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2014 DIGILAW 285 (GUJ)

State of Gujarat v. Dharmesh

2014-02-20

JAYANT M.PATEL, Z.K.SAIYED

body2014
JUDGMENT Jayant M. Patel, J. 1. As both the appeals arise from the judgment of the learned Sessions Judge in Sessions Case No. 171 of 2008, they are considered simultaneously. The short facts of the case are that a complaint was filed on 20-2-2008 by Gulabbhai P.W. 4 with Katargam Police Station stating that Dharmesh @ Sukhdev @ Kalio (accused) was inside the Jail in connection with other cases under Prohibition Act. He was staying with his elder brother Ganpat, and thereafter, on account of habitual consumption of liquor, he was removed from the house and he used to give threat to both the brothers. On 19-2-2008, in the evening, at about 6-00 O'clock, the accused came at the residence of the complainant and started abusing and he gave a threat that today, he will kill one of the brothers, and therefore, the family and brother of the complainant were afraid and due to the same, all the members of the family were watching T.V., and thereafter, at about 1-30 to 2-00 O'clock in the early morning, they had gone to sleep and brother of the complainant Ganpat (deceased), had gone in the room located in the front door. At about 3-00 O'clock in the morning, when some disturbances started, the complainant and his wife got up and found that accused was giving blows on the head with the weapon upon the deceased and they saw the accused running away. They found that the weapon was like sword. The injuries were sustained by the deceased on the head, neck, backside of the hand, and fingers were cut. Since his brother expired, he was to be carried to the hospital for treatment but some time was taken to get rickshaw. In the meantime, the deceased expired. Hence, the complaint was filed. 2. The aforesaid complaint came to be investigated by the police and the charge-sheet was filed against the accused. The case was committed to the Court of the learned Sessions Judge being Sessions Case No. 171 of 2008. The learned Sessions Judge framed charges, and thereafter, the trial was conducted. The prosecution in order to prove the guilt of the accused, examined 23 witnesses, details of which are recorded by the learned Sessions Judge at Para 6 in the judgment. The learned Sessions Judge framed charges, and thereafter, the trial was conducted. The prosecution in order to prove the guilt of the accused, examined 23 witnesses, details of which are recorded by the learned Sessions Judge at Para 6 in the judgment. The prosecution also produced 15 documentary evidences, details of which are mentioned by the learned Sessions Judge in Para 7 in the impugned judgment. The learned Sessions Judge thereafter recorded the statement under Sec. 313 of Cr.P.C. wherein, the accused denied the evidence against him and in the further statement, the accused stated that the witnesses were knowing him earlier, and therefore, they have identified. The complainant and the deceased were brothers. The police complaint was filed on the basis of doubt. The learned Sessions Judge thereafter, heard the prosecution and defence and the learned Sessions Judge found that the prosecution has been able to prove the case for causing death of the deceased by the accused, but the learned Sessions Judge found that the case would fall under Sec. 304 Part-II of I.P.C., and therefore, convicted the accused accordingly. The learned Sessions Judge thereafter heard the prosecution and defence for sentence and imposed sentence of 10 years R.I. with the fine of Rs. 5,000/- and further 2 1/2 years R.I. for default in payment of fine for the offence under Sec. 304 Part-II read with Secs.452 and 188 of I.P.C., but did not impose separate sentence for the offence under Secs. 452 and 188 of I.P.C. Under the circumstances, the State has preferred Criminal Appeal No. 879 of 2010 against acquittal of the accused for the offence under Sec. 302 of I.P.C., whereas, the original accused has preferred appeal being Criminal Appeal No. 1237 of 2011 against conviction made by the learned Sessions Judge. Under the circumstances, both the appeals before this Court. 3. We may record that for the sake of convenience, the parties shall be referred to as per their status before the trial Court since there are cross-appeals. 4. The learned Counsel Mr. Mrudul Barot for the accused and Mr. Pandya, learned A.P.P. for the State have taken us to the entire evidence on record. We have considered the judgment and the reasons recorded by the learned Sessions Judge. We have heard the learned Counsel appearing for the accused as well as for the State in the respective appeals. 5. Mrudul Barot for the accused and Mr. Pandya, learned A.P.P. for the State have taken us to the entire evidence on record. We have considered the judgment and the reasons recorded by the learned Sessions Judge. We have heard the learned Counsel appearing for the accused as well as for the State in the respective appeals. 5. The evidence led by the prosecution shows that P.W. 4, Gulab, who is the complainant, is examined at Exh. 19. His testimony supports the case of the prosecution for filing of complaint at Exh. 20 and his testimony supports the case of the prosecution for the quarrel and the threat given earlier at about 3-00 O'clock by the accused. As per his testimony in the examination-in-chief, he has stated that five blows were given by the accused on the head, on the neck and on the fingers. In the cross-examination, there is no material contradiction to the other part of his testimony except that when he got up, he found some one running away and he had a doubt, and therefore, the name of the accused was mentioned. There is slight contradiction about the time narrated in the complaint of the incident and stated in the examination-in-chief. He has stated 2 to 2 1/2 hrs. in the morning whereas in the complaint, he stated 3-00 O'clock. Even if it is considered that he is not the eye-witness to the incident of giving blows by the accused to the deceased, there is no contradiction on the aspect that he had seen the accused running away when he had got up on account of sudden disturbances. The medical evidence fully supports the case of the prosecution. 6. The another main piece of evidence is for discovery of weapon at the instance of the accused. Rajesh Pravinbhai Modi, P.W. 9 at Exh. 30 has fully supported the case of the prosecution for the discovery panchnama of the weapon. As per his testimony, weapon sword was discovered at the instance of the accused and the said sword was having length of about 2 to 2 1/2 ft. In the cross-examination of the said witness, defence has not been able to bring about any material contradiction. The panchnama for discovery of weapon has come on record at Exh. As per his testimony, weapon sword was discovered at the instance of the accused and the said sword was having length of about 2 to 2 1/2 ft. In the cross-examination of the said witness, defence has not been able to bring about any material contradiction. The panchnama for discovery of weapon has come on record at Exh. 22, which also fully supports the case of the prosecution for discovery of the weapon used for commission of crime at the instance of the accused. As per the said panchnama, Exh. 30, the weapon was discovered at the instance of the accused from a distant place at Singanpur. The weapon discovered was having blood stains. The blood stains were also found on the cloths of the accused. As per the scientific evidence of F.S.L., the deceased was having blood group of 'O'. The blood found on the weapon sword which was discovered at the instance of the accused was of 'O' group matching to the group of deceased. On the shirt of the accused which was also discovered at the instance of the accused, the blood was found but it is a different thing that the group could not be identified in the serological report. In our view, the aforesaid evidence led by the prosecution goes for showing the guilt and involvement of the accused for the death of the deceased. The accused has not explained any of the circumstances or any incriminating material in his statement under Sec.313 of Cr.P.C. Hence, it can be said that the prosecution has been able to prove the case for causing the death of the deceased by the accused beyond reasonable doubt. 7. The learned A.P.P. for the State contended that it was a case for conviction under Sec. 302 of I.P.C. Whereas, Mr. Barot, learned Counsel appearing for the accused contended that the case has been rightly held as falling under Sec. 304 Part-II of I.P.C. by the learned Sessions Judge and the acquittal by the learned Sessions Judge for the offence under Sec. 302 of I.P.C. was proper. 8. Barot, learned Counsel appearing for the accused contended that the case has been rightly held as falling under Sec. 304 Part-II of I.P.C. by the learned Sessions Judge and the acquittal by the learned Sessions Judge for the offence under Sec. 302 of I.P.C. was proper. 8. The difference between commission of crime under Sec. 302 of I.P.C. and under Sec. 304 Part-I or II can broadly be considered on the aspect that for the offences under Sec. 304 Part-I and II, there would not be any intention to cause death and the incident of causing death might have happened on account of sudden provocation or without any intention to cause death. Whereas, under Sec. 302 of I.P.C., the intention to cause death is to be gathered by the conduct of the accused read with the other circumstance proved by the prosecution that the accused had an intention to cause death. The position of law is by now well settled. 9. Useful reference may also be made to the decision of the Apex Court in the case of Sridhar Bhuyan v. State of Orissa, reported at 2004 (11) SCC 395 and the observations made by the Apex Court at Para 8, which reads as under: "The Fourth Exception of Sec. 300, I.P.C. covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the 'share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Sec. 300, I.P.C. is not defined in the I.P.C. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and mere was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'." 10. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and mere was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'." 10. If the facts of the present case are examined in light of the aforesaid legal position, it appears that the incident had not happened out of sudden fight but on the contrary, after the threat was given, the accused had gone away and after 6 hours, during late night or early morning of 2-00 to 3-00 O'clock, when the deceased was in sleeping condition, the blows are given by the accused with the sword. The blows were given with force in a manner that the fingers are cut and the force applied was to the extent that the death was immediate. As per the brother of the deceased, he was sleeping in the next room and when he got up and saw the accused running away, the deceased had died. Therefore, if the aspect of offender taking any undue advantage and acting in a cruel or unusual manner is to be examined, it can be said that the accused acted in unusual manner by reaching to the place of the deceased at about 2-00 to 3-00 O'clock in the morning and further the injuries were given with the sword and the fingers were cut. When the incident happened, after 6 hours from the threat given, coupled with the timing at which the accused visited the place of the deceased for causing death and coupled with the aspect of using the weapon sword and giving blows of sword on the vital part of the body, i.e., head and neck and further cutting of the fingers, it cannot be said that the case would fall in the exception for Sec. 300 of I.P.C. as considered by the learned Sessions Judge. The learned Sessions Judge failed to appreciate the aforesaid aspects and it appears that he has erroneously considered the case under Sec.304 Part-II of I.P.C. If the aforesaid circumstances are considered, it can be said that the accused had an intention to cause death of the deceased and the said intention can be gathered from the timing at which the accused reached to me place of the deceased, the use of deadly weapon of sword and the manner in which the blows were given. Therefore, in our considered view, it is a case falling under Sec. 302 of I.P.C. and not a case falling under Sec. 304 Part-II of I.P.C. 11. The learned Counsel for the accused relied upon the decision of the Apex Court in the case of Sukhbir Singh v. State of Haryana, reported at 2002 (3) SCC 327 and contended that merely because time gape was of 6 hrs. between earlier scuffle and incident, such would not disentitle the case of taking the benefit of Sec. 304 Part-II of I.P.C. 12. The said case, if considered with the facts of the present case, it appears that in the said case, the Court found that the quarrel was sudden on account of heat and passion. Further, the Court also found that within few minutes, the accused came with the other persons. Such are not the fact situation in the present case. Hence, the said decision is of no help to the accused. 13. The learned Counsel also relied upon the another decision of the Apex Court in the case of Ramesh Krishna Madhusudan Nayar v. State of Maharashtra, reported in 2008 (14) SCC 491. 14. In the said case, the blows were given with wooden log, whereas, in the present case, the weapon sword is used for giving blows. Therefore, the said decision is also of no help to the learned Counsel for the accused. 15. In view of the aforesaid observations and discussions, the judgment and order passed by the learned Sessions Judge in Sessions Case No. 171 of 2008 deserves to be modified, and hence, modified by convicting the accused for me offence under Sec. 302 of I.P.C. and not for the offence under Sec. 304 Part-II of I.P.C. 16. 15. In view of the aforesaid observations and discussions, the judgment and order passed by the learned Sessions Judge in Sessions Case No. 171 of 2008 deserves to be modified, and hence, modified by convicting the accused for me offence under Sec. 302 of I.P.C. and not for the offence under Sec. 304 Part-II of I.P.C. 16. In view of me conviction under Sec. 302 of I.P.C., the sentence upon accused Dharmesh @ Sukhdev @ Kalio shall be R.I. for life with fine of Rs. 5,000/- with further 3 months R.I. for default in payment of fine. Criminal Appeal No. 879 of 2010 shall stand allowed to the aforesaid extent. Criminal Appeal No. 1237 of 2011 shall stand dismissed.