Gujarat High Court
Ahir Jesangbhai Patabhai & vs State Of ... on 25 March, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/2039/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2039 of 2008
With
CRIMINAL APPEAL NO. 2361 of 2008
With
CRIMINAL APPEAL NO. 389 of 2011
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 to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of 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 ?
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AHIR JESANGBHAI PATABHAI & 1....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
================================================================
Appearance:
MR PP MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 - 2
MS CHETANA M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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Page 1 of 91
R/CR.A/2039/2008 CAV JUDGMENT
CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 25/03/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) As all the three captioned appeals arise from a selfsame judgment and order dated 11th June 2008 passed by the learned Additional Sessions Judge, Fast Track Court No.2, Patan, in Sessions Case No.55 of 2007, those were heard analogously and are being disposed of by this common judgment and order.
For the sake of convenience we may state that the Criminal Appeal No.2039 of 2008 is at the instance of the original accused nos.1 and 2 (appellant nos.1 and 2). The original accused no.1 (appellant no.1) Ahir Jesangbhai Patabhai has challenged the order of conviction and sentence passed by the Additional Sessions Judge finding him guilty of the offence of murder punishable under Section 302 of the Indian Penal Code simplictor and sentencing him to undergo imprisonment for life with fine of Rs.1,000=00, whereas the original accused no.2 (appellant no.2) Ahir Merambhai Patabhai seeks to Page 2 of 91 R/CR.A/2039/2008 CAV JUDGMENT challenge the order of conviction and sentence passed by the Additional Sessions Judge finding him guilty of the offence punishable under Section 324 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of one year.
Criminal Appeal No.2361 of 2008 has been filed by the State of Gujarat against the judgment and order of acquittal passed by the Additional Sessions Judge so far as the original accused nos.2 and 3 are concerned i.e. Ahir Merambhai Patabhai and Ahir Andabhai Patabhai. The learned Additional Sessions Judge acquitted both the respondents of the acquittal appeal of the offence punishable under Sections 302, 307, 504 read with Section 34 of the Indian Penal Code.
Criminal Appeal No.389 of 2011 has been filed by the original accused no.1 Ahir Jesangbhai Patabhai against the order of conviction and sentence passed by the Additional Sessions Judge finding him guilty of the offence of murder. This appeal would be a successive appeal filed by Ahir Jesangbhai Patabhai as he has already filed Criminal Appeal No.2039 of 2008 referred to above.
Page 3 of 91 R/CR.A/2039/2008 CAV JUDGMENT
It appears from the record of the case that the original accused no.4 passed away during the pendency of the trial and therefore the trial so far as the accused no.4 is concerned, stood abated.
We shall first deal with the Criminal Appeal No.2039 of 2008.
I. Case of the Prosecution :
The appellant no.1 is alleged to have been harassing one Lakhuben, the daughter of PW7 Jesang Jiva Ahir, for which he was rebuked by the deceased Keeping a grudge against the deceased, the appellant nos.1 and 2 along with two other co- accused laid an assault on the deceased and his wife at their house on 22nd May 2007 at around 12:30 in the afternoon.
It is the case of the prosecution that all the accused persons armed with weapons in their hands came at the house of the deceased situated at village Vauva, Taluka Santalpur, District Patan, and started hurling abuses. At that point of time, the appellant no.1 herein is alleged to have struck a blow on the head of the deceased with a scythe resulting in grevious Page 4 of 91 R/CR.A/2039/2008 CAV JUDGMENT injuries.
It is also the case of the prosecution that while running away together from the place of occurrence, the appellant no.2 herein hit a blow with a spade on the head of the wife of the deceased resulting in injuries. According to the prosecution, the appellant no.1 was carrying a scythe in his hand. The appellant no.2 had a spade in his hand and the original accused no.3 Ahir Andabhai Patabhai had a pipe in his hand. Thus, according to the case of the prosecution, the accused persons, in furtherance of their common intention, committed the murder of the deceased and also attempted to commit the murder of the wife of the deceased.
A complaint Exh.28 was lodged by one Jesangbhai Ranabhai Ahir, the nephew of the deceased, on 22 nd May 2007 at Radhanpur Police Station in connection with the incident. The complainant is one of the eye-witnesses to the incident.
On the strength of the FIR Exh.28, the investigation had commenced. The inquest panchnama Exh.30 of the dead body of the deceased was drawn in presence of the panch witnesses. The wife of the deceased who was also injured in Page 5 of 91 R/CR.A/2039/2008 CAV JUDGMENT the incident was taken to a dispensary at Santalpur for treatment and from there she was referred to the Radhanpur Government Hospital. From the Radhanpur Government Hospital the wife of the deceased was shifted to Mehsana Hospital for further treatment. The deceased, while being taken to the hospital in an ambulance, succumbed to the injuries. The dead body of the deceased was sent for postmortem and the postmortem examination revealed that the deceased had sustained an incised wound on the left occipital region of scalp 6 cm. in backward and downward direction from left mastoid region 9 x 1 x 1.5 cm. deep. There was a sharp cut fracture on the left occipital region 2 x 0.5 cm. The cause of death assigned in the postmortem report Exh.53 was cardio respiratory arrest on account of injury to brain leading to intra-cranial hemorrhage and hematoma.
The wife of the deceased was also subjected to medical examination and her medical examination revealed that she had sustained a contused lacerated wound of 5 x 4 x 0.5 cm. on the left parietal region. A certificate Exh.52 was issued by the Medical Officer of Radhanpur Community Health Centre, wherein the history of assault by all the four accused persons has been noted along with the injury. The clothes of the Page 6 of 91 R/CR.A/2039/2008 CAV JUDGMENT deceased were collected by drawing the panchnama Exh.38 and were sent to the FSL for chemical analysis. The scene of offence panchnama Exh.32 was drawn in presence of the panch witnesses.
The accused persons were arrested and the panchnama of the person of the appellant no.1 Exh.79 was drawn in presence of the panch witnesses. The panchnama of the person of the appellant no.2 was also drawn vide Exh.79. In the same manner, the arrest panchnamas of the other two co- accused were also drawn.
A discovery panchnama Exh.42 of the weapon of offence i.e. scythe was drawn in presence of the panch witnesses. The appellant no.1 as well as the original accused no.3 expressed their willingness to point out the place where the weapons of offence were concealed, and accordingly, pursuant to the statement made by the appellant no.1 and the other co- accused, the scythe and the iron pipe were discovered. The statements of various witnesses were recorded.
On conclusion of the investigation, the Investigating Officer filed charge-sheet in the Court of the learned Judicial Page 7 of 91 R/CR.A/2039/2008 CAV JUDGMENT Magistrate, First Class, Radhanpur.
As the case was exclusively triable by the Sessions Court, the learned Judicial Magistrate, First Class, Radhanpur, committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure. The Sessions Court framed charge against the appellants herein and the other two co- accused being Exh.18 and the statements of the appellants and the other two co-accused were recorded. The appellants herein and the other two co-accused did not admit the charge and claimed to be tried.
II. Prosecution adduced the following oral evidence in support of his case :
PW1 Jesangbhai Ranabhai Ahir Exh.27
(complainant and eye-witness)
PW2 Mahadevbhai Vastabhai Exh.29
(Panch witness of the inquest panchnama)
PW3 Manabhai Bhurabhai Exh.31
(Panch witness of the scene of offence panchnama) PW4 Shivrambhai Karshanbhai Exh.41 (Panch witness of the discovery panchnama) PW5 Badhiben Jivanbhai Exh.43 (Wife of the deceased and the injured eye-witness) Page 8 of 91 R/CR.A/2039/2008 CAV JUDGMENT PW6 Malabhai Jivanbhai Exh.44 (Son of the deceased and the eye-witness) PW7 Jesangbhai Jivabhai Exh.45 (Father of Lakhuben who was being harassed by the appellant no.1) PW8 Dr.Kumarkundan Sarjiprasad Exh.46 (Medical Officer who was on duty at Santalpur Referral Hospital) PW9 Dr.Nareshbhai Cheljibhai Chaudhari Exh.51 (Medical Officer who was on duty at Radhanpur Referral Hospital and performed the postmortem) PW10 Parsottambhai Ramjibhai Exh.57 (Police Officer of Santalpur Police Station) PW11 Dr.Bhaktibhai Varvabhai Prajapati Exh.60 (Medical Officer of Mehsana General Hospital) PW12 Ramanlal Laluji Ninama Exh.64 (Police Officer) PW13 Dhulabhai Ranchhodbhai Exh.70 (Investigation Officer) III. The following pieces of documentary evidence were adduced by the prosecution :
Complaint Exh.28
Inquest Panchnama Exh.30
Scene of Offence Panchnama Exh.32
Page 9 of 91
R/CR.A/2039/2008 CAV JUDGMENT
Slips of Panch Wintess Exh.33 to 37
Panchnama of the clothes of deceased Exh.38
Slip of the Panch Witness Exh.39
Panchnama of the person of the Injured Exh.40
Badhiben
Discovery Panchnama Exh.42
Medical Certificates of Injured Badhiben Exh.47 & 48
Death Certificate of the deceased Jivan Exh.49
& 50
along with case-paper
Medical Certificate of injuries of Badhiben Exh.52
Postmortem Report Exh.53
Death Form Exh.54
Report sent to the Medical Officer, Exh.56
Radhanpur
Depute Order Exh.58
Medical Certificate of Injured Badhiben Exh.61
& 62
along with case-paper
Transfer Form Exh.63
Report of Police Sub-Inspector, Radhanpur Exh.65 Medical Certificate of the appellant no.1 Exh.68 Wireless message sent by the PSI, Santalpur Exh.71 to the FSL, Patan Preliminary Report of FSL, Patan Exh.72 Report of the PSO, Radhanpur Exh.73 Report of the PSI, Radhanpur, Exh.74 Page 10 of 91 R/CR.A/2039/2008 CAV JUDGMENT to the Executive Magistrate for inquest Receipt issued by the Unarmed Police Exh.75 Constable, Radhanpur, to the Medical Officer Arrest Panchnama of the appellants Exh.79 Arrest Panchnama of the original Exh.80 accused no.4 Map of the Scene of Offence Exh.81 Forwarding Letter of the FSL Exh.84 and the analysis report Serological Report of the FSL Exh.85 Closing Purshis filed by the Prosecution Exh.86 After conclusion of the oral as well as the documentary evidence of the prosecution, the statement of the accused appellants under Section 313 of the Code of Criminal Procedure were recorded, in which the accused appellants stated that the complaint was a false one and they were innocent. The defence of the accused appellants was that Lakhuben, the daughter of Jesangbhai Jivabhai had a love affair with the appellant no.1, which was not liked by her family members and, therefore, they had been falsely implicated in the commission of crime.
At the conclusion of the trial, the learned trial Judge convicted the appellant no.1 of the offence punishable under Page 11 of 91 R/CR.A/2039/2008 CAV JUDGMENT Section 302 of the Indian Penal Code simplicitor and sentenced him as stated hereinbefore for causing the death of the deceased, whereas the learned trial Judge convicted the appellant no.2 of the offence punishable under Section 324 of the Indian Penal Code and sentenced him as stated hereinbefore for causing injuries to the PW5 Badhiben, the wife of the deceased.
Being dissatisfied, the accused appellants have come up with this appeal.
IV. Submissions on behalf of the appellant :
Mr.P.P.Majmudar, the learned advocate appearing for the accused appellant, submitted that the trial Court committed a serious error in holding the appellant no.1 guilty of the offence of murder punishable under Section 302 of the Indian Penal Code and the appellant no.2 guilty of the offence of voluntarily causing hurt by dangerous weapon punishable under Section 324 of the Indian Penal Code.
Mr.Majmudar submitted that the genesis of the prosecution case is highly doubtful and the prosecution has tried to suppress the true origin of the occurrence. Page 12 of 91 R/CR.A/2039/2008 CAV JUDGMENT Mr.Majmudar submitted that the trial Court committed a serious error in placing implicit reliance on the oral evidence of the three eye-witnesses, viz. the PW1 Jesangbhai Ahir, the PW5 Badhiben Jivanbhai and the PW6 Malabhai Jivanbhai.
According to Mr.Majmudar, the ocular version of the three eye-witnesses to the incident do not inspire confidence, more particularly, when the PW6 Malabhai Jivanbhai, the son of the deceased, had not stated in his statement recorded under Section 162 of the Code of Criminal Procedure by the police that he had rushed to the house of his uncle i.e. the PW1 Jesangbhai Ahir to inform him that the accused no.1 and the accused no.3 were hurling abuses to his parents i.e. the deceased and his wife. In such circumstances, Mr.Majmudar would submit that the evidence of the PW1 Jesangbhai Ahir gets susceptible to the complaint that he had not witnessed the actual incident and at a later stage, with a view to falsely implicate the accused persons, went to the police station and lodged the First Information Report.
Mr.Majmudar submitted that the trial Court committed an error in finding the appellant no.2 guilty of the offence punishable under Section 324 of the Indian Penal Code for the Page 13 of 91 R/CR.A/2039/2008 CAV JUDGMENT reason that, according to the medical evidence on record, the PW5 Badhiben, the wife of the deceased, had sustained only one injury on the head whereas, according to the case of the prosecution, the original accused no.4 who died during the course of the trial, had also inflicted injuries on the head of the PW5 Badhiben. Therefore, according to Mr.Majmudar, the solitary injury which the PW5 Badhiben had sustained cannot be attributed to the appellant no.2 herein as it is not clear as to whether it was the appellant no.2 who had inflicted the injuries or was it the original accused no.4 who had inflicted the injuries.
In such circumstances, according to Mr.Majmudar, the appellant no.2 deserves to be acquitted by giving him the benefit of doubt.
Mr.Majmudar, in course of hearing of the appeal, mainly concentrated in trying to convince us that if the incident in question as alleged by the prosecution is believed to be true, even then it is not a case of murder but one of culpable homicide not amounting to murder punishable under Section 304(1) of the Indian Penal Code.
Page 14 of 91 R/CR.A/2039/2008 CAV JUDGMENT
Mr.Majmudar strenuously tried to convince us that the appellant no.1 is alleged to have inflicted a solitary blow on the head of the deceased with a scythe. The incident occurred in the heat of passion and was not a premeditated or a pre- planned act. In such circumstances, the act of the appellant no.1 would fall within the Exception 4 to Section 300 of the Indian Penal Code. According to Mr.Majmudar, the appellant no.1 deserves to be given the benefit of the Exception 4 to Section 300 and the conviction be altered from that under Section 302 of the Indian Penal Code to one under Section 304(1) of the Indian Penal Code. Mr.Majmudar further submitted that the accused no.1 has been in jail since the date of the incident i.e. 22nd May 2007 and by now has put in almost seven years of rigorous imprisonment. In such circumstances referred to above, Mr.Majmudar would urge that the appeal be allowed accordingly.
In support of his submissions, Mr.Majmudar placed reliance on the following decisions of the Supreme Court :
(1) Idrishbhai Daudbhai v. State of Gujarat, (2005)3 SCC 277; (2) Mangesh v. State of Maharashtra, AIR 2011 SC 637; (3) State of U.P. v. Gobardhan and others, AIR 2013 SC 3033; (4) Ankush Shivaji Gaikwad v. State of Maharashtra, (2013)6 Page 15 of 91 R/CR.A/2039/2008 CAV JUDGMENT SCC 770;
(5) Sudhakar v. State of Maharashtra, JT 2012(10) SC 81; (6) State of Punjab v. Bakhshish Singh and others, AIR 2009 SC 1510.
V. Submissions on behalf of the State :
Ms.Chetana M.Shah, the learned APP appearing for the State, vehemently opposed this appeal and submitted that the trial Court rightly convicted the appellant no.1 of the offence of murder punishable under Section 302 of the Indian Penal Code and the appellant no.2 also ought to have been convicted of the offence of murder punishable under Section 302 read with Section 34 of the Indian Penal Code as all the accused persons, in furtherance of their common intention, committed the murder of the deceased.
Ms.Shah submitted that the trial Court completely lost sight of the fact that the charge framed against the accused persons was that they all, in furtherance of a common intention, had arrived at the house of the deceased armed with weapons and inflicted injuries on the head of the deceased resulting in his death. According to Ms.Shah, there is not an iota of discussion in the entire judgment as to why Section 34 of the Indian Penal Code had no applicability in the facts and Page 16 of 91 R/CR.A/2039/2008 CAV JUDGMENT circumstances of the case.
Ms.Shah submitted that the evidence on record would indicate that there was a prearranged plan and meeting of minds and pursuant thereto all the accused persons reached the house of the deceased and first hurled abuses and thereafter the appellant no.1 inflicted a fatal blow on the head of the deceased with a scythe resulting in his death.
Ms.Shah submitted that there is cogent evidence on record to indicate that the accused persons, while running away from the place of occurrence, inflicted injury on the head of the PW5 Badhiben i.e. the wife of the deceased. Ms.Shah submitted that the common intention is a question of fact, it is subjective but can be inferred from the circumstances.
Ms.Shah submitted that the totality of the circumstances must be taken into consideration in arriving at the conclusion, whether the accused had a common intention to commit an offence and such aspect has been completely lost sight by the trial Court.
Ms.Shah submitted that so far as the appellant no.2 is Page 17 of 91 R/CR.A/2039/2008 CAV JUDGMENT concerned, the State has filed an acquittal appeal and has prayed that he be convicted of the offence of murder punishable under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code.
In such circumstances referred to above, Ms.Shah urged to dismiss the appeal filed by the accused appellants.
VI. Oral evidence on record :
The prosecution examined Jesangbhai Ranabhai Ahir as the PW1. The PW1 Jesangbhai Ahir, in his evidence Exh.27, has deposed that the deceased happened to be his paternal uncle (kaka). He further deposed that on 22 nd May 2007 in the afternoon hours he was at his house. At that point of time, his uncle's son viz. Malabhai came running and informed him that Jesang Pata A-1 and Vala Luna A-4 had come at his house and were hurling filthy abuses to his father, the deceased, and his mother Badhiben. The PW1 has deposed that the motive behind the commission of the crime was that the A-1 was harassing one Lakhuben, the daughter of Jesang Jiva, and for that he was rebuked by the deceased. As the A-1 was reprimanded by the deceased, he bore a grudge against the Page 18 of 91 R/CR.A/2039/2008 CAV JUDGMENT deceased and was assaulted.
On learning about the same through Mala, the PW1 Jesang rushed at the house of the deceased and witnessed that Meram Pata A-2 and Anda Pata A-3 had also joined the A-1 and A-4 and all together were quarreling and hurling abuses. He has deposed that he tried to intervene and at that point of time the A-1 inflicted injuries on the head of the deceased with a scythe, as a result his uncle, the deceased, fell down. He has also deposed that at that point of time, his aunt i.e. the wife of the deceased was standing in a courtyard and the A-2, while running away with the others from the place of occurrence, inflicted an injury on her head with a spade. He has also deposed that the A-4 also hit a blow with an axe on the head of his aunt and thereafter all the accused persons together ran away. He has also deposed that the A-2, while running away from the place of occurrence, left behind the spade which was used for inflicting injuries on the head of Badhiben. He has further deposed that thereafter other people from the locality arrived and all together helped the deceased and his wife in shifting them to the Santalpur Dispensary in an auto rickshaw. The doctor at the Santalpur Dispensary referred them to the Radhanpur Hospital after giving some primary treatment. Page 19 of 91 R/CR.A/2039/2008 CAV JUDGMENT While his uncle was being taken to the hospital in an ambulance, he succumbed to the injuries. The PW1 has further deposed that his aunt Badhiben was treated at the Radhanpur Referral Hospital and was thereafter referred to the Mehsana Hospital for further treatment. He has deposed that thereafter he went to the police station and lodged the FIR Exh.28 on the very same day i.e. on 22nd May 2007.
In his cross-examination, he has deposed that it was true that in his complaint he had not stated that Mala, the son of the deceased, had come at his house to inform him that the A- 1 and A-4 had come at his house and were hurling abuses to his parents. He has also deposed in his cross-examination that Mala, the son of the deceased, had not stated anything else other than the fact that the A-1 and A-4 had come at his house and were hurling abuses.
A suggestion was given to this witness in his cross- examination that he had tried to intervene by giving a push. He denied such suggestion. One other suggestion was made to this witness that after reaching the place of occurrence he had raised his voice saying that, "why you all are assaulting" ? Such suggestion was also denied by the PW1. He has also Page 20 of 91 R/CR.A/2039/2008 CAV JUDGMENT deposed in his cross-examination that it was true that after assaulting the deceased, the assailants, while leaving the place of occurrence, also assaulted his aunt i.e. Badhiben. He denied the suggestion that the A-1 and the A-3 had not assaulted his aunt.
Nothing substantial could be elicited through the cross- examination of the PW1 Jesangbhai Ahir so as to render his evidence doubtful in any manner. On the contrary, from the suggestions which were made by the defence to this witness the presence of the PW1 Jesangbhai at the time of the incident has been established and not only that but the defence, by putting the suggestions which have been referred to above, have also established the presence of the accused persons at the place of occurrence.
The prosecution examined Badhiben Jivanbhai, the wife of the deceased and also an injured eye-witness. The PW5 Badhiben in her evidence Exh.43 has deposed that the deceased was her husband. She has deposed that the motive behind the commission of the crime was that the A-1 was reprimanded by her husband, the deceased, as the A-1 had relations with one Lakhuben, the daughter of Jesangbhai Jiva Page 21 of 91 R/CR.A/2039/2008 CAV JUDGMENT who happened to be one of the relatives of the deceased. On the date of the incident, her husband, the deceased, and her son were sleeping in the afternoon. At that point of time, the A- 1 and A-4 came at her house and started hurling abuses. At that point of time, the PW5 asked her son Mala to go and call the PW1 Jesangbhai. In the mean time, the A-2 and A-3 also arrived at her house with weapons in their hands. She has deposed that the A-2 had a spade in his hand and the A-3 had an iron pipe. The A-2 and A-3 both started hurling abuses and the A-1 Jesang Pata inflicted serious injuries on the head of her husband with a scythe. She has deposed that the PW1 Jesangbhai and his son Mala also arrived at the place of occurrence. She has also deposed that the A-2 inflicted injuries on her head with a spade and the A-3 hit blows on her leg with an iron pipe. She has deposed that the A-4 also hit a blow on her head with an axe. She has deposed that her husband started bleeding profusely and fell down. She also became unconscious and regained consciousness at Mehsana Hospital. Except minor contradictions in the form of omissions, nothing substantial could be elicited through the cross-examination of the PW5 Badhiben so as to render her evidence doubtful in any manner. It deserves to be noted that the PW5 Badhiben sustained injuries on her head in the incident and is an injured Page 22 of 91 R/CR.A/2039/2008 CAV JUDGMENT eye-witness. There was no reason for the PW5 Badhiben to falsely implicate the accused persons in the crime sparing the real culprits.
The prosecution also examined Malabhai Jivanbhai, the son of the deceased, as an eye-witness to the incident. The PW6 Malabhai, in his evidence Exh.44, has deposed that the deceased happened to be his father. On the date of the incident, he and his father were sleeping in the courtyard. His mother was inside the house. He has deposed that the A-1 Jesangbhai Pata and A-3 Vala Luna came at his house uttering filthy abuses and the A-1 Jesang Pata had a scythe in his hand and A-3 Vala Luna had an axe in his hand. The A-1 and A-3 started hurling filthy abuses to his father. He has deposed that his mother asked him to go and call for Jesangbhai, and accordingly he ran to call Jesang at his house. Thereafter, he and Jesang came at his house and by that time the A-2 and A-3 had also arrived and were uttering filthy abuses. He has deposed that the A-2 had a spade in his hand and the A-3 had an iron pipe in his hand. He has also deposed that when he reached his house after calling for Jesang, the A-1 hit a blow on the head of his father with a scythe and the A-2 hit a blow on the head of his mother with a spade. The A-3 hit blows with Page 23 of 91 R/CR.A/2039/2008 CAV JUDGMENT iron pipe on the leg of his mother. He has also deposed that the A-4 had inflicted a blow on the head of his mother with an axe.
In the cross-examination of the PW6, except few contradictions in the form of omissions, nothing substantial could be elicited so as to render the evidence of the PW6 Malabhai doubtful in any manner.
On the contrary, in the cross-examination, in an answer to a suggestion, he has deposed that it was true that the accused persons, after seeing that the deceased was lying in a pool of blood, ran away from the place of occurrence. The suggestion is of such a nature by which the presence of the accused persons is established.
Dr.Kumarkundan Sarjiprasad was examined by the prosecution as the PW8. The PW8 Dr.Sarjiprasad in his evidence Exh.46 has deposed that on 22nd May 2007 he was on duty as a Medical Officer at the Referral Hospital, Santalpur. According to Dr.Sarjiprasad, at around 1:30 in the afternoon one patient named Badhiben Jivanbhai Ahir, a resident of village Vauva was brought for medical treatment with a Police Page 24 of 91 R/CR.A/2039/2008 CAV JUDGMENT Yadi. He has deposed that after giving preliminary treatment she was referred to the Radhanpur Hospital for further treatment. He has also deposed that Badhiben had sustained a contused lacerated wound on the head somewhere near the ear 4cm x 2cm x 1cm. He has also deposed that he had issued a medical certificate Exh.47 with regard to the injuries sustained by Badhiben. Dr.Sarjiprasad on being shown the axe as well as the spade used as weapons of offence, opined that if both the weapons were used for inflicting injury at one particular place then the injury which had been sustained by Badhiben was possible. He has further deposed that on the same day and at the same time one other injured, namely, Jivanbhai Virbhanbhai Ahir was also brought at the hospital. Jivanbhai was in an unconscious state. Dr.Sarjiprasad has deposed that on examination he found that there was a contused lacerated wound on the rear part of the head and an injury on the skull was also visible. As the condition of Jivanbhai was very critical he was referred to the Community Health Centre, Radhanpur. Dr.Sarjiprasad has deposed that he had issued a certificate Exh.49 with regard to the injuries sustained by Jivanbhai. On muddamal article scythe being shown to Dr.Sarjiprasad, he opined that the injury sustained by Jivanbhai was possible with the scythe. Dr.Sarjiprasad has also Page 25 of 91 R/CR.A/2039/2008 CAV JUDGMENT deposed that if timely treatment would not have been given to Badhiben then the injury which was sustained by Badhiben was sufficient to cause her death. In his cross-examination, Dr.Sarjiprasad has deposed that at the time of examination of Badhiben she was found to be conscious. At that point of time Badhiben had not disclosed the names of the assailants. He has also deposed that it was true that in the certificate of injuries sustained by Badhiben it had been stated that such injuries were possible by a hard and blunt object. He has also deposed that at the time of examination he had noticed that there was only one injury on the head of Badhiben and if one particular weapon was used for inflicting the injury then such injury was possible.
Dr.Nareshbhai Cheljibhai Chaudhari was examined as the PW9. Dr.Chaudhari in his evidence Exh.51 has deposed that on 22nd May 2007 he was on duty at the Radhanpur Referral Hospital as a Medical Officer and at that point of time at around 3 O'clock in the afternoon a patient named Badhiben Ahir was referred by Santalpur Hospital with a referred chit for further treatment. He has deposed that at that point of time Badhiben had stated before him that Jesangbhai Patabhai Ahir, Merambhai Patabhai, Andabhai Patabhai and Valabhai Page 26 of 91 R/CR.A/2039/2008 CAV JUDGMENT Lunabhai had inflicted injuries with a scythe, axe and spade. On examination, Dr.Chaudhari found that there was a CLW 5cm x 4cm x 0.5cm on the left parietal region. According to Dr.Chaudhari such injury could have been caused by a hard and blunt object. For the purpose of internal examination Badhiben was referred to the Mehsana Hospital. According to Dr.Chaudhari the injury was found to be fresh. Dr.Chaudhari has also deposed that he had issued a certificate with regard to the injuries Exh.52. Dr.Chaudhari has further deposed that on the same day a dead body of one Jivanbhai Virbhanbhai Ahir was sent for postmortem examination by the PSI Radhanpur. The dead body of Jivanbhai was brought from the Community Health Centre, Radhanpur. According to Dr.Chaudhari, he performed the postmortem on the same day along with Dr.Jaswant Darji. He has deposed that the postmortem revealed the following injuries :
i) Incised wound on left occipital region of skull 6 cm away in backward and downward from left mastoid region -
size 3 x 1 x 1.5 cm bone deep.
ii) Sharp cut fracture on left occipital bone 2 cm x 0.5 cm.
iii) Sharp cut injury on left occipital lobe of brain.
iv) Intracranial hemorrhage was present. v) Hematoma was present. Page 27 of 91 R/CR.A/2039/2008 CAV JUDGMENT
According to Dr.Chaudhari, the cause of death was cardio respiratory arrest due to shock produced by injury to the brain resulting intra-cranial hemorrhage and hematoma. On being shown the muddamal article scythe used as weapon of offence, Dr.Chaudhari opined that the injury sustained by Jivanbhai was possible by a scythe.
Dr.Bhaktibhai Varvabhai Prajapati was examined as the PW11. Dr.Prajapati in his evidence Exh.60 has deposed that on 22nd May 2007 he was on duty at the Mehsana General Hospital as a Medical Officer and at around 6 O'clock in the evening one patient named Badhiben was referred by the Radhanpur Referral Hospital with a referred note. According to Dr.Prajapati, the patient was given preliminary treatment at the Radhanpur Hospital and was thereafter admitted at the Mehsana General Hospital for further treatment. Dr.Prajapati has deposed that on 23rd May 2007 against medical advice, Badhiben had taken discharge from the hospital and once again on 24th May 2007 she got admitted with a complaint of pain in her head and giddiness. Thereafter, Badhiben was discharged on 28th May 2007. Dr.Prajapati deposed that he had issued a certificate Exh.61 regarding treatment and injuries. Dr.Prajapati has deposed that when Badhiben was Page 28 of 91 R/CR.A/2039/2008 CAV JUDGMENT brought at the Mehsana General Hospital, in history, she had stated that one Jesang, Meram and Andabhai Ahir had inflicted injuries with a scythe, axe and pipe.
The prosecution also examined the PW4 Shivrambhai Karsanbhai to prove the discovery panchnama of the weapons of offence i.e. the scythe and iron pipe. The PW4 Shivrambhai, in his evidence Exh.41, has deposed that on 24th May 2007 he was called by the police at Santalpur Police Station to act as a panch witness. At that time one other person named Vasudev Rajgor was also present as a second panch witness. The PW4 has deposed that it was explained by the police to him that the two accused persons had been arrested in connection with a crime and both the accused persons had expressed their willingness to pointout the place where they had concealed the weapons of offence. At that time, the two accused persons were present. The PW4 Shivrambhai has deposed that one person disclosed his name as Jesang and the other disclosed his name as Andabhai. According to the PW4, thereafter both the accused persons led them along with the police party in a jeep at a particular place and took out a scythe which was concealed in a heap of grass. Such scythe was taken out by Jesang A-1 whereas an iron pipe was taken out by Andabhai A- Page 29 of 91 R/CR.A/2039/2008 CAV JUDGMENT
3. Nothing substantial could be elicited through the cross- examination of this witness so as to render his evidence doubtful or untrustworthy in any manner. In his cross- examination all that has been deposed by the PW4 Shivrambhai is that it was true that the panchnama was reduced into writing at one hotel.
The prosecution also examined Jesangbhai Jivabhai as the PW7. The PW7 Jesangbhai is the father of Lakhuben whom the accused no.1 Jesang was harassing. The PW7 Jesang, in his evidence Exh.45, has deposed that the deceased happened to be his uncle ('kaka'). On the day of the incident i.e. on 22nd May 2007 he had gone to a place called Mudetha for performing a pooja. He has deposed that Jesang A-1 was cultivating their agricultural field with a Tractor. At that time, his daughter Lakhuben had restrained Jesang from ploughing the field as the crop which was harvested in their field was being damaged. He has further deposed that thereafter as and when Jesangbhai Patabhai A-1 used to meet his daughter Lakhu, he used to hurl abuses to her. According to the PW7 Jesangbhai A-1 had a grudge in his mind. It has been deposed by the PW7 that due to such reason his uncle, the deceased, had reprimanded Jesang A-1 two to three times. According to Page 30 of 91 R/CR.A/2039/2008 CAV JUDGMENT the PW7, a day or two before the date of the incident, Jesang - A-1 was rebuked by the deceased.
In his cross-examination, the PW7 has deposed that he had not lodged any complaint against Jesang for harassing his daughter Lakhuben. A suggestion was made to this witness that the deceased had called him as well as Jesang Pata at his house and both were reprimanded. Such suggestion was denied by the PW7. He has also deposed that it was true that after Jesang was restrained by his daughter Lakhu from cultivating the land, Jesang A-1 had stopped plying Tractor in the field. A suggestion was made to this witness that his daughter Lakhu and Jesang Pata A-1 had a love affair. Such suggestion was denied by the PW7. He also denied the suggestion that the relations of Lakhu with Jesang A-1 was not liked by the PW1 Jesang Rana. He also denied the suggestion that the PW1 Jesang Rana with a view to settle his personal scores, had falsely implicated the accused persons. He also denied the suggestion that the deceased had not reprimanded Jesang A-1 in connection with the issue of Lakhuben. He has further deposed that he had no idea whether Jivankaka, the deceased, used to consume liquor or not. He had no idea whether Vala Luna A-4 was consuming liquor or not. He has Page 31 of 91 R/CR.A/2039/2008 CAV JUDGMENT further deposed that in the morning, of the day of incident, he had no idea whether Vala Luna A-4 and Jivankaka, the deceased, had a quarrel with each other.
The prosecution has also examined Ramanlal Laluji Ninama as the PW12. The PW12 Ninama, in his evidence Exh.64, has deposed that on 22nd May 2007 he was serving as a Police Sub-Inspector at the Radhanpur Police Station and at that time he left for the Radhanpur Hospital on receipt of a telephone wardhi sent by the Radhanpur Referral Hospital. He has deposed that after reaching the hospital, he recorded the complaint lodged by one Jesangbhai Ranabhai Ahir. He identified the signature of the complainant as well as his own signature on the FIR Exh.28. He has also deposed that thereafter an Inquest Panchnama of the dead body of the deceased was drawn Exh.30. He has deposed that as the offence had been committed within the territorial limits of Santalpur, all the relevant papers of investigation were forwarded to the Santalpur Police Station vide letter Exh.65.
The prosecution examined Dhulabhai Ranchhodbhai Solanki as the PW13. The PW13 Dhulabhai Solanki is the Investigating Officer. In his evidence Exh.70 he has deposed Page 32 of 91 R/CR.A/2039/2008 CAV JUDGMENT that on 22nd May 2007, a PSO named Purshottambhai registered the complaint at Santalpur being C.R. No.I-31 of 2007 for the offence punishable under Section 302 of the Indian Penal Code and had handed over the further investigation to him. The PW13 has deposed that the scene of offence panchnama was drawn. The blood stained spade and a quilt was collected in presence of the panch-witnesses. The panchnama of the person of Badhiben was drawn. Her clothes were collected and were sent to the Forensic Science Laboratory for chemical analysis. The statements of various witnesses were recorded. The accused persons were arrested. The PW13 has deposed that as Jesangbhai Pata A-1 had sustained an injury, he was sent for medical treatment. As there was sufficient evidence collected against the accused persons to connect them with the crime, charge-sheet was filed. The PW13 has also deposed that a 20discovery panchnama was also drawn. In his cross-examination certain contradictions in the form of omissions were proved and brought on record.
VII. A N AL Y S I S :
Having heard the learned counsel appearing for the Page 33 of 91 R/CR.A/2039/2008 CAV JUDGMENT parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is whether the trial Court committed any error in holding the accused - appellant no.1 guilty of the offence of murder punishable under Section 302 of the Indian Penal Code, whereas holding the accused - appellant no.2 guilty of the offence punishable under Section 324 of the Indian Penal Code.
The picture that emerges on cumulative assessment of the materials on record is thus :
The appellant nos.1 & 2 and the original accused no.3 are full brothers. It appears from the materials on record that the accused - appellant no.1 had some ill will with a lady named Lakhuben, the daughter of PW7 Jesangbhai Jivabhai. It also appears that in that regard the accused - appellant no.1 was rebuked by the deceased. There is evidence on record to suggest that a day or two prior to the date of the incident, the accused - appellant no.1 was reprimanded by the deceased.
Keeping a grudge in mind and with a view to seek revenge, the accused - appellant no.1 in company of his two brothers the A-
2 and A-3 and a fourth accused (dead) went to the house of the deceased in the afternoon hours armed with deadly Page 34 of 91 R/CR.A/2039/2008 CAV JUDGMENT weapons like scythe, axe, spade and iron pipe. The accused -
appellant no.1 and accused no.4 were first to reach the house of the deceased and started hurling filthy abuses to the deceased and his wife, the PW5 Badhiben. The PW5 Badhiben, apprehending danger at the end of the A-1 and A-3, asked his son Mala - the PW6 to seek help from the PW1 Jesang Rana who was related to the family of the deceased. It appears that the PW6 Mala ran to the house of the PW1 Jesang Rana and informed him that the A-1 and A-3 had come to his house and were hurling abuses to his parents. On learning about the same through Mala, the PW1 Jesang immediately reached to the house of the deceased and saw that the other two co- accused - the A-2 and A-3 had also joined the A-1 and A-4. The A-1 had a scythe in his hand and in the process hit a forceful blow on the head of the deceased, as a result the deceased started bleeding profusely and fell down. It also appears that while running away together from the place of occurrence, Meram Pata A-2 inflicted a blow on the head of the PW5 Badhiben with a spade and A-4 inflicted a blow at the same spot with an axe. While running away from the place of occurrence, the spade was left behind. Thereafter, the deceased and his wife were taken to the hospital for treatment. It appears that the deceased succumbed to his Page 35 of 91 R/CR.A/2039/2008 CAV JUDGMENT injuries while on the way to the hospital in an ambulance. The PW5 Badhiben, in the case history before the doctor, disclosed the names of all the four accused persons as the assailants as reflected from the medical certificates which are on record.
Thus, from the oral evidence of the three eye-witnesses, the PW1 Jesang Ahir, PW5 Badhiben Jivan, the wife of the deceased, and PW6 Mala Jivanbhai, the son of the deceased, it is well established that the accused persons armed with weapons came at the house of the deceased and started hurling filthy abuses. In the process, the accused no.1 hit a fatal blow on the head of the deceased resulting in a fracture of his skull. On the other hand, while running away, the accused no.2 Meram Pata inflicted injuries on the head of the PW5 Badhiben with a spade and the accused no.3 Anda Ahir hit a blow on the head of the PW5 Badhiben with an axe.
The medical evidence on record fully corroborates the ocular version of the three eye-witnesses. The presence of the PW5 Badhiben, the wife of the deceased, and the PW6 Mala, the son of the deceased, at the time of the incident was quite natural as the incident had occurred at the house of the deceased.
Page 36 of 91 R/CR.A/2039/2008 CAV JUDGMENT
We are not impressed by the submission of Mr.Majmudar that the PW1 Jesang Rana who lodged the complaint is not the true eye-witness but is a got-up witness. On overall evaluation of the oral evidence of the PW1 Jesangbhai, we do not find any improbability in his evidence. His evidence inspires confidence and the suggestions which were put by the defence counsel to the PW1 itself establishes the presence of the PW1 at the time of the incident. We take note of those suggestions as under:
i) Q.: You went at the place and raised shouts saying why are you all beating ?
A.: It is not true to suggest that I had raised shouts on reaching and had said why are you all beating. The suggestion is of such a nature that on its own establishes the presence of PW1.
ii) Q.: Jesang Pata A-1 and Anda Pata A-3 had not assaulted your aunt ('kaki') ?
A.: It is not true that Jesang Pata A-1 and Anda Pata A-3 had not assaulted my aunt.
A great deal of effort was put in by Mr.Majmudar to convince us that the case is one of culpable homicide not amounting to murder and the conviction of A-1 deserves to be altered that from Section 302 of the IPC to one under Section Page 37 of 91 R/CR.A/2039/2008 CAV JUDGMENT 304(1) of the IPC. According to Mr.Majmudar, if the entire incident is believed to be true, even then also it is a case of a single blow hit by the A-1 on the head of the deceased with a scythe. Mr.Majmudar strenuously submitted that the case falls within the Exception 4 to Section 300 as it was a case of a sudden fight and in the heat of the moment one blow with a scythe is alleged to have been hit on the head of the deceased thereby causing the fatal injury on the head of the deceased.
We are not convinced with such submission of Mr.Majmudar that the case falls within the Exception 4 to Section 300 of the IPC.
The sine quo non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder. We must, therefore, assume that this would be a case of murder and it is for the accused to show the applicability of the Exception. Exception 4 reads as under:-
"Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the Page 38 of 91 R/CR.A/2039/2008 CAV JUDGMENT offender having taken undue advantage or acted in a cruel or unusual manner."
A perusal of the provision would reveal that four conditions must be satisfied to bring the matter within Exception 4 :
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in the heat of passion; and; that
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.
On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found.
It would be profitable for us to quote the following observations of the Supreme Court explaining the scope and ambit of Exception 4 of Section 300 IPC, made in the case of Vishal Singh v. State of Rajasthan, reported in 2009 Cri.L.J. 2243. A three-Judge Bench observed in paragraph 7 as under:- Page 39 of 91 R/CR.A/2039/2008 CAV JUDGMENT
"7. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for, in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self- control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share Page 40 of 91 R/CR.A/2039/2008 CAV JUDGMENT of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat (2003 (5) Supreme 223]; Parkash Chand v. State of H.P. (2004 (11) SCC 381); Byvarapu Raju v. State of A.P. and Anr. (2007 (11) SCC 218) and Hawa Singh and Anr. v. State of Haryana (SLP (Crl.) No.1515/ 2008, disposed of on 15.1.2009)."
Page 41 of 91 R/CR.A/2039/2008 CAV JUDGMENT
Applying the aforesaid principles as explained by the Supreme Court in the facts of the present case, more particularly considering the evidence on record, we have no hesitation in coming to the conclusion that the present case is not that of culpable homicide not amounting to murder, but the same is one of murder.
In the overall view of the matter, more particularly, having regard to the manner in which the incident had occurred and the injuries sustained by the deceased, the plea raised on behalf of the A-1 of Exception 4 to Section 300 of the IPC is completely misconceived.
There is no universal rule of application or a principle of law that in all cases of a single blow Section 302 of the Indian Penal Code is not attracted. A single blow may, in some cases like the present one, entail conviction under Section 302 of the Indian Penal Code, in some cases, it may entail conviction under Section 304 of the Indian Penal Code and in some other cases, under Section 326 of the Indian Penal Code. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each Page 42 of 91 R/CR.A/2039/2008 CAV JUDGMENT case.
The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel and if the accused has inflicted a fatal blow on the deceased, Exception 4 to Section 300 is not attracted and commission must be one of murder punishable under Section 302 of the Indian Penal Code. For attracting Exception 4 to Section 300, it is necessary that blows should be exchanged even if they do not at all find their target. Even if the fight is un-premeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the blows given and cruel and dangerous in its nature, the accused cannot be protected under Exception 4 to Section
300. In Pandurang Narayan Jawalekar v. State of Maharashtra, (1979)1 SCC 132, the facts proved were that the appellant gave a blow on the head of the deceased, an old man, who was advising him not to quarrel. The injuries caused to the Page 43 of 91 R/CR.A/2039/2008 CAV JUDGMENT brain resulted in a fracture as could appear from the evidence of the doctor. It would show that the accused must have struck the blow on the head of the deceased with an iron bar with a great force. The Supreme Court held that Exception 4 did not apply, though there was a sudden quarrel and that the fight was not pre-meditated to cause death. The Supreme Court held that it must be shown that the injury caused was not a cruel one. The conviction for the offence under Section 302 of the IPC by the High Court reversing the acquittal by the trial Court was upheld.
The Supreme Court, in Kikar Singh Vs. State of Rajasthan, 1993 SCC (Cri.) 1156, held that if the weapon used or the manner of attack by the assailant is out of all proportion to the offence given, that circumstance must be taken into consideration to decide whether undue advantage had been taken. Where a person, during the course of a sudden fight, without premeditation and probably in the heat of passion, takes undue advantage and acts in cruel manner in using a deadly weapon, then there would hardly be any ground to hold that his act would not amount to murder. Therefore, if the accused no.1 used a scythe which can be prescribed as one of the deadly weapons against the unarmed man and struck him Page 44 of 91 R/CR.A/2039/2008 CAV JUDGMENT a blow on the head, it must be held that he inflicted the blow with the knowledge that the same would likely to cause death and he had taken undue advantage.
In the present case, there was no fight worth the name. The evidence on record is very clear and cogent. It were the accused persons who had gathered at the house of the deceased and started hurling abuses and thereafter all of a sudden the A-1 hit a blow on the head of the deceased with a scythe which proved to be fatal.
We are also not impressed by the submission of Mr.Majmudar that there are contradictions in the form of material omissions so far as the oral evidence of the three eye- witnesses to the incident is concerned. We may recall the ratio of the decision of Marwadi Kishor Parmanand v. State of Gujarat, (1994)4 SCC 549, in which it was held by the Supreme Court that the evidence of a witness deposing about a fact has to be appreciated in a realistic manner having due regard to all the surrounding facts and circumstances prevailing at or about the time of occurrence of an incident. Some contradictions and omissions even in the evidence of the witness who was actually present and had seen the occurrence Page 45 of 91 R/CR.A/2039/2008 CAV JUDGMENT are bound to occur even in the natural course. It is a sound rule to be observed that where the facts stated by the eye- witness substantially confirmed to and are consistent on material points from the facts stated earlier to the police either in the FIR or the police statement recorded under Section 162 of the Code of Criminal Procedure and are also consistent in all material details as well as on vital points, there would be no justification or any valid reason for the Court to view its evidence with suspicion or cast any doubt on such evidence.
As discussed earlier, the PW5 Badhiben is an injured eye- witness and her presence at the place of occurrence which was her own house was quite natural and in the same manner the presence of the PW6 Mala, the son of the deceased, was also quite natural at his own house. The contradictions in the form of omissions are not so material that on the basis of the same it could be said with certainty that they were actually not present at the time of the incident and were got up by the investigating agency at a later stage. There is no reason even to disbelieve the oral version of the PW1 Jesang Rana as it appears from the evidence on record that his house was very close from the house of the deceased and it took just around two minutes for the PW6 Mala to reach his house and inform Page 46 of 91 R/CR.A/2039/2008 CAV JUDGMENT the PW1 Jesang Rana about the arrival of the accused nos.1 and 3 in the first instance. Therefore, the submission as regards contradictions in the form of omissions has no merit worth the name.
We shall now deal with the decisions on which strong reliance has been placed by Mr.Majmudar, the learned advocate appearing for the accused appellants, in support of his submissions. However, before we proceed with the same, we would like to clarify that precedents in criminal matters are not of much significance unless a neat question of law has been decided and explained by the court. Each case, more particularly, a criminal case depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding criminal cases, more particularly, appeals against the order of convictions, one should avoid the temptation to decide cases as observed by Justice Cardozo by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all a decision.
In Mangesh (supra), the Supreme Court, in the peculiar Page 47 of 91 R/CR.A/2039/2008 CAV JUDGMENT facts of that case, altered the conviction from Section 302 to Section 304(1) of the IPC. In the said case, the appellant's sister had a love affair with the deceased which had continued for two to three years. The appellant was fully aware of the said affair and had expressed his displeasure by entering into altercations with the deceased several times. On the date of the incident, the appellant saw the deceased and his sister chatting with each other in the night hours at a short distance from his house. The appellant assaulted the deceased with a knife three times and ran away from the spot. In the peculiar facts of the case, the Court took the view that in the dying declarations of the deceased, there was nothing to indicate that the appellant had premeditated or pre-planned his action or was having any information prior to the incident that the deceased would be found with his sister at the place of occurrence. Their meeting might have been taken by the appellant as temerity. The Court took the view that it was a clearcut case of loss of self-control and in the heat of passion the appellant caused injuries to the deceased. Further, the Court also found that the appellant had not caused all the injuries on the vital part of the body and neither the appellant had caused the fatal injury with full force. The Court observed that although the fatal injury had been caused on the vital part Page 48 of 91 R/CR.A/2039/2008 CAV JUDGMENT of the body of the deceased, yet it must also be borne in mind that when a person loses his sense he may act violently and that by itself may not be a ground to consider against him while determining the nature of the offence. The Court observed that each case had to be considered on its own facts taking a holistic view of the matter. The Court also observed that the entire attending circumstances should be taken into consideration in order to find out the nature of the actual offence committed.
Since in the said case, the Supreme Court altered the conviction of the appellant from Section 302 of the IPC to that of Section 304 of the IPC, Mr.Majmudar argued, relying on this decision of the Supreme Court, that in the case at hand the appellant no.1 had inflicted a single blow on the head of the deceased and, therefore, the conviction deserves to be altered from that of murder to one of culpable homicide not amounting to murder.
We are afraid, we do not find anything in the decision on which reliance has been placed, on the basis of which the conviction of the appellant no.1 should be altered. We have already discussed the facts of the case which were before the Page 49 of 91 R/CR.A/2039/2008 CAV JUDGMENT Supreme Court. In the present case, we have reached to the conclusion that all the accused persons had premeditated or pre-planned their action and pursuant to the same had reached at the house of the deceased and inflicted forceful blow on the head of the deceased with a scythe, resulting in his death. The case at hand is not of one where one could say that the appellant no.1 had lost his sense in the heat of passion. On the contrary, it was a pre-planned act which was very well articulated by all the accused persons. In our opinion, this decision of the Supreme Court in no manner helps the appellants.
In Ankush Shivaji Gaikwad (supra), the Supreme Court, in the facts of that case, altered the conviction of the accused appellant from that of under Section 302 of the IPC to one under Section 304(2) of the IPC by extending the benefit of Exception 4 to Section 300 of the IPC in favour of the appellant.
The prosecution story as unfolded from para 3 of the judgment reveals that the appellant accompanied by two other co-accused were walking past the field of the deceased when a dog owned by the deceased started barking at them. Angered Page 50 of 91 R/CR.A/2039/2008 CAV JUDGMENT by the barking of the animal, the appellant hit the dog with an iron pipe that he was carrying in his hand. The deceased objected to the appellant beating the dog, whereupon the appellant started abusing the deceased and told him to keep quite or else he too would be beaten like a dog. The exchange of hot words laid to a scuffle between the deceased and the accused persons and in the course whereof, while the co- accused, beat the deceased with fists and kicks, the appellant hit the deceased with the iron pipe on the head. Here again, there was no premeditation in the commission of the crime as observed by the Supreme Court in para 11.1 of the judgment. The Supreme Court observed that there was not even a suggestion that the appellant had any enmity or motive to commit any offence against the deceased, not to speak of a serious offence like murder. The exchange of hot words in the quarrel over the barking of the dog laid to a sudden fight which, in turn, culminated in the deceased being hit with the rod which landed up on a vital part like the head. In such circumstances, the Supreme Court took the view that the case was not that of murder but one of culpable homicide not amounting to murder. The Supreme Court also held, taking into consideration the nature of the simple injury inflicted by the accused, the part of the body on which it was inflicted, the Page 51 of 91 R/CR.A/2039/2008 CAV JUDGMENT weapon used to inflict the same and the circumstances in which the injury was inflicted, that it did not suggest that the appellant had the intention to kill the deceased. The Court observed that all that could be said was that the appellant had the knowledge that the injuries inflicted by him was likely to cause the death of the deceased.
In our opinion, this decision also is of no avail to the accused appellant as the facts were altogether different, whereas in the case at hand, we have already discussed that there was a pre-planned and a premeditated act on the part of the accused persons in assaulting the deceased. The intention of the accused appellant in the present case is very clear from the manner in which the assault was laid and the death was caused of the deceased.
In Sudhaka (supra), the facts of the case as unfolded from para 3 of the judgment are that while the appellant was sleeping on a wooden cot, which was in the front courtyard of the house, her son, the deceased, came from outside and asked the appellant as to whether he had taken his dinner, to which the appellant had replied in the negative. Thereafter, the deceased asked her mother to serve food for him, which she Page 52 of 91 R/CR.A/2039/2008 CAV JUDGMENT did inside the house. The deceased stated to have asked his father, the appellant of the case, to sleep inside the house and thereafter the appellant went inside, which was being watched by his wife who was standing near the door of the house. At that point of time, the wife of the appellant saw the appellant inflicting a stab injury on the deceased, on which the deceased raised shouts about inflicting of injuries by his father and so saying, he had fallen down. The appellant was stated to have come out of the house by shouting to the effect that he had stabbed the deceased, and on hearing the shouts, the appellant's brother arrived at the spot and arranged for an auto-rickshaw to take the deceased to the hospital. On being admitted in the hospital, it was declared that the deceased had succumbed to the injuries. In such factual background, the Supreme Court took the view that there was nothing to suggest that there was any premeditation in the mind of the appellant to cause the death of the deceased. The Court observed from the statement of the mother of the accused who was also the wife of the deceased that the deceased was under the influence of liquor and that whenever he was under
the influence of liquor, he used to throw the household articles and create a ruckus in the house, which was a factor which created a heat of passion in the appellant who as a father was Page 53 of 91 R/CR.A/2039/2008 CAV JUDGMENT not in a position to tolerate the behaviour of his son. Therefore, according to the Supreme Court, unmindful of the consequences, though not in a cruel manner, yet the appellant inflicted a single blow which unfortunately caused severe damage to the vital organs resulting into the death of the deceased. In such circumstances, while affirming the conviction of the appellant, the Supreme Court thought fit to alter the same as falling under Section 304(1) of the IPC in place of Section 302 of the IPC.
This decision also is of no avail to the accused appellant as in the peculiar facts of the case the Supreme Court reached to the conclusion that there was no premeditation in the mind of the appellant to cause the death of the deceased. It appears that the deceased was in the habit of consuming liquor and whenever he used to be under the influence of liquor he used to create a lot of problems for his family members at the house and, therefore, on the fateful day of the incident, the father, in the heat of passion, lost his control and inflicted a single blow with a knife.
In the aforesaid view of the matter, we do not find any error at the end of the trial Court in finding the A-1 guilty of the Page 54 of 91 R/CR.A/2039/2008 CAV JUDGMENT offence of murder punishable under Section 302 of the IPC and resultantly the order of conviction and sentence of the A-1 deserves to be affirmed. At the same time, we also do not find any merit so far as the appeal of the A-2 is concerned, but are of the view that the trial Court ought to have held the A-2 and A-3 also guilty of the offence of murder punishable under Section 302 read with Section 34 of the Indian Penal Code as there is cogent evidence on record to infer common intention on the part of all the accused persons to commit the crime.
We shall deal with the aspect of common intention and a little later while deciding the acquittal appeal filed by the State of Gujarat. However, so far as Criminal Appeal No.2039 of 2008 is concerned, the same fails and is hereby dismissed.
CRIMINAL APPEAL NO. 2361 OF 2008 We shall now deal with the acquittal appeal filed by the State of Gujarat against the judgment and order passed by the trial Court acquitting the original accused nos.2 and 3 for the offence punishable under Sections 302, 307 and 504 of the Indian Penal Code.
By a series of decisions, the Supreme Court has laid down Page 55 of 91 R/CR.A/2039/2008 CAV JUDGMENT the parameters of appreciation of evidence on record and jurisdiction & limitations of the appellate Court, and while dealing with the appeal against the order of acquittal, the Supreme Court observed in Tota Singh and another v. State of Punjab, (1987) 2 SCC 529 as under :
"6. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous."
Further, the Supreme Court has observed in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 as under:
"7. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Page 56 of 91 R/CR.A/2039/2008 CAV JUDGMENT court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only
- reappraise the evidence to arrive at its own conclusions."
In the State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, the Supreme Court observed thus:
"7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the Page 57 of 91 R/CR.A/2039/2008 CAV JUDGMENT guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. {See Bhagwan Singh v. State of M.P., (2002) 4 SCC 85}. The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, Page 58 of 91 R/CR.A/2039/2008 CAV JUDGMENT therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the view arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of materials placed on record to find out whether any of the accused is connected with commission of the crime he is charged with. It is not only the duty of the court to see that an innocent person is not held guilty but also to see that a guilty does not go unpunished.
In the light of the aforesaid principles laid down, we shall consider the evidence on record to find out, whether the trial Court committed any error in dealing with the evidence, which can be said to be patently illegal, or that the conclusion arrived at is wholly untenable, calling for interference by us.
We have been taken through the entire judgment of the trial Court and are quite disturbed to note that although the Page 59 of 91 R/CR.A/2039/2008 CAV JUDGMENT charge framed against the accused persons was very clear that they all, in furtherance of their common intention, had caused the death of the deceased, yet there is not an iota of discussion in the entire judgment as regards Section 34 of the IPC. In our opinion, such an error on the part of the trial Court has led to a serious miscarriage of justice. We have already discussed the entire facts of the case and have also taken note of the oral evidence on record and, therefore, we need not repeat the same. However, taking into consideration the manner in which the entire incident occurred and the conduct of each of the accused persons, it is very difficult for us to accept the submission of Mr.Majmudar that there is nothing to indicate that there was prior meeting of minds or a pre- arranged plan and that the accused had acted in furtherance of their common intention. Such submission of Mr.Majmudar is wholly untenable and such as no reasonable mind will reach on the basis of the evidence on the record of this case.
The trial Court held the A-1 Jesang Pata guilty of the offence of murder for his individual act of hitting a blow on the head of the deceased which proved to be fatal. Therefore, the trial Court convicted the A-1 Jesang Pata for the offence of murder punishable under Section 302 of the IPC simplicitor. So Page 60 of 91 R/CR.A/2039/2008 CAV JUDGMENT far as the A-2 Meram Ahir is concerned, the trial Court found him guilty for the offence punishable under Section 324 of the Indian Penal Code for inflicting injury on the head of the PW5 Badhiben, wife of the deceased. So far as the A-3 Andabhai Patabhai Ahir is concerned, the trial Court recorded an erroneous finding that although he was present at the time of the incident along with the other accused persons, yet as no overt act had been attributed to the A-3, he was entitled to the benefit of doubt and accordingly acquitted the A-3 of all the charges.
The entire line of reasoning adopted by the trial Court is erroneous and contrary to the evidence on record. It appears that the trial Court laboured under a serious misconception of law that if no overt act is established on the part of the accused then he cannot be said to have shared a common intention along with the other co-accused.
It is a settled law that the establishment of an overt act is not a requirement of law to allow Section 34 to operate, inasmuch as Section 34 of the Indian Penal Code gets attracted when a criminal act is done by several persons in furtherance of common intention of all. What has to be, therefore, Page 61 of 91 R/CR.A/2039/2008 CAV JUDGMENT established by the prosecution is that all the concerned persons had shared the common intention. The court's mind regarding the sharing of the common intention gets satisfied when overt act is established qua each of the accused. But then there may be a case where the proved facts would themselves speak of sharing of common intention. The accused no.4 came at the house of the deceased along with the accused no.1 in the first instance armed with an axe. In the first instance, the A-1 and A-4 started hurling abuses to the deceased. Thereafter, the A-2 and A-3 joined them immediately and they also hurled abuses and at that point of time they all were armed with dangerous weapons. At that point of time, the A-1 hit a forceful blow on the head of the deceased with a scythe thereby resulting into a serious head injury which proved to be fatal. Thereafter, while leaving the place of occurrence, the A-2 inflicted a blow on the head of the wife of the deceased i.e. the PW5 Badhiben resulting into an injury on the head in the nature of a contused lacerated wound and the witnesses have deposed that the A-3 also inflicted a blow on the head of the deceased. According to the opinion of the doctors, if both the blows land up at the same place i.e. the part of the head which was injured, then the injury which the PW5 Badhiben had sustained was possible. Assuming for the Page 62 of 91 R/CR.A/2039/2008 CAV JUDGMENT moment having regard to the injury sustained by the PW5 Badhiben that the A-3 could not be said to have hit a blow on the head of the deceased with an axe, still his presence at the time of the incident along with the other co-accused is established beyond reasonable doubt. But for prior meeting of minds and a pre-arranged plan, all the four accused would not have gathered at the house of the deceased. The fact that in the first instance the A-1 and A-4 came at the house of the deceased and within no time the A-2 and A-3 also arrived and joined the A-1 and A-4 in hurling abuses suggests that there was a pre-plan on the part of the accused persons. They all came together and at the same time ran away together.
Ordinarily, there cannot be any direct evidence of the process of formation of common intention. The common intention is to be culled out from the facts and circumstances of the case established by the prosecution.
In State of Haryana v. Tej Ram, reported in AIR 1980 SC 1496, where two accused who were brothers were alleged to have murdered the deceased by attacking him with 'pharsa' (sharp edged weapon) and 'lathi' respectively at the dead hours of night, and the High Court maintained the conviction of Page 63 of 91 R/CR.A/2039/2008 CAV JUDGMENT the accused who was armed with 'pharsa', but acquitted the other accused who was armed with a 'lathi'. Although holding that both the accused persons were present at the time and place of occurrence, that both had repeatedly come to the house of the deceased and were nursing a grudge against the deceased, that they came armed to the house of the deceased and made a concerted assault on the deceased and the injuries on the body of the deceased revealed that they were caused by a sharp edged weapon as well as a blunt weapon, yet the Supreme Court held that in the circumstances that the accused armed with 'lathi' could not be acquitted on the ground that he did not attack the deceased or that he had no common intention to commit murder. It was held that he was also liable to be convicted under Section 302 read with Section 34 of the Indian Penal Code. It is a settled legal position that the common intention can develop even during the course of occurrence.
In Brijlal P.D.Sinha v. State of Bihar, reported in (1998)5 SCC 699, it was held that the liability of one person for an offence committed by another in the course of a criminal act perpetrated by several persons will arise under Section 34 of the Indian Penal Code only where such criminal act was done Page 64 of 91 R/CR.A/2039/2008 CAV JUDGMENT in furtherance of a common intention of the persons who join in committing the crime. It was held that direct proof of common intention will, of course, be difficult to get and such intention can only be inferred from the circumstances. It was held that the common intention can develop at the spur of moment.
In Sheoram Singh v. State of U.P., reported in AIR 1972 SC 2555, it was held that the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit the offence with which they could be convicted. The prearranged plan may develop on the spot during the course of the commission of the offence, but the crucial circumstance is that the said plan must appreciate the act constituting the offence.
We may also, at this stage, recall the observations made by the Supreme Court in Lalai & Dindoo and another v. State of U.P., reported in (1975)3 SCC 273. The Supreme court in para 7 in that case observed as under :
"To infer common intention, the time and place of the murder, the weapon carried by the accused, their relationship inter se and their concerted action in the Page 65 of 91 R/CR.A/2039/2008 CAV JUDGMENT wake of the murder are all relevant."
"So where the deceased was sought in his own habitation and murdered and the co-accused, brother of the accused, carried a spear to overcome outside interference and the accused ran away together after the murder, the fact that the co-accused did not participate in the murderous assault is immaterial and the inference of common intention was rightly inferred. His conviction under Section 302 read with Section 34 was therefore not improper."
The finding of the trial Court as also regards the A-3 that as no overt act had been attributed at the time of the incident, the A-3 could not be said to have shared the common intention with the A-1, is erroneous.
To apply Section 34 of the Indian Penal Code, apart from the fact that there should be two or more accused, two factors must be established :
i) common intention; and
ii) participation of the accused in the commission of an
offence.
If the common intention is proved but no overt act is attributed to the individual accused, Section 34 of the IPC will be attracted as essentially it involves vicarious liability, but if Page 66 of 91 R/CR.A/2039/2008 CAV JUDGMENT the participation of the accused in the crime is proved and common intention is absent, Section 34 of the IPC cannot be invoked. (see Jay Bhagwan & others v. State of Haryana, 1999 Cri. L.J. 1634).
In Idrishbhai Daudbhai (supra), the appellant was a convict for commission of an offence punishable under Section 302 read with Section 34 of the IPC. The appellant was prosecuted along with three others for sharing the common intention for causing the death of one Siddique Ahmed Patel, the deceased, and causing simple hurt with sharp-cut weapon to the PW3. The facts of the case as unfolded in para 2 of the decision are that on the date of the incident in the evening hours, the deceased was going to a mosque for offering namaz. When he was passing by the house of the accused persons, all the four accused persons were standing there. A quarrel ensued between them when the deceased Siddique was asked as to why he had entered into a transaction of the house instead of land, to which he answered that he had entered into a transaction with his maternal uncle, whereupon, the appellant allegedly inflicted a stick blow on his head, as a result of which he fell down. The accused no.1 of the said case thereafter inflicted a knife blow on his chest. One Yusuf Adam Page 67 of 91 R/CR.A/2039/2008 CAV JUDGMENT Patel tried to intervene and in the process he was also injured by the accused no.2 with a knife. The accused no.3, the mother of the appellant, was said to have a sickle in her hand. The deceased and the injured were taken to the hospital, where the deceased was declared dead. It appears that the Supreme Court noticed that the sequence of events as contained in the FIR materially deferred from the statements made by the prosecution witnesses. The FIR did not even contain any statement to the effect that the appellant had inflicted any injury whatsoever with the stick as was alleged by the prosecution witnesses before the trial Court. The Supreme Court took the view that in the FIR only one overt act was attributed to the appellant that of exhortation "maro ... maro". In the facts of the case, the Supreme Court observed that such exhortation by itself may not give rise to an inference of sharing a common intention to cause death of the deceased and to cause hurt to PW5. Such exhortation as alleged in the FIR had taken place only after injuries had been inflicted by the accused no.1 and accused no.2. No injury was inflicted on the deceased or PW3 after the alleged exhortation. The Court took the view that it was a fit case where the benefit of doubt deserves to be granted to the appellant. In para 20 of the decision of the Supreme Court, it was observed that acting in Page 68 of 91 R/CR.A/2039/2008 CAV JUDGMENT concert, existence of a prearranged plan, implied formation of a common intention. The Supreme Court also observed that prearranged plan or pre-concert should be proved either from conduct or from circumstances or from any incriminating facts.
We are of the view that this decision is of no avail to the accused persons as the evidence in the present case is very cogent and clear that there was a prearranged plan which presupposes a prior concert. In the present case, there is evidence to suggest that there was prior meeting of minds, and pursuant to the same, all the accused persons, armed with deadly weapons, reached at the house of the deceased and started hurling abuses and thereafter the original accused no.1 inflicted a forceful blow on the head of the deceased with a scythe, resulting into a fracture of his skull, and while leaving, the wife of the deceased was also hit with a blow on her head. In the case at hand, the common intention amongst the accused persons can be said to have been existed from the beginning.
In State of Punjab (supra), while dismissing the acquittal appeal filed by the State and affirming the order passed by the High Court altering the conviction from that of Section 302 of Page 69 of 91 R/CR.A/2039/2008 CAV JUDGMENT the IPC to one of Section 304(1) of the IPC, the Supreme Court observed that direct proof of common intention was seldom available and, therefore, such intention could only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. The Court observed that in order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a pre-planned or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34 of the IPC, be it prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime.
In the said case, on the date of the incident, while the deceased was returning from the fields along with his mother, the accused persons armed with a 'dang' each were found standing near the house of the respondent accused. At that point of time, one of the co-accused raised a 'lalkara' stating that the deceased and his companions should not be allowed to escape as they had damaged their crops. The deceased was caught hold of by the respondent accused and other co- accused and was hurled on the ground while the other co- accused, at the instigation of his mother, inflicted a 'chhavi' Page 70 of 91 R/CR.A/2039/2008 CAV JUDGMENT blow on the head of the deceased. It is only when the close relations of the deceased prayed for sparing the life of the deceased, the accused persons ran away from the scene of occurrence. The trial Court had convicted each of the respondents for the offence punishable under Section 302 read with Section 34 of the IPC. The High Court, in appeal, acquitted some of the co-accused, whereas alter the conviction of the respondent from that of under Section 302 of the IPC to one under Section 304(1) of the IPC.
In our opinion, this decision is also of no avail to the respondents as the same was rendered in the peculiar facts of the case. In the present case, there is no evidence to even remotely suggest that there was any altercation between the accused persons and the deceased. The case at hand is one of a pre-planned and a premeditated attack with a view to seek revenge and there is also evidence on the basis of which common intention on the part of the accused persons to commit the offence could be inferred.
In State of U.P. (supra), the Supreme Court has explained the powers of the appellate Court while dealing with an acquittal appeal. The Supreme Court has observed that in Page 71 of 91 R/CR.A/2039/2008 CAV JUDGMENT exceptional cases where there are compelling circumstances to interfere and the judgment under appeal is found to be perverse, the appellate Court can interfere with the order of acquittal. The Court has also observed that the appellate Court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. In the said case, applying the parameters of interference against the order of acquittal, the Supreme Court was of the opinion that no interference was called for in the appeal filed by the State of U.P. against the judgment and order passed by the High Court of Allahabad acquitting the accused persons.
So far as the principle of law as explained by the Supreme Court as regards the powers of the appellate Court while deciding an acquittal appeal is concerned, there cannot be any dispute with the same. We have also applied the same principle while deciding the acquittal appeal, but we have taken the view in the facts of the case and, more particularly, on the basis of the evidence which is on the record that the omission on the part of the trial Court to deal with the aspect Page 72 of 91 R/CR.A/2039/2008 CAV JUDGMENT of common intention had laid to a serious miscarriage of justice, and that is the reason why we have thought fit to interfere with the judgment and order passed by the trial Court. In our opinion, this decision is also of no avail to the accused persons.
Thus, we are of the view that the A-2 and A-3 are also guilty of the offence of murder punishable under Section 302 read with Section 34 of the IPC for causing death of the deceased.
We shall now deal with the acquittal of the A-2 Merambhai Ahir and A-3 Andabhai Ahir so far as the offence of an attempt to commit murder of the PW5 Badhiben punishable under Section 307 of the IPC is concerned.
It may not be out of place to state that the conviction of the A-2 for the offence punishable under Section 324 of the IPC is with respect to inflicting injuries on the head of the PW5 Badhiben with a spade. According to the trial Court only the A- 2 could be held liable for causing such injury as the PW5 Badhiben has deposed that while the accused persons were leaving the place of occurrence, the A-2 inflicted a blow on her Page 73 of 91 R/CR.A/2039/2008 CAV JUDGMENT head with a spade and A-3 inflicted a blow at the same place with an axe. The line of reasoning adopted by the trial Court appears to be that the PW5 Badhiben had sustained a single injury in the nature of a contused lacerated wound. If two accused are alleged to have inflicted blows at the same place, then according to the opinion of the experts i.e. the doctors, the injury sustained by the PW5 Badhiben was possible. However, it appears that the trial Court in para 14 of the judgment has observed that an axe being a sharp cutting weapon if used for inflicting injuries would not cause a contused lacerated wound. At the same time, the trial Court also recorded a finding that the intention of the A-2 was not to cause the death of the PW5 Badhiben. To put it in other words, according to the trial Court, the overt act attributed to the A-2 could not be said to be an attempt to murder punishable under Section 307 of the IPC.
In order to constitute an attempt, two elements are necessary to be satisfied, viz. mens rea (guilty intention) and actus reus (act of the person complained against). In order that an attempt may fall under Section 307 of the IPC, a third element besides the two elements referred to above of mens rea and actus reus is necessary viz. that the act was done with Page 74 of 91 R/CR.A/2039/2008 CAV JUDGMENT such mens rea as would have constituted the act of murder, if death had occurred.
As the trial Court has convicted the A-2 for the offence punishable under Section 324 of the IPC and has acquitted the A-2 from the charge of an attempt to commit murder punishable under Section 307 of the IPC, it is necessary to bear in mind the distinction between an offence under Section 324 and 307 of the IPC. The distinction between the two offences is well established. In order to bring the offence under Section 307 of the IPC home to the accused, the prosecution must establish that his intention or knowledge was of the description mentioned under Section 307 of the IPC. Where the evidence is not sufficient to establish with certainty the existence of the requisite intention or knowledge, he could only be convicted under Section 324 of the IPC.
Therefore, the question which falls for our determination is, whether having regard to the overt act attributed to the A-2 so far as causing of injuries to the PW5 Badhiben is concerned, whether the A-2 and A-3 had the requisite intention or knowledge that if a blow is hit on a part of the body like head with a dangerous weapon like a spade, then it might cause Page 75 of 91 R/CR.A/2039/2008 CAV JUDGMENT death by such an overt act.
In this context we may recall what has been deposed by the PW8 Dr.Kumarkundan Sarjiprasad in his evidence Exh.46. The PW8 Dr.Sarjiprasad, in his evidence, has in no uncertain terms deposed that if timely treatment would not have been provided to the PW5 Badhiben then the injury which the PW5 had sustained on her head could have proved to be fatal as the same was sufficient in the ordinary course of nature to cause death. This part of the version of the PW8 Dr.Sarjiprasad has not been challenged by the defence in his cross-examination.
At the same time, it is also necessary for us to consider the decision of the Supreme Court taking the view that in finding an accused guilty for the offence punishable under Section 307 of the IPC, it is not necessary that bodily injury capable of causing death should have been inflicted.
The following observations of the Supreme Court in the case of State of Maharashtra v. Balram Bama Patil and others, reported in AIR 1983 SC 305 are worth noting :
"...A bare perusal of Section 307 IPC would show that the reasons given by the High Court for acquitting the Page 76 of 91 R/CR.A/2039/2008 CAV JUDGMENT accused of the offence under Section 307 were not tenable. Section 307 IPC reads:
"Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, Page 77 of 91 R/CR.A/2039/2008 CAV JUDGMENT irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."
We are of the view that the trial Court committed a serious error in acquitting the respondents (original accused nos.2 and 3) of the offence punishable under Section 307 read with Section 34 of the Indian Penal Code.
Thus, what is discernible from the decision of the Supreme Court aforenoted is that, to justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may Page 78 of 91 R/CR.A/2039/2008 CAV JUDGMENT be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
We are of the view that having regard to the manner in which the incident had occurred, the weapon used for inflicting the injuries and the part of the body on which the injuries were inflicted, speaks as regards the intention and the knowledge of the accused persons by itself.
We shall now consider, whether the acquittal of the respondents (original accused nos.2 and 3) of the offence punishable under Section 504 of the Indian Penal Code is justified or not.
It appears from the evidence of the PW1 Jesangbhai, PW5 Page 79 of 91 R/CR.A/2039/2008 CAV JUDGMENT Badhiben and PW6 Malabhai, the son of the deceased, that all the accused persons were hurling abuses to the deceased and his family. Neither the PW5 Badhiben has said anything about the exact words used while hurling the abuses nor the PW6 Malabhai has said anything about the exact words used by the accused persons while hurling abuses.
It is no doubt true that there is cogent evidence to suggest that the accused persons did hurl filthy abuse but the actual words used by the accused have not come on record. In such circumstances, could it be said that the accused persons are guilty of the offence punishable under Section 504 of the Indian Penal Code.
Section 504 of the Indian Penal Code reads as follows :
"Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace or to commit any other offence, shall be punished.
The essential ingredients of the offence under Section 504 of the Indian Penal Code are (1) to intentionally insult any person, and (2) to provoke such person intending or knowing it Page 80 of 91 R/CR.A/2039/2008 CAV JUDGMENT to be likely that such provocation will cause him to break the public peace or to commit any other offence. Therefore, in order to come to a conclusion as to whether the abuses hurled were such as to provoke another person and to cause him to break the public peace or to commit any other offence, it is necessary to know as to what were the actual words which were uttered.
The section contemplates intentionally insulting a person and thereby provoking such person insulted to break the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the section merely because the insulted person did not actually break the peace or commit any offence having exercised self-control or Page 81 of 91 R/CR.A/2039/2008 CAV JUDGMENT having been subjected to abject terror by the offender, In judging whether particular abusive language is attracted by Section 504 of the Indian Penal Code, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar diosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504 of the Indian Penal Code, if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504 of the Indian Penal Code, if he merely uses abusive language Page 82 of 91 R/CR.A/2039/2008 CAV JUDGMENT against the complainant.
In this context, we may quote with profit a decision of this Court in the matter of Dadia Ottamchand Motichand and another v. Hemkunver Popatlal, reported in 1961 (Vol.II) GLR 196, wherein this Court has held that :
"The insult, (which is one of the ingredients of the offence) may be by words or by conduct. Abusive words may amount to an offence under Section 504 Indian Penal Code, if other ingredients are present. If the other ingredients are not present, mere abuses would not amount to an offence under Section 504, I.P. Code.
It is an important ingredient of the offence under Section 504 I.P.C. that in addition to intentional insulting, the person insulting must thereby give provocation to another person insulted to break the public peace or to commit any other offence."
We may also refer to one other decision of this Court in the matter of Patel Narottam Tulsidas v. State of Gujarat, 1973 GLR 522. In the said decision, the Court took the view that mere abuse is not sufficient to prove the act within the meaning of Section 504 of the Indian Penal Code. The intention to provoke any person to break piece is essential. The following observations of the Court are worth noting : Page 83 of 91 R/CR.A/2039/2008 CAV JUDGMENT
"2. In order to enable the court to decide whether, particular words used by the accused were likely to give provocation to Murlidhar so as to cause him to break the public peace or to commit any other offence as contemplated by Section 504 of the Indian Penal Code, it was necessary for the prosecution to point out the actual words used by the accused. In the present case, however, as stated by the learned Additional Sessions Judge, the prosecution did not disclose the actual words used by the accused. It appears that there was exchange of abuses between Murlidhar and the accused and there is no material on the record from which the court can decide that, the abuses given by the accused were in fact, filthy or indecent as alleged by the prosecution. It is true that, in order to constitute intentional insult with intent to provoke breach of the peace or with requisite knowledge, as contemplated by Section 504 of the Indian Penal Code, it is not necessary, that abuse should be filthy or indecent. But, in the present case, as pointed out by the learned Additional Sessions Judge, there is no satisfactory evidence on the record to show that, the accused had abused Murlidhar with the intention of insulting him in order to give him provocation to break the public peace. Mere abuse in the absence of any intention to provoke any person to break the public peace or to commit any other offence or, of knowledge that, a breach of the peace was likely, does not fall within Section 504 of the Indian Penal Code."
We may refer to one more decision on this point of a Page 84 of 91 R/CR.A/2039/2008 CAV JUDGMENT Division Bench of the Bombay High Court in the case of Philip Rangel v. Emperor, AIR 1932 Bombay 193. His Lordship Beaumont, C.J. made the following observations, which are worth noting :
"Now the accused is prosecuted under Section 504 of the Indian Penal Code, and in order to constitute an offence under that section it is necessary to show that the accused intentionally insulted and thereby provoked some person intending or knowing it to be likely that such provocation would cause him to break the public peace or commit any other offence. So that first of all there has got to be an intentional insult, and that insult has got to be intended or known to be likely to provoke a breach of the public peace or some other offence. We are not concerned with any breach of good manners. Of course the accused in using the expression he did was guilty of bad manners, and I have no doubt that when he recovered his temper he recognised that, and was sorry for it. Nor are we concerned with whether the accused did something for which the Chairman could call him to order. We have to consider whether he committed an offence under Section 504. Now the learned Magistrate says that undoubtedly the words are an insult, for, as he says:
"It is very vulgar abuse reflecting on the chastity of their mothers."Page 85 of 91 R/CR.A/2039/2008 CAV JUDGMENT
Well, if A calls B a bastard in circumstances which suggest that he means what he says, that no doubt does reflect on the chastity of B's mother, and nobody would suggest that it was not an insult to B. But when you find that the accused described all the members present at this meeting--we are told about forty members were present--of whose antecedents the accused presumably knew nothing at all, as bastards, it seems to me quite impossible to suppose that he meant literally that they were all persons bora out of wedlock. It is much more probable that he was using a mere term of vulgar abuse. And when you find that he qualifies the description bastard by the adjective "bloody," although there is no suggestion that there was bloodshed at the meeting, it seems to me abundantly clear that this expression was not intended to be taken literally but was intended as mere abuse.
Section 504 does not make it an offence to use abusive language which may lead to a breach of the public peace. There must be an intentional insult. Now an insult may be offered by words or conduct, but in my opinion when the charge is of an insult by words, the words must amount to something more than what in English Law is called "mere vulgar abuse". If abusive language is used in such circumstances that the court comes to the conclusion that it cannot possibly have been intended, and cannot have been understood by those to whom it was addressed to have been intended, to be taken literally, then I think the language cannot beheld to Page 86 of 91 R/CR.A/2039/2008 CAV JUDGMENT amount to an intentional insult. No doubt the use of abusive language may form an important part of an insult by conduct. But in this case there was nothing insulting in the accused's conduct apart from the language he used. He did not adopt a loud and insolent tone, and indeed did not intend his remark to be heard. I think therefore that there was no intention to insult. If, however, I am wrong in that, I think further that the insult, if any, was not intended or known by the accused to be likely to lead to a breach of the public peace or any other offence. It was no doubt perfectly natural for the share-holders present to recent the use of this rude language, and to call the attention of the Chairman to the conduct of the accused in using it, and it was proper for the Chairman to deal with the accused. But I cannot conceive that it was likely that the persons present at the meeting would so far lose control of themselves as to commit a breach of the public peace when they had got the chairman of the meeting in control and capable of dealing with the matter.
I think the application must be allowed and the conviction set aside. The fine will be refunded." In the aforesaid view of the matter, we hold that there is no legal evidence to hold the respondents i.e. the respondent nos.2 and 3 guilty for the offence punishable under Section 504 of the Indian Penal Code and to that extent, we affirm the Page 87 of 91 R/CR.A/2039/2008 CAV JUDGMENT order of acquittal passed by the trial Court.
VIII. Our final conclusion is as under :
(1) The conviction of Jesangbhai Ahir A-1 for the offence of murder punishable under Section 302 of the Indian Penal Code is just and proper and no case has been made out to alter the conviction for that of murder to one of culpable homicide not amounting to murder within the Exception 4 to Section 300 of the Indian Penal Code. (2) There is sufficient and cogent evidence on record to infer common intention on the part of all the accused persons to commit the crime.
(3) Merambhai Patabhai Ahir A-2 and Andabhai Patabhai Ahir A-3 are also guilty of the offence of murder punishable under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code. (4) Merambhai Patabhai Ahir A-2 and Andabhai Patabhai Ahir A-3 are also guilty of the offence of attempt to commit murder punishable under Section 307 of the Indian Penal Code read with Section 34 of the Indian Penal Code.
IX. Final Order :
Page 88 of 91 R/CR.A/2039/2008 CAV JUDGMENT
(1) The Criminal Appeal No.2039 of 2008 filed by Jesangbhai Patabhai Ahir A-1 and Merambhai Patabhai Ahir A-2 fails and is hereby dismissed. The order of conviction and sentence as stated above is affirmed.
Resultantly, the Criminal Appeal No.389 of 2011 filed by Jesangbhai Patabhai Ahir A-1 also fails being a successive appeal after having already filed Criminal Appeal No.2039 of 2008.
(2) The Criminal Appeal No.2361 of 2008 filed by the State of Gujarat against the judgment and order of acquittal of Merambhai Patabhai Ahir A-2 and Andabhai Patabhai Ahir A-3 for the offence punishable under Sections 302, 307, 504 read with Section 34 of the Indian Penal Code is hereby partly allowed. Merambhai Patabhai Ahir A-2 and Andabhai Patabhai Ahir A-3 both are held guilty of the offence of murder punishable under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code.
(3) In the same manner, Merambhai Patabhai Ahir A-2 and Andabhai Patabhai Ahir A-3 are also held guilty of the offence of attempt to commit murder punishable under Section 307 of the Indian Penal Code read with Section 34 of the Indian Penal Code.
(4) Merambhai Patabhai Ahir A-2 and Andabhai Patabhai Ahir A-3 are hereby sentenced to undergo rigorous imprisonment for life with fine of Rs.5,000=00 each of the offence of murder punishable under Section 302 of the Indian Penal Code read with Section 34 of the Page 89 of 91 R/CR.A/2039/2008 CAV JUDGMENT Indian Penal Code. In default of payment of fine, A-2 and A-3 shall suffer further rigorous imprisonment of six months.
(5) Merambhai Patabhai Ahir A-2 and Andabhai Patabhai Ahir A-3 are hereby sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.1000=00 each for the offence of attempt to commit murder punishable under Section 307 of the Indian Penal Code read with Section 34 of the Indian Penal Code. In default of payment of fine, A-2 and A-3 shall suffer further rigorous imprisonment of two months. (6) The Criminal Appeal No.2361 of 2008 filed by the State of Gujarat against the order of acquittal of all the accused persons so far as the offence punishable under Section 504 of the Indian Penal Code is concerned, fails and is hereby dismissed. The order of acquittal passed by the trial Court so far as the offence punishable under Section 504 of the Indian Penal Code is concerned, is hereby affirmed.
(7) All the sentences are ordered to run concurrently. (8) Merambhai Patabhai Ahir A-2 and Andabhai Patabhai Ahir A-3 shall surrender before the trial Court within a period of two weeks from today, failing which, the trial Court shall issue non-bailable warrant.
(BHASKAR BHATTACHARYA, CJ.) Page 90 of 91 R/CR.A/2039/2008 CAV JUDGMENT (J.B.PARDIWALA, J.) MOIN After this order is passed, Mr.Majmudar, the learned advocate appearing on behalf of the respondent in Criminal Appeal No.2361 of 2008, prayed for one month's time for surrender.
We, having granted fortnight's time, find no reason to grant further time.
The certified copy of the order passed by us be supplied by day-after-tomorrow.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 91 of 91