Gujarat High Court
Shaktisinh @ Chakubhai Bahadursinh ... vs State Of on 12 December, 2013
Author: Akil Kureshi
Bench: Akil Kureshi
SHAKTISINH @ CHAKUBHAI BAHADURSINH GOHIL....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/733/2009 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 733 of 2009 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE Z.K.SAIYED ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ SHAKTISINH @ CHAKUBHAI BAHADURSINH GOHIL....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: MR BP JHALA, ADVOCATE for the Appellant(s) No. 1 MR HL JANI, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 12/12/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) Appellant is original accused. He was convicted for offence punishable under Section 302 of Indian Penal Code by the learned Additional Sessions Judge, Bhavnagar, by the impugned judgment dated 27.2.2009 rendered in Sessions Case No.41 of 2007.
Briefly stated the prosecution version was that on 29.11.2006 deceased was doing the work of shoe making at home. At that time the accused passed by using foul language. The deceased therefore told him not to use bad words. Accused thereupon got excited and gave a knife blow to the deceased on his chest and committed his murder.
A Charge was framed at Ex.7 alleging that the accused had committed offence punishable under Sections 302 and 504 of Indian Penal Code and Section 135 of Bombay Police Act.
By the impugned judgment he was convicted for the offence under Sections 302 and 504 of Indian Penal Code, but acquitted for offence under Section 135 of Bombay Police Act. For offence under Section 504 he was sentenced to imprisonment for 01 year and fine of Rs.2,000/-. For offence under Section 302 he was sentenced to imprisonment for life and ordered to pay fine of Rs.50,000/-. Out of the fine so recovered the wife of the deceased was to receive Rs.45,000/- towards compensation.
Devuben Mohanbhai P.W.No.2 Ex.24 the wife of the deceased and the first informant deposed that at the time of the incident she lived at Village : Ralgon with her husband. Their children lived at Ahmedabad with their families. On 29.11.2006 she and her husband were at home. Her husband was doing the work of preparing shoes. At that time accused passed by their house using bad words. Her husband therefore told him not to do so. The accused however continued to use abuses. There was therefore an argument about it. Thereupon accused gave a knife blow to her husband on the chest. Her husband fell down screaming. She also started shouting. Upon which her brother-in-law Kalubhai Mavjibhai and one Mohanbhai Nanjibhai arrived there. They took her husband in a tempo to Government Hospital at Talaja where the doctor declared him dead. The police arrived there and took down her complaint which was produced at Ex.25. She identified the knife used for commission of the offence. She also identified the clothes worn by her husband at the time of incident.
5.1 In the cross-examination she denied that she rushed out of the house after hearing her husband s screams and clarified that she was standing right there.
Other witnesses who had arrived at the scene shortly upon hearing the screams of the first informant and some of whom also was supposed to be eyewitnesses turned hostile. We may therefore not refer to the deposition of such witnesses. We may however make a brief reference to Kalubhai P.W.No.3 Ex.28. Though in the examination-in-chief he did not support the prosecution, in the cross-examination by the learned APP he agreed that he had seen the accused walk away quickly. He had also seen Devuben P.W. No.2 where the deceased was lying. Devuben was shouting and screaming. Upon hearing the shouts he had come there.
Dhirajbhai Agrawat P.W.No.1 Ex.14 was the doctor who carried out the postmortem. He was the medical officer at Talaja Community Health Center. In his deposition as well as in the P.M.Report at Ex.18 he had indicated the following external injuries :-
Injury (1) A stab wound about 3 cm long 0.5 cm width and about 7 cm deep to the skin. It is about 4 to 5 cm below the external notch, about 2 cm left headline. Margin sharp upper angle pointed bone broad fish tailing near lower end.
(2) Abrasion over occipital region about 2 cm x 1cm.(3)
A stab wound penetrated between left 3rd & 4th rib.
Corresponding to such external injuries he had recorded the following internal injuries:-
As mentioned in column No.17 clotted blood above.
N and 1 to 1.5 lit present in left sides of chest curity.
N armed Pale Penetrating wound between left side 3rd & 4th rib h/7 fourth /7 rib sternum Pale tear in pericurdium corresponding to the injury mention in column No.17 size 1.8 cm x 8 cm wound penetrating at ventric lung of heart size about 1.5 x .5 cm He pointed out that the wound on the chest passed between third and the fourth rib. The fourth rib at the joint of the stenam was broken. The knife had pierced the heart and penetrated through the right chamber of the heart. In his opinion such injuries were sufficient in ordinary course of nature to cause death. Such injury could have been caused by a sharp cutting instrument like knife. He opined that cause of death was due to cardio-respiratory failure due to injury to vital organ like chest. He was shown muddamal article knife and agreed that such injury could have been caused with the said weapon.
Rajan Kantilal P.W.No.12 Ex.51 was Investigating Officer. He gave detailed account of the investigation carried out, in particularly referred to the discovery of the murder weapon at the instance of the accused. Such discovery panchnama was produced at Ex.55. He stated in the manner in which the weapon was discovered when the accused in presence of panchas volunteered to show the place where the weapon was hidden. The police party, the panch witnesses and the accused travelled in a police vehicle as directed by the accused and arrived at a house from where the accused brought out a knife which was hidden under a roof. The knife had blood stain on it.
The various articles collected during the course of investigation were sent for forensic analysis. The FSL report read in conjunction with the serological report Ex.61 established presence of B group blood from the place of incident, the clothes of the accused as well as the murder weapon knife. This in nutshell is the evidence on record.
On the basis of such evidence learned advocate Shri Ruturaj Nanavati contended that prosecution failed to establish involvement of the accused in commission of the offence. All witnesses except P.W.No.2 turned hostile. Evidence of P.W. No.2 being inconsistent cannot form the basis for recording conviction. She was related to the deceased.
In the alternative he submitted that in any case looking to the nature of the incident and the manner in which it took place the conviction cannot be under Section 302 of Indian Penal Code. At best the offence can be categorizing as culpable homicide not amounting to murder.
On the other hand learned APP Mr.Jani opposed the appeal contending that there was clear eyewitness account of the incident. Such version was dully corroborated by medical as well as forensic evidence.
We may first appreciate the evidence. Devuben P.W. No.2 Ex.24 the first informant had given the precise details about the manner in which the incident took place. She was present at home when her husband was also doing the shoe making work outside the house. Accused passed by using foul language. Deceased asked him to stop. Accused however continued to use bad words. After a brief argument the accused stabbed him in the chest. The fact that the Devuben witnessed the entire incident cannot be doubted. It was 4 O clock in the afternoon and she was house-wife. Her presence in the house was therefore natural. She denied the defence suggestion that she was at the time of the incident inside the house and came out only after hearing her husband scream. Contrary to what was argued before us by the learned counsel for the appellant we do not find this denial in any manner in conflict with her statement in the examination-in-chief where also she had referred to the accused using bad words outside her house and her husband being stabbed when he stopped the accused from doing so. Her mentioning that she rushed there cannot be understood as she was inside the house when the incident took place. In any case, the attack took place after the accused was stopped by her husband from using bad language, but accused continued to do so upon which an argument ensued. Obviously all these would have taken some time and created sufficient noise. If therefore by the time the witness Devuben came out of the house and saw that the accused had stabbed her husband, the same was but natural.
The deposition of this witness was duly corroborated by medical as well as other evidence. As already noticed, the Dr.Dhirajbhai Agrawat P.W.No.1 who had carried out postmortem had noted one stabbed injury on the chest which could be caused by a knife. The blow with the knife had fractured a rib and pierced inside the heart and also ruptured the diaphragm. According to the doctor such injury could have been caused by the muddamal article knife.
The knife itself was discovered at the instance of the accused and the Panchnama Ex.55 he had led the police party and the panch witnesses to a house where it was hidden on the roof.
Significantly the serological report confirmed presence of the blood of the deceased on this knife as well as on the clothes of the accused. In his statement under Section 313 of Criminal Procedure Code he offered no explanation how his clothes were blood stained.
Looking to such overall evidence on record we have no hesitation in confirming the view of the trial Court that the accused No.1 had caused death of the deceased with the knife blow. We would presently considered the contention of the appellant that in any case he cannot be convicted for the offence under Section 302 of Indian Penal Code. It is true that the accused gave only one knife blow. It is equally true that his action was not premeditated. P.W. No.2 Devuben agreed that there was no previous enmity between the accused and the deceased. The accused therefore obviously did not intend to cause death.
Section 300 of Indian Penal Code however provides for various situations under which a culpable homicide would amount to murder. Clause thirdly thereof provides that, if an act is done with the intention of causing bodily injury to any person and such injury inflicted is sufficient in ordinary course of nature to cause death, the same would amount to murder. Likewise clause fourthly of Section 300 provides that if a 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, the action would amount to murder.
In the present case the accused gave a knife blow to the deceased. The knife had a blade which was 06 inches long. It had pierced inside the chest by 7 cm. It had broken the rib, ruptured the diaphragm and pierced through the heart. Considering the weapon used, the force with which the blow was given and in particular the fact that the injury was caused on one of the most vulnerable part of the body, in our opinion the case would fall under clause thirdly of Section 300 of Indian Penal Code. The accused can be stated to have the full intention of causing bodily injury which was sufficient in ordinary course of nature to cause death. The fact that the injury was sufficient in ordinary course of nature to cause death was also opined by the doctor P.W.No.1.
Counsel for the appellant however relied on the decision of the Supreme Court in case of Buddhu Singh & Ors. Vs. State of Bihar reported in (2011) 14 SCC 471, it was case where the accused had given an axe blow on the head of the deceased and was convicted for offence under Section 302 of Indian Penal Code.
The Apex Court converted the conviction into Section 304 Part-II. In the said decision however it was observed that, the accused seeing that his father and brother had been grappling with the deceased, dealt an axe blow which could not be said to be intended towards the head. It could have landed anywhere. However, it landed on the head of the deceased. It was in this context observed that therefore the element of intention is ruled out. Facts thus were vitally different.
Reliance was also placed on the decision in case of Sarabjeet Singh vs. State of Uttar Pradesh, reported in 1984(1) SCC 673, the case was however based on entirely different set of facts. It was a case where the accused alongwith several other persons attacked a family. During the event the accused lifted a child and threw him on ground. The child suffered brain injury and died. The Supreme Court ruled out application of Section 304A of causing death by rash and negligent act. At the same time, ruling out application of Section 302 of Indian Penal Code on the premise that the action was such that the accused was likely to cause death and therefore, the Supreme Court convicted the accused for offence under Section 304 Part-II. On facts such decision would have no application in the present case.
In the result, judgment of the trial Court is confirmed. Criminal Appeal is dismissed. R & P to be sent back to the trial court forthwith.
(AKIL KURESHI, J.) (Z.K.SAIYED, J.) KKS Page 16 of 16