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2016 DIGILAW 720 (GUJ)

Mugla Nathabhai Angari v. State of Gujarat

2016-04-01

K.J.THAKER, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Sessions Judge, Banaskantha at Palanpur dated 06.08.2010, by which, the learned trial Court has convicted the original accused - appellants herein-original accused for the offence punishable under Sections 302, 326 r/w Section 34 of the Indian Penal Code and has sentenced them to undergo life imprisonment for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and has also sentenced appellants herein- original accused to undergo 5 years Rigorous Imprisonment with fine of Rs. 500/- for the offences punishable under Section 326 r/w Section 34 of the Indian Penal Code, the original accused have preferred present Criminal Appeal. 2. As per the case of the prosecution, the complainant Narshabhai Angaria lodged the complaint against the original accused for the offence punishable under Sections 302, 326, 504, 506(2), 323 and 34 of the Indian Penal Code with the Danta Police Station being CR-I- No. 45 of 2009 alleging inter alia that on 17.07.2009, in the afternoon when he returned to his home, his brother Lakha told him that when he and his father were making fence of the agricultural field, one Soma Natha Angari came there and did not allow them to put the fence. It was further alleged that at about 8.30 p.m. all the accused came to the house of the complainant and the accused No. 1 Mugla Natha and original accused No. 2 - Amra Natha armed with Axe and the accused No. 3 - Shanker @ Soma was armed with a stick. Therefore, he immediately rushed to the place of the incident near the house of the Lakha, all the three accused persons were giving abuses to the brother and father of the complainant and at that time the original accused No. 1 - Mugla Natha inflicted Axe blow on the neck of his brother Lakha and Lakha fell down and the Axe could not be removed from the neck. It was further alleged that original accused No. 2. Amra Natha inflicted Axe blow on the left leg of the father of the complainant and the accused Soma Nahta inflicted stick blow on the back of his father. It was further alleged that hearing the noise, the Family members gathered and all the accused fled away. It was further alleged that original accused No. 2. Amra Natha inflicted Axe blow on the left leg of the father of the complainant and the accused Soma Nahta inflicted stick blow on the back of his father. It was further alleged that hearing the noise, the Family members gathered and all the accused fled away. It was further stated that in the FIR/complaint that he wanted to take his injured father and brother to the hospital but as there was no vehicle available, they have taken to Government Hospital, Danta on the next day morning. His father died on the spot. That thereafter, aforesaid FIR came to be registered with the Danta Police Station. The aforesaid FIR was investigated by one Keshabhai Punjabhai Rathod, Police Inspector, Danta Police Station. He sent yadi to the Executive Magistrate for inquest panchnama. He recorded the statement of the concerned witnesses. He prepared the panchnama of place of incident. He arrested the accused persons. He recovered the weapons/Axe from the accused. He collected the medical evidence including the injury certificate of the injured eyewitness- Holabhai Virabhai (father of the original complainant). That thereafter, after conclusion of the investigation, the Investigating Officer filed the charge sheet against the original accused in the Court of learned JMFC, Danta for the offences under Sections 302, 326, 504, 506(2), 323 and 34 of the Indian Penal Code. As the case was exclusively triable by the learned Court of Sessions, the learned JMFC, Danta committed the case to the Sessions Court, Banaskantha, which was numbered as Sessions Case No. 144 of 2009. The learned trial Court framed the charge against all the accused for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code, Section r/w Section 34 of the Indian Penal Code and also for the offence punishable under Section 504 r/w Section 34 of the Indian Penal Code and Section 506(2) r/w Section 34 of the Indian Penal Code for having caused the injuries by stick on the Holabhai Veerabhai. All the accused pleaded not guilty and all of them came to be tried by the learned trial Court for the aforesaid offences. 2.1. To prove the case against the accused, prosecution examined following witnesses: Sr. All the accused pleaded not guilty and all of them came to be tried by the learned trial Court for the aforesaid offences. 2.1. To prove the case against the accused, prosecution examined following witnesses: Sr. No. Name of the witness Exh No. 1 Narshabhai Holabhai Angari 13 2 Gemabhai Somidabhai Angari 15 3 Holabhai Virabhai Angari 33 4 Jamnaben Narsabhai Angari 34 5 Dr. Narayanbhai Madhabhai Patel 17 6 Dr. Pinkiben Jltubhai Patel 36 7 Bachubhai Anabhai Dungaicha 24 8 Bhikhabhai Punabhai Damor 26 9 Babubhai Keshabhai Solanki 28 10 Sonabhai Munglabhai Parmar 30 11 Fakirmohmad Ismailbhai Meman 31 12 Narsinhbhai Babubhai Thakore 41 13 Keshabhai Punjabhai Rathod 42 14 Hiralal Mohanlal Joshi 21 2.2. Through the aforesaid witnesses, the prosecution brought on record the following documentary evidence: Sr. No. Evidence Exh No. 1 Complaint 14 2 Injury Certificate of Holabhai Virabhai 18 3 Yadi sent to the Police by Medical Officer 19 4 Postmortem Report 20 5 Injury Certificate of Holabhai Virabhai 37 6 X-ray plate 38 7 Transfer form 39 8 Case paper of Holabhai Virabhai 40 9 Yadi sent to Medical Officer 49 10 Panchnama of place of offence 25 11 Inquest Panchnama 27 12 Panchnama of recovery of Mudamal 29 13 Panchnama of recovery of Cloths and Axe 32 14 Inquest Panchanama of Hola Vira 42 15 Mudamal Entry 50 16 Receipt of Mudamal received by FSL 51 17 Mudamal of FSL report 52 18 Map of place of offence 22 19 Letter written to Circle Officer, Taluka Panchayat for preparing Map 23 20 Suchipatra 44 21 Wireless Massage 45 22 Special Report of offence 46 23 Police Yadi sent to Executive Magistrate 47 24 Dying Declaration 48 25 Police Yadi sent to Executive Magistrate for preparing map of place of incident 53 26 Map of place of incident sent to the Police by Executive Magistrate 54 2.3. That the prosecution submitted the closing pursis at Exh.55. After prosecution submitted the closing pursis, further statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure. All of them denied having committed any offence. It was stated by them that as they have filed the complaint against the original complainant and other witnesses, a false case has been filed against them. 2.4. After prosecution submitted the closing pursis, further statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure. All of them denied having committed any offence. It was stated by them that as they have filed the complaint against the original complainant and other witnesses, a false case has been filed against them. 2.4. At the conclusion of the trial, the learned trial Court has held that death of the deceased Lakhabhai was homicidal death. That on appreciation of evidence, the learned trial Court has held all the accused guilty for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and has also convicted all the accused for the offence punishable under Section 326 r/w Section 34 of the Indian Penal Code and has sentenced all the accused to undergo life imprisonment with fine of Rs. 500/- for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code. The learned trial Court has also imposed the sentence of 5 years RI with fine of Rs. 500/- and in default to undergo further two months RI for the offence under Section 323 r/w Section 34 of the Indian Penal Code. 2.5. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction passed by the learned Sessions Judge, Banaskantha at Palanpur, the original accused have preferred the present Criminal Appeal. 3. Shri Yogendra Thakore, learned advocate has appeared on behalf of the original accused and Shri H.K. Patel, learned Additional Government Pleader for the respondent State. 3.1. Shri Thakore, learned advocate for the original accused has vehemently submitted that in the facts and circumstance of the case the learned trial Court has materially erred in holding all the original accused guilty for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and under Section 326 r/w Section 34 of the Indian Penal Code. 3.2. It is vehemently submitted by Shri Thakore, learned advocate for the original accused that the learned trial Court has materially erred in convicting the original accused Nos. 2 and 3 for the offences punishable under Section 302 r/w Section 34 of the Indian Penal Code. 3.3. It is vehemently submitted by Shri Thakore, learned advocate for the original accused that as such there was already dispute with respect to fencing. 2 and 3 for the offences punishable under Section 302 r/w Section 34 of the Indian Penal Code. 3.3. It is vehemently submitted by Shri Thakore, learned advocate for the original accused that as such there was already dispute with respect to fencing. It is submitted that persons on the side of the accused had caused the injuries at that time when incident had taken place. It is submitted that therefore, as such there was no common intention and/or meeting of the mind earlier to cause the death of the deceased Lakhabhai. It is submitted that even as per the case of the prosecution and even as per the charge framed the original accused No. 1 inflicting blow by Axe on deceased Lakhabhai. It is submitted that as such there was no further allegation that either accused No. 2 and/or accused No. 3 caused any injury on the deceased Lakhabhai. It is submitted that therefore, the learned trial Court has materially erred in convicting the original accused Nos. 2 and 3 for the offences punishable under Section 302 r/w Section 34 of the Indian Penal Code. 3.4. It is further submitted by Shri Thakore, learned advocate for the original accused that the learned trial Court has even erred in convicting the original accused No. 1 for the offences punishable under Section 302 of the Indian Penal Code. It is vehemently submitted that as such only one blow by the Axe was alleged to have been given by the original accused No. 1. It is submitted that even the said blow was given on the neck. It is submitted that in the present case admittedly the deceased was not taken to the hospital immediately and was taken to the hospital on the next day where he was declared dead. It is submitted that if timely treatment would have given, deceased Lakhabhai would have survived. It is submitted that therefore, the learned trial Court has materially erred in convicting the original accused No. 1 for the offence punishable under Section 302 of the Indian Penal Code. 3.5. It is further submitted by Shri Thakore, learned advocate for the original accused that even the learned trial Court has materially erred in convicting all the accused for the offence punishable under Sections 302 r/w Section 34 of the Indian Penal Code. 3.5. It is further submitted by Shri Thakore, learned advocate for the original accused that even the learned trial Court has materially erred in convicting all the accused for the offence punishable under Sections 302 r/w Section 34 of the Indian Penal Code. It is submitted that even as per the case of the prosecution, the original accused No. 2 caused injuries by Axe on the leg of the injured eyewitness Holabhai. It is submitted that therefore, the learned trial Court has materially erred in convicting all the accused for the offence punishable under Section 326 r/w Section 34 of the Indian Penal Code. 3.6. It is vehemently submitted by Shri Thakore, learned advocate for the original accused that as such there is no case against the original accused No. 3 at all. It is submitted that none of the witness has stated that original accused No. 3 caused any injury either on the deceased or Holabhai. It is submitted that no injury on the back of the body of the injured eyewitness Holabhai by stick has been found. It is submitted that therefore, as such there is no overt act by the original accused No. 3 alleged. It is submitted that therefore, the learned trial Court has materially erred in convicting original accused No. 3 for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and for the offence punishable under Section 326 r/w Section 34 of the Indian Penal Code. 3.7. Shri Thakore, learned advocate for the original accused has further submitted that in the present case even the some persons on the side of the accused sustained serious injuries caused by some persons on the side of the complainant which have not been explained by the witnesses examined by the prosecution. It is submitted that therefore, the learned trial Court has materially erred in relying upon the deposition of the witness examined on behalf of the prosecution i.e. PW Nos. 1, 2, 10 and 11. In support of his above submission, Shri Thakore, learned advocate for the original accused has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Laxmi Singh vs. State of Bihar reported in (1976) 4 SCC 394 as well as decision of the Hon'ble Supreme Court in the case of Amarjit Singh vs. State of Haryana reported in (2009) 16 SCC 649 . He has also relied upon the recent decision of the Hon'ble Supreme Court in the case of the Pathubha Govindji Rathod vs. State of Gujarat reported in 2015(1) GLH 408. Making above submissions and relying upon the above decisions, it is requested to allow the present appeal and quash and set aside the impugned judgment and order of conviction and sentence passed by the learned trial Court and consequently acquitted all the accused for the offences, for which, they were tried. 4. Present appeal is vehemently opposed by Shri H.K. Patel, learned Additional Public Prosecutor for the State. 4.1. It is vehemently submitted by Shri Patel, learned Additional Government Pleader appearing for the State that in the facts and circumstances of the case, more particularly, when the prosecution has successfully proved that all the accused went to the place of the deceased Lakha with deadly weapon like Axe and stick and started quarreling and caused injury on the deceased Lakha due to which he died, the learned trial Court has rightly invoked the Section 34 of the Indian Penal Code and has rightly convicted all the accused for the offences punishable under Section 302 r/w Section 34 of the Indian Penal Code and Section 326 r/w Section 34 of the Indian Penal Code. 4.2. It is submitted that as such the deceased Lakha died on the spot. It is submitted that therefore, even if he would have been taken to the hospital, no purposed would have been served. It is submitted that even otherwise the deceased could not be taken to hospital because there was no facility of transportation available in the night. It is submitted that in any case the original accused No. 1 inflicted the blow by Axe with such a force on the neck of the deceased Lakha, that the Axe could not come out. It is submitted that therefore, when the learned trial Court has specifically observed and held that the death of the deceased Lakha was a homicidal death learned trial Court has rightly convicted all the accused for the offences punishable under Section 302 r/w Section 34 of the Indian Penal Code. 4.3. It is submitted that therefore, when the learned trial Court has specifically observed and held that the death of the deceased Lakha was a homicidal death learned trial Court has rightly convicted all the accused for the offences punishable under Section 302 r/w Section 34 of the Indian Penal Code. 4.3. Shri Patel, learned Additional Public Prosecutor for the State has vehemently submitted that when the learned trial Court has believed common intention and has invoked Section 34 of the Indian Penal Code, learned trial Court has rightly convicted all the accused for the offence punishable under Section326 r/w Section 34 of the Indian Penal Code. 4.4. Now, so far as reliance placed upon the decisions of the Hon'ble Supreme Court in the case of Laxmi Singh (supra) and in the case of Amarjit Singh (supra) by the learned advocate for the original accused is concerned, it is vehemently submitted by Shri Patel, learned advocate for the Additional Public Prosecutor for the State that none of the aforesaid decisions shall be applicable to the facts of the case on hand. It is submitted that in the present case nothing has come on record that any of the accused sustained any injuries. It is submitted that even in the further statement of the accused under Section 313 of the Code of Criminal Procedure it was never case on behalf of the original accused that any of them had sustained any injuries. It is submitted that even no question was asked to any of the witness examined by the prosecution. It is submitted that therefore, in absence of above, there was no question of prosecution explaining any injuries, which were case before the Hon'ble Supreme Court in the aforesaid decisions. However, is not disputing that cross complaint filed against some of the persons on the complainant side. However, has vehemently submitted that in the cross complaint neither the original complainant in the present case nor any of the witnesses were shown as accused. It is submitted that therefore, in the facts and circumstance of the case, the learned trial Court has rightly convicted all the accused for the offences punishable under Section 302 r/w Section 34 of the Indian Penal Code and for the offences punishable under Sections 326 r/w Section 34 of the Indian Penal Code. It is submitted that therefore, in the facts and circumstance of the case, the learned trial Court has rightly convicted all the accused for the offences punishable under Section 302 r/w Section 34 of the Indian Penal Code and for the offences punishable under Sections 326 r/w Section 34 of the Indian Penal Code. Making above submission, it is requested to dismiss the present appeal and confirm the judgment and order of conviction passed by the learned trial Court. 5. Heard the learned advocates for the respective parties at length. We have re-appreciated the entire evidence on record. 6. At the outset, it is required to be noted that by impugned judgment and order, the learned trial Court has convicted all the accused for the offences punishable under Section 302 r/w Section 34 of the Indian Penal Code for having killed deceased Lakhabhai and also for the offence under Section 326 r/w Section 34 of the Indian Penal Code for having caused injuries by Axe on the injured eyewitness- Holabhai. However, it is required to be noted that as per the case of the prosecution and even as per the charge framed against all the accused, original accused No. 1 inflicted the Axe blow on the neck of the deceased Lakhabhai and the original accused No. 2 inflicted blow by Axe on the leg of the injured eyewitness Holabhai. As per the case of the prosecution, original accused Nos. 1 and 2 were armed with Axe and the original accused No. 3 was armed with stick. As per the case of the prosecution, the original accused No. 3 gave the blow by stick on the back of the injured eyewitness Holabhai. However, neither the injured witnesses Holabhai who has examined as PW No. 10 in his deposition has stated that original accused No. 3 gave the stick blow on his back. Even Dr. Pinkiben Patel - PW No. 12 who has been examined at Exh. 36 who treated the injured eyewitness Holabhai had stated that except injury on the leg, no such injuries were found. Under the circumstances, the prosecution has as such miserably failed to prove by leading cogent evidence that original accused No. 3 gave stick blow on the back side of the injured eyewitness Holabhai. Nothing was alleged against the original accused No. 3 with respect to any injuries caused by him on deceased Lakhabhai. 6.1. Under the circumstances, the prosecution has as such miserably failed to prove by leading cogent evidence that original accused No. 3 gave stick blow on the back side of the injured eyewitness Holabhai. Nothing was alleged against the original accused No. 3 with respect to any injuries caused by him on deceased Lakhabhai. 6.1. As observed herein above, even as per the case of the prosecution, original accused No. 1 who was armed with the Axe, inflicted Axe blow on the neck of the deceased Lakha and the original accused No. 2 inflicted the blow by Axe on the leg of the injured eyewitness Holabhai. However, all of them are convicted with aid of Section 34 of the Indian Penal Code. 6.2. Now, so far as convicting all the accused with the aid of Section 34 of the Indian Penal Code, more particularly, original accused Nos. 2 and 3 for the offence under Sections 302 r/w Section 34 of the Indian Penal Code is concerned, considering the evidence on record and even considering the fact that there was a cross complaint and the incident had occurred near the house of the deceased Lakhabhai, we are of the opinion that the learned trial Court has materially erred in invoking Section 34 of the Indian Penal Code and convicting the original accused Nos. 2 and 3 with the aid of Section 34 of the Indian Penal Code. The prosecution has miserably failed to prove that there was mitigating of mind earlier and there was any common intention on the part of the accused to cause death of deceased Lakhabhai. No evidence has been led by the prosecution to make out a case under Section 34 of the Indian Penal Code i.e. death of deceased Lakha by the accused persons where in furtherance of ht common intention at a prior concert. That in the present case, the prosecution has miserably failed to prove by leading evidence that there was any prior concert and/or there exist of a pre-arrange plan implying prior meeting of mind. Therefore, in the facts and circumstance of the case and considering the evidence on record the learned trial Court has materially erred in convicting the original accused Nos. 2 and 3 with aid of Section 34 of the Indian Penal Code. Therefore, in the facts and circumstance of the case and considering the evidence on record the learned trial Court has materially erred in convicting the original accused Nos. 2 and 3 with aid of Section 34 of the Indian Penal Code. The learned trial Court has materially erred in observing that there was any common intention, more particularly, in absence of any such evidence, led with respect to the any prior concert or meeting of mind. Under the circumstances, case is required to be considered qua each of the accused with respect to their individual role and/or individual act committed by them. 6.3. As per the case of the prosecution, the original accused No. 1 inflicted the Axe blow on the neck of the deceased Lakabhai. It is true that deceased Lakhabhai was taken to the hospital on the next day. Therefore, it is the case on behalf of the original accused that if timely treatment would have been given the deceased could have been survived and therefore, no case is made out for the offences punishable under Section 302 of the Indian Penal Code. However, it is required to be noted that deceased died on the spot. The original accused No. 1 inflicted the Axe blow in the neck with such force that it could not come out. However, considering manner in which the incident had taken place and it appears that some persons on the side of the accused also sustained some injuries and the manner in which, incident took place, we are of the opinion that case would not fall under Section 300 of the Indian Penal Code and it would fall under Section 304 Part I of the Indian Penal Code. Under the circumstance, the original accused No. 1 can be held guilty for the offence punishable under Section 304 Part I of the Indian Penal Code instead of convicting him for the offence punishable under Section 302 of the Indian Penal Code. 7. Now, so far as original accused No. 2 is concerned, he had caused the injury by Axe on the injured eyewitness Holabhai on leg. The injured eyewitness Holabhai PW No. 10 in his deposition has clearly stated that the original accused No. 2 gave Axe blow on is leg. Even name of the original accused No. 2 has been disclosed in the FIR which was given by the original complainant. Dr. The injured eyewitness Holabhai PW No. 10 in his deposition has clearly stated that the original accused No. 2 gave Axe blow on is leg. Even name of the original accused No. 2 has been disclosed in the FIR which was given by the original complainant. Dr. Pinki Patel has categorically stated that injury sustained by Holabhai on leg was possible by Axe. Under the circumstances, original accused No. 2 can be held guilty for the offence punishable under Section 325 of the Indian Penal Code and is hereby held guilty for the offence under Section 325 of the Indian Penal Code having caused injury on the injured eyewitness Holabhai. 8. Now, so far as original accused No. 3 is concerned, except allegation in the complaint and so stated by the original complainant that he was armed with stick there is no overt act alleged against him. It was the case of the prosecution that the original accused No. 3 gave the stick blow on the back side of the body of the injured eyewitness Holabhai. However, the aforesaid has not been supported by any medical evidence. Neither, the Dr. Pinki Patel nor even in the medical certificate, there is any reference to any injury on the back side of the body of the injured eyewitness Holabhai. Even, the injured eyewitness Holabhai himself is not stating in his deposition that original accused No. 3 gave blow by stick on the back side of his body. No overt act at all has been alleged against the original accused No. 3. As observed herein above, the learned trial Court has materially erred in invoking Section 34 of the Indian Penal Code. From the impugned judgment and order, it appears that the learned trial Court convicted all the original accused for the offences punishable under Sections 302 and Section 326 r/w Section 34 of the Indian Penal Code, which cannot be sustained. Under the circumstances, impugned judgment and order passed by the learned trial Court convicting the original accused Nos. 3 deserves to be quashed and set aside. 9. In view of the above and for the reasons stated above, present appeal succeeds in part. Under the circumstances, impugned judgment and order passed by the learned trial Court convicting the original accused Nos. 3 deserves to be quashed and set aside. 9. In view of the above and for the reasons stated above, present appeal succeeds in part. The impugned judgment and order dated 06.08.2010, passed by the learned Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 144 of 2009 convicting the appellants herein - original accused for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and offence punishable under Section 326 r/w Section 34 of the Indian Penal Code is hereby quashed and set aside. However, for the reasons stated above, the original accused No. 1 is held to be guilty for the offence punishable under Section 304 Part I of the Indian Penal Code and is sentenced to undergo 10 years RI with fine of Rs. 1000/- and in default of payment of fine, to undergo further three months' RI. The original accused No. 2 is held to be guilty for the offence punishable under Section 325 of the Indian Penal Code and is sentenced to undergo imprisonment he has already undergone. Accordingly, the original accused No. 2 be released forthwith, if not required in any other case. 9.1. For the reasons stated above, the impugned judgment and order convicting the original accused No. 3 is hereby quashed and set aside. The original accused No. 3 is hereby acquitted from all the charges, for which, he was tried. The original accused No. 3 is reported to be on bail, therefore, his bail bond stands cancelled. Present appeal is partly allowed to the aforesaid extent.