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CASE NO.: Appeal (crl.)  636-637 of 2002

PETITIONER: Manubhai Atabhai

RESPONDENT: State of Gujarat

DATE OF JUDGMENT: 21/06/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

        1.      Challenge in these appeals is to the judgment of a  Division Bench of the Gujarat High Court, disposing of two  criminal appeals.  The appeal filed by the appellant (for the  sake of convenience described as ’A-2’) was dismissed; the  appeal filed by the State of Gujarat was allowed altering his  conviction for offence punishable under Section304 part 1 of  the Indian Penal Code (in short the ’IPC’) to Section 302 IPC  while maintaining the conviction for offence punishable under  Section 135 of the Bombay Police Act, 1951 (in short the  ’Police Act’).  The learned Additional Sessions Judge, Amerli in  Sessions Case No. 104 of 1992 directed acquittal of Atabhai  (A1), Kanubhai (A3) and Rambhai (A4) (hereinafter for the sake  of convenient described as ’A1, A3 & A4’).

2.      As noted above, both the State and the present appellant  filed appeal. By order dated 18.4.1996 High Court dismissed  the State’s appeal so far as A1, A3 & A4 are concerned.

3.      Background facts in a nutshell are as under:

       Complainant Samnatbhai Thobhanbhai stays in Harijan-  Vankarvas at Kodinar. He had only one son namely Danabhai  and they were staying together. The accused, his father and  brothers were the neighbours of the complainant. They had  some dispute regarding construction of a wall between their  respective properties. Both sides had lodged complaints prior  to the incident. The accused had planned to construct a wall  and apprehending some civil litigation had also lodged a  caveat in the court and had then proceeded with construction  of the wall. On June 9, 1992, at about 6.30 \026 7.00 a.m.,  Atabhai Tabhabhai came to their house and started giving  abuses. The complainant, therefore, went out and inquired of  Atabhai Tabhabhth the reason for giving abuses. This  provoked Atabhai Tabhabhai and he started giving more and  more abuses and picked up a quarrel. Around that time,  Manubhai Atabhai, the appellant, came to the spot with an  open knife, Kanubhai Atabhai came there with an axe and  Rambhai Atabhai had an iron pipe in his hand. By the time  these developments took place, Danabhai, son of the  complainant (hereinafter referred to as the ’deceased’) came  out from the house and tried to cool down Atabhai Tabhabhai.  However, Atabhai Tabhabhai and his sons Manubhai Atabhai,  Kanubhai Atabhai and Rambhai Atabhai got annoyed. Upon  provocation of Atabhai Tabhabhai, Manubhai Atabhai gave a

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knife blow in the stomach of Danabhai the deceased. The  complainant intervened and therefore Kanubhai Atabhai gave  an axe blow on the head of the complaint and Rambhai  Atabhai gave a pipe blow which was received by the  complainant Samatbhai Thobhanbhai on his left hand.  Atabhai Tabhabhai had caused injury on the left thigh of the  complaint with a stone. Wife of Danabhai namely Valiben and  Samatbhai Thobhanbbai and Girdharbbai Govindbhai also  reached the place of incident soon thereafter and the  assailants, therefore, went away. Deceased Danabhai,  Samatbhai and the complainant were taken to the hospital  where the deceased Danabhai was declared dead. On the basis  of the FIR lodged by Samatbhai Thobhanbhai, offence was  registered at C.R.No.85/92 at Kodinar Police Station, the case  was investigated upon and charge sheet was filed.  Accused  persons pleaded false implication.

4.      The trial court placed reliance on the evidence of the eye  witnesses and recorded conviction, as noted above, of A2, the  present appellant while directing acquittal of A1, A3 & A4.High  Court found that the case is clearly one to which Section 302  IPC is applicable and on erroneous premises the trial court  had convicted the appellant under Section 304 part I IPC.

5.      In support of the appeal learned counsel for the appellant  submitted that two facts have been noted by the trial court to  record conviction under Section 304 Part 1 IPC they are : (1) -- -a single blow was given and no attempt was made to give  second blow. (2) There was a cross case registered.  It is also  submitted that finding the prosecution version to be  inadequate, three accused persons were acquitted by the trial  court which was upheld by the High Court.

6.      In response, learned counsel for the State submitted that  the trial court’s judgment was clearly unsustainable and it  had proceeded on erroneous premises and, therefore, High  Court had rightly direct conviction of the appellant under  Section 302 IPC.  The distinction between Sections 302, 304  Part 1 and 304 Part II IPC has been highlighted by this Court  in several cases.  The confusion is caused if courts loose sight  of the true scope and meaning of the terms used by the  legislature in Sections 300 and 304.

7.      In the instant case the injury was 3cm x 2cm x 6cm  about 6 cm. below sternum and 8 cm above umbilicus.  There  was corresponding internal injury causing incised wound of 2  cm on the interior border of the lever.  Doctor had opined that  the lever is a vital organ of the body and the injury found on  the person of the deceased was sufficient in ordinary course of  nature to cause death.   

8.      The nature of intention has to be gathered from the kind  of weapon used, the part of the body hit, the amount of force  employed and the circumstances attendant upon death.  In  the instant case the accused had used a knife. the blade of  which had a length of 6 inches.   The injury was caused just  below the stomach and had affected a vital part i.e. liver.   Knife had gone as deep as 6 cm. in the body which clearly is  indicative of the fact that blow was given with great force and  the outcome of the injury was that the deceased expired  instantaneously.  The deceased as it is admitted was trying to  pacify the parties and there was no part played by him in the  exchange of words which was taking place.

9.      Trial court’s conclusions are very confusing.  For

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recording conviction under Section 304 Part I IPC, the High  Court recorded that it was a case of exercise of right of private  defence and only one blow was given and there was a counter  case. If it was really a case of exercise of right of private  defence, there could not have been any conviction much less  under Section 304 Part I IPC. Merely because a single blow  was given that does not automatically bring in application of  Section 304 Part I IPC.    10.     Trial court did not consider the various aspects  highlighted by this Court in cases relating to single blow.  The  cross case has really no relevance for determining as to the  nature of offence.

11.     Above being the position the order of the High Court does  not suffer from any infirmity to warrant interference.

12.     Appeals are dismissed.