Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 999 (GUJ)

Shivaji Uttam Sononi v. State of Gujarat

2023-08-10

A.S.SUPEHIA, M.R.MENGDEY

body2023
JUDGMENT : A.S. SUPEHIA, J. 1. The present appeal is filed by the appellant-original accused under Section 374 of the Code of Criminal Procedure, 1973, (for short “the Cr.P.C.”) assailing the judgment of conviction and order of sentence dated 31.08.2010 passed by the Sessions Judge, Bharuch in Sessions Case No. 80 of 2009. The appellant was arrested in respect of FIR being CR-I No. 48 of 2009 registered at Hansot Police Station, Bharuch for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short “the IPC”). 2. After considering the documentary as well as oral evidence, the Sessions Judge, Bharuch has convicted the appellant for the offence punishable under Section 302 of the IPC and also ordered to suffer rigorous imprisonment for life and imposed a fine of Rs.5,000/- and in default of payment of fine, the appellant-accused to undergo further simple imprisonment of three months. 3. The case of the prosecution as per the charge (Exh.4) is that on 20.10.2009 at around 9:30 hrs. in the morning, the appellant had murdered his wife in view of some quarrel relating to the preparation of vegetable. As per the charge (Exh.4), the appellant inflicted various blows of koyta (scythe) on the neck as well as hands of the deceased wife- Neelaben. The case of the prosecution is premised on the star-eye- witnesses i.e. the PW-3, PW-4 and PW-5, who were present on the fateful day of the incident and have witnessed murder of the deceased. The prosecution has also placed reliance on the FSL report (Exh.41) as well as the deposition of the PW-1, the doctor, who has undertaken the postmortem of the deceased as well as the postmortem report at Exh.8. 4. Learned advocate Mr.P.V.Patadiya, appearing for the appellant has submitted that the Trial Court has misdirected itself in appreciation of the evidences – both oral as well as documentary in convicting the accused for the offence punishable under Section 302 of the IPC. 5. Learned advocate Mr.P.V. Patadiya, has further submitted that the Trial Court has fallen in error in appreciating the deposition of PW-2 (Ashwinsinh Parbatsinh) the complainant, who is examined at Exh.9. It is submitted that as per the deposition of the complainant, he came to know about the incident from one labouror - Rohidas Jagandas Bhil (PW-3), who has been examined at Exh.13. It is submitted that as per the deposition of the complainant, he came to know about the incident from one labouror - Rohidas Jagandas Bhil (PW-3), who has been examined at Exh.13. He has submitted that his deposition clearly establishes that all the labourors had taken lunch at 12:00 O’clock and the allegation with regard to preparation of the food at about 9:00 a.m. in the morning, does not support the deposition of the said witness. He has further submitted that the Trial Court has not appreciated the deposition of PW-7, Natvarbhai Narottambhai Patel, who has been examined at Exh.18, who is a panch witness of the clothes of the deceased, who has stated that he has not recovered the clothes from the body of the deceased. 6. Learned advocate for the appellant has further submitted that the eye-witnesses, who have deposed before the Trial Court are not required to be believed, as their version does not corroborate with each other. 7. Finally, learned advocate for the appellant has submitted that the appellant did not intend to murder the decease and due to grave and sudden provocation since the altercation had occurred, in a fit of uncontrollable anger, the appellant has inflicted blows and hence, he is entitled to the benefit of Exception-4 of Section 300 of the IPC. Further, learned advocate for the appellant has submitted that the nature of the offence alleged to have been committed by the appellant cannot by any stretch of imagination be said to be “murder” as defined in Section 300 of the IPC, but at best can be said to be culpable homicide not amounting to murder under Section 304 of the IPC, for which a punishment lesser than life imprisonment may be imposed on the appellant. Reference was made to Exception-4 to Section 300 of the IPC, which postulates that 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 or acted in a cruel or unusual manner. Reference was made to Exception-4 to Section 300 of the IPC, which postulates that 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 or acted in a cruel or unusual manner. It is submitted that even if the prosecution case is accepted, from the testimonies of the witnesses and the circumstances as emerging from the record, it is evident that there was no premeditation and there was a sudden quarrel and a sudden fight and the incident occurred in the heat of passion whereupon the appellant was inflicted on the deceased. Thus, he has submitted that the impugned judgment of conviction and order of sentence is required to be quashed and set aside. 8. Per contra, learned Additional Public Prosecutor, while referring to the deposition of the eye-witnesses, has submitted that defence is unable to bring out any contradiction in the said depositions and hence, the Trial Court has precisely placed reliance on such evidence in convicting the accused for the offence punishable under Section 302 of the IPC. 9. Learned Additional Public Prosecutor has further submitted that looking to the injuries inflicted by the appellant on the deceased, it is manifest that the appellant intended to murder his wife and it cannot be said that in a fit of uncontrollable and on a sudden provocation, he has inflicted the blows on the deceased. 10. Learned Additional Public Prosecutor has further submitted that the evidence does not in any manner reveal that the altercation or any quarrel or any provocation has occurred on the scene of offence and hence, it cannot be believed that the accused has inflicted blows on vital parts of the deceased in a fit of uncontrollable. She has in her support of her submissions placed reliance on the PM report (Exh.8). 11. Learned Additional Public Prosecutor has further submitted that the blood of the deceased was found from the clothes of the accused. She has further placed reliance on the arrest panchnama Exh.10 as well as FSL report (Exh.41). Learned Additional Public Prosecutor has further pointed out that the statement under Section 313 of the Cr.P.C. and has submitted that when such evidence was pointed out to the accused, he has simply denied the same. She has further placed reliance on the arrest panchnama Exh.10 as well as FSL report (Exh.41). Learned Additional Public Prosecutor has further pointed out that the statement under Section 313 of the Cr.P.C. and has submitted that when such evidence was pointed out to the accused, he has simply denied the same. Thus, it is urged that the appeal may not be entertained and the impugned judgment of conviction and order of sentence may not be disturbed looking to the evidence. 12. We have heard the learned advocates appearing for the respective parties as well as perused evidence which has been established on record threadbare. 13. As recorded hereinabove, as per the charge Exh.4, the appellant has murdered his wife on 20.10.2009 on the pretext that he has some issue with her relating to preparation of vegetable. The offence has occurred in the field when the appellant and eye-witnesses were engaged by the complainant for cutting sugarcane. Before we proceed further to examine the evidence of the star-witnesses, it would be apposite to note the details of the injuries, as per the PM report (Exh.8). The injuries, which are found from the body of the deceased, read as under: “(1) 1 x 5 cm transverse incised wound 0.5 cm deep c clean cut margins over upper portion of neck, 3cm above thyroid cartilage. (2) 1 x 2 cm transverse incised wound I cm deep c clean cut margins over right side of neck below angle of mandible c Rt. Carotid artery transuersly cut and stermomastoid muscle partially cut. (3) Two incised wound measuring 0.5 x 7 cm and 05 x 9 cm vertical in direction over medial aspect of Rt. clavicle. (4) 2 abrassions 0.5 x 5 cm and 0.5 x 6 cm vertical in direction over lateral aspect of Rt. shoulder: (5) 0.5 x 5 cm transverse incised wound 0.5 cm deep and clean cut margin over Lt. palm at the base of 2nd 3rd and 4th fingers. (6) 0.5 x 6 cm curyed incised wound 1 cm deep c clean cut margin over Rt. hypothenar eminence c 5th metacarple exposed & fractured. (7) 0.5 x 1 cm vertical C.L.W. over left middle finger on lat aspect, (8) 2.5 x 4cm ablique bruise over Lt. 10 rib.” 14. palm at the base of 2nd 3rd and 4th fingers. (6) 0.5 x 6 cm curyed incised wound 1 cm deep c clean cut margin over Rt. hypothenar eminence c 5th metacarple exposed & fractured. (7) 0.5 x 1 cm vertical C.L.W. over left middle finger on lat aspect, (8) 2.5 x 4cm ablique bruise over Lt. 10 rib.” 14. A bare perusal of the aforesaid noted injuries will clarify that the appellant has mercilessly and brutally inflicted the injuries on vital parts of the deceased by koyta (scythe) used for cutting sugarcane. The nature of the injuries would reveal that the blows are inflicted with such force that the weapon has penetrated deeply. The first clause of Section 300 of the IPC signifies that the culpable homicide is murder if the act by which the death is caused is done with intention of causing death. The second Clause mentions of the acts done with intention of causing such bodily injuries as the offender knows to be likely to cause the death of the person to whom is caused. From the aforestated injuries, it can be safely presumed that the accused intended to cause injuries on the neck and shoulder of the deceased and he knew that by inflicting such injuries the death of the deceased would be the only consequence. 15. We may now refer to the deposition of star-witness PW-3, who was present at the scene of offence. He has categorically stated that he was one of the labourors, who was engaged by PW-2 in his field for cutting the sugarcane and at that time, he saw the accused inflicted blows on the neck of the deceased by koyta. He has further stated that when he tried to go near the deceased at that time the accused had rushed against him and accordingly, he fled away to the road and at that time, he met PW-2, whom he narrated the incident. He has submitted that thereafter, he approached the deceased, who was still alive and on being asked by PW-2, she has narrated that there was some altercation between her and the accused with regard to the preparation of chilly vegetable. He has also asserted in his deposition that he was 7 to 8 feet away, when the incident has occurred. He has submitted that thereafter, he approached the deceased, who was still alive and on being asked by PW-2, she has narrated that there was some altercation between her and the accused with regard to the preparation of chilly vegetable. He has also asserted in his deposition that he was 7 to 8 feet away, when the incident has occurred. The deposition of the aforesaid witnesses remains unblemished as nothing contrary is elicited in the cross-examination and the same does not suffers from any major contradiction or omissions. 16. Similarly, PW-4, Prakashbhai Sampatbhai Bhil, who was also present at the scene of offence has narrated the incident as narrated by PW-3. His deposition has also remained untainted. 17. The PW-5, Shyam Ramsingh Bhil was also present on that day at the scene of offence, he has also narrated the incident as narrated by the aforesaid two witnesses i.e. PW-3 and PW-4. 18. The deposition of the aforesaid three star eye-witnesses, who were present at the scene of offence remain pristine and does not suffer from any vice and hence, the Trial Court has appropriately appreciated the evidence, while convicting the accused for the offence punishable under Section 302 of the IPC. 19. We may also refer to the arrest Panchnama (Exh.10), at the time of arrest the accused was wearing the clothes, which were having bloodstain on him, the same were collected and sent to the FSL. The FSL in its report at Exh.41 has opined that the same contained the blood group of the deceased i.e. blood group “A” on the clothes of the deceased. 20. Thus, a combined reading of the aforesaid evidences, unquestionably nail the accused in the offence. 21. The appellant wants to take benefit of Exception-4 of Section 300 of the IPC. The ingredients of Exception-4 of Section 300 of the IPC read as under: Exception 4 - 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's having taken undue advantage or acted in a cruel or unusual manner. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault. From a plain reading of the aforesaid Exception, it is evident that it shall be attracted only if the death is caused: (i) without premeditation. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault. From a plain reading of the aforesaid Exception, it is evident that it shall be attracted only if the death is caused: (i) without premeditation. (ii) in a sudden fight. (iii) in a heat of passion upon a sudden quarrel. If all these ingredients are satisfied, the Exception will come into play only when the court comes to the conclusion that the offender had not taken undue advantage or acted in a cruel or unusual manner. Looking to the injuries, which are noted hereinabove, the same would reveal that the appellant cannot take shelter under Exception-4 of Section 300 of the IPC, coupled with the fact that the evidence does not in any manner reveal about a sudden fight on the place of the incident and there was no premeditation or the act was done in heat of passion and the appellant has not taken any undue advantage or acted in cruel manner. The expression “fight” used in Exception 4 signifies sudden quarrel or combat between persons. There has to be participation of two or more persons in verbal altercation or quarrel which leads to physical engagement due to heat of passion or fury coupled with the fact that the assailant has not taken any undue advantage and or acted in a “cruel manner”. In the present case, the deceased was present on the sugarcane field with the appellant who was having scythe. The appellant, by assaulting brutally on the deceased has acted in a cruel manner. The charge and the evidence reveals some discontentment of the appellant relating to the preparation of vegetable dish by the deceased, however, the evidence does not reveal any sudden quarrel or fight between them. The eye- witnesses, who were also working nearby in the field did not hear any heated altercation between the deceased and the appellant with regard to the preparation of vegetable dish. It is also not the case that the vegetable was being cooked at the field. Thus, none of the ingredients of Exception-4 to section 300 of the IPC are proved in the evidence to encompass the accused in its orbit. 22. It is also not the case that the vegetable was being cooked at the field. Thus, none of the ingredients of Exception-4 to section 300 of the IPC are proved in the evidence to encompass the accused in its orbit. 22. In absence of such evidence having surfaced on record and more particularly, the appellant having tendered no explanation in his statement recorded under Section 313 of the Cr.P.C. we do not find any compelling reason to give the benefit of Exception-4 of Section 300 of the IPC to the appellant and such contention is rejected. Accordingly, it is held that the offence is one of murder and the appellant has been precisely convicted and sentenced to imprisonment for life under Section 302 of the IPC. The trial Court did not commit any error warranting interference by this Court. 23. On the substratum of the overall analysis of facts and circumstances of the case and on examination of the evidence threadbare, the present appeal fails and the same stands dismissed. The judgment and order of conviction and sentence dated 31.08.2010 passed by Sessions Judge, Bharuch, in Sessions Case No. 80 of 2009 is hereby confirmed. It is reported that the appellant is on bail, his bail bond stands cancelled. The appellant is, therefore, directed to surrender himself before the Jail Authority to undergo remaining sentence, if any, within a period of four weeks from the date of receipt of this writ, failing which the trial Court concerned is directed to issue non-bailable warrant against the appellant to effect his arrest. 24. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.