Gujarat High Court
State Of Gujarat vs Chadabhai Bhagabha Chauhan on 27 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1342 of 2010
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
CHADABHAI BHAGABHA CHAUHAN & ANR.
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Appearance:
MR JAY MEHTA APP for the Appellant(s) No. 1
MR PARTHIV BHATT for the Respondents No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 27/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Here is the appeal by the State against the judgment
and order of acquittal.
2. Vide judgment and order of sentence dated
08.02.2010, passed in Sessions Case No.45 of 2009,
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the Additional Sessions Judge, Fast Track Court,
Nadiad at Kheda, acquitted the respondents-accused
under Sections 302, 504 read with Section 34 of the
IPC.
3. All the accused came to be tried for offences
punishable under Sections 302, 307, 326, 504 read
with Section 34 of the Indian Penal Code, 1860 ('IPC',
for short) and Section 135 of Bombay Police Act, 1951
('B.P. Act', for short). The trial Court, after appreciation
of the evidence, acquitted the accused as per the
below table:
Accused Acquitted from charge
Accused no. 1 - Chadabhai Sections 302 and 504 read with Section
Bhagabha Chauhan 34 of IPC and Section 135 of B.P. Act.
Accused no. 2 - Somabhai Sections 326, 307 and 504 read with
Bhagabhai Chauhan Section 34 of IPC and Section 135 of B.P.
Act.
Accused no. 3 - Rameshbhai @ Acquitted from all the charges i.e.
Timpo Chadabhai Chauhan Sections 302, 307, 326, 504 read with
Section 34 of IPC and Section 135 of B.P.
Act.
Accused no. 4 - Raisingbhai @ Acquitted from all the charges i.e.
Titabhai Chauhan Sections 302, 307, 326, 504 read with
Section 34 of IPC and Section 135 of B.P.
Act.
4. Facts and circumstances giving rise to this appeal are
that, the complainant and the accused are resident of
village; Baladi, Taluka: Mahudha, Dist.: Kheda and
they are also relatives. On 05.07.2008, the
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complainant PW-1 - Naresh Chauhan, his father -
Ramjibhai and uncle - Abhabhai PW-12, had gone to
their field for cultivation. The field of the accused is
adjacent to the field of the complainant party.
According to case of the prosecution, in the noon
hours i.e. at 12-00 noon, the accused in number 4
came to the field of the complainant party and asked
the deceased Ramjibhai and his brother PW-12
Abhabhai, keep vacant some of the portion of the
land, as it has been used for personal purpose i.e.
bathing and the area, which was asked to keep
vacant, is near the house of the accused. Since long,
the dispute was going on with respect to said land.
The PW-1 as well as deceased Ramjibhai as well as
his brother PW-12 Abhabhai, refused to keep the said
portion of land vacant and confronted that the said
land is in their possession and since long they are
cultivating. On this issue, heated exchange of words
were taken place and according to case of the
prosecution, the accused party hurled abusive and
then, assaulted the deceased Ramjibhai, his brother
PW-12 Abhabhai with the weapon Scythe (Dharia)
and stick. The accused No. 1 Chaddabhai Bhagabhai
gave a blow on the left shoulder of the PW-12
Abhabhai with Scythe and due to the said blow, the
left forearm was amputated. The accused
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Chaddabhai again gave a blow on the right hand of
the PW-12 Abhabhai, which has resulted into
amputation of right thumb and right index fingure
and also injured him on his right thigh. The deceased
Ramjibhai when intervened, the accused No.2 -
Somabhai, gave a blow with Scythe (Dharia) over his
left shoulder. It is further case of the prosecution
that, the accused Nos. 3 and 4 i.e. respondents
herein were present armed with wooden stick at the
spot and assaulted the deceased as well as his
brother Abhabhai PW-12. In order to save the
deceased as well as injured, the persons near the
vicinity of the area came there and due to hue and
cry, the accused fled away from the place. The
deceased Ramjibhai and injured immediately taken to
the Civil Hospital, Nadiad, and thereafter referred to
Higher Center at Ahmedabad. The deceased
Ramjibhai was declared dead by the doctor at
Ahmedabad, whereas, the injured Abhabhai PW-12,
was admitted in the orthopaedic department at
Ahmedabad for a period commencing from
05.07.2008 to 16.07.2008.
PW-1 - son of deceased Ramjibhai lodged an FIR
at Nadiad and the offence came to be registered with
Mahudha Police Station being I-C.R.No. 83 of 2008,
under Sections 307, 326, 504 read with Section 34 of
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the IPC and Section 135 of the Bombay Police Act.
The father of PW.1 - Ramjibhai who sustained injuries
over his left hand, died during the treatment, as a
result, the I.O. had added the Section 302 of the IPC
with the permission of the Court.
The investigating officer PW.22, during the
investigation of the case, took visit the place of
occurrence and in the presence of two independent
witnesses, drew the panchnama of place of incident
and collected the samples of blood etc. for FSL
purpose. The I.O. then recorded the statements of
material witnesses. The I.O. on account of death of
Ramjibhai sent his body to the Government Hospital
for postmortem and collected the P.M. Note as well as
treatment case papers of the witnesses and
deceased. The I.O. also arrested the accused herein
and recovered the weapons used in the crime. The
I.O. thereafter, sent the muddamal articles for FSL
purpose and after receiving the necessary reports, he
found sufficient evidence for the charge of murder
and causing grievous injuries to the witnesses, as a
result of which, he filed chargesheet against the
accused before the Jurisdictional Magistrate who
committed the case of the concerned sessions court
at Nadiad.
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5. After due framing of charge and upon the accused
pleading not guilty, the trial commenced before the
Sessions Court at Kheda.
6. In the course of trial, the prosecution adduced the
following evidence in support of its case:
Oral evidence
PW 1 - Exh. 17 Nareshbhai Ramabhai Chauhan, Complainant
PW 2 - Exh. 20 Amarsinh Ratansinh Parmar, panch witness
PW 3 - Exh. 22 Chandusinh Kalusinh Bhojani, panch witness
PW 4 - Exh. 23 Prabhatbhai Ramanbhai Chauhan, panch witness
PW 5 - Exh. 25 Ramabhai Chaturbhai Sodhaparmar, panch witness
PW 6 - Exh. 26 Yusufkhan Akarkhan Pathan, panch witness
PW 7 - Exh. 30 Dilawarkhan Usmankhan Pathan, panch witness
PW 8 - Exh. 32 Manharbhai Bhailalbhai Patel, panch witness
PW 9 - Exh. 33 Jayantibhai Hathibhai Talpada, panch witness
PW 10 - Exh. 34 Mahammedmiya Allamiya Malek, panch witness
PW 11 - Exh. 36 Ranabhai Karmanbhai Koli, medical officer
PW 12 - Exh. 37 Abhabhai Shanabhai Chauhan
PW 13 - Exh. 38 Kantaben Ramabhai Chauhan
PW 14 - Exh. 40 Yakubmiya Nayibmiya Malek, Executive Magistrate
PW 15 - Exh. 43 Arvindbhai Vajabhai Chauhan
PW 16 - Exh. 41 Dr. Maheshkumar Parshottambhai Kapadia, medical officer
PW 17 - Exh. 52 Dr. Manishbhai Bachubhai, medical officer
PW 18 - Exh. 54 Dr. Nilakshiben Kantilal, medical officer
PW 19 - Exh. 58 Maganbhai Nagarbhai Talpada, police station officer
PW 20 - Exh. 59 Shatusih Kalusinh Rathod, police sub-inspector
PW 21 - Exh. 61 Dashrathbhai Ramabhai Panchal, police station officer
PW 22 - Exh. 63 Babulal Motan Patil, investigation officer
Documentary evidence
Exh. 18 Complaint
Exh. 21 Panchanama of scene of offence
Exh. 24 Panchanama of clothes of injured Abhabhai Shanabhai
Exh. 27 Panchanama of physical examination of accused
Exh. 28 Panchanama of recovery of clothes of accused Chadabhai and
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weapons
Exh. 29 Inquest Panchanama
Exh. 31 Panchanama of clothes of Ramabhai Shanabhai
Exh. 35 Panchanama of clothes of accused
Exh. 47 Post-mortem note
Exh. 42 Dying declaration of Abhabhai Shanabhai
Exh. 48 Medical certificate of cause of death
Exh. 53 Injury certificate of Abhabhai
Exh. 55 Certificate of deceased Ramabhai Shanabhai
Exh. 56 Certificate of injured Abhabhai Shanabhai
Exh. 64 Post-mortem Form
Exh. 65 Receipt of handing over dead body
Exh. 66 Map of scene of offence
Exh. 67 Forwarding note
Exh. 68 FSL receipt
Exh. 69 FSL letter
Exh. 70 FSL report
Exh. 71 Serological report
7. After closure of the prosecution evidence, the
respondent-accused along with 2 other accused, were
questioned under Section 313 Cr.P.C. to which they
stated that, they were innocent and had been falsely
implicated in the serious offence of murder.
8. Though opportunity was extended, no evidence was
tendered from the side of accused-respondent.
9. After conclusion of trial, relying principally on the
deposition of PW.1, PW.12 and medical evidence
including the postmortem report, the Sessions Court
held responsible the respondent no.2 Somabhai for
causing the death of Ramjibhai under Section 304 Part
I of the IPC and was sentenced to undergo 10 years
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imprisonment with fine Rs.5000/- and in default
thereof, further imprisonment of 1 year. The
respondent-accused no.1 was held guilty by the court
below for attempt to murder and causing injuries to
the PW.12 - Abhabhai and was directed to undergo 7
years imprisonment and 1 year under Section 307 and
326 of the IPC respectively. So far as respondents
accused are concerned, they have been acquitted of
the all charges.
10. In the aforesaid facts and circumstances, the State
has filed the present appeal on a very limited ground
that, the accused should have been convicted under
Section 302 of the IPC instead of Section 304 Part I of
the IPC.
11. Mr. Jay Mehta, learned APP appearing for the
appellant-State submitted that, the respondents-
accused in order to kill the deceased Ramjibhai,
assaulted him with the dangerous weapon scythe
(dharia). On this aspect, Mr. Mehta referred the oral
testimony of the witnesses namely PW.1- complainant
and PW12-Abhabhai Chauhan who have categorically
stated that, the accused no.2 - Somabhai caused
injuries on the left shoulder of the deceased as well as
on the head. The medical evidence namely PW.16- Dr.
Mahesh Kapadia while conducting post-mortem found
the said injuries on the body of the deceased. The
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accused no.1 Chadabhai had also assaulted the
PW.12- Abhabhai with the weapon dharia which led to
amputation of left forearm and right thumb and index
finger of the same hand. In such circumstances, the
accused in furtherance of their common intention,
assembled at the place of occurrence and assaulted
the deceased as well as the witness Abhabhai. The
cause of death as opined by the doctor was shock and
haemorrhage due to substantial injuries over the body
of the deceased Ramjibhai. Thus, in view of the
aforesaid proved facts, 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 the present case.
12. In the circumstances as referred above, Mr. Mehta
would urge that the findings recorded by the trial court
appears to be unreasonable, perverse which has
resulted into miscarriage of justice. Thus, he prays
that, there being a merit in the appeal, the same may
be allowed and the respondents-accused may be
convicted and sentenced under Section 302 with the
aid of Section 34 of the IPC.
13. On the other hand, Mr. Parthiv Bhatt, learned counsel
appearing for and on behalf of respondents-accused
submitted that, the incident occurred without any
premeditation, in a hit of passion as there was a
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dispute of demarcated place which was under the
possession of the complainant party. The respective
field of the parties are adjacent to each other. The
place which had been used for bathing purpose and
specifically earmarked, was covered by the
complainant party. When the accused had asked the
deceased and injured witness PW.12 to keep land
vacant for which the complainant party refused to do
it, which led the scuffle between the parties. In such
circumstances, Mr. Bhatt has submitted that, there
was no intention on the part of the accused to cause
death or intention to such bodily injury which was
likely to cause death. It is on record that, no any
repeated blows being caused on the body of the
deceased. There is no evidence that who had caused
the head injuries and as per the medical evidence, it
could not be possible by weapon scythe.
14. In the circumstances as referred above, Mr. Bhatt
would urge that, there being no merits in the appeal,
same may be dismissed.
15. We have heard learned counsel for the parties and
considered their rival submissions made hereinabove
and also went through the records.
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16. The question for consideration is to whether the
learned trial Court is justified in convicting the
respondent accused herein for the offence under
Section 304, part-1 of the IPC?
17. It is not in dispute that, the respective field of the
parties are adjacent to each other and they belonged
to same family. It is on record that, there was a
dispute about one portion of land, which is according
to case of the complainant party, is in their possession
and as per the claim of the accused, the said portion
of land had been used by them for bathing purpose
and same is required to be kept vacant for their
regular use. However, on the day of incident, the
complainant party had refused to keep vacant the said
portion of land and they have started cultivation upon
the land. The accused no.1 Chaddabhai Chauhan and
accused No. 2 Somabhai Chauhan are real brothers.
The oral evidence of PW-1 and PW-12 Abheysing who
sustained grievance injuries over his left hand, go to
show that, the accused No. 1 Chadda Chauhan
assaulted PW-12 with weapon scythe Dharia, which
resulted into amputation of the left hand from
forearm. The second blow with the scythe was given
by accused Somabhai Chauhan on the body of
deceased Ramjibhai, which had led to the death of
deceased. The PW-16, who had conducted the PM on
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the body of the deceased Ramjibhai had noticed the
surgical wound on the left arm of the deceased and
further noticed fracture injuries over the skull. It is
relevant to note that none of the witnesses have
stated that, the accused nos. 3 and 4, have assaulted
the deceased on his head. The witnesses have made a
general statement that the accused nos. 3 and 4
assaulted the deceased but there is no clarity whether
blow was given on the head or not. The testimony of
Executive Magistrate PW-14, who had recorded the
statement of PW-12 and same is produced at Exh. 42,
which shows that the assault on both the brothers
were made by the accused Chaddabhai Chauhan. The
injury on left arm found on the body of the deceased
was not fatal injury. The head injury, as noticed by the
PM doctor, could not be possible by the weapon
scythe. In the aforesaid background facts, learned
court below held that, the ingredients of Section 34
are not attracted and considering the individual role of
the accused, the court below found guilty the accused
Chaddabhai Chauhan under Section 307 of the IPC,
whereas, the accused Soma Chauhan found guilty for
the offence punishable under Section 304, part-1 of
the IPC. Both the accused have not challenged their
conviction and their prison period had already been
over.
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18. This is an acquittal appeal filed by the State. The
position of law whether case would be fall under
definition of 'murder' or the culpable homicide not
amounting to murder under Section 304, Para-1 or 2,
is settled. 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.
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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 Section 304
if the case fall within 3rd part of Section 299 of
the IPC.
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(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
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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, 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
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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
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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."
19. Looking at the oral evidence on record, we are of the
view that the manner in which the incident arose and
considering the dispute of limited portion of the land
and the nature of injury sustained by deceased
Ramjibhai, we are of the considered opinion that it
was a sudden fight, without pre-meditation and it was
done in heat of passion and therefore, the requirement
of exception 4 to Section 300 is satisfied.
20. For the reasons recorded, the conclusion drawn by the
trial Court, convicting the respondents accused under
Section 304, Part-1 of the IPC, are based on
appreciation of evidence and the view taken is
possible and plausible and the findings cannot be held
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perverse.
21. Resultantly, we have hesitation to held that, the
prosecution failed to prove its case by adducing
sufficient evidence to prove the charge of murder
under Section 302 of the IPC against the respondents
accused. Accordingly, appeal filed by the State lacks
merits and same deserves to be dismissed and is
accordingly dismissed. R&P, if any, be sent to the
court concerned.
(ILESH J. VORA,J)
(HEMANT M. PRACHCHHAK,J)
P.S. JOSHI
