Gujarat High Court
Munno @ Habibisha Rushtmsha Diwan vs State Of Gujarat on 17 September, 2021
Author: A.J.Desai
Bench: A.J.Desai, Nirzar S. Desai
R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1115 of 2014
With
R/CRIMINAL APPEAL NO. 818 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
==========================================================
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 ?
==========================================================
MUNNO @ HABIBISHA RUSHTMSHA DIWAN
Versus
STATE OF GUJARAT
==========================================================
Appearance:
Criminal Appeal No.1115 of 2014
Mr. Madan Barod, Advocate for the appellant - original
accused
Mr.J.K.Shah, APP for the respondent - State.
Criminal Appeal No.818 of 2014
Mr. Hemang Parikh, Advocate for the appellants -
original accused
Mr.J.K.Shah, APP for the respondent - State.
==========================================================
Page 1 of 27
Downloaded on : Sun Jan 16 15:33:36 IST 2022
R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 17/09/2021
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)
1. The present set of appeals are preferred by appellants original accused in the respective appeals filed by them against the judgment and order of conviction dated 03.06.2014 passed by the learned Second Additional Sessions Judge, Anand whereby they have been convicted and sentenced to undergo imprisonment imposed upon them.
2. Learned advocates for the appellants and learned Additional Public Prosecutor for the respondent - State have consented the disposal of these appeals have been arisen out of the same judgment and order. Since the appellant accused of Criminal Appeal No.1115 of 2014 is in the jail since 10 years and Criminal Appeal No.818 of 2014 which has arisen from the same sessions case, both these appeals are taken up for hearing, with the consent of the learned advocates for the parties.
2.1 The appellant - original accused viz. Munno @ Habibsha Rustamsha Diwan has challenged the judgment and order of conviction and sentence dated 03.06.2014 passed by the learned Second Additional Sessions Judge, Anand in Sessions Case No.94 of 2011 whereby the Page 2 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 present appellant accused was convicted for the offence punishable under Sections 302, 323, 324 and 506(2) of the Indian Penal Code and sentenced to undergo one month simple imprisonment for the offence punishable under section 323 of the Indian Penal Code with a fine of Rs.100/- and in default thereof he was ordered to undergo simple imprisonment for ten days. He was also sentenced to undergo simple imprisonment for three months for the offence punishable under Section 324 with fine of Rs.100/- and in default thereof was ordered to undergo simple imprisonment for ten days. He was also sentenced him to undergo six months simple imprisonment and imposing fine of Rs.100/- for offence punishable under Section 506(2) of the Indian Penal Code and in default thereof to undergo simple imprisonment for one month. The appellant accused Munno @ Habibsha Rustamsha Diwan was sentenced to undergo life imprisonment for offence under section 302 of the IPC.
2.2 Criminal Appeal No.818 of 2014 is preferred by original accused nos. 2 to 6 and 8 in the above referred Sessions Case No.94 of 2011 wherein vide judgment and order of conviction and sentence dated 03.06.2014, learned Second Additional Sessions Judge, Anand convicted the appellants of Criminal Appeal No.818 of 2014 for the offence punishable under Sections 323 and 506(2) of the Indian Penal Code and sentenced them to undergo one month simple imprisonment for the offence Page 3 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 punishable under Section 323 of Indian Penal Code along with fine of Rs.100/- each and further sentenced them to undergo simple imprisonment for a period of six months for the offence punishable under Section 506(2) of the Indian Penal Code imposing fine of Rs.100/- each and in case of default of making payment of fine they were ordered to undergo further simple imprisonment for one month. Vide aforesaid common judgment and order dated 03.06.2014, the learned second Additional Sessions Judge, Anand further ordered that all the sentences to run concurrently and benefit of set-off be given to original accused no.1 only i.e. appellant of Criminal Appeal No.1115 of 2014. Both the appeals came to be admitted on 19.11.2014.
3. The facts of case, in nut-shell, are as under:
3.1 It is the case of the prosecution that, as per the complaint lodged by the complainant viz. Pankajkumar Atulbhai Makvana, some land dispute was going on between the appellant ( the appellant original accused of Criminal Appeal No.1115 of 2014) and one Parvatiben wd/ o. Chhaganbhai @ Kabhai Pujabhai Parmar.
3.2 On 02.04.2010 when the deceased was driving his bike at night, one auto-rickshaw, which was drive by Mayudin, rushed on the deceased. Sensing that this might lead to some quarrel, the deceased along with the complainant i.e. Prosecution Witness No.2 viz.
Pankajkumar Atulbhai Makvana, who happened to be his Page 4 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 cousin, went to the father of Mayudinsha Habibsha Diwan (i.e. original accused No.6) viz. Munno @ Habibsha Rushtmsha Diwan - original accused no.1 and when both of them reached at the residence of accused no.1, all the accused assaulted the deceased and the complainant with deadly weapons. Because of such sudden assault, as the deceased and complainant strated screaming, Prosecution Witness No.10 viz. Sunilkumar Ramanbhai Makvana, Prosecution Witness No.11 viz. Arvindbhai Ravjibhai Makvana, Prosecution Witness No.12 viz.Rameshbhai Shantilal Parmar and Prosecution Witness No.13 viz. Rakeshbhai Maganbhai Chavda rushed to the place of scene of offence and found that accused no.1 gave dagger blow (Khanjar blow) to the deceased on the left side of his chest, accused no.3 viz. Roshansha Rushtmsha Diwan gave knife blow to the complaiannt -Prosecution Witness No.2 viz. Pankajkumar Atulbhai Makvana on his left hand and caused injury to him and accused no.6 using stick and accused no.4 using iron pipe gave blows to prosecution witness No.12 Rameshbhai Shantilal Parmar on his head whereas accused No.2 viz. Rahimsha Subratisha Diwan using hockey stick and accused no.9 Rushtamsha Jummasha Diwan by using a stick gave blows to deceased and witnesses.
3.3 It was alleged that accused no.7 viz. Firojsha Subratisha Diwan pelted stones and caused injuries to the deceased, the complainant and other witnesses and accused no.5 viz. Munavaesha @ Munirsha Subratisha Page 5 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 Diwan gave complainant and deceased fist blows and accused no.8 Sharifabibi w/o. Munno @ Habibsha Rushtamsha Diwan caught hold of the Prosecution Witness No.10 Sunilkumar Makvana and gave him fist blows and bite on his left hand and caused injury to him. All of other accused were uttering filty and abusive language and threatened the deceased, complainant and other prosecution witnesses to kill and thereby committed an act of murder of the deceased.
3.4 Accordingly, an FIR was registered against the accused and pursuant to the registration of the FIR, all the appellants came to be arrested. Since the FIR was registered against the accused, the Investigating Officer started investigation and having found sufficient evidence and material against the accused, the charge-sheet was submitted in the Court of learned Additional Judicial Magistrate at Anand. The accused were provided copy of charge-sheet on 25.06.2010 and thereafter case was committed to the Court of Sessions at Anand.
3.5 Thereafter during the pendency of trial, accused no.8 Rushtamsha Jummasha Diwan expired. His death certificate was produced vide Exh.15 and accordingly case was abated qua accused no.8 vide order dated 18.01.2012 by the competent Court. Thereafter in absence of accused no.1 to 8 charge was framed against accused no.1 to 8 vide Exh.19 and further statements of accused were recorded as per section 313 of the Cr.P.C. wherein they Page 6 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 did not pleat guilty and thereafter trial commenced.
3.6 In trial, in all 19 witnesses were examined by the prosecution including the Investigating Officer who started investigation and the doctor who performed postmortem on the body of deceased. Prosecution Witness No.1 viz. Dr.Ambalal Hirabhai Patel, the doctor, who performed the postmortem on the body of the deceased, Prosecution Witness No.2 Pankajkumar Atulbhai Makvana was the complainant, Prosecution Witness Nos.3 to 9 were the panchas, Prosecution Witness No.10 to 13 were the persons who are stated to be eye-witnesses and got injured during the incident, Prosecution Witness No.14 viz. Dipeshmumar Thakorbhai Vanand was an independent witness and Prosecution Witness Nos.15 to 18 were other witnesses like doctor, ASI and the one who prepared the map etc., Prosecution No.19 was the Investigating Officer viz. PSI Mahendrasinh Dipsinh Puvar.
3.7 The appellant accused did not examine any witness. The prosecution also produced the documentary evidences i.e. complaint, inquest panchnama, post mortem note, panchnama of recovery of weapons etc. 3.8 Out of 19 witnesses, all panchas from Prosecution Witness Nos.3 to 9 turned hostile. However, after taking into consideration the evidence of other witnesses including the injured witnesses and independent witnesses, the complainant , doctor and the evidence of Page 7 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 Investigating Officer, who supported the case of the prosecution and also taking into consideration the documentary evidence like injury certificate, postmortem report, inquest panchnama etc., the learned Second Additional Sessions Judge, Anand vide order dated 03.06.2014 convicted the appellants, as stated herein above, and passed the judgment under challenge. Hence, the present appeals.
4. Heard learned advocate Mr.Madan Barod for the original accused no.1 appellant of Criminal Appeal No.1115 of 2014, learned advocate Mr.Hemang Parikh for the accused appellants of Criminal Appeal No.818 of 2014 and learned Additional Public Prosecutor Mr.J.K.Shah for the respondent State.
5. Mr.Madan Barod appearing for the appellant, at the outset, submitted that it is an undisputed fact that the deceased Jayesh Makvana expired due to the incident in question wherein the original accused no.1 ( appellant of Criminal Appeal No.1115 of 2014) has mainly been convicted for the offence punishable under section 302 of the Indian Penal Code ('IPC' for short). However, he submitted that he would like to emphasis to convert the aforesaid sentence under section 304 of the 'IPC' more particularly Part-II of the same. He, therefore, did not plead the total innocence of the appellant of Criminal Appeal No.1115 of 2014 from the case and requested to reduce the sentence of the appellant by treating the same Page 8 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 as an offence under section 304 Part-II of the 'IPC'. He submitted that the offences 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 the section 300 of the 'IPC' and according to him, utmost it can be said to be culpable homicide not amouting to murder and falls under Part-II of section 304 of the 'IPC' and hence the case of the appellant of Criminal Appeal No.1115 of 2014 would fall under section 304 of the 'IPC'.
5.1 Learned advocate Mr.Barod submitted that as per the FIR as well as evidence, the accused no.6 Mayudinsha rushed auto-rickshaw towards bike of deceased but thereafter it was the deceased and Prosecution Witness No.2 Pankaj Makvana who went to the residence of accused no.1 and at the residence of accused no.1 untoward incident took place. Since the deceased and the complainant went to accused no.1's place, it cannot be said that it was the intention of accused no.1 to kill the deceased. Before the incident, they never knew that the deceased would come to their residence. Since the incident occured at the residence of the accused no.1, as supported by panchnama of scene of offence and as blood stains were found from and near the residence of the accused no.1, it clearly establishes that the appellant had no intention or motive to commit murder of the deceased. Learned advocate Mr.Barod further submitted that there was only one dagger blow was given as per the case of the prosecution. Since there was only one dagger blow, a Page 9 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 single blow on the body of the deceased would indicate that the accused never had any intention or knowledge to kill the deceased. He submitted that, therefore, the case of the accused would fall under exception IV of section 300 of the IPC and the act of accused cannot be said to be an act amounting to murder but may be viewed as an act falling within the definition and ambit of Part-II of section 304 of the IPC.
5.2 Learned advocate Mr.Barod took us through the postmortem reprot and submitted that the cause of death is due to "haemarrhagic shock due to direct injury on vital organ" i.e. heart and thereafter took us to column no.16 of the p.m. report wherein the injuries on the body of deceased were mentioned. As per p.m. report the deceased had sustained one stabbed wound having size of 1.2 cm slightly oblique on leftside of the chest, 3.5 cm deep down wards posterior between two nipples mind sternum region spindal in shape. While taking us to p.m. report, learned advocate Mr.Barod took through deposition of Prosecution Witness No.1 viz. Dr.Ambalal Hirabhai Patel and from his examination-in-chieff as well as from cross- examination, he submitted that the p.m. note and deposition by the doctor who carried out the postmortem do not contradict and establish that there was only one blow on the chest of the deceased. He also submitted that there was neither any intention nor any knoweldge that one blow of dagger would result into the death of the deceased.
Page 10 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 5.3 Mr.Barod submitted that in view of the fact that the present appellant is confining this appeal only for converting the punishment for the offence punishable under section 302 to section 304 Part-II of IPC and is not challenging the conviction itself, the Court may consider the aspect that even as per the case of the prosecution merely because the auto-rickshaw rushed towards the bike of the deceased and it was deceased and the complainant who came to residence of the present appellant all of sudden without any provocation and there at the residence of the present appellant incident took place and, therefore, no intention or motive can be attributed to the present appellant. He further submitted that the accused appellant had no knolwedge that just one blow of dragger would result into the death of the deceased and, therefore, the case cannot be considered as an offence punishable under Section 302 of the IPC but is required to be viewed as a case falling under Part-II of Section 304 of IPC and prayed for reducing the sentence imposed upon the present appellant i.e. the appellant of Criminal Appeal No.1115 of 2014 by converting it to minimum sentence provided under the Code.
5.4 In support of his contention, Mr.Barod relied upon an unreported judgment of this Court in Criminal Appeal No.251 of 2014 decided on 01.10.2020 wherein also a single blow was given to the deceased and in the facts and circumstances of the case the coordinate Bench was Page 11 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 pleased to consider the case of the appellant and conviction was altered from Section 302 to 304 Part - II of Section 304 of the IPC and punishment was accordingly reduced. In support of his contention, Mr.Barod further relied upon para:17 of the said judgment which reads thus:
"17. However, considering the fact that only one single Blow is alleged and the injury as noted hereinabove was also a stab injury and the injury i.e. stab injury over right side of upper chest wall. In all the cases, where the deceased died due to Single blow, cannot be considered as culpable homicide not amounting to murder. But, at the time of appreciating evidence, the intention or knowledge that the injury is likely resulted into death or not is to be considered by the Court. The intention and the above mentioned knowledge can be gathered from the relevant fact prevailing in each case. Here in the present case on hand, there is only Single Blow upon right side of the chest of deceased. As per the case of prosecution, the deceased and complainant were standing and at that time, appellant came there, at that time, some altercation took place between them and appellant and appellant had inflicted blow upon the right side of the chest of deceased. Thereafter, the deceased ran away and afterwards fell down. Here at that time, the appellant had not run behind the deceased even though he had all the opportunity to run behind, caught the deceased and inflict more other blows to kill him. Therefore, there is no intention to kill the deceased. Moreover, everyone knows that the heart is at left side of the chest. The deceased died due to blow upon right side of the chest and therefore, it cannot be said that the appellant had inflicted Blow with the knowledge as mentioned above. Therefore, the same amounts to culpable Page 12 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 homicide and the same would fall within the exception of Section 300 of the IPC and there was no intention or knowledge as mentioned above for the death of decease and thereby to commit murder and considering the Single blow given by the appellant, the same, upon re-apprecation of the evidence on record, would amount to culpable homicide not amounting to murder and therefore, the appellant deserves to be convicted for the offence punishable under Section 304 Part II of the IPC instead of Section 302 of the IPC and upon reappreciation of the evidence on record, the judgment and order of conviction for the death of deceased Pareshbhai @ Pintu therefore deserves to be upheld. Though the conviction is confirmed, the conviction deserves to be altered to Section 304 Part II of the IPC and the appellant deserves to be convicted for the offence punishable under Section 304 Part II of the IPC. Record indicates that the appellant is in jail since almost eight and a half years."
5.5 Thereafter learned advocate Mr.Barod relied upon the judgment in case of Criminal Appeal No.1884 of 2012 decided on 03.02.2018 wherein also the deceased died because of a single blow of axe and there also the Court was kind enough to alter conviction under section 302 to Part-II of section 304 of the 'IPC'.
5.6 In view of above, learned advocate Mr.Barod prayed that in the case of present accused i.e. appellant also of Criminal Appeal No.1115 of 2014 there is only one blow of dagger which has resulted in death of deceased, the conviction of present appellant also be converted from section 302 to Part-II of section 304 of the IPC and punishment also may be accordingly reduced as provided Page 13 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 under the scheme of the Act.
6. Insofar as Criminal Appeal No.818 of 2014 is concerned, learned advocate Mr.Hemang Parikh appeared for the appellants and submitted that the accused nos.2 to 6 and 8 are acquitted of the offences punishable under Sections 147, 148, 149, 324 and 120B of the IPC and they are convicted only in respect of Section 323 of the IPC and under Section 506(2). The maximum punishment awarded to them are of six months. Both the punishments were ordered to run concurrently. According to learned advocate Mr.Parikh since the appellants were released on bail pending trial and some of the accused have already undergone the maximum punishment of six months and some of the accused persons have undergone the punishment of imprisonment substantially but they have not completed six months imprisonment. In case of those accused who have not undergone the full punishment of undergoing imprisonment of six months, the Court may exercise its jurisdiction and alter the punishment by reducing to the period of punishment which they have already undergone.
6.1 Learned advocate Mr.Parikh submitted that he has challenged the order of conviction in order to each of the appellant but in view of the fact that the accused no.1 is praying for alteration of punishment by converting conviction from Section 302 to Part-II of section 304 considering the fact that the present appellants of Page 14 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 Criminal Appeal No.818 of 2014 each of the appellants are negligible and coupled with the fact that State has not preferred any appeal for enhancement of their sentences, their sentence may also be altered by reducing it to period of imprisonment which they have already undergone and they may be set free.
7. As against that learned Additional Public Prosecutor Mr.J.K.Shah vehemently opposed the present appeal and submitted that there is clear-cut case of cold-blooded murder. He submitted that the version of the prosecution is supported by the version of the medical officer and the complainant, who himself was injured, other injured witnesses and also by the version of the independent witnesses and their version are supported by medical evidence as well. Learned Additional Public Prosecution Mr.Shah submitted that the prosecution could establish the case beyond any doubt before the trial Court and that since the incident occurred because of some dispute related to land of one Parvatiben, according to Mr.Shah, learned APP, it is consistently established by prosecution as it can be seen from the examination-in-chief and cross- examination of prosecution witnesses that there is reference of some land belonging to one Parvatiben which has led to not so good relations between the present appellant and the deceased. According to Mr.Shah, this reason is sufficient to establish that appellant had motive to commit murder of the deceased. Learned Additional Public Prosecutor Mr.Shah further submitted that there is Page 15 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 nothing on record to indicate that the present appellants were provoked by the deceased. The deceased had gone to the residence of the present appellant to ensure that the matter may not aggravate further. Record does not indicate that deceased or the complainant or any other injured witness had either provoked appellants or that they used force and tried to beat the deceased. The appellants had chosen not to examine any defense witness before the trial Court. There is no cross complaint filed by the appellants and all these clearly indicate that merely because of only one blow of dagger was given to the deceased the appellant (appellant of Criminal Appeal No.1115 of 2014) cannot claim to convert punishment from Section 302 to Part-II of section 304 of the 'IPC'.
7.1 By elaborately substantiating the aforesaid argument, learned Additional Public Prosecutor Mr.J.K.Shah took us to the deposition of prosecution witnesses. Mr.Shah drew our attention and took us to the deposition and cross-examination of Dr.Ambalal Hirabhai Patel - Prosecution Witness No.1 and submitted that all the witnesses were treated by this witness. Prosecution Witness No.1 performed the postmortem and according to him the cause of death is due to haemarrhagic shock due to direct injury on vital organ i.e. heart.
7.2 Mr.Shah submitted that, in his examination-in- chief, Prosecution Witness No.1 Dr.Ambalal Patel categorically submitted that measurement of wound was Page 16 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 i.e. 1.2 X 3.5 cm. Mr.Shah pointed out that even during the cross-examination of the doctor, no contradictory evidence had come forward.
7.3 Thereafter Mr.Shah took us to deposition of Prosecution Witness No.2 the complainant Pankajkumar Atulbhai Makvana and from his deposition he submitted that the deposition of Prosecution Witness No.1 is in line with the complaint lodged by this witness. Mr.Shah submitted that Prosecution Witness No.2 Pankajkumar Makvana has not only identified the accused appellants but has narrated the incident in the same manner as stated in the FIR. He submitted that the Prosecution Witness No.2 was the eye-witness to the incident and he has seen through his naked eye that the accused no.1 stabbed the deceased and caused his death by inflicting dagger blow on his left part of chest. He was the person who took the deceased to the hospital. Mr.Shah submitted that even in the cross-examination, nothing contrary to the version of Prosecution Witness No.1 than what was stated by him in his examination-in-chief could be extracted by the advocate for the defense. According to Prosecution Witness No.2 Pankajkumar Makvana, who has categorically stated that on reaching the residence of the present appellants including the appellant of Criminal Appeal No.1115 of 2014, the incident took place at the residence of appellants and the appellant of Criminal Appeal No.1115 of 2014 gave blow by dagger on the chest Page 17 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 of the deceased. This fact has been proved beyond doubt. Similarly, Mr.Shah also took us to the deposition of Prosecution Witness No.10 viz. Sunilkumar Ramanbhai Makvana, Prosecution Witness No.11 Arvindbhai Ravjibhai Makvana, Prosecution Witness No.12 Rameshbhai Shantilal Parmar and Prosecution Witness No.13 Rakeshbhai Maganbhai Chavda and submitted that even their depositions are also in line with the deposition of the complainant i.e. Prosecution Witness No.2 - Pankajkumar Atulbhai Makvana.
7.4 Thereafter learned Additional Public Prosecutor Mr.Shah took us to the deposition of independent witness Prosecution Witness No.14 viz. Dipeshkumar Thakorbhai Vanand and submitted that even if it is believed that Prosecution Witness Nos.2, 10, 11, 12 and 13 who happen to be the relatives of the deceased and, therefore, they deposed in favour of the prosecution, then also as per version of Prosecution Witness No.14 Dipeshkumar Vanand the prosecution case was proved beyond doubt. Prosecution Witness No.14 viz Dipeshkumar Vanand is the independent witness, who was running hair-cutting saloon shop, was also examined by the prosecution and he himself had stated that he himself has seen the accused no.1 giving dagger blow to the deceased. Thus, the deposition of this prosecution witness No.14 cannot be discarded as he is an independent eye witness.
7.5 In view of the aforesaid submissions, learned Page 18 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 Additional Public Prosecutor Mr.Shah submitted that before the trial Court the prosecution has proved its case beyond any doubt and, therefore, trial Court has rightly convicted the appellant no.1 for an offence punishable under section 302 of IPC and considering the evidence on record it is a fit case of conviction under section 302 of the 'IPC' and is not required to be converted into Part-II of section 304 of the IPC as prayed for advocate for the appellant and the judgment under challenged by way of this appeal be confirmed.
8. We have heard both the learned advocates for the appellants of Criminal Appeal No.1115 of 2014 and Criminal Appeal No.818 of 2014 and learned Additional Public Prosecutor for the respondent State. We have also perused the records and proceedings and have scrutinized the deposition of the witnesses and also gone through the documentary evidence produced on record. As submitted by learned advocate Mr.Barod for the appellant of Criminal Appeal No.1115 of 2014, he is not challenging the occurrence of incident and is requesting to convert the sentence of appellant from the offence under section 302 to Part-II of section 304 of the 'IPC'. We have examined the case keeping in mind the submissions made by the parties, decisions cited before us by learned advocates appearing for respective parties from their perspective.
9. Before proceeding with the facts of the case, we would like to have a close look at some of the relevant Page 19 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 provisions. Sections 299 and 300 of IPC read as under :-
"299. Culpable homicide.-- 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.
Explanation 1.-- A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.-- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.
Explanation 3.-- The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or --
(Secondly) --If it 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 --
(Thirdly) --If it is done with the intention of causing bodily injury to any person and the Page 20 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or --
(Fourthly) --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 commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.-- When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisions :-
(First) -- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
(Secondly) -- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
(Thirdly) -- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.-- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without Page 21 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.-- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4. -- 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 or acted in a cruel or unusual manner.
Explanation -- It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5. -- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
10. We have examined whether the case would fall under culpable homicide and would be treated as murder defined in Section 300 or would fall under Exception 4 under Section 300 IPC. Therefore, we would like to describe the manner and method in which the incident has taken place and how the person was done to death but before that we would like to reproduce section 304 of the 'IPC' which is as under:
Page 22 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 "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 fine, or with both, if 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."
11. The FIR was lodged at the instance of Prosecution Witness No.2 complainant viz.Pankajkumar Atulbhai Makvana. It is an undisputed fact that the initiation of the incident lies in the fact that the present appellant's son Moyuddin rushed his rickshaw towards the bike of the deceased, however, there was neither accident took place nor any complaint registered for the same. So the fact remains that the so-called incident got over there and then only. It is thereafter that the deceased along with prosecution witness no.2 went into the house of the appellant original accused no.1 and there the incident took place which resulted into death of the deceased. From the record we cannot find anything to indicate that accused no.1 appellant of Criminal Appeal No.1115 of 2014 had any intention or motive to kill the deceased.
Page 23 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 Though prosecution examined 19 witnesses and though witness nos.2, 10,11, 12, 13 and 14 categorically stated that they had seen the accused no.1 had inflicted dagger blow on the chest of the deceased, no one could establish that appellant had any motive or intention or knowledge that the single blow would result into the death of deceased. In fact, the contention that there was some land dispute going on between one Parvatiben and the appellant is not supported by any evidence as the said Parvatiben was never examined as prosecution witness and, therefore, the said theory cannot be believed. The fact remains that there was only single blow given by the accused - appellant no.1 of Criminal Appeal No.1115 of 2014 which caused death of deceased and, therefore, in our view, the judgment cited by Mr.Barod and relevant paras relied upon by Mr.Barod, which are quoted in foregoing paragraph, would help the appellant. We are, therefore, convinced that the offence committed by the appellant accused no.1 of Criminal Appeal No.1115 of 2014 would fall under section 304 Part-II of 'IPC' and not under section 302 of the 'IPC'. As the appellant had no knowledge that the deceased and his cousin brother i.e. Prosecution Witness No.2 were coming to his residence as they came and incident took place it can be clearly inferred from the circumstances that due to hit of moment, without there being any knowledge that it may result into death of deceased the dagger blows was given by the accused appellant no.1 but the same would not fall Page 24 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 within scope of section 302 but would fall under Part-II of section 304 of IPC and, therefore, we are of the opinion that present appellant of Criminal Appeal No.1115 of 2014 can be sentenced under section 304 Part - II of the IPC and his sentence period can be reduced for a period of 10 years.
11.1 Criminal Appeal No.1115 of 2014 as such stands partly allowed. The impugned judgment and order dated 03.06.2014 passed by the learned Second Additional Sessions Judge, Anand in Sessions Case No.94 of 2011 is hereby modified to the extent that the appellant accused is hereby convicted under Section 304 Part II of the Indian Penal Code, 1860 and ordered to undergo sentence for a period of 10 years with remission as per law and fine of Rs.1,000/- and in default of payment of fine, simple imprisonment of three months. It is clarified that if the appellant of Criminal Appeal No.1115 of 2014 has already undergone sentence for a period 10 years, he is ordered to be released, if not required in any other offence.
12. So far as in the incidental appeal, Mr.Hemang Parikh learned advocate has submitted that the original accused no.1, who was attributed the key role in commission of crime and was convicted for life imprisonment, has filed Criminal Appeal No.1115 of 2014. Therefore, Mr.Parikh, learned advocate has requested the Court that looking to the involvement of the original accused, who are appellants of Criminal Appeal No.818 of 2014, this Court Page 25 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 may release those appellants - accused, who have not undergone 6 months imprisonment treating the period of the sentence they have already undergone may be directed to be release those accused by the jail authority and further requested that the appellants - original accused, who have already completed the sentence imposed upon them for a period of six months, may be ordered to be released forthwith. Accordingly, Mr.Parikh, learned advocate submitted that original accused no.2 viz. Rahimsha Subratisha Diwan (appellant no.1) and original accused no.3 viz. Roshansha Rushtamsha Diwan (appellant no.2) have undergone 09 months 29 days and 09 months 19 days of sentence respectively, original accused no.4 Rafiksha Nurusha Diwan (appellant no.3) has undergone 08 months and 2 days of sentence, Munavaesha @ Munirsha Subratisha Diwan original accused No.5 (appellant no.4) and Mayudinsha Habibsha Diwan - original accused No.6 (appellant no.5) have completed 05 months 21 days and 05 months 25 days of total period of sentence whereas Sharifabibi wife of Munno @ Habibsha Rushtmsha Diwan - original accused no.8 (appellant no.6) has undergone 03 months and 23 days of total sentence imposed upon her.
13. Criminal Appeal No.818 of 2014 is hereby partly allowed. The impugned judgment and order dated 03.06.2014 passed by the learned Second Additional Sessions Judge, Anand in Sessions Case No.94 of 2011 is hereby modified to the extent that the appellant/s accused Page 26 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022 R/CR.A/1115/2014 CAV JUDGMENT DATED: 17/09/2021 of Criminal Appeal No.818 of 2014, who have already undergone maximum imprisonment other than the imprisonment of six months' as ordered, are hereby ordered to be released and also modified the judgment and order to the extent that the appellant/s accused of Criminal Appeal No.818 of 2014, who have undergone six months' imprisonment or less than six months' of imprisonment, are ordered to be released treating his / her/ their period of sentence they have already undergone, if he / she / they is/are not required in any other offence. Accordingly, both the appeals are partly allowed. Orders accordingly.
Registry is directed to send the Records and Proceedings to the concerned trial Court forthwith. Registry is also directed to communicate this order to the concerned Jail Authority by email message forthwith.
(A.J.DESAI, J) (NIRZAR S. DESAI,J) MISHRA AMIT V. Page 27 of 27 Downloaded on : Sun Jan 16 15:33:36 IST 2022