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2009 DIGILAW 342 (GUJ)

Duduabhai Kajabhai Rajput v. State of Gujarat

2009-05-06

JAYANT PATEL, RAJESH H.SHUKLA

body2009
Judgment Rajesh H. Shukla, J.—The present appeal is directed against the judgment and order dated 5.10.2001 passed by the learned Additional Sessions Judge, Banaskantha at Deesa in Sessions Case No. 115/99 recording the conviction of A-1, A-2 and A-4 for offence under Section 302 read with Section 34 of IPC and imposing rigorous imprisonment for life and fine of Rs. 1,000/- each and in default simple imprisonment for one year, recording conviction of A-2 for offence under Section 307 of IPC and imposing sentence of RI for 5 years and fine of Rs. 500/- and in default simple imprisonment for 6 months and further recording conviction of A-3 for offence under Section 323 and imposing sentence of RI for 6 months. The learned Judge has also convicted A-1, A-2 and A-4 for offence under Section 504 of IPC and imposed sentence of simple imprisonment or one year. As A-3 has been convicted only for offence under Section 323 of IPC, he has been ordered to be released after considering the remissions and the sentence undergone. 2. The facts of the case, briefly summarized, are as follows: 2.1 It is the case of the prosecution that the complainant accompanied by the deceased cousin brother Kanjibhai and his wife and sister were proceeding for darshan of Mataji. When they were returning they had got down at the village out-post. At that time, A-4 was passing in a jeep car and therefore he came with the jeep, stopped his jeep and he got down from the jeep armed with iron pipe, A-2, also came armed with iron pipe and was also accompanied by A-3 and started abusing. It is the case of the prosecution that he started abusing that why the quarrel is picked up by the complainant party and at that time A-1 also came there with another vehicle and was armed with ‘tomi’ and they had started assaulting the deceased. It is the case of the prosecution that A-1 had assaulted the deceased giving blows with tomi and pipes causing head injuries and when the complainant and the wife of the deceased and his sister also tried to intervene, A-2 is also said to have assaulted them with iron pipe and A-3 had given kick and fist blows to the wife and the sister of the deceased and thereafter they ran away. As the deceased was unconscious, the complainant party got lift in one jeep car and took the deceased Kanjibhai to Tharad Hospital and thereafter the complaint came to be lodged at Suigam police station which has been registered as C.R. No. I-7/99. 2.2 On the basis of the FIR registered against the accused persons for the alleged offences, investigation was carried out. After the investigation was over, the charge sheet was submitted. As the offence under Section 302, etc. of IPC are triable by the Court of Sessions, after ascertaining as to the papers made available to the accused persons, the learned Additional Sessions Judge, Banaskantha at Deesa framed the charges for the offence punishable under Section 302 read with sec.34 of IPC and also for offence under Section 307 read with Section 34 as well as for offence under Section 504 of IPC and also for offence under Section 135 of the Bombay Police Act. 3. In order to bring home the charges levelled against the accused persons, the prosecution examined the witnesses referred to by the learned Additional Sessions in the trial and also considered the documentary evidence produced by the prosecution. 4. After recording of the evidence was over, the learned Additional Sessions Judge recorded further statement of the accused persons under Section 313 of the Criminal Procedure Code wherein the accused persons have stated that they are falsely implicated and they have denied the charges. 5. After hearing the learned Public Prosecutor as well as the learned Advocate for the defence, the learned Additional Sessions Judge recorded the conviction of the accused persons and imposed sentence with fine as stated hereinabove in detail. 6. It is this judgment and order which has been assailed before this court mainly on the ground of self-defence and also on the ground that the learned Additional Sessions Judge has committed an error in appreciating the evidence of the eye witnesses. It was submitted that the eye-witnesses are close relatives of the deceased and their testimony is not trustworthy and reliable. 7. Learned Advocate Ms. Sadhana Sagar for the defence referred to the testimony of witnesses at length and has also referred to the testimony of Dr. Dipak Gehlot, P.W. 2, at Exhibit 16 who examined the accused persons and had given the certificate. 7. Learned Advocate Ms. Sadhana Sagar for the defence referred to the testimony of witnesses at length and has also referred to the testimony of Dr. Dipak Gehlot, P.W. 2, at Exhibit 16 who examined the accused persons and had given the certificate. The learned Advocate referred to the cross-examination and emphasised that A-4 has been admitted and treated as an indoor patient from 26.3.99 to 31.3.99. She also referred to the injury certificates produced at Exhibit 18, 19 and 20. She has also referred to the cross-complaint at Exhibit 63 filed by the accused persons (assaulting party A-4). Therefore learned Advocate Ms. Sadhana Sagar strenuously submitted that when the accused persons have also received injuries including A-4 having received serious injuries for which he was treated as an indoor patient, it is a case where the accused persons had, in exercise of their self-defence, caused such injuries and therefore they ought not to have been convicted for the alleged offences. Learned Advocate Ms. Sagar emphasised that the learned Judge has committed an error in appreciating the evidence of the eye-witnesses who are related to the complainant party i.e. the deceased. For that purpose, she pointedly referred to the testimony of Shankarbhai, P.W. 3 (Exhibit 28) and also the testimony of Gangaben (sister of the deceased and the eye-witness), P.W. 4 at Exhibit 31. She submitted that as is evident from the testimony of Shankarbhai, PW-3 at Exhibit 28, he has stated that the sister of deceased, Gangaben, while trying to save the deceased, gave a blow with ‘datarda’ and Gangaben, P.W. 4 in her testimony has also stated the same. Again, she referred to the testimony of wife of the deceased, Gomtiben, P.W. 5 (Exhibit 32) and submitted that she has not clearly stated about the role of the accused persons. She has merely stated that one person was armed with pipe and she cannot say as to other person was armed with which weapon. She has also stated that the deceased husband received the pipe blows. Learned Advocate Ms. Sagar submitted that Shankarbhai, P.W. 3 has stated that Gangaben, P.W. 4 was having ‘datarda’ and she had caused injury to A-4 while trying to rescue the deceased. She has also stated that the deceased husband received the pipe blows. Learned Advocate Ms. Sagar submitted that Shankarbhai, P.W. 3 has stated that Gangaben, P.W. 4 was having ‘datarda’ and she had caused injury to A-4 while trying to rescue the deceased. She submitted that in fact the complainant party had assaulted the accused persons and A-4 was pushed below the jeep and when A-1 came there in the quarrel both the sides received injuries. Therefore, learned Advocate Ms. Sagar submitted that the accused persons were justified in exercising their right of self-defence . She also again referred to the cross-complaint. 8. Learned Advocate Ms. Sagar also stated that the medical evidence has not corroborated the testimony of the eye-witness Gomtiben, P.W. 5. For that she submitted that Gangaben, P.W. 4 in her testimony has referred to the knife blow said to have been given by the deceased to A-2, which further lends corroboration to the theory of self-defence. 9. Learned Advocate Ms. Sagar also submitted that though the pipe blows are attributed but there are no blood stains found on the pipe and therefore to that extent causing serious injury is ruled out. She also referred to and relied upon the judgment of the Hon’ble Apex Court in the case of Jarnail Singh vs. State of Punjab, reported in AIR 1996 SC 755 , and referring to the observations made in Paras 7, 8 and 11 she submitted that the prosecution has to prove the guilt of the accused and has not given any explanation for the injuries caused to the accused persons. Therefore, she submitted that as observed in this judgment, at least the accused persons ought not to have been convicted for offence under Section 302 read with Section 34 of IPC. 10. Therefore, learned Advocate Ms. Sagar submitted that the conviction of the accused persons recorded by the learned Additional Sessions Judge is erroneous and at least A-3, who is not attributed with any serious assault with any weapon and is attributed only with kick and fist blows to the sister and wife of the deceased, is not proper. Similarly, A-2 who is also not attributed with causing any serious injury, ought to have been treated leniently. 11. Learned Advocate Ms. Similarly, A-2 who is also not attributed with causing any serious injury, ought to have been treated leniently. 11. Learned Advocate Ms. Sagar has referred to and relied upon the judgment of the Hon’ble Apex Court in the case of State of U.P. vs. Gajey Singh & Anr., reported in 2009 (3) Scale 337 , and submitted that in the case before the Hon’ble Apex Court also the appeal was allowed. Therefore, she submitted that the accused persons and at least A-2 ought to have been given the benefit and his conviction for the offence under Section 302 read with Section 34 of IPC is erroneous. 12. Learned APP Ms. Chetna Shah has referred to the testimony of the witnesses in detail and submitted that the accused persons have assaulted the deceased who was going with his family for darshan and, therefore, it is not a case of free fight or quarrel and the testimony of witnesses clearly suggests that the accused persons have started the assault. She submitted that merely because in the process some accused persons may have received injuries, by itself, may not be treated as a ground for self-defence. 13. The learned APP referring to the testimony of P.W. 3 Shankarbhai submitted that the testimony of this witness read with the testimony of Gangaben, P.W. 4 and Gomtiben, P.W. 5 makes it clear that while trying rescuing the deceased who was assaulted by the accused persons one of the accused, A-4, may have received injuries and therefore there is no substance in the submission with regard to the right of self-defence as it could not have been claimed or could not have been exercised. She submitted that in order to claim such defence, it has to be established from the material that they were assaulted first and in response to such right was exercised. In the facts of the present case, the accused persons have assaulted when the deceased accompanied by his wife and sister was going for the darshan could not be believed o have any idea of assaulting the accused persons. She submitted that though the cross-complaint has been filed by A-4, it is filed subsequently to counterblast the FIR filed by the complainant. For that purpose she again referred to the testimony of Dr. She submitted that though the cross-complaint has been filed by A-4, it is filed subsequently to counterblast the FIR filed by the complainant. For that purpose she again referred to the testimony of Dr. Gehlot, P.W. 2, who had examined the accused and also given the injury certificates and submitted that these injuries, except that of A-4, are not serious and they have also not narrated that they were assaulted. 14. Therefore, learned APP Ms. Shah submitted that the submission regarding the self-defence may not be accepted. She further submitted that in fact the deceased has been assaulted by the accused persons with iron pipes and tomi causing severe head injuries resulting in his death and, therefore, the intention was very obvious that three persons armed with such weapons indiscriminately assaulted the deceased and therefore the conviction recorded by the learned Additional Sessions Judge is just and proper. She also submitted that the submission of learned Advocate for the defence that the pipes which have been recovered were not having blood stains is not much relevant in light of the direct evidence of the eye-witnesses whose presence is natural when they are wife and sister of the deceased accompanying the deceased for darshan. She submitted that the possibility is that such pipe could have been washed out as recovery or discovery is at a later stage and therefore it is not necessary that blood stain ought to have been found. Therefore, the learned APP submitted that in light of these evidence, the impugned judgment and order recording the conviction is just and proper. 15. In light of these rival submissions and on re-appreciation and scrutiny of the evidence, it is required to be considered whether the impugned judgment and order recording the conviction of the accused persons as stated hereinabove calls for any interference or not. 16. The moot question which is required to be considered or appreciated is whether the appreciation of evidence by the learned Additional Sessions Judge is proper or not. The first contention raised by learned Advocate Ms. Sagar with regard to appreciation of deposition of the injured eye-witnesses submitting they are close relatives and, therefore, their evidence is not credible referring to some difference in the narration of the incident is required to be appreciated. 17. The first contention raised by learned Advocate Ms. Sagar with regard to appreciation of deposition of the injured eye-witnesses submitting they are close relatives and, therefore, their evidence is not credible referring to some difference in the narration of the incident is required to be appreciated. 17. It is required to be mentioned that the presence of the eye-witnesses was natural when they were accompanying the deceased as wife, sister and cousin brother for the purpose of darshan and the testimony of all the eye-witnesses is consistent as regards the incident having taken place, the use of weapons, namely, the pipes and also tomi and also the role attributed to the accused persons. A close scrutiny of the testimony of all the three eye-witnesses have clearly suggested that accused No. 4 came with jeep, got down from the jeep armed with pipe accompanied by A-2 and A-3 and thereafter A-1 also came there armed with tomi in his own truck. Thereafter they abused the deceased and stared giving blows resulting in the incident. Therefore, the testimony of all the eye-witnesses is natural and in fact it is required to be appreciated that P.W. 3, who is also an injured eye witnesses, has specifically stated that the sister Gangaben was having ‘datarda’ and she, while trying to rescue the deceased, had caused injury to A-4 and that is corroborated by the medical evidence in the form of testimony of P.W. 2, Dr. Gehlot, who had examined the accused persons and given the injury certificates, Exhibit 18, 19 and 20. Therefore, on the contrary, the evidence of these witnesses is more natural. 18. A useful reference is required to be made o the observations made by the Hon’ble Apex Court in the case of Suresh Sitaram Surve vs. State of Maharashtra, reported in AIR 2003 SC 344 , wherein the Hon’ble Apex Court, while appreciating the similar contention about the credibility of the eye-witnesses who are related, has observed in Para 6 that the evidence of the injured eye-witnesses cannot be discarded in toto on the ground of inimical disposition towards the accused or the improbability of narrating the details of actual attack. It has been further observed, “The eye-witnesses’ account of the attack by the appellant is quite consistent. It has been further observed, “The eye-witnesses’ account of the attack by the appellant is quite consistent. Though certain doubts are sought to be created as to the genesis of the incident and the manner of attack by taking us through the topography of the scene of offence, we are not at all convinced that the prosecution case is belied on account of such factors. The argument that the injuries on the appellant were not explained by the prosecution and therefore the prosecution case of the appellant being an aggressor is open to doubt has no substance at all.” 19. Therefore, in light of this observation, the evidence in the present case, particularly the injured eye-witness narrating about the manner of the incident having taken place and the assault by the accused persons, leaves no doubt that the deceased was assaulted, and the theory of self-defence has no place whatsoever. There may be a past quarrel or even the deceased may be facing some charges, but as far as the incident in question is concerned, it is evident that he was going for the darshan accompanied by the wife, sister and the cousin brother, and A-4, who passed through them just on the outskirts of the village in his jeep, got down from the jeep and started abusing. At that time, A-1 also came with his truck and was armed with tomi and they started assaulting the deceased. Further, when the theory of self-defence is suggested in the cross-examination, it was for the accused to substantiate from material and evidence. Mere raising of a contention without corroborating or substantiating from material and evidence on record would not be sufficient. 20. The aspect of self-defence which has been raised as defence could not be believed or accepted in light of the material and evidence on record, particularly the testimony of the eye witnesses. 21. Another facet of the case is that though the charge is for offence under Section 302 read with Section 34 of IPC, the moot question which is required to be considered is whether there was any common intention. This aspect has not been much discussed. However, while re-appreciating and scrutinizing the evidence, this court is required to undertake that exercise. 22. This aspect has not been much discussed. However, while re-appreciating and scrutinizing the evidence, this court is required to undertake that exercise. 22. As can be seen from the appreciation of evidence by the learned Additional Sessions Judge also, prima facie the common intention has not been believed or accepted though there is some discrepancy. The fact that learned Additional Sessions Judge has convicted A-3 only for offence under Section 323 would itself suggest that the common intention has not been believed and charges for offence under Section 302 read with Section 34 of IPC are not believed. It is required to be appreciated that for charges under Section 34 of IPC, even if the entire evidence of the prosecution is accepted at the face value, even then, so far as the incident is concerned, it is said to have taken place and there is no evidence that there was any pre-arranged meeting or plan or it is not suggested that the accused persons had gathered there in furtherance of a common intention. Therefore, the common intention has not been rightly accepted or believed by the learned Additional Sessions Judge while convicting the accused persons. 23. Therefore, when the common intention has not been established, the accused persons and the role attributed to each individual accused persons will have to be appreciated in light of the material and evidence on record. From the testimony of the injured eye witnesses, P.W. 3, P.W. 4 and P.W. 5, it is evident that A-1 and A-2 are attributed with pipe blows and A-4 with the tomi. However, on a closer scrutiny of this evidence, the testimony of injured eye-witnesses very specifically state that A-1 had giving blows with tomi and A-4 had given blows with pipe, whereas there is some discrepancy with regard to the role attributed to A-2 inasmuch as Shankarbhai, P.W. 3 in his testimony, Exhibit 28, has attributed A-2 with the pipe blows given to him and not to the deceased. In the cross-examination he has stated that A-4 and A-2 had assaulted with pipe blows and A-1 with tomi and he has further stated denying the suggestion referring to the contradiction in the police statement, that he has not stated about A-1 assaulting with tomi. In the cross-examination he has stated that A-4 and A-2 had assaulted with pipe blows and A-1 with tomi and he has further stated denying the suggestion referring to the contradiction in the police statement, that he has not stated about A-1 assaulting with tomi. Gangaben, P.W. 4 has stated about the blow given by A-2 to the deceased and P.W. 5 Gomtiben, wife of the deceased, has not specifically attributed to each of the accused, but has merely stated that three persons were assaulting her deceased husband. She has specifically stated the persons who had got down, person armed with tomi, was assaulting her husband and she has stated that one person was armed with pipe and she cannot say with which weapon the other person was armed. 24. It is in these circumstances that the role attributed to A-1 assaulting with tomi and the role attributed to A-4 assaulting with the pipe and knife is consistent. Therefore, so far as A-2 is concerned, at the most he could have been armed with pipe, but he has been attributed with an assault as per the testimony of one eye witness, Shankarbhai, P.W. 3 that he assaulted him whereas another eye-witness attributed, referring to all the accused persons including A-2, with pipe blow to the deceased also. 25. Therefore, in light of this discrepancy, the prosecution has not established with regard to the role or assault by A-2 with pipe to the deceased beyond reasonable doubt. In any view of the mater, A-2 was also armed with pipe but is said to have assaulted the injured eye witness, Shankarbhai, P.W. 3, and therefore, the submission made by learned Advocate Ms. Sagar that his case also ought to have been treated at par with A-3 is also required to be considered. However, at the same time, A-3 is only attributed with kick and fist blow to the wife and sister of the deceased, whereas A-2 who is armed with pipe has assaulted with the pipe one of the injured eye-witnesses P.W. 3 and therefore his conviction would not be justified for offence under Section 323 of IPC at par with A-3 and therefore his conviction could be modified or altered from the one for offence under Section 302 read with Section 34 of IPC to one for offence under Section 325 of IPC. The conviction of A-1 and A-4 for the offence under Section 302 r/s Section 34 of IPC does not call for any interference and is required to be maintained. 26. In light of the observations and discussion made hereinabove and considering the role attributed to each of the accused persons, the present appeal stands allowed partly qua A-2, Rudabhai Virabhai Rajput. The appeal qua A-1, Dudabhai Rajabhai Rajput, A-3 Shankarbhai Virabhai Rajput and A-4, Malabhai Rajabhai Rajput stands dismissed. The judgment and order of conviction of A-1 and A-4 for offence under Section 302 read with Section 34 of IPC passed by the learned Additional Sessions Judge, Banaskantha at Deesa in Sessions Case No. 115/99 dated 5.10.2001 is hereby maintained and confirmed and the sentence imposed is also required to be maintained. The conviction of A-2 Rudabhai Virabhai Rajput, who has been convicted for offence under Section 302 read with Section 34 of IPC deserves to be modified or altered to conviction for offence under Section 325 of IPC and the sentence also is accordingly requires to be modified. The sentence provided for offence under Section 325 of IPC is rigorous imprisonment up to 10 years. However, as he has already undergone substantial sentence as he has also been convicted for offence under Section 307 of IPC and sentenced to undergo RI for 5 years with fine of Rs. 500/-, it would be in fitness of things if his sentence is also accordingly modified to RI for 5 years and fine of Rs. 500/-. It goes without saying that the aforesaid sentence for both the offence under Section 307 of IPC as well as for offence under Section 325 of IPC shall be undergone concurrently by A-2. Similarly, conviction of A-3 Shankarbhai Virabhai Rajput for offence under Section 323 and imposing RI for 6 months by the learned Additional Sessions Judge is also maintained and confirmed and does not fall for any interference. The appeal is disposed of accordingly.