Gujarat High Court
State Of Gujarat vs Kanubhai Becharbhai Damor on 12 May, 2025
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R/CR.A/241/1999 JUDGMENT DATED: 12/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 241 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
KANUBHAI BECHARBHAI DAMOR & ANR.
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Appearance:
MR L.B.DABHI ADDITIONAL PUBLIC PROSECUTOR for the Appellant(s)
No. 1
MR.MRUDUL M BAROT(3750) for the Opponent(s)/Respondent(s) No. 1,2
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
and
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 12/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE MAULIK J.SHELAT)
1. The present Appeal has been filed by the State under Section
378 of the Code of Criminal Procedure, 1973, challenging the
judgment and order dated 02.12.1998 passed by learned
Additional Sessions Judge, Sabarkantha (hereinafter referred
to as "the Trial Court") in Session Case No.31 of 1995. By
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way of the impugned judgment and order, after giving benefit
of doubt, the accused have been convicted under Section 304
Part-II read with Section 34 of the Indian Penal Code, 1860
(hereinafter referred to as "IPC") with Section 135 of Bombay
Police Act instead of Section 302 of I.P.C by the Trial Court.
2. The short facts of the prosecution case read as under:-
2.1 The alleged incident took place at approximately
20:30 hours on 13th November, 1994. It has been alleged
that as the Accused no.1 having an illicit relationship with
the daughter of Savjibhai and the deceased - Chimanbhai
Thavrabhai came between them. In this context, both the
accused, with the intention to kill the deceased -
Chimanbhai and help of each other, killed the accused.
2.2 Thereafter, an First Information Report (FIR) No.79
of 1994 came to be lodged by the father of the deceased i.e.,
Thavrabhai Savjibhai on 4th November, 1994 with 08:15
hours with Modasa Rural Police Station against accused
under Sections 302 and 34 of the I.P.C. read with Section 135
of Bombay Police Act.
2.3 After completion of investigation, charge-sheet came
to be filed against accused. The Magistrate has committed
the case to be tried by Trial Court.
2.4 The Investigating Officer recorded witness statements,
prepared panchnamas including panchnama of scene of
offence, panchnama of recovery and discovery of articles etc.
2.5 Upon completion of the investigation and upon
committal of the case to the Trial Court, learned Trial Court,
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after appreciating oral and documentary evidence on record,
has convicted the accused under Section 304 Part-II read
with Section 34 of IPC by giving the benefit of doubt instead
of Section 302 of I.P.C. and ordered rigorous imprisonment
for five years and fine of Rs.500/- and in default of fine
further rigorous imprisonment of three month by his
judgment and order dated 02.12.1998, which has been
already undergone by the accused - respondents herein.
3. Being aggrieved and dissatisfied with the judgment and order
passed by the Trial Court, the prosecution has filed the
present criminal Appeal.
4. We have heard learned Additional Public Prosecutor,
Mr.L.B.Dabhi and learned advocate Mr.M.M.Barot for the
accused - respondents at length, who have taken us through
various oral evidence as well as documentary evidence, which
are on record. We have independently examined and
appreciated evidence of witnesses.
5. Learned Trial Judge, framed charges vide Exh.11 against the
Respondents - Accused for the aforesaid offences. The
Respondents - Accused pleaded not guilty and claim to be
tried. They were tried for the said offences and in order to
bring home the charge, the prosecution has also produced
oral and documentary evidence.
6. Learned Additional Public Prosecutor, Mr.L.B.Dabhi would
submit that the findings of Trial Court are contrary to law in
evidence on record and the findings recorded by the Trial
Court are erroneous and based on irrelevant material.
6.1 He would further submit that learned Trial Court has
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committed an error while convicting the accused -
respondents under Section 304 Part-II of IPC read with
Section 34 of IPC instead of Section 302 of I.P.C. and has not
properly appreciated the evidence produced on record,
though the prosecution had proved its case against the
accused and learned Trial Court has given undue weightage
to the minor omission and contradiction in the version of
witnesses though there was no any material omission and
contradiction in the evidence of the witnesses.
6.2 Learned APP would further submit that the learned
Trial Court has wrongly given the benefit of doubt in favour
of the accused - respondents herein and committed a grave
error while convicting the accused under Section 304 Part- II
read with Section 34 of I.P.C.
6.3 Thus, the reasons assigned by the learned Trial Court
while convicting the accused under Section 304 Part - II read
with Section 34 of I.P.C instead of Section 302 of I.P.C. are
unjust, improper, perverse and unwarranted to the facts of
the prosecution case and thereby, has committed an error. It
is further submitted that the prosecution has established the
guilt and intention of the accused of all the accused, which is
amounting to murder under Section 302 of I.P.C. and learned
Trial Court has committed an error both on law and facts.
6.4 Thus, the learned Trial Court has wrongly recorded
the order of conviction, which deserves to be quashed and
appropriate sentences for the offences be passed against all
the accused and he urged this Court to allow the captioned
appeal.
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7. Per contra, learned advocate, Mr.M.M.Barot appearing for
the accused has vehemently opposed the appeal contenting,
inter alia, that persecution has miserably failed to prove
charges levelled against accused beyond reasonable doubt
and the Trial Court has not committed any error while
convicting the accused - respondents herein under Section
304 Part-II of I.P.C. as the Trial Court has held that the
prosecution has failed to prove the charges beyond
reasonable doubt, which is primary condition of Section 300
of I.P.C.
7.1 He would further contend that the accused No.1 was
also got injured in the scuffle and filed a complaint and got
injury over his head, which is confirmed from the evidence of
Dr.Dineshbhai Babulal Patel- P.W.4. He would further submit
that the Trial Court has correctly held that the deceased,
Chimanbhai, was the aggressor, as the injury sustained by
Accused No. 1 was inflicted by the deceased using a wooden
stick on the accused's head. If the first blow had been
inflicted by the accused, there would not have been any
opportunity for the deceased to retaliate with a wooden stick,
especially considering the prosecution's case that the
deceased, upon receiving the injury, fell down. Therefore, he
would submit that the actions of the accused were merely a
reaction to the deceased's initial injury to his head, and in
response, the accused stabbed the deceased.
7.2 He would further submit that the learned Trial Court
has properly appreciated the evidence on record and having
found various anomalies in evidence of prosecution, thereby,
correctly not convicted the accused for the offence under
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Section 302 of I.P.C. He would further submit that the
eyewitness- PW-2 - Khatrabhai was not able to show who was
abusing at the place of occurrence, as he deposed before the
Court that he only heard some exchange of abusive words
between the deceased and the accused, which led to a scuffle
between them at the place of occurrence. Therefore, the Trial
Court rightly concluded that it was possible the accused, in
response to the abuse, stabbed the deceased with the
intention to cause bodily injury.
7.3 He would further submit that the injury caused to the
deceased - Chimanbhai was not on the delicate/vital part of
the body of the deceased and involved only a single stab
wound. However, the impact proved fatal due to the
excessive force with which the injury was inflicted, which
went beyond intended bounds, ultimately resulting in the
death of the deceased - Chimanbha
7.4 Therefore, the Court has held that the prosecution
failed to prove the charges levelled against the accused
under Section 302 of the IPC beyond reasonable doubt.
However, the prosecution succeeded in proving its case
under Section 304 Part II of the IPC. Thus, the learned Trial
Court has correctly convicted the accused under Section 304
Part-II of I.P.C. so he has requested this Court not to
interfere with the impugned judgment and order of
conviction.
POINT OF DETERMINATION
1. Whether in the facts and circumstances of the case, any error
of law committed by Trial Court in not convicting the accused
under Section 302 of I.P.C. by convicting accused only under
Section 304 Part -II of IPC?
8. We have gone through the records and after re-appreciating
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the evidence and keeping in mind, the ratio laid down by the
Supreme Court of India while deciding these set of appeals,
we deem it appropriate to decide the appeal.
9. Before dealing with merit of the appeal, at this stage, we
would like to remind ourselves the position of law
propounded by Supreme Court of India in its various
decisions, whereby it has laid down several criteria while
deciding the present appeal.
10. One of the recent pronouncement, in which, the Supreme
Court of India in a case of Babu Sahebagouda
Rudragoudar and Others vs. State of Karnataka [(2024)
8 SCC 149] has held as under:
"39. This Court in the case of Rajesh Prasadv. State of
Bihar and Another, (2022) 3 SCC 471 encapsulated the
legal position covering the field after considering
variousearlier judgments and held as below: -
"29. After referring to a catena of judgments, this Court
culled out the following general principles regarding the
powers of the appellate court while dealing with an
appeal against an order of acquittal in the following
words: (Chandrappa case [ Chandrappa v. State of
Karnataka, (2007) 4 SCC 415 ]
" 42. From the above decisions, in our considered view,
the following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the
evidence before it may reach its own conclusion,
both on questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient
grounds", "very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not
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intended to curtail extensive powers of an
appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him
under the fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
Trial Court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the Trial Court."
40. Further, in the case of H.D. Sundara & Ors. v. State of
Karnataka, (2023) 9 SCC 581 this Court summarized the
principles governing the exercise of appellate jurisdiction while
dealing with an appeal against acquittal under Section 378 of
CrPC as follows: -
"8.1.The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal
against acquittal, is entitled to reappreciate the
oral and documentary evidence;
8.3. The appellate court, while deciding an appeal
against acquittal, after re- appreciating the
evidence, is required to consider whether the view
taken by the Trial Court is a possible view which
could have been taken on the basis of the
evidence on record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view was
also possible; and
8.5. The appellate court can interfere with the
order of acquittal only if it comes to a finding that
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the only conclusion which can be recorded on the
basis of the evidence on record was that the guilt
of the accused was proved beyond a reasonable
doubt and no other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate Court for reversing the judgment
of acquittal recorded by the Trial Court in favour of the accused
has to be exercised within the four corners of the following
principles:-
41.1 That the judgment of acquittal suffers from patent
perversity; 41.2 That the same misreading/omission to
evidence on record; is based on a consider material
41.3 That no two reasonable views are possible and only the
view consistent with the guilt of the accused is possible from
the evidence available on record.
42. The appellate Court, in order to interfere with the judgment
of acquittal would have to record pertinent findings on the
above factors if it is inclined to reverse the judgment of
acquittal rendered by the Trial Court."
11. Now, keeping in mind the aforesaid ratio, we have gone
through the impugned judgment and re-appreciated entire
sets of evidence so as to confirm whether the accused could
have been held guilty for commission of crime under Section
302 of I.P.C. Nonetheless, we could not find any infirmity
either in findings so recorded by Trial Court and its ultimate
conclusion by which accused has not been convicted for the
offence under Section 302 of I.P.C. This conclusion is
supported by the following reasons:-
11.1 To appreciate the controversy germane in the
appeal, we would first like to refer Sections 300, 302 and 304
Part-II of I.P.C., which reads as under:-
"SECTION 300 OF IPC.
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--
2ndly.--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
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to whom the harm is caused, or--
3rdly.--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--
4thly.--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.
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.
Explanation.--Whether the provocation was grave and sudden
enough to prevent the offence from amounting to murder is a
question of fact.
Exception 2.--Culpable homicide is not murder if the offender, in
the exercise in good faith of the right of private defence of person
or property, exceeds the power given to him by law and causes the
death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such defence.
Exception 3.--Culpable homicide is not murder if the offender,
being a public servant or aiding a public servant acting for the
advancement of public justice, exceeds the powers given to him by
law, and causes death by doing an act which he, in good faith,
believes to be lawful and necessary for the due discharge of his
duty as such public servant and without ill-will towards the person
whose death is caused.
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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 quarrel and without the offender's 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.
Exception 5.--Culpable homicide is not murder when the person
whose death is caused, being above the age of eighteen years,
suffers death or takes the risk of death with his own consent.
SECTION 302 OF IPC.
302. Punishment for murder.--Whoever commits murder shall be
punished with death, or 1 [imprisonment for life], and shall also be
liable to fine.
SECTION 304 PART-II OF IPC.
304. Punishment for culpable homicide not amounting to murder.--
Whoever commits culpable homicide not amounting to murder shall
be punished with 1 [imprisonment for life], or imprisonment of either
description for a term which may extend to ten years, and shall also
be liable to fine, if the act by which the death is caused is done with
the intention of causing death, or of causing such bodily injury as is
likely to cause death;
or with imprisonment of either description for a term which may
extend to ten years, or with fine, or with both, if the act is done with
the knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as is likely
to cause death."
11.2 So far as factum of death of deceased - Chimanbhai,
being a culpable homicide caused by the act of the accused is
concerned, it is no longer in dispute as the Trial Court has found
the accused guilty of causing such culpable homicidal death.
However, the Court has sentenced them under Section 304 Part
II of the IPC.
11.3 To prove the charges under Section 302 of IPC, heavy
burden was upon prosecution to prove ingredients of Section
300 of I.P.C., thereby, it would have to be proved on record that
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the accused had the intention to cause the death of the
deceased - Chimanbhai, by inflicting injuries on his body with a
dagger (Gupti). If the prosecution failed to prove such intention
on the part of the accused, the case would fall under the
exceptions to Section 300, wherein it could be held that
although a culpable homicide occurred, it did not amount to
murder.
11.4 When we have re-appreciated the entire evidence
available on record, it would be noticed that there was a scuffle
between deceased and accused and exchange of some abusive
language by them, which was seen by PW-2-Khatrabhai.
11.5 Further, it has been correctly observed by Trial Court
that as per the case of prosecution, the deceased fell down upon
receiving the injury, and Accused No. 1 had sustained a serious
head injury, which has been brought on record through medical
evidence and confirmed in the oral testimony of PW-4 - Dr.
Dineshbhai Babulal Patel. Therefore, the Trial Court rightly
assumed that the deceased had first inflicted the injury on the
head of Accused No. 1, and resultantly, the deceased received
injuries from the accused.
11.6 Secondly, had there been any intention on the part of
the accused to kill the deceased, there would likely have been
more than one blow inflicted on his body, which is notably
absent in the present case.
11.7 Thirdly, the prosecution has failed to establish any
motive on the part of the accused to kill the deceased -
Chimanbhai, as it had not examined the father of girl with whom
accused had an illicit relation i.e. Savjibhai.
11.8 Fourthly, it has not come on record that the accused
had premeditated or planned the murder of the deceased. On
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the contrary, the deceased appears to have been the aggressor,
and the accused seems to have inflicted the blow with the
dagger (Gupti) in response to the aggression.
11.9 Fifthly, from the evidence of PW-2, Khatarabhai, it has
been confirmed that there was a scuffle between the
complainant and the accused, along with an exchange of
abusive language. Due to sudden and grave provocation, and
upon having sustained an injury himself, the accused, in
retaliation, inflicted injuries upon the deceased. However, the
intention to kill has not been proved.
11.10 Sixthly, after overall appreciation of evidence on
record, we are also in agreement with the view taken by the
Trial Court that there was sudden fight between deceased and
the accused No.1 and grave provocation and having first
inflicted the blow on the head of accused No.1, then the
deceased - Chimanbhai had been stabbed which ultimately
resulted into his death.
12. Thus, reasons which are so stated assigned by the Trial Court
would lead to only one conclusion that the prosecution has
failed to establish intention of accused to kill the deceased
Chimanbhai and such vital fact having not been proved, the
plain reading of Section 300 read with Section 302 of IPC
would justify the conviction of accused under Section 304 Part
II of IPC and as such, no error of fact or law can be found in the
impugned judgment and order of Trial Court whereby, accused
were not convicted for the offence punishable under Section
302 of IPC.
13. As such, the present appeal was essentially filed for not
convicting the accused under Section 302 of IPC and not on
issue of sentence so awarded by Trial Court while convicting
the accused under Section 304 Part-II of IPC. Nonetheless, we
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have examined the aspect of sentence but would not like to
increase it as Trial Court having given adequate reasons for
awarding five years imprisonment and the discretion so used
by the Trial Court is neither erroneous nor perverse and in
any case nor arbitrary, this Court would not like to disturb
and interfere with such discretion so used by Trial Court while
awarding sentence to accused.
14. Thus, after going through evidence and its re-appreciation as
well as reasons assigned by learned Trial Court are just and
proper. The prosecution has failed to prove in its case before
this Court, and we are in complete agreement with reasons
assigned by the learned Sessions Court while convicting the
accused.
15. Considering these set of evidences on record and in light of
the recent decision of the Hon'ble Supreme Court as
reproduced hereinabove, we are of the opinion that no error
has been committed by the learned Sessions Judge,
Sabarkantha, in Sessions Case No.31 of 1995 while convicting
the respondents.
16. The appeal is accordingly DISMISSED. Resultantly, the
impugned judgment and order of the Trial Court is hereby
confirmed. Bail bond, if any, shall stand cancelled. Record and
proceedings, if called for, be sent back to the concerned Trial
Court forthwith.
(NISHA M. THAKORE,J)
(MAULIK J.SHELAT,J)
MOHD MONIS
