Gujarat High Court
Mahendrabhai Somabhai Vasava vs State Of Gujarat on 28 November, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1618 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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MAHENDRABHAI SOMABHAI VASAVA
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT(3711) for the Appellant(s) No. 1
MR J K SHAH APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 28/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. The present Criminal Appeal is preferred by the appellant- accused under Section 374(2) of the Code of Criminal Procedure, 1973, being aggrieved by the judgment and order dated 10.08.2015 passed by the learned Additional Sessions Judge, Bharuch in Sessions Case No. 2 of 2014, whereby the appellant has been convicted for the offences punishable under Sections 302 and 188 of the Indian Penal Code, 1860 (for short, "IPC"). The learned Sessions Court sentenced the appellant to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- (Rupees Five Thousand only), and in default of payment of fine, to suffer simple imprisonment for two months under Section 302 IPC. Further, Page 1 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025 NEUTRAL CITATION R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025 undefined under Section 188 IPC, the appellant was sentenced to undergo simple imprisonment for one month and to pay a fine of Rs. 200/- (Rupees Two Hundred only), and in default of payment of fine, to suffer simple imprisonment for seven days. Both sentences were directed to run concurrently.
2. Prosecution case briefly stated as follows:
2.1 The complainant in this case, Manoj Kalidas Solanki, lives with his parents at Navi Vasahat Bholav, Bharuch, behind Gujarati School, and is not currently doing any work or business and has studied up to standard fifth. On 12/08/2013, at around 8 pm, the complainant was sitting at his house to take a bath. In the meantime, the complainant's maternal uncle's son named Pratik, aged 13, who rush to the complainant's house and told the complainant, "Come quickly, Suryabhai has been beaten by someone with profused bleeding," saying that the complainant went to his brother Sureshbhai, who lives with the complainant's grandmother next to the mosque in Bholav village. Where the complainant's brother Sureshbhai was suffering from acute bleeding from the stomach, when Sureshbhai was asked about it, he said, "Mahendrabhai fought with me and beat me with a paddle.
That is why the blood is coming out." Therefore, Usmanbhai, who was driving a cart near Sureshbhai's house, called 108 ambulance and when the ambulance arrived, the complainant brought his brother Sureshbhai to Bharuch Civil Hospital for treatment. At that time, the doctor asked the complainant's brother Sureshbhai, Mahendrabhai Somabhai Vasava, resident of Bholavwala, about the fact that they had quarreled and beaten him, and the doctor informed the police. After that, when the police came, the complainant's brother appraised the police the above fact, during it Page 2 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025 NEUTRAL CITATION R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025 undefined deceased faint and after that the he did not regain consciousness. Therefore, the complainant gave this present complaint to the Police Head Constable of Bharuch Railway Police Station in person, that complaint was registered under Section-302, 188 of the Indian Penal Code from Bharuch Railway Police Station C.R.No. First
-17/13.
2.2 After registration of the FIR, the investigating officer at Bharuch Railway Police Station took up the investigation of the crime, arrested the accused Mahendrabhai Somabhai Vasava, produced him before the Hon'ble Judicial Magistrate First Class, Railway Court, Surat, and upon it being established that a prima facie offence was made out against the accused, filed a charge- sheet under Sections 302 and 188 of the Indian Penal Code as well as Section 135 of the Gujarat Police Act. The said criminal case was numbered 2988/13. Since the offences charged were exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Railway Court, Surat, committed the case to the learned Sessions Court, Surat, where it was registered as Sessions Case No. 2/2014.
2.3 Accordingly, charge was framed against the accused to which the accused pleaded not guilty and claimed to be tried. His statement under Section 313 of the Code of Criminal Procedure, 1973 and thereafter the case proceeded accordingly.
3. The prosecution examined 14 witnesses and produced 18 documentary evidence to substantiate its case.
Page 3 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025 NEUTRAL CITATION R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025 undefined LIST OF ORAL EVIDENCE Sr. Exh. Name of Witness No. No. 1 Prabhubhai Vajubhai Kapadiya 07 2 Noormahmmad Sikandarmiya Sheikh 12 3 Manojbhai Kalidas - Original complainant 16 4 Police Officer - Anvarbhai Hasanbhai, Bharuch 18 5 Rekhben Ratilal 19 6 Usmanbhai Gulambhai Patel 20 7 Ratilal Chhotubhai 22 8 Naynaben Kalidas 23 9 Pratik Ratilal 24 10 Dr. Vijay Motiram Baviskar 25 11 Sumitraben Fatesinh Vasava, P.S.O 28 12 Mitesh Natvarlal Trivedi 32
Arvindbhai Jokhanbhai Ganasava- Investigating 13 35 Officer 14 Dr. Binoykumar Taraknath Sharma 58 LIST OF DOCUMENTARY EVIDENCE Sr. Exh.
Particulars of Document
No. No.
1 Panchnama of the condition of the dead body 08
2 Panchnama of the place of offence 09
3 Singed Chit of Panchas found from the clothes 10
Singed Chit of Panchas found from the
4 11
Muddamal articles knife
Original Compliant filed by the Manojbhai 5 17 Kalidas Vasava 6 Post-mortem Note of the deceased 26 Police Sub-Inspector, Bharuch Railway 7 Station, P.M. form prepared by the Medical 27 Officer, Civil Hospital Extract of Station diary entry - Bharuch 8 29 Railway Police Station Yadi sent by Bharuch Railway Police Station to 9 33 the Forensic Investigation Van 10 F.S.L. report issued by the Forensic 34 Page 4 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025 NEUTRAL CITATION R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025 undefined Sr. Exh.
Particulars of Document
No. No.
Investigating Van
11 Map of the scene of the offence 36
Jahernama/Notification issued under Section 12 37 37(1) of the Gujarat Police List sent to the Civil Hospital regarding 13 treatment of the injured by Police Head 38 Constable Office Copy of the list written by the Police 14 Sub-Inspector to the Executive Magistrate for 39 Inquest List sent by Police Sub-Inspector for 15 40 investigation of Muddamal to F.S.L. Surat Receipt of investigation chit received for 16 41 Muddamal by F.S.L. Surat 17 Report of Biology Section sent by F.S.L. Surat 42 Serological seperation report sent by the 18 43 F.S.L. Surat
4. The applicant in his statement recorded under Section 313 of the Code of Criminal Procedure, 1973, categorically denied the incriminating circumstances put to him by the Court and pleaded complete innocence. He asserted that he had been falsely implicated in the case due to local rivalries. He further stated that the deceased was a chronic alcoholic, was in the habit of consuming liquor almost daily, and had earned the enmity with several persons in the locality because of his extra-marital affairs and quarrelsome nature. Any one of those enemies could have assaulted the deceased and he had convenient been made scapegoat.
5. The defence has examined only one witness, namely, Premnarayan Devilal Mali (DW-1) at Exh. 51. It was contended on Page 5 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025 NEUTRAL CITATION R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025 undefined behalf of the defence that the prosecution has failed to examine any eye-witness to the incident and has thus not proved its case beyond reasonable doubt. The defence further pointed out that the said witness DW-1 was himself cited by the prosecution in the list of witnesses in the charge-sheet, but when examined by the prosecution he did not support the prosecution case. Thereafter, the defence examined him as DW-1, and his testimony has supported the defence version raised by the accused.
6. The learned Additional Sessions Judge, after a detailed appreciation of evidence, placed firm reliance upon the consistent oral dying declarations made by the deceased to as many as five witnesses i.e. PW-3-Manoj Kalidas Solanki at Exh.16 (brother of the deceased), PW-5-Rekhaben Ratilal at Exh.19 (neighbour), PW-6- Usmanbhai Gulambhai Patel at Exh.20 (shopkeeper who gave water), PW-7-Ratilal Chhotubhai at Exh.22 (another neighbour), PW-9-Pratik Ratilal at Exh.24 (nephew of the deceased). The medical evidence tendered by PW-10-Dr. Vijay Motiram Baviskar at Exh.25 (who conducted the post-mortem) and PW-14-Dr. Binoykumar Taraknath Sharma at Exh.58 (who first examined and treated the deceased); and the serology report at Exh.42-43, which established that the blood stains found on the clothes of the appellant (Article 8 & 9) were of human blood group 'B' the same as that of the deceased. On the strength of the above evidence, the learned Sessions court convicted the appellant for offences punishable under Sections 302 and 188 of the Indian Penal Code and sentenced him to imprisonment for life for the offence under Section 302 IPC.
7. Assailing the order of sentence and conviction under Section Page 6 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025 NEUTRAL CITATION R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025 undefined 302 IPC, learned counsel Mr. Pratik B. Barot appearing for the appellant submitted, with considerable vehemence and persuasive force, that the entire incident had arisen out of a sudden and trivial quarrel over scavenging of scrap material; there was absolutely no premeditation or pre-planning; the appellant had no intention whatsoever to cause the death of the deceased; the weapon used was a common agricultural implement (chopper) which the appellant was carrying for his livelihood; the assault was delivered in the heat of the moment; the deceased, despite receiving abdominal injury, was able to walk back to his house and even narrated the incident to several persons; death did not occur instantaneously due to haemorrhage but occurred after about 12 hours because of septicemia secondary to perforation of intestine; there was no independent eye-witness to the occurrence; and therefore the act of the appellant, at worst, would fall under Exception 4 to Section 300 IPC or, in any event, under Section 304 Part I IPC as culpable homicide not amounting to murder.
7.1 Learned advocate for the appellant-accused vehemently prayed that the conviction recorded by the trial court under Section 302 IPC be altered to one under Section 304 Part I IPC, as the incident undisputedly occurred in the course of a sudden quarrel without any premeditation and the case does not fall within the four corners of Section 300 IPC. He further submitted that, having regard to the fact that the appellant has already undergone 11 years and 8 months of actual imprisonment as of now and is the sole bread-winner of his family consisting of aged parents, wife and minor children, the sentence be reduced to the period already undergone.
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8. Learned APP, while strongly supporting the findings of the trial court on the reliability of the multiple oral dying declarations, the fatal nature of the injury and the incriminating material in the form of FSL report, very candidly submitted that upon re- appreciation of the entire material on record, that the incident though having taken place in a sudden quarrel but with premeditation, and in absence of no prior enmity, the Court ruled out the fact that the weapon was picked up from the spot itself, and the act was committed. Thus, he would submit to confirm the judgment and order of the trial Court and to dismiss the appeal of the appellant - convict.
9. Having given our anxious consideration to the rival submissions, having re-appreciated the entire oral and documentary evidence on record, and having perused the impugned judgment with utmost care, we are of the firm opinion that this is a case where the offence committed by the appellant is culpable homicide not amounting to murder punishable under Section 304 Part I IPC and not murder punishable under Section 302 IPC.
10. The law on the distinction between murder and culpable homicide not amounting to murder is no longer res integra. Culpable homicide is the genus and murder is the specie. All murders are culpable homicides but all culpable homicides are not murders. The distinguishing feature is the degree of mens rea. Where the intention is to cause death or to cause such bodily injury as is sufficient in the ordinary course of nature to cause death, the offence is murder. Where, however, the accused has no intention to cause death but has knowledge that the act done by him is likely to Page 8 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025 NEUTRAL CITATION R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025 undefined cause death, the offence is culpable homicide not amounting to murder.
11. In the instant case, the prosecution has successfully proved the guilt of the appellant beyond reasonable doubt. The multiple oral dying declarations made by the deceased are consistent, voluntary, and trustworthy. The deceased, immediately after the incident and repeatedly thereafter, named the present appellant Mahendrabhai Somabhai Vasava as the person who assaulted him with a paddle (dhariya). PW-14- Dr. Binoykumar Taraknath Sharma at Exh.58, who first examined and admitted the deceased at the Civil Hospital, Bharuch, has categorically deposed that when the deceased Sureshbhai was brought to the hospital he was fully conscious and oriented, was complaining of severe abdominal pain, and in that conscious state clearly stated before him and others that "Mahendrabhai Somabhai Vasava had fought with him and inflicted the injury with a paddle" and has further certified in the case papers (Exh. 62) that the patient was conscious at the time of admission and history was recorded as stated by him. The medical evidence corroborates the dying declarations in material particulars. The injury noted was a 2.2 cm × 0.5 cm × cavity-deep incised wound on the left side of the abdomen which caused perforation of the intestine, peritonitis, and ultimately septicemic shock, i.e., the injury was sufficient in the ordinary course of nature to cause death. The serology report (Exh. 42,43) conclusively establishes that the blood found on the clothes of the appellant was of the same group (B+) as that of the deceased. Further, the discovery of the weapon (paddle - Muddamal Article no. 5) only to the extent of information at the instance of the appellant pursuant to his voluntary disclosure only to the extent of information. Thus, the entire chain of circumstances is completed and points to the Page 9 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025 NEUTRAL CITATION R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025 undefined guilt of the appellant, without there being any doubt.
11.1 Yet, the above circumstances, though sufficient to prove that the appellant caused the fatal injury, do not necessarily establish that he did so with the intention of causing death. The quarrel was sudden and over a trivial issue of scrap collection. Both the appellant and the deceased were known to each other and were residents of the same locality. There is no evidence of any prior enmity or premeditation. The appellant used a chopper which he was carrying for his daily work. The deceased, after receiving the injury, was able to walk to his house and narrated the incident to several persons, indicating that the injury was not immediately incapacitating. Death occurred not due to immediate haemorrhage but due to septicemia after about 12 hours of treatment taken. All these factors, taken cumulatively, clearly indicate that while the appellant certainly had the knowledge that striking a person on a vital part of the body with a sharp-edged weapon was likely to cause his death but he had no premeditation intention to kill the deceased.
Legal Proposition:-
12. In light of the principles laid down in Rampal Singh V. State of U.P. 2012 8 SCC 289 while reiterating and drawing support from Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 Cri LJ 818], and as reiterated in the recent decision of the Hon'ble Supreme Court in Nandkumar @ Nandu Manilal Mudaliar v. State of Gujarat (2025 INSC 1302), the distinction between murder under Section 302 and culpable homicide not amounting to murder under Section 304 turns upon the presence or absence of intention has been succinctly dealt with and observed Page 10 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025 NEUTRAL CITATION R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025 undefined as under:
"19. The difference was further elucidated in Rampal Singh v. State of U.P.,(2012) in the following words:
"18. This Court in Vineet Kumar Chauhan v. State of U.P. [(2007) 14 SCC 660 : (2009) 1 SCC (Cri) 915] noticed that academic distinction between "murder" and "culpable homicide not amounting to murder" had vividly been brought out by this Court in State of A.P. v. Rayavarapu Punnayya [(1976) 4 SCC 382 : 1976 SCC (Cri) 659] where it was observed as under: (Vineet Kumar case [(2007) 14 SCC 660 : (2009) 1 SCC (Cri) 915], SCC pp. 665-66, para
16) "16. ... that the safest way of approach to the interpretation and application of Sections 299 and 300 IPC is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Sections 299 and 300 IPC and drawing support from the decisions of this Court in Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 Cri LJ 818] and Rajwant Singh v.
State of Kerala [AIR 1966 SC 1874 : 1966 Cri LJ 1509] , speaking for the Court, R.S. Sarkaria, J. neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the Court said that wherever the 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 [would] 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 in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the First or the Second Part of Section Page 8 of 29 304, 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 Page 11 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025 NEUTRAL CITATION R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025 undefined Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304 IPC. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative."
20. This Court in the aforesaid case of Rampal Singh (supra) further explained the difference between these two offences from the perspective of the punitive provisions of Sections 302 and 304 IPC by grading the offences in three categories as follows:
"21.Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is, (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of Section 304 includes only those cases in which offence is really "murder", but mitigated by the presence of circumstances recognised in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in Fatta v. Emperor [AIR 1931 Lah 63] , 1151. C. 476 (Refer: Penal Law of India by Dr Hari Singh Gour, Vol. 3, 2009.)"
13. The learned Sessions Judge, with respect, fell into error in treating the present case as one of murder punishable under Section 302 IPC. Upon a careful consideration of the entirety of the Page 12 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025 NEUTRAL CITATION R/CR.A/1618/2016 JUDGMENT DATED: 28/11/2025 undefined evidence and the attending circumstances, this Court is of the view that the incident took place in the course of a sudden quarrel without any premeditation and in heat of passion. There is nothing on record to show that the appellant had any intention to cause death of the deceased or that he intended to cause that particular injury which was sufficient in the ordinary course of nature to cause death with the requisite knowledge that it would almost certainly result in death. The totality of the facts and circumstances brings the case within the ambit of Exception 4 to Section 300 IPC and, therefore, the offence is clearly made out under Section 304 Part I IPC and not under Section 302 IPC.
14. In the result, the appeal is partly allowed, in the following terms :-
(a) The conviction of the appellant under Section 302 IPC is altered to one under Section 304 Part I IPC.
(b) The sentence of imprisonment for life is modified to the period already undergone. Since the appellant has already undergone 11 years and 18 months of imprisonment, the substantive sentence is reduced to the period already undergone.
(c) The fine amount and default sentence imposed by the Sessions court shall remain unaltered .
(d) The conviction and sentence recorded under Section 188 IPC are confirmed.
(e) The appellant is directed to be set at liberty forthwith if not required in any other case.
(f) The bail bonds stand discharged.
(ILESH J. VORA,J) (R. T. VACHHANI, J) sompura Page 13 of 13 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Nov 28 2025 Downloaded on : Sat Nov 29 00:36:23 IST 2025