IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 250 of 2000 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- RAMAN @ RAMESHBHAI RANCHHODBHAI PARMAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 250 of 2000 MR KG SHETH for Appellant THROUGH JAIL for Appellant MS PAURAMI B.SHETH, A.P.P., for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.C.PATEL Date of decision: 09/09/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 is directed against judgment dated February 21, 2000, rendered by the learned Sessions Judge, Baroda, in Sessions Case No.49 of 1999, by which the appellant is convicted under Section 302 of the Indian Penal Code and sentenced to suffer R.I. for life and fine of Rs.500/-, in default, S.I. for two months. 2. Deceased Haribhai Trikambhai, who was forefather of the appellant and victim Fogatbhai, who lost life in incident, was resident of village Tinglod, Taluka : Shinor, District : Vadodara. Deceased Haribhai had four sons. Their names were (i) Ranchhodbhai, (ii) Naranbhai, (iii) Kabhaibhai, and (iv) Vithalbhai. Kabhaibhai was married to Chanchalben. During subsistence of her marriage with Kabhaibhai, Chanchalben had given birth to four sons and three daughters. Names of four sons of Kabhaibhai are (i) Fogatbhai, (ii) Ishwar, (iii) Babar, and (iv) Parag. The victim i.e. Fogatbhai was married to Gangaben and during subsistence of her marriage with Fogatbhai, Gangaben had given birth to two sons. Their names are Kamlesh and Paresh. Deceased Haribhai Trikambhai had agricultural land situated near the bank of river Bhukhi. The said land was not partitioned amongst his sons and was running in the joint names of his four sons. However, from the record of the case, it is evident that 7 Bighas of land out of the land owned by deceased Haribhai Trikambhai was being cultivated by Fogatbhai and his brothers. Fogatbhai had grown crops of Tuver and cotton. Acquitted accused Ranchhodbhai Haribhai Parmar, who is father of the appellant, was as such not cultivating the land, but was maintaining his family by grazing cattle of others. The incident in question took place on October 24, 1998 at about 8.00 A.M. On the day of incident, deceased Fogatbhai had visited his field. At that time he had found that acquitted accused Ranchhodbhai Haribhai had trespassed into his field with cattle and the cattle had destroyed the raised crops of Tuver and cotton. Thereupon Fogatbhai had come back to his house and informed his mother Chanchalben about the same. Chanchalben had asked deceased Fogatbhai to keep peace and not to quarrel with Ranchhodbhai over the issue. Chanchalben had solaced deceased Fogatbhai that she would discuss the issue with Ranchhodbhai after his return to his house. Ranchhodbhai had returned to his house at about 12.00 noon. At that time, Fogatbhai attempted to know from Ranchhodbhai as to why he had grazed cattle in his field and destroyed crops of Tuver and cotton. Thereupon, Ranchhodbhai had started hurling abuses. When this was protested by the deceased, Ranchhodbhai had caught hold of deceased Fogatbhai by neck and given blow on his face with his shoe. Thereafter, Ranchhodbhai had dragged deceased Fogatbhai towards Vada of Ganpatbhai. Meanwhile, Madhuben, who was original accused No.3 and wife of Ranchhodbhai, had also arrived at the place of incident followed by her son Thakorbhai, who was original accused No.4 in the case. According to prosecution, the appellant had gone inside his house and brought a gupti with him. As per the case of prosecution, the deceased was caught hold of by Madhuben and Thakorbhai; whereas the appellant had inflicted knife blow with gupti on the chest of the deceased. On receipt of injury, the deceased had fallen on the ground and commotion had taken place, as a result of which, those who were residing in the falia, had gathered at the place of incident. The deceased was physically lifted and taken to bus-stand from where he was removed to Sadhali Hospital in a tempo. The Doctor, who was on duty at Sadhali Hospital, had examined the deceased and advised to remove him to S.S.G.Hospital, Vadodara. Accordingly, the deceased was removed to S.S.G.Hospital for better treatment. Meanwhile, Chanchalben, who is mother of the deceased, had gone to Sadhali Outpost and lodged her complaint against four accused, which was registered by Jayantibhai Dalsukhbhai, who was then Head Constable on duty at the said Outpost. From Sadhali Outpost occurrence report was forwarded to Shinor Police Station and, therefore, C.R.No.69 of 1998 for commission of offences punishable under Sections 307, 323, 504 & 114 I.P.C. was registered against the accused. P.S.O. of Shinor Police Station had handed over investigation of the complaint lodged by Chanchalben to Anupsinh Parmar, who was then incharge P.S.I. of Shinor Police Station. The deceased succumbed to his injuries at S.S.G.Hospital and, therefore, offence punishable under Section 302 I.P.C. was also registered against the accused. The investigating officer had held inquest on the dead body of the deceased and made necessary arrangement for sending dead body of the deceased for postmortem examination. The postmortem examination on the dead body of the deceased was performed by a Panel of Doctors comprising Dr.Kishorbhai Pramodrai Desai and Dr.D.S.Basu. The investigating officer had recorded statements of those persons who were found to be conversant with the facts of the case. The investigating officer had also discussed the incident with Divisional Dy.S.P. Mr.Motiyani, as this was a visitable offence. On the next day, the investigating officer had drawn panchnama of place of incident and seized clothes of the deceased which were produced before him by Head Constable Pratapsinh. Accused Ranchhodbhai and the appellant had surrendered before the police and therefore, they were arrested and panchnama of their persons was prepared. Accused Madhuben and accused Thakorbhai had also surrendered before the investigating officer on the same day. While in custody, a disclosure statement was made by the appellant, pursuant to which gupti used by him in commission of crime was recovered from the place pointed out by him. The incriminating articles, which were seized during the course of investigation, were sent to Forensic Science Laboratory ['F.S.L.' for short] for analysis. On completion of investigation, four accused were chargesheeted in the Court of learned Judicial Magistrate, First Class, Dabhoi. As the offence punishable under Section 302 I.P.C. is exclusively triable by a Court of Sessions, the case against the accused was committed to Sessions Court, Vadodara for trial, where it was numbered as Sessions Case No.49 of 1999. 3. The learned Sessions Judge, Baroda framed charge against the four accused at Exh.2 of the offences punishable under Sections 302, 504, 323 r.w.sec.114 of I.P.C. The charge was read over and explained to the accused, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined, (1) Dr.Kishorbhai Pramodrai Desai as PW.1 at Exh.9, (2) Chanchalben Kabhaibhai as PW.2 at Exh.12, (3) Gangaben Fogatbhai as PW.3 at Exh.16, (4) Arvindbhai Naranbhai Parmar as PW.4 at Exh.17, (5) Rekhaben Manubhai as PW.5 at Exh.18, (6) Hasmukhbhai Muljibhai as PW.6 at Exh.19, (7) Muljibhai Bavjibhai Parmar as PW.7 at Exh.23, (8) Subhashbhai Nagjibhai Patel as PW.8 at Exh.25, (9) Parshotambhai Chaturbhai Parmar as PW.9 at Exh.27, (10) Jayantibhai Dalsukhbhai as PW.10 at Exh.31, (11) Anupsinh Himatsinh Parmar as PW.11 at Exh.33, (12) Chimanbhai Muljibhai Vasava as PW.12 at Exh.45, and (13) Vinodkumar Mohanlal as PW.13 at Exh.47, to prove its case against the accused. The prosecution also produced documentary evidence such as postmortem notes of deceased Fogatbhai at Exh.10, first information report lodged by Chanchalben at Exh.13, panchnama of place of occurrence at Exh.20, panchnama of house of the appellant at Exh.21, panchnama indicating seizure of clothes of the deceased at Exh.22, inquest panchnama at Exh.24, discovery of gupti used by the appellant in commission of crime, which was discovered pursuant to disclosure statement made by the appellant at Exh.26, arrest panchnama of the appellant at Exh.28, result of analysis at Exh.42 etc. in support of its case against the accused. 4. After recording of evidence of prosecution witnesses was over, the learned Sessions Judge explained to the accused the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by Section 313 of the Code. In their further statements, the case of the accused was that they were innocent and falsely implicated in the case. However, none of them had tendered any evidence on oath, nor examined any one in support of claim advanced in further statement. 5. On evaluation of the evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that deceased Fogatbhai Kabhaibhai died a homicidal death. According to the learned Judge, it was not proved by the prosecution that original accused no.1 i.e. Ranchhodbhai and original accused No.3 i.e. Madhuben had intentionally insulted or provoked the deceased when the deceased had scolded the accused No.1 and, therefore, commission of offence punishable under Section 504 I.P.C. was not established by the prosecution. It was further deduced by the learned Judge that the original accused No.1 had not caused simple injury by giving blow with his shoe on the face of the deceased and, therefore, commission of offence punishable under Section 323 I.P.C. was also not established by the prosecution. According to the learned Judge, the prosecution was successful in proving that the appellant had committed murder of the deceased by giving gupti blow on right side of his chest, but it was not proved by the prosecution that the original accused Nos.1,3 & 4 had abetted the appellant in committing murder of the deceased and, therefore, they were not liable to be convicted of the offence punishable under Section 302 I.P.C. with the aid of Section 114 I.P.C. In view of abovereferredto conclusions, the learned Judge has acquitted the original accused Nos.1, 3 & 4, but convicted the appellant under Section 302 I.P.C. and imposed sentence referredto earlier by judgment dated February 21, 2000, giving rise to instant appeal. It may be stated that acquittal of original accused Nos.1,3 & 4 is not challenged by the State Government in an acquittal appeal and the findings recorded by the learned Sessions Judge while acquitting them have become final. 6. The only contention urged by Mr.K.G.Sheth, learned counsel of the appellant, pertains to the nature of offence committed by the appellant. According to the learned counsel of the appellant, the medical evidence on record does not establish that the injury inflicted on the deceased was sufficient in the ordinary course of nature to cause his death, and as the facts proved by the prosecution do not bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300 I.P.C., the appellant would be liable to be convicted under Section 304 Part-I I.P.C. What was highlighted by the learned counsel of the appellant was that even if it was held that facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300, Exception-4 to Section 300 I.P.C. would be applicable to the facts of the case and, therefore, also the appellant would be liable to be convicted under Section 304 Part-I I.P.C., but not under Section 302 I.P.C. The learned counsel emphasised that only one blow was given in a sudden quarrel which had ensued between the deceased and father of the appellant and, therefore, conviction of the appellant under Section 302 I.P.C. should be converted into one punishable under Section 304 Part-I I.P.C. and sentence of R.I. for seven years should be imposed on the appellant for commission of the said offence. It was argued that the learned Judge has failed to appreciate the facts proved by the prosecution in their true perspective while determining the nature of offence committed by the appellant and therefore, the appeal should be accepted. 7. Ms.Paurami B.Sheth, learned A.P.P., contended that the meaningful reading of testimony of Dr.Kishorbhai Desai, examined at Exh.9, would indicate that injury caused to the deceased was sufficient in the ordinary course of nature to cause his death and, therefore, it is wrong to contend that the facts proved by the prosecution do not bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300 I.P.C. The learned counsel of the State Government pointed out that evidence on record establishes that the appellant had first of all secured gupti from his house and thereafter inflicted gupti blow with force on vital part of the body of the deceased, as a result of which conviction of the appellant under Section 302 I.P.C. should not be regarded as illegal. According to the learned A.P.P., the manner in which murder of the deceased was committed would not bring the case within the definition of 'culpable homicidal not amounting to murder' and, therefore, conviction of the appellant under Section 302 I.P.C. should be upheld by this Court. 8. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and a reasonable probabilities of the case. The fact that deceased Fogatbhai died a homicidal death is not in dispute. Five eye witnesses, namely, (1) Chanchalben Kabhai, (2) Gangaben Fogatbhai, (3) Arvindbhai Naranbhai Parmar, (4) Rekhaben Manubhai, and (5) Parshotambhai Chaturbhai Parmar have stated in their sworn testimonies before the Court that the deceased had received injury by means of gupti. The injury sustained by the deceased is also noted in inquest panchnama, which is produced by the prosecution at Exh.24. The testimony of Dr.Desai, recorded at Exh.9, would indicate that he had received dead body of the deceased on October 24, 1998 at about 5.20 P.M. and that autopsy on the dead body was performed by him alongwith Dr.Basu. Dr.Desai in his substantive evidence before the Court has enumerated external as well as internal injuries which were noticed by him and Dr.Basu while performing autopsy on the dead body of the deceased. It is nobody's case that the injuries sustained by the deceased were accidental or self inflicted. The injuries noticed on the dead body of the deceased are also enumerated in postmortem notes produced by the prosecution at Exh.10. Under the circumstances, the finding recorded by the learned Judge of the trial Court to the effect that it is proved by the prosecution beyond reasonable doubt that the deceased died a homicidal death is eminently just and is hereby upheld. 9. Though the partition and involvement of the appellant in the incident is not questioned by the learned counsel of the appellant, this Court has minutely and carefully examined the testimonies of five eye witnesses, namely, (1) Chanchalben Kabhai, (2) Gangaben Fogatbhai, (3) Arvindbhai Naranbhai Parmar, (4) Rekhaben Manubhai, and (5) Parshotambhai Chaturbhai Parmar. All the eye witnesses have categorically asserted before the Court that the appellant had inflicted gupti blow on the chest of the deceased. It may be stated that witness Chanchalben is mother of the deceased, whereas witness Gangaben is wife of the deceased and witness Arvindbhai is cousin of the deceased, whereas witness Rekhaben is also cousin of the deceased and witness Parshotambhai Parmar is nephew of the deceased. The eye witnesses being close relatives of the deceased would not allow the real culprit to go scot free and involve the appellant falsely more particularly when there is no long standing enmity between the witnesses and the appellant. All the witnesses have consistently maintained before the Court that it was the appellant who had inflicted fatal blow on the chest of the deceased with a gupti. Certain contradictions and/or omissions appearing in the evidence of above-named witnesses with reference to their earlier police statements have been brought on record, but they do not help the appellant at all. Those contradictions and/or omissions were helpful to original accused Nos.1,3 & 4 and, therefore, due benefit of the same has been accorded by the learned Judge to those accused. The striking feature of the case is that though all the above-named eye witnesses were subjected to searching cross-examination, the case of the prosecution that the appellant had inflicted gupti blow on the chest of the deceased was not disputed by the defence. The testimony of eye witnesses examined by the prosecution is rightly believed by the learned Judge of the trial Court for coming to the conclusion that charge of causing death of the deceased levelled against the appellant is proved by the prosecution. Over and above eye witness account, which involves the appellant with the murder of the deceased, there is another incriminating circumstance on record, which also stands duly proved by the prosecution. The evidence of witness Subhashbhai Nagjibhai Patel, recorded at Exh.25, shows that gupti used in commission of crime was recovered at the instance of the appellant alongwith other articles seized during the course of investigation. The gupti recovered was also sent to F.S.L. for analysis. The report of Serologist produced at Exh.42 proves beyond doubt that gupti recovered at the instance of the appellant had the same group of blood as that of the deceased, which, in turn, would indicate that the appellant was in close proximity of the deceased when the deceased was fatally wounded. This circumstance is not explained by the appellant which, in turn, lends corroboration to the reliable testimony of eye witnesses. On the facts and in the circumstances of the case, this Court finds that the conclusion arrived at by the learned Judge of the trial Court to the effect that it is proved by the prosecution that the appellant had inflicted gupti blow on the chest of the deceased and caused his death is perfectly just and is, therefore, hereby upheld. 10. This brings the Court to consider the question about nature of offence committed by the appellant. Before considering the question whether the offence committed by the appellant is 'murder' or 'culpable homicide not amounting to murder, it would be relevant to notice proper approach which must be adopted by the Court before answering the said question. Whenever a Court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of the case, it will be convenient for it to approach the problem at three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused death of another. Proof of such causal connection between the act of the accused and the death leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder contained in Section 300 I.P.C. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder punishable under the first or the second part of Section 304, depending respectively on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder punishable under the first part of Section 304 Penal Code. Having noticed the broad guidelines which must be borne in mind by the Court while answering the question whether the offence committed by an accused is culpable homicide not amounting to murder, this Court proposes to discuss the evidence adduced by the prosecution. 11. However, it would be relevant to ascertain whether instant case falls within ambit of any of the four Clauses of Section 300 I.P.C. Dr.Desai, who had performed postmortem on the dead body of the deceased, is examined at Exh.9. As per his testimony, the deceased had received stab wound over right hypochondrium region 10 cm. below right nipple. The testimony of Dr.Desai further shows that there was tear over right dome of the diaphragm over the alveolar medial aspect. The medical evidence establishes that the cause of death of the deceased was shock and haemorrhage following stab injury to the vital organs like liver and heart. However, Dr.Desai has not stated in his testimony that the injury caused by the appellant to the deceased was sufficient in the ordinary course of nature to cause his death. In cross-examination, a suggestion was made to the Doctor that the deceased would have survived if he had been treated immediately, but it was stated by the Doctor that there was little possibility of survival of the deceased even if he had been treated immediately. In cross-examination, it was further stated by the Medical Officer that had the patient been removed to the hospital immediately and an operation performed, there was possibility that he would have survived. On reassessment of testimony of Dr.Desai, it is difficult to conclude that his evidence establishes that injury caused to the deceased was sufficient in the ordinary course of nature to cause his death. The third Clause discards the test of subjective knowledge. It deals with acts done with intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this Clause, the result of the intentionally caused injury must be viewed objectively. If the injury, that the offender intends to cause and does cause is sufficient to cause death in the ordinary way of nature, the offence is of murder, whether offender intended causing death or not and whether the offender had subjective knowledge of the consequences or not. Normally, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place. In such a case, it may not be open to argue backward, from the death to blow, to hold that sufficiency is established because death did result. As death can take place from several causes, sufficiency is required to be proved by other and separate evidence. Usually, the Court would depend upon testimony of Medical Officer to ascertain whether the injury sustained by the deceased was sufficient in the ordinary course of nature to cause his death. Hence, it would be hazardous for the Court to draw inference in this regard. Having regard to the facts proved by the prosecution, it is difficult to come to the conclusion that the injury caused by the appellant to the deceased was sufficient in the ordinary course of nature to cause death of the deceased. Therefore, Clause Thirdly would not govern instant case as is sought to be argued by the learned A.P.P. In fact, testimony of five eye witnesses does not establish that as such there was any enmity between the appellant and the deceased, or that the deceased was annoyed with the appellant because of his reprehensible