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2021 DIGILAW 268 (GUJ)

Khetabhai Ladhubhai Bharwad v. State of Gujarat

2021-03-25

A.J.DESAI, A.S.SUPEHIA

body2021
JUDGMENT : A.S. SUPEHIA, J. 1. Both these appeals are filed under section 374 of the Code of Criminal Procedure, 1973 (Cr.P.C.) which arise out of common judgment and order dated 30.05.2019 passed by learned 3rd Additional District & Sessions Judge, Ahmedabad (Rural), Dist. Ahmedabad, in Sessions Case No.101 of 2017, are being decided analogously by this common judgment. 2. Criminal Appeal No.1285 of 2019 is filed by the original accused No.1 challenging his conviction under section 302 of the Indian Penal Code, 1860 (IPC), whereby he is sentenced to imprisonment of life. Various other periods of sentences with fines are also prescribed for offences under sections 323, 324 and 325 of the IPC but the same are directed to run concurrently. 3. Criminal Appeal No.1222 of 2019 is filed by the original accused Nos.2 and 3 challenging the conviction for the offences punishable under sections 323, 324, 325 and 294(b) of the IPC and for the offence punishable under section 135(1) of the Gujarat Police Act,1951. The maximum sentence of three years is imposed for the offence punishable under section 325 of the IPC. Other sentences with fines are prescribed but the same are ordered to run concurrently. 4. The case of the prosecution emanates from the F.I.R. being C.R. No.I-96 of 2015 registered with Nikol Police Station by one Vivek Jitendra Patil (deceased) against the appellants (accused No.1 and two unknown persons) for the offences punishable under sections 324, 294(b), 114 of the IPC and section 135(1) of the Gujarat Police Act. The F.I.R. was registered on 30.12.2015 at 7:30 hrs. inter alia stating that on 30.12.2015 at around 00:30 hrs, when Vivek (deceased) and his friend namely, Dharmendrasinh Jitendrasinh Tavar were passing at Nikol Ras Paan Crossroads on their motorcycle, accused No.1 had instructed them to stop their motorcycle and he had inquired from the first informant (deceased) about the quarrel, which had happened before two days. It is further stated that accused No.1 was accompanied by two unknown persons and suddenly accused No.1 got enraged and started abusing the first informant and thereafter assaulted him by inflicting the stick blows on his left hand and left leg. Thereafter, one of the unknown persons inflicted the stick blow in the right hand of the first informant and another unknown persons had also given the stick blows. Thereafter, one of the unknown persons inflicted the stick blow in the right hand of the first informant and another unknown persons had also given the stick blows. It is stated that when Dharmendrasinh tried to intervene, he was also inflicted the stick blows on the left leg by accused No.1 and one of the unknown persons has given the stick blow on his left wrist and the second unknown person has also inflicted the stick blow on the back of Dharmendrasinh. After hue and cry, the accused had fled away from the scene of offence. Thereafter, the first informant – Vivek Jitendra Patil passed away during the treatment on 03.01.2016 at 20:00 hrs. and hence, a report to add section 302 of the IPC was also filed. Accused were arrested in connection with the F.I.R. on 04.01.2016 and after completion of the investigation, charge-sheet came to be filed before the court of learned Magistrate on 24.02.2016 however, since the case was exclusively triable by the Sessions Court, the case came to be committed under the provision of Section 209 of the Cr.P.C. and was numbered as Sessions Case No.101 of 2017. 5. The charge was framed vide Exh.9 on 03.11.2017 for the offences punishable under Sections 302, 324, 323, 325, 294(b) and 114 of the IPC and Section 135(1) of the Gujarat Police Act. All the accused were accordingly tried by the Sessions Court, as they denied all the charges. The prosecution has examined 32 witnesses and adduced as many as 35 documentary evidence and on completion of the evidence and recording of the statement of the accused persons under the provision of 313 of the Cr.P.C. the Trial Court has convicted the accused for the aforementioned offences and accordingly sentenced them. 6. Learned Senior Counsel Mr.Yogesh Lakhani appearing with Mr.Rahul Dholakia, learned advocate for the appellants – original accused submitted that in all 12 witnesses have been examined by the prosecution as panch witnesses i.e. PW Nos.1 to 12 to prove the scene of offence panchnama, inquest panchnama, discovery/ recovery of articles like clothes of deceased and accused, weapons etc. It is submitted that none of the panch witnesses have supported the case of prosecution and have been declared hostile. It is submitted that none of the panch witnesses have supported the case of prosecution and have been declared hostile. It is submitted that the key witness of the case of prosecution i.e. friend of the deceased - Dharmendrasinh Jitendrasinh Tavar PW-16 (Exh.46), who is the sole injured eye-witness and was in company of the deceased when the alleged incident had taken place, has narrated the manner in which the incident took place, which is not in consonance with the case of prosecution. It is submitted that the said witness has not identified the accused persons before the Trial Court. It is further submitted that the mother of the deceased i.e. PW-14 examined by the prosecution at Exh.43 has also not supported the case of prosecution as projected by them. 7. Learned Senior Counsel further submitted that the father of the deceased i.e. Jitendra Sampatrao Patil, who himself is a Police Officer serving as A.S.I. at Shahibaug Police Station, is examined by the prosecution as PW-27 at Exh.73. The said witness is not an eye-witness to the incident. In fact, the story put forth by the said witness is not supported by any material whatsoever on record and is in fact contrary to the evidence of the mother of the deceased i.e. PW-14. It is submitted that there are various improvements made by this witness in his deposition before the Court, which has been duly proved by the defense through the examination of the Investigating Officer i.e. PW-34 including the alleged declaration made by the deceased to this witness while at the hospital. 7.1 Learned Senior Counsel also submitted that even the medical evidence does not lend any credence to the case of prosecution. PW-13 namely Dr.B.S.Shah has been examined by the prosecution at Exh.41. The said witness has performed the postmortem of the deceased, which is produced on record below Exh.42. The said witness has categorically admitted that during the course of his postmortem procedure he did not find any shreds of bones in the blood stream of the deceased. As far as the other medical evidence in nature of treating the doctor is concerned, the same is produced by the prosecution at Exh.55 i.e. PW-19 – Dr.Mohanish Gadhvi. The said witness has categorically admitted that during the course of his postmortem procedure he did not find any shreds of bones in the blood stream of the deceased. As far as the other medical evidence in nature of treating the doctor is concerned, the same is produced by the prosecution at Exh.55 i.e. PW-19 – Dr.Mohanish Gadhvi. The said witness was serving in the Orthopedic Department and when the deceased was brought to him, he had observed that the deceased had sustained fracture injuries in his limbs i.e. both legs and left hand. Learned Senior Counsel further submitted that as the evidence of another treating doctor i.e. PW-17 – Dr.Jagruti Devang Shah at Exh.47, who had examined the injured witness Dharmendrasinh Jitendrasinh Tavar is contrary to the evidence of the injured. 7.2. Learned Senior Counsel also submitted that the other treating doctor is examined by the prosecution being PW-18 i.e. Dr.Paritosh Solanki at Exh.53, who is alleged to have treated the injured eyewitness - Dharmendrasinh Jitendrasinh Tavar. The said witness has come as a proxy to one Dr.Prabhakar. It is also worthwhile to note that no such authority is given by Dr.Prabhakar to the said witness to give deposition before the Court and that none of the medical papers carry any signatures or endorsements by the said witness. It is submitted that reliance has been placed by the prosecution on the Test Identification (TI) Parade conducted in presence of PW-20, executive magistrate, examined by the prosecution at Exh.59 qua original accused Nos.2 and 3. The said TI Parade panchnama is produced below Exh.61. It is submitted that there are numerous discrepancies and infirmities in the TI Parade conducted by the said witness, which has been duly proved in the cross-examination of the said witness. It is submitted that such panchnama was drawn on 19.02.2016, whereas the date of arrest of the accused persons is 04.01.2016 and, therefore, too the same loses its significance. 7.3. Learned Senior Counsel further submitted that PW-28 has categorically admitted that there is neither any endorsement whatsoever by any doctor as to the conscious and fit state of mind of the deceased so as to give the alleged F.I.R. as projected by the prosecution nor any statement is taken by any doctor to that effect. It is also submitted that another Investigating Officer being PW-34 has been examined by the prosecution below Exh.166. It is also submitted that another Investigating Officer being PW-34 has been examined by the prosecution below Exh.166. It is submitted that the investigation carried out by the authorities is highly prejudicial to the accused persons and appears to have been carried out at the behest of the father of the deceased, who is a police official. Further, the learned Senior Counsel submitted that despite such lacuna the accused persons are dramatically arrested without due procedure of law by PW.26 namely Ramsinh Motisinh Solanki, who was serving in the surveillance squad of Nikol Police Station on 04.01.2016. It is the case put forth by the said witness that he has recorded the statement of witnesses from the vicinity of the scene of offence however no such witness are examined by the prosecution, which would have shed light on the incident. 7.4. Learned Senior Counsel further submitted that there are multiple versions pertaining to the incident as alleged. Firstly, is the version which is as per the F.I.R. below Exh.71 wherein, appellant No.1 and two unknown persons are named. Secondly, there are versions by the injured eye-witness PW-16 and first responders PW-23, PW- 24, PW-25, wherein it emerges that the deceased and injured were assaulted by unknown persons. Thirdly, there is version as borne during the TI Parade that 5 to 6 unknown persons along with original accused Nos.2 and 3 had assaulted the deceased. Incidentally, the name of the original accused does not figure in the said version. Fourthly, yet another version comes on record in the medical papers that original accused No.1 along with 20 to 25 unknown persons had assaulted the deceased. Therefore, it is submitted that there is doubt with regard to the prosecution version about the genuineness and trustworthiness of the evidence of such witnesses therefore, it can safely be submitted that more than reasonable doubt is created in the prosecution version even as per the decision of the Apex Court in the case of Harchand Singh and Anr.vs. State of Haryana, AIR 1974 SC 344 . 7.5. Learned Senior Counsel further submitted that much reliance has been placed by the prosecution upon the F.I.R. at Exh.71. 7.5. Learned Senior Counsel further submitted that much reliance has been placed by the prosecution upon the F.I.R. at Exh.71. It is submitted that the prosecution has not been able to prove beyond reasonable doubt that the deceased was the author of the said F.I.R. so as to bring it within the purview of section 32 of the Evidence Act 1872. It is submitted that while giving the F.I.R. no statement of the doctor was recorded as to whether the patient was in a fit and conscious state of mind and oriented so as to give such a lengthy detailed F.I.R. as has been admitted by the Investigating Officer. 7.6. Learned Senior Counsel further submitted that as far as the original accused Nos.2 and 3 i.e. the appellants of Criminal Appeal No.1222 of 2019 are concerned, they are not named in the F.I.R., their arrest on 04.01.2016 is highly controversial and doubtful and without following due procedure of law. It is submitted that panchnama for the body of the accused is drawn at the time of their arrest. Even how did the police conclude that the original accused Nos.2 and 3 are the assailants eludes imagination, more particularly when the Investigating Officer has categorically admitted that they had no physical description or photographs or any other details of the accused at the time of arrest. Even the TI parade is conducted on 19.02.2016 i.e. about one and a half months of the date of arrest of the accused persons i.e. on 04.01.2016, which makes the entire process highly doubtful and it loses its significance. Even the witness PW-Dharmendrasinh Jitendrasinh Tavar has not identified these accused persons in court or support the TI Parade panchnama. To substantiate his case, the learned Senior Counsel has placed reliance on the following judgments: (i) Rattan Singh vs. State of Punjab, AIR 1988 SC 2147 ; (ii) Sukhdev Singh vs. State of Punjab, AIR 1992 SC 755 ; (iii) Sarman and Ors. vs. State of Madhya Pradesh, AIR 1993 SC 400 ; (iv) Kirti Mahto and Ors. vs. State of Bihar, 1994 SCC (Cri.) 1493; AND (v) Harchand Singh and Anr. vs. State of Haryana, AIR 1974 SC 344 . In the alternative, it is submitted that the offence qua accused no.1 may be converted to that of section 325 of the IPC and the sentence may be reduced to that of undergone. 8. vs. State of Bihar, 1994 SCC (Cri.) 1493; AND (v) Harchand Singh and Anr. vs. State of Haryana, AIR 1974 SC 344 . In the alternative, it is submitted that the offence qua accused no.1 may be converted to that of section 325 of the IPC and the sentence may be reduced to that of undergone. 8. Per contra, learned Additional Public Prosecutor appearing on behalf of the respondent – State submitted that the prosecution relies upon the document at Exh.81 i.e. the application given by the deceased, a day prior to the actual incident. If the said application is perused the deceased had clearly referred to an incident a day prior to the incident of 30.12.2015. Further, the application clearly refers to the name of the convict - Khetabhai Laghubhai Bharvad i.e. appellant of Criminal Appeal No.1285 of 2019. The deceased-victim had informed the police that convict - Khetabhai was a headstrong person and anti-social person and he had an apprehension that he would indulge in some fight with the victim deceased. It is submitted that the prosecution further relies upon Exh.71 i.e. the complaint given by the deceased - Vivek Patil, however, the victim died within five days of recording the complaint and, therefore, such complaint would become evidence under section 32(1) of the Evidence Act 1872. It is submitted that the said compliant be examined in the background that the deceased was a young boy aged 24 years. 8.1. Learned Additional Public Prosecutor placed reliance upon the decision rendered in the case of Pradeep Bisoi alias Ranjit Bisoi vs. State of Odisha, (2019) 11 S.C.C. 500 , more particularly Paragraph nos.10-13 thereof on the issue that the statement recorded under sections 161 and 162 of the Cr.P.C. would be a dying declaration as the death occurred within 05 days of the incident. Reliance is also placed on the decision rendered in the case of Purshottam Chopra and Anr. vs. State (Government of NCT of Delhi), (2020) 11 SCC 489 , more particularly paragraph Nos.18.1 to 18.3 and 21 thereof. 8.2. Learned Additional Public Prosecutor also submitted that if the evidence recorded is examined the following facts emerge as per the prosecution. Reliance is also placed on the decision rendered in the case of Purshottam Chopra and Anr. vs. State (Government of NCT of Delhi), (2020) 11 SCC 489 , more particularly paragraph Nos.18.1 to 18.3 and 21 thereof. 8.2. Learned Additional Public Prosecutor also submitted that if the evidence recorded is examined the following facts emerge as per the prosecution. The deceased was a young boy aged 24 years, who had immediately filed a complaint when he was taking treatment in the civil hospital and such complaint was recorded by the Police Officer namely Ramsinh Motisinh Solanki (PW-26) Exh.70. The said witness in his deposition has stated that he was serving in Inway Squad and had recorded the complaint of the deceased Vivek Patil himself and the complaint as submitted by him was recorded and the thumb impression of the deceased was also taken in the complaint. The doctor namely Dr.Jagruti Shah was also examined and if the deposition of the doctor is seen two facts emerged, being firstly that when the doctor examined the victim, the victim was conscious and further that the victim was not under the influence of alcohol. 8.3. Learned Additional Public Prosecutor submitted that the prosecution also relies upon the injury certificate (Exh.48), wherein the first description of the injured - Dharmendrasinh Jitendrasinh Tavar indicates that on 30.12.2015 at around 1:30 at Ras Pan Crossroads, Nikol, Khetabhai Bharvad had injured them with the stick. It is also submitted that the said complaint may also be examined in light of the deposition of PW-29 Jitendra Sampatrao Patil (father of the deceased) Exh.73, wherein the deceased had informed his father about the incident, which would be in the nature of oral dying declaration. It was submitted that lastly, the deposition of the doctor namely Dr.B.S.Shah, PW-13 (Exh.41), who conducted the postmortem, who has deposed that the injuries shown in column nos.17 and 18 of the postmortem report were sufficient to cause death. Reliance is placed upon the case of the Shama vs. State of Haryana, (2017) 11 SCC 535 , more particularly paragraph nos.26-28 thereof. 9. We have given our thoughtful consideration on the submissions advanced by the learned advocates appearing for the respective parties. The evidence is also perused threadbare. 10. The case of the prosecution stems out from the complaint at Exh.71 dated 30.12.2015, which was made by the deceased – first informant. 11. 9. We have given our thoughtful consideration on the submissions advanced by the learned advocates appearing for the respective parties. The evidence is also perused threadbare. 10. The case of the prosecution stems out from the complaint at Exh.71 dated 30.12.2015, which was made by the deceased – first informant. 11. A perusal of the complaint at Exh.71 reveals the name of accused No.1 and the role attributed to him. The relevant portion of the compliant dated 30.12.2015 is incorporated as under: “Today on 30.12.205 at night at around 12:30, when I was going with my friend Dharmendra Tavar, resident of B-27, Manohar Villa, nikol, Ahmedabad on motorcycle and when we were on road opposite Raspaan Party Plot, at that time Kheta Bharvad, who is resident of Ankur Row House asked me to stop and accordingly, I had stopped my motorcycle and at that time, Kheta Bharvad along with two persons whose address is unknown to me had given abuses and said to me that you have become leader / goon (dado) and two days before why did you enter in altercation with me; and he suddenly got provoked. Kheta had assaulted me with stick and when I had fallen down, he had assaulted me with stick on my both the legs and at that time, when my friend Dahrmendra came to my rescue, two persons had inflicted stick blows and due to which my friend had suffered injuries on his left leg and left hand. We suffered injuries on both legs and hand due to the assault of Kheta and his accomplice and at that time, due to hue and cry, other persons had gathered there and called 108 and accordingly I and my friend were taken to the hospital and Kheta and his friendes at that time had ran away. Presently we are in hospital and are fully conscious.” The aforesaid version given by the deceased in his complaint dated 30.12.2015 clearly establishes the presence of accused No.1 at the scene of offence and the role attributed to him. Accused Nos.2 and 3 are not named in the complaint. The complaint also reveals the manner and method in which the stick blows were inflicted by the accused on the deceased. It signifies that the accused had assaulted the deceased with sticks and had inflicted blows on their hands and legs. Accused Nos.2 and 3 are not named in the complaint. The complaint also reveals the manner and method in which the stick blows were inflicted by the accused on the deceased. It signifies that the accused had assaulted the deceased with sticks and had inflicted blows on their hands and legs. The complainant, was fully conscious at the time of recording of the complaint. Both the deceased and his friend were admitted in the hospital and had undergone necessary medical treatment and thereafter the complainant passed away on 03.01.2016. The medical evidence also establishes that the deceased was fully conscious when he arrived in the hospital. 12. Initially, the offence was registered for the offences under sections 302 of the IPC and thereafter, section 325 of the IPC was added when the investigation was undertaken by PW-31 – Niranjan Nathusinh Chavda, who is examined at Exh.79. It is emerging from the evidence that he has taken the statement of the mother of the deceased Punjaben Jitendra Patil and father of Dharmendrasinh Jitendrasinh Tavar (PW-16). He has referred to the omission in the deposition of the father of the deceased PW-29. He has submitted that he had started investigation when Vardhi was received from the hospital on 30.12.2015. Thereafter, further investigation was undertaken by the investigating officer (PW-32), Hitendra Jagannath Chaudhary, who is examined at Exh.80. He has referred to the discovery of the sticks used in the offence. He has also asserted that the fact of recording the dying declaration stated by the father of the deceased PW-29. It is also stated by him that no TI Parade was carried out before arresting two unknown persons. He has also narrated the details carried out by the investigation. He has admitted in his cross-examination, that he was neither having any physical description or any photographs of the accused nos.2 and 3 before they were arrested. It is also admitted that no TI parade was done before they were arrested. Thus, it appears that the accused Nos.2 and 3 are arrested without establishing their identity. 13. PW-26, Ramsinh Motisinh Solanki, Police Constable, has recorded the complaint. His evidence at Exh.70 specifically reveals that he has recorded the statement of the deceased on 30.12.2015 and accordingly, the thumb impression of the deceased was taken on the complaint. Thus, it appears that the accused Nos.2 and 3 are arrested without establishing their identity. 13. PW-26, Ramsinh Motisinh Solanki, Police Constable, has recorded the complaint. His evidence at Exh.70 specifically reveals that he has recorded the statement of the deceased on 30.12.2015 and accordingly, the thumb impression of the deceased was taken on the complaint. He has denied the suggestion that he has recorded the statement at the behest of the father of the deceased, who is serving in the police officer. The fact of recording of the dying declaration gets corroborated with the evidence (Exh.73) of the father of the deceased Jitendra Sampatrao Patil (PW-27). He has deposed that when he had reached the hospital, and when his son was being taken for treatment in a stretcher at that time the doctor had informed him that the dying declaration of his son is required to be recorded as his condition was serious. 14. Dr.Jagruti Shah, who had attended the deceased and the friend of the deceased Dharmendrasinh Jitendrasinh Tavar, is examined as PW-17 at Exh.47. In her deposition she has narrated that the patient - Dharmendrasinh had narrated his history and accordingly she has recorded on 30.12.2015 at 1:30 a.m., wherein he has stated that he was assaulted by Kheta with sticks. It is also asserted by her that the patient was fully conscious. The injury certificate at Exh.48 reveals the assault, injury and history given by Dharmendrasinh Jitendrasinh Tavar (PW-16), the friend of the deceased. In the cross-examination it is elicited that on 30.12.2015, when she was serving at the Civil Hospital, Asarwa at Trauma Center as the Medical Officer, at 02:12 hrs., the deceased Vivek and his father Jitendra had visited her without any police yadi and, therefore, she had informed the local police Buckle No.8380 and accordingly started their treatment and father of the deceased had given the history, which was recorded by her. She has referred to the various injuries inflicted on the patient on his legs and hand. From the deposition of the said witness, it is emerging that so far Dharmendrasinh is concerned, she has recorded the history as narrated by him. The injury certificate at Exh.48 also mentions about assault by stick wielded by the accused No.1-Khetabhai Bharwad on the legs of Dharmendrasinh Jitendrasinh Tavar. From the deposition of the said witness, it is emerging that so far Dharmendrasinh is concerned, she has recorded the history as narrated by him. The injury certificate at Exh.48 also mentions about assault by stick wielded by the accused No.1-Khetabhai Bharwad on the legs of Dharmendrasinh Jitendrasinh Tavar. With regard to the history of the deceased is concerned, her testimony and the medical treatment papers of the deceased (Exh.57) reveal that the history with regard to the assault is recorded as per the say of the father of the deceased. The testimony of this witness does not suffer from any blemishes and she establishes herself as a credible witness. 15. The friend of the complainant – Dharmendrasinh Jitendrasinh Tavar, who had accompanied him and was taken to the hospital along with the deceased, is examined as PW-16 at Exh.46. In the examination-in-chief, he has stated that on 30.12.2015, he and the deceased had gone to Nilkanth Bhaji Pav for taking food. He has stated that when they were returning at Ras Pan Crossroads, their motorcycle accidentally dashed with some unknown persons and accordingly there was some altercation between them and due to such altercation, many persons were gathered there and someone from the mob had attacked his friend Vivek and upon him and thereafter they had run away. The entire deposition reveals that he has not supported the case of the prosecution. 16. The prosecution has heavily placed reliance on the application Exh.81 filed by the deceased one day before the date of incident on 29.12.2015 before Nikol Police Station. The application dated 29.12.2015 reveals the name of accused No.1, wherein the deceased had shown apprehension that due to the altercation between him and accused No.1, he might be assaulted by him as accused No.1 is a headstrong and anti-social person and he is roaming to find him in order to assault him. Thus, one day prior to the incident, the deceased had given the application to the Nikol Police Station apprehending the assault on him by the accused No.1. 17. Mother of the deceased - Punjaben Jitendra Patil is examined as PW-14 at Exh.43. It reveals that she has specifically denied that at 12 night, she was present with her husband at home and did not receive any mobile phone call. 17. Mother of the deceased - Punjaben Jitendra Patil is examined as PW-14 at Exh.43. It reveals that she has specifically denied that at 12 night, she was present with her husband at home and did not receive any mobile phone call. She has also asserted that she had not made any application in the police and she was not informed by anyone about the fact that her son Kishan (@Vivek) - deceased was assaulted by sticks. Her examination-in-chief does not implicate the accused in the offence. The prosecution has also placed reliance on her application dated 29.12.2015, Exh.44, which was made by her to the Police Inspector, Nikol Police Station apprehending the assault by accused No.1 on her son. However, she is denying of making such application before the police station. In the cross-examination it is also alleged that she does not know Kheta (the original accused No.1). Thus, the present witness cannot help the prosecution in any manner. 18. Father of the deceased (PW-27) is examined at Exh.73. In his deposition, he has referred to the incident and has submitted that he came to know about the assault on his son and his friend Dharmendrasinh Jitendrasinh Tavar (PW-16), when someone had called his wife at night at 12 O'clock. It is submitted that accordingly he rushed to the place of the incident and they were taken to the Civil Hospital and were admitted for treatment. It is deposed by him that his son had informed him that the original accused No.1-Kheta and two other persons had assaulted them and when he was being taken for surgery, at that time doctor had informed to record his dying declaration that his condition was serious. It is further stated by him that his son had informed him that original accused No.1- Kheta had assaulted him and his friend because of some financial dispute. It is asserted by him that he knows the original accused No.1-Kheta as his neighbor. There are omissions with regard to the phone call received by his wife. His deposition is tainted by minor omission and improvement, but overall his evidence establishes his presence with the deceased in the hospital. 19. The medical papers of the deceased – complainant are produced at Exh.57. There are omissions with regard to the phone call received by his wife. His deposition is tainted by minor omission and improvement, but overall his evidence establishes his presence with the deceased in the hospital. 19. The medical papers of the deceased – complainant are produced at Exh.57. As per the deposition of PW-17 (Dr.Jagruti Devang Shah), the deceased and his friend were admitted in the Emergency Orthopedic Unit at the hospital and their treatment was administered by Dr.M.M.Prabhaka and his unit. The medical papers reveal that the deceased was attended by the team of the doctors. The general examination as well as various injuries as narrated in the deposition of the medical officer reveals that the deceased had suffered injuries on his legs and was conscious. His condition deteriorated on 03.01.2016 and ultimately he passed away. It is also revealed that there were surgeries, which are undertaken on the deceased. It is also established from the evidence that Dr.Prabhakar and other doctors, who are part of the team, are not examined as prosecution witness and instead prosecution has examined Dr.Paritosh Solanki at Exh.53. It is stated by him that patient - Dharmendrasinh was attended by Dr.J.D.Shah (PW-17) and thereafter, referred to the Orthopedic Center. It is specifically asserted by him that he was sent by Dr.Prabhakar to give the testimony as he was engaged at other places. It is stated by him that he along with Dr.Prakash and Dr.Monish had examined the patient - Dharmendrasinh and it was noticed that he was having injuries on his left leg and left hand and accordingly he was sent for further tests. 20. Dr.Monish Gadhvi, PW-19 is examined at Exh.55. It is deposed by him that on examination of the deceased, it was found that he was suffering from fracture below the knees as well as on the left foot. It is further deposed that he has also suffered fracture in his thumb of left hand. It is further stated that on 01.01.2016 a surgery was performed on both the hands of the deceased and on 03.01.2016 the deceased was taken for operation, however, in the evening at 6 O'clock his condition deteriorated and was shifted to the ICU on the ventilator and thereafter, he passed away at 8 O'clock in the evening on 03.01.2016. It is further stated that on 01.01.2016 a surgery was performed on both the hands of the deceased and on 03.01.2016 the deceased was taken for operation, however, in the evening at 6 O'clock his condition deteriorated and was shifted to the ICU on the ventilator and thereafter, he passed away at 8 O'clock in the evening on 03.01.2016. In his cross-examination it is elicited that further treatment was undertaken by Dr.Mahesh, Dr.Vishvas Modi and Dr.Prakash Bishnoi on 01.01.2016. The surgery was carried out by Dr.Padmanathan and Dr.Prakash on 03.01.2016. Dr.Mahesh and Dr.Vishvas have carried out a surgery of right leg of the deceased and these doctors are known to him, and he could recognize their signature. In the cross-examination it is elicited that he has not signed the medical papers, which are produced by him and the entire medical papers do not reveal his signature. From the depositions of the aforesaid PW-18 and PW-19 it is manifested that both the doctors have stated name of Dr.Prabhakar, who is the head of the unit and was referred by PW-17 Dr.Jagruti for further treatment, however, he has not been examined. The medical papers do not bear his signatures, however, it is revealed that they have examined the deceased and has also specified the injuries, which were inflicted on his hand and legs. 21. Dr.B.S.Shah, who has performed the postmortem of the deceased is examined as PW-13. His evidence at Exh.41 and the postmortem report at Exh.42 reveal the injuries suffered by the deceased. The deposition of the doctor as well as the postmortem report reveal that the deceased had injuries on his left hand and legs. He has admitted that such injuries can be caused by a stick. The FSL report also reveals that blood stains were found on two sticks. The discovery panchnama (Exh.37) portrayed that the sticks are thin at one end the other end is thick in diameter. In the depositions these witnesses have referred to 25 injuries, however, it is not stated by him that such injuries caused were not sufficient in the ordinary cause of nature to cause death. In the crossexamination, however, it is elicited that as per his opinion injury Nos.17 and 18 combined are enough to cause death. The injury Nos.17 and 18 referred in the postmortem report are as under. “17. Vertical, stitch wound 2 cm. long on anteromiddle of right leg. In the crossexamination, however, it is elicited that as per his opinion injury Nos.17 and 18 combined are enough to cause death. The injury Nos.17 and 18 referred in the postmortem report are as under. “17. Vertical, stitch wound 2 cm. long on anteromiddle of right leg. 18. Vertical stitch wound 2 cm. long on anterior of right lower leg, 13 cm above ankle.” It is apparent from the postmortem report as well as the deposition of the doctors, the deceased has suffered most of the injuries on his legs and left hand. Out of 25 injuries, which have been referred in the postmortem the wound Nos.5, 8, 10, 12, 13, 14, 15,16,17,18 and 19 pertain to the surgical medical treatment given to the deceased and are medical wounds. The PW-13 in his crossexamination has referred to injury nos.17 and 18 as fatal for the death of the deceased. The said injury pertain to “medical wound” injuries. The same are “vertical stitch wounds”. Hence, it can safely be presumed that other injuries have not contributed to the death of the deceased and were not fatal. It is also not established from his examination-in-chief that the injuries on the legs and hand of the deceased were sufficient enough in the ordinary course of nature to cause death. Thus, the medical evidence is not adequate enough to establish the offence of 302 of IPC. 22. From the analysis of the aforementioned various depositions and evidence, which has come on record, the presence of accused No.1 at the scene of offence and his involvement in the crime is established. The first statement given by the deceased at Exh.71 can be considered as dying declaration for the purpose of evidence under section 32 of the Evidence Act. The complainant – deceased had specifically narrated the role of the original accused No.1 and manner and method, in which he had assaulted him. However, the entire evidence does not reveal the complicity of accused Nos.2 and 3 in the offence. Nor it is emerging from the evidence that how their identity is established and are roped in the offence by the prosecution. The application given by the deceased one day prior to the incident specifically implicates the original accused No.1 at Exh.81, wherein he has expressed his apprehension of assaulting by the accused. Nor it is emerging from the evidence that how their identity is established and are roped in the offence by the prosecution. The application given by the deceased one day prior to the incident specifically implicates the original accused No.1 at Exh.81, wherein he has expressed his apprehension of assaulting by the accused. The evidence also reveals that the original accused No.1 and the deceased were staying in the same locality and knew each other. It is also established from the testimony of the father of the deceased that the original accused No.1 was also known to him and there were some disputes between the deceased and the original accused No.1 with regard to the financial transaction. PW-17, Dr.Jagruti Devang Shah, who had treated both – the deceased as well as his friend – Dharmendrasinh Jitendrasinh Tavar, has recorded the history as narrated by Dharmendrasinh Jitendrasinh Tavar vide Exh.48. In the injury certificate, it is specifically stated by the friend of the deceased that they were assaulted by the original accused No.1 by way of stick and injury certificate also reveals fracture on his legs and hand. Thus, in absence of any reliable or consistent evidence, the presence of accused no.2 and 3 at the scene of offence is not established. 23. In light of the existing evidence, which has come on record the only question which requires to be examined is whether the conviction of the accused is justifiable for the offences punishable under section 302 of the IPC, and if not what offence the accused can be said to have been committed, if any. 24. It is well settled proposition of law that the intention to cause death with the knowledge that the death will probably be caused by such bodily injuries, is a prime consideration for establishing that the death is indeed a murder and the accused had the knowledge that death will probably be caused. The testimonies of the witnesses and the medical evidence do not reveal that the accused had any intention to cause death or with such intention of causing death, the injuries were inflicted on vital parts of the body of the deceased. All the injuries were inflicted on the legs and hand. There were various surgeries performed on the deceased when he was in the hospital and after undergoing medical treatment he expired after three days. 25. All the injuries were inflicted on the legs and hand. There were various surgeries performed on the deceased when he was in the hospital and after undergoing medical treatment he expired after three days. 25. At this stage, we may with profit refer to the observations made by the Apex Court in the case of Sompal Singh & Anr. Vs. State of Uttar Pradesh., (2014) 7 SCC 316 , wherein while referring to the provision of section 320 of the IPC, the court has observed thus in Paragraph Nos.15-16: “15. The gravity of the injury is to be determined in view of the provisions contained in Section 320 IPC, which read: Grievous hurt – The following kinds of hurt only are designated as “grievous”:- Firstly – ………….. xxx xxx xxx Sixthly - Permanent disfiguration of the head or face. Seventhly -Fracture or dislocation of a bone or tooth. Eighthly – Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. 16. So far as the instant case is concerned, clauses sixthly and seventhly may be relevant. Nature of the injuries is to be determined taking into consideration the intense suffering to which it gives rise and the serious disability which it causes the sufferer. However, in clause seventhly, as the term ‘fracture’ has been referred to, it may be necessary that the bone is broken. Mere abrasion would not amount to fracture. Even a cut that does not go across the bone cannot be termed as a fracture of the bone. But if the injury is grave even partial cut of the skull vault (root or chamber) may amount to a fracture. However, clause eighthly refers to the injuries which are not covered under any one of the above clauses firstly to seventhly of the section. However, it labels the injuries as grievous if it endangers life or it causes the sufferer to be during the space of 20 days in severe bodily pain or which causes the sufferer to be during the space of 20 days unable to follow his ordinary pursuits and all the three clauses have to be read independently. This is a very thin and subtle demarcation line between ‘hurt which endangers life’ and ‘injury as is likely to cause death’. This is a very thin and subtle demarcation line between ‘hurt which endangers life’ and ‘injury as is likely to cause death’. Therefore, sometimes it becomes very difficult as to whether a person is liable under Section 325 IPC for causing grievous hurt or under Section 304 IPC for culpable homicide not amounting to murder when the injury results in the death of the victim. In the present case, the injuries nos. 1 and 2 are beyond `hurt which endanger life’ and clearly falls in the category of ‘injuries as are likely to cause death’ even though each injury may not be individually sufficient to cause death.” The Apex Court, while examining the injuries inflicted on the head of the deceased, has observed that nature of the injuries is to be determined taking into consideration the intense suffering to which it gives rise and the serious disability which it causes the sufferer. While referring to the kinds of hurt as stipulated under section 320 of the IPC, the Apex Court has held that there is a very thin and subtle demarcation line between “hurt which endangers life” and “injury is likely to cause death”. It is also observed that sometimes it becomes very difficult as to whether a person is liable under section 325 of the IPC for causing grievous hurt or under section 304 of the IPC for culpable homicide not amounting to murder when injury results in the death of the victim. In the aforesaid background, the Apex Court converted the conviction under section 302(2) of the IPC to 304 Part-I of the Indian Penal Code, 1860, however, in the present case the medical evidence reveals that the injuries were only inflicted on the legs and hand of the deceased and the overall medical evidence which is emerging from the record does not in any manner indicate that such injuries were likely to cause death. The evidence reveals that the accused had no intention to cause death or he had the knowledge that such bodily injury (i.e. fractures on legs and hand) would lead to death. The evidence reveals that the accused had no intention to cause death or he had the knowledge that such bodily injury (i.e. fractures on legs and hand) would lead to death. The type of the weapon used in the present offence i.e. stick and the infliction of the same on the body part of the deceased i.e. legs and hand coupled with the medical evidence, clearly indicates that the offence would not fall under the definition of section 300 of the IPC, which defined “murder”. There are no injuries found on the vital part of the deceased and even looking to the dying declaration of the accused, he had specifically stated that he is assaulted by accused No.1 on his legs and hand. Thus, the evidence does not satisfy the requirements of provision of section 300 of the IPC. 26. The case of accused no.1 will fall under “Eighthly” of section 320 of IPC which defines “Grievous hurt” since the deceased had suffered severe bodily pain during the space of twenty days as suggested in the clause. It is established that the deceased was conscious throughout the treatment, except on the last date of death on 03.01.2016. The medical evidence also does not bring out that the injuries which were caused were fatal in ordinary course, which resulted into death of the deceased. In the considered opinion of this court, accused No.1 can be said to have committed offence under section 325 of the IPC, which is punishable with imprisonment of either description for a term which may extend to seven years and shall also liable for fine. The Trial Court has fallen in error by convicting accused no.1 for the offence punishable under section 302 of the IPC and also convicting the accused nos.2 and 3. 27. In the decision of the Apex Court in the case of Rattan Singh (supra) while examining the case of offence under section 302 and the injuries inflicted by lathies (sticks) the Apex Court has altered the offence to that of section 325 of IPC by observing thus: “On appeal learned Judges of the High Court after considering the evidence acquitted all others, but convicted the present three appellants Ran Singh, Dan Singh and Rattan Singh and that all the three appellants have been convicted under section 302 and sentenced to imprisonment for life and a fine of Rs. 5000.00 each. 5000.00 each. After hearing learned counsel for the parties, it is apparent that these three appellants have been convicted under section 302 and therefore, it is necessary to find out the injury inflicted by each one of them on the person of the deceased. Admittedly according to the prosecution's own case Ran Singh and Rattan Singh were carrying lathies which could be described as hard and blunt object. Such injuries on the person of the deceased were either on hands or on feet and at best what could be attributed to them could be injuries resulting in fractures. None of these two appellants could be convicted for causing injuries individually which could make out an offence under section 302. At best they could only be convicted under section 325 and maximum sentence under section 325 is seven years.” 28. On the substratum of the above analysis, the conviction of accused No.1 for the offence punishable under Section 302 of the IPC is altered to that of section 325 of the IPC. In our opinion, ends of justice would be met, if accused no.1 (appellant of Criminal Appeal No.1285 of 2019), is sentenced to undergo five years of rigorous imprisonment with no change in fine. He is acquitted for the offence punishable under section 294(b) of the IPC. No separate sentence is prescribed for the offence punishable under section 135(1) of the Gujarat Police Act,1951. 29. With regard to the complicity of accused Nos.2 and 3 (appellants of Criminal Appeal No.1222 of 2019) in the offence is concerned, the evidence is blissfully silent about their presence at the scene of offence. The prosecution has also miserably failed in establishing their involvement in the offence. Accused nos.2 and 3 are acquitted for the offences, for which they were charged. Fine, if any, paid by them shall be refunded. Bail bonds stand discharged. 30. Accordingly, Criminal Appeal No.1285 of 2019 is PARTLY allowed and Criminal Appeal No.1222 of 2019 is allowed. 31. Record and proceedings be sent back to the concerned Trial Court forthwith.