Gujarat High Court
Narsing Bhaylabhai Rathwa vs State Of ... on 24 April, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/34/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 34 of 2009
With
CRIMINAL APPEAL NO. 35 of 2009
With
CRIMINAL APPEAL NO. 2232 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR
BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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NARSING BHAYLABHAI RATHWA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
CRIMINAL APPEAL Nos.34 & 35 of 2009
MR MRUDUL M BAROT, ADVOCATE for the Appellant(s) No.1
MS CHETNA SHAH, APP for the Opponent/Respondent No.1
CRIMINAL APPEAL No.2232 of 2009
MR VD PARGHI, ADVOCATE for the Appellant(s) No. 1
Page 1 of 27
R/CR.A/34/2009 CAV JUDGMENT
MS CHETNA SHAH, APP for the Opponent/Respondent No.1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 24/04/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. As all the three above captioned appeals arise from a common judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No.2, Chhota Udaipur, dated 23rd December 2008 in Sessions Case No.38 of 2008, those were heard analogously and are being disposed of by this common judgment and order.
2. The Criminal Appeal No.35 of 2009 is at the instance of two convicts i.e. accused no.3 and accused no.4, viz. Nurabhai Kamlabhai and Khumansinh Nurabhai. The Criminal Appeal No.34 of 2009 is at the instance of two convicts, accused nos.1 and 2, viz., Narsing Bhaylabhai Rathva and Vestabhai Railabhai Rathva. The Criminal Appeal No.2232 of 2009 is a successive appeal at the instance of the accused no.2, Vestabhai Railabhai Rathva.
Page 2 of 27 R/CR.A/34/2009 CAV JUDGMENT
3. The three Criminal Appeals are at the instance of four convicts of the offence punishable under Sections 302 and 504 read with Section 114 of the Indian Penal Code and are directed against the order of conviction and consequent sentence dated 23rd December 2008 passed by the learned Additional Sessions Judge, Fast Track Court No.2, Chhota Udaipur, in Sessions Case No.38 of 2008. By the aforesaid order, the learned Additional Sessions Judge sentenced all the four accused appellants to suffer life imprisonment with a fine of Rs.3,000/- each for the offence under Section 302 read with Section 114 of the Indian Penal Code. In default of payment of fine, the accused-appellants were directed to undergo further rigorous imprisonment for one year. The learned Additional Sessions Judge found the original accused no.1, Narsing Bhayla Rathva, one of the appellants of the Criminal Appeal No.34 of 2009, also guilty of the offence under Section 504 of the Indian Penal Code and consequently sentenced him to suffer rigorous imprisonment for the period of six months, with fine of Rs.500/-. In default of payment of fine, the trial Court directed the appellant to undergo further simple imprisonment for a period of one month.
Page 3 of 27 R/CR.A/34/2009 CAV JUDGMENT
4. CASE OF THE PROSECUTION:-
4.1 Shorn of details of the prosecution case is that on 3 rd April 2008 at around 10:15 hours the deceased viz., Senglabhai Kamlabhai along with his daughter-in-law viz. Sarjuben Rathva had gone to collect Mahuda flowers at the Village-Jodavant. At that time, the accused-appellants met the deceased and his daughter-in-law on the way and the accused no.1-Narsing Bhayla started hurling filthy abuses to the deceased. It is the case of the prosecution that the accused no.1, Narsing Bhayla told the deceased that as he (the deceased) wanted more land and more flowers of Mahuda he would give it to him on that day and stating so hit a blow on the head of the deceased with a Dinga (hard and blunt object), whereas the accused no.2, Vestabhai Rathva hit blows with a Dinga on the neck and back of the deceased. The accused nos.3 and 4, viz., Nurabhai and Khumansinh gave fisty-cuffs to the deceased. 4.2 The PW-6, Sarjuben, the daughter-in-law of the deceased lodged a First Information Report on 3rd April 2008 at Rangpur Police Station, Exh.43, stating that on the date of the incident at around 10 O' clock in the morning she herself along with her Page 4 of 27 R/CR.A/34/2009 CAV JUDGMENT father-in-law were on their way towards the sim of Village-
Ferkua for the purpose of collecting Mahuda flowers. The PW-6 has stated that while they were on their way they met the accused-appellants. She has stated that the accused no.1- Narsing and the accused no.2-Vesta hit the blows on the body of the deceased with a Dinga saying that the blows were being hit as the deceased wanted more share in the Mahuda flowers. She has further stated that the accused nos.3 and 4 gave fisty cuffs to the deceased, as a result, her father-in-law, the deceased, fell down. She has stated that on shouts being raised by her, her sister-in-law, Jeruben, the PW-17 and other persons residing in the locality came running at the place of occurrence. She has stated that the accused persons thereafter left the place hurling filthy abuses. As the father-in- law of the deceased was seriously injured and was bleeding profusely, she herself along with her sister-in-law, the PW-17, Jeruben, took the deceased to the Chhota Udaipur government dispensary. While the treatment was being given to the deceased at the government hospital, the husband of the complainant and her brother-in-law also reached the hospital. Thereafter, the deceased was advised to be shifted to the SSG Hospital at Vadodara, with a refer memo. She has stated that after her father-in-law was taken to the SSG Hospital, Page 5 of 27 R/CR.A/34/2009 CAV JUDGMENT Vadodara, she returned home and at around 8 O' clock in the late evening her husband and her brother-in-law informed her that while shifting the deceased to the SSG Hospital, Vadodara, he succumbed to the injuries.
4.3 On complaint being lodged, the investigation had commenced. The inquest panchnama of the dead body of the deceased, Exh.46, was drawn in presence of the panch witnesses. The scene of offence panchnama, Exh.47, was drawn in presence of the panch witnesses. The map of the scene of occurrence, Exh.22, was drawn by the Circle Inspector. The dead body of the deceased was sent for the postmortem examination and the postmortem report, Exh.14, noted that the cause of death was hemorrhagic shock due to multiple fractures on the head and profuse bleeding. The clothes of the deceased were collected by drawing a panchnama, Exh.52 and were sent to the Forensic Science Laboratory for chemical analysis. The discovery panchnama of the weapon of offence, Exh.26, was drawn in presence of the panch witnesses. The accused-appellants were arrested and their arrest panchnamas, Exhs.41, 48 and 49, were drawn in presence of the panch witnesses. The statements of various witnesses were recorded. The serological test report, Exh.55, Page 6 of 27 R/CR.A/34/2009 CAV JUDGMENT noted that human blood was detected on the shawl of the accused no.1 of blood group "A" matching with the blood group of the deceased. The muddamal article 15 i.e. Dingo was also detected with human blood matching with the blood group of the deceased.
4.4 Finally, charge sheet was filed against the accused- appellants in the Court of Judicial Magistrate, First Class. As the case was exclusively triable by the Sessions Court, the Judicial Magistrate, First Class, committed the case to the Sessions Court under Section 209 of the Criminal Procedure Code.
4.5 The Sessions Court framed the charges against the accused appellants, Exh.3 and the statements of the accused- appellants were recorded. The accused persons did not admit the charge and claimed to be tried.
4.6 The prosecution adduced the following oral evidence in support of its case.
PW-1 Dr.Jitendrakumar Ganeshilal Verma Exh.9 PW-2 Valsing Jamsingbhai Rathva (panch) Exh.15 Page 7 of 27 R/CR.A/34/2009 CAV JUDGMENT PW-3 Dursibhai Virjibhai Rathva (panch) Exh.16 PW-4 Ramaniklal Laljibhai Gondaliya (Scientific Exh.17 officer) PW-5 Udesingbhai Chamarbhai Rathva (Circle Exh.20 Inspector) PW-6 Sarjuben (Sahju) Jorlabhai Rathva Exh.24 (Prosecutrix) PW-7 Bhailalbhai Gatubhai Rathva (panch) Exh.25 PW-8 Karamsing Chhotubhai Rathva (panch) Exh.27 PW-9 Dalsingbhai Raylabhai (panch) Exh.28 PW-10 Kutariyabhai Chimdiyabhai Rathva (panch) Exh.29 PW-11 Ghugharbhai Thuthiyabhai (panch) Exh.30 PW-12 Shyamlal Harchand Mali (panch) Exh.31 PW-13 Narajubhai Bhikhabhai Dhanuk (panch) Exh.32 PW-14 Shankarbhai Dhudharabhai Rathva (panch) Exh.33 PW-15 Khimabhai Puniyabhai Rathva (panch) Exh.34 PW-16 Lalubhai Indrasing Rathva (panch) Exh.35 PW-17 Jeruben Fatesing Rathva (panch) Exh.36 PW-18 Udaliben Shankarbhai (witness) Exh.37 PW-19 Makadiyabhai Bhavanbhai (panch) Exh.38 PW-20 Bhavsingbhai Mohanbhai Rathva (panch) Exh.39 Page 8 of 27 R/CR.A/34/2009 CAV JUDGMENT PW-21 Rajubhai Ramanbhai (panch) Exh.40 PW-22 Ankur Chotubhai Patel (investigating officer) Exh.42 4.7 The following pieces of documentary evidence were adduced by the prosecution.
1 The case papers of CHC Chhota Udaipur Hospital. Exh.10 2 The letter of hospital intimating the police to take Exh.11 D.D. 3 The yadi for the postmortem. Exh.12 4 The police report. Exh.13 5 P.M.Note Exh.14 6 The yadi of making investigation of the offence Exh.18 to FSL.
7 The report of FSL. Exh.19 8 The yadi for the map. Exh.21 9 The map of the place of occurrence. Exh.22 10 Abated summary. Exh.23 11 Discovery panchnama. Exh.26 12 The panchnama of physical condition of the Exh.41 accused Narsing Bhayla.
13 The complaint of the prosecutrix Sahjuben. Exh.43 14 The special report. Exh.44 Page 9 of 27 R/CR.A/34/2009 CAV JUDGMENT 15 The yadi of filing inquest of the dead body of the Exh.45 deceased.
16 The inquest panchnama. Exh.46 17 The panchnama of place of occurrence. Exh.47 18 The panchnama of the physical condition of the Exh.48 accused Vestabhai Rayla.
19 The panchnama of physical condition of the Exh.49 accused Nurabhai Kachlabhai Rathva.
20 The discovery panchnama. Exh.50 21 The yadi of taking blood sample. Exh.51 22 The panchnama in respect of seizure clothes of Exh.52 the deceased.
23 The entry of sending muddamal to FSL. Exh.53 24 The receipt in token of receiving muddamal at Exh.54 FSL.
25 The report of FSL. Exh.55 26 The notification of the Additional District Exh.56 Magistrate.
27 The copy of abstracts of station diary. Exh.57 28 The yadi of PSI to the Medical Officer for taking Exh.67 blood sample of the accused Narsing Bhayla. 4.8 After completion of the oral as well as documentary evidence of the prosecution, the statements of the accused Page 10 of 27 R/CR.A/34/2009 CAV JUDGMENT persons under Section 313 of the Criminal Procedure Code were recorded in which the accused persons stated that the complaint was a false one and they had been falsely implicated in the crime.
4.9 At the conclusion of the trial, the learned trial Judge convicted the accused persons for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code and sentenced them as stated herein before. 4.10 The learned trial Judge also convicted the accused no.1 for the offence punishable under Section 504 of the Indian Penal code and sentenced him as stated herein before. 4.11 Being dissatisfied, the accused-appellants have come up with the present appeals.
5. CONTENTIONS ON BEHALF OF THE ACCUSED-
APPELLANTS:-
5.1 Mr.Mrudul Barot, the learned advocate appearing for the appellants of Criminal Appeals No.34 of 2009 and 35 of 2009 respectively and Mr.V.D.Parghi, the learned advocate appearing for the appellant of Criminal Appeal No.2232 of 2009 have Page 11 of 27 R/CR.A/34/2009 CAV JUDGMENT submitted that the trial Court committed a serious error in holding the accused-appellants guilty of the offence of murder by relying on the evidence of the PW-6, Sarjuben and the PW-
17, Jeruben. It has been vehemently submitted on behalf of the accused-appellants that Sarjuben has suppressed material facts regarding the injuries sustained by the accused no.1. It has been submitted that the PW-6, Sarjuben, cannot be termed as a reliable witness and in the same manner the PW-17, Jeruben also cannot be termed as a reliable witness. The learned counsel for the appellants submitted that non- explanation of the injuries sustained by the accused no.1 has rendered the entire case of the prosecution doubtful. 5.2 In such circumstances, referred to above, they pray that the order of conviction and sentence imposed by the trial Court deserves to be set aside.
6. CONTENTIONS ON BEHALF OF THE STATE:-
6.1 Ms.Chetna M. Shah, the learned Additional Public Prosecutor has vehemently opposed the appeals filed by the convicts and submits that the trial Court committed no error in finding the accused persons guilty of the offence of murder Page 12 of 27 R/CR.A/34/2009 CAV JUDGMENT punishable under Section 302 read with Section 114 of the Indian Penal Code. Ms.Shah submitted that on the day of the incident, the PW-6, Sarjuben, the daughter-in-law of the deceased was along with the deceased and is a eye-witness to the incident. Ms.Shah submits that her ocular version is fully corroborated by the medical evidence on record. Ms.Shah submits that the PW-17, Jeruben, is also an eye-witness to the incident and the trial Court has rightly appreciated the evidence of the PW-17.
6.2 In such circumstances, referred to above, Ms.Shah prays that there being no merit in any of the appeals, they be dismissed.
7. ORAL EVIDENCE ON RECORD:-
7.1 On a close scrutiny of the entire evidence on record, it appears that the conviction of the accused-appellants is based on the evidence of the PW-6, Sarjuben Rathva and the PW-17, Jeruben Rathva. It appears that all other witnesses, more particularly, the panch witness have not supported the case of the prosecution and have been declared as hostile witnesses. Page 13 of 27 R/CR.A/34/2009 CAV JUDGMENT 7.2 We, therefore, propose to consider the evidence of the PW-6 and the PW-17.
7.3 The PW-6, Sarjuben, is the daughter-in-law of the deceased and on the day of the incident was in company of the deceased. The PW-6, in her evidence, Exh.24, has deposed that at around 10 O' clock in the morning while she herself and her father-in-law, the deceased, were on their way for collecting Mahuda flowers the accused-appellants met them and picked up a quarrel with the deceased. According to the PW-6, the accused no.1 hit a blow on the head of her father-in- law with a Dinga, he was carrying in his hand whereas the accused no.2 hit blows with a Dinga on the neck and the back of the deceased. She has further deposed that the accused nos.3 and 4 gave fisty cuffs to the deceased. According to the PW-6, she raised shouts as a result her sister-in-law, the PW-17, Jeruben, came running at the place of occurrence and, thereafter, the deceased was shifted to the hospital. In her cross-examination, a specific question was put to her regarding the injuries sustained by the accused no.1 in the incident. However, the PW-6 denied the same.
Page 14 of 27 R/CR.A/34/2009 CAV JUDGMENT 7.4 The PW-17, Jeruben, in her evidence, Exh.36, has deposed that the deceased happened to be her father-in-law. She has deposed that on the day of the incident, the accused no.1 hit a blow on the head of her father-in-law with a Dinga whereas the accused no.2 hit blows on the neck and back of her father-in-law and the accused nos.3 and 4 gave fisty cuffs. She has deposed that thereafter the deceased was taken to the Chhota Udaipur hospital and while on the way to the SSG Hospital, Vadodara, her father-in-law succumbed. In her cross- examination, she has deposed that she had seen the injuries on the accused no.1 but had no idea how the accused no.1 had sustained those injuries. She denied having stated before the police in her statement recorded under Section 161 of the Criminal Procedure Code that her father-in-law uttered filthy words to the accused no.1 and hit a blow with a Palia, which was in his hand, on the body of the accused no.1, and no sooner the second blow was hit by her father-in-law on the body of the accused no.1 then the accused no.1 got angry and hit a blow with a Dinga on her father-in-law. 7.5 Thus, from the evidence of the PW-6, Sarjuben and the PW-17, Jeruben, it appears that they were not true enough to depose before the Court that, in the incident, the accused no.1 Page 15 of 27 R/CR.A/34/2009 CAV JUDGMENT had also sustained injuries and it was the deceased who was the aggressor.
7.6 At this stage, we deem it necessary to look into the evidence of the PW-22, Ankur Patel, the investigating officer, Exh.42. The PW-22 in his evidence has clearly deposed that in the course of investigation it was revealed that the deceased had inflicted injuries on the accused no.1 with a Palia. He has further deposed that the accused no.1 had lodged a complaint in that regard at the police station vide C.R.No.I-27/2008 for the offence punishable under Section 326 of the Indian Penal Code. He has deposed that the complaint was reduced into writing, as narrated by the accused no.1. He has further deposed that the injuries sustained by the accused no.1 in the incident were grievous in nature. He has also deposed that after recording the complaint of the accused no.1, the accused no.1 was sent to the government hospital for medical examination with a yadi. He has further deposed that the PW- 17, Jeruben, in her police statement has stated that her father- in-law, the deceased, had hurled abuses to the accused no.1 and had also inflicted injuries with a Palia on the body of the accused no.1 due to which the accused no.1 got excited and hit a blow on the body of the deceased.
Page 16 of 27 R/CR.A/34/2009 CAV JUDGMENT 7.7 Thus, from the evidence of the PW-22, the investigating officer, it is evident that the accused no.1 had sustained grievous injuries for which he had lodged a complaint which was registered at the police station against the deceased for the offence under Section 326 of the Indian Penal Code. It is also clear that the accused no.1 was sent for medical examination with a police yadi.
7.8 We shall now look into the medical evidence on record. 7.9 The PW-1, Dr.Jitendrakumar Verma, in his evidence, Exh.9, has deposed that on 3rd April 2008, he was on duty as a medical officer at the CHC Chhota Udaipur, and at around 11:45 in the morning, Shenglabhai Kamlabhai was brought by his relatives in an injured condition. He has deposed that on examination the following external injuries were found on the body of the deceased.
(i) There was bleeding from the left ear and it was continuous.
(ii) There was an incised wound on the back side of the head, on the occipital region, on the left side on the head. It Page 17 of 27 R/CR.A/34/2009 CAV JUDGMENT was of the size of 6 cm X 1 cm X 1 cm.
(iii) There was an abrasion on the right cheek in the circumference of 3 cm.
(iv) An abrasion of 2 cm had been seen on the left side of the chest.
7.10 He has further deposed that after giving primary treatment, the relatives were advised to shift the patient to the SSG Hospital at Vadodara, as the injuries sustained by the patient were quite serious in nature. He has further deposed that thereafter as the patient succumbed to the injuries, his dead body was sent for postmortem examination and the postmortem examination revealed the following external injuries.
(i) There was continuous bleeding from the left ear due to internal injury.
(ii) There was a wound starting from 4 cm below the left ear of the dead body and ending on the left occipital region, bleeding continued from this injury, there was a fracture of the occipital bone and tempo-parietal of the left side.
Blood had coagulated in this injury and it had turned Page 18 of 27 R/CR.A/34/2009 CAV JUDGMENT blackish. The remains of brain were visible from there. 7.11 He has deposed that the following internal injuries were found during the course of postmortem examination.
(i) The fracture of temporal-parietal and occipital bone was seen on the left side of the head.
(ii) The left temporal lobe was pressed and crushed. The left occipital lobe was pressed and crushed, blood had coagulated in it.
7.12 He has deposed that the external injury shown in column no.17 was sufficient in the ordinary course of nature to cause death.
7.13 From the evidence of the PW-1 one thing is evident and it is that there were no injuries on the neck and the back of the deceased as alleged by the PW-6. Such injuries on the neck and back have been attributed to the accused no.2.
8. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that arises for consideration is whether in view of Page 19 of 27 R/CR.A/34/2009 CAV JUDGMENT the facts, indicated above, can it be said that the incident had exactly taken place in the manner the prosecution witnesses have deposed and as such the appellants are guilty of the offence under Section 302 read with Section 114 of the Indian Penal Code or it was a case of a sudden fight between the deceased and the accused no.1 without any premeditation or preplan and without the accused taking undue advantage or acting in a cruel or unusual manner.
9. The clue to the material question i.e. the effect of non- explanation of the injuries on the person of the accused no.1- Narsing Rathva can be traced from various decisions of the Apex Court.
10. To begin with the earliest case i.e. in Mohar Rai v. State of Bihar reported in AIR 1968 SC 1281, it is held therein that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence of in the case of altercation is very important circumstance from which the Court can draw the following inferences :
(1) The prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
Page 20 of 27 R/CR.A/34/2009 CAV JUDGMENT (2) The witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to thraw doubt on the prosecution case.
11. In Onkarnath Singh v. State of U. P. reported in 1974 SCC (Cri) 884, the Apex Court dealing with the identical contention observed (Para 35) :
"Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the Court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to Page 21 of 27 R/CR.A/34/2009 CAV JUDGMENT the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises."
12. In Lakshmi Singh v. State of Bihar reported in 1976 SCC (Cri) 671 : (1976 Cri LJ 1736) the accused sustained injuries in the same occurrence. No independent witness was examined by the prosecution to support the participation of the appellant in the assault. It was also found that the evidence of the witnesses of occurrence showed that they gave graphic description of the assault with regard to the order, the manner and the parts of the body with absolute consistency which gave an impression that they had given a parrot like version acting under a conspiracy to depose to one set of facts and one set of facts only. In view of the nature of evidence of the witnesses of the occurrence the Apex Court accepted the contention advanced on behalf of the accused, particularly taking the entire picture of the narrative given by the witnesses, that they had combined together to implicate the accused falsely because of long standing litigation between them and the said witnesses. Thereafter, the Court considered the injuries that were inflicted on the person of the accused Page 22 of 27 R/CR.A/34/2009 CAV JUDGMENT Dashrath Singh and laid down that where the prosecution fails to explain the injuries on the accused, two results follows :-
(1) That the evidence of the prosecution witness is untrue; and (2) The injuries probablise the plea taken by the appellants.
13. Upon a conspectus of the decisions of the Apex Court, it emerges that in a case where the accused had sustained injuries grievous in nature, caused in the same course of occurrence and the prosecution fails to explain the injury, the Court is supposed to put itself on guard and make an effort to search out the truth, how much the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful. The non-explanation of injuries assumes greater significance when the evidence consists of interested and partisan witnesses like in the present case. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption, much necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries were caused on the accused Page 23 of 27 R/CR.A/34/2009 CAV JUDGMENT probablises the version of the private defence. Even if it is found to be a case of right of private defence, it is further required to be considered, whether it is a case of exceeding the right of private defence.
14. Reverting to the question posed by us, we have reached to the conclusion that the incident had not taken place exactly in the manner as suggested by the PW-6 and the PW-17. We cannot lose sight of the most significant fact that the accused no.1, Narsing Rathva, undoubtedly had received grievous injuries during the same occurrence and the same have not been explained. The PW-22, investigating officer, in clear terms has deposed that the accused no.1, Narsing Rathva, had sustained grievous injuries for which he had lodged a complaint against the deceased and the same was registered for the offence under Section 326 of the Indian Penal Code. The contradiction in the evidence of the PW-17 in the form of a material omission makes the position very clear that on the day of the incident, the deceased hurled filthy abuses on the accused no.1 and thereafter hit two blows with a Palia on the body of the accused no.1, as a result the accused no.1 lost his cool and hit a blow on the head of the deceased with a Dinga which unfortunately proved to be fatal. Although the PW-6 and Page 24 of 27 R/CR.A/34/2009 CAV JUDGMENT PW-17 have deposed regarding the participation of the other accused person but it appears from the medical evidence on record that there were no injuries on any other parts of the body of the deceased including the neck and the back.
15. In our opinion, at least one thing is very clear that the case is definitely not one of murder but falls within the category of culpable homicide not amounting to murder punishable under Section 304, part II of the Indian Penal Code. It is possible that the accused no.1 might have retaliated to protect his own self by exercising his right of private defence but in the process exceeded his right of private defence. The case could also be brought within the ambit of exception (1) i.e. grave and sudden provocation, or it could even fall in the category of exception (4) i.e. sudden fight.
16. In any view of the matter, we are of the view that the trial Court committed a serious error in finding all the accused- appellants guilty of the offence of murder punishable under Section 302 read with Section 114 of the Indian Penal Code. There is no evidence even so far as the exact words alleged to have been uttered by the accused no.1 to bring such act within the meaning of Section 504 of the Indian Penal Code and, Page 25 of 27 R/CR.A/34/2009 CAV JUDGMENT therefore, the conviction of the accused no.1 for the offence under Section 504 of the Indian Penal Code is also not sustainable.
17. We are of the view that so far as the accused nos.2, 3 and 4 are concerned, they deserve to be acquitted of all the charges framed against them whereas the accused no.1's conviction deserves to be altered from Section 302 of the Indian Penal Code to one under Section 304, part II of the Indian Penal Code.
18. In the result, the Criminal Appeal No.34 of 2009, filed by the accused no.1 and 2 jointly, is partly allowed. The conviction of the accused no.1, Narsing Bhaylabhai Rathva is altered from one under Section 302 of the Indian Penal Code to that under Section 304, part-II of the Indian Penal Code and the sentenced is reduced to the period already undergone. So far as the order of conviction and sentence of the accused no.2, Vestabhai Raylabhai Rathva is concerned, the same is ordered to be set aside and he is acquitted of all the charges. The accused no.2 is ordered to be released forthwith, if not required in any other case.
Page 26 of 27 R/CR.A/34/2009 CAV JUDGMENT
19. The Criminal Appeal No.35 of 2009 is allowed and the order of conviction and sentence passed against the accused no.3, Nurabhai Kamlabhai Rathva and the accused no.4, Khumansinh Nurabhai Rathva are set aside. We are informed that the accused no.3, Nurabhai Kamlabhai Rathva is on bail pending trial, therefore, his bail bonds stand discharged, whereas the accused no.4, Khumansinh Nurabhai Rathva is ordered to be released forthwith, if not required in any other case.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) *malek Page 27 of 27