Gujarat High Court
Babubhai @ Dadlabhai Chandubhai Rathwa vs State Of Gujarat on 16 September, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/922/2013 JUDGMENT DATED: 16/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 922 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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BABUBHAI @ DADLABHAI CHANDUBHAI RATHWA
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant
MR. YOGENDRA THAKORE(3975) for the Appellant
MR LB DABHI APP for the Respondent
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 16/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Being aggrieved by the judgment of conviction and order of sentence dated 19.12.2009, passed in Sessions Case No. 178 of 2008, by the learned Additional Sessions Judge, Modasa at Himmatnagar, against the appellant - sole accused, the appellant has preferred this appeal on the grounds mentioned in the appeal memo.
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2. The appellant was prosecuted and tried by the Sessions Court for the offence of murder. The deceased Ramilaben, was the wife of the appellant accused. The appellant accused and his wife being a farm labourer, came to village: Akrund, Dhansura, Arvalli, and living at the farm of Jayantibhai Chhaganbhai in a hut. The minor son Sanjay was also living with the deceased and appellant. On 07.08.2008, at about 1-00 p.m., the appellant accused was about to ride his motor-bike but somehow, he did not do it and came into hut where the deceased his wife was preparing the tea and after taking shovel in his hand, he hit the deceased on her head and threw her into the well situated at the farm itself. After incident, the accused fled away from the spot. Minor son - Sanjay PW-14 being eye-witness of the incident, immediately, contacted his maternal uncle Kalabhai and informed him about the incident and manner in which his mother was murdered by the accused - father. The cultivator of the farm Ashokbhai, was informed by Kalabhai about the incident. The Dhansura Police received a information about the incident. The FIR came to be registered against the accused for the offence of murder. The dead body of the deceased was taken out of the well. During the course of investigation, the IO recorded the statement of the witnesses and the statement of minor son Sanjay came to be recorded under Section 164 of the Cr.P.C. by the Judicial Magistrate. The appellant accused was arrested. After completion of the investigation, the chargesheet was filed before the jurisdictional magistrate, who had committed the case to the Page 2 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025 NEUTRAL CITATION R/CR.A/922/2013 JUDGMENT DATED: 16/09/2025 undefined court of Sessions and the same was culminated into Sessions Case No. 178 of 2008. The charges were framed against the accused.
3. The prosecution in order to prove the charge, examined as many as 20 witnesses and exhibited 35 documents.
Oral evidence PW 1 - Exh.13 Bharatbhai Narsinhbhai Patel, Panch witness PW 2 - Exh.16 Ishwarbhai Gobarbhai Patel, Panch witness PW 3 - Exh.21 Rajeshbhai Likhabhai Panchal, Panch witness PW 4 - Exh.26 Lakhansingh Jagbahadursingh Rajput, Panch witness PW 5 - Exh.32 Shanabhai Kodarbhai Prajapati, Panch witness PW 6 - Exh.34 Galaji Balaji Makwana, Panch witness PW 7 - Exh.36 Kantibhai Luvjibhai Patel, Panch witness PW 8 - Exh.37 Ashokbhai Somabhai Patel, Complainant PW 9 - Exh.39 Sangeetaben Kadabhai Bamaniya PW10 - Exh.40 Kadabhai Dhulabhai Thakor PW11 - Exh.41 Baldevsinh Mohansinh Zala PW12 - Exh.44 Rameshbhai Mohanbhai Bamaniya PW13 - Exh.46 Girishbhai Revabhai Vadal PW14 - Exh.50 Sanjaykumar Babubhai Rathwa PW15 - Exh.51 Dr. Kamleh Bhagwanbhai Parmar PW16 - Exh.57 Dr. Satish Joitabhai Prajapati PW17 - Exh.61 Praveensinh Jawansinh Rathod, PSO PW18 - Exh.65 Jayantibhai Bhecharbhai Patel, Circle Officer PW19 - Exh.68 Mukeshbhai Dilipbhai Upadhaya, IO PW20 - Exh.78 Atulkumar Kantilal Patel, IO Documentary evidence Exh.14 Inquest Panchnama Exh.17 List of articles recovered from the place of offence and
-20 slips Page 3 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025 NEUTRAL CITATION R/CR.A/922/2013 JUDGMENT DATED: 16/09/2025 undefined Exh.22 Panchnama of clothes of deceased Exh.23 Signed slips of panch witness for the clothes of
-25 deceased Ramilaben Exh.27 Signed slips of panch witness for the clothes of accused
-28 Exh.29 Panchnama of state of body and clothes of accused Exh.35 Recovery Panchnama Exh.38 Complaint Exh.52 PM report Exh.53 Accused medical certificate Exh.54 Police yadi for treatment of accused to medical officer C.H.C Dhansura Exh.55 Police yadi for PM report of deceased to medical officer C.H.C Dhansura Exh.56 Medical case paper of accused Babubhai Chandubhai Rathva Exh.58 Medical certificate of accused Babubhai Chandubhai Rathva Exh.59 MLC Case paper no.2914 of accused Babubhai Chandubhai Rathva Exh.60 MLC Case paper no.2961 of accused Babubhai Chandubhai Rathva Exh.62 Xerox copy of Station Diary's page no. 90 entry no. 21 Exh.66 Map of place of offence Exh.67 Executive Magistrate yadi to Dhansura police station for map of place of offence Exh.69 Cause of death certificate of deceased Exh.70 Police yadi to executive magistrate, dhansur for inquest panchnama Exh.71 PM form Exh.72 Forwarding list of articles to FSL Exh.73 Receipt of articles by FSL Exh.74 Police forwarding note for list of articles to FSL Ahmedabad Exh.75 Receipt of articles by FSL Exh.76 Receipt of articles by FSL Exh.77 FSL Forwarding letter Exh.79 FSL Forwarding letter Page 4 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025 NEUTRAL CITATION R/CR.A/922/2013 JUDGMENT DATED: 16/09/2025 undefined Exh.80 FSL Analysis report Exh.81 FSL Serological report Exh.82 FSL Forwarding letter Exh.83 FSL Analysis report Exh.84 FSL Forwarding letter Exh.85 Xerox copy of Announcement of Additional District Magistrate, Sabarkantha, Himmatnagar under Bombay Police Act Section 37(1)
4. After closure of the prosecution evidence, the appellant was questioned under Section 313 of the Cr.P.C, to which, he stated that Ashokbhai Farm owner has killed his wife and in order to escape from the liability, he has falsely lodged an FIR against him. Despite the opportunity, the accused did not have adduced oral evidence in his defense nor has produced any documentary evidence.
5. After hearing the parties and upon appreciation of evidence, the trial Court found guilty the appellant accused for offence of murder. The trial Court mainly relied on the testimony of the child witness Sanjay PW-14.
6. In such circumstances, being aggrieved with the judgment of conviction and order of sentence, the appellant is before this Court by way of present appeal.
7. We have heard learned counsel Mr. Yogendra Thakore and Mr. L.B. Dabhi, learned Additional Public Prosecutor for the respondent State.
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8. Mr. Yogendra Thakore, learned advocate, while assailing the conviction, contended that, the appellant having struck a solitary blow on the head of the deceased, with blunt side of shovel and the act was not intended to cause death of the wife. Thus, the offence committed by the appellant amounted to culpable homicide not amounting to murder punishable under Section 304 Part II of the Indian Penal Code and requested this court to set aside the conviction and sentence awarded under Section 302 of Indian Penal Code and further prays to alter the conviction from Section 302 to Section 304 Part II of the Indian Penal Code.
9. On the other hand, learned counsel for the State contended that, the appellant given a blow on the head of the deceased and thereafter, in order to screen his act, the dead body was thrown into well, which proves that the act was done with intention of causing death and causing such bodily injury which the accused presumed to be knew that it likely to cause death by inflicting such injury. Thus, therefore, learned Additional Public Prosecutor submits that, the matter squarely falls under clause thirdly of Section 300 of the Indian Penal Code and merely, because the accused rendered a solitary blow, would not necessarily imply that the offence amounted to culpable homicide not amounting to murder punishable under Section 304 Part II of the Indian Penal Code. In such circumstances, the State Counsel prays that the counsel prays that there being no merits in Page 6 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025 NEUTRAL CITATION R/CR.A/922/2013 JUDGMENT DATED: 16/09/2025 undefined the appeal and same may be dismissed.
10. Before adverting to appreciate the evidence on record, we would like to have a cursory look at the evidence adduced by the prosecution through its witnesses.
(1) Ashok Somabhai (PW-8). The witness being a farmer, had hired the appellant accused and his family for doing cultivating process in the farm, where the incident took place. The witness Ashokbhai was informed by one Kala Dhula, who is the brother in law of the accused. On the basis of information received with respect to incident, the witness lodged an FIR with the concerned police station.
(2) Sangitaben Kalabhai (PW-9) and Kalabhai Dhulabhai (PW-10). Both the witnesses are related to the appellant. The son of the appellant minor Sanjay PW-14, after the incident, contacted the witnesses and informed about the murder of her mother at the instance of appellant accused.
(3) Sanjay Babubhai (PW-14). The witness is the son of appellant as well as the deceased. The witness at the age of 13,was present at the place, when the incident occurred. In the chief-examination, the witness has stated that, on the day of incident, at about 1-00 in noon, his mother was hit on a head with a shovel by his father and thereafter, he dragged the Page 7 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025 NEUTRAL CITATION R/CR.A/922/2013 JUDGMENT DATED: 16/09/2025 undefined deceased and threw her dead body in the well situated in the farm itself. The witness has also stated that, after the incident, he informed his maternal uncle and aunt about the incident and act committed by his father. The witness has also admitted the contents of statement recorded by the Judicial Magistrate under Section 164 of the Cr.P.C. In the cross-examination, the defense has tried to establish that the deceased had herself committed a suicide by jumping into the well. The witness has denied the said theory and his version was not shaken in the cross.
(4) Dr. Kamlesh B. Parmar (PW-15). The witness being the Medical Officer of CHC, Dhanpura, had conducted a postmortem of body of the deceased. During the postmortem, he found a injury in the nature of CLW (3x3x2 cm), at the mid part of parietal region on the right side. So far as internal injury is concerned, the witness found the accumulation of the blood in the parietal lesion and same was in a owl shape. At the time of postmortem the final cause of death was kept pending, because of viscera report. In the cross-examination, the witness has admitted that, after the FSL report, he has not finally opined about the cause of death. Even in the chief-examination, the witness has not opined that, what was the cause of the death.
11. In the present case, the counsel upon instructions is not challenging the conviction for the offence and raised the only issue that, the trial Court has committed an error while Page 8 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025 NEUTRAL CITATION R/CR.A/922/2013 JUDGMENT DATED: 16/09/2025 undefined sentencing the accused under Section 302 of the Indian Penal Code, because, there was no intention to cause death and in absence of specific opinion of the doctor on the aspect of cause of death, the offence would fall under Section 304 Part-II of the Indian Penal Code because at the most, the injury can be attributed with the knowledge that the injury which he had cuased, was likely to cause death. In such circumstances, the point involved in this appeal is whether the appellant is guilty of culpable homicide not amounting to murder or only of culpable homicide not amounting to murder punishable under Section 304 Part-II of the Indian Penal Code. On this issue, the Supreme Court, time and again in so many cases, deliberated upon the crucial question of distinction between Section 299 and 300 of the IPC. The difference between murder and culpable homicide not amounting to murder has been succinctly explained in the case of State of A.P. Vs. Rayavarapu Punnayya (1976 (4) SCC 382) in the following words:
"12. In the scheme of the Penal Code, culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans 'pecial characteristics of murder, is culpable homicide not amounting to. murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognizes three degrees of culpable homicide. The first is, what may be called, culpable Page 9 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025 NEUTRAL CITATION R/CR.A/922/2013 JUDGMENT DATED: 16/09/2025 undefined homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the first part of Section 304. Then, there is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304."
12. After referring the aforesaid decision, the difference between murder and culpable homicide not amounting to murder was further elucidated in Rampal Vs. State of U.P. (2012 (8) SCC
289). Paras-16 and 21 of the judgment reads thus:
"16. that the safest way of approach to the interpretation and application of Section 299 and 300 IPC is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Sections 299 and 300 IPC and drawing support from the decisions of the Court in Virsa Singh v. State of Punjab [AIR 1958 SC 465: 1958 Cri. LJ 818] and Rajwant Singh v. State of Kerala [AIR 1966 SC 1874 : 1966 Cri LJ 1509], speaking for the court, R.S. Sarkaria, J. neatly brought out the points of distinction between the two Page 10 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025 NEUTRAL CITATION R/CR.A/922/2013 JUDGMENT DATED: 16/09/2025 undefined offences, which have been time and again reiterated. Having done so, the Court said that wherever the court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it [would] be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the cases come within any of the Exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 IPC. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative."
21. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a Page 11 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025 NEUTRAL CITATION R/CR.A/922/2013 JUDGMENT DATED: 16/09/2025 undefined person would be liable to be awarded, if he commits either of the offences. An analysis of these two sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of Section 304 includes only those cases in which offence is really murder, but mitigated by the presence of circumstances recognized in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor [AIR 1931 Lah 63]"
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13. Recently, in the case of Chunni Bai Vs. State of Chhattisgarh (AIR 2025 Supreme Court 2370), the Supreme Court, after referring the observations made in the case of Rayavarapu Punnayya and Rampal Singh (supra), in Para-21, observed thus:
"21. From the above extracts, it can be understood that one of the criteria to determine, in any given case, as to whether the act amounts to murder or culpable homicide not amounting to murder is the presence or absence of intention of the offender. If the intention to cause death or to cause such bodily injury as is likely to cause death or the knowledge, which obviously has to be a conscious one, that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury, comes out aloud and clear in the case, it would be most appropriate to categorise it as a case of murder under Section 300 IPC in which event, penal provision of Section 302 IPC would be attracted. On the other hand, if the "intention" in causing the death or to causing such bodily injury is not so clear, the case will fall under the less stringent category of "culpable homicide not amounting to murder" as punishable under Section 304 IPC."Page 13 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025
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14. In the case on hand, it can be said to have been proved beyond reasonable doubt that the appellant has caused death of the deceased Ramilaben and thus, committed culpable homicide. It is no doubt true that the doctor has not specifically opined about the cause of death. However, when the conviction is not challenged on merits, there is no need to enter into aspect of cause of death. The appellant also sustained injuries and same have been proved by examining the treating doctor. It is relevant to note that, except head injury, as noted by the PM doctor, no any other injuries were being found, either external or internal on the body of the deceased. In such circumstances, when the quarrel was followed by assault and accused gave a single blow with the shovel, it cannot be inferred that the injuries have been caused with an intention to kill the deceased nor it can be said that he intended to cause that particular injury. However, the knowledge could be attributed on the part of the accused that by inflicting such kind of injuries, that would cause the death. Therefore, having regard to the peculiar facts and circumstances of the present and on appreciation of the evidence on record, the clauses of Section 300 which define the 'murder' cannot be applicable to the facts of the present case, as a result, we set aside the conviction of the appellant under Section 302 and convict the appellant accused under Section 304 Part-II of the Indian Penal Code and having regard to the period of incarceration, he is sentenced to undergo imprisonment to the period already undergone and directed him to pay fine of Page 14 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025 NEUTRAL CITATION R/CR.A/922/2013 JUDGMENT DATED: 16/09/2025 undefined Rs.500/- and in default of which, to further undergo RI for 2 months.
15. Accordingly, the appeal is partly allowed. The bail bond stands cancelled. We have perused the office note. This appeal has been relisted after order passed by the Hon'ble Chief Justice on administrative side and reason for relisting have been mentioned by the Registry in the office note. In such circumstances, so far appeal is concerned, the office note is disposed of. The appellant has already been released on the basis of Farad dated 20.01.2018 and therefore there is no need to direct the jail authority to release the appellant. The R&P be sent henceforth to the trial Court.
(ILESH J. VORA,J) (P. M. RAVAL, J) P.S. JOSHI/17&18.09.2025/DT Page 15 of 15 Uploaded by P.S. JOSHI(HC00177) on Thu Sep 18 2025 Downloaded on : Thu Sep 18 23:14:51 IST 2025