Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 313 (GUJ)

KANTIBHAI SHANABHAI NAYAK v. STATE OF GUJARAT

2009-04-29

JAYANT PATEL

body2009
MR. JAYANT PATEL, J. ( 1 ) THE present appeal is directed against the judgement and order passed by the learned Sessions Judge in Sessions Case no. 89/2001, whereby the learned Sessions judge has convicted all the appellants-accused for the offence under Section 302 read with Section 34 of IPC and have imposed sentence of life-imprisonment with the fine of Rs. 500/- ( 2 ) IT appears that as per the prosecution case, when the complainant Ziniben was at the residence of her mother on 21. 1. 2001, both were taking food and at that time, their family relatives Accused No. 1, Accused no. 2, Accused No. 3, Accused No. 4 (hereinafter referred to as A-l, A-2, A-3 and A-4 respectively) and one Shana Nayak came at the residence and they said that the mother of the complainant Dahiben is a witch and because of her, their family members are remaining ill and sick and, therefore, they said they would kill the deceased and thereafter, there was exchange of hot words and A-3 and A-4 caught hold of the deceased and A-l gave a blow on the head and on the cheek with the axe to the deceased and A-2, who was having stick in his hand gave a blow on the left hand of the deceased and the deceased had fallen down. Therefore, the complaint was filed vide C. R. No. 16/2001 of Godhra Taluka Police station. The investigation was carried out and ultimately the charge-sheet was filed against all the accused - appellants. ( 3 ) THE learned Sessions Judge framed the charge. The prosecution, in support of its case, in order to prove the guilt of the accused, examined various witnesses and the prosecution also produced the documentary evidences to support its case. The learned Sessions Judge thereafter recorded the statements of all the accused under Section 313 of Cr. P. C. , and in further statements all the accused denied the offence against them and stated that because of land dispute they have been wrongly involved. The learned Sessions Judge thereafter heard the prosecution us well as the defence and found that the prosecution has been able to prove the case against all the accused for the offence under Section 302 read with Section 34 of IPC, therefore, the learned Sessions Judge convicted all the accused for the said offence. The learned Sessions Judge thereafter heard the prosecution us well as the defence and found that the prosecution has been able to prove the case against all the accused for the offence under Section 302 read with Section 34 of IPC, therefore, the learned Sessions Judge convicted all the accused for the said offence. The learned sessions Judge thereafter heard the matter on the aspect of imposition of sentence and ultimately imposed sentence of life-imprisonment with the fine of Rs. 500/-upon all the accused. It is under these circumstances the present appeal before this court. ( 4 ) WE have heard Ms. Sadhana Sagar, learned Counsel appearing for all the appellants in the present appeal. We have also heard Ms. Chetna Shah, learned APP appearing for the State. ( 5 ) WE have considered the entire evidence led by the prosecution of the witnesses as well as the documentary evidence and we have also gone through the judgement and order of the learned Sessions judge. ( 6 ) IT appears that the prime eye-witness to the incident is Ziniben - complainant, who has been examined as PW-3 at Ex. 16. In the examination-in-chief she has stated that the incident had happened when she and her mother deceased were taking food. She stated that at that time A-3 and A-4 had come and they caught hold of the deceased by saying that she was a witch and because of her, their family members were remaining sick and ill and, therefore, they would kill. The pertinent aspect is that she has, in her complaint, which is admitted by her in her deposition and exhibited as ex. 17, stated of everybody came together namely; A-l, A-2, A-3, A-4 and also one shana Nayak. In the complaint she has not stated that such words that the deceased was a witch and, therefore, to be killed, were spoken by only A-3 and A-4 as stated by her in her deposition. Therefore, to that extent if the evidence of Ziniben - PW-3 qua A-3 and A-4 is considered, keeping in view the statement made in the complaint, could be said as diluted. Therefore, to that extent if the evidence of Ziniben - PW-3 qua A-3 and A-4 is considered, keeping in view the statement made in the complaint, could be said as diluted. So far as role played by A-1 of giving axe blow on the head and on the cheeks of the deceased and the role played by A-2 with the stick on the head, the said eye-witness Ziniben - PW-3 has remained consistent and there appears to be no contradiction to that extent. In the deposition of the aforesaid witnesses, no specific evidence has on record, if considered with the statement made in the comp'aint and the trustworthiness examined for a pre-plan or common intention of all the accused. ( 7 ) THE injury upon the body of the deceased is proved by the evidence of dr. Rohini Patti (Katti) - PW-1, whose deposition is at Ex-11. The said doctor has performed postmortem of the deceased and she has found that there were external injuries on the head of the deceased having size of 5 cm length and she has also stated that there was stab wound on the head of the deceased having length of 5 cm and on the cheek of the deceased having length of 2 cm and the injury on the left hand of radius and ulna and there was fracture of said bones. The cause of death as stated by the doctor is due to head injury and hemorrhage caused on account of the said blows. The deposition of the said witness is further corroborated by the evidence of another Dr. Rameshchandra Chauhan - PW-2 at Ex. 13, who had examined the deceased at the first instance when she was brought to Civil Hospital, Godhra and she was in serious condition. The injuries upon the body of the patient-deceased were in confirmity with the injuries found by the doctor, who performed postmortem. In this manner, the prosecution has been able to prove its ease for the death caused of the deceased by the aforesaid injuries and more particularly on the head of the deceased. The injuries upon the body of the patient-deceased were in confirmity with the injuries found by the doctor, who performed postmortem. In this manner, the prosecution has been able to prove its ease for the death caused of the deceased by the aforesaid injuries and more particularly on the head of the deceased. ( 8 ) THE discovery of the weapon is proved by the prosecution namely; the axe is discovered at the instance of A-1, which is found with the blood stains and the stick, which is said to have been used by A-2 is also discovered at the instance of A-2 and the said panchnama is also proved by the deposition of one of the panchs and further corroborated by the evidence of I. O. The pertinent aspect is that when the stick was discovered in the panchnama there is reference to the blood spot over the stick, but in the FSL report, the blood of the deceased is found on the axe, which was discovered at the instance of A-l and no blood is found over the stick, which was in possession of A-2. ( 9 ) THE aforesaid evidence goes to show (hat so far as A-1 is concerned, the use of lethal weapon and the blow at the vital parts of the body and the injuries having been caused on the head, which is the principal cause for death and the opinion of the doctor that such injury was sufficient to cause death of a human being in normal course, fully involves A-l for the cause of death of the deceased and it appears that the prosecution has been able to prove the guilt of A-l in this manner. ( 10 ) SO far as A-2 is concerned, it appears that even if the case of the prosecution is considered as it is on the aspect of possession of the weapon and the role played by him, he was having stick in his hand and the said slick in normal course cannot be said to be a lethal weapon. ( 10 ) SO far as A-2 is concerned, it appears that even if the case of the prosecution is considered as it is on the aspect of possession of the weapon and the role played by him, he was having stick in his hand and the said slick in normal course cannot be said to be a lethal weapon. The same is coupled with the circumstance that the blow is not given bv A-2 to the deceased on the head of the deceased, which may show his intention to cause death, but the blow is given on the left hand resulting into fracture of the bones shows that the intention on the part of A-2 could be of causing grievous hurt to the deceased and such circumstance leads to show that there was no intention on the part of A-2 to cause death of the deceased. ( 11 ) AS observed earlier, the evidence of the prosecution against A-3 and A-4, is not beyond reasonable doubt to show that A-3 and A-4 had stated that they were going to kill the deceased, nor is there any evidence beyond reasonable doubt to show that A-3 and A-4 had caught hold of the deceased at the time when the blows were given by a-1 on the head of the deceased with the axe or by A-2 with the stick on the left hand of the deceased. ( 12 ) HOWEVER, the learned APP Ms. Shah contended that there was charge of section 34 of IPC and in the submission of the learned APP, if the charge under Section 34 is proved of accused irrespective of their role shall share the same liability. It was submitted that the common intention could be gathered from the circumstance that all the accused came at the residence of the deceased and they expressed the say that as she was witch their family members were remaining sick and, therefore, she is to be killed. She submitted that the said circumstance and more particularly of visiting the place of the deceased by all the accused and the use of the aforesaid words shall be sufficient to show the common intention of all the accused to kill the deceased. Therefore, she submitted that the learned Sessions Judge has rightly found the charge under Section 34 of IPC as proved. Therefore, she submitted that the learned Sessions Judge has rightly found the charge under Section 34 of IPC as proved. ( 13 ) WHEREAS the learned Counsel appearing for the appellants-accused submitted that there is absolutely no evidence for common intention to uphold the conviction under Section 34 of IPC against all the accused. ( 14 ) IT appears that the common intention could be gathered on the basis of the material on record, the other circumstances and also the conduct of the accused at the time when the incident has occurred. Had it been a case where there was evidence available on conspiracy or a meeting at which the decision is taken to kill the deceased, it may be a valid circumstance, which is not at all available in the facts of the present case. It is true that even in absence of predetermination by way of conspiracy or otherwise, the common intention could be gathered if the facts and circumstances so warrant at the time when the incident had happened and more particularly arising from the conduct on the part of each accused qua the deceased. Merely because all have gone together cannot be a sole basis for upholding conviction under Section 34 treating the same as common intention of everybody. If the overall circumstances are considered in the present case it appears that the accused are the relatives of the deceased and they had the ill-feeling that as the deceased was a witch, their family members were remaining sick or ill. Therefore, to express their ill-feeling, it appears that all the accused together with their father Shana nayak had gone to the place of the deceased. Not only that, but even in the complaint there is a reference of altercation and exchange of words on the said aspects and there is also reference to the quarrel on the said aspect. This shows that at least there could not be common intention to kill but to express the ill-feeling. It, at the most, could be said as to give assault by some of the accused. At this stage, reference may be made to the decision of Apex Court in the case of Dukhmochan Pandey and Ors. v. State of Bihar, reported in AIR 1998 SC, 40 and more particularly the observations made by the Apex Court on page 46, the relevant of which reads as under:- "6. . At this stage, reference may be made to the decision of Apex Court in the case of Dukhmochan Pandey and Ors. v. State of Bihar, reported in AIR 1998 SC, 40 and more particularly the observations made by the Apex Court on page 46, the relevant of which reads as under:- "6. . . . The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot during the progress of the crime. Usually it implies a pre-arranged plan which in turn pre-supposes a prior meeting of mind. But in a given case such common intention which developed at the spur of the moment is different from a similar intention actuated a number of persons at the same time, and therefore, the said distinction must be borne in mind which would be relevant in deciding whether Section 34 of the Indian Penal Code can be applied to all those who might have made some over attack on the spur of the moment. " ( 15 ) IT was further observed that "the distinction between a common intention and a similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice. " ( 16 ) IT was also observed that "in other words, unless such common intention is established as a matter of necessary inference from the proved circumstances of the case then the accused persons could be individually liable for their respective overt attacks and not for the act done by any other person. " ( 17 ) THEREFORE, if the evidence on record is examined in light of the aforesaid legal position at the most there could be the common intention of all the accused, who visited the place of the deceased to the extent of expressing ill-feeling generated due to sickness of the members of the family upon a doubt that the deceased was a witch. The fact that altercation of hot words is referred to by the complainant herself in the complaint shows that while expressing the feeling, the position had aggravated and the incident has happened. The fact that altercation of hot words is referred to by the complainant herself in the complaint shows that while expressing the feeling, the position had aggravated and the incident has happened. Therefore, if during the period of aggravation of the incident A-l, who was possessing axe has given blow on the head and cheek of the deceased and A-2, who was possessing stick has given blow on the left hand of the deceased, it could be said that A-l and A-2 have exceeded in their role and the guilt for such purpose could not be traced for A-3 and A-4, so as to uphold the conviction under Section 34 of ipc as recorded by the learned Sessions judge. Therefore, in view of the facts of the present case, we find that the charge for section 34 could not be said as proved in the present case and the learned Sessions judge has committed error to that extent. ( 18 ) THE next aspect would be to trace the guilt of the accused on the basis of the role played by each of the accused in commission of crime. As observed earlier qua A-1, the role played is to the extent of causing death by using lethal weapon and giving blow on the vital part of the body, which in normal course would be sufficient to cause death of a human being. Whereas the role played by A-2 is of causing fracture by giving blow on the left hand of the deceased with the stick. However, so far as a-3 and A-4 are concerned, as observed earlier, the prosecution has not been able to prove their role beyond reasonable doubt that they caught hold of the deceased when the blows were given by A-l or A-2. ( 19 ) THE learned Counsel for the appellants - accused had contended that there was delay in filing of FIR and, therefore, such would result into frustrating the case of the prosecution as the said delay would be fatal. It was submitted that the incident had happened as per the complaint at about 9 O'clock in the night on 21. 1. 2001, whereas the complaint was registered on 22. 1. 2001 at 12 O'clock. It was submitted that the incident had happened as per the complaint at about 9 O'clock in the night on 21. 1. 2001, whereas the complaint was registered on 22. 1. 2001 at 12 O'clock. She also submitted that prior to the registration of the complaint, the deceased was taken to the hospital and the doctor, who examined has intimated that the patient was injured with phersi, in spite of the same the complaint was not registered and after the death of the deceased, the complaint was registered. Therefore, the benefit be given to the accused of such delay caused in filing of the FIR. ( 20 ) IT is by now settled that mere delay in registration of the complaint by itself would not be fatal to the case of the prosecution, but it may vary from facts to facts. If no explanation whatsoever is coming on record for such delay and in between there is some fabrication of the witnesses or concoction of any evidence and thereafter registration of FIR, such delay may be fatal to the case of the prosecution. But if there is sufficient explanation coming on record for delay caused in registration of FIR, it would not be fatal to the case of the prosecution. ( 21 ) IF the facts of the present case are examined in light of the aforesaid position of law, it appears that the deceased and the complainant as well as the accused are in remote tribal area, where all facilities, including transportation, are not readily available, nor the Court can proceed on the basis that such poor tribals may have sufficient finance to arrange for transportation immediately. Further, it is stated in the complaint itself that there is distance of 10 kms between the place of offence and the police station. It has also come on record that the incident had happened during late night and thereafter since they found that the deceased was not responding in the morning, she was carried to the hospital. In fact, it was for the hospital authority to report to the police about the incident when the deceased was brought to hospital at Godhra, but unfortunately at that stage also there was no yadi/note for such purpose. The relatives of the deceased were asked to carry the patient at Vadodara Hospital for CT scan. In fact, it was for the hospital authority to report to the police about the incident when the deceased was brought to hospital at Godhra, but unfortunately at that stage also there was no yadi/note for such purpose. The relatives of the deceased were asked to carry the patient at Vadodara Hospital for CT scan. Such circumstance goes to show that the complainant and the relatives of the deceased have given priority to the treatment and the complaint was registered thereafter. Such explanation of delay caused in the treatment and the time consumed in treatment of the victim resulting into the delay would be sufficient explanation coming on record. Therefore, the delay in registration of FIR in the facts of the present case cannot be said as fatal to the case of the prosecution. Hence, the contention raised by the learned Counsel for the appellant cannot be accepted. ( 22 ) IT was next contended by the learned counsel for the appellant accused that had the treatment be given to the deceased well in time by shifting the deceased to the vadodara Hospital, she could have survived and if there is negligence on the part of the relatives of the victim to give proper treatment, the accused cannot be held liable, nor the gravity of the offence would be increased, if the death is caused due to the same. It was, therefore, submitted that it would not be a case for conviction under section 302 of IPC as recorded by the learned Sessions Judge and the accused would be entitled to the benefits of the same. ( 23 ) WHEREAS the learned APP contended that the doctor, who examined the victim when she was brought for the first time, has not advised for transfer of the patient to Sayajigunj Hospital for better treatment, but it was only for examination of the CT scan she was advised for sayajigunj Hospital at Vadodara. She submitted that, therefore, merely because the victim was not taken to Sayajigunj hospital, it cannot be said that there was negligence on the pan of the relatives of the victim and. therefore, the accused would be entitled to the benefits. She submitted that, therefore, merely because the victim was not taken to Sayajigunj hospital, it cannot be said that there was negligence on the pan of the relatives of the victim and. therefore, the accused would be entitled to the benefits. ( 24 ) IT appears that the learned APP is right in submitting that when at the Civil hospital, Godhra the victim was examined, she was referred to SSG Hospital, Vadodara for CT Scan and such endorsement is apparent on page 81 Ex. 14 The pertinent aspect is that below the said endorsement there is further recording that "but Pt expired at 5. 15 p. m". Therefore, it could not be said to be a negligence as sought to be canvassed by the learned Counsel for the appellant accused. In any case, if the patient has expired, there was no question of giving any further treatment at another hospital on the ground as sought to be canvassed. Further the discharge record of the hospital, which is produced with the deposition of dr. Rameshchandra Chauhan - PW-2 shows that the discharge was due to the death of the patient and not for transferring the patient to another hospital. Under these circumstances, we find that there was no negligence on the part of the relatives of the victim for giving further treatment, which has resulted into the death of the deceased. In any event, such could be said as a lame excuse by the defence, more particularly when the evidence of Dr. Rohini Patti (Katti) - PW-1 Ex. 11 shows that the injury no. I was serious and there was heavy blood loss, which has resulted into hemorrhage and it is further opined by the expert that the injury on the head was sufficient to cause death of a human being. Therefore, such contention of the learned Counsel fails. Rohini Patti (Katti) - PW-1 Ex. 11 shows that the injury no. I was serious and there was heavy blood loss, which has resulted into hemorrhage and it is further opined by the expert that the injury on the head was sufficient to cause death of a human being. Therefore, such contention of the learned Counsel fails. ( 25 ) IT was next contended by the learned counsel for the appellants - accused that when the victim was carried to the doctor at the first instance at Civil Hospital, Godhra, the relatives of the victim had given history of assault by phersi and not with axe and she, therefore, submitted that the case of the prosecution for involvement of A-1 with the axe is a concocted story and not supported by the documentary evidence produced by the prosecution and, therefore, benefit should be given to A-l. ( 26 ) WE are neither impressed by such submission, nor do we find merit in the submission for the simple reason that the witness or the relatives or the victim are from remote tribal area and they are not literate persons as the people, who are fully conscious about using of the language. Further, who has given history to the doctor, is not coming on record, but the pertinent aspect is that there is no much difference between phersi and axe. In any case, as against the un-controverted evidence coming on record of the eye-witness ziniben - PW-3 of giving blow by A-1 with the axe upon the head and cheek of the deceased, the discovery of axe with the blood stains at the instance of A-1, FSL report showing the blood over the very axe, which is discovered, are sufficiently strong material available on record for proving the case of the prosecution against A-l for the use of axe. Therefore, merely because may be by loose words or otherwise in the history given by some third party, such instrument is described as phersi would not be a sufficient ground to dislodge the case of the prosecution as sought to be canvassed. Hence, the said contention cannot be accepted. Therefore, merely because may be by loose words or otherwise in the history given by some third party, such instrument is described as phersi would not be a sufficient ground to dislodge the case of the prosecution as sought to be canvassed. Hence, the said contention cannot be accepted. ( 27 ) IN view of the aforesaid observations and discussions, we find that the prosecution has been able to prove the case against A-1 for offence under Section 302 of IPC and to that extent the judgement and order of the learned Sessions Judge deserves to be confirmed. Since the sentence for the offence under Section 302 is life-imprisonment, the imposition of the sentence by the learned Sessions Judge upon A-J also deserves to be confirmed. However, so far as A-2 is concerned, the conviction under Section 302 of JPC cannot be maintained, but deserves to be modified as under Section 325 of IPC since grievous hurt has been caused, resulting into fracture on both the bones of left hand by A-2 to the deceased. The maximum sentence for the offence under Section 325 of IPC is of seven years with fine. As against the same the accused - A-2 has already undergone sentence of about more than seven years. Therefore, we find that the sentence undergone by A-2 should be sufficient with the fine of Rs. 500/ -. Hence, conviction and the sentence imposed by the learned sessions Judge shall stand modified accordingly and upon the payment of the fine A-2 shall be released forthwith, unless required for any other purpose known to law. ( 28 ) AS observed earlier, the conviction by the learned Sessions judge of A-3 and a-4 under Section 302 of IPC cannot be maintained and deserves to be set aside as there is no evidence available on record beyond reasonable doubt to prove the case of the prosecution against A-3 and A-4. Hence, the judgement and order of the learned Sessions judge for recording conviction of A-3 and A-4 is quashed and set aside. As A-3 and A-4 are on bail, the bail bond shall stand cancelled. A-3 and A-4 shall be set at liberty forthwith, unless required for any other purpose known to law. ( 29 ) THE appeal partly allowed accordingly. (KDP) (Appeal partly allowed)