R/CR.A/469/1995 JUDGMENT DATED: 13/05/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 469 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
RAMANBHAI MANIBHAI SOLANKI & ORS.
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Appearance:
MR. L.B. DABHI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
KISHAN Y DAVE(8293) for the Opponent(s)/Respondent(s) No. 3
MR HM PARIKH(574) for the Opponent(s)/Respondent(s) No. 3
MR RASESH H PARIKH(3862) for the Opponent(s)/Respondent(s) No. 3
MR.MRUDUL M BAROT(3750) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 13/05/2024
ORAL JUDGMENT
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(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Here is the Appeal by the State against the judgment and order of
acquittal.
2. Being dissatisfied by the judgment and order passed by the learned
Additional Sessions Judge, Nadiad, dated 30.6.1994 acquitting the
respondents from the offence punishable under Sections 302 read
with Section 34 of Indian Penal Code, State has preferred instant
appeal under Section 378 of the Cr.P.C.
3. This Court has heard Mr. L.B. Dabhi, learned State Counsel, Mr.
Mrudul Barot, learned counsel and Mr. Rasesh Parikh, for the
respective parties.
4. The accused Raman Manibhai Solanki, respondent No.1, has
passed away. Hence, appeal against him stands abated.
5. Brief facts giving rise to file the present Appeal are that, accused
and deceased Haribhai Maganbhai Solanki, were belongs to same
family and have a family agricultural farm, possessed jointly, at
Village: Hathipura, Taluka: Borsad, District: Anand. The accused
intent to obtain financial aid from the Bank against the said land.
The deceased being a co-owner, refused to sign loan papers. The
dispute arose between the parties on this aspect, as a result their
relations were not cordial. On 7.6.1992, at about 18.00 p.m., the
accused Raman Solanki, Pasabhai Solanki and Dariaben Solanki,
went to the house of the deceased for obtaining consent to
mortgage agricultural land and on denial by the deceased, the
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accused who were armed with spear, spade and wooden-logs, have
caused the fatal injuries to the deceased. The witness Shantaben ,
PW-2, wife of the deceased, who was present at home, sustained
injuries when she intervened to rescue her husband. It is the case of
the prosecution that the accused No.1 Raman Solanki caused
injuries over both the legs of the deceased by using weapon Spear,
whereas accused No.2 Pasa Solanki gave a blow over the head of
the deceased by shovel and accused Dariaben caused injuries by
using a wooden-log to the deceased as well as witness Shantaben.
During the said scuffle, the witness Maniben PW-3, was residing
nearby the house of the deceased, rushed to the scene of the
offence and claimed to be a witness to the incident. The deceased
was taken to the Primary Health Centre where he succumbed to his
injuries. The Anklav Police upon receiving the information,
reached to the place of offence. The injured eye-witness PW-1
Shantaben, gave her complaint to the Police. Pursuant to the said
complaint, the offence was being registered against the accused for
the aforesaid offences. PW-9 R.J. Patil, PSI was entrusted
investigation. The accused were arrested. The weapons used in the
offence were seized and recovered. On completion of the
investigation, the accused were charge-sheeted for the aforesaid
offences. The Court of Judicial Magistrate, committed the case to
the Court of Sessions and the same was culminated into Sessions
Case No. 240 of 1992. The Additional Sessions Judge, Nadiad
framed the charges against the accused on 4.5.1994 for the
aforesaid offences.
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In order to bring home the charges leveled against the
accused, the prosecution examined following material witnesses
namely,
1. PW-1- Dr. B.R. Solanki Exh-11
2. PW-2 Shantaben Haribhai Exh-13
3. PW-3 Maniben Harmanbhai Exh-15
4. PW-4 Raman Jagabhai Exh-16
5. PW-9 Mr. R.J. Patil, Investigation officer Exh-35
6. The material documentary evidence proved and produced before
the trial court will be referred at the appropriate stage.
7. After recording the evidence of prosecution witnesses was over,
the trial court recorded the further statements of accused under
Section 313 of Cr.P.C. The accused denied the evidence recorded
by the prosecution and pleaded that they have been falsely
impleaded because of family dispute. The deceased was killed by
unknown persons and the witness Shantaben, wife of the deceased,
was not at the home as she went to attend the marriage function in
the village. The presence of Maniben was also denied.
8. The learned trial Court after hearing the parties and on appreciation
of the evidence held and observed that the prosecution miserably
failed the guilt of the accused under Section 302 of the Indian
Penal Code. The learned trial Court, vide its judgment and order
dated 30.6.1994, convicted the accused, finding them guilty of
committing homicidal death not amounting to murder under
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Section 304 Part-1 and II.
The accused Raman Solanki was found guilty under Section
304 Part-II, Section 323 read with Section 34 of the Indian Penal
Code and sentenced him to undergo rigorous imprisonment for a
period of 5 years and fine of Rs.2000/- and in default to undergo 3
months simple imprisonment.
The accused Pasabhai Manibhai was found guilty under
Section 304 Part-II and Section 323 of the IPC, and sentenced him
to undergo rigorous imprisonment for a period of 5 years and fine
of Rs.2000/- and in default to undergo 3 months simple
imprisonment.
The accused Dariaben Ramanbhai was found guilty for the
offence punishable under Section 304 Part-I and Section 323 of the
Indian Penal Code and sentenced her to undergo 3 months rigorous
imprisonment and fine of Rs.200/- and in default to undergo 5 days
simple imprisonment.
9. Aggrieved with the judgment and order of acquittal under Section
302 of the Indian Penal Code, the State has come up before this
Court by preferring this Appeal.
10. Mr. L.B. Dabhi, learned Additional Public Prosecutor, assailing the
judgment and order of acquittal, has submitted that, the findings of
acquittal qua, under Section 302 are contrary to law and evidence
on record and the finding thereof are palpably erroneous and based
on the irrelevant material. The judgment of acquittal under Section
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302 suffers from patent perversity and the same is based on a mis-
reading / omission to consider the material evidence as well as
settled position of law. He would urge that the trial Court has
believed and accepted testimonies of the eye-witnesses. The trial
Court while examining the evidence of the eye-witnesses, also
considered the medical evidence, arriving at the conclusion that the
accused caused the fatal injuries to the deceased. In such
circumstances, having regard to the role played by the accused as
well as the use of the weapons and the injuries suffered by the
deceased, the act was done with the intention of causing death and
the injuries were sufficient in the ordinary course of nature to cause
death.
11. In view of the aforesaid contention, Mr. Dabhi, learned Additional
Public Prosecutor has submitted that the case of the accused would
not fall under any of the exception under Section 300 of the Indian
Penal Code. Thus, therefore, he would urge that the acquittal of the
accused under Section 302 is not sustainable in law and the
findings on the sentence are also contrary to the settled principles
of penology, which has resulted into mis-carriage of justice and
thus, the findings and ultimate conclusion and resultant order of
acquittal under Section 302 warrants interference.
12. Mr. Parikh and Mr. Mrudul Barot, learned Counsels appearing on
behalf of the respondents herein have submitted that, based on the
evidence on record, trial Court was justified in arriving at the
conclusion that the accused were guilty of the offence punishable
under Section 304 Part -I and II instead of Section 302 of IPC; that
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the trial Court has rightly considered the relations of the parties and
the dispute, as raised, because, the deceased had refused to
cooperate the accused in obtaining the loan, as a result, without
pre-meditation, suddenly the incident happened as narrated by the
trial Court and, thus, the act of the accused likely to cause death but
it was done without any intention to cause death or to cause bodily
injury as is likely to cause death.
13. In view of the aforesaid contention, it is submitted that the findings
and conclusion, of the trial Court found guilty of the accused under
Section 304 Part-I and II of the IPC are based on the evidences and
documents on record and considering the peculiar facts and
circumstances, the trial Court by assigning proper reasons, awarded
just and proper sentence, which does not warrant any interference.
14. In the facts of the present case, the two eye-witnesses namely
Shantaben PW-2 and Maniben PW-3 Exh-15 were examined
before the trial Court and relying on their testimonies, the Court
was of the opinion that the prosecution is able to prove the charge
for the offence punishable under Section 304 Part-I and II of the
IPC. In such circumstances, the issue falls for consideration as to
whether the act of the accused is culpable homicide amounting to
murder or not?
15. It is not in dispute that death of the deceased is homicidal death.
PW-1 Dr. B.R. Solanki Exh-11, who had conducted the Post-
mortem of the deceased, found compound fracture in occipital
region and there were punctured wounds at both the legs and rest
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of the injuries, either external or internal, were in the nature of clw,
abrasions, bruises, etc. The cause of death as per the Medical
Officer was due to shock and hemorrhage and multiple injuries
found on different parts of the body. On careful examination of the
testimony of the Doctor, he has not opined that the injuries
mentioned in the Column Nos.17 and 19 were sufficient in the
ordinary course of nature to cause death.
16. In such circumstances, based on the ocular version and expert
evidence, the learned trial Court came to the conclusion that the
accused did not act with pre-meditation and considering the nature
of injuries and weapon used and the injuries suffered by the
deceased, it could not be said that the accused had intention to
cause such injuries to the deceased so as to cause his death. Upon
re-analysis of the oral as well as documentary evidence, we are of
the view that due to land dispute, more particularly getting the
finance from the Bank, the consent of the deceased was necessary
for which the dispute arose and, therefore, the occurrence can be
said to be in a fit of anger and, therefore, the learned trial Court has
rightly held that the act of the accused is culpable homicide not
amounting to murder. In the case of Ajmal v. State of Kerala,
(2022) 9 SCC 773, the Hon’ble Supreme Court on the identical
issue has observed and held that, Section 300 of IPC which defines
“Murder”, however, refrains from the use of the term
“likely”, which reveals absence of ambiguity left on
behalf of the accused. It is often difficult to distinguish
between culpable homicide and murder as both involve
death. Yet, there is subtle distinction of intention and
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knowledge involved in both the crimes. This difference
lies in the degree of the act. There is very wide
variance of degree of intention and knowledge among
both the crimes.
17. It is profitable to refer the decision of Pulicherla Nagaraju v.
State of M.P, (2006) 11 SCC 444, wherein by illustration, the
Apex Court explained how and under what circumstances the
Court has to determine whether the case falls under Section
302 or Section 304 PartI/II. In Para-18, the following
observations are made, which read as under:
“18. Therefore, the court should proceed to decide the
pivotal question of intention, with care and caution, as that
will decide whether the case falls under Section 302 or 304
Part I or 304 Part II. Many petty or insignificant matters
plucking of a fruit, straying of a cattle, quarrel of children,
utterance of a rude word or even an objectionable glance,
may lead to altercations and group clashes culminating in
deaths. Usual motives like revenge, greed, jealousy or
suspicion may be totally absent in such cases. There may be
no intention. There may be no pre-meditation. In fact, there
may not even be criminality. At the other end of the
spectrum, there may be cases of murder where the accused
attempts to avoid the penalty for murder by attempting to
put forth a case that there was no intention to cause death.
It is for the courts to ensure that the cases of murder
punishable under section 302, are not converted into
offences punishable under section 304 Part I/II, or cases of
culpable homicide not amounting to murder, are treated as
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murder punishable under section 302. The intention to
cause death can be gathered generally from a combination
of a few or several of the following, among other,
circumstances : (i) nature of the weapon used; (ii) whether
the weapon was carried by the accused or was picked up
from the spot; (iii) whether the blow is aimed at a vital part
of the body; (iv) the amount of force employed in causing
injury; (v) whether the act was in the course of sudden
quarrel or sudden fight or free for all fight; (vi) whether the
incident occurs by chance or whether there was any pre-
meditation; (vii) whether there was any prior enmity or
whether the deceased was a stranger; (viii) whether there
was any grave and sudden provocation, and if so, the cause
for such provocation; (ix) whether it was in the heat of
passion; (x) whether the person inflicting the injury has
taken undue advantage or has acted in a cruel and unusual
manner; (xi) whether the accused dealt a single blow or
several blows. The above list of circumstances is, of course,
not exhaustive and there may be several other special
circumstances with reference to individual cases which may
throw light on the question of intention. Be that as it may”.
18. In light of the settled legal position of law and applying the
same to the facts of the present case and considering the scope
and ambit of appeal against acquittal, there is no substantial
reasons to alter the findings of the trial Court as we did not
found that the findings so recorded for not convicting the
accused under Section 302 are perverse. Thus, the conclusion,
convicting the accused under Section 304 Part-I and II of the
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IPC are in consonance with the statutory provisions and
evidence on record, which do not warrant any interference.
19. In the result, the present appeal is hereby dismissed. R&P to
be sent back to the trial Court. Bail bond, if any, stands
cancelled. Surety, if any given, stands discharged.
(ILESH J. VORA,J)
(NIRAL R. MEHTA,J)
SAJ GEORGE
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