CR.A/414/2001 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 414 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= SUNILBHAI FAKIRBHAI HARIJAN - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MR BS SUPEHIA for Appellant(s) : 1, MR KC SHAH, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 13/08/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. The present appellant – original accused in CR.A/414/2001 2/20 JUDGMENT Sessions Case No.18 of 1998 was charged and tried by learned Additional Sessions Judge, Junagadh, for the offences punishable under Sections 302, 504 of Indian Penal Code (for short “IPC”). 2. The case of the prosecution is that complainant Shardaben, wife of Ramesh Fakir was residing at Godga Vav Pati, Khan Faliya, Junagadh, with her husband and daughters and was doing labour and cleaning work and her husband was sweeper in Nagar Palika. Her father in law and mother in law and Sunil, the brother of her husband (Diyar), were staying at Gola Vav Pati, Shakkaria Timba, Junaadh. 3. On 16.12.1997, husband of Shardaben had gone for service and she, along with her daughters, went to the place of her in-laws at about 6.00 O'clock in the evening and remained there for some time. During that time there were some altercation between her father-in-law, who was in a drunken position, and Sunil about the marriage of Sunil in presence of her mother-in- law. Her father in law told Sunil that “at this time he has no money and so he cannot perform his marriage.” Thereupon Sunil started giving abuses to her father-in-law and started quarreling with her father-in-law. So the complainant – Shardaben along with her daughters went to her house and started cooking. After CR.A/414/2001 3/20 JUDGMENT some time Suresh, son of Chana Deva, who was staying near the house of her in-laws, came to her house at about 6.30 p.m. and told her that Sunil (brother of her husband) has inflicted knife blow on her father-in-law. She, therefore, stopped cooking and rushed to the house of her in-laws. Her husband also came and told her that Sunil has inflicted knife blow to his father and told her to come with him to go to the hospital. So, both went there and at that time her father- in-law was lying in his room in a bleeding condition and was unable to speak anything. She saw chest injury on his body. Her husband brought rickshaw and they both took her father in law in Government Hospital. In the hospital after examining the Doctor declared him dead. Thereafter a complaint was lodged and before Police Inspector “A” Division Police Station, Junagadh, she narrated the whole incident. Her complaint was registered vide CR No.I-362/97 by the Police against the accused for the offences punishable under Sections 302, 504 I.P.Code and Section 135 of the Bombay Police Act. 4. The investigation was handed over to Police Inspector Shri Nirmalsinh Kalyansinh Gohil. He carried out the investigation. He drew the Inquest Panchnama and sent the dead body of deceased Fakirbhai Chanabhai to the Civil Hospital, Junagadh for Post Mortem. Police has also drawn the panchnama of scene of offence and CR.A/414/2001 4/20 JUDGMENT the statement of the witnesses were recorded. Then the police has tried to find out the present appellant – accused and from the Railway station the accused was found and was arrested. The arrest panchnama of accused was also drawn and the clothes of the accused and muddamal knife were seized under the panchnama. Thereafter the Investigating Officer has prepared the Muddamal Ravangi Yadi to the Forensic Science Laborator and sent it to Forensic Science Laborator for scientific analysis and then the Investigating Officer was transferred and, therefore, investigation was handed over to Police Inspector Mr. Kher. After completion of investigation the charge-sheet was filed in the Court of learned J.M.F.C. As the offence under Section 302 I.P.Code was exclusively triable by the Sessions Judge, the learned JMFC committed the said case to the Court of Sessions at Junagadh, which came to be registered as Sessions Case No.18 of 1998. 5. Thereafter, the learned Sessions Judge, Junagadh, framed the charge (Exh. 1) against the present appellant – accused. The accused pleaded not guilty to the charge and claimed to be tried. 6. Just to prove the case the prosecution has examined 15 witnesses and relied upon their testimony, they are as under : CR.A/414/2001 5/20 JUDGMENT P.W.1 Complainant Shardaben Rameshbhai,Ex.13; P.W.2 Rajesh Bachubhai, Ex.15; P.W.3 Ramesh Fakirbhai, Ex.16; P.W.4 Chana Deva, Exh. 18; P.W.5 Hardas Nathabhai, Exh.19; P.W.6 Rasik Nanjibhai, Ex.21; P.W.7 Dr.Arjun Gorabhai Rathod, Exh.22; P.W.8 Dhansukhbhai Jesingbhai, Ex.25; P.W.9 Nanuben Naranbhai, Ex.26; P.W.10 Suresh Chanabhai, Ex.27; P.W.11 Dahiben Nathabhai, Ex.28; P.W.12 Punjabhai Ambabhai,Ex.29; P.W.13 Shambhubhai L. Parmar, Ex.30; P.W.14 Shantaben Fakirbhai, Ex.35; P.W.15 Nirmalsinh K. Gohil, Ex.38 To prove the culpability of the accused, the prosecution has also produced and relied upon the following documentary evidence, which are as under : (1)Inquest Panchnama, Ex.11; (2)Panchnama of scene of offence, Ex.12; (3)Complaint, Ex.14; (4)Arrest Panchnama of accused, Ex.20; (5)Ravangi Yadi for Post Mortem,Ex.23; (6)Post Mortem Report, Ex.24; (7)copy of F.I.R. Ex.31; (8)Copy of station diary, Ex.32; (9)Yadi forBlood sample of accused, Ex.39; CR.A/414/2001 6/20 JUDGMENT (10)Forwarding letter to F.S.L., Ex.40; (11)Ravangi Yadi, Ex.41; (12)Receipt regarding muddamal received by F.S.L., Ex.42; (13)Forwarding letter of F.S.L., Ex.43; (14)Serological Report, Ex.44; (15)Report from F.S.L., Ex.45; (16)Yadi for DO written by Junagadh City Police to 'A' Division Police Station, Junagadh, Ex.48 7. After examining the witnesses the statement of the accused was recorded under the provisions of Section 313 Cr.P.C. and the present appellant – accused has denied the whole case of the prosecution. 8. After considering the oral as well as documentary evidence and the submissions made by the parties, the learned Sessions Judge, Junagadh, vide impugned Judgment and order dated 11.5.2001, rendered in Sessions Case No.18 of 1998, held the present appellant – accused guilty for the offence punishable under Section 302 I.P.Code and convicted and sentenced him to suffer rigorous imprisonment for life with fine of Rs.2000/- i/d to undergo simple imprisonment for six months, for the offence punishable under Section 302 I.P. Code. 9. Against the said Judgment and order of CR.A/414/2001 7/20 JUDGMENT conviction and sentence the present appellant – accused has filed this Appeal, through Jail Authority. So learned Advocate Mr. B.S.Supehia is appointed through legal Aid to defend his case. 10.Heard learned Advocate Mr. B.S. Supehia, appointed through legal Aid, for the appellant – accused and Mr. K.C. Shah, learned APP for the respondent – State. 11.Mr. Supehia, learned Advocate has contended that the trial Court has not considered the main ingredients of the offence and simply the present – appellant – accused has been convicted for the offence under Section 302 I.P. Code. Mr. Supehia has read the oral evidence of the complainant and also read the complaint and contended that from the oral as well as documentary evidence, it was on record before the trial Court that the deceased was always consuming Alcohol and he was kicked off from service and due to joblessness he remained present at the house and at that time the present appellant has requested the deceased to arrange his marriage, but the deceased was under the heavy influence of alcohol and as he has no money at that time and, therefore, he turned down such request made by the appellant. Therefore, quarrel took place between the deceased father and the appellant (son). He has CR.A/414/2001 8/20 JUDGMENT contended that due to exchange of abuses between them the appellant – accused got excited and was suddenly provoked and under such provocation, the incident in question took place. The said fact is not considered by the trial Court. Mr. Supehia also contended that it is the duty of the trial Court to verify that whether the case would fall within the scope and ambit of exceptions made in Section 300 I.P. Code. Mr. Supehia has fairly stated that other witnesses have explained the happening of incident. He has also contended that Muddamal knife and the clothes of the appellant – accused were recovered. Mr. Supehia has also read the oral evidence of the witnesses as well as of the Medical Officer and the Post Mortem Note and contended that appellant – got excited and only a single blow of knife was given to the deceased. It was not the intention of the appellant – accused to cause the death of deceased. It had happened under the sudden provocation made by the deceased himself. Lastly he contended that the present case is squarely covered under Part-II of Section 304 I.P. Code and prayed that at least sentence may be altered from Section 302 to Part-II of Section 304 I.P. Code. 12.Mr. K.C. Shah, learned APP, appearing on behalf of the respondent – State has contended that no doubt the appellant – accused has given one blow CR.A/414/2001 9/20 JUDGMENT of knife to the deceased but it was given on a vital part of the body and that was given in such a force which resulted the death of deceased. He contended that P.W.7 Dr. Arjun Gorabhai Rathod, Ex.22 has narrated the said injury in his Post Mortem Note Ex.24. Mr. Shah has contended that the prosecution has proved the evidence against the present appellant – accused. He has also contended that during the panchnama of scene of offence blood was found which was recovered. He has also drawn the attention of this court that clothes of the deceased were taken under the panchnama and blood stains were found from the clothes of deceased. He contended that complainant Shardaben is an illiterate and rustic lady and the complaint Ex.14 was given by her in presence of P.W.8 Dhansukhbhai Jeshingbhai, Ex.25, who is an independent witness. This witness has also stated in his oral evidence before the trial Court that he was present during recording of complaint by Shardaben and he has identified the complaint. Mr. Shah has contended that P.W.9 Nanuben Naranbhai, Ex.26 has explained that she was told regarding the said incident by complainant Shardaben that she saw the present appellant with knife and at the blade of knife she also saw the blood. Mr. Shah also contended that from the F.S.L. Report, sufficient circumstantial evidence was produced by the prosecution. Mr. Shah has contended that from CR.A/414/2001 10/20 JUDGMENT the oral as well as documentary evidence as also the medical evidence and Post Mortem Note the prosecution has proved that the appellant – accused has given a blow of knife to the victim with the full knowledge that such blow will cause death of deceased and contended the trial Court has rightly convicted and sentenced the appellant – accused under Section 302 I.P. Code. 13.We have gone through the oral as well as documentary evidence produced by the prosecution before the trial Court and we have also undertaken complete and comprehensive exercise of all vital features of the case and entire evience on record and have also considered the arguments advanced by both the parties. It is not in dispute that victim Fakirbhai died homicidal death. The prosecution has relied upon the evidence of eye witnesses as well as documentary and circumstantial evidence. 14.It is true that the prosecution has relied upon the evidence of P.W.1 – complainant Shardaben Rameshbhai Ex.13 and the complaint Ex.14 and the evidence of Panch witness Rajesh Bachubhai Ex.15, Panch of scene of offence. It is also on record that son of deceased and husband of the complainant has not uttered any single word about the incident. The recovery panchnama of clothes of deceased Ex.17 and oral evidence of P.W.7 Dr. Arjun Gorabhai Rathod, Ex.22 and the CR.A/414/2001 11/20 JUDGMENT Post Mortem Note Ex.24 are corroborative piece of evidence with each other. P.W.7 Dr. Arjun Rathod opined that the injury on the deceased is possible by muddamal knife. 15.The complainant – P.W.1 – Shardaben, Ex.13, was present during exchange of hot discussion and dialogs between the deceased and the present appellant – accused. She has also heard abuses. We have also compared the oral evidence of the complainant with the evidence of P.W.7 – Dr. Arjun Rathod and the evidence of P.W.9 Nanuben, Ex.26. We have also gone through the Serological Report from F.S.L., Ex.44, and from the clothes of the present appellant and the deceased, the blood of deceased was found which is of “B” Group. The blood of deceased was also found on Muddamal knife and we have also considered the Panchnama of recovery of muddamal weapon. 16.From the oral as well as documentary evidence led by the prosecution before the trial Court referred to above, the trial Court has held that this is a case of murder. It has come on record during the cross examination of complainant -Shardaben Rameshbhai(P.W.1) and the husband of complainant – Ramesh Fakirbhai (P.W.3) that the deceased was involved in one Criminal case. The deceased ran away with daughter of one Mr. Patel and a criminal case was registered against him and due to criminal case, he was debarred from CR.A/414/2001 12/20 JUDGMENT service. From the cross-examination of the complainant, it has also come on record that prior to the incident, the deceased had also ran away with one another lady, named, Kantaben of the same caste and the said case was settled in their caste Panch. It has also come on record that the deceased was always consuming liquor and he was habitual for the said act and even at the time of visit of the present complainant, prior to the incident, at the scene of offence, the deceased was in a drunken position and there was hot discussion and dialogs between the appellant and deceased and in presence of the complainant the appellant was persuading to arrange his marriage and the deceased was denying. The said story was also revealed in oral evidence of P.W.3. 17.It is a natural belief of all human being that a person who is under the influence of alcohol has no control on his tongue as well as on his behavior. A bachelor son, who is of a marriageable age can only request his father for his marriage and the father denying the same under the influence of alcohol if uses filthy language to his own son, then it can cause provocation to a young man. 18.The question of suddenness of provocation presents little difficulty in practice. The Court has to decide on the evidence whether the CR.A/414/2001 13/20 JUDGMENT accused acted on the impulse of the moment and while his passion were still out of control or he had time to cool down and his decision to kill the deceased was deliberate ? From the oral evidence of star witnesses – complainant (P.W.1) and witness Ramesh Fakirbhai – P.W.3 (Ex.16) we have found that the deceased was under the influence of alcohol and when the appellant – accused requested him to arrange his marriage the deceased got excited and hot exchange of word were made out from both the side and in a hot temperament the incident in question took place. Mr. Supehia, therefore, contended that the case of the appellant – accused is required to be considered and he may be convicted and sentenced for the offence punishable under Part- II of Section 304 I.P. Code, instead of Section 302 I.P. Code as awarded by the trial Court. We are of the opinion that before Exception-I can be invoked, the accused must establish the circumstances, viz. (i) there was a provocation which was both, grave and sudden; and (ii) such provocation had deprived the accused of his power of self-control, and so he had caused the death of the victim. The whole doctrine relating to provocation depends on the fact that it causes, or may cause, sudden and temporary loss of self-control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negative. Consequently, where the provocation inspires an actual CR.A/414/2001 14/20 JUDGMENT intention to kill or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. 19.In our view the provocation in law consists of mainly three elements, viz. (i) the act of provocation; (ii) the loss of self-control, both, actual and reasonable; and (iii) the retaliation proportionate to the provocation. The “provocation” to reduce the crime of murder to culpable homicide must be such as temporarily deprives the person provoked of the power of self control, as the result of which he commits the unlawful act which causes death. 20.It is true that under exception the provocation must be grave and sudden and must have by its gravity and suddenness deprived the accused of the power of self-control. In other words, it ought to be distinctly shown not only that the act was done under the influence of some feeling which took away from the person doing it all control over his actions but that feeling had an adequate cause. In absence of such proof, the atrocity of the offence will not be mitigated and the offender will not be able to escape the legal consequences of his act. The test to see whether the accused acted under the grave and sudden provocation, whether provocation given was in the circumstances of the case likely to cause a normal reasonable man to loose control CR.A/414/2001 15/20 JUDGMENT of himself to the extent of inflicting the injury or injuries that he did inflict. Where, according to the defence version, the occurrence took place while the deceased refused the request made by the appellant – accused for arranging his marriage and that gave such sudden and grave provocation to the appellant – accused and he lost power of self control and assaulted the deceased, it can be held that the defence version was probable and by virtue of this exception the appellant could only be convicted under Section 304, Part-II I.P. Code. 21.We have considered that a reasonable person placed in the same position as appellant – accused would have behaved in the manner in which he behaved on receiving the same provocation. It appears that the action of the accused was out of all proportion to the gravity or magnitude of the provocation offered, the case will not fall under the exception when the Court is able to hold that provided the alleged provocation is given, every normal person would behave or act in the same fashion as the appellant – accused in the circumstances in which the accused has acted. It is true that the said act must be done under the immediate impulse of provocation. The word “normal” denotes a relative quality. The normal man is not the universal man but every man as conditioned by his own peculiar surroundings. CR.A/414/2001 16/20 JUDGMENT 22.Perusing the evidence of the prosecution we have found that the “provocation” had came from the victim. If the provocation has not been given by the deceased the exception would not apply and the accused cannot claim the benefit of exception. To put it simply, the provocation must come to the accused, the accused should not go to the provocation. If the offender himself invites the provocation or goes in search thereof, he cannot take shelter of this Exception. 23.In our view the test of provocation contemplated by Exception-I is that of “reasonable man”. In order to decide whether the provocation was “grave and sudden” so as to deprive the offender of his self-control, the court should consider all the attending circumstances, such as condition of the mind of the offender, mode of resentment, weapon used by him, part of the body chosen for attack, etc. It is true that it is a principle that burden of proving circumstances covered by Exception-I is on the accused, when the prosecution prima-facie proves that the act was committed by the accused which had resulted in the death of the deceased and the accused pleads that the case falls within one of the Exceptions, it is for him to prove the same. 24.We have heard learned Advocate Mr. Supehia for CR.A/414/2001 17/20 JUDGMENT the appellant – accused and we have gone through the Further Statement of appellant – accused recorded under Section 313 Cr.P.C. by the trial Court. Mere fact that accused adopted defence of denial in his examination under Section 313 Cr.P.C. without referring to Exception-I of Section 300 will not be enough to deny him the benefit of that Exception, if the Court can cull out material from the evidence pointing to the existence of circumstances leading to that exception. It is not the law that failure to set up such a defence in further statement would foreclose the right of the accused to rely on the Exception once and for all. 25.From the oral evidence of the complainant, eye witnesses as well as the circumstantial evidence produced by the prosecution it is established that during the quarrel between the deceased and the present appellant – accused there was hot exchange of abusing. It is also on record that at the time of incident the deceased was in a drunken position. He gave abuses to the appellant when he requested to arrange his marriage and during that exchange of abuses and hot dialog due to provocation given by the deceased in a drunken position the appellant got excited and he was not in a position to control himself and so he came with knife and inflicted knife blow on the deceased. CR.A/414/2001 18/20 JUDGMENT 26.In the case of LACHMAN SINGH v/s. STATE OF HARYANA, reported in (2006) 10 SCC 524, the Hon'ble Apex Court has held that “occurrence takes place in course of sudden quarrel, conviction of appellant is required to be altered from section 302 to Section 304, Part- I”. In the case of HARENDRA NATH v/s. STATE OF ASSAM, reported in AIR 2007 SCW 4631 the Hon'ble Supreme Court have set out the distinction between “murder” and “culpable homicide” not amounting to murder and altered the conviction recorded under Section 302 to Section 304, Part- I I.P. Code. 27.We are of the opinion that if the substratum of prosecution case remains unaffected and remaining part of the evidence is trustworthy the prosecution case should be accepted to the extent it is considered safe and trustworthy. 28.We have considered the submissions advanced by the learned Advocates appearing for the parties and perused the impugned Judgment and Order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned Advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Hon'ble Supreme Court while dealing with criminal CR.A/414/2001 19/20 JUDGMENT appeals, this Court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 29.We have considered and discussed the whole evidence of the prosecution and also gone through the documents relied upon by the prosecution and, in our opinion, in light of the oral as well as documentary evidence it is established that the