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2016 DIGILAW 932 (GUJ)

Manishbhai Kanubhai Hirpara v. State of Gujarat

2016-04-29

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. This appeal is preferred against the judgment and order dated 28.03.2011 passed by learned Sessions Judge, Amreli, in Sessions Case No. 18 of 2010, whereby both the accused were convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short "IPC") and ordered to undergo imprisonment for life and to pay fine of Rs. 50,000/- each and, in default of payment of fine, accused were ordered to undergo further rigorous imprisonment for one year. Accused No. 1 was also convicted for the offence punishable under Section 354 of IPC and ordered to undergo rigorous imprisonment for six months and to pay fine of Rs. 1,000/- and, in default of payment of fine, accused No. 1 was ordered to undergo further rigorous imprisonment for one month. Feeling aggrieved by the impugned judgment, the accused have preferred present appeal before this Court. 2. The facts in brief giving rise to the filing of present appeal are as under:- "2.1 The complaint was given by Nitinbhai Nanjibhai Gajera, when he was under treatment in a hospital at Amreli stating, inter alia, that on the date of the incident he was at his house. At that time, his sister Payal informed him that since she is studying in Dhari College, and she is daily commuting from Mitapur to Dhari in a bus, accused No. 1, who is also travelling in the bus, is harassing her. She also told him on 4.12.2009 at about 1 p.m. that when she was going along with her friend, just opposite Dhari Railway Station in a lonely place accused No. 1 caught hold of her and drew her on one side and proposed her for marriage. Therefore, Payal slapped him. It is alleged that accused No. 1 was often writing his mobile number on a chit and was proposing for marriage. Therefore, the complainant along with his friend Farooq went on a motor cycle at Dhari Bus Stop. At that time, Payal was there. She pointed towards accused No. 1 and went away. Thereafter, at about 3 to 3.30 p.m. the complainant went to accused No. 1 and tried to persuade him not to harass his sister. Thereupon, accused No. 1 took out a knife and gave a knife blow on the right side waist of the complainant. At that time, Payal was there. She pointed towards accused No. 1 and went away. Thereafter, at about 3 to 3.30 p.m. the complainant went to accused No. 1 and tried to persuade him not to harass his sister. Thereupon, accused No. 1 took out a knife and gave a knife blow on the right side waist of the complainant. Thereafter, the complainant was taken to the hospital of Dr. Dhaduk at Amreli. With these allegations, the complainant gave complaint against the accused persons and died during treatment on 19.12.2009. 2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused persons before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses:- S. No. Name Exhibit 1. Dr. Digvijay Ranchhodlal Vaghela 18 2. Dr. Pradipbhai Bhagvanbhai Patel 26 3. Jaysukhbhai Karshanbhai Savaliya 31 4. Bhupatbhai Manishankarbhai Dave 33 5. Chhaganbhai Devjibhai Mandanka 34 6. Nanjibhai Rambhai Gajera 37 7. Bhupatbhai Govindbhai Koli 38 8. Rajubhai Premjibhai Lathiya 40 9. Dilubhai Merambhai Vala 42 10. Rajubhai Nathabhai Lalani 44 11. Jasubhai Suragbhai Vala 45 12. Jagdishbhai Fakirbhai Dami 47 13. Devjibhai Bijalbhai Parmar 50 14. Dr. Hiteshbhai Jayvantbhai Chavda 52 15. Payalben Nanjibhai Gajera 56 16. Hetalben Mansukhbhai Kacha 57 17. Farukbhai Abdulbhai Saiyed 58 18. Farkbhai Sattarbhai Patel (Executive Magistrate) 59 19. Gambhirsinh Natubha Zala 62 20. Anantkumar Prakashbhai Patel 65 2.4 The prosecution had also produced and relied upon following documentary evidence:- S. No. Description Exhibit 1. Complaint of the complainant-Nitinbhai Nanjibhai Gajera 51 2. Panchnama of the place of offence 32 3. Panchnama of physical condition of injured Nitinbhai Nanjibhai Gajera 35 4. Arrest panchnama of accused no. 1 39 5. Arrest panchnama of accused no. 2 41 6. Panchnama of samples collected by FSL officer from the place of offence 43 7. Panchnama of blood sample of accused Manish Kanubhai 46 8. Panchnama of seizures of clothes of the deceased 36 9. Inquest panchnama in presence of the Executive Magistrate 69 10. Injury certificate issued by Dr. 1 39 5. Arrest panchnama of accused no. 2 41 6. Panchnama of samples collected by FSL officer from the place of offence 43 7. Panchnama of blood sample of accused Manish Kanubhai 46 8. Panchnama of seizures of clothes of the deceased 36 9. Inquest panchnama in presence of the Executive Magistrate 69 10. Injury certificate issued by Dr. Pradip B. Dhaduk with regard to the injuries sustained by Nitinbhai 28 11. Yadi written by Dr. Dhaduk to City PI as the injured came to his hospital for taking treatment 27 12. Medical certificate issued by Medical Officer of Mediserge Hospital, Ahmedabad to the injured 53, 54 13. PM report of the deceased Nitinbhai Nanjibhai 19 14. Map of the place of offence 19 15. Report of officer of FSL, after visiting the place of offence 67 16. Notification issued by Additional District Magistrate, Amreli 68 17. Receipt of the muddamal being received by FSL 70 18. Muddamal analysis report by FSL 73 19. Yadi by FSL, Junagadh to take back the muddamal sent for analysis 21 20. Death certificate of Nitinbhai Nanjibhai 74 21. Report of the deceased given by Pathology Bacteriology Department 20 22. Histopathology repot of V.S. Hospital, Ahmedabad 22 23. Yadi written by Navrangpura Police Station, to V.S. Hospital for postmortem of dead body of the deceased 23 24. Police report to be sent along with the dead body for postmortem 24 25. Receipt of handing over dead body to Devrajbhai Vallabhbhai 25 26. Reports undertaken by Dr. Pradip Dhaduk during the treatment of injured Nitin 29 27. Dying declaration of Nitinbhai Nanjibhai recorded by Executive Magistrate, Amreli 60 28. Report by City Police Station to the Executive Magistrate asking to come for recording dying declaration of the injured 60 29. Analysis report of serological department 75 2.5 At the end of trial, the Court below recorded further statement of accused under Section 313 of Cr. P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court." 3. Mr. Vasant Shah, learned advocate for the appellants - original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court." 3. Mr. Vasant Shah, learned advocate for the appellants - original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He submitted that in the first complaint and the dying declaration of the deceased, name of accused No. 2 was not given and after the investigating officer has changed, name of accused No. 2 is added. He has also taken us through the evidence of Payalben Nanjibhai Gajera, Hetalben Mansukhbhai Kachha, Farooqbhai Abdulbhai Saiyed and Nanjibhai Ramjibhai Gajera, name of accused No. 2 is not stated and submitted that the prosecution has failed to establish the presence of accused No. 2 at the place of offence. He, therefore, submitted that accused No. 2 is wrongly implicated and he is required to be exonerated by setting aside the conviction recorded against him. He further submitted that though the incident had occurred near a pan shop, and it is stated that there was a crowd of people, no independent witnesses have been examined by the prosecution in support of its case. He further submitted that the witnesses examined by the prosecution are interested witnesses, as they are either related or having intimacy with Payal or the complainant. He has taken us through the evidence of PW-1, Dr. Digvijay Ranchhodlal Vaghela and PW-14, Dr. Hitesh Jayvantbhai Chavda. He contended that this witness has stated in his deposition that fatal injury is not possible by muddamal knife. He also submitted that the victim died on 19.12.2009, while the incident had happened on 4.12.2009, therefore, the injuries caused to the deceased are not the reason for death. He also submitted that even while conducting postmortem of the deceased, reason for the death was kept pending for C/A, HPE and Bacterological examination and reports in this regard are produced at Nos. 112, 114 and 116. He further submitted that the Dr. Hiteshbhai Jayvantbhai Chavda, who treated the victim, has stated in para 7 of his evidence that on 19.12.2009, suddenly heartbeats of the deceased increased and he was taken to ICU for treatment, however, because of weakness in his body and septicemia his body was not responding to the treatment and in the evening at 7.30 the victim died. Hiteshbhai Jayvantbhai Chavda, who treated the victim, has stated in para 7 of his evidence that on 19.12.2009, suddenly heartbeats of the deceased increased and he was taken to ICU for treatment, however, because of weakness in his body and septicemia his body was not responding to the treatment and in the evening at 7.30 the victim died. He, therefore, submitted that the victim has died due to septicemia and that too after 14 days from the incident and if the complainant would have received a better treatment, his life would have been saved. In view of this, he submitted that the trial Court has committed an error in convicting the accused for the offence punishable under Section 302 of IPC and they could have been convicted at the most for an offence punishable under Section 304, Part-I of IPC. In support of his submission, he has relied upon the decision of the Apex Court in the case of Sanjay vs. State of Uttar Pradesh, (2016) 3 SCC 62 , wherein it is observed as under:- "14. However, in the instant case, it is apparent that the death occurred sixty two days after the occurrence due to septicemia and it was indirectly due to the injuries sustained by the deceased. The proximate cause of death on 13.10.1998 was septicaemia which of course was due to the injuries caused in the incident on 11.08.1998. As noted earlier, as per the evidence of Dr. Laxman Das (PW-9), Roop Singh was discharged from the hospital in good condition and he survived for sixty two days. In such facts and circumstances, prosecution should have elicited from Dr. Laxman Das (PW-9) that the head injury sustained by the deceased was sufficient in the ordinary course of nature to cause death. No such opinion was elicited either from Dr. Laxman Das (PW-9) or from Dr. Gulecha (PW-3). Having regard to the fact that Roop Singh survived for sixty two days and that his condition was stable when he was discharged from the hospital, the court cannot draw an inference that the intended injury caused was sufficient in the ordinary course of nature to cause death so as to attract clause (3) of Section 300 IPC. 15. Having regard to the fact that Roop Singh survived for sixty two days and that his condition was stable when he was discharged from the hospital, the court cannot draw an inference that the intended injury caused was sufficient in the ordinary course of nature to cause death so as to attract clause (3) of Section 300 IPC. 15. In Ganga Dass alias Godha vs. State of Haryana, 1994 Supp (1) SCC 534, the accused gave iron pipe single blow on the head of the deceased and the deceased died eighteen days after the occurrence due to septicaemia and other complications, the conviction of the appellant under Section 302 IPC was altered by this Court to Section 304 Part II IPC. This Court observed as under:- "6. We find considerable force in this submission. As stated above the occurrence took place on November 18, 1988 and the deceased died 18 days later on December 5, 1988 due to septicaemia and other complications. The Doctor found only one injury on the head and that was due to single blow inflicted with an iron pipe not with any sharp-edged weapon. Having regard to the circumstances of the case, it is difficult to hold that the appellant intended to cause death nor it can be said that he intended to cause that particular injury. In any event the medical evidence shows that the injured deceased was operated but unfortunately some complications set in and ultimately he died because of cardiac failure etc. Under these circumstances, we set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict him under Section 304 Part II IPC and sentence him to undergo six years' RI. The sentence of fine of Rs. 2000 along with default clause is confirmed. Accordingly the appeal is partly allowed." 16. In the instant case, the appellants used firearms country made pistol and fired at Roop Singh at his head and the accused had the intention of causing such bodily injury as is likely to cause death. As the bullet injury was on the head, vital organ, second appellant intended of causing such bodily injury and therefore conviction of the appellant is altered from Section 302 IPC to Section 304 Part I IPC. As the bullet injury was on the head, vital organ, second appellant intended of causing such bodily injury and therefore conviction of the appellant is altered from Section 302 IPC to Section 304 Part I IPC. The learned counsel for the appellant-Sanjay submitted that it was only Narendra who fired at Roop Singh at his head, appellant-Sanjay fired on Sheela (PW-2) on her neck, stomach and leg. Learned counsel for the appellant-Sanjay contended that as Sanjay fired only at Sheela, he could not have been convicted for causing death of Roop Singh under Section 302 IPC read with Section 34 IPC. There is no force in the above contention. The common intention of the appellants is to be gathered from the manner in which the crime has been committed. Both the appellants came together armed with firearms in the wee hours of 11.08.1998. Both the appellants indiscriminately fired from their country made pistols at Roop Singh-deceased and Sheela (PW-2) respectively. The conduct of the appellants and the manner in which the crime has been committed is sufficient to attract Section 34 IPC as both the appellants acted in furtherance of common intention. The conviction of the appellant-Sanjay under Section 302 IPC read with Section 34 IPC is modified to conviction under Section 304 Part I IPC." 3.1 He contended that in view of above decision of the Honourable Apex Court, conviction of the accused persons recorded for offence punishable under Section 302 of IPC may be converted to an offence punishable under Section 304, Part I of IPC and the sentence imposed upon them may be reduced. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused is just and proper and he has supported the conviction recorded by impugned judgment. Learned APP has contended that taking into consideration the medical evidence, evidence of the complainant and other witnesses, the view taken by the trial Court is just and proper and no interference is called for. She submitted that so far as issue with regard to septicemia is concerned, the same is discussed by the trial Court at length and rightly not accepted the contention on behalf of the accused to impose lesser punishment. She submitted that so far as issue with regard to septicemia is concerned, the same is discussed by the trial Court at length and rightly not accepted the contention on behalf of the accused to impose lesser punishment. She further submitted that since father of accused No. 1 is the sarpanch of the village, accused No. 1 misbehaved with the girl in a public place and also threatened her. She also submitted that if such accused are not properly punished, it may adversely affect the safety of women. She, therefore, submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused and, therefore, no interference is called for in the present appeal. 5. We have heard Mr. Vasant Shah, learned advocate for the appellants-original accused and Ms. C.M. Shah, learned APP for the State. We have also gone through the evidence on record. We have also perused the medical evidence. We have gone through the dying declaration of the deceased, Exh. 60. In his dying declaration, the deceased has stated that accused No. 1 had given a knife blow to him as he went to persuade him not to harass his sister. We have also perused the evidence of PW-18, Farooqbhai Sattarbhai Patel, Executive Magistrate, Exh. 59. In his evidence, this witness has deposed that when he went to record the statement of the deceased, he verified about the consciousness of the victim from the doctor and thereafter recorded his statement. This witness has stated that the victim had stated before him as to how the incident had happened and he also deposed that since accused No. 1 was harassing his sister and he went to persuade him, this incident had happened. 6. In his evidence, PW-6, Nanjibhai Rambhai Gajera, father of the deceased, Exh. 37, has stated that when the incident had happened, his daughter has informed him on telephone that they were taking the injured to the hospital. He further deposed that he was informed that accused No. 2 had caught hold of Nitin and accused No. 1 had given a knife blow. Thereafter, he went to the hospital. He further deposed that his daughter Payal informed him that since accused No. 1 used to harass her, Nitin and his friend Farooq went to persuade accused No. 1 not to harass her. Thereafter, he went to the hospital. He further deposed that his daughter Payal informed him that since accused No. 1 used to harass her, Nitin and his friend Farooq went to persuade accused No. 1 not to harass her. He further deposed that while Nitin was persuading him, a quarrel had taken place and accused No. 2 caught hold of Nitin and accused No. 1 gave a knife blow. 7. In her evidence, PW-15, Payalben Nanjibhai Gajera, Exh. 56 has stated that at the relevant time she was studying in Yogiji Maharaj Mahavidhyalay and she used to commute by bus. She deposed that since accused No. 1 was studying in Arts and Commerce College, he also used to do up-down along with her. She also deposed that her friends Hetal and Jagruti also used to do up-down with her. She deposed that prior to the incident in question, when she was on her way from the bus stop to college, at a lonely place, accused No. 1 thrown a chit to her by writing his mobile number and he used to pressurize her for marriage. She deposed that, on 4.12.2009, when she was going to college, accused No. 1 caught hold of her hand and separated her from her friends. On the same day, in the bus also accused No. 1 came to her and proposed for marriage upon which this witness slapped him. Thereafter, she told about this incident to her brother Nitin. Therefore, Nitin gave her mobile phone and asked her to call him, if accused No. 1 is there in the college. Since accused No. 1 was there, the witness informed Nitin about him and asked to come to the college between 2.30 to 3 p.m. in the afternoon, when she was returning from college, at that time she had seen accused No. 1 and 2 together. She informed Nitin by indicating towards them, therefore, the accused went away. However, thereafter, Nitin, who had come there with his friend Farooq, went to them and rebuked accused No. 1. Thereupon, accused No. 2 caught hold of Nitin and accused No. 1 gave knife blow to him. Since this witness slapped both the accused, they went away from the place of offence. Thereafter, Nitin was taken to the hospital. She also deposed that her brother died during treatment on 19.12.2009. This witness has identified the accused before the Court. Thereupon, accused No. 2 caught hold of Nitin and accused No. 1 gave knife blow to him. Since this witness slapped both the accused, they went away from the place of offence. Thereafter, Nitin was taken to the hospital. She also deposed that her brother died during treatment on 19.12.2009. This witness has identified the accused before the Court. 8. Hetalben Mansukhbhai Kacha, PW-16, Exh. 57 has also supported the aforesaid version of Payalben. She has also deposed the manner in which the incident has taken place and also stated about the fact how accused No. 1 used to harass Payal. Farooqbhai Abdulbhai Saiyed, PW-17, Exh. 58, has deposed that, on the date of the incident, Nitin had telephoned him and asked him to come along with him as the accused is harassing his sister. He further deposed that thereafter they went to Dhari on a motor bike. After reaching there, Payal had pointed towards accused, therefore, they went there and Nitin told that I want to talk to Manish. Thereafter, accused No. 2 caught hold of Nitin and accused No. 1 gave a knife blow. Thereafter, since Payal slapped the accused, they ran away and the injured Nitin was shifted to the hospital. 9. From the above evidence, it is clear that these witnesses have supported the case of the prosecution. So far as not naming accused No. 2 earlier is concerned, we find that as and when the investigating officer was changed and a new investigating officer has taken charge, name of accused No. 2 was included. Therefore, we find force in the submission of Ms. Shah that because accused No. 2 was the Sarpanch of the village, earlier investigating officer would not have inducted him as an accused in the offence. In view of above evidence, presence of the accused at the place of offence cannot be disputed. It also cannot be disputed that the accused had attacked the victim Nitin and caused injuries with knife. However, it may not be out of place to mention here that the deceased succumbed to injuries 14 days after the incident. 10. We have also gone through the medical evidence on record. PW-1, Dr.Digvijay Ranchhodlal Vaghela, and PW-14, Dr. Hitesh Jayvantbhai Chavda. While conducting postmortem of the deceased, reason for the death was kept pending for C/A, HPE and Bacterological examination and reports in this regard are produced at Nos. 10. We have also gone through the medical evidence on record. PW-1, Dr.Digvijay Ranchhodlal Vaghela, and PW-14, Dr. Hitesh Jayvantbhai Chavda. While conducting postmortem of the deceased, reason for the death was kept pending for C/A, HPE and Bacterological examination and reports in this regard are produced at Nos. 112, 114 and 116. Dr. Digivjay Vaghela, who carried out the postmortem of the deceased, has stated in his evidence that from the aforesaid reports it is clear that the reason for death of the victim is presence of klebsiella bacteria in the blood of the deceased. Dr. Hiteshbhai Jayvantbhai Chavda, who treated the victim, has stated in para 7 of his evidence that on 19.12.2009, suddenly heartbeats of the deceased increased and he was taken to ICU for treatment, however, because of weakness in his body and septicemia his body was not responding to the treatment and in the evening at 7.30 the victim died. Therefore, at this stage, it is necessary to refer to the meaning of the words used in the chemical reports, Exh. 20. As per Shorter Oxford English Dictionary, 5th Edition, Volume-I, Bacteriaemia is the noun of Bacteraemia, which means the presence of bacteria in the blood. As per the meaning given in the same dictionary, Klesbsiella means, "Any of various Gram-negative coliform bacteria of the genus Klebsiella, which includes several associated with respiratory, urinary and wound infections." As per Shorter Oxford English Dictionary, 5th Edition, Volume-II, Pseudomonas means, "A member of the genus pseudomonas of aeorbic generally rod-shaped Gram-negative bacteria occurring chiefly in soil and detritus, including the pathegens of melioidosis and many plant diseases." As per the same volume, Septicaemia means, "Blood poisoning caused by the multiplication of pathogenic bacteria in the bloodstream." Therefore, from the above evidence it is clear that reason for death of the victim is presence of bacteria in his blood. Therefore, it is established that the victim died due to complication in the vital part of his body-liver, i.e. septicemia or bactorial infection, and because of it, his body did not respond to the treatment and he succumbed to the injuries. 11. Looking to the evidence on record, we are of the view that conviction of the appellant u/s. 302 IPC is erroneous since the evidence of the eyewitnesses, complainant and friend of Payal, does not prove that the appellants carried the intention to kill the deceased. 11. Looking to the evidence on record, we are of the view that conviction of the appellant u/s. 302 IPC is erroneous since the evidence of the eyewitnesses, complainant and friend of Payal, does not prove that the appellants carried the intention to kill the deceased. Having regard to the circumstances of the case, it is difficult to hold that the appellants intended to cause death. In any event the medical evidence shows that the injured deceased was operated but unfortunately some complications set in and ultimately he died because of cardiac failure due to complications in the vital parts of his body. Under these circumstances, we set aside the conviction of the appellants under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. We find that the appellants would be guilty of culpable homicide not amounting to murder. In view of the aforesaid, the conviction of the appellants deserve to be altered to one Section 304 Part-I IPC with the punishment of imprisonment for ten years. 12. For the foregoing reasons, this appeal is partly allowed. The impugned judgment and order dated 28.03.2011 passed by learned Sessions Judge, Amreli, in Sessions Case No. 18 of 2010 is modified and, instead of offence punishable under Section 302 read with Section 34 of IPC, the accused are convicted for the offence punishable under Section 304, Part-I of IPC and ordered to undergo rigorous imprisonment for a period of ten years, without disturbing the order regarding fine and default sentence. Remaining part of the impugned judgment shall remain unaltered. The period of sentence already undergone by the accused be given set off to them. It is reported that accused No. 2 is on bail, therefore, accused No. 2 is directed to surrender before the jail authorities on or before 29th July 2016 to serve the remaining period of sentence. Bail bond, if any, of the accused stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.