This appeal arises out of the judgment and order of conviction and sentence rendered by the Sessions Court, Banaskantha at Palanpur, in Sessions Case No.9 of 2006, on 12/06/2006, whereby the appellant - accused was convicted for the offences punishable under Sections 302, 504 and 506 (2) of the Indian Penal Code. For the offence punishable under Section 302 of the IPC, the appellant-accused was sentenced to undergo life imprisonment and to pay a fine of Rs.500/-, in default, to undergo S.I for six months. No separate sentence qua rest of the offences has been imposed. 2. The facts of the prosecution case, in nutshell, are that on 18/08/2005 at about 20.45 hours, the accused went to the shop of complainant – Vashrambhai Raghnathbhai Patrod and asked for tobacco packets (Gova Gutka) from the complainant. The complainant had given tobacco packets and asked for money, but the accused administered threat of killing to him, and at that time, deceased – Shamalbhai Parthibhai Patel had intervened to save the complainant, and, therefore, suddenly the accused got excited, took out a knife from his waistband and gave a knife blow on left side of chest of the deceased with an intention to kill him and by causing severe injuries, committed his murder. Thereafter, the accused had run away from the place of incident. The deceased was taken to hospital with the help of other persons, who were present at the scene of offence, where he was declared dead by the hospital personnel. The complaint was filed, offence was registered and investigated.
2.1 Having found sufficient material to link the accused with the crime, charge-sheet was filed in the Court of learned Judicial Magistrate, Palanpur, who, in turn, committed the case to the Court of Sessions and Sessions Case No.9 of 2006 came to be registered. Charge was framed at Exh.3 to which accused pleaded not guilty and claimed to be tried. The Sessions Court after recording the evidence came to the conclusion that the charges levelled against the accused were proved and, therefore, recorded conviction of the accused as stated in paragraph No.1 herein above and hence this appeal.
3. Heard learned Advocate Mr.N K Amin assisted by Mr.Rahul Dholakia, for the appellant and learned Additional Public Prosecutor Mr.Dabhi for respondent – State.
4. Mr.Amin, learned advocate for the appellant has assailed the judgment of the trial Court mainly on the ground that the prosecution has failed to establish the exact place of incident and, therefore, in absence of that, the genesis of the entire incident would come under the shadow of doubt, which makes the accused to be entitled for acquittal. Alternatively, he submitted that looking to the entire incident, the accused had no intention to kill the deceased and, therefore, he would be punished with lesser sentence, as the case would fall under the provisions of Section 304 of the IPC.
4.1 While elaborating his arguments, insofar as it relates to place of incident, he has taken this Court through the evidence of complainant-Vashrambhai and the evidence of witness – Galbabhai Chehrabhai Patel, who are eye-witnesses to the incident, as well as the Panchnama (Exh.27). He has submitted that as per deposition of complainant- Vashrambhai, the accused had entered the shop and gave knife blow to the deceased inside the shop. Similar is the say of another witness PW No.2 – Faljibhai Nathubhai. However, if the Panchnama of scene of offence is seen, no bloodstains were found from the shop. He submitted that, in fact, blood of the deceased was found at the distance of 15' away from the shop of complainant. Whereas, the prosecution witnesses have deposed that the incident took place inside the shop.
4.2 He has further submitted that if the deposition of PW No.2 – Faljibhai Nathubhai is examined, there is improvement in his version to the effect that deceased – Shyamalbhai fell near the shop and deceased was brought on the road with the help of complainant. This improvement and contradiction are proved in his cross-examination wherein he admitted that he had not stated same thing before the Police while his statement was recorded.
4.3 He has further submitted that in absence of bloodstains in the shop, the prosecution has failed to establish the genesis of the entire incident, insofar as it relates to actual place of the incident.
4.4 So far as imposition of lesser punishment is concerned, he has submitted that there was altercation between the deceased and the accused, pursuant to which, the accused got excited and gave only one knife blow to the deceased and, therefore, the case would fall under Exception-4 to Section 300 of the IPC. He has further submitted that looking to the injuries sustained by the deceased, the appellant-accused had no intention to kill the deceased, which would, at the most, fall the case under Section 304 of the IPC. In support of his submissions, learned Advocate for the appellant has placed reliance on the decision rendered in the case of Gurmukh Singh Vs. State of Haryana reported in 2010 CR.L.J. 450, and submitted that the facts of that case and the facts of the case on hand are similar and, therefore, the accused is entitled for lesser punishment and conviction and sentence of the accused may be altered from one under Section 302 of the IPC to one under Section 304 of the IPC.
5. On the other hand, learned Additional Public Prosecutor Mr.Dabhai has opposed this appeal and submitted that the reasons assigned by the trial Court are well-sound and prosecution was successful in proving the case beyond reasonable doubt. He submitted that there is no inconsistency about the place of incident where the deceased was injured. The incident took place at the shop of deceased who was running this shop with his cousin. He submitted that appellant – accused was headstrong person, he had demanded packets of tobacco and after getting the same, he had refused to give money and acted in highhanded manner. Deceased had tried to resolve the dispute by asking accused to come on next morning and to leave the place, but on the contrary, accused got excited, took out a knife from his waistband and inflicted a blow on the left side of the chest of deceased, who succumbed to the injuries.
5.1 Mr.Dabhi, learned APP, submitted that though there is only one blow given by the appellant – accused, if the injuries caused to deceased are examined, the same was given with a full force and on a vital part of the body and, therefore, the appellant – accused is not entitled to lesser punishment, as canvassed by learned Advocate for the appellant. In support of this submission, learned APP has placed reliance in the case of Manubhai Atabhai Vs. State of Gujarat as reported in (2007) 10 SCC 358 and submitted that while deciding the case for murder not amounting to culpable homicide, the Court ought to have perused the nature of intention, which can be gathered from the kind of weapon used and the body part on which it was inflicted. He has relied upon another decision in case of State of Karnatak Vs. Vedanayagam as reported (1995) 1 SCC 326 and submitted that infliction of single injury resulting in death will not necessarily reduce the offence to culpable homicide not amounting to murder. If the injury is found to be sufficient in the ordinary course of nature to cause death and there is absence of quarrel or free fight between the deceased and accused, the case would fall within the definition of Clause – thirdly of Section 300 of the IPC.
6. We have heard learned Advocates appearing for the respective side and have gone through the record and proceedings as well as depositions of prosecution witnesses and the documentary evidence produced by the prosecution before the Court below.
7. If the evidence of complainant is examined he has deposed that the accused came to his shop and asked for Gova Gutka. He gave Gova Gutka, however accused did not give money and replied rudely. In the meantime, accused started abusing and threatened that he would commit his murder and would not leave him. The witness has further deposed that in the meantime his brother – Shyamal asked Ashokji that whatever he wanted to do, that might be done in the next morning and asked him to go home. In the meantime, the accused took out a knife from his waistband and inflicted a knife blow on the left side chest of Shyamalbhai. During the cross-examination, defence has put several questions about the place of incident where the accused gave a knife blow and this witness has deposed that on receiving injuries, his brother – Shyamal had fallen down at the distance of 8' away from the shop and was profusely bleeding. Thereafter, with the help of other persons, took his brother to the hospital. During cross-examination, the defence could not change the fact of the incident having taken place outside the shop, as suggested by Mr.Amin learned Advocate for the appellant-accused.
8. It is true that this witness has stated that deceased was preparing list near the counter and all of them were working inside the counter. However, if the area of the shop is seen, it is 15'x7'. Whereas, the size of counter is 5' width. Therefore, the argument as advanced by Mr.Amin that when the deceased was working inside the counter, it was not possible for the appellant to give knife blow to the deceased, is not possible to believe, as there is passing way of 2' in the counter.
9. The another witness PW No.2 – Faljibhai Nathubhai, who has been examined at Exh.10, has supported the case of prosecution and has deposed that he had seen the incident and has explained the entire arrangement of the shop, in detail.
10. PW No.4-Galbabhai Chehrabhai Patel who has been examined at Exh.16 has deposed that he was present when the incident took place and the appellant – accused had demanded tobacco sachet and the accused acted in highhanded manner. Witness has further deposed that when deceased tried to resolve the dispute, accused took out a knife and gave a blow on chest of the deceased.
11. We are of the opinion that though there is inadequacy of evidence about the place of incident and as to where the deceased sustained injuries, the entire case of prosecution cannot be discarded, if the eye-witnesses are found to be natural and truthful.
12. Now, so far as the aspect of altering conviction by imposing lesser punishment is concerned, having examined the evidence of prosecution witnesses, it emerges that the accused is the only person who committed the offence. We do not find that ingredients of Exception 4 to Section 300 of the IPC would be attracted. If the evidence of prosecution witnesses are examined, the offence of murder is constituted, as the incident was not occurred suddenly. There was no sudden quarrel or fight in which the accused in heat of a moment committed the crime. In the present case, we find that it may not be a case of premeditation, but it was not a sudden fight in which the accused in a heat of passion took out a knife from his waist-band and has used knife just for sake of it. Neither it was a sudden quarrel; nor it can be said that the accused has not taken any undue advantage of the situation wherein the case would bring within the purview of Exception – 4 to Section 300 of the IPC.
12.1 The incident took place at the shop of complainant where the accused came with a knife and started quarrel and gave a knife blow on the chest of the deceased, which is a vital part of the body, which resulted into his death and, therefore, Exception 4 to Section 300 of the IPC would not be squarely applicable to the facts of the case. It cannot be said that the assailant had not taken undue advantage of situation, since he was having a knife, whereas deceased had no weapon with him.
13. Now, if the injuries caused to the deceased are seen which are quoted herein above, it can be said that accused had used maximum force in inflicting blow and, therefore, it cannot be said that there was no intention or knowledge about the result of his act. The injuries noted in the PM Note reads as under:
“A stab wound elliptical in shape on left lower chest. Placed obliquely. Length – 4 cm, maximum width at the centre was 1.5 cm. Centre of the wound was 5 cm below the line joining the nipples 2 cm from the mid-line on left side. 6 cm from the left nipple margins were clear cut with acute angles. A track is established on the left anterior thoracic wall passes laterally and upwards in the left thoracic cavity.”
14. Now, if the documentary evidence in the form of Discovery Panchnama (Exh.32) and FSL Report (Exh.47) is seen, the discovery of weapon is proved. It was discovered at the instance of accused having bloodstains on it. The size of the knife is 1.2 feet x 1.5 inch. The clothes of the accused were also discovered through Panchnama (Exh.24). All these clothes were sent to FSL for serological report. The knife discovered at the instance of accused was found having bloodstains of the group of deceased.
15. The decision in case of Gurmukh Singh (Supra) is not applicable to the facts of the present case because in that case a lathi blow was given on the head of deceased because the deceased stopped the accused from passing through the passage for which a dispute was going on between the parties. The injured died after six days and the Hon'ble Apex Court has held that there was a sudden fight and found that ingredients of Exception 4 to Section 300 of the IPC are satisfied. In the present case, as stated herein above, there was no sudden fight between the accused and deceased or provocation from the other side or free fight or any quarrel and, therefore, the accused- appellant would not be entitled to lesser punishment. So far as the decision cited by learned APP in case of Manubhai Atabhai (supra) and the decision in case of State of Karnatak (supra), we are in respectful agreement with the said decision.
16. In the result, the appeal stands dismissed. The judgment and order of conviction and sentence rendered by the learned 2nd Joint and Additional Sessions Judge, Banaskantha-Palanpur in Sessions Case No.9 of 2006 on 12/06/2006 is confirmed.
(A L DAVE, J.) (A J DESAI, J.) sompura