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2016 DIGILAW 296 (GUJ)

Prabhatbhai Kadabhai Parmar v. State of Gujarat

2016-02-08

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. The present appeal is directed against the judgment and order of conviction dated 11.11.2005 passed by the Additional Sessions Judge, Vadodara in Sessions Case No. 25 of 2005 whereby the accused has been convicted of the charges leveled against him under section 302 of Indian Penal Code. The accused is ordered to undergo life imprisonment and pay fine of Rs. 5,000/- in default rigorous imprisonment for six months. The accused was further undergo R.I. For one year and pay fine of Rs. 1,000/- and in default rigorous imprisonment for 15 days under sections 323 read with Section 114 of Indian Penal Code. 2. It is the case of the prosecution that the incident had taken place on 21.12.2003, at about 6:30 P.M. at Village:Pratappura, Taluka:Savli, District:Vadodara. Accused No. 1 is the father of accused No. 2. On the said date, the father i.e. accused No. 1 provoked accused No. 2 to beat the deceased, who happens to be son of accused No. 1 and real brother of accused No. 2. Accused No. 2 with stone, caused serious injuries in the head of his deceased brother which resulted into death of the deceased. A complaint in this regard was registered by the complainant -- Vaghabhai Dhulabhai Parmar who happens to be brother of the deceased as well as accused No. 2 and son of accused No. 1. 2.1 Thereafter the offence was registered against the present appellants. Investigation was carried out and chargesheet was submitted against the appellants. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court. 2.2 The trial was initiated against the appellant-original accused and during the course of trial the prosecution examined following witnesses: (i) P.W. 1 - Vaghabhai Dhulabhai Parmar Ex. 18. (ii) P.W. 2 - Soniben Dhulabhai Parmar Ex. 19. (iii) P.W. 3 - Jashiben Ravjibhai Parmar Ex. 20. (iv) P.W. 4 - Ranjitsinh @ Rangeetsinh Vakhatsinh Ex. 22. (v) P.W. 5 - Madhurbhai Dhulabhai Parmar Ex. 23. (vi) P.W. 6 - Ganpatbhai @ Bhagabhai Nathabhai Parmar Ex. 24. (vii) P.W. 7 - Dr. Bijaysinh Ganpatsinh Rathod Ex. 33. (viii) P.W. 8 - Dr. Uday H. Prakash Ex. 38. (ix) P.W. 9 - Ishwarsinh Ratansinh Gohil Ex. 41. (x) P.W. 10 - Jitsinh Mangalsinh Gohil Ex. 43. (xi) P.W. 11 - Budhabhai Shanabhai Parmar Ex. 44. 23. (vi) P.W. 6 - Ganpatbhai @ Bhagabhai Nathabhai Parmar Ex. 24. (vii) P.W. 7 - Dr. Bijaysinh Ganpatsinh Rathod Ex. 33. (viii) P.W. 8 - Dr. Uday H. Prakash Ex. 38. (ix) P.W. 9 - Ishwarsinh Ratansinh Gohil Ex. 41. (x) P.W. 10 - Jitsinh Mangalsinh Gohil Ex. 43. (xi) P.W. 11 - Budhabhai Shanabhai Parmar Ex. 44. (xii) P.W. 12 - Laxmansinh Chhatrasinh Parmar Ex. 46. (xiii) P.W. 13 - Jivabhai Hirabhai Parmar Ex. 56. (xiv) P.W. 14 - Jaydevprasad Chhotalal Barot Ex. 58. 2.3 The prosecution also relied upon the following documents: (i) Complaint of complainant Vaghabhai Dhulabhai Ex. 19. (ii) Panchnama of scene of offence Ex. 45. (iii) Panchnama of physical condition of accused Ex. 42. (iv) Inquest report Ex. 25. (v) Panchnama about taking custody of cloths of the deceased Ex. 47. (vi) Vardhi of Dispensary Ex. 52. (vii) Yadi of Pandu Police Station about taking D.D. Ex. 26. (viii) To declare Vardhi of Dispensary dead Ex. 53. (ix) Yadi for doing postmortem of the dead-body Ex. 27. (x) P.M. Note performed at S.S.G. Hospital Ex. 34. (xi) Police report about after death investigation with dead-body to sent to Civil Surgeon Ex. 48. (xii) Receipt regarding keeping of dead-body Ex. 28. (xiii) Receipt regarding handing over of dead-body Ex. 29. (xiv) Yadi about sending of map of place of offence with the map of place of offence Ex. 30. (xv) Note about sending of Muddamal Ex. 49. (xvi) Receipt about receiving of Muddamal Ex. 31. (xvii) Yadi of giving of P.M. Note Ex. 50. (xviii) F.S.L. Report Ex. 32. (xix) Yadi about adding Section 302 of IPC Ex. 57. (xx) Notification issued under Section 37(1) of the Bombay Police Act, 1951. 2.4 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant of the charges leveled against him by judgment and order dated 11.11.2005. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellant has preferred the present appeal. 3. Mr. Chaudhary, learned advocate appearing for the appellant submitted that the trial court has committed an error in convicting the appellant-accused under section 302 of the IPC in view of the fact that the prosecution has failed to prove the ingredients of section 302. 3. Mr. Chaudhary, learned advocate appearing for the appellant submitted that the trial court has committed an error in convicting the appellant-accused under section 302 of the IPC in view of the fact that the prosecution has failed to prove the ingredients of section 302. He submitted that the prosecution having failed to prove that the injuries inflicted by the appellant - accused were caused with the intention of causing death, the trial court has committed an error in convicting the appellant - accused under section 302 of IPC. 3.1 Mr. Chaudhary submitted that even if everything is assumed against the accused and the offence alleged to have been committed by the accused is treated as culpable homicide, in view of the absence of any strong intention or motive to kill the victim, charges under Section 304(II) ought to have been attracted. He submitted that in a spur of moment, the incidence happened and the accused did not come with an intention of killing the victim. He also submitted that no weapon was used for assaulting the victim and that in a fit of rage the appellant gave stone blow to the deceased but did not intend to kill the deceased. He has taken this court to the nature of injuries which is clear from the post mortem report and submitted that the case of the appellant may be considered under section 304 (Part II) of Indian Penal Code. 4. Ms. C.M. Shah, learned APP has supported the judgment of the court below and submitted that the trial court is fully justified in basing the conviction on the ocular evidence as well as medical evidence. He submitted that considering the post mortem report at Ex. 34, it is clear that the cause of death was due to severe injury caused on the head of the deceased by hitting with stone same corroborates the version of the witnesses. 5. We have gone through the judgment and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Advocate for the appellant and the State. The main question that falls for our determination in this appeal is as to whether the accused could have been convicted for the offence of murder punishable under Section 302 IPC. 6. The main question that falls for our determination in this appeal is as to whether the accused could have been convicted for the offence of murder punishable under Section 302 IPC. 6. From the above facts and circumstances of the case, more particularly the medical evidence which is in corroboration with the ocular evidence we find that the appellant - accused provoked with the saying of his father blow a stone on the head of the deceased thereby causing his death. Some of the witnesses have supported the case of the prosecution and we find no reason to disbelieve the same. 7. However, what is apparent is the lack of premeditation and intention to kill and a reason for the appellant being provoked by another accused i.e. his father. It is required to be noted that the accused was not in a possession of any weapon. It can be inferred that amidst the provocation by the father of the accused, i.e. original accused No. 1, the incident had taken place and the present appellant-accused had thrown a stone on the head of the deceased without any intention to kill. Thus, we concur with the learned trial judge that it was homicidal death. However, the fact remains that the offence is said to have been committed and the appellant appears to have been driven by the grave and sudden provocation. Therefore, while we are inclined to hold that the offence had taken place as alleged by the prosecution we have a reason to say that the nature of offence would fall under exception to section300 i.e. grave and sudden provocation and therefore it does not amount to murder but culpable homicide not amounting to murder. 8. In the case of Budhi Lal vs. State of Uttarakhand reported in AIR 2009 SC 87 , the Apex Court has observed as under: "12. This brings 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 7 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 recognizes three degrees of culpable homicide. All 'murder' is 'culpable homicide' but not vice-versa. Speaking 7 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 recognizes 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. The confusion is caused, if Courts losing sight of the 8 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 Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. ..." 8.1 The comparison between Section 299 and 300 can be described as thus; Section 299:-A person commits culpable homicide if the act by which the death is caused is done. Section 300:-Subject to certain exceptions culpable homicide is murder if the act by which the death is done .... ..." 8.1 The comparison between Section 299 and 300 can be described as thus; Section 299:-A person commits culpable homicide if the act by which the death is caused is done. Section 300:-Subject to certain exceptions culpable homicide is murder if the act by which the death is done .... INTENTION Section 299:-(a) with the intention of causing death; or Section 300:-(1) with the intention of causing death; or Section 299(b) with the intention of causing such bodily injury as is likely to cause death; or Section 300(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 Section 299(c) with the knowledge that the act is likely to cause death. Section 300(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. 9. We are therefore inclined to alter the charge and the sentence from one under section 302 to section304 (Part II) and convict the appellant for the offence under section 304 (Part II) and sentence him to imprisonment for a period of five years. 10. Accordingly, appeal is partly allowed. The conviction of the appellant - original accused under Section302 of Indian Penal Code vide judgment and order dated 11.11.2005 passed by the Additional Sessions Judge, Vadodara in Sessions Case No. 25 of 2005 is converted to conviction under Section 304 (Part II) of Indian Penal Code. The appellant - original accused is ordered to undergo rigorous imprisonment for a period of five years under Section 304 (Part II). Amount of fine and sentence in default of fine is maintained. The judgment and order dated 11.11.2005 is modified accordingly. The period of sentence already undergone shall be considered for remission of sentence qua appellant - original accused. R & P to be sent back to the trial court forthwith.