For a conviction of murder, the prosecution must establish mens rea regarding the intention or knowledge of causing death. Without evidence of such intent during a scuffle, death arising from non-lethal injuries constitutes voluntarily causing hurt rather than the offence of murder.

JUDGMENT :

ILESH J. VORA, J.

1. This conviction appeal preferred by the accused appellant – Salamsinh Mathursinh Chauhan, is directed against the judgment of conviction and order of sentence dated 05.02.2011, passed by the learned Additional Sessions Judge, Godhra at Panchmahal, in Sessions Case No. 38 of 2009, by which, the appellant accused had been convicted under Section 302, 323, 504 of the Indian Penal Code and sentenced as tabulated hereunder:

2. The case of the prosecution leading to conviction of the appellant accused is as follows :

(1) On 29.07.2008 at about 9-00 o’clock in night, deceased Jalambhai Bharatsih was attacked by the appellant accused Salamsinh and his brother Jalamsinh Mathursinh, on the issue of overtaking the tempo. The deceased being pillion of the bike, was going from village: Mahelol Muvadi to village: Chanchpur, Umra Faliya.

(2) The bike was driven by PW-4 Kirisinh Solanki. On the day of incident, one tempo was going ahead of the bike and the accused were passengers of the tempo.

(3) The rider of the bike PW-4 overtake the tempo, which was not liked by the accused, as a result, they stopped that tempo and restrained the bike. The accused appellant and his brother scolded the deceased and rider of the bike on the issue of overtaking and hurled abusive and on that count, the quarrel took place. The appellant accused and co-accused Jalamsinh Mathursinh inflicted kicks and fist blows on the body of the deceased Jalambhai Bharatsih and due to hue and cry, the people of the vicinity came to their rescue, as a result, the appellant and his brother fled away from the place. The deceased and complainant Kishorsinh went their village and in the night hours, the deceased had a severe pain in the stomach and he could not passed his stood and find difficulty in passing urine. He was admitted in the Civil Hospital, Godhra. The N.C. Complaint before the Godhra Rural Police Station for the alleged act came to be registered underSections 323, 504 and 114 of the Indian Penal Code. The deceased Jalambhai Bharatsih was admitted in the Civil Hospital from 30.07.2008 to 05.08.2008. The sonography report was to the effect that, there was mild free intraperitoneal fluid found in the small intestine. The surgery was fixed by the Civil Surgeon PW-8. There was a rupture of small intestine and due to said rupture, septicemia was developed. The surgery was not successful and deceased passed away on 05.08.2008.

(4) In such circumstances, the rider of the bike PW-4 Kiritsinh Solanki lodged an FIR with the Godhra Rural Police Station, which came to be registered as I.CR. No. 169 of 2009 for the offences punishable under Sections 302, 323, 504 and 114 of the Indian Penal Code.

(5) The appellant was impleaded as accused No. 2, whereas, Jalamsinh Mathursinh, his brother was impleaded as accused no. 1. The A1 was died during the course of trial proceedings. After due investigation of the case and upon filing of the chargesheet, the case was committed to the court of sessions at Godhra, which had been culminated into Sessions Case No. 38 of 2009.

3. After due framing of the charge and upon the accused appellant not pleading guilty, the trial commenced before the Sessions Court at Godhra.

4. In order to prove the charge, the prosecution examined as many as 11 witnesses and exhi