STATE OF GUJARAT   (appellant)  Vs. PRAKASH @ PIDDU MITHUBHAI MULANI  (respondent)

R/CRIMINAL APPEAL NO. 527 of 1996

(2JB, A.S. SUPEHIA and M. R. MENGDEY JJ., delivered by A.S. SUPEHIA J.)

Facts: Vide order dated 04.09.2023, after hearing the learned Advocates for the respective parties and on analysis of the evidence, oral as well as documentary and on perusal of the judgment and order of the trial Court, the court had recorded the guilt of accused No.1 – Prakash @ Piddu Mithubhai Mulani. The court had set aside the judgment and order passed by the trial Court acquitting the accused and the matter was kept for hearing on the question whether the conviction should be recorded under Sections 302, 304 Part-I or 304 Part-II of the Indian Penal Code, 1806 (IPC). Today, the court has again extended the opportunity to the learned advocate Dr.Hardik K. Raval appearing for the accused no.1 to make his submissions.

Issue: Whether the accused is guilty of the offences as mentioned above?

Arguments on behalf of appellant: MS. KRINA CALLA, APP

In response to the aforesaid submissions made by learned Advocate Dr.Hardik K. Raval, learned APP Ms.Krina Calla has submitted that in fact the evidence suggests that the accused had committed a coldblooded murder of the deceased by inflicting a blow on the neck of the deceased. She has submitted that in fact the co-accused, who had passed away, caught hold of the deceased and his movement was restricted and the present accused has very precisely inflicted a blow on his neck, which is a vital part of the body. Learned APP has further submitted that in fact the evidence reveals that the accused had teased the sister of the deceased one hour prior to the incident and accordingly when he arrived at the scene of offence where the three accused persons were present and inquired about the teasing of his sister, the accused persons caught hold of the deceased and hence, the present accused cannot be given the benefit of exception to Section 300 of the IPC and it is urged that he may be convicted for the offence of Section 300 of the IPC and punished as per the provisions of Section 302 of the IPC.

Arguments on behalf of respondent: DR. HARDIK K RAVAL

Learned Advocate Dr. Hardik K. Raval appearing for the sole surviving accused no.1, Prakash @ Piddu Mithubhai Mulani has submitted that the evidence suggests that the conviction of the accused can be confined to the provisions of Section 304 Part-II of the IPC or maximum to the provisions of Section 304 Part-I of the IPC looking to the manner in which the incident had occurred. He has submitted that there was no premeditation on behalf of the accused and the accused had no intention to commit murder of the deceased since the incident had occurred due to altercation between the deceased and the accused No.1. It is submitted that the blow was inflicted in a heat of passion due to altercation between the deceased and the accused. In support of his submission, learned Advocate Dr.Hardik K. Raval has placed reliance on the judgment of the Apex Court in the case of Anbazhagan v. State Represented by the Inspector of Police. It is thus urged by the learned Advocate Dr.Hardik K. Raval to give the benefit of exceptions to Section 300 of the IPC since many years from the incident have passed. It is urged by him that by invoking the provisions of Section 304 Part-II of the IPC, the accused may be sentenced to a minimum of 5 years.

Held: The court allowed the present appeal and held that, “The injury definitely was inflicted in such a manner which would attract the provisions of Clauses secondly and thirdly to Section 300 of the IPC. The accused can be attributed with the knowledge that if in such circumstances in which the deceased was made helpless and the injuries inflicted on his vital part that would cut his veins of the neck, he would definitely succumb to death. The intention of causing such injuries on the vital part of the body can be gathered from the act of the accused no.1 as the physical movement of the deceased was totally restricted and confined and hence, the accused no.1 had all the opportunity to inflict the injury on the vital part i.e. on the neck of the deceased cutting of the vein. On the substratum of the foregoing analysis, we reject the contention raised by the learned advocate for the accused to grant him the benefit of Exceptions to Section 300 of the IPC. We therefore convict the accused – Prakash @ Piddu Mithubhai Mulani for committing the murder of the deceased and the incident satisfies the provisions of Section 300 of the IPC. As a sequel, the punishment prescribed under the provisions of Section 302 of the IPC gets attracted. The accused – Prakash @ Piddu Mithubhai Mulani is convicted for the offence of murder and is sentenced to suffer rigorous imprisonment for life. He is also imposed a fine of Rs.5,000/- and in default to undergo simple imprisonment for six months.”