Gujarat High Court
Amu Mavji Khavas vs State Of Gujarat on 10 December, 1987
Equivalent citations: (1988)1GLR319
Author: M.B. Shah
Bench: M.B. Shah
JUDGMENT P.M. Chauhan, J.
1. Appellant Amu Mavji Khavas is convicted by the learned Additional Sessions Judge, Rajkot, in Sessions Case No. 11 of 1983 for the offencs punishable under Section 302, Indian Penal Code, for committing the murder of Jivuben, wife of his brother Kanubhai Mavjibhai, and sentenced to suffer imprisonment for life and to pay a fine of Rs. 250/-, in default three months further rigorous imprisonment. He is also convicted for the offence punishable under Section 324, Indian Penal Code, for voluntarily causing hurt to witness Karapiya alias Swaminarayan by a knife, and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 150/-, in default rigorous imprisonment for further two months. The substantive sentences were ordered to run concurrently.
2. Prosecution case was that Jivuben was the wife of Kanubhai Mavji, younger brother of the appellant-accused. Jivuben was doing masonry labour work at the factory where Karapiya was working as a watchman. Karapiya used to come to the house of Jivuben for taking meals. On September 5, 1982, at about 12.30 p. m. Karapiya had come to the house of Jivuben for lunch and had taken lunch and had just come out of the house of Jivuben, and at that time the appellant went to the house of Jivuben and asked her the reason why Karapiya had been there, and Jivuben told him not to interfere in her affairs, and the appellant got enraged and inflicted knife-blow on the neck of Jivuben by which jugular veins of Jivuben were cut. Karapiya intervened and he was also given a knife blow on the chest. Kanubhai was not at home at that time, and he come after some time and took Jivuben and Karapiya to the Hospital. Dr. Hemantkumar sutured the external injury of Jivuben and also gave treatment to Karapiya. Complaint was filed and dying-declaration of Jivuben was recorded by Executive Magistrate Shri H.M. Vyas. At about 9.00 p. m. Jivuben succumbed to the injury. The learned trial Judge, on trial, convicted and sentenced the appellant as aforesaid.
3. We are taken through the evidence by Mr. M.J. Buddhabhatti, learned Advocate for the appellant, and on appreciation of the evidence of eye-witnesses Mariyamben Noormahmad (Ex. 12), Ratanben Amardas (Ex. 13), and injured Karapiya (Ex. 28) and dying-declaration of Jivuben (Ex. 19) we have no hesitation to agree with the finding of the learned trial Judge that the appellant caused injuries with a knife to Jivuben and Karapiya.
4. Witness Mariyamben (Ex. 12) is residing in the neighbourhood. Her evidence is that she was sitting in front of her room and Karapiya had come to take meals at the house of Jivuben, and he took meals and just left, and Jivuben came out of the house, and at that time the appellant came there and inflicted knife blow on the neck of Jivuben. Karapiya intervened to rescue Jivuben, and the appellant inflicted a knife blow to him, and Karapiya fell down. Witness Ratanben (Ex. 13) was working with Jivuben and, therefore, she had just come to the house of Jivuben to call her for going to work. She saw Jivuben and Karapiya coming out of the house and at that time the appellant came there, left his cycle on the road, went in front of the house of Jivuben and asked Jivuben as to why she used to serve food to Karapiya, and Jivuben told him not to interfere in her affairs, and the appellant got enraged and took out a knife and inflicted one blow on her neck, and at that time Karapiya intervened and, therefore, he was also inflicted one knife blow on the chest by the appellant. The appellant thereafter went away. In cross-examination of Mariyamben and Ratanben practically nothing is brought out to disbelieve them. Witness Karapiya was injured by the appellant. His evidence is that he was working as watchman in the factory which was under construction and where Jivuben and other ladies were doing masonry labour work. Jivuben's husband Kanubhai had agreed and allowed him to take meals at his house and he was taking meals as paying-guest. He has also stated that on the day of the incident he went at the house of Jivuben at about 12.30 p. m., and after taking lunch he just came out to start to go for work, and the appellant came there and asked him the reason for which he had gone there, and he replied that he had gone there for lunch. At that time Jivuben came out of the house and the appellant asked Jivuben the reason why Karapiya was served food and then inflicted a knife blow to Jivuben. He then intervened and the appellant inflicted a knife blow to him on his chest. Within a short-time Jivuben's husband Kanubhai came there with rickshaw and both of them were taken to the hospital and he was admitted in the hospital.
5. In the dying-declaration (Ex. 19) recorded by Executive Magistrate Shri H. M Vyas (Ex. 19), Jivuben stated that Karapiya had gone to her house to take lunch and the appellant had told Karapiya to go away to his village and she told the appellant that Karapiya would go away, and the appellant who was drunk inflicted knife blow to her. Mariyamben and Ratanben were present. Karapiya intervened and the appellant caused him injury Kanubhai then came after about half an hour and took them to the hospital.
6. The evidence led by the prosecution is cogent and convincing and Mr. Buddhabhatii, learned Advocate for the appellant, was at pains to convince us to discard the evidence of the witnesses. The learned trial Judge has, therefore, rightly held that the appellant caused injuries to Jivuben and Karapiya.
7. The question for consideration is as to whether the appellant should be convicted for the offence of murder punishable under Section 302, Indian Penal Code, or for culpable homicide not amounting to murder, punishable under Section 304, Part I or II, Indian Penal Code. Several circumstances, which we would just discuss, lead us to hold that the appellant cannot be convicted for the offence of murder punishable under Section 302, Indian Penal Code, but should be convicted for the offence of culpable homicide not amounting to murder, punishable under Section 304, Part I, Indian Penal Code.
8. Admittedly, the appellant came to the house of Jivuben and saw Karapiya, and it appears that he suspected some unfair relation between Jivuben and Karapiya and, therefore, asked Jivuben as to why Karapiya was called there, and Jivuben retorted that the appellant should not interfere in her affairs, which enraged the appellant, and the appellant inflicted one knife blow to Jivuben on her neck. It was, therefore, not a premeditated act of the appellant and he was enraged because of the reply by Jivuben. Only one knife blow was inflicted on the neck, and it appears that the blow was not inflicted with force. Dr. Hemantkumar (Ex. 5) examined Jivuben at about 1.45 p.m. on 5-9-1982 and found one stab wound of the size of 3/4" x 1/2" x 1/3" on sternal region of Jivuben. It was a fresh injury and was bleeding and stitches were taken by Dr. Hemantkumar. It is, therefore, clear that blow must not have been inflicted with force. Dr. Hemantkumar in cross-examination stated vital artery of Jivuben was injured. He also admitted that when he examined Jivuben, he did not feel that her life was in danger. According to him, there were all chances for Jivuben to survive, but denied that the injury was not such so as to cause death. Jivuben expired at 9.00 p.m. and autopsy was done by Dr. Kishoriben (Ex. 10). Dr. Kishoriben found sutured wound of the size of about 3/4" on the left side of the neck, and on internal examination she found that both jugular veins were cut and divided. In the opinion of Dr. Kishoriben, cause of death was shock due to hemorrhage from Jugular veins due to injury on the neck. Dr. Kishoriben did not categorically state that the injury was sufficient in the ordinary course of nature to cause death, but stated that it can be said that the injury was such which was sufficient in the ordinary coarse of nature to cause death. Dr. Kishoriben admitted that profuse bleeding might take place because of injury to jugular veins, and if immediate treatment is not given, there are chances of death because of hemorrhage. She also admitted that for want of immediate treatment some other complications may also arise.
9. Prosecution has not led clear evidence to establish that injury was such which was sufficient in the ordinary course of nature to cause death. On the contrary, Dr. Hemantkumar has stated that there were chances for survival of Jivuben. As discussed above, the size of the injury was also small, and it appears that because of the cut of jugular veins which was not sutured immediately, bleeding occurred and blood clotted and, therefore, she succumbed to the injury.
10. The knife used by the appellant was rusted and not sharpened for use for any such purpose. Knife was sent to Forensic Science Laboratory and it was found that rustic brown stains were on the blade of the knife.
11. Considering all the aforesaid circumstances, it should be held that the intention of the appellant was not to commit murder, but to commit culpable homicide not amounting to murder. Causing of 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 death was likely by such act of the assailant, is culpable homicide as specified in Section 299, Indian Penal Code. As provided in Section 300, Indian Penal Code, except in the cases excepted in the said section, culpable homicide is murder, (i) if the act by which the death is caused is done with the intention of-causing death, or (ii) if the act is done 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 (iii) if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary cause of nature to cause death, or (iv) if the 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 commit such act without any excuse incurring the risk of causing death or such injury. Culpable homicide is not murder, if the act falls within the purview of any of the five exceptions specified in Section 300, Indian Penal Code. The instant case does not fall within any of the exceptions provided in that section. It cannot be said that grave and sudden provocation was caused to the appellant and, therefore, he committed the murder of Jivuben.
12. As discussed above, intention of the appellant was not to cause death of Jivuben. That is clear from the various circumstances discussed above and, therefore, the act of the appellant does not fall within the purview of clause Firstly of Section 300 or First part of Section 299, Indian Penal Code. The appellant had not caused the injury with intention of causing such bodily injury which the appellant knew to be likely to cause the death of Jivuben. Illustrations in Section 300, Indian Penal Code, clearly specify the circumstances in which the case falls within the purview of clause secondly of Section 300. Clause Secondly is, therefore, not applicable in the instant case. As discussed above, the prosecution has not led clear evidence to establish that the injury was sufficient in the ordinary course of nature to cause death. It is also clear that it was not the intention of the appellant to cause injury which was sufficient in the ordinary course of nature to cause death and, therefore, clause Thirdly is not applicable. However, from the circumstances as discussed above, it can be conveniently held that the appellant had the intention to cause such bodily injury as was likely to cause death. Clause Fourthly also is not attracted in the instant case. Second part of Section 299, Indian Penal Code, that the appellant caused the injury to Jivuben with the intention of causing such bodily injury as was likely to cause death is, therefore, applicable. The appellant, therefore, committed the offence of culpable homicide punishable under Section 304, Part I, Indian Penal Code. Under Section 304, Part I, Indian Penal Code, committing culpable homicide not amounting to murder with an intention to cause death or such bodily injury as is likely to cause death is punishable with imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine. If culpable homicide is committed with the knowledge that the act of the assailant is likely to cause death but without the intention to cause death, or with the knowledge to cause such bodily injury as is likely to cause death, a culprit can be convicted for the offence punishable under Section 304, Part II, Indian Penal Code. As the appellant caused injury with a knife with the intention to cause such bodily injury to Jivuben as was likely to cause the death, he should be convicted for the offence punishable under Section 304, Part I, Indian Penal Code.
13. In Jayaraj v. The State of Tamil Nadu , provisions of Sections 299 and 300, Indian Penal Code, came for consideration before the Supreme Court, and it is observed:
Here again, we have to enquire further whether the case would fall under the First or Second Part of Section 304, Penal Code." "For this purpose we have to go to Section 299 which defines 'culpable homicide'. "This offence consists in the doing of an act:
(a) with the intention of causing death, or
(b) with the intention of causing such bodily injury as is likely to cause death, or
(c) with the knowledge that the act is likely to cause death." "As was pointed out by this Court in Anda v. State of Rajasthan 'intent' and 'knowledge' in the ingredients of Section 299 postulate the existence of positive mental attitude and this mental condition is the special mem rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person.
The first clause of Section 300 reproduces the first part of Section 299. Therefore, ordinarily if the case comes with Clause (a) of Section 299, it would amount to murder. However, if one of the special exceptions in Section 300 applies, the offence would be culpable homicide not amounting to murder. Such is not the case before us.
If the act of the accused falls under Clause (b) of Section 299, that is to say, if the intended bodily injury is likely to cause death as distinguished from one which is sufficient to cause death in the ordinary course of nature. Clause Thirdly of Section 300 would not apply. Exactly this is the situation in the present case. The offence committed by the appellant would, therefore, fail under the First Part of Section 304, Penal Code. Accordingly, we partly allow this appeal, alter the conviction of the appellant from one under Section 302 to that under Section 304, Part I, Penal Code, and reduce his sentence to 8 years rigorous imprisonment.
In similar circumstances, the Supreme Court convicted the culprits for the offence punishable under Section 304, Part I, Indian Penal Code, in case of Gurdip Singh and Anr. v. State of Punjab 1987 (2) SCC 4. In that case, one injury was sufficient to cause the death of the deceased, but the Supreme Court observed, "we are not fully satisfied that the appellants intended to kill the deceased". In the instant case also, from the circumstances discussed above it is clear that the appellant did not intend to murder Jivuben. The appeal, therefore, should be partially allowed.
14. We have heard Mr. S.T. Mehta, learned Additional Public Prosecutor for the respondent-State, and Mr. Buddhabhatti, learned Advocate for the appellant, on the point of sentence. It is submitted by Mr. Buddhabhatti that considering the circumstances of the case, lenient view for the sentence should be taken, while Mr. S.T. Mehta has asserted for severe sentence. We think, sentence of rigorous imprisonment for seven years and fine of Rs. 250/-, in default rigorous imprisonment for further three months, for the offence punishable under Section 304, Part I, Indian Penal Code, would meet the ends of justice.
15. In the result, the appeal is partially allowed. The order of conviction and sentence passed against the appellant by the learned trial Judge for the offence punishable under Section 302, Indian Penal Code, is set aside, and the appellant is convicted for the offence punishable under Section 304, Part I, Indian Penal Code, and sentence to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 250/-, in default rigorous imprisonment for further three months. The order of conviction and sentence passed against the appellant by the learned trial Judge for the offence punishable under Section 324, Indian Penal Code, is confirmed. Substantive sentences to run concurrently.