IMPORTANT POINT
Determination of culpable homicide amounting to murder.

JUDGMENT

Dipak Misra, J.:-Leave granted.

2. In these appeals, the appellant, original accused No. 1, has called in question the legal propriety of the judgment of conviction and order of sentence passed by the High Court of Gujarat in Criminal Appeal No. 950 of 2009 whereby the Division Bench has allowed the appeal of the State and converted the conviction under Section 304 Part-I of the Indian Penal Code (for short ‘IPC’) recorded by the learned trial Judge to that of an offence punishable under Section 302 of IPC and sentenced him to undergo life imprisonment and further the defensibility of the decision of dismissal of Criminal Appeal No. 1075 of 2009 wherein the appellant had assailed the judgment and conviction and order of sentence dated 5.3.2009 passed by the learned Additional Sessions Judge, Bhavnagar in Sessions case No. 166 of 1998.

3. The factual score which led to the trial of the appellant along with two others is that three days prior to the date of occurrence, i.e., 21.5.1998, accused Nos. 1 and 2, namely, Khachar Dipu alias Dilipbhai Nakubhai and Vahtubhai Nakubhai, had a dispute regarding dumping of manure with the brother of the complainant and there were altercations which led to an inimical relationship between the parties. On the date of occurrence, when the deceased Shambhubhai, the brother of the complainant, was going to his field by cycle about 9.00 p.m. on 20.05.1998, the accused No. 1, with the intention of extinguishing the life spark of the deceased, dashed the motor vehicle No. GJ-7-U-2385 from behind and when the deceased was thrown off from his cycle, the accused No. 1 tied him behind the motor vehicle and dragged him about 10 kilometers and threw the dead body on the Gadhada Road and destroyed the evidence. The other two accused persons abetted with the common intention to assist accused No. 1. On an FIR being lodged, the criminal law was set in motion and after investigation, the accused persons were arrested and, eventually, a charge sheet for offences under Sections 302/201 read with Section 34 of the IPC was laid before the learned Magistrate who, in turn, committed the matter to the Court of Session. The accused persons denied the charges and claimed to be tried.

4. The prosecution, in order to establish its case, examined 24 witnesses and exhibited 31 documents. The defence chose not to adduce any evidence.

5. The learned Sessions Judge, on analysis of the evidence, came to hold that the accused No. 1 was guilty of the offence punishable under Section 304 Part-I of IPC and, accordingly, sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.500/- and, in default, to suffer further simple imprisonment of one month. As far as the other accused persons are concerned, they stood acquitted of the charges.

6. Being grieved by the aforesaid judgment, the convicted persons and the State of Gujarat preferred Criminal Appeal Nos. 950 of 2009 and 1075 of 2009 respectively. The High Court took note of the earlier quarrel that had taken place between the parties, the injuries on the dead body, the evidence of the prosecution witnesses, the material brought on record relating to the incident, and accepting the fact that the motor vehicle had dashed against the cycle ridden by the deceased and further analyzing the reasoning ascribed by the learned trial Judge, opined that the learned Sessions Judge had flawed in recording the conviction under Section 304 Part-I of IPC and not under Section 302 of IPC. The High Court opined that it was not a case of accident inasmuch as the injuries on the whole body had effectively crushed the entire body and it could not have happened if the motor vehicle had only dashed against cycle from behind. The High Court further opined that had it been a case of negligence in driving, the accused would not have lifted the body of the deceased after dashing his vehicle against the cycle of the deceased. The Division Bench further proc