(Per : HONOURABLE MR.JUSTICE A.L.DAVE) Present appeal arises out of a judgment and order rendered by Sessions Court, Patan on 28/06/2005 in Sessions Case No.80 of 2004 convicting the appellant for offence of murder of Muridkhan Khanji Malek and sentencing him to undergo imprisonment for life with a fine of Rs.10,000/- in default to undergo SI for one year.
2. As per prosecution case, the incident occurred on 03/09/2004 at about 10:30 a.m. at Village Varahi near Chabutara. Deceased - Muridkhan was sitting near the barber shop. The first informant and two other persons were also sitting nearby, when the appellant approached that place. Muridkhan demanded an amount of Rs.5,000/- which was due to him from the appellant on account of some injury having been caused to the mare of Muridkhan about one year prior to the incident. On demand being raised by deceased - Muridkhan, a quarrel took place between the appellant and Muridkhan. In that quarrel, the appellant is alleged to have drawn a knife from his waist-band. Deceased - Muridkhan caught hold of the knife to protect himself. There was grappling and scuffle. During this grappling, the appellant himself was hurt with the knife and, therefore, he attacked Muridkhan and in that fight, he gave three knife blows to the deceased, which resulted into his death. The appellant threw away the knife at the place and went away. Deceased
- Muridkhan was taken by others to hospital and he succumbed to the injuries on the way to the hospital. FIR was lodged by Ravaji Kanaji, on basis of which, investigation was started and, ultimately the Police having found sufficient material against the accused - appellant to connect him with the crime, filed charge-sheet in the Court of the learned JMFC, Radhanpur, who in turn committed the case to the Court of Sessions and Sessions Case No.80 of 2004 came to be registered. Charge was framed against appellant at Exh.5 to which he pleaded not guilty and came to be tried.
3. The prosecution examined first informant - Ravaji Kalaji as PW No.1 at Exh.10, witness - Rasulkhan Alikhan as PW No.3 at Exh.14 and witness - Bhikhusha Motisha as PW No.5 at Exh.16 as eye-witnesses. They have supported the prosecution case and the trial Court after appreciating the evidence by the judgment and order impugned recorded conviction and sentenced the accused - appellant as stated herein above.
4. We have heard learned Advocate Mr.Mahendra K Patel for the appellant and learned APP, Mr.Soni for the respondent - State of Gujarat. We have also examined the record and proceedings in context of rival submissions.
5. Learned Advocate Mr.Patel submitted that it will not be possible for him to assail the judgment and prayed for a clean acquittal on merits. He, however, submitted that even if the facts of the prosecution case are accepted at face value, the case would fall under Exception 4 to Section 300 of the IPC, which would be punishable under Section 304 and not 302 of the IPC. He submitted that offence of murder is not constituted, if the prosecution evidence is seen. He submitted that the incident occurred suddenly without premeditation. There was quarrel and a fight and in that transaction, the deceased died. The appellant himself also suffered injury. He cannot be said to have taken undue advantage of situation or to have acted in a cruel manner. Therefore, Exception 4 to Section 300 of the IPC would be squarely applicable to the facts of the case. He submitted that the appellant is in jail for nearly eight years. His conviction may be altered from one for the offence of murder to one for the offence of culpable homicide not amounting to murder and he may be sentenced to undergo for the period already undergone by him.
6. Learned APP Mr.Soni, on the other hand has strongly opposed this appeal. According to him, the appellant had no business to carry knife with him and had no reason to inflict as many as three blows on person of the victim. The appellant has given one blow on chest of the deceased, which has resulted into his death and, therefore, Exception 4 to Section 300 of the IPC cannot be resorted to. According to Mr.Soni, it is a clear case of murder which is properly established by the prosecution and is held to have been established by the trial Court. Therefore, this Court may not exercise its appellate jurisdiction. The appeal may, therefore, be dismissed.
7. We have given a close scrutiny to the evidence. Evidence of PW No.1, PW No.3 and PW No.5 make it abundantly clear that the deceased was sitting outside barber shop. There were several other persons sitting around, when the appellant approached the place. At that point of time, the deceased demanded Rs.5,000/- which was due from the appellant. In that dialogue, altercation took place. During the course of altercation, the appellant drew a knife from his waist-band. On seeing this, the deceased caught hold of the knife and there was a scuffle and fight. During this scuffle and fight the appellant himself also suffered injuries and, ultimately the deceased suffered fatal injuries. The appellant then threw away the knife and went away.
8. It is nobody's case that the appellant came to the place with a predesign, nor it is the case that altercation and quarrel were preplanned. Because, it is the deceased who started dialogue by making demand for money which ultimately resulted into quarrel. During the course of scuffle, the appellant himself suffered injuries which made the situation grave and ultimately the deceased suffered three injuries at the hands of the appellant. In our view, Exception 4 to Section 300 of the IPC would be squarely applicable to the facts of the present case in light of the foregoing discussions. There was no premeditation, there was an altercation or quarrel, there was a fight and ultimately the appellant cannot be said to have taken any undue advantage of the situation or to have acted in a cruel manner. This we say, because the appellant himself has suffered injuries which ultimately resulted in his giving knife blows to the deceased.
9. It is difficult to read an intention to kill or an intention to cause an injury sufficient to cause death in an ordinary course of nature. Under the circumstances, part I of Section 304 of the IPC would not be attracted, but since the appellant has given one knife blow on the chest of the injured, knowledge that it is likely to cause death can be inferred and, therefore, part II of Section 304 of the IPC would be attracted.
10. In light of the above discussion, the present appeal stands partly allowed. The judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge, Patan in Sessions Case No.80 of 2004 on 28/06/2005 for the offence punishable under Section 302 of the IPC is altered to one under Section 304 part II of the IPC and sentence him to undergo RI for a period of 08 years with no change in fine.
(A L DAVE, J.) (A J DESAI, J.) sompura Top