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2015 DIGILAW 45 (GUJ)

Rameshbhai Narsinhbhai Rathod v. State of Gujarat

2015-01-15

K.J.THAKER

body2015
JUDGMENT : K.J. Thaker, J. At the outset, it may be noted that the original accused No.3 has expired pending trial, and hence, this appeal stands abated qua original accused No.3 and it survives qua original accused Nos. 1, 2 and 4-appellants, herein, only. 2. This is an appeal by the original accused-appellants, herein, seeking to assail the judgment and order of the learned Additional Sessions Judge, Vyara, Dated : 11.10.1995, rendered in Sessions Case No.67 of 1991, whereby, the trial Court convicted the accused for the offence under Sections 304 (Part-II) and 114 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three years and to pay fine of Rs.500/- by each of them and in default to undergo further simple imprisonment for one month. The accused were also convicted for the offence under Section 447 and 114 of the Indian Penal Code, but, the trial Court did not inflict any separate sentence for the said offence in view of the sentence imposed under Sections 304 (Part-II) and 114 of the IPC. 3. The brief facts of the case of the prosecution, as set out before the trial Court, are that the complainant along with her family including her late husband Devjibhai Nathubhai, was residing at Chaudhary Faliya, Taluka : Bardoli. The original accused, herein, and the complainant were neighbours, and therefore, they knew each other very well. In the complainant, it is stated that about 15 days prior to the alleged offence took place, a quarrel had taken place between the complainant side and the accused, herein, over the issue of children. However, later on the matter was compromised. On 17.01.1991, i.e. on the date of the alleged offence, at about 08:00 p.m. some dispute took place between the complainant and her late husband and at that time the wife of original accused No.2, namely Lalitaben, was laughing at them. Therefore, the late husband of the complainant reprimanded Lilaben and she went to her house. Later on, at about 09:00 p.m., the original accused came to the house of the complainant and pulled out the husband of the complainant and started delivering kick and fist blows on him, saying as to why you were hurling abuses, and when the complainant tried to intervene, she was also beaten-up. Later on, at about 09:00 p.m., the original accused came to the house of the complainant and pulled out the husband of the complainant and started delivering kick and fist blows on him, saying as to why you were hurling abuses, and when the complainant tried to intervene, she was also beaten-up. Therefore, the complainant went into the village and called the Sarpanch, who intervened and saved the husband of the complainant from further beating. Subsequently, while the husband of the complainant was being taken to the hospital, he expired on the way. Hence, the complainant lodged a complaint with the Kadod Police Station. On registration of the complaint, police carried out the investigation and on finding sufficient evidence, laid charge-sheet against the accused persons. Before the trial Court, the accused pleaded not guilty, and therefore, the case was committed for trial. 4. In order to prove its case, the prosecution examined the following witnesses; Oral Evidence Sr. No. Name of Witness Exhibit No. 1 Niruben Devjibhai 15 2 Bachubhai Chhotubhai 22 3 Hansaben Bachubhai 23 4 Dr. Satishkumar Kadvane 24 5 Vajirmiyan Mehmood Malek 27 6 Dr. Ramiben Kashiram Chaudhary 28 7 Ramilaben Devjibhai 32 8 Pravinbhai Devjibhai 33 9 Somabhai Keshavbhai 34 10 Mangabhai Chhaganbhai 35 11 Vallabhbhai Narsinhbhai 36 12 Kasturbhai Nathubhai Patel, P.H.C. 37 13 Trikamlal Ranchhodbhai Parmar, P.I. 38 5. Apart from that the prosecution also produced the documentary evidence, which reads as under; Documentary Evidence Sr. No. Documents Exhibit No. 1. Original complaint of the complainant 16 2. Inquest panchnama 17 3. Panchnama of place of offence 18 4. Arrest panchnama of the accused 19 5. Panchnama of the articles seized from the dead body 20 6. Map of the place of offence 21 7. PM Report 25 8. Cause of death certificate 26 9. Medical certificate of the injuries of the complainant 29 10. Case papers of the injured 30 6. After recording the evidence of the witnesses and perusing the material on record, the trial Court passed the impugned order. Hence, the present appeal. 7. Mr. Rao, learned Advocate for the original accused-appellants, herein, submitted that the trial Court erred in passing the impugned order, inasmuch as it failed to material on record in its proper perspective. After recording the evidence of the witnesses and perusing the material on record, the trial Court passed the impugned order. Hence, the present appeal. 7. Mr. Rao, learned Advocate for the original accused-appellants, herein, submitted that the trial Court erred in passing the impugned order, inasmuch as it failed to material on record in its proper perspective. The trial Court ought to have appreciated the fact that the witnesses examined by the prosecution did not specifically state as to which of the accused played active role. He, submitted, that, in view of the fact that the witness-Bachubhai Chhotubhai(Exhibit-20) was declared hostile, the trial Court ought not to have taken into consideration the evidence of the said witness. The trial Court also failed to take into consideration the fact that the witness Pravinbhai(Exhibit-33) was declared hostile, and therefore, it ought not to have relied on the same. Lastly, he submitted that in view of the fact that almost 20 years have elapsed from the date of the incident, in view of the decision of the Hon'ble Apex Court in "Ankush Shivaji Gaikwad v. State Of Maharashtra", 2013 (6) Scale 778 , which is followed by this Court in a number of decisions, the present appellants may be given the benefit of the same. 8. On the other hand, Ms. Bhatt, learned APP for the respondent-State, strongly opposed the appeal and submitted that from the material on record the offence alleged against the accused-appellants, herein, is clearly made out, and therefore, the trial Court is justified in recording their conviction. She, hence, prayed that the present appeal be dismissed as being without merit. 9. Heard learned Advocate for the accused-appellants and learned APP for the Respondent-State and perused the material on record with their assistance. 10. In order to prove its case before the trial Court, the prosecution examined the wife of the deceased-Devjibhai Nathubhai as P.W.-1. P.W.- 1, in her evidence Exhibit-15, stated that at the time of incident, she, along with her late husband and children, was residing at Chaudhri Faliya, Bardoli. In her deposition, P.W.-1 has stated that prior to the alleged incident also some quarrel had taken place between the complainant side and the accused side, but, the matter was compromised, later on. P.W.- 1, in her evidence Exhibit-15, stated that at the time of incident, she, along with her late husband and children, was residing at Chaudhri Faliya, Bardoli. In her deposition, P.W.-1 has stated that prior to the alleged incident also some quarrel had taken place between the complainant side and the accused side, but, the matter was compromised, later on. P.W.-1, then, went to narrate the alleged incident stating that on the fateful day some quarrel took place between her and her late husband and that time, one Lalitaben, who happened to be the wife of accused No.2, was laughing at them. Hence, the late husband of P.W.-1 scolded her and said Lalitaben, then went to her home. Later on, at about 09:00 p.m., all the accused came there and pulled the deceased out of the house and started beating him with kick and fists indiscriminately. P.W.-1, then, called the Sarpanch of the village and with his help while the accused was being taken to the hospital in a car, the deceased succumbed to the injuries, which was caused to him by the accused, on the way. Hence, P.W.-1 took the body of the deceased to his house and lodged a complaint before the Bardoli Police Station. P.W.-1, then, identified accused Nos. 1, 2 and 4 before the Court. Accused No.3 had expired before the commencement of trial, and hence, there is no question of identifying him. In her cross-examination P.W.-1 stated that the injury sustained by her on her neck was caused by the accused and not by her late husband. P.W.-1, in her cross-examination, further, stated that while her late husband was being beaten by the accused, she was shouting for the help and that one Kaliben, who happened to be a neighbour of P.W.-1, asked the accused not to beat the deceased. P.W.-1, further, stated that her late husband was neither able to do any work nor was able to eat anything for about 15 days prior to the alleged incident. P.W.-1, then, denied the suggestion that it is not true that on the date of the alleged offence, the original accused did not beat her late husband. Thus, the evidence of P.W.-1, who is an eye-witness, remains un-controverted on the material aspect. 11. The prosecution then examined P.W.-2 to strengthen its case. P.W.-1, then, denied the suggestion that it is not true that on the date of the alleged offence, the original accused did not beat her late husband. Thus, the evidence of P.W.-1, who is an eye-witness, remains un-controverted on the material aspect. 11. The prosecution then examined P.W.-2 to strengthen its case. This witness was, though, declared hostile, his evidence can be taken into consideration to the extent, it supports the prosecution. P.W.-2, in his evidence (Exhibit- 22), stated that on the date of the alleged incident, on hearing noise, when he came out, he found the deceased Devji and the accused scuffling with each other. This witness, then, stated that he went to sleep and next day, he came to know that Devji had expired. Thus, the evidence of this witness supports the case of the prosecution on the aspect of presence of the accused at the place of offence, at the time of its commission, and their involvement in the alleged offence. 12. P.W.-3, who happens to be the wife of P.W.-2, in her deposition(Exhibit-23), stated that on the date of the alleged offence, when she came out of her house along with her husband, i.e. P.W.-2, on hearing noises, they found that the accused were beating deceased Devjibhai. P.W.-2 also, in her deposition, referred to the dispute, which had taken between the deceased and the accused about 15 days prior to the alleged offence. P.W.-3 also, then, identified all the witnesses before the Court. The cross-examination of this witness is not of much importance. 13. P.W.-4 was the doctor, who had carried out PM on the body of the deceased Devjibhai. P.W.-4, in his deposition (Exhibit-24), stated that at the time of PM, he had noted following external injuries on the body of the deceased; (1) There were abrasions on the backside of heels of both the legs, admeasuring 2" X 1" on the left leg and 2" X 1" on the right leg. (2) There were two abrasions of 2" X 1" on the right hip. (3) There were abrasions on the right backside of the waist admeasuring 2" X 1" and on the left backside of the waist admeasuring 2" X 1". (4) There was swelling on the right side and fracture of two ribs on the right backside. 14. (2) There were two abrasions of 2" X 1" on the right hip. (3) There were abrasions on the right backside of the waist admeasuring 2" X 1" and on the left backside of the waist admeasuring 2" X 1". (4) There was swelling on the right side and fracture of two ribs on the right backside. 14. According to P.W.-4, all the aforesaid injuries were ante mortem in nature and the cause of death was hemorrhage due to injuries sustained by the deceased on his right kidney and right lung. P.W.-4, further, stated that if someone is beaten by inflicting kick and fist blows, then, the injuries noticed by him on the body of the deceased could be caused, which were sufficient in normal course of nature to cause death. In his cross-examination, P.W.-4 denied the suggestion that the blood clots found by him in the body of the deceased were caused due to injuries sustained by the deceased about 15 days prior to the alleged offence. P.W.-4 also denied the suggestion that the deceased expired due to side effects of malaria on his liver and kidney. Thus, the evidence of this witness also supports the case of the prosecution on the aspect of beating of the deceased by the accused. 15. P.W.-5 is the driver of the car, wherein, the deceased expired, while he was being taken to the hospital, after the alleged offence took place. The evidence of this witness is not of much importance. 16. P.W.-6 is the doctor, who had examined P.W.-1, for the injuries sustained by her on her neck. The evidence of this witness also are not of much importance. 17. P.W.-7 is the daughter of the deceased Devjibhai, who is another eye-witness of the entire incident apart from her mother, P.W.-1, and her aunt, P.W.3. This witness, in her deposition (Exhibit-32), recited the story narrated by her mother, i.e. P.W.-1, in her evidence (Exhibit-15). P.W.-7 also, then, identified the accused before the Court as the perpetrator of the alleged offence. In her cross-examination, P.W.-7 denied the suggestion that on the date of the alleged offence, there was no electricity in her house as well as in the locality. P.W.-7, then, stated that while her mother, P.W.-1, went to call the Sarpanch, the accused continued to beat my father, till she came back with Sarpanch. In her cross-examination, P.W.-7 denied the suggestion that on the date of the alleged offence, there was no electricity in her house as well as in the locality. P.W.-7, then, stated that while her mother, P.W.-1, went to call the Sarpanch, the accused continued to beat my father, till she came back with Sarpanch. This witness, then, denied the suggestion that it is not true that no such incident, as narrated by her in her deposition, had taken place. Thus, the evidence of this witness, who happened to be the daughter of the deceased Devjibhai and was about 12 years of age at the time of recording of evidence and of about only 8 years of age, at the time of alleged offence, remains unshaken on the material aspects, and hence, inspires the confidence. 18. P.W.-10, who happened to be a neighbor of the deceased, is another eye-witness of the incident. This witness, in his deposition (Exhibit-35), stated that on the date of the alleged offence, on hearing noises, when he came out of his house, he found that the accused were beating the deceased with kick and fists. In his cross-examination, P.W.-10 reiterated that when he came out, he found that the accused were beating the deceased and they continued to beat him, till the wife of the deceased-Niruben came back with Sarpanch. This witness also denied the suggestion that he was deposing, due to fear of police, as advised by them. 19. P.W.-12 was, at the relevant point of time, discharging duties as Head Constable at Kadod Police Station. P.W.-12 had merely registered the complaint as stated by the complainant-P.W.-1. Hence, there is no need to look into the evidence of this witness in detail. 20. P.W.-13 was the I.O., who carried out investigation into the alleged offence. This witness, in his deposition (Exhibit-38), has given the details of the recording of panchnama of place of offence, statement of witnesses etc.. This witness was cross-examined at length by the learned Advocate for the original accused, but, his evidence remains unshaken on material aspects. 21. So far as the evidence of P.W. Nos. 8, 9, 11 are concerned, they did not support the case of the prosecution and were declared hostile. 22. This witness was cross-examined at length by the learned Advocate for the original accused, but, his evidence remains unshaken on material aspects. 21. So far as the evidence of P.W. Nos. 8, 9, 11 are concerned, they did not support the case of the prosecution and were declared hostile. 22. Thus, from the evidence of P.W. Nos.-1, 2, 3, 7, and 10, the involvement of the accused in the alleged offence is clearly made out, which, in turns, gets support from the evidence of P.W.-4, P.W.-11 and P.W.-13. From the manner in which the alleged offence took place, neither it can be said that there was premeditation on the part of the accused to commit the offence nor can it be said that they had an intention to cause death of the deceased Devjibhai. More particularly, when the accused did not use any weapon to inflict injuries on the deceased. This Court is, therefore, of the opinion that the trial Court rightly held the accused guilty for the offence under Section 304(Part-II) read with Section 114 of the Indian Penal Code. 23. Now, so far as the aspect of sentence is concerned, the trial Court has directed the accused to undergo rigorous imprisonment for the years for the offence under Section 304(Part-II) read with Section 114 of the Indian Penal Code, whereas, in view of the aforesaid, has awarded no separate sentence for the offence under Section 447 read with Section 114 of the IPC. Here, the note of the fact may be taken that the alleged offence took place in the year 1991 and at present we are in the year 2015. In other words, more than 20 years have elapsed from the date of the alleged incident, and therefore, this Court has to consider, as to whether, would it be proper to relegate the accused persons to custody after almost two decades. In that view of the matter, here, it would be relevant to refer to a decision of the Hon'ble Apex Court in the case of "Ankush Shivaji Gaikwad v. State Of Maharashtra" (Supra). In that case, while the original accused Nos. In that view of the matter, here, it would be relevant to refer to a decision of the Hon'ble Apex Court in the case of "Ankush Shivaji Gaikwad v. State Of Maharashtra" (Supra). In that case, while the original accused Nos. 1 to 3 were passing through the filed of the deceased, wherein, the crop of sugar-cane was taken by the deceased, the dog of the deceased started barking at them and being aggrieved thereby original accused No.1 hit the dog with an iron pipe and when the deceased objected to the same, there was exchange of hot words, which resulted into a scuffle, during which original accused Nos. 2 and 3 delivered kick and fist blows to the deceased, whereas, accused No.1 inflicted blow of iron pipe on the head of the deceased, on account of which the deceased expired, subsequently. The trial Court as well as the High Court held the accused No.1 guilty for the offence of murder and convicted him under Section 302. Being aggrieved there by the accused No.1 approached the Hon'ble Apex Court and the Apex Court, taking into consideration the facts and circumstances of the case that there was a sudden quarrel, modified the conviction of the accused No.1 from Section 302 to Section 304 (II) of the Indian Penal Code. At the time of disposing of the said matter, the Apex Court, making a reference to the provisions of Section 357 of the Cr.P.C., observed as under; "62. To sum up: While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. Would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family." 24. In the case on hand also, since, it appears that there was no premeditation on the part of original accused to commit the alleged offence and it is only when the deceased reprimanded the wife of original accused No.2, who was laughing at the deceased and his wife, while they were quarrelling, whereupon the alleged incident took place, the accused deserve to be given the benefit of the aforesaid judgment of the Apex Court. This Court is, therefore, of opinion that, if, the punishment of imprisonment inflicted by the trial Court on the accused-appellants is modified with fine and each of the accused is directed to pay a fine of Rs.5,000/- for the offence under Section 304(Part-II) read with Section 114 of the Indian Penal Code and Rs.500/- for the offence under Section 447 read with Section 114 of the IPC, same would met the ends of justice. 25. In the result, the appeal is partly allowed. The conviction of the original accused-appellant Nos. 25. In the result, the appeal is partly allowed. The conviction of the original accused-appellant Nos. 1, 2 and 4, herein, under Sections 304(Part-II) and 447 read with Section 114 of the Indian Penal Code is, though, confirmed, in view of the decision of the Apex Court in "Ankush Shivaji Gaikwad" (Supra) and in view of the provisions of the aforesaid sections, the punishment inflicted on them to undergo rigorous imprisonment for three years and to pay fine of Rs.500/- by them under Section 304 (Part-II)is Substituted with Only Fine and each of the accused is directed to pay fine of Rs.5,000/- for the offence under Section 304(Part-II) and Rs.500/- for the offence under Section 447 of the IPC. On depositing of the aforesaid amount by the accused-appellant Nos. 1, 2 and 4 consolidatedly before the concerned trial Court, Rs.2,000/- will go to the State exchequer, whereas, the remaining amount will be paid to the family of the victim. 26. Moreover, in view of the aforesaid decision of the Apex Court, the accused-appellant Nos. 1, 2 and 4 are also directed to pay a consolidated amount of Rs.25,000/-, as per the provision of Section 357 of the Code of Criminal Procedure, over and above the aforesaid amount of fine, which will be paid to the family of the victim. 27. The accused-appellant Nos. 1, 2 and 4 will deposit the amount of fine under Section 304(Part-II) and Section 447 as well as the amount of Rs.25,000/- before the concerned trial Court within a period of Twelve Weeks from today, Failing which the original punishment/sentence inflicted on them by the trial Court shall stand Revived and the concerned trial Court shall be at liberty to take appropriate actions to ensure that the accused-appellant Nos. 1, 2 and 4 serves the remaining sentence. At the time of depositing the amount of fine under Sections 304 (Part-II) and 447 of the IPC, if, the accused-appellant Nos. 1, 2 and 4 have already deposited the fine of Rs.500/-, as originally directed by the trial Court vide order dated 11.10.1995, same shall be deducted and the accused-appellant Nos. 1, 2 and 4 have to pay the remaining amount only. 28. It is needless to say that qua original accused No.3, who expired pending trial, this appeal stands Abated. 29. The judgment and order of the trial Court, Dated 11.10.1995, stands Modified to the aforesaid extent. 1, 2 and 4 have to pay the remaining amount only. 28. It is needless to say that qua original accused No.3, who expired pending trial, this appeal stands Abated. 29. The judgment and order of the trial Court, Dated 11.10.1995, stands Modified to the aforesaid extent. Appeal Decided Accordingly.