MAHENDRABHAI NAGINBHAI VASAVA v. STATE OF GUJARAT

R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 212 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

========================================= Approved for Reporting Yes No ========================================= MAHENDRABHAI NAGINBHAI VASAVA Versus STATE OF GUJARAT ========================================= Appearance:

HCLS COMMITTEE(4998) for the Appellant(s) No. 1 MR PRATIK B BAROT(3711) for the Appellant(s) No. 1 MR J K SHAH, APP for the Opponent(s)/Respondent(s) No. 1 ========================================= CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 05/12/2025

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)

1. The present Criminal Appeal is preferred by the a ppellant– accused under Section 374(2) of the Code of Crimina l Procedure, 1973, being aggrieved by the judgment of conviction and order of sentence dated 01.10.2016 passed by the learned 5 th Additional Sessions Judge, Ankleshwar in Sessions Case No. 130/2013, whereby the appellant was convicted for the oAences punishable under Sections 302 and 325 of the Indian Penal Code . The learned Sessions Court sentenced the appellant to undergo i mprisonment Page 1 of 12 R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 for life and to pay a Bne of Rs. 1,000/-, in default to further undergo 30 days simple imprisonment for the oAence under Se ction 302 IPC, and to undergo 3 years simple imprisonment and to pay a Bne of Rs. 500/-, in default to further undergo 15 days simple imprisonment for the oAence under Section 325 IPC. The appellant was, however, acquitted of the oAence punishable un der Section 135 of the Gujarat Police Act. Both the substantive sentences were ordered to run concurrently with beneBt of set-oA u nder Section 428 Cr.P.C.

2. The case of the prosecution, as presented before the court, is that on the night intervening 27/06/2013 a tragic and violent incident unfolded inside the matrimonial home of the deceased Sumanben and the accused-appellant Mahendrabhai Naginbhai Vasava. It is the prosecution’s contention that on the said night, a trivial domestic quarrel erupted between the husband (the accused- appellant) and his wife (the deceased Sumanben) over a minor issue concerning preparation or serving of dinner. The accused, in a Bt of sudden and grave provocation fuelled by anger and allegedly harbouring unfounded suspicion regarding his wife’s character or Bdelity, lost all sense of reason and self-control. In this state of uncontrolled rage, he picked up a wooden stick and assaulted his wife by delivering two forceful blows directly on her head with the blunt side of the weapon. The intensi ty of the blows was such that they caused severe cranio-cerebral in juries, which subsequently proved fatal. When the couple’s minor daughters, namely Hansaben and Shakuntalaben, who were present in the house and witnessed the horrifying assault on their mother, rushed forward in a desperate attempt to intervene, the accused, undeterred and still blinded by fury, turned his ag gression towards them as well. He assaulted the elder daughter Hansa ben with the Page 2 of 12 R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 same wooden stick, inGicting grievous injuries upon her, and also attacked the younger daughter Shakuntalaben, causin g her simple hurt. Having committed these brutal acts, the accus ed-appellant immediately Ged from the scene of crime, leaving hi s injured wife and daughters behind. The deceased Sumanben was rus hed to the hospital in a critical condition but, despite medical eAorts, she succumbed to the severe head injuries sustained fro m the deadly blows inGicted by her husband.

3. The complaint was lodged by Lakhiben (sister-in- law of the deceased) leading to registration of FIR at Umalla Police Station.

Upon completion of investigation, charge-sheet was Bled. The case was committed to Sessions Court, Ankleshwar and reg istered as Sessions Case No. 130/2013. Charges were framed unde r Sections 302, 326, 323 IPC and Section 135 Gujarat Police Act.

4. In order to prove the charge, the prosecution exa mined as many as 21 witnesses and exhibited 22 documents.

Oral Evidences:

No. Exh. Particulars

1 09 Panch Witness Naginbhai Fuljibhai Vasava 2 11 Panch Witness Bijalbhai Somabhai Vasava 3 12 Panch Witness Manjulaben Chhitubhai Vasava 4 13 Panch Witness Dharmendrabhai Ramsangbhai Makwana 5 22 Panch Witness Arjunbhai Muljibhai Makwana 6 23 Panch Witness Sureshbhai Babubhai Vasava 7 28 Panch Witness Rameshbhai Kanchanbhai Makwana 8 29 Panch Witness Ashwinbhai Gumanbhai Vasava 9 34 Panch Witness Mahendrabhai Narsinghbhai Vasava 10 35 Compliant Lakhiben Ranchhodbhai Vasava 11 37 Witness Kantibhai Khodabhai Vasava Page 3 of 12 R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 12 38 Witness Maheshbhai Kantibhai Vasava 13 39 Witness Hansaben @ Ansuyaben Mahendrabhai Vasava 14 40 Witness Shankutalaben Mahendrabhai Vasava 15 41 Medical OAicer Dr. Vijaykumar Vanarshibhai Parm ar 16 44 Medical OAicer Dr. Jigneshbhai Mohanbhai Parmar 17 47 Exh. Megistrate Ilyasbhai HaBz Ismailbhai Patel 18 51 Circle Inspector Shanabhai Nagjibhai Vasava 19 57 P.S.O. Jesingbhai Ramjibhai 20 59 P.S.I. Maheshkumar Mangabhai Gilatar 21 65 P.S.O. Chandubhai Dhariyabhai Vasava Documentary Evidences:

No. Exh. Particulars

1 10 Inquest Panchnama

2 14 Panchnama of the Crime scene

3 15 Panchnama of Witness Ansuya and Shankuntala’s clothes 4 27 Panchanma of Accused’s clothes 5 33 Panchanama of the Deceased’s clothes 6 36 Complaint 7 42 Witness Shakuntalaben’s Medical CertiBcate 8 43 Witness Ansuyaben’s Medical CertiBcate 9 45 Written list for the Post Mortem 10 46 Post Mortem Report 11 48 List written to the Exh. Magistrate 12 49 Dying Declaration of Ansuyaben 13 50 Dying Declaration of Shakuntalaben 14 52 List Written to the T.D.O for the Map 15 53 List Written to the T.D.O. Circle Inspector 16 54 Map of the Crime Scene 17 58 Extract from the Station Dairy 18 60 Report of the Crime Scene Visit 19 61 List of the Muddamaal returned Page 4 of 12 R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 20 62 Receipt of the received Muddamaal F.S.L 21 63 F.S.L. Report 22 66 Closing Pursis 5. After closure of the prosecution evidence, the st atement of the appellant accused under section 313 of the Cr.P.C. were recorded, to which, they pleaded their false involvement.”

6. Learned advocate for the appellant-accused furthe r submitted that the appellant has already undergone a substantial period of incarceration, having completed more than 11 years of actual imprisonment till date. It was urged that in view of the nature of the incident, which occurred in a sudden heat of passion without premeditation, coupled with the prolonged period of custody already suAered, the sentence may appropriately be reduced to the period undergone, more so when the a ppellant is the sole earning member of his family and his continued incarceration would cause irreparable hardship.

7. Learned APP, Mr. J. K. Shah, while strongly suppo rting the Bndings of the Sessions court on the reliability of the ocular testimony of the injured eye-witness, the medical evidence establishing that the injuries were suAicient in th e ordinary course of nature to cause death, the discovery of the weapon at the instance of the appellant and the incriminating FSL report, very candidly submitted that upon re-appreciation of the entire material on record, that the incident though having taken pl ace in a sudden quarrel even without any premeditation, and in abse nce of no prior enmity, the Court ruled out the fact that the weapo n was picked up from the spot itself, and the act was committed. However, in continuation further submitted except that nothing further Page 5 of 12 R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 transpires to attribute any adverse to the accused.

8. Having heard the learned advocate for the petitio ner and the learned APP for the state and has considered the en tire evidence on record and the submissions advanced on behalf of the appellant, the core issue that arises for determination is whe ther, in the facts and circumstances of the present case, the conviction of the appellant under Section 302 of the IPC for the oAen ce of murder is sustainable, or whether, in view of the surrounding circumstances, the act would fall within the ambit of culpable homicide not amounting to murder, attracting Section 304 Part I IPC.

Factual Matrix coupled with reasoning:-

9. The incident occurred inside the matrimonial home late at night when only the accused, the deceased wife and the two daughters were present. The quarrel was sudden and over a trivial matter of dinner. The accused did not bring any weapon from outside; the wooden stick was lying in the house and was picked up in the heat of passion. The medical evidence post-m ortem report Exh.46 establishes that the deceased sustained two lacerated wounds on the head with underlying skull fractures and brain injury, suAicient in the ordinary course of nature to cause death.

The wooden club recovered at the instance of the ac cused was found stained with blood of the deceased.

10. From the evidence on record, particularly the po st-mortem report, the injury certiBcates, and the unequivocal testimony of the forensic expert and the doctor who conducted the autopsy and examined the injured witnesses, it clearly emerges that the deceased Sumanben had sustained two deep and extensive lacerated wounds on the left side of the head, both inGicted with Page 6 of 12 R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 tremendous force by a hard and blunt object. The Br st injury was a straight lacerated wound measuring 12 × 1 × 1 cm, extending from a point 2 cm above the left eye towards the midline of the skull, grievous in nature, reaching up to the bone and causing an underlying fracture of the skull. The second injury was an even longer and deeper lacerated wound measuring 14 × 1 × 1 cm, running from a point 4 cm above the left ear to the midline in the left parietal region, again penetrating up to the b one with a clear fracture of the parietal bone. In addition, multipl e bruises were present on the anterior chest wall in the inter-mam mary region, indicative of application of blunt force on the front of the chest.

11. The injured eyewitnesses, particularly daughters Hansaben and Shakuntalaben, were also found to have sustaine d contusions and lacerations consistent with assault by the same blunt weapon.

The doctor has categorically opined that all the in juries noted on the deceased as well as on the injured witnesses we re possible by repeated heavy blows with a wooden stick, and the weapon recovered at the instance of the accused and produced in court was identiBed by the doctor as fully capable of causing precisely such lacerated wounds with underlying fractures. Although in cross- examination the doctor conceded that, theoretically, a fall on a hard surface could produce lacerations, the scene of oAence panchnama and the site map prepared by the investig ating oAicer do not disclose the presence of any stone, boulder, or other hard protruding object at the place of incident capable of causing such deep, linear, parallel lacerated wounds with underlying skull fractures. Thus, the defence suggestion of accident al injury stands completely ruled out. The nature, size, depth, direction, and location of the injuries particularly the two long, deep lacerated wounds on the most vital part of the body (the head), both Page 7 of 12 R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 accompanied by fractures of the skull, clearly esta blish that the assault was executed with considerable force and vi olence. While the medical evidence does not conclusively prove a pre-meditated intention to cause death in the legal sense, it unambiguously demonstrates that the accused had clear knowledge t hat striking his wife repeatedly on the head with such a heavy w ooden stick with the force employed was likely to cause death o r, at the very least, bodily injury of such a nature as would in the ordinary course of nature result in death.

12. The sessions court failed to appreciate the sudd en nature of the provocation and the absence of premeditation, a nd erroneously applied clause thirdly of Section 300 IPC as establ ishing intention rather than knowledge. The act of the accused, therefore, constitutes culpable homicide not amounting to murd er punishable under Section 304 Part I IPC, as the accused did an act with the knowledge that it was likely to cause death, but wi thout intention to cause death. The conviction under Section 325 IP C for causing grievous hurt to daughter Hansaben by the same weap on is fully justiBed and requires no interference.

13. In the case at hand, the entire incident stemmed from a sudden and trivial domestic quarrel over dinner. The appellant, in a moment of uncontrolled anger, picked up an ordinary wooden stick lying in the house and struck his wife on the head. There is not an iota of evidence to suggest any premeditation, prior planning, preparation of weapon, or any intention formed in advance to cause death. The blows, though ultimately fatal, were del ivered in the heat of passion without the appellant taking any un due advantage or acting in a cruel or unusual manner. The circumstances squarely attract Exception 4 to Section 300 IPC. The sessions court Page 8 of 12 R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 completely misdirected itself in treating the oAence as murder punishable under Section 302 IPC.

14. The medical evidence, especially the post-mortem Bndings of two deep lacerated wounds on the left side of the h ead (12 × 1 × 1 cm and 14 × 1 × 1 cm) with underlying skull fractur es, tearing of meninges and brain tissue, and death due to haemorr hagic shock, clearly proves that the injuries were suAicient in the ordinary course of nature to cause death. By repeatedly stri king a vital part (the head) with considerable force using a heavy wo oden stick, the appellant must be imputed with the knowledge that h is act was likely to cause death. At the same time, the consis tent testimony of the injured daughters and the absence of any motive or pre-existing enmity establish that the appellant acted on the spur of the moment and lost self-control owing to the sudden quarrel.

15. Upon re-appreciation of the entire evidence, this Court is satisBed that the learned Sessions Judge gravely erred in convicting the appellant under Section 302 IPC. The act of the appellant falls within the ambit of culpable homicide not amounting to murder and is squarely covered by Section 304 Pa rt I IPC, i.e., causing death by doing an act with the intention of causing such bodily injury as is likely to cause death.

16. Death was not instantaneous; the deceased was taken to hospital and succumbed only after some time. This further reinforces that there was no predetermined intent t o kill but only a rash act committed in sudden anger. In these circumstances, altering the conviction from Section 302 IPC to Sec tion 304 Part I IPC is imperative in the interest of justice. The c onviction recorded by the sessions court for voluntarily causing grievous hurt to Page 9 of 12 R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 daughter Hansaben under Section 325 IPC is, however , based on cogent evidence and is maintained.

Legal Proposition:-

17. In light of the principles laid down in Rampal Singh V.

State of U.P. 2012 8 SCC 289 while reiterating and drawing support from Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 Cri LJ 818], and as reiterated in the recent decision of the Hon’ble Supreme Court in Nandkumar @ Nandu Manilal Mudaliar v. State of Gujarat (2025 INSC 1302) , the distinction between murder under Section 302 and culpable homicide not amounting to murder under Section 304 turns upon th e presence or absence of intention has been succinctly dealt with and observed as under:

“19. The dierence was further elucidated in Rampal Singh v. State of U.P.,(2012) in the following words:

“18. This Court in Vineet Kumar Chauhan v. State of U.P.

[(2007) 14 SCC 660 : (2009) 1 SCC (Cri) 915] noticed that academic distinction between “murder” and “culpable homicide not amounting to murder” had vividly been brought out b y this Court in State of A.P. v. Rayavarapu Punnayya [(1976 ) 4 SCC 382 : 1976 SCC (Cri) 659] where it was observed as un der:

(Vineet Kumar case [(2007) 14 SCC 660 : (2009) 1 SCC (Cri)

915], SCC pp. 665-66, para 16)

“16. … that the safest way of approach to the interpret ation and application of Sections 299 and 300 IPC is to keep in f ocus the key words used in various clauses of the said sections . Minutely comparing each of the clauses of Sections 299 and 300 I PC and drawing support from the decisions of this Court in Virs a Singh v. State of Punjab [AIR 1958 SC 465 : 1958 Cri LJ 81 8] and Rajwant Singh v. State of Kerala [AIR 1966 SC 1874 : 1966 Cri LJ 1509] , speaking for the Court, R.S. Sarkaria, J. neatly brought out the points of distinction between the two oences, w hich have been time and again reiterated. Having done so, th e Court said that wherever the court is confronted with the qu estion whether the oence is ‘murder’ or ‘culpable homicide not amounting to murder’, on the facts of a case, it [would] be convenient for it to approach the problem in three stages . The question to be considered at the @rst stage would be, whe ther the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second sta ge for considering whether that act of the accused amounts to Page 10 of 12 R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 ‘culpable homicide’ as de@ned in Section 299. … If the ans wer to this question is in the negative the oence would be ‘cu lpable homicide not amounting to murder’, punishable under the F irst or the Second Part of Section Page 8 of 29 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumera ted in Section 300, the oence would still be ‘culpable homicide n ot amounting to murder’, punishable under the First Part of Section 304 IPC. It was, however, clari@ed that these were o nly broad guidelines to facilitate the task of the court and not cast-iron imperative.”

20. This Court in the aforesaid case of Rampal Singh (supra) further explained the dierence between these two oences from the perspective of the punitive provisions of Sections 302 and 304 IPC by grading the oences in three categories as follows:

“21.Sections 302 and 304 of the Code are primarily the pun itive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the oences . An analysis of these two sections must be done having rega rd to what is common to the oences and what is special to each one of them. The oence of culpable homicide is thus an oence wh ich may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals w ith cases not covered by Section 302 and it divides the oe nce into two distinct classes, that is, (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sente nce only extends to imprisonment for 10 years. The @rst clause of Section 304 includes only those cases in which oence is really “murder”, but mitigated by the presence of circumstances recognised i n the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intent ion of injuring anyone in particular. In this regard, we may a lso refer to the judgment of this Court in Fatta v. Emperor [AIR 1931 Lah 63] , 1151. C. 476 (Refer: Penal Law of India by Dr Hari Singh Gour, Vol. 3, 2009.)”

18. Having regard to the totality of the facts, the trivial nature of the quarrel, total absence of premeditation, famili al relationship between the parties, the appellant having no prior criminal history, the incident being more than twelve years old, and crucially, the appellant having already suAered actual incarceration of over Page 11 of 12 R/CR.A/212/2018 JUDGMENT DATED: 05/12/2025 twelve years and Bve months. We are of the view tha t the ends of justice would be met by sentencing the appellant to the period of imprisonment already undergone under Section 304 Part I IPC. The appellant has already undergone more than 11 years of actual imprisonment, which is more than suAicient punishment for an oAence under Section 304 Part I IPC in the facts of the case. The sentence of three years under Section 325 IPC already stands more than covered by the period undergone.

19. In the result, the appeal is partly allowed.

(a) The conviction of the appellant under Section 3 02 IPC is altered to one under Section 304 Part I IPC.

(b) The sentence of imprisonment for life is modiBe d to the extent of sentence already undergone.

(c) The Bne amount and default sentence imposed by the Sessions court shall remain unaltered .

(d) The conviction and sentence recorded under Sect ion 325 IPC are conBrmed.

(e) The appellant is directed to be set at liberty forthwith if not required in any other case.

(f) The bail bonds stand discharged.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)

Kaushal Rathod

Page 12 of 12

Original copy of this order has been signed by the Hon'ble Judges.

Digitally signed by: KAUSHAL MAHESHBHAI RATHOD(HCD0078), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 05/12/2025 11:53:40