Gujarat High Court
Sujabhai Vibabhai Bhil vs State Of Gujarat on 7 April, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1775 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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SUJABHAI VIBABHAI BHIL
Versus
STATE OF GUJARAT
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Appearance:
DARSHAN M VARANDANI(7357) for the Appellant(s) No. 1
MR JAY MEHTA APP for the Respondents
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This Criminal Appeal preferred by the sole appellant
accused herein under Section 374(2)of the Cr.P.C is
directed against the judgment of conviction and
sentence dated 30.10.2017 passed by the learned 4 th
Additional Sessions Judge, Kutch at Anjar in Sessions
Case No. 113 of 2015, by which, the appellant has
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been convicted under Section 302 of the Indian Penal
Code and sentenced him to undergo life
imprisonment and fne of Rs.10,000/-, in default
thereof, further simple imprisonment of 6 months.
2. The case of the prosecution leading to the conviction
of the appellant Suja Vibhaibhai Bhil, is as follows:
2.1 The incident of murder took place on 23.05.2013 at
about 8-00 PM. The place of incident was Sahunagar,
Sector 6, village: Adhoi, Tal.: Bhachau, Dist.: Kutch.
The deceased Babubhai Arjan Bhil was happened to
be the uncle of the accused. According to prosecution
case, the appellant inficted a blow on the neck of the
deceased with the weapon scythe (dhariya) which
resulted into rupture of the vessels. The deceased
was declared brought dead at Bhachau Civil Hospital.
The brother of the deceased being eye-witness
Manjibhai Bhil, lodged an FIR on 24.05.2013 at about
1-15 AM before the Samakhiyari Police Station for the
offence punishable under Section 302 of the Indian
Penal Code.
2.2 According to prosecution case, 4 to 5 days before the
incident (23.05.2013), the appellant accused Suja
Vibha and his brother in law Lagdhir Nathu Bhil PW-
12 had gone to village: Ratanpar at their sister-in-
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law's house to attend the marriage. After attending
the marriage, they went to their father-in-law's house
at village: Gadhda and stayed there. At village :
Gadhda, the dispute arose and due to altercations
amongst the parties, the appellant accused by
holding the weapon knife in his hand threatened his
father in law and brother in law Lagdhir Nathu. After
the said incident, the appellant accused came to his
village: Adhoi.
2.3 In the aforesaid background, the father in law of the
appellant and others came to house of the
complainant Manjibhai (PW-5) and narrated the
entire incident about the threats given by the
accused. The deceased Babubhai, who happened to
be the brother of the complainant was also there. In
order to settled the dispute, the meeting with the
elderly members of the community convened at the
house of Chhaganbhai Bhil (PW-13), where accused
was also called upon by the deceased and others.
The meeting was held between 7-00 to 7-15 PM on
23.05.2013. In the presence of community persons,
the deceased Babubhai told the appellant accused
about the incident as referred above. After hearing
the deceased, the appellant left the meeting and
went to his house and after some time, he came with
scythe in his hand and made a statement that, who
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wants to quarrel with him. The deceased Babubhai
told the appellant that to whom you want to kill with
the scythe. The appellant got agitate and inficted a
single blow on the left side of the neck of deceased
Babubhai and in defense when he raised his hands,
he also sustained injuries over his hand. The
deceased fell down on the foor. The appellant ran
away with the weapon. The person including the
complainant who were present taken the deceased to
the Civil Hospital, Bhachau, where, the deceased
declared 'brought dead'. Pursuant to the intimation
given by the hospital, the Samakhayari Police came
at the Hospital. The PW-5 Manjibhai disclosed his
complaint (Exh. 47) before the Investigation Ofcer
Mr. D.D. Rana (Exh. 78).
3. The PW-16 D.D. Rana, during the course of
investigation, sent dead body of the deceased for
postmortem, drew the panchnama of place of
incident, recorded the statements of material
witnesses, arrested the accused on 25.05.2013 and
at the instance of accused, discovered and recovered
the weapon scythe (Exh.45), seized the cloths of the
accused and also obtained the cloths of the deceased
along with blood samples and thereafter, sent the
muddamal articles to the FSL for chemical analysis
and at the end of investigation, the chargesheet
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came to be fled for the offence of murder before the
jurisdictional magisterial court. The case was
committed to the Court of Sessions at Anjar.
4. After due framing of charge and upon accused not
pleaded guilty, the trial commenced and during the
course of trial, the prosecution has examined 17
witnesses and exhibited 22 documents.
Oral evidence
PW 1 -Exh.21 Vanrajsinh Mahobbatsinh Jadeja, panch
witness
PW 2 - Exh.23 Lakhdhir Kanji Koli, panch witness
PW 3 - Exh.42 Bhagvanjibhai Bhalabhai Bagda, panch
witness
PW 4 - Exh.44 Kachara Mala Chavda, panch witness
PW 5 - Exh.46 Manji Arjan Bhil, complainant
PW 6 - Exh.48 Krishna Navalsinh Jadeja, medical ofcer
PW 7 - Exh.53 Shivji Punjabhai Chavda, panch witness
PW 8 - Exh.63 Raydhan Arjan Bhil
PW 9 - Exh.64 Lalji Arjan Bhil
PW 10 -Exh.65 Sonbai Arjan Bhil
PW 11-Exh.69 Sanjanaben Lakhdhirbhai Bhil
PW 12- Exh.70 Lakhdhirbhai Nathubhai Bhil
PW 13- Exh.73 Chhaganbhai Lakhmanbhai Bhil
PW 14- Exh.74 Kacharabhai Lakhmanbhai Bhil
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PW 15- Exh.75 Ajitsinh Natvarsinh Chauhan, maker of map
of scene of crime
PW 16- Exh.78 Dhirubha Dadubha Rana, investigation
ofcer
PW 17- Exh.79 Ashokkumar Yashwantbhai Patel,
investigation ofcer
Documentary evidence
Exh.22 Inquest Panchmama
Exh.24 Panchnama of scene of crime
Exh.25-28 Panch slips
Exh.43 Arrest Panchnama
Exh.45 Panchnama of recovery of weapon
Exh.47 Complaint
Exh.49 Yadi for post-mortem
Exh.50 Certifcate for cause of death
Exh.51 Post-mortem note
Exh.52 Yadi for forwarding Post-mortem
Exh.54 Panchnama for blood sample
Exh.76 Yadi for drawing map of scene of offence
Exh.77 Map of scene of offence
Exh.79 Janva Jog Entry
Exh.80 Yadi of deputation for investigation of Janva jog
information
Exh.81 Yadi for registration of offence
Exh.82 Form for conducting post-mortem
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Exh.83 Yadi to mobile FSL
Exh.84 Yadi for preparing map of offence
Exh.85 Yadi for forwarding muddamal to FSL
Exh.86 Receipt by FSL, Rajkot regarding receipt of
muddamal
Exh.87 FSL report
5. After closure of the prosecution evidence, the
appellant was quashed under section 313 Cr.P.C, to
which, he stated that he has been falsely implicated
in the offence of murder and denied the evidence led
by the prosecution. The accused neither stepped
into witness box nor examined witnesses in his
defense.
6. The learned Sessions Judge after hearing the parties
and upon appreciation of the evidence, adduced by
the prosecution, found the appellant guilty of the
charge and consequently, he has been convicted
under Section 302 of the Indian Penal Code and
sentenced to undergo life imprisonment.
7. Being dissatisfed with the judgment of conviction
and order of sentence, the accused has come up with
the present appeal.
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8. We have heard learned counsel Mr. Darshan
Varandani and Mr. Jay Mehta, learned APP for the
respective parties.
9. Mr. Darshan Varandani, learned advocate for the
appellant while assailing the judgment of conviction
and order of sentence stated that the submissions
are limited to the extent that, the trial Court
committed a serious error in holding the appellant
accused guilty of the offence of murder, as the
appellant accused did not have any intention to kill
the deceased and therefore the act of the accused at
the most would fall under Section 304 of the Indian
Penal Code, the culpable homicide not amounting to
murder.
10. Mr Darshan Varandani, learned counsel for the
appellant - accused, would urge that, the appellant
was called in front of the community persons and
scolded by the deceased with regard to earlier
incident allegedly took place at village: Gadhda. In
such circumstances the accused went to his home
and came back with the weapon scythe (dhariya) and
on seeing the accused with dhariya, the deceased
Babubhai asked him that, to whom he wanted to kill.
Thus, till the point where he was asked by the
deceased, the appellant had no intention to kill the
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deceased but when he was specifcally challenged by
the deceased, then in a heat of passion, without
premeditation, suddenly a single blow was inficted
on the left side of the neck of the deceased. Thus,
the manner in which the accused was called in the
meeting and when he was armed with the weapon,
the deceased by saying that whom he wanted to kill,
provoked the appellant and therefore, the weapon
which was generally used in farming purpose,
allegedly used by the appellant and considering the
nature of injury, which revealed that, the appellant
did not have any intention to commit the murder of
the deceased.
11. Mr. Varandani, learned counsel under the
circumstances as referred above, has submitted that,
as on date, the accused has undergone 12 years of
imprisonment and having regard to the facts and
circumstances of the present case, the conviction for
the act of murder be modifed to the extent, culpable
homicide not amounting to murder under Section 304
Part-II of the Indian Penal Code and therefore, he
prays that the appeal may be allowed to that extent.
12. On the other hand, Mr. Jay Mehta, learned Additional
Public Prosecutor vehemently opposed the
contentions and contended that, the accused with
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premeditated mind, had gone to his house and after
sometime he came with the weapon dhariya and
when he was confronted by the deceased, the blow
was given on the vital part of the body. In such
circumstances, the act was done with intention to kill
deceased and the injuries were sufcient in the
ordinary course of nature to cause death and
therefore, the requirement for availing the beneft of
exception IV to Section 300 are not satisfed, as
there was no any sudden fght and the blow was
given without any provocation on the part of the
deceased and it was not the case that blow was
inficted accidentally or otherwise on the left side of
the neck of the deceased. In such circumstances, the
manner in which the weapon was used and nature of
injuries as stated by PM doctor, the inference would
arise that the injuries were intended to cause death.
13. Mr. Jay Mehta, learned Additional Public Prosecutor,
in the aforesaid circumstances as referred above,
prays that, the court below has rightly held the
accused appellant guilty for the offence of murder
and thus, there being no merits in the appeal and
same may be dismissed.
14. Having regard to the facts and circumstances to the
present case, the issue falls for our consideration, as
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to whether the offence was that of murder or
culpable homicide not amounting to murder
punishable under Section 304 Part-I - II of the Indian
Penal Code?
15. In this case, PW-5 Manjibhai Bhil, PW-9 Lalji Arjan,
PW-10 Sonbai Bhil, PW-11 Sanjanaben Bhil, PW-12
Lagdhir Bhil, PW-13 Chhaganbhai Bhil, PW-14
Kachrabhai Bhil, are the eye-witnesses of the
incident. The accused appellant do not challenge his
conviction on merits. In such circumstances, there is
no need to refer the entire oral evidence, however, in
order to determine, the issue raised herein, the
evidence of three material witnesses namely - PW-5
Manji Bhil, PW-12 Lagdhir Bhil and PW- 6 Dr. K.N.
Jadeja are relevant and necessary and therefore,
their evidence in brief required to be refer.
(1) PW-5 Manjibhai Bhil : The witness is the real
brother of deceased Babubhai and uncle of accused
appellant. The witness has stated that, prior to the
incident, there was a quarrel ensued between
appellant accused and Lagdhir Bhil and due to said
quarrel, the appellant chased the Lagdhir Bhil PW-12
and at relevant time, he was armed with knife and
stick and threatened to kill the witness and his
father-in-law. The witness has further stated that,
due to said incident, the family members as
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examined as a prosecution witnesses, came to the
house of the deceased and made complaint against
the appellant that he was unnecessarily indulged in
the fght with the near and dear members of the
family. The witness has further stated that, the
deceased assured the witnesses that he will look into
the matter. It is further stated by the witness that
deceased convened the meeting on 23.05.2015 at
about 7-00 PM near the house of PW-13 Chhagan
Bhil. The witness has further stated that in the
meeting, the accused was called upon in the
presence of witnesses and others. The witness has
stated that the deceased explained the appellant
that why he is unnecessarily entered into the quarrel
with the family members. The witness has further
stated that the appellant left the meeting and went
to his house and came back with scythe and made a
statement that who wants to fght with me. The
witness has further stated that deceased Babubhai
confronted that the accused and said that you have
come with dhariya, so, whom do you want to kill. The
witness has further stated that the appellant
suddenly inficted a blow of scythe on the left side of
the neck of the deceased and when he resisted, had
also sustained injuries on his hand. The witness has
further stated that he arranged for the vehicle and
deceased was taken to Bhachau Civil Hospital, where
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he declared brought dead. In the cross-examination,
except denial, nothing fruitful brought on record on
the aspect of incident.
(2) PW-12 Lagdhir Bhil, who happened to be the
brother in law of the appellant has deposed against
the appellant accused on the line of the witness PW-
5. The additional fact, he has deposed that before 4
to 5 days of the incident, he along with the appellant
accused had gone to village Ratanpur for attending
marriage and thereafter, they came to village
Gadhda at the house of his father-in-law and they
stayed together there. The witness has further stated
that, the quarrel ensued between him and appellant
accused on some issue, as a result of which, the
accused chased him and threatened to kill him as
well as his father-in-law. So far as incident is
concerned, as stated above, the witness has stated
the entire facts of incident on the line of PW-5 and
thus, to avoid the repetition, it is not necessary to
narrate the entire deposition.
(3) PW-6 Dr. K.J. Jadeja had conducted the
postmortem on the body of the deceased. The
witness has noticed the following antemotum
external injuries :
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a. Contused lacerated wound of size 5cm x 2cm x
1cm hypothenar of right palm.
b. Deep (chopped wound) contused lacerated
wound of size 15cm x 7cm x 5cm over left
side of neck extending from above middle
1/3rd of left clevical going posteriorly upper
cervical vertebrae.
According to opinion of the doctor, the cause of
death was due to major vessels damaged in left side
of the neck and said injury could be possible with the
weapon scythe.
16. In the aforesaid background facts and evidence, it is
the contention of the accused that the prosecution
has not proved that there was an intention on the
part of the appellant to infict a bodily injury and that
was sufcient to cause death in ordinary course of
nature and thus, the offence is not one of murder.
17. On perusal of the evidence on record, it is proved
and established that death of the deceased was
homicidal in nature and as per the medical evidence,
the bodily injury on the neck, as referred above, has
been proved and established. It is the submission
that, there was no intention on the part of the
accused to cause death and in the meeting, he was
scolded by the deceased and despite the facts that
he was armed with scythe, he did not have inficted
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immediate blow on the body of the deceased but
when the deceased challenged him and confronted
that whom you want to kill, the accused loose his
temperament and without premeditation, in a heat of
passion, one blow on the body of the deceased was
inficted. On the other hand, the State has
vehemently opposed the contention and contended
that, there was no provocation on the part of the
deceased, which deprived of power of self control, as
merely confronting the accused on the aspect of his
conduct, would not automatically termed to be a
provocation on the part of the deceased. The second
contention raised by the State relates to applicability
of the exception. In order to avail the beneft of the
exception, it is the appellant accused to establish
that in a sudden provocation, without premeditation,
and in a heat of passion, the blow was inficted. The
appellant accused without any reason went to his
house and after some time, he came with the
weapon scythe and while inficting the blow, there
was no any heated exchange of words between the
appellant and the deceased and therefore, none of
the exception would be available to the rescue of the
appellant.
18. We have carefully examined the evidence on record
and considered the submissions advanced by
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respective parties.
19. So far as statutory provision is concerned, it is
relevant to refer Section 299 of the Indian Penal
Code, which defne the term 'culpable homicide'.
Section 300 defne the term 'murder', which says
that, where the act by which death is caused, falls
within any four clauses of the Section 300, the
offence would be 'murder', unless the case is covered
by one or more exceptions mentioned in the section.
It is in this context, it can be said that, (i) the
culpable homicide is murder, if the act by which
death is caused is done with the intention of causing
death, or (ii) if it is done with the intention of causing
such bodily injury, as the offender knows to be likely
to cause death of the person to whom the harm is
caused, or (iii) if it is done with the intention of
causing bodily injury to any person and the bodily
injury intended to be inficted is sufcient in the
ordinary course of nature to cause death, or (iv) if the
person committing the act, known that it is so
imminently dangerous that it must in all probability,
caused death.
20. Reverting to the facts of the present case, we are of
the considered view that the prosecution failed to
prove the facts that there was no intention to cause
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death. We are conscious about the fact that the
intention is a question of fact, which is to be
gathered from the act of the parties. In the present
case, the witnesses had complaint against the
appellant accused about the earlier incident and on
the same day, deceased had convened the meeting
and the appellant was called upon to explain his
conduct. The appellant accused did not like it and
went to his house and return back with the weapon.
The matter does not end there, as the deceased
confronted him because, he saw a weapon in the
hands of accused and asked him that whom you
want to kill. The confrontation lead to the main
reason of inficting the injury. If the accused would
have intention to kill the deceased, then, he could
have directly inficted the injury on him, which
conduct raised the inference that till that stage, the
appellant did not had requisite intention to cause the
injuries. In such circumstances, the act by which
the death was caused, was not done with the
intention of causing death. Therefore, in our opinion,
the frst clause of Section 300 would not attract. So
far as clause-II is concerned, the incident occurred in
a spur of moment without any premeditation and
therefore, it is required to be proved that there was
an intention to cause bodily injury with the
knowledge that, same is likely to cause death. As
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discussed above, the element of intention to cause
death is missing in the facts of present case and
therefore, it cannot be presumed that the appellant
had subjective knowledge of the fatal consequences
of the bodily harm he had caused. The III clause
deals with the acts done with the intention of causing
bodily injury and bodily injury intended to be inficted
is sufcient in the ordinary course of nature to cause
death. On the clause-III, the Supreme Court, in the
case of Virsa Singh, AIR 1958 SC 465, for the
applicability of this clause, has laid down that, it
must be frst established that an injury is caused and
it must be proved that, there was an intention to
infict that particular bodily injury and is found to be
sufcient in ordinary course of nature to cause death.
In the facts of the present case, the doctor, who had
conducted the PM, did not have opined that, the
bodily injury were sufcient in the ordinary course of
nature to cause death.
21. In these background facts, we may proftably refer the
observation made by the Supreme Court in case of
Pulicherla Nagaraju @ Nagaraja Reddy Versus
State Of Andhra Pradesh, reported in 2006 (11)
SCC 444, the Supreme Court in para-29 observed
thus:
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"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 u/s. 302 or 304 Part I or 304 Part
II. Many petty or insignifcant matters - plucking
of a fruit, straying of a 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
pre-meditation. 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 u/s. 302, are not converted into
offences punishable u/s. 304 Part I/II, or cases of
culpable homicide not amounting to murder, are
treated as murder punishable u/s. 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
quarrel or sudden fght or free for all fght; (vi)
whether the incident occurs by chance or
whether there was any pre- meditation; (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)
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whether the person inficting 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."
22. Recently, the Supreme Court in the case of
Anbazhagan Vs. State represented by Inspector
of Police, 2023 SCC on-line SC, 857, has succinctly
explained the fne distinction between the cases that
would fall under Section 302 and Section 304 Part (I)
and (II) of the IPC. The supreme Court after detailed
survey on the precedent on the point, fnally,
summed-up as follows:
"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
fnd 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'
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in his head killing him instantaneously. Here,
there will be no difculty 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 sufcient in ordinary course of nature
to cause death. There may be no difculty in
holding that 'B' intentionally inficted the
particular injury found to be caused and that
the said injury was objectively sufcient 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
fve 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
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accused may be such that only 2nd or 3rd
part of Section 299 of the IPC, may be
attracted but not any of the clauses of
Section 300 of the IPC. In that situation also,
the offence would be culpable homicide not
amounting to murder under Section 304 of
the IPC. It would be an offence under Part I of
that section, if the case fall within 2nd part of
Section 299, while it would be an offence
under Part II of Section 304 if the case fall
within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an
accused person falls within the frst two
clauses of cases of culpable homicide as
described in Section 299 of the IPC it is
punishable under the frst 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 frst
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 inficted, if that
particular injury was intended, and
objectively that injury was sufcient in the
ordinary course of nature to cause death, the
requirements of Clause 3rdly to Section 300
of the IPC, are fulflled 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
'sufcient in the ordinary course of nature to
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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 frst part, the crime of murder is frst
established and the accused is then given
the beneft 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
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would fall. Culpable homicide is not murder
when the case is brought within the fve
exceptions to Section 300 of the IPC. But,
even though none of the said fve exceptions
are pleaded or prima facie established on the
evidence on record, the prosecution must
still be required under the law to bring the
case under any of the four clauses of Section
300 of the IPC to sustain the charge of
murder. If the prosecution fails to discharge
this onus in establishing any one of the four
clauses of Section 300 of the IPC, namely,
1stly to 4thly, the charge of murder would
not be made out and the case may be one of
culpable homicide not amounting to murder
as described under Section 299 of the IPC.
(8) The court must address itself to the
question of mens rea. If Clause thirdly of
Section 300 is to be applied, the assailant
must intend the particular injury inficted 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
sufcient 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
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is to be inferred from the act or acts resulting
in the injury or injuries.
(10) When single injury inficted 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 sufcient in the
ordinary course of nature to cause death,
then, even if he inficts 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 inficted by him and that injury is
sufcient in the ordinary course of nature to
cause death, the fact that the act is done
without premeditation in a sudden fght 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,
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and the offence would be one under Section
304 Part II of the IPC. "
23. In light of the statutory provision and applying to the
facts of the present case, as discussed above, the
prosecution has failed to prove that, the death was
caused with an intention to kill the deceased and
thus, the offence established by the prosecution
against the appellant is culpable homicide not
amounting to murder under Section 304 of the Indian
Penal Code. In that view of the matter, we are of the
opinion that, the appellant is not liable to be
convicted under Section 302 of the Indian Penal Code
but would be liable to be convicted under Section
304 Part-I of the Indian Penal Code, as a result, the
conviction and sentence of life imprisonment under
Section 302 is set aside. The appellant is convicted
under Section 304 Part-I of the Indian Penal Code and
sentenced him to undergo 10 years imprisonment. It
is reported that, as on today, the accused has
already undergone 11 years and more of his
imprisonment and therefore, he has been sentenced
of period already undergone with the fne imposed by
the trial Court.
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24. Accordingly, present appeal is allowed in part to the
aforesaid extend. The appellant shall be released
forthwith, if his custody is not required in any other
offence. R&PP, if any, be sent back to the concerned
Court forthwith.
(ILESH J. VORA,J)
(SANDEEP N. BHATT,J)
P.S. JOSHI
