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2013 DIGILAW 556 (GUJ)

JAYESHBHAI RAMESHBHAI RATHOD v. STATE OF GUJARAT

2013-09-12

K.J.THAKER, K.S.JHAVERI

body2013
JUDGMENT : K.J. THAKER, J. 1. The appellant-ori. Accused has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated30.6.2008 passed by the learned Sessions Judge, Navsari in Sessions Case No. 84/2007, whereby, the learned trial Judge has convicted the appellants-ori. Accused under sec. 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1000/-. The appellant is also convicted under section 135 of the Bombay Police Act and sentenced to undergo R/I for one month and to pay a fine of Rs. 100/-, which is impugned in this appeal. 2.1 The case of the prosecution is that on 20.9.2007 at about 19.30 hours in the evening, when deceased Motaliben @ Maniben wd/o Ukabhai Lavjibhai refused to give meal to the appellant, the appellant got excited and assaulted the deceased with stick. The appellant had given stick blows on the left hand and right leg. The appellant had also given kick and fist blows upon the deceased, due to which she became unconscious. Thereafter, she was taken to the Navsari Civil Hospital in a tractor, where doctor had declared her dead. Therefore, a complaint was lodged. 2.2 The appellant accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the present appellant. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 84/2007. 2.3 Thereafter, the Sessions Court framed the charge below Exh. 1 against the appellant for commission of the offence under section 302 of IPC and under section 135 of the Bombay Police Act. The appellant-accused has pleaded not guilty and claimed to be tried. 2.4 To prove the case against the present appellant, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocate for the appellant. 1. PW-1 Pranav Arvind Patel Ex. 6 2. PW-2 Jagdishbhai Govindbhai Patel Ex. 9 3. PW-3 Vijaybhai Balubhai Patel Ex. 18 4. PW-4 Tusharbhai Rameshbhai Patel Ex. 19 5. PW-5 Nareshbhai Lallubhai Patel Ex. 20 6. PW-6 Ajitkumar Manubhai Parmar Ex. 22 2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused. 1. Complaint Ex. 23 2. PW-2 Jagdishbhai Govindbhai Patel Ex. 9 3. PW-3 Vijaybhai Balubhai Patel Ex. 18 4. PW-4 Tusharbhai Rameshbhai Patel Ex. 19 5. PW-5 Nareshbhai Lallubhai Patel Ex. 20 6. PW-6 Ajitkumar Manubhai Parmar Ex. 22 2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused. 1. Complaint Ex. 23 2. Panchnama of scene of offence Ex. 11 3. Inquest panchnama Ex. 12 4. Panchnama of weapon Ex. 21 5. Panchnama of clothes of dead-body Ex. 13 6. Arrest panchnama E. 14 7. PM report Ex. 7 8. Certificate of cause of death Ex. 8 9. FSL Report Ex. 17 10. Serological report Ex. 26 11. Report of FSL, Surat Ex. 27 12. Notification Ex. 28 13. Copy of Entry no. 2 of station diary Ex. 25 3. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution. 4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 30.6.2008 held the present appellant-original accused guilty of the charge levelled against him under sec. 302 of IPC, convicted and sentenced the appellant-accused, as stated above. 5. We have heard at length learned advocate Mr. P.B. Goswami learned advocate for appellant and Ms CM Shah learned APP for the respondent-State. 6. The learned advocate for the present appellant has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellant deserves to be given the benefit of doubt and be acquitted. 7. On the other hand, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellants and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeals deserve to be dismissed. 8. 8. Having considered the minutely the evidence on record, oral as well as documentary evidence, which we have appreciated, re-appreciated and reconsidered in light of the latest decision of the Apex Court. The finding of facts as far as the death being homicidal death cannot be found any fault with. The evidence whether the dead was homicidal, suicidal or accidental. The evidence of PW-1 Pranav Arvindbhai Patel Ex. 6, P.M. Report, the inquest panchnama, shows that the deceased died out of cardio respiratory arrest due to hypovolemic shock due to bilateral hemothorax. As per postmortem report, following injuries are found: 1. Contused lacerated wound (3 inch x 1 inch) present over extension. Surface of left forearm at the distal end. Red in colour, margins are irregular. 2. Abrasion (2inch x 1 inch) present over front of left shoulder, red in colour, irregular margins. 3. Contusion (1.5 inch x 1 inch) present over dorsal surface of right wrist, blackish in colour, margins irregular. 4. Fracture: Closed fracture of neck of right humerus on opening fracture is linear and irregular. 5. Contusion (2inch x 1 inch) red in colour. Present over front part of chest at the upper part of sternal area, irregular margins, chest wall below the contusion is depressed. 6. Fracture: (A) irregular livear. Fracture 2nd, 3rd, & 4th left rib near it’s costal margins, the fractured ends of ribs penetrates inside the left lung. (B) Irregular livear, fracture of 3rd & 4th right rib near it’s costal margins, the fractured ends of ribs penetrates inside the right lung. 7. Contused lacerated wound 2 in numbers, one is (2inch x 1inch) red in colour, present over anterolateral part of right leg. Second is 2inch. Linear red in colour, present over anterolateral part of right leg just near to C.L.W. No. (1). 8. Contused lacerated wound; 1 inch linear, posterolateral part of left leg, middle part, red in colour, irregular margins. 9. Looking to the age of the deceased and the finding of fact, we have no hesitation in coming to the conclusion that the finding of fact as far as homicidal death cannot be found fault with and hence we hold that it was a homicidal death. 10. This takes us to the next issue as to whether it would fall within the purview of section 299, 300 and 304-I of IPC. 10. This takes us to the next issue as to whether it would fall within the purview of section 299, 300 and 304-I of IPC. Looking to the evidence on record, more particularly, PW-2, PW-3 and the panchnama of place of incident as well as recovery of weapon i.e. stick would go to show that PW-2 and 3 can be said to be natural and eye witness, who had seen the accused beating her. Therefore, the present of accused is proved, who had even given fist blows on the chest of the deceased. It cannot be said that the accused had any motive to do away with the deceased, however, he had a knowledge looking to the injuries, it cannot be said that he had no knowledge that the danger cause proximate to a practical certainty and such knowledge on the part of the accused was of the higher degree. The act having been committed by the accused is proved beyond reasonable doubt. 11. The residual question which arise before us whether section 302 of IPC has its application or it would be falling within section 304 of IPC. 12. This bring us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking generally, ‘culpable homicide’ sans ‘special characteristics of murder is culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognize three degrees of culpable homicide. The first is, what may be called, ‘culpable homicide of the first degree’. This is the gravest form of culpable homicide, which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 13. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 13. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if Subject to certain exceptions culpable the act by which the death is caused is done. homicide is murder is the act by which the death is caused is done. INTENTION (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily (2) with the intention of causing such injury as is likely to cause death; or bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; KNOWLEDGE KNOWLEDGE (c) with the knowledge that the act is likely (4) with the knowledge that the act is so to cause death. immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 14. Clause (b) of section 299 corresponds with clauses (2) and (3) of Section 300.The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to section 300. 15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words ‘likely to cause death’ occurring in the corresponding clause (b) of Section 299, the words ‘sufficient in the ordinary course of nature’ have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause(3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word ‘likely’ in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury...” sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. 16. The word ‘likely’ in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury...” sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. 16. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the internal bodily injury or injuries sufficient to cause death in the ordinary course of nature. 17. The ingredients which are required are that there should be no motive. We are of the opinion that the culpable homicide is there, but it would fall within the provisions of section 304 Part-I and not part-II of IPC, as submitted by the learned advocate for the appellant. The factual scenario and the manner of assault, in our considered view, the appropriate conviction shall be under section 304 Part-I of IPC, and to that extent, the appeal requires to be partly allowed. 18. This takes us to the issue of punishment under section 135 of the Bombay Police Act. Unfortunately, even before the learned trial Judge at Ex. 28 the notification issued by the competent authority is produced on record, but looking to the said notification and looking to the facts that it cannot be said that the accused was holding the stick in contravention of the same with a view to cause physical injury to the deceased. Hence, the conviction under section 135 of the Bombay Police Act requires to be quashed and set aside. 19. In the result, this appeal is allowed in part. The impugned judgment and order dated 30.6.2008 passed by the learned Sessions Judge, Navsari in Sessions Case No. 84/2007 recording the conviction of the present appellant herein under Section 302 of the IPC is modified and the present appellant is convicted under Section 304 (Part-I) of the Indian Penal Code and is sentenced to undergo R/I for Ten years. The conviction and sentence under section 135 of the Bombay Police Act is quashed and set aside. Rest of the judgment and order of the trial Court stands confirmed. R & P to be sent back to the trial Court, forthwith. Appeal party allowed.