CR.A/403/2002 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 403 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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 ? ========================================================= VELJI RAMJI @ BHAVKUDI MAKWANA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1, MR RS PANJWANI for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/04/2008 ORAL JUDGMENT CR.A/403/2002 2/19 JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against the judgment and order dated 15.03.2002 passed by the learned Joint District & Addl. Sessions Judge, Fast Track Court, Jamnagar in Sessions Case No.1 of 2001 whereby, the appellant, original accused, was convicted for the offence punishable u/s. 302 of the Indian Penal Code [for short, “the IPC”] and Section 135 of the Bombay Police Act [for short, “the BP Act”]. For conviction u/s. 302 , the appellant was sentenced to undergo imprisonment for life with fine of Rs.1000/- while for conviction u/s. 135 BP Act, he was sentenced to undergo rigorous imprisonment for one year with fine of Rs.100/-. 2.0 The facts in brief, as emerging from the record, are as under; 2.1 Victim – Jeshabhai Arshibhai was residing alone in Village Motigop, Taluka Jamjodhpur of Jamnagar District and was earning his livelihood CR.A/403/2002 3/19 JUDGMENT by working as a Watchman in the agricultural fields belonging to the villagers. On 12.09.2000, at around 1400 hrs., while the victim was discharging his duties as a Watchman in the agricultural fields, some cattle belonging to the appellant herein crossed over to the agricultural fields of the villagers. On noticing the same, the victim made efforts to ensure that the cattle does not destroy the standing crops. 2.2 However, at that time, the appellant picked up a quarrel with the victim which, ultimately, turned into a scuffle and during that process, the appellant inflicted 'dharia' blows on the victim. As a result thereof, the victim sustained severe injuries and started to bleed profusely. An information regarding the said incident was given to the elder brother of the victim – Keshabhai Arshibhai, who was residing in the same Village, by some villagers. In the meanwhile, the victim was taken to Irwin Hospital, Jamnagar for necessary treatment. Having come to know that the victim has been CR.A/403/2002 4/19 JUDGMENT taken to the said Hospital, Keshabhai Arshibhai went to the said Hospital. During the course of treatment, the victim succumbed to the injuries at around 2345 hrs,. 2.3 On the next day, i.e. on 13.09.2000, a complaint with respect to the aforesaid incident came to be filed by the brother of the victim – Keshabhai Arshibhai before Jamnagar City Police Station. However, as the alleged offence had taken place within the jurisdiction of JamJodhpur Police Station, the same was not registered at Jamnagar City Police Station and only an entry to that effect was made in the Station Register vide Entry No.00/2000. Thereafter, the said complaint was sent to JamJodhpur Police Station and ultimately, the offence came to be registered as I – C. R. No. 49 of 2000 u/s. 302 & 504 IPC and Section 135 BP Act. 2.4 On the said complaint, necessary investigation was carried out. The Investigating Officer went to the Hospital and prepared inquest CR.A/403/2002 5/19 JUDGMENT 'panchnama'. 'Marnottar' form was filled up and necessary arrangements were made for sending the dead body for performing post-mortem. ‘Panchnama’ of the place of incident was prepared in the presence of ‘panchas’ and necessary 'muddamal' articles were also collected. 2.5 Further investigation was carried out and statements of several witnesses were recorded. As cogent evidence was found against the appellant, he was arrested on 16.09.2000. Arrest ‘panchnama’ was prepared in the presence of ‘panchas’. The clothes wore by the appellant, at the relevant point of time, were seized by way of a separate 'panchnama'. As the appellant had also sustained injuries, he was sent for necessary medical examination. An N. C. complaint was also filed by the appellant. 2.6 During the course of interrogation, as the appellant showed willingness to produce the weapon used in the commission of the alleged offence, the same was recovered by way of a CR.A/403/2002 6/19 JUDGMENT separate 'panchnama' in the presence of 'panchas'. After completing all the necessary formalities, the appellant was sent to judicial custody. The ‘muddamal’ articles so collected were sent to F.S.L. for examination along with a forwarding letter. On receipt of the F.S.L. Report, Post-mortem Report and other Reports, they were kept in the investigation file. 2.7 On completion of investigation, charge- sheet was filed before the Court of learned J.M.F.C., Jamjodhpur. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the District & Sessions Court, Jamnagar and it was numbered as Sessions Case No.1 of 2001. The case was then transferred to the learned Joint District & Addl. Sessions Judge for disposal on merits. On production of the appellant, the learned Addl. Sessions Judge framed the charge and as the appellant pleaded not guilty to the charge leveled against him, trial was conducted. CR.A/403/2002 7/19 JUDGMENT 3.0 In order to prove the guilt of the appellant, the prosecution has examined thirteen witnesses, namely, PW – 1 Dr. Dutt Rakhalchandra Gopeshchandra at Exhibit – 8 is the Medical Officer who performed the post-mortem, PW – 2 Dr. Jamnadas V. Makwana at Exhibit – 12 is the Medical Officer who gave necessary treatment to the appellant, PW – 3 Kishor Valji at Exhibit – 16 has been declared 'hostile' by the Court below, PW – 4 Keshabhai Adashibhai Sagar at Exhibit – 17 is the complainant, PW – 5 Maheshbhai V. Gadhvi at Exhibit – 27 is the P.S.I. of Jamnagar City 'B' Division Police Station, PW – 6 Dr. Shailendrasinh V. Yadav at Exhibit – 37 is the Medical Officer of Lalpur Referral Hospital, PW – 7 Juvansinh Bhikhaji Solanki at Exhibit – 34 claims to be an eye- witness to the alleged incident, PW – 8 Nathabhai Khimabhai at Exhibit – 35 is the witness who had arranged for the necessary transport for the purpose of taking the victim to the Hospital at the relevant point of time, PW – 9 Bhikha Jethabhai Pathar at Exhibit – 36 is the witness CR.A/403/2002 8/19 JUDGMENT who had taken the victim to the Hospital at the relevant point of time, PW – 10 Jadavbhai Savabhai at Exhibit – 37 is a 'panch' witness of the 'panchnama' regarding seizure of the clothes wore by the appellant at the relevant point of time as also the discovery 'panchnama', PW – 11 Jethabhai Dungar Chauhan at Exhibit – 44 is the P.S.O. of Lalpur Police Station, PW – 12 Anadubha Pratapsinh Gohil at Exhibit – 46 is the P.S.O. of Jamnagar City 'B' Division Police Station and PW – 13 Kanji Tarshibhai Kamriya at Exhibit – 50 is the Investigating Officer. 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the 'yaadi' sent by the Police Constable to G. G. Hospital, Jamnagar at Exhibit – 25, the 'yaadi' regarding entry of complaint at Exhibit – 26, the message received by City 'B' Division Police Station from P.S.O. Lalpur Police Station at Exhibit – 45, the Inquest 'panchnama' at Exhibit – 18, the 'panchnama' of the place of incident at Exhibit – 20, the 'panchnama' regarding the CR.A/403/2002 9/19 JUDGMENT physical condition of the appellant and the discovery 'panchnama' at Exhibit – 38, the extract of Entry Nos. 22/2000 & 23/2000 of the Station Diary of Lalpur Police Station at Exhibit – 21, the extract of the Station Diary of Jamjodhpur Police Station of dt. 13.09.2000 at Exhibit – 22, the extract of Entry No. 8 of 2000 of Jamjodhpur Police Station at Exhibit – 23, the copy of the Special Report at Exhibit – 24, the 'yaadi' sent to Medical Officer of Community Health Centre, Jamjodhpur at Exhibit – 13, the Medical Certificate of the appellant at Exhibit – 14, the 'yaadi' of blood sample of the appellant sent by Medical Officer, Jamjodhpur to P.S.I. of Jamjodhpur Police Station at Exhibit – 15, the 'yaadi' sent to Hanumangadh Police Station by the Casualty Department at Exhibit – 29, the Report sent to the Civil Surgeon by P.S.I at Exhibit – 10, the 'yaadi' sent to F.S.L. at Exhibit – 9, the receipt of the F.S.L. at Exhibit – 59, the Post-mortem Report at Exhibit – 11, the 'yaadi' issued by F.S.L. regarding receipt of 'muddamal' articles at Exhibit – 54, the 'yaadi' sent to CR.A/403/2002 10/19 JUDGMENT Junagadh Laboratory at Exhibit – 51, the 'yaadi' Certificate regarding jurisdiction of the Police at Exhibit – 52, the copy of the forwarding letter sent to F.S.L. at Exhibit – 53, the forwarding letter regarding examination of the 'muddamal' articles at Exhibit – 55, the F.S.L. Report at Exhibit – 56, the copy of the forwarding letter of Serological Department at Exhibit – 57, the Serological Report at Exhibit – 58, the copy of Village Form No. 8 of Village Motigop at Exhibit – 39, the extract of Village Form No. 7/12 at Exhibit – 40, the Notification of the District Magistrate at Exhibit – 41, the 'yaadi' sent to the Revenue Circle Inspector for preparing Map at Exhibit – 42, the Map prepared by the Circle Inspector at Exhibit – 43 and the extract of the Station Register of 'A' Division Police Station, Junagadh. 3.2 On submission of the closing purshis, the further statement of the appellant u/s. 313 of the Cr.P.C. qua incriminating evidence was recorded. After hearing learned counsel for the CR.A/403/2002 11/19 JUDGMENT respective parties, the learned Addl. Sessions Judge passed the impugned judgment convicting the appellant for the alleged offence in question. Hence, the present Appeal. 4.0 Mr. R. S. Panjwani, learned Advocate for the appellant, has submitted that he would not be able to assail the judgment delivered by the Court below qua the findings recorded by it as regards the presence and the role played by the appellant at the relevant point of time. 4.1 Learned Advocate has, however, submitted that if the medical evidence on record is scrutinized minutely, it would be established that the appellant had not inflicted any blow on any vital part of the body of the victim which would have resulted into the death of the victim. 4.2 He has, therefore, submitted that in the aforesaid circumstances, the appellant could be convicted u/s. 302 IPC and that the case would fall u/s. 304-I IPC and consequently, the CR.A/403/2002 12/19 JUDGMENT sentence imposed on the appellant deserves to be reduced. 4.3 Learned Advocate has relied upon a decision of the Apex Court in the case of Dharam Pal v. State of U.P. reported in 2008 A.I.R. S.C.W. 357 wherein, it has been held that where the facts of a case disclose that there was no premeditation and the fight resulted from a sudden quarrel and there appeared to be no intention on the part of the accused to cause the death of the deceased, it would amount to culpable homicide not amounting to murder and would fall within Exception 4 of Section 300 IPC. 4.4 Learned Advocate has also relied upon a decision of the Apex Court in the case of D. Sailu v. State of A.P. reported in 2008 Cri.L.J. 686 wherein, the Apex Court has elaborately stated the distinction between the 'First' and '4th' Exception to Section 300 IPC. 4.5 Learned Advocate has next relied upon a CR.A/403/2002 13/19 JUDGMENT decision in the case of Gali Venkataiah v. State of A.P. reported in 2008 Cri.L.J. 690 wherein, it has been held that where in an incident starting with the exchange of hot words, then quarrel between the two and culminating in accused inflicting knife blow on the chest of the deceased, the accused is entitled to the benefit of Exception – 4 to Section 300 IPC and accordingly, the conviction was liable to be altered to one under Section 304-II IPC. 5.0 Mr. H. L. Jani, learned APP appearing for the respondent – State, has submitted that considering the oral as well as documentary evidence available on record, it is clear that the prosecution has proved the case against the appellant beyond doubt. Hence, no interference is warranted from this Court in this Appeal. 6.0 Heard learned counsel for the respective parties and perused the documents on record. Before proceeding with the matter on merits, we would like to record the admission made by the CR.A/403/2002 14/19 JUDGMENT learned Advocate for the appellant regarding the factum of the involvement of the appellant in the offence in question. As the said aspect has not been disputed by the appellant, we are not discussing the evidence on record qua the same in detail in this judgment. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below qua the same and accordingly, record the conclusion that the prosecution has established the presence as well as the role played by the appellant in the offence in question beyond doubt. 7.0 Apart from the above, the fact that the victim died a homicidal death is also not seriously disputed by the learned Advocate for the appellant. The medical evidence on record in the form of the Post-mortem Report at Exhibit – 11 and the oral evidence of PW – 1 Dr. Dutt Rakhalchandra Gopeshchandra at Exhibit – 8 clearly establish that the victim died a homicidal death. The Court below has discussed the evidence qua the same in detail in the CR.A/403/2002 15/19 JUDGMENT impugned judgment. Hence, we do not find it necessary to discuss the same again in this judgment. We are in complete agreement with the reasonings given by and the findings recorded by the Court below qua the same and accordingly, record the conclusion that the victim died a homicidal death. 8.0 Once it has come on record that the appellant is the author behind the homicidal death of the victim, the question that is now required to be considered by us is as to whether the Court below was justified in convicting the appellant u/s. 302 IPC, as it appears from the evidence on record that there was no 'motive' behind the said act of the appellant. The prosecution has not been able to show that there was 'motive' behind the commission of the alleged offence in question. 8.1 In above view of the matter, the contention raised by the learned Advocate for the appellant that the said unfortunate incident took CR.A/403/2002 16/19 JUDGMENT place, as a consequence of a sudden quarrel, deserves consideration. In essence, the stand of the learned Advocate for the appellant is that Exception 4 to Section 300 IPC would apply to the facts of the case. 9.0 For bringing in operation of Exception – 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight, in the heat of passion upon a sudden quarrel, without the offender having taken undue advantage and not having acted in a cruel or unusual manner. In other words, the shelter of Exception – 4 can be taken if the death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. Thus, if in a given case, the aforesaid “four ingredients” find place, the accused shall get the benefit of Exception – 4 to Section 300 IPC. CR.A/403/2002 17/19 JUDGMENT 10.0 In the present case, evidently, there is no motive behind the commission of the alleged offence in question and considering the facts and circumstances of the case, it would not be wrong on our part to say that the appellant committed the said 'act' as a consequence of the “sudden quarrel” and in the heat of passion. At this juncture, it would not be out of place to state that a “sudden quarrel” implies mutual provocation and blows on each side, as there would not be any previous deliberation or determination to fight. It may be that one of them starts it but, if the other had not aggravated it by his own conduct, it would not have taken the serious turn, which, it ultimately did, meaning thereby, that there is then mutual provocation and aggravation and it would be difficult to apportion the share of blame which attaches to each fighter. 11.0 Indisputably, the alleged incident took place as a consequence of the quarrel that took place on the subject of grazing of cattle in the CR.A/403/2002 18/19 JUDGMENT agricultural fields belonging to the villagers. It is not in dispute that at the time when the incident in question took place, the victim was discharging his duties as a Watchman. During that time, as the cattle, belonging to the appellant, mistakenly entered into the agricultural fields of the villagers where the victim was discharging his duties, a quarrel ensued between them, during which process, both parties exchanged heated words. The prosecution has not been able to show that the said quarrel took place for any other reason than the one discussed herein above. 12.0 Thus, it has to be said that the alleged incident took place as a consequence of a “sudden quarrel” and that there was no premeditation. It also does not appear from the record that the appellant had taken any undue advantage or had acted in a cruel or unusual manner. Considering the background facts and the principle laid down in Gali Venkataiah's case (supra), we are of the opinion that the appropriate conviction would be in terms of Section 304-I IPC and not Section 302 CR.A/403/2002 19/19 JUDGMENT IPC. 13.0 For the foregoing reasons, the Appeal is partly allowed. The impugned judgment and order dated 15.03.2002 passed by the learned Joint District & Addl. Sessions Judge, Fast Track Court, Jamnagar in Sessions Case No.1 of 2001 is modified to the extent that the conviction recorded u/s. 302 IPC is converted into one u/s. 304-I IPC; while the conviction and sentence recorded u/s. 135 of the Bombay Police Act is confirmed. For conviction u/s. 304-I IPC, the appellant, original accused, is sentenced to undergo imprisonment for a period of TEN YEARS. Both the sentences are ordered to run concurrently. 13.1 Office is directed to send the R & P to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*