Gujarat High Court
Firoz @ Adil Hanif Juneja Sandhi vs State Of Gujarat on 28 October, 2021
Author: A.J.Desai
Bench: A.J.Desai
R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1252 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI Sd/-
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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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 NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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FIROZ @ ADIL HANIF JUNEJA SANDHI
Versus
STATE OF GUJARAT
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Appearance:
MR EKANT AHUJA, ADVOCATE for
MR AD SHAH, SENIOR ADVOCATE for the Appellant
MR JK SHAH, APP for the Respondent - State
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 28/10/2021
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. By way of present Criminal Appeal under Section 374 of Page 1 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 the Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC"), the appellant - original convict has challenged the judgment and order dated 17.06.2020 passed by the Additional Sessions Judge, Rajkot in Sessions Case No.87 of 2012, by which, the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as "IPC") and sentenced to undergo life imprisonment with fine of Rs.5,000/- and in default of payment of fine, to undergo six month's simple imprisonment and also under Section 188 of the IPC and sentenced to undergo simple imprisonment with fine of Rs.250/- and in default of payment of fine, to undergo seven day's simple imprisonment.
2. The Appeal came to be admitted on 11.12.2020. The Registry has received the Record and Proceedings along with the paper-book which has been supplied to the learned advocate for the respective parties.
3. The case put forward by the prosecution is as under :
3.1 That one Bilalkhan Sabbirkhan Pathan has lodged a complaint before the police that on 28.05.2011 at about 9:00 p.m., while he was going on his two wheeler - Scooty Pep bearing registration No.GJ-03-CJ-9200 along with Irum - daughter of his uncle and reached near the house of Nazmaben, the present appellant -
Adilbhai, who is an accused - appellant herein, was crossed with his red coloured motorbike - Pulsar and has stopped his bike infront of Bilalkhan's vehicle. The complainant - Bilalkhan has said that, "do you want to have collusion with my vehicle ?" Therefore, the accused had started abusing the complainant and thereafter the accused rushed towards the complainant with knife in hand and inflicted blow to the complainant on left side of ribs. Due to that, the complainant had started bleeding and therefore, the cousin of the complainant -
Page 2 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 Irum, aged about 12 years, who was a pillion rider, had started shouting. The mother of the complainant - Farzanaben and Nazmaben Akbarkhan Pathan as well as the cousin brother of the complainant Wasimkhan Akbarkhan rushed there and the present appellant, who is accused in the offence, has run away from the scene of offence. Thereafter, cousin of the complainant - Wasimkhan Akbarkhan Pathan has taken the complainant to the Rajkot Civil Hospital on his motorcycle. Since the complainant was conscious and his treatment was going on, he has given a complaint against the appellant - accused for the incident before the Police Sub Inspector - Bharatsinh Banesinh Dodiya of Gandhigram Police Station, Rajkot, which is at Exh.115, for the offences punishable under Section 326, 504 and 188 of the IPC.
3.2 Thereafter, investigation was carried out, Panchnama of the scene of offence was drawn and recovered the vehicle - Scooty. Thereafter, some surgery was carried out on the complainant, as advised by the medical persons. Thereafter, the complainant has expired during his treatment on 04.06.20211, accordingly, the police has added Section 302 of the Indian Penal Code. Thereafter, the present accused has caught by the officers of the Pradyumnanagar Police Station, Rajkot in connection with another offence and thereafter, the accused was arrested by way of transfer warrant by the Gandhigram Police Station and thereafter his motorbike bearing registration No.GJ-10-BA-0186 is also recovered which the accused has sold to some automobile shop. Thereafter, the weapon used in the offence is recovered and blood sample of the accused is also taken and sent to the FSL for the further investigation and after receiving the report from the FSL and after completion of investigation, a charge-sheet is filed under Sections 302, 504 and 188 of the Indian Penal Code before the competent Court, who, in Page 3 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 turn, commited the case to the learned Sessions Court having jurisdiction to try the case on hand and the case was numbered as Sessions Case No.87 of 2012.
3.3 The charge came to be framed against the present appellant for the offence punishable under Sections 302, 504 and 188 of the IPC at Exh.10. The charge framed against the appellant was denied by the appellant and he pleaded not guilty and accordingly, the direction proceeded with the trial.
3.4 The prosecution has examined many witnesses and produced several documentary evidences on record. The appellant accused did not examine any witness in support of his case. The Sessions Judge, after hearing the submissions made on behalf of the appellant as also the learned Public Prosecutor and after scrutinizing the evidence placed and proved on record by the prosecution, convicted the present appellant and sentenced him to undergo life imprisonment with fine.
3.5 Hence, the present appeal before this Court.
4. Learned advocate Mr. Ekant Ahuja on behalf of learned senior advocate Mr. A.D. Shah, has appeared on behalf of the appellant and at the outset he has submitted that, the appellant does challenge the conviction. He would submit that he does not challenge the involvement of the appellant in the crime but would submit that he would like to argue and satisfy this Court that the case of the appellant is case of culpable homicide not amounting to murder and would request to convert the conviction and sentence accordingly under Section 304(Part II) of the IPC.
Page 4 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 4.1 In support of his submissions, he has taken us through the deposition of - Irum Firozkhan Pathan - Exh.81. She was of the age of 12 years at the time of incident. She has deposed that while we (the complainant and the witness) were passing through the Bajarangvadi Street No.10 near the house of the complainant, the present accused has rushed with his red coloured Pulsar motorbike and kept infront of us with an intention to collide. Therefore, Bilalbhai has asked accused that do you want to have collision with his Scooty and therefore, the present accused - Adil started abusive language and when the complainant has asked him not to use filthy language, the appellant has rushed towards the complainant with knife and has inflicted blow on the left side of ribs, and thereafter the witness - Irum has shouted and the mother of the complainant had rushed at the scene of offence but the accused has pushed me and run away from there toward Momin Society, and thereafter Rafiqbhai, Vasimbhai and other neighbours have also come to the scene of offence and Rafiqbhai and Vasimbhai have taken the complainant to the Rajkot Civil Hospital on his Honda motorbike. Thereafter, Gandhigram Police, Rajkot started investigation about 0:45 hours on 29.05.2011 and also inquired her about scene of offence and she has taken them at the scene of offence and the police has collected blood stain, dust particles, etc., from there. The said witness has taken extensively on behalf of the defense and has put forward the question regarding the blow inflicted on the complainant and she has categorically stated that, one blow is inflicted on the complainant by the accused and she was standing just two feet away from the scene of offence and the reason for that is that when the complainant has asked the accused to drive his vehicle in proper manner, the accused has started abusing the complainant and thereafter inflicted knife blow.
Page 5 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 4.2 The prosecution has also examined another witness i.e. PW-14 - Asifbhai Ismailbhai Khokhar at Exh.113. But, it is pertinent to note that he has not seen the commission of offence and was reached at the scene of offence subsequently.
4.3 The prosecution has also examined PW-8, Medical Officer
- Dr.Jamnadas Vitthaldas Makwana at Exh.40. The said witness has deposed that on 28.05.2011 at about 9:43 p.m., he was on duty as Outdoor Medical Officer in the Rajkot Civil Hospital and at that point of time, the relative of the complainant had come to the hospital and upon inquiry, he found that in the Bajrangvadi area, the patient i.e. Bilalkhan was injured with knife blow by some unknown person. He has also deposed that when he asked the question to the patient, the patient could not give the proper answer and on the left side of the chest, he found one deep stab wound about 1.5 inch of length and 0.75 inch of width and he was bleeding. On 03.06.20211, the x-ray of the patient - Bilalbhai was taken and it was found that some liquid is stored in left side of the chest and it was also found that "surgical emphysema intra cavity drainage tube" and sonography of the chest and abdominal was also carried out, which is found normal. The patient was admitted in the Surgical Department No.6 and subsequently, on 04.06.2011, he was expired during the course of his treatment. For which, the said witness has given certificate that the said injury can be caused by the knife and accordingly, he has certified the same. He has also deposed that he has produced some medical papers at the time of giving his deposition which is running into 140 pages and he has also brought with him three x-ray plates and has requested to take the same on record as documentary evidence and the lawyer for the accused has also requested the trial Court to give exhibit to such documentary evidence, however the learned Public Prosecutor somehow raised objection for accepting Page 6 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 such vital documentary evidence of treatment on record. The said witness is extensively cross-examined by the defense lawyer, where he was specifically asked a question regarding the cause of death in such circumstances due to any other complication or septicemia, but the witness has categorically deposed in his cross-examination that, the deceased has received only one injury with blow of knife.
4.4 The prosecution has further examined PW-9 - Dr. Bipinkumar Jentilal Vidja at Exh.54. He has performed postmortem of the deceased and he has deposed that from the said dead-body, he found one stitch wound which is in two parts, one is of 1 c.m. and second is of 2 c.m. in length. He has further deposed that in the middle portion of abdominal, he has found stitch wound which is about 23 c.m. in length. He has further deposed that he has also found right side of the nipple ileostomy wound of 7 c.m. of length. He has also found the surgical drainage wound on the different side on the chest. He has also deposed that the cause of death is 'Death due to cardio respiratory failure on account of septisemia following extensive intra abdominal injury'.
4.5 The prosecution has also examined PW-10 - the Executive Magistrate - Tajsing Kalubhai Damor at Exh.64. He has supported the Dying Declaration by saying that he has taken the signature of the doctor for the verification that the patient is conscious to depose. It is pertinent to note that the Dying Declaration was recorded on 29.05.2011 i.e. next day after the incident occurred.
4.6 The prosecution has also examined PW-15 - Bharatsinh Banisinh Dodiya at Exh.115, who has taken the complain at the hospital, who was serving as PSI of Gandhigram Police Station, Rajkot. He has also supported the complaint of the complainant and Page 7 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 has deposed that he has recorded the statement of Irumben and other witnesses. He has admitted in his cross-examination that Irumben has not deposed in her statement about the second attempt to inflict the blow by the accused.
4.7 The prosecution has further examined PW-19 - Ajitkumar Dayashankar Shrivastava, at Exh.140, who is Deputy Superintendent of Police, who has arrested the accused in connection with another offence.
4.8 Therefore, by taking us with the above relevant depositions, the learned advocate for the appellant has submitted that most surprising and shocking facts revealed in the FIR clearly established that the evidence of PW-15 - Bharatsinh Dodiya (Exh.115) clearly reflects falsehood about the narration of events by the deceased - complainant - Bilalkhan in his complaint. The Investigating Officer has stated that Bilalkhan has stated about the name of accused - Firozbhai @ Adil Hanifbhai Juneja coming on Pulsar Motorbike. This is clear inclusion of full name of the accused in format of Section 154 Report. He has also submitted that the incident took place in which the incident took place and in that unpremidatated assault, by which, one injury is caused, it cannot be said that accused intended to inflict injury which was sufficient in ordinary course of nature to cause death, more particularly when the medical evidence does not conclusively establish that the injury was sufficient in ordinary course of nature to cause death. Furthermore, it is submitted that the medical evidence also revealed that it was development of septicemia which can be for many reasons even during treatment also, then the injury cannot be prima facie considered to be sufficient in ordinary course of nature to cause death and thus, he has submitted that the trial Court has committed Page 8 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 an error in finding the accused guilty of culpable homicide amounting to murder punishable under section 302 of IPC. He has further submitted that the medical officer recorded history of assault by knife at Exh. 41 by mentioning that the blow inflicted by unknown person at Bajrangvadi area. He has submitted that the medical officer has also in his cross-examination reveled that the patient was not in a proper state of mind for giving answer and on examination, oblique incised wound - 1.5" X 0.75" x Cavity deep on left side chest wall axillary line - 6 th inter coastals line. Bleeding is present. He has further submitted that cross-examination of the said Doctor revealed that the patient was not in a position to answer the question and history was given by a person who accompanied the patient. The patient was immediately transfer to emergency ward after preliminary treatment and he had not taken any stitches in the injuries. The Medical Officer also admitted that he has not seen any injuries on intestine or diaphragm. He has argued by referring the examination of the Medical Officer - Dr. Bipinkumar, who performed the postmortem, who noticed 6 injuries as indicated above and therefore, he has submitted that it appears that injuries No. 3 to 6 are surgical wounds during performance of operations and post operative treatment care. He has also submitted that the cause of death, according to medical officer, was due to cardio respiratory failure on account of septicemia following extensive intra abdominal injury. The internal abdominal injury was relating to external injury No. 2. Similarly injury No.3 Ilieostomy was on internal examination was found on splenic flexures. Thus, the injuries on abdominal are resultant effect of injury No.2, which was on abdominal. External injury No. 1 of left side of chest was not responsible for injuries No.2 and 3. It is further submitted by learned advocate for the appellant that, injury No. 3 Ileostomy is performed surgery to make temporary or permanent opening called as stoma. A stoma is the pass way from Page 9 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 lowest part of the small intestine called ileum, to the outside of abdomen which helps solid waste and gas exist the body without passing through the colon or rectum. He has submitted that thus, medical evidence clearly reveals that septicemia was the cause which resulted from the injuries No.2 and 3. Thus, probable cause of death is due to surgery performed on abdomen where septicemia developed and this type of surgery, viz., illiestomy has the effect of possible infection. Thus, the medical evidence does not clearly establish the direct cause of death to external injury No.1 on left side of the chest.
4.9 He has also relied on Section 54 of the Indian Evidence Act for arguing that the Evidence Act does not permit the evidence of bad character of an accused in criminal proceedings. Section 54 of the Evidence Act reads as under :
"Sec. 54 - Previous bad character not relevant, except in reply - In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.
Explanation 1 : This section does not apply to cases in which the bad character of any person is itself a fact in issue.
Explanation 2 : A previous conviction is relevant as evidence of bad character."
4.10 He has also relied on the decision in the case of Page 10 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 Mangalsing and others versus State of Madhya Bharat reported in AIR 1957 SC 199, in which it is held that, such evidence if relevant for establishing motive can be looked but not for the purpose of determining as to whether the appellants were persons of bad character likely to commit murder.
4.11 He has also drawn the attention of this Court towards the provisions of Sections 299, 300, 302 and 304 of the IPC. It is necessary to reproduce Section 300 of the IPC which reads as under :
"300. Murder -- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
(Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
(Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Illustrations Exception 1.--When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst Page 11 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:--
(First) --That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
(Secondly) --That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
(Thirdly) --That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to Page 12 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. "
5. Learned advocate for the appellant has also relied on the decision of the Hon'ble Apex Court in the case of Satish Kumar versus State of Haryana reported in 2019 (9) SCC 529, where the Hon'ble Apex Court has altered the sentence from Section 302 to 304(I) of the IPC.
5.1 He has also relied on the decision of the Hon'ble Apex Court in the case of Nandlal versus State of Maharashtra reported in 2019 (5) SCC 224, where the Hon'ble Apex Court has considered the case of single blow and has altered the sentence to Section 304 from Section 302 of IPC.
5.2 He has also relied on the decision of the Hon'ble Apex Court in the case of Ranjit Sarkar versus State of Tripura reported in (2016) 15 SCC 756, where it is a case regarding single blow and in that case also, the sentence is converted into 302 to 304 of the IPC.
Page 13 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 He has also relied on the judgments reported in AIR 2019 SC 264 - Bhagirath versus State of Madhya Pradesh and in AIR 2021 SC 939 - Khokhan Vishwas versus State of Chhattisgarh in support of of submissions.
5.3 He has also given the explanation of the word 'Ileostomy' from the Medical Journal which reads as under :
"A ileostomy is a surgery that makes a temporary or permanent opening called a stoma. A stoma is a pathway from the lowest part of the small intestine, called the ileum, to the outside of your abdomen. This helps solid waste and gas exit the body without passing through the colon or the rectum."
5.4 Therefore, he has submitted that the said offence cannot be considered as murder but culpable homicide as it is committed without premeditation in a sudden fight in the hit of moment upon a sudden quarrel and the accused has not acted in a cruel or unusual manner and thus, it cannot be said that the present appellant has taken undue advantage. He has submitted that therefore, the case would fall under Explanation 4 of Section 304 of the IPC. Learned advocate for the appellant therefore submits that punishment may be altered under Section 304(II) of the IPC. He has submitted that accused is behind bars since more than 8 years and therefore, the appellant may be sentenced accordingly.
6. On the other hand, learned APP Mr. Shah has opposed the appeal and has supported the reasons assigned by the Sessions Judge and has submitted that in a trifle quarrel, the appellant had used deadly weapon like knife and inflicted blow on the vital part of Page 14 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 the body i.e. on the chest, which resulted into deep wound and surgery is required to be carried out and the complainant died after about 7 days of the hospitalization. Learned APP has further submitted that force used by the appellant was such that it can be said that the appellant has acted in cruel and unusual manner. He has also taken us to the deposition of PW-15 - Bharatsinh Dodiya (Exh.115) and PW-8, the Medical Officers - Dr. Jamnadas Vitthalbhai Vidja (who has performed post-mortem) at Exh.40 and PW-9, Dr. Bipinkumar Jentilal at Exh.54 and also taken us through the postmortem report. By taking us through the internal injuries sustained by the deceased, he has submitted that not only one blow but two blows are inflicted by the appellant on the deceased. He has submitted that incident has taken place near the house of the deceased and in presence of eye-witness - Irum and Irum has also supported the case of the prosecution at Exh.81 and therefore, he has submitted that the case would not fall under Explanation 4 of Section 300 of IPC. He has submitted that the incident has taken place in the open place and the eye-witness has stated that the appellant was in aggression and has given knife blow and is also a highhanded person and his conduct is also required to be considered and therefore, he has submitted that the present appeal should be dismissed. Mr. J.K. Shah, learned APP has relied on the following decisions in support of his submissions and has submitted that the conduct of headstrong person should be considered.
(i) 2011 (10) SCC 602 - Garlapati Krishna versys State of Andra Pradesh
(ii) 2010 (5) SCC 451 - Munnawar and others versus State of Uttar Pradesh and others
7. Mr. Khilan Chandrani, learned advocate for the Page 15 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 complainant has also supported the submissions made on behalf of the State and has submitted that it cannot be said that the case would fall under Explanation 4 of Section 300 of IPC. He has also submitted that in view of the provisions of Section 105 of the Indian Evidence Act, the case of the present appellant is required to be dismissed.
8. We have heard learned advocates appearing for the respective parties at length, perused the reasoning part of the impugned judgment of the conviction and has scrutinized the oral as well as documentary evidence, it is undisputed fact that the appellant
- the deceased and all other eye-witnesses and two medical officers are establishing that only one injury is received by knife blow in the sudden quarrel happened in the open space in Bajarangvadi area at Rajkot. We have also considered the medical papers available on record of the present case and also considered the other medical papers regarding treatment of the deceased in the Government Hospital produced by Dr. Jamnadas Vidja - PW-8, but at that point of time during trial, the learned APP somehow opposed the production of those documents and he has objected for giving any exhibit to such documents. In our opinion, such medical papers are also vital and relevant for deciding the real cause of death as well as injuries received from the offence committed by the accused in the facts of the present case.
9. Scrutinising the deposition of the doctors as well as considering the say of the complainant and also eye-witness - Irum, it appears that some scuffle had taken place between the appellant and the deceased in Bajarangvadi area while going on the motorcycle and thereafter, the accused has rushed to the deceased and has given blow with the knife, but at the same point of time, all the witnesses Page 16 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 have admitted that there was no previous animosity between the appellant and the deceased and no complaint was ever registered by the deceased against the appellant prior to the incident in question. On the contrary, the medical papers suggest that death of the deceased may be caused due to septicemia which is also, to some extent, supported by the medical experts at Exh.40 as well as Exh.54. We, therefore, held that it reveals that the incident has taken place in a sudden quarrel and in the hit of moment, the appellant lost his control and suddenly gave a knife blow to the deceased on the left part of the chest. There is no evidence that there was any premeditation on the part of the accused. AS per explanation to exception 4 to Section 300 of the IPC, it is immaterial in such cases which party offers provocation or commits first assault. It cannot be said that it was premeditated crime and the appellant has intention or motive to kill the deceased. Apart from this aspect, deceased has pointed out that there was only one injury on the chest, might be deep wound, but in our opinion, it cannot be said that the appellant has taken any undue advantage or acted in a cruel or unusual manner and therefore, we are of the view that the decisions of Hon'ble Apex Court relied upon by the learned advocate for the appellant are squarely applicable to the facts of the present case. Therefore, we are of the opinion that the case of the appellant would fall under Explanation 4 of Section 300 of IPC and under these circumstances, sentence can be altered accordingly.
10. In view of above, the following order is passed.
10.1 The present appeal is partly allowed.
10.2 The impugned judgment and order dated 17.06.2020 passed by the Additional Sessions Judge, Rajkot in Sessions Case Page 17 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022 R/CR.A/1252/2020 CAV JUDGMENT DATED: 28/10/2021 No.87 of 2012 is hereby modified and the appellant is convicted for the offence punishable under Section 304(II) of IPC, 1860 and the appellant is convicted for the offence punishable under Section 304 (Part II) of the Indian Penal Code, 1860 and is sentenced to undergo rigorous imprisonment of 10 years and fine of Rs.5,000/- and in default of payment of fine, to further undergo simple imprisonment of six months.
10.3 Record and proceedings be sent back to the concerned trial Court, forthwith.
Sd/-
(A.J.DESAI, J) Sd/-
(SANDEEP N. BHATT,J) M.H. DAVE Page 18 of 18 Downloaded on : Mon Jan 17 04:23:57 IST 2022