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2014 DIGILAW 751 (GUJ)

Vandansinh D. Chauhan v. State of Gujarat

2014-07-10

A.G.URAIZEE, K.S.JHAVERI

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JUDGMENT : A.G. Uraizee, J. Having been sentenced to life imprisonment and ordered to pay fine of Rs. 1000/- in default to undergo imprisonment for three months for the offence under section 302 of Indian Penal Code by impugned judgment and order dated 06.12.2008 passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Himmatnagar, Camp at Idar in Sessions Case No. 7 of 2008, the appellant, being aggrieved, is before this Court questioning the impugned judgment and order. 2. The case of the prosecution as per charge at Ex. 5 is that on 20.08.2007 at about 19-30 hours the deceased Dalpat Chauhan accosted the appellant for quarrelling with his wife, children and other villagers, the appellant got angry and gave knife blow on the chest of the deceased causing his death. A complaint in respect of this incident was lodged by Arvindsinh Dalpatsinh Chauhan - P.W. 2 with Vijaynagar Police Station vide I-C.R. No. 85 of 2007 for the offences punishable under sections 302 of Indian Penal Code and 135 of B.P. Act. 2.1. Pursuant to the complaint, investigation was carried out. After investigation, on the basis of material collected against the accused, since the Investigating Officer found a prima facie case against the accused, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 2.2. Trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides : (i) P.W. 1- Dr. Ganpatsinh Charan Ex.08 (ii) P.W. 2- Arvindsinh Chauhan Ex. 13 (iii) P.W. 3- Ranjitsinh Chauhan Ex. 16 (iv) P.W. 4- Parbatsinh Chauhan Ex. 18 (v) P.W. 5- Nakushbhai Makwana Ex. 23 (vi) P.W. 6- Mavjibhai Nanjibhai Ex. 26 (vii) P.W. 7- Ishwarbhai Rathod Ex. 31 (viii) P.W. 8- Ranchhodbhai Somabhai Ex. 37 2.3. The prosecution also relied upon the following documents which have been perused by us: (i) Police yadi Ex. 09 (ii) Police report sent with the dead body Ex. 10 (iii) Yadi for post mortem Ex. 11 (iv) Death Certificate Ex. 12 (v) Complaint Ex. 14 (vi) Receipt Ex. 15 (vii) Inquest panchnama Ex. 37 2.3. The prosecution also relied upon the following documents which have been perused by us: (i) Police yadi Ex. 09 (ii) Police report sent with the dead body Ex. 10 (iii) Yadi for post mortem Ex. 11 (iv) Death Certificate Ex. 12 (v) Complaint Ex. 14 (vi) Receipt Ex. 15 (vii) Inquest panchnama Ex. 19 (viii) Panchnama of scene of offence Ex. 20 (ix) Panchnama Ex. 21 (x) Panchnama of body condition Ex. 22 (xi) Panchnama Ex. 23 (xii) Receipt Ex. 25 (xiii) Station diary Ex. 27 (xiv) Index Ex. 28 (xv) Police yadi Ex. 29 (xvi) Telephone Vardhi Ex. 30 (xvii) Muddamal dispatch note Ex. 32 (xviii) FSL report Ex. 33 (xix) FSL report Ex. 34 (xx) Report of place of offence Ex. 35 (xxi) Yadi for inquest Ex. 36 2.4. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted original accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the present appeal has been preferred by accused. 3. We have heard Ms. Meenu Kumar, learned advocate appearing for the accused and Mr. H.L. Jani, learned APP appearing for State of Gujarat. We have gone through the oral as well as documentary evidence available on record. 3.1. Ms. Kumar, learned advocate contended that the incident had happened at the spur of moment and only one injury was caused to the deceased by the appellant and therefore the learned trial court has committed an error in convicting the appellant under section 302 of Indian Penal Code instead of section 304(Part-I) of Indian Penal Code. She therefore urged that considering the materials on record and the facts and circumstances of the case, the conviction of the appellant may be converted to 304 (Part-I) of Indian Penal Code. 4. On the other hand, learned APP Mr. Jani supported the impugned judgment and order and has objected to the alteration of sentence to section 304 (Part-I) from section 302 IPC. Learned APP submitted that the trial court has given cogent reasons for sustaining the conviction under section 302 of Indian Penal Code and this court may not interfere in this appeal. Jani supported the impugned judgment and order and has objected to the alteration of sentence to section 304 (Part-I) from section 302 IPC. Learned APP submitted that the trial court has given cogent reasons for sustaining the conviction under section 302 of Indian Penal Code and this court may not interfere in this appeal. He submitted that the appellant had caused injury by means of a knife on the vital part of the body of deceased and therefore there is no germane reason to interfere with the impugned judgment and award of the learned trial court. 5. Arvindsinh Chauhan who happens to be the son of deceased is examined as P.W. 2 vide Ex. 13. It is clear from the oral evidence of this witness that he had lodged a complaint in respect of this incident and he is an eye witness to the incident. He has stated in his oral evidence that at the time of the incident, the appellant was quarrelling with his wife and children and at that time the deceased intervened and accosted him. This witness has further stated that the accosting by the deceased provoked the appellant and therefore he attacked the deceased with a knife. Therefore, from the evidence of this witness it is explicitly clear that the incident had taken place at the spur of moment and the intention to kill the deceased cannot be inferred. 5.1. Ranjitsinh Chauhan - P.W. 3 is also an eye witness to the incident and this witness vide his deposition at Ex. 16 has stated that on the day of incident, at around 07.30 pm while he was sitting in the courtyard of Ranjitsinh Sursinh along with Ranjitsinh Sujsinh, Parbatsinh Sujsinh and Jagatsinh, he saw the appellant walking on the road and using abusive language when the deceased accosted him and reprimanded him for doing so. This witness has stated that the appellant got infuriated and took out a knife and stabbed the left side of the chest of the deceased. 5.2. It is borne out that the blood stains on the clothes of the deceased were of blood group ‘O’. This witness has stated that the appellant got infuriated and took out a knife and stabbed the left side of the chest of the deceased. 5.2. It is borne out that the blood stains on the clothes of the deceased were of blood group ‘O’. Though the blood group of the deceased could not be clearly ascertained by the FSL as per reports, however, the mud containing blood collected from the scene of offence states the blood group to be ‘O’ which means that the blood group of the blood of the deceased which had fallen on the ground at the scene of offence matched with that found on the clothes of the appellant and the muddamal knife. The panchnamas have also been supported by the panchas. 5.3. Dr. Ganpatsinh Charan is examined as P.W. 1 and his evidence reveals that the deceased had suffered only one injury on the left side of the chest and that resulted into his death. Column No. 17 of the post mortem note shows as under: 17. External Injury Lt. side stab Injury situated in Lt. 5th space having size of 1.5 c.m. x 1/2 c.m. x 7 c.m. 5.4. The cause of death of deceased is stated in the post mortem report to be due to acute cardio-respiratory failure following haemorrhagic shock due to stab-injury on left side chest region. Thus it is very clear that the incident had taken place at the spur of moment and only one injury was caused by the appellant and going by the oral evidence of witnesses, it is clear that the incident happened at the spur of moment. 6. In the case of Lashuben Chemabhai Chaudhary v. State of Gujarat reported in 2013 (2) GLH 706 , this Court has observed as under: “13. We have already discussed above that the action of the accused in pushing the deceased in the fire of a hearth was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record, it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. From the aforesaid evidence on record, it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our view, the case cannot be said to be covered under Clause Fourthly of Section 300 IPC, however, the case of the appellant is covered under Section 304, Part-II IPC. Clause (4) to Section 300 reads as under :- "300. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - 2ndly xxx xxx xxx xxx 3rdly xxx xxx xxx xxx 4thly.- If the person committing the act knows that it is so 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 the risk of causing death or such injury as aforesaid." This clause covers class of cases which are very dangerous in themselves and the act is done with the knowledge that it must in all probability cause death or such bodily injury as is likely to cause death and despite such knowledge, the act is done without any excuse. In other words, provisions of this clause are required to be attracted only when the offender knows that his act is so imminently dangerous that it would in all probability cause death or at least such bodily injury which is likely to cause death. Such knowledge on the part of the accused must be of highest degree of probability. It is also a well known fact that the clause 4thly is designed to provide for that class of cases where the acts resulting in death are calculated to put lives of many persons in jeopardy without being aimed at any one in particular and perpetrated with full consciousness of the probable consequence, as can be seen from illustration (d) of Section 300 of the IPC. Under clause (4) the degree of probability or likelihood of the act resulting in fatal harm is required to be of highest level. Under clause (4) the degree of probability or likelihood of the act resulting in fatal harm is required to be of highest level. This can be gathered from the clear wording of the clause (4), namely, "If the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death ......." For applicability of this clause following are the necessary requirements :- (1) the act must be imminently dangerous; (2) the act must be of extraordinary recklessness; (3) the danger to human life must be so imminent; and (4) the imminence should be such that it will in all probability cause death or cause such bodily injury as is likely to cause death. The word "imminently" implies a risk which is both threatening and near. The question whether an act is imminently dangerous depends upon nature of the act and its evident risk to human life. The danger threatened must be to human life. It must be an act in which death of human is certain or almost so, and it would cause surprise if the result was otherwise. Moreover, the danger must not only be of certain or almost certain death, but of a death which is near and may be counted by days or may be hours. Thus, it can be seen that unlike the preceding three clauses of Section 300 clause (4) revolves round the knowledge of the accused and intention of the accused is of no relevance to attract provisions of this clause. 14. We may, therefore, at this juncture refer to the provisions of Section 299 of the IPC and in particular the last part of that section and examine the said provisions vis-a-vis clause (4) of section as both these provisions are totally based on the knowledge of the offender of the consequences of his act. Section 299 of the IPC deals with culpable homicide. Section 299 of the IPC deals with culpable homicide. It reads as under:- "Whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." A comparative table of Section 299 and Section 300 has been aptly given in the book of Indian Penal Code by Ratanlal & Dhirajlal 28th edition - 1999 on page 364, which is as follows :- Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done .... Subject to certain exceptions culpable homicide is murder if the act by which the death 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 injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently 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. This comparative table is quite helpful in appreciating the points of distinction between the two offences viz. offence made punishable u/S. 302 of the IPC and offence made punishable u/S. 304 II of the IPC. Clause (c) of Section 299 and clause (4) of Section 300 in the table given above, as can be seen, are put under the head of knowledge. It is further explained by the learned authors as under:- "Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death." 15. Clause (c) of Section 299 and clause (4) of Section 300 in the table given above, as can be seen, are put under the head of knowledge. It is further explained by the learned authors as under:- "Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death." 15. From aforesaid discussion, it will be sufficient to say that normally clause (4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of such offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. In a given case this clause can be made applicable to a case wherein the offending act is done against a particular person. As against that the case would fall in the category of "culpable homicide not amounting to murder" if all the ingredients of clause (4) of section 300 of the IPC are absent and where evidence establishes that the act by which the death is caused is done with the knowledge that the act is likely to cause death. Thus it can be seen that the knowledge of the offender is closely connected with the probable result of his act. The probability in the two cases relates to the causing of death, but in one case it is comparatively not so strong as in the other. Similarly the act is in the two cases dangerous, but if it is imminently dangerous, it is prima facie murder and not merely culpable homicide.” 7. It appears from the record that the learned Sessions Judge noticed the vital aspects of the case while holding that the prosecution had proved the offence as committed by the appellant-accused. The prosecution has been able to prove the case against the appellant-accused and therefore we see no reason to interfere so far as the case of the prosecution that the appellant is the one who has committed the alleged offence. 7.1. The prosecution has been able to prove the case against the appellant-accused and therefore we see no reason to interfere so far as the case of the prosecution that the appellant is the one who has committed the alleged offence. 7.1. As per the latest decision of the Apex Court, we have appreciated, re-appreciated and re-evaluated the evidence led before the trial court in its entirety but we are unable to persuade ourselves to take a different view than the one taken by the trial court that the appellant is the perpetrator of the alleged offence. 7.2. However, in the peculiar facts and circumstances of the case, we are of the considered opinion that it is an admitted position that the appellant was having a quarrel with his family members and it is at that time when the deceased intervened and this angered the appellant. We have also borne in mind that there was no major dispute between the appellant and the deceased. Therefore, in the totality of all these and looking to the injuries sustained by the deceased and the decision of this court in the case of Lashuben (supra), we are of the opinion that the sentence awarded to the appellant is required to be converted to section 304 (Part-I) of Indian Penal Code. 8. Accordingly, the conviction of the appellant - original accused under Section 302 of the Indian Penal Code vide judgment and order dated 06.12.2008 passed by the Additional Sessions Judge, Fast Track Court No. 4, Himmatnagar camp at Idar in Sessions Case No. 7 of 2008 is converted to conviction under Section 304 (Part-I) of Indian Penal Code. The appellant - original accused is ordered to undergo rigorous imprisonment for a period of ten years under section 304 (Part-I) of Indian Penal Code instead of life imprisonment as awarded by the trial court under section 302 IPC. The sentence awarded by the court below stands altered accordingly. The period of sentence already undergone shall be considered for remission and set off in accordance with law. The judgment and order dated 06.12.2008 is modified accordingly. Appeal is allowed to the aforesaid extent. R & P, if lying with this Court, to be sent back forthwith. Appeal partly allowed.