Gujarat High Court
Karamsibhai @ Babo Virabhai Patel vs State Of Gujarat & on 13 September, 2013
Author: Ks Jhaveri
Bench: Ks Jhaveri
KARAMSIBHAI @ BABO VIRABHAI PATEL....Appellant(s)V/SSTATE OF GUJARAT R/CR.A/211/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 211 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ KARAMSIBHAI @ BABO VIRABHAI PATEL....Appellant(s) Versus STATE OF GUJARAT & 1....Opponent(s)/Respondent(s) ================================================================ Appearance: MR YOGESH S LAKHANI, SENIOR ADVOCATE for the Appellants no. 1 - 3 MS CM SHAH APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER Date : 13/09/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. The appellants-ori.
Accused have preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 5.12.2003 passed by the learned Addl. Sessions Judge, Fast Track Court no. 2, Vadodara in Sessions Case No. 57/2003, whereby, the learned trial Judge has convicted the appellants- ori. Accused under sec. 302 read with sec. 114 of IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs. 1000/-each, in default, to undergo further S/I for three month, which is impugned in this appeal.
The brief facts of the prosecution case is that the appellants are holding their agricultural land at village Kherdasim of Taluka Karjan. The both the deceased were husband and wife and cultivating the land of appellants on contract basis. Since the contract period was going to over and appellants wanted the land back, and therefore, there was some quarrel between them for taking possession back from both the deceased. Therefore, on 21.11.2002, atabout 17.30pm to 17.45pm, the appellants had assaulted Mansukhbhai and Manjulaben and gave blows with wooden piece and caused serious injuries to both the deceased, due to which both the deceased died at the scene of offence place. Therefore, a complaint was lodged.
The appellants accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the present appellants. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 57/2003.
2.3 Thereafter, the Sessions Court framed the charge below Exh. 3 against the appellants for commission of the offence under section 302 read with section 114 of of IPC. The appellants-accused have pleaded not guilty and claimed to be tried.
2.4 To prove the case against the present appellants, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocates for the appellants:
PW-1 Ijamatbhai Azambhai Ex. 9 PW-2 Ganibhai Rushtambhai Ex. 11 PW-3 Nizambhai Rahimbhai Ex. 12 PW-4 Bhikhabhai Khodabhai Ex. 14 PW-5 Rameshbhai Somabhai Ex. 16 PW-6 Laxmanrao Trumbakarrao Ex 17 PW-7 Dilipsinh Amarsinh Raolji Ex. 19 PW-8 Sharifbhai Sulemanbhai Ex. 20 PW-9 Irfanbhai Abdulbhai Ex. 23 PW-10 Dr.Pravinaben Arvindbhai Ex. 24 PW-11 Dr. Virendra Khodida Ex. 46 PW-12 Jethabhai Dahyabhai Ex. 47 PW-13 Mohanbhai Vechlabhai Ex. 49 PW-14 Sudarshansinh Karansinh Ex. 51 PW-14 Dr. Rakeshbhai Banshibhai Ex. 55 PW-15 Rameshbhai Parshottambhai Ex. 56 PW-16 Swapneshbhai Kanubhai Vasava Ex. 57 PW-17 Rajnibhai Jayantibhai Ex. 60 PW-18 Chimanbhai Shanabhai Ex. 61 PW-19 Brajendra B. Oza Ex. 69 PW-20 Nathalal Vallabhbhai Ex. 70 2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused.
Complaint Ex. 10 Panchnama Ex. 15, 18, 21,22 Inquest panchnama Ex.
28PM Note Ex. 31 & 32 Panchnama Ex. 35 Yadi for map Ex. 36 Certificate Ex. 40 Panchnama Ex. 45 Map of offence place Ex. 48 FIR Nos. 245/02, 246/02, 266/02 Ex. 49,50,52 Copy of station diary Ex. 53 FSL Report Ex. 62 Panchnama Ex. 63 Injury certificate and case papers Ex. 26 Copy of register Ex.
59Thereafter, after examining the witnesses, further statement of the appellants-accused under sec. 313 of CrPC was recorded in which the appellants-accused have denied the case of the prosecution.
4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 5.12.2003 held the present appellants- original accused guilty of the charge levelled against them under sec. 302 read with section 114 of IPC, convicted and sentenced the appellants-accused, as stated above.
We have heard at length learned senior advocate Mr Y.S. Lakhani for the appellant and Ms. CM Shah learned APP for the respondent-State.
6. The learned senior advocate for the present appellants has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellants deserve to be given the benefit of doubt and be acquitted.
7. On the other hand, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellants and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed.
8. Before adverting to the other evidence, the evidence of doctor PW-11 Dr. Virendra Khodida Solanki Ex. 46, who had performed the postmortem where both the deceased died immediately even before reaching to the hospital. PW-11 has found following injuries on the dead-body of Manjulaben:
Bruise present over lt. Side of neck about (15 x 3)cm in size.
Crush injury of parital, occipital, atemporal part of skull right side.
Extensive damage to underlying brain tissue has been detected and come outside.
Rt. parietal, occipital and temporal bone have been detached from rest of skull.
Extensive extradural and intradural haemorrhage.
The cause of death was shown to be shock and haemorrhage following crush injury to right side of brain.
9. Whereas, the injuries found on the dead-body of deceased Mansukh are as under:
Abrasion about (5x5)cm in size over lt. Arm.
Abrasion about (2x1)cm in size on lt. Shoulder.
Crush injury present over occipital region of skull. One is about (3x1x5)cm in size and 2nd is about (4x1x3)cm in size.
Skull entering into substance of brain.
Sliners of dome embeded in occipital part of brain and extensive extradural and intradural haemorrhage.
10. Therefore, in view of above, it goes without saying that both of them died due to occipital injuries rather head.
11. This takes us to the genesis of the incident. It is an admitted position that that the accused no. 1 had even lodged a cross complaint but as both the deceased died who were aggressor, the police must have filed B-summary.
12. Having gone through the entire evidence, most of the witnesses have not supported the case of the prosecution. The first was got registered by the present accused which was registered as CR No. 246/2002, the copies of both the informations are at Ex. 49 and 50.
13. The incident which occurred was like this. The accused had given their land to the deceased since two years and there were certain disputes going on between them and the accused wanted the deceased to vacate the land which they were not and because of that when the accused saw the deceased, there were certain altercation and in the spur of moment, after the accused no. 1 who was aged 65 years at the time of incident was beaten by the deceased. He got annoyed and became angry. After the accused no. 1 was beaten by cantile by the deceased wife of deceased Mansukhbhai. He inflicted one dhoka blow on her head and seeing it, Mansukh rushed to the place and he again gave one dhoka blow to the accused, which in turn, all of them started giving blows to the deceased Mansukh. Therefore, it appears that during the quarrel, as it happened on a spur of moment and as he was beaten with the cantile which was supposed to cut sugarcane and was even beaten by the wooden block. He was also hit on the head and that is how in retaliation this incident happened. Having considered the injuries, we are satisfied that it is a homicidal death.
14. It takes us to the next issue whether the homicidal death is a murder or not would fall within any of the exception, as the Apex Court in catena of decisions, looking to the injuries without delving into the further precluded history and evidence as the incident has occurred on the spur of moment, the accused no. 1 was also injured person. No pre-meditation or intention to kill was there. Though no pre-meditation and they had not carried with them any deadly weapons, and it was a wooden block which was lying on the floor and the deceased who was an aggressor, therefore, it is a case which falls within the purview of sec. 304 Part-I IPC as per the decision of Apex Court.
15. When we go minutely through the evidence, one aspect arise in our mind and that is that this was an incident occurred 11 years before. The accused have remained in jail as under-trial prisoner as well as convict up to 31.1.2009. There is a minor Mitesh, son of the deceased, who has been adopted by Shri Brijendra Oza & Smt. Induben B. Oza. Minor Mitesh, son of the deceased has also not supported the case of the prosecution, however, on going through the entirety of the evidence, a suggestion is made by learned senior counsel Mr. Lakhani that as the incident has occurred on the spur of moment, accused no. 1 is aged 73 years at the time when he was released on bail and four years have passed since then and other two accused have also their family responsibility, the ends of justice would be met if the benefit of the decision of Apex Court in the case of Ankush Shivaji Gaikwad vs. State of Maharashtra, reported in 2013(6) Scale 778 is given to them as the only minor son of the deceased is there who has been adopted by Shri Brijendra Oza and Smt. Induben B. Oza. However, learned APP has contended that the punishment is just and proper. There is nothing which would go to show that leniency should be shown to the accused persons when there was a gruesome attack on the young people. However, we feel that the balance of justice would as follows.
16. The homicidal death was committed by whom is now the next question and whether it was homicidal death amounting to murder or not requires to be decided.
17. Having gone through the entire record, it would be relevant to refer to section 299, section 300 and 304 of IPC, which reads as under:
299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Murder.-
Except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly.- 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 3rdly.- 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 4thly.- 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.
xxx xxx xxx xxx
304. Punishment for culpable homicide not amounting to murder: - Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life],or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, Or With imprisonment of either description for a term which may extent to ten 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.
18. On going through the judgment of the Hon ble Apex Court in the case of Ankush Shivaji Gaikwad vs. State of Maharashtra, reported in 2013(6) Scale 778, wherein, it is held that the principle of sub-section (3) of section 357 of CrPC is empowering the Court to award compensation and Hon ble Apex Court has referred to catena of decisions, and on going through the entire record, it is found that the incident is of the year 2002 and the quarrel had taken place in a spur of moment. However, looking to the evidence, more particularly, in light of the decision in the case of Ankush Shivaji Gaekwad (supra) would apply in full force in the facts of this case as the incident has occurred in the year 2002. It would be relevant for us to refer to the guidelines issued by the Hon ble Apex Court in the case of Ankush Shivaji Gaekwad (supra).
19. The residual question which arise before us whether section 302 of IPC has its application or it would be falling within section 304 of IPC even if sec. 357 is invoked or not invoked.
20. This bring us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC 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 the generic offence, the IPC practically recognize three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree . This is the gravest 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.
21. The academic distinction between murder and culpable homicide not amounting to murder has always vexed the Courts. 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 minute 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 Section 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 culpable homicide if the act by which the death is caused is done-
Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.
INTENTION
(a) with the intention of causing death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or (2) 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;
KNOWDLEGE
(c) with the knowledge that the act is likely to cause death.
KNOWLEDGE (4) with the knowledge that the act is so immediately 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.
22. 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 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.
23. 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. 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.
24. 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 internal bodily injury or injuries sufficient to cause death in the ordinary course of nature.
25. The ingredients which are required are that there should be no motive. On the touch-stone of the latest decision of the Apex Court, this case, in our opinion, will not fall within the purview of section 302 or section 304 Part-I but looking to the injuries on the deceased, it will fall within the purview of section 304-II of IPC the reason being there were injuries on the vital part of the head which had culminated into the death of the deceased. Recently, the Apex Court has held that the sentence should be commensurate with the offence. In this case, incident has occurred on the spur of moment in the hit of passion due to earlier altercation between he accused and the deceased, the accused inflicted the injuries and certain injuries are not even explained by the investigating authority, however, we feel that the sentence of life requires to be altered. The incident occurred in the year 2002. Though the time has elapsed, we hold that the sentence of ten years would be just and proper. However, as per the decision of the Apex Court in the case of Ankush Shivaji Gaekwad (supra), it would be just and proper that the said sentence is suspended and they are ordered to take out a Demand Draft of Rs. 1,50,000/- and send it to the child Mitesh by R.P.A.D. Post at the address given on page 187 of the paper-book within a period of 12 weeks from today by way of compensation under sec. 357 of CrPC. If the Demand Draft of Rs. 1,50,000/- is taken out, the appellants shall not be required to undergo remaining sentence and to that extent the appeal requires to be partly allowed.
26. In the result, this appeal is partly allowed. The impugned judgment and order of conviction and sentence dated 5.12.2003 passed by the learned Addl. Sessions Judge, Fast Track Court No. 2, Vadodara in Sessions Case No. 57/2003, is modified as under:
27. The conviction and sentence imposed upon the appellants- original Accused under section 302 of IPC to undergo life imprisonment, is altered and they are convicted under section 304 Part-I of IPC and sentenced to undergo 10 years imprisonment but the same is suspended and they are ordered to take out a Demand Draft of Rs. 1,50,000/-(Rs. One Lakh Fifty Thousand only), and send it to the child Mitesh by R.P.A.D. post at the address given on page 187 of the paper-book, within a period of 12 weeks from today, by way of compensation under sec. 357 of CrPC. If the Demand Draft of Rs. 1,50,000/- (Rs. One Lakh Fifty Thousand only) is taken out, the appellants shall not be required to undergo the remaining sentence. In case, somehow, if the aforesaid amount does not reach the child Mitesh, the appellants-accused to show their bonafide may approach this Court within 12 weeks from today.
28. However, if the appellants-original accused fail to take out Demand Draft of Rs. 1,50,000/- (Rs. One Lakh Fifty Thousand only), as aforesaid, the concerned Principal District Judge shall issue non-bailable warrant to effect the arrest of the appellants-ori. Accused to serve the remaining sentence. The amount of fine, as ordered in the impugned judgment and order, which has been paid and deposited with the State, the same shall remain with the State.
29. The appellants original accused are on bail. On their taking out the Demand Draft of Rs. 1,50,000/-(Rs. One Lakh Fifty Thousand only), by way of compensation, their bail and bail bonds stand discharged.
30. R & P to be sent back to the trial Court, forthwith.
(K.S.JHAVERI, J.) (K.J.THAKER, J) mandora Page 20 of 20