Gujarat High Court
Kasam @ King Mohmadbhai Shaikh vs State Of Gujarat on 27 March, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 628 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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Approved for Reporting Yes No
Yes
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KASAM @ KING MOHMADBHAI SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR MA BUKHARI(211) for the Appellant(s) No. 1
MR LB DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/03/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This criminal appeal preferred by the sole appellant herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 31.03.2014 passed by the Sessions Court, Vadodara in Sessions Case No.86 of 2012 by which the appellant has been convicted under Page 1 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo additional imprisonment for 6 months.
2. Case of the prosecution, in short is that, prior to the offence, the appellant-accused was stalking the aunt of the deceased and was following her. The parties are resident of Village:Dabhoi, Dist:Vadodara. The aunt of the deceased PW.8 Shahenaz Mansuri, on 18.01.2012, went to market for purchasing vegetables, but she could not purchase it because the appellant-accused was following her and due to his fear, she came at home without purchasing the vegetables. On arrival of her at home, she narrated the harassment meted out to her to her nephew-deceased Javed who was residing nearby her house at Dabhoi. The deceased after hearing his aunt, had gone to in search of the accused in the area nearby masjid of the village. The deceased met the accused and tried to convince him not to harass his aunt and the accused had been scolded by him. Due to said incident, the scuffle took place between the deceased and the accused and accused got furious and hit the deceased with knife on the left side of his pelvic region which resulted into rupture of main blood vessels. The deceased after the incident fell on the road. The persons who were Page 2 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined gathered, tried to caught the accused and meanwhile, the aunt PW.8 Shahenazbanu, after receiving the message of the incident, immediately rushed to the scene of occurrence where the deceased was lying. The PW.8 upon asking the deceased about the incident, the deceased told her that, the accused- appellant hit him with the knife. The deceased was taken to Pramukh Swami Hospital at Dabhoi. Dr. Pritesh Parmar (PW.17) gave primary treatment to the deceased, but he could not survive and died at about 9:15 p.m. The PW.8-aunt Shahenaz Mansuri lodged an FIR with Dabhoi Police Station on the same day. The accused then caught by the witness Shakeel Mansuri (PW.12) and Mohsin Mansuri (PW.13). The investigating officer (PW.23) was entrusted to investigate the case. During the course of investigation, he arrested the accused and sent him for medical examination as he sustained a minor injury over his body. The I.O. then recorded the statements of eye witnesses, drew the Panchnama of place of incident, sent dead body for post-mortem and collected the report thereof and recovered and seized the knife allegedly used by the accused in commission of the offence and lastly, sent all the muddamal articles to FSL analysis. The I.O. thereafter, found sufficient material for the charge of murder and accordingly, the accused was chargesheeted. The Page 3 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined case was committed to the court of sessions.
3. After due framing of charge and upon accused not pleading guilty, the trial commenced before the Sessions Judge, Vadodara. In order to prove the charge, the prosecution examined 22 witnesses and exhibited 26 documents:
Oral evidence PW 1 - Exh.11 Abdulkadar Sikandarbhai Mansuri, panch witness PW 2 - Exh.15 Maheshbhai Maganbhai Tadvi, panch witness PW 3 - Exh.19 Altafbhai Sikandarbhai Mansuri, panch witness PW 4 - Exh.22 Keshavbhai Sukhdevbhai Bhagat, panch witness PW 5 - Exh.27 Saiyedbhai Ismailbhai Mansuri, panch witness PW 6 - Exh.33 Abbasbhai Rafiqbhai Mansuri, panch witness PW 7 - Exh.35 Arvindbhai Babubhai Vasava, panch witness PW 8 - Exh.39 Shahenazben S. Mansuri, complainant PW 9 - Exh.42 Hanifbhai Sulemanbhai Mansuri PW 10 - Exh.43 Gulambhai Abdulbhai Shaikh PW 11 - Exh.44 Yakubbhai Gulamhusain Mansuri PW 12 - Exh.45 Shakeel @ Tausif Sikandarbhai Mansuri, eye witness PW 13 - Exh.47 Mohsinbhai Salimbhai Mansuri, eye witness PW 14 - Exh.48 Abdulkadar Hasanbhai Hajiwala PW 15 - Exh.49 Firoz Sikandar Mansuri PW 16 - Exh.50 Madinaben Razakbhai Mansuri PW 17 - Exh.51 Dr. Pritesh K. Parmar, medical officer PW 18 - Exh.53 Dr. Ajay Chandrikaprasad Singh, medical officer PW 19 - Exh.55 Rajeshbhai Mahendrabhai Patel, circle officer PW 20 - Exh.58 Vikramsinh Fatehsinh Parmar, Assistant Sub-
inspector PW 21 - Exh.62 Ramjibhai Hirabhai Patel, Police Sub-inspector PW 22 - Exh.65 Dahyabhai Shankarbhai Patel, investigation officer Documentary evidence Page 4 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined Exh.12 Inquest panchnama Exh.16 Panchnama of scene of offence and recovery of slippers Exh.23 Panchanama of physical examination and clothes of accused Exh.28 Panchnama of recovery of clothes from body of deceased Exh.34 Panchanama of physical examination of accused Exh.36 Panchanama of seizure of weapon from accused Exh.40 Complaint by Shahenazben Saiyedbhai Mansuri Exh.52 Injury certificate of Javed Yakubbhai Mansuri issued by Pramukh Swami Hospital Exh.54 Post-mortem note Exh.56 Yadi for drawing map of scene of offence Exh.57 Map of scene of offence Exh.60 Report of registration of offence Exh.61 Telephone bill from Pramukh Swami Hospital Exh.66 Letter by Pramukh Swami Hospital informing accident case Exh.67 Yadi to Executive Magistrate for inquest Exh.68 Yadi for handing over dead body Exh.69 Yado to FSL van seeking opinion after examination of scene of offence Exh.70 Preliminary report by FSL van Exh.71 Letter to superior officer informing addition of charge of Section 302 of IPC Exh.72 Yadi to Pramukh Swami Hospital for handing over dead body after post-mortem Exh.73 Yadi to medical officer, Dabhboi for handing over dead body after post-mortem Exh.74 Receipt of handing over dead body to ASI after post-
mortem
Exh.75 Yadi for collection of blood sample of accused
Exh.76 Forwarding note for muddamal
Exh.77 Receipt by FSL regarding receiving muddamal
Exh.78 FSL report along with forwarding note and Serological
report
4. After closure of the prosecution evidence, the
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NEUTRAL CITATION
R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025
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appellant was questioned under Section 313 Cr.P.C. to which he stated that, he has been falsely implicated in the offence of murder and further stated that he was beaten by the interested persons associated with the complainant party for which he produced his complaint Exh.64 registered with Dabhoi Police Station and medical certificate Exh.79.
5. Though opportunity was extended, no oral evidence being adduced from the side of the appellant-accused.
6. The learned Sessions Judge after hearing the parties and upon appreciation of the evidence adduced by the prosecution, found the appellant-accused guilty of the charge and consequently, he has been convicted under Section 302 of the IPC.
7. We have heard learned counsel Mr. M. A. Bukhari and Mr. L.B. Dabhi, learned APP for the respective parties.
8. Mr. Bukhari, learned counsel for the appellant does not challenge the conviction rendered by the court below. He confined his arguments on the issue of sentence and submitted that, the learned trial court was not justified in convicting the appellant-accused for the offence under Section 302 of the IPC. In the instant case, the deceased under the sentiment of PW.8, came at the place where the accused was Page 6 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined standing and reprimanded him that why he was following her aunt. The said issue then aggravated because the accused was beaten by the deceased and that led to stabbing of the deceased. The injury was found at the pelvic region of the deceased which proves that, same was not inflicted on the vital part of the body and without any intention, he killed the deceased in a sudden quarrel, heat of passion, without taking disadvantage, one blow with the knife inflicted on the body of the deceased. Thus, the evidence produced against the accused does not show that, the accused had any motive to cause death or the injury was sufficient in ordinary course of nature to cause death and therefore, the act of the accused falls within the exception to Section 300 of the IPC and the case at the most, would fall under Part 2 of Section 304 of the IPC.
9. Mr. Bukhari, learned counsel under such circumstances, has submitted that, as on date, the accused has undergone 12 years and 3 months of his imprisonment and having regard to peculiar facts and circumstances of present case, the sentence may be modified.
10. On the other hand, Mr. L.B. Dabhi, learned APP vehemently opposed the submissions and submitted that, in view of the consistent statements of the eye Page 7 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined witnesses, the accused came with predetermined mind with an intention to kill the deceased as he was having knife with him and the manner in which the blow was given which led to rupture of main blood vessels of the deceased which suggestive of the fact that there was intention on the part of the accused and therefore, the act of the accused clearly fall within the ambit of clauses of definition of murder contained in Section 300 of the IPC and thus, the death of the accused caused by the appellant-accused cannot be said to be a culpable homicide not amounting to murder under Section 304 of the IPC.
11. Having regard to the facts and circumstances of present case, the question that arises for our consideration is to whether the accused is guilty of offence of murder under Section 300 of the IPC liable to punishment under Section 302 or death caused was culpable homicide not amounting to murder under Section 304 of the IPC.
12. We have carefully considered the submissions and perused the case records.
13. Before we proceed to examine the issue, it is necessary to discuss the material evidence adduced by the prosecution.Page 8 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025
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14. Let us first examine the medical evidence. After the incident, the deceased Javed was taken to Pramuk Swami Hospital at Dabhoi. The incident occurred on 18.01.2012 at about 8:30 p.m. Dr Pritesh Parmar (PW.17) noticed that there was a stab wound over the left pelvic region of the deceased. After some time of the primary treatment i.e. at about 9:15 p.m, the deceased succumbed to his injuries. After registration of the offence and on requisition made by the police, Dr. Ajaysingh (PW.18) Medical Officer of Dabhoi Primary Health Centre conducted post-mortem on the body of the deceased. He noticed the following external injuries:
(i) There is sharp incised wound over left side of inguinal area, linear in shape, edge, regular, smooth, size 3cm, length edge are approximated. Depth is about 7 cm directed medio inferiorly toward thigh.
There is cut of skin, superficial facet, muscle, vessel, and nerve cut at the progression towards the injury. Massive clots are seen or whole area. Muscle cut was uniform.
So far as internal injury is concerned, he noticed a cut injury over the pubic area.
According to opinion of the doctor, the cause of death was hemorrhagic shock due to injury over thigh Page 9 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined which leads to rupture of blood vessels. The doctor further opined that, the said injury could be possible with the weapon knife. The doctor did not have opine that the external injury found on the body of the deceased was sufficient in ordinary course of nature to cause death.
15. PW.8 Shahenazbanu Mansuri is not eye witness of the incident, however, so far as conduct of the accused is concerned, she deposed that, prior to six months of the incident, the accused was following her with bad intention which facts she had told to her nephew Javed.
16. PW.9-Hanif Masuri, PW.10-Gulam Shaikh and PW.11- Yakub Mansuri are not witness of incident and they came later on at the place and tried to extend the help to the deceased.
17. PW.12, 13 and 15 namely Shakeel Mansuri, Mohsin Mansuri and Firoz Mansuri in their testimony have consistently stated that, they saw the scuffle allegedly took place between deceased and appellant-accused and suddenly the accused got angry and hit the deceased with knife over the pelvic region of the body of the deceased. The witness PW.12 and 13 followed the deceased and caught him. The witness PW.15 stated that there was a heated exchange of words Page 10 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined between the deceased and the accused which led to occurrence of the incident.
18. PW.21 - PSI, R.H. Patel recorded the N.C. Complaint of the accused which was registered under Section 323 of the IPC which he has produced at Exh.79. In the N.C. Complaint, it was alleged that, the accused had been beaten with stick and kick blows by the deceased Javed Mansuri. In the FIR Exh.63 allegedly lodged by the accused, he disclosed that, in his self- defence, he brought the knife from his house and inflicted the deceased over his left thigh. The injuries suffered by the accused mentioned in medical certificate Exh.79.
19. PW.23 - Dahyabhai Patel - the investigating officer, stated that, during the course of investigation, he found sufficient material against the accused and after getting all the papers of investigation, he filed the chargesheet. The I.O. testified that, the accused sustained injuries in the alleged incident and his complaint against the deceased for causing voluntary injury by him was also registered.
20. Mr. Bukhari, learned counsel raised the contention that, the prosecution miserably failed to prove the charge of murder against the accused as the necessary ingredients of Section 300 are absent and Page 11 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined the case of the appellant falls under Section 304 of the IPC.
21. In the case on hand, the death of Javed was homicidal in nature and the court below has rightly held that, it is the appellant who has caused the injury to the deceased. The question for consideration is whether the learned trial court is justified in convicting the appellant for offence under Section 302?
22. Section 299 of the IPC says that, 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. Section 300 defines the "act of murder". It says that, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death or if it is done with the intention of causing bodily injury and said injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or accused 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. If the case would not fall under the 4 clauses of aforesaid definition of murder, then the offence would be culpable homicide not amounting to murder under the first or second part of Page 12 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined Section 304 of the IPC. If the offenders harbours an intention, then the same would be case of Section 304 Part I and if it is only a case of knowledge and not intention to cause death or bodily injury, then the same would fall under Section 304 Part II.
23. It would be beneficial to refer the observation of the Supreme Court in case of Rampal Singh Vs. State of U. P. 2012 (8) SCC 289. In the context of applying 304 Part I and II, the Supreme Court held and observed that, every case must essentially be decided on its own merits and the court has to perform very delicate function of applying the provisions of the code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly, punish the accused.
24. We would like to take the reference of the celebrity case on the topic. In Virsa Singh Vs. The State of Punjab AIR 1958 SC 465 which laid down the principle to decide on the applicability of Section 300 as follows:
"17.1) In Virsa Singh (supra), this Court held that a culpable homicide is a murder u/s. 300 clause Thirdly, if the prosecution should establish four elements - (i) the presence of a bodily injury,
(ii) nature of such bodily injury, (iii) intention on the part of the accused to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of Page 13 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined injury was intended; and (iv) the injury was sufficient to cause death in the ordinary course of nature (this part of enquiry being purely objective and inferential, nothing to do with the intention of the offender). Dealing with the question, as to how intention is to be inferred, Vivian Bose, J. succinctly stated:
In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted x x x x The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended some consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question ...."Page 14 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025
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25. Recently, in Anbazhagan vs. State represented by the Inspector of Police, 2023 AIR SC 3660, the Supreme Court while considering the question whether the conviction of the appellant for the offence punishable under Section 304 Part I should be further altered to Section 304 Part II of the IPC, laid down the principles as follows:
"Few important principles of law discernible from the aforesaid discussion may be summed up thus:-
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section Page 15 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that Section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that Section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this Section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Page 16 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Page 17 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be Page 18 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
26. The legal position pertaining to the matter being discussed above, we now proceed to consider the contention that the trial court erred in convicting and sentencing the accused under Section 302 or not.
27. The evidence shows that the appellant-accused was stalking the aunt of the deceased PW.8 and was following her as and when she came out from her house. On 18.01.2012 at Village: Dabhoi at about 6 o' Page 19 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined clock, she went to the market for purchasing vegetables and at that time, the accused had followed her. She was fed up with the conduct of the accused. She informed about the conduct of the accused to deceased Javed. These admitted facts led to occurrence of the incident. The deceased Javed went in search of the accused and near the masjid of village: Dabhoi, he scolded the accused and there was a heated exchange of words between two, as a result of which, the accused stabbed the deceased on his left leg. The blow was single blow and it cannot be said to be on the vital part of the body. It is relevant to note that, the doctor (PW.18) who had conducted the post- mortem, did not opine that the injuries were sufficient in ordinary course to cause the death. The FIR of causing voluntary hurt by the deceased, lodged by the accused is on record at Exh.63 and the medical certificate of the accused is on record at Exh.79. The accused sustained a simple injury due to kick and fist blows. In such circumstances, having regard to the nature of injury and the manner in which the accused was treated by the deceased, it can be inferred that, he had no any motive to cause death or injury or have caused injuries which were sufficient in ordinary course of nature to cause death. The evidence on record does not establish that the injury caused on the body of the deceased must on all probability causes Page 20 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined death or likely to cause his death. The deceased met the accused at the market and in a spur of moment, during the heat of exchange of words, the accused caused the injury on the body of the deceased. Thus, we are of considered opinion that the ingredients of murder as defined in Section 300 IPC have not been established against the accused. The accused is guilty of culpable homicide not amounting to murder under Section 304 of the IPC and considering the fact that, the accused had no intention to either cause the death or cause such bodily injury as is likely to cause death, and having considered the fact that, the knife blow was given on the pelvic region of the deceased, the knowledge can be attributed on the part of the accused that his act might result in death of the deceased and therefore, we have no hesitation to hold that, the act of the appellant would fall under Section 304 Part I of the IPC and he has been held guilty for the act of culpable homicide not amounting to murder under Section 304 Part I of the IPC. The conviction under Section 302 is set aside.
28. In the result, the appeal is allowed in part. The conviction of the appellant is converted from Section 302 of the IPC to Part II of Section 304 of the IPC and sentenced him to undergo 10 years, which he has already undergone. The appellant is therefore, Page 21 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025 NEUTRAL CITATION R/CR.A/628/2014 JUDGMENT DATED: 27/03/2025 undefined directed to be released forthwith, if not required in any other case. Registry shall send the R & P to the concerned trial court henceforth and send the copy of this judgment to the jail authority for compliance today itself.
Sd/-
(ILESH J. VORA,J) Sd/-
(SANDEEP N. BHATT,J) TAUSIF SAIYED Page 22 of 22 Uploaded by TAUSIF SAIYED(HC01401) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:28:53 IST 2025