Gujarat High Court

Sendhabhai Kalubhai Thakor vs State Of Gujarat on 22 September, 2021

Bench: A.J.Desai

     R/CR.A/1009/2013                           JUDGMENT DATED: 22/09/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL APPEAL NO. 1009 of 2013
                              With
    CRIMINAL MISC.APPLICATION (TEMPORARY BAIL) NO. 1 of 2021
              In R/CRIMINAL APPEAL NO. 1009 of 2013
                              With
               R/CRIMINAL APPEAL NO. 1175 of 2013

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.J.DESAI

and

HONOURABLE MR. JUSTICE NIRZAR S. DESAI

==========================================================

1     Whether Reporters of Local Papers may be allowed               No
      to see the judgment ?

2     To be referred to the Reporter or not ?                        No

3     Whether their Lordships wish to see the fair copy              No
      of the judgment ?

4     Whether this case involves a substantial question              No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                        SENDHABHAI KALUBHAI THAKOR
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
CRIMINAL APPEAL NO. 1009 of 2013
MR NITIN M AMIN(126) for the Appellant(s) No. 1
MR JK SHAH, APP for the Opponent(s)/Respondent(s) No. 1
CRIMINAL APPEAL NO. 1175 of 2013
MR JK SHAH, APP for the Appellant(s) No. 1
MR DK CHAUDHARY, for the Opponent(s)/Respondent(s) No. 1-2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
          and
          HONOURABLE MR. JUSTICE NIRZAR S. DESAI



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     R/CR.A/1009/2013                                 JUDGMENT DATED: 22/09/2021




                           Date : 22/09/2021
                       COMMON ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)

1 Both these appeals are arising out of

judgment and order of conviction and sentence dated

14.05.2013 rendered by 2nd Additional Sessions Judge,

Ahmedabad (Rural), Ahmedabad in Sessions Case No.10

of 2012 convicting accused No.1 - Sendhabhai Kalubhai

Thakor under Section 302 of the Indian Penal Code,

1890 and sentencing him to undergo life imprisonment

and to pay a fine of Rs.3,000/-, in default thereto,

to further undergo 1 month imprisonment. The trial

court acquitted accused No.1 for the offences under

Section 504 and 34 of the Indian Penal Code. The

learned trial judge acquitted accused No.2 - Dungarji

Iswarji Thakor and accused No.3 - Maheshbhai

Lakshmanbhai Thakor for the offences under Section

302, 504 and 34 of the Indian Penal Code by giving

benefit of doubt. Criminal Appeal No.1009 of 2013 is

filed by accused No.1 - Sendhabhai Kalubhai Thakor

challenging the judgment and order of conviction and

sentence dated 14.05.2013, whereas Criminal Appeal

No.1175 of 2013 is filed by the State challenging the

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

acquittal of accused No.2 - Dungarji Iswarji Thakor

and accused No.3 - Maheshbhai Lakshmanbhai Thakor for

the offences under Section 302, 504 and 34 of the

Indian Penal Code.

2 Considering the fact that the appellant of

Criminal Appeal No.1009 of 2013 is in jail since

15.01.2012 i.e. for more than 9 years and considering

the earlier order dated 07.07.2021 and with the

consent of learned counsel for the parties, both the

appeals are taken up for hearing.

3 The case of the prosecution is as under:

3.1 The complainant - Chodabhai Laxmanbhai had

lodged First Information Report before Viramgam Rural

Police Station on 14.01.2012 alleging inter alia that

he was residing at village Dumana and doing

agricultural activities. They are, in all, five

brothers and sisters. It is alleged that on the

fateful evening, he was sitting at his home, at that

time, resident of said village - Rajubhai Chaturbhai

Thakor came and informed that accused - Maheshbhai

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

Laxmanbhai Thakor and Dungarji Ishwarji Thakor

caught hold of his brother - Janakbhai and the

accused, Sendhabhai Kalubhai gave knife blow on his

chest and on hearing this, the complainant, his wife

- Muktaben and son - Khodabhai reached the scene of

offence, where they found Janakbhai was lying in

unconscious condition and therefore he was taken to

Government Hospital, Viramgam, where the doctor

declared him dead. It is alleged that some verbal

altercation took place at the place of offence and

hence having got excited, the accused have committed

alleged offence. It is further alleged that eight

months prior to the alleged incident, some dispute

arose due to the illicit relationship between accused

No.1 and the wife of Janakbhai and keeping grudge of

that, the accused have committed alleged offence.

Accordingly, the said FIR was registered with

Viramgam Rural Police Station for the offences

punishable under Sections 302, 504 and 34 of the

Indian Penal Code. Upon completion of investigation,

on the basis of the material collected against the

accused persons, the Investigating Officer found a

prima facie case against the accused and charge sheet

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

came to be filed before the court of learned Judicial

Magistrate, first Class, Viramgam for the alleged

offences, which came to be registered as Criminal

Case No.445 of 2012. Since the offence alleged

against the accused persons was triable by the Court

of Sessions, the case was committed to the court of

sessions under Section 209 of the Code of Criminal

Procedure, 1973, which came to be registered as

Sessions Case No.10 of 2012.

3.2 On committal, the case was transferred and

placed for trial before the learned 2nd Additional

Sessions Judge, Ahmedabad (Rural), Ahmedabad, who had

initially framed charge vide Exh.2 for the alleged

offence. The charge was read over and explained to

the accused. Plea of each accused came to be recorded

vide Exhs.3 & 5, wherein the accused pleaded not

guilty to the charge and claimed to be tried.

3.3 In order to bring home the charge leveled

against the accused, the prosecution has examined as

many as 16 witnesses and relied upon their oral

testimony. The prosecution has also produced 26

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

documents viz. Complaint, inquest panchnama,

postmortem note, postmortem of recovery of weapons,

etc. and relied upon the contents of the same. After

recording the evidence of the prosecution witnesses,

the learned Additional Public Prosecutor submitted

closing purshis. Thereafter the learned trial court

explained to the accused the circumstances appearing

against them in the evidence of the prosecution

witnesses and recorded their further statements under

Section 313 of the Code. In their further statements,

they denied the case of the prosecution in entirety

as according to them they have been roped in a false

case. However, they have neither led any evidence

nor did they examine any witnesses in support of

their defence.

3.4 At the end of trial, on appreciation,

evaluation, analysis and scrutiny of the evidence on

record, the learned 2nd Additional Sessions Judge,

Ahmedabad (Rural), Ahmedabad vide judgment and order

dated 14.05.2013 passed in Criminal Case No.10 of

2012, convicted and sentenced accused No.1 and

acquitted accused Nos. 2 and 3, as stated above.

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

4 Heard Mr. Nitin Amin, learned advocate for

the appellant and Mr. J.K.Shah, learned APP for the

respondent State in Criminal Appeal No.1009 of 2013

and Mr. J.K.Shah, learned APP for the appellant State

and Mr. D.K.Chaudhary, learned advocate for

respondents - accused Nos.2 and 3 in Criminal Appeal

No.1175 of 2013.

5 Mr. Nitin Amin, learned advocate for the

appellant accused No.1 submitted that it is not in

dispute that deceased Janakbhai died of the incident

in question and due to stab injury. He submitted that

in view of occurrence of incident is not disputed, he

restricts his challenge to the conviction of

appellant - accused - Sendhabhai Kalubhai Thakor

under Section 302 of the IPC and submitted that

considering the facts and circumstances of the case,

the appellant - accused ought to have been convicted

under Section 304 Part-II of the IPC and hence by way

of this appeal he has emphasized to convert the

aforesaid sentence under Section 302 of the IPC into

Section 304 Part-II of IPC. He, therefore, did not

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

plead total innocence of the accused appellant of

Criminal Appeal No.1009 of 2013 and requested to

reduce the sentence of the appellant by treating the

offence committed by the appellant as offence under

Section 304 Part-II of IPC. He further submitted that

the offence allegedly committed by the appellant

cannot be treated as murder as defined under Section

300 of the IPC, but would fall under exception 4 of

Section 300 of the IPC, and therefore, according to

him it cannot be said to be a culpable homicide of

murder and would fall under Part-II of Section 304 of

the IPC.

5.1 To substantiate his contention, learned

advocate Mr. Amin took us through the evidence on

record. First of all, Mr. Amin took us through the

evidence of eye witness PW-12 Mukeshbhai Govindbhai

Exh.40 wherein PW-12 stated that the incident took

place at a distant place and not at the residence or

nearby the residence of the deceased. By reading over

deposition of PW-12 Mukeshbhai Govindbhai, Mr. Amin

pointed out that the incident occurred at around 6.00

in the evening in the outskirts of village near a pan

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

shop. All the three accused came on bike, some

altercation took place and appellant - accused pulled

out a knife and gave a blow to deceased Janakbhai.

From the deposition of the said witness and from

cross-examination, Mr. Amin pointed out that the said

witness happens to be relative of complainant -

Chudabhai, and even if that fact is discarded then

also what can be seen from the deposition of PW-12 is

that only one blow of knife was given to deceased by

the appellant. He further submitted that since the

place of offence was nowhere nearby the residence of

the deceased and there was no premeditation and it

was just because of some altercation, the accused got

excited and gave a single blow of knife to the

deceased. He submitted that had there been any

intention to kill the deceased, the appellant -

accused No.1 could have given more knife blows and it

would not be limited to just for one blow. He further

submitted that while giving one blow of knife the

accused had no knowledge that the deceased would be

killed.

5.2 Mr. Amin, learned advocate for accused

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

No.1, thereafter took us through the evidence of

another eye witness PW-10 Rajubhai Chaturbhai Thakor

Exh.38 and submitted that the deposition of PW-10

Rajubhai and PW-12 Mukeshbhai are on similar line

that the appellant along with the accused came on

bike near the pan shop where the deceased and eye

witnesses were standing, some altercation took place

and the appellant gave one blow of knife on the chest

of the deceased.

5.3 Thereafter, Mr. Amin took us through the

postmortem report, wherein details about injuries are

stated in column 17, wherein it was mentioned that

there was stab would admeasuring 4 cms. long and 8

cms. deep at the left side of the chest at the level

of heart region and the cause of death was due to

hemorrhage as a result of injury to vital organs like

heart and lung. After showing the postmortem report,

learned advocate Mr. Amin took us through the

deposition of PW-14 Dr. Subhash Kanjibhai Prajapati

Exh.58, who carried out postmortem and from his

deposition also he pointed out that there was a

single blow given by the present appellant to the

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

deceased and from his cross-examination he pointed

out that even the doctor, who carried out postmortem

opined that, had the immediate treatment was given to

the deceased he could have been saved and on the

basis of the aforesaid opinion, Mr. Amin submitted

that this also shows that the present appellant

neither had intention nor knowledge to kill the

deceased.

5.4 Since the learned advocate Mr. Amin has

restricted his challenge to the judgment impugned to

the extent of conviction of the appellant - accused

No.1 under Section 302 of the IPC and he has not

challenged the aspect of holding the present

appellant guilty as if he has not committed any

office, but has argued the appeal only for the

purpose of converting the conviction of the appellant

from Section 302 to Section 304 of the IPC and to

reduce the sentence accordingly. Learned advocate Mr.

Amin did not discuss the other evidence at length and

made submission on any other aspects than challenging

the conviction of the accused - appellant under

Section 304 and to reduce the sentence imposed upon

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

the appellant accordingly.

5.5 Mr. Nitin Amin, learned advocate for the

appellant by relying upon judgments of the Apex Court

in the case of [1] Hariram vs. State of Haryana

reported in 1983(1) SCC 193 [2] Jagtar Singh vs.

State of Punjab reported in 1983(2) SCC 342 and (3)

Stalin vs. State represented by the Inspector of

Police reported in (2020)9 SCC 524, submitted that

when there is death due to single blow caused to the

deceased unless is proved and when it is without any

knowledge or intention, the conviction would be under

Section 304 Part-I or under Section 304 Part-II, but

not under Section 302 of the IPC and urged that in

the instant case also the conviction of the appellant

be converted into Section 304 Part-II from Section

302 of the IPC and reduce the punishment accordingly.

6 As against that Mr. J.K.Shah, learned APP

appearing for the respondent State submitted that it

is true that there is only one knife blow given on

the chest of the deceased. However, whether the

conviction of the accused appellant can be converted

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

into Section 304 of the IPC or not can be examined

only by the circumstances, which led to occurrence of

the offence. He further submitted that it is deposed

by PW-12 Mukeshbhai one of the eye witnesses at

Exh.40 that the reason behind the incident was so-

called illicit relationship between the appellant and

wife of the deceased. He further submitted that even

PW-9 Chudabhai Laxmanbhai Thakor Exh.37 also in his

cross examination admitted the fact that there was

some illicit relationship between wife of the

deceased and the appellant. Mr. Shah submitted that

therefore the present appellant had a motive to kill

the deceased. He further submitted that as per the

postmortem report, the knife wound on the left side

of the chest was 4 cms. long and 8 cms. deep, which

shows that the blow was given with full force with an

intention and knowledge to kill the deceased. On the

basis of the aforesaid submissions, learned APP Mr.

Shah prayed for dismissal of Criminal Appeal No.1009

of 2013 and to confirm the conviction rendered by the

learned trial judge under Section 302 of the IPC.

7 With respect to Criminal Appeal No.1175 of

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

2013 filed by the State against the acquittal of

respondents - accused Nos.2 and 3, Dungarji Iswarji

Thakor and Maheshbhai Lakshmanbhai Thakor,

respectively the learned APP submitted that the

learned Judge has not properly appreciated the oral

as well as documentary evidence inasmuch as even as

per the version of the eye witnesses, the accused

Nos.2 and 3 had caught hold of the victim. Learned

APP further submitted that as the accused Nos.2 and 3

had caught hold of the deceased and the accused No.1

gave knife blow, all the three together have acted in

furtherance of common intention in respect of

committing offence under Section 302 of the IPC and

since there was common intention they were required

to be convicted under Section 302 of the IPC. Learned

APP also took us through the evidence of both the eye

witnesses PW-12 Maheshbhai and PW-10 Rajubhai Thakor

as well as evidence of complainant - PW-9 Chodabhai

Exh.37 and submitted that both the eye witnesses have

categorically stated that accused Nos.2 and 3 caught

hold of the deceased and that itself is sufficient to

convict accused Nos.2 and 3 also for the offence

under Sections 302, 504 and 34 of the IPC.

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

8 In acquittal appeal, learned advocate Mr.

Chaudhary for the respondents - accused Nos.2 and 3

submitted that the learned trial Judge has in detail

analyzed the evidence and submitted that even if it

is believed that accused Nos.2 and 3 had caught hold

of the deceased, considering the facts and

circumstances, it has come on record that they were

not carrying any weapon. At the same time, it has

also not come on record that the accused No.1 had any

intention or knowledge about killing of the deceased

and out of altercation, all of a sudden in the heat

of moment, accused No.1 gave knife blow on chest of

the deceased, and accused Nos.2 and 3 were absolutely

unaware of likelihood of occurrence of any such

incidence, and therefore, they have rightly been

acquitted by the learned trial Judge.

8.1 Mr. Chaudhary, learned advocate for

respondents - accused Nos.2 and 3 relying upon

judgment of the Hon'ble Court in the case of

Ezajhussain Sabdarhussain vs. State of Gujarat

reported in [2019(14) SCC 339] submitted that mere

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

fact that accused persons caught hold of the deceased

facilitating other accused persons to give knife blow

cannot be said that the accused had any common

intention to kill the deceased. He further submitted

that there was no pre-arrangement in mind of the

accused Nos.2 and 3 and altercation between the

accused No.1 and deceased took place, and therefore,

out of excitement and in a spur of movement, accused

No.1 gave a knife blow to the deceased. He further

submitted that merely because accused Nos.2 and 3

accompanied accused No.1 would not attribute any

common intention to the accused Nos.2 and 3.

8.2 Thereafter, learned counsel Mr. Chaudhary

relying upon judgment of the Hon'ble Apex Court in

the case of Bishu Sarkar vs. State of West Bengal

reported in [2017(11) SCC 105 and submitted that even

if it is believed that the accused Nos.2 and 3 had

caught hold of the deceased then also from the record

it does not come out that whether such act of

catching hold of the deceased by the accused Nos.2

and 3 was intended to enable the accused No.1 to give

vital blow to the deceased. Learned advocate Mr.

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Chaudhary, by relying upon the above judgments of the

Hon'ble Apex Court, submitted that in similar facts

of the case, Hon'ble Apex Court quashed and set aside

the impugned judgment of conviction and acquitted the

co-accused, who had caught hold of the deceased.

Learned advocate Mr. Chaudhary, relied upon judgment

of this Court in the case of Deni @Lalo Vikramsinh

Punamsinh Khant & Ors. vs. State of Gujarat reported

in 2014(2) GLH 368 and submitted that neither there

was common intention on the part of the accused Nos.2

and 3 nor any prior meeting of minds was proved by

the the prosecution. Learned advocate for the accused

Nos.2 and 3 lastly prayed for dismissal of the appeal

preferred by the State against the acquittal of

accused Nos.2 and 3.

9 We have heard learned advocates for the

parties in respect of both the appeals. We have also

examined the judgment and order of conviction and

sentence rendered by the learned trial Judge and we

have also perused the paper book. On examination of

the evidence, we found that it is true that the

deceased had died, but both the eye witnesses have

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

categorically stated that a single blow of knife was

given on the chest of the deceased. Furthermore, the

said aspect was supported by Medical Officer as even

in the postmortem report, there is mention of only

one blow of knife on the chest of the deceased. As

per the evidence of PW-15 Dr. Subhash Prajapati, who

examined the deceased and carried out postmortem also

has categorically stated that there was only single

blow of knife on the chest of the deceased and had

there been immediate medical help provided to the

deceased, he could have been saved. Further though

the theory of there being illicit relationship

between the wife of the deceased and the appellant -

accused No.1 was pressed into service by the

prosecution to substantiate the conviction of the

accused - appellant under Section 302. On examination

of the record, we find that though there is a

reference about illicit relationship between the wife

of the deceased and accused No.1, but there is

nothing on record to prove the same. In fact, PW-12

had in his cross-examination has categorically stated

that he has only heard about illicit relationship

between wife of the deceased and accused No.1.

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Similarly PW-9, who happens to be relative of the

deceased, has also in his cross-examination stated

that during `Dashama Vrat' as the deceased and the

accused No.1 were working together earlier when wife

of the deceased took that vrat, and therefore, the

appellant accused had come to see her and by saying

the aforesaid fact, he came to the conclusion that

there was some illicit relationship between wife of

the deceased and accused No.1. Similarly, another eye

witness Rajubhai PW-10 also in his cross-examination

has categorically stated that he does not know that

on what subject deceased and accused No.1 picked up

altercation. Even his version also does not support

the theory of prosecution that there was any illicit

relationship between wife of the deceased and accused

No.1, which resulted into death of deceased.

9.1 All the aforesaid facts would go to show

that in fact there was no motive on the part of the

accused No.1 to kill the deceased. It is true that

some altercation took place and in heat of moment,

the appellant - accused No.1 gave single blow on the

chest of the deceased, which resulted into his death.

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In this context, the Hon'ble Apex Court the case of

Stalin (supra), in paragraphs 7.2 to 12, observed as

under:

"7.2 From the above stated decisions, it emerges that there is no hard and fast rule that in a case of single injury Section 302 IPC would not be attracted. It depends upon the facts and circumstances of each case. The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. It cannot be laid down as a rule of universal application that whenever the death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case, more particularly, under the circumstances narrated hereinabove, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without intention to cause death. It is the totality of the circumstances which will decide the nature of offence.

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8. Now, so far as the submission on behalf of the accused that the motive alleged is of the incident prior to four months of the present incident and that the prosecution has failed to establish and prove is concerned, it is required to be noted that in the present case there are three eye-witnesses believed by both the Courts below and we also do not doubt the credibility of PWs 1, 2 and 3. As held by this Court in catena of decisions, motive is not an explicit requirement under the Penal Code, though "motive" may be helpful in proving the case of the prosecution in a case of circumstantial evidence. As observed hereinabove, there are three eye-witnesses to the incident and the prosecution has been successful in proving the case against the accused by examining those three eye-witnesses and therefore, as rightly observed by the High Court, assuming that the alleged motive is the incident which had taken place prior to four months or the prosecution has failed to prove the motive beyond doubt, the same shall not be fatal to the case of prosecution.

9 As observed and held by this Court in the case of Jafel Biswas v. State of West Bengal (2019) 12 SCC 560, the absence of motive does not disperse a prosecution case if the prosecution succeed in proving the same. The motive is always in the mind of person authoring

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the incident. Motive not being apparent or not being proved only requires deeper scrutiny of the evidence by the courts while coming to a conclusion. When there are definite evidence proving an incident and eye-witness account prove the role of accused, absence in proving of the motive by prosecution does not affect the prosecution case.

10 Applying the law laid down by this Court in the aforesaid decisions, more particularly the decisions on the single injury and the facts on hand, it is required to be considered whether the case would fall under Section 302 IPC or any other lesser offence. PW3 - Nelson, who is an eye-witness to the incident right from the beginning, deposed that when the deceased - Kalidas served extra beer to two persons who came from outside, the accused became angry and told the deceased why he is giving more beer to out-town people and not giving to local people and thereafter the problem started and in that scuffle the accused took out the knife and stabbed from behind. From the medical evidence, the deceased sustained the following injuries:

"External Injuries:

A stab wound about 3 x 1.5 cm and 8 cm deep with clean edges present over the back on the right

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

side corresponding to D11 vertebera present. Wound edges swollen, read with adherent blood."

11 As per Exception IV to Section 300 IPC, 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 and not having acted in a cruel or unusual manner. In the present case, at the place of incident the beer was being served; all of them who participated in the beer party were friends; the starting of the incident is narrated by P.W.3, as stated hereinabove. Therefore, in the facts and circumstances, culpable homicide cannot be said to be a murder within the definition of Section 300 IPC and, therefore, in the facts and circumstances of the case narrated hereinabove and the manner in which the incident started in a beer party, we are of the opinion that Section 302 IPC shall not be attracted.

12 Now, the next question which is posed for consideration of this Court is whether the case would fall under Section 302 IPC Part II IPC? Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, it

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is to be presumed that causing such bodily injury was likely to cause the death. Therefore, the case would fall under Section 304 I of the IPC and not under Section 304 Part II of the IPC."

9.2 Keeping in mind the observations made by

the Apex Court coupled with the fact that there was a

single blow given to the deceased, which resulted

into death of the deceased, AND at the same time,

there is nothing on record to prove that there was

any prior meeting of minds or that there was any

intention or knowledge to kill the deceased. All that

can be seen from the record is that some altercation

between the deceased and the appellant - accused No.1

took place, accused No.1 got excited and all of a

sudden pulled out knife and gave blow to the deceased

without there being any knowledge or intention that

such blow would result into killing the deceased.

Considering the facts and circumstances of the case

and the law laid down by the Apex court on the

subject, we are of the considered opinion that this

is a fit case to convert the conviction of the

appellant from Section 302 to Section 304 Part-II in

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Criminal Appeal No.1009 of 2013.

9.3 So far as Criminal Appeal No.1175 of 2013

preferred by the State challenging the acquittal of

the accused Nos.2 and 3 is concerned, the judgment of

the Hon'ble Supreme Court in the case of Ezazhussain

Sabdarhussain (supra) is helpful in analyzing the

facts of the case on hand. In Ezazhussain

Sabdarhussain (supra), the Hon'ble Apex Court in

paragraphs 21 to 23 observed as under:

"21. The judgment relied upon by the learned counsel for the respondents in Ramesh Singh's case(supra) was a case where as per the case of prosecution, there was a death in the family of A-2. They wanted certain "samagri" for the funeral. On 30th April, 1998 at about 11.00 am, since the deceased refused to give some samagri, they became annoyed and accused persons went away and came back together at about 11.45 a.m. and called the deceased out of the house and while the two accused persons were holding the hands of the deceased, the other accused stabbed the deceased on his chest. They came with a common intention and equally participated in the commission of crime. However, in the instant case, there was no pre-arrangement of mind and

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altercation took place between accused no. 1 Iftekharhussain Sabdarhussain with the deceased Mohammad Shakil who was accompanied with accused no.2 Shefakathussain Sabdarhussain and family members of deceased and in furtherance thereof, accused no. 1 Iftekharhussain Sabdarhussain and accused no. 2 Shefakathussain Sabdarhussain brought a knife and gupti and stabbed the deceased. No presumption can be drawn of common intention by implicating the accused appellants under Section 34 IPC.

22. Another judgment of this Court referred by the learned counsel for the respondent in Goudappa and Others(supra). It was a case where the accused persons were armed with lethal weapons assembled at one place and the moment the deceased came out of the house to spit, one of the accused started abusing him and the other accused persons held the deceased and facilitated the other accused to give the fatal blow and made no effort to prevent him from assaulting the deceased and their common intention clearly emanates from the criminal act in furtherance of the intention which in the instant case may not be of any assistance. As already observed, there cannot be a universal rule in laying down the principles of existence of common intention of prior meeting or meetings with pre-arranged plan. It has to be proved either from the conduct or circumstances of any

R/CR.A/1009/2013 JUDGMENT DATED: 22/09/2021

incriminating facts which is missing in the instant case.

23. In our considered view, the High Court has committed a manifest error in holding the appellants guilty under Section 302 read with Section 34 IPC for participating in the commission of crime. The appellants deserve to be acquitted of the charges filed against them by giving them benefit of doubt."

9.4 Keeping in mind the aforesaid ratio of the

Hon'ble Apex Court and considering the facts on hand,

we are of the view that even in the present case also

nothing has come on record to show that there was

prior meeting of minds or any pre-arranged plan or

any common intention to kill the deceased on the part

of the accused Nos.2 and 3. Merely because they had

caught hold of the deceased, the accused Nos. 2 and 3

cannot be presumed to have common intention to kill

the deceased.

10 In view of the above discussion, Criminal

Appeal No.1009 of 2013 is partly allowed. The