Gujarat High Court
Dineshbhai Shankarbhai Chaudhary ... vs State Of Gujarat on 2 February, 2021
Equivalent citations: AIRONLINE 2021 GUJ 891
Author: A. J. Desai
Bench: A.J.Desai, A.C. Rao
R/CR.A/1100/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO.1100 of 2015
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE A.J.DESAI Sd/-
and
HONOURABLE MR. JUSTICE A.C. RAO Sd/-
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1. Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2. To be referred to the Reporter or not ? No
3. Whether their Lordships wish to see the fair No
copy of the judgment ?
4. Whether this case involves a substantial No
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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DINESHBHAI SHANKARBHAI CHAUDHARY (PATEL)
Versus
STATE OF GUJARAT
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Appearance :
MR CHETAN K PANDYA for the Appellant.
MR R. C. KODEKAR, Additional Public Prosecutor for the Respondent.
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CORAM : HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE A.C. RAO
Date : 02/02/2021
ORAL JUDGMENT
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R/CR.A/1100/2015 JUDGMENT (PER : HONOURABLE MR. JUSTICE A. J. DESAI)
1. By way of the present appeal under Section 374 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order dated 8.4.2015 passed by the learned 4th Additional District & Sessions Judge, Banaskantha District at Deesa in Sessions Case No.19 of 2013 by which the appellant has been sentenced for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and ordered to undergo life imprisonment for a period of 20 years with remission as per law and fine of Rs.1,000/- and in default of payment of fine, simple imprisonment of three months.
2. The appeal came to be admitted on 4.1.2016.
3. The short facts arise from the record are as under :-
3.1 That one Sujabhai Ajabhai Chaudhary (Patel) lodged one FIR being I C.R. No.89 of 2012 with P.S.I., Dhanera at C.H.C. Dhanera on 25.11.2012 at around 19.00 hours and declared that on the said date, at around 17.30 hours in the evening, when he was present at his field, he heard a big noise of collision on open road and, therefore, he rushed at the place from which the noise was heard. At that time, he found that his uncle, namely, Joitabhai Kevdabhai Chaudhary was attacked by the present appellant -
Dinesh Shankarbhai Chaudhary who is his distant nephew and had given a knife blow near the left under arm of Joitabhai Chaudhary. It is further stated in the FIR that the said Joitabhai Chaudhary had raised an alarm and, therefore, the complainant had reached at the place of incident and at that time, one Shankar Nagabhai and Masumbhai Nagabhai and other person also reached at the place of Page 2 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT incident and at that time, the present appellant ran away from the scene of offence along with the knife. At that time, Joitabhai Chaudhary informed the complainant and other persons who were present there, that quarrel between him and the appellant took place as to who would reverse the Tractor and, therefore, knife blow has been given by the appellant. It is further alleged that immediately thereafter, Joitabhai became unconscious and the complainant along with other persons took Joitabhai to the nearest Hospital where he was declared dead.
3.2 In pursuance to the registration of FIR, the appellant came to be arrested on 26.11.2012. Subsequent to the complaint lodged by the complainant, the Police Officer started investigation and having found sufficient evidence against the appellant accused, submitted a charge-sheet in the Court of learned Judicial Magistrate First Class, who in turn committed the case to the Court of Sessions at Deesa, Banaskantha District having jurisdiction to deal with the offence punishable under Section 302 of the IPC.
3.3 The charge came to be framed at Exh.13 for the offence punishable under Section 302 of the IPC, which was denied by the appellant accused and, therefore, the learned Additional Sessions Court proceeded with the trial.
3.4 The prosecution examined in all 8 witnesses to prove the case. The appellant accused did not examine any witness. Further statement of the appellant accused was recorded under Section 313 of the Code. The prosecution also produced documentary evidence in the form of complaint, Panchnama of scene of offence, Panchnama of recovery of weapons etc. Page 3 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT 3.5 The learned 4th Additional District & Sessions Judge, Banaskantha District at Deesa after perusing and scrutinizing the evidence led before him, by the judgment and order dated 8.4.2015 found the appellant guilty of having committed offence under Section 302 of the IPC and ordered the appellant to undergo life imprisonment for a period of 20 years with remission as per law and fine of Rs.1,000/- and in default of payment of fine, simple imprisonment of three months.
3.6 Hence the present appeal.
4. Mr. Chetan Pandya, learned advocate appearing for the appellant, at the outset, would submit that it is an undisputed fact that deceased Joitabhai had expired in the incident in question wherein the appellant has been convicted for the offence punishable under Section 302 of the Code. However, he would like to emphasis to convert the said sentence under Section 304 of the Code, more particularly, Part II of the said Section. He, therefore, has not pleaded the total innocence of the appellant from the case and requested to reduce the sentence of the appellant accordingly by treating the same under Section 304 Part II of the IPC. He would further submit that the offence cannot be treated as murder as defined under Section 300 of the IPC, but would fall under Exception 4 of Section 300 of the IPC. He would further submit that he would establish that the culpable homicide is not amounting to murder and falls under Exception 4 of Section 300 IPC and hence, the case would fall under Section 304 of the IPC.
4.1 Mr. Pandya would further submit that from the inception of the case i.e. lodgment of the FIR, it is the case of the complainant side and the prosecution as well, that on the date of Page 4 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT incident i.e. 25.11.2012, the incident has taken place near the field of complainant Sujabhai Ajabhai Chaudhary (Patel) (P.W.1 Exh.25) at around 17.30 hours in the evening on kachcha road having width of 6 Feet and a slope of 8 Feet which is established from the Panchnama of scene of offence Exh.46 as well as from the map Exh.54. He would further submit that it is an established fact from this Panchnama as well as say of the complainant and other witnesses that on the said kachcha road, only one vehicle can pass at a time. He would further submit that it is an admitted position that the appellant as well as the deceased were coming on the said road from opposite directions on their individual Tractors driven by each of them. Both these Tractors dashed with each other which can be seen from the scene of Panchnama prepared immediately. He would further submit that at that time, as per the say of the deceased Joitabhai who made oral dying declaration before the complainant as well as witnesses that some quarrel had taken place that who would reverse the Tractor and permit the other one to pass on. He would further submit that the Panchnama establishes that after collision between the two Tractors, both of them i.e. appellant as well as deceased Joitabhai got down from the Tractor and some scuffle took place wherein it is alleged that the appellant had given a knife blow on the left side of under arm, at a distance of about 43 Feet from the place where both the Tractors were lying. He would further submit that because of this altercation, some fight took place and in the heat of passion, the appellant gave only one knife blow which resulted into death of the said Joitabhai. He would further submit that neither it is the case of the prosecution nor the charge against the appellant that the appellant had premeditated of committing offence of murder. There is no evidence led by prosecution that the appellant was aware that the deceased was going to pass through the road on his Tractor and, Page 5 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT therefore, the appellant had deliberately took out the quarrel and gave a knife blow with an intention to kill deceased Joitabhai. He has also taken us through the deposition of P.W.1 complainant - Sujabhai Ajabhai Chaudhary (Patel) Exh.25 and would submit that in his examination-in-chief itself, the complainant has stated that when he asked the deceased Joitabhai, who happens to be his uncle, about giving of knife blow by the appellant, he informed that there was a quarrel about who would reverse the Tractor and because of this quarrel, knife blow was given by the appellant. Similar is the say of other witness Shankar Nagabhai Chaudhary Exh.42, who happens to be uncle of deceased Joitagbhai. The said witness has further stated that deceased Joitabhai had stated the reason that dispute with regard to two moving Tractors between two i.e. appellant and deceased as to who who would take reverse, the appellant had given knife blow to deceased. Further, deposition of another witness P.W.4 Jagmal Vajeshibhai Chaudhary Exh.51 and P.W. 5 Mansungbhai Nagajibhai Nagabhai Chaudhary Exh.53 is also on the same line. He, therefore, would submit that combined reading of information immediately given to the concerned Police Station in the nature of FIR as well as the depositions of the witnesses recorded by the learned Trial Court, it is an undisputed fact that on the road which is having 6 Feet width, two Tractors which were driven by the appellant and the deceased, dashed with each other. He would further submit that Panchnama Exh.46 and map of scene of offence Exh.54 established that the Tractors were found in collision condition and the blood of deceased was found on the ground at a distance of around 46 Feet. He would further submit that it is not the case of the prosecution that the deceased who was driving the Tractor was attacked by the appellant when he was sitting on the Tractor itself. He would further submit that the blood stains found in the field establishes Page 6 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT that the deceased had got down from the Tractor after altercation wherein a knife blow was given by the appellant and, therefore, his case would squarely cover Exception 4 of Section 300 of the IPC.
4.2 Mr. Pandya would further submit that the prosecution has tried to establish the intention on the part of the appellant to commit the offence by alleging that the appellant had some dispute with his widow paternal aunt, namely, Bhuriben about the ancestral property and since deceased Joitabhai was supporting the said Bhuriben, the appellant had committed the offence of murder. However, the prosecution has miserably failed in establishing the said aspect. He would further submit that the prosecution has not examined said Bhuriben though she was shown as witness when the charge-sheet was submitted before the learned Magistrate. He would submit that deceased Joitabhai might be a distant relative to the appellant at 3rd or 4th generation and is having his own land and hence, the appellant was not concerned with the so-called dispute amongst father and grandfather of the appellant and his widow paternal aunt Bhuriben. He would further submit that after lodgment of the FIR at the instance of Bhuriben on behalf of herself and on behalf of her minor son, filed a civil suit against grandfather and father of the appellant claiming share in the ancestral land wherein her three paternal aunts (father's sisters) are also joined with the said Bhuriben. However, the appellant has not been joined as defendant in the said suit. By taking me through the plaint of Special Civil Suit No.114/2012 filed by Bhuriben wherein she has claimed property rights and the documents with regard to revenue proceedings, Mr. Pandya would submit that the appellant is not in the picture at all since mutating the name of Bhuriben was objected by grandfather of the appellant since he was alive and was not interested to mutate the name of Bhuriben during his life time.
Page 7 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022R/CR.A/1100/2015 JUDGMENT Therefore, it cannot be said that there was anonymity between the appellant and Bhuriben at the time of incident wherein deceased Joitabhai is nowhere connected. No other criminal proceedings prior to the lodgment of FIR has been filed either by Bhuriben or deceased Joitabhai or any other person against the appellant or any other family members including the father and grandfather of the appellant. He, therefore, would submit that it cannot be said that when the appellant gave knife blow to the deceased, keeping grudge against deceased Joitabhai with premeditation, and had gone with the knife and was in search of a chance to commit murder of Joitabhai who was not at all concerned with the family of the appellant. By taking us through the cross-examination of P.W.1 Sujabhai Ajabhai Chaudhary (Patel), he would submit that the land is already bifurcated amongst the family members. Even the pedigree which is produced on the record at Exh.28 suggest that deceased Joitabhai is not concerned with the family of his grandfather, namely, Kanbi Rakhabhai Kevdabhai.
4.3 Mr. Pandya would further submit that in a spur of moment, knife blow was given to the deceased which cannot be treated that the appellant has acted in cruel or unusual manner. He has taken us through the deposition of Medical Officer Dr. Shailendra Chandravansinh Parmar Exh.55 who has performed the P.M. Note and would submit that except a single injury, no other injury is found on the body of the deceased. He, therefore, would submit that though it is a culpable homicide, it would not amount to murder and would fall under Exception 4 of Section 300 of the Indian Penal Code since there is absence of evidence of premeditation, on the contrary there is ample evidence that incident has taken place in a sudden fight and in the heat of passion upon a sudden quarrel and hence, it cannot be treated that Page 8 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT undue advantage was taken by the appellant and has acted cruel or unusual manner.
4.4 In support of his submissions, Mr. Pandya has relied upon the decision of the Hon'ble Supreme Court in the case of Ranjitham v. Basavaraj and others, (2012) 1 SCC 414 and would submit that in the said case, though the deceased was attacked by five accused and some of the accused held the hands and one of the accused had given one stab blow on left side of the chest, it was held that the accused would be liable to be punished under Section 304 Part II of IPC.
4.5 He has further relied upon the decision of the Hon'ble Supreme Court in the case of Sudhakar v. State of Maharashtra, (2012) 9 SCC 725 and would submit that in a spur of moment, quarrel between the father and son took place and father took out knife and inflicted stab injury and in such circumstances, the sentence was converted from Section 302 IPC to Section 304 Part I IPC.
4.6 He has further relied upon the decision of the Hon'ble Supreme Court in the case of Buddu Khan v. State of Uttarakhand, (2009) 12 SCC 260 and would submit that the Hon'ble Supreme Court in the said case dealing with a single blow given on a sudden fight has held that the conviction can be converted to Section 304 Part I from Section 302 IPC as imposed by the High Court.
4.7 By relying upon the decision of the Hon'ble Supreme Court in the case of Naimuddin v. State of West Bengal, (2010) 1 SCC 123, Mr. Pandya would submit that when there was no Page 9 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT intention to kill a person, a person can be sentenced under Section 304 Part II of IPC.
4.8 Mr. Pandya has further relied upon the decision of the Hon'ble Supreme Court in the case of Rambir v. State (NCT of Delhi) (2019) 6 SCC 122, the Hon'ble Supreme Court has held that even a murder of wife by the husband in spur of a moment can be considered as falling under Exception 4 of Section 300 of IPC and can be sentenced accordingly.
4.9 By relying upon the decision of the Hon'ble Supreme Court in the case of Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770, he would submit that a culpable homicide is amounting to murder or not can be determined by the nature of injury, the circumstances in which the incident has taken place etc. and, therefore, in the present case also, the appellant cannot be held liable for murder under Section 302 of IPC and can be punished under Section 304 Part II of IPC.
4.10 By relying upon the decision of the Hon'ble Supreme Court in the case of Manoj Kumar v. State of Himachal Pradesh, (2018) 7 SCC 327 and would submit that in that case also, there was no premeditation to attack the deceased and incident took place after sudden verbal quarrel between the two and hence, the Hon'ble Supreme Court converted the conviction from Section 302 to Section 304 Part II Indian Penal Code and, therefore, the case on hand can be considered on the said line.
4.11 He, therefore, would submit that considering the above aspects of the matter, the impugned judgment and order convicting the appellant under Section 302 IPC may be modified and the Page 10 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT sentence imposed upon the appellant may be converted to Section 304 Part II IPC.
5. On the other hand, Mr. R. C. Kodekar, learned Additional Public Prosecutor appearing for the respondent - State would submit that single blow had resulted into death itself and hence, it would not automatically fall under Section 304 of IPC. He would further submit that the appellant who was a young man aged 20 years and the deceased was aged about 55 years who can be treated as helpless person in such situation. He would further submit that the FIR was lodged within no time after the incident wherein it has been specifically stated that the appellant was running away with the knife and Joitabhai was found having sustained serious injury. All the other witnesses have also seen the appellant running away with a knife which was discovered at the instance of the appellant himself from a place where the appellant only was having knowledge. He would further submit that though there might be an accident between two vehicles, but the appellant was carrying a knife which is 17 cm long and having handle of 13.5 cm and the same has been used in the crime, suggests the intention of the appellant. There was no reason for the appellant to travel with such a deadly weapon in his day to day life. The only reason for keeping such a weapon can be known from the mind of the person who is keeping such weapon. He would further submit that the bloodstains are found at a distance of 46 Feet from the place where the Tractors are lying and in such circumstances, it is possible that the deceased might have tried to run away from the place. However, the appellant has used the knife and gave a blow which had resulted into immediate death of deceased Joitabhai. He would further submit that the knife which was discovered at the instance of the appellant was found with bloodstains which was Page 11 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT established by Forensic Serological Report Exh.66 that the bloodstains are of deceased i.e. of A Group.
5.1 By taking us through the deposition of Medical Officer Dr. Shailendra Chandravansinh Parmar Exh.55, he would submit that insize stab wound in measurement of 8X2X10 c.m. was found and internal injury insize would in measurement 6X6X6 c.m. Left lung, which resulted into immediate death of deceased Joitabhai. He has also taken us through the P. M. Note Exh.56 wherein the injury is discovered as sharp injured stab wound on left lateral side of upper chest and the said injury is the cause of death. He would further submit that it was a premeditation and pre-planned murder to see that deceased Joitabhai is done away since he was helping Bhuriben, who is widow paternal aunt of the appellant, for claiming her right over the property and the appellant was looking for a chance to done away the deceased and, therefore, when a small quarrel occurred, the appellant attacked the deceased aged about 55 years in such a manner that he would not survive. He would submit that the case can be treated as a murder since it is done with an intention of causing such bodily injury which is sufficient in the ordinary course of nature to cause death.
5.2 Mr. Kodekar would further submit that the case would not fall under Exception 4 of Section 300 IPC as submitted by learned advocate appearing for the appellant since the act itself is a premeditated one and the appellant has taken undue advantage by attacking the person who had no weapon with him. He would further submit that the knife blow given on the chest is required to be treated as cruel in nature and, therefore, when these two ingredients are not satisfied, accused cannot be entitled for getting benefit under Exception 4 of Section 300 IPC. He would further Page 12 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT submit that the decisions relied upon by learned advocate appearing for the appellant are distinguishable since the weapon which has been used in the crime is found handy when sudden quarrel took place and a single blow was given to the deceased and in such circumstances, the cases were considered for sentencing a person under Part II of Section 304 IPC. He would further submit that single blow itself would not entitle a person for getting benefit under Section 304 IPC.
5.3 In support of his submissions, Mr. Kodekar has relied upon the well known decision of the Hon'ble Supreme Court in the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 and would submit that a person who is keeping a knife and giving blow on the vital part i.e. on the chest can be treated as an intentional one and in such circumstances, the Court has to examine whether there is any bodily injury present and there was no intention to inflict such bodily injury which was not accidental or unintentional and such injury would in ordinary course of nature, would cause death of a person. In the present case, all these ingredients are established by the prosecution.
5.4 He has also relied upon the decision of the Hon'ble Supreme Court in the case of State of Rajasthan v. Kanhaiya Lal, (2019) 5 SCC 639 and would submit that it has been held by the Hon'ble Supreme Court that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. Nature of weapon used and vital part of body, where blow is struck, would prove intention of accused to cause death of deceased. Once such ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows. Similar is the law laid down by the Hon'ble Supreme Court in the case of Page 13 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT State of Rajasthan v. Leela Ram alias Leela Dhar, (2019) 13 SCC 131, Pulicherla Nagaraju alias Nagaraja Reddy, (2006) 11 SCC 444.
5.5 By taking me through the above referred decisions, he would submit that the Hon'ble Supreme Court has considered various decisions and has held that the mere fact when there was a single blow, is not a circumstance which would warrant conviction under Section 302 IPC being altered to one under Section 304 Part II IPC. He, therefore, would submit that the appeal be dismissed and the impugned judgment and order of conviction may not be altered.
6. We have heard learned advocates appearing for the respective parties and perused the Records and Proceedings and have scrutinized the depositions of the witnesses as well as gone through the documentary evidence produced on record. As submitted by Mr. Chetan Pandya, learned advocate appearing for the appellant that he is not challenging the occurrence of the incident and is requesting for converting the sentence for the offence punishable under Section 302 IPC to Section 304 Part II IPC, we have examined the case keeping in mind the submissions made and decisions cited before us by learned advocates appearing for the respective parties.
7. Before proceeding with the facts of the case, we would like to have a close look at some of the relevant provisions. Sections 299 and 300 of IPC read 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 Page 14 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT 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.
Explanation 1.-- A person who causes bodily
injury to another who is labouring under a
disorder, disease or bodily infirmity, and
thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.-- Where death is caused by
bodily injury, the person who causes such
bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.
Explanation 3.-- The causing of the death of child in the mother's womb is not homicide.
But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or --
(Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or --Page 15 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022
R/CR.A/1100/2015 JUDGMENT (Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.-- When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisions :-
(First) -- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
(Secondly) -- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
(Thirdly) -- That the provocation is not given Page 16 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.-- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.-- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.-- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation -- It is immaterial in such cases which party offers the provocation or commits Page 17 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT the first assault.
Exception 5. -- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
8. We have examined whether the case would fall under culpable homicide and would be treated as murder defined in Section 300 or would fall under Exception 4 under Section 300 IPC. Therefore, we would like to describe the manner and method in which the incident has taken place and how the person was done to death.
9. The FIR was lodged at the instance of P.W.1 complainant - Sujabhai Ajabhai Chaudhary (Patel) Exh.25 who after the incident, reached at the place, has immediately informed the PSI of Dhanera Police Station and stated that when he reached at the place of incident after hearing huge noise of collision of vehicles, he has seen the appellant running away from the place along with the knife after giving blow on the left side below under arm to deceased Joitabhai. He has categorically disclosed in the FIR as well as in the deposition that when he reached at the place of incident, he found deceased Joitabhai lying on the ground and on inquiry, deceased informed him that there was quarrel as to who would reverse the Tractor since it was not possible to pass two Tractors simultaneously in different directions on an open road having width of 6 and 1/2 Feet only. Therefore, it is an admitted position that this witness as well as other witnesses before whom deceased Joitabhai had narrated about the quarrel, none of them were present at the time of altercation or quarrel took out between Page 18 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT the appellant and deceased and, therefore, there is no narration by any of the witnesses about the nature of quarrel and how both of them got down from the Tractor and in what manner, the knife blow was given. Neither the complainant Sujabhai Ajabhai Chaudhary nor other witness P.W. 5 Mansungbhai Nagaji Nagabhai Chaudhary Exh.53 have witnessed the accident and the subsequent quarrel part between the appellant and the deceased. All of them have seen the appellant running away with the knife from the place of incident.
10. The Panchnama Exh.46 as well as Map Exh.54 which is proved at the instance of Panch witness is self-explanatory in the manner that two Tractors have been found in collision condition in a road having width of 6 and 1/2 Feet. So, it is to be accepted and particularly when all the witnesses have stated that the incident is the result of a quarrel about collision and removing the Tractors in which the appellant had given a knife blow. The Panchnama of scene of offence and Map Exh.54 would be that the blood stains is at around 46 Feet away from the Tractors. The same establishes that the deceased has also got down from the Tractor. However, there is no evidence led by the prosecution as suggested by learned Additional Public Prosecutor that the deceased might have tried to run away from the place and he was attacked by the appellant. None of the witnesses has described the incident in the manner in which submissions have been made before this Court.
11. As far as the submission made by learned Additional Public Prosecutor that it was a premeditated offence and for the reason which the prosecution tried to project about the anonymity between the appellant and his family with his paternal aunt Bhuriben, is without any basis in absence of deposition of said Page 19 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT Bhuriben and any material showing the relationship between Joitabhai and either appellant or deceased or any interest in the property belonged to the grandfather of the appellant.
12. It is true that knife which is a deadly weapon is used in incident and prosecution was able to establish that the knife which was discovered at the instance of the appellant is having bloodstains of deceased. However, in absence of any material that the appellant intentionally travelled with a knife and deliberately dashed with the Tractor of the appellant with whom the appellant had no anonymity, the incident has occurred in spur of a moment after some quarrel.
13. Now dealing with the decisions relied upon by learned advocate Mr. Chetan K. Pandya appearing for the appellant is concerned, in the decision in the case of Ranjitham (Supra), it has been held by the Hon'ble Supreme Court that though attacked by several accused and one of them has given a single blow to the deceased by a penknife, the case can be considered for offence under Section 304 Part II IPC. It is true that in the said case, it has been held that penknife is being kept regularly along with the keys by the accused. However, it is to be kept in mind that though the deceased was attacked by several accused, wherein lethal weapon is used, the Hon'ble Supreme Court has treated the case falling under Section 304 II Indian Penal Code.
14. In the case of Sudhakar (Supra), the Hon'ble Supreme Court has treated the case falling in the Ist part of Section 304 Indian Penal Code when the father had given a knife blow to his own son who used to regularly come in drunken condition and abusing him.
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15. In the case of Pulicherla Nagaraju alias Nagaraja Reddy (Supra), the Hon'ble Supreme Court has held that whether the case would fall under Exception 4 of Section 300 of IPC is a pivotal question and is required to be decided by the Court with care and caution. The Court must ensure that cases under Section 302 are not converted to one under Section 304 Part I/II and vice versa and the accused can be considered after gathering the circumstances in which the incident has taken place. In the said case, the Hon'ble Supreme Court has come to the conclusion that the stab injury was not a pre-planned attack and in such circumstances, the Court is supposed to convict a person under appropriate proceedings and sentence accordingly.
16. In the case of Rambir (Supra), in paragraph 16 of the decision, the Hon'ble Supreme Court has observed as under :-
"16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required :
(i) There must be a sudden fight;
(ii) There was no premeditation;
(iii) The act was committed in a heat of passion;
and
(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.
By applying the above tests, the High Court has found that two of the ingredients are absent so as to bring the case of the appellant under Exception 4 to Section 300 IPC. The High Court has found that the act of picking up a 'saria' and compressing forcefully the neck of his wife Page 21 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT by the appellant, can, by no stretch of imagination, be said to be an act committed in a heat of passion. Further it is held that, the manner in which the appellant compressed his wife's neck also depicts an act of extreme cruelty."
Now if we examine the facts of the case and circumstances which have been brought on record by the prosecution itself, the four ingredients referred to herein above are satisfied, in our opinion, since there was sudden fight subsequent to collision of two different Tractors driven by the appellant and the deceased and hence, there is no question of premeditation subsequent to quarrel in a hit of passion, the incident has taken place since both of them have come down to ground and it cannot be said that the appellant had taken undue advantage by committing the offence in a cruel or unusual manner since one blow was given on the chest. We are not in agreement with the submission of learned Additional Public Prosecutor Mr. Kodekar that giving a single knife blow is also required to be treated as offence committed in cruel manner.
17. In the case of Manoj Kumar (Supra), similar are the observations made by the Hon'ble Supreme Court in paragraph 27 of the decision and, therefore, the same are not repeated.
18. In the case of Tularam v. State of Madhya Pradesh, (2018) 7 SCC 777, subsequent to altercation, the person was attacked with Lathis and given several blows which resulted into death. In paragraph 9 of the said decision relying upon the decision in the case of Surain Singh v. State of Punjab, (2017) 5 SCC 796, the Hon'ble Supreme Court has observed as under :-
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"9. Recently in Surain Singh v. State of
Punjab, it was observed that:
"The help of Exception 4 can be invoked if
death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC.........
A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
19. Now dealing with the decisions relied upon by learned Additional Public Prosecutor Mr. Kodekar is concerned, starting with the case of Virsa Singh (Supra), while dealing with a case whether it would fall under Section 300 thirdly or not, we have carefully gone through the said decision. However, it has been Page 23 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT observed in paragraph 15 that if on the totality of the evidence if there is a room for more than one view, as to the intent of the person, it is the duty of the prosecution to prove the case that the same falls squarely under Section 300 thirdly and would not fall under any of the Exceptions provided thereto. As stated herein above, the facts are different than the said case.
20. In the case of State of Rajasthan v. Kanhaiya Lal (Supra), the Hon'ble Supreme Court has held that the single blow itself cannot be treated as offence under Section 304. However, has also observed that in the said case, there was no imminent quarrel between the parties pursuant to which the deceased was attacked and only a single blow was given. It appears from the facts of the said case that in the morning, some altercation took place and the incident of attack with deadly weapon had taken place in the evening. Paragraphs 5.2, 7.1 and 10 of the said decision are reproduced herein below to compare the facts of the case on hand with the facts in the case of Kanhaiya Lal.
"5.2 It is further submitted by learned Counsel appearing on behalf of the appellant -
State that another reason given by the High Court is that there was an altercation between the accused and the deceased and so it can be said that in the circumstances of the case there was no intention to cause death on the part of the accused - appellant. It is submitted that however the High Court has failed to consider and appreciate/re-appreciate the fact that at the time when the incident had taken place, there was no altercation at all Page 24 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT and the altercation was before few hours and not at the time when the incident had taken place.
7.1 We have considered in detail the Judgment and Order passed by learned Sessions Court as well as the impugned Judgment and Order passed by the High Court. The learned Sessions Court convicted the accused for the offence under Section 302 of the IPC. However, in an appeal preferred by the accused, the High Court has converted the conviction from Section 302 of the IPC to Section 304 Part I of the IPC. While doing so, the High Court has assigned the following reasons in paragraph 15:-
"15. In the circumstances of the case, it is proved beyond doubt that Rajmal had died because of single injury caused on his head by accused - appellant Kanhaiya Lal by an axe. It is also an admitted fact that there was no repeated injury and further more, it is also on record that in the morning of the day of the incident, there was an altercation between the accused and the deceased and so it can be said that in the circumstances of the case, that there was no intention to cause death on the part of the accused - appellant but the act by which the death was caused appears to have done with the intention of causing such bodily injury as was likely to cause death and so his conviction deserves to be altered from Section 302 of Indian Penal Code to Section 304 Part I of Indian Penal Code." 6.2 Now so far as the Page 25 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT main reason given by the High Court while converting the conviction from Section 302 of the IPC to Section 304 Part I of the IPC i.e. it was a case of a single blow is concerned, it is required to be noted that the deceased had died because of single injury caused on his head by the accused by an axe. The aforesaid can hardly be a ground to convert the conviction from Section 302 of the IPC to Section 304 Part I of the IPC.
10. Another reason given by the High Court is that there was no repeated injury. Aforesaid can hardly be a ground to convert the conviction from Section 302 to Section 304 Part I of the IPC. A single blow on the vital part of the body like head and that too by deadly weapon - axe and used with force which proved to be fatal, was sufficient to hold that it was a case of murder within the definition of Section 300 of the IPC. 8.1 Another reason given by the High Court is that in the morning on the day of the incident, there was an altercation between the accused and the deceased and so it can be said that in the circumstances of the case there was no intention to cause death on the part of the accused but the fact by which the death was caused appears to hold down that the intention of causing such bodily injury as was likely to cause death. The aforesaid is contrary to the evidence on record. It is required to be noted that it is not a case on behalf of the accused that there was an altercation between the accused and the deceased at the time of commission of the offence. The altercation, if Page 26 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT any, had taken place, in the morning and much earlier than the time of incident. Merely because the altercation might have taken place much earlier and not immediately prior to and/or at the time of commission of the offence, it cannot be inferred that there was no intention on the part of the accused to cause death of the deceased. Therefore, on the aforesaid ground, the High Court has committed a grave error in converting/altering the conviction from Section 302 of the IPC to Section 304 Part I of the IPC. Thus, we are of the view that the judgement of the High Court is manifestly perverse and is totally contrary to the evidence on record. The High Court has committed a grave error in altering the conviction from Section 302 of the IPC to section 304 Part I of the IPC and therefore the interference of this Court is warranted to obviate a complete failure of interest of justice."
21. In the present case, it is an undisputed fact that there is no material or evidence that in past or in near future or in the morning hours or before one or two hours, any incident had taken place between the appellant and deceased Joitabhai and for the same, the appellant had kept knife and was waiting to take revenge or to make such bodily injury to the deceased which may result into death. Hence, the said judgment is not applicable to the facts of the present case.
22. In the case of State of Rajasthan v. Leela Ram alias Leela Dhar (Supra), the Hon'ble Supreme Court has dealt with applicability of Section 302 and 304 Part I or II IPC. We have gone Page 27 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022 R/CR.A/1100/2015 JUDGMENT through the facts of the said case. It appears that the deceased was attacked by three persons when he was passing with deadly weapons. Out of three, one of them gave a blow with deadly weapon on the skull which resulted into death. While considering several decisions of the Hon'ble Supreme Court itself, the Hon'ble Supreme Court has also dealt with the applicability of Exception 4 which is reflected in paragraph 19 of the said judgment.
23. At the cost of repetition, the facts are not reproduced herein below since the facts of the case are not comparable with the case on hand. Hence, in our opinion, when the incident has taken place subsequent to altercation between two persons i.e. appellant and deceased Joitabhai which has resulted into quarrel and the appellant had given a single blow with knife, the offence would fall under Section 304 Part II IPC and not under Section 302 IPC. Considering the force used by the appellant and the immediate death of the person, we are of the opinion that the appellant can be sentenced under Section 304 Part II IPC and can be sentenced for a period of 10 years.
24. The appeal stands partly allowed. The impugned judgment and order dated 8.4.2015 passed by learned 4th Additional District & Sessions Judge, Banaskantha District at Deesa in Sessions Case No.19 of 2013 is hereby modified and the appellant is hereby sentenced under Section 304 Part II of the Indian Penal Code, 1860 and ordered to undergo sentence for a period of 10 years with remission as per law and fine of Rs.1,000/- and in default of payment of fine, simple imprisonment of three months.
Registry is directed to send the Records and
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R/CR.A/1100/2015 JUDGMENT
Proceedings to the learned Trial Court forthwith.
Registry is directed to communicate this order to the concerned Jail Authority by email message forthwith.
Sd/-
(A. J. DESAI, J) Sd/-
(A. C. RAO, J) SAVARIYA Page 29 of 29 Downloaded on : Wed Jan 12 06:03:21 IST 2022