1998 Supreme(Guj) 618

Gujarat High Court
Judgename :A.M.KAPADIA, J.N.Bhatt
AAMAD - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 864 of 1991
Decided On : 11/18/1998

Headnote:(a) Criminal Trial — Exercise of right of private defence — Weakness of defence strategy can not augment the strength of prosecution case — Prosecution has to stand on its own legs & prove its case beyond reasonable doubt.

       Although the defence of the accused persons is of exercise of right of private defence, the prosecution is obliged to prove its case beyond reasonable doubt. Weakness of the defence strategy cannot augment the strength of the prosecution case. It is for the prosecution to prove the culpability of the accused persons beyond reasonable doubt.

       [Para 14]

       (b) Criminal Trial — Dying declaration — Requirements of — Main anxiety is to see that version which emanates is unprompted untutored, voluntary, rational & reasonable statement of deceased & relatable to the circumstances which resulted in final voyage of his life.

       Needless to emphasis that dying declarations need not be in a detailed and meticulous form of a regular statement. There is no prescribed form of recording the same. The main anxiety of the Court, while assessing the dying declaration, is to see that the version emanates from the dying declaration is unprompted, untutored, voluntary, rational and reasonable statement of the deceased and relatable to the circumstances which resulted into final voyage of his life. The relevance of dying declaration, though, of course, is an unsworn, uncouched, untested one, is only because of the fact that it is made by a man who is sinking. The fast approaching death lends authenticity to such statement.

       [Para 18]

       (c) Evidence Act, 1872 — Sec. 105 — Burden of proving that case of accused comes within exception — Scope & extent of.

       The duty of prosecution is always to prove the guilt of the accused beyond reasonable doubt. It is neither lessened nor lightened when accused raises plea of self-defence or plea of any one of the exceptions and the case is covered under Sec. 105 of the Evidence Act. The burden on prosecution never shifts and this is a settled proposition of law, whereas, in case of defence version the plea of exception is not, necessarily, required to be propounded beyond reasonable doubt. It can be shown or it may be spelt out from the preponderance of probabilities of evidence led even by the prosecution.

       [Para 22]

       In the net result and the final conclusion, therefore, would be that if the Court either is satisfied from the examination of the accused and the evidence adduced by him, or from the circumstances appearing from the prosecution evidence, that the existence of circumstances bringing the case within the exception or exceptions pleaded has been proved, or upon a review of all the evidence is left in reasonable doubt whether such circumstances had existed or not, the accused in the case of a general exception is entitled to be acquitted, or, in the case of special exception; can be convicted of a minor offence.

       [Para 23]

       (d) Penal Code, 1860 — Sec. 302 read with Sec. 114 — Conviction under — Validity — From the relevant factual scenario, Court found that case run diametrically counter to the conviction under Sec. 302 IPC imposed by Trial Court and on the contrary go to indicate that it falls within exception 4 of Sec. 300 IPC — As a result accused are liable to be convicted under Sec. 304 Part I, offence of culpable homicide not amounting to murder — They are therefore convicted under Sec. 304 Part I and sentenced to undergo imprisonment for a period of eight years & to pay a fine of Rs. 15000/- each & default to further undergo Rigorous Imprisonment for two years — Fine so imposed if recovered shall be paid to heirs & legal representatives of deceased.

       From the above relevant factual scenario, following facets and aspects have remained unquestionable from the record of the present case which run, diametrically, counter to the conviction under Sec. 302 of IPC imposed by the Trial Court and, on the contrary, would go to indicate that the case falls within the exception 4 to Sec. 300 of IPC:

       (1)

       Both the accused persons have sustained injuries. A-1, Kalu, had two abrasions, whereas, A-2, Akbar, had grievous injury which required 12 stitches;

       (2)

       The prosecution has, successfully, established the grievous injury sustained by A-2, Akbar, which is a manifestation of a fight between the deceased on one hand and the accused persons on the other;

       (3)

       No evidence is led which would lead us to, unerringly, hold that the accused persons had a plan to do away with the deceased, apart from the trivial nature of motive;

       (4)

       The fact that deceased was in the office of Maha Gujarat Transport Company at the relevant time on the day of the incident means that he was present in the office of the former employer. At the relevant time, admittedly, deceased was not working as a driver with Maha Gujarat Transport Company and it is noticed from the evidence that deceased Kasam was working as a driver in Kailash Transport Company.

       (5)

       The accused persons who are brothers were aggrieved by the incidence of slapping by the deceased to Zarina, the wife of the elder brother of deceased Kasam. This dispute was sorted out and settled almost one month prior to the main incidence and this incidence appeared to be the bone of contention for which there was again conciliation on the day of the main incidence.

       (6)

       There was a sort of scuffle or grabbling followed by hot exchange of words and abuses.

       (7)

       It was found from the evidence of the rickshaw driver, Dawoodbhai, PW. 7, examined at Ex. 44, in his cross-examination by the prosecution, as has turned hostile, that deceased had also a knife and he was wielding the knife, probably, in an attempt to ward off the intended blow upon his anatomy by the accused persons as accused No. 1 Kalu had taken out a weapon colloquially known as Gupti, which is a sharp cutting instrument, and accused No. 2, Akbar, had a knife.

       (8)

       Each of the accused gave one blow to the deceased Kasam. Both the accused persons sustained injuries which are explained. It is, therefore, evident that during the course of conciliation and settlement of the past animosity between the accused persons and deceased, there was a quarrel followed by a fight resulting into injuries to all the three persons of varying gravity.

       (9)

       The accused persons were the aggressors and not the defenders. The deceased appeared to be a defender and in the course of his defence, he injured both the accused persons and accused No. 2, Akbar, sustained grievous injury.

       (10)

       It is noticed from the evidence that there was no undue advantage of the situation taken by the accused so also they did act which could be said to be cruel.

       (11)

       In essence, the meeting between the accused persons on one hand and the deceased Kasam on the other, which was commenced in a conciliatory mood, came to be transformed in a combative mind. Therefore, it cannot be concluded that there was premeditation.

       (12)

       Each accused inflicted only one blow on the anatomy of deceased Kasam though they had sufficient opportunity to inflict many more. Therefore, they did not act in a cruel manner.

       In light of the aforesaid factual reiteration from the record of the case, all the four requisite conditions to invoke and attract exception 4 to Sec. 300 of IPC are satisfied.

       [Para 27]

       When the accused persons are entitled to invoke the provisions of exception 4 to Sec. 300 of IPC, it will be a case of culpable homicide and not a murder. In other words, the accused cannot be held guilty for the offence punishable under Sec. 302 of IPC as the nature of offence committed by them, in our opinion, is culpable homicide not amounting to murder.

       [Para 29]

       After having taken into consideration, dispassionately, the entire testimonial conspectus and documentary evidence emerging from the record of the present case and the rival submissions and relevant proposition of law, the accused persons are held guilty for the offence punishable under Sec. 304 Part I read with Sec. 34 of IPC or read with Sec. 114 instead of Sec. 302 read with Sec. 114 of IPC. Therefore, conviction under Sec. 302 read with Sec. 114 and Sec. 504 of IPC shall stand quashed. Conviction under Sec. 135 of Bombay Police Act, 1951, is confirmed.

       [Para 37]

       Both the appellants are, therefore, sentenced to undergo R.I. for a period of eight years and to pay fine of Rs. 15,000/- (Rupees fifteen thousand only) each and in default, to suffer R.I. for a further period of two years. If the amount of fine is paid, same shall be paid to the heirs and legal representatives of the deceased Kasambhai by the Trial Court upon due verification and shall safeguard the interest of widow and minors appropriately.

       [Para 38]