Gujarat High Court
Turiyabhai Shaniyabhai Rathwa vs State Of Gujarat on 14 July, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 826 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI Sd/-
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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TURIYABHAI SHANIYABHAI RATHWA
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK BRAHMBHATT, ADVOCATE for the Appellant
MR HK PATEL, APP for the Respondent - State
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 14/07/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. Feeling aggrieved and dissatisfied with the judgment and order of conviction dated 17.07.2012 passed by the learned 3 rd Additional Sessions Judge, Chhota Udepur in Sessions Case No.79 of 2010 for Page 1 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 the offence under Section 302 of the Indian Penal Code, 1860, the appellant - accused has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973 ("the Code" for short), whereby the appellant - accused is convicted for the offence punishable under Section 302 of the Indian Penal Code and is ordered to undergo life imprisonment and fine of ₹500/-, and in default of fine, is ordered to undergo further rigorous imprisonment of three months.
2. The case of the prosecution in nutshell is that on 19.09.2010 at about 18:00 hours, the complainant - Saifuddin Akbarali Vora was sitting in the wooden cot alongwith his wife in Varandah of his house and watching the television. His son - Mansur was sitting in the chair and watching the television and one neighbour - Dhanshukh Nuriya Rathwa was also watching the television there. At that time, Turiyabhai Shaniyabhai Rathwa, who was a resident of his area, armed with Hoe, came there and demanded for two Miraz pouch from my son - Mansur. Therefore, my son Mansur has told me to give Miraz and the complainant has given Miraz to Turiyabhai. Without uttering any words, said Turiyabhai Shaniyabhai Rathwa has given Hoe blow to the son of the complainant i.e. Mansur on his neck below left ear. Mansur died on the spot and he fell down from the chair. Turiyabhai Shaniyabhai Rathwa has immediately left the place of offence along with said weapon - Hoe. Thus, the complainant lodged the complaint with regard to the incident before the Rangpur Police Station, which was registered as C.R.- I No. 47 of 2010 for the offence under Section 302 of the Indian Penal Code, 1860 and Section 135 of the Bombay Police Act.
3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence in form of medical evidence and drawn various Page 2 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against the appellant accused, charge-sheet came to be filed in the Court of learned Judicial Magistrate, First Class, Chhota Udepur. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Judge, Chhota Udepur as provided under section 209 of the Code.
4. Upon committal of the case to the Sessions Court, Chhota Udepur, learned Sessions Judge framed charge at Exh.6 against the appellant - accused for the aforesaid offence. The appellant - accused pleaded not guilty and claimed to be tried.
5. In order to bring home charge, the prosecution has examined 11 witnesses, which is mentioned in para : 5 of the impugned judgment and order and also produced various documentary evidence before the learned trial Court, which is mentioned in para 5.2 of the impugned judgment and order.
6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the appellant - accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the appellant - accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge convicted the appellant - accused from the offences, for which he was tried, as the prosecution has proved the case beyond reasonable doubt.
7. Heard learned advocates at length and perused the record and proceedings of the trial Court.
Page 3 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 8.1 Learned advocate Mr. Hardik Brahmbhatt for the appellant - accused has submitted that the judgment and order of conviction and sentence passed by the learned Judge is contrary to law, against the express provisions of Statute and against the evidence on record. He has further submitted that the learned Judge ought to have considered the facts that the prosecution has failed to prove the guilt against the accused and the evidence adduced by the prosecution is not even sufficient to raise suspicion against the accused. He has further submitted that the learned Judge has not properly appreciated the evidence on record which has resulted into miscarriage of justice and also wrong judgment and order of conviction and sentence.
8.2 He has submitted that the learned Judge has failed to appreciate the fact that admittedly there is no premeditation or motive coming out from the mouth of prosecution to suggest that the accused - appellant has gone there to commit the murder of the deceased, which is being specifically observed by the Hon'ble Court in internal para 11.1 of the said judgment of conviction. In such facts and circumstances, convicting the appellant - accused for an offence under Section 302 of the Indian Penal Code and punishing him for life imprisonment was totally unwarranted.
8.3 He has further submitted that the learned Judge ought to have appreciated the fact that the only incident, which has occurred is that while deceased was sitting outside his house alongwith his father, appellant - accused comes to him and twice demands a tobacco packet from him in turn telling the father of the deceased to bring a tobacco packet, which was lying inside the house, despite it was handed over and given in the hands of the appellant - accused, Page 4 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 by such exercise and that deceased refused did not give the said packet as asked for, the appellant - accused got annoyed and immediately a Hoe blow was inflicted on the left side on the neck of the deceased to which the deceased succumbed to death. Therefore, he has submitted that on such ground, the only case, which goes against the accused at the most is of section 304 (Para II) of Indian Penal Code since there was no intention projected by the prosecution in the entire incident, which has given a stronger reason to the appellant accused to commit the murder of deceased.
8.4 He has submitted that the learned Judge lost site of the fact that even otherwise there are two sets of eye witnesses surfaced on the record out of which one set of eye witness is supporting the case of the prosecution, who happens to be the father of the deceased, while the other set of eye witness, who was present at the time of incident namely Dhansingbhai Nariyabhai does not go to support the case of the prosecution as alleged. In such eventuality also where two sets of evidence have come and true genesis of crime is not getting disclosed as discussed by the Hon'ble Court below, the view which is favouring the accused ought to have been adopted and he ought to have been acquitted for the charges levelled against him.
8.5 He has submitted that the learned judge has failed to appreciate the fact that a very important piece of evidence as far as the weapon used in the murder is concerned, it has not conclusively proved that there was a blood of the accused found on such weapon as it was found as uncertain as per finding of the Serological report, in such eventuality also the appellant - accused could and ought not to have been convicted by the Hon'ble Court as there are number of missing links in the prosecution case, which remained missing till the end of the trial.
Page 5 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 8.6 In support of his submission, he has relied upon the decision of the Hon'ble Apex Court in the case of Stalin versus State represented by the Inspector of Police reported in 2020(0) AIJEL-SC 66505.
8.7 He has submitted that the appellant may be acquitted and the present appeal may be allowed.
8.8 He has alternatively submitted that the case of appellant can be considered for conviction under Section 304 (Part I/II) of the Indian Penal Code.
9.1 Per contra, learned APP Mr. Patel for the respondent - State has vehemently opposed the appeal. He has submitted that the trial Court has not committed any error in recording conviction. He has submitted that looking to the deposition of PW1 - Saifuddin Akbarali Vora at Exh.17 and PW2 - Jehrabibi Saifuddinbhai Vora at Exh.20, who are the eye-witnesses, it reveals that the appellant - accused has come to the place of deceased, armed with weapon - Hoe ('Paliya' in local language). The appellant - accused has given Hoe blow to the deceased without exchanging any hot words and ran away with the weapon.
9.2 He has further submitted that the said eye-witness i.e. PW1 has identified the said weapon before the trial Court. He has submitted that by showing Hoe to PW9 - Dr. Bhargav Dineshbhai Dave, Medical Officer, Chhota Udepur, he has deposed at Exh.51 that the injuries found on the body of the deceased could be made by the said weapon. He has submitted that the trial Court has rightly considered the evidence - oral as well as documentary on record and passed the Page 6 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 conviction order. He has submitted that the trial Court has rightly considered the incident vis-a-vis the postmortem report and serological report. He has further submitted that the trial Court has rightly considered the blows given by the accused, so also the intention and motive of the accused.
9.3 He has relied upon the following decisions in support of his submissions :
(i) (2019) 5 SCC 639 - State of Rajasthan versus Kanhaiya Lal
(ii) (2019) 13 SCC 131 - State of Rajasthan versus Leela Ram 9.4 He has submitted that the trial Court has rightly passed the impugned judgment and order, therefore, no interference is required by this Court in it.
10. We have heard learned advocates appearing for the respective parties. We have perused the record and proceedings of the trial Court. We have gone through the impugned judgment and award passed by the trial Court. We have re-appreciated the entire evidence on record.
11.1 This is a pre-planned murder, with full intention of causing death.
11.2 It clearly reveals that the appellant - accused has come to the house of the deceased with the weapon with an intention to kill the deceased.
11.3 It can be said that the appellant - accused has therefore knowledge and intention to cause death of the deceased as he came with iron Hoe.
Page 7 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 11.4 There was neither scuffle nor exchanging hot words between the appellant - accused and the deceased, as can be seen from the charge at Exh.6 as well as from the deposition of the eye- witnesses - PW1 & PW2.
11.5 There were three eye-witnesses to the incident. Two are the parents of the deceased and one is the third person, who declared hostile later on.
11.6 Looking to the oral testimonies of both the eye-witnesses i.e. PW1 - Saifuddin (Exh.17) and PW2 - Jehrabibi (Exh.20), they have supported the case of the prosecution. The incident has happened in front of them. They have deposed that the appellant - accused came with a weapon to the deceased, there were no exchange of hot words between the appellant - accused and deceased, even though he hit the deceased and caused serious injury on the vital part of the body and ran away from the place of incident with the weapon.
11.7 Thus, it is clear that the deceased died due to the injury caused by the appellant - accused. Further, the appellant - accused came with a weapon at the house of the deceased, so it was premeditated act. Though there was no exchange of hot words between the appellant - accused and the deceased, the appellant - accused gave Hoe blow to the deceased without any provocation, by which the deceased died on the spot as such blow is given on the vital part of the body with full force and in cruel manner. Therefore, it can be said that the appellant - accused has prior intention to kill the deceased.
11.8 Further, considering the inquest panchnama at Exh.43, Page 8 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 there were no other injuries on the body of the deceased except one which is stated in the complaint. The deposition of PW-9 - Dr. Bhargav Dineshbhai Dave at Exh.51 vis-a-vis the postmortem report at Exh.53 support the inquest panchnama. The cause of death mentioned in the postmortem report suggests that it was an injury sustained by sharp object on left side of neck and therefore, it was cardio-respiratory arrest because of neurogenic of hemorrhagic shock. At this juncture, it is necessary to refer to the deposition of PW9 - Dr. Bhargav Dave at Exh.51, who has clearly stated in his deposition by seeing the weapon - Hoe that there was possibility of getting injuries by the said weapon. From the serological report, in which blood of deceased was found on the clothes of accused and from the deposition of Investigating Officer at Exh.60, the contents of discovery panchnama is proved satisfactorily. The other panch witness Desingbhai at Exh.48 also supports the case of the prosecution about blood marks on various articles recovered from the place of incident. Therefore, all the evidence corroborate each other and thereby support the case of the prosecution.
11.9 Thus, it is clear from the corroboration of the above evidence that the prosecution has rightly proved its case beyond reasonable doubt. It is fruitful to refer to relevant portion of Sections 299 and 300 of the Indian Penal Code, which are reproduced as under :
"Sec.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.
Explanation 1.- A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, Page 9 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 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 skilful treatment the death might have been prevented.
Explanation 3.- The causing of the death of a 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.
Sec.300. Murder : Except in the case hereinafter excepted, 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.
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 Page 10 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos :-
First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.- That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
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 Page 11 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
In the present case, there is an intention of causing bodily injury as the appellant - accused came to the house of the deceased with iron Hoe. He gave Hoe blow grievously to the deceased on the vital part of the body, without exchanging any hot words. He ran away after hitting from the place of incident with the weapon. The deceased died on the spot due to the injuries, as supported by the medical evidence. Therefore, it can be said that the appellant - accused has intention of causing bodily injury to the deceased, which he knows that it is sufficient to cause death.
11.10 It is relevant to note the observations of the Hon'ble Apex Court in the case of State of Rajasthan versus Kanhaiya Lal reported in (2019) 5 SCC 639, more particularly paras : 7 to 10, which are as under :
"7. Heard the learned Advocates appearing for the respective parties at length.
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 Page 12 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 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."
7.2 Now so far as the 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.
7.3 In the case of Arun Raj (Supra) this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
Page 13 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 7.4 In the case of Ashokkumar Magabhai Vankar (Supra), the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 of Section 300 of the IPC. It is held by this Court that the injury sustained by deceased, not only exhibits intention of accused in causing death of victim, but also knowledge of accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death.
7.5 A similar view is taken by this Court in the recent decision in the case of Leela Ram alias Leela Dhar (Supra) and after considering catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether a case falls under section 302 or section 304 Part I or section 304 Part II, this Court reversed the judgment of the High Court (in that case also the judgment impugned was from the Rajasthan High Court) and convicted the accused for the offence under section 302 of the IPC. In the same decision, this Court also considered Exception 4 of Section 300 of the IPC and observed in paragraph 21 as under:
"21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are :
(i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner."
8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the reasoning given by the High Court while converting the conviction from section 302 to Section 304 Part I, the reasons Page 14 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 stated in paragraph 15 of the impugned Judgment and Order, we are firmly of the view that the judgment of the High Court is manifestly perverse and is totally contrary to the evidence on record. As per the deposition of PW1 Dr. K Asif, the deceased sustained following injuries :
"1. Incised wound 7 cm x 0.5 cm skin deep and bone visible on the middle part of the head.
2. abrasion 1 cm x 0.5 cm on the middle portion of right leg."
As per PW15 Dr. Anees Ahmed, a fracture of 4 cm length was found in the parietal and occipital. He also stated that the said head injury was sufficient to cause death in the ordinary course of nature. Thus, the accused used a deadly weapon axe on the vital part of the body head, which proved to be fatal.
9. 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.
10. 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 any, had taken place, in the morning and much earlier than the time of incident.
Page 15 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 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 judgment 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."
11.11 Further, it is also relevant to note the observations of the Hon'ble Apex Court in the case of State of Rajasthan versus Leela Ram alias Leela Dhar reported in (2019) 13 SCC 131, more particularly paras : 18 to 20, which is as under :
"18. The High Court has, in our view, proceeded entirely on the basis of surmise in opining that the death was caused without pre-meditation and on the spur of the moment. In arriving at that inference, the High Court has evidently ignored the evidence, bearing upon the nature of the incident, the consistent account that it was the respondent who had inflicted the blow, the weapon of offence and the vital part of the body on which the injury was inflicted. The fact that the co-accused, Rajesh and Jagdish, have been acquitted by the Trial Court, is in our view no reason to doubt the testimony of all the eye-witnesses which implicated the respondent. The death was attributable to the assault by the respondent on the deceased, during the course of the incident. Having regard to the above facts and circumstances of the case, it is evident that the injury which was caused to the deceased was [within the meaning of Page 16 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 Section 300 (Fourthly)] of a nature that the person committing the act knew that it was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.
19. In seeking to place the facts of the present case within the Exception 4, the High Court has dwelt on whether the incident took place without pre-meditation.
"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."
Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are : (i) that the act was committed without pre- meditation;
(ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner.
20. While learned counsel appearing on behalf of the respondent sought to place reliance on the statement of the respondent under Section 313 of the Code of Criminal Procedure, 1973, that it was the deceased who came to their house and started pelting stones, it is evident that this defence has no basis in the evidence. Above all, the deceased was unarmed when he was seized upon and assaulted by the respondent."
Thus, in view of above, the motive is not clearly established and is not fatal to case of the prosecution when the eye- witnesses have supported the case of the prosecution.
12. At this juncture, it is required to be considered the other evidence on record i.e. postmortem report, FSL report, serological Page 17 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 report, deposition of the doctor(s) and the investigating officer(s). It is relevant to refer to the decision in the case of Achhar Singh versus State of Himachal Pradesh reported in (2021) 5 SCC 545, more particularly paras : 25 to 28, which are as under :
"25. It is vehemently contended that the evidence of the prosecution witnesses is exaggerated and thus false. Cambridge Dictionary defines "exaggeration" as "the fact of making something larger, more important, better or worse than it really is". Merriam-Webster defines the term "exaggerate" as to "enlarge beyond bounds or the truth". The Concise Oxford Dictionary defines it as "enlarged or altered beyond normal proportions". These expressions unambiguously suggest that the genesis of an 'exaggerated statement' lies in a true fact, to which fictitious additions are made so as to make it more penetrative. Every exaggeration, therefore, has the ingredients of 'truth'. No exaggerated statement is possible without an element of truth. On the other hand, Advance Law Lexicon defines "false" as "erroneous, untrue; opposite of correct, or true". Oxford Concise Dictionary states that "false" is "wrong; not correct or true". Similar is the explanation in other dictionaries as well. There is, thus, a marked differentia between an 'exaggerated version' and a 'false version'. An exaggerated statement contains both truth and falsity, whereas a false statement has no grain of truth in it (being the 'opposite' of 'true'). It is well said that to make a mountain out of a molehill, the molehill shall have to exist primarily. A Court of law, being mindful of such distinction is duty bound to disseminate 'truth' from 'falsehood' and sift the grain from the chaff in case of exaggerations. It is only in a case where the grain and the chaff are so inextricably intertwined that in their separation no real evidence survives, that the whole evidence can be discarded.Page 18 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022
R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022
26. Learned State counsel has rightly relied on Gangadhar Behera (Supra) to contend that even in cases where a major portion of the evidence is found deficient, if the residue is sufficient to prove the guilt of the accused, conviction can be based on it. This Court in Hari Chand v. State of Delhi, (1996) 9 SCC 112. held that :
"24. ...So far as this contention is concerned it must be kept in view that while appreciating the evidence of witnesses in a criminal trial especially in a case of eyewitnesses the maxim falsus in uno, falsus in omnibus cannot apply and the court has to make efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the court must try to see whether the acceptable part of the evidence gets corroborated from other evidence on record so that the acceptable part can be safely relied upon..." (emphasis supplied)
27. There is no gainsaid that homicidal deaths cannot be left to judicium dei. The Court in their quest to reach the truth ought to make earnest efforts to extract gold out of the heap of black sand. The solemn duty is to dig out the authenticity. It is only when the Court, despite its best efforts, fails to reach a firm conclusion that the benefit of doubt is extended.
28. As regard to the appellants' contention that an appellate Court is not justified in reversing the trial Court's judgment unless it was found to be "perverse", it is important to point out that in the instant case, the trial Court being overwhelmed by many contradictions failed to identify and appreciate material admissible evidence against the appellants. The trial Court misdirected itself to wrong conclusions. Suffice it to cite Babu v. State of Kerala, (2010) 9 SCC 189. where this Court observed that :
"12. ...While dealing with a judgment of acquittal, the Page 19 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law..." (emphasis supplied)"
13. It is also relevant to refer to the decision in the case of Karan Singh versus State of Uttar Pradesh and others reported in (2022) 6 SCC 52, more particularly paras : 39 to 43, which are as under :
"39. Referring to Narayan Chetanram Chaudhary and Another v. State of Maharashtra, AIR 2000 SC 3352 Mr. Tyagi argued that minor discrepancies caused by lapses in memory were acceptable, contradictions were not. In this case, there was no contradiction, only minor discrepancies.
40. In Kuriya and Anr. v. State of Rajasthan, (2012) 10 SCC 433 this Court held:
"30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant Page 20 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur v. State of Gujarat, (2012) 5 SCC 724 Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457 Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 and Sukhchain Singh v. State of Haryana, (2002) 5 SCC 100.
31. What is to be seen next is whether the version presented in the Court was substantially similar to what was said during the investigation. It is only when exaggeration fundamentally changes the nature of the case, the Court has to consider whether the witness was stating the truth or not. [(Ref. Sunil Kumar v. State (Govt. of NCT of Delhi, (2003) 11 SCC 367)].
32. These are variations which would not amount to any serious consequences. The Court has to accept the normal conduct of a person. The witness who is watching the murder of a person being brutally beaten by 15 persons can hardly be expected to a state a minute by minute description of the event. Everybody, and more particularly a person who is known to or is related to the deceased, would give all his attention to take steps to prevent the assault on the victim and then to make every effort to provide him with the medical aid and inform the police. The statements which are recorded immediately upon the incident would have to be given a little leeway with regard to the statements being made and recorded with utmost exactitude. It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the court has to be reasonable and practicable. Reference in this regard can be made to Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 and Shivlal v. State of Chhattisgarh, (2011) 9 SCC 561."
41. In Shyamlal Ghosh v. State of West Bengal, (2012) 7 SCC 646 this Court held:
"46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution.Page 21 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022
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49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused."
42. In Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 this Court held:-
"24. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness."
43. As argued by Mr. Tyagi, appearing for the State both PW2 and PW3 had clearly mentioned that the Appellant and PW4 Mahender Singh were both present at the place of occurrence. The Appellant s presence has been proved by two eye witnesses. It has been proved by the eye witnesses, that the Appellant carried a rifle. But PW2 and PW3 deposed that all the accused had opened fire. The prosecution was required to prove its case beyond reasonable doubt, which it has done, and not beyond all iota of doubt. The fact that one of the injured witnesses may not have mentioned the name of Appellant Karan Singh does not demolish the evidence of the other witnesses."
14. With regard to the alternate submission made by learned advocate for the appellant, it is pertinent to note that from the evidence produced by the prosecution, it can be said that the Page 22 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022 R/CR.A/826/2013 JUDGMENT DATED: 14/07/2022 appellant has given Hoe blow to the deceased on the vital part of the body and therefore, he succumbed to the injuries on the spot. Further, blow was given with full force and in cruel manner and the the manner and method in which the incident has taken place, this Court is of the view that case of the appellant does not fall under Section 304 (Part I or Part II) of the Indian Penal Code, as contended by the learned advocate for the appellant.
15. We have gone through the decisions upon which the reliance is placed by the learned advocate for the appellant. However, the said decisions would not render any assistance to the appellant in the facts of the present case.
16. Upon re-appreciation of all the documentary as well as oral evidence on record minutely, we do not agree with the submissions made by learned advocate for the appellant - accused. The appeal, therefore, needs to be dismissed. The trial Court has rightly evaluated the entire evidence and convicted the accused - appellant, which need not be interfered with by this Court. The impugned judgment and order passed by the trial Court therefore need to be confirmed and accordingly confirmed.
17. The present appeal is dismissed accordingly.
Sd/-
(VIPUL M. PANCHOLI, J) Sd/-
(SANDEEP N. BHATT,J) M.H. DAVE Page 23 of 23 Downloaded on : Sat Dec 24 21:04:26 IST 2022