Kumbhat Kanabbhai Popatbhai v. STATE — 1998 DIGILAW 351 (GUJ)

J. N. BHATT, J. ( 1 ) THE appellant is the original accused in Sessions Case No. 159/1989 in which he is found guilty for the offence punishable under Sec. 302 of IPC for committing murder of one Jorubhai Dadbhai and the accused has therefore challenged his conviction under Sec. 302 of IPC and sentence for Life Imprisonment recorded by the Ld. Addl. Sessions Judge, Bhavnagar in the aforesaid sessions trial on 18. 9. 1991. ( 2 ) ). Short but relevant spectrum of facts of the prosecution case giving rise to this appeal may be articulated at the outset with a view to appreciate the merits of the appeal and challenge against it. ( 3 ) ). On 17. 10. 1989 an incident occurred in the enclosed wada of Gokul Ruda in village Pipardi, Taluka Botad of Dist. Bhavnagar. The appellant is the original accused and is therefore hereinafter referred to as "the accused" for the sake of convenience and brevity who was aged about 22 years where as deceased-Jorubha aged about 17 years who had gone to the venue of offence for playing cards. The Vada of Gokul Ruda was locked from outside and it was open to sky with four walls of about 6 Ft in hight. They therefore had jumped into it and had gone for playing cards on the day of incident. They were doing labour work of diamond polishing in a diamond factory of one Kalubhai Jadhavbhai. The complaint came to be lodged by one Kanubhai Dadhbhai before the PSI, Botad. ( 4 ) ). As per the complaint, on the day of incident in the morning the complainant and his brother had gone for labour work of diamond polishing in the diamond factory of one kalubhai Jadhavbhai. The deceased Jorubhai was also working as a labourer in the said factory. The complainant Kanubhai and his brother after taking lunch again went to the said factory whereas the deceased Jorubhai did not come for work after lunch. When the complainant-Kanubhai reached back home around 6 in the evening he learnt that the deceased Jorubhai had not come back home and he also enquired from his parents as to why he had not gone for work after lunch on that day. Therefore, the complainant and his brother went for searching him in village. ( 5 ) ). When the complainant-Kanubhai reached back home around 6 in the evening he learnt that the deceased Jorubhai had not come back home and he also enquired from his parents as to why he had not gone for work after lunch on that day. Therefore, the complainant and his brother went for searching him in village. ( 5 ) ). It is clearly stated in the complaint that since deceased-Jorubhai was indulging in gambling in the place known as Vada of Gokul Ruda the complainant along with PW. No. 4-Narsibhai Valjibhai went to Vada of Gokul Ruda so as to ascertain whether there was gambling there. PW. No. 4-Narsibhai found that Jorubhai was lying in the premises of vada of Gokul Ruda. He also found accused-Khanji Popat who was passing urine at that time. Since Vada portion was closed from outside and it was open to sky both of them managed to go inside. ( 6 ) ). The complainant and PW. No. 4-Narsibhai found the deceased Jorubhai was unconscious and was unable to speak. The complainant therefore enquired from accused-Kanji who was present there. On being questioned by the complainant the accused went away from the venue of offence by jumping the Vada premises. The complainant found Jorubhai was not able to breath properly and mouth was stuffed with dust and mud. He therefore cleaned the mouth from outside. It was also found by him that the mouth was filled with dust and mud and they thought something serious and therefore the complainant, Narsibhai and Kalubhai Jadhavbhai Patel took Jorubhai to Government hospital where he was declared dead. Upon the Post Mortem examination it was found that the death was due to suffocation by sand and mud and respiratory arrest. Upon investigation chargesheet was issued against the accused for offences punishable under sec. 302 IPC. The accused was tried for the offence punishable under Sec. 302 IPC by the ld. Additional Sessions Judge, Bhavnagar for the charge framed for committing murder of Jorubha on 17. 10. 1989 in the evening by suffocating the mouth of the deceased with dust and mud which he denied and came to be tried. ( 7 ) ). Upon assessment of evidence and appraisal of facts and circumstances emerging from the record of the case, the Ld. Addl. 10. 1989 in the evening by suffocating the mouth of the deceased with dust and mud which he denied and came to be tried. ( 7 ) ). Upon assessment of evidence and appraisal of facts and circumstances emerging from the record of the case, the Ld. Addl. Sessions Judgs accepted the prosecution case and held the appellant-accused guilty for the offences punishable under Sec. 302 IPC and convicted and sentenced him to undergo Life Imprisonment which is under challenge before us in this appeal. ( 8 ) ). Ld. Advocate Mr. I. M. Kapoor appearing for Mr. P. N. Bavishi has raised following contentions before us : (I) The alleged complicity of the appellant-accused for the offences punishable under Sec. 302 IPC has not been proved. Hence, it is submitted that the accused is entitled to acquittal as circumstantial evidence relied on by the prosecution is not able to unerringly point out the guilt of the accused for the offences punishable under Sec. 302 IPC. (II) In the alternative, he has submitted that even if the appellant-accused is found to be the author to kill deceased Jorubhai he can not be said to have committed the offence under Sec. 302 IPC. (III) He, therefore submitted that the Trial Court has failed to appreciate that there was no intentional killing and at the most the offence would undoubtedly fall under Sec. 304 Part II of IPC. ( 9 ) ). The aforesaid three contentions are raised before us and we have been taken through the testimonial and documentary evidence from the record of the present case. We have also heard the Ld. App and Ld. Advocate Mr. Kapoor for Mr. Bavishi at length. ( 10 ) ). In so far as prosecution case is concerned, the Trial Court has found the accused guilty for the offence punishable under Sec. 302 IPC by placing reliance on the circumstances. ( 11 ) ). It is settled position of law that the complicity of the accused in any crime can be established by circumstantial evidence. If circumstances so relied by the prosecution unerringly point out the guilt of the accused, in other words the chain of circumstances must be so complete as to admit not any hypothesis and must indicate the culpability of the accused and nobody else. ( 12 ) ). If circumstances so relied by the prosecution unerringly point out the guilt of the accused, in other words the chain of circumstances must be so complete as to admit not any hypothesis and must indicate the culpability of the accused and nobody else. ( 12 ) ). Motive and conduct are some of the relevant circumstances to prove the guilt of the accused. Accused can be convicted even in the absence of proof of motive. Conduct of the accused is also very relevant in determining the guilt of the accused. This position of law is extensively expounded by catena of judicial pronouncements. However, we can not resist the temptation to refer to the latest decision of Supreme Court rendered in lekhraj Alias Harisingh vs. State of Gujart 1998 SCC (Cr) 704. This decision, clearly, goes to show that the guilt of the accused can be established by circumstantial evidence. If the chain of circumstances is so complete that it unerringly points out the guilt of the accused, even in the absence of motive. ( 13 ) ). Again, a very important circumstance of medical evidence supports the case of the prosecution. The Post Mortem report is produced at Exh. 18 of the Medical Officer who conducted the autopsy-Dr. B. N. Desani is examined as PW. 7 at Exh. 17. It becomes clear from the medical evidence that the oesophagus, larynnx and trachea were found congested and also contained froth. The cause of death is proved to be suffocation by sand and mud and respiratory arrest. The version of the prosecution that the mouth of the deceased was stuffed with mud, dust and sand by the accused is not only supported by the evidence of PW. 2 Kanubhai and PW. 4 Narsibhai Valjibhai but also by the Medicial evidence of Dr. Desani and the Post Mortem report. ( 14 ) ). It is also very clear from the Medical Evidence and the Post Mortem report that following injuries and marks were-found: (I) Particles of sand and mud appeared in trachea, (II) Congestion of oesophaegus; (III) Mouth stuffed with sand and mud; (IV) Right lung was infected and congested; (V) There was swelling in the left lung. ( 15 ) ). Injuries sustained by the deceased were ante-mortem and were sufficient in the ordinary course of nature to cause death. It is further clearly denied by Dr. ( 15 ) ). Injuries sustained by the deceased were ante-mortem and were sufficient in the ordinary course of nature to cause death. It is further clearly denied by Dr. Desani that without the presence of any person and/or help of another person the stuffing of mouth with mud and sand would not possible. It is clearly testified by him that the manner and mode in which the injuries were sustained resulting into suffocation and death could be caused by aay one person. He has specifically denied that for causing of the death by suffocation in the present case more than one person would be required. ( 16 ) ). We are also satisfied that the Trial Court was justified in reaching to the conclusion that the author of the murder was none else but the appellant-accused person. Primafacie, the contention that the causing of death by "burking" system may appear to be subtle, but not sound and sustainable in the light of the facts of the present case. The deceased Joruba was 17 years old and he was weak and meak as per the medical evidence. There were internal marks of injuries and swelling on lungs of both sides. Therefore, the version of prosecution that the accused after kneeling down on the chest portion of the deceased stuffed his mouth with sand mud is established by the medical evidence. No doubt, even if we were to uphold the contention that one another person must have committed the offence along with the accused does not mean that he should be absolved from the capital crime of murder. It can never be an excuse that the crime committed by joint offenders and the trial of only one is sufficient for the innocence of the accused tried. Of course, we may reiterate that in the present case the conclusion of the trial Court that it was nobody else but the accused alone is the author of the murder is justified and we affirm it. ( 17 ) ). The cause of death is due to suffocation by sand and mud and respiratory arrest. The "burking" sysem if applied in the present case which resulted from sclusion of air from lungs by means of other than compression of neck. ( 17 ) ). The cause of death is due to suffocation by sand and mud and respiratory arrest. The "burking" sysem if applied in the present case which resulted from sclusion of air from lungs by means of other than compression of neck. The cause of suffocation may be because of (i) smothering of closure of mouth and nostrils, (ii) chocking or obstructin of air passage from within, (iii) pressure on the chest (iv) and inhalation of irrespirable gases. ( 18 ) ). Death occurs ordinarily from 4/5 minutes after the complete withdrawal of air from the lungs. Death occures almost instantaneous when the wind pipe is blocked by foreign body. In case of pressure or compression of chest the external sings may not be visible or perceivable. But that does not indicate that there was no pressure if no signs found of the external injuries. It is amply clear from the medical evidence in the present case that the mouth was stuffed with mud and sand after kneeling down and giving pressure on the chest. The circumstances unequivocally indicate that it is a murder. ( 19 ) ). The death was due to suffocation and suffocation was due to stuffing of mouth with mud, sand and dust particles. We have no hesitation in finding that the suffocation which was the cause of death was because of stuffing of mouth with sand and mud and in the circumstances established beyond doubt that it was only by the accused-appellant before us. No doubt, suffocation may be (i) suicidal, (ii) homidical and (iii) accidental. The prosecution has been successful in establishing that the suffocation and respiratory arrest with culminated into the death of deceasedjorubha was homicidal and the appellant before us who was the orginal accused it was he who first stuffed the mouth of the deceased with sand and mud which resulted into suffocation and resultant death of deceased-Jorubha. ( 20 ) ). It can very well be seen from medical jurisprudence and by acceptance of trials that the homicidal suffocation by pressure on the chest is resorted to sometimes in this country. No doubt, in many cases, and particularly, in case of adults, it is often combined with smothering or throttling and it is unusually the act of more than one person. Therefore, the serious criticism made by the Ld. No doubt, in many cases, and particularly, in case of adults, it is often combined with smothering or throttling and it is unusually the act of more than one person. Therefore, the serious criticism made by the Ld. advocate for the appellant-accused that the crime in question was not possible by only one muchless the accused. This submission may, at the first site, appear to be stimulating, but not sustainable for the simple reason of factual scenario emerging from the record of the present. . ( 21 ) ). The prosecution version that the suffocation was caused by the accused by kneeling on the chest portion of the deceased victim and thereafter giving pressure on the chest putting mud and sand in the mouth of the deceased by the accused by Burking system is rightly held proved by the Trial Court, and we are in complete agreement with that proposition as it is has fully reinforced by the circumstantial evidence and the medical evidence. ( 22 ) ). Historically, "burking" is a method of suffocation adopted by Bruke and his associate, Hare for killing their victims. They used to throw their victims down on the ground, and kneeling on the chest, used to close the mouth and nostrils with one hand, and firmly hold the lower and upper jaws together with the other hand, thus in reality factually blocking the air-passage. Dr. Desani at Exh. 7 has in clear terms testified that the Burking system practice is that the victim has to be thrown on the ground and the assailant thereafter kneels down on the body line of the victim and then cause pressure on the chest. It is also further stated by him closing of mouth and nostrils is also essential in such kinds. Though he has stated that ordinarily in cases of Burking system presence of second person is required to commit such crime to cause suffocation. In the present case it was not necessary that it was an act of more than one person. He has denied specifically that though usually in case of Burking it is an act of more than one person but in the present case it was not so and he has specifically stated that in all cases of Burking and resultant death, it is always an act of two persons. ( 23 ) ). He has denied specifically that though usually in case of Burking it is an act of more than one person but in the present case it was not so and he has specifically stated that in all cases of Burking and resultant death, it is always an act of two persons. ( 23 ) ). In this context, again, it would appropriate to recall that the deceased though aged 17 at the time when his life was cut short by the accused his general physical health was weak and feeble. Homicidal suffocation is generally resorted to in murdering the victim by pressure on the chest. According to medical jurisprudence also in adults homicidal suffocation as in the present case by pressure on the chest of the victim is common and possible if the victim is weak and feeble or when he is unable to resist for variety of reasons. The accused was 22 years old. The deceased was 17 years old at the relevant time and he was physically weak in view of medical evidence on the record. Circumstantial evidence relied on by the prosecution and, exfacie, by the medical evidence it becomes evident and apparent that the deceased-Jorubha became victim of homicidal suffocation at the cruel hands of accused nobody else. ( 24 ) ). That will lead us to the last contention that in the light of facts and circumstances in the alternative the accused can not be said to be guilty of offence of murder punishable under Sec. 302 IPC as there was no motive and as no enmity was there and it must have been out of sheer excitement or hostility during the course of gambling between the accused and the deceased. It was also contended that there was no intention to cause death but at the best it can be said that there was the knowledge likely to cause death. It was therefore submitted that the conviction from Sec. 302 IPC is required to be converted to sec. 304 Part II IPC. This alternative submission requires serious consideration though the first submission of question of acquittal in the absence of motive and other evidences is found unacceptable. ( 25 ) ). The culpable homicide not amounting to murder is punishable under Sec. 304 ipc. 304 Part II IPC. This alternative submission requires serious consideration though the first submission of question of acquittal in the absence of motive and other evidences is found unacceptable. ( 25 ) ). The culpable homicide not amounting to murder is punishable under Sec. 304 ipc. When the culpable homicide not amounting to murder with intention of causing death or causing such bodily injury as is likely to cause is punishable with imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Whereas in the later part of Sec. 304 the punishment for culpable homicide not amounting to murder is for a term which may extend to 10 years or with fine or with both. ( 26 ) ). In Chapter XVI of IPC porvisions are made for offence affecting the human body. It starts with Sec. 299 providing for culpable homicide. Sec. 299 prescribes what is culpable homicide. Sec. 300 provides the exception of culpable homicide amounting to murder. In the light of facts and circumstances of the present case, the exception 4thly in sec. 300 IPC which provides that if the person committing act of murder knows that it is 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 risk the risk of causing death or such injury. ( 27 ) ). We are satisfied that in the light of factual scenario emerging from the record of the case the conduct of the accused for the murder of deceased-Jorubha punishable under Sec. 302 IPC is not justified more so in the absence of any premeditation or any motive and the accused is liable to be convicted for the offence of culpable homicide not amounting to murder punishable under Sec. 304 Part II IPC. The order of conviction and sentence recorded by the Trial Court in the impugned judgment is required to be modified. ( 28 ) ). In the result, the conviction under Sec. 302 IPC and resultant order of sentence of life is quashed and set aside and substituted by the provisions of Sec. 304 Part II by holding that he is guilty of culpable homicide not amounting to murder and is liable to be sentenced under Sec. 304 Part II. ( 28 ) ). In the result, the conviction under Sec. 302 IPC and resultant order of sentence of life is quashed and set aside and substituted by the provisions of Sec. 304 Part II by holding that he is guilty of culpable homicide not amounting to murder and is liable to be sentenced under Sec. 304 Part II. ( 29 ) ). Under Sec. 304 Part-II maximum sentence of imprisonment prescribed is ten years whereas in the present case accused is undergoing imprisonment and is in the custody since 20. 10. 1989. Therefore, the accused has already undergone punishment for more than 8 years, 8 months and 8 days and in the light of facts and circumstances, in particular, in view of the offender before us who was 22 years old at the time of commissioning crime and in the absence of any premeditation, enmity or motive the sentence undergone is quite sufficient. In the circumstances, the accused shall be released forthwith. ( 30 ) ). In the light of facts and circumstances enumerated hereinbefore and the legal position discussed earlier, the appeal is partly allowed. The conviction and resultant sentence under Sec. 302 IPC is quashed and set aside. The accused is found guilty for the offence punishable under Sec. 304 Part II IPC and the period of sentence undergone by him as stated above is sufficient. Consequently, the accused shall be released forthwith if not required in any other case. There is no question of refund of fine as there was no order of fine in the present case. .