Gujarat High Court
Harsurbhai Hakabhai Shiyal vs State Of Gujarat on 23 August, 2023
Bench: A.S. Supehia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 931 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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HARSURBHAI HAKABHAI SHIYAL & 2 other(s)
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1,2,3
MR. HARDIK K RAVAL(6366) for the Appellant(s) No. 1,2,3
MS DIVYANGNA JHALA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 23/08/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal is filed under Section 374 of the Code of
Criminal Procedure, 1973 (for short "the Cr.P.C.") against the judgment
and order dated 15.06.2016 passed by Additional Sessions Judge, Rajula,
in Sessions Case No.43 of 2011 (Old Sessions Case No.96 of 2010),
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wherein the learned Judge has convicted the present appellants for the
offence punishable under Section 302 of the Indian Penal Code, 1860 (for
short "the IPC") read with Sections 34 and 324 of the IPC, for the offence
punishable under Section 302 read with Section 34 of the IPC they are
sentenced to undergo rigorous imprisonment of life and to pay fine of
Rs.10,000/- and in default, to undergo further rigorous imprisonment of
two years, for the offence under Section 324 read with Section 34 of the
IPC they are sentenced to undergo rigorous imprisonment of three years
and to pay fine of Rs.2,000/- and in default, to undergo further rigorous
imprisonment of six months. The sentences are also ordered to run
concurrently.
2. The trial Judge acquitted the present appellants for the offence
punishable under Sections 147, 148 and 149 of the IPC and under Section
135 of the Gujarat Police Act. Further, the learned Judge acquitted the
accused nos.4 and 5 for the offence punishable under Sections 302, 324,
307, 34, 147, 148 and 149 of the IPC and under Section 135 of the
Gujarat Police Act.
3. The brief facts of the case are as under:-
3.1. On 02.08.2010, one Sagarbhai Bachubhai Shiyal lodged an FIR-
Exh.64 inter alia alleging therein that they are four brothers and four
sisters. It is alleged that on 01.08.2010 at around 9:00 O'clock when the
first informant was going towards Pan Galla, at that time one Harsurbhai
and his brother Dinesh, were sitting there and Harsur inquired from the
first informant as to where he was going but the first informant did not
reply, hence, Harsur slapped the first informant. The first informant
informed his brother Jayantibhai about the incident. Thereafter, both went
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at the place where Harsur along with his brothers namely Dinesh and
Jivan were present. It is alleged that when Jayantibhai asked Harsur that
why he slapped his brother Sagar (first informant), he became aggressive
and inflicted knife blow on his back, and when Jayantibhai fell down,
Dineshbai inflicted blow of knife on the side of his neck and when the
first informant tried to rescue his brother, Dinesh and Jivan caught him
and Harsur inflicted blow of knife on his left side of lower back also. It is
alleged that the first informant and his brother started shouting and,
therefore, their parents and other persons arrived over there and the
accused ran away from the place. It is alleged that Jayantibhai was being
referred to the hospital but he succumbed to the injuries.
3.2 On 02.08.2010 the FIR was registered at Marin Police Station,
Pipavav being C.R. No.I- 37 of 2010 for the offences punishable under
sections 147, 148, 149, 302, 307 and 34 of the IPC and under Section 135
of the Gujarat Police Act.
3.3 The investigation proceeded and the Investigating Officer filed a
charge-sheet before JMFC, Rajula. As the case was exclusively triable by
the Sessions Court, the JMFC committed the case before the Sessions
Court as per the provision of Section 209 of the Cr.P.C.
3.4 The aforesaid case came to be registered as (Old Sessions Case
No.96 of 2010) New Sessions Case No. 43 of 2011 and it came to be
transferred before the Additional Sessions Judge, Rajula for trial. The
charge (Exh.4) was framed against the appellants and other accused for
the offences punishable under Sections 147, 148, 149, 302, 307 and 34 of
the IPC and under Section 135 of the Gujarat Police Act. Thereafter, the
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prosecution examined 22 witnesses and relied upon 26 documentary
evidences.
3.5 After examining the documentary and oral evidence, vide the
impugned judgment and order at Exh.179, the Trial Court convicted the
appellants for the offence punishable under Sections 302, 324 and 34 of
the IPC, was pronounced on 15.06.2016 by the Additional Sessions
Judge, Rajula, in (Old Sessions Case No. 96 of 2010) New Sessions Case
No. 43 of 2011.
4. Learned advocate Mr.Hardik Raval appearing for the appellants
has submitted that the trial court has materially erred in convicting the
appellants by inappropriately appreciating the evidence on record. It is
submitted that the first informant did not disclose the names of the
assailants in the history given before both the medical officers and it is
only disclosed that the son of his elder uncle (dada) has inflicted knife
blow and hence, it can be presumed that only one person has assaulted the
first informant and his deceased brother. It is submitted that the contents
of the FIR reveal that the conduct of the first informant is unnatural as the
first informant ran away from the place after the alleged incident had
taken place.
5. Learned advocate Mr.Raval has further submitted that PW-1 i.e.
Dr.Ravjibhai Bachubhai Hadiya, who had undertaken the postmortem of
the deceased - Jayantibhai, in his deposition has admitted that the injuries
mentioned in column no.17 of the postmortem report may not cause death
of a person and hence, it can be said that the injuries sustained on the
deceased were not serious in nature.
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6. Learned advocate Mr.Raval has further submitted that the knives
(weapons), which are discovered by way of discovery panchnama, are not
identified by Bachubhai Kalubhai (PW-8), who is father of the deceased
and Raiyaben Bachubhai (PW-9), who is mother of the deceased and
hence, it cannot be said that the knives or the weapons, which have been
discovered, have been used in committing the offence. He, while
referring to the deposition of PW-8, PW-9 and PW-10, has submitted that
their evidence cannot be believed as they were not present at the scene of
offence or at the time of the alleged incident. It is submitted that the trial
court has failed to appreciate the major contradiction made in the
depositions of PW-8 and PW-9 relating to the presence of the
complainant at the scene of incident. It is submitted that the entire case of
the prosecution is premised on the deposition of the injured witness i.e.
PW-12 and no independent witnesses are examined, which would be vital
for the case of the prosecution. It is submitted the said witness would be
interested witness and hence, his version is not required to be believed.
7. Learned advocate Mr.Raval has further submitted that in fact so far
as the appellant no.3-Jivanbhai Hakabhai Shiyal is concerned, no role is
attributed to him for the alleged offence punishable under Section 302 of
the IPC and as per the case of the prosecution, he was holding the
complainant and hence, his conviction under the provisions of Section
302 of the IPC is required to be quashed. He has submitted that so far as
the role of accused no.1-Harsurbhai Hakabhai Shiyal is concerned, the
evidence reveals that he has inflicted knife blow on the back of the
deceased and the injury caused is of trivial in nature and not serious
enough, which would result in death of the deceased. It is submitted that
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so far as the evidence, which has surfaced on record relating to the
accused no.1-Harsurbhai Hakabhai Shiyal and the appellant no.3-
Jivanbhai Hakabhai Shiyal is concerned, the trial court has misdirected
itself in convicting them for a serious offence punishable under Section
302 of the IPC by taking aid of section 34 of the IPC.
8. Learned advocate Mr.Raval has submitted that the trial court, while
taking aid of Section 34 of the IPC, has convicted the appellants for the
offence punishable under Section 302 of the IPC without there being any
evidence satisfying the ingredients of Section 34 of the IPC. It is
submitted by him that in fact the deceased was present accidentally and
even if the case of the prosecution is believed after the incident, which
had occurred of allegedly slapping the complainant, he had called the
deceased and on his intervention, the accused no.2-Dineshbhai Hakabhai
Shiyal had inflicted blow of knife on his chest, whereas the accused no.1-
Harsurbhai Hakabhai Shiyal had inflicted knife blow on his back. Thus, it
is submitted by the learned advocate Mr.Raval that at the most the
accused no.2 can be convicted for the offence punishable under Section
304 Part-II of the IPC and not under Section 302 of the IPC by taking
shelter under the provisions of Section 34 of the IPC since the
prosecution is unable to prove that there was common intention of the
appellants to commit murder of the deceased. Thus, it is submitted that
the present appeal may be allowed and in case the court intends to convict
the appellant no.2, he may be convicted for the offence punishable under
Section 304 Part-II of the IPC.
9. In response to the aforesaid submissions, learned APP
Ms.Divyangna Jhala has submitted that conviction and sentence recorded
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by the trial court does not require any interference as the same is
precisely passed after appreciating the evidence, which has surfaced on
record. It is submitted by her that the complainant (PW-2), who is injured
witness, has in detail narrated the incident implicating the appellants in
the offence. She has submitted that in fact there was common intention on
behalf of the appellants to murder the deceased by inflicting blows of
knives on the vital parts of the deceased.
10. Learned APP Ms.Jhala has further referred to the FSL report (at
Exh.97) and the arrest panchnama and has submitted that the blood group
of the complainant is found on the clothes of the accused, which would
indicate that they were involved in the offence. So far as the contention
raised by the appellants for converting the conviction from punishable
under Section 302 of the IPC to Section 34 Part-II of the IPC, she has
submitted that the same does not require to be altered as the evidence
reveals that all the accused intended to commit murder of the deceased
and they had common intention to commit the offence. It is submitted
that the accused had inflicted serious injuries by using a weapon like
knife to commit murder of the deceased and hence, it is urged that the
conviction and sentence, as recorded by the trial court does not require to
be interfered with and hence, it is urged that the present criminal appeal
may not be entertained.
11. We have heard the learned advocates appearing for the respective
parties.
12. As per the charge at Exh.4, the case of the prosecution is that on
01.08.2010 at around 21 hours, when the first informant was going
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towards the Pan Shop, at that time the accused no.1-Harsurbhai Hakabhai
Shiyal, who was present with his brother Dineshbhai Hakabhai Shiyal i.e.
accused no.2, stopped him and inquired as to where he was going and the
accused no.1 slapped him. Being aggrieved, the complainant informed his
brother Jayantibhai (deceased), who came along with the first informant
and confronted the accused about his brother being slapped. The accused
no.1 got enraged and inflicted a knife blow on the back of the deceased,
and on his having been fallen down, the accused no.2 inflicted knife blow
below the neck of the deceased. On the intervention by the first
informant, he was caught hold by the accused no.2 and 3, and he was
inflicted blow of knife by the accused no.2 on his lower side of the back.
The reason for assault, as per charge is that the accused no.1 was
aggrieved by the rumors spread by the deceased and the complainant
branding the accused no.1 as a drunkard, due to which the accused no.1
was unable to married. The accused, with a common intention, formed an
unlawful assembly and murdered the deceased by using knives and
assaulted the complainant. The accused, who were five in number, were
charged with the offence, as mentioned hereinabove and ultimately the
trial court, after examining the oral as well as the documentary evidence,
has convicted the appellants i.e. the appellant nos.1, 2 and 3 and
sentenced as recorded hereinabove.
13. The complainant (PW-2), who is brother of the deceased,
registered a complaint at Exh.74. A perusal of the complaint reveals that
after assault by the accused, he raised hue and cry and accordingly, his
father as well as mother and sisters and other persons came at the place of
the incident and due to fear, he ran away and thereafter, the deceased-
Jayantibhai was taken to the hospital by his father and mother and his
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uncle Khodabhai and other persons in a car and where he was declared as
dead. The accused nos.1, 2 and 4 were arrested on 03.08.2010 at 18:30
hours to 19:30 hours while the accused no.5 was arrested on 06.08.2010
at 11:30 to 12:00 p.m. The appellant nos.1, 2 and 3 are the cousins of the
first informant and deceased, while the accused nos.4 and 5 are uncles of
the appellant and the deceased. Thus, the entire case of the prosecution is
that the deceased had arrived at the scene of offence in view of the slap
given by the accused no.1-Harsurbhai Hakabhai Shiyal to the
complainant and it is further alleged that since the deceased and the
complainant were spreading rumors about his drinking habit, due to
which he was not getting married, they inflicted knife blows on the
deceased as well as on the complainant. The complainant (PW-2) in his
evidence at Exh.73 has narrated the incident. In his deposition before the
court, he has mentioned the incident about the slap given by the accused-
Harsurbhai Hakabhai Shiyal, which he had informed to the deceased-
Jayantibhai, who was his brother. The evidence also reveals that the
deceased informed him that both of them will go and warn the accused
and accordingly, the deceased asked accused-Harsurbhai Hakabhai Shiyal
i.e. the accused no.1 and inquired from him about the reason for slapping
his brother and accordingly, on being asked so, the accused no.1-
Harsurbhai Hakabhai Shiyal got provoked and he inflicted knife blow on
the back of the deceased and accordingly, the deceased-Jayantibhai fell
down and thereafter, the second accused-Dinesh Hakabhai Shiyal took
out a knife and inflicted blow on below his neck. It is further deposed by
him that he intervened and at that time, the accused no.2-Dinesh
Hakabhai Shiyal and accused no.3-Jivanbhai Hakabhai Shiyal caught
hold of him and accused-Harsurbhai Hakabhai Shiyal inflicted knife blow
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on his back side. It is further admitted by him that there was some false
rumors being spread relating to the character of the accused-Harsurbhai
Hakabhai Shiyal due to which the incident had occurred.
14. In the cross-examination, which is done by the accused no.1, no
contradiction has been pointed out, and the evidence of the injured
witness (PW-12) has remained untainted and pristine. Thus, PW-12, who
is also injured witness, has precisely narrated the incident and also the
reason of the incident. His testimony cannot be merely discarded for the
reason that he was the brother of the deceased and he is an interested
witness. It is well settled proposition of law that the evidence, which is
of sterling quality, cannot be discarded merely because such evidence is
coming forth from a witness, who is related with the deceased and he is
an interested witness.
15. In our considered opinion, the evidence of PW-12 is more than
enough to establish the role of the accused, more particularly the accused
no.2 and accused no.1 in the offence. The evidence of the said eye-
witness and the contents of the F.I.R and charge clarify that the accused
no.3-Jivanbhai Hakabhai Shiyal did not inflict any blow nor he was
carrying any weapon. The only role attributed to the accused no.3 is
holding or restricting the complainant while blow of a knife was inflicted
by the accused no.1-Harsurbhai Hakabhai Shiyal on his lower back. At
this stage, we may refer to the deposition of Dr.Vijaybhai Shankarbhai
Boricha (PW-2), the Medical Officer, who has examined the
complainant. He has recorded history of the complainant and in his
history, he has stated that he has been assaulted by a knife by the son of
his grandfather at 9 O'clock. The doctor has further deposed that his
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blood pressure was normal and on examination of his injury inflicted on
the left side of upper back of the buttocks, there was a stab wound length
of 2.5 c.m. and width of 1.5 c.m. which, as per his knowledge, was
inflicted by a sharp cutting weapon. He has further deposed that the said
type of injury can be healed within 10-15 days. In the cross-examination,
it is elicited that such injury is simple injury, which can be inflicted by a
knife. Accordingly, PW-2 has issued the certificate at Exh.34. A perusal
of the certificate issued by PW-2 reveals that the complainant was
inflicted with the stab wound 2.5 c.m. to 1.5 c.m. muscle deep upper and
outer part of left buttock near left iliac crest. Thus, so far as the role of the
accused no.1-Harsurbhai Hakabhai Shiyal is concerned, he has inflicted a
knife blow on the complainant, which has caused simple injury and not a
grievous injury. It is also pertinent to note that though the discovery
panchanam, Exh.42 does not satisfy the requirement of section 27 of the
Evidence Act, however, the recovery of weapons is proved as per the
deposition of panch witness. PW-4. The F.S.L report, Exh.93 reveals
blood group "Á" on the knife recovered by accused no.2, Dinesh. As per
the FSL report, the complainant, PW-12 is having blood group. "Á". The
PW-12 has indentified the knives used in the offence.
16. We may now examine PW-1, Dr.Ravjibhai Bachubhai Hadiya,
who has undertaken the postmortem of the deceased and has also
examined the complainant. PW-1 has narrated the injuries inflicted on the
deceased in his deposition as well as the postmortem report at Exh.31. As
per the postmortem report and the deposition of the doctor, the following
injuries were found on the body of the deceased:-
(i) Deep sharp cutting piercing around in right subclavian
region size (1.0"x1 cm x 3.5")
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(ii) Deep sharp cutting, piercing wound on upper part of left
back region (back side of left shoulder) (1" x 0.0 cm x 2")
(iii) Lacerated wound left thumb and finger of right foot.
Irregular in shape.
In his deposition, PW-1 has admitted that the cause of death of the
deceased was the excessive blood loss due to cutting of the main vein. It
is further deposed by him that the injuries are caused by a sharp weapon.
It is admitted by him that the excessive blood loss has been caused due to
the injury no.1 and the death cannot occurred due to the injury no.3,
which was found on the toe of the foot of the deceased.
17. Thus, the deposition as well as the postmortem report establish that
there were three injuries caused by a sharp weapon like knife on the
deceased and fatal injury was the injury no.1, which was inflicted on the
left side of chest, which was 1 inch x 1 c.m.
18. From the aforenoted evidence of the eye-witness (PW-12) as well
as the complainant Exh.74, it is manifest that there were some rumors
being spread by the deceased and the complainant relating to the accused
no.1, due to which he was not getting married. The evidence also reveals
that presence of the deceased was incidental and he had approached the
accused after the complainant (his brother) complained about he being
slapped by the accused no.1. The deceased had confronted the accused
with regard to the incident of slapping his brother and on inquiry, about
the incident, the accused got provoked and the accused no.2 inflicted a
knife blow on the chest of the deceased, whereas the accused no.1
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inflicted a knife blow on his lower back. The complainant was also
assaulted and the accused no.1 also gave him a blow with the knife on his
back. Thus, the overall evidence reveals that there was some altercation
between the accused and deceased and the complainant and the accused
no.2 in a fit of rage inflicted one knife blow on the chest, which proved to
be fatal.
19. In these circumstances and in light of the established evidence, the
question, which requires to be examined, is whether the trial court has
appropriately convicted the accused under the offence punishable under
Section 302 of the IPC or not by taking aid of Section 34 of the IPC. As
narrated hereinabove, the evidence does not reveal that the ingredients of
Section 34 of the IPC, which reads as under, are established.
"34. Acts done by several persons in furtherance of
common intention.--When a criminal act is done by several
persons in furtherance of the common intention of all, each
of such persons is liable for that act in the same manner as if
it were done by him alone."
S. 34 of I. P. C. stipulates that when a criminal act is done by several
persons in furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it were done by him
alone. The kernel of S. 34 is simultaneous consensus of the minds of
persons participating in the criminal action for achieving a particular
consequence. Moreover, in order to attract the provision of S. 34, it is not
sufficient to prove that each of the participating culprits had the same
intention to commit a certain act. What is the requisite ingredient of S. 34
is that each must share the intention of the other. The intention or an
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understanding to commit a serious offence has to be drawn from the
conduct of persons sought to be made vicariously liable for the act of the
principal culprit or from some other incriminatory evidence, but the
conduct or other evidence must be such as not to leave any room for
doubt in that behalf. In order to attach vicarious liability, the Court has to
satisfy itself as to the prior meeting of the minds of the principal culprit
and his associates who are sought to be constructively made liable in
respect of every act committed by the former. To impose vicarious
liability on the accused with the aid of S. 34 I. P. C. is a very serious
matter, particularly when a person has died. The evidence has to be
examined very minutely when constructive liability is to be fastened upon
the accused. The prosecution has to establish the evidence beyond
reasonable doubt. In the present case, the state has not preferred any
appeal against the acquittal of the accused nos. 4 and 5. The accused no.1
is the relative of the complainant and his family. On a careful reading of
the evidence, it is manifest that presence of the deceased at the scene of
offence was subsidiary, as he had arrived on the information/complaint
given by his brother-complainant about the slap given by the accused
no.1. Thereafter, the incident has occurred. It is no more res integra that
the "common intention" can develop on the spot and prior meeting of
mind or pre-arraigned plan may not be necessary, but the prosecution has
to prove the ingredients of section 34 of the IPC in such circumstances by
leading cogent evidence which is not even remotely established in the
present case. Hence, the trial court has misdirected itself in invoking the
aid of section 34 of the IPC in convicting the appellants.
20. At this stage, we may with profit refer to the recent decision of the
Supreme Court in the case of Anbazhagan vs. The State Represented by
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the Inspector of Police, dated 20.07.2023 passed in Criminal Appeal
No.2043 of 2023. The Apex Court, after threadbare examination of the
law with regard to offence of "culpable homicide" as defined under
Section 299 of the IPC and "murder" as defined under Section 300 of the
IPC read with the provisions of Section 304 Part-II of the IPC and after
the survey of various judgments in this regard, has enumerated broad
principles in paragraph no.16, which reads as under:-
"60. 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 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
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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 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 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
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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.
(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."
21. We may also refer to the decision of the Apex Court, which is
already referred in the said judgment in the case of Tholan vs State of
Tamil Nadu, AIR 1984 SC 759, the paragraph nos.54, 56 and 59 read as
under:-
"54. In the case of Tholan v. State of Tamil Nadu, AIR 1984 SC 759, the
accused stood in front of the house of the deceased and used filthy language
against some persons who were unconnected with the deceased. The
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deceased came out of his house and told the accused that he should not use
vulgar and filthy language in front of ladies and asked him to go away. The
accused questioned the authority of the deceased to ask him to leave the
place. In the ensuing altercation, the accused gave one blow with a knife
which landed on the (right) chest of the deceased which proved to be fatal.
This Court came to the conclusion that the accused could not be convicted
under Section 302, but was guilty under Section 304 Part II. The
circumstances which weighed with this Court were : (i) there was no
connection between the accused and the deceased and the presence of the
deceased at the time of the incident, was wholly accidental; (ii) altercation
with the deceased was on the spur of the moment and the accused gave a
single blow being enraged by the deceased asking him to leave the place; (iii)
the requisite intention could not be attributed to the accused as there was
nothing to indicate that the accused intended the blow to land on the right
side of the chest which proved to be fatal.
56. In Kulwant Rai v. State of Punjab, (1981) 4 SCC 245, the accused,
without any prior enmity or premeditation, on a short quarrel gave a single
blow with a dagger which later proved to be fatal. This Court observed that
since there was no premeditation, Part 3 of Section 300 of the IPC could not
be attracted because it cannot be said that the accused intended to inflict that
particular injury which was ultimately found to have been inflicted. In the
facts and circumstances of that case, the conviction of the accused was
altered from Section 302 to that under Section 304 Part II IPC and the
accused was sentenced to suffer rigorous imprisonment for five years.
59. We may lastly refer to the decision of this Court in Pulicherla Nagaraju
v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500, wherein this
Court enumerated some of the circumstances relevant to finding out whether
there was any intention to cause death on the part of the accused. This Court
observed : (SCC pp. 457-58, para 29)
"29. Therefore, the court should proceed to decide the pivotal question of
intention, with care and caution, as that will decide whether the case falls
under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant
matters -- plucking of a fruit, straying of cattle, quarrel of children,
utterance of a rude word or even an objectionable glance, may lead to
altercations and group clashes culminating in deaths. Usual motives like
revenge, greed, jealousy or suspicion may be totally absent in such cases.
There may be no intention. There may be no premeditation. In fact, there may
not even be criminality. At the other end of the spectrum, there may be cases
of murder where the accused attempts to avoid the penalty for murder by
attempting to put forth a case that there was no intention to cause death. It is
for the courts to ensure that the cases of murder punishable under Section
302, are not converted into offences punishable under Section 304 Part I/II,
or cases of culpable homicide not amounting to murder, are treated as
murder punishable under Section 302. The intention to cause death can be
gathered generally from a combination of a few or several of the following,
among other, circumstances : (i) nature of the weapon used; (ii) whether the
weapon was carried by the accused or was picked up from the spot; (iii)
whether the blow is aimed at a vital part of the body; (iv) the amount of force
employed in causing injury; (v) whether the act was in the course of sudden
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quarrel or sudden fight or free for all fight; (vi) whether the incident occurs
by chance or whether there was any premeditation; (vii) whether there was
any prior enmity or whether the deceased was a stranger; (viii) whether there
was any grave and sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion; (x) whether the
person inflicting the injury has taken undue advantage or has acted in a cruel
and unusual manner; (xi) whether the accused dealt a single blow or several
blows. The above list of circumstances is, of course, not exhaustive and there
may be several other special circumstances with reference to individual cases
which may throw light on the question of intention ." (Emphasis
supplied)
The facts, circumstances and the evidence of the present case are
required to be examined in light of the aforesaid principles. The
circumstances which are required to be weighed by this Court as
enumerated in the case of Tholan (supra) are : (i) there was no
connection between the accused and the deceased and presence of the
deceased at the time of the incident, was wholly accidental; (ii)
altercation with the deceased was on the spur of the moment and the
accused gave a single blow being enraged by the deceased asking him to
leave the place; and (iii) the requisite intention could not be attributed to
the accused as there was nothing to indicate that the accused intended the
blow to land on the right side of the chest which proved to be fatal.
22. In the present case, the evidence establishes that presence of the
deceased was fortuitous and there was no premeditation amongst the
accused to commit murder of the deceased. As per the medical evidence,
the single injury, which has been inflicted on the chest of the deceased by
the accused no.2, led to blood loss, causing his death. Prior, to that the
accused no.1 has inflicted one blow of knife on the back of the deceased
which was not fatal. It appears that the assault was in a fit of rage, since
on being confronted by deceased the accused no.1 got enraged and
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inflicted the first blow, and the accused no.2 inflicted the fatal blow when
the deceased fell down.
23. In view of the aforesaid facts and the evidence, it can safely be
presumed that the accused no.2, who has inflicted the vital blow, did not
have guilty intention to commit murder, but he can be attributed with the
guilty knowledge that the injury, which was inflicted by him on the
deceased was sufficient in the ordinary course of nature to cause death.
The circumstances in the present case justify that the accused no.2 had
the knowledge that the infliction of such injury on the vital part of the
deceased would be fatal for him and would likely cause his death. Thus,
looking to the overall evidence on record, we find hard to agree with the
conclusion of the trial court convicting all the accused for offence
punishable under Section 302 read with Section 34 of the IPC.
24. On the bedrock of the aforesaid facts and the evidence, which has
been established on record, the conviction of the accused under the
provisions of Section 302 read with Section 34 of the IPC by the trial
court appears to be erroneous. The accused no.1 had inflicted a blow of
knife on the back of the deceased which, as per the medical evidence, was
not a fatal blow. The accused no.3 had caught hold of the complainant
and he had no role in the death of the deceased. The accused no.2, as
narrated hereinabove, has inflicted the fatal blow.
25. Under the circumstances and in light of the aforesaid facts, the
judgment and order of conviction and sentence recorded by the trial court
requires to be modified. The conviction of the accused no.2-Dinesh
Hakabhai Shiyal is altered from the provisions of Section 302 of the IPC
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to Section 304 Part-II of the IPC. The conviction of the accused no.1-
Harsurbhai Hakabhai Shiyal is also altered from the provisions of Section
302 of the IPC to Section 324 of the IPC. As a consequence, the
conviction of accused no.3, who is convicted under the provisions of
Section 302 of the IPC, is set aside and the same is altered to Section 324
of the IPC. As per the jail remarks, accused no.2-Dineshbhai Hakabhai
Shiyal has already undergone sentence of 12 years, 9 months and 8 days
as on 18.08.2023, accused no.3-Jivanbhai Hakabhai Shiyal has undergone
sentence of 7 years, 3 months and 2 days as on 17.08.2023 and accused
no.1-Harsurbhai Hakabhai Shiyal has undergone sentence of 12 years, 10
months and 6 days as on 18.08.2023.
26. Since the conviction of the appellant is altered and they have
already undergone the aforesaid sentences, they are ordered to be set at
liberty forthwith, unless their custody is not required in any other in case.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(M. R. MENGDEY,J)
ABHISHEK/1
