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2009 DIGILAW 148 (GUJ)

BABUBHAI BABABHAI THAKOR v. STATE OF GUJARAT

2009-03-06

JAYANT PATEL, RAJESH H.SHUKLA

body2009
ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the Judgement and the order passed by the learned Special Judge in Special Case No.40/2001, whereby the accused-appellant has been convicted for the offences under Section 302 of the IPC and for the offences under Section 3(1) (10) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, and also for the offence under Section 135 of the Bombay Police Act and the sentence has been imposed upon the accused for life imprisonment with the fine of Rs.1,000/-, for the imprisonment for 5 years with the fine of Rs.500/- and for one year imprisonment with the fine of Rs.200/- respectively for the concerned offences. 2. As per the prosecution case, on 05.01.2000, when there was Navratri Festival, the complainant had gone to the temple of Bhavani Mata for offering Naivediya and at that time, they had also gone for observing Garba with his uncle's son Kamleshbhai at Khodiyar temple. There was lot of rush and one Thakor Babubhai Bababhai had started giving abuse of caste to the complainant and other persons and were asked to go away. At that time, there was scuffle between the complainant and the said person Babubhai Bababhai Thakor. Since there was quarrel, the uncle of the complainant Kalubhai @ Ratilal Atmaram came and separated both the persons and therefore, Babubhai Bababhai Thakor, the accused-appellant had gone away. Thereafter, when the complainant and his uncle Kalubhai @ Ratilal with one Kamlesh were returning to their residence, at about 11.00 O' Clock, near Thakorvas, the accused-appellant came forward and by abusing for caste, told to the uncle of the complainant Kalubhai, as to why he intervened and thereafter, the accused-appellant gave knife blow to Kalubhai on the left side and the complainant pulled his uncle. Thereafter, the accused-appellant ran away with knife. The uncle of the complainant Kalubhai thereafter, since had sustained injuries, was carried to the hospital and was reported dead. The complainant went to the Sanand Police Station and file the complaint vide C.R. No.276/00 of Sanand Police Station. 3. Thereafter, the accused-appellant ran away with knife. The uncle of the complainant Kalubhai thereafter, since had sustained injuries, was carried to the hospital and was reported dead. The complainant went to the Sanand Police Station and file the complaint vide C.R. No.276/00 of Sanand Police Station. 3. The police investigated into the complaint and filed the charge-sheet against the appellant-accused for the offences under Section 302 of IPC, for the offences under 3(1)(10) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, and also for the offence under Section 135 of the Bombay Police Act. The prosecution in support of the charge to prove the guilt against the accused, examined the following witnesses: P.W. No. Name Exh. 1 Dr. Ganpatram Keshavlal Chauhan. 10 2 Complainant Arvindbhai Tribhovanbhai. 12 3 Kamleshkumar Amthabhai. 14 4 Sardarsingh Lalsingh 15 5 Ajitsingh Kartarsingh 17 6 Ashokbhai Ramaji 19 7 Ranchoddbhai Atmaram 20 8 Muljibhai Somabhai 21 9 Ajitbhai Laljibhai Gomati 23 10 KuberbhaiKarsandas(Dy.S.P.) 28 The prosecution in support of its case also produced the following documentary evidence: Sr. No. Particulars Exh. 1 PM Note 11 2 Original Complaint. 13 3 Map of place of offence. 16 4 Recovery panchnama of mudammal knife. 18 5 Panchnama of place of offence. 22 6 Mudammal test report of Forensic Science Laboratory. 24 7 Serological Report. 25 8 Physical Analysis Report. 26 9 Caste Certificate. 32 10 Panchnama of physical condition of the accused. 29 11 Inquest panchnama 33 12 Recovery Panchnama of the cloths of deceased. 34 13 Forwarding Note 35 After the evidence was over, the learned Special Judge recorded the statement of the accused under Section 313 of CRPC, wherein the accused denied the evidence against him and in the further statement, the accused-appellant stated that he is innocent and a false case is filed against him. The learned Special Judge heard both the sides and ultimately, found that the prosecution has been able to prove the case against the appellant-accused for the charges alleged against the accused, viz. under Section 302 of the IPC, for the offence under Section 3(1)(10) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, and also for the offence under Section 135 of the Bombay Police Act, and therefore, the learned Special Judge convicted the appellant-accused for the aforesaid offences. under Section 302 of the IPC, for the offence under Section 3(1)(10) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, and also for the offence under Section 135 of the Bombay Police Act, and therefore, the learned Special Judge convicted the appellant-accused for the aforesaid offences. The learned Special Judge thereafter, heard the matter for imposition of the punishment and ultimately, imposed the sentence of life imprisonment with the fine of Rs.1,000/- for the offence under Section 302 of IPC, imposed the sentence for 5 years imprisonment with fine of Rs.500/- for the offence under Section 3(1)(10) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, and imprisonment of one month with fine of Rs.200/- for the offence under Section 135 of the Bombay Police Act. Hence, the present appeal before this Court. 1. We have heard Mr.BS Supehia, learned counsel appearing for the appellant-accused and Mr.Raval, learned APP for the State. We have also considered the appreciation of the evidence by the Trial Court. 2. There are two eyewitnesses to the incident. One is P.W.2 Arvindbhai Tribhovanbhai who is the complainant. In his deposition, at Exh.12, the complainant has stood by the same as was stated in the complaint and in the cross-examination, the defence has not been able to reveal anything to the contrary for dislodging his status as that of eyewitness to the incident of giving blow by the appellant-accused to the deceased with the knife. The said witness has admitted the complaint having been filed with the police, has also identified the knife-mudammal (Article 6) and he has also identified the accused who was present in the Court. Even on the aspects of his caste, he has stated that they belong to Scheduled Caste. The suggestion is put forward by the defence that there was fight inter se between the deceased and the complainant and as the deceased was injured by the knife, the false accusation has been made upon the accused, but the same has been expressly denied by the said witness. 3. The another eyewitness to the incident is Kamleshkumar Amthabhai, P.W.3, whose deposition is recorded at Exh.14. He has also deposed of having seen the incident of giving abuse of caste to the deceased by the accused and also of giving blow with the knife on the left side of the deceased. 3. The another eyewitness to the incident is Kamleshkumar Amthabhai, P.W.3, whose deposition is recorded at Exh.14. He has also deposed of having seen the incident of giving abuse of caste to the deceased by the accused and also of giving blow with the knife on the left side of the deceased. In the cross-examination of the said witness, the defence has not been able to prove about any material to the contrary for dislodging the capacity of the said witness being eyewitness to the incident. The other part of the deposition is also fully supporting the accusation made in the complaint and also the statement made by the complainant in his deposition, P.W.2. 4. The medical evidence has come on record by the deposition of Dr.Ganpatram Keshavlal Chauhan, P.W.1, who has performed the postmortem and the postmortem report has come on record at Exh.11. As per the said Postmortem Report, the injury upon the body of the deceased was under: âSA puncture would situated 3 inches above and 2 cm medially to the Anterior superior ilia spire, obliquely situated wedge shaped, size of about 3.5 X 2 CM X 6CM deep cut, edges are inverted, sharp angle at one end & bruished regged at other end which cut skin, subcutaneous tissue fatty layer, muscles, peritoneum and omentum which is herniated through wound. Lower end of commoniliae artery is cut. Severe clotted & unclotted blood under peritoneum.âý The cause of death is due to shock and hemorrhage(hypovoclemic shock) produced by stab wound. The said Doctor has stated that such injury was sufficient to cause death of a human being in natural course. In the cross-examination of the said witness, nothing has been revealed which may help the defence or which may result into contradiction to the deposition of the aforesaid expert. In the cross-examination, the Doctor has denied that it is not correct that if such an injury is caused and the patient is treated immediately, he would be saved. He has also stated that keeping in view the blood loss, the chances of saving would be the least. In this manner, the medical evidence fully supports the case of the prosecution. 1. The discovery panchnama for discovery of knife by the police at the instance of the accused has come on record by the deposition of Ajitsingh Kartarsingh Sardar, P.W.5. In this manner, the medical evidence fully supports the case of the prosecution. 1. The discovery panchnama for discovery of knife by the police at the instance of the accused has come on record by the deposition of Ajitsingh Kartarsingh Sardar, P.W.5. The said witness has supported the panchnama and has also identified the knife which was shown to him. The discovery panchnama is produced at Exh.18. The said discovery panchnama also shows that there are bloodstains found over the knife and it was a pointed knife having 6âý length. 2. The inquest panchnama has come on record at Exh.33 with the deposition of Investigating Officer supporting the case of the prosecution for injury over the body of the deceased. The recovery of the cloths from the body of the deceased was made as per the panchama, Exh.34. The FSL report has come on record with the deposition of Ajitsingh Kartarsingh Sardar, Scientific Officer, P.W.9, Exh.23. He has stated that the blood of the deceased was of B-Group and from the cloths of the deceased, the group was found of the deceased and the same blood is found in the sample of the clay which was taken at the scene of the offence. However, on the knife, no blood is found as per the report of the FSL. But, the pertinent aspect is that the discovery of the knife is at the instance of the accused and the same is also identified by two eyewitness to the incident for the alleged offence. 3. The caste certificate of the deceased has also come on record at Exh.32, certifying that he belonged to the Hindu Vankar community. The other witnesses have supported the case of the prosecution though they are hearsay, but the defence has not been able to bring about anything contrary or in contradiction to the accusation made by the prosecution against the accused. 4. Mr.Supehia, learned counsel appearing for the appellant contended that this case at the most can be for the offence under Section 304 Part II of the IPC and not for the offence under Section 302 of IPC. 4. Mr.Supehia, learned counsel appearing for the appellant contended that this case at the most can be for the offence under Section 304 Part II of the IPC and not for the offence under Section 302 of IPC. He submitted that even as per the complainant and the evidence which has come on record, it is apparent that there was scuffle between the accused and the complainant and other persons and therefore, it is on account of the provocation, the blow has been given and it cannot be said as a planned murder or premeditation for causing death is absent and therefore, the learned Special Judge has committed error in convicting the appellant-accused for the offence under Section 302 of the IPC. So far as the other offences are concerned, he contended that the punishment is already undergone and the same may not assume importance at this stage. 5. Whereas, on behalf of the State, the learned APP, while supporting the Judgement of the learned Special Judge, contended that it is not a case of giving blow at the place where the incident had occurred, but after the incident was over of scuffle at 10.30, the accused-appellant has gone back and thereafter, had come once again when the complainant and the deceased were passing through Thakorvas at about 11.00 'O' Clock and therefore, it is a case where the accused had a time to think and thereafter, he has come with a knife and the accused has given a single blow which as per the medical evidence was sufficient to cause death of a human being in natural cause. Therefore, it was submitted that the premeditation is in existence at the time when the offence was committed and therefore, has been rightly considered by the Sessions Court as falling under Section 302 of the IPC and not under Section 304 Part II of the IPC. He therefore submitted that there is no error committed by the learned Special Judge. 6. The examination of the aforesaid contention shows that the evidence of both the eyewitnesses viz. Arvindbhai, P.W.2-complainant and Kamleshkumar Amthabhai, P.W.3, are consistent on the aspects that the scuffle was at 10.30 at the place where there was garba nearby Khodiyar temple. Whereas, the place at which the offence is committed is nearby Thakorvas at about 11.00 'O' Clock. 6. The examination of the aforesaid contention shows that the evidence of both the eyewitnesses viz. Arvindbhai, P.W.2-complainant and Kamleshkumar Amthabhai, P.W.3, are consistent on the aspects that the scuffle was at 10.30 at the place where there was garba nearby Khodiyar temple. Whereas, the place at which the offence is committed is nearby Thakorvas at about 11.00 'O' Clock. Therefore, when both the places are different, the incident as such could not be said to be a kind of sudden quarrel or provocation of the scuffle between the complainant and the accused. Further, the sketch prepared by Sardarsingh Lalsingh, P.W.4 has come on record with his deposition at Exh.15 for the scene of offence. At least, in the nearby place to the scene of offence, the Khodiyar temple has not been found or shown. This shows that there was a distance between the Khodiyar temple, the place where garba was being being performed and the scuffle was there and the place at which the offence has been committed. So it could not be said to be on account of the quarrel or scuffle at the place where the garba was performed which as per Mr.Supehia was the cause for provocation. 7. Therefore, it appears to be a case where the accused-appellant had the time to cool down on account of the alleged scuffle at Garba near Khodiyar Mataji Temple. Further there is time gap of half an hour between the scuffle and the incident. Not only that, but as stated above, there is also a considerable distance between the place at which the scuffle had taken place and the place at which the offence was committed. These circumstances show that after the scuffle, the accused-appellant must have attacked with the knife upon the deceased and the pertinent aspect is that he must have been intended qua deceased, otherwise the other persons were also present, but inspite of the same, one strong blow has been given with the knife upon the body of the deceased by the appellant-accused. The gravity of the blow, if considered with the medical evidence, is sufficient to cause death of a human being in a natural course and the deceased has in fact, has expired. The gravity of the blow, if considered with the medical evidence, is sufficient to cause death of a human being in a natural course and the deceased has in fact, has expired. Therefore, keeping in view the aforesaid, it cannot be said that it is on account of sudden provocation, the accused-appellant gave a blow to the deceased which has resulted into the death of the deceased. 8. The learned counsel for the appellant-accused next contended that as per the prosecution case, the accused-appellant had given single blow and medical evidence is also to that effect and therefore, it cannot be said that there was intention on the part of the appellant-accused to kill the deceased. Had it been a case to kill the deceased by the accused, one blow would not have been there and therefore, he submitted that it would be a case where the accused had not premeditation of causing death of the deceased and therefore also, it can be considered as case under 304 Part I of the IPC where the maximum punishment will be of 10 years of imprisonment. 9. Whereas, on behalf of the State, it was submitted by the learned APP that one blow is applied with full force resulting into the death of the deceased and as per the medical evidence, one blow was sufficient to cause death of a human being and therefore, the intention is apparent and it cannot be said as of causing death without intention. 10. If the injury is considered with the medical evidence, it is apparent that the blow was applied with full force and the said blow as per the Doctor was also sufficient to cause death of a human being in its natural course. Therefore, one such strong blow with a lethal weapon like the knife is sufficient to gather the intention on the part of the appellant-accused to cause death of the deceased. Therefore, the said contention of the learned counsel for the appellant cannot be accepted. The reference may be made to the decision of the Apex Court in the case of Pulicherla Nagaraju alias Nagaraja Reddy Vs. State of Andhra Pradesh reported in AIR 2006 SC 3010 . 11. At this stage, we may refer to the another decision of this Hon'ble Court in the case of Pappu @ papaiyo Ramsevak Sharma Vs. The reference may be made to the decision of the Apex Court in the case of Pulicherla Nagaraju alias Nagaraja Reddy Vs. State of Andhra Pradesh reported in AIR 2006 SC 3010 . 11. At this stage, we may refer to the another decision of this Hon'ble Court in the case of Pappu @ papaiyo Ramsevak Sharma Vs. State of Gujarat in Criminal Appeal No.1021 of 2002 decided on 06.02.2009. In the said case, after the scuffle and separation by the brother of the deceased, when the deceased and his brother were going in rickshaw, due to the road condition, the rickshaw was stuck at a distance of half kilometer and at that place, the accused had given a blow with knife to the deceased. The contention was raised that it was a case falling in the category of Section 302 Part II of IPC. This Court, thus at paras 21, 22 and 23 has observed as under: âS21. The attempt on the part of the learned Counsel for the accused to contend that it was a case of sudden provocation cannot be countenanced because for the reasons as mentioned hereinabove it has transpired that the accused had followed the deceased, in any case, for half-a-kilometer and the same reflects his intention to kill the deceased, coupled with the circumstance of causing blow on the chest, which had raptured the heart and three blows were given, which could be said, as per the opinion of the doctor, sufficient enough to cause death of any humane being in a natural course. 22. At this stage, we may extract the observations of the Apex Court in case of Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh, reported in AIR 2006 Sitaram Corporation, 3010, wherein the Apex Court had an occasion to consider the relevant circumstances for gathering the intention to cause death. It was, inter alia, observed by the Apex Court at paragraph 18 as under:- âS18. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.âS 23. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.âS 23. If the aforesaid circumstances are taken into consideration with the facts of the present case, we cannot agree with the learned Counsel for the accused that it was a case falling under Section 304 Part-II of IPC and not under Section 302 of IPC.âý Hence, we cannot accept the contention of the learned counsel for the appellant-accused that it would be a case which would fall under Section 304 Part II of the IPC and not under Section 302 of the IPC. 1. In the result, on the re-appreciation of the evidence, we find that the learned Special Judge has rightly convicted the accused for the alleged offences. Hence, the appeal is meritless and therefore, dismissed. The Judgement of the learned Special Judge (Atrocity), Ahmedabad (Rural), Ahmedabad is confirmed.