Gujarat High Court
State Of Gujarat vs Imtiyaz @ Ikudo Haji ... on 10 November, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, B.N. Karia
R/CR.A/937/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 937 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
IMTIYAZ @ IKUDO HAJI MAHMAD....Opponent(s)/Respondent(s)
================================================================
Appearance:
MS CHETNA SHAH, ADDL.PUBLIC PROSECUTOR for Appellant(s) No. 1
MR AD SHAH, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 10 /11/2017
CAV JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. The instant appeal under Section378 of the Code of Criminal Procedure, 1973 ("the Code" for short), Page 1 of 23 HC-NIC Page 1 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT has been preferred by the appellantState of Gujarat against the judgment and order dated 11.07.1994, passed by the learned Additional Sessions Judge, Bhavnagar, in Sessions Case No.223/1993, whereby the respondent accused has been acquitted of the charge under Section302 of the Indian Penal Code, 1860 ("the IPC" for short) and has been found guilty of the offence punishable under Section304 PartI IPC and sentenced to seven years' imprisonment.
2. The case of the prosecution is based upon the first information given by PW1 Nimuben alias Aminaben Aadambhai, mother of deceased Banuben. The deceased had earlier been married to one Isub Aadambhai eleven years prior to the incident. As she did not get along with her husband she had left his house. The deceased had a son from her first marriage. Eight years prior to the incident the deceased had entered into a second marriage with the respondentaccused and gone to live with him. Three daughters and a son were born to her. On 23.07.1993, at about 2:00 p.m., the deceased came to the house of the first informant along with her children as a quarrel had taken place between her and Page 2 of 23 HC-NIC Page 2 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT the respondent. The first informant advised and persuaded her daughter to go back and accompanied the deceased to the house of the respondent. The incident took place on 24.07.1993, when the deceased returned to the house of her mother at about 9:00 a.m., with the intention of filing a complaint against the respondent in Court. However, upon inquiry it was found that the Court was closed on that day. The deceased, therefore, stayed at the house of the first informant with her children. At about 9:00 p.m. the deceased was sitting on a cot with her children, outside the house when the respondent came there and tried to forcibly take the deceased back with him. The deceased got up from the cot, saying that she was going to the office of the Deputy Superintendent of Police and would call the Mobile Police Van. She had just left the house when the respondent ran after her, caught hold of her and started stabbing her with a "Rampuri" knife (hereinafter referred to as "the knife") which he took out from his pocket. As per the case of the prosecution, the first blow was inflicted by the respondent on the left ear of the deceased and the second blow on the left side of her chest. The Page 3 of 23 HC-NIC Page 3 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT third blow was inflicted on her left thigh, above her knee and the fourth blow was inflicted on the left side of her waist. The deceased was screaming, therefore, the first informant and her son Zakirhussain (PW2) came running and caught hold of the respondent. The deceased was lying on the road in a pool of blood and died immediately thereafter. The Police was informed and the complaint was lodged.
3. In support of its case, the prosecution has examined nine witnesses and relied upon documentary evidence such as various Panchnamas and the Postmortem Report etc. After appreciating and evaluating the entire oral and documentary evidence on record, the Trial Court arrived at a conclusion that it is proved beyond reasonable doubt that the respondent inflicted blows with the knife on the person of the deceased and caused four injuries, such as described in the Postmortem Report, out of which injury No.2 was sufficient in the ordinary course of nature to cause death. The Trial Court has also found that both the accused and the deceased were present at the spot of the incident. It has believed the evidence of the Page 4 of 23 HC-NIC Page 4 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT witnesses that a quarrel had taken place between them. The respondent was trying to persuade the deceased to return home with him and the deceased was refusing to do so. When she got up and started to go to the office of the Deputy Superintendent of Police in order to file a complaint against the respondent, he ran after her and inflicted injuries with the knife that he took out from his pocket. Having arrived at the above conclusion, the Trial Court has examined the aspect whether the respondent had inflicted the knife blows on the deceased with the intention of killing her, or whether the incident had occurred in the heat of the moment, without premeditation. Examining the evidence on record in this context, the learned Judge has arrived at a conclusion that the respondent had no intention of killing the deceased but had inflicted knife blows upon her as a result of grave provocation. The Trial Court has, therefore, held the respondent guilty of the offence under Section304 PartI and convicted him to suffer seven years rigorous imprisonment and pay a fine of Rs.1,000/, in default of which he would suffer further imprisonment of six months.
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4. The only question that now remains to be determined by this Court is, whether, the acquittal of the respondent under Section302 IPC and his conviction under Section304 PartI IPC by the Trial Court, is in accordance with law and the evidence on record.
5. Ms.Chetna Shah, learned Additional Public Prosecutor has submitted that the very fact that the respondent had a knife in his pocket reveals his intention of killing the deceased. The act is, therefore, a premeditated one. It has come in evidence that there was a quarrel between husband and wife and it was due to the quarrel that the deceased had gone to the house of her mother and was in the process of approaching the Police to lodge a complaint against the respondent. Therefore, the finding of the Trial Court that the respondent had no intention of killing the deceased, is not correct.
5.1 It is next submitted that even the respondent has admitted in a complaint filed by him (Exhibit42) that he had tried to persuade the deceased to come home with him but when she did not agree to do so, he Page 6 of 23 HC-NIC Page 6 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT had got agitated and lost his cool and had taken out the knife from his pocket and stabbed her. The Trial Court has overlooked this evidence and has wrongly acquitted the respondent of the charge under Section 302 IPC.
5.2 That the respondent inflicted as many as four blows on the deceased, one of which was on a vital part of her body. It is, therefore, a case of infliction of multiple blows, which have been witnessed by the eyewitnesses such as the first informant and the brother of the deceased. It was a fit case in which the respondent ought to have been held guilty of the offence under Section302 IPC. 5.3 That the Trial Court has wrongly arrived at the conclusion that the act of inflicting injuries by the respondent was not intentional, but was a result of grave provocation. The nature of the injuries shows that mensrea was present in the mind of the respondent. The medical evidence, in the shape of the Postmortem Report as well as the deposition of PW5 Dr.Harun Sulemanbhai Parmar, who performed the Postmortem, corroborates the ocular evidence. It is Page 7 of 23 HC-NIC Page 7 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT submitted that the appeal be allowed and the respondent may be convicted for the offence under Section302 IPC.
5.4 Learned Additional Public Prosecutor has relied upon the judgment of the Supreme Court in the case of Som Raj alias Soma Vs. State of H.P., reported in AIR 2013 SC 1649, in support of her submissions.
6. Opposing the above submissions, Mr.A.D.Shah, learned counsel for the respondent has submitted that the number of blows inflicted by the respondent is not relevant. It is the circumstances in the background of which the incident took place, that would gain relevance. That it has come in the evidence of several witnesses that there was a quarrel between the deceased and the respondent. It was as a result of the quarrel that the deceased had come to the house of the first informant. There is an ample evidence on record to indicate that the respondent tried to reason with the deceased and persuade her to return home. This interaction between the respondent and the deceased took place for a long time, which is also evident from the evidence of the first informant. However, the Page 8 of 23 HC-NIC Page 8 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT deceased was adamant in maintaining that she did not want to go back to the house of the respondent. It was when she got up to go to the office of the Deputy Superintendent of Police to make a complaint that the respondent ran after her in order to stop her. In the altercation that followed, the respondent got provoked, took out the knife from his pocket and inflicted blows upon the deceased.
6.1 Learned counsel for the respondent further submits that the fact that knife blows have been inflicted on different parts of the body indicates that there was grappling between the deceased and the respondent. As a result of the grappling, one knife injury got inflicted on the chest of the deceased, between the ribs. There was no intention on the part of the respondent to kill the deceased, therefore, the conclusion arrived at by the Trial Court, being based upon a proper appreciation of the evidence on record, may not be interfered with.
6.2 Learned counsel for the respondent has further submitted that there is evidence on record to show that both the deceased and the respondent were found Page 9 of 23 HC-NIC Page 9 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT lying on the road. The respondent had also been injured and was taken to the hospital. There is no explanation on record for the injuries received by the respondent. No medical certificate has been placed on record in this regard and it is not clear how the respondent sustained injuries, who inflicted those injuries and with what weapon. It is only in the Arrest Panchnama that the injuries on the person of the respondent have been described. No doctor has been examined in this regard.
6.3 It is further submitted that there was no motive on the part of the respondent to kill the deceased, who was his wife and the mother of his four children. On the contrary, he was persuading her to return home. In fact, the incident took place as a result of the provocation by the deceased by starting to go to the office of the Deputy Superintendent of Police to register a complaint against the respondent. It is contended that merely because the respondent was carrying a knife in his pocket is not indicative of an intention to kill the deceased. The case in hand has rightly been considered by the Trial Court under Page 10 of 23 HC-NIC Page 10 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT ExceptionsI and IV of Section300 IPC and the said Court has rightly convicted the respondent under Section304 PartI and acquitted him of the charge under Section302 IPC. On the basis of the above submissions, it is prayed that the appeal be dismissed.
6.4 In support of the above submissions, learned counsel for the respondent has placed reliance upon several judgments, as below.
6.5 The first judgment relied upon is in the case of Surinder Kumar Vs. Union Territory, Chandigarh, reported in AIR 1989 SC 1094, wherein the Supreme Court has discussed ExceptionIV to Section300 IPC and held as below :
"6. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the Page 11 of 23 HC-NIC Page 11 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremediated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. *****"
6.6 In order to elaborate this point further reliance has also been placed upon the judgment of the Supreme Court in the case of Devendra Nath Srivastava Vs. State of Uttar Pradesh, reported in (2017) 5 SCC 769, wherein the Supreme Court has held :
"18. On reappreciation of entire evidence and having considered the submissions of learned counsel for the parties, we agree with the view taken by the High Court that it is clearly established from the evidence on record that the appellant caused homicidal death of his wife, after quarrel between the two. It is established on the record that the appellant was a drunkard. The First Information Report was lodged by none other than the appellant's own nephew, immediately after the incident. There is no Page 12 of 23 HC-NIC Page 12 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT version put forward by the appellant as to how his wife died homicidal death in his house. Considering the facts and circumstances of the case, it appears that the appellant acted in a fit of anger. It is nobody's case that the appellant had any concubine. Rather statement of PW5 Preeti Srivastava shows that suit for restitution of conjugal rights, filed by the appellant, was decided in terms of compromise, and they started living together with their children.
19. As to whether the act on the part of the appellant constitutes the offence punishable under Section 302 IPC or Section 304 Part I IPC, we are of the view that the incident has occurred after quarrel between the appellant and the deceased which is not a planned act. It is also established that the appellant was a drunkard. In our opinion, in the facts and circumstances of the case, the view taken by the High Court, that the appellant has committed offence punishable under Section 304 PartI IPC, requires no interference.
20. In State of A.P. v. Rauavarapu Punnayya, SCR at p.606, this Court, explaining the scheme of Penal Code relating to culpable homicide, has laid down the law as under: (SCC p.386, para 12) "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder"Page 13 of 23
HC-NIC Page 13 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT its specie. Every "murder" is "culpable homicide" but not viceversa. 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 this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest 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."
6.7 Reliance has also been placed upon another judgment of the Supreme Court in the case of Suresh Singhal Vs. State (Delhi Administration), reported in (2017) 2 SCC 737, wherein the Supreme Court has discussed the right of self defence.
Page 14 of 23 HC-NIC Page 14 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT 6.8 Though the said judgment is regarding the right of private defence and PartII of Section300 IPC has been invoked, however, learned counsel for the respondent has relied upon the following paragraphs :
"31. The strong possibility is that there was a scuffle in which the appellant was pinned to the floor and attempted to be strangulated by the deceased. The appellant may have pulled out his gun and upon seeing the gun, the deceased may have released the appellant and started running upon which the appellant fired the shot which hit him from the back side. This also explains the trajectory of the shot in which the bullet entered the body below the right shoulder, and travelled upwards without exiting.
32. In these circumstances, we are of the view that Suresh Singhal is undoubtedly guilty of causing death to Shyam Sunder with the intention of causing death or of causing such bodily injury as is likely to cause death and therefore guilty of the offence under Section 304 of the IPC. We are informed that the appellant has already undergone a sentence of 13 1/2 years as on date. We thus sentence him to the period already undergone."Page 15 of 23
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7. Having considered the above submissions, evidence on record and the conclusion arrived at by the Trial Court, it would be fruitful to advert to the salient features of the evidence, in order to test the veracity of the said findings. As there is no challenge to the conviction under Section304 PartI on the part of the respondent, the evidence on record is required to be analyzed solely from the point of view whether the acquittal of the respondent under Section302 IPC is sustainable in law.
8. PW1 Nimuben, the first informant and mother of the deceased, has described the incident to which she is an eyewitness. From her crossexamination it is evident that the respondent was trying to persuade his wife to return home but the deceased was not ready to do so. This interaction between the two continued for about fifteen minutes. Though, in crossexamination, this witness has denied that the respondent was trying to persuade the deceased to come home, however, she has stated that he was standing outside in the courtyard and speaking to the deceased.
9. The fact that there was some interaction between Page 16 of 23 HC-NIC Page 16 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT the respondent and the deceased regarding her coming home is evident from the evidence of PW2 Zakirhussain, brother of the deceased. He has stated in the crossexamination that there was an altercation between the deceased and the respondent, due to which the neighbours gathered there. He states that he and his family members were sitting and listening to the exchange.
10. PW3, Mohammadbhai Nurabhai, is a neighbour of the first informant. From the evidence of this witness, it is clear that there was an altercation between the deceased and the respondent which was heard by this witness in his house. According to this witness, the altercation was due to the fact that the deceased had left the house of the respondent and come to her mother's place.
11. PW4, Jamalbhai Aadambhai, is another neighbour of the first informant. He has not supported the case of the prosecution and has been declared hostile.
12. Dr.Harun Sulemanbhai Parmar, who performed the Postmortem on the body of the deceased, has been Page 17 of 23 HC-NIC Page 17 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT examined as PW5. He has described the injuries on the body, which are as per the description given in Column17 of the Postmortem Report. The cause of death as per the said report is "death due to shock caused by injury to vital organ and Haemorrhage.
13. The Panchnama of the production of the knife by PW2, Zakir Hussain, is at Exhibit35. However, both the Panch witnesses of this Panchnama, namely, PW7 Himmatbhai Kalubhai and PW7 Usmanbhai Bachubhai Mahetar, have turned hostile.
14. PW8, Naranbhai Jivabhai, is the Police Station Officer who received the complaint and made an entry in the Station House Diary.
15. The Investigating Officer, Shri Arjundev Girdharlal Mistri, has been examined as PW9. He has stated that he had various Panchnamas prepared and took the statements of witnesses. He seized the knife, which is the weapon of offence and filed the charge sheet against the respondent. In his cross examination, this witness has stated that he had not taken any statement from the respondent at the spot because the respondent had received injuries on his Page 18 of 23 HC-NIC Page 18 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT face and was not in a condition to speak. It also transpires from the testimony of this witness that the respondent was sent to the hospital for the treatment of his injuries. However, it has not come out from the investigation that the injuries received by the respondent were due to an attack. This witness is not in a position to state how the respondent received the injuries.
16. It, therefore, transpires from the reading and analysis of the entire evidence on record that the deceased and the respondent had quarrelled, due to which the deceased had come to her mother's house. On the day of the incident, the respondent also came to the house of the first informant and tried to persuade the deceased to return home with him. There was an altercation between the two which was even heard by the neighbours, as the deceased refused to go back. In the course of the heated altercation, the deceased got up from the cot on which she was sitting and started to go to the office of the Deputy Superintendent of Police in order to file a complaint against the respondent. It is at this stage that the respondent Page 19 of 23 HC-NIC Page 19 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT got agitated and provoked. He ran after the deceased, who refused to listen to him and was bent upon going to the Police. The evidence further reveals that the respondent, at that stage, took out a knife from his pocket and inflicted blows upon the deceased. It appears that there was a scuffle between the deceased and the respondent. It is possible that another person was also involved, who could be the respondent and PW 2 Zakirhussain, as a result of which the respondent also got injured and was found lying on the road. The fact that the respondent was lying on the road in an injured condition has been stated by PW2. Though PW2 has denied that he had a stick in his hand and that he had hit the respondent, however, injuries were found on the person of the respondent, which have not been explained. It is most likely that either PW2 or some other family member of the deceased could have inflicted those injuries.
17. According to PW2, a van came and the injuries sustained by the respondent were due to his dashing against the said van. He, however, admits that he did not state so before the Police.
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18. A scrutiny of the entire evidence on record does not reveal any premeditation or intention on the part of the respondent to kill the deceased. On the contrary, the respondent had spent a considerable period of time in the house of the first informant, in trying to persuade the deceased to return home with him. Had it been the intention of the respondent to murder the deceased, he would not have tried to persuade her and would have straightaway taken her life. The fact that the respondent had a knife in his pocket does not mean that he had an intention of killing the deceased. The knife blows appear to have been inflicted by the respondent in the heat of the moment, without premeditation, after becoming agitated by the intention of the deceased to lodge a complaint against him, for which purpose she left the house and started running towards the office of the Deputy Superintendent of Police. It appears that the respondent inflicted knife blows with the intention of stopping her from filing the complaint. However, in the scuffle that appears to have taken place, one of the knife blows, namely, injury No.2 proved fatal. Page 21 of 23 HC-NIC Page 21 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT
19. Taking into consideration the evidence on record we are of the considered view that no illegality has been committed by the Trial Court in acquitting the respondent of the offence under Section302 IPC and convicting him under Section304 PartI. The Trial Court has minutely appreciated the evidence and the conclusion arrived at by it requires no interference. Whether the respondent inflicted one blow, or several, is not material. What is material is whether the evidence on record indicates premeditation and intention to kill on the part of the respondent. The element of premeditation and intention is missing in this case. The Trial Court has properly appreciated the evidence and arrived at the correct conclusion, which is in consonance with the principles of law enunciated by the Supreme Court in the judgments cited by Mr.A.D.Shah, learned counsel for the respondent.
20. The judgment relied upon by Ms.Chetna Shah, learned Additional Public Prosecutor is regarding the infliction of a single injury by which the murder was caused. On the facts of that case, the Supreme Court held that it would be improper to determine the Page 22 of 23 HC-NIC Page 22 of 23 Created On Fri Nov 10 23:05:18 IST 2017 R/CR.A/937/1994 CAV JUDGMENT culpability of the accused by assuming that he had inflicted only one injury on the deceased and upheld his conviction under Section302 IPC. The facts of that case are entirely different to the facts and evidence in the case in hand, therefore, the said judgment would not be applicable.
21. For reasons stated hereinabove and in view of the above discussion, we find no merit in the appeal, which deserves to be dismissed.
22. It is, accordingly, dismissed.
23. Bail bonds, if any, stand cancelled. The R & P be sent back to the concerned Trial Court.
(SMT. ABHILASHA KUMARI, J.) (B.N. KARIA, J.) Gaurav+ Page 23 of 23 HC-NIC Page 23 of 23 Created On Fri Nov 10 23:05:18 IST 2017