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2016 DIGILAW 960 (GUJ)

Ashokbhai Dahyabhai Patel v. State of Gujarat

2016-05-03

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. The present appeal is filed by the present appellant-accused against the judgment and order dated 18.06.2011, passed by the learned Additional Sessions Judge, Gandhinagar, whereby the present appellant-accused was convicted for the offences punishable under Section 302 of the Indian Penal Code (for short the "IPC") and was ordered to undergo rigorous imprisonment for life and fine of Rs. 5,000/- and in default of payment of fine, further simple imprisonment for 15 days. The appellant-accused was acquitted for the offence punishable under Section 135 of the Bombay Police Act. 2. The case of the prosecution is that on 26.06.2009, at about 04:45 hrs in the evening, at Ashwamegh Complex at Mota Chiloda, the deceased had gone for recovery of Rs. One lakh which he had given to the accused on loan. The accused in order to not to return back the loan amount, and with an intention to kill the deceased, injured the deceased on head as well as on body with spade which caused the death of the deceased and flee away from the place of offence. Therefore, the accused was charged for the offence punishable under Section 302 of the IPC and Section 135 of the Bombay Police Act. 3. Upon filing of the complaint, investigation was carried out and the accused was arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same was committed to Sessions Court. Thereafter, charge was framed against the accused. The accused pleaded 'not guilty' and claimed to be tried. 4. During the trial, the prosecution has examined the following witnesses: Sr. No. Name Exh. No. 1 Dr. Kalpesh Hiralal Patikh 12 2 Dr. Shdhaben Dineshbhai Sharma 15 3 Prakashkumar Jasubhai 18 4 Dineshbhai Kalabhai Desai 20 5 Jyotsanaben Jasubhai Choudhry 21 6 Gordhanbhai Chimanbhai Nai 23 7 Kantiben Nanabhai Valand 24 8 Bhavubhai Jeevabhai Patel 26 9 Babubhai Nathubhai Patel 27 9/A Jayantibhai Gordhanbhai Patel 43 10 Lalabhai Motibhai Patel 47 11 Lalabhai Nenabhai Thakore 52 12 Vijaykumar Ramtubhai Ravad 56 13 Mehmoodkhan Ghazikhan Pathan 60 14 Manojkumar Rameshbhai Thakore 66 15 Ashokbhai Haribhai Patel 68 16 Joitabhai Keshabhai Patel 69 17 Takhuji Maganji Chavda 72 18 Rakeshkumar Manibhai Patel 73 19 Niravsinh Pavansinh Gohil 74 20 Kishorebhai Arvindkumar Sharma 87 5. The prosecution has also produced and relied upon the following documentary evidences: Sr. No. Description Exh. No. 1 Yadi to conduct PM 13 2 PM Note of deceased body 14 3 Injury Certificate of witness Gordhanbhai 16 4 Complaint 19 5 Inquest Panchnama 28 6 Panchnama of the place of offence 29 7 Panchnama of body condition of witness Gordhanbhai 44 8 Panchnama regarding seizure of clothes from the dead body 48 9 Panchnama regarding seizure of clothes of witness Gordhanbhai 53 10 Panchnama regarding seizure of clothes changed by witness Gordhanbhai Nai 57 11 Discovery Panchnama 61 12 Panchnama of body condition of the accused 67 13 Extracts of Dabhode Police Station Diary 70 14 Telephone-vardhi 71 15 Report by the FSL Officer regarding place of offence 75 16 Death-slip 76 17 Muddamal dispatch note 77 18 Receipt of Muddamal received by the FSL 78 19 From for finger-print examination 79 20 From for Dog-squad examination 80 21 Finger-print’s of the deceased 81 22 Copy of Notification of Prohibition of Arms 82 23 Muddamal Analysis Report given by FSL 83 24 Report given by Physics Department of FSL 84 25 Report of Serological Analysis by FSL 85 6. At the end of the trial, the Court below recorded further statements of the accused persons under Section 313 of the Cr.P.C, and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, the appellant has approached this Court by way of the present appeal. 7. Learned counsel for the appellant has taken us to the medical evidence of PW-1 at Exh. 12, who has carried out post mortem of the deceased and PW-2 at Exh. 15, Dr. Sudhaben Sharma, who has treated the injured witness Gordhanbhai H. Nai, and contended that the said incidence in question has happened in a heat of a moment and hence it will not amount to culpable homicide amounting to murder. Learned counsel further contended that the injuries which are caused to the witness is not proved that it has been done by the present appellant with the Iron rod. He further contended that there are serious contradictions in the story put forward in the complaint before the police. Learned counsel also contended that taking into consideration the evidence of other witnesses namely the hair cutter Mr. He further contended that there are serious contradictions in the story put forward in the complaint before the police. Learned counsel also contended that taking into consideration the evidence of other witnesses namely the hair cutter Mr. Lalabhai Nenabhai Thakore and other witnesses seems to be not genuine and are chance witnesses, therefore, the learned counsel contended that benefit of doubt is required to be granted to the accused. Learned counsel for the appellant also contended that none of the witnesses has stated as to how the spade was broken. 8. Learned APP for the respondent-State, Mr. Pranav Trivedi, has taken us to the evidences of the complainant, and to the evidences of witnesses Nos. 3, 4, 5, 6, 7 and 8, and contended that in view of these witnesses, it is very clear that they are the eye witnesses and the presence of the accused is proved beyond reasonable doubt. Mr. Pranav Trivedi, learned APP, however, 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 the appeal. He stated that the trial court has based the conviction not only on the statement of the witnesses but also considered entire circumstances of the case and the facts which are proved by cogent evidence. He has also drawn the attention of this Court to the statements of witnesses, medical evidence and the panchnamas. 9. 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. 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. 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....... 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. 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. 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." 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. 11. We have heard Mr. Jucky Lucky Chan, learned counsel for the appellant and Mr. Pranav Trivedi, learned APP, appearing for the State. 11. We have heard Mr. Jucky Lucky Chan, learned counsel for the appellant and Mr. Pranav Trivedi, learned APP, appearing for the State. Taking into account, the injuries mentioned at serial No. 17 and cause of death as mentioned at serial No. 23, it will not be out of place to held that the present case on hand will amount to culpable homicide amounting to murder. Even if we believe, that the said crime in question has happened in a heat of a moment, the fact remains that the appellant has injured the deceased and that very injury has resulted into death of the deceased, which was never intended or preplanned. Under the circumstances, this case would fall under section 304 (Part I) of Indian Penal Code, on the touch stones of principles laid down by the Apex Court more particularly while interpreting the provisions of section 302, we are of the considered opinion that this case would not fall under the definition of section 300. Considering the bodily injury which was likely to cause death and the bodily injury sufficient to cause death in this case while reading section 304 (Part I) we hold that there was no premeditation. The offence was committed in a spur of moment as both the sides had a heated exchange of words and in a fit of rage, the accused person, in the heat of passion had committed this offence. Hence the degree of probability being the determining factor in such cases, conviction is required to be altered from section 302 of Indian Penal Code to under section 304 (Part I) of Indian Penal Code. 12. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and order dated 18.06.2011, passed by the learned Additional Sessions Judge, Gandhinagar, in Sessions Case No. 89 of 2009, is modified and the offence punishable under Section 302 of the IPC is hereby altered to offence punishable under Section 304 (part-1) of the IPC and the accused is ordered to undergo Rigorous Imprisonment for a period of 10 years, without disturbing the sentence of fine as imposed by the trial Court. Rest of the impugned judgment and award remains unaltered. The accused shall be given the benefit of remission and set of, in accordance with law at appropriate time, by the concerned authority. R&P, if any, lying here be sent to the Court below forthwith.