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2024 DIGILAW 1057 (GUJ)

Anishbhai Abbasbhai Kureshi v. State of Gujarat

2024-04-30

A.S.SUPEHIA, VIMAL K.VYAS

body2024
JUDGMENT : A.S. Supehia, J. 1. The present Criminal Misc. Application has been filed seeking suspension of sentence. We have already scaled the evidence pointed out by learned advocate Mr.P.V.Patadiya appearing for the applicant-appellant. We are inclined to take up the main Criminal Appeal. The appellant-convict has already completed 8 years, 2 months and 26 days of incarceration as on 29th April 2024. 2. The present Criminal Appeal is directed against the judgment and order dated 24th November 2017 passed by learned 5th Additional Sessions Judge, Banaskantha at Palanpur, in Sessions Case No.53 of 2015. 3. By the aforesaid judgment and order of conviction and sentence, the appellant-accused has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs.2,000=00 and in default of payment of fine, to further undergo simple imprisonment for six months. 4. The case of the prosecution, as per the Charge Exh.20, is that on 2nd June 2015 at around 20:00 hours, the complainant and her son, while they were sitting for begging, the present appellant-accused came over and quarrelled with the complainant and her minor son, and thereafter, he gave two fatal knife blows on the minor step son aged 16 years, and as a result the minor succumbed to the injuries. 5. Learned advocate Mr.Patadiya has submitted that the conviction recorded by the trial Court is required to be disbelieved since the trial Court has not appreciated the evidence in its true perspective. At the outset, he has referred to the postmortem report at Exh.28 and has submitted that the injuries do not show that there was any intention on the part of the appellant-accused to commit the murder of his son (i.e. the deceased). He has submitted that the evidence of PW-3, i.e. the complainant, who is examined at Exh.35, cannot be believed since she has not established herself as the witness of a sterling quality. It is submitted that the complainant had all the reasons to implicate the appellant-accused in the offence since prior to the incident also, some altercation had taken place between the complainant and the appellant-accused. 6. It is submitted that the complainant had all the reasons to implicate the appellant-accused in the offence since prior to the incident also, some altercation had taken place between the complainant and the appellant-accused. 6. Learned advocate Mr.Patadiya has also referred to the evidence of another eye-witness PW-5, i.e. the brother of the deceased, who is examined at Exh.40, and has submitted that his evidence may not be considered as the same suffers from omission and contradiction. 7. Learned advocate Mr.Patadiya has further submitted that the panchas have not supported the discovery panchnama and the FSL report does not, in any manner, connect the appellant- accused with the alleged offence of murder. He has submitted that the neighbour (PW-7 Shamaben Imtiyazbhai Shaikh, who is examined at Exh.42), was present at the scene of offence however, she has not supported the case of the prosecution. It is submitted that the blood, which has been found on the weapon, has remained unidentified. Finally, he has submitted that even if it is presumed that the FSL has found the blood group ‘O’ on the clothes of the appellant-accused, the same is required to be disbelieved since there is no evidence which would show the blood group of accused. 8. Per contra, learned APP has supported the case of the prosecution and has submitted that the trial Court has committed no perversity or illegality in convicting the appellant- accused. It is submitted that the complainant, who is the mother of the deceased and the wife of the accused has totally supported the case of the prosecution and has established herself as a witness of sterling quality. Learned APP has further submitted that there is another eye-witness (PW-5), who is the brother of the deceased and stepson of the accused, examined at Exh.40, who has completely supported the case of the prosecution. 9. While referring to the postmortem report, learned APP has submitted that the injury and the wound found on the deceased would reflect that the minor deceased was inflicted knife blows on the vital part of the body, which resulted into his death. Thus, it is urged that it is a brutal murder by a father of his stepson, who was helpless and unarmed. It is further submitted that in fact, the appellant-accused had forced the minor deceased for begging and when he refused to do so, he committed his murder. Thus, it is urged that it is a brutal murder by a father of his stepson, who was helpless and unarmed. It is further submitted that in fact, the appellant-accused had forced the minor deceased for begging and when he refused to do so, he committed his murder. He has also referred to the evidence of PW-19 Dr.Pinkiben Jitubhai Patel at Exh.83, and has submitted that her evidence exposes that the appellant-accused was also injured and his blood group is ‘B’ positive. While referring to the FSL report at Exh.81 and Serological report at Exh.82, he has submitted that the blood group ‘O’ of the deceased has been found on the clothes of the accused. 10. In support of his submissions, learned APP has referred to the decision of the Supreme Court rendered in the case of Pruthiviraj Jayantibhai Vanol vs. Dinesh Dayabhai Vala, AIR 2021 S.C. 3532 . Thus, it is urged that the present appeal may not be entertained. 11. We have threadbare examined the evidence, both; ocular as well as documentary, and have perused the judgment of the trial Court. The Charge at Exh.20 refers the manner in which the incident had occurred. The accused, on 2nd June 2015 at around 20:00 hours, has murdered his stepson while the deceased and his mother were sitting near the Kabristan (cemetery) and were begging. The postmortem report at Exh.28 refers to the following injuries : “(1) Incised wound seen over angle of Lt. mandible region. Slit- shaped size about 2-3 cm x 1 cm x deep to muscles. (2) Incised stable (penetrating) wound seen over Lt. sided chest region single, between 5-6 ribs. Slit-shaped size about 3-4 cm x 2 cm x deep to organs Lt. hand and heart-lateral barder. N.B. Dissection Note-” 12. The doctor, who had undertaken the postmortem has been examined as PW-1 Dr.Dhiraj Bechardas Jain at Exh.27. He has referred to the injuries, which have been suffered by the minor, who was 16 years of age. He has referred to the cause of death, as referred in the postmortem (Exh.28), which is as under : “Cause of death is shock due to cardio-respiratory failure due to intro- thoracic haemorrhage due to chest injury to vital organs – lung and heart due to injury possible by sharp-pointed object substance.” 13. He has referred to the cause of death, as referred in the postmortem (Exh.28), which is as under : “Cause of death is shock due to cardio-respiratory failure due to intro- thoracic haemorrhage due to chest injury to vital organs – lung and heart due to injury possible by sharp-pointed object substance.” 13. Thus, the medical evidence reveals that the cause of death is shock due to cardio-respiratory failure and the deceased had died due to intro-thoracic hemorrhage. The injuries thus, suggest that the appellant-accused had inflicted knife blows on the vital parts of the minor deceased and he can be attributed; both, intention and knowledge of inflicting such injuries of committing the murder of the minor deceased. The minor deceased was helpless and unarmed victim, who has suffered the uninvited assault of the appellant-accused and has been murdered in a brutal manner. 14. We may now refer to the evidence of the complaint, who is the mother of the deceased and the wife of the appellant- accused, who has been arraigned as PW-3 and has been examined at Exh.35. In her evidence, she has specifically stated that the deceased used to frequently quarrel with her and before 15 days of the incident, the accused had quarreled with her and had inflicted injury, which resulted into stitch wound on her head. She has stated that on the date of the incident, when she and her minor son were sitting near the Kabristan (cemetery) and were begging, at that time the appellant-accused came there in an inebriated condition and thereafter, he started quarreling with the deceased and when her son, i.e. the deceased, asked the accused to stand away from him and not to quarrel, at that time, the accused stated that he would spare his mother but murder everyone and accordingly, he took out the knife from his pocket and inflicted blows on the chest of the minor. Immediately, thereafter, the minor was taken to the Civil Hospital, Palanpur, where he succumbed to the injuries and accordingly, she registered the complaint. On a threadbare examination of the evidence, we find that her evidence is not tainted with any contradiction or over implication. She has identified the weapon used in the commission of offence as well as the clothes of the deceased. She has established herself as a witness of sterling quality. 15. On a threadbare examination of the evidence, we find that her evidence is not tainted with any contradiction or over implication. She has identified the weapon used in the commission of offence as well as the clothes of the deceased. She has established herself as a witness of sterling quality. 15. Similarly, another eye-witness PW-5, Manoj Nanjibhai Thakor, who is the brother of the deceased and the stepson of the appellant-accused and who has been examined at Exh.40 has supported the case of the prosecution. He is a minor and has specifically stated that the appellant-accused had inflicted knife blows on his deceased minor brother. He has deposed in line of his mother and his testimony corroborates with the testimony of his mother, i.e. the complainant PW-3. 16. We may also refer to the evidence of PW-19 Dr.Pinkiben Jitubhai Patel (Exh.83), who has medically examined the appellant-accused. She has stated in her deposition that the accused had suffered injury on his right hand index finger and has specifically stated that the blood group of the accused is ‘B’ positive. 17. At this stage, we may refer to the serological report at Exh.82, which clearly establishes the complicity of the present appellant-accused in the offence. The blood group of the deceased, which is ‘O’ has been found on his clothes (shirt), whereas the evidence of PW-19 reveals that the blood group of the accused is ‘B’ positive. In his further statement recorded by the trial Court under the provisions of Section 313 of the Code of Criminal Procedure, when such evidence was pointed out, he has not tendered any explanation and has simply denied the occurrence. Thus, there is overwhelming evidence which establishes the culpability of the accused in committing the murder of his stepson. 18. We may refer to the decision of the Apex Court in case of Anbazhagan Versus State Represented By The Inspector Of Police, AIR 2023 SC 3660 , wherein the Supreme Court after threadbare examination of the provisions of sections 299, 300, 302 and 304 of the IPC, and after survey of various judgements has prescribed the broad principles as under: “60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:- (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is guilty intention, whereas the second part would apply when there is no such intention, but there is guilty knowledge. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.” 19. We have already expressed that the appellant has inflicted two blows of knife on the minor. One blow of knife has been inflicted on the chest, which has pierced his lungs and heart. The Supreme Court has held that even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3 to Section 300 of the IPC, are fulfilled and the offence would be murder. The Supreme Court has held that even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3 to Section 300 of the IPC, are fulfilled and the offence would be murder. It is held that the intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. In the present case, the intention of the accused can be seen in the manner he has inflicted injuries on minor who was 16 years of age, and the injuries were sufficient in the ordinary course of nature to cause death hence, the offence squarely falls under Clause 3 to Section 300 of the IPC which stipulates that culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or “Thirdly - If it is done with the intention of causing bodily injury to any person and the bodilyinjury intended to be inflicted is sufficient in the ordinary course of nature to cause death”. Considering the manner in which the incident has occurred, his case does not fall under any of the exception to section 300 of the IPC. 20. After the threadbare examination of the evidence as well as the findings of the trial Court, we are of the considered opinion that the trial Court has neither committed any perversity nor any illegality in appreciating the evidence and has precisely convicted and sentenced the appellant-accused. 21. The present Appeal therefore, fails and the same is hereby dismissed. As a consequence, the captioned Criminal Miscellaneous Application for suspension of sentence would not survive and the same is disposed of accordingly. 22. Records and proceedings shall be sent back to the concerned Court.