Gujarat High Court
Umeshbhai Premabhai Ahir vs State Of ... on 11 January, 2016
Author: Harsha Devani
Bench: Harsha Devani, G.B.Shah
R/CR.A/539/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 539 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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UMESHBHAI PREMABHAI AHIR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR SHAKEEL A QURESHI, ADVOCATE for the Appellant(s) No. 1
MR NJ SHAH ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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R/CR.A/539/2011 CAV JUDGMENT
Date : 11/01/2016
CAV JUDGMENT
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By this appeal under section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the appellant convict has challenged the judgment and order of conviction dated 19.4.2011 passed by the learned Third Additional District Judge and Additional Sessions Judge, Surat in Special Atrocity Case No.30 of 2009, whereby the appellant has been convicted of the offence punishable under section 302 of the Indian Penal Code and has been sentenced to life imprisonment as well as a fine of Rs.25,000/- and in default of payment of such fine, to undergo simple imprisonment for a period of six months.
2. The prosecution case is that one Chhanabhai Bhulabhai Rathod lodged a first information report before the Kamrej Police Station on 18.10.2009 alleging that he was residing at Valthan Halpativas, Taluka Kamrej with his family and was doing casual labour work. His wife's name was Revaben and he had in all four children. The eldest was a daughter by the name of Savitaben who was married and was living at her matrimonial home. The second was also a daughter by the name of Madhuben, who was married to one Prahladji Prabhuji Thakore and along with her family was residing next to them. The third was a son Santosh, who was married to one Ramila and was residing at Valthan Naher Colony with his family, and the fourth was a son Ashokbhai, who was married to Hinaben Page 2 of 52 HC-NIC Page 2 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT and was residing with the first informant and his family. One Umeshbhai Premabhai Ahir was residing opposite his house in Halpati Mohalla since several years. People of different castes like Bhaliya, Ahir and Halpati Rathod were residing at Halpati Mohalla, due to which, people belonging to all the castes knew each other well. His family belonged to the Halpati caste and they were well acquainted with Umeshbhai Premabhai Ahir, who was residing opposite their house. That in the morning of 18.10.2009, he was present at home, at which point of time, at around 8 o'clock, his younger son Ashokbhai left for Kadodra for the purpose of purchasing clothes on account of the festival of Diwali and he (the first informant) was present at home. At about 11 o'clock in the morning, after having lunch, he had gone to sit at the corner of the Mohalla at Bhathiji Dada's temple and Sureshbhai Naginbhai Chaudhari, a resident of Naher colony of their village was also sitting with him and they were discussing and talking with each other. In the meanwhile, at around 1:30 in the afternoon, he had seen his son Ashokbhai passing near the temple and going towards their house after purchasing clothes. After a little while, people of the mohalla had gathered opposite their house in the mohalla and were shouting and hence, he and Sureshbhai Chaudhari at around 2 o'clock went to his house where people had gathered and found that his son Ashokbhai was lying on the ground and was bleeding from the head and at that point of time, out of the persons gathered there, he was informed by his daughter Madhu's son Jivan Prahladbhai Thakore and his daugther Madhuben and son-in-law Prahladbhai that Umesh Premabhai Ahir's mother Chimkiben had come in the morning to borrow money and upon refusing to do so, Umeshbhai Premabhai Ahir had picked up a quarrel with his daughter Madhuben and was Page 3 of 52 HC-NIC Page 3 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT arguing with her, whereupon Ashokbhai had come and intervened and Umeshbhai Premabhai Ahir suddenly got incited and picked up an iron pipe lying nearby and struck the same on Ashokbhai's head, causing him to bleed and fled from the scene. Thereafter, the 108 ambulance mobile had come to the mohalla and the ambulance doctor had examined his son Ashokbhai and declared him to be dead. Hence, they had brought the dead body in a private vehicle to the Kamrej Government Hospital. It was, accordingly, alleged that Umesh Premabhai Ahir who was residing opposite their house in the Mohalla, had despite the fact that he knew that they belong to the Halpati Rathod caste, upon not lending money to his mother, nursed a grudge and quarrelled with his daughter Madhuben and upon his son Ashok intervening had suddenly got incited and picked up a pipe lying nearby and inflicted a blow on his son Ashok and caused grievous injury resulting in his death.
3. The first information report came to be registered as Kamrej Police Station I-CR No.153 of 2009 for the offences punishable under section 302 of the Indian Penal Code and section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4. Upon registration of the first information report, the investigation was handed over to Shri Ziauddin Jummamiya Chauhan who was discharging duties at the ST/SC Cell. Upon taking charge of the investigation, the Investigating Officer drew the panchnama of the scene of offence on 19.10.2009 in the presence of the FSL authorities. He took samples of the blood stained soil and after duly sealing the same, forwarded Page 4 of 52 HC-NIC Page 4 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT the same to the Forensic Science Laboratory. The Investigating Officer thereafter, proceeded to record the statements of the witnesses. The accused came to be arrested. The accused Umeshbhai Premabhai Ahir had also lodged a complaint which was kept along with the case papers. The weapon used for commission of offence, namely, an iron pipe came to be recovered by way of a discovery panchnama under section 27 of the Indian Evidence Act. Upon conclusion of the investigation, a charge-sheet came to be submitted in the court of the learned Judicial Magistrate First Class, Kathor. Since the learned Judicial Magistrate did not have the jurisdiction to conduct the trial, the case came to be committed to the Sessions Court, Surat under section 209 of the Code where it came to be registered as Special Atrocity Case No.30 of 2009. The trial court framed the charge at Exhibit-5 for the offence punishable under section 302 of the Indian Penal Code and section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The charge was read over and explained to the accused, who pleaded not guilty to the charge and prayed for trial.
5. In order to prove the charge against the accused, the prosecution examined the following witnesses:-
PW-1 - the complainant Chhanabhai Bhulabhai viz. the father of the deceased at Exhibit-10;
PW-2 - Jivanbhai Prahladbhai at Exhibit-12; PW-3 - Madhuben Prahladbhai Thakore at Exhibit-13; PW-4 - Hinaben Ashokbhai at Exhibit-14;
PW-5 -Gulamhusen Noormohammed, panch witness of the arrest panchnama, at Exhibit-16;Page 5 of 52
HC-NIC Page 5 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT PW-6 - Subhasbhai Rambhai Patel, panch witness, at Exhibit-18;
PW-7 - Raju Keshavbhai Rathod, a neighbour, at Exhibit-23
PW-8 - Suman Lallubhai Rathod, another neighbour, at Exhibit-24;
PW-9 - Dr. Narendrakumar Ramdev, the doctor who performed the post mortem, at Exhibit-25; PW-10- Parakramsinh Ranjitsinh Rathod, who had recorded the first information report, at Exhibit-28; PW-11- Bindu Jairam, panch witness of the discovery panchnama, at Exhibit-30 PW-12- Ziauddin Jummamiya Chauhan, the Investigating Officer, at Exhibit-31;
PW-13- Dr. Pareshkumar Sunilbhai Tailor, the doctor who examined the accused, at Exhibit-42 PW-14 - Chandubhai Kanjibhai Patel, PSO, who recorded the NC complaint of the accused, at Exhibit-45.
6. After recording of the evidence, the accused was questioned under section 313 of the Code about the incriminating evidence and circumstances and he denied them all. The accused took a specific defence that he had not inflicted any injury on deceased Ashok Chhanabhai and that in fact deceased Ashokbhai Rathod and Madhuben were wrongfully quarrelling with his mother Chimkiben, and Madhuben and deceased Ashok had come in front of their house and were hurling abuses at his mother Chimkiben and were quarrelling with her and at that time, the muddamal pipe which has been seized in this case, was in the hand of deceased Ashokbhai Rathod. At that time a lot of other persons Page 6 of 52 HC-NIC Page 6 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT residing in the falia (locality) had gathered there. He had stepped out of his house only to pacify them that they should not fight with and abuse his mother and tried to calm Ashokbhai, whereupon Ashokbhai inflicted a blow with the pipe on his head due to which he had sustained an injury and started bleeding. He (the accused) was, therefore, afraid and had gone away from the scene and did not know what happened thereafter. That he had taken treatment in respect of his injury and thereafter had gone to the Kamrej Police Station for lodging a complaint which was recorded as Criminal Case No.17 of 2009. That in the said complaint, the name of deceased Ashokbhai Channabhai Rathod was shown as the accused. Thereafter, he had gone with a police yadi and had taken treatment at the Community Health Centre, Kamrej. When the Kamrej police had arrested him, a white bandage had been applied on the injury sustained by him on his head. It was, accordingly, stated that in the above circumstances, he had not caused any injury to deceased Ashokbhai Rathod and that he has not produced the muddamal iron pipe and that the iron pipe was in the possession of Ashokbhai Chhanabhai Rathod and that first in point of time, Ashokbhai Rathod had inflicted a blow on his head with the pipe and upon sustaining injury, he had walked away from there and had lodged a complaint against Ashokbhai in relation to such injury caused to him. That Ashokbhai and Madhuben had come in front of their house and had hurled abuses at his mother Chimkiben and a lot of people had gathered there and upon Ashokbhai inflicting injury on his head, he had left and thereafter out of the people who had gathered there someone must have inflicted injury on Ashokbhai Rathod. That he was falsely being implicated in a murder case.
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7. The trial court, at the end of the trial, after hearing the learned advocates appearing on behalf of the respective parties and appreciating the evidence on record, was of the view that the prosecution had successfully established the charge under section 302 of the Indian Penal Code levelled against the accused. Accordingly, by the impugned judgment and order, the trial court convicted the accused for the offence punishable under section 302 of the Indian Penal Code and sentenced him as aforesaid. The trial court further directed that if the appellant deposits the fine of Rs.25,000/-, Rs.20,000/- shall be paid to the heirs of the deceased by way of compensation. However, the trial court found that the prosecution had not succeeded in establishing the charge under section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and acquitted the accused of the said offence.
8. Mr. Shakeel Qureshi, learned advocate for the appellant submitted that the facts as emerging from the record do not disclose an offence of murder because the prosecution has failed to prove that there was any intention on the part of the appellant to inflict any injury upon the deceased. Inviting attention to the depositions of the witnesses, it was pointed out that PW-1, namely, the father of the deceased was not an eyewitness and, therefore, had no personal knowledge about the incident and that PW-2 has denied that any injury was inflicted upon the accused. It was submitted that it is, therefore, evident that the real story as to how the incident had occurred is sought to be suppressed by the prosecution. It was submitted that in fact the very genesis of the incident has Page 8 of 52 HC-NIC Page 8 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT been suppressed. It was submitted that apart from Jivanbhai, witness Madhuben has denied that the accused had sustained any injury. Therefore, the said witnesses are not truthful witnesses and, therefore, their evidence is required to be evaluated accordingly. It was submitted that all the witnesses who have supported the prosecution case are interested witnesses, being close relatives of the deceased. Under the circumstances, the court should be careful while accepting the versions given by such witnesses. It was further submitted that the witnesses in the statements recorded by the police at the time of investigation have stated that only one blow had been inflicted on the deceased, whereas the said version is sought to be improved in the depositions before the court by stating that more than two blows had been inflicted. It was submitted that the contradictions in the testimonies of the so-called eyewitnesses have been brought out through the testimony of the Investigating Officer which clearly shows that the accused also had sustained injury and that there was a scuffle and that only one blow had been inflicted on the head of the deceased. It was submitted that while the witnesses have submitted that there is only one injury, the post mortem note says that there are two injuries. Therefore, there is a contradiction between the ocular version and the medical version.
8.1 The next submission advanced by the learned counsel for the appellant was that the nature of the offence alleged to have been committed by the appellant cannot by any stretch of imagination be said to be murder as defined in section 300, IPC, but at best can be said to be culpable homicide not amounting to murder under section 304, IPC, for which a punishment lesser than life imprisonment may be imposed on Page 9 of 52 HC-NIC Page 9 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT the appellant. Reference was made to Exception 4 to section 300, IPC, which postulates that 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. It was contended that even if the prosecution case is accepted, from the testimonies of the witnesses and the circumstances as emerging from the record, it is evident that there was no premeditation and there was a sudden quarrel and a sudden fight and the incident occurred in the heat of passion whereupon one blow with a pipe which was lying at the spot was inflicted on the deceased. It was also pointed out that the incident had occurred in the compound of the accused which supports the case of the accused that it was the deceased and his sister who were the aggressors. It was submitted that Exception 4 to section 300, IPC would therefore, clearly be attracted in the present case and consequently, the conviction is required to be converted to one under section 304 Part-II instead of section 302 of the Indian Penal Code. It was urged that the appellant has undergone six years imprisonment; he has no criminal antecedents; he has been enlarged on temporary bail on several occasions and no untoward incident has occurred at the time of his release; therefore, having regard to the overall circumstances, the conviction is required to be converted to a lesser offence of section 304 Part-II, IPC.
8.2 In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Kusha Laxman Vaghmare v. State of Maharashtra, (2014) 10 SCC 298, wherein the court in the facts of the said Page 10 of 52 HC-NIC Page 10 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT case had noted that the weapon used by the appellant was a wooden stick and as per the prosecution case, the deceased was severely beaten by the said stick as a result thereof, she died. The court recorded that there was no cogent evidence to show that the appellant had beaten the deceased with an intention to cause her death. In such circumstances, the court was of the view that the conviction of the appellant under section 304 Part II, IPC would be just and proper and, accordingly, partly allowed the appeal by altering the conviction from section 302, IPC to section 304 Part-II, IPC.
8.3 Reliance was also placed upon the decision of the Supreme court in the case of Nagaraj v. State, 2015 (4) SCC 739 = 2015 Cri. L.J.2377, for the proposition that the refusal to answer any question put to the accused by the court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the court to return a finding of guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the statements under section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required to establish his innocence. It was submitted that therefore, no adverse inference can be drawn against the accused because of what he has stated or what he has failed to state in his examination under section 313 of the Code.
Page 11 of 52HC-NIC Page 11 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT 8.4 Reference was made to an unreported decision of this court in the case of Rajeshkumar @ Raju Lakhubhai Patel v. State of Gujarat rendered on 13.5.2009 in Criminal Appeal No.2014 of 2006 with Criminal Appeal No.2303 of 2006, wherein the court recorded that the quarrel appeared to have heated up into a scuffle when the main accused rushed from his house in spite of recent serious injury in his leg and dealt a blow of an axe without even caring to see the face of the victim. That indicated the gravity of the situation or imminent danger to the person of his brother, who was admittedly surrounded by members of the victim's family, who were otherwise also hostile. The court, accordingly, was of the opinion that even as the injury caused by the main accused was such as was likely to cause death it could not have been his intention to cause death since the situation had arisen without premeditation in a sudden fight and he appeared to have dealt the blow in the heat of passion upon a sudden quarrel. The court further recorded that none of the accused persons appeared to have acted in concert or in an extraordinarily cruel manner so as to take undue advantage of the situation. Under such circumstances, the culpable homicide did not fall in the parameters of clause (3) of section 300, IPC and it satisfied the conditions contained in Exception (4) of section 300, IPC. The court, accordingly, held that the prosecution had succeeded to the extent of proving beyond reasonable doubt the case of culpable homicide not amounting to murder, which would fall in second part of section 304, IPC and, accordingly, altered the conviction to section 304 Part II, IPC and reduced the sentence to rigorous imprisonment of five years with fine of Rs.3,00,000/-. Reliance was also placed upon the decisions of this court in the case of Baldevbhai alias Page 12 of 52 HC-NIC Page 12 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT Bachubhai Motibhai Rathod v. State of Gujarat, 2009 (2) GLH 263 and in the case of Dilipbhai Madhubhai Patel v. State of Gujarat, 2002 (2) GLH 152, for a similar proposition of law. Mr. Qureshi submitted that in the present case the facts justify alteration of the sentence to one under section 304 Part- II IPC and that the current trend of decisions of the Supreme Court indicate that instead of imposing sentence, the accused can be called upon to pay compensation to the family members of the deceased. In support of his submission the learned counsel placed reliance upon the decision of the Supreme Court in Manohar Singh v. State of Rajasthan, (2015) 3 SCC 449, wherein the court has held that order of sentence in a criminal case needs due application of mind. There exists a mandatory duty of the court to apply its mind to the award of compensation in every criminal case. It was urged that therefore, a reasonable amount of compensation may be awarded to the family of the victim and a lesser sentence of imprisonment may be imposed.
9. On the other hand, Mr. N. J. Shah, learned Additional Public Prosecutor supported the impugned judgment by submitting that the prosecution has duly established all the parameters necessary for conviction of an offence of murder under section 300, IPC and, therefore, the trial court did not commit any error. Referring to the depositions of the witnesses, it was submitted that the present case would not fall within Exception 4 to section 300, IPC inasmuch as while the murder was not premeditated, it cannot be said that there was a sudden fight as contemplated in the fourth exception to section 300, IPC. Reliance was placed upon the decision of the Supreme Court in the case of Kikar Singh v. State of Page 13 of 52 HC-NIC Page 13 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT Rajasthan, (1993) 4 SCC 238, wherein the court has explained the circumstances under which Exception 4 to section 300, IPC would be attracted. It was submitted that if the facts of the present case are considered in the light of the principles enunciated in the above decision, it can be said that the appellant convict acted cruelly with no justification and that by his conduct he has denied himself the benefit of Exception 4 to section 300, IPC.
9.1 Insofar as the injury sustained by the accused is concerned, the learned Additional Public Prosecutor submitted that the same was in the nature of an abrasion and no serious injury had been inflicted upon him. According to the learned Additional Public Prosecutor, at best, even if the contradiction brought out in the testimony of the Investigating Officer is taken to be true, all that can be stated is that the pipe had fallen on the accused's head and he had sustained injury. However, since the wound is in the nature of an abrasion, there would be no bleeding and, therefore, the question of the blood stains found on the shirt of the accused being of his own blood would not arise. It was submitted that though the blood group of both, the accused as well as the deceased is 'A', since there was no bleeding from the injury on the forehead of the accused, the blood stains on his shirt cannot be stains of his blood. It was submitted that, therefore, the accused has taken a false defence in his statement under section 313 of the Code when he states that there was bleeding in the head injury sustained by him and hence, the conduct of the accused should be taken into consideration, namely, that he has taken a totally false defence.
Page 14 of 52HC-NIC Page 14 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT 9.2 Next, it was submitted that the witnesses who have supported the prosecution case may be related witnesses, however, they being eyewitnesses their evidence cannot be ignored. It was submitted that may be there are some embellishments in the evidence of the witnesses who are rustic villagers; however, the basic case of the eyewitnesses have a ring of truth and, therefore, can be relied upon for the purpose of convicting the accused. It was submitted that having regard to the evidence which has come on record, namely, the testimonies of the eyewitnesses, Jivanbhai, nephew of the deceased and Madhuben, sister of the deceased, whose presence at the place of incident was natural and whose presence is also established from the manner in which the incident had occurred as well as the defence of the accused, there is no reason to disbelieve the witnesses. In support of his submissions the learned Additional Public Prosecutor placed reliance upon the decision of the Supreme Court in the case of Ram Avtar Rai v. State of U.P., (1985) 2 SCC 61, for the proposition that when the presence of the witness at the scene of offence is undisputed, his evidence cannot be discarded merely because of some discrepancies. The decisions of the Supreme Court in Veersingh v. State of U.P., (2014) 2 SCC 455 and Takdir Samsuddin Sheikh v. State of Gujarat, (2011) 10 SCC 158, were cited for the proposition that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. Reliance was also placed upon the decision of the Supreme Court in R. Shaji v. State of Kerala, (2013) 14 SCC 266, for the proposition that it is the quality of the witnesses that is material and not the number of witnesses. That the court may convict an accused on the basis of the testimony of a single witness if found Page 15 of 52 HC-NIC Page 15 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT trustworthy. Reliance was also placed upon the decision of the Supreme Court in Kuriya v. State of Rajasthan, (2012) 10 SCC 433, wherein it has been held that if the statement of eye witness is fully corroborated and reliable, it cannot be discarded only on the ground that the witness was related to the deceased. It was submitted that considering the defence of the accused, viz., that Ashokbhai and Madhuben were quarrelling with his mother, the presence of Madhuben at the scene of offence is clearly established. Therefore, there is no reason to disregard her testimony. It was submitted that the evidence on record clearly shows that in relation to a minor issue, the accused has unnecessarily escalated the same to such an extent that he had struck a blow on the head of Ashokbhai who merely was an intervener and was not fighting with him. In these circumstances, the above decision of the Supreme Court would be squarely attracted and the appellant would not be entitled to the benefit of Exception 4 to section 300, IPC.
9.3 In support of his submissions the learned Additional Public Prosecutor also placed reliance upon the decision of the Supreme Court in the case of Babulal Bhagwan Khandare and another v. State of Maharashtra, (2005) 10 SCC 404, for the purpose of contending that the present case would not fall within Exception 4 to section 300, IPC.
9.4 Reliance was further placed upon the decision of the Supreme Court in Raj Paul Singh and another v. State, (2012) 10 SCC 144, for the proposition that where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If Page 16 of 52 HC-NIC Page 16 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken.
9.5 It was, accordingly, urged that the prosecution having duly established the charge against the accused, the trial court committed no error in convicting the appellant for the offence under section 302 of the Indian Penal Code and that in the absence of any perversity in the findings recorded by the trial court, there is no warrant for interference by this court.
10. This court has considered the rival submissions advanced by the learned counsel appearing for the respective parties and has carefully examined the record of the case and has perused the impugned judgment as well as the authorities cited at the bar.
11. As regards the death of the deceased being a homicidal one, the same has not been disputed by the learned advocate for the appellant and hence, it is not necessary to discuss the same in detail. Suffice it to state that the prosecution has succeeded in establishing that the death of the deceased was a homicidal one through the evidence of PW-9 of Dr. Narendra Kumar, who carried out the autopsy and deposed that the injuries were ante mortem in nature and that the cause of death was due to massive internal haemorrhages of the head and the injuries sustained by the deceased were sufficient to cause death in the ordinary course of nature.
12. The culpability of the appellant convict in connection with Page 17 of 52 HC-NIC Page 17 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT the crime in question may now be examined. To appreciate the rival contentions in proper perspective, it is necessary to refer to the evidence on record in some detail. It may be noted that in the present case, the offence has been committed at 14:00 hours on 18.10.2009 and the first information report came to be promptly lodged at 17:30 hours on the same day, which is within a period of about three and a half hours from the occurrence of the incident.
13. From the evidence which has come on record, it is evident that PW-1, namely, the first informant had no personal knowledge about the incident as he was not an eyewitness thereto. The said witness has deposed that the incident happened at the door of Umeshbhai's house. He had gone to sit at the Bhathiji Dada's temple when Umesh inflicted a blow on the head of his son Ashok and killed him. He had heard shouts and hence had gone to that place. He saw that the women and children from the locality were standing on one side. Ashok was injured on the head and he had died because of the blow inflicted on his head with the iron pipe. Other than him, his wife Revaben, his daughter-in-law Hinaben and his children were there. Madhuben was also there. Others were also present. Umesh's mother had come to take money from his daughter Madhu but Madhu did not have money so his mother had left. His son-in-law Prahlad was also present. There was a quarrel between Umesh and Madhu. His son Ashok (the deceased) had gone to make purchases from Kadodra and he intervened in the quarrel, at which point of time, the incident had occurred. A 108 ambulance was called and the boy was taken to the Kamrej Hospital where the doctor declared him to be dead. He has further stated that the accused lives in the Page 18 of 52 HC-NIC Page 18 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT same faliya opposite his house and that the incident occurred a day prior to Diwali. In the cross-examination of the said witness at the instance of the learned counsel for the accused, it has been brought out that prior to the incident they had cordial relations with Chimkiben and used to go to each other's house. There was no enmity prior to the incident. His daughter Madhu lives separately next to his house. He has stated that when they were taking Ashok in the ambulance he was bleeding but thereafter, he has stated that they did not take him in an ambulance but had taken Ashok to the hospital in a Tempo belonging to the family members of the accused and his (accused's) family members had also come in the Tempo. His family members did not have any dispute with the accused prior to the incident.
13.1 In the first information report, the said witness has stated that Umesh Premabhai Ahir's mother Chimkiben had come to borrow money from his daughter (Madhuben) in the morning and as she had refused to lend any money, Umesh had quarrelled with his daughter and entered into an argument, when Ashok came and intervened, whereupon the accused all of a sudden got provoked and picked up an iron pipe which was lying nearby and struck Ashok on the head and made him bleed and fled. In the meanwhile, the 108 ambulance came to their locality and the ambulance doctor upon examining Ashok pronounced that he was dead and hence, they had brought Ashok in a private vehicle to the Kamrej Government Hospital.
13.2 Thus, from the deposition of the said witness, what emerges is that he is not an eyewitness, but came upon the scene immediately after the incident took place. He, however, Page 19 of 52 HC-NIC Page 19 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT had seen the deceased going back home after making purchases at Kadodra. It is also established that Madhuben was present at the time of the incident; that she was residing next door to the complainant and that the relations between the accused and the family of the deceased were cordial and there was no prior enmity.
14. PW-2 Jivanbhai Prahladbhai, nephew of the deceased and an eyewitness has been examined at Exhibit-12. He has testified that the accused had taken his mother inside his house and his uncle Ashok had come home, at that time, Umesh had asked his uncle as to why he had come to his house and had kicked and felled him. As he had fallen down, Ashok could not get up and Umesh put a foot on him and dealt a blow on his head with the iron pipe. He had gone to rescue his uncle whereupon the accused had fled from the scene. He has further testified that three to four blows had been inflicted on his uncle. In his cross examination, he has stated that on the day of the incident he had not gone for work and that on the day prior to the day of the incident, his mother had refused to give money to the accused and since then he was pestering her and there was an altercation between the accused and his mother but he (the witness) did not pay attention to it. In his cross examination he has stated that the accused did not have the muddamal pipe with him and that he had not inflicted blows with that pipe. He has also stated that in the incident no one other than Ashokbhai was injured and that he had not seen the accused Umesh sustain any injury during the incident. In his cross examination it has also come out that the altercation was going on in front of Umeshbhai's house and several people had gathered there. He has denied that any Page 20 of 52 HC-NIC Page 20 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT scuffle had taken place and has stated that there were only arguments. He has denied that deceased Ashok had caused any head injury to accused Umesh with the iron pipe. He has admitted that upon his sustaining a head injury Umesh had run into the house. He has denied that the people who had gathered there had inflicted a blow on Ashokbhai's head. He has denied that the muddamal pipe was in the custody of his uncle Ashokbhai and that Ashokbhai had inflicted a blow with it.
15. PW-3 Madhuben has been examined at Exhibit-13. She is the sister of the deceased who lives next to his house. She has deposed that Umesh's mother Chimkiben had come to her house to take money and had asked for Rs.100/- from her. It was around Diwali. Chimkiben had come at 8:00 in the evening and she (Madhuben) had told her that she did not have any money and hence, Chimkiben and her son Umesh had harboured a grudge against her. In the afternoon at about 12 o'clock Umesh had come to their house in an intoxicated condition to take money from her. She had refused to give money. Her brother Ashok had gone to Kadodra to buy clothes. Ashok after coming had told Umesh as to why he was hurling abuses during festival days. Thereafter, Umesh took the iron pipe which was lying in the bullock cart and struck her brother on the head with it. After striking him, he fled. He had delivered two blows with the pipe. On account of the pipe blows Ashok had died. His head had cracked on account of the pipe blow. Thereafter, an ambulance was called. Upon calling for the ambulance, a doctor had come who had examined him. At the time of the incident, her mother, sister-in-law, and her brother's children and her son Jivanbhai were present. Her Page 21 of 52 HC-NIC Page 21 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT father Chhanabhai was also present.
15.1 In her cross-examination, it has come out that prior to the incident there was no enmity. They had good relations with the accused and they used to go to each other's houses. Chimkiben used to borrow money from her during festivals and used to return the borrowed money and in case she did not return the money, they would deduct the amount from the money payable towards milk. The accused has cows and buffaloes and is engaged in the business of milk. Apart from them, the accused also used to supply milk to others. They used to take milk in the morning and evening. The incident did not take place on the day when Chimkiben came to ask for money. The incident did not occur on the next day but on the day after. She has further testified that no one other than Ashok was injured in the incident and that she had not seen any injury being caused to Umesh on the head. She has denied that there was a scuffle between the accused and the deceased and has further denied that she has not witnessed the incident.
16. PW-4 Hinaben Ashokbhai is the wife of the deceased. She has deposed that at the time of the incident she had gone to wash clothes at someone else's house when her son Ajay came and told her that Umesh kaka had struck his father on his head with a pipe. He had not said anything else. She had gone running to the place of incident. When she reached there, her husband was dead. He had been injured on the head with a pipe and his head was bleeding. The cause of the incident was that there was a quarrel between Chimkiben and Madhuben. Chimkiben had come to ask for money from Madhuben.
Page 22 of 52HC-NIC Page 22 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT 16.1 In her cross-examination, she has reiterated that she had gone to another falia (colony) for work. When her son came to call her, the incident had already occurred. Her husband was lying at the accused's door. Umesh resides opposite their house. Ashok and Umesh had good relations. The incident did not take place in her presence.
17. PW-5 Gulamhusen Noormohammed who has been examined at Exhibit-16 is a panch witness of the physical condition of the accused. He, however, has not supported the prosecution case and has been declared hostile.
18. PW-6 Subhashbhai Rambhai Patel has been examined at Exhibit-18. He is a panch witness of the discovery panchnama made under section 27 of the Evidence Act (Exhibit-19). While admitting his signature on the panchnama, he has denied any knowledge of the contents thereof and has not supported the prosecution case. The said witness has been declared hostile to the prosecution case and has denied that the panchnama was drawn in his presence.
19. PW-7 Raju Keshavbhai Rathod has been examined at Exhibit-23. He is a neighbour of the deceased as well as the accused and has not supported the prosecution case and has been declared hostile. He, in his cross-examination, however, has admitted that in his statement recorded by the police, he has stated that on 18.10.2009 he was at home on account of the festival and was resting at home in the afternoon when he heard a fight in front of his house and went out of his house and saw that Umesh was quarrelling with Madhuben, in the Page 23 of 52 HC-NIC Page 23 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT meanwhile, at quarter to two in the afternoon, Ashokbhai had come and tried to pacify Umesh who was arguing with Madhuben, at which point of time, there was a scuffle between Ashok and Umesh, when Umesh picked up a pipe lying in front of his house and tried to strike Ashok whereupon Ashok caught his hand and there was a scuffle between them and Umesh was hurt with the pipe due to which the pipe fell down. Thereafter, there was a scuffle between them and Umesh kicked Ashok and felled him on the ground and thereafter picked up the pipe and struck Ashok on the head due to which blood started coming out of Ashok's head and he started writhing and Umesh took the pipe and ran away. A 108 ambulance came and the doctor upon examining Ashok informed that he was dead. He has thereafter denied having said that he had witnessed the incident and that Umesh had picked up the pipe and inflicted a blow on Ashok due to which he died.
20. PW-8 Suman Lallubhai Rathod has been examined at Exhibit-24. She too is a neighbour who has not supported the prosecution case and has been declared hostile.
21. PW-9 Dr. Narendrakumar Ramdev has been examined at Exhibit-25. He is the Medical Officer, who carried out the autopsy of the body of the deceased. He has testified as regards the nature of the injury sustained by the deceased. He has deposed that the injuries may be caused by a blunt instrument and that the injuries were sufficient in the ordinary course of nature to cause death. From his deposition, it emerges that the deceased had sustained more than one injury.
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22. PW-12 Jiyauddin Zummamiya Chauhan, the Investigating Officer, has been examined at Exhibit-31. He has deposed that he had drawn the panchnama of the scene of offence in the presence of the FSL authorities on 19.10.2009. That the weapon used by the accused for the purpose of committing the offence had been recovered under section 27 of the Evidence Act. He has deposed regarding the various panchnamas drawn during the course of investigation. In his cross-examination he has admitted that as per the first information report except for the deceased no one else had sustained any injury. He has further admitted that the scene of offence is in front of the house of the accused. He has also admitted that at the time when the accused was arrested there was a bandage on his head as he had availed of treatment at the Government Health Centre. He has also admitted that the accused had lodged an NC (non-cognisable) complaint at Kamrej Police Station being N.C.17/09 to the effect that "At that time Ashok Chhana Prajapati who resides in front of my house came with a pipe and dealt a blow on above the right side of my ear and upon a fight taking place people had gathered and hence I had fled. I am not aware as to what happened thereafter". He has further admitted that he has recorded the statements of Madhuben Prahladbhai Thakor, Sumanben Rathod and Rajubhau Keshavbhai Rathod and from their statements it is revealed that in connection with the pipe, there was grappling and pushing and pulling between the deceased and the accused. He has admitted that as per the arrest panchnama of the accused the shirt which he was wearing had blood stains. He has denied the suggestion that the muddamal pipe was recovered on the basis of a prepared panchnama and that the Page 25 of 52 HC-NIC Page 25 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT pipe was recovered from the scene of offence. A contradiction has been sought to be brought out as regards the testimonies of Jivanbhai and Madhuben to the effect that in their statements recorded by him, they had stated that Umesh had picked up the pipe to strike Ashok who tried to save himself whereupon Umesh was hurt on the head by the pipe that he was holding and the pipe fell down. Another contradiction which is brought out is that both Jivanbhai and Madhuben had stated that the accused had struck a single blow.
23. PW-13 Dr. Pareshkumar Sunilkumar Tailor has been examined at Exhibit 42. He is the Medical Officer who was discharging duties at Kamrej Community Health Centre and had given treatment to the accused. He has testified that the accused had come for treatment with a police yadi at 11:30 at night on 18.10.2009 and that he had sustained two injuries. One was in the nature of an abrasion on the left side of his head on the temporal region and another was a bruise on the palm of his left hand. He has proved the medical certificate Exhibit-43 and has further opined that the injury could be caused by the muddamal iron pipe. In his cross examination he has admitted that the injured Umesh was brought in connection with N.C. Compliant No.17/09 and as per the yadi the opposite side had hit him with an iron pipe. He has admitted that the injury sustained by the accused was on a vital part of his body and that the case related to head injury.
24. PW-14 Chandubhai Kanjibhai Patel is the P.S.O. who had registered the non-cognisable offence lodged by the accused and has produced a copy thereof at Exh.46.
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25. As per the NC complaint lodged by the accused, he was carrying on the business of animal husbandry. In front of his house, across the road, Chanabhai Bhulabhai Halpati's house was situated where he resided with his family. His mother Chimki had gone to borrow money from, Madhuben daughter of Chhanabhai, who resided opposite his house and she had refused, in connection with which, on that day at 2 o'clock in the afternoon arguments and quarrel with Madhuben took place on the road in front of his house and at that time Ashok Chhanabhai Halpati who resides opposite his house came with a pipe and inflicted a blow on his head above the left ear and upon a fight taking place and people gathering there, he had fled from there and does not know what happened thereafter.
26. During the course of investigation, the Investigating Officer had collected the clothes of the deceased as well as of the accused and had sent the same to the Forensic Science Laboratory for the purpose of testing. As per the serological report submitted by the Scientific Officer Cum Asstt. Chemical Examiner, the clothes of the deceased as well as the accused were found to be stained with blood of A Group and the blood samples of the deceased as well as the accused were also found to be of A Group.
27. In the backdrop of the aforesaid evidence which has come on record, the culpability of the appellant convict is required to be examined.
28. The main defence of the appellant is that he had fled from the scene after sustaining an injury and the crowd that had gathered there must have inflicted injuries on the Page 27 of 52 HC-NIC Page 27 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT deceased.
29. Insofar as the defence of the appellant that he had fled from the scene of offence and that the crowd that had gathered there must have inflicted injuries on the deceased is concerned, the same has to be stated only to be rejected. From the defence version, it is an admitted position that the quarrel took place with Madhuben, sister of the deceased on account of her not lending money to Chimkiben, the mother of the appellant. In his defence the appellant has stated that Madhuben and Ashok were quarreling with Chimkiben, however, none of the witnesses have deposed regarding the presence of Chimkiben at the scene of offence. Therefore, the presence of Chimkiben at the scene of offence is not established. However, even as per his defence, the presence of the appellant-accused at the scene of offence at the time of the incident is clearly established. From the testimony of Madhuben, which finds support in the testimony of Jivanbhai, the prosecution had duly established that the appellant had inflicted blows on the head of the deceased with the iron pipe which resulted into his death. Madhuben is a natural witness, inasmuch as even in his defence, it is the case of the appellant that there was a quarrel between his mother and Madhuben in connection with Madhuben refusing to lend money to his mother and that Madhuben and Ashokbhai were hurling abuses at his mother and he had intervened to pacify them. Therefore, Madhuben's presence at the scene of offence cannot be doubted as the genesis of the incident is the quarrel with Madhuben. From the cross examination of the said witness, the defence has brought out that there was no prior enmity between the parties and that on the contrary the relations Page 28 of 52 HC-NIC Page 28 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT between the family of the accused and the family of the deceased were cordial and they used to visit each other's homes. In these circumstances, Madhuben, who is the sister of the deceased, would have no reason to falsely implicate the appellant and allow the real culprit to go scot free, on the contrary she would be interested in pointing out the real assailant who was responsible for killing her brother. Madhuben's testimony is further corroborated by the discovery panchnama drawn by the Investigating Officer which records that the accused had stated that he was willing to show the weapon which he had used for commission of the offence, accordingly, a panchnama came to be drawn under section 27 of the Evidence Act (Exhibit-19) which shows that the accused had led the Investigating Officer along with the panchas to the road going towards Valthan Patiya and on the southern end from the road there was a small rain water open gutter/drain and there were some shrubs and grass growing in the gutter and the accused had bent and stretched his hand and pulled out an iron pipe from the wild shrubs growing there. While the panch witness had not supported the prosecution case, the panchnama has been proved through the testimony of the Investigating Officer. Moreover, the clothes of the deceased as well as the appellant were found to have blood stains of A Group. The blood group of the deceased and accused is the same viz. A Group. However, considering the nature of the injury sustained by the appellant, which is in the nature of abrasion, there is no question of there being any bleeding. Evidently, therefore, the blood stains on the clothes of the appellant are also of the deceased. Having regard to the testimony of the eyewitness; the discovery of the iron pipe at the instance of the accused; and the FSL report; the Page 29 of 52 HC-NIC Page 29 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT involvement of the appellant in the offence is clearly established. Therefore, the question of a clean acquittal does not arise.
30. It has been contended on behalf of the appellant that the offence was committed on the spur of the moment when a quarrel ensued. That it was in the heat of passion and on the spur of the moment without any premeditation that the injuries came to be inflicted on the deceased. It was contended that from the contradictions brought out through the testimony of the Investigating Officer, it is apparent that there was a sudden quarrel and a scuffle ensued and in the melee the appellant struck one blow without any intention of causing any injury to the deceased. According to the learned counsel, the appellant had no intention to cause the injuries that later on proved to be fatal and that since he had no intention to cause such injury as is likely to cause death and there was no premeditation, nor intention to kill, the case would fall within the ambit of Exception 4 to section 300, IPC and would amount to culpable homicide not amounting to murder. It was submitted that on the evidence on record, no offence of murder has been made out and therefore, this is only a case of culpable homicide not amounting to murder punishable under section 304 Part II, IPC.
31. Exception 4 to section 300, IPC provides that 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. From the facts as emerging from the record, it is manifest that the incident took place suddenly and was not a premeditated one. However, on a plain Page 30 of 52 HC-NIC Page 30 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT reading of Exception 4 it is clear that the mere fact that the culpable homicide was not a premeditated one would not amount to the offence not being murder. The other ingredients of Exception 4 would also be required to be satisfied.
32. At this juncture reference may be made to the decision of the Supreme Court in Kikar Singh v. State of Rajasthan, (supra) wherein the court has held thus:
"8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder.Page 31 of 52
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9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4. In Pandurang Narayan Jawalekar v. State of Maharashtra, (1979) 1 SCC 132, the facts proved were that the appellant gave a blow on the head of the deceased old man who was advising him not to quarrel. The injury caused to the brain from one end to the other resulted in fracture as could appear from the evidence of the doctor. It would show that the accused must have struck the blow on the head of the deceased with an iron bar with very great force. Accordingly it was held that Exception 4 does not apply though there was sudden quarrel and that the fight was not premeditated to cause death. It must be shown that the injury caused is not a cruel one. The conviction for offence under Section 302 by the High Court reversing the acquittal by trial court was upheld.
10. If the weapon used or the manner of attack by the assailant is out of all proportion to the offence given, that circumstance must be taken into consideration to decide whether undue advantage has been taken. Where a person, during the course of a sudden fight, without premeditation and probably in the heat of passion, took undue advantage and acted in a cruel manner in using a deadly weapon there was no ground to hold that his act did not amount to murder. Therefore, if the appellant used deadly weapons against the unarmed man and struck him a blow on the head it must be held that he inflicted the blows with the knowledge that they would likely to cause death and he had taken undue advantage.Page 32 of 52
HC-NIC Page 32 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT He did not stop with the first blow, he inflicted two more blows on the fallen man and the third one proved to be fatal. He acted cruelly with no justification. By his conduct the appellant denied himself of the benefit of Exception 4 to Section 300 IPC."
33. In Babulal Bhagwan Khandare v. State of Maharashtra, (supra) the Supreme Court held thus:
"17. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1.
18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight;
(c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that Page 33 of 52 HC-NIC Page 33 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning.
A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan, (1993) 4 SCC 238, it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that by using the blows with the knowledge that they were likely to cause death he had taken undue advantage. In the instant case blows on vital parts of unarmed persons were given with brutality. The abdomens of two deceased persons were ripped open and internal organs had come out. In view of the aforesaid factual position, Exception 4 to Section 300 IPC has been rightly held to be inapplicable.
34. From the principles propounded in the above decisions, Exception 4 to section 300, IPC can be invoked if the death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or having acted in a cruel or unusual manner; and (d) the fight must be with the person killed. It is not sufficient to show that there was a sudden quarrel and there was no premeditation. In the present case, undisputedly the offence was committed without Page 34 of 52 HC-NIC Page 34 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT any premeditation. Therefore, the first condition for invoking Exception 4 is duly satisfied.
35. The next ingredient is that the offence should have been committed during the course of a sudden fight. As to what constitutes a "sudden fight" has been explained in both the above decisions. A sudden fight must be a mutual combat and not a one side track. There must be mutual combat or exchanging blows on each side. A fight is a combat between two or more persons whether with or without weapons. Adverting to the facts of this case, the facts as revealed from the testimonies of the witnesses show that the appellant had picked up a quarrel with Madhuben on account of her not lending money to his mother Chimkiben and was hurling abuses at her, at which point of time the deceased stepped in to pacify the appellant. However, this act of the deceased appears to have enraged the appellant, who picked up an iron pipe lying nearby and sought to inflict a blow on the deceased. From the contradictions brought out in the testimonies of the eyewitnesses during the course of cross examination, it appears that the deceased tried to fend off the blow and there was some grappling and the pipe initially fell on the head of the appellant, who thereafter inflicted two to four blows on the head of the deceased. From the sequence of events, it is not possible to state that there was a mutual combat and that the appellant and the deceased were exchanging blows so as to constitute a sudden fight. The entire episode is a one track event and nothing can be attributed to the deceased that can be said to have flared up passions or heated up the blood so as to muffle the voice of reason. As a necessary corollary therefore, though there was a sudden quarrel there was no Page 35 of 52 HC-NIC Page 35 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT fight within the meaning of such expression as envisaged in Exception 4 to section 300, IPC. The second ingredient for availing of the benefit of Exception 4, therefore, is clearly not satisfied.
36. The next ingredient which is required to be satisfied for invoking Exception 4 to section 300, IPC is that the offender must not have taken undue advantage or acted in a cruel or unusual manner. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. Where the deceased is unarmed and does not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under section 302. To attract Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4. In Kikar Singh's case (supra) the Supreme Court held that if the appellant used deadly weapons against the unarmed man and struck him a blow on the head it must be held that he inflicted the blows with the knowledge that they would likely to cause death and he had taken undue advantage. He did not stop with the first blow, he inflicted two more blows on the fallen one and the third one proved fatal. He acted cruelly with no justification. By his conduct the appellant denied himself the benefit of Exception 4 to section 300, IPC. Reverting to the facts of this case, the deceased was unarmed Page 36 of 52 HC-NIC Page 36 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT and intervened in the quarrel between the appellant and Madhuben to pacify the appellant, who picked up an iron pipe lying nearby and dealt more than one blow on the head of the deceased. The fact that more than one blow was inflicted on the head of the deceased is borne out from the postmortem report as well as the testimony of the medical witness. The fact that the appellant was armed whereas the deceased was not, leads to the inference that the appellant took undue advantage and the fact that the appellant did not stop at one blow clearly shows that he acted cruelly without any justification. Consequently, Exception 4 cannot be invoked in the present case. Additionally, the last ingredient which is required to be satisfied viz., that the fight must have been with the person killed, is also not satisfied, inasmuch as, in the present case, the quarrel was between Madhuben and the appellant and there was no fight with the deceased. The appellant, therefore, by his conduct has denied himself the benefit of Exception 4 to section 300, IPC.
37. Cases of culpable homicide amounting to murder and those not amounting to murder, both, fall under the category of unlawful homicides. Culpable homicide is not murder when the case is brought out within the five exceptions to section 300, IPC. But even if none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required to bring the case under any of the four clauses of section 300, IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of section 300, IPC, namely, firstly to fourthly, the charge of murder would not be made out and the case may be one of culpable homicide not Page 37 of 52 HC-NIC Page 37 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT amounting to murder as described under section 299, IPC.
38. In the aforesaid backdrop, the principal question that now falls for consideration is whether the offence disclosed by the facts and circumstances established by the prosecution against the appellant, is murder or culpable homicide not amounting to murder.
39. Before adverting to the merits of the case, it may be germane to refer to certain decisions of the Supreme Court which bring out the distinction between "culpable homicide not amounting to murder" as envisaged under section 299, IPC and "murder" as envisaged under section 300, IPC. The locus classicus in this regard is the decision of the Supreme Court in Virsa Singh v. State of Punjab, AIR 1958 SC 465, wherein it has been held thus:
"10. It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300 "thirdly" was quoted:
"If it 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 course of nature to cause death."
It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death".
11. This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, the "thirdly"
Page 38 of 52HC-NIC Page 38 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT would be unnecessary because the act would fall under the first part of the section, namely--
"If the act by which the death is caused is done with the intention of causing death."
In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender:
"If it is done with the intention of causing bodily injury to any person."
It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present.
12. Once that is found, the enquiry shifts to the next clause--
"and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man's intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining
--
"and the bodily injury intended to be inflicted"
is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind Page 39 of 52 HC-NIC Page 39 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.
13. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that "twelve good men and true" could readily appreciate and understand.
14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly";
15. First, it must establish, quite objectively, that a bodily injury is present;
16. Secondly, the nature of the injury must be proved; These are purely objective investigations.
17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
18. Once these three elements are proved to be present, the enquiry proceeds further and, Page 40 of 52 HC-NIC Page 40 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT
19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is 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.
20. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."
40. Thus, according to the rule laid down in the above case, even if the intention of the 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'.
41. The Supreme Court, in State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4 SCC 382, reiterated the principles propounded in Virsa Singh v.State of Punjab (supra) and held thus:
Page 41 of 52HC-NIC Page 41 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT "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 greatest 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 minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords 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 Subject to certain
culpable homicide if the exceptions culpable
act by which the death is homicide is murder if the
caused is done -- act by which the death is
caused is done --
INTENTION
(a) With the
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intention of causing (1) With the intention
death; or of causing death; or
(b) With the (2) With the intention
intention of causing such of causing such bodily
bodily injury as is likely to injury as the offender
cause death; or 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 (4) With the knowledge
knowledge that the act is that the act is so
likely to cause death 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 rea requisite 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 internal 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 Page 43 of 52 HC-NIC Page 43 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT 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 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 Page 44 of 52 HC-NIC Page 44 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala, AIR 1966 SC 1874, is an apt illustration of this point."
42. In the facts and circumstances of the present case, in order to sustain the charge under section 302, IPC the prosecution has to establish the ingredients of clause "thirdly" to section 300, IPC viz., that the act by which the death is caused was done with the intention of causing bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death.
43. Viewed in the light of the principles enunciated in Virsa Singh v. State of Punjab (supra), for the purpose of proving that the case falls under section 300 "thirdly", the prosecution must first establish, quite objectively, that a bodily injury is present. In this regard, from the testimonies of the eye witnesses, the medical officer as well as from the contents of the inquest panchnama of the body of the deceased and the post-mortem report, it is evident that the prosecution has clearly established the presence of bodily injuries.
43.1 Secondly, the prosecution must prove the nature of the injury. In this regard reference may be made to the testimony of Dr. Narendra Kumar Ramdev, the Medical Officer, Kamrej Community Health Centre who performed the autopsy of the deceased. The said witness has proved the post-mortem report Exhibit-27 and has testified that the injuries shown in column 17 of the post-mortem report are ante mortem. As per the post-mortem report the deceased had sustained the following bodily injuries:
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- one blunt wound from left temporo parietal suture to mid parietal suture in longitudinal direction end size are 8cm x 4 cm x 3cm.
- left parietal bone depressed fracture from temporo parietal joint to mid parietal region in longitudinal direction and size are 6cm x 2cm x 1 cm.
- second blunt wound present on the left temporal region and in longitudinal direction and size - 7cm x 4cm x 3cm.
- left temporal bone depressed fracture in longitudinal direction size are 6 cm x 4cm x2 ½ cm.
- superficial abrasion on the left shoulder region is 3cm x 2cm x 2 cm in size Thus, the nature of the injuries sustained by the deceased has been duly proved.
43.2 Thirdly, the prosecution must prove that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other injury was intended. For this purpose, it would be necessary to refer to the testimonies of the witnesses as regards the manner in which the incident had taken place. In this case, the star witness is Madhuben, sister of the deceased, whose presence at the scene of offence is natural and in fact, even as per the defence of the accused she was present at the scene of offence. As per the testimony of Madhuben, prior to the incident Chimkiben had asked her for a loan of Rs.100/-, however, as she did not have the money she had refused to do so. On the day of Diwali at 12 o'clock in the afternoon the accused had come to her in an intoxicated condition to borrow money from her and that she had refused to give him money.
Page 46 of 52HC-NIC Page 46 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT Her brother Ashok had come from Kadodra after purchasing clothes and had told Umesh as to why he was hurling abuses on a festival day, whereupon Umesh picked up an iron pipe lying in a cart and inflicted a blow on Ashok's head and then fled. She has further deposed that he had dealt two blows. The witness has been extensively cross examined by the learned advocate for the appellant. While it is true that there are certain embellishments in the testimony of the witness as regards the accused being intoxicated; however, the core of her testimony has not been shaken. On the contrary, during the course of cross examination of this witness, it has been brought out that there was no prior enmity with the accused and that the two families had cordial relations. Evidently, therefore, there is no reason for the witness to falsely implicate the appellant. The witness has denied the suggestion that in her police statement she had stated that there was grappling between the deceased and the accused and that when the accused attempted to inflict a blow on her brother he tried to fend off the blow by catching hold of the accused's hand whereupon the pipe fell on the head of the accused and has further stated that during the course of the entire incident she has not seen the accused sustain any injury. Though the witness has been subjected to detailed cross examination, the defence has failed to discredit the veracity of the version given by her. Witness Jivanbhai, son of Madhuben and nephew of the deceased has also been examined as an eye witness. He has deposed that the accused had asked for money from his mother and his mother had refused to do so, whereupon he was hurling abuses at her and his mother had told him not to use abusive words. That the accused had taken his mother inside the house and his uncle Ashokbhai had returned home Page 47 of 52 HC-NIC Page 47 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT from Kadodra. Umesh asked the deceased why he had come to his house and kicked him and felled him and because of the fall he could not get up and Umesh put a foot on him and dealt a blow with the iron pipe on his head and that he had inflicted three to four blows on the head of the deceased. The defence has brought out certain inconsistencies in the testimony of the witness, however, to the extent of the manner in which the incident took place and the accused having dealt blows on the head of the deceased, the defence has not been able to shake the credibility of the said witness. Besides, even if the evidence of this witness is discarded, the testimony of Madhuben alone is sufficient to establish the involvement of the appellant as she is an eye witness whose presence at the scene of offence cannot be disputed having regard to the facts and circumstances of the case. In Takdir Samsuddin Sheikh v. State of Gujarat, (supra) the Supreme Court in the context of the evidence of an interested witness has held thus:
"(i) While appreciating the evidence of witness considering him as the interested witness, the court must bear in mind that the term "interested" postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some other reason. (Vide Kartik Malhar v. State of Bihar3 and Rakesh v. State of M.P.4)
ii) This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of Page 48 of 52 HC-NIC Page 48 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT truth, is cogent, credible and trustworthy or otherwise.
The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. [See Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, Sunil Kumar v. State (Govt. of NCT of Delhi) (2003) 11 SCC 367, Namdeo v. State of Maharashtra, (2007) 14 SCC 150 and Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91] The Supreme Court in the case of Kuriya v. State of Rajasthan (supra) has held thus:
"30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur v. State of Gujarat, (2012) 5 SCC 724, Narayan Chetanram Chaudhary v. State of Page 49 of 52 HC-NIC Page 49 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT Maharashtra, (2000) 8 SCC 457, Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 and Sukhchain Singh v. State of Haryana, (2002) 5 SCC 100."
As noticed earlier, from the cross examination of Madhuben and the complainant, the defence has clearly brought out that there was no prior enmity between them and the accused and that relations between them were cordial. Under the circumstances, witness Madhuben had no reason to falsely implicate the accused and let the real culprit go scot free. The witness being closely related to the deceased would be interested in seeing that the real perpetrator of the offence is brought to book. Witness Madhuben, being a rustic villager, may have improved upon the version stated before the police; however, the core of her testimony remains unscathed and has not been shaken by the defence. Therefore, through the testimonies of the above two witnesses, and more particularly the testimony of Madhuben, the prosecution has duly established that the appellant had picked up an iron pipe lying nearby and inflicted blows on the head of the deceased. From the evidence which has come on record, there is no material to show that the appellant did not intend to inflict any blow on the body of the deceased or that he intended to strike the blow on any other part of the body of the deceased but due to unexpected circumstances, the blow landed on the head of the deceased. The prosecution has, therefore, duly established that the intention was to cause that particular bodily injury that the deceased had sustained.
43.3 The above three elements having been proved to be present, the next stage of the inquiry is to examine as to whether the prosecution has proved that the injury of the type Page 50 of 52 HC-NIC Page 50 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT just described made up of the three elements set out above is 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. In this regard, it would be necessary to refer to the testimony of PW-9, Dr. Narendra Kumar Ramdev, who carried out the autopsy of the body of the deceased and has been examined at Exhibit-25. This witness has deposed at regards the nature of injuries sustained by the deceased and has opined that the cause of death was due to the massive internal haemorrhage of the head; that such injuries could be caused by a pipe; and that such injuries were sufficient in the ordinary course of nature to cause death. The said witness has been cross examined by the learned counsel for the appellant, but nothing has been brought out to shake the credibility of the said witness. Therefore, the prosecution, through the testimony of the said witness has duly established that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death.
43.4 Since the above four elements have been established by the prosecution, the offence is murder under section 300 "thirdly", IPC punishable under section 302.
44. Upon a careful examination of the facts and circumstances of this case, this court finds that the appellant has dealt more than one blow on the head of unarmed deceased with an iron pipe. Indubitably, the head being a vital part of the body, the appellant would have been aware of the fact that inflicting a blow of this nature would be likely to cause the death of the deceased. Besides, he has not stopped at one Page 51 of 52 HC-NIC Page 51 of 52 Created On Tue Jan 12 02:37:21 IST 2016 R/CR.A/539/2011 CAV JUDGMENT blow, but has dealt more than one blow on the head of the deceased and the injuries caused thereby have been proved to be sufficient in the ordinary course of nature to cause death. Accordingly, it is held that the offence is one of murder and the appellant was rightly convicted and sentenced to imprisonment for life under section 302, IPC. The trial court did not commit any error warranting interference by this court.
45. In the result, the appeal fails and is, accordingly, dismissed.
(HARSHA DEVANI, J.) (G.B.SHAH, J.) zgs Page 52 of 52 HC-NIC Page 52 of 52 Created On Tue Jan 12 02:37:21 IST 2016