Gujarat High Court
Sunil @ Rahul Rajeshbhai Makwana vs State Of Gujarat on 18 September, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 735 of 2017
With
R/CRIMINAL APPEAL NO. 895 of 2017
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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SUNIL @ RAHUL RAJESHBHAI MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT(3711) for the Appellant(s) No. 1
MR L B DABHI APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 18/09/2025
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. Criminal Appeal No. 735 of 2017 is preferred by the Sunil @ Rahul Rajeshbhai Makwana i.e., Org. Accused No. 1 who has been convicted in Sessions Case No. 364 of 2013 vide judgment and order dated 24.04.2017 passed by the Ld. 7th Additional Sessions Judge, Surat. Whereas, Criminal Appeal No. 895 of 2017 is preferred by the State of Gujarat against the acquittal of Kirit @ Lalu Sumanbhai Rathod and Deepak Kanubhai Solanki i.e., Org. Accused Nos. 2 and 3 respectively in Sessions Case No. 364 of 2013 vide judgment Page 1 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined and order dated 24.04.2017 passed by the Ld. 7 th Additional Sessions Judge, Surat. The Org. Accused namely Sunil @ Rahul Rajeshbhai Makwana has been convicted under the provisions of Section 302 of IPC and sentenced for life imprisonment and is imposed with fine of Rs. 2,000/- and in default thereof, one month SI. Since both the Appeals arise from the same Session Case, they are decided together.
2. The facts of the captioned Appeals as can be ascertained from the FIR reveal that:-
2.1 On 27.05.2013, Chandrakant Narayan Pawar (PW-7A) lodged a complaint at Khatodara Police Station, Surat, stating that on 26.05.2013, his son Rupesh Pawar had gone out to play cricket and returned home around 1:30-2:00 PM. After lunch, Rupesh again went out and returned around 7:00-7:30 PM. He later left for Piplod on his motorcycle (GJ 05 GB 2215). Around 10:45 PM, accused No.1, along with accused Nos. 2, 3, and a juvenile, arrived at the complainant's residence on a two-wheeler. All were known to the complainant as they regularly gathered near his house. Accused No.1, holding a wooden log, stated that Rupesh had beaten him and he wanted to "finish" him. The co-accused also threatened the same. Not finding Rupesh at home, they left. The complainant informed Rupesh over phone, and Rupesh said he was on his way home. Around Page 2 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined 11:15 PM, the complainant saw the accused near Choryasi Dairy, where Accused No.1 assaulted Rupesh on the head with a wooden log, while others attacked him with fists. On seeing the complainant, they fled. Rupesh was taken to Amruta Hospital and then Mahavir Trauma Hospital, where he was declared dead. FIR was registered under Sections 323, 302, 188, and 114 IPC.
2.2 After Investigation, the cahrgesheet came to be filed before the concerned Ld. Magistrate, and the case was committed to the Sessions Court, Surat as the case was sessions triable and the same was registered as Sessions Case No. 364/2013. Thereafter charges were framed vide Exh. 9 and the accused denied the charged and prayed for trial.
2.3 The Prosecution has examined the following witnesses to prove the guilt of the accused.
PW Name State of Witness Exh.
No.
1 Rajubhai Jaynath Dave Panch of inquest Panchnama 19
2 Vishalbhai Mukeshbhai Maisuri Panch of scene of offence 21
3 Shashikantbhai Shantilal Patel Panch of Discovery 30
Panchnama
4 Piyushsinh Ajitsinh Raowlji Eye witness 33
5 Pujaben Rajendrabhai Dubey Eye witness 38
6 Sarikaben Jagannath Patil Eye witness 39
7 Bhartiben Chandrakant Pawar Mother of deceased and an eye 51
witness
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7/A Chandrakant Narayan Pawar Complainant and an Eye 57
witness
8 Dr. Rajdeep Surendra RMO Mahavir Hospital 58/A
9 Dr Chandresh Tailor Doctor who conducted Post 61
Mortem of deceased
10 Bhartiben Mahendrabhai Sadhu Police witness who registered 67
offence.
11 Bharatbhai G Damor IO 71
12 Chandrakant Keshavlal Patel IO and officer who filled 75
chargesheet.
2.4 Apart from leading oral evidence as mentioned above,
prosecution to bring home the charge has relied upon the following documentary evidences:-
Sr Particulars Exh.
No. No
1 Inquest Panchnama 20
2 Panchnama of Scene of Offence. 22
3 Panchnama of Clothes of deceased after completion of post 27
mortem
4 Panchnama of Physical condition of the accused. 28
5 Seizure panchnama of "pleasure" model motorcycle used in 31
crime.
6 Complaint 58
7 Certificate issued by Dr. Piyush Khanna of Mahavir Hospital, 59
Surat as regards primary treatment given to Rupesh Pawar.8 PM Note 63 9 Cause of death Certificate 64
10 Report to register offence and Suchipatra 69 11 Primary Opinion of FSL upon visit of scene of offence. 76 12 Report made to FSL to examine muddamal and give certificate 77 13 Outward note 78 14 Receipt showing muddamal being received by FSL. 79 Page 4 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined 15 Copy of Notification issued by Police Commissioner, Surat. 80 16 Biological report of FSL with forwarding letter. 81 17 Serological report of FSL 94 2.5 After completion of the trial, statements of the accused persons were recorded under Section 313 of the CRPC. After hearing the Ld. Advocates for both parties and considering the documentary as well as oral evidence on record, the Appellants were convicted as stated above. Hence, the present Appeal.
3. Ld. Advocate Mr. Pratik Barot would submit that:-
(1) That the judgment and order of conviction passed by the Ld. Sessions Court is illegal, erroneous, improper and against the facts of the case and the Trial Court has committed grave error in convicting the present Applicant.
(2) That Ld. Trial Court ought to have seen the evidence of witnesses as the eye-witnesses of the present case has not supported the case of the prosecution and the complainant and the mother of the deceased who were claimed to be eye-
witness of the incident are the actually parents of the deceased and so the evidence of the said witnesses are not believable and trustworthy and it ought to have been relied upon.
Page 5 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined (3) That it is settled principle of law that the prosecution case has to stand on its own. Neither the prosecution nor the Hon'ble Court Should rely on weakness of defence. The Prosecution is supposed to establish the guilt of the accused beyond reasonable doubt.
4. Ld. APP Mr. L. B. Dabhi would submit that:-
4.1 The order of conviction passed by the learned Sessions Court is just and proper, having considered both oral and documentary evidence on record, qua the present appellant
- original accused No. 1. The manner in which the entire incident occurred has been clearly deposed to by the complainant and the eyewitnesses, whose testimonies are found to be credible and trustworthy. Minor discrepancies, which do not go to the root of the prosecution case, are not sufficient grounds for acquitting the appellant. Therefore, the Trial Court has not committed any error, either in fact or in law, in convicting the Accused No. 1.
4.2 However, the learned Trial Court failed to properly consider the role attributed to the co-accused. The Court ought to have carefully appreciated the depositions of the complainant, the mother of the deceased, the medical officer, and the police witnesses, all of whom supported the prosecution case. There is no justifiable reason to disbelieve their testimonies. It is therefore respectfully submitted that Page 6 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined the order of conviction qua Accused No. 1 deserves to be confirmed, and the acquittal of Accused Nos. 2 and 3 ought to be set aside by convicting them in accordance with law.
5. Heard Ld. Advocate for the respective parties. We have perused the paper Book. Before adverting into the facts of the present case, important principles governing case of culpable Homicide as enunciated by the Hon'ble Supreme Court in the case of Anbazhagan vs the State represented by the Inspector of Police reported in 2023 SCC Online SC 857, wherein, in para 66 the Hon'ble Supreme Court has held as under:-
"66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:-
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause Page 7 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'.
(4) Even if single injury is inflicted, if that particular injury Page 8 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all.
Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder Page 9 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
Page 10 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
In the aforesaid judgment, the Hon'ble Supreme Court in para 38 has held as under:-
"38. This Court in Phulia Tudu (supra) has observed that the academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the courts. The confusion is caused if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 of the IPC. The following comparative table will be helpful in appreciating the points of distinction between the two offences:-
Section 299 Section 300
A person commits culpable Subject to certain exceptions
homicide if the act by which culpable homicide is murder if
the death is caused is done- the act by which the death is
caused is done-
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Intention
(a) with the intention of (1) With the intention of
causing death or causing death ; or
(2) with the intention of causing
(b) with the intention of such bodily injury as the
causing such bodily injury as offender knows to be likely to
is likely to cause death or cause the death of the person
to whom the harm is caused; or
(3) with the intention of causing
bodily injury to any person and
the bodily injury intended to be
inflicted is sufficient in the
ordinary course of nature to
cause death or
Knowledge
(c) with the knowledge that (4) with the knowledge that the
the act is likely to cause act is so imminently dangerous
death. that it must in all probability
cause to cause death 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 as is
mentioned above.
Based on the aforesaid principle and considering the depositions of the two important eyewitnesses, namely Bhartiben Chandrakant Pawar, PW 7 at Exh. 51, and the father of the deceased and complainant, Chandrakant Pawar, PW 7A at Exh. 57, read with the deposition of Dr. Chandresh Tailor, PW 9, who performed the post-mortem on the deceased and prepared the post-mortem note at Exhibit 63, this Court has to consider whether the impugned judgment is sustainable qua the offence under Section 302 or Page 12 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined whether the case at hand falls within the provisions of Section 304 Part I or, alternatively, Section 304 Part II.
6. At the outset, it is required to be noted that despite the learned Advocate for the Applicant, Mr. Pratik Barot, having drawn the attention of this Court to the depositions of the aforesaid two eyewitnesses, he could not point out any major discrepancies or infirmities that shake the credibility of these eyewitnesses or cause damage to the substratum of the prosecution's case. However, he has addressed this Court on the aspect of the present case falling within the second part of Section 304 of the IPC. It is also pertinent to note that the State has filed an appeal being CRA No. 895/2017 against the acquittal of the accused namely (1) Kirit @ Lalu Sumanbhai Rathod and (2) Deepak Kanubhai Solanki. On considering the entire deposition of Bhartiben Chandrakant Pawar, with the intention of causing such bodily injury as the offender knows to be likely to cause the death PW 7, mother of the deceased, and Chandrakant Pawar, PW 7A, father of the deceased and complainant, it is stated in the examination-in-chief that except the present appellant, three other accused persons, among whom one was a juvenile, were giving blows with fists and legs to the deceased, which is also mentioned in the FIR (Exh. 58) filed by the father of the deceased. Except for these allegations and the fact that Page 13 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined all three had come to the residence before the alleged incident, no other role is attributed to the acquitted accused, namely (1) Kirit @ Lalu Sumanbhai Rathod and (2) Deepak Kanubhai Solanki.
7. On going through the PM Note at Exh. 108 and the deposition of the doctor at Exh. 61, namely Dr. Chandresh Tailor, PW 9, it is noted that out of a total of nine injuries, Injury Nos. 7 and 8 were contusions (chakamo), whereas Injury No. 9 was a scratch mark. Thus, even considering the medical evidence along with the oral evidence of the two eyewitnesses, it cannot be said that the role attributed to the acquitted appellants is proved beyond reasonable doubt, except for their mere presence long with the present appellant at the residence of the deceased and at the time of incidence.
8. When the High Court concur with the findings given by the Trial Court, it is not necessary to give separate detailed reasoning, under such circumstances, it would be profitable to refer the judgment of the Hon'ble Supreme Court in the case of State of Karnataka Vs. Hemareaddy, reported in AIR 1981 SC 1417, wherein it is held as under:-
"...This Court has observed in Girija Nandini Devi V. Bigendra nandini Chaudhary (1967) 1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the Page 14 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined Appellate court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the Trial Court expression of general agreement with the reasons given by the Court the decision of which is under Appeal, will ordinarily suffice."
Thus, we concur with the reasons recorded by the learned Sessions Judge while acquitting original accused Nos. 2 and 3 and find no error whatsoever, under such circumstances, we do not find it fit to entertain the acquittal appeal of the State being Criminal Appeal No. 895 of 2017, and therefore, the same is hereby rejected.
9. Oral Evidence of 2 eye witnesses:-
9.1. Bhartiben Chandrakant Pawar, mother of the deceased Rupesh, was examined as PW 7 vide Exh. 51. In her examination-in-chief, she deposed that the incident occurred on 26-05-2013, Sunday. She and her husband were present at their residence. Her son had gone to play cricket in the morning around 10:00 to 10:30 a.m. Around 10:45 to 11:00 p.m., Sunil and his three friends came to her residence and knocked on the door. Rahul inquired about Rupesh from her husband and told him that Rupesh had quarreled with him and had beaten him, and therefore, they intended to "finish" Rupesh. Thereafter, they left the place.
Her neighbors, namely Ranjanben, Poojaben, and Sarikaben, came to her residence and informed her that the boys had come with a heavy wooden log. This aroused Page 15 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined suspicion in her husband, who telephoned Rupesh. Rupesh informed him that he was just coming to his residence. She, her husband, and the neighbors Rachnaben, Sarikaben, and Poojaben went in search of Rupesh. Near the Milk Dairy, she saw the four boys who had come to her residence quarrelling with her son. Rahul struck Rupesh on the head with a wooden log, while the other three gave him thrusts and fist blows. Upon seeing the accused, she along with others immediately ran towards the scene, causing the boys to flee and leave the wooden log behind. They shouted for help, and people gathered at the spot. Much blood had oozed from Rupesh's wounds. Rupesh was taken to the hospital in the van of Bantibhai, who resides on the floor above their residence. Initially, Rupesh was taken to Amruta Hospital, where he was advised to be taken to Mahavir Hospital. He was then shifted to Mahavir Hospital, where after some time, the doctor informed her husband that Rupesh had expired. PW 7 identified Kirit, Deepak, and Rahul present in the court.
During cross-examination on behalf of accused no. 1, PW 7 admitted that her son was intelligent and strongly built and had a wide circle of friends, including persons residing in their society and the SMC Quarters. She acknowledged that the boys came around 10:45 p.m., and shortly after, Rachnaben had come to her residence. Her husband had telephoned Rupesh immediately after the boys Page 16 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined left. Despite shouting, no one from the public intervened, but a police jeep passing by stopped. She was very disturbed at the time. Police asked for her son's name but did not record it. She was unaware of the police's conversation on the phone or whether the police jeep was equipped with a wireless set. As far as she knew, there were two policemen in the jeep. She stated that police were present until Rupesh was taken in the van of Bantibhai. The following day, when she went to the police station, she did not find the policemen she had seen the previous night. Since it was dark and a crowd had gathered, she could not recollect the policemen's face. She clarified that neither she nor her husband took Rupesh's head in their lap; they only patted his face with their hands. Her hand became bloodstained, and she was wearing a nightgown, which she did not hand over to the police. Her husband sat on the rear seat of the van with Rupesh, and her brother-in-law's son, Bhavesh, was also present. Rupesh was bleeding. She did not know if the seat became bloodstained, but the clothes of her husband and Bhavesh were bloodstained. Initially, she denied but later admitted that Rachnaben informed her about the boys arriving on a red-colored two-wheeler, model Pleasure, with the wooden log. They reached Amruta Hospital around 11:00 p.m. The doctor did not examine Rupesh and advised them to go to Mahavir Hospital. She denied suggestions that treatment was given at Amruta Hospital before Rupesh was referred to Mahavir Hospital.
Page 17 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined They reached Mahavir Hospital within 10 minutes. Rupesh was taken to the emergency ward, but she did not go inside and did not know if the police were present there. She did not speak with doctors at either hospital. She stayed at Mahavir Hospital for one and a half hours and was later told to return home. She did not know if Rupesh was still undergoing treatment at that time. She denied suggestions that she did not witness the incident, that her son collided with a cabin while under the influence of liquor, or that a false case was registered against the accused.
During cross-examination on behalf of accused nos. 2 and 3, she stated that she met her son thrice on the day of the incident but he did not inform her of any quarrel. She has known Rachnaben and Poojaben for approximately 20 years. She did not know with whom Rupesh had gone to Piplod. Police did not interrogate her at the spot and did not conduct any procedure in her presence. She first saw her son dead when he was brought to their residence. Police interrogated her only once, the day after the incident. She denied that her statement was prepared by the police before recording. Identification parade was not conducted before her. She did not give any object to the police.
9.2 Complainant - Chandrakant Pawar was examined by the prosecution as PW 7A vide Exh. 57. In his examination- in-chief, the complainant stated that the incident took place Page 18 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined on 26-05-2013, Sunday. He was present at the residence. His son had gone to play cricket in the morning around 10:00 to 10:30 a.m. Around 10:45 to 11:00 p.m., Sunil and his three friends came to his residence and knocked on the door. Rahul inquired about Rupesh with him and told him that Rupesh had quarreled with him and had beaten him, and therefore, they intended to finish Rupesh. Thereafter, they left the place. Consequently, he telephoned Rupesh, who informed him that he was just coming home. He, along with his wife and neighbors Rachnaben, Sarikaben, and Poojaben, went in search of Rupesh near Milk Dairy. There, he found the four boys who had come to his residence quarreling with his son. Rahul struck Rupesh on the head with a wooden log, while the other three were giving thrust and fist blows to Rupesh. They immediately ran towards the scene, and on seeing them, all four boys fled, leaving the wooden log at the spot. Rupesh received major injuries on the left side of his head and became unconscious. People gathered as they shouted for help.
Rupesh was taken to the hospital in the van of Bantibhai. Initially, he was taken to Amruta Hospital but was advised to go to Mahavir Hospital. Rupesh was then taken to Mahavir Hospital, where after some time, the doctor declared him dead. Police arrived at Mahavir Hospital around 1:00 to 1:30 a.m. and informed him that four persons were apprehended, and he was asked to identify them. He lodged a complaint against the four persons. The Page 19 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined complainant identified his signature on the complaint, Exh. 58, and identified Kirit, Deepak, and Rahul present in the Court. is sufficient in the ordinary course of nature to cause death Police arrived at the spot in the morning and were carrying out procedures regarding the blood found there. The complainant identified muddamal article no. 3, the wooden log which Rahul was holding at the time of the incident, and muddamal articles nos. 4 to 6, which were the clothes of the deceased Rupesh. He also identified the clothes worn by the accused at the time of the incident as muddamal articles nos. 8 to 10.
During cross-examination on behalf of accused no. 1, PW 7A stated that police came to Mahavir Hospital around 1:00 to 1:30 a.m. and told him that the assailants were apprehended and asked him to come to the police station for identification. Police stayed at the hospital until around 1:30 to 2:00 a.m. He did not say that police were already present there before that time. He gave the complaint and then signed it but did not read it because he is illiterate and does not know any language. He is Maharashtrian by birth. The police insisted on seeing his son. Immediately after Rupesh was taken to the emergency ward, he was told that his son had expired, and thus, there was no question of treatment. It is not true that they stayed at Amruta Hospital for 30 to 45 minutes or that the doctor there examined Page 20 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined Rupesh. The lift at Amruta Hospital stopped for one to two minutes. The police did not inform him how they learned about the incident. He confirmed that the cabins are located on the side of the road and that police had come to the spot. Regarding what police saw, he answered that they were taking Rupesh to the hospital and he did not know if the police had telephoned from the spot. The van of Bantibhai had arrived immediately after Rupesh became unconscious. He did not hug his son or take his head in his lap, nor did he attempt to give him water or speak to him. He lifted Rupesh and placed him in the van. His clothes became bloodstained. He confirmed that his son was strongly built but could not specify whose hands and clothes were bloodstained while lifting Rupesh. He later stated that his clothes as well as Bhavesh's were bloodstained. He denied that the police had seen him lifting Rupesh or that police interrogated him after stepping down from the jeep. He did not know whether the police at Mahavir Hospital had seen the bloodstained van. He went to the police station in his brother-in-law's vehicle wearing the same clothes. Khatodara police had seen his bloodstained clothes, but details of these clothes were not recorded by the police, nor did he get them recorded. He got details recorded about the clothes worn by the deceased but not about the clothes worn by the assailants. The police never asked him which clothes the assailants were wearing. The police present at the spot did not instruct him to take the injured to the civil Page 21 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined hospital or any other hospital. He did not speak with doctors at Amruta or Mahavir Hospitals. He admitted that such wooden logs are commonly available in the market. He confirmed that his son's motorcycle was damaged, including the headlight, both front signal lights, and recent marks on the sides of both wheels. He had never been to Khatodara Police Station. The complainant denied the suggestions that the boys had not come to his residence, that he had not seen the incident, or that his son had already died before being taken to Mahavir Hospital.
During cross-examination on behalf of accused nos. 2 and 3, he stated that he met Rupesh only once on the day of the incident, and no conversation took place between them. Rupesh had not informed him of any quarrel. He denied that though Rupesh died in a vehicular accident, a false complaint was registered against the accused. He also denied that he witnessed the incident.
Oral evidence of 2 Doctors: -
9.3 Medical Officer Dr. Rajdeep Vasadiya, of Mahavir Hospital, was examined as PW 8 by the prosecution vide Exh. 58A. In his examination-in-chief, he deposed that on 27-05-2013, around 12:05 a.m., patient Rupesh was brought to Mahavir Hospital and examined under MLC Case No. 2895. Relatives of the patient gave a history that unknown persons caused injuries around 11:15 p.m. The Page 22 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined patient was bleeding from the head and both ears and was completely unconscious.
Upon physical examination, there was no pulse, the body was cold, blood pressure and SPO2 were not recordable, the heart was not beating, and breathing was absent. There was no movement of hands and legs, and no brain activity was detected. The exact time when the heart stopped functioning could not be determined.
This witness produced original case papers running into 50 pages at Exh. 60. Relatives had brought the patient to the emergency ward, informing that he was first taken to Amruta Hospital and then to Mahavir Hospital. The admission form was filled by Ajay Gajanand. The injuries found on the deceased were caused by a hard blunt object. The witness opined that such injuries could have been caused by the wooden log (muddamal article no. 3) shown to him.
During cross-examination on behalf of accused no. 1, the witness stated that anyone--relatives, society members, or police--can fill out the admission form. It is hospital policy to send the body for post-mortem when a patient expires. Exh. 59 is a proforma for sending the body for post- mortem and not an injury certificate.
Page 23 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined When the patient was brought to the hospital, his heart had stopped, the body was cold, eyeballs were dilated, and the brain showed no response, indicating that the patient had expired. The witness could not specify the exact time when the heart stopped or when the body became cold and unresponsive. He agreed that a clinically dead body was brought to the hospital.
When asked if relatives wanted case papers prepared, he replied that the hospital admits any patient with injuries or in coma. He clarified that medically, unconscious and coma states differ. The case papers (Exh. 60) did not mention that the patient was in coma. He denied that the injuries found on the deceased could result from a motorcycle dashing against a hard blunt object once or twice, or from dashing against a wooden cabin. To date, police had not inquired with the hospital about how the injuries were sustained. Witness denied the suggestion that a dead patient was admitted and that he gave false deposition before the Court.
9.4 The prosecution has examined Dr. Chandresh Tailor PW 9 vide Ex. 61.
The said witness in his examination-in-chief deposed that face of the dead body was found blood stained and body was also found blood stained. The said witness further deposed that following external injuries were found on the body of Page 24 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined deceased Rupesh Pawar.
1. A lacerated wound of size 3 cm x 1 cm x bone deep with underlying bone fracture present over right parietal eminence, 9 cm right to midline and 14 cm behind outer end of right supra- orbital ridge.
2. A lacerated wound of size 4 cm x 2 cm x bone deep with underlying bone fracture present over left side of forehead, 4.5 cm left to midline and over left eyebrow.
3. A lacerated wound of size 2 cm x 1 cm x bone deep with underlying bone fracture, present over left side of chin, 2 cm left to midline and 1 cm below lower lip.
4. A lacerated wound of size 1 cm x 1 cm x bone deep, with underlyingbone fracture present over chin in the midline, 0.5 cm below lower lip.
5. A lacerated wound of size 5 cm x 1 cm x tissue deep present horizontally over inner aspect of lower lip with broken upper and lower incisor teeth.
6. Palpable depressed fracture of nasal bone present.
7. A contusion reddish in colour of size 5 cm x 3 cm present over left zygoma.
8. A contusion reddish in colour of size 4 cm x 2 cm present over left side of chin immediately Page 25 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined below injury no.3.
9. An abrasion reddish in colour of size 1 cm x 0.5 cm present over bridge of the nose, in the midline, 3.5 cm below glabella.
This witness has depose to the effect that the injuries noted in the P.M. report can cause death. Fracture in the parietal region, consistent with injury No. 1; a depressed comminuted fracture on the left frontal region, consistent with external injury No. 2; a depressed fracture on the left lower jaw, consistent with external injury No. 3. Thus, corresponding to external injuries No. 1, 2, 3, 4, and 6 palpable fractures of bone and palpable depressed fractures of the skull bone, were present. The doctor has stated that the cause of death was due to cardio-cerebral injury because of blunt force impact.
Nothing inconsistent in the cross examination has come on record so as not to believe this witness. Thus, the factum of nature of injuries and cause of death is also proved form the testimony of this witness.
10. The Trial Court upon appreciation of the oral as well as documentary evidence on record and the manner of the assault and the nature of the injury upon the deceased was of the view that the case was one of culpable homicide amount to murder punishable under Section 302 of IPC and sentence the Appellant accordingly. It is against the Page 26 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined aforesaid finding of the Ld. Trial Court, the Appellant is before this Court by way of the present Appeal.
11. Learned advocate Mr. Pratik Barot has restricted his arguments only on the aspect that the case does not attract the provisions of Section 302 of IPC but falls within part II of Section 304 of IPC, since the accused could only be said to have knowledge that is likely by his act to cause death and not the intention to kill the deceased since, the entire incident has taken place because of the deceased having beaten the accused in the morning because of an vehicular accident and had no intention what so ever to murder or inflict injury which was likely to cause death.
12. It is a well-settled principle of law that intention is a state of mind and cannot be proved by the prosecution by leading any direct evidence but can be inferred from the facts which are proved. The intention can also be gathered from the nature of the weapon used, the body part on which the injuries are inflicted, the nature of injuries found on the body of the deceased, and the opportunity which the accused gets to commit the crime. Thus, the question which requires an answer in the present case is whether, on the facts and on the circumstances of the case on hand, this Court can maintain the conviction of the Appellant under Section 302 of IPC or, as argued by the Ld. Advocate for the Appellant, alter it to Section 304 - Part II of the IPC.
Page 27 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined As held in the case of Anbazhagan (Supra) for the purpose of holding the accused guilty of the offence punishable under the second part of Section 304 of IPC the accused is not required to bring his case within one of the exceptions of Section 300 of IPC and therefore, on reconsidering the facts of the case on hand, on the fateful day, the accused, along with three other co-accused, went to the residence of the deceased and asked whether the deceased was present or not, to which the father of the deceased asked what work they had? to which the present Appellant replied that Rupesh had quarreled with him and had also beaten him. Therefore, I am going to finish him today, and thereafter, they left the place. Thereafter, the father of the deceased called the deceased on his mobile and asked his whereabouts and stated that boys from the staff quarters had visited the residence and were searching for him, to which the deceased answered that "I am here only and coming to the residence," and the deceased disconnected the mobile phone. Thereafter, the complainant, father of the deceased, and mother of the deceased, Puja, Sarika, and Rachna reached near the staff quarters near Milk Dairy Cabin, and at that time, both the father and mother of the deceased saw that four persons who had visited their residence, out of whom Rahul was holding wooden log in his hand and the rest of the three accused were hitting his son with fists and kicks. At that Page 28 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined time, Rupesh's inflicted blow on the head of the deceased. They ran towards the deceased to stop him; before they could intervene, the appellant threw the bat at the place of incident and ran away. To this effect, the mother of the deceased, has also deposed. In cross-examination of both these witnesses nothing inconsistent with the alleged incident has come on record which shakes the credibility of the said two eye witnesses. The mother of the deceased has also specifically stated in examination-in-chief that on reaching Milk Dairy Cabin, all the four persons who had visited their residence were quarreling and Rahul was holding the wooden log in his hand and three persons were giving fist and kick blows to the deceased, and on seeing this, they ran towards the deceased, and the appellant dropped the wooden log at the place of incident and all of them ran away.
13. The injuries reflecting in the PM report includes a fracture in the parietal region, consistent with injury No. 1; a depressed comminuted fracture on the left frontal region, consistent with external injury No. 2; a depressed fracture on the left lower jaw, consistent with external injury No. 3. Thus, corresponding to external injuries No. 1, 2, 3, 4, and 6 palpable fractures of bone and palpable depressed fractures of the skull bone, were present. The cause of death was due to cardio-cerebral injury because of blunt force impact. As per the deposition of Dr. Chandresh Tailor, P.W. Page 29 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined 9 at Exh.61 the injuries noted in the P.M. report can cause death. However, has not stated that the injuries were sufficient in the ordinary course of nature to cause death.
14. On conscientious reading of evidence on record it is proved that the Appellant visited the residence of the deceased and inquiring about deceased, stating to the father of the deceased-complainant that he was beaten by the deceased in the morning and after leaving the residence of the deceased, inflicting injuries on the head of the deceased with a wooden log resulting in to death. The episode of Appellant inflicting injuries to the deceased was because the Appellant was infuriated due to incident that took place between the deceased and the Appellant in the morning where the accused was beaten by the deceased and thus from the oral as well as documentary evidence we find it too difficult to arrive at a conclusion that the present appellant intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. However, the Doctor has opined that the injury noted in the PM note can cause death of a person. As per the principles stated herein above, it can be held that the Appellant can only be attributed with the knowledge that if he inflicted injury on the head of the deceased, it was likely to cause death.
It is also not a case where the intention to cause injury or injuries sufficient in the ordinary course of nature to Page 30 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined cause death attracting culpable homicide amounting to murder ought to be safely arrived at. The Appellant, along with other co-accused had on seeing the father, mother and other persons arriving, immediately fled from the place of offence. The Appellant had also chance to come with a deadly weapon but was carrying a wooden log. Merely uttering the word "I will finish your son" just before the incident cannot be attributed to the Appellant so as to hold that the Appellant had clear intention to murder the deceased. Uttering of these words cannot be considered in isolation. Attended cirucmstances, are also required to be looked into to arrive at a logical conclusion. At the cost of repetition we say so because the Appellant was infuriated because of the incident that took place between the deceased and the Appellant in the morning, which was stated by the Appellant himself when he had gone to the residence of the deceased and informed his father that his son had beaten him in the morning. Therefore, whether the present Appellant had intention to inflict the injury or not can also be gathered from the fact that when the mother of the deceased, Bharatiben, reached at the place of incident at that time four accused and deceased were quarreling.
Thus, we are of the considered opinion that the Appellant had no intention to cause the particular injury with the intention of causing such bodily injury as the appellant knew to be likely to cause the death nor is it stated by the doctor that injury was sufficient in ordinary Page 31 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025 NEUTRAL CITATION R/CR.A/735/2017 JUDGMENT DATED: 18/09/2025 undefined course of nature to cause death. Under such circumstances, neither Clauses I, II, III nor Clause IV of Section 300 of IPC are attracted but the case falls within part three of Section 299 of IPC attracting part II of Section 304 of IPC. We cannot link up the act of the Appellant with the seriousness of the injury which is not the requirement of Section 300. In the case on hand from overall appreciation of oral as well as documentary evidence we do not see the evidence overlapping in such a manner that it attracts provisions of Section 300 of IPC.
15. In the aforesaid view of the matter, the present appeal is partly allowed. The Appellant is stated to have undergone more than 12 years of sentence. The conviction of Appellant under Section 302 IPC is altered to Section 304 Part II of the IPC for the sentence already undergone. However, we do not find it fit to alter the fine and in default thereof imprisonment handed down to the Appellant and same is upheld. Appeal is allowed to the aforesaid extent. Appellant be released from jail if not required in any other case. Record and proceedings of the Session Case be sent to the concerned Trial Court forthwith.
(ILESH J. VORA,J) (P. M. RAVAL, J) MMP Page 32 of 32 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Thu Sep 18 2025 Downloaded on : Fri Sep 19 00:19:09 IST 2025