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Judgment
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
This Criminal Appeal preferred by the appellant-accused Dinesh Koli under Section 374(2) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C") is directed against the judgment of conviction and sentence dated 28.04.2014 passed by the Additional Sessions Judge, Morbi in Sessions Case No.10 of 2014 by which the appellant has been convicted under Section 302 of the Indian Penal Code (for short "IPC") and Section 135 of Gujarat Police Act and sentenced him to undergo life imprisonment and fine of Rs.10,000/-, in default thereof, further simple imprisonment of 1 year, whereas under Section 135 of Gujarat Police Act, The Court has convicted him and sentenced to undergo 3 months simple imprisonment and in default thereof, further 15 days imprisonment.
The case of the prosecution leading to the conviction of the appellant - Dinesh Koli, is as follows:
The appellant Dinesh Koli, resident of City Morbi, was in relationship with one Vinuben – accused no.2 and had a baby girl out of the said relationship. According to case of the prosecution, the deceased Rajesh, before his murder, outraged the modesty of the daughter of the accused and he was harassing her. In order to reprimand him, the appellant and accused Vinuben on the eve of Janmashthmi i.e. on 28.08.2013 at about 02:00 p.m., came to the place of the incident where the deceased Rajesh and others were gambling. The accused confronted the deceased on the issue of harassment of his daughter, which ensued the dispute between them and scuffle took place, as a result, the appellant took out his knife from his vest and gave a blow on the vest and chest of the deceased and then, run away from the place. The deceased was taken by the persons, who accompanied to him at the Government Hospital where he was declared dead. The FIR of the incident came to be filed by the eyewitness Jitendra Babubhai (PW:7) with the Morbi City Police Station, which came to be registered as C.R. No.I-244 of 2013. PW.22 – A.Y. Sarvani, Deputy Police Commissioner, SC ST Cell was entrusted the investigation of the case. During the course of investigation, he arrested the appellant and his wife Vinuben, recorded the statements of the witnesses, drew the panchnama of scene of offence and collected necessary samples for forensic analysis, obtained the P.M. Report, seized and recovered the weapon knife, seized the cloths of the accused, sent the seized articles to the F.S.L., collected the F.S.L. Repor and on completion of investigation, he laid the chargesheet before the Jurisdictional Magisterial Court, who committed the case to the Court of Sessions at Morbi. The Sessions Court concerned framed the charge against the appellant and his wife.
In order to prove the charge, the prosecution examined as many as 23 witnesses and exhibited 22 documents.
Oral evidence
| PW | Exh. | Name |
|---|---|---|
| PW 1 | Exh. 12 | Ranjit alias Bathiyo Gajabhai Satola |
| PW 2 | Exh. 13 | Natubhai Maganbhai Surela |
| PW 3 | Exh. 14 | Bhagwanjibhai Mohanbhai Jogadiya |
| PW 4 | Exh. 15 | Shankarbhai Bhagwanjibhai Jogadiya |
| PW 5 | Exh. 16 | Mukeshbhai Dharamshibhai Jogadiya |
| PW 6 | Exh. 17 | Keshubhai Bhurabhai Jinjhuwadia |
| PW 7 | Exh. 18 | Jitendra Babubhai Manawadiya, complainant |
| PW 8 | Exh. 20 | Deepakbhai Batukbhai Makwana |
| PW 9 | Exh. 22 | Munnabhai Gordhanbhai Sanura |
| PW 10 | Exh. 23 | Virendrabhai Naveenchandrabhai Dave |
| PW 11 | Exh. 27 | Rajeshbhai Babubhai Satola, panch witness |
| PW 12 | Exh. 29 | Jilubha Bhupatsinh Jadeja, panch witness |
| PW 13 | Exh. 31 | Khimjibhai Virambhai Kathiya |
| PW 14 | Exh. 32 | Khalid Ibrahimbhai Sama, panch witness |
| PW 15 | Exh. 34 | Rameshbhai Sidhabhai, panch witness |
| PW 16 | Exh. 35 | Mahendrabhai Narotambhai Bavaji, panch witness |
| PW 17 | Exh. 37 | Ravjibhai Aidanbhai Mathiya, panch witness |
| PW 18 | Exh. 39 | Zahidbhai Rahemanbhai Belim, panch witness |
| PW 19 | Exh. 40 | Chetanbhai Harilal Dave, panch witness |
| PW 20 | Exh. 46 | Sureshkumar Vikrambhai Mavi |
| PW 21 | Exh. 47 | Dhirubha Jhorubha Vaghela |
| PW 22 | Exh. 48 | Arshadayub Yakubkhan Sarvani |
| PW 23 | Exh. 63 | Dr. Ravindrakumar Murlisinh, medical officer |
Documentary evidence
| Exh. | Description |
|---|---|
| Exh. 19 | Complaint/FIR |
| Exh. 24 | Letter to register offence |
| Exh. 25 | Deputation order for investigation |
| Exh. 26 | Letter for inquest |
| Exh. 28 | Panchanama of dead body |
| Exh. 30 | Panchanama of place of incident |
| Exh. 33 | Panchanama of recovery of clothes of deceased |
| Exh. 36 | Panchanama of production of clothes |
| Exh. 38 | Panchanama of place of incident |
| Exh. 41 | Panchanama of seizure of knife and motorcycle |
| Exh. 42 | Report by medical officer to conduct post-mortem |
| Exh. 43 | Death form |
| Exh. 44 | Post-mortem note |
| Exh. 45 | Report of cause of death |
| Exh. 49 | Report of place of incident |
| Exh. 50 | Letter for taking blood sample |
| Exh. 51 | Letter for drawing map |
| Exh. 52 | Letter for sending map |
| Exh. 53 | Map of place of incident |
| Exh. 54 | Letter of sending muddamal article to FSL |
| Exh. 55 | FSL receipt |
| Exh. 59 | Notification |
During the course of trial, the accused no.2 Vinuben passed away. The appellant Dinesh was questioned under Section 313 of Cr.P.C. to which he stated that he has been falsely implicated in the offence and has denied the case of prosecution.
Though opportunity was extended, no oral evidence being adduced by the appellant – accused.
After hearing the parties and upon appreciation of evidence, the Trial Court found guilty the appellant for murder as defined under Section 300 of the IPC and convicted and sentenced him to suffer life imprisonment.
Being aggrieved and dissatisfied with the impugned judgment of conviction and sentence, the appellant is before this Court by way of present appeal.
We have heard Mr.Ashish Dagli, learned counsel for the appellant and Mr.Jay Mehta, learned Additional Public Prosecutor for the respondent-State.
Mr.Ashish Dagli, learned counsel, while assailing the judgment of conviction and order of sentence, stated that, the prosecution miserably failed to prove the charge of murder against the accused; that the eyewitnesses claimed to be seen the offence are close relatives and friends of the deceased and no any independent witnesses is being examined by the prosecution; that it is not dispute that the daughter of the appellant was subjected to harassment by the deceased Suresh; that in order to teach the lesion to the accused, the accused appellant and his wife Vinaben went to the place occurrence where the scuffle took place which led to the murder of the deceased; that there was no intention to cause death nor caused to such bodily injuries which the accused knows was likely to cause death; that having regard to the attending the circumstances of the case, there was no intention to cause death, and therefore, the act of the accused would not fall under the clauses of definition of murder, but it would fall under Section 304 Part-I or Part-II – culpable homicide not amounting to murder. In such circumstances, as referred above, Mr.Dagli would submit that as on date, the appellant has undergone almost 11 years of his imprisonment and having regard to the peculiar facts of the case, instead of Section 302 of IPC, the appellant may be convicted and sentenced under Section 304 of the IPC.
On the other hand, Mr.Jay Mehta, learned Additional Public Prosecutor opposing the appeal, contended that, the appellant, with premeditated mind, came to the place of incident and he was carrying with him a weapon knife and stabbed the deceased. The medical evidence shows that the injuries on the body of the deceased found on the vital part and as per the opinion of the doctor, the injuries were sufficient in ordinary course of nature to cause death, and therefore, third clause of Section 300 in the present case is attracted. In such circumstances, the prosecution has successfully proved the ingredients of murder, as defined under Section 300 of the IPC, and therefore, having regard to the conduct of the accused, the weapon used in the offence and the manner in which the injuries were caused, the inference would arise that, the act by which the death is caused, is done with the intention of causing death.
Mr.Mehta, learned Additional Public Prosecutor, in view of the aforesaid submissions, further prays that, the Court-below has rightly held the accused guilty for the offence of murder and thus, there being no merits in the appeal and the same may be dismissed.
Before dealing with the rival contentions of the parties, for a limited purpose, it would be useful to analyze the evidence of material witnesses:
Ranjit Gajabhai Satola (PW-1), Natubhai Surela (PW-2), Jitendra Babubhai (PW-7 – complainant), Dipak Makwana (PW-8). All the witnesses claimed to be a witness of the incident. The testimonies of the witnesses, so far as incident and involvement of the accused is concerned, are consistent and as such there is no contradiction in their evidence. The witnesses have categorically stated that on 28.08.2013, when they gathered at the place of incident for gambling, the decease Rajesh had come and joined with them and after sometime, the appellant – Dinesh Koli and accused Vinuben upon riding their bike came and by raising the issue of harassment of their daughter with the deceased, the appellant - Dinesh took out his knife and gave two blows on the body of the deceased. In the cross-examination, except suggestion of denial nothing material asked to the witnesses to testify their credibility.
Dr.Ravindrakumar (PW-23) – Medical Officer, Government Hospital, Morbi. During the postmortum, the PM Doctor found two major external injuries on the body of the deceased (i) penetrating stab wound 4 cm X 1 cm X cavity deep elliptical in shape located in left thorax, 3 cm below and lateral to left nipple, 11 cm to the left of middle horizontally, (ii) stab would - 2cm X 0.5 cm X muscle deep in midline of back spine. The doctor had also found the correspondent injury in the heart with, he had mentioned in column 20 of the PM note – Exh.44. According to opinion of the doctor, cause of death was cardio respiratory failure due to stab injury and he further opined that the injuries were sufficient in ordinary course to cause death.
Arshad Yakubkhan Sarvani (PW-22), who had investigated the case. The witness in his testimony stated that, he recorded the complaint Exh.19 allegedly disclosed by the PW-7, and thereafter, he was entrusted the investigation of the case and during investigation, it was stated that, he recorded the statement of the witnesses, arrested the accused, seized the weapon knife, seized the cloths of the deceased as well as the accused, collected the medical case papers, sent the seized articles to the FSL and upon completion of the investigation, he filed the chargesheet against the accused. In the cross-examination, usual questions of routine investigation being done by him and without evidence, the accused was being falsely involved having been asked by the defence and the said allegations of false involvement denied by the investigating officer.
In the facts of the present case, it is not in dispute that the death of the deceased was homicidal. After careful examination of the eye-witnesses, we are thus satisfied that, the prosecution has beyond reasonable established the occurrence in the manner, as stated by the witnesses. The only question, which requires for our consideration, is with regard to whether case falls within the ambit of culpable homicide amounting to murder punishable under Section 302 of the IPC or it was culpable homicide not amounting to murder punishable under Section 304 of the IPC, as has been pleaded by the counsel appearing for the accused.?
On the issue whether the act of the accused is a murder or culpable homicide not amounting to murder, the Supreme Court, time and again in so many cases, deliberated upon the crucial question of distinction between Section 299 and 300 of the IPC. The difference between murder and culpable homicide not amounting to murder has been succinctly explained in the case of State of A.P. Vs. Rayavarapu Punnayya (1976 (4) SCC 382) in the following words:
"12.In the scheme of the Penal Code, culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans 'pecial characteristics of murder, is culpable homicide not amounting to. murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degreess of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the first part of Section 304. Then, there is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304."
After referring the aforesaid decision, the difference between murder and culpable homicide not amounting to murder was further elucidated in Rampal Vs. State of U.P. (2012 (8) SCC 289). Paras-16 and 21 of the judgment reads thus:
"16.that the safest way of approach to the interpretation and application of Section 299 and 300 IPC is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Sections 299 and 300 IPC and drawing support from the decisions of the Court in Virsa Singh v. State of Punjab [AIR 1958 SC 465: 1958 Cri. LJ 818] and Rajwant Singh v. State of Kerala [AIR 1966 SC 1874 : 1966 Cri LJ 1509], speaking for the court, R.S. Sarkaria, J. neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the Court said that wherever the court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it [would] be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the cases come within any of the Exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 IPC. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative.
21.Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of Section 304 includes only those cases in which offence is really murder, but mitigated by the presence of circumstances recognized in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor [AIR 1931 Lah 63]"
Recently, in the case of Chunni Bai Vs. State of Chhattisgarh (AIR 2025 Supreme Court 2370), the Supreme Court, after referring the observations made in the case of Rayavarapu Punnayya and Rampal Singh (supra), in Para-21, observed thus:
"21.From the above extracts, it can be understood that one of the criteria to determine, in any given case, as to whether the act amounts to murder or culpable homicide not amounting to murder is the presence or absence of intention of the offender. If the intention to cause death or to cause such bodily injury as is likely to cause death or the knowledge, which obviously has to be a conscious one, 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, comes out aloud and clear in the case, it would be most appropriate to categorise it as a case of murder under Section 300 IPC in which event, penal provision of Section 302 IPC would be attracted. On the other hand, if the "intention" in causing the death or to causing such bodily injury is not so clear, the case will fall under the less stringent category of "culpable homicide not amounting to murder" as punishable under Section 304 IPC."
In the case on hand, it can be said to have been proved beyond reasonable doubt that the appellant has caused the death of the deceased Rajesh and thus, committed culpable homicide and now, the issue is whether the Trial Court is justified in convicting the appellant under Section 302 of the IPC and the same is liable to be converted into the offence under Section 304 Para-I or Part-II of the IPC.
The appellant and deceased accused Vinuben were in relationship, and blessed with the baby girl. The girl was of the tender age. The motive behind the incident was the harassment to the daughter at the hand of deceased Rajesh. On the day of incident, the duo, came at the place and raised the issue of harassment with the deceased which led to scuffle between two, as a result, the deceased was stabbed twice by the appellant herein. The witnesses, who were present at the place, are closely related to the deceased and that is why, they had deposed against the appellant on the aspect of causing injuries and did not explain the real cause of incident, however, one of the witness has admitted that before incident, dispute about the harassment of the daughter being raised by the accused. In such circumstances, the incident happened in the spur of moment and out of emotion being a father, the appellant, stabbed the deceased. The medical evidence shows that the injuries found on the vital part of the body, but having regard to the circumstances, as referred above, the appellant being a father lost his control and out of his emotion, he caused the injuries which cannot be said that it had been caused with an intention to kill the deceased.
For the reasons aforementioned, having regard to the peculiar facts and circumstances of the present case and upon careful examination of the evidence on record, we are of the view that the conviction of the appellant cannot be sustained under Section 302 of the IPC, but his act would certainly fall under Section 304 Part-I of the IPC, as a result, the conviction and sentence of life imprisonment under Section 302 of IPC is set aside. The appellant is convicted under Section 304 Part-I of the IPC.
In the result, the appeal is allowed in part. The conviction and sentence under Section 302 of the IPC is set aside and instead thereof, the appellant is convicted for the offence punishable under Section 304 Part-I of the IPC. The accused, as on date has undergone 11 years of his jail term, and therefore, the appellant is sentenced of the period already undergone along with the fine, as imposed by the Trial Court. The appellant may be released forthwith, if he is not wanted in any other criminal offence. R & P, if any, be sent back to the concerned Court.