BHIL MOHANJI RANCHHODJI v. STATE — 1991 DIGILAW 64 (GUJ)

D. G. KARIA, J. ( 1 ) THIS appeal is directed against the judgment and order of conviction and sentence rendered in Sessions Case No. 66 of 1989 by the learned additional Sessions Judge, Mehsana, convicting all the accused persons for the offence punishable under Sec. 304 Part II read with Sec. 34 of the Indian Penal code and sentencing each of them to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000. 00, in default of payment of fine to undergo simple imprisonment for three months. ( 2 ) IT is the prosecution case that P. W. 3-Babulal Exh. 25, who is the son of the deceased Chimanji, was betrothed to Varsha, daughter of the accused No. 1. The said betrothal was broken in presence of Panchas about six months prior to the date of incident. It was further the case of the prosecution that thereafter the said Babulal used to tease and harass Varsha, daughter of the accused No. 1. Therefore, at about 9. 00 p. m. on 6/01/1989, caste-panch was called near Mira Darwaja, Bhil Vas in Patan to resolve the dispute about teasing and harassing of the girl. Deceased Chimanji was sent for through Kotiwali-Bai Kamuben to be present before the Panchas. Chimanji followed by his wife P. W. 4-Saraswati and his son P. W. 3- babulal, came near Jogni Matas temple. Mira Darwaja, where Panchas had assembled. All the accused persons who are brothers, were armed with sticks. Accused started to abuse the deceased Chimanji. At that time, the accused no. 1, Mohanji Ranchhodji, inflicted stick blows on the head of the deceased and accused No. 2, Dhanaji alias Nanaji Ranchhodji, gave stick blows on the back-side and on both hands of the deceased and accused No. 3, Shivaji ranchhodji, gave stick blows on the head of the deceased Chimanji. P. W. 3-Babulal and P. W. 4-Saraswatiben intervened and tried to rescue Chimanji, chimanji sustained injuries and was taken to the hospital. Next day i. e. on 7/01/1989 Chimanji was brought to Civil Hospital, Ahmedabad. On 10/01/1989 Chimanji succumbed to the injuries. It was alleged that the accused persons thus caused death of deceased Chimanji and thereby committed offence punishable under Sec. 302 read with Secs. 114 and 34 of the Indian Penal Code. ( 3 ) THE accused No. 1 was also charged for the offence punishable under sec. On 10/01/1989 Chimanji succumbed to the injuries. It was alleged that the accused persons thus caused death of deceased Chimanji and thereby committed offence punishable under Sec. 302 read with Secs. 114 and 34 of the Indian Penal Code. ( 3 ) THE accused No. 1 was also charged for the offence punishable under sec. 323 read with Sec. 34 of the Indian Penal Code for having caused voluntary hurt to the witness. Babulal Chimanji, by giving stick blows, at the said place and time. The accused were also alleged to have intentionally insulted and thereby gave provocation to the deceased with intent to break public peace or to commit any other offence and thereby committed offence punishable under Sec. 504 read with Sec. 34 of the Indian Penal Code. The accused were also alleged to have committed offence punishable under sec. 135 of the Bombay Police Act, as they were armed with unlawful arms, in contravention of the notification issued by the District Magistrate, Mehsana. Thus, all the three accused persons were tried for the offences punishable under Sec. 302 read with Sec. 114 and/or 34 of the Indian Penal Code and also for the offence punishable under Secs. 323, 504 read with Sec. 34 of the Indian Penal Code and also for the offence punishable under Sec. 135 of the Bombay Police Act. ( 4 ) THE prosecution, in order to prove the charge, examined two eye-witnesses among other prosecution witnesses. . . . . . . . . . . . . . . . . . . . . ( 5 ) IN cross-examination, P. W. 3-Babulal stated that he had run away from the scene of offence when the injuries on his hand were inflicted. He admitted that D. W. 1, Amrutji Mohanji Exh. 46 was present in the community Panch and Ranchhodji, father of the accused persons, was also present in the said meeting. He also admitted that the complaint of having assaulted Ranchhodji was lodged against him. The said complaint was pending. Ranchhodji was also brought to the dispensary, when the deceased was taken to the dispensary. The witness, however, deposed that he did not know as to how Ranchhodji sustained the injuries. He deposed that the persons of society who assembled there, did not speak anything, nor any of them intervened in the scuffle. The said complaint was pending. Ranchhodji was also brought to the dispensary, when the deceased was taken to the dispensary. The witness, however, deposed that he did not know as to how Ranchhodji sustained the injuries. He deposed that the persons of society who assembled there, did not speak anything, nor any of them intervened in the scuffle. He admitted that he had given his complaint to the Police Constable, who was present in the dispensary. he has given history of the injuries sustained by his father, to the Doctor. ( 6 ) P. W. 4, Saraswatiben, widow of the deceased, has supported the evidence of Babulal by and large. She, however, deposed that she did not know if ranchhodji sustained any injured in the incident. She deposed that it was not true that she did not state in her police statement that the accused No. 2 had not given any stick-blow on the chest of the deceased. And that contradiction has been duly proved by the evidence of P. W. 9-Vamanrao D. Patel, Exh. 41. According to Saraswatibens evidence, the words and abuses were being exchanged near Otla and the deceased had fallen at a distance of about 15 feet from the Otla. ( 7 ) THE medical evidence in the case is at Exhs. 15 and 17, wherein Dr. Bipinbhai M. Patel and Dr. Vijeshkumar S. Rao have been examined respectively, p. W. 1-Dr. Bipinbhai M. Patel Exh. 15 deposed that at about 10. 40 p. m. on 6/01/1989, the deceased was brought to him without Police Yadi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Doctor opined that the injuries could be by a hard and blunt substance, like a stick. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 8 ) THE learned trial Judge, on the basis of the aforesaid evidence of the eye-witnesses supported by medical evidence, held that the accused persons were not guilty of the offence punishable under Sec. 302 read with Sec. 34 of the indian Penal Code, for the reason that the accused persons did not intend to cause death of the deceased and that the accused persons were not armed with any deadly weapons. They possessed simple sticks. The learned trial Judge observed that the accused persons had no intention of causing death, or caused the aforesaid bodily injuries with any intention to cause death or they knew that they were likely to cause death by assault with sticks. The learned trial judge, therefore, concluded that the accused persons were guilty of having committed culpable homicide not amounting to murder under Sec. 304 Part II read with Sec. 34 of the Indian Penal Code. He accordingly convicted and sentenced the accused persons as aforesaid. ( 9 ) MR. M. R. Barot, the learned Advocate appearing for the appellants-accused, contended that there was delay in giving the complaint by Babulal or that the Police had caused deliberate delay in taking the complaint with a view to introduce the abovenamed two eye-witnesses. He submitted that the incident is alleged to have taken place at 9-30 p. m. on 6/01/1989. P. W. 8, Baldevbhai Revabhai, Head Constable at patan, had gone to the dispensary on receipt of the order, Exh. 39, for investigation. He reached the dispensary at Patan at about 0-30 hours. He waited till 1-45 hours and tried to record the complaint of the deceased chimanji, if he became conscious by that time. The deceased Chimanji did not regain consciousness and at last, he recorded the complaint of Babulal, son of the deceased at 1-45 night. Mr. Barot also invited our attention to exh. He waited till 1-45 hours and tried to record the complaint of the deceased chimanji, if he became conscious by that time. The deceased Chimanji did not regain consciousness and at last, he recorded the complaint of Babulal, son of the deceased at 1-45 night. Mr. Barot also invited our attention to exh. 38 which is an abstract of Patan City Police Station Diary made on 6/01/1989 at about 11-15 p. m. The Police Station Diary contained an entry that a message was received from the Medical Officer, Patan, that bhil Chimanji Karsanji, aged about 40 years (the deceased) and Bhil ranchhodji Bhaguji, aged about 75 years (father of the accused persons) were injured in scuffle. It was, therefore, pointed out that the incident had not taken place as stated by the prosecution and something was being suppressed with regard to the real genesis of the incident. Mr. Barot submitted that the incident did not take place in the manner it has been alleged by the eye-witnesses, inasmuch as the injuries sustained by Ranchhodji were not explained. There is substance in this contention. Both the abovenamed eyewitnesses have admitted that Ranchhodji had sustained injuries in the incident. They have also admitted that Ranchhodji was brought to dispensary for treatment at the time when the deceased was brought there. Mr. Barot stated that the finding of the learned trial Judge to the effect that the explanation given by P. W. 8, Baldevji Revabhai, about his normal practice to record the complaint of the injured only was improper and impermissible. Reliance was placed on the case of Ganesh Bhavan Patel and Anr v. State of maharashtra, AIR 1979 SC 135 , wherein it is held that delay of a few hours, simpliciter, in recording the statement of eye-witnesses may not, by itself amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. In the instant case, P. W. 8. Baldevbhai Revabhai Exh. 40 had waited to record the complaint of the injured on his regaining consciousness. He has stated that it was his practice to record the complaint of the injured. In the instant case, P. W. 8. Baldevbhai Revabhai Exh. 40 had waited to record the complaint of the injured on his regaining consciousness. He has stated that it was his practice to record the complaint of the injured. There is no invalid and unexplained delay which may cast a cloud of suspicion on the credibility of the eye-witnesses. It is true that Head Constable Baldevbhai would not have waited for recording the complaint of the injured only. There is, therefore, substance in the contention of Mr. Barot. The fact of recording the complaint somewhat late by itself, would not disprove the prosecution case, if it is otherwise proved. ( 10 ) IT is noteworthy that according to the evidence of Dr. Bipinbhai m. Patel Exh. 15, the injuries of Ranchhodji were minor and quite superfluous. ( 11 ) WE are taken through the entire record which we have perused minutely and carefully. The evidence of the eye-witnesses, though appears to be convincing, is required to be examined carefully for the reason that both the eye-witnesses are interested and partisan witnesses as being closely related to the deceased. History given by P. W. 3-Babulal to the Doctor is not coming forth and the Doctor has reported some scuffle having taken place between the deceased and Ranchhodji. P. W. 3-Babulal has in terms admitted that he had run away after receiving injury on the hands and then came back when the accused had gone away. It would, therefore, not be possible for him to see the alleged blows by sticks given by accused Nos. 2 and 3 to the deceased. Therefore, it raises reasonable doubt about the allegation levelled against the accused Nos. 2 and 3 having inflicted stick blows on the head and on the back side of the deceased by them. There are also material contradictions and omissions in the evidence of Saraswatiben, inasmuch as she deposed that the accused No. 3 gave stick blow on the head of the deceased where accused No. 1 had given the blow. This is not supported by medical evidence. She stated that it was not true that she did not state before the Police that the accused No. 2 had not give stick blow on the chest of her husband. However, the said contradiction has been duly proved. This is not supported by medical evidence. She stated that it was not true that she did not state before the Police that the accused No. 2 had not give stick blow on the chest of her husband. However, the said contradiction has been duly proved. Therefore, on careful analysis of the evidence of both these eye-witnesses, it raises a reasonable suspicion about the guilt of the accused nos. 2 and 3 and that the allegation of having inflicted stick blows by accused Nos. 2 and 3 on the person of the deceased is not proved beyond reasonable doubt. The incident has not taken place in the way it has been alleged to have taken place by both the eye-witnesses. Accused Nos. 2 and 3, therefore, deserve benefit of doubt. ( 12 ) MR. R. R. Tripathi, the learned Additional Public Prosecutor, however, contended that it is proved that the accused No. 2 had given stick blows on the back side of the deceased and a fracture thereon was found as per the medical evidence. He submitted that accused No. 2 has, therefore, committed an offence punishable under Sec. 325 of the Indian Penal Code. Having regard to the evidence on record, it is proved that the accused No. 2 has caused grievous injury to the deceased by giving stick blow. Mr. Tripathi submitted that the accused No. 2 should, therefore, be convicted for the said offence. ( 13 ) IN a case of group rivalry and enmity, there is general tendency to rope in as many persons as possible as having participated in the assault. The Court should, therefore, scrutinise prosecution evidence carefully and with caution, particularly when the eye-witnesses are close relatives of the deceased. In the present case, a melee had taken place, inasmuch as Ranchhodji had also sustained injuries. In such a scuffle more than one persons give blows to the victim at one and the same time, it is impossible to particularise the blows. If any eye-witness attempts to do it, his or her veracity becomes doubtful. Where eye-witnesses do not give a correct version, as is done by the above named two eye-witnesses, their evidence becomes seriously discrepant on material points. There is, therefore, good reason to doubt their evidence. We are, therefore, of the opinion that the accused Nos. If any eye-witness attempts to do it, his or her veracity becomes doubtful. Where eye-witnesses do not give a correct version, as is done by the above named two eye-witnesses, their evidence becomes seriously discrepant on material points. There is, therefore, good reason to doubt their evidence. We are, therefore, of the opinion that the accused Nos. 2 and 3 are entitled for benefit of doubt for the offences for which they are convicted and sentenced by the learned trial Judge. ( 14 ) SO far as accused No. 1 is concerned, the charges levelled against him are proved beyond all reasonable doubts and we are in agreement with the findings and the conclusions arrived at by the learned trial Judge. We, therefore, confirm the conviction and sentence of accused No. 1. ( 15 ) MR. Barot, appearing for the accused, submits that the incident in question has taken place suddenly. After inviting our attention to the material part of the evidence, he submits that there is no pre-concert among the accused to cause injury or murder of the deceased. There is substance in the submission of Mr. Barot, as the incident appears to have take place all of a sudden, after exchange of words with the deceased. This is borne out from the evidence on record. There is nothing in the evidence to show that there were exchanges of words or any utterances among the accused persons. Therefore, there is nothing in the evidence to show that there was common intention on the part of the accused persons to cause injuries to the deceased. Therefore, having regard to the facts and circumstances of the case, Sec. 34 of the Indian Penal Code is not attracted inasmuch as in the present case the incident has occurred suddenly, no words were exchanged among the accused persons, nor any concert is substantiated at the moment of the attack. There may be some intention in the minds of the assailants, but it cannot be said that there was common intention and as such Sec. 34 of the Indian Penal Code will not be applicable in this case. Under these circumstances, it is necessary to examine the individual liability of each of the accused persons. It is proved that the accused No. 1 inflicted stick blow on the head of the deceased and that is also corroborated by medical evidence. Under these circumstances, it is necessary to examine the individual liability of each of the accused persons. It is proved that the accused No. 1 inflicted stick blow on the head of the deceased and that is also corroborated by medical evidence. The incident appears to have started all of a sudden and abruptly and the accused No. 1 gave stick blow on the head of deceased. As stated above, there was scuffle between both the sides. Ranchhodji, the father of the accused persons, was also injured in the scuffle. However, it is proved beyond reasonable doubt that the accused No. 1 caused serious injuries to the deceased as a result of which he died. We agree with the reasons given and findings recorded by the learned trial Judge that looking to the medical evidence, namely evidence of Dr. Vijeshkumar Rao at Exh. 17, it cannot be said that the injuries caused on the head of the deceased were sufficient in the ordinary course of nature to cause death. Therefore, it cannot be said that it was a case falling under Sec. 302 of the Indian Penal Code. We also agree with the findings and conclusions of the trial Court that no offence punishable under Sec. 504 of the Indian Penal Code was established, against any of the accused. ( 16 ) ON considering the evidence as regards the individual blows given by each of the accused Nos. 2 and 3, it becomes clear that the accused No. 2 caused grievous hurt by a stick blow to the deceased, causing fracture. He should, therefore, be held guilty for the offence punishable under Sec. 325 of the Indian Penal Code. So far as accused No. 3 is concerned, the guilt of causing grievous or simple hurt to the deceased by him is not proved beyond reasonable doubt. As stated earlier, he should be given benefit of doubt. ( 17 ) IN the result, the appeal is partly allowed. ( 18 ) CONVICTION and sentence of appellant-accused No. 1 are confirmed. ( 19 ) SO far as the appellant-accused No. 2 is concerned, his conviction is altered to one under Sec. 325 of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 250/ -, in default of payment of fine to suffer simple imprisonment for two months. ( 19 ) SO far as the appellant-accused No. 2 is concerned, his conviction is altered to one under Sec. 325 of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 250/ -, in default of payment of fine to suffer simple imprisonment for two months. We are told that the appellant-accused No. 2 has already undergone the sentence of about fifteen months rigorous imprisonment. if it is so, he be set at liberty, if not required in connection with any other case. ( 20 ) SO far as appellant-accused No. 3 is concerned, order of his conviction and sentence is set aside and he is acquitted of the charges levelled against him. Fine, if paid by him, shall be refunded to him. Appellant-accused No. 3 is ordered to be set at liberty forthwith, if not required in connection with any other offence. Order accordingly. .