The court distinguished between murder and culpable homicide, concluding that the absence of intent to kill warranted a conviction under Section 304 Part-I instead of Section 302.

JUDGMENT :

(ILESH J. VORA, J.)

1. This Criminal Appeal preferred by the sole appellant accused herein under Section 374(2)of the Cr.P.C is directed against the judgment of conviction and sentence dated 30.10.2017 passed by the learned 4^th Additional Sessions Judge, Kutch at Anjar in Sessions Case No. 113 of 2015, by which, the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment and fine of Rs.10,000/-, in default thereof, further simple imprisonment of 6 months.

2. The case of the prosecution leading to the conviction of the appellant Suja Vibhaibhai Bhil, is as follows :

2.1 The incident of murder took place on 23.05.2013 at about 8-00 PM. The place of incident was Sahunagar, Sector 6, village: Adhoi, Tal.: Bhachau, Dist.: Kutch. The deceased Babubhai Arjan Bhil was happened to be the uncle of the accused. According to prosecution case, the appellant infected a blow on the neck of the deceased with the weapon scythe (dhariya) which resulted into rupture of the vessels. The deceased was declared brought dead at Bhachau Civil Hospital. The brother of the deceased being eye-witness Manjibhai Bhil, lodged an FIR on 24.05.2013 at about 1-15 AM before the Samakhiyari Police Station for the offence punishable under Section 302 of the Indian Penal Code.

2.2 According to prosecution case, 4 to 5 days before the incident (23.05.2013), the appellant accused Suja Vibha and his brother in law Lagdhir Nathu Bhil PW- 12 had gone to village: Ratanpar at their sister-in-law’s house to attend the marriage. After attending the marriage, they went to their father-in-law’s house at village: Gadhda and stayed there. At village : Gadhda, the dispute arose and due to altercations amongst the parties, the appellant accused by holding the weapon knife in his hand threatened his father in law and brother in law Lagdhir Nathu. After the said incident, the appellant accused came to his village: Adhoi.

2.3 In the aforesaid background, the father in law of the appellant and others came to house of the complainant Manjibhai (PW-5) and narrated the entire incident about the threats given by the accused. The deceased Babubhai, who happened to be the brother of the complainant was also there. In order to settled the dispute, the meeting with the elderly members of the community convened at the house of Chhaganbhai Bhil (PW-13), where accused was also called upon by the deceased and others. The meeting was held between 7-00 to 7-15 PM on 23.05.2013. In the presence of community persons, the deceased Babubhai told the appellant accused about the incident as referred above. After hearing the deceased, the appellant left the meeting and went to his house and after some time, he came with scythe in his hand and made a statement that, who wants to quarrel with him. The deceased Babubhai told the appellant that to whom you want to kill with the scythe. The appellant got agitate and infected a single blow on the left side of the neck of deceased Babubhai and in defense when he raised his hands, he also sustained injuries over his hand. The deceased fell down on the floor. The appellant ran away with the weapon. The person including the complainant who were present taken the deceased to the Civil Hospital, Bhachau, where, the deceased declared ‘brought dead’. Pursuant to the intimation given by the hospital, the Samakhayari Police came at the Hospital. The PW-5 Manjibhai disclosed his complaint (Exh. 47) before the Investigation Offcer Mr. D.D. Rana (Exh. 78).

3. The PW-16 D.D. Rana, during the course of investigation, sent dead body of the deceased for postmortem, drew the panchnama of place of incident, recorded the statements of material witnesses, arrested the accused on 25.05.2013 and at the instance of accused, discovered and recovered the weapon scythe (Exh.45), seized the cloths of the accused and also obtained the cloths of the deceased along with blood samples and thereafter, sent the muddamal articl