Gujarat High Court
Nileshgiri Mulugiri Goswmi vs State Of Gujarat on 22 October, 2021
R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 16520 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 ? Yes
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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NILESHGIRI MULUGIRI GOSWMI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BHAVESH P TRIVEDI(2731) for the Applicant(s) No. 1
MR RR TRIVEDI(941) for the Applicant(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2
MR HARKID SONI APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 22/10/2021
ORAL JUDGMENT
1. The present petition is filed under Section 482 of the Criminal Procedure Code, 1973 with the following prayers. Page 1 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022
R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 (A) Present Misc. Criminal Application may kindly be allowed quashing F.I.R. registered as Jetpur City Police Station I - C.R. No.79/15 dt. 1- 6-2015 under S.304 of Indian Penal Code and charge sheet No.68 of 2015 Dt. 23-6-2015 being Criminal Case No.1399 of 2015 pending before Ld. Principal Judicial Magistrate (F.C.), Jetpur may kindly be quashed.
(B) Pending admission and final disposal of Present Misc. Criminal Application, further proceedings of Criminal Case No.1399 of 2015 pending before Ld. Principal Judicial Magistrate (F.C.), Jetpur may kindly be stayed.
(C) Any other and further relief which this Hon'ble Court may kindly be granted in the interest of justice.
2. Brief facts of the present case in nutshell are that the complainant was serving as Junior Engineer in Sub Division of Gujarat Electricity Board at Jetpur and when he was on duty on 11.05.2015, at that time, present applicant- accused No.1, who is the owner of the property, has given electricity connection bearing Customer No.89105/10171/9. That the applicant wanted to renovate the premises by way of constructing the pakka ceiling by replacing the iron sheet and, therefore, he has given the contract for the said work to the contractor namely Kantibhai Nathabhai Makwana. That, when slanting work was carried out by the employee of Kantibhai Makwana, the deceased working as labourer, was passing the iron rod towards standing over the slanting, at that time, the iron rod was touched to overhead electricity line of 11 K.V. passing over the premises owned by the Page 2 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 applicant and due to electrocution, the deceased was shifted to the hospital, where he was died. That is how the First Information Report (FIR) lodged by the informant. It is further alleged that the applicant being owner and co-accused being the contractor have not taken any proper care and precaution nor they have informed to the Electricity Board to disconnect the power supply nor seek any prior permission and, therefore, they have committed the alleged offence and hence, impugned FIR being C.R.No.I - 79/2015 came to be registered with Jetpur City Police Station for the offence under Section 304 of the Indian Penal Code. The charge-sheet came to be submitted in the concerned Court against the accused persons, which was registered as Criminal Case No.1399 of 2015. The applicant has prayed to quash and set aside the impugned FIR and consequential registration of Criminal Case No.1399 of 2015 pending in the Court of learned Judicial Magistrate, First Class, Jetpur.
3. The Hon'ble Court was pleased to admit this petition vide order dated 22.09.2015 and granted ad-interim relief in terms of para-8(B).
4. Today, when the matter came up for final hearing, this Court heard respective parties through their advocates namely Page 3 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 Mr.Bhavesh Trivedi, learned advocate for the applicant, Mr.Premal Joshi, learned advocate assisted by Mr.Nilesh Koyani, learned advocate for the original complainant and Mr.Hardik Soni, learned Additional Public Prosecutor for the respondent - State.
5. Mr.Bhavesh Trivedi, learned advocate for the applicant has submitted that the applicant has not committed any offence as alleged against him. He has also submitted that the incident is purely an accident and there is no negligent on the part of the applicant and, therefore, no offence under Section 304 of the Indian Penal Code is made out against him. He has further submitted that when the slanting work was going on, one Kishanbhai and Dipakbhai were busy in doing their work and Kishanbhai was supplying the iron rod to Dipakbhai for completing the framing work, at that time the said iron rod was touched with the overhead electricity line of 11 K.V., there was no intention and knowledge to connect the applicant with the alleged offence. He has further submitted that there is no nexus between the death of deceased and any act committed by the applicant. He has submitted that since, the applicant has given the contract to Kantibhai Nathabhai Makwana i.e. accused No.2, Page 4 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 he was not present at the site when the work was undertaken under the instructions of accused No.2, therefore also, the applicant cannot be said to be responsible for the alleged incident. He has submitted that since, no prima facie case is made out under Section 304 of the Indian Penal Code against the applicant, the impugned FIR and consequential criminal case registered on the basis of the FIR deserves to be quashed and set aside. Mr.Bhavesh Trivedi, learned advocate for the applicant has relied upon the decisions in the case of Shantibhai J. Vaghela Vs. State of Gujarat and another, AIR 2013 SC 571 and Shamsher Khan Vs. State of (N.C.T.) Delhi, AIR 2000 SC 3662.
6. Mr.Hardik Soni, learned Additional Public Prosecutor for respondent No.1 - State has vehemently opposed the present application. He has submitted that on the basis of the FIR and the evidence collected by the investigating officer, the charge- sheet came to be filed and prima facie material available against the present applicant and, therefore, the present application may be dismissed.
7. Mr.Nilesh Koyani, learned advocate for the original complainant has made submissions to the effect that the present Page 5 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 application deserves to be dismissed as the applicant has committed the offence under Section 304 of the Indian Penal Code.
8. It is worthwhile to refer to Section 304 of the Indian Penal Code which reads as under:-
"304. Punishment for culpable homicide not amounting to murder. - Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death.
or with imprisonment of either description for a term which may extend to ten years or with fine, or with both. It the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
9. At this juncture, it is profitable to refer to the decisions of this Court in the case of Jayrambhai Panchiyabhai Gamit Vs. State of Gujarat & another rendered in Criminal Misc. Applications No.21097 of 2015 and 21092 of 2015 dated 07.03.2017 and in the case of Sitaben Bhavarlal Darji Vs. State of Gujarat and another rendered in Criminal Misc. Application No.5012 of 2014 dated 22.10.2021.
10. In the case of Jayrambhai Panchiyabhai Gamit (supra), Page 6 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 this Court has observed in paras-8, 9, 10, 11 and 12 as under:-
8. At this stage, it will also be profitable to refer to the following observations of the Supreme Court in the case of State of A.P. vs. Raayavarapu Punnaya, reported in AIR 1977 SC 45, where the Supreme Court laid down the distinction between murder and the culpable homicide not amounting to murder in the following way:
"12. In the scheme of the Penal Code, '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 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 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.
13. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. 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 key words used in the various clauses of Sections 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 ....Page 7 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022
R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 Subject to certain exceptions culpable homicide is murder if the act by which the death 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; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE
(c) with the knowledge that the act is likely to cause death.
(4) with the knowledge that the act is so imminently 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
14. Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300. The distinguishing feature of the mens rearequisite 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 intentional 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 Page 8 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 Illustration (b) appended to Section 300.
15. 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.
16. 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.
17. For cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and another v. State of Kerala, AIR 1966 SC 1874, is an apt illustration Page 9 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 of this point.
18. In Virsa Singh v. The State of Punjab, AIR 1958 SC 465, Vivian Bose, J. speaking for this Court, explained the meaning and scope of Clause (3), thus :
"The prosecution must prove the following facts before it can bring a case under Sec.300, '3rdly'. First, it must establish, quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be ,proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
19. Thus, according to the rule laid down in Virsa Singh's case (supra), even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general - as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. Page 10 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative, the offence would be 'culpable homicide not amounting to murder', punishable under the First or the Second Part of Section 304, depending. respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code."
9. I am of the view that, in the first instance, no first information report can be registered for the offence under section 304 of the Indian Penal Code. I am also of the view that the police, at the end of the investigation, cannot file a chargesheet for the offence under section 304 of the Indian Penal Code. Section 304 of the Indian Penal Code would apply provided the case falls within one of the exceptions to section 300 of the I.P.C. If a charge-sheet is filed for the offence of murder, and if it is the case of the accused that the offence is one of culpable homicide not amounting to murder, then he has to bring the case within one of the exceptions to section
300.
10. In the aforesaid context, I may refer to and rely upon the decision of the Supreme Court in the case of Harendra Nath Mandal vs. State of Bihar, 1993 (2) 435, in which the Supreme Court observed as under;
"Section 304 does not create an offence but provides Page 11 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 the punishment for culpable homicide not amounting to murder. In view of section 299 of the Penal Code, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. In view of section 300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder. It is well- known that if a death is caused and the case is covered by any one of the five exceptions of section 300 then such culpable homicide shall not amount to murder. Section 304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions, where an intention to kill is present and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent. To put it otherwise if the act of the accused falls within any of the clauses 1, 2 and 3 of section 300 but is covered by any of the five exceptions it will be punishable under the first part of section 304. If, however, the act comes under clause 4 of section 300 i.e. the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death but without any intention to cause death and is covered by any of the exceptions, it will be punishable under the second part. The first part of section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge. But before an accused is held guilty and punished under first part or second part of section 304, a death must have been caused by him under any of the circumstances mentioned in the five exceptions to section 300 , which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation."
11. Thus, section 304 of the Indian Penal Code does not create an offence of culpable homicide, not amounting to murder. That section provides for punishment in case of culpable homicide, not amounting to murder. The first part of it provides for punishment of such offence, when the act by which the death is caused is done with the intention of causing Page 12 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 death, or of causing such bodily injury as is likely to cause death. The second part of it provides for punishment in a case when the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. The offence that is made punishable under that Section is the same offence namely; an offence of culpable homicide not amounting to murder. It only provides different punishments, taking into consideration, whether the act was done with a particular intention or the act was done with the knowledge that is likely to cause death without any intention to cause death, or to cause such bodily injury as is likely to cause death. It will be significant to note that this Section 304 covers cases also where the offence is prima facie an offence of murder, punishable under Section 302, but in view of the application of any one of the exceptions given in Section 300 of the Indian Penal Code, the offence of murder is reduced to an offence of culpable homicide, not amounting to murder.
12. At this stage, and in the aforesaid context, I must look into section 105 of the Evidence Act, which reads as under;
"105. Burden of proving that case of accused comes within exceptions.--When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.
(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments."
11. In the case of Sitaben Bhavarlal Darji (supra), this Court Page 13 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 has observed in para-7 as under:-
"7. In Vineet Kumar v. State of Uttar Pradesh, 2017 AIR (SC) 1884, the Apex Court observed as under:
"23. A three-Judge Bench in State of Karnataka Vs. Devenderappa and another, (2002) 3 SCC 89 had occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation / continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice..........."
12. It is settled law that for considering the application under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be Page 14 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice.
13. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.
14. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence.
15. Now, on perusal of the aforesaid legal preposition and the Page 15 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022 R/CR.MA/16520/2015 JUDGMENT DATED: 22/10/2021 materials placed on record and considering the peculiar facts of the case, this Court is of the considered opinion that the present application qua the present applicant is required to be considered.
16. Resultantly, the present application is allowed. The impugned First Information Report being C.R.No.I - 79/2015 came to be registered with Jetpur City Police Station for the offence under Section 304 of the Indian Penal Code and consequential proceedings being Criminal Case No.1399 of 2015 pending in the Court of learned Judicial Magistrate, First Class, Jetpur are hereby quashed and set aside. Rule is made absolute accordingly.
17. Registry is directed to intimate about this order to the concerned Trial Court through email and/or any other suitable electronic mode.
Sd/-
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 16 of 16 Downloaded on : Mon Jan 17 01:45:50 IST 2022