 73

Form Exh. 62

Panchnama of person of accused Exh. 47

Panchnama of clothes of dead-body Exh. 43

Panchnama of person of complainant Exh. 32

Yadi Exh. 63

Yadi Exh. 22

Yadi Exh. 17

Medical certificate of Naranbhai Exh. 18

Medical certificate of complainant Exh. 21

Cause of death certificate Exh. 15

Yadi Exh. 64

Birth certificate Exh. 65

Birth certificate Exh. 66

Receipt of F.S.L. Exh. 68

F.S.L. Report Exh. 69

Thereafter, after examining the witnesses, further statement of the appellants-accused under Sec. 313 of Cr.P.C. was recorded in which the appellants-accused have denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 30-9-2008 held the present appellants-original accused Nos. 1, 2 and 3 guilty of the charge levelled against them under Secs. 302, 326 and 504 of I.P.C. and under Sec. 135 of the Bombay Police Act, convicted and sentenced the appellants-original accused Nos. 1, 2 and 3, as stated above.

We have heard at length learned Advocate Mr. V.B. Kundan Singh, for appellants-original accused Nos. 1 and 2 in Criminal Appeal No. 2948 of 2008 and Mr. Mrudul Barot learned Advocate for the appellant-original accused No. 3 in Criminal Appeal No. 773 of 2009. Mr. K.P. Raval, learned A.P.P. for the respondent-State in both the appeals.

The learned Advocate for the present appellants have contended that the trial Court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellants deserve to be given the benefit of doubt and be acquitted.

On the other hand, learned A.P.P. has strongly opposed the contentions raised by the learned Advocate for the present appellants and has submitted that the trial Court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it, and hence, no interference is called for and the appeals deserve to be dismissed.

Learned Advocates for the appellants-original accused Mr. V.B. Kundan Singh and Mr. Barot contended that the complainant had exaggerated the story, but in fact, there was no common intention and even if the evidence of all the witnesses and the ocular version as well as the documentary evidence is considered, the injuries which are caused are by axe and second injury by the knife and as per the medical evidence, the appellant-original accused No. 3, client of Mr. Barot, has not caused any injury to the deceased. The learned Advocates further contended that as per the medical evidence, the vital injury is one, and therefore, Mr. Kundan Singh contended that original accused No. 2 may not be convicted under Sec. 302 I.P.C. but he may be convicted either under Sec. 304, Part-I or II or under Sec. 326 of I.P.C. He has further contended that in view of the evidence of P.W. 5-Manjuben Netabhai Gamar Exh. 29 and P.W. 12-Jethabhai Bhikhabhai Gamar Exh. 53, who turned hostile and not supported the case of the prosecution. Learned A.P.P. Mr. K.P. Raval supported the case of the prosecution and contended that it is a case for the offence under Sec. 302 I.P.C. and the conviction and sentence imposed by the learned trial Judge is just and proper and no interference is called for in these appeals.

In view of medical evidence of P.W. 1-Dr. Tarifkhan Yusufkhan Javat Exh. 12, who has examined both, the victim as well as injured. They are of the opinion that the injury which are caused are homicidal death is neither accidental or suicidal death. Hence, in view of the injuries, the cause of death is shock due to lung injury. The injuries are as under:

Incised wound present over right side of interscepular region.

-size about 2.5 cm. x 1 cm. x muscle deep.

- wedge shaped, edges are clean-cut and red.

- Bleeding present from wound.

Stab wound present over right side of posterior thoracic wall just below above-mentioned incised wound.

- wedge shaped.

P.W. 3-Chhaganbhai Netabhai Gamar Exh. 23, who is complainant injured eye-witness. He has deposed in his evidence that on the day of incident, his deceased father Netabhai was grazing the cattle. At that time, accused Mevabhai came there with axe and gave axe blow on the back side of head of his deceased father Netabhai. Thereafter, accused Nos. 2 and 3 who have hidden themselves in the field, came out and they also gave knife blows to his father. When complainant tried to save his father, accused persons have also gave him knife blows on right and left side of his back. This witness has identified the muddamal knife and axe and he has also identified the accused in the Court. Therefore, we are of the view that it is a homicidal death and the view taken by the trial Court is just and proper.

The next question which comes for our consideration whether the case of accused would fall under Sec. 34 of I.P.C. or should individual role be considered. From the evidence of complainant, it is very clear that the deceased was attacked by the accused No. 1, and not by all together, therefore, it was not that all the three accused attacked the deceased with a common purpose. In that view of the matter, this case will not fall under Sec. 34 of I.P.C. In that view of the matter, individual role is required to be seen which has caused the death. From the evidence of all the witnesses, it is clear that the deceased was given two blows, one by axe and another by knife. Keeping in mind the vital part of the body and the knife blow over right side of posterior thoracic wall just below injury No. 1, we are of the opinion that the accused No. 2 has not given the severe blow. Accused No. 3 has not given any blow to the deceased, but he has injured the witness. The version of witness namely the complainant, prima facie, seems to be exaggerated, however, presence is proved and keeping in mind the role played by each of the accused, we are of the opinion that ends of justice would be met if accused No. 2 is convicted under Sec. 304, Part-I of I.P.C. and accused No. 3 is convicted under Sec. 326 of I.P.C. instead of conviction under Sec. 302 I.P.C.

Having considered minutely the evidence on record, oral as well as documentary evidence, which we have appreciated, re-appreciated and reconsidered in light of the latest decision of the Apex Court. The finding of facts as far as the death being homicidal death, cannot be found any fault with. The trial Court was justified in holding the appellants guilty for the offence punishable under Sec. 302, however, on re-appreciation of the facts, the provisions of Sec. 299(b) and Sec. 300(3) and degree of probability of death would be a determining factor. It cannot be said that the accused had any motive to do away with the deceased, however, he had a knowledge looking to the injuries, it cannot be said that he had no knowledge that the danger cause proximate to a practical certainty and such knowledge on the part of the accused was of the higher degree. The act having been committed by the accused is proved beyond reasonable doubt.

The residual question which arise before us whether Sec. 302 of I.P.C. has its application or it would be falling within Sec. 304 of I.P.C.

This bring us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the I.P.C. culpable homicide is genus and ''murder'' its specie. All ''murder'' is ''culpable homicide'' but not vice-versa. Speaking generally, ''culpable homicide'' sans ''special characteristics of murder is culpable homicide not amounting to murder''. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the I.P.C. practically recognise three degrees of culpable homicide. The first is, what may be called, ''culpable homicide of the first degree''. This is the gravest form of culpable homicide, which is defined in Sec. 300 as ''murder''. The second may be termed as ''culpable homicide of the second degree''. This is punishable under the first part of Sec. 304. Then, there is ''culpable homicide of the third degree''. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the Second Part of Sec. 304.

The academic distinction between ''murder'' and ''culpable homicide not amounting to murder'' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the Legislature in these Sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Secs. 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:

Clause (b) of Sec. 299 corresponds with clauses (2) and (3) of Sec. 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ''intention to cause death'' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender''s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Sec. 300.

Clause (b) of Sec. 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Sec. 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Sec. 300, instead of the words ''likely to cause death'' occurring in the corresponding clause (b) of Sec. 299, the words ''sufficient in the ordinary course of nature'' have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Sec. 299 and clause (3) of Sec. 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word ''likely'' in clause (b) of Sec. 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury..." sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.

For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the internal bodily injury or injuries sufficient to cause death in the ordinary course of nature.

In light of the decision of the Apex Court, each accused has to be tried separately as we hold that there was no common intention or common object to do away with the deceased or to cause injury. We are not convinced that it has happened in a spur of moment. There were dispute going on much before the incident, and therefore, accused No. 1 had a grudge and the injuries which he had inflicted will not permit us to take any other view than the one taken by the learned trial Judge as far as accused No. 1 is concerned.

The learned Advocate for the appellants has taken us through the entire record. Having perused the entire record, we are convinced that this is a case which falls under the category of culpable homicide, however, the degree of the same is similar to the one in the case of Budhi Lal Vs. State of Uttarakhand, . The conviction in the said case was altered from Sec. 302 of I.P.C. to 304, Part-I of I.P.C. instead of Sec. 300 of I.P.C. In this case, as distinguished from the said decision, the assault was by axe and knife. The intention cannot be said to be absent. The cause of death as narrated in the post-mortem report is in proximity with the injuries. Therefore, it cannot be said that the accused did not have any intention or knowledge that the injuries which they had inflicted would culminate into such bodily injury which may or may not cause death. The injuries were sufficient to cause death, and therefore, we deem it fit to consider it as culpable homicide not amounting to murder. The latest decision of the Apex Court would help the accused in the case of Swarn Kaur Vs. Gurmukh Singh and Others, . We are unable to accept the submission of the learned Advocate that there was no intention or motive. As against this, learned A.P.P. Mr. K.P. Raval has taken us extensively through the entire evidence, and therefore, we are unable to convince ourselves that the accused are not guilty or that benefit of doubt requires to be given to them. The finding of fact reached by the learned trial Judge are so succinct, we are unable to take a different view than the one taken by the learned trial Judge, save and except, that the conviction under Sec. 302 of I.P.C. requires to be altered to under Sec. 304, Part-1 of I.P.C. qua appellant-original accused No. 2 and the conviction under Sec. 302 of I.P.C. also requires to be quashed and set aside qua appellant-original accused No. 3, and to that extent, both the appeals require to be partly allowed.

Looking to the provisions of Sec. 27 of the Evidence Act, it was a sharp-cutting instrument with which the deceased died which was recovered at the instance of the accused, and therefore, the same is also admissible in evidence in view of the decision of the Apex Court in the case of Jagroop Singh Vs. State of Punjab, . This takes us to the most crucial point as per the decision of the Apex Court, we are convinced that this would fall within the purview of Sec. 304, Part-I of I.P.C. The reasons are herein enumerated. The incident happened all of sudden. The grievous injuries to the deceased were not motivated nor there was motive to cause death, and therefore, it would fall within the purview of Sec. 304, Part-I of I.P.C.

In the result, Criminal Appeal No. 2948 of 2008 is partly allowed. The impugned judgment and order of conviction and sentence dated 30-9-2008 passed by the learned Addl. Sessions Judge & Presiding Officer, 5th Fast Track Court, Palanpur in Sessions Case No. 164 of 2007 is confirmed qua appellant No. 1-original accused No. 1 Mevabhai Bhikhabhai Gamar. However, it is clarified that life would not mean till the last breath and his case may be considered by the State Government after 14 years and he shall be entitled to remission as admissible.

So far as appellant No. 2-original accused No. 2-Rameshbhai Mevabhai Gamar is concerned, his conviction under Sec. 302 of I.P.C. to undergo R.I. for life is altered and he is convicted under Sec. 304, Part-I of I.P.C. and sentenced to undergo 10 years rigorous imprisonment. Rest of the impugned judgment and order of the trial Court stands confirmed.

Criminal Appeal No. 773 of 2009 is partly allowed. The impugned judgment and order of conviction and sentence dated 30-9-2008 passed by the learned Addl. Sessions Judge & Presiding Officer, 5th Fast Track Court, Palanpur in Sessions Case No. 164 of 2007 recording conviction of appellant-Bhanabhai Mevabhai Gamar-original accused No. 3 under Sec. 302 of I.P.C. is quashed and set aside. However, his conviction and sentence under Sec. 326 of I.P.C. to undergo R.I. for 7 years and under Sec. 504 of I.P.C. to undergo R.I. for three months, are confirmed. If he has completed 7 years imprisonment, but subject to the complaint for absconding, he may be released. However, it is made clear that since the appellant-original accused No. 3 is absconding and the complaint which is lodged by the Jail Authority may be proceeded further and appropriate proceedings may be taken against the appellant-original accused No. 3, in accordance with law.

R. & P. to be sent back to the trial Court, forthwith.