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2025 DIGILAW 909 (GUJ)

State Of Gujarat v. Chetankumar Kantilal Mevada

2025-08-21

CHEEKATI MANAVENDRANATH ROY, D.M.VYAS

body2025
JUDGMENT : CHEEKATI MANAVENDRANATH ROY, J. 1. This appeal is preferred against the judgment dated 04/02/2014 rendered in Sessions Case No.69 of 2012 on the file of the learned Additional Sessions Judge, Banaskantha at Palanpur whereby the respondent who is the sole accused in the said case was acquitted of the charges under Section 302 of the INDIAN PENAL CODE (for short ‘the IPC’). 2. Originally the accused was prosecuted for the offences punishable under Sections 302 , 323 and 337 of the INDIAN PENAL CODE but he was found guilty only for the offences punishable under Sections 323 and 337 of the IPC and he was convicted for the said two offences and was sentenced to undergo imprisonment for a period of one year for the offence punishable under Section 323 of the IPC and to pay fine of Rs.1,000/- and in default of payment of fine to undergo simple imprison for a period of one month and he was sentenced to undergo imprisonment for a period of six months for the offence punishable under Section 337 of the IPC and to pay fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment for a period of one month. However, he was acquitted for the charge under Section 302 of the INDIAN PENAL CODE . 3. Facts of the prosecution case lie in a narrow compass and may be stated as follows: 3.1. Father of the de-facto complainant has lent Rs.3,000/- to the uncle of the accused. The uncle of the accused failed to repay the said debit to the father of the de-facto complainant who is examined as PW-1. After the father of the de-facto complainant expired, the de-facto complainant has been demanding the uncle of the accused to repay the said debt of Rs.3,000/-. Inspite of his repeated demands the uncleof the accused did not repay the said amount to him. While so, on 23/05/2012, at about 10:00 p.m. in the night the accused questioned the de-facto complainant as to why he has been demanding his uncle for repayment of the money borrowed by him from his father and quarreled with him. The accused also give two slaps to the de-facto complainant during the said quarrel. The de-facto complainant informed about the said incident to his mother who is the deceased. 3.2. The accused also give two slaps to the de-facto complainant during the said quarrel. The de-facto complainant informed about the said incident to his mother who is the deceased. 3.2. On the next day i.e. on 24/05/2012, at about 12:30 noon, the accused came near to the house of the de-facto complainant. At that time the deceased who is his mother questioned the accused as to why he has slapped his son when he demanded his uncle only to repay the borrowed amount from her husband. The accused got enraged and he quarreled with the deceased who is aged about 65 years at her house and in the said quarrel, the accused pushed away the deceased and the deceased went and dashed against the wall and sustained an injury on her forehead and she fell down. Thereafter it is stated that the accused has picked up a brick and beat the deceased again on her forehead. The deceased who sustained injury on her forehead on account of dashing against the wall due to the push given by the accused died on the spot instantaneously. 3.3. The de-facto complainant who is examined as PW-1 who heard shouts of her mother came out of the house and noticed the deceased fell on the ground sustaining a head injury. PW- 12 who is sister of PW-1 who is also residing in the said house at that time also heard the shouts and came out from the house and has seen the deceased fell on the ground with a head injury. Both PW-1 and PW-12 have also seen the accused present on that spot. The neighbours also gathered there. The accused ran away after seeing PW-1, PW-12 and the neighbours. PW-11 who is the uncle of PW-1 also came to the spot immediately. PW-1 and PW-11 have taken the deceased who sustained the head injury and fell down to the hospital. The doctor who examined her declared that she already died. On the report lodged by PW-1, police registered a case for the offences punishable under Section 302 , 323 and 337 of the IPC. The case was investigated. After holding the inquest over the dead body of the deceased, the dead body was sent for postmortem examination. The doctor who conducted autopsy over the dead body opined that she died on account of cardio respiratory failure due to head injury. The case was investigated. After holding the inquest over the dead body of the deceased, the dead body was sent for postmortem examination. The doctor who conducted autopsy over the dead body opined that she died on account of cardio respiratory failure due to head injury. Postmortem report was given to that effect. 4. After completion of investigation, police filed charge sheet against the accused for the offences punishable under Sections 302 , 323 and 337 of the IPC. 5. After the accused made his appearance in the trial court, charges under Sections 302 , 323 and 337 of the IPC were framed against him and the same were read over and explained to him. He denied the said charges and claimed to be tried. 6. During the course of the trial, the prosecution got examined PW-1 to PW-19 witnesses and got marked 29 exhibits to prove its case against the accused. 7. At the culmination of the trial, after considering the evidence on record and on appreciation of the same, as noticed supra, the trial court found the accused guilty only for the offences punishable under Sections 323 and 337 of IPC and convicted him and sentenced to undergo imprisonment and to pay fine for the said offences but acquitted him of the charge under Section 302 of the IPC. 8. The trial court after considering the evidence found that the accused pushed the deceased in the quarrel that took place between them in a fit of anger and due to the said push she went and dashed against a wall and sustained head injury on her forehead and that thereafter the accused beat her with a brick on her forehead and caused injury and she died on account of the said injury. The trial court was of the opinion that the accused had no intention to kill her and the incident took place in a fit of anger at the spur of moment and therefore, held him liable only for the offences punishable under Sections 323 and 337 of the IPC. 9. The trial court was of the opinion that the accused had no intention to kill her and the incident took place in a fit of anger at the spur of moment and therefore, held him liable only for the offences punishable under Sections 323 and 337 of the IPC. 9. It is pertinent to note here that the accused did not prefer any appeal against the findings recorded by the trial court that he has pushed the deceased and she dashed against the wall and sustained head injury due to the said push and that thereafter the accused beat her with a brick on her head and caused injury to her and that she died on account of the said injury and he did not even challenge his conviction under Sections 323 and 337 of the IPC and the sentence imposed against him for the said offences. Therefore, the findings of the trial court in holding the accused is found guilty of pushing the deceased and causing head injury to her and also beating her with a brick on her head and holding him guilty for the offences punishable under Sections 323 , 337 became final. Therefore, we are now not concerned with the correctness of the findings recorded by the trial court regarding the material fact that the accused pushed the deceased and she went and dashed against the wall and sustained head injury and that thereafter the accused beat her with a brick and caused head injury to her and regarding the fact that the accused is responsible for the injury sustained by the deceased which resulted into her death. The said findings attained finality as the same are not challenged. 10. The State is now aggrieved only regarding the acquittal of the accused under Section 302 of the IPC. According to the prosecution as the accused pushed her in the said quarrel and as the deceased went and dashed against the wall and sustained head injury in the said incident and as the accused again beat her with a brick on her head and caused injury which resulted into her death that it amounts to committing an offence punishable under Section 302 of the IPC. Therefore the prosecution has preferred the instant appeal against the acquittal of the accused for the offence punishable under Section 302 of the IPC and now insisted to convict the accused for the offence punishable under Section 302 of the IPC and to impose sentence against him. Therefore, in this appeal, we are only concerned in ascertaining whether the facts of the prosecution case as per the evidence adduced in this case constitute any offence of murder punishable under Section 302 of the IPC or any other lesser offence punishable under Section 304 Part-I or 304 Part-II of the IPC relating to culpable homicide not amounting to murder. 11. While considering the same, at the outset, it is relevant to note that the medical evidence on record as can be seen from the testimony of the doctor who had held autopsy over the dead body of the deceased examined as PW-2 and Exh.16, postmortem report which is the medical evidence on record clinchingly proves that the deceased sustained head injury and she died on account of cardio respiratory failure due to head injury. PW-2, the doctor clearly stated in his evidence that the said injury is sufficient to cause death of the deceased. The said fact is also not denied by the accused specifically as can be seen from the cross examination of the doctor examined as PW-2 or any other witnesses examined in this case. Therefore admittedly and evidently the deceased sustained a head injury which resulted into her death. As per the findings recorded by the trial court upon considering the evidence on record and on appreciation of the same the said head injury was caused to the deceased as the accused pushed the deceased in the quarrel that took place between both of them when she questioned as to why he slapped her son on the previous day and because of the said push she went and dashed against the wall and sustained the said head injury and thereafter the accused beat her with a brick on her head and caused injury which resulted into her death. Therefore the accused is responsible for the said head injury sustained by the deceased which ultimately resulted into her death. 12. Therefore the accused is responsible for the said head injury sustained by the deceased which ultimately resulted into her death. 12. As noticed supra, the trial court did not hold him responsible for the offence of murder punishable under Section 302 of the IPC on the ground that the incident took place in a fit of anger at the spur of moment and the accused has no intention to kill her and he has no knowledge that the said push will result into such fatal injury and thereby acquitted him of the charge under Section 302 of the IPC. But the trial court held him liable simply for the offences punishable under Sections 323 and 337 of the IPC. 13. Upon considering the facts and circumstances of the case and the manner in which the incident took place and as admittedly the incident took place in a sudden quarrel between the accused and the deceased at the spur of the moment in a fit of anger, we are also of the considered view that the accused had no intention to commit murder of the deceased or that he had no knowledge that such push would result into sustaining a fatal injury by the deceased so as to hold him liable for the offence of murder punishable under Section 302 of the IPC. So, the facts of the case do not constitute prima facie any offence punishable under Section 302 of the IPC. On that aspect we fully concur with the finding of the trial court in not finding the accused guilty for the offence of murder punishable under Section 302 of the IPC. 14. However, after considering the facts and circumstances of the case carefully in the light of the settled law, we are of the considered view that it is not a simple case of committing an offences punishable under Sections 323 and 337 of the IPC and the facts of the case clearly constitute an offence of committing culpable homicide not amounting to murder which is punishable under Section 304 Part-I or Section 304 Part-II of the IPC. 15. Section 300 defines the offence of murder. 15. Section 300 defines the offence of murder. If the facts of the case fall within any of the situations explained in Section 300 of the IPC from clauses firstly to fourthly, the case squarely falls within the purview of the offence of murder as defined in Section 300 of the IPC. If the act is done with an intention of causing bodily injury as the offender knows it to be likely to cause the death of the person to whom the harm is caused or that act is done with an intention of causing bodily injury to any person and if the said bodily injury is intended to be inflicted is sufficient in the ordinary course of nature to cause death then it would be a clear case of murder as defined in secondly and thirdly of Section 300 of the IPC. 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 if he commit such act with that knowledge then also it amounts to committing an act of murder as defined in clause fourthly of Section 300 of IPC. 16. In the instant case, as already discussed supra, he has no such intention or knowledge so as to bring the case within the purview of clauses secondly, thirdly and fourthly of Section 300 of the IPC to hold that he has committed an offence of murder. 17. However, the very definition of murder under Section 300 of the IPC starts with the wording “Except in the cases hereinafter excepted, culpable homicide is murder,...”. 18. The said exceptions are given in Exception 1 to 5 of Section 300 of the IPC. Exception 1 to 3 and 5 are not relevant in the context and they are not applicable to the present facts of the case. But undoubtedly the Exception-4 is applicable to the present facts of the case. Exception-4 which is relevant in the context is extracted here under for better appreciation and it reads thus: 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 having taken undue advantage or acted in a cruel or unusual manner. Exception-4 which is relevant in the context is extracted here under for better appreciation and it reads thus: 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 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.” 20. In the instant case also, the act was not committed with any premeditation by the accused. But the act of pushing the deceased violently who is an old woman aged about 65 years has taken place in a sudden fight in the heat of passion upon a sudden quarrel that took place when the deceased questioned the accused as to why he slapped his son on the previous day when he demanded for repayment of the debt due by his uncle to his father. 21. So, it is very much evident that when the deceased questioned him in this regard, the accused got enraged and in that infuriated state pushed the deceased violently who is an old woman of 65 years old with force and she went and dashed against the wall which is at a short distance and sustained injury on her forehead in the said incident and has fallen down and thereafter the accused again picked up a brick available at that place and beat her on her forehead with the said brick and she sustained head injury in his hands which ultimately resulted into her death as per the medical evidence on record. Therefore the facts of the case clearly fall within Exception-4 to Section 300 IPC, which amounts to culpable homicide not amounting to murder punishable under Section 304 Part-I or Section 304 Part-II of the IPC. 22. The legal position whether in a case where the accused pushed the deceased in a sudden fight and in a fit of anger in a sudden quarrel that took place and when the accused sustained a head injury whether it amounts to murder punishable under Section 302 of the IPC or a culpable homicide not amounting to murder punishable under Section 304 Part-II of the IPC is no more res integra and the same has been well settled. 23. 23. The Division Bench of the the Delhi High Court had an occasion to deal with a case with a similar set of facts. In the case of Ghan Shyam and others vs. State , reported in 2004 SCC Online Delhi 195 , the Delhi High Court, after considering the earlier legal position and particularly the judgment of the Apex Court in the case of Virsa Singh vs. State of Punjab reported in AIR 1958 SC 465 held that when the accused has pushed the victim on the ‘jaal’ of the first floor that it amounts to committing the offence punishable under Section 304 Part-II of the IPC. As per the facts of the said case, the parties are co-tenants and their relations are normal and the incident took place all of a sudden at the spur of the moment and that in a fit of anger. When the victim interfered, the accused pushed the victim on to the jaal and he has fallen on the jaal and sustained a head injury which resulted into his death. Considering the said facts and circumstances of the case, the Delhi High Court also clearly held that clauses firstly and secondly of Section 300 of the IPC are not attracted but the case is squarely covered by Explanation-4 of Section 300 of the IPC as it was a sudden fight and there was no premeditation nor the accused acted in a cruel manner. Therefore, the Delhi High Court has altered the conviction and sentence to one under Section 304 Part-II from Section 302 of the IPC. 24. The facts of the said case squarely applies to the present facts of the case on hand. Therefore, in the facts of the present case, offence under Section 304 Part-II is made out. 25. In the judgment relied upon by Ms. Krina Calla, learned APP rendered in the case of Abdul Nawaz vs. State of West Bengal reported in (2012) 6 SCC 581 also it was held at para-26 that “….. we cannot ignore the fact that the deceased has sustained a head injury and was bleeding. 25. In the judgment relied upon by Ms. Krina Calla, learned APP rendered in the case of Abdul Nawaz vs. State of West Bengal reported in (2012) 6 SCC 581 also it was held at para-26 that “….. we cannot ignore the fact that the deceased has sustained a head injury and was bleeding. Pushing a person into the sea, with a bleeding head injury may not have been with the intention to kill, but it would certainly show the “intention of causing a bodily injury as was likely to cause death” within the meaning of Section 300 Secondly and Section 304 Part-I IPC.”. 26. In the said case the Hon’ble Supreme Court held that the accused is liable for culpable homicide not amounting to murder. But having regard to the facts of the said case, the Apex Court, found him guilty for the offence punishable under Section 304 Part-I of the IPC. 27. In another judgment of the Apex Court rendered in the case of Khokan @ Khokhan Viswas vs. State of Chhatisgarh reported in (2021) 3 SCC 365 , the Hon’ble Supreme Court held; when the quarrel between the accused and the deceased started during conversation regarding money and the accused allegedly pushed him down and stood up on his abdomen pressing down hard and on the next day the deceased was admitted in the hospital for treatment and when he died and when the medical evidence shows that the death was caused because of shock and as a result of septicemia because of injury in small intestine, the accused is liable for culpable homicide not amounting to murder under Section 304 of the IPC. In the said case also the court found that the case falls within Clause-4 to Section 300 and Exception-4 of Section 300 of the IPC. 28. In another judgment of the Apex Court rendered in the case of Sarabjeet Singh and others vs. State of Uttar Pradesh reported in (1984) 1 SCC 673 , in a case where the accused lifted and thrown an infant child down on cultivated land with some force causing death after few hours as a result of brain injury and even though no fracture of skull or bone of body was found, it is held that the accused is liable for the offence punishable under Section 304 Part-II of the IPC. 29. 29. Thus, from the conspectus of the law enunciated in the above cited judgments, the legal position is very clear that when a head injury or any fatal injury is caused by the accused to the deceased in a sudden quarrel that took place at the spur of moment in a fit of anger then it clearly falls within the purview of Exception 4 to Section 300 of the IPC committing an offence of culpable homicide not amounting to murder which is punishable under Section 304 Part-I or Part- II of the IPC. Therefore, considering the settled legal position, we hold that the accused is guilty for committing the offence punishable under Section 304 Part-II of the IPC. We do see any valid ground to hold him guilty for the offence punishable under Section 304 Part-I of the IPC. Considering the facts and circumstances of the case and the manner in which the incident took place we are satisfied that it is a case squarely falling within the purview of Section 304 Part-II of the IPC. 30. The trial court did not properly appreciate the legal position relating to the facts of the case. The trial court completely ignored the definition of Section 300 of the IPC and Exceptions carved out under it and it completely lost sight of Exception 4 to Section 300 of the IPC which clearly applies to the present facts of the case. Completely oblivious of the legal position, as discussed supra, the trial court arrived at an erroneous conclusion holding that the accused is guilty only for simple offences punishable under Section 323 and 337 of the IPC when the accused was responsible for doing away with the life of a woman of 65 years old by pushing her violently in a fit of anger in an infuriated state of mind which resulted into causing a fatal head injury to her which ultimately resulted into her death. Therefore, the judgment of the trial court in acquitting the accused the offence under Section 302 of the IPC is liable to be set aside. However, the accused is found guilty for the offence punishable under section 304 Part-II of the IPC and he is liable for conviction under Section 304 Part-II of the IPC. 31. The judgments relied upon by Mr. However, the accused is found guilty for the offence punishable under section 304 Part-II of the IPC and he is liable for conviction under Section 304 Part-II of the IPC. 31. The judgments relied upon by Mr. Jigar Gadhvi learned advocate for the respondent are not applicable to the present facts of the case. 32. In the case of Sanjay vs. the State reported in 2001 SCC Online Delhi 485 , it is a case where the accused pushed the deceased from the top of the bus from height of 12 feet. So, the court held the accused liable for the offence punishable under Section 304 Part-II of the IPC. 33. Learned advocate for the respondent would contend that as the accused pushed the deceased from the height of 12 feet from the top of the bus, the court held that he would have knowledge that he would sustain fatal injury and thereby held him liable for the offence punishable under Section 304 Part-II of the IPC and there is no such situation prevailing in the present case. we are unable to accede to the said contention. In the instant case, the deceased is an old woman of 65 years and when the accused who is young man pushed her with such a great force violently in a fit of anger and when she went and dashed against the wall which is at a short distance and sustained the head injury and thereafter when he beat her with a brick on the head and caused injury, certainly he is liable for the offence under Section 304 Part-II of the IPC. 34. In a case of Nipen Baruah vs. State of Assam, reported in (2024) 3 Gauhati Law Reporter 203 , it is a case where the father has pushed the son on to the staircase and he sustained head injury and died and thereafter the father has thrown the dead body into septic tank. The Gauhati High Court held that it is only an act of negligence committed by him and held him only liable for the offence under Section 304A of the IPC. With great respect we are unable to subscribe to the said view of the Gauhati High Court. The Gauhati High Court held that it is only an act of negligence committed by him and held him only liable for the offence under Section 304A of the IPC. With great respect we are unable to subscribe to the said view of the Gauhati High Court. When the accused pushed the child on to the staircase where the child sustained head injury in the said incident and died and when the facts of the case fall within the Exception-4 of Section 300 of the IPC, holding him guilty only for committing a negligent act under Section 304A in our view is not the proper legal position as was held in the said case. We respectfully disagree with the said view of the Gauhati High Court. As it is a judgment of the other High Court, it is not binding on this Court. As per law of precedents, judgments of the other court will only have persuasive value. 35. In other judgment relied upon by the learned counsel for the respondent in the case of Gudu Ram vs. State of Himachal Pradesh of the Apex Court, reported in 2013 (11) SCC 546, the facts of the case are different when compared with the facts of the present case. That was a case where the accused assaulted the deceased with a weapon ‘thapi’ on the vital part of the body i.e. skull. It is of no use to the case of the respondent. 36. In another judgment rendered in the case of Kuldeep Singh vs. vs. State of Himachal Pradesh reported in 2008 (14) SCC 795 , that was a case of a negligent driving of a vehicle under Section 304A of the IPC. It has absolutely no application to the present facts of the case. 37. In the judgment rendered in the case of Arvind Kumar vs. State (NCT of Delhi) reported in (2023) 8 SCC 208 , that was a case relating to firing a gun shot. It has also absolutely no application to the present facts of the case. Therefore, it is also of no avail to the case of the respondent. 38. 37. In the judgment rendered in the case of Arvind Kumar vs. State (NCT of Delhi) reported in (2023) 8 SCC 208 , that was a case relating to firing a gun shot. It has also absolutely no application to the present facts of the case. Therefore, it is also of no avail to the case of the respondent. 38. Although learned advocate for respondent also relied upon the judgment of Jani Gulab Shaikh vs. State of Maharashtra reported in 1969 AIJEL SC 39509, in view of the latest judgments of the Apex Court which are cited and discussed above, we hold the accused guilty under Section 304 Part-II of the IPC. 39. To sum up, the facts of the case clearly constitute an offence punishable under Section 304 Part-II of the IPC. Facts of the case clearly consitute an offence of culpable homicide not amounting to murder falling within the purview of Exception-4 of Section 300 of the IPC. So, the accused is liable for the offence punishable under Section 304 Part-II of the IPC. 40. Therefore, impugned judgment of the trial court in acquitting the accused under Section 302 of the IPC is set aside and the accused is convicted for the offence punishable under Section 304 Part-II of the IPC. 41. The accused is absent and is not present to question him on the quantum of sentence to be imposed for the offence punishable under Section 304 Part-II of the IPC. 42. Learned advocate for the respondent would submit that the accused is now not available for him to contact. 43. Therefore, issue non-bailable warrant against the respondent to secure his presence to question him on the quantum of sentence and to impose punishment on him under Section 304(II) of the IPC, returnable on 08/09/2025.