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2017 DIGILAW 960 (GUJ)

Manharbhai Parbhubhai Patel v. State of Gujarat

2017-05-03

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

body2017
JUDGMENT : Biren Vaishnav, J. 1. The original accused have filed these appeals against the judgement and order dated 23.08.2012. By the aforesaid judgement, the present accused were convicted and sentenced to undergo life imprisonment for offences punishable under sections 302, 307, 323, 326 read with sections 143, 147, 148, 149 of the Indian Penal Code in Sessions Case No. 28 of 2011. 2. On 14.07.2010, Khushalbhai Maganbhai alias Khusmanbhai lodged a First Information Report. According to the informant, on 13.07.2010, when he along with his brother Jignesh was returning home, they found the accused waiting outside opposite the shop of Manharbhai Patel, father of accused Nos. 7 and 8. Accused No. 3 was holding a rod in his hand whereas the other accused armed with sticks assaulted the complainant and his brother Jignesh. The complainant and his brother Jignesh sustained serious injuries on the head and other parts of the body. When Kashiben, mother of Jignesh and the complainant Khushalbhai alias Khusmanbhai tried to intervene she also sustained injuries. Based on this complaint and the investigation that was carried out, charge at Ex. 4 was framed by the learned Sessions Judge. Jignesh having succumbed to the injuries, the learned Sessions Judge invoked section 302 of the Indian Penal Code and charged the accused for such an offence. Since Khushal - the complainant and his mother Kashiben sustained serious injuries, the accused were also charged for offences under sections 307, 323, and 326 of the Indian Penal Code. For forming an unlawful assembly and indulging in riotous behaviour, sections 143, 147, 148 and 149 of the Indian Penal Code were also invoked and the accused were charged for the offences under the said sections. 3. The first informant, Khusmanbhai alias Khushalbhai Patel was examined as P.W. 11 at Ex. 45. According to this witness, he was staying at the village with the brother Jignesh and mother Kashiben. When he along with Jignesh was returning home on a motorcycle at 7.30 in the morning, they found the accused Deepak, Jagdish, Sandeep, Kanhaiyo, Ambu, Niral, Manhar, Kiran and Ankit waiting outside their house. Deepak, Jagdish and Sandeep started abusing his brother Jignesh. Sandeep had an iron rod in his hand. Jagidsh too was holding one iron rod. Deepak had pipe in his hand. The others were carrying sticks. All the accused attacked both Jignesh and him. Deepak, Jagdish and Sandeep started abusing his brother Jignesh. Sandeep had an iron rod in his hand. Jagidsh too was holding one iron rod. Deepak had pipe in his hand. The others were carrying sticks. All the accused attacked both Jignesh and him. While they were being so hit by sticks and the rods by the accused, their mother Kashiben tried to intervene. She was hit on the head as a result of Sandeep's attack on her by iron rod. Sandeep also hit the complainant and he sustained injuries on hand and forehead. This witness further testified that all these accused jointly attacked the two brothers and their mother. After having attacked, the accused left threatening the others that those who would carry them to the hospital would meet the same fate. The Sarpanch who was present, called an ambulance and the three of them were shifted to the Bharuch Civil hospital. According to this witness, the motive behind the incident was the accused Jagdish's illicit relationship with Jignesh's wife Manisha. Jignesh having suspected his wife of having illicit relations with the accused Jagdish had sent away Manisha to her parental home. This witness further testified that Jignesh few days after the attack succumbed to the injuries. This witness further testified that in the past the accused Manhar had murdered his grandfather Trikam and the accused had also in the past attacked their father. He confirmed to have lodged the First Information Report which was at Ex. 46. 3.1 Khusmanbhai alias Khushalbhai was cross examined. He agreed to the suggestion that when he regained consciousness, he was at the Veer Surgical hospital. That when he was shifted to the Civil hospital along with his brother Jignesh and mother Kashiben, all of them were in a semi conscious state. He agreed to the suggestion that he could not speak and therefore the police had lodged his First Information Report at the Veer Surgical hospital. This witness further in the cross examination stated that when he regained consciousness one lady Mamlatdar had come to the hospital to record his statement. A suggestion was made to this witness that when the accused started abusing him nobody ventured out of the house. A suggestion made to the witness that when the attack was made, their mother Kashiben intervened. The witness agreed to the suggestion. 4. A suggestion was made to this witness that when the accused started abusing him nobody ventured out of the house. A suggestion made to the witness that when the attack was made, their mother Kashiben intervened. The witness agreed to the suggestion. 4. The other injured eye witness examined by the prosecution was Kashiben Maganbhai Patel. She was examined as P.W. 14 at Ex. 68. This witness stated that when the incident happened on 13.07.2010, she was at home. When both her sons went home, the accused Jagdish, Deepak, Sandeep, Kanhaiya, Ishwar, Pankaj, Ambu, Kiran, Shirish and others came home. She was on the terrace. All of them started abusing her sons Khushman and Jignesh. All the accused, in tandem, started attacking her sons. Shirish was holding an iron rod. Jagdish too was holding an iron rod. Deepak also had an iron rod and the others had sticks in their hands. Sandeep too had an iron rod in his hand with which he had hit her on the forehead. She sustained injuries on the hand and on the head. Khushman too had sustained injuries on the head. Jagdish and Deepak were holding iron rods and had attacked her son Jignesh who sustained serious injuries on the head. All three were carried in an ambulance to the Civil hospital at Bharuch. Subsequently, they were shifted to the Veer Surgical hospital. Her son Jignesh was then taken to Baroda Heart hospital. He died at the Baroda Heart hospital. Her son Khushman had lodged the First Information Report. She identified the accused who were present in the court. She identified the weapons which were shown to her. 4.1 Kashiben Patel was cross examined. In the cross examination, she stated that she regained consciousness 6 - 7 days after the incident. This witness has been cross examined extensively to bring out the contradictions in the police statement. She agreed to the suggestion that the motive behind the incident was the illicit relations that Jagdish had with Jignesh's wife Manisha. She also agreed to the suggestion that Jignesh, Jagdish and the complainant Khushman in the past have had arguments over the issue. She agreed that when all the accused had attacked them nobody intervened and tried to save them. She also agreed to the suggestion that Jignesh, Jagdish and the complainant Khushman in the past have had arguments over the issue. She agreed that when all the accused had attacked them nobody intervened and tried to save them. A suggestion was put by the defence to bring out a case that Kashiben had not witnessed the incident because she was inside the house when the accused attacked her sons Khushman and Jignesh. 5. P.W. 6, Snehlata Jacobbhai is the Executive Magistrate who recorded the statement of the complainant. In her testimony, she states that on receiving police vardhi, she went to the hospital. The complainant Khushman Patel was fully conscious. In the statement so recorded at the hands of Khushman, it was revealed that on 13.07.2010 when he along with his brother returned home, the accused Jagdish, Dipak and others who were present opposite his house had attacked him with sticks and rods which they were carrying. His mother Kashiben and brother Jignesh had sustained serious injuries on various parts of the body. After having hit them with sticks and rods they ran away from the scene of the offence. This witness further stated that she had also recorded the statements of Kashiben at the Baroda Heart hospital whereas Khushmanbhai's statement was recorded at the Veer Surgical hospital. 5.1 P.W. 6 Snehlata was cross examined. The defence tried to put a suggestion to this witness that she had not verified the medical condition of the complainant and Kashiben before recording of their statement. 6. Dr. Binoykumar Taraknath Sharma was the Medical Officer at the Bharuch Civil hospital who is examined as P.W. 15 at Ex. 64. He was the doctor at the Bharuch hospital where the three injured, the complainant, his brother and mother were shifted by an ambulance. According to this witness, after Kushalbhai Patel was brought to the hospital when questioned, he categorically stated that he had sustained such injuries as a result of being attacked with rods and sticks at the hands of Jagdish and others. Kushalbhai had sustained injuries on the forehead on the left side. He had also sustained injuries on the right hand. In the opinion of the doctor, such injuries were possible as a result of being hit by a hard and blunt weapon. The injuries were thus grievous in nature. Kushalbhai had sustained injuries on the forehead on the left side. He had also sustained injuries on the right hand. In the opinion of the doctor, such injuries were possible as a result of being hit by a hard and blunt weapon. The injuries were thus grievous in nature. When shown the weapons, the doctor opined that the said injuries could have been caused by the use of such weapons. 6.1 This doctor also treated the complainant's brother Jignesh. Jignesh too had sustained injuries above the right eye and on the eyelid. This doctor issued a certificate regarding such injuries at Ex. 66. In the case of Jignesh also, the doctor opined that such injuries could have been caused by the use of a hard and blunt substance. Kashiben, the mother of first informant was also treated by this doctor. The injuries recorded by this doctor reveal that she sustained injuries on the head and on the nose. 6.2 Dr. Binoykumar was cross examined. A suggestion that the history was not given by the patients but was recorded at the hands of the relatives was denied. The doctor agreed that Khushalbhai had not sustained fractures. He denied that of the six injuries, injuries No. 1, 2, 5 & 6 were simple injuries. Even in the case of the others namely Jignesh and Kashiben, the doctor opined that these patients had not suffered any fractures and that such injuries could be caused through a hard and blunt substance and that though such injuries were grievous, they were not serious in nature. 7. Dr. Dilip Kantilal Patel, P.W. 13, Ex. 51 was the doctor at the Veer Surgical hospital. It is evident from the testimony of the witness Khushmanbhai and Kashiben that after having sustained injuries and after having been medically attended at Bharuch, they were subsequently shifted to this hospital namely Veer Surgical hospital. This doctor testified that according to the history recorded at the hands of the complainant Khushmanbhai, the injuries were sustained as a result of an incident of 13.07.2010 when he was attacked by iron rods and sticks at the hands of the accused. 02.05.2017 7.1 The doctor also examined the second injured witness Kashiben, mother of the first informant. The doctor records that Kashiben too had taken primary treatment at the Civil hospital. 02.05.2017 7.1 The doctor also examined the second injured witness Kashiben, mother of the first informant. The doctor records that Kashiben too had taken primary treatment at the Civil hospital. The injuries that the doctor recorded as far as Kashiben is concerned were sutured wounds, three in number, two on the forehead and one on the nose. The certificate at Ex. 55 was issued. In the opinion of the doctor, the injuries could have been sustained due to weapons used by the accused. Deceased Jignesh was also brought to the hospital and examined on 13.07.2010. 7.2 Dr. Dilip Patel was cross examined. He agreed to the suggestion made that history was recorded in the case papers that was brought by the relatives; that the names of the accused were mentioned in the certificates so issued. Kashiben was in the hospital for about half an hour and then was shifted to the Baroda Heart hospital. 8. Dr. Lalit Bhagubhai Patel, P.W. 10 at Ex. 40 was the doctor who carried out the postmortem of Jignesh. Jignesh was the victim of the attack on 13.07.2010. He died on 16.07.2010. According to the doctor who had carried out the postmortem, Jignesh had sustained five external injuries. The doctor found a stitched wound on the parietal region of the scalp, on the upper eyelid and found abrasions above the elbow joint. Internal injuries corresponding to the external injuries were also noted. He found a fracture of the lateral and medial wall in the frontal temporal region. The cause of death recorded by the doctor was shock due to cranio cerebral injury (Head injury). In the testimony of the doctor, it is recorded that the death occurred due to shock as a result of the injuries that the deceased sustained on the head. 8.1 Dr. Lalit Patel was cross examined. He agreed to the suggestion that the injuries that Jignesh sustained on the forehead would have been caused by a single blow with a hard and blunt weapon; that there were clotting of blood as a result of which he sustained injuries and due to the consequential condition he succumbed to such injuries. He admitted and agreed that the nature of injuries No. 1 and 4 were such that if it had been properly attended to by a specialist, the deceased could have survived. He admitted and agreed that the nature of injuries No. 1 and 4 were such that if it had been properly attended to by a specialist, the deceased could have survived. He further opined that looking to the nature of injuries, it was possible that the deceased could have been saved. 9. The Investigating Officer Rakeshbhai Patel was examined as P.W. 17 at Ex. 71. In the examination-in-chief, he explained the process of investigation that was carried out. From the cross examination of the Investigating Officer, the defence has tried to suggest that the prosecution had dropped and not examined witnesses who were otherwise available. The defence has thereby tried to suggest that there were independent witnesses who were not examined by the prosecution. The defence has further tried to suggest from the police statements and the statement before the Executive Magistrate that Kashiben had named three others namely Geetaben, Manjuben and Bhaveshbhai but they were not charged for the offences in question and therefore the investigation was defective. What was also pointed out by the learned counsel for the defence was that the complainant Khushmanbhai had not stated in his First Information Report that he was abused at the hands of Sandeep and Jagdish. This was a major variation in the prosecution story vis-à-vis the First Information Report and the testimony of the complainant and therefore the credibility of the complainant's version ought not to be believed. 10. Based on these evidences, the learned Sessions Judge by his judgement and order dated 23.08.2012 convicted the accused for offences punishable under sections 302, 307, 323, 326 read with sections 143, 147, 148 and 149 of the Indian Penal Code and sentenced them to undergo life imprisonment. 11. The nature of the evidence needs to be assessed at our hands independently. Khushmanbhai alias Khushal Patel - the first informant - brother of the deceased Jignesh was examined as P.W. 11. When his testimony is seen in the context of the First Information Report that he gave at Ex. 46, what emerges is that the informant in his testimony named the nine accused and the roles played by each one of them in carrying out the attack. This witness stated that while he and Jignesh reached home, all the accused armed with iron rods and sticks initially started abusing him and his brother Jignesh. 46, what emerges is that the informant in his testimony named the nine accused and the roles played by each one of them in carrying out the attack. This witness stated that while he and Jignesh reached home, all the accused armed with iron rods and sticks initially started abusing him and his brother Jignesh. Sandeep, Jagdish and others then attacked both of them on various parts of the body. When their mother Kashiben tried to intervene, she also sustained injuries. The emphasis of this witness is evident from the cross examination when he suggests that all of them jointly came over to the house and attacked him, his brother Jignesh and mother Kashiben. After hitting them on various parts of the body they left, leaving behind the three in an injured condition on their verandah. The three of them were then carried in an ambulance to the Civil hospital at Bharuch by the Sarpanch. Jagdish - accused No. 6 allegedly had an illicit relationship with Jignesh's wife Manisha which was the cause and the motive behind the offence. Jignesh having suspected his wife Manisha of having illicit relations with accused Jagdish had sent his wife to her parents' house. In the cross examination also, this witness agrees to the suggestion put by the defence that in the past both Khushal and Jignesh had arguments with Jagdish over his alleged relationship with Jignesh's wife Manisha. What further emerges from the cross examination of this witness is that the accused and the complainant's family were neighbours. Of the 12 houses in the neighbourhood, 10 were of the accused and 2 were of the family of the complainant. 11.1 The testimony of this witness also gets corroboration from the testimony of P.W. 6 - Snehlata Jacobbhai, the Executive Magistrate before whom the complainant's statement was recorded. Ex. 33 on record is the statement of the complainant recorded by P.W. 6 at the Veer Surgical hospital. A perusal of the statement so given before P.W. 6 also reveals that all the accused were distinctively named in such statement. What comes forth from the statement also is that Kashiben who had tried to intervene had also sustained fractures on the hand and the leg. 11.2 The testimony of this witness therefore when appreciated in the context of the contents of the First Information Report and the statement given before P.W. 6 at Ex. What comes forth from the statement also is that Kashiben who had tried to intervene had also sustained fractures on the hand and the leg. 11.2 The testimony of this witness therefore when appreciated in the context of the contents of the First Information Report and the statement given before P.W. 6 at Ex. 33 inspires confidence. He has given names of all the 9 accused and also stated the weapons that they were armed with and the injuries that he sustained. What needs to be further noted is that the credibility of this witness gets sanctified by the fact that he was an injured eye witness and therefore his presence also is established. 12. P.W. 14 - Kashiben, the mother of the first informant and the deceased Jignesh was also present when the incident happened. From her testimony, it is clearly revealed that when the accused came over to her house she was present on the terrace. She named each accused individually and identified them in the court. In her testimony, she also categorically stated the names and the weapons, the stick or the iron rod as the case may be, that each accused wielded. That the motive behind the incident was the illicit relation Jagdish had with the deceased's wife also is confirmed through the cross examination of this witness. That the prosecution could not have examined independent witnesses is evident from the cross examination of this witness. She categorically in the cross examination states that while the accused were attacking her sons, when she intervened, nobody tried to come and save them. 13. Both P.W. 11 and P.W. 14 namely the first informant Khushalbhai and Kashiben had sustained the injuries as is evident from the medical evidence of the two doctors. P.W. 15 - Dr. Binoykumar Sharma, the Medical Officer of the Bharuch Civil hospital had initially treated the injured eye witnesses, the first informant and Kashiben. Jignesh who subsequently died on 16.07.2010 also received primary treatment at the hands of this doctor. The medical certificates at Exs. 65 and 67 indicate that both Khushalbhai and Kashiben had in their histories given to this doctor clearly stated that they had sustained such injuries as a result of being hit by iron rods and sticks by Jagdish and others at 7 pm on 13.07.2010. The medical certificates at Exs. 65 and 67 indicate that both Khushalbhai and Kashiben had in their histories given to this doctor clearly stated that they had sustained such injuries as a result of being hit by iron rods and sticks by Jagdish and others at 7 pm on 13.07.2010. The nature of injuries that both these injured eye witnesses Khushalbhai and Kashiben had suffered were cuts and lacerated wounds on the forehead region and over the elbow and hands. From the testimony of this doctor as well as the certificates so issued, it was evident that the injuries that these witnesses suffered were as a result of being hit by a hard and blunt object. 14. Dr. Dilip Patel, the Medical Officer of the Veer Surgical hospital also had examined the two injured eye witnesses and had issued certificates at Exs. 52, 55 and 57 respectively. He had recorded the nature of injuries that these witnesses sustained. On examination of this witness, there is corroboration of the testimonies of P.W. 13 and P.W. 14 and he too confirms the testimony of the doctor P.W. 15. Here also, the history recorded shows that Khushmanbhai and Kashiben suffered injuries as a result of being attacked by Sandeep, Jagdish, Deepak and others. The defence would however contend that the history was given by the relatives of the deceased Jignesh and the injured witnesses. However, what emerges on reading these certificates together with the testimony of the doctor is that there is corroboration from the evidence of these two witnesses. The doctor records sutured wounds on the parietal region from the eyebrow and abrasions on elbow as far as complainant is concerned. Kashiben's medical certificate is at Ex. 55 and the same shows that she had sutured wounds on the nose and abrasions and cut lacerated wounds on the frontal region about 6 cms in size. She was shifted to Baroda Heart hospital. Jignesh's medical certificate is also on record at Ex. 57. 15. Dr. Lalit Patel, P.W. 10 was the doctor who carried out the postmortem on Jignesh's body. Jignesh survived the attack for three days and succumbed to his injuries on 16.07.2010. The doctor in his cross examination expresses doubt as to whether with the use of a hard and blunt substance with which Jignesh is said to have sustained injuries could have caused death. Jignesh survived the attack for three days and succumbed to his injuries on 16.07.2010. The doctor in his cross examination expresses doubt as to whether with the use of a hard and blunt substance with which Jignesh is said to have sustained injuries could have caused death. What further emerges from the records of this doctor is that in the opinion of the doctor, had Jignesh received specialized treatment he could have survived the attack. The doctor also further opines that the blood clots had caused hemorrhage and the death was due to shock. 16. On a collective reading of the evidence on record, therefore, the following undisputed facts emerge: "(a) That the accused, 9 in number, were carrying iron rods and sticks in their hands. They approached the house of the first informant. Jignesh was present there with the first informant. Harbouring ill-will as a result of the illicit relation that Jagdish was suspected to have with the deceased Jignesh's wife, all of them collectively attacked the first informant and Jignesh on various parts of the body particularly, the head, hands and the legs. (b) After having hit them on various parts of the body finding them unconscious they left without inflicting further harm. (c) Their presence at the scene of the offence was even corroborated by the version of the other injured eye witness Kashiben. (d) That the neighbourhood of 12 houses was predominantly occupied by the accused is evident; that of the 12 houses in the neighbourhood, 10 were of the accused. This also lends credence to the presence of these accused at the scene of offence. (e) The defence's suggestion that no independent witnesses were examined though according to them, P.W. 17, the Investigating Officer Rakeshbhai Patel had in his cross examination stated the presence of other witnesses, does not in any manner dilute the prosecution story. What is evident from the cross examination of Kashiben is that when the attack happened, none from the vicinity came to save them. Obviously, therefore, it was Kashiben, complainant and deceased who were left to fend for themselves. Jignesh having succumbed to the injuries, it was only for the first informant and injured Kashiben to unfold the events that happened on 13.07.2010. Obviously, therefore, it was Kashiben, complainant and deceased who were left to fend for themselves. Jignesh having succumbed to the injuries, it was only for the first informant and injured Kashiben to unfold the events that happened on 13.07.2010. Evidence of the doctors P.W. 13 and P.W. 15 when examined in light of the injuries that these injured eye witnesses sustained also establish their presence at the scene of offence and strengthen their version as injured eye witnesses." 17. From the aforesaid analysis, what stands established is that all the accused had carried out the offending act in question and attacked both the first informant and Kashiben who survived the injuries. Jignesh who had sustained injuries succumbed three days after the incident on 16.07.2010. 18. From the evidence of the doctors P.W. 10, P.W. 13 and P.W. 15, what emerges is that the attack and the injuries that consequentially resulted were as a result of the weapons which were hard and blunt namely the rods and sticks. Injuries were sustained on the head, the hands, on the nose and arms. The nature of injuries were in the form of cuts and lacerated wounds and abrasions as far as Kashiben and the complainant are concerned. Medical opinion is unequivocal on the fact that the injured witnesses had not sustained any fracture. Though Jignesh succumbed to the injuries three days after the attack on 16.07.2010, the doctor in his opinion when examined as P.W. 10 records that it cannot be presumed that death could have occurred as a result of the injuries that the deceased sustained. Jignesh was initially treated at Bharuch Civil hospital and from there he was taken to Veer Surgical hospital from where he was shifted to Baroda Heart hospital where he succumbed to the injuries. The postmortem report states that the cause of death was apparently due to the blood clotting and the hemorrhage as a result of the head injury. 19. In light of the evidences of these witnesses together with the medical evidences on record it cannot therefore be said that the attack was done with an intention to cause death or to cause such bodily injury as was likely to cause death. Their intention therefore cannot be to cause such injuries which would cause death. 19. In light of the evidences of these witnesses together with the medical evidences on record it cannot therefore be said that the attack was done with an intention to cause death or to cause such bodily injury as was likely to cause death. Their intention therefore cannot be to cause such injuries which would cause death. Kashiben and the complainant Khushalbhai stated in their evidences that the accused though attacked them with these weapons, left soon thereafter leaving them on their verandah. The testimonies of the doctor reveals that it was not necessary that the injuries would have proved fatal and that had the injuries been treated properly, the death could have been avoided. The deceased was shifted to three hospitals and died three days later. In light of the nature of the evidences of these witnesses and the medical evidence on record, the conviction and sentence rendered by the learned Sessions Judge convicting the accused under section 302 IPC therefore needs to be altered. 20. Accordingly, the conviction of the accused - appellants herein under sections 302 of the Indian Penal Code is altered to one under section 304 (Part II) of the Indian Penal Code. The appellants - original accused are ordered to undergo rigorous imprisonment for a period of seven years under section 304 (Part II) of Indian Penal Code instead of life imprisonment as awarded by the trial court under section 302 IPC. The amount of fine shall remain unaltered. The accused who have served out the modified sentence shall be released forthwith if not required in any other offence. The appellant of Criminal Appeal No. 746 of 2013 who is on bail is granted time upto 31.07.2017 to surrender before the jail authorities. His bail bond shall stand cancelled on surrender or on 01.08.2017 whichever is earlier. The judgement and order dated 23.08.2012 is modified accordingly. Appeals are partly allowed. R & P to be transmitted to the trial court forthwith.