Bharatsinh Khemabhai Masani Vs State of Gujarat

Mr. J.R. Vora, J.@mdashInstant Appeal has been preferred by the accused - appellant u/s 374 of the Code of Criminal Procedure against the judgment and order rendered by Additional Sessions Judge, Fast Track Court, Ahmedabad (Rural), on 04. 02. 2003, in Sessions Case No. 72 of 2002. Present appellant being accused of the said Sessions Case, came to be convicted for the offence punishable u/s 302 of the Indian Penal Code and was sentenced to undergo imprisonment of life and to pay fine of Rs. 100/-, in default, to undergo simple imprisonment of 07 days. He was also convicted for the offence punishable u/s 323 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of 01 month as well as appellant was also convicted for the offence punishable u/s 504 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of 01 month. Appellant was also convicted for the offence punishable u/s 506(2) of the Indian Penal Code and was sentenced to undergo imprisonment of 03 months as well as he was convicted for the offence punishable u/s 135 of the Bombay Police Act, but he was not separately sentenced for this conviction. Learned Trial Judge directed that all the sentences to run concurrently and accused -appellant was given benefit of set off for the period which he had undergone during trial. As per the brief prosecution of the case, on 18th of September, 2001, after 2.30 p. m. incident occurred and complaint was given by Laxmanbhai Bhikabhai, resident of village Badarkha, Taluka -Dholka, District - Ahmedabad. In this incident, two persons died - i. e. Rajendraisnh, brother of the complainant Laxmansinh Bhikabhai as well as Sajjanben, mother of the complainant. It is the prosecution case that complainant Laxmansinh had illicit relations with the wife of the accused and the accused appellant was having that suspicion and, therefore, though they belonged to one family, they were not in speaking terms amongst them. On the day of the incident at about 2. 30 p. m. complainant, out of their house in Faliya, along with Udesinh and Mahendrasinh was playing carom, at that time, accused came from the side of the bus stand and came near the complainant where he was playing carom and gave one blow of fist from the back of the complainant and stated that complainant was keeping illicit relation with his wife. Complainant stood up and ran from that place to his house because the accused had a knife with him and he tried to extract knife. The complainant came to his house and conveyed to Rajendrasinh - deceased, his brother that fist blow was given by the accused to him. In the meantime, the accused came near the house of the complainant speaking abuses. Rajendrasinh came out of house in Faliya and tried to persuade the accused, but accused stated that. Laxmansinh had illicit relations with his wife and he was to be done to death. Rajendrasinh attempted to prevent the accused. At that time, accused jumped and inflicted a blow of knife on the right side of the chest of Rajendrasinh and one blow was given on the side of the body. While Rajendrasinh had fallen on the ground and one knife blow was given by the accused on the wrist of Rajendrasinh. Mother Sajjanben, the second deceased in the incident, tried to intervene and the accused inflicted a knife blow in her abdomen. Thereafter, accused was caught hold of by complainant and he started shouting. Therefore, neighbours came down to the scene of offence and accused ran away with the knife. Both the deceased were taken to Sushrusha Hospital at Ahmedabad, but during treatment, Rajendrasinh died on the same day at 19. 00 hours while mother Sajjanben died on 20. 09. 2001 at about ) midnight. According to prosecution case. on 18. 09. 2001, from Sushrusha Hospital, Navrangpura, Ahmedabad, a Vardhi which is placed at Exhibit-18, was sent to the Police Station and one Constable Mangalsinh Vaghabhai went to Sushrusha Hospital and recorded statement of Bhavubhai Prabhatsinh Masani and that statement is on record at Exhibit-18, though Bhavubhai has not been examined. Thereafter, Navrangpura Police Station forwarded the papers to Bavla Police Station because in the jurisdiction of that police station, the incident had taken place. Investigating Officer - Senior Police Sub- Inspector Udesinh Khatubhai, PW-13. visited Sushrusha Hospital and recorded the complaint of Laxmansinh, which is placed at Exhibit-8. A crime came to be registered and an attempt was also made to record dying declaration of the deceased but that was not possible because Rajendrasinh died at 19. 00 hours while Sajjanben was not in position to offer dying declaration. During investigation, the Investigating Officer recorded the statements of witnesses, postmortem of both dead bodies was conducted, accused was arrested on 19. 09. 2001 at about 16. 00 hours, panchnama of discovery of knife at the instance of the accused in the presence of panchas was drawn, panchnama of scene of offence was also drawn, muddamal was sent to Forensic Science Laboratory and charge sheet was filed. What is required to be noted here is this that though in arrest panchnama it is not noted that injuries were found on the body of the accused, but the accused made a complaint to the Investigating Officer that he had also received injuries and was required to be sent to Medical Officer. Not only that, about the same incident, accused preferred a complaint of non-cognizable offence u/s 323 of the Indian Penal Code which was registered by the same Investigating officer, which is on record at Exhibit-51.

2. On charge sheet being submitted before the learned JMFC, the case was committed to the Court of Sessions and learned Trial Judge framed charges against the accused on 11th of September, 2002, but the accused pleaded not guilty. Therefore, the prosecution examined the following witnesses.

3. Prosecution also tendered documentry evidence on record as under:

4. In further statement recorded by the Trial Court u/s 313 of the Criminal Procedure Code, in explanation, the accused stated that, at the time of incident, he was at his house and complainant Laxmanbhai insulted and mocked him and, hence, he scolded Laxmansinh. For that, deceased Sajjanben and Rajendrasinh came near his house and started quarreling. Deceased Sajjanben caught hold of him from behind and Rajendrasinh had stick with him. Deceased Rajendrasinh and complainant Laxmansinh started beating him with sticks which caused injuries on his hand. He was vigorously attempting to escape from Sajjanben, who had caught hold of him and he did not succeed, he had a knife with him and for self-defence he wielded knife and wounds caused to both the deceased. He explained that he had no intention to cause death of the deceased.

5. Learned Trial Judge thereafter heard both the sides and came to the above conclusion and, hence, this Appeal.

6. Learned Advocate Mr. B. A. Surti for the appellant restricted his arguments to the point that what is revealed and proved through the evidence and weighing the defence taken by the accused, though the incident has been proved, but the manner in which the incident is revealed, accused -appellant could be held liable only for the offence u/s 304 Part-II of the Indian Penal Code, a culpable homicide, not amounting to murder. He pointed out deposition of the witnesses, which according to him, indicate scuffles between the parties, in which stab wounds ensued. It is further stated that accused had also injuries in the same incident, which is proved by medical evidence. In these circumstances, according to the learned Advocate for the appellant, the Trial Court erred in not believing the case of the appellant for the lesser offence of culpable homicide not amounting to murder. It is submitted that the Appeal is required to be allowed to that extent.

7. While learned APP Ms. Chetanaben M Shah vehemently urged that what is revealed on the part of accused from the evidence recorded that the accused had intention to kill complainant Laxmansinh in any case and had a strong motive for that because of suspicion that the Laxmansinh had illicit relations with his wife. It is submitted that, in examination-in-cross, witnesses have referred casually an answer to a question that there was scuffle, otherwise, all throughout in evidence, it is proved that the accused was the aggressor with the required intention. When first part of the story is seen, it is found that from the spot where complainant was playing carom accused had ran after the complainant with a knife with him and had decided to kill not only the complainant but whoever intervenes to save complainant, and in that process, deceased Rajendrasinh and Sajjanben had received injuries, which proved fatal and both of them died. Rajendrasinh had more than one blows of knife wounds. It is submitted that the injuries which accused received were minor in nature and that according to PW-1 Dr. Sandip Ghanshyam, who examined the accused, those injuries could have been inflicted before 24 hours before from the time he examined the accused. It is submitted that the accused was examined on 19th of September, 2001 and the incident occurred on 18th of September, 2001. It is submitted that having seen the explanation of the accused in statement u/s 313 of the Code of Criminal Procedure, it is in contradiction with the N. C. Complaint which he had given before the Investigating Officer and that the manner in which the accused has narrated the incident is improbable in view of the evidence of eye witnesses whose evidence could not be dislodged by the defence. It is, therefore, submitted that the circumstances established by the evidence leads to the only conclusion that accused was guilty of committing double murder i. e. Rajendrasinh and Sajjanben. It is submitted that the deceased and witnesses had not given slightest provocation about the incident. It is therefore submitted that the prosecution could establish a very strong case against the appellant and the appeal being merit less, required to be dismissed.

8. We have undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record has been thoroughly scrutinized with reference to the broad and reasonable probabilities of the case have been considered by us. We have dealt with and appreciated the contentions raised by both the sides in this Appeal. We have re-appreciated and scrutinized each comer of the case to come to our independent conclusion.

9. Sections 299 and 300 of the Indian Penal Code makes clear distinction between murder and culpable homicide. All murders are culpable homicide but having regard to Sections 299 and 300, all culpable homicides are not murders. Culpable homicide is broad term which includes murder when the act has special characteristics. Indian Penal Code practically recognizes three degrees of culpable homicide. The first degree of culpable homicide is covered by Section-300 of the Indian Penal Code and punishable u/s 302. This is the ultimate grievous form of culpable homicide, which we recognized as murder. The second degree of culpable homicide is lesser grave than the first and a type of this culpable homicide is punishable u/s 304 Part-I of the Indian Penal Code while the lowest type of culpable homicide is punishable u/s 304 Part-II of the IPC. On reading minutely those provisions of law, it is clear that the distinction amongst three kinds of above act is subtle but discernible. Proportion and gravity of mens rea which is essential part of the criminal act is attached in different degrees with each of the three types of culpable homicide as aforesaid. This mens rea is required to be measured from the facts of the case and other attending circumstances. On going through Section-300 from the facts of this case, we will have to ascertain whether the act was done with the intention of causing death, or with the intention of causing such bodily injury as the appellant knew to be likely to cause death, or the appellant caused with such intention that such bodily injury which was sufficient in the ordinary course of nature to cause death or the appellant knew that his act was so imminently dangerous that it must in all probability shall cause death without any excuse for incurring the risk of causing death or such injury. If facts and circumstances does not attach the mens rea of the aforesaid degree, then offence must fall within the ambit of Section-229 i. e. culpable homicide and punishable u/s 304 of the IPC. Therefore, from the: facts of the case, it is essential to find and discover mens rea of the appellant.

10. With the above said observations when we advert to the facts of the case, we found that Sajjanben had following injury as deposed by PW-16 Dr. Bhavin Champakbhai Patel.

"Internal organ injury following stab wound in abdoman".

The certificate in this respect is produced at Exhibit-48. While Rajendrasinh, other deceased, had following three injuries. Certificate in this respect is at Exhibit-49.

1. Injury No. 1 - stab wound - 5 cms x 2 cms directed down wounds medially by right side surface chest, 4. 5 cms interior to right nipple medial angle.

2. Injury No. 2 - 4 cms x 2 cms transversed incise wound muscle deep on posters lateral on right forearm.

3. Injury No. 3 - 5 cms x 2 cms size verticle stab wound on posterior lateral back on right chest.

11. Out of three injuries caused to deceased Rajendrasinh, injury No. 1 stab wound on right chest was fatal and serious on account of which some injuries were caused in lungs while injuries No. 2 and 3 were simple in nature.

12. It is also to be noted that when PW-1 Dr. Sandip Ghanshyambhai, examined the accused on 20. 09. 2001 at 14. 00 hours, he had following injuries:

- Multiple abrasions over left knee joint, maximum of them is of irregular shape Stu (V. O. ) is 2 cm long and 1. 5 cm width. No fresh bleeding is seen.

Ocdema is 1. 5 cm long, 1 cm in width irregular in shape, abrasion is at irregular shape size is 0. 5 cm in length x 0. 4 cm in width. Abrasion is over oedema. No fresh bleeding is seen.

- Ocdema & abrasion over left forearm, dorsal side, over lower 1/3 side.

- Multiple abrasions are over left shoulder joint maximum of them is irregular shape size is 4 cm long x 3. 5 cm in width.

- No fresh bleeding is present at the injury side. Nature of injury simple and instrument used blunt. Recovery period was noted to be of 7 days"

13. Postmortem of deceased Sajjanben was conducted by PW-14 Dr. Gautam Vrujlal Nayak, who was examined at Exhibit-44. Postmortem Note is produced on record and death was due to shock and haemmorhage on account of stab wound. While PW-11 Dr. Narendra Gunvantrai Joshi, examined at Exhibit-32, conducted postmortem of Sajjanben on 20th of September, 2001 and postmortem note is on record at Exhibit-33.

14. When the evidence of eye witness i. e. PW-2 Laxamansinh Bhikhabhai Masani, examined at Exhibit-7, PW-4 Taraben Dilipsing Masani, examined at Exhibit-11 and PW-5 - Madhavbhai Parbhatbhai Masani, examined at Exhibit-12, are appreciated with the above said medical evidence on record, what is found is that, the incident occurred on 18th of September, 2001 after 2. 30 p. m. when complainant Laxmansinh was playing carom outside his house in Faliya with other two persons. At that time, accused came there, inflicted a fist blow on his back. Laxmansinh stood up. Accused attempted to extract a knife, which was with him. Therefore, he ran towards his house and conveyed this fact to his brother, who was sitting in the house. In the meantime, accused came near the house of complainant speaking abuses. Rajendrasinh and deceased tried to persuade the accused, but the accused exhorted that Laxmansinh had illicit relations with his wife, and for that, he was to be done to death. Deceased Rajendrasinh attempted to prevent the accused. At that time, accused jumped and inflicted a blow of knife to Rajendrasinh on right side of the chest. Rajendrasinh leaned towards earth and, therefore, one blow was inflicted by the accused on the side of the body and one more blow on his hand. Mother Sajjaben intervened and accused inflicted a blow on her abdomen. Thereafter Bharatsinh - accused was caught hold of by complainant and he shouted. Therefore, neighbours came down to the scene of offence and accused ran away.

15. The incident which is revealed through the evidence of eye witnesses, as aforesaid, is proved beyond doubt that the accused inflicted knife blows on the persons of both the deceased. There were three injuries on the body of Rajendrasinh, out of which, one was fatal while two were simple. There was one injury on the person of deceased Sajjaben that was stab wound. Both the deceased met with the death, which was culpable homicide and the same was amply proved by the prosecution through the evidence of PW-11 Dr. Narendra Gunvantrai Joshi, examined at Exhibit-32, PW-14 Dr. Gautam Vrujlal Nayak, examined at Exhibit-44 and PW-16 Dr. Bhavin Champakbhai Patel, examined at Exhibit-47. What is proved is this that accused inflicted injuries on the persons of the deceased, on account of which, both the deceased died and the Trial Court while appreciating the evidence and the arguments of the accused, came to the conclusion that, this was a double murder case of culpable homicide amounting to murder because according eye witnesses the accused inflicted injuries of knife blows on the persons of both the deceased deliberately and intentionally and he had required motive for inflicting those stab wounds. Panchnama of discovery and the other evidence of witnesses, supported the prosecution case. The Trial Court, therefore, negatived the arguments of the defence that it was either covered by the right of self-defence or the offence falling within the scope of culpable homicide not amounting to murder.

16. As stated above, we have thoroughly re-appareciated the evidence. The evidence of witnesses establishing the case of the prosecution as to the incident has to be read as a whole. What is stated by the witnesses in the examination-in-cross has to be considered along with the statements made by the witnesses in examination-in-chief. While going through the evidence of all the three eye witnesses and more particularly the evidence of PW-2 Laxmansinh Bhikhabhai Masani, it clearly revealed that though the accused inflicted blows of knife on the persons of both the deceased, but there was some scuffle between the parties. It must be noted that, in the scuffle, from the prosecution side, there were three persons while accused was alone. In the evidence of Laxmansinh, he had admitted that when he conveyed the fact of he being beaten by the accused at Faliya, both the deceased conveyed to him that the accused was required to be done to death and is required to be accosted. Admission on the part of this witness in cross-examination, undoubtedly, indicates that the scuffle having taken place between the accused on one side and Laxmansinh, Rajendrasinh and Sajjanben, all three on the other side. Laxmansinh had admitted in his examination-in-cross that during the scuffle deceased Sajjanben had caught hold of the accused from his back and accused was vigorously attempting to free himself. It is admitted that, at that time, the accused was holding knife. Though, when facts put to him in defence that how the injuries were caused by the accused in self-defence, is denied by the the witness, but the fact remains that there was some scuffle and some force used by the deceased and complainant upon the accused. When the whole scenario in which the incident has taken place and the facts and circumstances of the present case are taken into consideration, it becomes clear that the accused was coming from the filed. He had a knife with him and according to him, he usually keeps knife with him. In evidence, it is established that, it was a known fact to ell that, accused had suspicion that his wife had illicit relations with the complainant Laxmansinh. The accused when he was coming to his house, noticed that Laxmansinh was playing carom outside his house in Faliya with two others and inflicted a fist blow on his back. Accused in defence, though changed his version, stated that he had administered a slap to the accused. What appears from the evidence on record is that Laxmansinh immediately stood up and ran away from there because he noticed that accused had a knife with him, which he attempted to take out. Now in this scenario, which is an established circumstance, we found that, had the accused any intention to kill the complainant, he would not have allowed him to run away from that place and would have inflicted knife blows then and there. It is necessary to note that, in this regard, the prosecution had not examined other two witnesses, who were playing carom along with the complainant, but if the circumstances are weighed on the touchstone of probability, it is certain that, at that time, accused must not have any intention to kill the complainant. The accused was free at that time to inflict stab wounds to the complainant instead of administering fist or slap to the complainant. With this proved fact, it must be noted that, place of offence is nearby the house of the complainant and the accused, which is clear by the panchnama of scene of offence at Exhibit-15. Place of offence is not in dispute. Now while coming from the side from which the accused was coming, the first house situated belonged to the complainant and thereafter in the same lane the adjoining house was of the accused. Therefore, what is revealed is that, after the first incident, where the accused allowed the complaint to run away from the place accused was coming to his house in normal course, but before that the house of the deceased and complainant were situated. When the accused passed through that place he was accosted by Rajendrasinh, Sajjanben and Laxmansinh and the scuffle ensued. In this scuffle, both the deceased received injuries of stab wounds at the hands of the accused. It must also be noted that deceased Sajjanben had one injury while deceased Rajendrasinh had also one fatal injury and all other injuries were simple in nature. Though one injury out of three inflicted to Rajendraisnh and one injury to Sajjanben were sufficient in ordinary course of nature to cause death. What is required to be seen ; is that whether those injuries were inflicted with deliberation to kill the deceased and whether prosecution has proved that mens rea on the part of the accused.

17. With this fact, the evidence of the Investigating Officer is required to be appreciated wherein he admitted that when the accused was arrested on 19th of September, 2001 at about 4. 30 p. m. he complained about the injury which he had received in the same incident. Investigating Officer therefore noted the complaint of the deceased, but the complaint being non-cognizable offence, which was only registered and was not investigated by the police. Vide Exhibit-51 complaint, the accused stated that the accused as well as the deceased and complainant originally belonged to one family. He further stated that he had suspicion that Laxmansinh had illicit relations with his wife since last six months. On the day of the incident, when he was coming from western side, he found Laxmansinh was playing carom with two others and, therefore, he administered one slap to him and asked him why he was keeping illicit relation with his wife. Laxmansinh had been to his house and when he (accused) was going to his house, deceased Rajendrasinh and Laxmansinh started beating him and in defending himself, the knife blows were given by him to deceased Rajendrasinh and thereafter to deceased Sajjanben, who tried to intervene. He stated a little bit different story in his explanation u/s 313 of the Code of Criminal Procedure compared to what is stated in his complaint at Exhibit-51, but the fact remains that, from the evidence of eye witnesses and from the circumstances that, the complaint dated 19th of September, 2001 offered by the accused before the Investigating Officer, it is clear that there was some scuffle on account of the fact that the accused had suspicion that Laxmansinh had illicit relation with his wife. True that, he was sent to the Doctor for medical examination on the next day at 2. 10 p. m. but it must be noted that right from 4. 20 p. m. on 19th of September, 2001, he was in custody of police. It is also true that the Medical Officer opined that age of injuries received by the accused was 24 hours before the time he examined the accused, but such opinions are never in mathematical exactness. It must also be noted that the accused is not obliged to prove his defence beyond reasonable doubt, it is the duty cast upon the prosecution only. What is required to be seen is that whether the defence of the accused was probabilized from the circumstances of the case and from the evidence recorded. Despite the variation in the statement of the accused in non-cognizable Complaint (Exhibit-51) and explanation which he offered u/s 313 of the Code of Criminal Procedure, it clearly transpired that the scuffle took place between the parties, which ensued in stab wounds inflicted to the deceased. At the same time the defence was also probabilized that some injuries were received by the accused in the same incident which is proved by the complaint placed at Exhibit-51. All these facts go to suggest that though the incident had occurred in the manner the prosecution witnesses narrated, and on appreciation, it is also established that the defence of accused was probablized except to impute the intention upon the accused so as to make him liable for the culpable homicide amounting to murder. The learned Trial Judge erred in appreciating this aspect of the case in its proper perspective, but what appears is that, the intention of the accused was to accost the complainant Laxmansinh and, therefore, at that time, instead of inflicting stab wound, he only administered fist blow and when he was going towards his house and the house of the complainant was situated in between, he was accosted by Laxmansinh and Sajjanben and scuffle ensued. In these circumstances, it is easily discernible that premeditation and required intention u/s 300 of the IPC on the part of the accused is totally absent. In the above circumstances, we positively conclude that what is proved by the prosecution is the culpable homicide not amounting to murder committed by the accused covered under Part-II of Section 304 of the Indian Penal Code and not the culpable homicide amounting to murder.

18. Our view is fortified by the Apex Court in the following decisions:

In the case of 2000 (10) SCC 225 , when accused and deceased while quarreling, accused brought out knife and gave blow on chest of the deceased resulting in the death, the Apex Court held that there was no intention on the part of the accused to give knife blow with the requisite intention of causing murder of the deceased and the offence would fall u/s 304 Part-II.

In the matter of (2000) 10 SCC 307 Kunhayippu vs. State of Kerala , on the facts that deceased and accused were in friendly mood and suddenly accused after going behind deceased, inflicted one knife blow on his abdomen from the back which resulting in his death, the Supreme Court held that the accused had not the necessary intention of causing murder of the deceased while giving of blow though ultimately the blow became fatal. The conviction was altered to that of Section 304 Part-II from Section 302 of IPC.

In the matter of Camilo Vaz Vs. State of Goa, . As per the facts of that case that there was group rivalry between boys of two villages. Accused and others armed with dandas, bottles and cycle chains, coming to the house of deceased and his brothers belonging to other village, with the intention to thrash them. The accused Camilo Vas hitting with a danda on the deceased''s head, a vital part of the body, with such force that deceased falling down unconscious and later succumbing to his injury and from that facts, the Apex Court came to the conclusion that there was no evidence to show that the accused Camilo Vas was bent upon killing the deceased though the act of the accused in hitting the deceased on vital part of the body was done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death. The Supreme Court converted the conviction u/s 304 Part -II and set aside the conviction u/s 302 recorded by the Courts below.

Following the ratio laid down by the Apex Court in the above said cases and as discussed above, we come to the conclusion that the incident is proved in which two deaths have been caused, but the Trial Court erred in holding the accused liable for the offence punishable u/s 302 of the Indian Penal Code, to that extent, the Appeal is required to be partly allowed. Hence, the following order:

"The judgment and order of the Trial Court convicting the accused - appellant for the offence punishable u/s 302 of the Indian Penal Code and sentencing him for the imprisonment of life and to pay fine of Rs. 100/-, in default to undergo imprisonment of 07 days, is set aside and instead we found the accused - appellant guilty for the offence punishable u/s 304 Part-II of the Indian Penal Code and we convict the appellant for the offence punishable u/s 304 Part-II of the Indian Penal Code and we sentenced the accused - appellant Bharatsinh Khemabhai Masani for the rigorous imprisonment of 08 years and to pay fine of Rs. 100/- in default to undergo imprisonment of 07 days for the said offence. The conviction and sentences awarded by the Trial Court to the accused for the offence punishable under Sections 323, 504 and 506(2) of the Indian Penal Code is confirmed and not interfered with. It is directed that all the sentences of imprisonment awarded to the appellant accused shall run concurrently and that the accused - appellant is entitled to the benefit of set off as has been awarded by the Trial Court for the period which he has already undergone during trial. The appeal of the Appellant therefore is partly allowed to the above extent and it is directed that the accused - appellant be set at liberty when sentences, as above said, is served upon him, if he is not required to be detained in jail, for any other purpose. Muddamal be disposed of in terms of the directions of the Trial Court.