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2009 DIGILAW 26 (GUJ)

Abbas Ibrahim Sultan Malik v. State of Gujarat

2009-01-23

J.R.VORA, SHARAD D.DAVE

body2009
Judgment J.R. Vora, J.—The instant Appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure against the judgment and order delivered by Sessions Judge, Vadodara, on 18.11.2000, in Sessions Case No. 114 of 2000, whereby both the present appellants, being accused of the said Sessions case came to be convicted by the trial Court for the offence punishable under Section 302 of the Indian Penal Code and each of the appellant has been sentenced to undergo rigorous imprisonment of life and to pay fine of Rs. 200/- in default, to undergo simple imprisonment of three months. 2. The present appellants were charged for the offences punishable under Section 302 of the Indian Penal Code as well as under Section 135(1) of the Bombay Police Act. The learned Trial Judge was pleased to acquit both the appellants for the offence punishable under Section 135(1) of the Bombay Police Act. 3. As per the brief facts of the case, the incident occurred at about 17.30 hours on 13.01.2000 at village Anti, Taluka - Padra, District - Vadodara. It is the case of the prosecution that deceased Ibrahim Sultan Malek had illicit relation with mother of accuses No. 1 Abbas Ibrahim Sultan Malek. Before the incident, as per the prosecution case, both the accused threatened deceased on account of this reason to kill the deceased. The complaint has been given by Hasanbhai Abdulbhai Ibrahim Malek, examined as P.W. 5, Exhibit-24. According to him, on the date of the incident i.e. 13.01.2000 he (complainant Hasanbhai) had been to his field situated in the area of Baroli Vaga. Cotton crops were standing in the field and the crops were being reaped by the labourers. At about 5.30 p.m. he heard shouts of deceased Ibrahim Sultan Malek from his field. Ibrahim Sultan Malek - deceased happened to be uncle of the complainant (i.e. masa, husband of sister of mother of the complainant). On hearing shouts of deceased, complainant Hasanbhai went towards the field of the deceased. He witnessed that both the appellants were beating deceased with sticks. When he reached at the spot, both the appellants accused ran away from there. He called one Bhailal, who was having the adjacent field. Bhailal was requested to bring a cart and in the cart of Bhailal, injured Ibrahim, at that time, was brought to his residence in his village. When he reached at the spot, both the appellants accused ran away from there. He called one Bhailal, who was having the adjacent field. Bhailal was requested to bring a cart and in the cart of Bhailal, injured Ibrahim, at that time, was brought to his residence in his village. Thereafter, complainant attempted to arrange a vehicle to shift the deceased to the hospital. He could not arrange vehicle timely and being little late when he was coming to the village with a vehicle, one person came to him on cycle and stated that Ibrahimbhai had died. He informed the son of the deceased and found that son of the deceased was not likely to reach at the village, he offered his complaint before Padra Police Station, which was recorded by P.W. 7 Rajendrasinh Natvarsinh Rana, examined at Exhibit-33. A crime was registered, inquest was held and the body was sent to postmortem, panchnama of scene of offence was drawn and on the next day the accused were arrested and ultimately a charge sheet came to be filed against both the appellants, as stated above, in the Court of learned Judicial Magistrate, First Class at Padra. The case was committed to the Court of Sessions at Vadodara and vide Exhibit-6 on 12.06.2000 charge came to be framed against both the appellants by Trial Court, to which each of the appellants pleaded not guilty. 4. Prosecution examined as many as 7 witnesses as under : P.W. 1 Rahimbhai Narmahemad Malek, examined at Exhibit-13, is the panch of panchnama of scene of offence and the panchnama is produced at Exhibit-14. The witness has supported the panchnama and prosecution case. P.W. 2 Amirbhai Miyabava Malek, examined at Exhibit-15 is panch of panchnama at Exhibit-16 by which police arrested both the accused and it is stated in the panchnama that accused voluntarily produced sticks before the police, which were seized by this panchnama. This witness has supported the prosecution case. P.W. 3 Ibrahim Umar Isam, examined at Exhibit-19, is the witness, examined for the fact that before 15 days of the incident both the appellants had threatened that they would kill the deceased. He has been cross-examined by the defence and it is proved that, in his police statement, he did not state that complainant Hassanbhai Abdulbhai informed him that both the appellants were threatening to kill the deceased. He has been cross-examined by the defence and it is proved that, in his police statement, he did not state that complainant Hassanbhai Abdulbhai informed him that both the appellants were threatening to kill the deceased. P.W. 4 Narendrabhai Hiralal Joshi, examined at Exhibit-21 was concerned Circle Inspector in Padra Taluka Panchayat and had prepared a map of scene of offence, which he produced at Exhibit-23. P.W. 5 Hassanbhai Abdulbhai, examined at Exhibit-24, is an eye-witness and his evidence will be discussed later on. P.W. 6 Dr. Anand Sharadchand Patel, examined at Exhibit-31, performed postmortem upon the dead body of the deceased Ibrahimbhai on 14.1.2000 at Primary Health Center, Padra. In his deposition he stated that the deceased had following six injuries. i. Bruise of 3.5 cms x 1cm is on left side of frontal of scalp. ii. Bruise of 4 cms x 2.5cm is - rectangle on occipital area of scalp in middle. iii. Bruise on right deltoid. iv. Zig-zag stick bruises of approximately 7 cms x 1.5 cm is on back below abdomen right side on buttock’s right leg is seen. v. Discrete abrasions on back. vi. Laceration of coin shaped on right knee. According to witness, all the injuries were antemortem and he found the following internal injuries : Subaerolar haematoma on middle of occipital region. Bruise of biscuit shape on middle of occipital area parallel to scalp. (1) Intra - cerebral haemorrhage at occipital area. 2. Congestion and oedema. According to Doctor, intra-cerebral haemorrhage at occipital area was the cause of the death. According to Doctor, there was no fracture of scalp but intra-cerebral haemorrhage which has resulted in death. According to Doctor external injury No. 2 i.e. bruise of 4 cms x 2.5 cms wide on occipital region of scalp caused internal injuries and those injuries were sufficient in ordinary course of nature to cause death. In cross-examination, he admitted that the external injuries were simple in nature. He produced the postmortem note at Exhibit-32. PW-7 Rajendrasinh Natvarsinh Rana, examined at Exhibit-33, P.I., Padra Police Station, recorded the complaint of Hasanbhai Abdulbhai, on 13.1.2000 at 23.35 hours. After the crime was registered he was entrusted with the investigation and he filed the charge sheet. 5. This is all the evidence of the prosecution. 6. He produced the postmortem note at Exhibit-32. PW-7 Rajendrasinh Natvarsinh Rana, examined at Exhibit-33, P.I., Padra Police Station, recorded the complaint of Hasanbhai Abdulbhai, on 13.1.2000 at 23.35 hours. After the crime was registered he was entrusted with the investigation and he filed the charge sheet. 5. This is all the evidence of the prosecution. 6. After the prosecution evidence was over, further statements under Section 313 of the Code of Criminal Procedure of the accused were recorded after drawing their attention to the incriminating circumstances appearing in the evidence against them. Their defence was of total denial. Though accused stated that they jointly furnished their statements in writing, but on going through the record, we do not find such statement on record nor such statement is recorded in the rojkam. 7. However, both the sides were heard thereafter, and as stated above, the learned Trial Judge vide judgment and order impugned in this Appeal, convicted and sentenced both the appellants and, hence, this Appeal. 8. So far as the case of the prosecution is concerned, the whole case rests on the evidence of one eye-witness i.e. P.W. 5 Hassanbhai Abdulbhai. He stated in his deposition that while he was working in his field, he heard shouts of the deceased and ran towards his field and found both the appellants beating the deceased by sticks. Thereafter with the help of Bhalubhai, a neighbouring farmer, in his cart, the deceased was shifted to his residence and complainant himself tried to arrange a vehicle to shift the deceased to the hospital, but in the meantime, the deceased died and his son at Surat was informed. Son of the deceased Hamir Ibrahim requested Hassanbhai to lodge complaint before the police station as it was likely that he (son of the deceased) may take time in reaching Padra. He identified the muddamal sticks before the court. In his examination-in-cross, an attempt is made that his field was not situated near of the field of the deceased. In cross-examination certain revenue records are also sought to be produced which were exhibited at Exhibit-26. Though he stated that the field which he referred in the revenue record, who is the owner, he did not know. It was also asked by the defence that there were other labourers and other neighbour farmers at the time of the incident, which he admitted. Though he stated that the field which he referred in the revenue record, who is the owner, he did not know. It was also asked by the defence that there were other labourers and other neighbour farmers at the time of the incident, which he admitted. He also stated that six to seven feet from the scene of offence, there is a road and on that road traffic was there. He failed to name the farmers, whose farms and fields were adjacent to the filed of the deceased. He was asked about how many blows were given by whom, but he stated that, he could not say that how many blows were given and by whom. He stated that he did not attempt to intervene. He stated that though the deceased was living for some time but could not speak. He was asked that there is a police outpost in nearby village named as Sadhi. He was asked that a murder was committed of the sister of Appellant No. 2 and name of the sister was Noorjahaben. It was asked that on account of murder of Noorjahaben, the accused were falsely implicated in this case, to which this witness denied. He denied that after premeditation with the son of the deceased, a false complaint came to be filed. 9. Learned Advocate Mr. N.K. Majmudar on behalf of the appellant vehemently attacked the prosecution case resting on sole eye witness. It is stated that the witness is not believable as his presence at the time of the incident is not proved beyond doubt as prosecution failed to prove that there was any field of the complainant near the field of the deceased. It is submitted that the Investigating Officer admitted that he recorded the statement of one Shivlal and other labourers who witnessed the incident, but none has been examined. It is submitted that there were other neighbouring farmers also, but none has been examined from them. It is submitted that there is a public road just six feet away from the spot of the incident and there was traffic on the road, still none is examined. It is submitted that the only eye-witness examined is nephew of the deceased and being relative, his evidence is not credible. It is submitted that the conduct of the witness is also doubtful that instead of intervening in the quarrel, he remained standstill. It is submitted that the only eye-witness examined is nephew of the deceased and being relative, his evidence is not credible. It is submitted that the conduct of the witness is also doubtful that instead of intervening in the quarrel, he remained standstill. There is no evidence that before 15 days of the incident, accused had threatened the deceased to kill. It is submitted that there is no other evidence of the prosecution to prove the guilt of the accused as there is no discovery from the accused and it is merely recovery of the sticks voluntarily by the accused before the police and that is not an admissible evidence. It is submitted that in this view of the matter, the learned Trial Judge erred in placing reliance on only eye-witness and, hence, Appeal is required to be allowed and both the appellants are required to be acquitted. Alternatively, it is submitted that, in any case, both the appellants are alleged to have given stick blows. Sticks are not deadly weapons and the injuries were simple in the nature, only that, the internal injury caused death of the deceased. In this view of the matter, no intention of killing the deceased could be imputed to both the appellants and the act would be covered under Section 304 Part-II of the Indian Penal Code and offence would be culpable homicide not amounting to murder. It is, therefore, submitted that when one of the appellant i.e. Appellant No. 2 has already undergone eight years of imprisonment and Appellant No. 1 has also undergone four years of imprisonment, they may be sentenced accordingly. 10. As against that, learned APP Ms. Archana Raval vehemently submitted that the prosecution examined as many as 7 witnesses to prove its case. Motive is established that the accused had suspicion that the deceased had illicit relation with the mother of the Appellant No. 1. It is also proved that before 15 days prior to the incident, both the appellant has administered threats to the deceased for killing him. The eye-witness P.W. 5 Hassanbhai is a credible witness and there is no reason to disbelieve him. Injuries, as noted by the Doctor i.e. P.W. 6, are sufficient in ordinary course of nature to cause death and, therefore, Appeal is required to be dismissed in toto. 11. We have considered the rival contentions advanced in this Appeal. The eye-witness P.W. 5 Hassanbhai is a credible witness and there is no reason to disbelieve him. Injuries, as noted by the Doctor i.e. P.W. 6, are sufficient in ordinary course of nature to cause death and, therefore, Appeal is required to be dismissed in toto. 11. We have considered the rival contentions advanced in this Appeal. We have re-appreciated the whole evidence recorded during the trial. We have taken into consideration complete and comprehensive evaluation of all vital features of the case and the broad and reasonable probabilities arising out of the circumstances emerging from the evidence recorded and contentions raised. 12. Undoubtedly, prosecution proposes to establish the case through direct evidence of eye witness. True that eye-witness is related to the deceased. It becomes therefore the duty of the Court to appreciate the evidence of eye-witness carefully. It must be noted that the evidence of eye witnesses cannot be brushed aside lightly or on imaginary or flimsy grounds. eye-witness is worthy of credence unless it is established that the witness has reason to fabricate the case against the accused and that the facts from other evidence on record establish that the evidence of eye-witness is not credible. 13. Further main thrust of the argument is upon the fact that the prosecution proposes to establish the case through the testimony of sole eye-witness i.e. P.W. 5 Hassanbhai. It must be noted that it is not the law that the case of the prosecution would not be established through the sole eye witness. It must be borne in mind that Section 134 of the Indian Evidence Act, 1872 provides that no particular number of witnesses shall in any case be required for the proof of any fact. The law enshrined in Section 134 does not require any particular number of witnesses to prove a certain fact. It is not the number of witnesses examined nor the quantity of evidence adduced by the prosecution that counts. It is quality of the evidence that counts. It is not necessary in law that more than one witness should be examined to prove a fact. It is not the number of witnesses examined nor the quantity of evidence adduced by the prosecution that counts. It is quality of the evidence that counts. It is not necessary in law that more than one witness should be examined to prove a fact. When evidence of sole witness is found to be cogent and trustworthy and corroborated by medical evidence on record, it could not be said that dropping of the other witnesses or non-examination of other probable eye witnesses or already eye witnesses before the police, must be examined by the prosecution. If the evidence of such sole eye-witness is found not reliable, then the Court would look to corroboration and thereafter only the question of non-examination of other witnesses would arise. 14. Dispassionate scrutiny and appreciation of the evidence of sole eye-witness Hassanbhai, undoubtedly, establishes the incident when the sole eye-witness states that he was in neighbouring field, ordinarily, his say must be accepted unless dislodged by the defence in cross-examination. An attempt is made by the defence to produce revenue records at Exhibit-26 in defence, but nothing is proved through this revenue records that the witness had no field near the field of the deceased and, therefore, it would be doing injustice to say that Hassanbhai was only a chance witness and being relative, he fabricated a false case against the accused. He withstood the lengthy cross-examination of defence, but so far as the occurrence of the incident is concerned, nothing could be elicited by the defence that the witness did not notice the incident in which both the appellants inflicted stick blows upon the body of the deceased. His evidence is found credible and trustworthy after careful scrutiny and we do not propose to brush aside this mighty evidence only because he is relative of the deceased. It is well known fact that in the present time no passer-by would intervene in the disputes and quarrels of third party and become witness. This realty of life must be taken into consideration. Witness could not be impeached only because he did not intervene in the quarrel. Post behaviour incident of the witness is hardly relevant. It is well known fact that in the present time no passer-by would intervene in the disputes and quarrels of third party and become witness. This realty of life must be taken into consideration. Witness could not be impeached only because he did not intervene in the quarrel. Post behaviour incident of the witness is hardly relevant. This is so because by very human nature, each individual would react differently in the same set of circumstances and no hard and fast rules can be framed for behaviour of human being and, therefore, the trial Court rightly appreciated the evidence and came to the conclusion that the prosecution was able to establish the incident against the accused through the evidence of eye-witness Hassanbhai and as corroborated by the medical evidence, we have no reason to take a different view than taken by the Trial Court. 15. However, it is to be noted that the trial Court certainly erred in consideration of the nature of the incident i.e. nature of the act of the appellants. Whatever is on record and is established through the evidence whether leads to the conclusion that accused committed the act of culpable homicide amounting to murder? The learned Trial Judge though discussed this aspect and came to the conclusion that the accused committed the act of murder. The learned Trial Judge committed error in this conclusion. 16. When we appreciated and scanned the evidence of the prosecution including the medical evidence, we found that the act of the appellants would fall in the category of Section 304 Part-II of the Indian Penal Code. It must be noted that the accused inflicted stick blows, those sticks were simple and not fitted with ring. It is found relevant therefore to refer to the medical evidence at this juncture. There were six injuries and according to P.W. 6 Dr. Anand S. Patel, in his examination in cross, that injuries No. 2 to 6 were simple injuries. It is also admitted by him that corresponding internal injuries which was cause of death, was the result of external injury No. 2 i.e. “bruise on head i.e. vital part.” The other injury i.e. injury No. 1 on the left side of the head. There was no fracture of scalp, which denotes the force of the infliction. The other injuries, except the injury No. 1 others are simple injuries. There was no fracture of scalp, which denotes the force of the infliction. The other injuries, except the injury No. 1 others are simple injuries. As per the evidence of the prosecution when witness Hassanbhai ran towards the spot, accused ran away and did not further engaged themselves in beating. It is also not proved that 15 days before the incident, both the accused had administered threats to kill the deceased. In this scenario of the factual aspect, it could not be said that, it was premeditated plan on the part of the accused with intention to kill the deceased. When injury is inflicted on vital part, it may be presumed that there was intention of the accused to commit murder, but when medical evidence denotes that such injury was simple in nature and the weapon used was only a stick, in the facts and circumstances of this case, it is difficult to raise such presumption. It appears that Appellant No. 1 harboured suspicion that the deceased had illicit relation with his mother and both the accused are inter se related, they might have thought to teach a lesson to the deceased for his immoral act. Had there been intention on the part of the appellants to kill the deceased, we would have found more injuries and with such a force that there would have been fracture on the scalp or other serious injuries on vital part of the body, but that is not the case here. Therefore, even if the injury No. 2 is considered to be on vital part of the body, the same is inflicted by sticks and with the above background of the fact, though the internal injury caused was sufficient in ordinary course of nature to cause death, one may look and consider the mental status of the accused as to intention. As afore-stated when the external injury was simple in nature and when injuries are inflicted by sticks only and when accused have ran away without further entering into beating, the accused had no intention to kill the deceased. In such circumstances, the vital injury is sufficient in ordinary course of nature to cause death, even then, no intention could be imputed on the appellants that they premeditated the murder of the deceased. Noteworthy it is that the prosecution could not establish that out of two appellants who in fact caused vital injury. In such circumstances, the vital injury is sufficient in ordinary course of nature to cause death, even then, no intention could be imputed on the appellants that they premeditated the murder of the deceased. Noteworthy it is that the prosecution could not establish that out of two appellants who in fact caused vital injury. In these circumstances we can impute only knowledge on appellant that they had required knowledge that by inflicting stick blows on the head of the deceased, death might ensue, but intention to kill cannot be imputed upon the act of the appellants. In the case of Dharam & Ors. vs. State of Haryana, as reported in JT 2007 (1) SC 299, in Para -16 the Apex Court observed as under : “16. The other question which now remains to be considered is as to what is the exact nature of the offence committed by the appellants. The injury, which proved to be fatal, is 10cm x 3cm x 3cm on left parietal bone which fractured the underlying bone and pierced the brain matter. We do not propose to hold that such an injury, if caused, would not attract the provisions of Section 302, IPC. Nevertheless, the question which requires serious consideration is whether having regard to the peculiar circumstances in which the incident took place and the fact that the deceased and the appellants happened to be blood relations, this particular injury, which was found to be sufficient in the ordinary course of nature to cause death in the instant case, was an injury intended by the appellants. Having regard to the nature of the injuries sustained by both the closely related parties, we are of the view that the fatal injury was not inflicted with the intention to cause death or an injury likely to cause death of the deceased. We feel that in the very nature of things, the appellants could not have entertained any intention to cause death of their brother/uncle. We are, therefore, of the opinion that the offence committed by the appellants would fall within the ambit of Section 304, Part II, IPC.” 17. In above view of matter, clearly, the act of the accused falls within the purview of Section 304 Part-II of the Indian Penal Code i.e. culpable homicide not amounting to murder committed with knowledge but without any intention. In above view of matter, clearly, the act of the accused falls within the purview of Section 304 Part-II of the Indian Penal Code i.e. culpable homicide not amounting to murder committed with knowledge but without any intention. We are therefore unable to maintain this finding of the trial Court and we set aside the conviction of both the appellants of the trial Court under Section 302 of the Indian Penal Code for causing murder of the deceased. The act of both the appellants, as discussed above, is committed without intention but with knowledge is punishable under Section 304 Part-II of the Indian Penal Code as culpable homicide not amounting to murder. We also set aside the sentence of life imprisonment imposed upon both the appellants by the trial Court. Appeal therefore is required to be allowed to this extent that conviction of both the appellants converted to culpable homicide not amounting to murder from culpable homicide amounting to murder. In this view of the matter, the following order is passed. “This Criminal Appeal is partly allowed and the judgment and order of the trial Court impugned in this appeal convicting the Appellant No. 1 Abbas Ibrahim Sultan Malek and Appellant No. 2 Hassan Alabha Jorubha Malek for the offence punishable under Section 302 of the Indian Penal Code and imposing sentence of life imprisonment is set aside. Instead Appellant No. 1 Abbas Ibrahim Sultan Malek and Appellant No. 2 Hassan Alabha Jorubha Malek both are convicted for the offence punishable under Section 304 Part-II of the Indian Penal Code and each of the appellant is sentenced to undergo RI of 05 years and to pay fine of Rs. 200/- each in default to undergo simple imprisonment of one month. Appellant No. 2 Hassan Alabha Jorubha Malek is in jail and he has already undergone more than five years and, therefore, it is directed that Appellant No. 2 Hassan Alabha Jorubha Malek be set to liberty immediately if he is not required to be detained in jail for any other purpose. While Appellant No. 1 Abbas Ibrahim Sultan Malek though has undergone imprisonment of about four years and has been released on bail by this Court on 06.04.2004. It is directed that Appellant No. 1 Abbas Ibrahim Sultan Malek to surrender before the trial Court for serving remaining sentence imposed upon him by us as above. While Appellant No. 1 Abbas Ibrahim Sultan Malek though has undergone imprisonment of about four years and has been released on bail by this Court on 06.04.2004. It is directed that Appellant No. 1 Abbas Ibrahim Sultan Malek to surrender before the trial Court for serving remaining sentence imposed upon him by us as above. Appellant No. 1 Abbas Ibrahim Sultan Malek is given time of eight weeks from today to surrender before the trial Court. Bail bonds submitted by Appellant No. 1 stand cancelled. Remaining order of the trial Court in respect of muddamal is not interfered with.” DS permitted.