Minbahadur @ Manbahadur Nepali (Damai) vs State Of Gujarat
2023 Latest Caselaw 8568 Guj

Gujarat High Court

Minbahadur @ Manbahadur Nepali (Damai) vs State Of Gujarat on 11 December, 2023

Author: A.S. Supehia

Bench: A.S. Supehia

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     R/CR.A/2515/2019                           JUDGMENT DATED: 11/12/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 2515 of 2019


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA
and

HONOURABLE MR. JUSTICE VIMAL K. VYAS
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1     Whether Reporters of Local Papers may be allowed               No
      to see the judgment ?

2     To be referred to the Reporter or not ?                        Yes

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 ?

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                MINBAHADUR @ MANBAHADUR NEPALI (DAMAI)
                                Versus
                          STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR. AAMIR S PATHAN(7142) for the Appellant(s) No. 1
MS. KRINA CALLA, APP for the Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
          and
          HONOURABLE MR. JUSTICE VIMAL K. VYAS

                            Date : 11/12/2023
                            ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. The present appeal filed under Section 374(2) of the Criminal Procedure Code, 1973 (for short, "Cr.PC") emanates from the judgment and order dated 30.03.2019 passed by 2 nd Additional

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Sessions Judge, Chhota Udaipur in Sessions Case No.15 of 2016, whereby the learned Judge has convicted the present appellant - sole accused for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, "the IPC") and has directed him to undergo rigorous imprisonment for life and fine of Rs.5,000/- and in default of payment of fine, simple imprisonment for a period of 06 months. The appellant is also convicted for the offence punishable under Section 307 of the IPC and is ordered to undergo for rigorous imprisonment for a period of 10 years and fine of Rs.2,000/- and in default of payment of fine, simple imprisonment for a period of 02 months. The appellant is also convicted for the offence punishable under Section 504 of the IPC and is ordered to undergo rigorous imprisonment for 01 year and fine of Rs.500/- and in default of payment of fine, simple imprisonment for a period of 10 days.

2. The case of the prosecution, as per charge at Exh.12 is that on 28.09.2015 at around 10:30 a.m., the present appellant inflicted blows of knife on the deceased - Vilasben and the injured witness - Jaswantsinh, after he has asked by them to give the address proof - election card, etc. The charge was framed under the provisions of Sections 302, 307 and 504 of the IPC by the trial Court.

3. The trial Court, after examining the ocular as well as documentary evidence, convicted and sentenced the appellant as mentioned hereinabove. Assailing the aforesaid judgment and order of conviction and sentence, learned advocate Mr.Aamir Pathan appearing for the appellant has submitted that the trial Court has committed serious error in convicting the appellant for the aforesaid offence since the evidence which has surfaced on record is not appropriately appreciated.

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4. Learned advocate Mr.Pathan has further submitted that the trial Court has not appreciated the deposition of PW-15, Dr.Rameshbhai Joitaram Patel at Exh.42 and submitted that the said witness has emphatically stated that the deceased was brought to the hospital on 28.09.2015 at around 10:50 and her relative has given history that some unknown person has caused the injury. He has submitted that the deceased was unable to speak when she was brought to the hospital. Learned advocate Mr.Pathan has submitted that evidence of the eye-witnesses i.e. PW-7 Nilamben Mayurbhai Rajput at Exh. 34, PW-8 Dishaben Bhagatsinh Baria at Exh.35, PW-9 Tejalben Sunilbhai Gosai at Exh.36 as well as the evidence of minor PW-10 Jaymalaben Dineshbhai Rathava at Exh.37, do not in any manner suggest that they have actually seen the incident. He submitted that the evidence suffers from the contradiction and improvement, hence, the trial Court has fell in error in placing reliance on such evidence.

5. Alternatively, learned advocate Mr.Pathan has submitted that the appellant was having his fast-food stall near the rented premise of the deceased. He got irritated on the issue of demand of identity proof and hence, he inflicted blows in fit rage. It is submitted that since there was no intention on the part of the appellant to commit murder of the deceased, his conviction may be altered to that of section 304-I or Part- II of the IPC.

6. Per contra, learned APP Ms.Calla for the respondent-State has supported the case of the prosecution and submitted that there is ample evidence ocular as well as documentary, which is suffice to convict the appellant for the offence for which he was charged. She has invited the attention of this Court to the discovery panchnama

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as well as FSL report and further submitted that the FSL report reveals the blood group of the deceased on the weapon i.e. knife, which is used for the commission of offence.

7. Learned APP Ms.Calla further submitted that all the eye- witnesses on which reliance has placed by the trial Court unequivocally established the complicity of the appellant in the commission of offence. Thus, it is submitted that the judgment and order of the trial Court does not require any interference by this Court. Therefore, the present appeal may be rejected.

8. We have scaled the evidence as well as the judgment of the trial Court.

9. It is the case of the prosecution, as mentioned hereinabove that on 28.09.2015 at 10:30 hours in the morning, the accused inflicted serious blows of knife on the vital part of the deceased as well as on the injured witness, PW-17, just because the deceased and the injured witness asked him to give his identity proof, such as election card etc. as he staying in their rented premises. On demand of such documents, the appellant got irritated and inflicted blows, which ultimately resulted into death of the deceased - Vilasben and the injured witness was hospitalized almost for 15 days with serious injuries on his head. The prosecution, in order to establish the charge under Sections 302, 307 and 504 of the IPC, has examined 4 eye-witnesses, which are crucial to determine the involvement of the present appellant in the crime. The complaint - Exh.15 dated 28.06.2015 has been lodged by PW-15, the husband of the deceased.

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10. The first eye-witness PW-7 Nilamben Mayurbhai Rajput at Exh.34, is the niece of the deceased. Her deposition reveals that she was present at the scene of offence. It is deposed by her that on hearing the shouts of her sister, she came out and saw that the accused was inflicting knife blows on the deceased, her aunt - Vilasben and on the injured witness - Jasvantsinh. She has also identified the accused in the Court.

11. We do not find that her evidence is tainted with any vice of contradiction, omission or improvements since the defence has miserably failed to establish her as an untrustworthy witness. On similar lines, the incident has been narrated by PW-8 Dishaben Bhagatsinh Baria at Exh.35, who has supported the case of the prosecution. PW-9 Tejalben Sunilbhai Gosai, who is minor aged about 17 years at Exh.36 has supported the case of the prosecution and has narrated the incident and has precisely stated that the appellant-accused has inflicted blows of knife on the head of the deceased as well as the injured witness - Jaswantbhai PW-17. Another minor eye-witness PW-10 Jaymalaben Dineshbhai Rathava at Exh.37 deposed in similar lines to the other witnesses.

12. The most relevant witness would be the injured eye-witness PW-17 Jaswantsinh, who has examined at Exh.73. He has also narrated the incident as narrated by the eye-witness and in fact, has submitted that the accused had inflicted serious injuries on him as well as on the deceased. He remained at hospital for 28 days and he has specifically stated that he was unable to speak for 15 days due to the injury, which was caused by the appellant. Thus, evidence of all the aforesaid eye-witnesses indubitably nails the present appellant in the offence. The accused has not tendered any

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explanation in the statement recorded under Section 313 of the Cr.PC. The FSL report at Exh.68 also reveals that the blood group of the deceased on the knife which was used in the commission of offence. The discovery panchnama at Exh.28 is also proved by the panch-witness - PW-5 at Exh.27. Thus, we do not find any error in the judgment of the trial Court while appreciating the evidence of all these witnesses.

13. At this stage, we may incorporate provisions of Section 300 of the IPC, the same is as under:

"SECTION 300 : Murder

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

Secondly.If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or

Thirdly.If it is done 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

Fourthly.If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

14. The secondly and third clauses would be attracted in the present case, looking to the manner in which the accused has inflicted blows of knife on the vital part of the body. The post mortem report as well as evidence of the PW-18 Dr.Pankajbhai Prajapati, who has undertaken the post mortem, reveals that the deceased was having injury on her left hand of 13 cm x 3 cm. The injury was deep till her bones. This injury would directly corroborate with the evidence of the eye-witnesses PW-7 and PW-8, who have

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stated that when this accused was inflicting blows of knife on the deceased, she, in order to protect herself, had raised her hands. The injury No.2, as described by the present witness, reveals that the deceased had suffered injury of incised wound of 10 CM x 7 CM and 5 CM bone deep. It is stated by the witness that this injury has resulted into death of the deceased. Thus, the appellant had inflicted blows with such precision and intensity that though the deceased had tried to avoid blow by raising her hands, he again inflicted the second blow on the head of the deceased. Such infliction of the injuries on the vital part of the deceased would show intention of the accused in committing murder and that will satisfy the the provisos secondly and thirdly of Section 300 of the IPC and the offence would definitely fall under the provisions of Section 300 of the IPC.

15. Another issue which falls for consideration before us is that whether the accused is entitled for any benefit under exception to Section 300 of the IPC. Exception Nos.1 and 4, which would be relevant to consider in the present case, are incorporated as under:

Exception 1.When culpable homicide is not murder.Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:

First.That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.That the provocation is not given by anything done in the lawful exercise of the right of private defence

Exception 4.Culpable homicide is 'not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden

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quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation.It is immaterial in such cases which party offers the provocation or commits the first assault.

16. In our considered opinion, on the overall appreciation of the evidence, it is manifest that the case of the appellant will not fall either in Exception 1 or under Exception 4. The evidence reveals that the incident has occurred when the deceased and injured witness demanded identity proof from the accused, who was staying on the rent in their premises and they were doing so since last couple of days. However, the appellant did not do so and ultimately on the day of incident, he got irritated on the demand of the address proof and ultimately attacked and assaulted the deceased and the injured witness. Thus, the Proviso to Exception 1, which stipulates that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person will come to the aid of prosecution.

17. Exception No.4, as incorporated hereinabove, will not also in fact attract in the present case as the evidence does not reveal that there was sudden fight or sudden quarrel and the accused without taking any undue advantage of the situation or has not acted in any cruel manner or unusual manner. The appellant has inflicted blows on a lady who was unarmed, and was demanding the address proof from the accused, one blow landed on her arm as she wanted to prevent any injury on her head and the second injury was directly intended to be inflicted on the head of the deceased by the appellant with such a force that the injury was bone deep and ultimately she succumbed to it. It is also worthy to note that the appellant has also inflicted serious blows on the injured witness for

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the very same reason. The injured witness remained in the hospital for almost 28 days and he was unable to speak for 15 days as per the evidence. The evidence of doctor, PW-15 would suggest that when he treated the deceased and she had suffered very serious injuries and she was unable to speak. As held by us, the evidence, indubitably establishes the offence of murder as defined under Section 300 of IPC.

18. Thus, in our considered opinion, after threadbare analysis of the evidence both oral as well as documentary, we find that the judgment and order of conviction and sentence passed by the trial Court does not suffer from any perversity or infirmity, which calls for interference from this Court. We confirm the judgment and order as recorded by the trial court. Hence, the present appeal fails and the same is dismissed.

R & P shall be sent back to the concerned trial Court.

(A. S. SUPEHIA, J)

(VIMAL K. VYAS, J) prk