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2011 DIGILAW 189 (GUJ)

Jilubhai Bhabahlubhai Vala v. State Of Gujarat

2011-03-10

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT R.M. CHHAYA, J. 1. THIS appeal arises out of the judgment and order passed by learned Additional Sessions Judge, 5th Fast Track Court, Junagadh on 14.08.2003 in Sessions Case No.9 of 2002, convicting the appellants-accused for the offences punishable under Sections 147, 148, 302 read with Section 149, Section 323 read with Section 149, 506(2) of the Indian Penal Code, 1860 ('IPC' for short) as well as under Section 135 of the Bombay Police Act, 1951 ('B.P. Act' for short), and sentencing them in the manner stated hereinafter: (i) u/s. 147 of the IPC to undergo rigorous imprisonment ("R.I." for short) for six months and to pay a fine of Rs.100/- each, in default to undergo simple imprisonment ("S.I." for short) for five days. (ii) u/s. 148 of the IPC to undergo R.I. for six months and to pay a fine of Rs.200/- each, in default to undergo S.I. for seven days. (iii) u/s. 302 read with Section 149 of the IPC to undergo R.I. for life and to pay a fine of Rs.1,000/- each, in default to undergo S.I. for one month. (iv) u/s. 323 read with Section 149 of the IPC to undergo R.I. for three months and pay a fine of Rs.100/- each, in default to undergo S.I. for seven days. (v) u/s. 506(2) of the IPC to undergo R.I. for six months. (vi) u/s. 135 of the B.P. Act to undergo R.I. for one month and to pay a fine of Rs.50/- each, in default, to undergo S.I. for five days. 2. THE sentences imposed upon the appellants-accused were ordered to run concurrently. According to the prosecution, deceased-Hayat ("the deceased" for short) and accused Nos.1, 2 and 3 ("A1", "A2" and "A3" respectively for short) are the ordinary residents of Village Motakotda, Tal. Visavadar, Dist. Junagadh. The deceased was engaged in the vocation of selling tea on retail basis in a stall situated in local limits of Village Motakotda. It is further the case of the prosecution that on 05.08.2001 at about 8:30 a.m. while the deceased was at his stall, the accused, armed with deadly weapons like iron pipe, sword, gupti and dharia, with an 'intention' and 'motive' to kill the deceased, came near his tea stall and hackled and challenged him to come out from the stall. It is further the case of the prosecution that on 05.08.2001 at about 8:30 a.m. while the deceased was at his stall, the accused, armed with deadly weapons like iron pipe, sword, gupti and dharia, with an 'intention' and 'motive' to kill the deceased, came near his tea stall and hackled and challenged him to come out from the stall. That on seeing the accused, armed with deadly weapons, out of fear, the deceased attempted to run away. However, the accused ran after him and assaulted with weapons, which were in their possession. It is further the case of the prosecution that the deceased received serious injuries. It is the case of the prosecution that on 03.08.2001 i.e. just two days before the date of incident, the deceased had some quarrel with A1 at about 2:30 p.m. and the deceased had rebuked A1 and, because of the said quarrel, the accused, by constitution of an unlawful assembly, conspired to do away the deceased and with that common object, had assaulted the deceased and thereby committed the offences, as aforesaid. It is also the case of the prosecution that brother of the deceased, namely, Yunusbhai Osmanbhai Pathan (PW-16), who was present at the scene of offence and who is the original informant, also ran after the accused. However, the accused threatened him not to interrupt and A1 also assaulted PW-16 and gave a blow with pipe, which fell just below his knee of the left leg. Thereafter the deceased was taken to Government Hospital, Junagadh in a rickshaw and on examination he was declared dead. An FIR was lodged alleging the aforesaid offences against the present accused-appellants. On the basis of the FIR above-mentioned, the police started investigation and on completion of investigation, police submitted charge-sheet against the accused-appellants. Learned Judicial Magistrate, Visavadar, on receipt of such charge-sheet so submitted by the police, committed the case to the Court of learned Sessions Judge, Junagadh as the case was being exclusively triable by the Court of Sessions. The learned Judge, on appearance of the accused-appellants and on perusal of the materials available on record, including the police papers as well as also upon hearing the learned counsel for the parties, framed charges below Exh.1 against the accused under Sections 302, 147, 148, 149, 323, 506(2) of the IPC and Section 135 of the B.P. Act. The learned Judge, on appearance of the accused-appellants and on perusal of the materials available on record, including the police papers as well as also upon hearing the learned counsel for the parties, framed charges below Exh.1 against the accused under Sections 302, 147, 148, 149, 323, 506(2) of the IPC and Section 135 of the B.P. Act. The entire charges were read over to the accused-appellants to which they pleaded not guilty and claimed to be tried. The trial court proceeded with the trial and after considering all evidence led by the prosecution, came to the conclusion that the prosecution has successfully established the charges leveled against the present accused-appellants and specifically believed the case of the prosecution, which is based on chain of circumstances, being complete and uninterrupted. Relying upon the same, the learned trial Judge had reached to the conclusion that the offences alleged in the present case were duly established against the accused-appellants. The learned trial Court, therefore, had recorded conviction of the accused-appellants, as aforesaid, by the impugned judgment and order dated 14.08.2003. Hence, the present appeal. Heard Mr.A.D.Shah, learned advocate appearing on behalf of the accused-appellants, while the respondent-State has been represented by the learned A.P.P. Mr. D.C. Sejpal. Learned advocate Mr.Shah on behalf of the accused submitted that the medical evidence conflicts with the evidence of eye-witnesses and considering the nature and size of injuries, the same cannot be possible by weapons like sword, gupti or dharia and was also submitted that none of the injuries are possible by hard and blunt substance like pipe. It was also submitted that none of the injuries have been caused on any vital part of the body of the deceased and there was no intention to cause injuries as were likely to cause death and, therefore, the present case cannot be considered as 'murder'. Mr.Shah has vehemently submitted that on appreciation of evidence on record even the versions of the eye-witnesses do not inspire any confidence to establish the fact that there was any intention on the part of the accused to strike on a vital part, which was sufficient to cause death in ordinary course of nature. Learned advocate Mr. Shah has further submitted that even the manner in which the injuries as shown were inflicted would not cause death in the ordinary course of nature. Learned advocate Mr. Shah has further submitted that even the manner in which the injuries as shown were inflicted would not cause death in the ordinary course of nature. It was pointed out that even if it is believed that there was any intention to cause injuries, taking into consideration the fact that the medical evidence clearly reveals that no injury has been received by the deceased on the vital part of the body, intention on the part of the accused was only to teach a lesson to the deceased and the circumstances and the evidence surrounding the incident, as per the prosecution case, would attract Exception 4 of Section 300 of the IPC, and, therefore, it is submitted that the learned trial Court has wrongly convicted the accused under Section 302 of IPC. Mr. Shah has therefore submitted that it is a case which falls under Section 304 Part-II of IPC and not under Section 302 thereof. In support of his submissions, Mr. Shah, learned advocate for the accused, has relied upon ratio of the following decisions: 3. DALIP Singh Vs. State of Haryana, AIR 1993 SC 2119 wherein the Apex Court, after examining the evidence of witnesses and medical evidence where it was revealed that 3rd to 9th ribs were fractured and deceased died due to shock and hemorrhage on account of injuries on the vital organs namely spleen, liver and testicles, observed as under: "9. Learned counsel, on behalf of DALIP Singh, A-1, further submitted that even if the prosecution version is to be accepted he beat the deceased only on 13-9-86 and it cannot be said that he inflicted any of the serious injuries and consequently he can be convicted only under S. 323, I.P.C. We are unable to agree. Taking the evidence of these three witnesses as a whole it emerges that all these four accused inflicted injuries and without knowledge of A-1 the deceased could not have been detained in custody. Therefore no separate case can be made out so far A-1 is concerned. All the four accused shared the common intention to beat the deceased violently and they must have knowledge that by inflicting such injuries, they were likely to cause the death of the deceased. The High Court has convicted them under Section 304, Part I, I.P.C. as though they intentionally inflicted such injuries which are likely to cause death. All the four accused shared the common intention to beat the deceased violently and they must have knowledge that by inflicting such injuries, they were likely to cause the death of the deceased. The High Court has convicted them under Section 304, Part I, I.P.C. as though they intentionally inflicted such injuries which are likely to cause death. Taking the case as a whole into consideration it must be held that the accused were responsible for inflicting those injuries and they must be attributed the knowledge only that by inflicting such injuries they were likely to cause the death in which case the offence would be one punishable under Section 304, Part II, I.P.C. Accordingly we set aside the conviction of the accused under S. 304, Part I, I.P.C. and sentence of 10 years' R.I. awarded thereunder. Instead we convict each of the accused under Section 304, Part II read with Section 34, I. P.C. and sentence each of them to undergo 5 years' R.I. The other convictions and sentences are confirmed. The sentences are directed to run concurrently." 4. SARMAN and Ors. Vs. State of M.P., AIR 1993 S.C. 400 , wherein the Apex Court on consideration of medical evidence, came to the conclusion that the offence would be under Section 304 Part-II read with Section 149 of the IPC and not under Section 302 read with Section 149 thereof. On consideration of entire evidence observed it was observed as under: "5. Now coming to the nature of the offence it is true that the doctor found a number of injuries. However, it must be noted that even according to the prosecution all the appellants were only armed with lathies and were charged for offence punishable u/S. 147, IPC. 'The doctor, P.W. 19 who conducted post mortem noticed 17 Injuries. Out of them injuries Nos. 1, 3, 10, 11 and 14 were described as incise wounds. Though they resulted in bleeding but no other damage was noticed. It is only injury No. 15 which resulted in a depressed fracture of peristal bone and ultimately proved in membran puncture. Though the doctor in a general way stated cause of death was due to multiple injuries but he has specifically stated that on injury No. 15 he noticed a depressed fracture of paristal bone which individually was sufficient to cause death of the deceased. Though the doctor in a general way stated cause of death was due to multiple injuries but he has specifically stated that on injury No. 15 he noticed a depressed fracture of paristal bone which individually was sufficient to cause death of the deceased. In these circumstances question that arises is whether all the other accused also responsible for the death of the deceased, the prosecution has not explained, as to how the deceased received incise wounds though they are simple. The prosecution case in general is that all of them were found with lathies. Nobody has stated that which of them caused the injury No. 15 which unfortunately resulted in the death of the deceased. If anyone of the appellants had exceeded the common object and acted on his own, it would be his individual act. In this case unfortunately no witness has come forward as to which of the accused has caused which injury. In these circumstances we find it difficult to award punishment under S. 302/149, IPC. 6.Although post-mortem report says that all the injuries might have caused the death of the deceased but in as much as the accused inflicted injuries with lathies and particularly when they are simple and on non vital parts it cannot be said that their object was to kill the deceased. They may have knowledge that the blows given were likely to cause death." Rattan Singh Vs. State of Punjab, AIR 1988 SC 2147 wherein the Apex Court observed that the accused persons were armed with various instruments of offence like barchi, ballam, lathis and dang. It was also found that the deceased had received as many as 13 injuries resulting into his death. 'Such injuries on the person of the deceased were either on hands or on feet and at best what could be attributed to them could be injuries resulting in fractures. Thus, considering the role of the accused persons, the Hon'ble Supreme Court found, "None of these two appellants could be convicted for causing injuries individually which could make out an offence under Section 302. At best they could only be convicted under Section 325 and maximum sentence under Section 325 is seven years. Jagir Singh Vs. Thus, considering the role of the accused persons, the Hon'ble Supreme Court found, "None of these two appellants could be convicted for causing injuries individually which could make out an offence under Section 302. At best they could only be convicted under Section 325 and maximum sentence under Section 325 is seven years. Jagir Singh Vs. State of Haryana, (2003) 9 SCC 72 , wherein the Apex Court, on consideration of the prosecution evidence and more particularly the medical evidence, took the view that offence would be under Section 326 read with 34 of IPC and not under Section 302 and observed as under: "4. This evidence is not challenged by the prosecution, which shows that the appellants could neither have had the knowledge that their attack would, in the normal course, cause the death of the deceased nor would they have had the intention to cause the death. In this regard, if we take into consideration the motive suggested by the prosecution for the crime, the said motive was not such that the appellants would have thought of committing the murder of the deceased. According to the prosecution, there was some dispute between the deceased and the appellants as to some assault about 3 or 4 years before the date of incident and in regard to this the appellants attacked the deceased. But it should be seen that there was no other incident between the said assault and the date of incident. Therefore, it is reasonable to believe that the appellants would not have had the intention to cause the death of the deceased with such a weak and stale motive." 5. HAMLET @ Sasi and Ors. Vs. State of Kerala, (2003) 10 SCC 108 wherein the Apex Court, while considering the nature of the offence, emerging from the facts proved by the prosecution, clearly observed that, offence would not be one under Section 302 read with Section 149, but can be under Section 326 read with 34. It was observed as under: "18. But then the question would be: What was the common intention shared by these accused persons in the attack on the deceased? It was observed as under: "18. But then the question would be: What was the common intention shared by these accused persons in the attack on the deceased? While the learned Counsel for the appellant contended that from the nature of injuries and the manner in which the assault was committed, it could be nothing more than to cause hurt to the deceased, whereas the learned Counsel for the State contended that it is clear from the injury No. 4 suffered on the head of the deceased that all these persons had the knowledge that by such injuries, the victim would suffer death in the normal course, but in spite of the same, all these accused proceeded to attack the deceased, causing more injuries, which would show that each one of these persons had acted in furtherance of a common intention to cause death of the deceased. 19. We have noted that the medical report showed that the deceased had suffered about 14 injuries out of which injury Nos. 1 and 2 caused fractures and injury No. 4 was a head injury leading to subdural haemorrhage on the left part of the temporal lobe which seems to be the most serious of all wounds which ultimately led to the Yugine's death. After examining the entire prosecution evidence, we notice none of these accused used any deadly weapon carried by them on any vital part of the body like the head. Injury No. 4 which led to the death of the deceased was caused by the fall caused by A-1. It is very difficult to come to the conclusion if really A-1 had the intention to kill Yugine, he would have only thrown him to the ground without attacking him the iron rod available to him to be used. The fact that he only kicked the deceased after the fall also supports this inference of ours. Similarly, even according to the prosecution A-2 to A-4 used the iron rods and oars to hit the deceased on his limbs only and not on any vital part of the body. All these facts show that these appellants did share a common intention, the same was only to cause grievous hurt to the deceased and not to cause his death." 6. AS against this, learned A.P.P. Mr. Sejpal, has opposed the present appeal. All these facts show that these appellants did share a common intention, the same was only to cause grievous hurt to the deceased and not to cause his death." 6. AS against this, learned A.P.P. Mr. Sejpal, has opposed the present appeal. He submitted that PW-16, Yunusbhai Osmanbhai Pathan, who is brother of the deceased and an eye-witness, was himself injured and, therefore, his version establishes the fact that all the accused had constituted an unlawful assembly, armed with deadly weapons like iron pipe, sword, gupti and dharia and had themselves come on motorbike and attacked the deceased in presence of his brother (PW-16) and even though the deceased tried to run away from his tea stall, all the five accused ran after him and intercepted him and assaulted with deadly weapons with their possession and, therefore, all the ingredients of Section 300, "thirdly" of the IPC are proved by the prosecution and also on the basis of medical evidence, it is clear that the accused had an 'intention' and 'motive' to cause injury which was sufficient to cause death in ordinary course of nature. Learned A.P.P. also taken us through the medical evidence, more particularly PW-24, Dr. Bhalchandra Narmadashankar Joshi (Exh.60), who treated the injured witness (PW-16), and oral testimony of PW-31, Dr. Jyotiben Nathabhai Mehta, (Exh.70), who performed autopsy of the deceased. Learned A.P.P. has further harped that even though the injuries were not found on the vital part of the body, considering the cause of death which is shock due to hemorrhage due to multiple fractures on both upper and lower extremities, as mentioned in the postmortem report and as opined by PW-31, the injuries inflicted by the accused were sufficient enough to result into death in ordinary course of nature. Learned A.P.P. has also taken us through the other oral as well as documentary evidences on record and submitted that the learned trial Court has rightly convicted the accused and has, therefore, urged that the appeal requires to be dismissed. We have examined the record and proceedings in context of the rival submissions made by both the sides. At the outset, we record that since involvement of the accused-appellants is not in dispute, we restrict our discussion on the question, 'what is the nature of offence committed by the appellants ?' so far as death of the deceased-Hayatbhai is concerned. We have examined the record and proceedings in context of the rival submissions made by both the sides. At the outset, we record that since involvement of the accused-appellants is not in dispute, we restrict our discussion on the question, 'what is the nature of offence committed by the appellants ?' so far as death of the deceased-Hayatbhai is concerned. To appreciate the contentions raised, it is worthwhile to note that as per medical evidence, PW-31 has noted that the deceased had received the following injuries: "(1, 2, and 3) right arm just above elbow on post. surface, there are 3 small incised wounds of 4 mm x 4 mm x 2 mm. [All are of equal size]. Size with sharp and clean-cut margins and slight oozing of blood seen from wound site. (4) a small 2 mm x 2 mm x 1 mm wound on right index finger Dorsal Surface with swelling and bending of finger at 1st metacarpal joint margins of which are sharp and clean cut (incised). (5 and 6) two small 2 mm x 1 mm x 1 mm incised wound with clean cut margins one each on left little and middle finger. (7) one wound of incised type 4 mm x 2 mm x 2 mm size with clean-cut margins and sharp edges on Shin of right Tibia just below right knee. (8) a wound just above left ankle anteriorly horizontal 3 cm x 4 mm x 4 mm size with sharp and clean-cut margins and sharp edges on Shin of right. All above (1) to (8) wounds are slightly oozing. The aforesaid multiple injuries are found on the body of the deceased, admittedly not on vital part of the body. Similarly, even though the oral evidence adduced by the prosecution indicates that A2, A3 and A4 have inflicted sword, gupti and dharia blows on the body of the deceased none of the injuries found on vital part of the body. 7. Similarly, even though the oral evidence adduced by the prosecution indicates that A2, A3 and A4 have inflicted sword, gupti and dharia blows on the body of the deceased none of the injuries found on vital part of the body. 7. THOUGH involvement of the appellants is not in dispute, it is note worthy that after the incident, when the deceased was being shifted in a rickshaw from the scene of occurrence to the hospital, PW-16 stopped the rickshaw near garage of PW-23-Ashrafbhai Sattarbhai and it is revealed from the oral testimony of the said PW-23 that when he went near the rickshaw he found that the deceased was bleeding and there were injuries on his hands and legs and on enquiring about the same the deceased declared before him that he has been beaten by the present five appellants-accused. It thus transpires that the deceased himself declared about the occurrence of the incident alleged before PW-23 that he was assaulted by the accused and, therefore, the prosecution has been able to prove the involvement of the present appellants-accused in the crime. From the evidence on record the prosecution has been able to establish the fact that the accused, because of previous quarrel on 03.08.2001 i.e. just two days before the date of incident, had 'motive' to commit the crime. There is history of acrimony and ill-will between the parties because of the previous incident and the strained relations provided the 'motive' of the crime. 8. WE find that the injuries upon the deceased are fracture of bones of both arms and legs and are extensive and grievous in nature. Because of fracture of bones of left leg, right leg and the extensive damage has been done by the limbs of the deceased and can safely be inferred that despite the assailants' choosing non-vital part of the body for inflicting those injuries, they must be attributed the knowledge that by their concerted act they were likely to cause death of the deceased. However, the fact remains that in the oral testimonies PW-16 (Exh.47) as well as PW-23 (Exh.59), before whom the deceased had described the incident in a way in the form of oral declaration, have also categorically stated that while the deceased was bleeding they had noticed injuries on his hands and legs. However, the fact remains that in the oral testimonies PW-16 (Exh.47) as well as PW-23 (Exh.59), before whom the deceased had described the incident in a way in the form of oral declaration, have also categorically stated that while the deceased was bleeding they had noticed injuries on his hands and legs. In view of the above, the accused were armed with deadly weapons like sword, gupti and dharia. However, the nature of injuries indicate that if the accused had really intended to commit murder, they would have given injuries on vital part of the body of the deceased; whereas in the instant case, all the injuries were on non-vital part of the injured body. Intention to cause death of the victim therefore cannot be ruled out. The accused had attacked the deceased with an intention to commit a crime obviously of a lessor gravity but with knowledge that the injuries caused by them are likely to cause his death. In light of the fact that no injuries are found on the vital part of the body, the accused are found to have committed the offence of culpable homicide not amounting to murder punishable under Section 304 Part-II of the IPC. Thus, on above analysis, the accused can be held guilty for the offence punishable under Section 304 Part-II read with Section 149 of the IPC and not under Section 302 thereof. 9. CONSIDERING the ratio of decisions relied upon by learned advocate appearing on behalf of the accused referred to above, a picture emerges that none of the injuries attributed to the accused are found on vital part of the body to point out that intention to cause death was absent. The facts still remain that the accused shared the common intention and knowledge that the injuries inflicted may cause death of the victim and would be liable to be fastened with liability for the offence punishable under Section 304 Part-II of the IPC. 10. FOR the foregoing reasons, we are of the opinion that all the accused are guilty of offence of culpable homicide not amounting to murder and not murder. We, therefore, alter the conviction of all the appellants-accused from one under Section 302 read with 149 of the IPC to one under Section 304 Part-II read with Section 149 of the IPC and sentence them to undergo R.I. for six years with no change in fine. We, therefore, alter the conviction of all the appellants-accused from one under Section 302 read with 149 of the IPC to one under Section 304 Part-II read with Section 149 of the IPC and sentence them to undergo R.I. for six years with no change in fine. There shall be no change in conviction and sentence in respect of the other offences. All sentences to run concurrently. Appeal is allowed to the above extent.