IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1332 of 2008 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================= ================
========================================= ================ VERSIJI AJMALJI THAKOR Versus STATE OF GUJARAT & ANR ========================================= ================ Appearance :
MR MRUDUL M BAROT for Appellant.
MS KRINA CALLA ADDL. PUBLIC PROSECUTOR for Respondent.
========================================= ================ Date : 11/10/2012
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) This appeal is at the instance of a convict under Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act and is directed against the order of conviction and consequent sentence dated November 30, 2007 passed by the Additional Sessions Judge, Patan, in Sessions Case No.34 of 2007 by which the learned Sessions Judge found the appellant guilty and imposed sentence of life imprisonment and a fine of Rs.1,000/- with the stipulation that in default of payment, the appellant should undergo further rigorous imprisonment for six months. The learned Sessions Judge further held that punishment suffered previously by the accused in the jail is to be set off from the punishment imposed. No punishment of fine was imposed separately for the offence under Section 135 of the Bombay Police Act.
2. Being dissatisfied, the convict has come up with the present appeal.
3. The following charge was made against the appellant :-
“You accused had borrowed Rs.65,000/- (Rupees Sixty Five Thousand Only) from the deceased Nadoda Patel Naranbhai Kamabhai. On 10-3-07 at 17:30 pm at village Biliya, as the deceased Naranbhai made the recovery often regarding the said money, you the accused by making scuffle with the deceased, inflicted a fatal knife blow in his chest and caused his death and thereby you the accused have committed the offence punishable U/s 302 of the Indian Penal Code within the jurisdiction of this Court.
In spite of the Notification of the Prohibition of Arms of the District Magistrate was in force on the same day, same time and on the same place, you holding a fatal knife in public, and used the same in the offence and thereby committing the breach of the Notification of Prohibition of Arms have committed the offence u/s. 135 of B.P. Act in the jurisdiction of this Court.
As you have committed the aforesaid offences in jurisdiction of this Court, I pass an order to take action against you.”
4. The case made out by the prosecution may be summed up thus:-
4.1 The complainant, namely, one Mansangbhai Kamabhai Nadoda Patel lodged a complaint vide I-CR.No.40 of 2007 stating that he came to his house from his farm at about 5.00 in the evening and thereafter, he left for keeping watch in his farm of custard and reached near the turn of Neliya of Malay. When he reached that place, his younger brother, the deceased, was going ahead at a distance of about one farm and one Thakor Versiji Ajamalji (the accused) of his village had come with him from the opposite side in the said narrow lane, he quarrelled and scuffled with his brother, the deceased. During the period he reached there by running, the accused armed with knife had inflicted a blow on the chest of the deceased and thereafter, he escaped. The deceased fell down on the ground in the narrow lane, was struggling for life and blood oozed out from his chest. Thereafter, the Sarpanch of the village was informed and the Sarpanch came along with other people at the place of occurrence. As the deceased had expired on the spot, he lodged a complaint.
4.2 After the said complaint had been registered, investigation was made by the Investigating Officer and a Panchnama of the place of incident was recorded before the panchas. An inquest was filled in, the statements of the witnesses were taken and the post mortem of the dead-body was conducted. Subsequently, on March 12, 2007 at 9-30 in the morning the accused was detained. As the accused had presented the Muddamal knife voluntarily before the panchas, the knife was seized under the discovery panchnama and thereafter, the Muddamal, i.e., the blood-stained clothes and knife were examined through FSL and the report was obtained. After obtaining certificate of Doctor, on it being clarified that death of the complainant's brother occurred due to blow of knife, the charge- sheet of the offence under Section 302 of the Indian Penal Code and Section 135 of the Bombay Police Act was filed.
4.3 During investigation, it came out that the deceased had lent Rs.65,000/- to the accused which he was not returning back and the dispute had taken place for the recovery of the same. It was settled that the amount should be returned in the evening of the day of incident and during recovery of the same, the accused had used knife on the deceased and due to that, the death occurred.
4.4 The charge-sheet had been filed against the accused, which was registered as CR No.126 of 2007 in the Court of the learned Judicial Magistrate First Class, Harij-Sami. Thereafter, as the accused was in custody, the learned JMFC, Harij-Sami provided the copies of the charge-sheet and after recording the statement of the accused passed order of committal as the case was exclusively triable by a Sessions Court. The case was accordingly transferred to the Court of Sessions Judge. The accused denied the charge and claimed to be tried.
5. At the time of hearing, the prosecution submitted oral evidence of the following 11 persons in support of its case:
6. The prosecution also produced the following pieces of documentary evidence in support of its case:-
7. The learned Sessions Judge recorded the statements of the accused under Section 313 of the Code of Criminal Procedure wherein the accused stated that the evidence against him was false and further stated as follows :-
“On the date of 11-03-2007, we went to Harij for our domestic work and was coming at Biliya village by hanging behind in jeep at about five o'clock of evening, at that time driver of the jeep suddenly braked the jeep at the bus-stand of Biliya village, therefore our hand slipped down and we dropped down. Therefore injury was sustained on the eye and forehead by the iron part of the jeep and bleeding came out of my body due to these injuries. My clothes were stained with the said blood. I do not know anything regarding this offence. The false case is filed against me.”
7.1 The accused, however, did not adduce any evidence in support of his defence.
8. As indicated earlier, the learned Sessions Judge, by the order impugned in this appeal, found the appellant guilty and passed the sentence, mentioned earlier.
9. Being dissatisfied, the accused person has come up with the present appeal.
10. Mr Barot, the learned advocate appearing on behalf of the appellant, at the first instance, tried to convince us that in the facts of the present case, the learned Sessions Judge should not have believed the evidence given on behalf of the prosecution as, according to him, those eyewitnesses were interested witnesses. Mr Barot, however, made an alternative submission that even if it is assumed for the sake of argument that the involvement of the appellant has been proved, this is a fit case where the case comes within the Exceptions pointed out in Section 300 of the Indian Penal Code and as such, the learned Sessions Judge should have inflicted punishment under Section 304 Part-I of the Indian Penal Code. He, therefore, prays for at least converting the sentence into one under Section 304 Part-I of the Indian Penal Code if we are of the view that involvement of the appellant has been proved from the evidence on record.
11. In support of his contention, Mr Barot relied upon the following decisions of the Supreme Court :-
(1) Ramchandra Dhondiba Kaware vs. State of Maharashtra reported in AIR 2009 SC 1835;
(2) Gali Venkataiah vs. State of A.P. reported in AIR 2008 SC 462;
(3) SASI alia Chalil Sasi vs. State of Kerala reported in (2000) 10 SCC 55;
(4) Santhanam vs. State of T.N., reported in AIR 2009 SC (Supp) 1085;
(5) Kanwarjeet Singh vs. State of Punjab, reported in AIR 1992 SC 2199;
(6) Tholan vs. State of Tamil Nadu, reported in (1984) 2 SCC 133.
11.1 Mr Barot also relied upon the following decisions of this Court:-
(1) Aamad @ Kalu Abdulbhai Majothi and Anr. vs. State of Gujarat reported in 1999 (2) G.L.H. 614;
(2) Devashi Ranshi @ Arsivansh Koli vs. State of Gujarat in Criminal Appeal No.939 of 2006 decided on July 3, 2012.
12. Ms Krina Calla, the learned advocate appearing on behalf of the prosecution has, however, opposed the aforesaid contentions of Mr. Barot and has submitted that in this case from the deposition of eyewitnesses, it has been well proved that it was the appellant who inflicted the knife injury on the chest of the deceased person and thus, there is no justification of reversing the finding arrived at by the learned Sessions Judge.
13. As regards the other point raised by Mr Barot that offence should be classified as one under Section 304 Part-I of the Indian Penal Code, Ms Calla contends that in this case it appears that the deceased, the creditor, was scheduled to come for the purpose of recovery of money and, at that time, the accused was ready with knife, which is totally unusual and reflects his real intention. Ms Calla further pointed out that merely because there is only one injury, for that reason alone, the case cannot come within the purview of Exception-4 to Section 300 as it was committed in a cruel and unusual way and the injury was inflicted on the chest. Ms Calla, therefore, prays for dismissal of the appeal.
14. Therefore, the questions that fall for determination in this appeal are :-
(1) Whether from the evidence on record, the participation of appellant in the act of killing of the deceased was established ?
(2) If the answer to the above question is in the affirmative, whether the appellant is entitled to get benefit of Exception-4 to Section 300 of Indian Penal Code ?
15. In order to consider the above questions, we propose to discuss the material evidence adduced on behalf of the prosecution.
16. PW-1 Manshangbhai Kamabhai, the complainant, is one of the eyewitnesses. In his examination-in-chief, he, in detail, gave the narration of the incident that had taken place in his presence. According to this witness, he was 25 steps behind the deceased and in his presence, the accused had inflicted a knife blow to his brother by coming out of a small canal. According to this witness, he ran towards his brother and by that time, the accused had run away. According to this witness, when he went near his brother; he was struggling for life. He tried to carry his brother, but he could not do so and at that time, one Vinubhai, the Sarpanch of the village, had passed through that place. Vinubhai had brought some people but by that time, the deceased had died. He further stated that his brother demanded Rs.65,000/- from the accused which he had lent to him and there was a quarrel on account of that reason in the earlier part of the day. It was at that time decided that the accused would return the money in the evening at 5-30 hours and, therefore, his brother had gone to receive the money.
17. In his cross-examination, he stated that he and his brother had different land and different farming. A detailed cross-examination was made of this witness and he reiterated his statements made in the examination-in-chief that the incident occurred at a time when he was 20 to 25 steps away from the incident, and first of all, there was a scuffle between the accused and the deceased and the same might have continued for two minutes, but he denied the suggestion that the scuffle continued for 20 to 25 minutes. He also denied the suggestion that his brother used to drink too much liquor. He has also denied the suggestion that his brother, on the date of incident, had drunk liquor. He further denied the suggestion of the accused that he was not at a distance of 25 steps behind his brother.
18. PW-2 is a panch witness of the dead-body and he proved the Panchnama.
19. PW-3 is another panch witness of the place of incident and the dead-body.
20. PW-4 Vinodbhai Karsanbhai Sidhav is the Sarpanch, who arrived immediately after the incident.
21. PW-5 Vajubhai Pachanbhai is another eyewitness of the incident. He stated that he had 22 to 23 vighas of land and the incident occurred in his presence when he was going to see the stable along with Dineshbhai Karsanbhai. According to the witness, the accused was going 15 to 20 steps ahead of him and the deceased was going ahead of the accused. He had also stated that the accused and the deceased were having scuffle and at that time, the accused stabbed the deceased with the knife on the chest and immediately thereafter, the accused had run away. He also affirmed the statement of PW-1 that he was also present at that time and was trying to lift his brother but could not do and thereafter, the Sarpanch and other people of the locality arrived at the place of the incident. In cross-examination, he denied the suggestion that he was not an eyewitness.
22. PW-6 Danubhai Chelabhai Nadoda testified that the accused had borrowed Rs.65,000/- from the deceased and he also proved the incident of demand of money. He further stated that when the money was borrowed, the wife of the deceased was also present and six bundles of notes of 100 Rupees and other 50 loose notes of hundred were handed.
23. PW-7 Jashiben is the wife of the deceased. She was, of course, not an eyewitness but she proved the lending of money to the accused.
24. PW-8 Dr Navinchandra Joytaram Parikh is the Doctor who performed the post mortem of the deceased. In his evidence, he testified that there was one deep cut wound on the left side of the chest of the dead-body, which was of 4 cm. X 1 cm. size having cut on both sides deep upto bone, spread towards left side from right side, being oblique between ribs number 4 and 5 in tissues near the bone of middle part. According to him, the injury of external part was found bigger than internal part. On making external examination, the rib number fourth and fifth of left side was found cut. According to him, the injures were found to be ante mortem in nature. He has further stated that on internal examination, no injury was found in the head and internal part of the brain had become pale. On examining the chest, the cutting part between fourth and fifth ribs at left and internal part was found broken. The trachea and the oesophagus were pale. The right lung was pale and the border of right side of left lung and 2 x cm. of upper part were found cut upto border of internal part. There was no injury in the stomach or internal part of the stomach. According to him, the injury of column No.17 was sufficient to cause death in the ordinary course of nature. On showing the knife – Muddamal Article No.1, the Doctor opined that the injury caused to the deceased on the chest was possible by the said knife. The said Doctor faced detailed cross-examination but nothing came out to disbelieve his statements.
25. PW-9 Dr Babubhai Nathubhai Chaudhry is another Doctor, who proved the injuries on the body of the accused. It appears that abrasion of 2 X 1 cm. size in the middle part of forehead was seen and at the same time, bleeding spot was also seen. According to him, there was abrasion of 1 X ½ cm. size seen on the upper part of knee of left thigh and bleeding spot was also seen. The left eye was congested. The Doctor testified that the preliminary treatment was given to the patient and his blood was taken for examination. In cross-examination, a specific suggestion was given that injury Nos.1 and 3 were possible if someone goes by hanging on jeep and jeep stops and if he slips down at the time of getting down. He further stated that if a person dashes on the tar road, it means that he falls down and then injury on left leg is possible. By those suggestions, the accused wanted to justify his statement under Section 313 that the said injury occurred due to his falling from the jeep and he was not involved.
26. PW.10 Thakkar Pramodkumar Chandrakant is a panch witness for discovery of the knife. He faced cross-examination and nothing came out from the cross-examination which could justify disbelieving the evidence given by PW.10.
27. PW-11 is the Investigating Officer, who proved the investigation.
28. On consideration of the above evidence on record, we find that there is no reason to disbelieve the two eyewitnesses to the incident and the learned Sessions Judge, in our opinion, was quite justified in holding that the appellant was involved in the killing of the victim. It has been well established that a sum of Rs.65,000/- was due and payable by the appellant and on demand of such money, he inflicted a knife blow to the victim which proves his motive. The injury has been confirmed by the medical evidence.
29. Next, we come to the important question raised by Mr Barot that after taking into consideration the injuries on the body of the accused, we should hold that there was heated altercation and a scuffle took place, as a result, the victim was also injured and having regard to the fact that he inflicted only one injury by knife, it is a fit case for bringing the case within the purview of Exception-4 to Section 300.
30. In order to appreciate the aforesaid question, the provision contained in Exception-4 to Section 300 of the Indian Penal Code is quoted below :-
“Exception 4.- 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.
Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault.”
30.1 In order to bring the case within the purview of Fourth Exception to Section 300, the following conditions must be satisfied:-
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in the heat of passion;
(iv) the offender had not taken any undue advantage or acted in a cruel manner.
31. It appears from the evidence on record that the victim was unarmed and there was a time fixed for paying back the money in accordance with the earlier settlement in the morning. When the deceased was going to the place of the accused, the accused came and inflicted the knife injury only once, but that was of such a nature that it was sufficient to kill a human being in normal course.
32. Mr Barot by relying upon deposition that there was scuffle for about two minutes strenuously contended before us that it was a case of act done in the heat of passion and his client was also injured and thus, the case comes within the Fourth Exception to Section 300.
33. In our view, Ms Calla is right in her contention that the scuffle that continued was due to resistance of the deceased in order to save himself from the attack of the accused and in such circumstances, it cannot be said that there was any intention even on the part of the deceased to cause injury to the accused. We find that in statement under Section 313 of the Code of Criminal Procedure, the accused has stated that the injuries on his body were due to the fact that he had fallen down from a crowded jeep due to sudden brake. After such statement, in our view, his defence taken before us for the first time that he was also injured in the incident cannot be permissible. No suggestions were put to the eyewitnesses that the deceased had caused any injury to the accused. His case all along was that he was not even present at the time of incident. After taking such a plea in his defence, in our view, the plea that he was also injured in the incident is not tenable. If such plea was taken before the trial Court, the prosecution could lead further evidence to dispel such allegation.
34. In our view, having regard to the fact that the debtor after inviting the creditor for the purpose of paying off loan, used a knife and inflicted a fatal blow on the chest, cannot bring the case within the purview of Fourth Exception to Section 300 as he is now trying to take undue advantage of his own fault in spite of the fact that he acted in a cruel and unusual manner.
35. We now propose to deal with the decisions cited by Mr Barot.
35.1 In the case of Ramchandra Dhondiba Kaware v. State of Maharashtra reported in AIR 2009 SC 1836, the Supreme Court held that number of injuries is always not a determinative factor regarding applicability of section 302, IPC. In the said case, it was found that the accused and the deceased were on inimical terms and only one blow was given by a yoke in the night. According to the Supreme Court, the nature of the weapon, place where it was struck and several other relevant factors throw light on this aspect, and, considering the background facts of that case, according to the Supreme Court, the appropriate provision under which conviction should be given was Section 304 Part I, IPC.
35.1.1 In the case before us, we have already pointed out that the victim was a creditor, and a time was fixed for payment of the amount of debt, and when the creditor approached the debtor, the debtor was ready with a knife and he inflicted the knife into the chest which is a vital part of the body, knowing fully the implication of such attack. In such circumstances, in our opinion, exception 4 to section 300 is not attracted.
35.2 In the case of Gali Venkataiah v. State of A.P. reported in AIR 2008 SC 462, the Supreme Court held that the help of exception 4 could be invoked if 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. According to the Supreme Court, to bring a case within Exception 4, all the ingredients mentioned above must be found. The Supreme Court further pointed out that though the word “fight” occurring in Exception 4 to Section 300, IPC is not defined in the IPC, it takes two to make a fight and heat of passion requires that there must be no time for the passions to cool down.
35.2.1 In the case before us, we have already pointed out that creditor came with empty hands in expectation of the money lent but the debtor was eager to give answer with a knife. In such a case, if for the purpose of defending himself from the knife of the debtor the creditor tried to resist, the same cannot be termed as a ‘fight’ between the two. If we treat such act of resistance as a ‘fight’, it would amount to giving undue advantage to the accused to take benefit of his own wrong. Thus, the said decision does not help Mr. Barot’s client in any way.
35.3 In the case of Sasi alias Chalil Sasi v. State of Kerala reported in (2000) 10 SCC 55, the Supreme Court found that though some of the accused persons also sustained injuries but the injuries were so negligible and insignificant that prosecution was not obliged to explain those injuries and in that case, no material either in cross-examination of the prosecution witnesses or even by way of defence suggesting that appellant gave that blow only when some of the other accused persons had already sustained injuries on their person caused by the deceased or his party-members, and in such circumstances, the Supreme Court held that the appellant was not entitled to benefit of Section 100, IPC, but having regard to the fact that the blow was inflicted without any intention to cause death, the offence was converted to one under Part II of Section 304, IPC.
35.3.1 In the case before us, from the materials on record, we are unable to come to a finding of fact that the debtor used the knife at the chest of the creditor without having any intention of killing him, particularly when the creditor was unarmed. Thus, the said decision does not help the appellant in any way.
35.4 In the case of Santhanam v. State of Tamil Nadu reported in AIR 2009 SC (supp) 1085, the deceased who was a farm servant, had lodged a police report against the accused, who were owners of the adjoining agricultural field, for abusing and assaulting him by hand as he had protested for closure of water pipe line and at the Panchayat convened by his farm owner thereafter, the accused pulled and assaulted him with hands and after chasing him, attacked him with a wooden log on his shoulder and right forearm and head. In such a case, the Supreme Court was of the view that the proper conviction should be one under Part I of Section 304, IPC.
35.4.1 In our opinion, the fact before us is quite different inasmuch as there was relationship of debtor and creditor between the accused and the deceased and regarding making of payment of Rs.65,000/-, in the past also, there was altercation and ultimately, the evening on the day of the incident was fixed for repayment. At that point of time, if the accused, instead of paying back the amount, applied knife on the chest, in our opinion, he cannot get the benefit of the 4th exception to section 300, IPC.
35.5 In the case of Kanwarjeet Singh v. State of Punjab reported in AIR 1992 SC 2199, evidence on record indicated that the accused inflicted a blow of knife which along with the injury caused by another accused proved to be fatal. In such a case, the Supreme Court held that although the accused could not be acquitted on the ground of acquittal of the co-accused, in view of the injuries caused to accused by other party with knife, he could be held to have exercised his right of self-defence. In such a situation, the conviction was altered from one under section 300 to Part I of Section 304, IPC.
35.5.1 In the case before us, it is not the case of the appellant that it was the deceased who attacked the accused. Thus, the decision taken in the aforesaid case cannot have any application to the facts of the present case.
35.6 In the case of Tholan v. State of Tamil Nadu reported in (1984) 2 SCC 133, it was held by the Supreme Court that in the case of a single blow ordinarily sufficient to cause death, inflicted on chest of the deceased on the spur of a moment, the deceased having no previous dispute with the accused and his presence at the scene of occurrence was wholly accidental, it was a case for converting conviction from Section 302 to one under Part II of section 304, IPC.
35.6.1 In the case before us, there was previous dispute unlike the case before the Supreme Court. The presence of the accused at the scene of occurrence was also pre-arranged one and blow was not inflicted on the spur of a moment but it was premeditated, and thus, the principle laid down in that decision would have no application.
35.7 In the case of Aamad @ Kalu Abdulbhai Majothi & Anr. V. State of Gujarat reported in 1999 (2) GLH 614, the accused had stabbed the deceased during a sudden quarrel and both the accused persons also sustained injuries, and in such case, the Division Bench was of the view that no undue advantage of the situation was taken by the accused as there was no premeditation and each accused inflicted only one blow though they had sufficient opportunity to inflict many more blows, making the case convertible to one under Part I of S. 304 of IPC.
35.7.1 In our view, in the facts of the present case, it was the accused, who kept a knife with him knowing fully well that the deceased would come and demand money at a given hour, and in no time, applied the knife on the chest of the deceased. Thus, by no stretch of imagination, the present case can be brought within the purview of Exception 4 of Section 300.
35.8 We, thus, find that the decisions cited by Mr. Barot are of no assistance to his client.
36. On consideration of the entire materials on record, we, therefore, hold that it is a fit case where the conviction and sentence imposed by the trial Judge should be confirmed and, accordingly, we confirm the order impugned in all respects.
37. The appeal is, thus, dismissed.
(BHASKAR BHATTACHARYA, CJ.) (J.B. PARDIWALA, J.) zgs/-