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2014 DIGILAW 539 (GUJ)

Dhirubhai Oghadbhai Daslaniya v. State of Gujarat

2014-04-17

JAYANT PATEL, Z.K.SAIYED

body2014
JUDGMENT : Jayant Patel, J. Since all the appeals arise from the common judgment and order dated 22.03.2010 passed by learned Sessions Judge in Sessions Case No. 93 of 2006, they are being considered simultaneously. 2. As per the prosecution case, Twinkleben P.W.1 filed complaint on 12.09.2006 with Police Sub Inspector of Lathi Police Station camp Shakhpur and stated that on 11.09.2006 when she and her husband with Gunvantbhai P.W.7 after travelling from Surat to Shakhpur village had gone to the residence of Raghavjibhai Himmatbhai Balar (hereinafter referred to as “A-1”) for collecting key, and at that time, A-1 got excited, and declined to give the key on the ground that the father of Rajesh Kalubhai (hereinafter referred to as “deceased”) had not given share in the property, and therefore, key was not to be given, and he started abusing. At that time, the deceased told A-1 that he may not worry and after his father comes from America, they will sit and the dispute will be settled and key be given to him. At that time, A-1 got excited and he had given fist blows to the deceased. The complainant intervened and saved the deceased and the deceased had run toward outside. At that time, A-1 followed the deceased with knife by saying that he will see how the key was demanded, and when the deceased reached on backside of the house of Oghadji, A-1 caught the deceased and gave 3-4 knife blows and the deceased had fallen down, and thereafter, A-1 had run away with the knife. The deceased thereafter had got up and walked about 10 steps, and he had again fallen down, and thereafter he could not speak. The deceased was taken to the hospital and was reported as dead. The said complaint was investigated by the police and thereafter charge-sheet was filed against A-1, Dhirubhai Oghadbhai Dalsaniya (hereinafter referred to as “A-2”), Nirmalaben wife of Raghavjibhai Himmatbhai Balar (hereinafter referred to as “A-3”) and Nileshbhai Raghavjibhai Balar (hereinafter referred to as “A-4”). The case was committed to the Sessions Court being Sessions Case No. 93 of 2006. Learned Sessions Judge framed the charges. The prosecution, in order to prove the guilt of the accused, examined 18 witnesses the details of whom are mentioned by the learned Sessions Judge at para 4 of the judgment. The case was committed to the Sessions Court being Sessions Case No. 93 of 2006. Learned Sessions Judge framed the charges. The prosecution, in order to prove the guilt of the accused, examined 18 witnesses the details of whom are mentioned by the learned Sessions Judge at para 4 of the judgment. The prosecution also produced the evidence of 31 documents, the details of which are mentioned by the learned Sessions Judge at para 5 of the judgment. Thereafter, learned Sessions Judge recorded the statements of the accused under Section 313 of the Code of Criminal Procedure, wherein, the accused denied the evidence against them, and in further statement, A-1 stated that Twinkleben P.W.1 was not present and she was got up as eyewitness, and it was further stated that the incident had happened between 9.30 a.m. to 9.45 a.m., when A-1 was at his residence. At that time, his wife and his father were also present. During the said period, the deceased, who was the son of his brother, had come and asked to give key from the father of A-1. However, he was not to follow since he was aged and then the deceased started abusing his father. A-1 told him not to abuse his grandfather, but he got excited, and started abusing A-1 and started to give blows with the knife. During the said period, there was scuffle and one blow was given on the left thigh of A-1, and there was bleeding. Thereafter, in the said scuffle, they had fallen down from Verandah-Otta (upper portion) to lower portion, and the second blow was given at the right hand, and during the said scuffle, the deceased sustained injuries of the knife and knife was left there. Thereafter, A-1 had gone to Lathi Government Hospital, and he was admitted and had also filed a complaint against the deceased. He had no knife as the knife was left inside the Verandah of the house. A-1 further stated that he wanted to examine A-3 as his witness, and police constable of Lathi Police Station, wherein the complaint was registered. A-2, in his further statement, did not say anything, but A-3 in her further statement stated that she had been wrongly involved as accused. She had seen the incident, and she would state on oath the facts before the Court. A-2, in his further statement, did not say anything, but A-3 in her further statement stated that she had been wrongly involved as accused. She had seen the incident, and she would state on oath the facts before the Court. In addition to the above, additional further statement in writing was submitted by A-3 stating more or less the same as stated by A-1 and further stated that the incident was seen by her and her father-in-law Himmatbhai Balar, who had expired. It was also stated that the panchnama at Exh.100 was got up and she had been wrongly involved as accused, so that she may not state the facts before the police as eyewitness. She also stated that she had not destroyed any evidence and she had not given any clothes with the blood to A-2, and both were wrongly involved by the police. It was also stated by her that knife Article No. 15 was left inside Verandah, but the police took away from the said place. A-4 in his further statement only stated that he was wrongly involved in the case. It appears that thereafter, defence examined the two witnesses, one was A-3 and another was Narendrabhai D. Vaghela of Lathi Police Station, who registered the complaint of A-1. 3. Learned Sessions Judge thereafter heard the prosecution and the defence and learned Sessions Judge found that prosecution has been able to prove the case against A-1 for the offence punishable under Section 304 Part 1 and against A-2, A-3 for the offence punishable under Section 201 read Section 34 of the Indian Penal Code. Learned Sessions Judge further found that prosecution has not been able to prove the case against A-4. Learned Sessions Judge thereafter heard the prosecution and the defence for sentence and then imposed the sentence upon A-1 for 10 years rigorous imprisonment with fine of Rs. 2,000/, and further six months simple imprisonment for default in payment of fine, for the offence punishable under Section 304 Part-I of the Indian Penal Code. Learned Sessions Judge imposed the sentence upon A-2 and A-3 for two years rigorous imprisonment with fine of Rs.1,000/, and further three months simple rigorous imprisonment for default in payment of fine, for the offence punishable under Section 201 of the Indian Penal Code. Learned Sessions Judge acquitted the accused for other charges. Learned Sessions Judge imposed the sentence upon A-2 and A-3 for two years rigorous imprisonment with fine of Rs.1,000/, and further three months simple rigorous imprisonment for default in payment of fine, for the offence punishable under Section 201 of the Indian Penal Code. Learned Sessions Judge acquitted the accused for other charges. It appears from the judgment that fine was paid on the same day by the respective accused. It is under these circumstances, present appeals before this Court. 4. We may record that Criminal Appeal No. 657 of 2010 is preferred by A-2 and A-3 against conviction and sentence imposed upon them, whereas, Criminal Appeal No. 813 of 2010 has been preferred by A-1 against conviction and sentence imposed upon him, and Criminal Appeal No. 881 of 2010 has been preferred by the State against A-1 for acquittal under Section 302 of the Indian Penal Code, whereas, Criminal Appeal No. 1560 of 2011 has been preferred by Twinkleben P.W.1, original complainant, against all the accused challenging acquittal granted by the learned Sessions Judge for the charged offences. 5. Learned counsel Mr. Lakhani appearing for all the accused in the respective appeals of the appellants and learned advocate Mr. A.D. Shah appearing for the original complainant and learned Additional Public Prosecutor Mr. K.L. Pandya for the State in all the appeals, have taken us through the entire evidence on record. We have considered the judgment and reasons recorded by the learned Sessions Judge. We have also considered the record and proceedings of the case. 6. As per the prosecution case, the important evidence for showing the guilt of A-1 for the offence punishable under Section 302 of the Indian Penal Code and for showing the guilt of A-2 and A-3 for the offence punishable under Section 201 of the Indian Penal Code can be summarized as under: 7. Twinkleben (P.W.1) (Exh.84) is the complainant and she has supported the case of the prosecution for witnessing the incident of heated, exchange of words, the excitement, scuffle to some extent and then of giving blows by A-1 with knife to the deceased. Twinkleben (P.W.1) (Exh.84) is the complainant and she has supported the case of the prosecution for witnessing the incident of heated, exchange of words, the excitement, scuffle to some extent and then of giving blows by A-1 with knife to the deceased. The defence in the cross-examination of the said witness has not been able to bring about any material contradiction, but an attempt on the part of the defence was to show that the incident of scuffle and the injury caused was inside the Verandah/compound of the house and not at the place behind the boundary of the house of Oghadjibhai. In the cross-examination of Twinkleben, she has stated by narration of the incident, which was witnessed by her and she has also stated that A-1 did not catch hold of her, nor any fist blow was given by A-1 nor any injury was caused, nor any threat was given by A-1 to her. On the overall reading of evidence including that of cross-examination, it is not possible for us to find that she did not witness the incident or that she was got up as eyewitness as sought to be canvassed on behalf of the accused. She has identified the clothes and knife which was used for causing injuries. 8. The second eyewitness, as per the prosecution case, is Gunvantbhai (P.W.7) (Exh.112). His testimony shows that he had witnessed the incident when the deceased came out running from the house, and A-1 was running behind him and he had seen that when the deceased reached behind the house of Oghadjibhai, A-1 caught the deceased and gave blows with the knife. As per the said witness, Twinkleben P.W.1 was also present. As per his statement, the deceased had fallen down, and thereafter he got up and walked for about 7-8 steps, and he again fallen down and during the said period, A-1 had run away with the knife. The defence in the cross-examination has not been able to bring about any material contradiction. On the contrary, in the cross-examination of the said witness, it has come out that he had seen the blood on the clothes of the deceased, but he had not seen the blood on the clothes of A-1. The defence in the cross-examination has not been able to bring about any material contradiction. On the contrary, in the cross-examination of the said witness, it has come out that he had seen the blood on the clothes of the deceased, but he had not seen the blood on the clothes of A-1. It is true that in the cross-examination, he has not been able to state the exact injury caused on a particular part of the body, but, in our view, such would not result into discarding his evidence as eyewitness to the incident of causing injury by A-1 to the deceased, more particularly, when he had stated that indiscriminate blows were given by A-1 to the deceased with the knife and such part has not been contradicted in the cross-examination. Additionally, presence of Sunil P.W.8 Exh.113 is proved by the prosecution to the extent that he heard shouting and he reached the market and saw that near Oghadjibhai's house, the deceased was lying injured and A-1 was having the knife and he was talking in heated tone. His testimony supports the case of prosecution to the extent that he had travelled in bus in Shamla Travel from Surat together with the deceased, his wife and one unknown person who as per the prosecution was Gunvantbhai P.W.7. 9. The medical evidence of the Doctor Dalpat P.W.10 Exh.118 supports the case of the prosecution for the injury caused on the body of the deceased. As per the said Doctor, when postmortem was performed, there were four injuries of incised wound and others were abrasions. As per opinion of the Doctor, injury No. 1 and 2 could be caused with sharp cutting weapon and injury No. 2 had reached upto Ventricate and there was stab wound at right ventricle of 3 cms x 1 cm x 2 cms. As per the evidence of the said doctor, injury No. 2 was fatal and was sufficient to cause death in natural course. The case property Article No. 15 was shown to him and he opined that injury No. 1 to 4 could be caused with the said knife. In the cross-examination, he has not accepted the suggestion of the defence that if the person was holding knife and had fallen down 34 feet, injury No. 2 could be caused. The case property Article No. 15 was shown to him and he opined that injury No. 1 to 4 could be caused with the said knife. In the cross-examination, he has not accepted the suggestion of the defence that if the person was holding knife and had fallen down 34 feet, injury No. 2 could be caused. Even for scuffle, the said witness has opined that if the person himself is holding the knife, the injury would not be such deep as described in injury No. 2. He has categorically opined that injury No. 2 could not be caused in scuffle. The contents of postmortem note Exh.124 are proved by the prosecution. Through the evidence of Raisingh Sursingh P.W.5 Exh.105, the panchnama for discovery of the weapon knife at the instance of A-2 is proved. The blood spots are found on the knife and F.S.L. Report (Serological Report), Exh.148 shows that blood group matched to the deceased. The contention of the defence is that A-1 had blood group of “A” like that of the deceased and the injury was also received by A-1 with the knife. However, in our view, the evidence of prosecution, in this regard, is to be considered and appreciated in light of the other evidence led by the prosecution, and it cannot be discarded on a mere ground that A-1 had the same blood group as that of the deceased. The other connecting evidence led by the prosecution is the discovery of clothes through Premji Kanji Daslaniya P.W.9 Exh.115. He is an independent witness having no enmity with his cousin brother Dhirubhai A-2. In his testimony, it has come out that A-2 had received clothes given by A-3 for washing purpose and when he had gone to the agricultural field, he had seen such clothes in the bag with the blood. A-2 had told him that when he had gone to return the bag, A-3 or A-1 (father of Himmatdada) was not there and hence he had brought the bag. A-2 had conveyed to him that he had given the bag to Lalji (son of the said witness) and knife was taken out. As per the said witness, A-2 conveyed to Lalji that after inserting 24 stones, the same may be thrown in Well and his son had thrown the said bag containing clothes with the blood in the Well. A-2 had conveyed to him that he had given the bag to Lalji (son of the said witness) and knife was taken out. As per the said witness, A-2 conveyed to Lalji that after inserting 24 stones, the same may be thrown in Well and his son had thrown the said bag containing clothes with the blood in the Well. The clothes were shown to him as case property Article No. 16 and he has identified the same and he has also identified that it is the very bag and he has also stated that the very items were thrown by his son. In his cross-examination, he has confirmed as the same knife when he was shown the case property Article No. 15. He denied that he had not seen the knife earlier. On the contrary, in his cross-examination, it has transpired that when he had gone for labour for laying pipeline, he had seen the said knife which was used by A-1 for cutting the pipeline. The evidence, in cross examination of the said witness, in our view, completely rules out the theory of the defence that the knife belonged to the deceased and the deceased had taken out the knife for giving blows upon A-1. On the contrary, in the cross-examination, it has transpired that the knife belonged to A-1 and A-1 had used the knife for cutting the pipeline in past. In our view, there is no reason to disbelieve the testimony of the said independent witness. If the evidence of the said witness P.W.9 is considered, it can be said that the prosecution has been able to prove that the clothes were given by A-3 to A-2 and bag containing such clothes was thrown in the Well and thereafter, A-2 had left the knife behind the Temple when he had gone for toilet. Subsequently, at the instance of A-2, the knife was also discovered and discovery is duly proved by panchnama Exh.106. Through the testimony of the said panch Raisingh P.W.5, the prosecution has proved the recovery of bag containing clothes from the Well which was thrown by Lalji. Damji Manji, P.W.4 Exh.103 was panch for the recovery panchnama Exh.104. The content of the panchnama is duly proved. Through the testimony of the said panch Raisingh P.W.5, the prosecution has proved the recovery of bag containing clothes from the Well which was thrown by Lalji. Damji Manji, P.W.4 Exh.103 was panch for the recovery panchnama Exh.104. The content of the panchnama is duly proved. When the bag was recovered, it was found that the same was a plastic bag and inside the said bag, the clothes containing the black spots of blood were also found. The scientific evidence of F.S.L. Report (Serological Report) Exh.148 shows the blood on the clothes was of “A” group matching to the blood group of the deceased. The testimony of the first investigating officer Maganbhai Haribhai P.W.15 Exh.137, supports the case of the prosecution for receiving of the complaint. The testimony of Ghanshyamsingh Gohil P.W.17 Exh.141 supports the case of the prosecution and the defence, in the cross-examination, has not been able to bring about material contradiction on the aspect of recovery and discovery made of various case properties, but an attempt on the part of the defence goes to show that A-3 was wrongly involved as offender in order to frustrate the evidence of A-3 as eyewitness. It has come out in the cross-examination of the said witness that cross complaint was filed by A-1 with Lathi Police Station, but he has not investigated further. The testimony of Ajitsingh P.W.16 Exh.140, recovery of clothes of A-1 when he was admitted in the hospital at Lathi, has been proved by the prosecution. In the panchnama, for such purpose, at Exh.110, has come on record through the evidence Ashokbhai Parshottambhai P.W.6, Exh.107. 10. The aforesaid evidence shows heated exchange of words, abuse between A-1 and the deceased, and even fist blows and thereafter, the deceased came out from the house by running and A-1 followed him with the knife and then, on the backside of the house of the Odhadji, blows of the knife were given by A-1 and thereafter, A-1 ran away, but the deceased again got up and walked for some steps and then fell down. Further, the evidence shows that A-1 took out the clothes and gave it to A-3 with knife and A-3, in turn, gave it to A-2 who retained the knife, but gave the bag containing the clothes to Lalji for throwing in the Well and A-2 left the knife on the backside of Temple. Further, the evidence shows that A-1 took out the clothes and gave it to A-3 with knife and A-3, in turn, gave it to A-2 who retained the knife, but gave the bag containing the clothes to Lalji for throwing in the Well and A-2 left the knife on the backside of Temple. It has also come out that A-1 then went to Lathi where he got admitted in the dispensary and the clothes recovered were containing blood. Through the evidence of Pandya Harishchandra (P.W.2) (Exh.99), the panchnama (Exh.100), containing blood at two places behind the resident of Oghadji has been proved for supporting the case of the prosecution. 11. The defence witness P.W.1-Nirmalaben (Exh.167) in her Examination-in-Chief had stated that knife was taken out by the deceased and he gave blows on the thigh of her husband (A-1) and when A-1 caught both the hands of the deceased, they had fallen down in scuffle and knife of the deceased had hit himself and the knife was left inside the house and she has identified the knife as case property (Article No. 15). Thereafter, the knife was taken away by the police. The cross complaint filed by A-1 has come on record, through the evidence of Narendrasingh (P.W.2) (Exh.187). As per the said complaint, the incident is stated to have happened inside the compound of residence of A-1 and the injury was caused to the deceased. However, through the evidence of Ashokbhai (P.W.6) (Exh.107), the panchnama (Exh.109) for the place of offence has been proved and no blood spot is found from the house of A-1. Further the panchnama (Exh.109) was drawn in presence of Nirmalaben A-3. She did not disclose any such fact before the panchas. Another important aspect is that as per the cross complaint filed by A-1, injury caused is admitted in the said scuffle by self defence. The nature and size of the injury upon the body of A-1 have come on record through M.L.C. Report Exh.152 and as per the said witness, the incised wound over left thigh of 11/2 cm x 1/1/2 cm was about 1-1/2 inch on the left thigh. The defence in their evidence has not examined the Doctor, who has issued the certificate. But the fact remains that the said certificate was exhibited at Exh.152 and the same has been brought on record. The defence in their evidence has not examined the Doctor, who has issued the certificate. But the fact remains that the said certificate was exhibited at Exh.152 and the same has been brought on record. The aforesaid evidence further shows that A-1 received minor injury of 1-1/2 cm on his left thigh and as per the defence, the said injury was received by him in the scuffle with the deceased. 12. Mr. Lakhaini, learned counsel appearing for A-1 raised the contention that investigation is dishonestly carried out and has not been carried out to find out the truth. It has been submitted that cross complaint made by A-1 has not at all been investigated, and as per him, the Investigating Officer has gone to the extent of concocting the evidence to implicate A-2, A-3 and A-4 for the crime. As per Mr.Lakhani, learned counsel, Nirmalaben, A-4 was eyewitness to the incident, but instead of recording her statements as eyewitness, the police has wrongly implicated her for destroying of the evidence. He submitted that such would be fatal to the case of prosecution. 13. The examination of the aforesaid contention shows that it is true that the cross-complaint has not been investigated by the Investigating Officer, but even if contents of the cross complaint are considered as it is, the matter can further be examined with the evidence of other witnesses as led by the prosecution. In the cross complaint of A-1, three aspects are referred: (1) for abuse by deceased to the father of A-1 Himmatdada and thereafter, there was heated exchange of words and altercation, (2) deceased took out the knife and gave blows upon A-1 and A-1 got injuries, and thereafter there was further scuffle and they fell down from Verandah to lower portion of Verandah, and (3) when A-1 caught both the hands of the deceased, knife hit the deceased himself and they had fallen down and the injury was caused to the deceased. The evidence as referred to here in above led by the prosecution shows that no blood whatsoever was found inside the house or compound of the accused and the said panchnama was prepared in presence of A-3, and she also did not say before the panchas when the panchnama was prepared that there was any blood spots. The evidence as referred to here in above led by the prosecution shows that no blood whatsoever was found inside the house or compound of the accused and the said panchnama was prepared in presence of A-3, and she also did not say before the panchas when the panchnama was prepared that there was any blood spots. On the aspect of heated exchange of words and abuses between A-1 and the deceased, the prosecution case is more or less the same that it had initiated inside the house of A-1. However, for causing injury and/or receiving injury may be by A-1 or may be by the deceased, but the fact remains that blood is not found inside the house and such would make the contents of the cross complaint of the incident of causing injury inside the house as unbelievable. Further, it has come on record through the reliable evidence of the prosecution that blood is found at two places, but on the backside of the house of Oghadji. The say of eyewitness examined by the prosecution that injury received by the deceased behind the house of Oghadji is corroborated by the panchanama, and the evidence of panchas for the place of offence, whereas there is no corroborative piece of any evidence for showing that the incident of causing injury or receiving injury had happened inside the compound or house of A-1. Further, if the evidence of Doctor Dalpat Parmar, P.W.10, Exh.118 is considered being an expert, he has categorically denied that if the injury is received on account of fall, the nature of the injuries will not be as was found on the body of the deceased, and, more particularly, injury No. 2. Further, not only that, in the cross complaint, there is a reference to one injury received by the deceased in the scuffle, whereas, postmortem note shows that more than one injury is found on the body of the deceased. Injury No. 2 is deep but from the backside and other injuries are on the backside of hands of the deceased. Such injury even if one wants to get inflicted through himself may not be possible in normal circumstances even if reasonable prudence is applied and the said aspect is also getting support from the opinion of expert Doctor Dalpat, P.W.10, Exh.118. Such injury even if one wants to get inflicted through himself may not be possible in normal circumstances even if reasonable prudence is applied and the said aspect is also getting support from the opinion of expert Doctor Dalpat, P.W.10, Exh.118. Under these circumstances, we find that if the contents of the cross complaint are considered in light of the other evidence as it has come on record through the witnesses examined by the prosecution, it transpires that the contents of the cross complaint for the incident of causing or receiving injuries inside the house and for injuries being received by the deceased on account of both hands of the deceased were caught by A-1 are not, in any manner, getting support nor could be termed as believable after applying reasonable prudence. Under these circumstances, we find that mere non-investigation by the Investigating Officer to the cross complaint filed by A-1 cannot be treated as fatal to the case of the prosecution. Hence, contention cannot be accepted. Other contentions raised for concoction of evidence by the Investigating Officer or wrong implication of A-2, A-3 and A-4 for the alleged offences, in our view, can be examined while considering the case of the prosecution. It is hardly required to be stated that merely because one is eyewitness to the incident, but subsequently, found to have been involved in destroying of any evidence, such eyewitness would not get away from consequence of commission of offence for destroying of the evidence. In any case, A-3 as D.W.1 has entered the witness box, and while considering the case of the prosecution, the evidence of A-3 can be considered. Therefore, we do not find that merely because A-3 had witnessed the incident but she was shown as the accused for the offence for destroying of the evidence, such would be fatal to the case of the prosecution. 14. Mr. Lakhani, learned Counsel appearing for the appellant next contended that there were two pairs of clothes recovered and discovered by the prosecution and both the pairs, as per the prosecution case, belong to A-1 and the blood was also found from both the pairs. It was submitted that the aspect of a particular pair of clothes put on by A-1, at the time of the incident, remains unexplained by the prosecution. It was submitted that the aspect of a particular pair of clothes put on by A-1, at the time of the incident, remains unexplained by the prosecution. It was submitted that unless the said vital part is explained by the prosecution by reliable evidence, such would be fatal to the case of the prosecution and hence, the benefit be extended to the accused. 15. The contention may prima facie appear to be attractive, but upon close scrutiny, it appears that the first pair, which was put on by A-1 at the time of incident was already handed over by him to his wife with the knife, who in turn, handed over the same to A-2 and A-2, in turn, handed over the pair of clothes to Lalji for throwing in the well and the knife was retained by A-2 and then left behind the temple, which has been discovered at the instance of A-2. The said aspect was established by the prosecution through the testimony of Premji (P.W.9) (Exh.115), father of Lalji and brother of A-2. The discovery of knife, as referred to herein above, was proved by the prosecution through the testimony of Raisinh (P.W.5), who was panch in the discovery panchnama (Exh.106). The time of incident is around 8 O’clock in the morning. It further appears that thereafter at about 11.45 a.m., after a gap of about more than three hours, A-1 got himself admitted in the hospital and filed cross-complaint. Under the circumstances, the possibilities of A-1, after having changed his clothes and putting on another clothes could not be ruled out. If the prosecution had established that the pair, which was put on at the time of incident, was already handed over by A-2 to his wife for giving it to A-2, naturally the second pair of clothes recovered, when A-1 was admitted in the hospital, would be subsequent. Hence, we do not find that such aspect would be fatal to the case of the prosecution as sought to be canvassed. 16. Mr. Lakhani, learned Counsel for the appellant next contended that the injury on the body of A-1 has remained unexplained by the prosecution, inasmuch as the prosecution has admitted the injury, but there is no explanation about the mode and the manner in which the injury was caused and, therefore, such aspect would also be fatal to the case of the prosecution. 17. 17. It is not the case of A-1 that the injury was not sustained by A-1 in the incident, but it is rather a positive case of the defence that A-1 received injury in the scuffle with the deceased. Even as per the prosecution case, there was heated exchange of words and scuffle. Under the circumstances, it cannot be said that the injury has remained totally unexplained. At this stage, we may also make useful reference to the decision of the Apex Court in the case of Hanumantappa Bhimappa Dalavai and anr. v. State of Karnataka, reported at AIR 2009 SC (Supp.) 1588 and more particularly the observations made at paragraphs 9 and 12, which read as under: “9. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar ( AIR 1976 SC 2263 )]. In this case, as the Courts below found there was not even a single injury on the accused persons, while P.W.2 sustained large number of injuries and was hospitalized for more than a month. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must shows that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence. 10. xxx 11. xxx 12. It is to be noted that there were a large number of eye witnesses who also had suffered injuries. P.Ws. 5, 8, 19, 22 and 26 are such witnesses whose version is clear, cogent and credible and there is no reason to discard their version. Trial court and the High Court have rightly relied upon their evidence. Additionally when the factual scenario is tested on the touchstone of legal principles relating to right of private defence are concerned it is clear that the plea is without substance. Above being the position present appeal is sans merit, deserves dismissal, which we direct.” 18. Trial court and the High Court have rightly relied upon their evidence. Additionally when the factual scenario is tested on the touchstone of legal principles relating to right of private defence are concerned it is clear that the plea is without substance. Above being the position present appeal is sans merit, deserves dismissal, which we direct.” 18. We may also refer to another decision of the Apex Court in the case of Mahesh Janardhan Gonnade v. State of Maharashtra, report at AIR 2009 SC (supp.) 428(2) and more particularly the observations at paragraph 46, which read as under: “46. This Court in Krishan and Ors. v. State of Haryana [ (2006) 12 SCC 459 ] held that merely because prosecution has failed to explain injuries on the accused, the same cannot be a solitary ground for doubting the prosecution case, if otherwise, evidence relied upon is found to be credible. In the case on hand, as we are of the view that no ground is made out to disbelieve and discard the evidence of P.Ws. 4, 8 and 16, who are injured and non-injured eyewitnesses and whose evidence is corroborated by other oral and documentary evidence including the medical evidence, therefore non-explanation of simple injury on little finger of the right hand of the appellant by the prosecution is insignificant in the teeth of the overwhelming, cogent, consistent and trustworthy evidence appearing on record against the appellant for holding him guilty of the commission of the offence.” 19. Hence, we are unable to accept the contention that the fact of injury found on the body of A-1 can be said as fatal to the case of the prosecution when the prosecution by other reliable evidence has been able to prove the case against A-1 for causing injury with the knife to the deceased. 20. Mr. Lakhani, learned Counsel for the appellant next contended that the important witnesses namely; Vasantben, Ajuvaliben Lakhabhai, Babubhai, Ramesh, Ganshyam, Jagdish, Saritaben, Suresh and Lalji are not examined by the prosecution, though they were independent witnesses. 20. Mr. Lakhani, learned Counsel for the appellant next contended that the important witnesses namely; Vasantben, Ajuvaliben Lakhabhai, Babubhai, Ramesh, Ganshyam, Jagdish, Saritaben, Suresh and Lalji are not examined by the prosecution, though they were independent witnesses. It was submitted that, therefore, when the prosecution has suppressed important piece of evidence before the Court by non-examination of the aforesaid witnesses or in any case, has not brought on record the evidences of the witnesses, it can be said that the prosecution has not fairly put up all the evidences before the Court and such aspect would be fatal to the case of the prosecution and the accused would be entitled to the benefits thereof. 21. The aforesaid contention of Mr. Lakhani cannot be accepted for the simple reason that it is by now well settled that it is for the prosecution to prove the case against the accused by examining the witnesses and it is not necessary for the prosecution to examine all witnesses. If any important link in showing the guilt of the accused is missing on account of non-examination of any star witness, it might stand on a different footing and different consideration, but if the prosecution has been able to prove the case through eyewitnesses, who were present at the time of the incident, namely; Twinkleben (P.W.1) wife of the deceased and Gunvant (P.W.7) and has been able to prove the injury by medical evidence coupled with the other evidence of discovery of knife and other incriminating material, we do not find that dropping of certain witnesses by the prosecution, as referred to herein above, would be fatal to the case of the prosecution. Hence, the contention fails. 22. Mr.Lakhani, learned Counsel for the appellant lastly contended that even if it is considered for the sake of examination that all evidences led by the prosecution are to be believed and accepted, it would be an offence under Section 304 Part-II of IPC, and it would not be a case for offence under Section 304 Part-I or offence under Section 302 of Indian Penal Code, as sought to be canvassed in the appeal preferred by the State or the original complainant. 23. 23. Whereas Mr.Pandya, learned APP for the State as well as Mr.A.D. Shah, learned Counsel appearing for the appellant - original complainant contended that it was a case for the offence under Section 302 of IPC and not even for the offence under Section 304 Part-I of IPC as held by the learned Sessions Judge. The learned Counsel further submitted that as per the evidence led by the prosecution, which has not been materially contradicted, though abuse or heated exchange of words had taken place inside the house of A-1, but when the deceased started running and came out from the house of A-1, he was followed by A-1 with the knife and was caught and in-discriminating knife blows were given on the vital part of the body of the deceased and hence, it was a case of offence under Section 302 of IPC and the acquittal order by the learned Sessions Judge for the offence under Section 302 of IPC deserves to be set aside and A-1 deserves to be convicted for the offence under Section 302 of IPC. 24. We may refer to the important evidence led by the prosecution in this regard for examination of the contention raised by the learned Counsel appearing for the State and the original complainant as well as for the accused. It has come out in the evidence of the prosecution that the dispute started on account of the demand of key by the deceased and there was resistance by A-1 and thereafter when the deceased insisted for the key, there was heated exchange of words, abuse and provocation on account of the same. It has also come on record that the deceased came out from the house of A-1 and the place, at which the incident had happened i.e. backside of Oghadji’s house, is at the distance of about 60 ft., only. Further the blows were given with the knife on the backside of both the hands, but one injury is from the side portion of the body, which has touched the vital part of the body and was sufficient to cause death in natural course. But at the time when the blows were given, even as per the prosecution case, the deceased was running and the body of the deceased was in motion. But at the time when the blows were given, even as per the prosecution case, the deceased was running and the body of the deceased was in motion. Such would show that the motion of the body of the deceased, while running, may have accelerated the depth of the blow of injury No. 2. It has further come in the evidence that A-1 after giving blows ran away, but the deceased thereafter could get up and walked for about six to seven steps and then he had fallen down and the blood was found at both the places i.e. the place at which the blows were given and the place at which the deceased had fallen down. Such would show that after the provocation had calm down, A-1 went away and it can be said that A-1 did not act in a cruel manner, after the deceased had fallen down by receiving blows from A-1. At this stage, we may make useful reference to the decision of the Apex Court in the case of Rampal Singh v. State of Uttar Pradesh, reported at (2012) 8 SCC, 289 and more particularly the concluding observations made at paragraphs 21 to 25, which read as under: "21. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of this section includes only those cases in which offence is really ‘murder’, but mitigated by the presence of circumstances recognised in the exceptions to section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor, 1151. C. 476 (Refer : Penal Law of India by Dr. Hari Singh Gour, Volume 3, 2009) 22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed. 23. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straight jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused. 24. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused. 24. A Bench of this Court in the case of Mohinder Pal Jolly v. State of Punjab [1979 AIR SC 577], stating this distinction with some clarity, held as under : “11. A question arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause “4thly”, then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Section 304 and not Part I.” 25. As we have already discussed, classification of an offence into either Part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of premeditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the ‘principle of exclusion’. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the ‘principle of exclusion’. This principle could be applied while taking recourse to a two stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, ‘culpable homicide amounting to murder’. Then secondly, it may proceed to examine if the case fell in any of the exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused.” 25. If the facts of the present case are examined further in light of the aforesaid legal position, the incident had resulted on account of the provocation, may be due to dispute for the share of the property and the bodily injury was caused, which was likely to cause death. However, the missing aspect is that there was no premeditation to cause death of the deceased by A-1. No evidence is led by prosecution for any premeditation on the part of A-1 to cause death of the deceased. Under the circumstances, we are of the opinion that the case would fall under Section 304 Part-I of IPC and not under Section 302 of IPC. Even otherwise also the learned Sessions Judge has found that it was a case for the offence under Section 304 Part-I of IPC, may be on different reasoning, but when two views are possible, the view taken by the learned Sessions Judge may not be upset or interfered with in the appellate power in an appeal against the order of acquittal for the offence under Section 302 of IPC, unless the appellate Court is of the view that only possible view is for the offence under Section 302 of IPC. Hence, we find that by examining the matter in either way, it would not be a case for allowing the appeal against the order of acquittal for the offence under Section 302 of IPC, but suffice it to observe that the case could be considered as for the offence under Section 304 Part-I of IPC. Consequently, the contention raised by Mr. Lakhani, learned Counsel for A-1 that the injury was caused with the knowledge that it was not likely to cause death was absent and, therefore, the case may fall for the offence under Section 304 Part-II of IPC cannot be accepted. 26. We may now examine the case put forward by the prosecution against A-2 and A-3. However, before we deal with the evidence in this regard, we may state that the complainant has preferred appeal against the acquittal order passed by the learned Sessions Judge for A-4 and, therefore, we may consider the said aspect before we consider the evidence against A-2 and A-3. 27. We are unable to persuade ourselves for finding that the prosecution had led any material evidence for any conspiracy of causing death of the deceased with the pre-meeting of minds by A-1 and A-4. There is no material evidence led by the prosecution for the conspiracy of disappearance of evidence by pre-meeting of minds between A-4, A-1, A-2 and A-3. As such no reliable evidence is led by the prosecution for involvement of A-4 for the charged offences. In any case, the appellate power of this Court against the order of acquittal granted to A-4 would be limited, inasmuch as even if two views are possible, it would not be a case for interference in exercise of appellate power. Hence, we find that the appeal preferred by the original complainant against A-4 is lacking merit. 28. Concentrating on the aspect of evidence against A-2 and A-3 with A-1, as observed earlier, no evidence is brought on record by the prosecution that there was pre-meeting of mind for conspiracy of causing death of the deceased by A-1. Further, we have held that the incident was initiated on account of provocation and dispute which arose for the demand of the key and share of the property. Further, we have held that the incident was initiated on account of provocation and dispute which arose for the demand of the key and share of the property. As regards the charge of disappearance of the evidence against A-2 and A-3 are concerned, we have already referred to the evidence earlier of Premjibhai P.W.9 Exh.115, to which, prosecution has been able to establish active role played by A-3 to hand over the clothes with the blood and knife to A-2. It is further proved that those clothes of the accused and the knife being incriminating material after having received by A-2 from A-3, A-2 had separated the knife and gave clothes to Lalji for throwing it into the Well and the knife was left by A-2 behind the Temple. The prosecution has been further able to establish that thereafter, the knife which was used for causing injuries to the deceased by A-1 has been discovered through the testimony of Raisingh P.W.5 Exh.105 and the evidence of panchnama for discovering of knife Exh.106 is duly proved. Therefore, it appears that the conviction made by the learned Sessions Judge of A-2 and A-3 for the offence under Section 201 of the Indian Penal Code cannot be said as erroneous and we find that the conviction made by learned Sessions Judge of A-2 and A-3 for the offence under Section 201 of the Indian Penal Code deserves to be confirmed. 29. The aforesaid would take us to examine the aspect of sentence imposed upon the respective accused who have been found guilty and who have been convicted by the learned Sessions Judge. A-1 has been convicted for the offence under Section 304 Part 1 and the sentence has been imposed of 10 years rigorous imprisonment with fine of Rs.2,000/and further 6 months simple imprisonment for default of payment of fine. We do not find that considering the facts and circumstances of the case, the sentence imposed upon A-1 by learned Sessions Judge calls for any interference. On the aspect of sentence imposed upon A-2 and A-3, it was submitted by learned counsel appearing for the appellants accused that A-3 is the wife of A-1 who is principal accused and A-2 was the employee of A-1. On the aspect of sentence imposed upon A-2 and A-3, it was submitted by learned counsel appearing for the appellants accused that A-3 is the wife of A-1 who is principal accused and A-2 was the employee of A-1. Considering the position of A-3 being wife and A-2 being servant, this Court may take lenient view and the period of sentence already undergone in jail as under trial prisoner may be treated as sentence imposed upon A-2 and A-3. We have called for the jail records and as per the jail report, it appears that A-3 has undergone the period of about 3(three) months in jail as under trial prisoner whereas A-2 has undergone period of about 10(ten) months in jail as under trial prisoner. As per the provisions of Section 201 of the Indian Penal Code if causing disappearance of the evidence is in respect of the capital offence, the punishment may extend to 7(seven) years with fine and if it is the offence where the punishment is with imprisonment for life or the imprisonment which may extend to 10(ten) years, the sentence may extend to 3(three) years with fine. But if the offence is punishable with the period of less than 10(ten) years, the sentence may be 1/4 part of the longest of the imprisonment or with fine or both. A-1 has been convicted for the offence under Section 304 Part 1 and the sentence imposed is of 10(ten) years even if it is considered that the case would fall in the second category where the offence is punishable with the imprisonment of life or which may extend to 10(ten) years, term of sentence may extend to 3(three) years with fine. Against the same, learned Sessions Judge has imposed the sentence of 2(two) years with fine upon A-1 and A-2. In our view, even if it is the contention raised with the capacity of A-3 as wife and A-3 as servant are concerned, it cannot be said that learned Sessions Judge has imposed the sentence which is not by sound exercise of judicial discretion. Further, position of A-3 and A-2 are more or less the same. They have played active role in causing disappearance of the evidence and it is not by remaining as silent spectator, but there is overt act by both A-2 and A-3. Further, position of A-3 and A-2 are more or less the same. They have played active role in causing disappearance of the evidence and it is not by remaining as silent spectator, but there is overt act by both A-2 and A-3. Hence, we do not find that the sentence imposed by the learned Sessions Judge upon A-2 and A-3 deserves to be interfered with. 30. In view of the aforesaid observations and discussion, the following orders are passed: 1. Appeal preferred by A-1, namely, Raghavjibhai Himmatbhai Balar being Criminal Appeal No. 813 of 2010, appeal preferred by A-2, namely, Dhirubhai Oghadbhai Dalsaniya and A-3 namely, Nirmalaben wife of A-1 Raghavjibhai Himmatbhai Balar being Criminal Appeal No. 657 of 2010, appeal preferred by the original complainant as well as the State being Criminal Appeal No. 881 of 2010 against acquittal of A-1 for the offence under Section 302 of the Indian Penal Code, and appeal preferred by the original complainant being Criminal Appeal No. 1560 of 2011 deserve to be dismissed. Hence, dismissed. 2. At this stage, Mr. Yogesh Lakhani, learned counsel appearing for the appellants in Criminal Appeal No. 657 of 2010, namely, A-2 and A-3, has prayed that the benefit of probation be granted under the Probation of Offenders Act 1958 to A-2 and A-3 though they had no past record of commission of crime nor subsequently they are involved in other offence. He submitted that report of the probation officer be called for, and, thereafter, the benefit of probation be extended to A-2 and A-3. Mr.K.L. Pandya, learned APP has resisted the extension of benefit of probation. 2.1. We find that the matter is not pertaining to an independent action for commission of a crime wherein the sentence is not exceeding 10 years for A-2 and A-3. The conviction of A-2 and A-3 is under Section 201 of the Indian Penal Code. Under section 201 of Indian Penal Code, the sentence to be imposed is directly relatable to the principal offence and the said aspect is apparent from the language used by the Parliament under Section 201 of the Indian Penal Code. The punishment would vary with the principal offence connected therewith. In the present case, the conviction under Section 304 Part 1 of A-1 has been made and is confirmed. The punishment would vary with the principal offence connected therewith. In the present case, the conviction under Section 304 Part 1 of A-1 has been made and is confirmed. It is hardly required to be stated that the principles of sentencing are by now well settled. The Court will have three broad concepts in mind, one would be the deterrent effect to be created in the society after considering mitigating circumstances of the accused or offenders concerned and while considering the proportionality of term of sentence, Court may consider the gravity of offence. As in the principal offence, life is lost of the deceased and the matter is also pertaining to causing injuries resulting into death of close relative, namely, son of real brother, we find that the gravity could not be said as less. Under the circumstances, if the principal offence committed by A-1 is considered with gravity of the offence under Section 201 of the Indian Penal Code, the benefit of probation does not deserve to be extended, otherwise the purpose of deterrent effect to be created in the society would be lost or at least in any case shall stand diluted. It is true that reformative character is one of the aspects to be considered in sentencing policy, but it should not overreach the principal aspect of deterrent effect to be created in the society. There are no compelling circumstances put forward in the defence either by A-2 and/or A-3 compelling them to cause disappearance of the evidence. Hence, we find that considering the facts and circumstances, request for extending the benefit of probation, as prayed, cannot be accepted. 2.2. Mr.Lakhani, learned counsel lastly submitted that as A-2 and A-3 are on bail, time to surrender may be granted. Considering the facts and circumstances, time to surrender by A-2 and A-3 before the jail authority concerned is granted upto 8(eight) weeks from today. If the accused does not surrender themselves with the concerned jail authority within the aforesaid period, police shall arrest and lodge the accused with the concerned jail authority. Order accordingly.