IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1025 of 2002 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================
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 ?
================================================================ AMUBEN GOPALBHAI Appellant(s) Versus STATE OF GUJARAT Opponent(s)/Respondent(s) ================================================================ Appearance:
MR S.R. DIVETIA for MR HN BRAHMBHATT, ADVOCATE for the Appellant MS CM SHAH APP for the Opponent ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 21/10/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE K.J.THAKER) 1. The appellant-Accused has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 7.10.2002 passed by the learned Addl. Sessions Judge, Gandhinagar in Sessions Case No. 66/2001, whereby, the learned trial Judge has convicted the appellant- Accused under sec. 302 of IPC and sentenced her to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default, to undergo R/I for two months, which is impugned in this appeal.
2.1 The case of the prosecution is that on 7.6.2001,at about 11.00am in the morning,appellant had gone to King Auto Garage, where deceased Rajubhai was present and asked deceased Rajubhai that he is having illicit relation with the wife of her son, to which, deceased told her that he has no such relation with the wife of his son. Therefore, appellant took the deceased at her residence where deceased was beaten by the accused no. 4 and the present appellant had pressed his testicles due to which deceased Rajubhai had died on the same day. Therefore, a complaint was lodged.
2.2 The appellant accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the present appellant. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 66/2001.
2.3 Thereafter, the Sessions Court framed the charge below Exh. 6 against the appellant for commission of the offence under section 302 read with section 34 of IPC. The appellant-accused has pleaded not guilty and claimed to be tried.
2.4 To prove the case against the present appellant, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocate for the appellant.
1. PW-1 Dr. Jagdish Mahashankar Bhatt Ex. 12
2. PW-2 Melabhai Prahladbhai Haskodiya Ex. 16
3. PW-3 Firozbhai Majidbhai Saiyed Ex. 19
4. PW-4 Rakeshkumar Shridayal Sharma Ex. 21
5. PW-5 Parbatsainh Mangalsinh Parmar Ex. 24
2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused.
3. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.
4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 7.10.2002 held the present appellant- original accused guilty of the charge levelled against her under sec. 302 of IPC, convicted and sentenced the appellant- accused, as stated above.
5. We have heard at length learned advocate Mr S.R. Divetia for Mr. H.N. Brahmbhatt learned advocate for appellant and Ms CM Shah learned APP for the respondent-State.
6. The learned advocate for the present appellant has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellant deserves to be given the benefit of doubt and be acquitted.
7. On the other hand, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellant and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed.
accused. The oral testimony of all the witnesses are scrutinised by us and the documents go to show that the incident occurred and the death was caused, and therefore, it is proved that it is homicidal death. The prosecution has brought home the case that the accused was present at the scene of offence. We concur with the view of the learned trial Judge as far as presence is concerned.
9. Looking to the facts, it cannot be said that the case would fall within the purview of section 325 or 323 of IPC as contended by the learned advocate for the appellant and for that he has cited two decisions (1) State of Karnataka vs. Shivalingaiah reported in AIR 1988 SC 115 and (2) The State of Gujarat vs. Bai Fatima & another, reported in AIR 1975 SC 1478. The learned advocate for the appellant has contended that the appellant- ori. Accused no. 1 is not the only person who had inflicted the blow, but it could have been a blow inflicted by Vishnubhai – ori. Accused no. 4 and Vishnubhai – ori. Accused no. 4 has been acquitted and there is no State appeal. It is further submitted that the learned trial Judge has exaggerated in holding that Amuben who was also injured and the incident had occurred at her home where the deceased was aggressor party. It is submitted that the learned trial Judge has exaggerated the incident by holding that she had caught hold off the testicles of the deceased and hanged which could not be believed. Looking to the totality of the facts, one aspect is clear that the deceased had gone to the house of appellant which is very clear from her own complaint and panchnama of scene of offence place at Ex. 20. As the incident occurred in the house of Gopalbhai Vaghari, and therefore, deceased being the aggressor, we hold that it was a homicidal death but the issue arises is whether it will fall within the purview of section 325, 323 or 304 Part-I or Part-II of IPC. In this case, the testicles were damaged and there was rupture of inner surface of spleen, and therefore, we are convinced that the case would fall within the purview of section 304 Part-II of IPC. The reasons are herein enumerated. The incident happened all of sudden. The grievous injuries to the deceased were not motivated nor there was motive to cause death, and therefore, it would fall within the purview of section 304 part-II of IPC in the exceptional case and this shall not be treated as precedent.
10. The learned advocate for the appellant has taken us through the entire record. Having perused the entire record, we are convinced that this is a case which falls under the category of culpable homicidal, however, the degree of the same is similar to the one in the case of Budhi Lal vs. State of Uttarakhand, reported in AIR 2009 SC 87. The conviction in the said case was altered from section 302 of IPC to 304 Part-II of IPC instead of section 300 of IPC. In this case, as distinguished from the said decision, the assault was by Axe and not by only hand. The intention cannot be said to be absent. The cause of death as narrated in the Post Mortem report is shock due to injury to testicles and rupture of spleen. Therefore, it cannot be said that the accused did not have any intention or knowledge that the injuries which she had caused by pressing the testicles which may or may not cause death. The injuries were sufficient to cause death, and therefore, we deem it fit to consider it as culpable homicide not amounting to murder. The latest decision of the Apex Court would help the accused in the case of Swarn Kaur v. Gurmukh Singh and Ors., reported in JT 2013(9) SC 439. We are unable to accept the submission of the learned advocate that there was no intention or motive. As against this, learned APP Ms. CM Shah has taken us extensively through the entire evidence and therefore, we are unable to convince ourselves that the accused is not guilty or that benefit of doubt requires to be given to her. The finding of fact reached by the learned trial Judge are so succinct, we are unable to take a different view then the one taken by the learned trial Judge, save and except that the conviction under section 302 of IPC requires to be altered to under sec. 304 Part-II of IPC.
11. Having considered minutely the evidence on record, oral as well as documentary evidence, which we have appreciated, re-appreciated and reconsidered in light of the latest decision of the Apex Court. The finding of facts as far as the death being homicidal death cannot be found any fault with. The trial Court was justified in holding the appellant guilty for the offence punishable under sec. 302, however, on re- appreciation of the facts, the provisions of section 299(b) and section 300(3) and degree of probability of death would be a determining factor. It cannot be said that the accused had any motive to do away with the deceased, however, she had a knowledge looking to the injuries, it cannot be said that she had no knowledge that the danger cause proximate to a practical certainty and such knowledge on the part of the accused was of the higher degree. The act having been committed by the accused is proved beyond reasonable doubt.
12. The residual question which arise before us whether section 302 of IPC has its application or it would be falling within section 304 of IPC.
13. This bring us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice- versa. Speaking generally, ‘culpable homicide’ sans ‘special characteristics of murder is culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognize three degrees of culpable homicide. The first is, what may be called, ‘culpable homicide of the first degree’. This is the gravest form of culpable homicide, which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
14. 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 keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
INTENTION
15. Clause (b) of section 299 corresponds with clauses (2) and (3) of Section 300.The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to section 300.
16. Clause(b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words ‘likely to cause death’ occurring in the corresponding clause (b) of Section 299, the words ‘sufficient in the ordinary course of nature’ have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. 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 probable as distinguished from a mere possibility. The words “bodily injury...” sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature.
17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the internal bodily injury or injuries sufficient to cause death in the ordinary course of nature.
18. Whether it was the accused who was perpetrator of the offence and whether it would fall within the purview of section 304 Part-II of IPC is the question before us. The injuries to testicles and rupture of spleen, it cannot be said that there was a motive to do away with the deceased as the incident has occurred in a spur of moment. The appellant is perpetrator of the offence is also proved. We concur with the view of the learned trial Judge, and therefore, we are not assigning any separate reasons as held by the Apex Court that when the appellate Court concurs no need for separate finding in catena of decisions. We have perused, scrutinised all the evidence in toto. It is the accused and the accused alone who have perpetrated the offence, however, it has occurred in a spur of moment. We hold that she would be guilty of the offence punishable under section 304 Part-II of IPC and not under sec. 302 of IPC.
19. The ingredients which are required are that there should be no motive. We are of the opinion that the culpable homicide is there, but it would fall within the provisions of section 304 Part-II The factual scenario and the manner of assault, in our considered view, the appropriate conviction shall be under section 304 Part-II of IPC, and to that extent, the appeal requires to be partly allowed.
20. In the result, this appeal is partly allowed. The impugned judgment and order of conviction and
Case No. 66/2001 is modified to the extent that the conviction and sentence imposed upon Appellant-accused under section 302 of IPC to undergo imprisonment for life, is altered and she is convicted under section 304 Part-II of IPC and sentenced to undergo 7 years imprisonment. Rest of the judgment and order of the trial Court stands confirmed. Her bail and bail bonds stands cancelled. R & P to be sent back to the trial Court, forthwith.
21. The appellant – ori. Accused is directed to surrender before the Jail Authority within a period of twelve weeks from the date of this order to serve out the remaining period of sentence, failing which, the concerned Sessions Court shall issue non-bailable warrant to effect the arrest of the appellant-ori. Accused.
22. After considering all the remissions and other aspects, if the period of 6 years, 11 months and 3 days with remissions is considered and if she is not required to surrender, the jail authority shall not insist upon her to surrender.
(K.S.JHAVERI, J.) mandora (K.J.THAKER, J)