Thakor Dashrathji Sahdevji Versus Vs State Of Gujarat

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Judgment

175 paragraphs · 4,747 words

Vimal K. Vyas, J

The present appeal has been preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) at the instance of the appellant-convict (i.e. the original accused) and is directed against the judgment and order of conviction and sentence dated 14.07.2015 passed by the learned Additional Sessions Judge, Patan, in Sessions Case No.86 of 2013.

By the aforesaid judgment and order of conviction and sentence, the trial court found the present appellant (i.e. the original accused) guilty for the offences punishable under Sections 302 and 504 of the Indian Penal Code as well as under Section 135 of the Gujarat Police Act, and consequently, sentenced him to undergo imprisonment as under :

Section

Imprisonment

Fine (Amount)

302 IPC

Life Imprisonment till death

2000=00

504 IPC

Rigorous Imprisonment for two years

1000=00

135 GP Act

Simple Imprisonment for six months

500=00

The prosecution version, in a nut-shell, is as follows :

It is the case of the prosecution that on 20.05.2013, there was a marriage function of the niece of the complainant at village Jamtha. At that time, the accused had come to the shop of the complainant’s brother, namely, Bharmaji Jumaji and had asked for a cold-drink. Thereafter, when Bharmaji Jumaji demanded for the money, the accused got agitated and abused him by uttering filthy language. At that time, another brother of the complainant, namely, Vishnuji Jumaji Thakor (i.e. the deceased) intervened, took the accused aside and tried to calm him down. However, the accused got angry, took out a knife from his pocket and inflicted knife blows on the right thigh and forehead of the Vishnuji. The injured Vishnuji was immediately taken to the Patan Janta Hospital, where he was declared dead.

On 20.05.2013, a complaint in this regard came to be lodged by the complainant (PW-1) Shobhaji Jumaji Thakor against the accused for the offences punishable under Sections 302 and 504 of the Indian Penal Code as well as under Section 135 of the Gujarat Police Act, which was registered as I-CR No.51 of 2013 before the Vagdod Police Station, Taluka and District Patan.

Thereafter, the investigation was commenced and during the investigation, the statements of the witnesses conversant with the incident were recorded and documentary evidence were collected. On completion of the investigation, charge-sheet came to be filed before the learned Judicial Magistrate, First Class, Patan, which was registered as Criminal Case No.2684 of 2013. As the offence was exclusively triable by the Sessions Court, the case was committed to the Sessions Court, Patan, which was registered as Sessions Case No.86 of 2013. The trial court, after following due procedure as prescribed under Section 207 of the Cr.P.C., framed the Charge vide Exh.4 against the accused. The charge was, thereafter, read over and explained to the accused, who abjured his guilt and pleaded not guilty and claimed to be tried.

To bring home the charge, the prosecution examined twelve witnesses and adduced twenty-seven documentary evidence in support of their case, which are as follow :

WITNESSES

No.

NAME

EXHIBIT

Thakor Shobhaji Jumaji (Complainant)

Rameshbhai Parmabhai (Inquest Panch)

Udaji Amthaji (Offence Place Panch)

Dhudabhai Govabhai (Accused Clothes Recovery Panch)

Hakaji Ladjiji (Knife Discovery Panch)

Virmabhai Paragji (Deceased Clothes Recovery Panch)

Moghjiji Ishwarji (Eye Witness)

Venaji Amaji (Eye Witness)

Bharmaji Jumaji (Shop-Keeper - Eye Witness)

10.

Dr.Rutva Narendrabhai Shah (PM - Doctor)

11.

Khodabhai Mangabhai (PSO)

12.

Rashmikant Govindlal Parmar (IO)

DOCUMENTARY EVIDENCE

Sr. No.

DESCRIPTION OF THE DOCUMENT

EXHIBIT

Complaint

Inquest panchnama

Offence place panchnama

Bloodstained soil recovery slip

Accused clothes recovery panchnama

Accused clothes recovery slips

18-20

Knife discovery slip

Knife discovery panchnama

Deceased clothes recovery panchnama

Deceased clothes recovery slip

26-27

PM note of deceased Vishnuji Jumaji

Forwarding letter to M.O., Dharpur Hospital

Cause of death certificate of deceased

Yadi/Letter to I.O. for investigation

Yadi/Letter to P.S.O., I.O.

Yadi/Letter to Executive Magistrate from I.O. for taking inquest

Report for PM of deceased Vishnuji

Receipt of police for dead-body

Receipt of complainant for dead-body

FSL investigation-van, Preliminary - Report

Yadi/Letter to M.O.-CHC, Vagdod for taking blood sample of accused

Forwarding note to FSL from I.O.

Receipt of FSL to I.O.

Notification of prohibiting weapons

FSL report forwarding letter to I.O.

FSL report

Serological Analysis Report

On completion of the recording of the evidence, the trial court explained the incriminating circumstances appearing against the accused. The accused, in the further statement recorded under Section 313 of the Cr.P.C., explained the incriminating circumstances that he is innocent and is falsely implicated in the alleged offence. In his defence, the accused examined DW-1 Chandaben Mafaji Thakor (Exh.56) and DW-2 Chamanji Raghuji (Exh.60).

On completion of the trial, the trial court, vide judgment and order dated 14.07.2015, convicted the appellant-accused for the offences punishable under Sections 302 and 504 of the Indian Penal Code as well as under Section 135 of the Gujarat Police Act, and consequently, sentenced him to suffer life imprisonment till death.

Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence passed by the trial court, the present appellant (i.e. the original accused) has preferred the captioned Criminal Appeal before this Court.

10.

At the outset, learned advocate Mr.Manish Patel appearing for the appellant-convict has submitted that he is not pressing the appeal on merits. Learned advocate submitted that the appellant-convict has already undergone 10 years, 9 months and 11 days of incarceration as on date and if the evidence is closely perused, it reveals that the offence would fall within the parameters of Exception IV to Section 300 of the Indian Penal Code, that is, culpable homicide not amounting to murder, and, therefore, the conviction is required to be altered from Section 302 to Section 304 of the Indian Penal Code. In support of his submission, learned advocate Mr.Patel has placed reliance on the decisions of the Supreme Court in the case of Anbazhagan vs. The State represented by the Inspector of Police, reported in AIR 2023 SC 3660 and in the case of N.Ramkumar vs. State represented by Inspector of Police, reported in AIR 2023 SC 4246. Learned advocate, while referring to the evidence of the complainant (PW-1) Shobhaji Jumaji Thakor, who is the brother of the deceased Vishnuji, and the evidence of the eye-witnesses (PW-7) Moghjiji Ishwarji Thakor, (PW-8) Venaji Amaji Thakor and (PW-9) Bharmaji Jumaji Thakor, has submitted that the evidence of all the aforesaid witnesses clearly reveals that there was no premeditation on the part of the appellant-convict to commit the murder of the deceased Vishnuji. It only reveals that on the fateful day of the incident, there was a marriage function of the niece of the complainant (PW-1) Shobhaji Jumaji Thakor at village Jamtha and at about 6:00 p.m., the accused had come to the shop of Bharmaji Jumaji, and had asked for a cold-drink but the said Bharmaji Jumaji refused him to give and instead demanded for the money, therefore, the accused got agitated and abused him by uttering filthy language. At that time, the deceased Vishnuji (i.e. the brother of Bharmaji Jumaji) intervened and tried to settle the dispute. However, the accused got angry, and in the heat of passion, inflicted knife blows on the right thigh and forehead of the deceased Vishnuji, who succumbed to the injuries. It is submitted that the entire incident took place in a spur of moment, in the heat of passion, in a sudden fight, without premeditation. Admittedly, the accused had not taken any undue advantage and he had not even acted in a cruel manner. Thus, learned advocate Mr.Patel has urged that the conviction of the appellant-accused for the offence punishable under Section 302 of the Indian Penal Code may be altered to Section 304 Part-II of the Indian Penal Code. He has further urged that since the appellant-convict has already undergone more than 10 years, 9 months and 11 days of incarceration as on date, he may be released.

11.

Vehemently, opposing the present appeal and the submissions advanced by the learned advocate Mr.Manish Patel for the appellant-convict, learned APP Ms.Shruti Pathak has submitted that the appeal is not required to be entertained since the trial court, after precisely appreciating the evidence; both, oral as well as documentary, has convicted the appellant-accused for the serious offence of murder. Learned APP, while referring to the evidence of the complainant (PW-1) Shobhaji Jumaji Thakor, who is the brother of the deceased Vishnuji, and the evidence of the eye-witnesses (PW-7) Moghjiji Ishwarji Thakor, (PW-8) Venaji Amaji Thakor and (PW-9) Bharmaji Jumaji Thakor, has submitted that all these witnesses are the eye-witnesses and no major contradictions or omission surface from their evidence which would brand them unreliable witnesses. Learned APP Ms.Pathak has submitted that, in fact, the ocular evidence corroborates with the medical evidence and the postmortem note at Exh.33 reveals that the deceased was inflicted with two knife blows; one, on the forehead, and another, on the right thigh. The evidence further reveals that there was both; knowledge and intention, on the part of the accused to commit the murder of the deceased. Thus, she has urged that the appeal may be dismissed.

12.

We have heard the learned advocates appearing for the respective parties and also threadbare examined the evidence on record as well as the judgment of the trial court. It appears from the record that the entire case of the prosecution hinges upon the evidence of the complainant (PW-1) Shobhaji Jumaji Thakor, who is the brother of the deceased Vishnuji, and the evidence of the eye-witnesses (PW-7) Moghjiji Ishwarji Thakor, (PW-8) Venaji Amaji Thakor and (PW-9) Bharmaji Jumaji Thakor, who, in their evidence, have similarly deposed that on the fateful day of the incident, there was a marriage function of the niece of the complainant (PW-1) Shobhaji Jumaji Thakor at village Jamtha and at about 6:00 p.m., the appellant-accused had come to the shop of Bharmaji Jumaji (PW-9), and had asked for a cold-drink but the said Bharmaji Jumaji refused him to give and instead demanded for the money, therefore, the appellant-accused got agitated and abused him by uttering filthy language. At that time, the deceased Vishnuji (who is the brother of Bharmaji Jumaji) intervened and tried to settle the dispute. However, the accused got angry, and in the heat of passion, inflicted knife blows on the right thigh and forehead of the deceased Vishnuji, who was immediately taken to the hospital, however, he succumbed to the injuries. In the cross-examination of all these witnesses, although it is elicited that prior to the incident, there was no enmity between them and the appellant-accused, yet from the deposition of the Medical Officer (PW-10) Dr.Rutva Narendrabhai Shah, who performed the postmortem of the deceased, as well as from the postmortem note (Exh.33), it reveals that the deceased had sustained two injuries, (1) A contused lacerated wound of 2x1x1.5 cm. over left frontal region 5.6 cm. lateral to medline and 1 cm. backward to hairline and (2) Contused lacerated wound of 3x1x2.5 cm. over right thigh medial side 5.6 cm. from groin.

13.

The overall appreciation of the evidence; both, ocular as well as documentary, in fact, would reveal that the incident had occurred in a spur of moment, in the heat of passion, in a sudden fight and there was no premeditation on the part of the appellant-accused to commit the murder of the deceased Vishnuji. At this juncture, it is necessary to determine, whether at the time of the incident, the appellant-accused had the intention to commit the murder of the deceased or the knowledge that by such act of his, death was likely to be caused. In this regard, it would be apposite to refer to the decision of the Supreme Court in the case of Anbazhagan (supra), wherein, the Supreme Court, while defining the true test to be adopted to find out the intention or knowledge of the accused in doing the act, has held in paragraph-60 of the judgment thus :

“60. Few important principles of law discernible from the aforesaid discussion may be summed up thus :-

(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.

(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.

(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is guilty intention, whereas the second part would apply when there is no such intention, but there is guilty knowledge.

(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.

(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.

To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.

(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.

(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, Istly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.

(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.

(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.

(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.

(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.

(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.”

14.

We may also refer to the recent decision of the Supreme Court in the case of N.Ramkumar (supra), wherein the Supreme Court, in paragraphs-20 and 21, has held thus :

“20. Thus, it emerges from the case law analysed herein-above for converting the sentence imposed under Section 302 to Section 304 Part II the facts unravelled during trial will have to be seen. In the facts of the case on hand, it is discernible that there was no premeditation to cause death or the genesis of occurrence and the single assault by the accused and duration of entire episode, were factors to adjudge the intention. The offence can be brought clearly within the ambit of Section 304 Part-II IPC. In the instant case it can be noticed that appellant and the deceased were in love with each other. The fact that deceased had stopped talking to the appellant and she was talking to her neighbour Mr. Sudhakar had ignited the mind of the appellant to be furious about the conduct of the deceased and he was upset about this change of attitude of the deceased. Even according to the testimony of PW-1, who is none other than mother of the deceased there was altercation between the appellant and the deceased and exchange of words between appellant and deceased with regard to their love affair. On being confronted by the appellant as to why the accused had stopped talking to him and as to why she was trying to develop friendship with Sudhakar and the answer given by the deceased had resulted in appellants getting infuriated and in that spur of the moment he caught hold of her hair and banged her head to the wall which resulted in blood oozing out and on seeing this he ran away from the scene of the incident. Thus, the single assault by the appellant coupled with the duration of the entire period having occurred for about 2-3 minutes would not be sufficient to infer that he had the intention to kill the deceased. Had there been any intention to do away with the life of the deceased, obviously the appellant would have come prepared and would have assaulted the deceased with pre-meditation. Yet another factor which cannot go unnoticed, the appellant had obviously approached the deceased and intended to confront her as to why she was not talking to him though they were in love and also to clear the doubts about she being friendly with Mr. Sudhakar (neighbour) and in this factual scenario, heated exchange of words have taken place and enraged by her reply the appellant has banged her head on the wall in a fit of fury, which cannot be inferred that he had any intention to take away her life, particularly when he was in love with her.

21.

In the aforesaid analysis of law and facts, we are of the considered view that the present appeal deserves to be allowed in part. The conviction of the appellant under 302 is altered/converted to one under Section 304 part II of the Indian Penal Code for the altered conviction, the appellant is sentenced to the imprisonment to the period already undergone and shall be released forthwith if not required in any other case.”

15.

Undoubtedly, it reveals from the evidence that the incident had occurred in a spur of moment, in a sudden fight, in the heat of passion, upon a sudden quarrel and there was no premeditation on the part of the appellant-accused to commit the murder of the deceased. It also reveals that the appellant-accused had not taken any undue advantage nor he had acted in a cruel manner.

16.

On the facts and in the circumstances of the case, we are of the considered opinion that the offence does not fall within clauses (2) or (3) of Section 300 of the Indian Penal Code. At the most, it can be said that the appellant-accused could have the knowledge that if he inflict blow on the vital part of the deceased, the same would likely to cause his death. Therefore, no intention can be attributed to the appellant-accused of committing the murder of the deceased Vishnuji.

17.

In above view of the matter, the offence would fall under third part of Section 299 of the Indian Penal Code, which would be an offence under Part II of Section 304 of the Indian Penal Code. The observations of the Supreme Court in the above referred cases are that if an act of the accused falls within the first two clauses of culpable homicide as described under Section 299 of the Indian Penal Code, the same would be punishable under Part-I of Section 304 of the Indian Penal Code, and if it falls within the third clause, the same would be punishable under Part-II of Section 304 of the Indian Penal Code. The provisions of Section 304 of the Indian Penal Code contain two parts; the first part deals with the act done with the intention, i.e. culpable homicide not amounting to murder - in case where death caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death and, the second part deals with the act done with the knowledge that is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. The imprisonment stipulated in the section is upto ten years or fine or both.

18.

On the overall analysis of the evidence, we are of the considered opinion that the conviction recorded by the trial court under the provisions of Section 302 of the Indian Penal Code is required to be altered to that of Part-II of Section 304 of the Indian Penal Code.

19.

The jail remarks show that the appellant-convict has already undergone more than 10 years, 9 months and 11 days of incarceration as on date.

20.

In view of the above discussion and sequent verdicts of the Supreme Court, the present Criminal Appeal is allowed in part. So far as the culpability of the appellant-convict is concerned, the same is hereby maintained but the conviction is altered to Section 304 Part–II of the Indian Penal Code instead of Section 302 of the Indian Penal Code, and accordingly, the sentence is reduced from Life Imprisonment to the period already undergone. The appellant be released forthwith, if not required in any other offence. Records and proceedings be sent back to the concerned court.

Thakor Dashrathji Sahdevji vs Vs State Of Gujarat

Judgment