Jagatsinh Valsinh Zala vs State Of on 1 August, 2013

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Gujarat High Court

Jagatsinh Valsinh Zala vs State Of on 1 August, 2013

1. The appellant-Accused has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 31.7.2007 passed by the learned Sessions Judge, Main Court, Gandhinagar in Sessions Case No. 40/2007, whereby, the learned trial Judge has convicted the appellant- Accused under sec. 302 of IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/-, in default, to undergo R/I for six months, which is impugned in this appeal.

The case of the prosecution is that on 31.1.2007, at about 23.00 hours in the night, the complainant Head Constable Narsinhbhai Kalabhai, Buckle No. 302 of Rakhial Police Station along with Police Constable Rajendraprasad Natvarlal, Buckle No. 63 went on general night petrolling and came to Lihoda Bus Stand on 31.1.2007 at 00.45 hours in the night. At that time, PSO Shri Amaratbhai Punjabhai has informed them on telephone that Jagatsinh Valsinh, residing at Kadjodara (Sevena Chhapara) is came to the police station with his wife and children, who has informed that he has caused serious injuries to the deceased Ratansinh Prabhatsinh on his hands and legs when he was coming back from the field, near Golavala field, by inflicting dharia blows, and therefore, complainant was directed to verify the say of the appellant-accused by visiting the place of offence. On receiving such information on telephone, the complainant after obtaining information about Golavala field went there, and in light of torch, the complainant found the deceased lying there in a bleeding condition. Therefore, the injured was taken to the Government Hospital, Dehgam in Police Jeep. On the way, on asking about the incident, Ratansinh informed the complainant that the appellant has doubt in his mind about his illicit relation with his wife, and therefore, the appellant had caused injuries. On the way, the condition of Ratansinh has become very serious and when they reached hospital, the Medical Officer at Dehgam has declared injured Ratansinh as dead. Therefore, a complaint was lodged.

2.3 The appellant accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the present appellant. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 40/2007.

2.4 Thereafter, the Sessions Court framed the charge below Exh. 4 against the appellant for commission of the offence under section 302 of IPC and under sec. 135 of the Bombay Police Act. The appellant-accused has pleaded not guilty and claimed to be tried.

2.5 To prove the case against the present appellant, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocate for the appellant.

Narsinhbhai Kalabhai Asari Ex. 8 Kalusinh Dolsinh Zala Ex. 10 Rajendraprasad Natvarlal Raval Ex. 14 Bhupatsinh Dipsinh Chauhan Ex. 15 Amaratbhai Punjabhai Patel Ex. 17 Baldevbhai Bhathisinh Zala Ex. 19 Jashwantsinh Gabhusinh Chauhan Ex. 27 Manjiben Ranjusinh Prabhatsinh Zala Ex. 28 Dr. Dharmeshbhai Viththalbhai Parikh Ex. 29 Ajitsinh Kalyansinh Chauhan Ex. 31 Ranjusinh Prabhatsinh Zala Ex. 36 Sureshchandra Chhotalal Upadhyay Ex. 39 2.6 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused.

Complaint Ex. 38 Inquest panchnama Ex.

Panchnama of scene of offence Ex. 12 Panchnama of cloth of dead-body Ex. 13 Panchnama of weapon and cloth of accused Ex.20 P.M. Report Ex. 30 Notification Ex. 46 Copy of Notification Ex. 47 Yadi of sending muddamal Ex. 42 Receipt of muddamal Ex.

FSL Report Ex. 44 Serological report Ex.

Copy of FIR Ex. 48 Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.

4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 31.7.2007 held the present appellant- original accused guilty of the charge levelled against him under sec. 302 of IPC, convicted and sentenced the appellant-accused, as stated above.

We have heard at length learned advocate Mr Umang H. Oza learned advocate for appellant and Mr LR Pujari learned APP for the respondent-State.

6. The learned advocate for the present appellant has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellant deserves to be given the benefit of doubt and be acquitted.

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

8. The learned advocate for the appellant has taken us through the entire record. Having perused the entire record, we are convinced that this is a case which falls under the category of culpable homicidal, however, the degree of the same is similar to the one in the case of Budhi Lal vs. State of Uttarakhand, reported in AIR 2009 SC 87. The conviction in the said case was altered from section 302 of IPC to 304 Part-I of IPC instead of section 300 of IPC. In this case, as distinguished from the said decision, the assault was by dhariya and not by only hand. The intention cannot be said to be absent, however, looking to the time-lag between the injury and death and the fact that on examination of the doctor, it is not very clear as to after how much time he was taken to the hospital. The cause of death as narrated in the Post Mortem report is in proximity with the injury and due to blood loss. Therefore, it cannot be said that the accused did not have any intention or knowledge that the injuries which he had inflicted with dhariya would culminate into such bodily injury which may or may not cause death. The injuries were sufficient to cause death, and therefore, we deem it fit to consider it as culpable homicide not amounting to murder. The latest decision of the Apex Court would help the accused in the case of Swarn Kaur v. Gurmukh Singh and Ors., reported in JT 2013(9) SC 439. We are unable to accept the submission of the learned advocate that there was no intention or motive. As against this, learned APP Mr. L.R. Pujari has taken us extensively through the entire evidence and therefore, we are unable to convince ourselves that the accused is not guilty or that benefit of doubt requires to be given to him. The finding of fact reached by the learned trial Judge are so succinct, we are unable to take a different view then the one taken by the learned trial Judge, save and except that the conviction under section 302 of IPC requires to be altered to under sec. 304 Part-I of IPC.

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

10. The residual question which arise before us whether section 302 of IPC has its application or it would be falling within section 304 of IPC.

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

12. 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 Section 299 and 300. 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 homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or (1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to cause death; or (2) 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;

KNOWDLEGE

KNOWLEDGE (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

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

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

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

The ingredients which are required are that there should be no motive. We are of the opinion that the culpable homicide is there, but it would fall within the provisions of section 304 Part-I and not part-II of IPC, as submitted by the learned advocate for the appellant. The factual scenario and the manner of assault, in our considered view, the appropriate conviction shall be under section 304 Part-I of IPC, and to that extent, the appeal requires to be partly allowed. The appeal is preferred through Legal Aid, and therefore, it goes to show that the accused may not have sufficient fund to maintain himself, and therefore, fine of Rs. 5000/- is maintained, but the default sentence requires to be reduced to one month instead of six months.

17. In the result, this appeal is partly allowed. The impugned judgment and order of conviction and sentence dated 31.7.2007 passed by the learned Sessions Judge, Main Court, Gandhinagar in Sessions Case No. 40/2007 is modified to the extent that the conviction and sentence imposed upon Appellant-accused under section 302 of IPC to undergo R/I for life, is altered and he is convicted under section 304 Part-I of IPC and sentenced to undergo 10 years rigorous imprisonment. Fine is maintained but default sentence is reduced to one month instead of six months. Rest of the judgment and order of the trial Court stands confirmed. R & P to be sent back to the trial Court, forthwith.

A writ of this order be sent to the concerned jail authority, forthwith.

(K.S.JHAVERI, J.) (K.J.THAKER, J) mandora Page 14 of 14

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Gujarat High Court