Gujarat High Court
Ajaypari Hiteshpari Goswami vs State Of Gujarat on 18 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1208 of
2019
With
R/CRIMINAL APPEAL NO. 1129 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
=======================================
Approved for Reporting Yes No
Yes -
=======================================
AJAYPARI HITESHPARI GOSWAMI
Versus
STATE OF GUJARAT
=======================================
Appearance:
MR ASHISH M DAGLI(2203) for the Appellant in Criminal Appeal
No. 1208 of 2019
MR ALOK THAKKAR FOR MR CHANDRANI for the Appellant in
Criminal Appeal No. 1129 of 2019
JAY MEHTA APP for the Respondent(s) No. 1
=======================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 18/02/2025
ORAL JUDGMENT
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NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined (PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. Criminal Appeal No. 1208 of 2019 has been filed by the appellant - Ajaypari Hiteshpari Goswami (accused No.3) under Section 374 of the Criminal Procedure Code, 1973 against the judgment and order of conviction dated 30.04.2019 passed by the learned 3rd Additional Sessions Judge, Rajkot (hereinafter be referred to as "the trial Court") in Sessions Case No.229 of 2015, whereby, the present appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and directed him to undergo sentence of rigorous imprisonment of life for the said offence with fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three months and also convicted for the offence punishable under Section 135(1) of the Gujarat Police Act and directed him to undergo sentence of simple imprisonment for a period of four months for the said offence with fine of Rs.500/- and in default of payment of fine, to undergo simple imprisonment for ten days.
1.1 Criminal Appeal No. 1129 of 2019 has been filed by the appellant No.1 - Hiteshpari Parsotampari Goswami (accused No.1) and appellant No.2 Nirajpari Hiteshpari Goswami (accused No.4) under Section 374 of the Criminal Procedure Code, 1973 against the judgment and order of conviction dated 30.04.2019 passed by the learned 3rd Additional Sessions Judge, Rajkot in Sessions Case No.229 of 2015, whereby, the present appellants Page 2 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined have been convicted for the offence punishable under Section 323 of the Indian Penal Code and directed them to undergo sentence of simple imprisonment for a period of six months with fine of Rs.1,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of ten days and also convicted for the offence punishable under Section 135(1) of the Guparat Police Act and directed them to undergo sentence of simple imprisonment for a period of four months for the said offence with fine of Rs.500/- each and in default of payment of fine, to undergo simple imprisonment for ten days.
2. As all these criminal appeals having been arisen of the impugned judgment and order of conviction, both the appeals are heard together and are being disposed of by this common judgment.
3. Brief facts of the prosecution case is that on 10.04.2015 at about 2:00 p.m. to 2:15 p.m. the complainant - Pragnaben W/o. Maheshpari Goswami, her husband Maheshpari both were at her house and at that time, her sister-in-law Rasilaben had come and made discussion for selling of the shop. It is alleged that the complainant told her sister-in-law that after selling the shop, the amount was to be invested in bank in the name of father-in-law and she did not felt good, therefore, she was uttering filthy language. It is further alleged that Maheshpari had told that not to utter filthy language, however, at that time, Ramilaben shouted and thereupon Hiteshpari along with two sons namely Page 3 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined Ajaypari and Nirajpari had also come there. It is also alleged that Nirajpari having stick in his hand and telling that why they were telling frequently for selling the shop of father and by telling this, he was uttering filthy language and at that time the husband of the complainant had told him not to utter filthy language then her brother-in-law aggressive more and had beaten bludgeon to her husband and due to which he sustained injuries and nephew Nirajpari had beaten by stick on hand and leg and due to sustained camouflage injuries. The complainant intervened then her sister-in-law Rasilaben had beaten her as well as her husband - Maheshpari by punching. It is also alleged that at that time, his nephew Ajaypari had taken out a knife from his waist of pent and suddenly given one blow at the stomach of her husband and there was bleeding and on noise her parents-in-law as well as her elder sister-in-law Hansaben had come there and, therefore, those persons fled away. It is the case of the prosecution that she had made call to 108 ambulance and her husband was being taken in ambulance 108 to Government Hospital for treatment and her husband was admitted in ward "E" and her husband was immediately operated and after completion of operation, doctor had told her that her husband Maheshpari had eight inch deep wound at stomach due to which he having grievous injury at liver and having serious and further informed that another operation to be conducted after forty-eight hours. It is further the case of the prosecution that the treatment of her husband was going on and he was conscious and, thereafter, the complainant has lodged the complaint against the accused for Page 4 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined the alleged crime in question.
3.1 On the basis of the complaint filed by the complainant, the First Information Report (FIR) being C.R.No.I- 63 of 2015 came to be registered with Kuvadwa Road Police Station for the offence punishable under Sections 302, 307, 323, 504, 114 etc of the Indian Penal Code and Section 135 of the Gujarat Police Act.
3.2 After completion of investigation, as the sufficient evidence was found, the police has arrested the accused and have filed the charge-sheet against the accused before the Chief Judicial Magistrate (First Class), Bhavnagar wherein it was registered as Criminal Case No.5090 of 2015. As the offence was triable by the Court of Sessions, the Judicial Magistrate (First Class) has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions where it has been registered as Sessions Case No.229 of 2015.
3.3 On the basis of the material available on record, the trial court has framed the charge vide Exhibit 38 against the accused for the offences punishable under aforesaid sections and the same were explained to them. The accused have denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the learned Sessions Judge, Rajkot.
3.4 Considering the evidence on record and after hearing the Page 5 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined respective parties, ultimately, the learned Sessions Judge has convicted the accused - appellants herein for the aforesaid offences and awarded the sentence as stated above.
4. It appears from the records that to prove the case, the prosecution has examined the following witnesses:-
P.W.1 Pragnaben Maheshpari Goswami Exhibit 44 P.W.2 Parsotampari Prempari Goswami Exhibit 46 P.W.3 Kantaben Parsotampari Goswami Exhibit 47 P.W.4 Milanbhai Manojbhai Rajvir Exhibit 48 P.W.5 Dipakbhai Vinodbhai Paija Exhibit 50 P.W.6 Rameshbhai Maganbhai Udhreja Exhibit 51 P.W.7 Rajeshbhai Chandulal Maniyar Exhibit 53 P.W.8 Gitaben Sureshbhai Unadkat Exhibit 61 P.W.9 Mukeshbhai Pratapbhai Dabra Exhibit 62 P.W.10 Mukeshbhai Sompari Gosai Exhibit 66 P.W.11 Kajalben Ravindrabhai Goswami Exhibit 69 P.W.12 Ravindrabhai Rameshbhai Goswami Exhibit 71 P.W.13 Dr. Mukeshbhai Jethalal Upadhya Exhibit 76 P.W.14 Dr. Jayanta Kartichandra Bhattacharya Exhibit 87 P.W.15 Madhavkumar Dayashankerbhai Mehta Exhibit 91 P.W.16 Bhagirath Maheshpari Goswami Exhibit 94 P.W.17 Hansaben Rameshpari Goswami Exhibit 95 P.W.18 Arvindbhai Himatbhai Taraiya Exhibit 96 P.W.19 Aniruddhsinh Tapubha Jadeja Exhibit 99 P.W.20 Amritgiri Keshavgiri Goswami Exhibit 100 P.W.21 Indrajitsinh Balvantsinh Jadeja Exhibit 107 P.W.22 Sarmanbhai Rambhai Varu Exhibit 108 Page 6 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined
5. In addition to this, the prosecution has also produced the following documentary evidence:-
1. Complaint Exhibit 45
2. Panchnama of place of incident Exhibit 49
3. Panchnama for recovery of clothes of Exhibit 52 deceased
4. Arrest panchnama of accused as well as Exhibit 54 recovery of clothes of accused
5. Panch slips Exhibit 55 to Exhibit 58
6. Inquest panchnama Exhibit 67
7. Yadi for post mortem Exhibit 77
8. Report to be submitted to Civil Surgeon Exhibit 78
9. Post mortem report Exhibit 79
10. M.L.C. case papers Exhibit 88
11. Medical certificate Exhibit 89
12. C.T. scan report Exhibit 90
13. Yadi for dying declaration Exhibit 92
14. Dying declaration Exhibit 93
15. Death certificate of Kanaiyalal (prepared map Exhibit 97 of place of incident)
16. Yadi and map Exhibit 98
17. Janvajog entry of hospital worthy Exhibit 101
18. Forwarding letter Exhibit 102
19. Station diary entry Exhibit 103
20. Entry regarding injured is died Exhibit 104
21. Report for heinous crime to Superior Officer Exhibit 111
22. Letter written FSL, Rajkot Exhibit 112
23. FSL report for visiting place of incident Exhibit 113 Page 7 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined
24. Letter written by I.O. to Police Commissioner Exhibit 114 to do needful for arrest of accused
25. Letter written by I.O to J.M.F.C. regarding Exhibit 115 arrest of accused
26. Letter written by I.O. to Medical Officer for Exhibit 116 getting blood sample of accused
27. Letter written by I.O. to Police Commissioner Exhibit 117 regarding obtaining permission to arrest the accused
28. Letter written by I.O. to J.M.F.C. regarding Exhibit 118 taking over custody of accused
29. Yadi written by I.O. to Circle Inspector for Exhibit 119 preparing map of place of incident
30. Yadi for obtaining medical certificate Exhibit 120
31. Letter written by I.O. to Police Commissioner Exhibit 121 regarding do the needful as one of the accused is placed personnel
32. Yadi for obtaining blood sample of witness Exhibit 122 Maheshbhai Parsotambhai
33. Letter written by P.S.O. to I.O. regarding death Exhibit 123 of injured
34. Receipt for handing over corpse Exhibit 124
35. Letter written by I.O. to J.M.F.C. regarding Exhibit 125 addition of Section 302 of I.P.C.
36. Letter to Police Commissioner regarding Exhibit 126 Special Report
37. Receipt of muddamal Exhibit 127
38. Notification of Police Commissioner under G.P. Exhibit 128 Act
39. Letter written by Circle Inspector, Taluka Exhibit 129 Panchayat, to P.I. Kuvadwa Police Station
40. Letter written to Medical Officer Exhibit 130
41. FSL report Exhibit 131
42. Yadi for giving medical certificate Exhibit 132 Page 8 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined
43. M.L.C. case paper file (35 pages) Exhibit 133
44. Pathology Report of Maheshpari Exhibit 134
45. Blookd Bank report of Maheshpari Exhibit 135
46. Pathology report of Maheshpari Exhibit 136
47. Blood Bank report of Maheshpari Exhibit 137
48. Pathology report Exhibit 138
49. Blood report Exhibit 139
50. TPR report of Maheshpari Exhibit 140
6. After closure of the evidence, the statements of the accused under Section 313 of the Criminal Procedure Code, 1973 have been recorded wherein they denied having committed any offence and have stated that they are innocent.
6.1 After considering the oral as well as documentary evidence, the trial Court has framed the points for determination, which are reproduced hereinbelow.
(1) Whether the prosecution proves beyond reasonable doubt that on 10-04-2015 between 2.00 to 2.15 p.m., the shop of father-in-law of the complainant situated near the house and for that the complainant had informed to accused No.2 to sell the same and invest the money in the name of father then near the house of complainant the accused had made quarrel with complainant and her husband Maheshpari and beaten to complainant by fist and the accused Hiteshpari and Nirajpari had made quarrel with the husband of complainant, namely Maheshpari and accused Ajaypari had caused injury by knife at the join of Maheshpari having knowledge and intention to cause injury and during treatment, Maheshpari died and the accused had in collusion with Page 9 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined each other by possessing deadly weapons like knife against the notification of Police Commissioner and caused death of Maheshpari. As such accused have committed an offence punishable under Sections 302, 307, 323, 504 and 114 of I.P.C. and under Section 135(1) of G.P. Act?
(2) What order?
7. After hearing both sides and considering the evidence on records, the learned Sessions Judge by impugned judgment and order dated 30.04.2019 has convicted the accused as stated hereinabove.
8. Heard Mr. Ashish Dagli, learned counsel appearing for the appellant in Criminal Appeal No. 1208 of 2019, Mr. Alok Thakkar, learned counsel for Mr.Chandrani, learned counsel appearing for the appellants in Criminal Appeal No. 1129 of 2019 and Mr. Jay Mehta, learned Additional Public Prosecutor appearing for the respondent - State of Gujarat at length.
9. Mr.Ashish Dagli, learned counsel appearing for the appellant in Criminal Appeal No. 1208 of 2019 has submitted the same facts which are narrated in the memo of appeal and has submitted that the accused and the deceased Parsotampari are the relatives i.e. uncle and nephew and the dispute was cropped up on account of the shop owned by father of deceased Parsotampari. He has submitted that deceased Parsotampari was resided with his younger son namely Maheshpari in joint family and the subject shop was in the name of Parsotampari and as Page 10 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined Maheshpari wanted to sell the shop with the consent of his father which was disliked and objected by his brother namely Hiteshpari and on account of which the dispute was going on between two brothers. He has submitted that on the fateful day, Hiteshpari along with his family members including his wife, sons and other came at the place where his father was residing and raised objection with regard to selling of the shop owned by his father and the deceased Parsotampari intervened, at that time accused Ajaypari nephew of deceased and son of accused Hiteshpari in spar of moment lost temper and took out a knife and inflicted one blow upon Maheshpari which came to be proved to be fatal and in the result, Maheshpari died. Mr.Dagli, learned counsel has also submitted that there was no free meditation or intention to kill the deceased Maheshpari as he being uncle of accused Ajaypari and on account of the dispute between the two brothers on fateful day in aggravated circumstances the incident has taken place. He has further contended that the accused Ajaypari has not excited and not acted in cruel and brutal manner and the same was revealed from the evidence that only single knife blow was inflicted by Ajaypari upon deceased Maheshpari, which was proved to be fatal but the same was without any intention or knowledge. Mr.Dagli, learned counsel has submitted that the case of the appellants can be considered for lessor offence punishable under Section 304 Part I and/or Section 304 Part II of the Indian Penal Code. It is submitted by Mr.Dagli that the quarrel between the two brothers was all of sudden which provoked the appellantS to Page 11 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined cause injury to the deceased but there was no intention or knowledge. He has submitted that whether single injury caused to the deceased is proved to be fatal or not and whether it is landed on vital part of body or not, but because of heat of moment and sudden altercation, the accused being a tender age boy lost his temper and inflicted the knife blow on the deceased and, therefore, it cannot be said that the appellant has acted in cruel manner to kill the deceased as he has not caused any repeated blow. He has submitted that though the witnesses are the family members of the deceased, however, they have not supported the case of the prosecution as they realized that because of unfortunate they already lost one of the son and though father and mother resided with the deceased, have not supported the case of the prosecution and, under such circumstances the case of the appellant/s can be considered on this aspect also. He has submitted that the appellant was tender age boy at the time of incident and there was no any criminal antecedents against him and in spar of moment, the accused inflicted the blow upon the deceased without any intention or knowledge and, therefore, the conviction can be altered from 302 to 304 Part I and/or 304 Part II. He has submitted that considering the aforesaid facts, the present appeal deserves to be allowed and the impugned judgment and order of conviction deserves to be quashed and set aside.
9.1 In support of his submissions, Mr.Ashish Dagli, learned counsel has relied upon the following decisions:-
Page 12 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined (1) Devendra Kumar & Ors Vs. Sta Chhattisgarh dated 06.11.2024 reported in 2024 (8) Supreme 268;
(2) Devendra Singh Vs. State of Uttar Pradesh reported in AIR 2024 SC 4413;
(3) Hare Ram Yadav Vs. State of Bihar reported in 2024 (0) Supreme SC 1143;
(4) Mohd. Ahsan Vs. State of Haryana reported in AIR 2024 SC 2533;
(5) Surain Singh Vs. State of Punjab reported in AIR 2017 SC 1904;
10. Mr.Alok Thakkar, learned counsel appearing for the appellant in Criminal Appeal No. 1129 of 2019 has submitted the same facts which are narrated in the memo of appeal and has submitted that the accused have challenged the impugned judgment and order of conviction on the ground that they have not caused any injury to the deceased and they were merely present at the time of incident and they have been falsely implicated in the alleged offences and claiming their acquittal from all the charges levelled against them. He has submitted that the appeal deserves to be allowed.
11. Mr.Jay Mehta, learned Additional Public Prosecutor for the respondent - State of Gujarat has submitted that the trial Court has not committed any error in facts and law and has properly convicted and sentenced the accused. It is his submission that Page 13 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined there is no perversity in the impugned judgment and order and, therefore, this Court may not interfere with the impugned judgment and order of conviction and the present appeals may be dismissed.
12. The issue involved in the present appeal/s is whether the submissions made by Mr.Dagli, learned counsel and Mr.Thakkar, learned counsel can be considered in view of the evidence recorded by the trial Court and the decision of the Hon'ble Supreme Court and/or the conviction imposed by the trial Court upon accused No.3 for the offence punishable under Section 302 of the Indian Penal Code should be altered to Section 304 Part I or Section 304 Part II or not?
13. We have carefully considered the rival contentions and perused the impugned judgment and order as well as the evidence placed on record minutely.
14. On bare perusal of the evidence on record, it reveals that there was a family dispute with regard to the shop owned by the father of the Maheshpari and grandfather of the accused Ajaypari, who intend to sold the said shop with the consent of his father, which came to be objected and the same is the real reason for the incident in question and the said dispute was continued since long and on the fateful day, the brother of deceased Maheshpari namely Hiteshpari accused No.1 along with his wife and sons came to the place of incident and raised Page 14 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined objection for not selling the shop and because of that there was hot altercation took place between the family members and in result, accused - Ajaypari has taken out the knife and inflicted a single blow which was landed on liver portion of the deceased and due to that the liver got fracture and deceased succumbed to the injury. It also appears from the materials on record that since the dispute is arisen between two brothers of the witnesses, who are the family members and they have not supported the case of the prosecution.
15. We have also perused the evidence of P.W.1 Pragnaben Maheshpari Goswami at Exhibit 44, P.W.2 Kantben Parsotampari Goswami at Exhibit 47, P.W.13 Dr. Mukeshbhai Jethalal Upadhyay at Exhibit 76, P.W.14 Dr.Jayanta Kartichandra Bhattacharya at Exhibit 87 and P.W.16 Bhagirath Maheshpari Goswami at Exhibit 94. On perusal of the evidence of the medical officers, it appears that the injury caused to deceased Maheshgiri was landed on the vital part of the body which was proved to be fatal in nature.
16. Considering the evidence of P.W.14 Dr.Jayanta Kartichandra Bhattacharya, it appears that this doctor has found the following injury on the body of deceased Maheshgiri:-
(1) one stab wound of site around 6 cm x 2 cm irregular X cavity dop present on epigostric region of abdomen with active bleeding & posts of (illegible) & (illegible) protruding (Illegible) Page 15 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined (2) small (Illegible) of site 2 cm x 1 cm present on right side of forehead.
16. In the case of Surain Singh (supra), the Hon'ble Supreme Court has held and observed in para - 6, 7, 16 and 17 as under:-
"6. Before proceeding further, it is relevant to produce Section 300 which is as under:-
"300.Murder--.Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly-- 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--
Thirdly-- 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-
Fourthly-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.
Exception 1.-When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
Exception 4-- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the Page 16 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault.
.........."
7. Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel Page 17 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
16. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the appellant-accused had any intention of causing the death of the deceased when he committed the act in question. The incident took place out of grave and sudden provocation and hence the accused is entitled to the benefit of Section 300 Exception 4 of the IPC.
17. Thus, in entirety, considering the factual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid down by this Court in the cases referred to supra, the inevitable conclusion is that the act of the appellant-accused was not a cruel act and the accused did not take undue advantage of the deceased. The scuffle took place in the heat of passion and all the requirements under Section 300 Exception 4 of the IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300 IPC is attracted to the fact situations and the appellant-accused is entitled to this benefit."
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17. It is worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Anbazhagan Vs. State Represented By The Inspector Of Police reported in AIR 2023 SC 3660 wherein the Hon'ble Supreme Court has held and observed in paras - 20, 25 to 31, 33, 36, 38 to 45 as under:-
"20. The word "intent" is derived from the word archery or aim. The "act" attempted to must be with "intention" of killing a man.
25. Bearing in mind the test suggested in the aforesaid decision and also bearing in mind that our legislature has used two different terminologies intent and knowledge and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be proper to hold that intent and knowledge cannot be equated with each other. They connote different things. Sometimes, if the consequence is so apparent, it may happen that from the knowledge, intent may be presumed. But it will not mean that intent and knowledge are the same. Knowledge will be only one of the circumstances to be taken into consideration while determining or inferring the requisite intent.
26. In the case In re Kudumula Mahanandi Reddi, AIR 1960 AP 141, also the distinction between knowledge and intention is aptly explained. It is as under:-
"Knowledge and intention must not be confused.
17. ... Every person is presumed to intend the natural and probable consequences of his act until the contrary is proved. It is therefore necessary in order to arrive at a decision, as to an offender's intention to inquire what the - natural and probable consequences of his acts would be. Once there is evidence that a deceased person, sustained injuries which were sufficient in the ordinary course of Page 19 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined nature to cause death, the person who inflicted them could be presumed to have intended those natural and probable consequences. His offence would fall under the third head of sec. 300, I.P.C.
18. ... A man's intention has to be inferred from what he does. But there are cases in which death is caused and the intention which can safely be imputed to the offender is less grave. The degree of guilt depends upon intention and the intention to be inferred must be gathered from the facts proved. Sometimes an act is committed which would not in an ordinary case inflict injury sufficient in the ordinary course of nature to cause death, but which the - offender knows is likely to cause the death. Proof of such knowledge throws light upon his intention.
19. ...Under sec. 299 there need be no proof of knowledge, that the bodily injury intended was likely to cause death. Before deciding that a case of culpable homicide amounts to murder, there must be proof of intention sufficient to bring it under Sec.300. Where the injury deliberately inflicted is more than merely likely to cause death but sufficient in the ordinary course of nature to cause death, the higher degree of guilt is presumed."
(Emphasis supplied) It has been further observed therein as under: -
"26. ... Where the evidence does not disclose that there was any intention, to cause death of the deceased but it was clear that the accused had the knowledge that their acts were likely to cause death the accused can be held guilty under the second part of sec. 304, I.P.C. The contention that in order to bring the case under the second part of sec. 304, I.P.C. it must be brought within one of the exceptions to sec 300, I.P.C. is not acceptable."
(Emphasis supplied)
27. Thus, while defining the offence of culpable homicide Page 20 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined and murder, the framers of the IPC laid down that the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be. The framers of the IPC designedly used the two words intention and knowledge, and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he "must have been aware that certain specified harmful consequences would or could follow." (Russell on Crime, Twelfth Edition, Volume 1 at page 40).
28. This awareness is termed as knowledge. But the knowledge that specified consequences would result or could result by doing an act is not the same thing as the intention that such consequences should ensue. If an act is done by a man with the knowledge that certain consequences may follow or will follow, it does not necessarily mean that he intended such consequences and acted with such intention. Intention requires something more than a mere foresight of the consequences. It requires a purposeful doing of a thing to achieve a particular end. This we may make it clear by referring to two passages from leading text-books on the subject. Kenny in his Outlines of Criminal Law, Seventeenth Edition at page 31 has observed:-
"To intend is to have in mind a fixed purpose to reach a desired objective; the noun intention in the present connexion is used to denote the state of mind of a man who not only foresees but also desires the possible consequences of his conduct......It will be noted that there cannot be intention unless there is also foresight, since a man must decide to his own satisfaction, and accordingly must foresee, that to which his express purpose is directed......Again, a man cannot intend to do a thing unless he desires to do it." (Emphasis supplied)
29. Russell on Crime, Twelfth Edition, 1st Volume at page Page 21 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined 41 has observed:-
"In the present analysis of the mental element in crime the word "intention" is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims................ Differing from intention, yet closely resembling it, there are two other attitudes of mind, either of which is sufficient to attract legal sanctions for harm resulting from action taken in obedience to its stimulus, but both of which can be denoted by the word "recklessness". In each of these the man adopts a line of conduct with the intention of thereby attaining an end which he does desire, but at the same time realises that this conduct may also produce another result which he does not desire. In this case he acts with full knowledge that he is taking the chance that this secondary result will follow. Here, again, if this secondary result is one forbidden by law, then he will be criminally responsible for it if it occurs. His precise mental attitude will be one of two kinds-(a) he would prefer that the harmful result should not occur, or (b) he is indifferent as to whether it does or does not occur." (Emphasis supplied)
30. The phraseology of Sections 299 and 300 respectively of the IPC leaves no manner of doubt that under these Sections when it is said that a particular act in order to be punishable be done with such intention, the requisite intention must be proved by the prosecution. It must be proved that the accused aimed or desired that his act should lead to such and such consequences. For example, when under Section 299 it is said "whoever causes death by doing an act with the intention of causing death" it must be proved that the accused by doing the act, intended to bring about the particular consequence, that is, causing of death. Similarly, when it is said that "whoever causes death by doing an act with the intention of causing such bodily injury as is likely to cause death" it must be proved that the accused had the aim of causing such bodily injury as was likely to cause death.
31. Thus, in order that the requirements of law with regard to intention may be satisfied for holding an offence of culpable homicide proved, it is necessary that any of the Page 22 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined two specific intentions must be proved. But, even when such intention is not proved, the offence will be culpable homicide if the doer of the act causes the death with the knowledge that he is likely by his such act to cause death, that is, with the knowledge that the result of his doing his act may be such as may result in death.
33. Sections 299 and 300 of the IPC deal with the definition of culpable homicide and murder, respectively. In terms of Section 299, culpable homicide is described as an act of causing death (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it emphasises on the expression intention while the latter upon knowledge. Both these are positive mental attitudes, however, of different degrees. The mental element in culpable homicide, that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted-above, it would be culpable homicide. Section 300 of the IPC, however, deals with murder, although there is no clear definition of murder in Section 300 of the IPC. As has been repeatedly held by this Court, culpable homicide is the genus and murder is its species and all murders are culpable homicides but all culpable homicides are not murders. (see Rampal Singh v. State of U.P., (2012) 8 SCC
289)
36. The principles stated in the case of Virsa Singh v.
State of Punjab, AIR 1958 SC 465 , are the broad guidelines for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Section 300 of the IPC they fall in. This Court has time and again deliberated upon the crucial question of distinction between Sections 299 and 300 of the IPC, i.e. culpable homicide and murder respectively. In Phulia Tudu v. State of Bihar, (2007) 14 SCC 588 , this Court noticed that confusion may arise if the courts would lose sight of the true scope and meaning of the terms used by the legislature in these sections. This Court observed that 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 Page 23 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined clauses of these sections.
37. This Court in Phulia Tudu (supra) has observed that 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 Sections 299 and 300 of the IPC. The following comparative table will be helpful in appreciating the points of distinction between the two offences:-
Section 299 Section 300 A person commits culpable Subject to certain exceptions homicide if the act by which culpable homicide is murder the death is caused is done if the act by which the death is caused is done INTENTION
(a) with the intention of (1) with the intention of causing death; or causing death; or
(b) with the intention of (2) with the intention of causing such bodily injury as causing such bodily injury as is likely to cause death; or the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) 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 KNOWLEDGE
(c) with the knowledge that (4) with the knowledge that the act is likely to cause the act is so imminently Page 24 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined death 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 is mentioned above.
38. Clause (b) of Section 299 of the IPC corresponds with clauses (2) and (3) of Section 300 of the IPC. 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 clause (2) is borne out by illustration (b) appended to Section 300 of the IPC.
39. Clause (b) of Section 299 of the IPC does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 of the IPC 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 Section 300 of the IPC, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299 of the IPC, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies Page 25 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined 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 Section 299 of the IPC and clause (3) of Section 300 of the IPC 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 Section 299 of the IPC 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.
40. 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 intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. The decision in the case of Rajwant Singh v. State of Kerala, AIR 1966 SC 1874 , is an apt illustration of this point.
41. The scope of clause thirdly of Section 300 of the IPC has been the subject matter of various decisions of this Court. The decision in Virsa Singh (supra) has throughout been followed in a number of cases by this Court. In all these cases the approach has been to find out whether the ingredient namely the intention to cause the particular injury was present or not? If such an intention to cause that particular injury is made out and if the injury is found to be sufficient in the ordinary course of nature to cause death, then clause thirdly of Section 300 of the IPC is attracted. Analysing clause thirdly and as to what the prosecution must prove, it was held in Virsa Singh (supra) as under:-
"15. First, it must establish, quite objectively, that a bodily injury is present;
16. Secondly, the nature of the injury must be proved; These are purely objective investigations.Page 26 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025
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17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended...
18. Once these three elements are proved to be present, the enquiry proceeds further and,
19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention o f the offender."
(Emphasis supplied) It was further observed as under: -
"20. ... If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional." (Emphasis supplied)
42. Thus, it is clear that the ingredient of clause thirdly is not the intention to cause death but on the other hand the ingredient to be proved is the intention to cause the particular injury that was present. It is fallacious to contend that wherever there is a single injury only a case of culpable homicide is made out irrespective of other circumstances. In Emperor v. Sardarkhan Jaridkhan, AIR 1916 Bom 191 , it was observed as under:-
" Where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended." (Emphasis supplied)
43. Commenting upon the aforesaid observation of the Bombay High Court, Justice Bose, in Virsa Singh (supra), held thus:-
Page 27 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined "23. ... With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap."
44. As to how the intention is to be inferred even in a case of single injury, Justice Bose further held as under:-
"23. ... The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
24. It is true that in a given case the enquiry may be linked up with the seriousness o f the injury. For example, if it can be proved, or if the totality o f the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then o f course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact. ..." (Emphasis Page 28 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined supplied)
45. This question was again considered in Jagrup Singh v. State of Haryana, (1981) 3 SCC 616 , by a Bench of this Court consisting of Justice D.A. Desai and Justice A.P. Sen and following the ratio laid down in Virsa Singh (supra) it was held as under:-
"6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304 Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Istly or clause 3rdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death."
The aforesaid decision of this Court in Jagrup Singh (supra) has been strongly relied upon by the learned senior counsel appearing for the appellant."
18. In order to consider earlier case law laid down by the Hon'ble Apex Court, the Hon'ble Supreme Court has reiterated relevant facts of those case and considered that the case is false for consideration and altered the conviction from 304 Part I to 304 Part II. In the present case, we are of the opinion that the accused has caused the injury to his uncle without premeditation or without there being any knowledge and in all of sudden the accused had inflicted the blow on the deceased Maheshgiri.
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19. For deciding the present appeals, the important principles of law laid down by the Hon'ble Supreme Court in the case of Anbazhagan (supra) are required to be considered which reads 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 Page 30 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined 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 Page 31 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined 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 Page 32 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined 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."
20. Considering the nature of injury and evidence on record Page 33 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined and the submissions canvassed by learned counsel appearing on behalf of the respective parties and the law laid down by the Hon'ble Supreme Court, we are of the opinion that the appeal qua Ajaypari Hiteshpari Goswami deserves consideration and the appeal deserves to be partly allowed.
21. Considering the well settled principles of law and on perusal of the evidence, it is clearly found that the prosecution has miserable failed to prove the charges levelled against the present accused beyond reasonable doubt.
22. In the light of the above discussion, Criminal Appeal No. 1208 of 2019 is hereby partly allowed. The conviction of appellant - Ajaypari Hiteshpari under Section 302 of the Indian Penal Code is altered to under Section 304 Part II of the Indian Penal Code. The judgment and order dated 30.04.2019 passed by the learned 3rd Additional Sessions Judge, Rajkot, in Sessions Case No.229 of 2015 is modified to the extent. The appellant has already undergone imprisonment for a period of nine years as an under-trial prisoner, which shall be given as set off to him. The accused is ordered to be set at liberty forthwith if not required in connection with any other case.
So far as Criminal Appeal No. 1129 of 2019 is concerned, the appellants have already undergone the period of conviction and sentence imposed by the trial Court and, therefore, it is Page 34 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025 NEUTRAL CITATION R/CR.A/1208/2019 JUDGMENT DATED: 18/02/2025 undefined merely academic issue. This appeal stands disposed of without going into the merits.
Record and proceedings be transmitted back to the concerned trial Court forthwith.
(ILESH J. VORA,J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 35 of 35 Uploaded by V.R. PANCHAL(HC00171) on Tue Feb 18 2025 Downloaded on : Wed Feb 19 22:33:40 IST 2025