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2009 DIGILAW 239 (GUJ)

Narottambhai Motising v. State of Gujarat

2009-04-02

H.SHUKLA, JAYANT PATEL

body2009
Judgment Rajesh H. Shukla, J.—The present group of appeals is directed against the judgment and order dated 02.08.2002 passed by the learned Extra Assistant Judge & Additional Sessions Judge, Bharuch, in Sessions Case No. 39 of 2001 recording the conviction of the accused persons for offence under Sections 452, 302 read with Sections 114, 324, 504 and 506(2) of the Indian Penal Code and imposing sentence of imprisonment for life and fine of Rs. 1,000/-, i/d R.I. for 6 months for the offence under Section 302, R.I. for 2 years and fine of Rs. 500/-, i/d R.I. for 3 months for the offence under Section 452 of IPC, R.I. For 1 year and fine of Rs. 200/-, i/d R.I. for 1 month for the offence under Section 506(2) and also R.I. for 1 year and fine of Rs. 100/-, i/d R.I. for 15 days for offence under Section 135 of the Bombay Police Act. All sentences were ordered to run concurrently. 2. The facts of the case, briefly summarized, are as follows : 2.1. It is the case of the prosecution that on 21.10.2000 at about 5’o clock in the evening when the brother of the complainant, deceased Chandubhai, had a quarrel with A-1 in the court-yard of the house, A-1 abused him and also threatened him with dire consequences that he will call people from his in-laws and would break his legs and went away. The said abuse is said to have taken place with regard to labour charges which the deceased declined to pay, which resulted in the quarrel as aforesaid. Thereafter, at about 9’o clock at night the complainant, who is the brother of the deceased, heard the noise coming from the house of the deceased Chandubhai and when he rushed there, he found the accused persons armed with weapons like A-1 with ‘sang’ (parai), A-2 with axe and A-3 with iron rod had assaulted the deceased and when the widow of the deceased and others rushed to the place of the incident, the accused persons ran away. Thereafter, the deceased was taken to a private hospital of Dr. Mistry at Rajapardi who gave the preliminary treatment and suggested for removing him for further treatment to the government hospital and therefore he was taken to the hospital at Jhagadia. Thereafter, the deceased was taken to a private hospital of Dr. Mistry at Rajapardi who gave the preliminary treatment and suggested for removing him for further treatment to the government hospital and therefore he was taken to the hospital at Jhagadia. From there ultimately he was removed to the Civil Hospital at Bharuch and there the deceased succumbed to the injuries. Therefore, the complainant brother P.W. 5 lodged the complaint/FIR at Jhagadia Police Station, Jhagadia, Dist. Bharuch which has been registered as C.R. No. I-186/2000. On the basis of the FIR registered against the accused persons for the alleged offences, the investigation was carried out. After the investigation was over, the charge-sheet was submitted. As the offence under Section 302 of IPC is triable by the Court of Sessions, after ascertaining as regards the papers made available to the accused persons, the learned Extra Asst. Judge and Assistant Sessions Judge, Bharuch framed the charge for the offence punishable under Sections 452, 302 read with Sections 114, 324, 504 and 506(2) of IPC and also Section 135 of the Bombay Police Act. 2.2. In order to bring home the charges levelled against the accused persons, the prosecution examined the witnesses referred to by the learned Assistant Sessions Judge in the trial. 2.3. The prosecution has also produced the documentary evidence, which is produced with the list, Exhibit 10. 2.4. After recording of the evidence was over, the learned Assistant Sessions Judge recorded the further statement of the accused persons under Section 313 of Criminal Procedure Code wherein the accused persons have stated that they are falsely implicated. 2.5. After hearing the learned Public Prosecutor as well the learned Advocate for the defence, the learned Assistant Sessions Judge, Bharuch, recorded the conviction of the accused persons and imposed sentences as stated hereinabove in detail. 2.6. It is this judgment and order which has been assailed before this court mainly on the ground, inter alia, that there is delay in filing the FIR. It is also contended that all the accused persons are convicted for the offence under Section 302 as well as 452 etc. of IPC read with Section 114, but there is no charge for offence under Section 34 of IPC and the charges framed is for offence under Section 114 of IPC. It is also contended that all the accused persons are convicted for the offence under Section 302 as well as 452 etc. of IPC read with Section 114, but there is no charge for offence under Section 34 of IPC and the charges framed is for offence under Section 114 of IPC. Therefore, the learned Assistant Sessions judge has committed an error in recording the conviction of all the accused persons for the offence under Section 302 of IPC without considering individual act of each of the accused. It is also contended that the investigation is not proper and therefore benefit of doubt should have been given to the accused persons. 3. Learned Advocate Mr. Parmar appearing for the accused persons referred to the testimony of the witnesses in detail. He referred to the testimony of P.W. 1 Dr. Mangaldas Mistry, Exhibit 15. He also referred to the testimony of P.W. 5, the complainant at Exhibit 24 and submitted that though he has attributed the role and injury caused by each accused, there is discrepancy. He pointedly referred to the testimony of this witnesses at Exhibit 24 and submitted that in the latter part of the testimony he has referred to the weapon used differently for the accused and therefore this testimony of the witness as regards the occurrence and the manner of the incident is not reliable and in fact he is not an eye witness. The learned Advocate also referred to the testimony of P.W. 6, widow of the deceased at Exhibit 26, and submitted that she has also described the manner of the incident and he tried to submit that A-1 is said to have been armed with ‘saang’ (parai), A-2 with an axe and A-3 with iron rod. He has also said that A-1 is said to have assaulted on leg and therefore there is inconsistency or discrepancy with regard to the injury caused and the weapon used by each accused even in the narration of the eye witness. learned Advocate Mr. Parmar has also submitted that P.W. 8 (mother) in her testimony at Exhibit 28 has narrated about the incident as an eye witness, whereas P.W. 6 widow has stated in her cross-examination that she had come later after the accused had run away. learned Advocate Mr. Parmar has also submitted that P.W. 8 (mother) in her testimony at Exhibit 28 has narrated about the incident as an eye witness, whereas P.W. 6 widow has stated in her cross-examination that she had come later after the accused had run away. Therefore, the learned Advocate has tried to emphasise that all the witnesses are close relatives and there re contradictions in their testimony as regards the incident, the weapons used and the injury caused by each of the accused. He therefore strenuously submitted that in absence of charge for offence under Section 34 of IPC and in absence of evidence as regards the individual role attributed to each accused, all the accused persons could not have been convicted for the offence under Section 302 of IPC. 4. He further emphasised that the incident is said to have occurred at 8’o clock on 21.10.2000 and the deceased has died on 27.10.2000 and the FIR is filed by the complainant, who is the brother of the deceased, on 22.10.2000. He submitted that therefore though the incident is said to have occurred on 21.10.2000 at night, the complaint is lodged on 22.10.2000 and therefore there is delay in filing the FIR. The learned Advocate has referred to the FIR, Exhibit 25, and submitted that in the FIR initially though the complainant is the brother and is said to be an eye witness, P.W. 5 has not stated in detail about the manner of the incident, the role attributed to each of the accused and has only referred to the fact that they had assaulted the deceased. Therefore, the learned Advocate has submitted that in absence of the role attributed and charge for offence under Section 34, the evidence requires close scrutiny and the medical evidence would suggest that all injuries are not serious injuries. For that purpose he has referred to the postmortem report, Exhibit 64, and submitted that the cause of death is due to shock and hemorrhage and though reference is made to the injuries on the vital organs, all injuries are not on the vital organs. For that purpose he referred to the testimony of P.W. 22 Dr. Kishor Desai, Exhibit 63, and submitted that this witness has narrated the injuries in detail and injury Nos. For that purpose he referred to the testimony of P.W. 22 Dr. Kishor Desai, Exhibit 63, and submitted that this witness has narrated the injuries in detail and injury Nos. 2, 5, 6 and 7 could be serious injuries and he has referred to the testimony of this witness and submitted that he has also admitted that the injury of abrasion is a simple injury. Similarly, he has admitted about the head injury caused with a blunt substance like parai, pipe or axe. Again, he has referred to the testimony of P.W. 1, Exhibit 15 and submitted that this witness who has given the treatment to the deceased first, has also stated that he has not described in his injury certificate all the injuries. 5. Therefore, the learned Advocate has submitted that the impugned judgment and order recording conviction of all the accused persons for offence under Section 302 read with Section 114 of IPC is erroneous and the learned Assistant Sessions Judge ought to have considered the individual role attributed and the injury caused with the particular weapon in order to record the conviction in the absence of the charge for offence under Section 34 of IPC. 6. learned Advocate Mr. Parmar has, alternatively, submitted that the conviction may be altered for the offence under Section 304 Part-I instead of Section 302 even if the abetment or the charge for offence under Section 34 is also believed. 7. Learned APP Mr. K.P. Raval referred to the FIR at Exhibit 25 and submitted that the incident is narrated by the complainant P.W. 5 and he has referred to the threat having been given earlier and thereafter again the accused persons have come armed with weapons and assaulted the deceased in his house. He submitted that this would establish that there was pre-meditation and the act is committed with an intention for which they had visited the house of the deceased armed with weapons. He also referred to the testimony of P.W. 5, Exhibit 24, and submitted that the complainant is the brother of the deceased who was an eye witness and he has also narrated about the incident and thereby he has supported his FIR at exh.25. He also referred to the testimony of P.W. 5, Exhibit 24, and submitted that the complainant is the brother of the deceased who was an eye witness and he has also narrated about the incident and thereby he has supported his FIR at exh.25. He referred to the testimony of this witness and also the manner in which the incident occurred and submitted that A-1 is attributed with head injury caused by him, A-2 with other injury on the face near the eyes and head injury and A-3 with the pipe blow on the knee. The learned APP, therefore, submitted that this version of the complainant is further corroborated by the testimony of P.W. 6, widow of the deceased at Exhibit 26. She has also narrated about the incident and has clearly stated about the weapons used and the injury caused by each of the accused persons. He has also referred to the testimony of Dr. Mangaldas Mistry, P.W. 1, Exhibit 15, and testimony of Dr. Kishor Desai, P.W. 22, Exhibit 63 and submitted that the medical evidence also supports the oral version about the blow inflicted with the weapons used by the accused persons. 8. Therefore, the learned APP submitted that the judgment and order recording the conviction for offence under Section 302 read with sec.114 of IPC is just and proper. He has also submitted that though there may not be a charge for offence under Section 34, it has to be considered for which he has referred to and relied upon the judgment of the Hon’ble Apex Court in the case of Baital Singh & Anr. vs. State of U.P., reported in AIR 1990 SC 1982 . 9. In view of the rival submissions and on re-appreciation and scrutiny of the evidence on record, it is required to be appreciated whether the impugned judgment and order recording conviction of the accused persons for offence under Section 302 read with Section 114 of IPC calls for any interference or not. 10. The moot question which is required to be considered or appreciated is whether the appreciation of evidence is proper or not. The first contention raised by learned Advocate Mr. Parmar for the accused regarding the delay in filing of the FIR is required to be appreciated. 10. The moot question which is required to be considered or appreciated is whether the appreciation of evidence is proper or not. The first contention raised by learned Advocate Mr. Parmar for the accused regarding the delay in filing of the FIR is required to be appreciated. Though this contention has been raised, the learned Assistant Sessions Judge has rightly appreciated this contention and has discussed as regards the time consumed while attending to the deceased who was seriously injured and considering the economic condition and poverty, the learned Judge has noted that they had no money to make payment for the ambulance. Further, there was no money for payment of charges for x-ray and therefore the deceased was required to be shifted from one hospital to another and in that process they would be more concerned about the treatment and saving the injured deceased who is the brother of the complainant rather than going to the police station for lodging the complaint. Therefore, though this contention has been raised, it cannot be said that there is any inordinate delay in filing the complaint. It is well accepted that mere delay in filing of the FIR by itself is not fatal to the prosecution case. The delay is also required to be appreciated in light of overall facts and circumstances of the case and if, from the material and evidence, the delay is justified, it cannot be said to be delay and therefore the submission is misconceived. 11. Another facet of the argument with regard to conviction of all the accused persons for the offence under Section 302 read with Section 114 of IPC in the absence of specific charge for offence under Section 34 of IPC is required to be appreciated. There is no dispute that there is no charge for offence under Section 34 of IPC and even if the entire evidence and the prosecution case is accepted at the face value, it is required to be appreciated that the deceased had a quarrel with A-1 in the evening and thereafter A-1 is said to have threatened that he would call people from his in-laws and break his legs and thereafter at 8’o clock in the evening all the accused persons have gone to the house of the deceased armed with weapons and assaulted the deceased. It is this evidence which is required to be scrutinized closely when such contention has been raised. There is no dispute that all the accused persons had gone to the house of the deceased with an intention to assault, but as stated above, even as per the case of the prosecution, the threat was to break the legs of the deceased and in furtherance of that threat they had visited the house of the decease to assault, but it could not be inferred that there was any intention to kill him. Further, a close scrutiny of the evidence clearly suggests that there is some discrepancy with regard to the role attributed to each of the accused, the weapons used by the accused and the injury caused by each of the accused. However, it is evident that A-1 has given the blows with the sang on the head which resulted in the head injuries, as stated in the postmortem report in detail, A-2 is said to have been armed with the axe and has caused the injuries which have been referred to in the postmortem report and also in the testimony of P.W. 22, Exhibit 63. Dr. Kishore Desai, P.W. 22, in his testimony at Exhibit 63 has clearly stated, referring to each of the injuries, that injury No. 2 was a head injury on temporal part. Similarly, injury No. 7 was referred to the abrasion. He has stated that external injury Nos. 1, 2 and 3 were related to the internal injury Nos. 1, 2, 3 and 4. He has also stated that external injury No. 7 was related to internal injury No. 2 caused to the spleen. It is required to be mentioned that he has stated with regard to one wound on the side of the body and it is required to be related to injury No. 6. These injuries have resulted into the death for which there is no dispute, but the only aspect which is required to be considered is whether the ingredients for the offence under Section 302 of IPC can be said to have been established from the evidence on record. 12. These injuries have resulted into the death for which there is no dispute, but the only aspect which is required to be considered is whether the ingredients for the offence under Section 302 of IPC can be said to have been established from the evidence on record. 12. Therefore, the submissions made by learned Advocate for the defence as regards the common intention and the conviction of all accused for offence under Section 302 of IPC in the absence of charge under Section 34 could be made or not is required to be considered. 13. It is required to be appreciated that even if there is no specific charge for offence under Section 34, even then if, on appreciation of evidence and all circumstances establish common intention, then the constructive liability for the act would be attracted and therefore whether the charge for offence under Section 34 is made or not will not have much relevance. 14. Another facet of the argument is whether all the accused persons could have been convicted for offence under Section 302 read with Section 114 of IPC in light of the evidence is required to be considered inasmuch as even if the offence is committed, still the common intention as regards commission of the offence is required to be appreciated. Even as per the case of the prosecution, the threats were given by A-1 in the evening at 5’o clock to the deceased that he will have to face dire consequences and he will call people of his in-laws and break his legs. Thereafter at 9’o clock at night all the accused persons have visited the house of the deceased and assaulted the deceased and therefore it could be easily said and inferred that they had the intention of assaulting the deceased for causing grievous hurt, but it would not be proper to draw an inference that they had a common intention from the inception of committing the murder of the deceased. The evidence fall short on this aspect as there is nothing by which it could be said that they had joined previously together and had visited the house of the deceased with a common intention of committing the murder of the deceased. The evidence fall short on this aspect as there is nothing by which it could be said that they had joined previously together and had visited the house of the deceased with a common intention of committing the murder of the deceased. Accepting the version and evidence of the prosecution as it is, at the most they can be attributed with an intention or the common intention of causing grievous hurt and not the murder. 15. Therefore, unless it is established by the prosecution about the element of sharing a common intention about the criminal act or the offence itself, the conviction could not be recorded merely because initially the persons had participated. The persons may have participated in the assault. However, that by itself would not lead to the inference about the intention in common for the offence under Section 302. 16. The provisions of Section 34 of IPC are therefore required to be appreciated . Section 34 refers to the offence as “the acts done by several persons in furtherance of common intention” which require the fulfillment of the criteria of the fact that the act must have been committed in furtherance of the common intention which necessarily implies that there has to be first a common intention and thereafter in implementation or in furtherance of that common intention the act is committed. 17. In the facts of the present case, as could be seen from the evidence, it is only with regard to causing grievous hurt or assault and there is no evidence by which it could be inferred that there was common intention to commit the murder. As it transpires from the prosecution evidence also, it is stated that blood sample or the control sample of the blood stains from the scene of offence was not taken as it was not expected that the deceased would succumb to the injuries. Further, due to lack of facilities and finance, the deceased has not been provided with the medical aid timely as it should have been which may have perhaps made some difference. These aspects have to be considered while appreciating whether the case would fall under Section 302 or it would be one covered under Section 304 Part-I of IPC. 18. Further, due to lack of facilities and finance, the deceased has not been provided with the medical aid timely as it should have been which may have perhaps made some difference. These aspects have to be considered while appreciating whether the case would fall under Section 302 or it would be one covered under Section 304 Part-I of IPC. 18. A useful reference can be made to the observations of the Hon’ble Apex Court in its judgment in the case of State of Andhra Pradesh vs. Rayavarapu Punnayya & Anr., reported in AIR 1977 SC 45 . The Hon’ble Apex Court has referred to the provisions of Section 299 & 300 of IPC and has considered the aspect of legality and validity of the conviction for offence under Section 304 read with Section 34 of IPC. It has also considered when the case would fall under one or the other clauses of Section 300 and when the injury caused is sufficient in ordinary course of nature to cause death, but still it is of a lower degree of likelihood which is generally spoken of as an injury “likely to cause death”, then it would fall under Clause 2 of Section 300. 19. Therefore, even if it is accepted that the charge was for offence under Section 34, still, it was with regard to causing grievous hurt or assault and not murder. It is in these circumstances, while appreciating the evidence whether the case would fall under Section 302 or Section 304 of IPC, the evidence is required to be scanned closely keeping in mind the observations of the Apex Court reported in the case of Pulicheria Nagaraju alias Nagaraja Reddy vs. State of Andhra Pradesh, AIR 2006 SC 3010 . In Para 18 it has been observed, “Therefore, the court should proceed to decide the pivotal question of intention with care and caution as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II . . . . . . . There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. . . . . There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. . . . . . .” Therefore, the intention to cause death can be gathered generally from combination of several circumstances like the nature of weapon used and carried, the blows given on vital part of the body and prior enmity, etc. 20. In the facts of the present case, therefore, while appreciating the evidence as discussed above, whether common intention could be attributed for commission of offence under Section 302 though the accused persons had visited the house of the deceased with an intention to cause grievous hurt or assault. Nevertheless, it could not be inferred that they had an intention to commit murder and therefore when only two injuries are said to be serious, the observations made by the Apex Court in a judgment reported in Hiralal Mallick vs. State of Bihar, reported in AIR 1977 SC 2236 are required to be considered. The Hon’ble Apex Court has observed, “When a crime is committed by the concerted action of a plurality of persons constructive liability implicates each participant, but the degree of criminality may vary depending not only on the injurious sequel but also on the part played and the circumstances present, making a personalised approach with reference to each. Merely because of the fatal outcome, even those whose intention, otherwise made out to be far less than homicidal, cannot by hindsight reading, be meant to have had a murderous or kindred mens rea.” 21. Merely because of the fatal outcome, even those whose intention, otherwise made out to be far less than homicidal, cannot by hindsight reading, be meant to have had a murderous or kindred mens rea.” 21. Therefore, in light of these observations, even though death has occurred, one is required to consider the totality of circumstances and considering the fact that initially the accused persons may have visited the house with an intention to assault and thereafter all the accused persons have assaulted the deceased, the role attributed to each accused and the weapons used will have to be considered separately. In the facts of the present case, in spite of some discrepancy in the evidence, it is clear that A-1 has caused head injuries with a saang (parai) which has also caused internal injuries as reflected in the medical evidence as stated by P.W. 22, Exhibit 63. Similarly, A-2 who is said to have given the blows with the axe which has resulted to injury No. 7 and other internal injuries and A-3 is only attributed with a blow on the leg with iron rod and therefore, considering the aforesaid observations and discussion as regards the evidence on the aspect of the role attributed and the weapon used, we are of the considered opinion that it would be in the interest of justice if the conviction of A-1 and A-2 is altered for offence under Section 304 Part-I instead of for offence under Section 302 and the sentence is also accordingly altered to R.I. for 10 years instead of imprisonment for life. 22. It is required to be noted that A-1 is said to have possessed a saang (parai) which is considered as a lethal weapon with sharp edge on one side, whereas A-3, who is said said to have possessed a saang (parai), but in fact it appears that it was only an iron rod and therefore considering this aspect and also the role attributed with regard to the injury caused only on leg, his case would stand on a different footing. 23. A-3, who is attributed only with injury on the leg with an iron rod, therefore, deserves to be acquitted of the charges for offence under Section 302 read with Section 114 of IPC and instead his conviction would stand confined to one for offence under Section 325 of IPC. 23. A-3, who is attributed only with injury on the leg with an iron rod, therefore, deserves to be acquitted of the charges for offence under Section 302 read with Section 114 of IPC and instead his conviction would stand confined to one for offence under Section 325 of IPC. The sentence provided for offence under Section 325 is 10 years. However, as he has already undergone sentence for 6 years and 5 months, the interest of justice would be served if his sentence is accordingly reduced to the sentence already undergone as sufficient. 24. Accordingly, the present appeals stand allowed partly. The judgment and order dated 02.08.2002 passed by the learned Extra Assistant Judge & Assistant Sessions Judge, Bharuch, in Sessions Case No. 39 of 2001 recording conviction of the accused for offence under Section 302 read with Section 114 of IPC is modified qua A-1 Narottam Motisinh Vasava and A-2 Manilal Chandubhai Vasava for offence under Section 304 Part-I read with Section 114 of IPC. Their conviction for other offences and sentence is maintained. 25. The conviction of A-3 Sureshbhai Manojibhai Vasava for offence under Section 302 read with Section 114 of IPC is set aside. However, as his conviction has been altered for offence under Section 325 of IPC, as stated above, his sentence is accordingly reduced to the sentence already undergone and therefore A-3 Sureshbhai Manojibhai Vasava is ordered to be released forthwith if his presence is not required in connection with any other offence. His conviction and sentence qua other offences is maintained and is not disturbed. 26. Muddamal be disposed of as per the directions contained in the impugned judgment and order.