CR.A/47519/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 475 of 1987 With CRIMINAL APPEAL No. 476 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== STATE OF GUJARAT Versus RAMANBHAI G PARMAR ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellants MADANSINGH O BAROD for the Opponent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT CR.A/47519/1987 2/6 JUDGMENT Date : 25/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Two appeals have been preferred by the State of Gujarat against the judgment and order dated 30.04.1987 passed by the Additional Sessions Judge, Baroda in Sessions Case No. 110 of 1986. Criminal Appeal No. 475 challenges that portion of the judgment whereby the Sessions Court has acquitted the respondent – original accused of the offence punishable under Section 302 and instead convicted him for offence punishable under Section 304(2) of the Indian Penal Code. Criminal Appeal No. 476 questions the quantum of sentence of three years awarded to the respondent by the Trial Court for offence under Section 304(2) of the Penal Code. A public meeting of farm labourers was called on 1.02.1986 at village Khunwad by Arvindbhai Naranbhai (PW-5). Initially the meeting was to be held at 12:00noon but was re-scheduled for 8:00pm. The meeting was to be held near the house of Arvindbhai and a mandap had been built for the said purpose. At about 7:00-7:30pm, accused Raman Parmar, who was residing near the house of Arvindbhai came to the place of meeting and requested Vithalbhai Dhulabhai and Ishawarbhai Govindbhai (PW-2) who were sitting near the house of Arvindbhai to lower the volume of loud-speaker. They expressed their inability to reduce the volume as they were not the co-ordinators of the meeting. This infuriated the accused and he gave four blows with an axe on the body of Ishwarbhai. At this stage Vithalbhai intervened and the accused gave one blow with axe which landed on the head of Vithalbhai. On seeing the assault and hearing the shouts for help, Chandubhai Bhailalbhai (PW-3), Jasubhai Haribhai (PW-4) and Arvindbhai CR.A/47519/1987 3/6 JUDGMENT Naranbhai (PW-5) rushed to the spot and held back the accused. Both the injured were thereafter shifted to a hospital at Sankheda and from there to S.S.G. hospital at Vadodara. Ishawarbhai had received only simple injuries and was discharged on the next day. The blow on head of Vithalbhai had caused fracture of left parietal bone and he succumbed to his injury on 3.06.1986. The accused was charged with the offence of causing death of Vithalbhai and injuring Ishwarbhai. At the trial, the prosecution examined complainant Kesurbhai Babarbhai (PW-1), injured Ishwarbhai (PW-2), Chandubhai (PW-3), Jasubhai (PW-4) and Arvindbhai (PW-5), who all are stated to have seen the accused giving the blow to injured Ishwarbhai and deceased Vithalbhai, to prove guilt of the accused. On the basis of the evidence of all these eye-witnesses, which the Sessions Judge found true and reliable, the accused was convicted under Section 323 for causing simple injury to Ishwarbhai. The Trial Court also held that the accused had caused fatal injury to Vithalbhai but finding that the said blow was not given with an intention to cause death or such bodily injury as is sufficient to cause death concluded that the offence committed by the accused amounted to culpable homicide not amounting to murder and convicted him under Section 304, Part II of the Code. We have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State and Mr. Barod, learned Advocate for the respondent. In assailing the acquittal, learned Counsel for the State has contended that the matter squarely falls within clause Thirdly of Section 300 of the Code. He has submitted that merely because the respondent rendered a solitary blow on the head would not necessarily imply that CR.A/47519/1987 4/6 JUDGMENT the offence amounted to culpable homicide not amounting to murder under Section 304, Part II of the Code. On the other hand, learned Counsel for the respondent has submitted that the respondent did not have any intention of killing Vithalbhai and but for his intervention would not have even inflicted any injury on the body of Vithalbhai. He has therefore submitted that the Trial Court has correctly found that the respondent can only be attributed with the knowledge that his act would cause an injury which was likely to cause death and not with any intention to cause the death of the deceased. He has further submitted, in the alternative, that there could be no doubt that the respondent acted in the heat of the moment when he hit the deceased and is, therefore, entitled to the benefit of Exception 4 of Section 300 of the Code. The ingredients of clause Thirdly of Section 300 of the Code were brought out by Vivian Bose, J., in Virsa Singh v. State of Punjab (AIR 1958 SC 465) in his terse language: “To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, ‘Thirdly’; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.” CR.A/47519/1987 5/6 JUDGMENT The learned Judge explained the third ingredient in the words: “The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.” These observations of Vivian Bose, J., have become locus classicus. The test laid down in Virsa Singh case for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law. Under clause Thirdly of Section 300 of the Code, culpable homicide is murder if both the conditions are satisfied: (a) that the act which causes death is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. In the present case, looking at the totality of the evidence, it would not be possible to come to the conclusion that when the respondent struck the deceased, he intended to cause such bodily injury as was CR.A/47519/1987 6/6 JUDGMENT sufficient in the ordinary course of nature to cause death. Injuries caused by the respondent to Ishwarbhai are only skin-deep simple injuries and they do not disclose any intention on the part of the accused to such bodily injury as would result in death of the victim. Even as per the prosecution, no attempt was made by the accused to assault or injure the deceased initially and it was only because Vithalbhai intervened that he received a blow which unfortunately landed on his head and resulted in his death. Also, there is no doubt that the attack was not pre- meditated and that the respondent assaulted the deceased and injured in the heat of the moment. We are, therefore, of the considered opinion that the Trial Court was right in convicting the accused under Section 304, Part II of the Code. Now on the question of sentence, we find that the Trial Court was not absolutely right in awarding a sentence of only three years to the accused while convicting him under Section 304, Part II of the Code. However, considering the fact that the respondent has not challenged his conviction and more importantly because several years have passed since the date of incident and conviction, we are not inclined to interfere with the quantum of punishment awarded by the Sessions Court at this distance of time. In the result, both the appeals preferred by the State do not call for any interference and are accordingly dismissed. Bail bonds stand cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd