Gujarat High Court
Juso @ Jusab Allarakhabhai Ibrahimbhai ... vs State Of Gujarat on 30 April, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1195 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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Approved for Reporting Yes No
Yes
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JUSO @ JUSAB ALLARAKHABHAI IBRAHIMBHAI SINDHI
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MRS REKHA H KAPADIA(2246) for the Appellant(s) No. 1
MS C M SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 30/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This Criminal Appeal preferred by the sole appellant Juso @ Jusab Allarakhabhai Sindhi herein under Section 374(2) of the Cr.P.C., is directed against the judgment of conviction and order of sentence dated 31.01.2008 passed Page 1 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 43 of 2006, by which, the appellant has been convicted under Sections 302, 333 and Section 186 read with Section 114 of the Indian Penal Code and sentenced as tabulated under:
Conviction under Punishment Fine In default of Section fine Section 302 r/w. Imprisonment for Rs.5000/ Simple Section 114 of life - imprisonment IPC for three months Section 333 r/w. Rigorous Rs.2000/ Simple Section 114 of imprisonment for - imprisonment IPC ten years for one month Section 186 r/w. Rigorous Rs.500/- Simple Section 114 of imprisonment for imprisonment IPC three months for thirty days
2. The case of the prosecution leading to conviction of the appellant accused is as follows:
2.1 According to case of the prosecution, when the police officials tried to arrest the appellant accused as he wanted in a serious offence of robbery, allegedly registered with various police stations registered in State of Gujarat, the accused stabbed the police constable Mandalbhai Desai and prevent the police officials from discharging their official duties, which resulted into death of police Page 2 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined constable Mandalbhai.
2.2 On 18.12.2004, PW-10 Bharatsinh Rana, PSI, Vankaner City Police Station, District: Rajkot, received an information through reliable sources that, the accused Jusab, who involved in the offence of robbery and dacoity and offence of abduction of Sandhi woman of Junagadh, has come into residential area of Dafer Gang, at village:
Kesharwadi, District: Ahmedabad Rural and living there with other members of the gang namely Hayat Dawood Dafer and Kaya Dawood Dafer. After receiving the information, the PW-10 informed the higher authority and made a plan to nab the accused. The team of 15 police officials had been deployed in search of the accused. When the police officials reached at village : Chotila, the information came from informer that the accused is not available in the area, as he has gone to other place. The police officials return back to Vankaner.
2.3 On the next day i.e. on 19.12.2004, the police officials of Vankaner, had proceeded to the place of information and at about 12-00 O'clock, they received information that, the accused will come to their house at about 7.00 morning. The police officials went to village:
Bhamasar, where they parked their official vehicles. The police officials in search of the accused, reached at village:
Kesarvadi on their bare foot. They rounded up the area, by hiding in the nearby bushes. At about 7=00 o'clock the Page 3 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined accused along with two persons came riding on their bike from the village: Bhamasar. The informer, after seeking the accused, identified that he is the accused Jusab and informed the police officials.
2.4 PW-10 and PW-14 Ghanshyambhai Kanjibhai along with deceased Mandalbhai came out from the bushes and PW-10 pointed his revolver at the accused Jusab to stop him. The appellant accused tried to run over his bike on complainant and keeping aside the bike, he tried to escape from the place and in order to restrain him, the PW-10 fired at his leg and meanwhile, the deceased Mandalbhai caught hold the accused and in that process, the accused took out knife and tried to stab the deceased over his stomach. However, as the deceased turned around the knife, hit his left wrist and elbow. Then the other police officials nabbed the accused and snatched away the knife from him. So far as two persons, who were pillion of the bike with the appellant accused, while escaping from the place, they assaulted PW-12 Pravinsinh Zala with the stick and fled away.
2.5 The deceased Mandalbhai Desai was shifted to private hospital at Ahmedabad and during the treatment, he succumbed to his injuries.
2.6 The appellant accused Jusab admitted in the V.S. Hospital, Ahmedabad for the injury he received at the Page 4 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined hands of PW-11 and was admitted as indoor patient for about 9 days.
2.7 PW-10 Bharatsinh Rana being eye-witness, disclosed his complainant. The offence being CR. No. 211 of 2004 registered with Bavla Police Station, against three persons i.,e. appellant accused and two persons namely Hayat Dafer and Kaya Dafer for the offence punishable under Sections 302, 333, 325, 186 read with Section 114 of the Indian Penal Code.
2.8 After registration of the offence, the investigation was entrusted to PW-18 Mahendra Patel. The I.O during the course of investigation, arrested the accused, recorded the statements of raiding parties and others, collected the necessary blood samples from the place of incident, seized the knife, allegedly used in the commission of crime, drew the panchnama of place of offence and residence of accused, obtained necessary medical case papers including PM note, and sent the seized articles to the FSL for chemical analysis and finally, the IO found sufficient material for the charge and accordingly, the chargesheet came to be filed before the jurisdictional Magistrate. The case was committed to the court of sessions, Ahmedabad Rural.
3. After due framing of charge and upon accused not pleaded guilty, the trial commenced. In order to prove the Page 5 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined charge, the prosecution examined in all 18 witnesses and exhibited 27 documents.
Oral Evidence PW 1 - Exh.12 Rajeshkumar Ratanbhai Gadhvi, panch witness PW 2 - Exh.15 Bhopabhai Arjanbhai Bharwad, panch witness PW 3 - Exh.29 Bharatbhai Kantibhai Prajapati, panch witness PW 4 - Exh.34 Dr. Vinit Arvindbhai, medical officer PW 5 - Exh.38 Dr. Tapan Jitendrabhai Mehta, medical officer PW 6 - Exh.41 Dr. Amit Vijay Bhatnagar, medical officer PW 7 - Exh.45 Dr. Vinod Pillai Gopalkrushna, medical officer PW 8 - Exh.47 Ramanbhai Gandabhai Solanki, panch witness PW 9 - Exh.49 Prabhubhai Talshibhai, panch witness PW 10 - Exh.56 Bharatsinh Kainbha Rana, Police Sub-Inspector, complainant PW 11 - Exh.62 Iqbal Husainbhai Kureshi, Police Sub-Inspector PW 12 - Exh.63 Pravinsinh Pratapsinh Zala, Head Constable PW 13 - Exh.66 Bharatsinh Andubha Sodha PW 14 - Exh.67 Ghanshyambhai Kanjibhai PW 15 - Exh.70 Ravjibhai Mangaji Balat, Circle officer PW 16 - Exh.72 Narendrasinh Jagdevsinh Zala PW 17 - Exh.74 Babubhai Devjibhai PW 18 - Exh.75 Mahendrakumar Pujabhai Patel, investigation officer Documentary evidence Exh.73 Index Exh.57 Complaint Exh.44 Panchanama of scene of offence Exh.16 Panchanama of scene of offence Exh.13 Inquest Panchanama Exh.30 Panchanama of collection of clothes from dead body of Police constable Mandanbhai Exh.48 Panchanama of physical examination of accused Jusab Sindhi Exh.19 Panchanama of physical examination of accused Hayaat Page 6 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined Dawood Dafer Exh.20 Panchanama of physical examination of accused Kawa Dawood Dafer Exh.39 Post-mortem note Exh.58 Medical certificate of treatment of witness Pravinsinh Exh.59, Medical certificates of treatment of accused Jusab 60, 42 and 46 Exh.21 Copy of 7/12 extract of land bearing revenue survey no.321 of village Kesardi Exh.22 Copy of FIR C.R. no.184/2004 registered at Junagadh (Taluka) police station Exh.23 Photocopy of forwarding note of articles sent to FSL Exh.24 Receipt by FSL regarding receiving articles Exh.25 FSL Letter Exh.26 Serological report Exh.64 Report by Geological department of FSL Exh.17, Panch slips 18, 21 and 32
4. After closure of the evidence, the appellant and co- accused were questioned under Section 313 Cr.P.C., to which, their defense was total denial and further stated that they have been falsely implicated by the police. The accused despite of the opportunity, did not lead any oral or documentary evidence in their defense.
5. The learned Sessions Judge, after hearing the parties and upon appreciation of evidence, found the appellant accused guilty of the charge and consequently, he has been convicted under Section 302 of the Indian Penal Code. The accused Nos. 2 and 3 held guilty for causing grievous hurt to the police officials and directed to Page 7 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined undergo 10 years imprisonment.
6. Being dissatisfied with the judgment of conviction and order of sentence, the appellant accused has come up with the present appeal.
7. We have heard learned counsel Ms. Rekha Kapadia appearing for and on behalf of the appellant accused and Ms. C.M. Shah, learned Additional Public Prosecutor for the respondent State.
8. Ms. Rekha Kapadia, learned advocate assailing the judgment impugned, has submitted that, the instant appeal is pressed only on the quantum of sentence and she does not press the conviction awarded by the court below. In that view of the matter, she submitted that according to case of the prosecution, the police personnel including the deceased attempted to arrest the appellant accused, and he resisted the arrest, which led to firing upon him by PW-10 Mr. Rana and thereafter, when he was caught hold by deceased Mandalbhai, the accused inflicted a blow with a knife on the left wrist of the deceased. The medical evidence does not throw any light that the injuries sustained on the wrist was serious in nature and it was sufficient in ordinary course of nature to cause the death. In such circumstances, the trial Court was not justified in convicting the accused under Section
302. When the injuries were not intended to cause death, Page 8 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined the case does not fall under any clauses of Section 300 of the Indian Penal Code. Thus, it was submitted that, at the most, accused could have convicted for culpable homicide not amounting to murder as defined under Section 304- Part II of the Indian Penal Code.
9. Ms. C.M. Shah, learned Additional Public Prosecutor opposing the contention, has submitted that, the intention of the accused was to kill the deceased and with that intention, he took out his knife and tried to inflict the blow on stomach but due to turning out of the deceased, the blow hit the left wrist of the deceased. The accused after seeing the police personnel did not stop there and tried to run over his bike on the complainant and despite of fire upon him, he resisted and inflicted a blow on the deceased, when he was trying to caught hold him. In such circumstances, when the injuries were sufficient in ordinary course to cause death to the deceased and were inflicted with intention to kill the deceased, clause III of Section 300 is attracted and therefore, the act of the accused need not be altered into culpable homicide not amounting to murder.
10. Before dealing with the rival contentions of the parties, for a limited purpose, it would be useful to analysis the evidence of some of the relevant witnesses.
(A) PW-5 Dr. Tapan Mehta, who had conducted the PM of Page 9 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined the deceased. The doctor while conducting postmortem the following antemortum external injuries mentioned in column no.17 of the PM note on the body of the deceased.
(i) A surgically stitched wound, with black stitching material, two interrupted stitches present on medical aspect of mid of left arm, of 4cm x 0.75cm in size, which is obliquely going downwards to front on opening of stitches, it is muscle deep, with sharply cut margins, both angles are acute.
(ii) A surgically stitched wound with black stitching material, two interrupted stitches, present on antero lateral aspect of lower part of left arm of 7.5cm x 0.75cm in size, which is obliquely going downwards to front on opening of stitches, it is muscle deep, with sharply cut margins, both angles are acute.
(iii) An incised wound of 2cm length vertical, present on mid of front of area just below left elbow joint, skin deep.
(iv) A read abrasion present on back of right elbow joint, 1cm x 1cm, mid part.
(v) A red abrasion present on lateral part of upper part of left lower left, of 1cm x 0.5cm size.
Page 10 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined The doctor had also noticed that the brachial vessels which in the track of the wound are sharply cut which are corresponding to external injury nos. 1 and 2. According to opinion of doctor, the cause of death was shock as a result of stab injury sustained. He had further opined that the external injury no. 1 and 2 were sufficient in ordinary course to cause death and the injuries could be possible with article knife seized by the police.
(B) PW-4 Dr. Vinit Arvindbhai, who had treated and examined the appellant and accused at V.S. Hospital, Ahmedabad. The doctor had noted 9 injuries in his certificate and according to his opinion, all the injuries were simple in nature.
(C) PW-10 Bharatsinh Rana, complainant. The said witness, in his testimony has stated that, on 18.12.2004, when he was on duty as PSI at Vankaner Police Station, he received a credible information that accused Jusab wanted in the offence of robbery has come to village: Kesarvadi and living with the member of his gang. The witness has stated that in order to arrest the accused, he along with other 15 police personnel formed a team and proceeded to raid the area of information. In the first phase, plan was failed as the accused was not available. In the second phase, he along with police personnel, went to village:
Page 11 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined Bhimasar, where they parked their official vehicles and came to village : Kesarvadi and as per plan, they hide themselves in the bushes. The witness has further stated that on 20.12.2004, in the morning hours, the accused along with two others were coming from village : Bhimasar riding upon motor-bike. The witness has stated that after confirming his identity from the informant, he along with others including deceased Mandalbhai came out from bushes and pointed the revolver at the accused. The witness has further stated that, the accused leaving aside the bike, tried to run away and to restrain him, he fired on his leg. The deceased Mandalbhai who accompanied with him, tried to caught hold the deceased and same was resisted by the accused and to come out from the clutches from Mandalbhai, the accused tried to stab the deceased over his stomach, however, as the deceased turned around, the knife hit his left wrist. The witness has further stated that the other police personnel caught the accused and snatched away the knife from him. The witness has further stated that constable Mandalbhai was severely injured and immediately taken to SAL hospital at Ahmedabad, where he succumbed to his injuries.
(D) PW-11 Iqbal Hussain, PW-12 Pravinsinh Zala, PW-13 Bharatsinh Sodha, PW-14 Ghanshyambhai Kanjibhai, Page 12 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined PW-15 Ravji Mangaji Balat, PW-16 Narendrasinh Zala, who were part of the team and were present at the place when the incident of stabling took place. All the witnesses are police officials and they have stated in their respective testimonies in the line of PW-10 Bharatsinh Rana. Thus, there is no need to refer their entire evidence. However, it is relevant to note that, so far role attributed to accused is concerned, their version are consistent and as such there is no major contradictions on the aspect of causing injury to the deceased.
(E)PW-18 Mahendra Patel, who had investigated the case and according to his testimony, after the arrest of the appellant accused and two others, the case was entrusted to him and during the course of investigation, he had seized the knife, recorded the statements of witnesses, collected the necessary samples from the place of incident and sent the seized articles to the FSL and obtained the medical papers along with PM report and finally, he found sufficient material against the accused for the charge and filed the chargesheet.
11. In the case on hand, the prosecution examined 6 to 7 eye witnesses, who are police personnel. The police officials of Vankaner were in search of wanted accused- appellant herein and as per the information, he was hiding Page 13 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined in the Kesarvadi village, where the other members of his gang used to generally lived in the community. In such circumstances, the testimony of the police personnel cannot be doubted. Even otherwise, except informant, no one from the village: Kesarvadi had seen the offence. The Supreme Court in Karamjit Singh Vs. State, Delhi Administration (2003) 5 SCC, 291, on the reliability of testimony of police personnel held and observed that the testimony of police personnel should be treated in the same manner, as testimony of other witness and there is no principle of law that without corroboration of independent witnesses, their testimony cannot be relied upon. The presumption on that, the person acts honestly applies as such in favour of police personnel as of other persons and it is not proper judicial approach to distrust and suspect them without good grounds. In another case, Girja Prasad Vs. State of M.P. (2007) 7 SCC 625, the Supreme Court, in para-25 of the judgment, observed that, the credibility of witness has to be tested on touchstone of truthfulness and trustworthiness. It is quite possible that, in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that police witnesses should not be relief upon and their evidence cannot be accepted, unless it is corroborated in material particulars by other independent evidence. The rule of prudence may require more careful scrutiny of their evidence, however, if Page 14 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined the court is convinced that what was stated by witness, as a ring of truth, conviction can be based on such evidence.
12. The facts of this case are to be considered on the touchstone of law, which has been laid down by the Apex Court. We have no doubt in our mind about the presence of aforementioned police personnel at the site and in their presence the knife blow had been inflicted by the appellant accused on the body of the deceased. Thus, the facts established that on 20.12.2004, at early morning, when the police personnel of Vankaner Police Division were on duty to arrest the appellant, the accused resisted and caught by the deceased Mandalbhai and while come out from the clutches of the deceased, he took out his knife and inflicted blow on the wrist of the deceased, as mentioned in the PM note by Dr. Tapan Mehta PW-5. According to opinion of the doctor, the external injury Nos. 1 and 2 were fatal and sufficient in ordinary course to cause the death. The said two injuries sustained by the deceased over mid and lower part of left arm and the brachial vessels were found ruptured. In such circumstances, the question that falls for our consideration is whether the offence disclosed established against the accused is a "murder" or "culpable homicide not amounting to murder."
13. The Supreme Court has time and again deliberated upon the crucial question of distinction between Section Page 15 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined 299 and 300 of the Indian Penal Code i.e. culpable homicide and murder respectively. In terms of Section 299, culpable homicide is described as an act of causing death (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death or (iii) with the knowledge that such an act is likely to cause death. It is clear from reading of this provision that, once an offence is caused in any of three stated manners as noted above, it would be culpable homicide. Section 300, however, deals with murder. Section 300 says that, culpable homicide is murder;
Firstly - 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 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 cause death, an commits such an act without any excuse Page 16 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined for incurring the risk of causing death or such injury as aforesaid.
14. We may profitably refer the case of State of Andhra Pradesh vs. Rayavarapu Punnayya & Anr. (1976) 4 SCC 382 while clarifying the distinction between these two terms i.e. murder and culpable homicide not amounting to murder and their consequences, held as under:
".....that the safest way of approach to the interpretation and application of Section 299 and 300 of the Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of section 299 and 300 of the Code and the drawing support from the decisions of the court in Virsa Singh v. State of Punjab and Rajwant Singh v. State of Kerala, speaking for the court, Justice RS Sarkaria, neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said that wherever the Court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be that the accused has done an act by doing which he has caused the death of another. Two, if such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in section 299. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether this second or the third clause of Section 299 is applicable. If this question is found in the positive, but the cases come within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 of the Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative."Page 17 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025
NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined
15. Having noticed the distinction between murder and culpable homicide not amounting to murder, now it is necessary to explain the distinction between the application of Section 302 of the Indian Penal Code on the one hand and Section 304 of the Code on the other hand. Section 304 provides that, whoever commits culpable homicide not amounting to murder shall be punished with life or imprisonment which may extended to 10 years and shall also liable to be fine - (i) if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death or (ii) with imprisonment of either description may extend to 10 years or with fine or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. In this context, we aptly refer the case of Ajit Singh Vs. State of Punjab 2011 (9) SCC 462, the Supreme Court held that, in order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to extremely cautious in examining whether the same falls under Section 300 of the Code which states whether is a culpable homicide is murder or would it fall under its five exceptions which lay down when culpable homicide is not murder. In other words, the Section 300 states both what is murder and what is not. First finds place in Section 300 Page 18 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined in its four stated categories while the second finds detailed mention in the stated five exceptions to Section
300. The Legislature in its wisdom, thus cover the entire gamut of culpable homicide that amounting to murder as well as that not amounting to murder in a composite manner in Section 300 of the Code. Section 302 and 304 of the Indian Penal Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences.
16. An analysis of the aforesaid statutory provisions would say that, an offence causing death cannot amount to murder, unless it falls within the ambit of four clauses defined under Section 300 of the Indian Penal Code. Each of four clauses requires that the act which causes death should be done intentionally or with knowledge. So far as intention is concerned, the Supreme Court in its various judgments has stated that, the intention to cause death is a subjective element for which generally circumstances surrounding the culpable homicide may lead to inference that the accused intended to cause death. In other words, a person's intention can be inferred from the act committed by him and other surrounding circumstances. In this regard, the Supreme Court in case of Pulicherla Nagaraju @ Nagaraja Reddy vs. State of Andhra Pradesh reported at 2006 (11) SCC 444, in para-29 observed thus:
Page 19 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined "29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls u/s. 302 or 304 Part I or 304 Part II. Many petty or insignifcant matters
- plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable u/s. 302, are not converted into offences punishable u/s. 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable u/s. 302.
The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances :
(i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix)whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of Page 20 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."
17. Recently, the Supreme Court in the case of Anbazhagan Vs. State represented by Inspector of Police, 2023 SCC on-line SC, 857, has succinctly explained the fne distinction between the cases that would fall under Section 302 and Section 304 Part (I) and (II) of the IPC. The supreme Court after detailed survey on the precedent on the point, finally, summed-up as follows:
"Few important principles of law discernible from the aforesaid discussion may be summed up thus:-
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC,the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously.
Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary Page 21 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section
304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In Page 22 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'.
(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufcient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulflled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not Page 23 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the 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 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
Page 24 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
Page 25 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined
18. Having examined the principles of law applicable to the cases like the one in hand and having regard to the peculiar facts and circumstances of the present case, the appellant-accused during the scuffle, stabbed the deceased Police Constable Mandalbhai with knife, but the evidence shows that, it was the deceased who first caught the accused and in order to escape from the clutches of the deceased, he had inflicted a knife blow on the left arm of the deceased. It is evident that, the injuries were not inflicted on the vital part of the body. It is the version of the colleague of the deceased who were present at the place that, the complainant-PW.10 pointed his revolver at the appellant-accused as he was trying to escape from the arrest and keeping aside his bike, he proceeded to run away and at that time, PW.10 fired at the accused leg because the bike was coming over them and in that process, the deceased being a member of raiding team, caught hold the deceased so that he could not run away and in order to escape from the clutches of the deceased, he took out his knife and before he could inflict the blow, the deceased turned around, as a result of which, the knife hit his left arm. In such circumstances, the only reasonable inference which can be drawn is that, the act of the accused by which the death is caused, cannot be done with the intention of causing death of the deceased or it was caused with an intention such bodily injury as the accused knows to be likely to cause death of the Page 26 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined deceased. It is evident that, the P.M. Doctor has not clearly opined that the major blood vessels were ruptured and having considered the nature of injuries and the manner in which the scuffle took place, it is not established that there was an intention on the part of the accused to inflict that particular injury or cause such bodily injury as would be sufficient in the ordinary course of nature to cause death. However, while inflicting the knife blow, it can be presumed that, the accused had knowledge that his action is likely to cause death.
19. For the reasons aforementioned, we have no hesitation to held that the prosecution failed to prove by leading cogent and acceptable evidence that the act of causing death on the part of the accused would fall in any of the clauses as provided under Section 300 of the Indian Penal Code. In other words, we are of the opinion that, the appellant is not liable to be convicted under Section 302 of the Indian Penal Code. The offence established by the prosecution against the appellant is culpable homicide not amounting to murder under Section 304 Part II of the Indian Penal Code, as a result, the conviction and sentence of life imprisonment under Section 302 is set aside. The appellant is convicted under Section 304 Part II of the Indian Penal Code and sentenced him to undergo 10 years imprisonment and fine of Rs.5,000/-.
20. Accordingly, present appeal is allowed in part to the Page 27 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025 NEUTRAL CITATION R/CR.A/1195/2008 JUDGMENT DATED: 30/04/2025 undefined aforesaid extend. The appellant shall be released forthwith, if his custody is not required in any other offence. R&P, if any, be sent back to the concerned Court forthwith.
Sd/-
(ILESH J. VORA,J) Sd/-
(SANDEEP N. BHATT,J) TAUSIF SAIYED Page 28 of 28 Uploaded by TAUSIF SAIYED(HC01401) on Wed Apr 30 2025 Downloaded on : Thu May 01 01:55:53 IST 2025