Research › Search › Judgment

Gujarat High Court · body

2021 DIGILAW 1205 (GUJ)

JARAR OSAMAN VANDHA v. STATE OF GUJARAT

2021-12-15

A.J.DESAI, SAMIR J.DAVE

body2021
JUDGMENT : A. J. DESAI, J. 1. By way of the present appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the appellant has challenged the judgment and order of conviction dated 14.09.2015 rendered by the learned Sessions Judge, Kachchh @ Bhuj in Sessions Case No.27 of 2014 by which the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 and ordered to undergo life imprisonment with fine of Rs.25,000/- and in default thereof, ordered to further undergo rigorous imprisonment for a period of six months. The appellant was also convicted for the offence punishable under Section 135 of the Gujarat Police Act and ordered to undergo rigorous imprisonment for a period of four months and fine of Rs.1,000/- and in default thereof, ordered to undergo further simple imprisonment for a period of one month. All the sentences were ordered to run concurrently. 2. The appeal came to be admitted on 17.12.2015. The records and proceedings along with Paper-book was called for from the learned Trial Court and the same has been placed before this Court accordingly. 3. The short facts of the case put forward by the prosecution before the learned Trial Court is as under :- 3.1 That one Hansbai wife of Valimamad Sadhak Vandha, resident of Kuran village, Bhuj lodged FIR with ASI of Khavda Police Station on 20.2.2014 alleging that the present appellant who happens to be nephew of the complainant (her husband's elder brother's son) went to her house and started quarreling with her daughter, namely, Rajbai asking her to return to her matrimonial home. At that time, her daughter Rajbai asked the appellant not to interfere in her personal matter and at that time, the appellant took out a knife and gave a blow on the back of neck of Rajbai pursuant to which she sustained serious injuries and on raising screams, the younger daughter of the complainant i.e. Aladi reached the scene of offence and the appellant fled away from the place of offence. Thereafter, immediately, victim was taken to Government Hospital, Khavda in 108 Ambulance at around 19.40 hours and for further treatment, she was transferred to G.K. General Hospital, Bhuj, where the complaint was given. Thereafter, immediately, victim was taken to Government Hospital, Khavda in 108 Ambulance at around 19.40 hours and for further treatment, she was transferred to G.K. General Hospital, Bhuj, where the complaint was given. Accordingly, offence being I C.R. No.8 of 2014 came to be registered with Khavda Police Station initially for the offence punishable under Sections 324, 323 and 504 of the Indian Penal Code and Section 135 of the Gujarat Police Act. Thereafter, looking to the injuries Section 326 of the IPC came to be added. Thereafter, the victim was treated at various Hospitals, including, private Hospital of Dr. Sachin Jaykishor Thakkar. Thereafter, the victim was taken to Civil Hospital, Ahmedabad where she succumbed to the injuries on 25.3.2014. Accordingly, Section 302 of the IPC came to be added in the FIR. 4. The appellant came to be arrested on 22.2.2014. Upon completion of investigation, charge-sheet was filed before Court of learned Magistrate. Since the offences are triable by learned Sessions Judge, learned Magistrate has committed the case to the learned Sessions Judge having jurisdiction to try the case. 5. The charge was framed at Exh.7 against the appellant - accused which he denied. Hence, the prosecution proceeded with the trial. The prosecution in all examined 18 witnesses, produced several documentary evidence in support of its case. The appellant did not examine any witness to defend his case. Thereafter, further statement of the appellant under Section 313 of the Code was recorded. The accused denied the case put forward by the prosecution. 6. The learned Sessions Judge, after scrutinizing the oral as well as documentary evidence in detail as well as considering the arguments advanced on behalf of the appellant and the respondent, held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and imposed sentence upon the appellant as referred above. 7. Hence the present appeal. 8. Mr. N. P. Chaudhary, learned advocate appearing for the appellant, at the outset, would submit that the appellant does not want to challenge his involvement in the crime. However, the appellant would request the Court to convert his sentence from Section 302 IPC to that one under Section 304 of the Indian Penal Code and the sentence may be reduced accordingly. N. P. Chaudhary, learned advocate appearing for the appellant, at the outset, would submit that the appellant does not want to challenge his involvement in the crime. However, the appellant would request the Court to convert his sentence from Section 302 IPC to that one under Section 304 of the Indian Penal Code and the sentence may be reduced accordingly. He would further submit that the complainant and other eye-witnesses have not supported the case of the prosecution and hence, the learned Trial Court has erred in convicting the appellant. He would further submit that however, it is an undisputed fact that some quarrel took place between the appellant and the deceased who happens to be his cousin sister. Due to some altercation about her matrimonial dispute with her husband, when the appellant asked the deceased to settle the same, some words were uttered by the deceased and in spur of moment, the appellant took out a knife and gave a single blow on the back side of the neck which resulted into serious injury due to which she succumbed to the injuries after a period of around 35 days from the date of incident. Therefore, the case of the appellant would fall under Exception IV of Section 300 IPC which can be treated as culpable homicide not amounting to murder. He would further submit that there was no intention on the part of the appellant to commit murder of his younger cousin sister, but in the altercation, he lost his control over his emotions and gave one blow with knife due to which the deceased succumbed to the injury. 8.1 He would further submit that even as per the Dying Declaration Exh.16, even the deceased had categorically stated that a single blow was given by the appellant due to altercation with regard to her matrimonial dispute with her husband. He would further submit that initially the deceased was taken to Government Hospital, Khavda and thereafter was shifted to G. K. General Hospital, Bhuj and thereafter she was shifted to private Hospital of Dr. Sachin Thakkar - P.W.11 - Exh.27. As per his deposition, the deceased was admitted on 28.2.2014 and remained in the Hospital upto 6.3.2014 and thereafter, the deceased was shifted to Civil Hospital, Ahmedabad where she succumbed to the injuries on 25.3.2014. Sachin Thakkar - P.W.11 - Exh.27. As per his deposition, the deceased was admitted on 28.2.2014 and remained in the Hospital upto 6.3.2014 and thereafter, the deceased was shifted to Civil Hospital, Ahmedabad where she succumbed to the injuries on 25.3.2014. 8.2 By taking us through the P.M. Note Exh.34 which has been performed by Doctor Manish Sutaria and Doctor B. S. Shah, he would submit that the deceased died due to cardio respiratory out to spinal cord injury. He, therefore, would submit that in absence of any motive or intention to kill his own cousin sister, in a spur of moment, the appellant gave a single blow with knife on the back side of neck of the deceased which resulted into death of his cousin sister and, therefore, the conviction of the appellant may be converted from Section 302 IPC to that one under Section 304 Part II IPC and the sentence may be reduced accordingly. 8.3 In support of his submissions, Mr. Chaudhary has relied upon the decisions of the Hon'ble Supreme Court in the case of Nandlal v. State of Maharashtra, (2019) 5 SCC 224 and in the case of Stalin v. State represented by the Inspector of Police, (2020) 9 SCC 524 . He, therefore, would submit that the conviction of the appellant may be converted from Section 302 IPC to that one of Section 304 Part II IPC and the sentence of the appellant may be reduced accordingly. 9. On the other hand, Mr. J.K. Shah, learned Additional Public Prosecutor appearing for the respondent - State has vehemently submitted that though the complainant and eyewitnesses to the incident have not supported the case of the prosecution, but the prosecution was able to establish the case in view of the fact that Dying Declaration was recorded by the Executive Magistrate wherein deceased had narrated the entire incident and specifically levelled allegations against the present appellant. He would further submit that since the appellant has not challenged his involvement in the crime and requested to convert his conviction, the said submission may not be accepted on the ground that the deceased was attacked with deadly weapon like knife on a vital part i.e. back side of the neck which resulted into her death. He would further submit that since the appellant has not challenged his involvement in the crime and requested to convert his conviction, the said submission may not be accepted on the ground that the deceased was attacked with deadly weapon like knife on a vital part i.e. back side of the neck which resulted into her death. He, therefore, would submit that considering the entire evidence - oral as well as documentary, the learned Trial Court has rightly convicted the appellant which does not call for any interference by this Court. He, therefore, would submit that the appeal may be dismissed. 10. We have heard learned advocates appearing for the respective parties and perused the judgment of the learned Trial Court. We have also gone through the Records and Proceedings of Sessions Case received from the learned Sessions Court. Since the appellant has not challenged his involvement in the crime and since it was requested to alter the conviction as the case is particularly based on a single blow, we have examined the evidence on that line and scrutinized the depositions of the witnesses. As stated herein above, the complainant who happens to be the mother of the deceased and other witnesses who are relatives of the deceased including the sister of the deceased have not supported the case of the prosecution, the Court has to rely upon the other evidence, like Dying Declaration of the deceased recorded by Executive Magistrate and depositions of Medical Officers who have treated the deceased at various Hospitals including the Medical Officers who have performed Post Mortem Report. We have gone through the depositions of Dr. Sudhakar Razaak, P.W. 10 - Exh.25 who had treated the deceased at Government Hospital, Khavda, Dr. Samir Dave - P.W.12 Exh.29 who was Medical Officer at G.K. General Hospital, Bhuj, Dr. Sachin Thakkar - P.W. 11 Exh.27 who is having his own Hospital where the deceased took treatment from 28.2.2014 to 6.3.2014 as well as deposition of Dr. Manish Sutariya P.W.14 Exh.33 who has performed Post Mortem of the deceased. From perusal of the depositions of all the Medical Officers, it appears that the deceased had sustained a single blow on her vital part of the body i.e. back side of the neck. Manish Sutariya P.W.14 Exh.33 who has performed Post Mortem of the deceased. From perusal of the depositions of all the Medical Officers, it appears that the deceased had sustained a single blow on her vital part of the body i.e. back side of the neck. Though the deceased was given treatment at various Hospitals, she could not sustain the injury and succumbed to the injury after a period of around 35 days from the date of incident. 11. As per the case put forward by the prosecution, some altercation took place between the appellant and his cousin sister pursuant to which the appellant lost his control and gave a single knife blow in a heat of moment and, therefore, in our opinion, the case would fall under Exception IV to Section 300 IPC which can be treated as culpable homicide not amounting to murder. The appellant had lost his control in a sudden fight and sudden quarrel with his own cousin sister and in spur of moment, gave a single blow which cannot be treated that the appellant had taken any undue advantage or acted in a cruel manner or unusual manner. 12. The Hon'ble Supreme Court in the case of Nandlal v. State of Maharashtra, (Supra) has held in paragraphs 12 to 14 as under :- "12. The only point falling for consideration is whether the appellant-accused has made out a case for modification of his conviction under Section 304 Part II IPC instead of Section 302 IPC ? 13. In order to bring the case within Exception 4 to Section 300 IPC, the following conditions enumerated therein must be satisfied :- (i) The act must be committed without premeditation in a sudden fight in the heat of passion; (ii) upon a sudden quarrel; (iii) without the offender’s having taken undue advantage; and (iv) the accused had not acted in a cruel or unusual manner. 14. Even if the fight is unpremeditated and sudden, if the weapon or manner of retaliation is disproportionate to the offence and if the accused had taken the undue advantage of the deceased, the accused cannot be protected under Exception 4 to Section 300 IPC. Considering the scope of Exception 4 to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395 , this Court held as under :- "7. Considering the scope of Exception 4 to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395 , this Court held as under :- "7. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate……….. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: ( a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and ( d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”" (emphasis supplied). The same principle was reiterated in Pappu v. State of M.P. (2006) 7 SCC 391 and in Surain Singh v. State of Punjab (2017) 5 SCC 796 where the conviction under Section 302 IPC was modified under Section 304 Part II IPC." 13. The Hon'ble Supreme Court in the recent decision in the case of Stalin v. State represented by the Inspector of Police, (Supra) has held in paragraph 7.2 to 12 as under :- "7.2 From the above stated decisions, it emerges that there is no hard and fast rule that in a case of single injury Section 302 IPC would not be attracted. It depends upon the facts and circumstances of each case. The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. It cannot be laid down as a rule of universal application that whenever the death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case, more particularly, under the circumstances narrated herein above, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without intention to cause death. It is the totality of the circumstances which will decide the nature of offence. 8. It is the totality of the circumstances which will decide the nature of offence. 8. Now, so far as the submission on behalf of the accused that the motive alleged is of the incident prior to four months of the present incident and that the prosecution has failed to establish and prove is concerned, it is required to be noted that in the present case there are three eye-witnesses believed by both the Courts below and we also do not doubt the credibility of PWs 1, 2 and 3. As held by this Court in catena of decisions, motive is not an explicit requirement under the Penal Code, though “motive” may be helpful in proving the case of the prosecution in a case of circumstantial evidence. As observed herein above, there are three eye-witnesses to the incident and the prosecution has been successful in proving the case against the accused by examining those three eyewitnesses and therefore, as rightly observed by the High Court, assuming that the alleged motive is the incident which had taken place prior to four months or the prosecution has failed to prove the motive beyond doubt, the same shall not be fatal to the case of prosecution. 9. As observed and held by this Court in the case of Jafel Biswas v. State of West Bengal (2019) 12 SCC 560 , the absence of motive does not disperse a prosecution case if the prosecution succeed in proving the same. The motive is always in the mind of person authoring the incident. Motive not being apparent or not being proved only requires deeper scrutiny of the evidence by the courts while coming to a conclusion. When there are definite evidence proving an incident and eye-witness account prove the role of accused, absence in proving of the motive by prosecution does not affect the prosecution case. 10. Applying the law laid down by this Court in the aforesaid decisions, more particularly the decisions on the single injury and the facts on hand, it is required to be considered whether the case would fall under Section 302 IPC or any other lesser offence. 10. Applying the law laid down by this Court in the aforesaid decisions, more particularly the decisions on the single injury and the facts on hand, it is required to be considered whether the case would fall under Section 302 IPC or any other lesser offence. PW3 – Nelson, who is an eye-witness to the incident right from the beginning, deposed that when the deceased – Kalidas served extra beer to two persons who came from outside, the accused became angry and told the deceased why he is giving more beer to out-town people and not giving to local people and thereafter the problem started and in that scuffle the accused took out the knife and stabbed from behind. From the medical evidence, the deceased sustained the following injuries : "External Injuries : A stab wound about 3 x 1.5 cm and 8 cm deep with clean edges present over the back on the right side corresponding to D11 vertebera present. Wound edges swollen, read with adherent blood.” 11. As per Exception IV to Section 300 IPC, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage and not having acted in a cruel or unusual manner. In the present case, at the place of incident the beer was being served; all of them who participated in the beer party were friends; the starting of the incident is narrated by P.W.3, as stated herein above. Therefore, in the facts and circumstances, culpable homicide cannot be said to be a murder within the definition of Section 300 IPC and, therefore, in the facts and circumstances of the case narrated herein above and the manner in which the incident started in a beer party, we are of the opinion that Section 302 IPC shall not be attracted. 12. Now, the next question which is posed for consideration of this Court is whether the case would fall under Section 304 Part II IPC? Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, it is to be presumed that causing such bodily injury was likely to cause the death. Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, it is to be presumed that causing such bodily injury was likely to cause the death. Therefore, the case would fall under Section 304 Part I of the IPC and not under Section 304 Part II of the IPC." 14. In light of the above principles laid down by Hon'ble the Supreme Court and considering the depositions of the witnesses and other evidence on record referred above, we are of the considered opinion that the same suggests only one blow given by the appellant on the back side of neck of the deceased. Furthermore, the act was committed without premeditation in a sudden fight in the heat of passion and the accused has not taken any undue advantage of the same and the accused had not acted in a cruel or unusual manner. Hence, we are of the considered opinion that the act on the part of the appellant is covered by Part II of Section 304 IPC. Therefore, we set aside the conviction and sentence recorded by the learned Sessions Court under Section 302 IPC and instead, the appellant is convicted under Part II of Section 304 IPC and order the appellant to undergo rigorous imprisonment for a period of seven years. Accordingly, we pass the following order :- 15. For the reasons stated herein above, the Criminal Appeal stands partly allowed. The judgment and order of conviction and sentence dated 14.09.2015 rendered by the learned Sessions Judge, Kachchh @ Bhuj in Sessions Case No.27 of 2014 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860 and sentence of life imprisonment is hereby modified to that of one under Section 304 Part-II of IPC. The appellant is held guilty for the offence punishable under Section 304 Part-II of IPC and sentenced to undergo the sentence of 7 years Rigorous imprisonment with fine of Rs.25,000/- and in default thereof, further simple imprisonment for a period of five months. The appellant is held guilty for the offence punishable under Section 304 Part-II of IPC and sentenced to undergo the sentence of 7 years Rigorous imprisonment with fine of Rs.25,000/- and in default thereof, further simple imprisonment for a period of five months. The appellant – JARAR OSAMAN VANDHA, as per the Jail record, having undergone sentence of 7 years and 5 months and his overall jail conduct being good, he shall be immediately released from the prison, if not required in any other case. Record and Proceeding be sent back to the learned trial Court forthwith.