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2016 DIGILAW 871 (GUJ)

Rushikumar Balkrushna Bhatt v. State of Gujarat

2016-04-22

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Having been sentenced to life imprisonment and ordered to pay fine of Rs. 2000/- in default to undergo imprisonment for three months for the offence under section 302 of Indian Penal Code by impugned judgement and order dated 01.03.2011 passed by the learned Additional Sessions Judge, Fast Track Court No. 3, Bhavnagar at Mahuva in Sessions Case No. 151 of 2004 with Sessions Case No. 29 of 2005, the appellant - original accused in Sessions Case No. 151 of 2004, being aggrieved, is before this Court questioning the impugned judgment and order. 2. The case of the prosecution as per charge at Ex. 11 is that on 01.05.2004 at about 1600 hours the deceased and complainant had gone to their field for collection of fodder on bicycle and thereafter visited another field whereby accused No. 2's field was there. It is the case of the prosecution that the deceased and complainant passed by and accused No. 1 started abusing them. The deceased and complainant asked them not to abuse but accused No. 1 got excited and he picked up a wooden log lying there and hit the complainant on his leg. In the meantime, accused Nos. 2 to 4 grabbed the neck and pressed it and thereafter accused No. 1 gave the deceased a push as a result of which he fell down and thereafter accused No. 1 mounted upon the deceased and pressed his neck thereby causing his death. A complaint in respect of this incident was lodged by Dharmendrakumar Bhatt - P.W. 1 with Talaja Police Station vide I-C.R. No. 43 of 2004 for the offences punishable under sections 302, 323, 504, 506(2) and 114 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, chargesheet 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. 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. Namess of Witness Exhibit No 1 Dharmendrakumar Champaklal 26 2 Jagrutiben Champaklal 28 3 Kishorebhai Nanalal 29 4 Jaswantray Kanjibhai 32 5 Vanrajsinh Satubhai 34 6 Dr. Pawankumar Ramakant 53 7 Godabhai Arjanbhai 61 8 Lakhabhai Lakhmanbhai 63 9 Bhurabhai Shamlabhai 66 10 Vinodbhai Bhatt 94 11 Jawantisinh Bahadursinh 110 12 H.C. Sahdevsinh Lalubhai 125 13 Vasudev Pandya 128 14 Dhansukhray Vyas 149 15 Balvantsinh Chavda 161 16 Narengiri Gosai 188 17 Vasantbhai Patel 194 18 Manzurhsen Khokhar 238 19 Gautam Vala 277 20 Sharadbhai Trivedi 280 2.3 The prosecution has also relied upon certain documentary evidence such as post mortem note at Ex. 54, arrest panchnama of accused No. 1 at Ex. 135, yadi for conducting post mortem at Ex. 137, medical certificate of accused No. 1 at Ex. 140, blood sample of accused No. 1 at Ex. 142, FSL report at Ex. 241 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 No. 1 as mentioned aforesaid. The trial court however acquitted original accused Nos. 2 to 4 by granting them benefit of doubt. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court, the present appeal has been preferred by original accused No. 1 - present appellant. 3. We have heard Mr. B.M. Mangukiya, 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. B.M. Mangukiya, 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 majority of the witnesses have turned hostile and they have not supported the prosecution case. We have gone through the oral as well as documentary evidence available on record. 4. Mr. B.M. Mangukiya, 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 majority of the witnesses have turned hostile and they have not supported the prosecution case. He submitted that the appellant has been falsely roped into the alleged incident and therefore this Court may atleast grant benefit of doubt to the appellant - accused. 4.1 Mr. Mangukiya further submitted that there are variations and contradictions in the evidence of the witnesses and therefore their evidence is totally unreliable. He submitted that the evidence of the star witness - injured eye witness is shaky on many counts. He submitted that the prosecution has not proved by way of medical evidence regarding the assault upon the complainant. He submitted that the evidence of this sole witness has become shaky and doubtful and therefore the trial court ought not to have based the conviction upon the sole evidence. 4.2 Mr. Mangukiya, in the alternative, submitted that the incident had happened at the spur of moment 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. 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 judgement 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. She submitted that the appellant had caused injury by pressing (throttling) the neck 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. Dharmendrakumar Champaklal who happens to be the cousin of deceased is examined as P.W. 1 vide Ex. 26. 6. Dharmendrakumar Champaklal who happens to be the cousin of deceased is examined as P.W. 1 vide Ex. 26. 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 deceased and this witness had gone to the place of offence where there was the field of the accused nearby. This witness has stated that all the accused were present there and when they reached the field of the accused, accused No. 1 started abusing them. This witness has stated that accused No. 1 hit him on the leg with a wooden log. Accused No. 1 thereafter caught hold of deceased and threw him down. This witness has further stated that the other accused reached there and accused No. 1 mounted on the deceased and started pressing his neck (throttling). This witness has further stated that he had started running and on the way he met P.W. 3 to whom this witness narrated the entire facts. Thereafter he reached the scene of offence with other people and found that the deceased had expired. 6.1 P.W. 2 - Jagrutiben Champaklal, P.W. 3 - Kishorebhai Nanalal and P.W. 4 - Jaswantray Kanjibhai are hearsay witnesses. These witnesses have stated that they were informed about the alleged incident by P.W. 1. These witnesses have supported the case of the prosecution. From the evidence of these witnesses it is clear that there existed a property dispute between the accused and his family members and the deceased and his family members. 7. Dr. Pavankumar Ramakant is examined as P.W. 6 and his evidence reveals that the deceased had died due to throttling. Column No. 17 of the post mortem note shows as under: "17. (I) A bruise present in Rt. Side of neck just lateral to angle of mandible - oval in shape and measuring 2.5 cm x 1.5 cm subcutaneous tissue and muscle underneath it showed petechial haemorrhage and extenuation of blood. (ii) Generalised bruise in Lt side of neck extending from lateral to angle of mandible to middle portion of neck but more prominent in upper part behind the angle of mandible. Subcutaneous tissue and muscle underneath it showed petechial haemorrhage and extravasation of blood. (ii) Generalised bruise in Lt side of neck extending from lateral to angle of mandible to middle portion of neck but more prominent in upper part behind the angle of mandible. Subcutaneous tissue and muscle underneath it showed petechial haemorrhage and extravasation of blood. (iii) Mild abrasions seen in posterior aspect of both heels. (iv) The back, prominently the scapular region showed reddish brown coloured bruise. (v) Inward fracture of greater part of bone in rt side." 7.1 The cause of death of deceased is stated in the post mortem report to be due to cardio-respiratory failure due to asphyxia and shock due to pressure on anivary and carotid arteries due to throttling. 8. Going by the evidence of the witnesses including the eye witness and considering the medical evidence it is clearly a case of throttling as a result of which the deceased died. It requires to be noted that there was an ongoing dispute between the accused side and deceased side with regard to property and land. The trial court has considered the lie detector test report and other panchnamas. The role of accused No. 1 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 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. 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. 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. 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, 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 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; and (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 299 of the IPC and in particular the last part of that section and examine the said provisions vis-à-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 (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 desth 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. 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 of Sessions Case No. 151 of 2004 under Section 302 of the Indian Penal Code vide judgment and order dated 01.03.2011 passed by the Additional Sessions Judge, Fast Track Court No. 3, Bhavnagar at Mahuva in Sessions Case No. 151 of 2004 with Sessions Case No. 29 of 2005 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. 2000/-, in default, imprisonment for three months under section 304 (Part I) of Indian Penal Code. The judgement and order dated 01.03.2011 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.