Gujarat High Court
Sendhabhai Kalubhai Thakor vs State Of Gujarat on 22 September, 2021
Author: A.J.Desai
Bench: A.J.Desai, Nirzar S. Desai
R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1009 of 2013
With
CRIMINAL MISC.APPLICATION (TEMPORARY BAIL) NO. 1 of 2021
In R/CRIMINAL APPEAL NO. 1009 of 2013
With
R/CRIMINAL APPEAL NO. 1175 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SENDHABHAI KALUBHAI THAKOR
Versus
STATE OF GUJARAT
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Appearance:
CRIMINAL APPEAL NO. 1009 of 2013
MR NITIN M AMIN(126) for the Appellant(s) No. 1
MR JK SHAH, APP for the Opponent(s)/Respondent(s) No. 1
CRIMINAL APPEAL NO. 1175 of 2013
MR JK SHAH, APP for the Appellant(s) No. 1
MR DK CHAUDHARY, for the Opponent(s)/Respondent(s) No. 1-2
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021
Date : 22/09/2021
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI) 1 Both these appeals are arising out of judgment and order of conviction and sentence dated 14.05.2013 rendered by 2nd Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad in Sessions Case No.10 of 2012 convicting accused No.1 - Sendhabhai Kalubhai Thakor under Section 302 of the Indian Penal Code, 1890 and sentencing him to undergo life imprisonment and to pay a fine of Rs.3,000/-, in default thereto, to further undergo 1 month imprisonment. The trial court acquitted accused No.1 for the offences under Section 504 and 34 of the Indian Penal Code. The learned trial judge acquitted accused No.2 - Dungarji Iswarji Thakor and accused No.3 - Maheshbhai Lakshmanbhai Thakor for the offences under Section 302, 504 and 34 of the Indian Penal Code by giving benefit of doubt. Criminal Appeal No.1009 of 2013 is filed by accused No.1 - Sendhabhai Kalubhai Thakor challenging the judgment and order of conviction and sentence dated 14.05.2013, whereas Criminal Appeal No.1175 of 2013 is filed by the State challenging the Page 2 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 acquittal of accused No.2 - Dungarji Iswarji Thakor and accused No.3 - Maheshbhai Lakshmanbhai Thakor for the offences under Section 302, 504 and 34 of the Indian Penal Code.
2 Considering the fact that the appellant of Criminal Appeal No.1009 of 2013 is in jail since 15.01.2012 i.e. for more than 9 years and considering the earlier order dated 07.07.2021 and with the consent of learned counsel for the parties, both the appeals are taken up for hearing.
3 The case of the prosecution is as under:
3.1 The complainant - Chodabhai Laxmanbhai had lodged First Information Report before Viramgam Rural Police Station on 14.01.2012 alleging inter alia that he was residing at village Dumana and doing agricultural activities. They are, in all, five brothers and sisters. It is alleged that on the fateful evening, he was sitting at his home, at that time, resident of said village - Rajubhai Chaturbhai Thakor came and informed that accused - Maheshbhai Page 3 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 Laxmanbhai Thakor and Dungarji Ishwarji Thakor caught hold of his brother - Janakbhai and the accused, Sendhabhai Kalubhai gave knife blow on his chest and on hearing this, the complainant, his wife
- Muktaben and son - Khodabhai reached the scene of offence, where they found Janakbhai was lying in unconscious condition and therefore he was taken to Government Hospital, Viramgam, where the doctor declared him dead. It is alleged that some verbal altercation took place at the place of offence and hence having got excited, the accused have committed alleged offence. It is further alleged that eight months prior to the alleged incident, some dispute arose due to the illicit relationship between accused No.1 and the wife of Janakbhai and keeping grudge of that, the accused have committed alleged offence.
Accordingly, the said FIR was registered with Viramgam Rural Police Station for the offences punishable under Sections 302, 504 and 34 of the Indian Penal Code. Upon completion of investigation, on the basis of the material collected against the accused persons, the Investigating Officer found a prima facie case against the accused and charge sheet Page 4 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 came to be filed before the court of learned Judicial Magistrate, first Class, Viramgam for the alleged offences, which came to be registered as Criminal Case No.445 of 2012. Since the offence alleged against the accused persons was triable by the Court of Sessions, the case was committed to the court of sessions under Section 209 of the Code of Criminal Procedure, 1973, which came to be registered as Sessions Case No.10 of 2012.
3.2 On committal, the case was transferred and placed for trial before the learned 2nd Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad, who had initially framed charge vide Exh.2 for the alleged offence. The charge was read over and explained to the accused. Plea of each accused came to be recorded vide Exhs.3 & 5, wherein the accused pleaded not guilty to the charge and claimed to be tried. 3.3 In order to bring home the charge leveled against the accused, the prosecution has examined as many as 16 witnesses and relied upon their oral testimony. The prosecution has also produced 26 Page 5 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 documents viz. Complaint, inquest panchnama, postmortem note, postmortem of recovery of weapons, etc. and relied upon the contents of the same. After recording the evidence of the prosecution witnesses, the learned Additional Public Prosecutor submitted closing purshis. Thereafter the learned trial court explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements under Section 313 of the Code. In their further statements, they denied the case of the prosecution in entirety as according to them they have been roped in a false case. However, they have neither led any evidence nor did they examine any witnesses in support of their defence.
3.4 At the end of trial, on appreciation, evaluation, analysis and scrutiny of the evidence on record, the learned 2nd Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad vide judgment and order dated 14.05.2013 passed in Criminal Case No.10 of 2012, convicted and sentenced accused No.1 and acquitted accused Nos. 2 and 3, as stated above. Page 6 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022
R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 4 Heard Mr. Nitin Amin, learned advocate for the appellant and Mr. J.K.Shah, learned APP for the respondent State in Criminal Appeal No.1009 of 2013 and Mr. J.K.Shah, learned APP for the appellant State and Mr. D.K.Chaudhary, learned advocate for respondents - accused Nos.2 and 3 in Criminal Appeal No.1175 of 2013.
5 Mr. Nitin Amin, learned advocate for the appellant accused No.1 submitted that it is not in dispute that deceased Janakbhai died of the incident in question and due to stab injury. He submitted that in view of occurrence of incident is not disputed, he restricts his challenge to the conviction of appellant - accused - Sendhabhai Kalubhai Thakor under Section 302 of the IPC and submitted that considering the facts and circumstances of the case, the appellant - accused ought to have been convicted under Section 304 Part-II of the IPC and hence by way of this appeal he has emphasized to convert the aforesaid sentence under Section 302 of the IPC into Section 304 Part-II of IPC. He, therefore, did not Page 7 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 plead total innocence of the accused appellant of Criminal Appeal No.1009 of 2013 and requested to reduce the sentence of the appellant by treating the offence committed by the appellant as offence under Section 304 Part-II of IPC. He further submitted that the offence allegedly committed by the appellant cannot be treated as murder as defined under Section 300 of the IPC, but would fall under exception 4 of Section 300 of the IPC, and therefore, according to him it cannot be said to be a culpable homicide of murder and would fall under Part-II of Section 304 of the IPC.
5.1 To substantiate his contention, learned advocate Mr. Amin took us through the evidence on record. First of all, Mr. Amin took us through the evidence of eye witness PW-12 Mukeshbhai Govindbhai Exh.40 wherein PW-12 stated that the incident took place at a distant place and not at the residence or nearby the residence of the deceased. By reading over deposition of PW-12 Mukeshbhai Govindbhai, Mr. Amin pointed out that the incident occurred at around 6.00 in the evening in the outskirts of village near a pan Page 8 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 shop. All the three accused came on bike, some altercation took place and appellant - accused pulled out a knife and gave a blow to deceased Janakbhai. From the deposition of the said witness and from cross-examination, Mr. Amin pointed out that the said witness happens to be relative of complainant - Chudabhai, and even if that fact is discarded then also what can be seen from the deposition of PW-12 is that only one blow of knife was given to deceased by the appellant. He further submitted that since the place of offence was nowhere nearby the residence of the deceased and there was no premeditation and it was just because of some altercation, the accused got excited and gave a single blow of knife to the deceased. He submitted that had there been any intention to kill the deceased, the appellant - accused No.1 could have given more knife blows and it would not be limited to just for one blow. He further submitted that while giving one blow of knife the accused had no knowledge that the deceased would be killed.
5.2 Mr. Amin, learned advocate for accused Page 9 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 No.1, thereafter took us through the evidence of another eye witness PW-10 Rajubhai Chaturbhai Thakor Exh.38 and submitted that the deposition of PW-10 Rajubhai and PW-12 Mukeshbhai are on similar line that the appellant along with the accused came on bike near the pan shop where the deceased and eye witnesses were standing, some altercation took place and the appellant gave one blow of knife on the chest of the deceased.
5.3 Thereafter, Mr. Amin took us through the postmortem report, wherein details about injuries are stated in column 17, wherein it was mentioned that there was stab would admeasuring 4 cms. long and 8 cms. deep at the left side of the chest at the level of heart region and the cause of death was due to hemorrhage as a result of injury to vital organs like heart and lung. After showing the postmortem report, learned advocate Mr. Amin took us through the deposition of PW-14 Dr. Subhash Kanjibhai Prajapati Exh.58, who carried out postmortem and from his deposition also he pointed out that there was a single blow given by the present appellant to the Page 10 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 deceased and from his cross-examination he pointed out that even the doctor, who carried out postmortem opined that, had the immediate treatment was given to the deceased he could have been saved and on the basis of the aforesaid opinion, Mr. Amin submitted that this also shows that the present appellant neither had intention nor knowledge to kill the deceased.
5.4 Since the learned advocate Mr. Amin has restricted his challenge to the judgment impugned to the extent of conviction of the appellant - accused No.1 under Section 302 of the IPC and he has not challenged the aspect of holding the present appellant guilty as if he has not committed any office, but has argued the appeal only for the purpose of converting the conviction of the appellant from Section 302 to Section 304 of the IPC and to reduce the sentence accordingly. Learned advocate Mr. Amin did not discuss the other evidence at length and made submission on any other aspects than challenging the conviction of the accused - appellant under Section 304 and to reduce the sentence imposed upon Page 11 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 the appellant accordingly.
5.5 Mr. Nitin Amin, learned advocate for the appellant by relying upon judgments of the Apex Court in the case of [1] Hariram vs. State of Haryana reported in 1983(1) SCC 193 [2] Jagtar Singh vs. State of Punjab reported in 1983(2) SCC 342 and (3) Stalin vs. State represented by the Inspector of Police reported in (2020)9 SCC 524, submitted that when there is death due to single blow caused to the deceased unless is proved and when it is without any knowledge or intention, the conviction would be under Section 304 Part-I or under Section 304 Part-II, but not under Section 302 of the IPC and urged that in the instant case also the conviction of the appellant be converted into Section 304 Part-II from Section 302 of the IPC and reduce the punishment accordingly. 6 As against that Mr. J.K.Shah, learned APP appearing for the respondent State submitted that it is true that there is only one knife blow given on the chest of the deceased. However, whether the conviction of the accused appellant can be converted Page 12 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 into Section 304 of the IPC or not can be examined only by the circumstances, which led to occurrence of the offence. He further submitted that it is deposed by PW-12 Mukeshbhai one of the eye witnesses at Exh.40 that the reason behind the incident was so- called illicit relationship between the appellant and wife of the deceased. He further submitted that even PW-9 Chudabhai Laxmanbhai Thakor Exh.37 also in his cross examination admitted the fact that there was some illicit relationship between wife of the deceased and the appellant. Mr. Shah submitted that therefore the present appellant had a motive to kill the deceased. He further submitted that as per the postmortem report, the knife wound on the left side of the chest was 4 cms. long and 8 cms. deep, which shows that the blow was given with full force with an intention and knowledge to kill the deceased. On the basis of the aforesaid submissions, learned APP Mr. Shah prayed for dismissal of Criminal Appeal No.1009 of 2013 and to confirm the conviction rendered by the learned trial judge under Section 302 of the IPC. 7 With respect to Criminal Appeal No.1175 of Page 13 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 2013 filed by the State against the acquittal of respondents - accused Nos.2 and 3, Dungarji Iswarji Thakor and Maheshbhai Lakshmanbhai Thakor, respectively the learned APP submitted that the learned Judge has not properly appreciated the oral as well as documentary evidence inasmuch as even as per the version of the eye witnesses, the accused Nos.2 and 3 had caught hold of the victim. Learned APP further submitted that as the accused Nos.2 and 3 had caught hold of the deceased and the accused No.1 gave knife blow, all the three together have acted in furtherance of common intention in respect of committing offence under Section 302 of the IPC and since there was common intention they were required to be convicted under Section 302 of the IPC. Learned APP also took us through the evidence of both the eye witnesses PW-12 Maheshbhai and PW-10 Rajubhai Thakor as well as evidence of complainant - PW-9 Chodabhai Exh.37 and submitted that both the eye witnesses have categorically stated that accused Nos.2 and 3 caught hold of the deceased and that itself is sufficient to convict accused Nos.2 and 3 also for the offence under Sections 302, 504 and 34 of the IPC. Page 14 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022
R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 8 In acquittal appeal, learned advocate Mr. Chaudhary for the respondents - accused Nos.2 and 3 submitted that the learned trial Judge has in detail analyzed the evidence and submitted that even if it is believed that accused Nos.2 and 3 had caught hold of the deceased, considering the facts and circumstances, it has come on record that they were not carrying any weapon. At the same time, it has also not come on record that the accused No.1 had any intention or knowledge about killing of the deceased and out of altercation, all of a sudden in the heat of moment, accused No.1 gave knife blow on chest of the deceased, and accused Nos.2 and 3 were absolutely unaware of likelihood of occurrence of any such incidence, and therefore, they have rightly been acquitted by the learned trial Judge.
8.1 Mr. Chaudhary, learned advocate for respondents - accused Nos.2 and 3 relying upon judgment of the Hon'ble Court in the case of Ezajhussain Sabdarhussain vs. State of Gujarat reported in [2019(14) SCC 339] submitted that mere Page 15 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 fact that accused persons caught hold of the deceased facilitating other accused persons to give knife blow cannot be said that the accused had any common intention to kill the deceased. He further submitted that there was no pre-arrangement in mind of the accused Nos.2 and 3 and altercation between the accused No.1 and deceased took place, and therefore, out of excitement and in a spur of movement, accused No.1 gave a knife blow to the deceased. He further submitted that merely because accused Nos.2 and 3 accompanied accused No.1 would not attribute any common intention to the accused Nos.2 and 3. 8.2 Thereafter, learned counsel Mr. Chaudhary relying upon judgment of the Hon'ble Apex Court in the case of Bishu Sarkar vs. State of West Bengal reported in [2017(11) SCC 105 and submitted that even if it is believed that the accused Nos.2 and 3 had caught hold of the deceased then also from the record it does not come out that whether such act of catching hold of the deceased by the accused Nos.2 and 3 was intended to enable the accused No.1 to give vital blow to the deceased. Learned advocate Mr. Page 16 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 Chaudhary, by relying upon the above judgments of the Hon'ble Apex Court, submitted that in similar facts of the case, Hon'ble Apex Court quashed and set aside the impugned judgment of conviction and acquitted the co-accused, who had caught hold of the deceased. Learned advocate Mr. Chaudhary, relied upon judgment of this Court in the case of Deni @Lalo Vikramsinh Punamsinh Khant & Ors. vs. State of Gujarat reported in 2014(2) GLH 368 and submitted that neither there was common intention on the part of the accused Nos.2 and 3 nor any prior meeting of minds was proved by the the prosecution. Learned advocate for the accused Nos.2 and 3 lastly prayed for dismissal of the appeal preferred by the State against the acquittal of accused Nos.2 and 3.
9 We have heard learned advocates for the parties in respect of both the appeals. We have also examined the judgment and order of conviction and sentence rendered by the learned trial Judge and we have also perused the paper book. On examination of the evidence, we found that it is true that the deceased had died, but both the eye witnesses have Page 17 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 categorically stated that a single blow of knife was given on the chest of the deceased. Furthermore, the said aspect was supported by Medical Officer as even in the postmortem report, there is mention of only one blow of knife on the chest of the deceased. As per the evidence of PW-15 Dr. Subhash Prajapati, who examined the deceased and carried out postmortem also has categorically stated that there was only single blow of knife on the chest of the deceased and had there been immediate medical help provided to the deceased, he could have been saved. Further though the theory of there being illicit relationship between the wife of the deceased and the appellant - accused No.1 was pressed into service by the prosecution to substantiate the conviction of the accused - appellant under Section 302. On examination of the record, we find that though there is a reference about illicit relationship between the wife of the deceased and accused No.1, but there is nothing on record to prove the same. In fact, PW-12 had in his cross-examination has categorically stated that he has only heard about illicit relationship between wife of the deceased and accused No.1. Page 18 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 Similarly PW-9, who happens to be relative of the deceased, has also in his cross-examination stated that during `Dashama Vrat' as the deceased and the accused No.1 were working together earlier when wife of the deceased took that vrat, and therefore, the appellant accused had come to see her and by saying the aforesaid fact, he came to the conclusion that there was some illicit relationship between wife of the deceased and accused No.1. Similarly, another eye witness Rajubhai PW-10 also in his cross-examination has categorically stated that he does not know that on what subject deceased and accused No.1 picked up altercation. Even his version also does not support the theory of prosecution that there was any illicit relationship between wife of the deceased and accused No.1, which resulted into death of deceased. 9.1 All the aforesaid facts would go to show that in fact there was no motive on the part of the accused No.1 to kill the deceased. It is true that some altercation took place and in heat of moment, the appellant - accused No.1 gave single blow on the chest of the deceased, which resulted into his death. Page 19 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 In this context, the Hon'ble Apex Court the case of Stalin (supra), in paragraphs 7.2 to 12, observed as under:
"7.2 From the above stated decisions, it emerges that there is no hard and fast rule that in a case of single injury Section 302 IPC would not be attracted. It depends upon the facts and circumstances of each case. The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. It cannot be laid down as a rule of universal application that whenever the death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case, more particularly, under the circumstances narrated hereinabove, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without intention to cause death. It is the totality of the circumstances which will decide the nature of offence.Page 20 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022
R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021
8. Now, so far as the submission on behalf of the accused that the motive alleged is of the incident prior to four months of the present incident and that the prosecution has failed to establish and prove is concerned, it is required to be noted that in the present case there are three eye-witnesses believed by both the Courts below and we also do not doubt the credibility of PWs 1, 2 and 3. As held by this Court in catena of decisions, motive is not an explicit requirement under the Penal Code, though "motive" may be helpful in proving the case of the prosecution in a case of circumstantial evidence. As observed hereinabove, there are three eye-witnesses to the incident and the prosecution has been successful in proving the case against the accused by examining those three eye-witnesses and therefore, as rightly observed by the High Court, assuming that the alleged motive is the incident which had taken place prior to four months or the prosecution has failed to prove the motive beyond doubt, the same shall not be fatal to the case of prosecution.
9 As observed and held by this Court in the case of Jafel Biswas v. State of West Bengal (2019) 12 SCC 560, the absence of motive does not disperse a prosecution case if the prosecution succeed in proving the same. The motive is always in the mind of person authoring Page 21 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 the incident. Motive not being apparent or not being proved only requires deeper scrutiny of the evidence by the courts while coming to a conclusion. When there are definite evidence proving an incident and eye-witness account prove the role of accused, absence in proving of the motive by prosecution does not affect the prosecution case.
10 Applying the law laid down by this Court in the aforesaid decisions, more particularly the decisions on the single injury and the facts on hand, it is required to be considered whether the case would fall under Section 302 IPC or any other lesser offence. PW3 - Nelson, who is an eye-witness to the incident right from the beginning, deposed that when the deceased -
Kalidas served extra beer to two persons who came from outside, the accused became angry and told the deceased why he is giving more beer to out-town people and not giving to local people and thereafter the problem started and in that scuffle the accused took out the knife and stabbed from behind. From the medical evidence, the deceased sustained the following injuries:
"External Injuries:
A stab wound about 3 x 1.5 cm and 8 cm deep with clean edges present over the back on the right Page 22 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 side corresponding to D11 vertebera present. Wound edges swollen, read with adherent blood."
11 As per Exception IV to Section 300 IPC, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage and not having acted in a cruel or unusual manner. In the present case, at the place of incident the beer was being served; all of them who participated in the beer party were friends; the starting of the incident is narrated by P.W.3, as stated hereinabove. Therefore, in the facts and circumstances, culpable homicide cannot be said to be a murder within the definition of Section 300 IPC and, therefore, in the facts and circumstances of the case narrated hereinabove and the manner in which the incident started in a beer party, we are of the opinion that Section 302 IPC shall not be attracted.
12 Now, the next question which is posed for consideration of this Court is whether the case would fall under Section 302 IPC Part II IPC? Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, it Page 23 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 is to be presumed that causing such bodily injury was likely to cause the death. Therefore, the case would fall under Section 304 I of the IPC and not under Section 304 Part II of the IPC."
9.2 Keeping in mind the observations made by the Apex Court coupled with the fact that there was a single blow given to the deceased, which resulted into death of the deceased, AND at the same time, there is nothing on record to prove that there was any prior meeting of minds or that there was any intention or knowledge to kill the deceased. All that can be seen from the record is that some altercation between the deceased and the appellant - accused No.1 took place, accused No.1 got excited and all of a sudden pulled out knife and gave blow to the deceased without there being any knowledge or intention that such blow would result into killing the deceased. Considering the facts and circumstances of the case and the law laid down by the Apex court on the subject, we are of the considered opinion that this is a fit case to convert the conviction of the appellant from Section 302 to Section 304 Part-II in Page 24 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 Criminal Appeal No.1009 of 2013.
9.3 So far as Criminal Appeal No.1175 of 2013 preferred by the State challenging the acquittal of the accused Nos.2 and 3 is concerned, the judgment of the Hon'ble Supreme Court in the case of Ezazhussain Sabdarhussain (supra) is helpful in analyzing the facts of the case on hand. In Ezazhussain Sabdarhussain (supra), the Hon'ble Apex Court in paragraphs 21 to 23 observed as under:
"21. The judgment relied upon by the learned counsel for the respondents in Ramesh Singh's case(supra) was a case where as per the case of prosecution, there was a death in the family of A-2. They wanted certain "samagri" for the funeral. On 30th April, 1998 at about 11.00 am, since the deceased refused to give some samagri, they became annoyed and accused persons went away and came back together at about 11.45 a.m. and called the deceased out of the house and while the two accused persons were holding the hands of the deceased, the other accused stabbed the deceased on his chest. They came with a common intention and equally participated in the commission of crime. However, in the instant case, there was no pre-arrangement of mind and Page 25 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 altercation took place between accused no. 1 Iftekharhussain Sabdarhussain with the deceased Mohammad Shakil who was accompanied with accused no.2 Shefakathussain Sabdarhussain and family members of deceased and in furtherance thereof, accused no. 1 Iftekharhussain Sabdarhussain and accused no. 2 Shefakathussain Sabdarhussain brought a knife and gupti and stabbed the deceased. No presumption can be drawn of common intention by implicating the accused appellants under Section 34 IPC.
22. Another judgment of this Court referred by the learned counsel for the respondent in Goudappa and Others(supra). It was a case where the accused persons were armed with lethal weapons assembled at one place and the moment the deceased came out of the house to spit, one of the accused started abusing him and the other accused persons held the deceased and facilitated the other accused to give the fatal blow and made no effort to prevent him from assaulting the deceased and their common intention clearly emanates from the criminal act in furtherance of the intention which in the instant case may not be of any assistance. As already observed, there cannot be a universal rule in laying down the principles of existence of common intention of prior meeting or meetings with pre-arranged plan. It has to be proved either from the conduct or circumstances of any Page 26 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 incriminating facts which is missing in the instant case.
23. In our considered view, the High Court has committed a manifest error in holding the appellants guilty under Section 302 read with Section 34 IPC for participating in the commission of crime. The appellants deserve to be acquitted of the charges filed against them by giving them benefit of doubt."
9.4 Keeping in mind the aforesaid ratio of the Hon'ble Apex Court and considering the facts on hand, we are of the view that even in the present case also nothing has come on record to show that there was prior meeting of minds or any pre-arranged plan or any common intention to kill the deceased on the part of the accused Nos.2 and 3. Merely because they had caught hold of the deceased, the accused Nos. 2 and 3 cannot be presumed to have common intention to kill the deceased.
10 In view of the above discussion, Criminal Appeal No.1009 of 2013 is partly allowed. The judgment and order of conviction and sentence dated Page 27 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022 R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021 14.05.2013 rendered by the learned 2nd Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad in Sessions Case No.10 of 2010 for the offences punishable under Sections 302, 504 and 34 of the Indian Penal Code, 1860 is converted into conviction under Section 304 Part-II of the Indian Penal Code, 1860 and accordingly sentence of life imprisonment is reduced to sentence of 10 years. The appellant - accused No.1 - Sendhabhai Kalubhai Thakor shall be released from the prison on completion of 10 years sentence, if not required in any other case. Rest of the sentence imposed by the trial court is upheld and confirmed. Since Criminal Appeal No.1175 of 2013 is against the acquittal, the same stands dismissed. Bail bonds issued against him stands cancelled. Connected Criminal Misc. Application stands disposed of. Record and Proceedings be sent back to the court concerned.
(A.J.DESAI, J) (NIRZAR S. DESAI,J) P. SUBRAHMANYAM Page 28 of 28 Downloaded on : Sun Jan 16 17:02:30 IST 2022