MULJIBHAI HARJIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) (His Lordship discussed the facts in paragraphs 1 to 13 and held that the case was duly proved. Thereafter His Lordship proceeded to state in paragraph 14 and onwards) .. ... .... 14 The learned Addl. Sessions Judge held that the offence against the accused cannot be said to be falling either under the provisions of sec. 302 or 304 Part II of the Indian Penal Code. In the instant case the injured was first examined by Dr. Kantilal T. Padshala Medical Officer Primary Health Centre; Gariadhar P. W. 3 (Exh. 20). Thereafter he was examined by Dr. Romeshkumar B. Shah Medical Officer Mansinhji Hospital Palitana P. W. 1 (Exh. 16). Ultimately the injured was examined by Dr. B. K. Joshi Medical Officer Sir T. Hospital Bhavnagar. This doctor carried out the post-mortem examination and as per his deposition and as per the post-mortem notes the deceased had the following injuries: (i)Multiple scattered abrased contusions over upper part of right upper arm anterolateral aspect. Old lesion-faint colour. (ii) Multiple scattered abrased contusions over middle part of right upper arm anterolateral aspect-old lesion. (iv) Two wheel marks over right shoulder old lesion. Black in colour-faint colour. (iv) Swelling over the upper part of right forearm. (v) Scattered abrased contusions over front of right forearm. (vi) Sutured wound over the base of right thumb 1/4 in length. (vii) Abrased contusion over lower part of right forearm anterolateral aspect. (viii) Abrasion over the back of right wrist. (ix) Wheel mark over upper part of right thigh anterior aspect 3 in length-faint in colour. (x) Multiple abrasions over right leg. (xi) Abrased contusion over middle part of left leg anterior aspect. (xii) Three scattered wheel marks over left thigh upper part-upper two injuries over anterior aspect lower one injury on lateral aspect. (xiii) Sutured wound over middle part of left upper arm 2 in length. (xiv) Multiple scattered wheel marks over upper part of left forearm-upper one-third anterior aspect. (xv) Scattered released contusions over front of middle part of right upper arm. (xvi) Wheel marks over the middle part of lest scapular region 3 in length black in colour old injury faint in colour. Dr. B. K. Joshi clearly stated in his deposition tilat the injuries were collectively sufficient in the ordinary course of nature to cause death. The learned Addl. Sessions Judge held that there was no external marks on any of the vital parts of the body and that the injuries were not likely to prove fatal and result into death and the whippers used were hOt deadly or lethal weapons and therefore the accused cannot be said to have committed offence falling under sec. 305 or under sec. 304 Part I or II of the Indian Penal Code. The learned Addl. Sessions Judge relied upon a decision of this Court in the case of Karku Krishna v. State of Gujarat reported in.. The observations made by this Court and relied upon by the learned Addl. Sessions Judge are reproduced hereinbelow: "Usually what is taken to account in ascertains intention of the offender is (1) the anatomy selected by the assailant to intention the injury (2) the weapon selected by the assailant to inflict the injury (3) the number of blows administered to the victim (4) the movie which operated on the mind of the individual concerned (5) the circumstances in which the assault Case to be made and (6) the occasion for doing so. If it is shown that a vital part of the anatomy was specially selected by the assailant it only point at the intention of the assailant either to kill the man or to inflict all injury sufficient in the ordinary course of nature to cause death. Is a particular type of dangerous weapon is selected with some purpose it may also give a clue to the working of the assailant to the assailant continues administering also till the victim receives injuries sufficient to jeopardize his life it may be possible to hold that he had an intention to I in or to inflict a particular injury which was sufficient in the ordinary course of nature to cause death". In the instant case the learned Addl. Sessions Judge ought to have taken into consideration the following factors: 1 The number of blows administered to the victim. 2 The motive which operated in the mind of the accused. 3 The fact that the accused chased and pursued the deceased. 4 The accused gave several blows and caused as many as 16 injuries on legs and arms of the deceased.

(2.) In view of the aforesaid factors and particular in view of the fact that the accused gave several blows caused as many as 16 injuries which ultimately resulted into the death of the injured it cannot be said that the accused had no knowledge that the bodily injury which they were causing would not result into death. By one of the injuries fracture was caused. Simply be cause the accused had selected non-vital part of the body and gave numerous blows on the non-vital part of the body it cannot be said that they would not have knowledge that the injury which the were causing was likely to cause death. IN this view of the matter the finding given by the learned Addl. Sessions Judge that the accused were not guilty of the offence falling under sec. 304 Part II of the Indian Penal Code is requied to be reversed and see aside. As far as the common intention of the accused is concerned the same is obvious. Both the accused started together cn motor-cycle. Both of them chased and pursued the deceased in the filed and even though the deceased made entreaties they continuel to beat him. In this view of the matter the accused are liable to be convicted and sentenced for ordains under sec. 3C4 Part 11 read with sec. 34 of the Indian Penal Code. ... ... ... ...

(3.) We have heard Mr. H. K. Thakore counsel for the appellantsaccused. The appellants accused have been convicted for offence under sec. 304 Part II read with sec. 34 of the Indian Penal Code. The appellants have submitted affidavits and requested that lenient view be taken while imposing sentence.