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2009 DIGILAW 60 (GUJ)

KALUBHAI MAGANBHAI VAGHELA v. STATE OF GUJARAT

2009-02-04

A.L.DAVE, J.C.UPADHYAYA

body2009
JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) These three appeals arise out of the judgment and order rendered by the City Sessions Court No.4, in Sessions Case No.205/1997, on 25.04,2001. The appellant in Criminal Appeal No.468/2001 was original accused No.1, whereas the appellant in Criminal Appeal No.508/2001 was original accused No.4, and the appellant in Criminal Appeal No.667/2001 was original accused No.2 before the trial Court. All the appellants, along with accused Jagdishbhai Kalidas, came to be tried by the Sessions Court for the offences punishable under Sections 302, 325, 326 read with Section 114 of the Indian Penal Code by the judgment impugned. 2. As per the prosecution case, the incident occurred on 8.5.1997 around 9.00 P.M., near the Health Department Quarters of Ahmedabad Municipal Corporation situated at Gomtipur, Ahmedabad. As per the prosecution case, all the four accused persons, armed with deadly weapons, assaulted Jayantibhai Chhaganbhai, Kamlesh Parshotambhai, Prakash Chimanlal, Anil Prabhudas and Chimanbhai Chhaganbhai. Chimanbhai Chhaganbhai ultimately died on 14.5.1997 while under treatment at the hospital for the injuries caused to him in the incident. In respect of the incident, F.I.R was lodged by Jayantibhai Chhaganbhai with Gomtipur Police Station, on the basis of which, an offence came to be registered and investigated. The investigating agency, having found sufficient material against the accused persons, filed charge sheet against all the four accused in the Court of learned Metropolitan Magistrate, Court No.10, who, in turn, committed the case to the City Sessions Court, Ahmedabad, and Sessions Case No.205/1997 came to be registered. 2.1 Sessions Court found that the charges levelled against all the four accused persons were proved and recorded conviction as under:- Accused No.1, Kalubhai Mangabhai Vaghela was convicted for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo R.I for six months. Accused No.2, Pravinbhai Govindbhai came to be convicted for the offence punishable under Section 302 r.w.Section 114 IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default, to undergo R.I for six months. He also came to be convicted for the offence punishable under Section 325 IPC and sentenced to undergo R.I for four years and to pay a fine of Rs.500/-, in default, to undergo R.I for three months. He also came to be convicted for the offence punishable under Section 325 IPC and sentenced to undergo R.I for four years and to pay a fine of Rs.500/-, in default, to undergo R.I for three months. Accused No.3, Jagdish Kalidas Solanki came to be convicted for the offence punishable under Section 326 IPC and was sentenced to undergo R.I for five years and to pay a fine of Rs.500/-, in default, to undergo R.I for three months. Accused No.4, Govindbhai Kalidas Solanki came to be convicted for the offences punishable under Sections 325 & 326 IPC and was ordered to undergo R.I for four years and to pay a fine of Rs.300/-, in default, to undergo R.I for three months, for the offence punishable under Section 325 IPC, and to undergo R.I for five years and to pay a fine of Rs.500/-, in default, R.I for three months, for the offence punishable under Section 326 IPC. All the substantive sentences were ordered to run concurrently. 3. It appears that accused No.3, Jagdishbhai Kalidas has expired and has not preferred any appeal. It also appears that accused No.4, Govindbhai Kalidas, who is appellant in Criminal Appeal No.508/2001 has also expired, as per the details submitted by co.accused Kalubhai Mangabhai attested before the jail authorities on 30.1.2007 in respect of the application filed by Kalubhai Mangabhai for temporary bail. No heir or legal representative of the said appellant has approached this Court. Under the circumstances, Criminal Appeal No.508/2001 would stand abated. 4. This Court, in the light of the above development, is required to deal with merits of Criminal Appeal No.468/2001 preferred by original accused No.1, Kalubhai Mangabhai Vaghela, and Criminal Appeal No.667/2001 preferred by original accused No.2, Pravinbhai Govindbhai. For the sake of convenience, they would be referred to in the judgment as accused Nos.1 & 2 respectively. 5. We have heard learned advocate Mr.Buddhbhatti for original accused No.1 and learned advocate Mr.T.S.Nanavati for original accused No.2. We have also heard learned A.P.P. Mr.M.R.Mengdey for the respondent-State. 6. Learned advocate Mr.Buddhbhatti submitted that so far as the motive attributed for the incident is concerned, it is not strong enough to form either a common intention to cause murder or even to intend to cause murder. He submitted further that there is no connecting factor between accused No.1 on one side and accused Nos.2,3 & 4 on other side. Learned advocate Mr.Buddhbhatti submitted that so far as the motive attributed for the incident is concerned, it is not strong enough to form either a common intention to cause murder or even to intend to cause murder. He submitted further that there is no connecting factor between accused No.1 on one side and accused Nos.2,3 & 4 on other side. They are independent of each other and there is no evidence to establish a link of any nature amongst them. Mr.Buddhbhatti submitted further that the eye witnesses, though injured, are not reliable for the reason that there is no consistency in their ocular evidence of the incident. Mr.Buddhbhatti submitted further that it is clear from the evidence that deceased Chimanbhai Chhaganbhai was not the target. He was only a stander by and got injured. No intention, therefore, can be attributed to accused No.1 for causing death of the deceased. It is also contended by learned advocate Mr.Buddhbhatti that the medical evidence led by the prosecution is not consistent with the ocular evidence, so far as the incident is concerned. The discovery of weapon allegedly made by accused No.1 has not been properly established. The incident has occurred at night and, therefore, identity of the assailants is a matter of doubt. It is also contended that the death of the deceased occurred five days after the incident and the cause of his death is indicated to be septicaemia. Lastly, it was submitted by way of an alternative submission that if involvement of accused No.1 is believed by the Court, accused No.1 is alleged to have inflicted only one blow to deceased Chimanbhai with a knife. The incident is not a premeditated event. Under the circumstances, the appellant, accused No.1 can, at the best, be said to have committed an offence punishable under Section 304 Part-II of the Indian Penal Code. He submitted that the appeal may, therefore, be allowed. 7. Learned advocate Mr.T.S.Nanavati, while adopting the arguments advanced by learned advocate Mr.Buddhbhatti, added that the discovery of weapon by accused No.4 is not proved. He submitted that Vardhy (Exh.88) indicates the names of different assailants and the attribution are also different than what is stated in the ocular evidence. It is also submitted that the prosecution has failed to examine eye witness Kamlesh Parshotambhai. He submitted that Vardhy (Exh.88) indicates the names of different assailants and the attribution are also different than what is stated in the ocular evidence. It is also submitted that the prosecution has failed to examine eye witness Kamlesh Parshotambhai. Mr.Nanavati submitted that, therefore, accused No.2 could not have been convicted for the offence of murder r.w.Section 114 IPC. Mr. Nanavati contended that the genesis of the incident is doubtful or at least, there is element of suppression of genesis when none of the witnesses says anything about the question as to how the incident started. There was no quarrel, no exchange of words, nothing, and suddenly the assault took place. He, therefore, submitted that the prosecution case becomes doubtful. Mr.Nanavati also submitted that the incident occurred at about 9.00 P.M in Summer Season. Around that time of the day, many people would be around the place of the incident having open ground, yet, no independent person is examined and all the witnesses, who are examined are closely associated with the deceased or his group. He also submitted that accused No.2 is alleged to have wielded gupti on the right hand of deceased Chimanbhai. The injury was not sufficient to cause death and, therefore, at the best, he can be convicted for the offence punishable under Section 325 or 326 IPC. So far as the conviction for other offence is concerned, Mr.Nanavati submitted that the sentence awarded is very high and disproportionate to the nature of the offence and the manner in which the incident occurred and, therefore, the sentence may be reduced to the sentence undergone by the said appellant. 8. Learned A.P.P. Mr.Mengdey submitted that if the Vardhy (Exh.88) is scrutinized, it makes clear that in the earlier incident of 6.5.1997, FIR was given by Rameshbhai, son of deceased Chimanbhai and, therefore, though Chimanbhai was not a participant in the incident and only a stander by, he was attacked upon by the accused persons. The motive is, therefore, properly established. According to Mr.Mengdey, the incident is well-planned. All the assailants were duly armed with deadly weapons and all of them have used their respective weapons in the incident. It, therefore, cannot be said that the incident occurred all of a sudden, without any premeditation. The assault on deceased Chimanbhai was purely an attempt to settle the score in respect of the incident dated 6.5.1997. Mr. All the assailants were duly armed with deadly weapons and all of them have used their respective weapons in the incident. It, therefore, cannot be said that the incident occurred all of a sudden, without any premeditation. The assault on deceased Chimanbhai was purely an attempt to settle the score in respect of the incident dated 6.5.1997. Mr. Mengdey, therefore, submitted that once the injury caused to the deceased is found to be sufficient in the ordinary course of nature to cause death and once it is found that the same was inflicted by accused No.1 and accused No.2 also inflicted injuries to the deceased, they both have been rightly convicted for the offences punishable under Section 302 and Section 302 read with Section 114 IPC. Mr. Mengdey submitted that there is evidence of injured eye witnesses Jayantibhai, Prakashbhai and Anilbhai, which would prove the charges for the offences punishable under Sections 325 & 326 of I.P.C. He ultimately submitted that the appeals may be dismissed. 9. We have examined the record and proceedings in the light of the rival side submissions. 10. The F.I.R. (Exh.64) is given by Jayantibhai Chhaganbhai Makwana, who has deposed at Exh.21. He is an injured eye witness to the incident and he happened to be the brother of deceased Chimanbhai. Another eye witness to the incident is Anilbhai P. Vaghela, who is examined at Exh.25. Prakashbhai Chimanbhai is examined at Exh.59. A close scrutiny of the depositions of these witnesses would go to show that none of them speaks anything on the question as to how the incident started. But, all of them clearly say that the accused group assaulted the victim with deadly weapons. According to their evidence, accused No.1 was armed with a knife and he inflicted one knife blow on the right side in the trunk of deceased Chimanbhai. No other overact is alleged against accused No.1. 11. The medical evidence relating to deceased Chimanbhai is in the form of depositions of Dr.Bharat P. Mistry (Exh.53) and Dr.Natvarbhai Patel (Exh.50), who treated the deceased and performed post- mortem on his dead body respectively. Dr.Mistry in his deposition at Exh.53 has indicated that there was a stab-wound on the right side of the abdomen of the size of 4 cm, and intestines were protruded. Dr.Bharat Mistry, therefore, admitted deceased Chimanbhai, gave him medicines and sutured the wounds after cleaning the same. Dr.Mistry in his deposition at Exh.53 has indicated that there was a stab-wound on the right side of the abdomen of the size of 4 cm, and intestines were protruded. Dr.Bharat Mistry, therefore, admitted deceased Chimanbhai, gave him medicines and sutured the wounds after cleaning the same. The condition of the deceased, initially, improved gradually, but, suddenly, on the 4th day he developed heavy temperature and his condition gradually deteriorated day to day and ultimately, expired on 14th May, 1997. Dr.Mistry says that the injuries caused on the abdomen were possible with muddamal articles No.3 & 7 and they were sufficient in the ordinary course of nature to cause death. 11.1 Dr.Natverbhai Patel, who performed post-mortem, is examined at Exh.50. He found as many as eight external injuries, out of which, two were abrasions, three were contused lacerated wounds and three were sutured wounds. All of them were ante-mortem. It also appears from his deposition that there were internal injuries corresponding to external injuries No.7 & 8. According to the Doctor, the deceased died due to septicaemia. 11.2 It transpires from the evidence of eye witnesses Jayantibhai Chimanbhai, Anilbhai Prabhudas and Prakash Chimanlal that firstly the first informant was assaulted upon and then the others. Hearing the shouts, people had assembled and deceased Chimanbhai was one in the crowd. It is clear from the evidence that he had taken no part in the incident and had not prompted any action from the other side. However, accused No.1 suddenly inflicted a knife blow in his abdomen, as a result of which, his intestines protruded. He was required to be taken to hospital, where surgery was performed and he was given treatment. He showed signs of improvement, but, ultimately, succumbed because of septicaemia. 11.3 It was argued that septicaemia is the cause of death and, therefore, death has occurred not directly as a result of the injury, but, for several intervening factors, which may be responsible for causing septicaemia and the trial Court, therefore, committed an error in convicting accused No.1 for the offence of murder. 12. Having analysed the evidence, we are of the view that the injury which is caused to the deceased, though only one in number, is on the vital part of the body. It is caused with a knife. 12. Having analysed the evidence, we are of the view that the injury which is caused to the deceased, though only one in number, is on the vital part of the body. It is caused with a knife. The injury has resulted into protruding of intestines and then later on, were responsible for septicaemia, which the deceased developed. Had there been no injury, there was no scope of development of septicaemia and, therefore, causing of injury cannot be considered as a remote factor for the cause of death. The deceased died because of the injury that he had sustained. That injury, even in absence of septicaemia is opined to be sufficient in the ordinary course of nature to cause death. But, considering the nature of injury, it can safely be inferred that it must have been inflicted with full force and accused No.1, therefore, cannot be considered as lacking in intention to cause death of the deceased. 13. So far as accused no.2 is concerned, he is alleged to have inflicted gupti blows to witness Jayantibhai and deceased Chimanbhai, besides Kamleshbhai. Kamleshbhai has not been examined as a witness. However, Jayantibhai, the first informant, has deposed before the Court at Exh.21, Anilbhai Prabhudas has deposed before the Court at Exh.25 and Prakash Chimanlal has deposed at Exh.59. The first informant Jayantibhai in his deposition has stated that accused No.2 inflicted a gupti blow on his left hand on the middle finger. He has also deposed that accused No.2 inflicted a gupti blow on the right hand of the deceased. This version of the first informant gets corroboration from the medical evidence of Dr.Natverbhai Patel (Exh.50) and Dr.Bharat Mistry (Exh.53) as well as Dr.Sejal Shah (Exh.60), who described the injuries in the same manner as deposed to by the injured eye witnesses. Now, therefore, what emerges is that accused No.2 caused injuries on left hand of first informant Jayantibhai and right hand of deceased Chimanbhai with gupti. None of these injuries can be considered as grievous hurt, but, they are caused with deadly weapon and, therefore, they would attract section 324 of I.P.C. There is no material on record to show absence of any preplanned assault. On the contrary, all the accused were armed with deadly weapons and assault is committed by all of them using deadly weapons. On the contrary, all the accused were armed with deadly weapons and assault is committed by all of them using deadly weapons. There is no evidence to show that there was any exchange of words or dispute or quarrel and, therefore, it cannot be said that the incident had occurred all of a sudden. But, at the same time, it is not the charge that they acted in furtherance of their common intention, nor is there any evidence to show that accused No.2, 3 or 4 aided accused No.1 in assaulting the deceased. The result is that, accused No.2 cannot be held guilty for causing death of deceased Chimanbhai by employing Section 114 IPC for aiding or abetting accused No.1. 14. What emerges, therefore, is that accused no.1 has acted singly and has inflicted fatal blow to the deceased, which was sufficient in the ordinary course of nature to cause death. The injury was caused with a knife. The knife was used with great force, which caused a stab-wound resulting into protruding of intestines. There is absence of material to show that the incident occurred all of a sudden or that he acted in heat of the moment. Under the circumstances, accused No.1 would be liable for causing murder of deceased Chimanbhai, and we do not find any reason to interfere with his conviction by the trial Court or with the sentence awarded by the trial Court. 15. So far as accused No.2 is concerned, he is proved to have caused injury with gupti to first informant Jayantibhai on his right hand and to deceased Chimanbhai on his left hand. He is also proved to have caused injury to Kamleshbhai, whose medical certificate is at Exh.49. The medical evidence of Dr.Rakesh Parmanand Singh is at Exh.48, which would go to show that all the injuries were simple in nature. He is also proved to have caused injury to Kamleshbhai, whose medical certificate is at Exh.49. The medical evidence of Dr.Rakesh Parmanand Singh is at Exh.48, which would go to show that all the injuries were simple in nature. But, because they were caused by a deadly weapon, his conviction would be justified under Section 324 of I.P.C and not under Section 325 read with Section 114 of I.P.C, or Section 302 read with Section 114 of I.P.C. We, therefore, set aside his conviction, so far as offence punishable under Section 302 r.w.Section 114 of I.P.C is concerned, and alter his conviction from Section 325 to under Section 324 of I.P.C. In the facts of the case, it would be appropriate to sentence accused No.2 to undergo R.I for three years and to pay a fine of Rs.500/-, in default, to undergo S.I for three months. We order accordingly. 16. As a result of the foregoing discussion; 16.1 Criminal Appeal No.468/2001 preferred by accused No.1 would fail and stands dismissed. 16.2 Criminal Appeal No.667/2001 stands partly allowed. The conviction of the appellant (original accused No.2) under Section 325 IPC is altered to under Section 324 IPC and is sentenced to undergo R.I for three years and to pay a fine of Rs.500/-, in default, to undergo S.I for three months, and his conviction under Section 302 read with Section 114 of I.P.C, is set aside. The appellant (original accused No.2) would get the benefit of set off. 16.3 Criminal Appeal No.508/2001 would stand abated, as stated in the earlier part of the judgment.