CR.A/904/2001 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 904 OF 2001 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ====================================== 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 ? ====================================== ATMARAM GIRDHARKUMAR (MARATHI) - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ====================================== Appearance : Mr. Hriday Buch for Appellant(s). Mr. R. C. Kodekar, APP for Respondent(s). ====================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date of Order : 05/05/2008 & 15/05/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.H.SHUKLA) CR.A/904/2001 2/19 JUDGMENT The present Criminal Appeal is directed against the judgment and order dated 3rd October, 2001 in Sessions Case No. 43 of 2001 by the learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad, recording the conviction of the appellant-accused for the offence under Section 302 of the Indian Penal Code, 1869 (hereinafter referred to as 'IPC' for short) and imposing the sentence of life imprisonment. 2. The facts of the prosecution case, briefly summarised, are that the complainant-Ushaben Prakashbhai Marathi, had been staying with the deceased husband – Prakashbhai Marathi and children in the hutments known as Sanjaynagar Hutments, Naranpura, Ahmedabad. The case of the prosecution, as unfolded, is that on 27th October, 2000 at about 10:30 p.m. when the complainant was sleeping with the children and her deceased husband in the hutments, the accused, who also happened to stay there, came there and called the husband of the complainant outside stating that he had intervened to save one Sanjay and started abusing her husband. It is alleged that when she came out of the hutments, she found that the accused was enraged and he inflicted a blow with some weapon and caused injury to the deceased husband, as a result of which her husband fell down there. Thereupon, the mother-in- law, who was also sleeping outside, came there and people also gathered there due to hue and cry and the deceased husband was removed to the CR.A/904/2001 3/19 JUDGMENT Civil Hospital in a rickshaw, where the doctor, after examination, declared him dead. Therefore, the complainant-wife lodged the complaint with Ghatlodiya Police Station. 2.1 On the basis of the complaint, the offence came to be registered as I-C. R. No. 292 of 2000. After the investigation was over, the charge-sheet was filed and as the offence under Section 302 of IPC is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Thereafter, the learned Additional Principal Judge framed charge against the accused for the offence under Section 302 of IPC and proceeded with the trial. 2.2 In order to bring home the charges levelled against the accused persons, the prosecution has examined the following eight witnesses: P.W. Name Status Exh. 1 Ushaben Prakashbhai Wife of deceased 6 2 Jitendra Madhubhai Panch Witness 9 3 Anilbhai Mahadevbhai Marathi Panch Witness 10 4 Ashokbhai Madhubhai Panch Witness 11 5 Sanjay Bhikhabhai Patel Panch Witness 12 6 Ganpatbhai Punamchand Marwadi Panch Witness 13 7 Dr. Narendrakumar G. Joshi Medical Officer, Civil Hospital, who performed post mortem of the deceased 14 8 Dipubha Dhirubha Raijada Investigating Officer 16 CR.A/904/2001 4/19 JUDGMENT The prosecution has also produced voluminous documentary evidence with the list at Exh.5, which shall be referred to in this judgement as and when required. 2.3 After recording the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge recorded further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (“the Code” for short). In the further statement, the accused has denied the charges levelled against him. 2.4 After hearing the learned Public Prosecutor as well as the learned Advocate for the defence, the learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad, convicted the accused for the offence under Section 302 of IPC and sentenced him to undergo imprisonment for life. It is this judgment, which is challenged, on the ground, inter alia, that the conviction for the offence under Section 302 of IPC has been recorded erroneously as there was no intention or premeditation and the incident has arisen out of a quarrel on the spur of the moment. 3. Mr. Hriday Buch, learned Advocate for the appellant- accused, fairly conceded that he does not dispute about the incident having taken place as well as the authorship of the injury caused to the CR.A/904/2001 5/19 JUDGMENT deceased husband of the complainant. However, he strenuously urged that even if the evidence of the prosecution is accepted at the face value, even then, the case would be covered by Section 304, Part-I and not Section 302 of IPC. For that purpose, he referred to the complaint filed by the complainant, Ushaben Prakashbhai, at Exh.7 and her deposition at Exh.6 and emphasised that, as deposed by her, when they were sleeping in the hutments, the accused, who happened to be a rickshaw driver, is said to have come there and called the deceased husband and there was a quarrel and thereafter, when she came out, she saw that a blow was inflicted on the deceased husband, as a result of which, he fell down. Thereafter, he was removed to the Civil Hospital, where he was declared dead. Mr. Buch submitted that it is evident from the complaint at Exh.7 and deposition of the complainant-wife at Exh.6 that a quarrel had taken place and due to anger, single blow was inflicted with the help of screw driver, which has resulted into death of the deceased. He, therefore, submitted that there is no evidence that there was any previous enmity in between the accused and the deceased and that there was no intention on the part of the accused to commit the offence under Section 302 of IPC. He also emphasised that as the accused was a rickshaw driver, he was having the screw driver with him in the rickshaw and during the quarrel, when he was enraged, he inflicted a blow with the screw driver. Meaning thereby, it is not even the case of the prosecution that he was equipped with any such weapon, which would CR.A/904/2001 6/19 JUDGMENT lend support to the submission that there was no premeditation, there was no intention and he was, therefore, not armed with any deadly weapon like knife, etc. He also referred to the post mortem report at Exh.15 and referring to Column-17, he pointedly referred to the fact that there is only one stab injury on the left side of the chest. Mr. Buch submitted that if there was no enmity and no intention can be attributed, the conviction recorded by the learned Additional Sessions Judge for the offence under Section 302 of IPC is erroneous and it could have been for the offence under Section 304, Part-I of IPC. For that purpose, he also referred to the provisions of Section 304, Part-I of IPC and submitted that the case would be squarely covered by the exception. He also referred to the judgement of the trial Court and submitted that as observed and held on the basis of the deposition of the complainant- wife, he does not challenge the conviction and confine the challenge in the present appeal only qua alteration for conviction of the offence under Section 304, Part-I instead of Section 302 of IPC. He referred to the observations of the learned Additional Sessions Judge in paragraph 16 and submitted that even the Court below has also observed, referring to the deposition of the complainant wife (PW-1) at Exh.6, that there is nothing on record that there was any previous enmity between the complainant and the accused or between the accused and the deceased. Therefore, he strenuously submitted that even if the case of the prosecution is accepted at the face value and the conviction is CR.A/904/2001 7/19 JUDGMENT maintained, still at the most it would fall under Section 304, Part-I and not Section 302 of IPC. He submitted that the conviction under Section 302 of IPC may be altered into under Section 304, Part-I of IPC. He strenuously submitted that the instant case is a case where single blow was inflicted and as there was a sudden quarrel, there was no motive, much less intention, for committing the offence and the learned Additional Sessions Judge could not have recorded the conviction under Section 302 of IPC and it should have been under Section 304, Part-I of IPC. He, therefore, prayed that the conviction may be altered to the offence under Section 304, Part-I instead of Section 302 of IPC. 4. Mr. R.C. Kodekar, learned Additional Public Prosecutor, has submitted that this Court may consider the fact that the accused had called the deceased husband of the complainant at night outside from his hutment and thereafter, the quarrel took place. There is no evidence that there was any shout or any altercation or exchange of abuses and therefore, the accused, who came at night and called the deceased, outside from his hutment and inflicted the blow with the screw driver on the vital part of the body, i.e. left side of the chest, resulting into death, would fall under Section 302 of IPC. He also referred to the deposition of the complainant-wife at Exh.6, complaint at Exh.7 and post mortem CR.A/904/2001 8/19 JUDGMENT report at Exh.15. Referring to the deposition of Dr. Narendrakumar Joshi, PW-7 at Exh.14, he submitted that he has deposed that the injury was caused on the chest on the left side near the left ventricle, which was a stab wound and it was sufficient to cause death in ordinary course of nature. He has identified the muddamal screw driver and has specifically deposed that such injury could be caused with the screw driver. The learned APP has, however, conceded that even as per the deposition of the complainant-wife at Exh.6, there is nothing on record that there was any previous quarrel or enmity between the deceased and accused. 5. In light of these rival submissions made by both the sides and on re-appreciation and scrutiny of the material and evidence on record, it is required to be considered that whether the judgement and order of the learned Additional Sessions Judge calls for interference. Further the submission made by Mr. Hriday Buch, learned Advocate for the appellant, emphasising that even if the case of the prosecution is accepted at the face value, it would fall under Section 304, Part-I and not under Section 302 of IPC, is required to be appreciated and considered. For that purpose, the complaint at Exh.7 and deposition of the complainant-wife, PW-1, at Exh.6, is required to be appreciated. The complainant has stated in her deposition at Exh.6 that on the day of the incident, when she was sleeping with the children and the deceased CR.A/904/2001 9/19 JUDGMENT husband, the accused had come there and called him outside. The accused is said to have abused the deceased husband and thereafter, when she came out on hearing such abuses, the accused is said to have inflicted a blow with the screw driver on the chest and therefore, the deceased fell down. Thereafter, people had gathered on hearing the hue and cry and the deceased was taken to the Civil Hospital in a rickshaw, where he was declared dead. In the cross examination, she has specifically clarified that on hearing the shouts of the people that who had caused injury to the deceased husband, she came out. She has clarified that when the accused shouted and called the deceased husband outside, she had also come out and she saw the accused inflicting the blow to the deceased. She has also supported the version stated in her complaint at Exh.7. The post mortem report at Exh.15 also refers to one stab injury and the deposition of Dr. Narendrakumar Joshi at Exh.14 clearly refers to the fact that such injury could be caused with the screw driver and it was sufficient to cause death. Therefore, in the background of this evidence, the submission made by Mr.Buch that the offence would be covered under Section 304, Part-I and not Section 302 of IPC is required to be appreciated. 6. The distinction between murder and culpable homicide not amounting to murder has to be decided with reference to mens rea which again consists of the mental attitude. Therefore, when the case falls CR.A/904/2001 10/19 JUDGMENT under Section 300 of IPC, the stage comes to consider the exceptions enumerated in Section 300 since in that case, the offence would still be culpable homicide not amounting to murder. It is at this stage one is required to consider both the aspects of mens rea i.e. intention and also the knowledge whether such an act was done with an intention to cause such bodily injury as to cause death or with the knowledge that such an injury is likely to cause death. However, Exception 4 to Section 300 would be applicable where the knowledge of the offender as to the probability of the death of a person resulting from injury be caused could be inferred. This aspect has been very succinctly discussed by the Honourable Apex Court, laying down guidelines in a judgment in the case of State of Andhra Pradesh v. Rayavarapu Punnaya & Anr., reported in AIR 1977 SC 45. The Honourable Apex Court has deliberated as to when the case would be covered under Section 302 and when it would fall under Section 304, Part I. It has been observed thus, “whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages.” Analysing on this aspect, it has been further observed that, “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 CR.A/904/2001 11/19 JUDGMENT Code.” 7. These guidelines have also been followed in a subsequent judgment of the Honourable Apex Court in the case of Abbas Ali v. State of Rajasthan, reported in (2007) 9 SCC 129. The Honourable Apex Court, in this judgment, has also discussed and deliberated on this aspect and observed that, “The academic distinction between “murder” and “culpable homicide not amounting to murder” has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of Sections 299 and 300.” The comparative table has also been given. The Court has further observed, “.......The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word “likely” in clause (b) of Section 299 conveys the sense of CR.A/904/2001 12/19 JUDGMENT probability as distinguished from a mere possibility.” Therefore, Exception 4 applies to a case of dangerous act without intention to cause such bodily injury to any person, but the knowledge that such an act is likely to cause such bodily injury resulting in death could be presumed. Therefore, it may apply to an act in which there is no intention to cause death, but the act is done with the knowledge and in the circumstances that it is likely to cause death. In other words, the fourth Exception contemplates doing of an imminently dangerous act or causing such bodily harm which is likely to result in death. 8. A useful reference could be made to the judgment of the Honourable Apex Court in the case of Ramesh Krishna Madhusudan Nayar v. State of Maharashtra, reported in AIR 2008 SC 927. The Honourable Apex Court, referring to the aspect whether it was a murder or whether it would fall in any of the Exceptions to Section 300 of IPC, has discussed and observed as under: “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.” Further, it has been observed, CR.A/904/2001 13/19 JUDGMENT “The Fourth Exception of Section 300, IPC, covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do.......” It has been further observed, as to when Exception 4 could be invoked enumerating the conditions, which must be fulfilled, that is, “(a) if death is caused without premeditation; (b) in a sudden fight; (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It has to be noted that the fight occurring in Exception 4 to Section 300, IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning... It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend CR.A/904/2001 14/19 JUDGMENT upon the proved facts of each case.” Therefore, it has to be read with Section 304, Part I of IPC that the injury is caused without any intention, but it is done with the intention of causing such bodily injury as is likely to cause death. Therefore, in the facts of the present case, where the incident is said to have taken place, the accused is alleged to have picked up the weapon which was readily available with him like a screw driver and he happened to be a rickshaw driver who could have a screw driver readily available with him and inflicted a blow on the deceased. Therefore, the question would be whether it would lead to an inference about any premeditation or intention that he had inflicted such a blow with an intention to cause death. The manner in which the incident has occurred and the fact that a single blow is given not with any weapon but with a screw driver, which is readily available, would suggest that such injury was inflicted with the screw driver in the heat of passion and, therefore, the case would be one not falling under Section 302, but culpable homicide not amounting to murder as provided in Exception 4 to Sec. 300 IPC which clearly provides that “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.” The explanation to this exception also clearly provides that “it is immaterial in such cases which party offers the provocation or commits the first assault.” CR.A/904/2001 15/19 JUDGMENT 9. It is in these circumstances that the evidence is required to be appreciated and scrutinised for the purpose of appreciating the submission that whether the conviction under Section 302 can be altered to the offence under Section 304, Part-I, read with Exception 4 to Section 300 of IPC. As discussed above, if a person commits an 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 commits such an act without any excuse or risk, then, the case would be covered under Section 304, Part-I of IPC inasmuch as he may not have intention to cause murder for the offence under Section 302, but, he has caused injury with the intention and knowledge that probably such injury is likely to cause death. Therefore, the weapon used by him and the manner of the incident clearly suggest that there was no intention or premeditation on the part of the accused and also it could not be inferred that he had the knowledge also. However, when the injury is caused to the deceased by inflicting the blow with the screw driver at night with an intention to cause such bodily injury which he could have known that it is likely to cause death, it would fall under Section 304, Part-I of IPC. 10. The reliance placed by Mr. Buch on the deposition of the complainant at Exh.6 and the observations made in the impugned CR.A/904/2001 16/19 JUDGMENT judgement that there was no previous enmity between the accused and the deceased, would also clearly suggest that there could be no intention on the part of the accused to cause such an injury and the incident has taken place in a quarrel and in the heat of passion. 11. A useful reference can be made to the observations of the Honourable Apex Court in the case of Ajit Savant Majagavi vs. State of Karnataka, reported in AIR 1997 SC 3255, which read as under: “(e) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. (g) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.” 12. A useful reference can also be made to the observations of the Honourable Apex Court in the case of Suresh Kumar vs. State of Himachal Pradesh, reported in 2008 AIR SCW 2292, referring to Exception 4 of Section 300 of IPC. The Honourable Apex Court, while CR.A/904/2001 17/19 JUDGMENT considering the applicability of Exception 4 of Section 300, has made the observation and in the facts of that case, there was a sudden quarrel with regard to singing and dancing in the marriage party and protest was raised, which resulted into incident that the accused took out the knife from the pocket and struck a blow on the stomach of the deceased, which resulted into death. The Honourable Apex Court has altered the conviction under Section 302 to the offence under Section 304, Part-I of IPC. 13. As