Gujarat High Court
State Of Gujarat vs Mochi Raju @ Balvant Popat on 6 May, 1999
Equivalent citations: (2000)2GLR14
JUDGMENT Patel, J.
1. State has preferred Criminal Appeal No. 511 of 1985 against the order passed by learned Sessions Judge, Rajkot whereby the accused was acquitted for an offence punishable under section 302 of the Indian Penal Code. Criminal Appeal No. 512/85 is preferred under section 11(2) of the Probation of Offenders Act against the order passed by the Sessions Judge, Rajkot releasing the accused on probation in Sessions Case No. 4 of 1985.
2. Short facts of the case, as it emerges from the record, are as under :-
2.1 The respondent-accused, who at the relevant time was aged about 19 years, was working with one Bhupendrapuri Gosai, PW. 4, who was doing business of Behl-puri. Deceased Balubhai Nathalal was carrying on his business of fruit in a hand-cart just near the place where Bhupendrapuri PW. 4 was carrying on the business. On 30.10.1980 at about 6.00/6.15 p.m, for collecting fresh water, the accused emptied the vessel by throwing the water on the side of the hand cart of the deceased and in that process, few drops of water fell on the deceased. As a result of this, there was some altercation between the accused and deceased. It appears that the persons in the vicinity separated the accused and the deceased. After about an hour, at about 7.00/7.15 p.m., the accused was seen running behind the deceased. From the evidence of PW. 3 Govindbhai Bharwad, it appears that there was some exchange of abusive words, and at that point of time, the accused took out a Rampuri knife and delivered a blow on the chest of the deceased. The accused was immediately taken to the police station by the persons who collected there. One police man who was in plain dress was also there; He took the injured to the hospital for treatment. At the police station, a complaint was lodged by Govindbhai PW. 3. Investigation commenced on the aforesaid complaint. The deceased succumbed to the injury at about 7.30 p.m. on the same day. After completion of investigation, the accused was firstly presented before the Juvenile Court, but after collection of evidence regarding his exact age, the accused was produced before the learned Judicial Magistrate, First Class, Rajkot, who committed the accused to the Court of Sessions for trial. Charge, Exh. 2 was framed against the accused, for an offence punishable under section 302 of the Indian Penal Code and also for offences punishable under section 37(1) and 135 of the Bombay Police Act, 1951, to which the accused pleaded not guilty. Considering the evidence on record, hearing the submissions made by the learned advocates and considering the statement of the accused, the trial Court held that the accused has committed an offence punishable under section 304/Part II of the Penal Code as also under section 37 and 135 of the Bombay Police Act. After pronouncing the judgment of conviction, the Court heard the accused and advocates on the question of sentence. The trial Court held the accused guilty of an offence which is punishable with imprisonment, but not with imprisonment for life and as the accused was below the age of 21 years, directed the Probation Officer to submit his report as to why the accused should not be dealt with under section 3 or sec.4 of the Probation of Offenders' Act 1958. The trial Court ultimately released the accused on probation of good conduct on his entering into the bond with a surety of Rs.1000/- to appear and receive the sentence when called upon during a period of three years thereof, and in the meantime, to keep peace and to be of good behaviour.
2.2 State has preferred Criminal Appeal No. 511/85 against the order acquitting the accused for an offence punishable under section 302 of the Penal Code, and Criminal Appeal No. 512/85 against the order passed by the learned Sessions Judge, Rajkot releasing the accused on probation.
3. Deceased Balubhai, soon after the assault was removed to Government Hospital, Rajkot, where he was treated by Dr. Chandravadan Vanmali Ajmera, PW. 13. From the evidence of Dr. Ajmera, PW. 13, it appears that the injured was brought to the hospital at 7.05 p.m. It further appears that he was brought by police constable Savjubha. The history given was stab wound by Raju Popat Mochi (accused). On examination, this witness noticed the following :-
(1). His general condition was critical.
(2). He was not in a position to speak.
(3). His pulse and the blood pressure were not recordable.
(4). The tongue was pale.
(5). The patient was semi-conscious and irritable.
(6). His respiratory system showed sub-cutuneious emphysema on right side.
(7). The cardio vascular system showed tachy cardia and muffled heart sounds.
3.1 On local examination, this witness noticed the following injury.
(1). Incised (stab) wound anteriorly on right side of the chest, third intercostal space 4" below the mid-clavicular point and 4" lateral to midline, oblique with pointed lower end and ragged upper end averted margins, cavity deep going inwards and upwards and laterally. Active bleeding+ (plus), size 1" with over-lying cut on the shirt. Clothes stained with blood.
3.2 This witness has deposed that he treated Balubhai in the Emergency ward. The wound was stitched and he was treated with drugs and intravenous fluids. During the treatment, he died at 7.30 p.m. This witness has deposed that the injury could have been caused by any sharp cutting instrument and the injury was possible by the pen knife article No.3 which was before the Court. There is nothing in the cross-examination to show that the injury could have been caused by a fall on the ground with the knife.
4. For proving that the death is homicidal, Medical Officer Dr. Sudhaben K Parekh, who performed the autopsy, was examined as PW. 1. She performed the autopsy on 31.10.1984 which commenced at 7.05 am. and was completed at 8.10 am. This witness noticed the following external injury on the person of deceased Balubhai:
(1). Stitched wound on the right side chest in the third intercostal space 4" below the mid clavicular line about 4" lateral to the midline above the right nipple about 1" oblique.
4.1 During the internal examination, the following injuries were noticed:
(1). A tear about 1" in the muscular wall (thoracic wall) corresponding to the stich wound injury mentioned at column No.17 on right side. (2). Right lobe of the lung there was through and through tear in upper lobe tappering ending near the hilum and rupture of a branch of the mid vessel. Blood contained in pleural cavity about 3 litres. Right lung collapsed.
4.2 According to this witness, the cause of death was shock due to hemorrhage on account of injury to the lung and its vessels. She has further deposed that the internal injuries corresponded to the external injury as shown in the post mortem report. She has further stated that the abovesaid injuries both internal as well as external were anti-mortem in nature. The post mortem report was proved by her and she stated that it was signed by her and the same was in her handwriting. The injuries were on the vital part of the body. She has further stated that the injuries were sufficient to cause death in the ordinary course of nature. She was shown the muddamal knife and she stated that the injuries noticed by her were possible by such weapon.
4.3 The Post Mortem report is produced at Exh. 7 which shows that the cause of death was shock due to hemorrhage on account of injury to lung and its vessel.
5. Thus, from the medical evidence it is clear that on the vital part of the body, viz. chest the injury was inflicted by a sharp cutting weapon, namely: the knife, and the same was pierced by force. The trial Court on examination of the aforesaid medical evidence, accepted the prosecution case without any hesitation.
6. Govindbhai Bharwad, PW. 3. stated that he was doing business of Pan-Bidi. At the relevant time this witness was sitting at his shop. Rajubhai the accused was running behind Balubhai and there was some altercation. Bhupat (Bhupendragiri Gosai PW. 4) came to the scene. Raju took out a knife from his pocket and inflicted a knife blow on the chest of Balubhai. This witness has further stated that Bhupatbhai asked him what he is doing and Raju, the accused, replied that as the deceased was keeping illicit relations with his mother, he wanted to eliminate him. This witness has supported the prosecution version.
7. Hemant PW. 7, Batuk PW. 6, and Savjubha, PW. 15, a police constable in civilian dress, came to the scene. This witness and Bhupat took the accused to the police chowky while Savjubha took injured Balubhai to the hospital. This witness was shown the complaint and he has identified his signature. Thus he has testified the correctness of the statements recorded in the complaint. The said document has not been named as FIR as there was one police yadi earlier in point of time. This witness has identified the knife which was used by the accused for inflicting the blow. This witness has further stated that before the incident, the accused Raju was working with Bhupatbhai who was doing business of Bhel-puri in a handcart. He has further stated that the deceased was doing business of fruits near the adjoining railing. This witness has also pointed out the scene of occurrence. Thus, from the evidence, it transpires that at about 7.00/7.15 pm., Raju ran after Balubhai; There was exchange of words. Raju, the accused, took out a knife from his pocket and delivered a blow on the chest of Balubhai.
8. Bhupendrapuri Gosai, PW. 4 has deposed that he is also known as Bhupatbhai, and he is doing business of Bhelpuri near Deluxe Cinema. He stated that Raju was working with him as a servant. He deposed about the timings of his business and stated that the business used to run till midnight. He deposed that on the date of the incident, at about 6.00 pm, when Raju was emptying the vessel, few drops of water fell on the deceased which ignited exchange of abuses whereupon this witness and Batukbhai PW.6 intervened and separated them. When the subsequent incident took place, this witness was at his shop and was doing his business and he heard people shouting that his servant is quarreling. He therefore came immediately to the place near the railing where the accused and the deceased were quarreling. Raju delivered a blow by means of a knife on the chest of Balubhai. This witness questioned the accused as to what he has done? The accused replied that he heard people saying that the deceased was keeping illicit relations with his mother, and therefore, he inflicted a blow. This witness has also given names of other persons who collected there. His story is consistent with other witnesses. He has denied the suggestion that the accused did not inflict the knife blow.
9. Batuk Keshavji Karia, PW. 6 was carrying on business of pan-bidi at the place where the incident took place. He has deposed that when he came from his house after taking supper, he saw the deceased and accused near Bhupatbhai's hand cart. According to this witness, there was exchange of words. This witness and Bhupatbhai, PW. 4 separated them. He has stated that this must have happened at about 6.00/6.15 p.m. According to this witness, at about 7.00/7.15 pm when he was sitting at his shop, he saw Raju the accused running after the deceased. Bhupatbhai asked him as to why he was quarreling. This witness came out from his shop and came to the scene of occurrence. He saw that Balubhai had an injury which was bleeding. This witness has also supported the prosecution version. He has not seen the blow being inflicted by the accused. From the evidence of this witness, it is clear that the accused was seen running after the deceased. He has seen Bhupatbhai PW. 4 going towards the accused Raju. Before he reached the place, the blow was already inflicted. In the cross examination this witness has stated that there was exchange of abuses. This witness has stated that first there was exchange of abuses and after half an hour the incident in question took place. This witness has further stated that he was not knowing about exchange of abuses at the time of inflicting the blows.
10. Hemantkumar Manubhai Udani, PW. 7, running a pan-bidi shop in the name of Natraj Pan House, deposed that he was present in his shop at the time of the incident. He has further stated that at about 7.00 pm. constable Savjubha came for a cigarette in plain clothes. He has further stated that he was facing the back portion of deceased and he was unable to see the chest portion. He has stated that the left hand of the deceased was kept on his chest. He has also stated that few persons surrounded the accused and the deceased. This witness has also supported the prosecution version.
11. The trial Court has accepted the evidence and the infliction of the blow by the accused. Hence it is not necessary to discuss the evidence of witnesses in detail. Even before the trial Court, a submission was made that the offence committed by the accused would be one that is punishable under section 304 Part II of the Penal Code.
12. The trial Court in paragraph 64 of the judgment has considered a decision in the case of VIRSA SINGH VS. STATE OF PUNJAB reported in AIR 1958 SC 465. The trial Court has reproduced the relevant paragraph as under :-
"The prosecution must prove the following facts before it can bring a case under S. 300 'thirdly'; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended."
13. The trial Court considered that there was use of abusive language. In paragraph 65, the trial Court held that:
"But the evidence as shown above goes to show very clearly that the accused was firstly abused and lateron there was a scuffle and during this scuffle, a solitary blow was given by the accused which had proved to be fatal. It therefore cannot be said that particular injury which had proved fatal, was intended by the accused."
14. From the evidence narrated hereinabove, it transpires that there was exchange of abusive words by the deceased as well as the accused. The first incident took place at about 6.15 pm. The later incident took place at about 7.00 pm. It is not in quick succession. The accused was seen running after deceased Balubhai at later point of time, i.e. second incident. This is very clear from the evidence of Govindbhai PW. 3. There is absolutely nothing on the record to show that there was a scuffle between the two. In our opinion, the evidence clearly indicates that the accused ran after the deceased; there was exchange of words, and thereafter, the accused took out a knife from his pocket and inflicted a blow on the chest of Balubhai. There was no scuffle. No witness has stated that there was scuffle between the two in the later incident; yet, the trial Court in paragraph 65 of the judgment has held that there was a scuffle. Thus the finding is based without evidence or an inference is drawn from the fact that there was exchange of words. Thus, finding of a scuffle and thereafter delivering a blow (by the accused) is palpably wrong, based on no evidence and thus manifestly erroneous. There was no reason for the accused to run after the deceased with a knife in his pant pocket. Incident which took place before about an hour was not such that any reasonable man would keep the incident in his mind. In this case, as per evidence, the accused was careless while throwing water. He stated before the witnesses to the effect that he delivered a blow as the deceased was keeping illicit relations with his mother. In fact, Vijayaben, mother of the accused, PW. 12, stated that people used to talk loosely. She emphasized that she had no relations with Balubhai. It must be noted that her husband was alive. It appears that accused just gave the false excuse to the witnesses.
7TH MAY 1999:
15. Even regarding the first incident which took place at 6.00/6.15 pm is concerned, there also no scuffle took place. So far as earlier incident is concerned, evidence reveals that in the process of emptying the vessel, water was thrown on the ground by the accused as a result of which some drops of water fell on Balubhai which led to exchange of abuses and nothing more. After an hour, when Balubhai was seen walking in the direction of the railing, the accused was seen running after him. What was the cause for the accused to run after him? After some exchange of words, the accused took out a knife and delivered a blow as narrated earlier. Accused tookout a knife from his pocket, which indicates that he was moving with a weapon which was prohibited. The trial Court has accepted the case insofar as keeping of a weapon by the accused is concerned. It is not a case that some altercation took place and he was provoked as a result of which he picked up something lying nearby and used it in delivering a blow. The fact that he ran after Balubhai and delivered a blow with a knife which was kept in his pocket indicates his intention.
16. The Apex Court in the case of JAIPRAKASH vs. STATE (DELHI ADMN.) reported in 1991 (2) SCC 32 held as under in paragraph 19.
"The above circumstances would show that the accused intentionally inflicted that injury though it may not be premeditated one. All the above circumstances would certainly indicate such a state of mind namely that he aimed and inflicted that injury with a deadly weapon. As observed in Virsa Singh case, in the absence of evidence or reasonable explanation to show that the appellant did not intend to stab in the chest with a kirpan with that degree of force sufficient to penetrate the heart, it would be perverse to conclude that he did not intend to inflict that injury that he did. When once the ingredient "intention" is established, then the offence would be murder as the intended injury is found to be sufficient in the ordinary course of nature to cause death. Therefore an offence of murder is made out. .. "
16.1 In paragraph 10 of the judgment in the aforesaid case, the Apex Court held that:
"In our view it is fallacious to contend that when death is caused by a single blow, Clause Thirdly is not attracted and therefore it would not amount to murder. The ingredient 'Intention' in that clause is very important and that gives the clue in a given case whether offence involved is murder or not."
16.2 It is necessary to point out the facts which were before the Apex Court. The appellant having illicit relations with the wife of the deceased, his visits to her house were resented and objected. On the day of occurrence, the accused visited the house armed with a kirpan when the deceased was not there. When the deceased came and objected to his presence there was only an altercation and exchange of hot words, and not a fight. Thereupon the appellant took out the kirpan and stabbed the deceased on the chest resulting in instantaneous death of the deceased. The doctor opined that the injury was sufficient to cause death in the ordinary course of nature. The cause of death was hemorrhage and shock due to injuries. The prosecution case was based only on the eye witness, the brother of the deceased. In the instant case, as discussed hereinabove, the accused ran after the deceased, took out a knife from his pocket and delivered a blow before which there was some exchange of words only. The accused tookout the knife from his pocket and stabbed the deceased on his chest causing a serious injury on the chest. Doctor has opined that the injury was sufficient in the ordinary course of nature to cause death and, therefore, the offence would be one that is punishable under section 302 of the Indian Penal Code.
16.3 In paragraph 12 of the aforesaid judgment, the Apex Court considered clause 'thirdly', as under :-
"In other words, Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.
16.4 Thus, in view of this, it is clear that the trial Court has seriously erred in considering that the case would fall under section 304/Part.II of the Indian Penal Code. In view of this, order passed by the trial Court acquitting the accused for an offence punishable under section 302 of the Indian Penal Code is quashed and set aside. The accused is held guilty of an offence punishable under section 302 of the Indian Penal Code.
17. In view of the fact that the accused is held guilty under section 302 of the Indian Penal Code, section 4 or section 6 of the Probation of Offenders Act, 1949 will not apply to the present case. The provisions of the Probation of Offenders Act cannot be invoked in a case where an accused is held guilty of an offence punishable under section 302 of the Penal Code. Hence the order passed by the trial Court granting benefit of Probation of Offenders Act is also quashed and set aside.
18. Learned advocate appearing for the accused submitted that as the accused stands convicted for an offence punishable under section 302 of the Indian Penal Code, in view of the provisions contained in the Criminal Procedure Code, sec. 235(2), the accused should be heard on the question of sentence.
19. Ms. Datta learned Advocate appearing for the accused submitted that if the accused is convicted, the Court unless proceeds in accordance with provision of section 360 of the Criminal Procedure Code, has to hear the accused on the question of sentence in view of section 235 of the Criminal Procedure Code, and thereafter, the Court has to pass the sentence in accordance with law. She submitted that even in case where accused is punished u/s 302, it becomes the duty of the Court to hear the accused on the question of sentence. It is required to be noted that when the Statute prescribes minimum sentence, then even if the accused is heard on the question of sentence, the minimum sentence is to be imposed. When Court is awarding the sentence minimum prescribed, then the question of hearing the accused would not arise. If the accused is convicted for an offence u/s 302 IPC and if the Court is of the view that punishment provided for this offence which is minimum is to be imposed, then there may not be a question of hearing the accused on the question of sentence, but if the Court is of the opinion that more than the minimum sentence is required to be imposed, then the Court has to hear the accused on the question of sentence. When the discretion is to be exercised while sentencing the accused, no doubt the court will have to hear the accused on the question of sentence. But when minimum sentence is prescribed and the Court is awarding that minimum punishment, there may not be question of hearing the accused as contemplated u/s 235[2] of the Code of Criminal Procedure. The apex Court in case of TARLOK SINGH vs. STATE OF PUNJAB reported in AIR 1977 SC 1747 in para-2 pointed out as under :-
"Section 235, Cr.P.C. [1974] makes a departure from the previous Code on account of humanist considerations to personalize the sentence to be awarded. The object of the provision is to give a fresh opportunity to the convicted person to bring to the notice of the court such circumstances as may help the court in awarding an appropriate sentence having regard to the personal, social and other circumstances of the case. Of course, when it is a case of conviction u/s 302, IPC, if the minimum sentence is imposed, the question of providing an opportunity u/s 235 would not arise."
20. Thus, when it is a case of conviction u/s 302 IPC and if the minimum sentence is imposed, the question of providing an opportunity u/s 235 would not arise. In the facts and circumstances of the case, we are passing only minimum sentence as provided in section 302 - IPC i.e. imprisonment for life. The respondent - accused need not be given an opportunity of hearing. Punishment prescribed under section 302 is with death or imprisonment for life and shall also liable to fine. We are only passing an order of conviction for an offence punishable u/s 302 IPC sentencing the accused to undergo imprisonment for life, the question of hearing the accused will not arise.
21. In view of what is stated hereinabove, the appeal preferred by the State against the order of acquittal (Criminal Appeal No. 511/85) is allowed. The order of conviction recorded by the trial Court for an offence punishable under section 304/Part.II is quashed and set aside. The accused is convicted for an offence punishable under section 302 of the Indian Penal Code and is sentenced to suffer life imprisonment. As the accused is sentenced to undergo life imprisonment, we do not pass any sentence for an offence punishable under section 37(1) and 135 of the Bombay Police Act.
22. Criminal Appeal No. 512/85 filed by the State against the order granting benefit of the Probation of Offenders Act has become infructuous as the accused is now not entitled to the said benefit in view of the fact that in Criminal Appeal No. 511/85, he is convicted for an offence punishable under section 302 and sentenced to suffer life imprisonment.