Gujarat High Court
Deni @ Lalo Vikramsinh Punamsinh Khant & ... vs State Of ... on 26 March, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/1110/2007 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1110 of 2007
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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DENI @ LALO VIKRAMSINH PUNAMSINH KHANT & 3....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Appellant(s) No. 1
MR YOGESH LAKHANI, SR. COUNSEL with MR PRAVIN GONDALIYA, ADVOCATE for the Appellant(s) No. 2 - 4
MS. MOXA THAKKAR, ADDITIONAL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :26/03/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) Page 1 of 52 R/CR.A/1110/2007 CAV JUDGMENT This appeal is at the instance of convict, accused- appellants of the offence punishable under Sections 302, 323 and 504, read with Section 34 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 31st July, 2007, passed by the learned Additional Sessions Judge, 7th Fast Track Court, Sabarkantha at Modassa, in Sessions Case No.76 of 2007. By the aforesaid order, the learned Additional Sessions Judge found the appellants guilty of the offence under Section 302, read with Section 34 of the Indian Penal Code, and consequently, sentenced them to suffer life imprisonment and to pay a fine of Rs. 1,000/-. In default of payment of fine, the appellants were directed to undergo further rigorous imprisonment for six months. The learned Additional Sessions Judge also found the appellants guilty of the offence under Section 323 of the Indian Penal Code, and consequently, sentenced them to suffer rigorous imprisonment of one year and to pay a fine of Rs. 5,000/-. In default of payment of fine, the appellants were directed to undergo further rigorous imprisonment for three months. The learned Additional Sessions Judge also found the appellants guilty of the offence under Section 504 of the Indian Penal Code, read with Section 34 of the Indian Penal Code and consequently, sentenced them to suffer rigorous imprisonment of one year and to pay a fine of Rs. 500/- each. In default of payment of fine, the appellants were directed to undergo further rigorous imprisonment for three months. However, the learned Additional Sessions Judge acquitted all the accused-appellants of the offence under Section 342 of the Indian Penal Code. In the same manner, the learned Additional Sessions Judge found the accused-appellant No.1 guilty of the offence under Section 135 of the Bombay Police Act, and consequently, sentenced Page 2 of 52 R/CR.A/1110/2007 CAV JUDGMENT him to suffer simple imprisonment for six months with fine of Rs. 500/-. In default of payment of fine, the appellant No.1 was directed to undergo further rigorous imprisonment for three months. So far as the accused-appellant Nos. 2, 3 and 4 are concerned, they were acquitted by the learned Additional Sessions Judge of the offence under Section 135 of the Bombay Police Act.
2. The case of the prosecution:
2.1 The accused-appellant No.1 was harbouring doubts that his sister, namely, Beriben @ Vinaben, had an illicit affair with the deceased Natwarsinh Fulsinh Jhala. A month before the date of the incident, all the accused-appellants had picked up a quarrel with the deceased on the complaint that the deceased was maintaining illicit relations with Beriben. The deceased was taken to the house of the appellant No.2 and was assaulted with fisticuffs. However, on that particular day, the deceased somehow managed to escape from the clutches of the accused-appellants.
2.2 On the date of the incident i.e. on 14th January, 2007, at around 7.30 in the evening, the accused-appellants are alleged to have picked up a quarrel with the deceased near a cabin of the P.W 3, Bhalaji Zala. It is the case of the prosecution that at that point of time, the accused appellants hurled filthy abuses on the deceased, stating that despite warning him number of times not to maintain illicit relations with Beriben, he continued as a result, Beriben was not able to lead a normal married life.Page 3 of 52 R/CR.A/1110/2007 CAV JUDGMENT
2.3 It is the case of the prosecution that the accused-
appellants No. 2, 3 and 4 assaulted the deceased with fisticuffs. It is also the case of the prosecution that the accused-appellants No. 2, 3 and 4 caught hold of the deceased and in the meantime, the appellant No.1 inflicted injuries on the chest of the deceased with a knife. The deceased was rushed to the hospital, where he was declared dead by the doctor.
2.4 Thus, the case of the prosecution is that the motive behind the commission of the crime was to teach the deceased a lesson as he was maintaining illicit relations with the sister of the appellant No.1 and due to such illicit relations, the sister of the appellant No.1 was not able to lead a normal marital life.
2.5 After the incident, the P.W 1, Pratapsinh Chatursinh lodged the complaint Exh.15 at the Bayad Police Station on 14th January, 2007, stating that the appellant No.1 was residing near his house in the same locality. The appellant No.1 had a sister, named Beriben @ Vinaben. Beriben was a married lady, but at the relevant point of time, she was residing at the house of her parents. It is further stated that the accused-appellants were harbouring doubts that the deceased, who happened to be his uncle's son, had illicit relations past one year with Beriben and on account of such doubts, before around 4 months, a quarrel had ensued between the deceased and the accused-appellants and at that point of time, the deceased was assaulted at the house of the appellant No.2 with fisticuffs. He has further stated that on the date of the incident, at around 7.30 in the evening, he had gone to the Pan cabin belonging to his uncle, P.W 3 Bhalaji and Page 4 of 52 R/CR.A/1110/2007 CAV JUDGMENT while at the Pan cabin of his uncle Bhalaji, he saw that the accused-appellants were hurling filthy abuses on the deceased Natwarsinh, stating that why he had continued to maintain illicit relations with Beriben despite warning him in the past. It is further stated that the appellant Nos. 2, 3 and 4 had caught hold of the deceased and at that point of time, the appellant No.1 inflicted injuries with a knife on the chest of the deceased. On hearing the shouts, one Deepakbhai Bhalaji, Bhalaji Chuntaji, Jagatsinh Manasinh and others intervened and separated all the four. It is further stated that the accused- appellants were identified in the light which was in the Pan cabin. As the deceased was injured, he was shifted to a hospital by the first informant himself, accompanied by Maganbhai Bhemsinh, Jagatsinh Manasinh, Kiransinh Punamsinh and Mangiben, the mother of the deceased Natwarsinh. On reaching the dispensary at Vatrak, the doctor upon examination declared that Natwarsinh had succumbed.
2.6 On complaint being lodged, the investigation had commenced. The inquest panchnama Exh.21 of the dead-body of the deceased was drawn in the presence of the panch witnesses. The scene of offence panchnama, Exh.23 was drawn in presence of the panch witnesses. The dead-body of the deceased was sent for postmortem and the postmortem report, Exh.40 noted that the deceased had sustained a stab wound on right front side of the chest 4cm below the clavicle at mid clavicle. The cause of death was shock as a result of stab injury.
2.7 The appellant No.1 was arrested on 15th January, 2007 and his arrest panchnama, Exh. 28 was drawn in presence of Page 5 of 52 R/CR.A/1110/2007 CAV JUDGMENT the panch witnesses. The clothes worn by the appellant No.1 were collected. On 16th January, 2007, the appellant Nos. 2, 3 and 4 were arrested and their arrest panchnama Exh.29 was drawn. The clothes worn by the appellant Nos. 2, 3 and 4 were collected. The muddamal articles collected during the course of the investigation were sent for chemical analysis to the Forensic Science Laboratory, and the serological test report revealed that the muddamal article knife was detected with human blood of the blood group "A" matching with the blood group of the deceased and in the same manner, pants of the appellant No.1 was also detected with human blood of "A" group matching with the blood group of the deceased.
2.8 The appellant No.1 while in custody after the arrest, expressed his willingness to point out the place where he had concealed the weapon of offence, the knife, and accordingly, a discovery panchnama Exh.48 under Section 27 of the Evidence Act, was drawn. The accused-appellant No.1 was sent for medical examination and the medical examination revealed that he had sustained a small abrasion on his left knee, and accordingly, the medico-legal certificates, Exhibits 42 and 43 were issued in that regard. In the same manner, the other three accused-appellants were also subjected to medical examination, but no injuries of any nature were noticed on the body of the appellant Nos. 2, 3 and 4. The medical certificates in that regard Exhibits 44, 45 and 46 were issued by the Medical Officer of the Community Health Centre, Bayad.
2.9 The statements of various witnesses were recorded and finally, charge-sheet was filed against the accused-appellants Page 6 of 52 R/CR.A/1110/2007 CAV JUDGMENT in the Court of the learned Judicial Magistrate First Class, Modassa.
3. As the case was exclusively triable by the Sessions Court, the learned Judicial Magistrate First Class, Modassa committed the case to the Sessions Court under Section 209 of the Criminal Procedure Code. The Sessions Court framed charge against the accused appellants, Exh.8 and statements of the accused-appellants were recorded. All the accused appellants did not admit the charge and claimed to be tried.
4. The prosecution adduced the following oral evidence in support of its case.
Sr. Name of the witness Exhibit
No. Numbe
r
1. Pratapsinh Chatursinh Zala, P.W No. 1 13
2. Dipakbhai Bhalabhai Zala, P.W No. 2 16
3. Bhalaji Chuthaji Zala, P.W No.3 17
4. Jagatsinh Manisinh Zala, P.W No.4 18
5. Takhatsinh Amarsinh Parmar, P.W No.5 19
6. Magansinh Bhemsinh Zala, P.W No.6 21
7. Punamsinh Kansinh Chavada, P.W No.7 22
8. Mohansinh Detarsinh Zala, P.W No.8 24
9. Bhavanji Kanaji Zala, P.W No.9 26
10 Kalusinh Arjansinh Chauhan, P.W No.10 34
11. Dr. Kumari Sujata Narendrabhai Brahmbhatt,P.W No.11 37
12. Dr. Rakeshbhai Nandlal Jagad, P.W No.12 39
13. Firozkhan Usmankhan, P.W No.13 47
14. Ashokkumar Kantibhai Raval, P.W No.14 50
15. Vitthalbhai Balvantbhai Makwana, P.W No.15 51
16. Dr. Kalugar Nangar Gonsai, P.W No.16 52
17. Rajeshbhai Revabhai Chaudhary, P.W No.17 54
Page 7 of 52
R/CR.A/1110/2007 CAV JUDGMENT
5. The following pieces of documentary evidence were adduced by the prosecution:-
Sr. Details of case Exhibit No No. . 1. Original complaint 15 2. Inquest panchnama 20 3. Panchnama of place of incident 23 4. Panchnama of clothes on the dead body 25 5. Panchnama of physical condition of the accused 28 6. Panchnama of physical condition of the accused 29 7. Panchnama of clothes on the accused seized 30 8. F.S.L. report 38 9. P.M. Note 40 10 Treatment certificate of the accused 42 to 46 11. Recovery panchnama 48 12. Certificate of Vatrak Hospital 53 13. Panchanama of Medical yadi 55 14. Postmortem form 56 15. Yadi made to the Executive Magistrate 57
16. Yadi made to the Executive Magistrate for preparing the map 58
17. Yadi to obtain treatment certificate of the accused 59 18. Birth certificate of the accused 60 19. Dispatch entry of muddamal 61 20. Receipt of F.S.L. 62 21. Forwarding letter of F.S.L. 64 22. Report of F.S.L. 64 23. Serological report 65 24. Notification of B.P. Act. 66
6. After completion of the oral as well as the documentary evidence of the prosecution, the statements of all the accused-
Page 8 of 52 R/CR.A/1110/2007 CAV JUDGMENTappellants under Section 313 of the Criminal Procedure Code were recorded, in which all the accused persons stated that the complaint was a false one and they were innocent.
7. At the conclusion of the trial, the learned trial Judge convicted the accused-appellants for the offence punishable under Section 302, 323, 504 read with Section 34 of the Indian Penal Code, and sentenced them as stated herein-before.
8. Being dissatisfied, the accused appellants have come up with the present appeal.
9. Submissions on behalf of the appellant No.1:
9.1 Mr. Ashish Dagli, the learned Advocate appearing for the appellant No.1 strenuously submitted that even if the entire case of the prosecution is believed to be true, then the case is not that of murder, but one of culpable homicide not amounting to murder. Mr. Dagli strenuously tried to convince us that the trial Court committed a serious error in not keeping such aspect in mind. According to Mr. Dagli, the case at hand is one of sudden fight and the medical evidence on record would suggest that only a single blow was hit by the appellant No.1 on the chest of the deceased. Such being the position, it could not be said that the case at hand is one of murder.
9.2 Mr. Dagli concentrated only on this aspect of the matter while making his submissions.
10. Submissions on behalf of the appellant Nos. 2, 3 and 4:Page 9 of 52 R/CR.A/1110/2007 CAV JUDGMENT
10.1 Mr. Yogesh Lakhani, the learned Senior Advocate appearing for the appellant Nos. 2, 3 and 4 submitted that the entire case of the prosecution deserves to be rejected as not only the genesis of the prosecution case is doubtful, but the prosecution has tried to suppress the true origin of the occurrence. Mr. Lakhani strenuously submitted that the investigation carried out by the Investigating Officer was not fair and there is evidence to suggest that after giving a careful thought and due deliberations the case was set up against the accused-appellants. Mr. Lakhani submitted that so far as the appellant No.2 is concerned, he has been falsely implicated in the crime as he was not at all present at the time of the incident. Mr. Lakhani submitted that the appellant No.2 is a Central Government employee serving with the Postal Department in a different town. Mr. Lakhani submitted that the appellant No.4 is also a Central Government employee serving with the Postal Department in a different town.
10.2 Mr. Lakhani submitted that the trial Court ought to have drawn an adverse inference under Section 114(g) of the Evidence Act against the prosecution for non-examination of independent witnesses whose statements were recorded by the Investigating Officer during the course of the investigation and more particularly, the non-examination of one Rameshbhai Bhatibhai. According to Mr. Lakhani, if Rameshbhai Bhatibhai would have been examined by the prosecution, then his evidence would have rendered the ocular version of the eyewitnesses highly doubtful.
10.3 Mr. Lakhani submitted that the prosecution has also not been able to establish beyond reasonable doubt the exact Page 10 of 52 R/CR.A/1110/2007 CAV JUDGMENT place of occurrence. Mr. Lakhani would submit that the witnesses who were dropped in their Police statement under Section 161 of the Criminal Procedure Code have stated that the incident had occurred near a Co-operative Society, whereas according to the ocular version of the eyewitnesses, the place of incident shown is near a Pan cabin situated at a different place.
10.4 Mr. Lakhani submitted that even if the entire case of the prosecution is believed to be true, then the conviction of his clients i.e. appellant Nos. 2, 3 and 4 for the offence of murder with the aid of Section 34 of the Indian Penal Code, is not justified. According to Mr. Lakhani, it could not be said from the evidence on record that the appellant Nos. 2, 3 and 4 had the common intention with the appellant No.1. Mr. Lakhani submitted that so far as appellant No. 1 is concerned, he had a motive to commit the crime if at all the evidence of the eyewitness is believed, because it is alleged that the deceased had illicit relations with the sister of the appellant No.1. However, so far as the appellant Nos. 2, 3 and 4 are concerned, they are in no way connected and had absolutely no motive to join the appellant No.1 in the crime. However, Mr. Lakhani submitted that even if it is believed that the appellant Nos. 2, 3 and 4 were present at the time of the incident, and had assaulted the deceased with fisticuffs, still no case of common intention is made out. Mr. Lakhani also submitted that no injuries of any nature were found on the body of the appellant Nos. 2, 3 and 4, and in the same manner, not a scratch was noticed on the body of the deceased at the time of postmortem except the stab injury attributed to the appellant No.1. Thus, according to Mr. Lakhani, the ocular Page 11 of 52 R/CR.A/1110/2007 CAV JUDGMENT version of the eyewitnesses that the appellant Nos. 2, 3 and 4 had assaulted the deceased with fisticuffs, is falsified by the medical evidence on record.
In such circumstances, according to Mr. Lakhani, the case of the appellant Now. 2, 3 and 4 stands on a different footing and they be acquitted of all the charges.
11. Submissions on behalf of the State:
Ms. Moxa Thakkar, othe learned Additional Public Prosecutor appearing for the State has vehemently opposed this appeal. Ms. Thakkar submitted that the trial Court committed no error in finding the accused-appellants guilty of the offence of murder punishable under Section 302 of the Indian Penal Code, read with Section 34 of the Indian Penal Code. Ms. Thakkar submitted that the trial Court has appreciated the evidence of the eyewitnesses to the incident and has accepted the ocular version of the eyewitnesses. Ms. Thakkar submitted that the ocular version of the eyewitnesses is corroborated by the medical evidence on record. Ms. Thakkar also submitted that the prosecution has been able to establish the strong motive behind the commission of the crime.
In such circumstances, Ms. Thakkar submitted that there being no merit in this appeal, the same may be dismissed.
12. Oral evidence on record:
Page 12 of 52 R/CR.A/1110/2007 CAV JUDGMENT12.1 The P.W 1, Pratapsinh Chatursinh Zala, the original complainant, in his evidence Exh.13 has deposed that the deceased was a bachelor. The deceased was at inimical terms with the accused-appellants as the appellants were harbouring doubt that the deceased had illicit relations with one Beriben, the sister of the appellant No.1. According to him, before around four months from the date of the incident, the deceased was beaten by the accused-appellants at the house of the appellant No.2 for such reason, but at that point of time, the deceased could save himself from the clutches of the accused persons. He has deposed that on 14th January, 2007, which also happened to be a Makar Sankranti day, he was at the Pan cabin of his uncle at around 7.30 in the evening and at that point of time, he witnessed the accused persons herein hurling filthy abuses to the deceased and were beating the deceased with fisticuffs. He has deposed that at that point of time, the appellant Nos. 2, 3 and 4 had caught hold of the deceased and the appellant No.1 inflicted injuries on the chest of the deceased with knife. He has further deposed that the deceased was taken to the house of his uncle Maganbhai, and from there, he was taken to Vatrak Dispensary. He has also deposed that on reaching the dispensary, the doctor declared that Natwar had succumbed. He has deposed that thereafter, he had lodged the first information report Exh.15 at the Police Station.
12.2 In his cross-examination on behalf of the accused No.1, he has deposed that at the time of the incident, the light had faded. He has also deposed that there was no other electric light near the place of the incident. He has deposed that in his complaint Exh. 15 he had not stated that the Page 13 of 52 R/CR.A/1110/2007 CAV JUDGMENT accused No.1 Vikramsinh hit a knife blow, which was in his hand, on the chest of the deceased. He has deposed that he had gone to lodge the complaint at the Police Station with others at around 11.30 in the night. He denied the suggestion given to him that the accused persons were not beating the deceased with fisticuffs and hurling filthy abuses.
12.3 In his cross-examination on behalf of the appellant Nos. 2, 3 and 4, he has deposed that the appellant No.2 and appellant No.4 were serving in the Postal Department. He has also deposed that it was true that the appellant No.4 was serving past eight years at Ahmedabad in the Postal Department. He has deposed that at the time of the incident, although it was dark, yet the lights in the shops situated in the locality, were 'on'. He also denied the suggestion that the appellant Nos. 2, 3 and 4 were falsely implicated in the incident.
12.4 The P.W 2, Dipakbhai Balabhai is also one of the eyewitnesses to the incident. In his evidence Exh.16, he has deposed that on the date of the incident he was at his shop at around 7.30 in the evening. He had gone to his house to have dinner and at that point of time his father, the P.W 3 Bhalaji was at his shop. While he was preparing to have dinner, he heard the shouts of his father stating that Natwar, the deceased was being assaulted by the accused persons. He reached the place of occurrence and saw that the accused persons were assaulting the deceased with fisticuffs and were hurling abuses. He has further deposed that the accused Nos.
2, 3 and 4 had caught hold of the deceased and the accused No.1 hit a blow with a knife on the deceased. He has also deposed that the motive behind the crime was the illicit Page 14 of 52 R/CR.A/1110/2007 CAV JUDGMENT relations of the deceased with Beriben, the sister of the accused No.1. He has deposed that thereafter, all the accused persons ran away. The deceased was thereafter, taken to the house of Maganbhai and a car was called to shift the deceased to the hospital. The deceased was taken to the hospital by one Jagdishbhai Pratapsinh, Mahendrabhai and Kiranbhai. He has deposed that at around 10.30 in the night, he received the phone call that Natwar had passed away.
12.5 In his cross-examination, he has deposed that except one injury, no other injuries were sustained by the deceased. He has also deposed that at the time of the incident, he had gone to his house to have dinner. He had no idea whether other persons were present at the time of the incident or not.
12.6 In his cross-examination on behalf of the accused Nos. 2, 3 and 4, he has deposed that the complainant i.e. the P.W.1 happened to be his cousin brother. He denied the suggestion that he was falsely deposing so far as the involvement of the accused Nos. 2, 3 and 4 was concerned.
12.7 The P.W 3 Bhalaji Chutaji Zala is also one of the eyewitnesses to the incident. In his evidence Exh.17, he has deposed that the incident had occurred at around 7.30 in the evening on the day of Makar Sankranti and at that time, he was present at his shop. His brother's son Natwar, the deceased had come at his shop to buy Beedi. In the meantime, the accused persons came over there and started assaulting the deceased with fisticuffs. He has deposed that he tried to intervene, but was not able to overpower the Page 15 of 52 R/CR.A/1110/2007 CAV JUDGMENT accused persons. Therefore, the P.W 3 called for his son. His son came at the place of occurrence and tried to pull the deceased away from the clutches of the accused persons. He has also deposed that in the meantime, his nephew Pratapsinh also come at the place of occurrence and tried to pull the deceased. In the meantime, according to the P.W 3, one Jagabhai also came at his shop and he also tried to get the deceased out of the clutches of the accused persons, but failed. He has deposed that the accused no.1 hit a knife blow on the chest of the deceased. He has deposed that an electric bulb in his shop was 'on' and he witnessed the incident in the light of the electric bulb. He has deposed that the accused No.1 was harbouring doubts that his sister Beriben had an illicit affair with the deceased, and due to such reason, the fight had ensued. He has deposed that after being inflicted with the injury, the deceased had stated that he be put down. Thereafter, the deceased was taken to the house of Maganbhai and a vehicle was arranged to take the deceased to the hospital. On reaching the hospital, the doctor declared that Natwar had succumbed..
12.8 In his cross-examination on behalf of the accused No.1, he has deposed that the incident had occurred during the night hours. He also deposed that he was 65 years of age and his eyesight had become quite weak. He has deposed that at the time of the incident, he was sitting at his shop and heard the shouts coming from a road, which was next to his shop. He has also deposed that he had not tried to intervene while the scuffle was on and had not sustained any injuries. He has also deposed that except the deceased, no other person had sustained any injury. He has deposed that the deceased Page 16 of 52 R/CR.A/1110/2007 CAV JUDGMENT happen to be the son of his brother. A contradiction in the form of an omission was brought on record in his cross- examination, wherein he deposed that he had not stated before the Police in his statement that he had tried to intervene, but was overpowered, and therefore, had called his son. Many other contradictions in the form of omissions were brought on record in the deposition of this witness.
12.9 The P.W 4 Jagatsinh Manisinh is also one of the eyewitnesses to the incident. In his evidence Exh.18 he has deposed that on the date of the incident, which was a Makar Sankranti, he had come at the shop of his uncle Bhalaji Chutaji to buy Besan at around 7.30 in the evening. He has deposed that when he arrived at the shop of his uncle, the quarrel was going on and he witnessed that the accused persons were assaulting the deceased with fisticuffs and at that point of time, the accused No.1 hit a knife blow on the chest of the deceased. He has deposed that thereafter, the deceased was lifted and taken to the house of Magansinh and from the house of Magansinh, the deceased was taken in a vehicle to the Vatrak Hospital, where the doctor after examination declared him dead.
12.10 In his cross-examination, he has deposed that his house was situated at a distance of 200 feet from the place of the occurrence. He has also deposed that there was no facility of streetlights in the village. He denied the suggestion given to him that the deceased was taken to the hospital at 10.30 in the night. In his cross-examination on behalf of the accused Nos. 2, 3 and 4, he has deposed that the accused No.4 was serving with the Postal Department at Ahmedabad past eight Page 17 of 52 R/CR.A/1110/2007 CAV JUDGMENT years and the accused No.2 was also serving in the Postal Department. He denied the suggestion that he had personal enmity with the accused Nos. 2, 3 and 4 and for such reason they were falsely implicated in the crime.
12.11 We shall now look into the evidence of the P.W 6, Magansinh Bhemsinh. The P.W 6 is a witness at whose place the deceased was first taken after he suffered injuries, as deposed by the eyewitnesses. The P.W 6 in his evidence Exh.21 has deposed that he was running a fair-price shop at his village. The incident had occurred at around 7.30 to 8.00 in the late evening, and at that point of time, he was at his house. He has deposed that Bhalaji Chutaji, Jagatsinh Manish and Dipakbhai Bhalabhai had come to his house lifting Natwar, the deceased. He has deposed that Natwar was made to rest in the courtyard of his house. He deposed that upon switching 'on' the light, he could see that Natwar had sustained injuries on his chest and was bleeding. He, at that point of time, enquired with Bhalaji Chutaji as to what had happened and was informed that Natwar had been beaten. He has further deposed that he learnt through Bhalaji that two to three persons were there, which included the accused persons. He has further deposed that after Natwar was brought at his house in an injured condition, he had enquired with him as to what had happened and in reply, Natwar conveyed to the P.W 6 that the accused No.1 hit a knife blow on his chest while the other three accused had caught hold of him. He has deposed that thereafter, he went to the village in search of a vehicle to take Natwar to the hospital.
Page 18 of 52 R/CR.A/1110/2007 CAV JUDGMENT12.12 In his cross-examination, he has deposed that it would take around one and a half hour to reach Vatrak dispensary from their village. He has also deposed that private vehicles were available in the village. He has deposed that Natwar was taken to the hospital from his house at around 8.30 to 9' O Clock. He denied the suggestion that before Natwar was taken to hospital, there was pelting of stones between the family members of the accused persons and the deceased. He denied the suggestion that the injury which the deceased had sustained was inflicted after he was brought at his house. In his further cross-examination on behalf of the accused No.1, he has deposed that it was true that in his Police statement recorded by the Investigating Officer under Section 161 of the Criminal Procedure Code, he had not stated that he had inquired with Natwar as to what had happened, and in reply he was told that the accused No.1, Vikram, had hit a knife blow while the other three had caught hold of the deceased. He has also deposed that it was true that the mother of the accused No.1 had lodged a complaint against him for the offence punishable under Section 376, 562 and 323 of the Indian Penal Code before around 3 to 4 months of the date of the incident. He has also deposed that the accused No.2 and the accused No.4 were working with the Postal Department. He denied the suggestion that as the mother of the accused No.1 had lodged a criminal complaint against him, with a view to seek revenge, he was falsely deposing before the Court against the accused persons.
13. We shall now look into the medical evidence on record so as to confirm whether the same corroborates the ocular version of the eyewitnesses or not.
Page 19 of 52 R/CR.A/1110/2007 CAV JUDGMENT13.1 The P.W 12, Dr. Rakeshbhai Jagad, in his evidence Exh.39 has deposed that on 15th January, 2007, he was on duty at the Community Health Centre, Bayad and at that point of time, he received a yadi from the Bayad Police Sub- Inspector for postmortem of a deadbody of one Natwar. He has deposed that he had noted the following external injuries on the body of the deceased:-
(i) Cut mark present on front of right side of chest corresponding to injury No.1 in column No. 17;
(ii) Stab wound present on front of right chest 4cm below the clavicle at mid clavicle line 2cm x 1 cm deep going oblique one angle acute and the other obtuse.
Margins sharply cut at acute angle and conduced at obtuse angle.
13.2 He deposed that he had noted the following internal injuries:-
Opening of injury No. 1 in column No. 17 shows cutting of skin, subcutaneous tissue, muscle of the right second inter-costal space, going backward and medially, it pierced upper lobe of right lung, size 2cm x 1cm, tissue deep. Right thoracic cavity contained about 1 liter of blood with right lung collapsed and left lung oedematous- track of wound is about 8 cm long.
13.3 He has further deposed that the cause of death was shock due to stab injury. In the postmortem Note, Exh.40, Page 20 of 52 R/CR.A/1110/2007 CAV JUDGMENT proved by the P.W 12, it has been noted that about 5 ml of blood was collected by drawing the same from the body of the deceased and was sealed, labeled and handed over to the Police on duty. He has further deposed that the injury sustained was possible by the muddamal article No.15, knife, and was sufficient in the ordinary course of nature to cause death.
13.4 In his cross-examination, he has deposed that the dead-body of the deceased was not brought on 14th January, 2007 at 10.30 in the night. He denied the suggestion given to him that on 14th January, 2007, the deceased was at the CHC and was treated by him. He has further deposed that except one injury, there was no other big or small injury on the body of the deceased. He has further deposed that it was true that if prompt treatment would have been provided to the deceased, then probably his life could have been saved.
14. Thus, from the evidence of the P.W 12, it is proved that the deceased had sustained one stab injury on his chest and the same could have been sustained if the weapon like knife was hit on the chest of the deceased. It is also evident from the evidence of the P.W 12 that no other injuries, small or big, were found on the body of the deceased. Therefore, atleast one fact is established that it was a case of single blow as suggested by the learned counsel appearing for the accused No.1, who is alleged to have actually inflicted the injury.
15. Having heard the learned counsel for the parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is whether the Page 21 of 52 R/CR.A/1110/2007 CAV JUDGMENT trial Court committed any error in finding the accused- appellants guilty of the offence under Sections 302, 323 and 504 of the Indian Penal Code.
16. We propose to first deal with the contention raised by Mr. Lakhani, the learned Senior Advocate, as regards drawing of adverse inference against the prosecution under Section 114(g) of the Evidence Act, for non-examination of the material witnesses, as according to Mr. Lakhani, if those witnesses would have been examined, then probably the ocular version of the eyewitnesses would have stood falsified.
17. The basis of such submission is the statement of one Rameshbhai Bhatibhai, recorded by the Investigating Officer, during the course of investigation under Section 161 of the Criminal Procedure Code. According to Mr. Lakhani, the witness Rameshbhai Bhatibhai, whose statement is a part of the charge-sheet and was cited as one of the prosecution witnesses, would indicate that this witness had heard shouts of some fight next to a road, which was adjoining to his house and in the meantime, the witness saw the deceased passing through his shop at times "limping, running and walking". On the basis of such statement being made before the Investigating Officer by the said Rameshbhai Bhatibhai, Mr. Lakhani submitted that if that be so, then the version of the eyewitnesses that they had witnessed the incident and had taken the deceased first to the house of Magansinh and from their he was taken to the hospital in a vehicle stands falsified.
The sum and substance of the submission of Mr. Lakhani is that if Rameshbhai Bhatibhai would have been examined by the prosecution, then he would have destroyed the entire Page 22 of 52 R/CR.A/1110/2007 CAV JUDGMENT ocular version of the eyewitnesses and that was the only reason why he was deliberately dropped at the time of trial. According to Mr. Lakhani, there were other witnesses also whose statements were recorded forming a part of the charge- sheet, but were deliberately dropped as they had stated in their statements that the incident had occurred near their house on a road which was adjoining a Government society. Thus, according to Mr. Lakhani, if those witnesses would have been examined, then even the scene of offence would have been changed and that would cast a serious doubt on the veracity of the eyewitnesses.
18. According to Mr. Lakhani, the investigation was not fair and it was the duty of the Public Prosecutor to examine even those witnesses who could have thrown some light on the genesis of the incident, but were deliberately dropped.
19. Therefore, the first question that falls for our consideration in this appeal is whether we should discard the entire prosecution case, meaning to say we should disbelieve all the eyewitnesses by drawing adverse inference against the prosecution under Section 114(g) of the Evidence Act.
20. Before we appreciate this aspect of the matter, we deem it necessary to look into the position of law so far as the principle of drawing of adverse inference for non-examination of material witnesses is concerned.
20.1 In Harpal Singh Vs. Devinder Singh and ors., reported in AIR 1997 SC 2914, the Supreme Court has explained the principle of drawing of adverse inference under Page 23 of 52 R/CR.A/1110/2007 CAV JUDGMENT Section 114(g) of the Evidence Act. The observations made by the Supreme Court in paragraphs 22, 23 and 24 are worth noting.
"22. A public Prosecutor may give up witnesses during trial to avert proliferation of evidence which could save much time of the Court unless examination of such a witness would achieve some material use. Randeep Rana, if examined, would only have helped in duplication of the same category of evidence as the other two eye- witnesses. The Public Prosecutor, therefore, cannot be blamed for adopting the course of not examining him. If the accused thought that Randeep Rana's evidence would help the defence, it was open to the accused to examine him as a defence witness.
23. In Darya Singh Vs. State of Punjab, AIR 1954 SC 328, a Bench of three Judges (Gajendragadkar, Wanchoo and Dasgupta, JJ.) has observed that in murder cases it is primarily for the prosecutor to decide which witness he should examine in order to unfold the prosecution story. "If a large number of persons have witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient from the witness box. "The same view has been followed in a number of cases. [vide Masalti Vs. State of U.P. A.I.R. 1965 SC 202, by a Bench of four Judges (Gajendragadkar, C.J. Wanchoo, Dasgupta and Raghubar Dayal, JJ),Gurmej Singh Vs. State of Punjab, AIR 1992 SC 215, by a bench of three Judges, Rai Saheb Vs. State of Haryana, 1994 SCC(Cri) 239, Rajbir Vs. State of Haryana, 1996 SCC (Cri) 178, Girish Yadav Vs. State of M.P. 1996 SCC (Cri) 552 Ram Sanjiwan Singh Vs. State of Bihar, 1996 SCC(Cri) 701: (1996 SCW 2300); Malkan Singh Vs. State of U.P. 1995 SCC (Cri) 893: (1994 AIR SCW 880)]
24. No doubt, Randeep Rana would have been a material witness. But merely because he was not examined by the prosecution a criminal court is not to lean to draw the adverse inference that if he was Page 24 of 52 R/CR.A/1110/2007 CAV JUDGMENT examined he would have given a contrary version. The illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if he is a material witness. We do not see any justification, in this case, in drawing such an adverse inference due to non-examination of Randeep Rana[vide State of Karnataka v. Moin Patel, 1996 SCC (Cri)632:
(1996 AIR SCW 1411)]."
20.2 In a very recent pronouncement of the Supreme Court in the case of Harivadan Babubhai Patel Vs. State of Gujarat, reported in (2013) 7 SCC 45, the Supreme Court considered the effect of non-examination of a material witness and while considering the same, relied on few other decisions of the Supreme Court. The relevant paras of the said decision are 24, 25 and 26, which are quoted hereinbelow:-
24. In State of H.P. V. Gian Chand2 it has been opined that (SCC P. 81, para 14) "14.............. Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution.
The three-Judge Bench further proceeded to observe that the court is required first to assess the trustworthiness of the evidence available on record and if the court finds the evidence adduced worthy of being relied on, then the testimony has to be accepted and acted upon though there may be other witnesses available who could also have been examined but were not examined.
Page 25 of 52 R/CR.A/1110/2007 CAV JUDGMENT25. In Takhaji v. Thakore Kubersing Chamansing 16 the Court has opined thus: (SCC P. 155, para 19) "19.......... It is true if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinize the worth of the evidence adduced. The court of facts must ask itself whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court? If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum on non-examination of other witnesses.
26. In Dahari v. State of U.P. 17. while discussing about the non-examination of material witness, the Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Be it noted, the Court also took note of the fact that during the cross-examination of the investigating officer, none of the accused persons had voiced their concerns or raised any apprehension regarding the non-examination of the material witness therein."
Page 26 of 52 R/CR.A/1110/2007 CAV JUDGMENT20.3 In Habeeb Mohammad Vs. State of Hyderabad, reported in 1954 Criminal Law Journal 338 (S.C) (1), the Supreme Court in paragraph 11 made the following observations, which are relevant for our purpose:-
"11....... It is the bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration
(g) to section 114 of the Evidence Act, but the circumstances of his being withheld from the court casts a serious reflection on the fairness of the trial."
20.4 The Supreme Court in Abdul Gani and ors. Vs. State of M.P., reported in 1954 Criminal Law Journal 323 (SC) (1) made the following observations in paragraph 12:-
"12. As regards the omission on the part of the prosecution to examine Subhan and Bashir, this is not of a very serious character. The observations of Lord Porter in - 'Malak Khan v. Emperor', AIR 1946 PC 16 at p. 19 (A), furnish a good answer on the point. The learned Lord observed as follows :
"It is no doubt very important that, as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution, but important as it is, there is no obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of counsel for the prosecution and though a Court ought, and no doubt will, take into consideration the absence of witnesses whose testimony would be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses."Page 27 of 52 R/CR.A/1110/2007 CAV JUDGMENT
20.5 The Supreme Court in Hem Raj and ors. Vs. State of Haryana, reported in 2005 Criminal Law Journal 2152, made the following observations in paragraph 10:-
10. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. This Court pointed out in Takhaji Hiraji v. Thakore Kubersing Chamansing and others ((2001) 6 SCC 145) :- 2001 Cri LJ 2602 : 2001 AIR SCW 2077 : AIR 2001 SC 2328, para 19 ". . . . . . . . . . . . . . . .if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case, the Court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself - whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein."
21. From the position of law as aforenoted, it could be said that the entire prosecution case should not be disbelieved by applying a straight jacket formula of non-examination of a Page 28 of 52 R/CR.A/1110/2007 CAV JUDGMENT material witness and drawing of adverse inference under Section 114(g) of the Evidence Act. The illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if he is a material witness. The non- examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance. Ultimately, it is a matter for the discretion of the Public Prosecutor appearing for the prosecution, and the Court will take into consideration the absence of witnesses whose testimony would be accepted, and judge the evidence as a whole. The effect of non-examination of the material witness at the trial would vary from cases to cases and therefore, it is very essential to consider the overall effect of the same so as to disbelieve the evidence of the other eyewitnesses examined by the prosecution.
22. In our opinion, a party asking the Court to draw against the other party an adverse inference of the nature indicated in illustration (g) to Section 114 of the Evidence Act, by reason of the non-examination of a witness by that party must, whether the proceeding is civil or a criminal one, lay the foundation for it by eliciting evidence, which would show that the witness in question was available to the other party for the purpose of giving evidence at the time of the hearing. Such evidence may Page 29 of 52 R/CR.A/1110/2007 CAV JUDGMENT be elicited, either in the course of the cross-examination of the witnesses examined by the other side (e.g. the Investigating Officer in a criminal case) or by leading evidence to that effect. Unless that foundation is laid, no question of drawing an adverse inference as indicated in illustration (g) to Section 114 of the Evidence Act arises at all.
23. In the present case, we are at one with Mr. Lakhani to the limited extent that some foundation has been laid in this regard by putting certain questions to the Investigating Officer in his cross-examination. We have noticed that in the cross- examination of the P.W 17, the Investigating Officer, at Exh.54, a specific question has been asked to him regarding the recording of the statement of one Rameshbhai Bhatibhai. A part of his Police statement was put to the P.W 17, and P.W 17 has deposed that it was true that Rameshbhai Bhatibhai, in his Police statement had stated that he had heard the shouts of a fight and altercation on the road next to his house and within a short time thereafter, he had seen Natwar Fulsinh (the deceased) of his village passing through his cabin running at times and thereafter walking and limping. Nothing beyond this has been brought in the evidence of the P.W 17. In the same manner, the P.W 17 in his cross-examination has deposed that he had recorded the statements of Parmabhai Lallubhai and Champaben Bharatsinh, and both these witnesses in their Police statement had stated that the fight had ensued somewhere near the Government society on a road, but were not able to witness the actual incident, as it was quite dark.
24. Now, so far as the statements of Parmabhai Lallubhai and Champaben Bharatsinh are concerned, which according to the Page 30 of 52 R/CR.A/1110/2007 CAV JUDGMENT defence, had they been examined, would have changed the place of occurrence, has been explained to a certain extent by the P.W 18, Kantibhai Ramjibhai Patel. The P.W 18, Kantibhai Ramjibhai in his evidence Exh.68 has deposed that on 16th April, 2007, he was serving as a Mamlatdar at Bayad and was asked by the Investigating Agency to draw a map of the place of occurrence. In his cross-examination, he has deposed that it was true that when he had gone at the place of occurrence to draw a panchnama, he could not notice any visible signs or marks of any fight having ensued at that place. In his cross- examination on behalf of the accused Nos. 2, 3 and 4, he has deposed that it was true that near the place where the cabins were situated, no Co-operative Society was situated. However, the witness further deposed that the fair-price shop situated is recognized as the Co-operative Society. He has further deposed that he had prepared the map of the place of occurrence on the basis of the Police panchnamas.
25. From the evidence of the P.W 18, it appears that at the place where the incident occurred, there are many shops, which includes a fair-price shop and the fair-price shop is known as Co-operative Society. The defence has not been able to bring anything on record to establish that there was a Government society other than the fair-price shop, which was being identified and recognized as a Society. This fact is further substantiated in the evidence of the P.W 7 Punamsinh Kansinh, Exh.22. The P.W 7 has also deposed regarding a fair- price shop situated near the place of the occurrence.
26. So far as the statement of Rameshbhai Bhatibhai is concerned, although some foundation has been laid, we find it Page 31 of 52 R/CR.A/1110/2007 CAV JUDGMENT difficult to take the view that the evidence of all the eyewitnesses should be discarded in toto as Rameshbhai Bhatibhai, the witness, who was dropped, in his Police statement has deposed to the contrary. We are conscious of the fact that for the purpose of drawing adverse inference, what is permissible for us to look into, is that part of the statement of Rameshbhai Bhatibhai, which has brought on record through the evidence of the P.W 17 Investigating Officer, and it is not permissible for us to look into the entire Police statement of Rameshbhai Bhatibhai recorded under Section 161 of the Criminal Procedure Code. The most important aspect we need to keep in mind so far as the witness Rameshbhai Bhatibhai is concerned, is that he is not an eyewitness to the incident. In what circumstances he had seen the deceased passing through his cabin is not at all clear. Besides this, no question has been put to the Investigating Officer that there was a substantial variance between the statement of Rameshbhai Bhatibhai and the eyewitnesses.
27. Therefore, we have reached to the conclusion that it would be too much to disbelieve the entire case of the prosecution, more particularly the ocular version of the eyewitnesses by drawing an adverse inference under Section 114(g) of the Evidence Act, for non-examination of the material witnesses like Rameshbhai Bhatibhai, Parmabhai Lallubhai and Champaben Bharatsinh.
28. The above takes us to consider the ocular version of the eyewitnesses. From the evidence of the eye witnesses, it appears that the accused No.1 Vikramsinh had some axe to grind against the deceased. All the witnesses have deposed Page 32 of 52 R/CR.A/1110/2007 CAV JUDGMENT consistently that the accused No.1 was nurturing a grudge against the deceased, as he had illicit relations with the sister of the accused No.1, namely, Beriben. It appears that the deceased was a bachelor. Beriben, the sister of the accused No.1 was a married lady, but at the time of the incident, she had been residing at the house of her parents. It also appears that the main complaint of the accused No.1 towards the deceased was that due to such illicit relations, the sister of the accused No.1 was not able to live a happy married life. Thus, we find that there was a motive for the accused No.1 to commit the crime and the eyewitnesses have deposed that they had seen the accused No.1 inflicting a stab injury on the chest of the deceased with a knife. From the medical evidence on record, it appears that except one stab injury, there was not even a scratch on the body of the deceased. It appears that a single blow was hit by the accused No.1. It also appears that the accused No.1 was injured at the time of the incident, as evident from the medico-legal certificate Exhibits 42 and 43. In the history of assault, it was stated before the doctor by the accused No.1 that he had sustained the injury in a fight. It also appears that at the time of drawing of the arrest panchnama of the appellant No.1, he made a statement before the Investigating Officer that he had sustained the injury in a fight. The accused No.1 was examined by the doctor on the next day i.e. on 15th January, 2007, at 6.00 P.M. and the doctor has noted in the medical certificate Exhibits 42 and 43 that there was a small abrasion of about 1.5cm x 1 cm on the left knee due to a fall, and the age of the injury was around 24 hours. The injury in the form of a small abrasion on the left knee might have been sustained by the accused No.1 at the time of scuffle between the accused No.1 and the deceased.
Page 33 of 52 R/CR.A/1110/2007 CAV JUDGMENT29. Before we proceed to consider the evidence of the eyewitnesses so far as the involvement of the accused Nos. 2, 3 and 4 is concerned, we propose to deal with the contention of Mr. Dagli that the conviction of the accused No.1 deserves to be altered from that of murder to one of culpable homicide not amounting to murder. The basis of such submission is that the case at hand is of a single blow and was a result of a sudden fight in the heat of passion and without any premeditation. A great deal of effort was put in by Mr. Dagli 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 304(1) of the IPC. According to Mr. Dagli, even if the entire incident is believed to be true, still it is a case of a single blow hit by the A-1 on the chest of the deceased with a knife. Mr. Dagli 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 knife is alleged to have been hit on the body of the deceased thereby causing the fatal injury on the chest of the deceased.
30. We are not convinced with such submission of Mr. Dagli 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 Page 34 of 52 R/CR.A/1110/2007 CAV JUDGMENT 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 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.
31. 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 Page 35 of 52 R/CR.A/1110/2007 CAV JUDGMENT Vishal Singh v. State of Rajasthan, reported in 2009 Cri.L.J. 2243. A three-Judge Bench observed in paragraph 7 as under:-
"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 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 Page 36 of 52 R/CR.A/1110/2007 CAV JUDGMENT 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)."
32. 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.
33. 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.
34. 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 Page 37 of 52 R/CR.A/1110/2007 CAV JUDGMENT 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 case.
35. 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.
36. 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 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 Page 38 of 52 R/CR.A/1110/2007 CAV JUDGMENT 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.
37. 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 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.
Thus, we are not convinced with the submission of Mr. Dagli that the case falls within Exception 4 to Section 300 of the Indian Penal Code, and the conviction deserves to be altered from that of murder to one under Section 304 Part-I of the Indian Penal Code.
Page 39 of 52 R/CR.A/1110/2007 CAV JUDGMENT38. Now, so far as the involvement of the accused Nos. 2, 3 and 4 is concerned, we are of the opinion, having regard to the overall appreciation of the ocular version of the eyewitnesses that they have been falsely implicated in the crime. We are mindful of the fact that we are considering the evidence of the eyewitnesses who are interested and related eyewitnesses. Therefore, we have examined the evidence very closely and with great care and circumspection. We are not willing to accept the version of the eyewitnesses so far as the involvement of the accused Nos. 2, 3 and 4 are concerned for many reasons. Although the burden is on the accused to establish by taking a plea of alibi that they were not present at the time of the incident and were at some other place, it appears that the accused No. 4, at the relevant point of time was working in the Postal Department at Ahmedabad, and the accused No.2 was working in the Postal Department at village Lank. The fact that the accused No.4, at the relevant point of time was working in the Postal Department at Ahmedabad and that the accused No.2 was working in the Postal Department at village Lank has been admitted by the P.W 17, the Investigating Officer in his evidence Exh.54. The P.W 17 has also admitted in his evidence that he had made no inquiries at the office of the accused Nos. 2 and 4. He has also admitted that no permission was obtained of the higher authorities of the Postal Department before arresting the accused Nos. 2 and
4. It is alleged that the accused Nos. 2, 3 and 4 had initially assaulted the deceased with fisticuffs and thereafter, had caught hold of the deceased and during that time, the accused No.1 inflicted a single stab injury on the chest with a knife.
Page 40 of 52 R/CR.A/1110/2007 CAV JUDGMENT39. On overall appreciation of the evidence of the eyewitnesses, we have noticed that each one of them have tried to improve their version and to the extent, that the P.W 6 Magansinh Bhemsinh, the witness at whose house the deceased was taken immediately on sustaining the injury has also tried to introduce an oral dying declaration, whereas no other witnesses have deposed about the same. However, the contradiction in the form of a material omission relevant under Section 8 of the Evidence Act, even falsifies that part of the evidence of the P.W 6, wherein he has said about the oral dying declaration made by the deceased, naming the four accused persons. It appears that the P.W 6 Maganbhai, in his Police statement, had not stated about such oral dying declaration and which was accepted to be true by the P.W 6. Such omission, in our opinion, would be a relevant fact under Section 8 of the evidence Act. Besides the above, we have found that the deceased had not sustained even a scratch on his body, except the single stab injury. This is well established by the evidence of the P.W 12 Dr. Jagad. In such circumstances, the version of the eyewitnesses that the deceased was assaulted by fisticuffs and thereafter, all of a sudden, the accused No.1 inflicted a stab injury with a knife, appears to be highly doubtful. If the deceased was beaten by the accused Nos. 2, 3 and 4, then there would have been some injury marks on his body. The accused Nos. 2, 3 and 4 were also sent for medical examination after their arrest and the medical certificates on record, exhibits 44, 45 and 46 reveal that no injury or any other marks were found on the body of the accused Nos. 2, 3 and 4. No blood was detected on the clothes of the accused Nos. 2, 3 and 4. So far as the accused Page 41 of 52 R/CR.A/1110/2007 CAV JUDGMENT No.1 is concerned, blood was detected on his pants, of blood group "A", matching with the blood group of the deceased.
40. We have also examined the matter from altogether a different dimension. Even if we believe the eyewitnesses in toto so far as the involvement of the accused Nos. 2, 3 and 4 is concerned, we do not find any element of common intention in the present case. We are saying so because so far as this aspect is concerned, there are conflicting versions of the eyewitnesses. It deserves to be noted that the P.W 1, Pratapsinh (original complainant), and the P.W 2, Dipakbhai, both have deposed that the accused Nos. 2, 3 and 4 had caught hold of the deceased while the accused No.1 inflicted a stab injury with a knife on the chest of the deceased, whereas the P.W 3 Bhalaji Chutaji and the P.W 4, Jagatsinh Manasinh, in their evidence have deposed that there was a scuffle between the deceased and all the four accused persons, and at that point of time, all of a sudden the accused No.1 took out a knife and inflicted a stab injury. It deserves to be noted that the P.W 3 and the P.W 4 have not deposed that the accused Nos. 2, 3 and 4 had caught hold of the deceased, which facilitated the accused No.1 to inflict a stab injury with a knife on his chest. There is nothing to draw the necessary inference on the basis of the oral evidence of the eyewitnesses that the accused Nos. 2, 3 and 4 had knowledge about the fact that the accused No.1 was carrying a knife with him. If it is the case of the prosecution that all the accused persons initially assaulted the deceased with fisticuffs, then it is not possible to believe that the accused No.1 was also beating the deceased with fisticuffs with a knife in his hand. In our opinion, it appears to be a case Page 42 of 52 R/CR.A/1110/2007 CAV JUDGMENT where the accused No.1 straightaway inflicted a stab injury on the chest of the deceased with a knife.
41. Section 34 of the Indian Penal Code lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a prearranged plan which is to be proved either from the conduct or from circumstances or from any incriminating facts. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be prearrangement or premeditated concert. This being the requirement of law for applicability of Section 34 of the Indian Penal Code, and even if we believe the ocular version of the eyewitnesses in toto, from the mere fact that the accused Nos. 2, 3 and 4 came and caught hold of the deceased, whereas the accused No.1 all of a sudden took out a knife and inflicted a single blow, it cannot be said that the accused Nos. 2, 3 and 4 shared the common intention with the accused No.1.
42. We have also noticed that there was a discovery panchnama of the weapon of offence, namely, knife, drawn under Section 27 of the Evidence Act, at the instance of the Page 43 of 52 R/CR.A/1110/2007 CAV JUDGMENT accused No.1. The prosecution examined P.W 13 Firozkhan Usmankhan to prove the discovery panchnama, Exh.48 of the weapon of offence. However, it appears that the P.W 13 Firozkhan in his evidence Exh.47 failed to support the case of the prosecution and has declared as a hostile witness. In the same manner, the prosecution also examined the second panch witness P.W 14, Ashokkumar Kantibhai Raval, to prove the discovery panchnama. However, the P.W 14 too, in his evidence at Exh.50 failed to support the case of the prosecution and was declared as a hostile witness. In such circumstances, the prosecution failed to prove the discovery panchnama Exh.48 through the two panch witnesses and therefore, had to rely on the evidence of the P.W 17, Rajeshbhai Revabhai Chaudhary, the Investigating Officer. The P.W 17, Rajeshbhai Revabhai has deposed about the statement made by the accused No.1 after his arrest, expressing his willingness to point out the place where he had concealed the weapon of offence. The P.W 17 has deposed that the accused had led the Police party and the panch witnesses at a particular place and had taken out the knife, which was concealed beneath a roof-tile on the top of a house. It also appears that this circumstance of discovery of the weapon of offence was put to the accused No.1 in his further statement recorded under Section 313 of the Criminal Procedure Code, and in reply to the same, he had stated that no such discovery was effected at his instance, but the knife was bought from the bazaar and produced. At this stage, we may take note of a very serious allegation levelled against the investigating agency that not only that the knife was bought from the bazaar and was included as a muddamal article, but even the serological test report Exh.65 which speaks that the Page 44 of 52 R/CR.A/1110/2007 CAV JUDGMENT knife was detected with human blood of "A" group matching with the blood group of the deceased should be viewed with an eye of suspicion because blood was applied on the knife and thereafter, was sent for chemical analysis to the Forensic Science Laboratory.
43. To substantiate such allegation, our attention has been drawn to Exh.64, which is the Forensic Science Laboratory report dated 20th April, 2007. In the said report, it has been stated that muddamal article "J" was a glass bottle sealed, containing 2 ml of blood of the deceased, drawn at the time of his postmortem. On the other hand, our attention has been drawn to the postmortem report Exh.40 in which it has been noted that about 5ml of blood was collected from the body of the deceased, the same was sealed, labeled and handed over to the Police on duty. The blood, which was drawn by the doctor at the time of postmortem and was sealed and labeled was for the purpose of sending it to the Forensic Science Laboratory for chemical analysis, but it appears that when the said bottle reached the Forensic Science Laboratory, only 2ml blood was found, and not 5ml. This is suggestive of the fact that the seal might have been broken open, from which some quantity of blood might have been taken out and the rest, probably, was sent to the Forensic Science Laboratory. The allegations are that the blood taken out from the sealed bottle might have been used for staining the knife so as to create the evidence against the accused No.1. The circumstance is of such a nature that it definitely creates a doubt in the mind of the Court. It appears that in the cross-examination of the P.W 17, the Investigating Officer, specific questions were put by the defence in this regard although the same were denied, but a Page 45 of 52 R/CR.A/1110/2007 CAV JUDGMENT suggestion was given that the blood, which was taken out from the bottle was applied on the clothes and the weapon of offence, the knife. In the overall view of the matter, we are not convinced that this circumstance of discovery of the weapon at the instance of the accused No.1 could be considered as one of the incriminating circumstances over and above the ocular version of the eyewitnesses.
44. We shall now deal with the order of conviction and sentence passed by the learned Additional Sessions Judge for the offence under Section 504 of the Indian Penal Code. 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 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.
45. 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 Page 46 of 52 R/CR.A/1110/2007 CAV JUDGMENT 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 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 47 of 52 R/CR.A/1110/2007 CAV JUDGMENT against the complainant.
46. 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."
47. 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 :
"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 Page 48 of 52 R/CR.A/1110/2007 CAV JUDGMENT 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."
48. We may refer to one more decision on this point of a 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 49 of 52 R/CR.A/1110/2007 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 born 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 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."
Page 50 of 52 R/CR.A/1110/2007 CAV JUDGMENT49. In the aforesaid view of the matter, we hold that there is no legal evidence to hold the appellants guilty for the offence punishable under Section 504 of the Indian Penal Code, and to that extent, we set aside the order of conviction and sentence passed by the learned Additional Sessions Judge, so far as the offence of Section 504 of the Indian Penal Code is concerned.
50. In the overall view of the matter, the conviction and order of sentence so far as the accused No.1 is concerned, does not warrant any interference and deserves to be affirmed, whereas the order of conviction and sentence so far as the accused Nos. 2, 3 and 4 are concerned, deserves to be set aside.
51. Resultantly, this appeal succeeds in part and is partly allowed. The appeal, so far as the accused-appellant No.1 is concerned, is ordered to be dismissed, whereas the appeal, so far as the accused-appellant Nos. 2, 3 and 4 is concerned, is allowed.
52. The order of conviction and sentence passed by the learned Additional Sessions Judge against the appellant No.1 so far as the offence of murder punishable under Sections 302 and 323 of the Indian Penal Code is concerned, is hereby affirmed. However, so far as the order of conviction and sentence passed by the learned Additional Sessions Judge against the appellant No.1 for the offence under Section 504 of the Indian Penal Code, is set aside. The accused-appellant Nos. 2, 3 and 4 are acquitted of the offence under Sections 302, 323 and 504 of the Indian Penal Code. As the accused-
Page 51 of 52 R/CR.A/1110/2007 CAV JUDGMENTappellant Nos. 2, 3 and 4 were released on bail pending this appeal, their bail bond stands discharged.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 52 of 52