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2009 DIGILAW 73 (GUJ)

Datta Kishan Munde v. State of Gujarat

2009-02-09

A.L.DAVE, J.C.UPADHYAYA

body2009
Judgment A.L. Dave, J.—This appeal arises out a judgment and order rendered by Sessions Court, Surat, on 28.06.2002, in Sessions Case No.44 of 1999, convicting the appellant for the offences punishable under Sections 302 and 326 of the Indian Penal Code (“IPC” for short). The appellant is sentenced to undergo imprisonment for life and to pay a fine of Rs. l,000/-, in default, to undergo simple imprisonment for three months for the offence of murder of one Laliben. The appellant is convicted under Section 326 for causing grievous hurt to Ramilaben and is sentenced to undergo rigorous imprisonment for three years to pay a fine of Rs. 500/-, in default, to undergo simple imprisonment for one month. Both the sentences were ordered to run concurrently. 2. As per the prosecution case, the incident occurred on 15.09.1997 around 3.00 P.M. in the outskirts of village Sarsana. It is alleged that the appellant attacked P.W.5-Ramilaben Rameshbhai (Exhibit 14) with a sickle and caused her multiple injuries. In the transaction, deceased-Ramilaben tried to intervene and rescue Ramiliben and suffered sickle injuries on neck and other parts of the body which, ultimately, resulted into her death. 3. An F. I. R. was lodged with Umra Police Station, Surat, by the-appellant himself, on the basis of which offence was registered and investigated and the police, having found sufficient material against the appellant, filed charge sheet against him in the Court of Judicial Magistrate, First Class, Surat, who, in turn, committed the case to the Court of Sessions and Sessions Case No.44 of 1999 came to be registered. 4. The appellant, was represented formerly by learned Advocate, Mr. B.N. Keshwani, who, unfortunately, expired during the pendency of the appeal. This Court, therefore, issued notice to the appellant informing him about the fact-situation, so as to enable him to make arrangements for his defence. The notice has been served on him, but there is no response from him in the form of engaging another Advocate. 4.1 When the appeal came up for final hearing, as we noticed that the appellant is not represented by any lawyer, we requested learned Advocate, Mr. Abichandani and he agreed to work as amicus-curiae. 5. We have heard learned Advocate, Mr. Abichandani, in the capacity of amicus-curiae. According to Mr. 4.1 When the appeal came up for final hearing, as we noticed that the appellant is not represented by any lawyer, we requested learned Advocate, Mr. Abichandani and he agreed to work as amicus-curiae. 5. We have heard learned Advocate, Mr. Abichandani, in the capacity of amicus-curiae. According to Mr. Abichandani, so far as the conviction of the appellant, for offence punishable under Section 326 for causing grievous hurt to Bai Ramila is concerned, the conviction is not assailable. But so far as conviction of the appellant for murder of Laliben is concerned, Mr. Abichandani submitted that it could not have been considered as a murder because, according to him, there was no intention on the part of the appellant to cause death of the deceased-Laliben who, even as per the prosecution case, suffered injuries only because she suddenly intervened into the transaction between the appellant, and Ramila. According to Mr. Abichandani, this would be a case at the best falling under Section 304 of the IPC and, therefore, the conviction may be altered from one under Section 302 of the IPC to one under Section 304 of the I.P.C. and appropriate sentence may be awarded. 6. We have also heard learned Additional Public Prosecutor, Mr. Mengdey. 7. We have examined the record and proceedings. We find that the evidence of injured eye-witness, Ramila, at Exhibit 14, is natural and strong enough to support conviction. 8. From the evidence of Ramila, it emerges that the witness and the deceased were moving together since morning and the appellant followed them with a sickle in his hand. When they halted near a tree in the outskirts of village Sarsana, the appellant attacked witness Ramila with the sickle and then deceased-Laliben intervened. The appellant caused injury to her neck with the sickle and then again caused injuries to Ramila. The witness also states that the appellant had caused hurt to her on the hind portion of the head on the side of the left ear. 8.1 The witness has been cross-examined at length and she states that, there was no altercation, no quarrel or no heated exchange of words. The appellant straightaway attacked her. It also emerges that, the appellant also inflicted multiple injuries on the hands of the witness. 8.2 The evidence of Dr. 8.1 The witness has been cross-examined at length and she states that, there was no altercation, no quarrel or no heated exchange of words. The appellant straightaway attacked her. It also emerges that, the appellant also inflicted multiple injuries on the hands of the witness. 8.2 The evidence of Dr. Kureshi (Exhibit 21) and the post-mortem notes (Exhibit 22) would go to show that the injury found on person deceased-Laliben was sufficient, in ordinary course of nature to cause death. The injuries were on a vital part, of the body, i.e. neck, and they were caused with a sickle and were cutthroat injuries. 8.3 The FSL report, indicates that the sickle had blood stains of human blood group “B”, so also the blood stains on the shirt saree and the blouse, and the sample of blood, were all of group “B”, which was of the deceased. The evidence of the Investigating Officer would go to show that, the sickle was recovered from the accused. His clothes were also found to be stained with blood of group “B”. 9. It is, thus, clear from the foregoing discussion of evidence that involvement of the appellant cannot be doubted. His having caused grievous hurt to eye-witness, Ramila, also cannot be doubted. The only question, as argued by learned Advocate, Mr. Abichandani, that requires consideration is whether death of Laliben caused by the appellant can be considered as a murder or a culpable homicide punishable under Section 304 of the IPC. The bone of contention is that the appellant never intended to cause death of the deceased. The appellant could never have anticipated intervention by the deceased and could not have intended to cause injuries which proved to be fatal. It was only because she intervened that she suffered the injuries. 9.1 In this context, reference may be had to Section 301 of the IPC, which runs as under :— “301. The appellant could never have anticipated intervention by the deceased and could not have intended to cause injuries which proved to be fatal. It was only because she intervened that she suffered the injuries. 9.1 In this context, reference may be had to Section 301 of the IPC, which runs as under :— “301. Culpable homicide by causing death of person other than person whose death was intended— If a person, by doing anything- which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would ham been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.” A plain reading of Section 301 would mean that culpable homicide committed in respect of a person other than the person whose death was intended would carry the same impact, which it would have if he had caused the death of the person whose death was intended. It would be a case of transfer of malice. In the instant case, it is clear that the fatal blow aimed at Ramilaben fell on deceased-Laliben, when she intervened, and proved to be the cause of her death. Considering the nature of injuries as emerging from medical evidence, the site of injury over the body of the deceased and the weapon used in commission of the offence, it is clear that the attack was intended to cause death of the victim, i.e. murder. Therefore, what was intended for Ramila happened to Laliben. This leaves no doubt that Section 301 of the IPC would be attracted and would be applicable to the facts of the present case. Therefore, causing death of Laliben by the appellant by inflicting sickle blows on vital parts of her body, though not aimed at her, would be a culpable homicide, which would have been a murder, if it had fallen on Ramila. He would, therefore, be guilty of the offence of same description had the blow fallen on Ramila, i.e. murder. 10. Evidence of Dr. Rakeshkumar Srivastav (Exhibit. 7) would show that Ramila had multiple injuries on various parts of the body and several nerves were cut. He would, therefore, be guilty of the offence of same description had the blow fallen on Ramila, i.e. murder. 10. Evidence of Dr. Rakeshkumar Srivastav (Exhibit. 7) would show that Ramila had multiple injuries on various parts of the body and several nerves were cut. 10.1 The foregoing discussion would lead to a conclusion that, the conviction recorded by the trial Court for offence punishable under Section 326 of the IPC merits confirmation. 10.2 So far as conviction of the appellant for the offence punishable under Section 302 of the IPC for causing murder of Laliben is concerned, it is to be upheld. By application of principle of transfer of malice as contemplated by Section 301 of the IPC, the act of the appellant would be murder punishable under Section 302 of the IPC. 10.3 The case would not fell under any of the exceptions enumerated in Section 300 of IPC, either, as has been held in Jaspal Singh v. State of Punjab, 1991 Criminal Law Journal 597 (SC). We, therefore, uphold the conviction and the sentence of the appellant for murder of Laliben. The appeal, therefore, must fail and stands dismissed. 11. Before we part, we would like to place on record our appreciation of the services rendered by learned Advocate, Mr. Abichandani, as amicus-curiae.