Present appeal arises out of a judgment and order rendered by Sessions Court, Bharuch in Sessions Case No.57 of 2006 on 13/10/2006, whereby the present appellant – Vechanbhai Hirabhai Vasava was convicted for murder of Murarbhai Muljibhai Vasava by inflicting a stick blow on his head. He is sentenced to undergo imprisonment for life with a fine of Rs.1,000/, in default, to undergo SI for three months by the said judgment and order. 2. The facts of the case, in brief, are that the appellant and deceasedMurarbhai are neighbours staying opposite to each other. The deceased made out a fence on his land, where the appellant used to normally sit. The appellant, therefore, felt offended and carried an impression that the fence is installed only to deter him from sitting over there. On the next day of installation of the fence, i.e. on 15/03/2006, the appellant called deceased–Murarbhai from his house at about 21:00 hours and, when he came out, he inflicted one blow with a small stick on the head of the deceased. The deceased fell down and, therefore, the appellant ran away throwing the stick at the place of incident. The deceased was taken to Hospital, where he was declared dead. Therefore, Amrutbenconcubine of the deceased lodged FIR with Ankleshwar Rural Police Station. Offence was registered, investigated and chargesheet was filed in the Court of learned JMFC, Ankleshwar, who in turn, committed the case to the Court of Sessions and Sessions Case No.57 of 2006 came to be registered.
2.1 Charge was framed against the appellant – accused at Exh.7 for offence punishable under Section 302 of the IPC and under Section 135 of the Bombay Police Act, to which appellant – accused pleaded not guilty and claimed to be tried. At the end of trial, the trial Court found that the prosecution was successful in establishing the charge against the accused of murder of Murarbhai and recorded his conviction, whereas, acquitted him of charge of offence punishable under Section 135 of the Bombay Police Act. Hence, this appeal by the convictaccused.
3. Learned Advocate, Mr.Barot appearing for the appellant submitted that he is not in a position to dispute the incident and involvement of the appellant in the incident, because incident is seen by Arunaben, minor daughter of Maheshbhai and the first informant, who came to the place within moments of the incident. Mr.Barot, however, submitted that if the incident is seen, intention to cause death of the deceased is wrongly attributed by the trial Court to accused– appellant. In support of this submission, Mr.Barot has drawn our attention to the aspect that only one blow was given by the accused to the deceased; that a small stick was used for the purpose and that no sooner the deceased fell to the ground, the accused had fled away from the place of incident; had there been any intention to cause death, he would have given multiple blows. Mr.Barot has drawn our attention that there is only a laceration on the head of the deceased and no fracture. Necessarily, therefore, the blow was not given with any great force and, therefore, also a lack of intention to cause death may be inferred. The trial Court has overlooked this aspect and has convicted the appellant for the offence of murder and, therefore, the appeal may be allowed.
4. On the other hand, learned APP has opposed the appeal. He submitted that since involvement of the accused is not disputed, it is only the conduct of the accused, which is required to be seen. Intention can be inferred only from the conduct. Here, the appellant had called the deceased from his house and without any altercation, dispute, quarrel or fight, straightway assaulted the deceased on vital part of his body viz., head. He had used a stick with force. That the deceased fell down and died on the spot and thereafter when Amrutben approached the deceased at the place of incident from the house, the accused had said that, 'I have killed Murar and what are you going to do' and then left the place. Therefore, the appellant's intention to cause death of Murar is apparent and conspicuous. The trial Court was, therefore, justified in convicting the appellant and appeal may therefore be dismissed.
5. We have examined the record and proceedings in context of rival submissions.
6. Since learned Advocate for the appellant is not disputing the involvement of the appellant in the incident, we may not dwell on evidence in that aspect and may rest at observing that the occurrence is seen by Aruna, minor daughter of Maheshbhai, who is examined at Exh.9.
7. Amrutaben is another witness, who reached the place of incident, almost simultaneously within fraction of moment after the incident is over. She is examined at Exh.33. Upon reading evidence of these two witnesses, what emerges is that the appellant called the deceased from his house and when he came out, he inflicted one blow on the head of the deceased with a stick, which the appellant was carrying in his hand. Panchnama and the FSL Report would reveal that length of the stick is 63 Centimeter, which would be approximately, 2 feet and 8 inches in the length. The thickness of the stick is about 2.75” in diameter on one side and 2.5” on the other.
8. PM Notes, more particularly, column Nos.17 and 18 would indicate that there was only laceration on the seat of injury with no corresponding fracture of the skull. The deceased died because of infracranial haemorrhagic shock due to head injury.
9. The above evidence, if seen collectively, would show that the appellant was aggrieved against the deceased because of installation of fence, which was done to deter him from sitting at that place by the deceased. Naturally, he was angry against the deceased. He, therefore, shouted and called out the deceased from his house and, when he came out, he inflicted one blow on the head. Although, the blow was given on a head, it was given with a small stick and the force used was such that the injury had stopped at laceration and had not travelled further to the skull. The skull had remained undamaged. Brain haemorrhage had occurred because of the impact and jerk, which had resulted in death of the deceased and doctor has opined that this haemorrhage was sufficient in ordinary course of nature to cause death. But, how the haemorrhage was caused; there was a single blow on the head of the deceased, which had not caused any damage to the skull. Putting two things together viz., the size of the stick and the force with which it was used, in our view, an inference cannot be drawn that the appellant intended to cause death of the deceased. The appellant did have a grievance and probably may have approached the deceased with a view to teach him a lesson. This fact is further fortified by the fact that he had inflicted only one blow. Had he been so much angry and had there been any intention to cause death, he would have certainly given further blows. Therefore, in our view, the attack by the appellant on the deceased cannot be labelled as offence made with intention to cause death and probably not even knowledge that the blow is likely to cause death.
9.1 It is true that as per evidence of Amrutben, he is alleged to have uttered words of saying that, 'he has finished Murar and what she is going to do'. This is a fact subsequent to the incident and deceased falling to the ground and at a stage where the appellant was seized by anger. In our view, therefore, those words cannot be referred back to his state of mind prior to the incident, when he approached the deceased by calling him out. The state of mind just before or at the time of incident, is relevant for the purpose of knowing the intention of the accused– assailant.
10. In light of foregoing discussion, we are of the view that the appellant could not have been convicted for an offence of murder punishable under Section 302 of the IPC. The attack at the best can be said to be intended to teach a lesson to the deceased. He had inflicted a blow on the deceased on his head, which had resulted in simple external injury of the nature of laceration. The impact as consequently resulted into brain haemorrhage about which no knowledge or intention can be attributed to the appellant. A small stick cannot be considered to be a dangerous weapon and, therefore, the appellant would be guilty of offence punishable under Section 323 of the IPC. He has been in jail during the trial and the appeal also.
11. In the result, the present appeal is partly allowed. The conviction rendered by the learned Additional Sessions Judge, Fast Track Court No.2, Bharuch in Sessions Case No.57 of 2006 on 13/10/2006 is altered from one punishable under Section 302 of the IPC to one punishable under Section 323 of the IPC. The sentence of appellant – org. accused Vechanbhai Hirabhai Vasava is altered from imprisonment for life to maximum punishment prescribed for the offence punishable under Section 323 of the IPC, i.e. for one year, with no change in fine or default sentence.
(A L DAVE, J.) (PARESH UPADHYAY, J.) sompura