Citation : 2025 Latest Caselaw 3320 Guj
Judgement Date : 24 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1368 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
BHALABHAI PRATAPBHAI PARMAR & ORS.
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Appearance:
MR JAY MEHTA APP for the Appellant
MR PARTHIV A BHATT(5331) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 24/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Here is the appeal by the State against judgment and order of acquittal.
2. The respondent accused nos.2 to 4 have been acquitted from all the charges whereas respondent
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no.1 was convicted and sentenced under Section 304 Part-II of the IPC, and acquitted for the charge of murder.
3. Thus, by this appeal, the State has come up before this Court challenging the judgment of acquittal under Section 302 of the IPC.
4. Vide judgment and order of sentence dated 30.05.2014 passed in Sessions Case No.63 of 2012, the Sessions Judge, Kheda at Nadiad convicted and sentenced the respondent accused Bhalabhai Pratapbhai Parmar for the offences punishable under Section 304 Part-II of the IPC and sentenced him to suffer rigorous imprisonment for 5 years and acquitted the respondent accused nos.2 to 4 from all the charges.
5. Facts in brief leading to file this appeal are as under:
5.1 The accused and the complainant PW:1 Ramesh Parmar are related to each other and living adjacent to each other at Village Padva, Balasinor, Dist.: Kheda.
On 22.04.2012, at about 06:30 p.m., according to the case of the prosecution, the respondent accused Bhalabhai caused fatal injuries to the wife of PW:1, Radhaben, by using a cricket bat and the blow was
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inflicted on the head of the deceased. Prior to the incident, the altercation with the PW:1 took place on the issue of maintaining illicit relationship by the PW:1 with daughter in law of the respondent accused. According to the say of PW:1, the respondent accused beaten up him as he was suspecting the illicit relationship with the daughter in law. On account of the said altercation, the PW:1 lodged an FIR for causing voluntary injuries against the respondent accused and police was in search of the respondent accused. On the day of incident i.e. 24.04.2012, again the altercation took place between the respondent accused and PW:1 near the Panshop of the village. Thereafter, the respondent accused came at his house and suddenly, taking the cricket bat in his hand, in the heat of passions, upon sudden quarrel assaulted the deceased Radhaben with cricket bat. It is further alleged that the accused Champaben Pratapbhai, the mother of the respondent accused and accused Shardaben Bhalabhai along with Vinesh Bhalabhai, assaulted the PW;1 husband of the deceased and his mother Divaben (PW:15). Deceased after the incident, became unconscious and was taken to private clinic of Dr. Bharat Lalabhai (PW:11), and then, referred to Civil Hospital, Balasinor. On account of the serious injuries suffered by deceased Radhaben, she was admitted in the private hospital viz. Nidhi Hospital at Ahmedabad
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where she succumbed to her injuries on 24.04.2012. The PW:1 being a husband of the deceased lodged an FIR, against the four persons including the present respondent - accused.
5.2 Pursuant to the FIR, the investigation had been entrusted to PW:18 Dashrathsinh Chavda as well as PW:23 Vimal Gamit. During the investigation, the I.O. took visit the place of occurrence and drew the panchnama and collected the necessary samples for FSL purpose. He also recorded the statement of witnesses. He also arrested the accused involved in the offence, recovered the weapon cricket bat and stump allegedly used by the accused. The I.O. then obtained the treatment case papers as well as the postmorterm note and sent the seized articles for chemical analysis and after receiving the report thereof, chargesheet was led before the jurisdictional Magistrate, who committed case to the concerned Sessions Court.
6. After due framing of charges and upon accused pleaded not guilty, trial commenced before the Sessions Court at Nadiad. Prosecution, in order to prove the charge examined 23 witnesses and exhibited 38 documents, which reads as under:-
Oral evidence
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PW 1 - Exh. 25 Rameshbhai Adabhai Parmar, Complainant PW 2 - Exh. 27 Shanabhai Gandabhai Parmar, panch witness PW 3 - Exh. 31 Bhathibhai Mohanbhai Parmar, panch witness PW 4 - Exh. 32 Abdulrasid Mustufbhai Sheikh, panch witness PW 5 - Exh. 37 Bharatbhai Tulsibhai Patel, panch witness PW 6 - Exh. 39 Surajben Bhalabhai Parmar, panch witness PW 7 - Exh. 40 Sharmishthaben Somabhai Parmar, panch witness PW 8 - Exh. 41 Prabhatbhai Dalabhai Chauhan, panch witness PW 9 - Exh. 43 Jashwantbhai Shanabhai Parmar, panch witness PW 10 - Exh. 44 Baluben Bhalabhai Thakor, panch witness PW 11 - Exh. 46 Dr. Bharatbhai Lalabhai Khant, Medical officer PW 12 - Exh. 51 Dr. Jyoti Govindbhai Amin, medical officer PW 13 - Exh. 55 Dr. Milan Jayantibhai Prajapati, medical officer PW 14 - Exh. 59 Dr. Satyajit Bhimrao Dixit, medical officer PW 15 - Exh. 64 Diwaben Adesingh Parmar PW 16 - Exh. 67 Jayaben Rakeshkumar Gohil PW 17 - Exh. 68 Adabhai Punjabhai Parmar PW 18 - Exh. 69 Dashrathsinh Pravinsinh Chavda, investigation officer PW 19 - Exh. 71 Vikramsinh Bhikhubha Zala PW 20 - Exh. 74 Sursinhbhai Valabhai Bhamat PW 21 - Exh. 76 Dr. Kalpesh Somchandbhai Kotaria, medical officer PW 22 - Exh. 81 Ambalal Balabhai Mayavanshi PW 23 - Exh. 85 Vimalkumar Parsottambhai Gamit, investigation officer
Documentary evidence
Exh. 26 Complaint Exh. 28, 29 Panch slips Exh. 30 Panchanama of scene of offence Exh. 33 to 35 Panch slips Exh. 36 Panchanama of seizure of clothes worn by Radhaben Rameshbhai Exh. 38 Inquest Panchanama Exh. 42 Panchanama of physical examination of accused Exh. 45 Panchanama of physical examination of accused Exh. 47 Medical certificate of Radhaben Rameshbhai issued by
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Sagar Surgical Hospital Exh. 48 Medical certificate of Diwaben Adesingh Parmar issued by Sagar Surgical Hospital Exh. 49 Medical certificate of Rameshbhai Adesingh Parmar issued by Sagar Surgical Hospital Exh. 52 Original Medico-Legal certificate of Rameshbhai Adesingh Parmar Exh. 56 Case papers of Radhaben Rameshbhai Parmar issued by Nidhi Hospital Exh. 57 Vardhi noted by Police Station Officer, Navrangpura Police Station, Ahmedabad Exh. 60 Note of treating injuries of Radhaben Rameshbhai issued by Nidhi Hospital Exh. 61 Note made by Dr. Dixit regarding treatment of Radhaben Rameshbhai Exh. 72 Note by Police Station Officer, Navrangpura Police Station, Ahmedabad regarding admission of Radhaben Rameshbhai in ICU in semi-unconscious state Exh. 73 Letter by PSI, Navrangpura Police Station, Ahmedabad Exh. 77 Yadi by Police Inspector, Balasinor for Post-mortem and collection of blood sample from dead body of Radhaben Rameshbhai Exh. 78 Post-mortem report Exh. 79 Certificate of cause of death Exh. 80 Medical certificate of Diwaben Adesingh Parmar issued by Vatrak General Hospital Exh. 82 True copy of Extract dated 23.04.2012 in Station Diary of Balasinor Police Station Exh. 86 Yadi for drawing map of scene of offence Exh. 87 Map of scene of offence Exh. 88 Yadi for sending articles to FSL for analysis Exh. 89 FSL receipt Exh. 90 Report by Nadiad FSL mobile van Exh. 91 Yadi by FSL to Police inspector, Balasinor Exh. 92 FSL report Exh. 93 Serological report Exh. 94 Carbon copy of handing over dead body
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7. After closure of the prosecution evidence, the respondent accused along with three persons were questioned under Section 313 of Cr.P.C., to which, they stated that, they were innocent of all charges level and had been falsely implicated the entire family for no reason.
8. Though opportunity was extended, no evidence was tendered from the side of the respondent accused.
9. The learned Sessions Judge, after trial, relying principally on the deposition of PW:1, PW:15 and considering the medical evidence on record found the respondent accused guilty of the offence, culpable homicide not amounting to murder under Section 304 Part-II of the IPC. The Court below in absence of any acceptable and cogent evidence, for causing voluntary injuries to the witnesses acquitted the family members of the respondent accused i.e. accused nos.2 to 4 from all the charges.
10. Being dissatisfied with the sentence, the State has come up with the present appeal.
11. Mr.Jay Mehta, learned APP appearing for the appellant
- State, has submitted that, the respondent accused Bhalabhai Parmar assaulted the deceased Radhaben
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with the cricket bat and the family members of the principal accused nos.2 to 4 were present over there and the witnesses who had tried to rescue Radhaben were assaulted by accused nos.2 to 4 and there is a sufficient evidence to this effect adduced by the prosecution. Despite of these facts, the Court below did not have considered the proved facts like, injuries caused on the vital part on the body of the deceased and the weapon cricket bat was used with such force that the vital organ of the head of the deceased suffered serious injuries, as a result of which, she fell unconscious and never gained the consciousness and died after 2 days which factors have not been properly appreciated by the Court below. It is pointed out that the injuries sustained were sufficient to cause death and in absence of any circumstances to show that the injuries sustained accidental or unintentional, the presumption would be that the very injury suffered by the deceased was intended to kill. The deceased was nowhere in picture so far as dispute as raised in the present case, and she was innocent and had never entered any altercation with the respondent accused. In such circumstances, Mr. Mehta would urge that the condition precedent to bring the matter within Exception 4 to Section 300 are not satisfied in the facts of present case. The complicity of accused nos.2 to 4 who had assaulted the witnesses, would show
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their intention to kill the deceased. The Court below has ignored the evidence adduced by the prosecution on this aspect and given a clear acquittal to the remaining accused and therefore, the findings recorded by the Trial Court appears to be unreasonable, ignoring the relevant evidence on record which has resulted into miscarriage of justice.
12. In such circumstances, learned APP prays that there being a merit in the appeal, the same may be allowed and the respondent accused may be convicted and sentenced under Section 302of the IPC.
13. On the other hand, Mr. Parthiv Bhatt, learned counsel appearing for the respondent accused submits that, prior to the incident the scuffle took place at the pan shop and after half an hour, the said incident had taken place. The PW-1, who is husband of the deceased and complainant of the case, in his cross- examination admitted that before half an hour to incident, there was a scuffle with the respondent accused. The PW-1 was having illicit relation with the daughter in law of the accused and he was cautioned by the respondent accused to maintain distance with her and when he was scolded, the FIR against the respondent accused for assault and criminal intimidation came to be filed. In such circumstances,
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Mr. Bhatt would urge that, the view taken by the trial Court while acquitting the accused no. 2 to 4 from all the charges are reasonable one and conclusion reached is based on the material on record and same cannot be termed as perverse. So far as acquittal of the respondent accused no. 1 under Section 302 is concerned, Mr. Bhatt would urge that, according to treating doctor as well as PM doctor, the deceased Radhaben suffered sub-dural hemorrhage over both fronto-parieto temporal regions, and cause of death was shock as a result of head injury. PW-21, PM doctor in his testimony has not opined that, the injuries were sufficient in ordinary course to cause death. In such circumstances, the manner in which the incident took place, there was no intention on the part of the respondent accused to cause death or intention to cause such bodily injuries which was likely to cause death. The parties are related to each other and due to conduct of PW-1, who alleged to have maintained illicit relations with the daughter in law of the accused and when he was cautioned not to maintain relationship, the PW-1 lodged an FIR against the accused and therefore, prior to incident, the atmosphere was not peaceful and on the day of incident, before half an hour of the incident, there was a scuffle between the accused and PW-1. Thus, there was a sudden fight without meditation and act was
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done in a heat of passion and the accused had inflicted single blow with the cricket bat and had not taken any undue advantage and acted in cruel manner. In such circumstances, Mr. Bhatt would urge that the learned court below while acquitting the accused under Section 302 and convicted under 304 part-I has properly evaluate the evidence on record and conclusion arrived at are not contrary to the evidence on record and has rightly extended the benefit of exception to the accused. The accused had undergone almost entire sentence of 5 years.
14. In such circumstances referred to above, Mr. Bhatt prayed that, there being no merit in the appeal filed by the State, same may be dismissed.
15. We have heard rival submissions of the parties and have carefully gone through the records.
16. At the outset, it is relevant to note that, the accused and the complainant as well as witnesses are near relatives and living in the same village. It is not in dispute that, prior to the incident, i.e. on 22.04.2012, the PW-1 Ramesh Parmar - husband of deceased Radhaben had filed an FIR against the respondent accused Bhalabhai Parmar and as per the contents of the said FIR, the witness was assaulted by the
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accused at his farm because of illegal relations with the daughter in law of the accused. The police was in search of respondent accused. The accused was of the view that PW-1, had filed false complaint with a view to pressurise harass him. It is also admitted fact that on 22.04.2012, before half an hour of the incident, at evening time, there was a scuffle between the accused and PW-1 at pan shop of the village and said fight was in relation with the alleged FIR filed against the accused. In these background facts, the respondent accused no. 1 went to his house and took in his hand the cricket bat and inflicted a blow on the head of deceased Radhaben. The oral evidence of PW- 1, PW-15 and PW-17 are on the same line and thus, we deem it fit not to refer the entire evidence. PW-17, father of PW-1, when incident took place, he went to the nature's call and therefore, after the incident was over, he reached at the place. The doctor PW-11, Bharatbhai Khant, who had examined the PW-15 Divaben Parmar and PW-1 Ramesh Parmar, did not find any visible injury on the body of the witnesses. The medical certificates issued by him does not reflect the visible injury to be sustained by the witnesses. In such circumstances, the witnesses who stated that, the accused nos. 2 to 4 assaulted them is not proved and established. So far as deceased Radhaben is concerned the PM doctor PW-1 in his testimony has
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not opined that the injuries sustained by the deceased were sufficient in ordinary in course to cause death.
17. The position of law with regard to power of appellate Court in an Appeal against acquittal is well settled. The Supreme Court, in its various judgments, time and again held and observed that, there is no limitation on the appellate Court to review the evidence, but at the same time, if on the fact as well as on law, conclusion drawn by the trial Court, based on appreciation of evidence and view taken by the trial Court is possible and plausible, then the judgment of acquittal may be interfered.
18. In light of the settled principles of law and applying the same to the facts of present case, the findings of fact recorded by the trial Court are based on the evidence on record and same cannot be held to be perverse. The Apex Court in the case of Babu Vs. State of Kerala 2010 (9) SCC 189, while interpreting the term 'perverse finding', held and observed that, if the findings have been arrived at by ignoring or excluding relevant material \or by taking into consideration irrelevant / inadmissible material, the finding of fact recorded by the court below can be said to be perverse.
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19. In the facts on hand, respondent accused Bhalabhai Parmar, was found guilty for the offence culpable homicide not amounting to murder under Section 304, Part(ii) of the IPC. Recently, in Anbazhagan Vs. State represented by the Inspector of Police, 2023 AIR SC 3660, the Supreme Court had an occasion to consider the question whether the conviction of the accused for the offence punishable under Section 304 should be further altered or not. After detailed survey of the precedents on the point, the Hon'ble Court summed up as follows :
"(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
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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 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
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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.
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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, Istly 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.
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(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
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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."
20. Looking at the oral evidence on record, we are of the view that, the respondent accused no. 1 had knowledge that the person is heat with the cricket bat on the head, then the act is likely to cause death and when in a sudden quarrel and heat of passion, the blow was inflicted on the head of the deceased, in our opinion, the respondent accused guilty of offence of culpable homicide under Section 304 Part (ii) not amounting to murder. In such circumstances, we are inclined to take contrary view as the view taken by the court below is possible and plausible view and same cannot be termed to be perverse finding while convicting the respondent accused under Section 304, part (II) and acquitting the remaining accused from all charges.
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21. For the reasons aforementioned, the court below was completely justified in convicting the respondent accused no. 1 and acquitting the remaining accused of the charges levelled against them and we do not find any grounds warranting interference with the findings recorded by the trail Court.
22. Accordingly, present appeal filed by the State lacks merit and same deserves to be dismissed and is accordingly dismissed. R&P, if any, be sent back to the court concerned.
(ILESH J. VORA,J)
(HEMANT M. PRACHCHHAK,J) P.S. JOSHI
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