IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1271 of 2007 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== =============== 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 ?
Whether this case involves a substantial question of law as 4 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 ?
========================================== =============== NATUJI SHANKARJI THAKOR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================== =============== Appearance :
THROUGH JAIL for Appellant(s) : 1,MRS SHILPA R SHAH for Appellant(s) : 1,MR.YOGENDRA M THAKORE for Appellant(s) : 1, MR. K.P. RAVAL, ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================== =============== HONOURABLE THE CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :3/08/2012 CAV JUDGMENT (Per : HONOURABLE MR. JUSTICE J.B.PARDIWALA) This appeal is at the instance of a convict for the offence punishable under Sections 302 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 6th September, 2007, passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No. 68 of 2007. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently, sentenced him to suffer life imprisonment and a fine of Rs. 25,000/-. In default of payment of fine, the appellant was directed to undergo further rigorous imprisonment for one year.
2. Case of the prosecution:
2.1 According to the charge Exh.3 framed by the Additional Sessions Judge, Mehsana dated 24th July, 2007, on 26th March, 2007 at around 20.45 hours, the accused had placed a cot near the house of one Thakore Jayantiji Bhagaji, situated in Thakorevas of village Dhumasan, Tal. Kadi, Dist. Mehsana, right on the road, on account of which one Thakore Amratji Shambhuji picked up a quarrel and also entered into a scuffle with the accused. At that point of time, the deceased Thakore Pashaji Babaji came at the spot and reprimanded both the accused as well as Thakore Amratji Shambhuji. Thakore Pashaji Babaji requested the accused and Amratji as well to stop fighting, as a result of which the accused got enraged, took out a knife and inflicted injuries on the stomach of the deceased. This is the sum and substance of the case of the prosecution.
2.2 One Chaturji Savdhanji Thakore, a resident of the same locality where the incident occurred, lodged the first information report, Exh.8 in this regard. On the strength of the first information report, investigation commenced. The body of the deceased was sent for postmortem and postmortem examination revealed the cause of death as shock due to injuries to vital organs like liver and left lung. The inquest panchnama as well as the scene of offence panchnama was drawn and statements of the witnesses were recorded. The discovery panchnama of the weapon of offence was also drawn. The accused was arrested on the next day and a panchnama of the person of the accused was also drawn. Samples of bloodstained soil, clothes, weapon of offence were sent to the Forensic Science Laboratory for chemical analysis. At the end of the investigation, the Police filed charge-sheet against the accused in the Court of learned Judicial Magistrate First Class, Kadi.
2.3 As the case was exclusively triable by the Sessions Court, the Judicial Magistrate First Class, Kadi committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure. The Sessions Court framed charge against the accused, Exh.3 and statement of the accused was recorded. The accused did not admit the charge and claimed to be tried.
3. The prosecution adduced the following oral evidence in support of its case.
(i) PW-1, Thakore Chaturji Savdhanji, Exh.7, the first informant.
(ii) PW-2, Thakore Amratji Shambhuji, Exh. 9, eyewitness.
(iii) PW-3, Thakore Manuji Jenaji, Exh.10, eyewitness.
(iv) PW-4, Patel Bholabhai Becharbhai, Exh.11, panch witness of the scene of offence as well as jeep.
(v) PW-5, Patel Mahendrabhai Shankarbhai, Exh. 14, panch witness of the discovery panchnama of the knife.
(vi) PW-6, Babubhai Manjibhai Bodat, Exh.16, PSO
(vii) PW-7, Dr. Bakulbhai Prabhubhai Patel, Exh.23, Medical Officer, who performed postmortem.
(viii) PW-8, Sarkava Keshavji Govindbhai, Exh.26, the Investigating Officer.
(ix) PW-9, Punjabhai Babubhai, Exh.32, panch witness of the discovery panchnama of knife.
4. The following pieces of documentary evidences were adduced by the prosecution.
(a) Original first information report, Exh. 8;
(b) Scene of offence panchnama, Exh.12,
(c) Panchnama of jeep, Exh.13,
(d) Discovery panchnama of knife, Exh.15,
(e) Report of the Police Inspector, Kadi, Exh.17,
(f) Depute order, Exh. 18,
(g) Inquest panchnama, Exh. 19,
(h) Panchnama of the clothes of the deceased, Exh.20,
(i) Yadi prepared by PSO, Exh.21,
(j) Postmortem report of the deceased, Exh.24,
(k) Death certificate, Exh. 25,
(l) Yadi of Bhagyodaya Hospital, Exh.27,
(m) Extract of Vardhi of Kadi Police Station, Exh. 28,
(n) Note of forwarding muddamal, Exh. 29,
(o) Letter of FSL, Exh. 30,
(p) Panchnama of the person of the accused, Exh.31,
(q) Letter of FSL, Exh. 34,
(r) FSL Report, Exh.35,
(s) Cerological report, Exh.36
5. After completion of oral as well as documentary evidence of the prosecution, the statement of the accused person under Section 313 of the Criminal Procedure Code was recorded, in which the accused person stated that the complaint was a false one and he was innocent.
6. At the conclusion of the trial, the learned trial Judge convicted the accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced him as stated hereinbefore.
7. Being dissatisfied, the accused-appellant has come up with this appeal.
8. Oral evidence on record:
8.1 The prosecution examinedPW-1, Thakore Chaturji Savdhanji, Exh.7. This witness lodged the first information report. According to this witness, the incident occurred on 26th March, 2007 at around 8.45 in the night, near the house of one Thakore Jayantiji Bhagaji at village Dhumason. This witness in his testimony stated that on the date of the incident, there was a pooja of Chamunda Mataji in the mohallo (locality). This witness on that day had gone to Rajpura to get ghee for the purpose of the pooja ceremony. This witness left for Rajpura at around 7' O Clock in the evening and returned to Dhumason at around 8.30. This witness has deposed that while going to his house to drink water as he was thirsty, he saw that the accused was quarreling with one Thakore Amratji Shambhuji. According to this witness, the quarrel ensued between the accused and Thakore Amratji Shambhuji, as the accused had placed a cot on the road. PW-1 deposed that both the accused as well as Thakore Amratji Shambhuji entered into verbal altercations and were hurling abuses to each other. When this witness was drinking water near his house, he saw Thakore Pashaji Babaji (the deceased) arriving at the place where the cot was put by the accused. This witness deposed that Pashaji (the deceased) explained to both i.e. the accused as well as Thakore Amratji Shambhuji that they should not quarrel as it was a very auspicious day and prayers were to be offered to Goddess. This witness deposed that at that point of time, the accused got enraged and picked up quarrel with the deceased Thakore Pashaji Babaji, saying as to why he had to intervene, and saying so the accused took out a knife from his waist and inflicted injuries on the body of the deceased Pashaji indiscriminately. This witness has further deposed that the first injury was inflicted on the throat, thereafter on the chest and stomach. According to this witness, around 4 to 5 injuries were inflicted on the body of the deceased. On injuries being inflicted, the deceased fell down in a pool of blood. This witness immediately rushed and went near the deceased Pashaji. At that point of time, the accused ran away from the scene of occurrence with a knife in his hand. One Manuji Janaji also came at the spot and this witness along with Manuji Janaji picked up the deceased and took him to his house. At the house of the deceased, the nephew of the deceased named Thakore Melaji Jivanji was present. This witness in company of Manuji Jenaji, informed the nephew of the deceased that the accused had inflicted blows on his uncle and asked the nephew to take the deceased to a hospital immediately. This witness has deposed that Thakore Laxmanji Hiraji, Thakore Amratji Ranchhodji, Thakore Thakkaji Babaji and Thakore Kaluji @ Melaji Pashaji all together took the deceased to a dispensary in the jeep of Melaji. The deceased was taken to Bhagyodaya Hospital situated at Kadi. The deceased passed away on the way while he was being taken to the dispensary. This witness proved the first information report. This witness was cross- examined by the defence counsel on the line that he is not an eyewitness to the incident as he was not present when the incident occurred. However, such suggestions were denied by this witness in his cross-examination. A question was put to this witness as to whether he intervened when the accused and Thakore Amratji Shambhuji were fighting. To this question, P.W. 1 replied that he did not intervene as it was an everyday affair. He denied the suggestion that there was no sufficient light at the place of occurrence. He clarified that as there was a pooja of the Goddess, all the lights near respective houses of the locality were on. A question was put to this witness that was it true that both of them i.e. the deceased and Thakore Amratji Shambhuji were fighting intensely. P.W. 1 deposed that they were hurling abuses to each other and were also giving fisticuffs to each other. This witness has further deposed in his cross-examination that the accused was addicted to liquor and therefore, time and again he used to pick up quarrel and fight with people. He denied the suggestion that due to darkness he could not witness the accused inflicting knife injuries. P.W.1 deposed that he immediately informed the Police from his mobile phone No. 9979313696. PW-1 was in the locality upto 10.45. As PW-1 did not receive any information from the dispensary, he in company of one another persons left on a motorcycle to enquire. P.W. 1 reached Kadi at around 12.30 in the night. P.W.1 received information on his mobile that deceased had passed away and everyone was at Bhagyodaya Hospital. P.W.1 immediately reached Dhumason as Police had already reached the village. PW-1 denied the suggestion that after Pashaji died, Amratji ran away and remained absconding. He also denied the suggestion that Amratji returned to the village after two days. PW-1 also denied the suggestion that Amratji Shambhuji committed murder and ran away, and that he was deposing falsely.
8.2 The prosecution also examined PW-2, Thakore Amratji Shambhuji, Exh. 9. P.W. 2 in his testimony has deposed that on the date of the incident, as there was a pooja to be performed at the temple of Goddess, he was on his way to the temple. At that point of time, he saw that right in the middle of the road near the house of the accused, a cot was placed. P.W.2 told the accused as to why he had placed his cot right in the middle of the road. The accused got enraged and started hurling abuses to P.W.2. Thereafter, there was a scuffle between P.W.2 and the accused. At that point of time, the deceased Pashaji Babaji arrived. The deceased asked P.W.2 as well as the accused as to why they were quarreling. On deceased saying so, the accused caught hold of the deceased from his collar. The deceased asked the accused to leave him alone, but the accused refused to release the deceased from his clutches. At that time, the accused drew out a knife from his waistband and indiscriminately inflicted three to four injuries on the neck of the deceased as well as on chest and stomach. This witness raised shouts and on hearing the shouts, one Thakore Chaturji, PW-1, who was drinking water near his house came running at the place of occurrence. On seeing Thakore Chaturji (PW-1), the accused ran away. PW-2 thereafter went away to his home. PW-2 has deposed that as the accused had a knife in his hand, he left the place out of sheer fear. The deceased was taken to the dispensary, where he was declared dead. PW-2 denied the suggestion that at the time of occurrence, it was dark. He deposed that all the lights were on. He further deposed that though the lights of the Panchayat were not on, as there was a programme at the temple, the spotlight, which was fixed at the temple was on. This witness was contradicted with his previous statement wherein he admitted that he had not stated before the Police that the accused had caught hold of the deceased from his collar and the deceased asked the accused to release him. This witness stated that it was true that he fought with the accused intensely. He deposed that it was true that when he was fighting with the accused, at that point of time the accused had not shown knife to him. This witness has further stated that he had not stated before the Police to the effect that he raised shouts and on hearing his shouts, Thakore Chaturji, PW-1, who was drinking water came running at the place of occurrence. This witness has also deposed that he had not stated before the Police that after the incident, due to fear he left the place and because of fear of Police he remained in hiding. He deposed that he learnt about the death of the deceased on the next day. He deposed that as the accused was arrested by the Police, he was relieved as the accused was a very dangerous person. He denied the suggestion that he had fear of Police. He further deposed that on learning about the arrest of the accused, he returned home. He denied the suggestion that he had committed the murder of the deceased. He also denied the suggestion that with a view to see that the Police would not arrest him, he ran away towards his well with a knife. He also denied the suggestion that he himself in collusion with Chaturji, PW-1 had lodged a false complaint.
8.3 The prosecution also examined PW-3, Thakore Manuji Jenaji, Exh.10. This witness deposed that as there was an occasion at the temple of the Goddess, he was heading towards the temple. The house of this witness is situated behind the house of Chaturji, PW-1. When he was on his way to the temple, he saw that the accused and Amratji Shambhuji, PW-2 were fighting with each other near the house of the accused. He has deposed that at that point of time, the deceased came over there. The deceased asked the accused and Amratji as to why they were fighting, more particularly when it was an auspicious day. At that point of time, the accused got enraged and inflicted 4-5 injuries on the body of the deceased. He has further deposed that at that point of time, Chaturji, PW-1 came running at the place of incident. On seeing Chaturji (PW-1), the accused ran away. Thereafter, this witness with the help of Chaturji, lifted the deceased and brought him at his house. Thereafter, the nephew of the deceased took the deceased to the hospital. One Thakore Babaji and Laxmanji Hiraji also accompanied the deceased to the hospital. Thereafter, this witness learnt that the deceased had passed away. This witness in his cross-examination stated that it was true that he had not stated before the Police that he heard the deceased telling the accused as to why he was fighting with each other, more particularly when there was an occasion in the temple of Goddess. A contradiction in the form of an omission was brought on record, whereby it was suggested that this witness had not disclosed before the Police that on seeing Chaturji, PW-1, the accused ran away. This witness deposed that as there was an occasion in the temple of the Goddess, lights were on. He further deposed that the accused and PW-2 Thakore Amratji were not engaged in a physical combat, but were hurling abuses to each other. This witness further deposed that when the deceased came and reprimanded the accused, PW-2 Amratji was standing nearby.
He denied the suggestion that at the time of the incident his head as well as Amratji's head were towards south. He further deposed that PW-2 Amratji happened to be his cousin. He further deposed that PW-2 Amratji had not come at the scene of offence when he was present. He denied the suggestion that it was PW-2 Amratji, who committed the murder of the deceased in the presence of this witness.
8.4 The prosecution examined PW-4, Patel Bholabhai Becharbhai, Exh.11. This witness has deposed that he was called at the scene of offence from where the sample of the soil stained with blood was collected by the Police Officers. Nothing much turns around the evidence of this witness.
8.5 The prosecution examined PW-5, Patel Mahendrabhai Shankarbhai, Exh. 14. This witness is a panch witness of the discovery panchnama of the weapon, namely knife. He was declared hostile. The evidence of this witness is not of any significance in any manner.
8.6 PW-6, Babubhai Manjibhai Bodat, Exh.16 is a Police witness. On 27th March, 2007, he was serving as a PSO at Kadi Police Station. He has deposed that the incharge Police Inspector of the Police Station recorded the FIR and asked this witness to register the FIR at Kadi Police Station, and accordingly, it was registered as C.R No. I-81/07.
8.7 The prosecution examined PW-7, Dr.Bakulbhai Prabhubhai Patel, Exh.23, Medical Officer, who performed postmortem.
This witness proved the postmortem report Exh.24. This witness deposed that on 27th March, 2007 at around 11' O Clock in the morning, deadbody of a male was brought at the hospital for postmortem. After reading the inquest panchnama, this witness in the company of one another Dr. Parulben C. Sheth, performed the postmortem on the deadbody. During the course of postmortem, this witness noticed the following injuries, which were noted down in the postmortem report.
"Four wounds present at chest. Described as follows:-
Wound No.1 Incised wound present on chest 15cm below chine, just below suprasternal notch. Size 3.00 cm x 1.0 cm x 0.5cm size. Muscle deep. Blood and blood clot present at and around wound. Edges of wound are clean cut and tail of wound at right upper end of wound, edges are sharp and exerted. Oblique in direction.
Wound No.2 Incised stab wound present on right side of chest. Size 15cm below the 1st wound, located at inner side of subendocardial line, at 7th inter-costal space, oblique in direction, size 3.0cm x 1.0cm x 5.0 cm deep, cavity deep, spindle shape, edges clean cut and exerted. Angle of wound edges upper end is blunt and lower end is sharp, direction backward downward and medially.
Wound No.3 Incised stab wound present on left side of chest. Size: 7.0cm below left nipple of breast, at anterior axillary line. In 8th intercostal space, size 3.0 cm x 1.0cm x 7.0cm deep. Oblique in direction, spindle shape, edge of wound is sharp clean cut and exerted. Angle of wound - upper end is blunt and lower end sharp. Bruise present at upper end of wound. Blood and Blood clot present at wound and direction is inward medially and slightly downward.
Wound No.4 Incised wound present on epigastric region of abdomen just below the angle of costal margin. Midline oblique direction, muscle deep, size 3.0cm x 1.0cm x 0.4cm size. Tail at lower end, Blood and Blood clot present, exerted edges, clean cut and sharp.
Wound No.5 At just below left eye on face, superficial incised wound, size 1.0cm x 0.2cm. Blood and blood clot present.
Wound No.6 Incised wound present on left shoulder. Two in number, size 0.5cm x 0.1cm, superficial. Blood clot present.
This witness further deposed that semi digested food was found in the stomach of the deceased. There was digested food present in small and large intestine. This witness deposed that the cause of death was shock and haemorrhage due to injuries on vital organs like lever and left lung. This witness further deposed that the injuries were possible with a weapon like muddamal knife and further, all the injuries were sufficient in the ordinary course of nature to cause death.
8.8 The prosecution examined PW-8, Sarkava Keshavji Govindbhai, Exh.26, the Investigating Officer. This witness deposed that he was handed over the investigation from PSI J.R. Nayak. He deposed that after taking over the investigation, he recorded the statement of Amratji Shambhubhai, PW-2. The muddamal articles like sample of soil, clothes of the deceased, clothes of the accused etc. were sent to the Forensic Science Laboratory for chemical analysis. This witness further clarified in his deposition that the investigation first in point of time was being undertaken by his predecessor Shri Nayak, who during the course of investigation passed away and accordingly, the investigation was transferred to this witness. He further identified the signature of the first Investigating Officer late Shri Nayak on the panchnama of the scene of offence, Exh.12 and panchnama of jeep, Exh.13. He further deposed that during the course of investigation, the accused voluntarily disclosed the place where the muddamal knife was concealed and accordingly, the same was discovered under a panchnama Exh.15, which bears the signature of late Shri Nayak. This witness in his cross- examination stated that the investigation revealed that the incident occurred on account of a cot which was being placed by the accused in the middle of the road. He further deposed that due to pressure of work and election of Gram Panchayat, he was unable to record the statement of Amratji, PW-2 between 30th March, 2007 and 2nd April, 2007. He denied the suggestion that the investigation was carried out in a perfunctory manner with a view to help the complainant. He also denied the suggestion that investigation revealed that it was Amratji, PW-2, who had committed the murder of the deceased, but with a view to help him, he was cited as a witness.
9. Contentions on behalf of the accused-appellant:
9.1 Mr. Yogendra Thakore, learned counsel appearing for the accused-appellant very strenuously submitted that the trial Court committed a serious error in placing implicit reliance on the testimony of the three eyewitnesses, more particularly when all the three appear to be interested witnesses. Mr. Thakore submitted that the genesis of the occurrence was doubtful and the prosecution had tried to suppress the true origin of the occurrence. Mr. Thakore further submitted that it was PW-2 Amratji Shambhuji Thakore, who committed the murder of the deceased, but with a view to save him, three eyewitnesses concocted a story, whereby the accused was shown as the assailant. Mr. Thakore submitted that his contention as regards complicity of PW-2 Amratji Shambhuji in the crime gets further fortified by the fact that after the incident, he was not available in the village for couple of days. According to Mr. Thakore, his statement was also recorded after almost one week from the date of the incident. According to Mr. Thakore, this would suggest the guilty mind of PW-2 Amratji Shambhuji. Mr. Thakore submitted that the eyewitnesses are not reliable and conviction could not have been based on the evidence of such eyewitnesses. Mr. Thakore further submitted that the trial Court committed serious error in relying on the evidence of discovery of knife more particularly when the panch witnesses turned hostile and the contents of the said discovery panchnama were also not proved by the Investigating Officer.
9.2 Mr. Thakore lastly submitted that even if the entire case of the prosecution is accepted as true, the case would not fall within the ambit of murder but would fall within the ambit of culpable homicide not amounting to murder. Mr. Thakore submitted that the accused-appellant be granted the benefit of Exception I and IV to Section 300 of IPC. Mr. Thakore submitted that indisputably, the incident occurred at the spur of a moment. According to Mr. Thakore, a quarrel had ensued between the accused and PW-2 Amratji Shambhuji and not with the deceased. He further submitted that all the eyewitnesses have consistently deposed that the accused and Amratji Shambhuji were fighting intensely, which would suggest that the accused was in an enraged state of mind. The accused had no intention to cause any harm to the deceased, as deceased only tried to persuade the accused and PW-2 Amratji Shambhuji not to fight, more particularly when there was an occasion in the temple of the Goddess. Under such circumstances, according to Mr. Thakore, the accused is entitled to the benefit of Exception IV to Section 300 of IPC.
10. On the other hand, Mr. K.P. Raval, learned Additional Public Prosecutor vehemently submitted that no error could be said to have been committed by the trial Court in convicting the accused-appellant for the offence of murder punishable under Section 302 IPC. Mr. Raval submitted that the evidence of all the three eyewitnesses is consistent and corroborating each others evidence. All the three eyewitnesses stood the test of the cross-examination and defence could not elicit anything through the cross-examination of these witnesses so as to render their evidence doubtful in any manner.
11. Mr. Raval urged that this appeal being devoid of any merit deserves to be dismissed.
12. The picture which emerges from a cumulative reading and assessment of the material available on record is this:
12.1 On the date of the incident, there was an occasion in the temple of Goddess situated in the locality where the incident occurred. The accused had placed a cot somewhere near his house right on the middle of the road. In this regard, an altercation took place between the accused and PW-2 Amratji Shambhuji Thakore. All the three eyewitnesses have consistently deposed that the accused and PW-2 Amratji Thakore were fighting with each other intensely and also entered into a scuffle. It is at that point of time that the deceased arrived and tried to explain the accused as well as PW-2 Amratji Thakore not to fight, more particularly when there was an occasion in the temple of the Goddess. Enraged by the words of the deceased, the accused drew a knife out of his waistband and inflicted as many as six injuries on the body of the deceased. The deceased fell down in a pool of blood at the very spot. PW-1 Chaturji Thakore, a resident of the same locality witnessed this incident.
13. We have gone through the entire evidence of this witness. We do not find any infirmity or anything improbable in the evidence of this witness. On the contrary, the evidence of this witness stands further corroborated by medical evidence on record. It appears that during the course of the trial, a very fragile attempt was made to throw the entire blame on the shoulders of PW-2 Amratji Shambhuji. However, we have noticed that except few suggestions in this regard, nothing substantial could be brought on record which could render the evidence of the eyewitnesses doubtful. The evidence of PW-2 Amratji Shambhuji Thakore is also quite consistent and stands corroborated with the evidence of the first informant PW-1 Chaturji Thakore. The mere fact that PW-2 left the place of occurrence and was not available for few days for the purpose of interrogation by itself is not sufficient to accept the defence of the accused that it was PW-2 Amratji Shambhuji who inflicted injuries on the deceased. We cannot overlook the fact that PW-2 Amratji Shambhuji picked up a quarrel with the accused and also entered into a physical combat with the accused. It is at that stage that the deceased tried to intervene but unfortunately got killed for no fault on his part. PW-2 Amratji Shambhuji might have, out of sheer fear, remained away from his house and his statement was recorded on 2nd April, 2007 i.e. after a period of five days by itself is not sufficient to come to the conclusion that he was the culprit as he remained at large for a period of five days. We are unable to accept the contention of Mr. Thakore that it was the duty of PW-2 Amratji Shambhuji to lodge the first information report and also help the deceased. The attempt on the part of Mr. Thakore was to convince us that if PW-2 Amratji Shambhuji was innocent, then he would not have left the place immediately and would not have remained at large. Mr. Thakore submitted that on the contrary he should have informed the Police about the incident and should have also accompanied the deceased to the hospital.
We are of the view that it all depends on a particular individual. Just because PW-2 Amratji thought fit not to lodge the FIR or help the deceased, by itself may not be sufficient to point a finger towards PW-2 Amratji. PW-2 Amratji was sure about one thing that indirectly he was involved in the incident, meaning to say that if he would not have picked up quarrel with the accused, then perhaps this incident would not have occurred.
14. We are of the view that the evidence of all the three eyewitnesses is quite consistent, trustworthy and reliable. There is no reason for us to discard or disbelieve the ocular version of the eyewitnesses.
15. We shall now deal with the alternative submission of Mr. Thakore as regards applicability of Exception 4 to Section 300 of IPC. The sine quo non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder. We must, therefore, assume that this would be a case of murder and it is for the accused to show the applicability of the Exception. Exception 4 reads as under:-
"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."
A perusal of the provision would reveal that four conditions must be satisfied to bring the matter within Exception 4 :
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in the heat of passion; and; that
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.
On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) 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.
16. It would be profitable for us to quote the following observations of the Supreme Court explaining the scope and ambit of Exception 4 of Section 300 IPC, made in the case of Vishal Singh V. State of Rajasthan, reported in 2009 Criminal Law Journal 2243. A three Judge Bench observed in paragraph 7 as under:-
"7. 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. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's 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 is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the 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. A fight is a combat between two and more persons whether with or without weapons. 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 upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat (2003 (5) Supreme 223]; Parkash Chand v. State of H.P. (2004 (11) SCC 381); Byvarapu Raju v. State of A.P. and Anr. (2007 (11) SCC 218) and Hawa Singh and Anr. v. State of Haryana (SLP (Crl.) No.1515/ 2008, disposed of on 15.1.2009)."
Applying the aforesaid principles as explained by the Supreme Court in the facts of the present case, more particularly considering the evidence on record, we have no hesitation in coming to the conclusion that the present case is not one of culpable homicide not amounting to murder, but the same is a case of murder. It is very difficult for us to accept the submission of Mr. Thakore that the case would fall within Exception 4 of Section 300 IPC and such benefit be extended to the accused. We do agree to a certain extent with Mr. Thakore that the incident occurred in the heat of a moment and the fight was also sudden. However, we cannot overlook the fact that the accused inflicted as many as six blows with a knife on the deceased, who was unarmed and was helpless. The only mistake on the part of the deceased was that he tried to explain to the accused as well as PW-2 Amratji Shambhuji not to fight as it was an auspicious day, there being an occasion in the temple of the Goddess. On this trivial issue, the accused went to the extent of drawing a knife and inflicting as many as six injuries indiscriminately with a knife on the body of the deceased.
17. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of proportions, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh Vs. State of Rajasthan (AIR 1993 SC 2426), it was held that if the accused used deadly weapons against an unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage. A fight suddenly takes place, for which both the parties are more or less to be blamed. It might be that one of them starts it, but if the other had not aggravated it by his own conduct, it would not have taken the serious turn it did. There is then mutual provocation and aggravation and it is difficult to apportion the share of blame which attaches to each fighter. 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 fight occurred between the accused and PW-2 Amratji, whereas the deceased became the victim of injuries inflicted by the accused.
So far as the evidence of discovery of the weapon of offence is concerned i.e. the knife, as per the panchnama drawn under Section 27 of the Evidence Act, we are not relying on the said piece of evidence as the panch witnesses turned hostile and the Investigating Officer also failed to prove the contents of the discovery panchnama. Apart from that, because of trustworthy eyewitnesses, recovery has otherwise lost its significance.
18. In the aforesaid view of the matter, the inevitable conclusion is that the occurrence might have taken place in the course of a sudden quarrel, which ensued between the accused and PW-2 Amratji Shambhuji, but the ultimate victim was the innocent deceased who only tried to intervene and stop the two fighting. Therefore, Exception 4 to Section 300 IPC will not apply in the present case.
19. The appeal being devoid of any merit, deserves to be dismissed and is accordingly dismissed.
(Bhaskar Bhattacharya, C.J.) (J.B. Pardiwala, J.) */Mohandas