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2016 DIGILAW 1015 (GUJ)

Shimalbhai Mansing Rathwa v. State of Gujarat

2016-05-06

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. Having been sentenced to life imprisonment and having been ordered to pay fine of Rs. 5000/- in default to undergo imprisonment for six months for the offence under section 302 of Indian Penal Code by impugned judgment and order dated 31.03.2011 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Godhra in Sessions Case No. 06 of 2010, the appellant-original accused, 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 02.11.2009 at about 2200 hours the accused was beating his own sister and seeing this the deceased intervened and asked the accused not to beat her. The accused therefore got excited and started abusing the deceased and thereafter picked a wooden log lying nearby and hit the deceased on his head and face. The deceased sustained injuries and finally succumbed to the same. A complaint in respect of this incident was lodged by the brother of deceased with Rajgadh Police Station vide I-C.R. No. 144 of 2009 for the offences punishable under sections 302, 504 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:- P.W. No. Name of Witness Exhibit No. 1. Rameshbhai Rathwa 10 2. Tetiben Mansingbhai 12 3. Ramanbhai Noorabhai 13 4. Divalbhai Rathwa 19 5. Rameshsingbhai Rathwa 21 6. Bhalabhai Parmar 22 7. Parasbhai Patel 26 8. Mohanbhai Rathwa 30 9. Maknabhai Rathwa 32 10. Ramanbhai Vagadiya 33 11. Vikramsinh Raolji 35 2.3 The prosecution has also relied upon certain documentary evidence such as body condition panchnama of accused at Ex. 11, inquest panchnama at Ex. 14, scene of offence panchnama at Ex. 15, complaint at Ex. Bhalabhai Parmar 22 7. Parasbhai Patel 26 8. Mohanbhai Rathwa 30 9. Maknabhai Rathwa 32 10. Ramanbhai Vagadiya 33 11. Vikramsinh Raolji 35 2.3 The prosecution has also relied upon certain documentary evidence such as body condition panchnama of accused at Ex. 11, inquest panchnama at Ex. 14, scene of offence panchnama at Ex. 15, complaint at Ex. 20, P.M. Note at Ex 27, death certificate at Ex. 28, FSL preliminary report at Ex. 38, serological report at Ex. 44, FSL report at Ex. 43 etc. 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 original accused-present appellant. 3. We have heard Mr. Hardik Shah, learned advocate appearing for the accused and Ms. C.M. Shah, learned APP appearing for State of Gujarat. We have gone through the oral as well as documentary evidence available on record. 4. Mr. Hardik Shah, learned advocate appearing for the appellant submitted that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. He submitted that the witnesses are related and therefore their evidence cannot be relied upon. He submitted that the prosecution has failed to examine independent witnesses. He submitted that the witnesses who have been examined are either relatives of accused or those who already had enmity with the accused and therefore their evidence ought not to have been accepted by the trial court. He further submitted that there are variations and contradictions in the evidence of the witnesses and therefore their evidence is totally unreliable. 4.1 Mr. Shah, in the alternative, submitted that the incident had happened at the spur of moment and in a fit of rage 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) or (Part II) of Indian Penal Code. He 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. 5. On the other hand, learned APP Ms. He 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. 5. On the other hand, learned APP Ms. Shah 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 302of Indian Penal Code and this court may not interfere in this appeal. She submitted that the appellant had caused injury by giving a blow on the head of the deceased which is a vital body part and therefore there is no germane reason to interfere with the impugned judgment and award of the learned trial court. 6. P.W. 1 is the panch witness who has supported the panchnama of body condition of accused. He has stated that blood stains were found on the clothes of accused. P.W. 2 is the sister of the accused. This witness has turned hostile and has not supported the prosecution case. P.W. 3 is the panch witness of the scene of offence panchnama. This witness has supported the panchnama. 6.1 P.W. 4 - Diwalbhai Rathwa is the complainant and the elder brother of deceased. This witness has stated that on the date of incident, the deceased and this witness were present in their house. The accused and his sister lived opposite to them. This witness has stated that the accused was assaulting his sister and seeing this the deceased intervened and asked him to stop beating her. This witness has further stated that the accused got excited and picked up a wooden log and hit the deceased. 6.2 P.W. 5 - Ramsingbhai Rathwa is a hearsay witness who has also supported the case of the prosecution. This witness has stated that he was told by P.W. 4 that the deceased was assaulted by accused. P.W. 6 is the panch witness who has supported the panchnama of clothes of deceased. 7. Dr. Paras Patel is examined as P.W. 7 and his evidence reveals that the deceased had died due to head injury. We have perused the injuries sustained by the deceased. P.W. 6 is the panch witness who has supported the panchnama of clothes of deceased. 7. Dr. Paras Patel is examined as P.W. 7 and his evidence reveals that the deceased had died due to head injury. We have perused the injuries sustained by the deceased. The cause of death of deceased is stated in the post mortem report to be due to neurohaemorrhagic shock due to head injury caused by assault due to hard & blunt object. This witness has stated that the injuries sustained by the deceased was possible by way of muddamal log. 8. Going by the evidence of the witnesses including the eye witness and considering the medical evidence it is clearly a case of assault by wooden log as a result of which the deceased died. It requires to be noted that there was an ongoing dispute between the accused and his sister in which the deceased interfered. The role of accused is clear from the evidence on record. We are of the view that the prosecution has successfully proved the case against the appellant beyond reasonable doubt. 9. However, considering the evidence on record it is very clear that the incident had taken place at the spur of moment and going by the oral evidence of witnesses, it is clear that the incident happened at the spur of moment. 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. 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. 10. In the case of Lashuben Chemabhai Chaudhary v. State of Gujarat reported in 2013 (2) GLH 706 , this Court has observed as under:- "13. 10. 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. 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:- 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 atleast such bodily injury which is likely to cause death. Such knowledge on the part of the accused must be of highest degree of probability. 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 atleast 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. 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; (5) 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. 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 299of 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. 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 INTENTION (a) with the intention of causing death; (1) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (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 (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; KNOWLEDGE 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. 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." 11. 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 in a fit of rage and he entered into a fight with deceased. 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 in a fit of rage and he entered into a fight with 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. 12. Accordingly, the conviction of the appellant-original accused under Section 302 of the Indian Penal Code vide judgment and order dated 31.03.2011 passed by the Additional Sessions Judge, 3rd Fast Track Court, Godhra in Sessions Case No. 06 of 2010 is altered to conviction under Section 304 (Part I) of Indian Penal Code. Accordingly, the appellant is ordered to undergo rigorous imprisonment for ten years with fine of Rs. 5000/-, in default, imprisonment for six months under section 304 (Part I) of Indian Penal Code. The judgment and order dated 31.03.2011 is modified accordingly. The period of sentence already undergone shall be considered for set off in accordance with law. Appeal is allowed to the aforesaid extent. R & P to be sent back forthwith.