PARMAR BHIKHABHAI DHULABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal arises out of an order passed on 11th October 1966 by Mr. J. D. Desai Additional Sessions Judge Nadiad in Sessions Case No. 98 of 1966 whereby the appellant-accused came to be convicted and sentenced to suffer imprisonment for life for an offence of murder punishable under sec. 302 of the Indian Penal Code.

(2.) The point made out by Mr. Trivedi the learned advocate for the appellant is of a two-fold character. The first contention is that much though the injury found on deceased Purshottam was sufficient to cause his death in ordinary course of nature it would not come within the ambit of clause Thirdly in sec. 300 of the Indian Penal Code so as to be punishable for murder under sec. 302 of the Indian Penal Code as it is further essential for the prosecution to show the that particular injury was in fact intended to be caused as required in that clause which has not been so established beyond any reasonable doubt in the case. In that event since death has resulted from the injury the case would fall under third part of sec. 299 of the Indian Penal Code and would become punishable under sec. 304 part II of the Indian Penal Code by attributing to the accused knowledge that he was likely to cause his death by such act. His alternate contention was that even if it were to fall under clause Thirdly of sec. 300 which defines murder having regard to the facts and circumstances disclosed in the case it can easily fall under Exception 4 thereto and that way punishable under sec. 304 part II of the Indian Penal Code. In support of the main contention he referred to a decision in the case of Harjinder Singh v. Delhi Administration A.I.R. 1968 Supreme Court 867. A very recent unreported decision of the Supreme Court in Criminal Appeal No. 1 of 1966 (Laxman Kalu v. State of Maharashtra) the judgment whereof came to be delivered by His Lordship Hidayatullah C. J. on 5th April 1968 was also relied upon.

(3.) Now before turning to the points raised we may consider the facts leading to the incident when death of Purshottam occurred on that day. The facts established in the case over which no point is raised are that the relations between the two brothers were quite cordial and there was no dispute whatever between them before that incident. They were fairly poor persons carrying on agricultural operations. They lived in their respective houses which were close to each other. The root of the quarrel arose out of their 3 years old daughters playing nearby their houses. In that play it appears that Mangu the daughter of deceased Purshottam happened to throw some dust which fell in the eyes of Balu the daughter of the accused. As a consequence thereof their mothers came out and had exchange of words. As the evidence of witness Udesing shows it was at that time that the accused who was washing his hands on the ota came out on seeing his father coming with a view to reprimand his deceased uncle by saying as to why his wife was giving abuses to his wife. His evidence also shows that the accused had no barchhi at that time in his hand. As a result of some exchange of words apart from what the accused has stated in his statement which has been disbelieved by the learned Sessions Judge it appears that the accused had received some injury with a bush from which one can infer that some scuffle must have taken place between them. In that the accused appears to have picked up a barchhian instrument which is obviously used for their agricultural and other work and gave one blow therewith which hurt on the chest of deceased Purshottam. This part of the case of the accused stands borne out from the panchnama made of the condition of his person in the evening in relation thereto as also from the evidence of Dr. Talati Ex. 6. He was found to have two oblique linear abrasions on the left forearm volar aspect unla side each 1/2 away from each other and each (a) 3 1/2 x 1/10 and (b) medially and slightly curved 2 x 1/10 That injury was possible to have been caused by some sharp pointed rough substance such as a bush having thorns. Such a bush was found lying by the side of deceased Purshottam at the time of the incident. In other words the incident which resulted in causing injury to deceased Purshottam purely arose out of a sudden quarrel and some fight having taken place between them that evening. These facts would clearly show that the accused never intended to kill him and the very fact that he gave only one blow may also tend to suggest that he could not have intended to cause such a fatal blow as it turned out in consequence of the injury caused to him. It appears clear that neither the heart nor the lung had come to be injured. The injury however cut an aortic artery. The accused could have hardly intended or known that it would cut any such aortic artery so as to bring about his death. Only one blow was given. It is in those circumstances that we have to find out as to whether he can be held guilty as found by the learned Additional Sessions Judge so as to fall under clause Thirdly of sec. 300 of the Indian Penal Code.