Gujarat High Court
Bachubhai Baldevji Thakor & 2 Ors vs State Of Gujarat on 20 June, 2014
Author: Bhaskar Bhattacharya
Bench: Chief Justice
R/CR.A/1552/2009 CAV JUDGMENT
CR.A.15522009Rj2.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1552 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment?
2 To be referred to the Reporter or not? ` Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment?
4 Whether this case involves a substantial question No
of law as to the interpretation of the constitution of
India, 1950 or any order made there under?
5 Whether it is to be circulated to the civil judge? No
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BACHUBHAI BALDEVJI THAKOR & 2 ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR RAJESH K KANANI, ADVOCATE for the Appellant(s) No. 1 , 3
MS CHETANA M SHAH, ADDL. PUBLIC PROSECUTOR for the
Respondent.
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CORAM: HONOURABLE THE CHIEF JUSTICE
MR. BHASKAR BHATTACHARYA
Page 1 of 61
R/CR.A/1552/2009 CAV JUDGMENT
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/06/2014
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. This appeal is at the instance of three convicted persons and is directed against the order of conviction and the consequent sentence dated 20th August 2009 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Tract Court No.3, Ahmedabad (Rural) District, Mirzapur, Ahmedabad in Sessions Case No. 69 of 2008 thereby convicting all the three accused persons for the offence punishable under section 302, 294(b) read with Section 114 of the Indian Penal Code and sentencing them to suffer life imprisonment and a fine of Rs.3000/- each with a stipulation that in default of payment of the fine, they would undergo simple imprisonment for further 30 days.
2. During the pendency of the appeal, appellant-accused No.2, viz. Laxmanji Shivaji Thakor, died on 8th April 2012. Thus, the appeal insofar as it relates to appellant-accused No.2, Laxmanji Shivaji Thakor stands abated.
3. On 17th February 2008, Takhaji Ramtuji Thakor filed a complaint before the Police Station Officer, Sanand alleging that the accused persons killed his brother, Karshanji Ramtuji Thakore. Upon Page 2 of 61 R/CR.A/1552/2009 CAV JUDGMENT completion of the investigation, the police filed a charge sheet before the learned Judicial Magistrate, First Class, Sanand for the offences punishable under sections 302, 294(b) and 114 of the Indian Penal Code and as the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court.
4. The translated version of the charges framed against the appellants are quoted below:-
"At about 8-30 a.m. on 17/02/2008, the complainant and the witness came to irrigate by the water coming from Narmada canal in his farm for the wheat crops on his land of three bihga situated on the way to Bharvanpura in the outskirts of mauje Nana Viramgam. At that point of time, you, the accused persons told the deceased Karshanji that, "water is not to be taken from my farm"; therefore, Karshanji Ramtuji told that, "Narmada canal is the government property, nobody's father owns it." Therefore, you the accused Bachuji Baldevji Thakore became angry all of a sudden and used abusive language haphazardly and the accused Laxmanji Shivaji Thakore caught hold of the deceased Karshanji and the accused No.3 Kantaben snatched away the spade and you the accused Bachuji Baldevji inflicted two scythe blow on the head of the deceased Karshanji, though he had knowledge that there is probability of causing death of Karshanji by this injury, intentionally inflicted two scythe blows on head part and caused grievous hurt and therefore, blood oozed out from the head of the deceased. Thereby, you the accused Bachuji Baldevji Thakore having committed a culpable homicide that Page 3 of 61 R/CR.A/1552/2009 CAV JUDGMENT is offence of murder within the jurisdiction of this court, has committed the offence punishable under Section-302, 294(kh) of the IPC.
At about 8-30 a.m. on 17/02/2008, the complainant and the witness came to irrigate water coming from Narmada canal in his farm for the wheat crops on his land of three bihga situated on the way to Bharvanpura in the outskirts of mauje Nana Viramgam. At that point of time, you the accused persons told this witness Karshanji that, "water is not to be fetched from my farm" therefore Karshanji Ramtuji told that, "Narmada canal is the government property, nobody's father owns it." Therefore, you the accused Bachuji Baldevji Thakore, became angry all of a sudden and used abusive language haphazardly and you the accused Laxmanji Shivaji Thakore caught hold of the witness Karshanji and you the accused Bachuji Baldevji inflicted two scythe blow on the head of the witness Karshanji, he died of the said injury, you the accused Kantaben Baldevji Thakore having abetted in this act extended abetment in the act of culpable homicide that is to say in the act of murder, thereby you have committed the offence punishable under Section 302 read with 114 of IPC within the jurisdiction of the court.
At about 8-30 a.m on 17/02/2008, the complainant and the witness came to irrigate water coming from Narmada canal in his farm in the wheat crops on his land of three bihga situated on the way to Bharvanpura in the outskirts of mauje Nana Viramgam. At that point of time, you the accused persons told this witness Karshanji that, " water is not to be fetched from my farm" therefore Karshanji Ramtuji told that, "
Narmada canal is the government property, nobody's father owns it." Therefore, you the accused Bachuji Baldevji Thakore, became angry all of a sudden and used abusive language haphazardly and you, the accused Kantaben Baldevji Thakore Page 4 of 61 R/CR.A/1552/2009 CAV JUDGMENT snatched away spade from the witness Karashanji's hand and the accused Bachuji Baldevji inflicted two scythe blows on the head of the witness Karshanji and thereby you having abetted in this act extended abetment in the act of culpable homicide that is to say in the act of murder, thereby you have committed the offence punishable under Section 302 read with 114 of IPC within the jurisdiction of the court.
Therefore, you are to note that the judicial proceedings shall be initiated against you the accused persons for the offences under Sections 302, 294 read with 114 of IPC by this court."
5. The accused persons denied the charges levelled against them and claimed to be tried.
6. At the trial, the prosecution examined the following witnesses:-
Sr. Name and detail of the witness PW Exh.
No. No. No.
1. Takhaji Ramtuji Thakor, Complainant PW 1 Exh 16
2. Dilipbhai Mavjibhai Patel, Panch PW 2 Exh 18
3. Kantiji Babaji Thakor, Panch PW 3 Exh 28
4. Dr. Kinnar Rameshbhai PW 4 Exh 32
5. Bakaji Javanji Thakor, witness PW 5 Exh 39
6. Jyotsanaben Karshanji Thakor, wife of the PW 6 Exh 40
deceased
7. Mukundsinh Pruthvisinh Vaghela PSO PW 7 Exh 42
8. Gunvantrajya Devram Trivedi PW 8 Exh 45
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9. Ravindra Dhanjibhai Mitra PW 9 Exh 49
10. Kalpesh Vitthaldas, PSI PW 10 Exh 53
7. The prosecution also produced the following pieces of documentary evidence in support of the prosecution case:-
Sr. Details of documents Exh.
No. No.
1. Complaint of the complainant Takhaji Ramtuji 17
2. Panchnama of the place of offence 23
3. Inquest Panchnama 24
4. Panchnama of the clothes of the deceased 25
5. Panchnama of physical condition of the accused 27
Kantaben
6. Panchnama of physical condition of the accused 28
Bachuji Baldevji and panchnama of the clothes worn by him which were seized in blood stained condition. 7. A yadi sent to condition postmortem 33 8. P.M. note of the dead body of the deceased 34 Karshanji
9. Panchnama of the seized spade which the accused 29 Kantaben had seized from the deceased.
10. Map of the place of offence 35
11. The receipt about receiving the muddamal by FSL 46 12. Letter of FSL 47 13. Serological report of FSL 48 14. Map of the place of offence 36 Page 6 of 61 R/CR.A/1552/2009 CAV JUDGMENT 15. Dispatch note of the muddamal 50
16. Slip bearing signatures of the panchas 19 to 21 17. Copy of station diary 22
8. The accused persons, in their statements under section 313 of the Code of Criminal Procedure denied the allegations made against them and pleaded that they were innocent and had been falsely implicated. The appellants, however, did not adduce any evidence of their own in support of their case.
9. The learned Sessions Judge, as indicated earlier, by the impugned judgment found them guilty and passed the order of sentence as indicated earlier.
10. Being dissatisfied, the three accused persons have come up with the present appeal.
11. As indicated earlier, the appellant No.2, Laxmanji Shivaji Thakor, died on 8th April 2002 and his appeal has, therefore, abated.
12. Mr. Rajesh Kanani, the learned advocate appearing on behalf of the accused, strenuously contended before us that the learned Sessions Judge committed substantial error in passing the order of conviction by solely relying upon the solitary eyewitness, the Page 7 of 61 R/CR.A/1552/2009 CAV JUDGMENT complainant of this case. According to Mr. Kanani, the complainant being the brother of the deceased and an interested person, the learned Sessions Judge should not have blindly accepted the version of the said complainant. Mr. Kanani contends that no other independent witness has come forward to depose in support of the prosecution case though the alleged incident in question occurred in broad daylight. Mr. Kanani further contends that even assuming for the sake of argument that the involvement of the appellants in the incident in question was proved, then also, the learned Sessions Judge should have acquitted the appellant No.3 against whom virtually there was no allegation, and the only accusation made by the complainant against appellant No.3 was that she took away the arms from the hands of the deceased. Mr. Kanani contends that in the absence of any allegation coming within the purview of section 34 of the Indian Penal Code, there was no justification of holding the appellant No.3 guilty.
12.1 Mr. Kanani further contends that even it would appear from the deposition of the complainant that there was provocation given by the deceased by stating that the Narmada water did not belong to the father of anybody. In view of such fact, even if the appellant No.1 was in any way involved, it was a fit case to convert the offence to one punishable under section 304 Part I or Part II of the Indian Penal Code. According to Mr. Kanani, there was no apparent intention of killing the deceased. Mr. Kanani, therefore, prays for Page 8 of 61 R/CR.A/1552/2009 CAV JUDGMENT setting aside the order of conviction of appellant No.3 and so far as the appellant No.1 is concerned, at the most, to convert the offence to the one punishable under section 304 Part I or Part II of the Indian Penal Code.
13. Ms. Shah, the learned Additional Public Prosecutor appearing for the State, has, on the other hand, supported the version of the prosecution and has contended that it would appear from the suggestion given in the cross-examination of the complainant on behalf of the accused that the case of the prosecution has been virtually admitted by the accused persons. Ms. Shah contends that the learned Sessions Judge, who had an occasion to see the demeanour of the witnesses having believed the testimony of the complainant, there is no just reason to disbelieve his version. Ms. Shah further contends that even the version of the complainant has been proved by the medical evidence on record. Ms. Shah further submits that there is no justification for converting the offence of murder to one punishable under section 304 Part I or Part II of the Indian Penal Code having regard to the extent of the injury caused to the deceased. Ms. Shah, therefore, prays for dismissal of the appeal.
14. Before we enter into the respective submissions of the learned counsel for the parties, we propose to deal with the oral evidence adduced by the prosecution in details, as under:- Page 9 of 61 R/CR.A/1552/2009 CAV JUDGMENT
15. PW. No.1, Takhaji Ramtuji Thakore, in his examination-in- chief has sated that he is a resident of Nana Viramgam and he resided with his wife, children and parents and was doing agricultural work. He had been carrying on vegetable business by keeping a wooden cabin in their village. They were two brothers, he was the elder one and his younger brother was Karshanji Ramtuji. They used to do the agricultural work and had three Bighas of land on the road leading towards the village Bhavanpura in the outskirts of their village. At the time of incident, according to this witness, the crops of wheat was standing on their land and both of them, the brothers, were carrying on agricultural activity on this land. They were irrigating from the water of the Narmada canal to the wheat crops in their farm from the farm of Nathuji Bhaluji through the slopping of the land and every time, they used to take and irrigate water in this way. 15.1 This witness has stated that the incident took place on 17th February 2008. Prior to two days of the incident, he and his brother, Karshanji, went to irrigate water at about 9 a.m. in their farm, and at that point of time, Bachuji Baldevji Thakore, of their village came to them and he told them that he wanted to irrigate in his farm, and why have they started irrigating and saying so, Bachuji started abusing. Therefore, in order to prevent quarrel, his brother and he returned back to home and the act of irrigating was completed. Thereafter, at about 8 a.m. on 17th February 2008, he and his brother Karshanji both went to irrigate in their aforesaid farm of Page 10 of 61 R/CR.A/1552/2009 CAV JUDGMENT wheat crops. Bachuji Baldevji Thakore had come in this farm of Nathuji Bhaluji. This Bachuji Baldevji had cultivated field of Nathuji Bhaluji. Bachuji came with a scythe in his arm. This witness has further stated that as his brother went to start watering, Bachuji Baldevji went there and he was stretching a pipe there on the slopping land at some distance from him. At that point of time, it would be the time of about 8 a.m. when Bachuji Baldevji told his brother Karshanji that he should not take water from his farm for irrigation. Therefore his brother told that "the Narmada canal is the government property, nobody's father has owned it." At this, Bachuji Baldevji started abusing at his brother. His brother told him to stop abusing. Therefore, Laxmanji Shivaji Thakore caught hold of his brother, and Kantaben Baldevji Thakore snatched away the spade from the hand of his brother Karshanji and Bachuji Baldevji Thakore inflicted a blow with the scythe in his hands on his brother Karshan's head. Another blow was also inflicted directly. At that point of time, he rushed to him, so all these three persons rushed towards the outskirts and the weapon which was in Bachuji's hand was thrown by him on the wheat crops. Due to the head injury, blood was coming out profusely from the head of his brother, so he tied a bed sheet. As he shouted, Govindji Atmaram, Bakaji Javaji, Rameshji Jenaji of their village rushed there as their houses are situated nearby. Then, he informed 108 ambulance from the mobile phone of Bakaji Javanji. After some time, ambulance came there. He put his brother on it and went with him and took him for treatment in the hospital of Dr. Bedi in Page 11 of 61 R/CR.A/1552/2009 CAV JUDGMENT Bopal. The doctor was not present there. The nurse on duty told that the person has died. Therefore, they brought his brother in the same ambulance van at Sanand Community Health Center in morgue room. There the doctor told them to lodge a complaint as it was a police case. Then, he went to lodge a complaint. This witness has stated that the death of his brother, Karshanbhai, has occurred due to the injury caused by scythe blow on head. He lodged a complaint in this regard. This witness has identified the accused in the court room. This witness has stated that he had eye witnessed the incident. He has also proved the complaint and has identified his signature below it. This witness has further stated that thereafter, the police came and he showed the scene of offence. The police drew the panchanama of the scene of offence. As the police asked about said inquest panchanama, during the course of the said panchanama, he identified said dead body saying that it was the dead body of his brother. The police seized one cotton clothe shawl and one scythe from the scene of offence. This witness has identified the weapon that was in the hand of Bachuji Baldevji and the shawl which was used to cover the body of his brother. He has also identified the spade for irrigating water which was in the hand of his brother and which was snatched away by Kantaben Baldevji Thakore.
15.2 In the cross-examination of this witness by the learned advocate for the accused persons, this witness has stated that the farm where the incident occurred is situated at a distance of two Page 12 of 61 R/CR.A/1552/2009 CAV JUDGMENT farms from his house. His farm is situated nearby his house. This canal was a small canal. The big canal is situated far from small canal. He could not say about the exact distance. When water comes in the small canal from the big canal, they take water and irrigate turn by turn. This witness has admitted that if one wants water from canal, first, there stands the farm of Nathuji and thereafter their farm is situated. According to this witness, Nathubhai's farm stands on five bighas of land. This witness has admitted that the pipe by which they fetch water comes through Nathubhai's farm. This canal is situated in the lower part of their farm. This witness has admitted that if the farm is on the upper land than canal, one can not fetch water without motor. This witness has admitted that if the farm is on the upper land than the canal, the kirloskar machine of Rajkot should be attached. This witness has admitted that water comes automatically in their slopping land. The witness stated that the machine had been planned by digging a pit there. This witness has admitted that water comes itself in the dig. This witness has stated that they bring water by placing a pipe from the lower slope. This witness has admitted that there were two pipes attached with Kirloskar, wherein one is kept in the dig and other is outside, which supplies water. This water was the water after the crops was sprout out. This machine runs on kerosene and on switching on it, it makes "fat fat" noise, and therefore, it is called by name "Fatfatiyu".
15.3 This witness has further stated that at the time of Page 13 of 61 R/CR.A/1552/2009 CAV JUDGMENT incident, when he went to irrigate, it was the watering for the fifth time. After sprouting out, 90 days passed to the wheat crops that is to say the wheat crop was of the height of more than knee. They had stretched two hundred fifty feet pipe in five Bhigha of land. The pipe was such as could be turned in round shape. This witness has admitted that prior to two days of the incident, the accused persons had told them not to take water, therefore they did not take water and therefore, he took water and irrigated. This witness has admitted that as he [accused] denied, he did not feel anything unbecoming and as their farm falls first, they allowed them to irrigate water. This witness has denied that Nathuji's farm consists of 8 Bigha of land. The witness stated that it consisted of five bighas of land. This witness has admitted that the Block Number of the farm of Nathuji is 1216. This witness has further admitted that the Narmada canal is situated in the east-west side. This witness has admitted that first, the farm of Nathuji is situated in the southern side of the canal. Near the farm of Nathuji, that is to say the farm of Navghan Bharvad being No.1215, is situated parallel to it and this witness has admitted that the farm of Bachu Baldev, being Block No.1217, is situated towards southern side. This witness has admitted that in the east of the farm of Nathuji and Bachuji, the farm of Shankar Vallabhbhai and its border of land touches up to the Block No.1218 and Block No.1219 in one row. This witness has stated that Block No.1218 is his whereas the block No.1219 belongs to Amraji Bachuji. This witness has denied that his house is situated in the North on the side of sim of Bhavanpura. This Page 14 of 61 R/CR.A/1552/2009 CAV JUDGMENT witness has admitted that after leaving the farm of Bachuji Bhaluji, the farm of more than three bigha of the accused Bachuji Baldevji is situated. This witness has denied that he had to take water from two farms. Thereafter, he stated that 25 feet of pipe can be used in the other farm. As the wheat had grown more than knee-height, water is to be taken from the farm of each other. If anything is spoiled in the farm, then the neighbouring farmer is not required to give money. This witness has admitted that no quarrel about wastage of water took place. This witness has admitted that he had no animosity or enmity with the accused prior to the occurrence of this incident. 15.4 This witness has admitted that he had so dictated in his complaint Exhibit No.17 that "they take water of Narmada canal and irrigate it on their land and as their land being hilly land, water comes for irrigation through the farm of Nathuji Bhaluji of their village from Narmada canal and from there after using pipe from their sloppy land, they irrigate water in their crop of wheat and they take water and irrigate every time", On the day of occurrence, when his brother was standing near the sloppy land of canal, he was stretching the pipe, he was at the beginning point of the farm of Nathuji. At that point of time, he was standing at about 60 feet away. This witness has admitted that when he shouted, the three persons who had come are, Govindji Atmaram, Bakaji Javanji, and Rameshji Zenaji Thakore, whose farms are not situated near their farm. This witness has denied that he came and the incident took place after half an hour. Page 15 of 61 R/CR.A/1552/2009 CAV JUDGMENT This witness has admitted that when this incident took place, when he went to intervene, he had not sustained any abrasion on any part of his body. This witness has admitted that altercation took place before two days. Therefore as he found this altercation common, he did not go to his brother. Bachuji came from the western side of the border of canal. He did not come from the side of the farm. This witness has admitted that as water has been irrigated in the farm of Bachuji, after looking that they had decided to give water. Bachuji's farm being waste land, he was giving water in the farm of Nathuji, at that point of time they denied to give water. This witness has admitted that on every year, his farm being situated at the first stage and then he would give them water. This witness has admitted that if the tools like scythe, spade, danti, scycle, pick axe etc are in the hand of a farmer, it can not be believed that he would have taken away it for killing. This witness has admitted that though Bachuji came with a scythe, he did not feel it as unnatural and he did not go running away there. This witness has denied that the matter which was told by Bachuji was not heard by him in the noise of "Fatfatiya". The witness voluntarily states that machine was not on. This witness has admitted that he did not so feel though the matter of water was discussed that he would inflict scythe to his brother. This witness has admitted that it was told by Karsanji that the canal does not belong to the property of anybody's father but Bachuji...(ambiguous). This witness has admitted that as Karshanji told that this Narmada canal is the government property and it is not owned by anybody's father. Page 16 of 61 R/CR.A/1552/2009 CAV JUDGMENT After being instigated, Laxmanji caught hold of Karsanji. This witness has admitted that there was instigation when his hand was caught. When his hand was caught, he did not feel to go there by running. He tried to go there running after one blow was given. This witness has denied that police has not taken his any other statement except the complaint. Thereafter he stated that it has not so happened that the police having called him did not make his interrogation and did not write anything. This witness has denied that in his complaint under Exhibit No.17, it has not been so stated by Bachuji that the scythe was thrown in the farm of wheat crops. This witness has admitted that when he stated complaint before police, he had stated all those facts which he had seen. They went to Bopal at the hospital; the doctor did not meet there. When they went to the Sanand Community Health Center, the doctor was not present there, they asked the doctor for examination and after examining his brother, the doctor declared him dead. The fact was informed to the doctor as to how the incident took place there. This witness has denied that Karasanji, his brother, alone did not leave from house and then as they received news, when he saw him, he could not speak and therefore such false facts have been created for Bachuji as to he had eye witnessed the incident. This witness has denied that Bachuji's mother had not snatched away any spade from his brother's hand. This witness has denied that his brother's wife had not told him that he had to become the eyewitness.
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16. PW. No.2, Dilipbhai Mavjibhai Patel, has in his examination-in-chief, stated that he was called in the Tembla farm of Nathuji Bhaluji Thakore for drawing panchanama of scene of offence on 17th February 2008. Other panch, Vishnubhai Jayantibhai Thakore, also accompanied him. The Police Inspector was present there. The canal is situated towards East-West in the aforesaid Tembla farm and he saw blood spots on the grass on land in the North side. This place was shown by Takhaji Ramtuji. There were blood spots at this place and they were fresh and there was blood pool on the earth of the land, it was sucked due to land. Police seized this earth soil - about 150 gm in a metal tin and obtained his signature on a panch slip. This witness has stated that the blood stained earth of muddamal article No.6 was seized in his presence and he had signed this slip as panch No.1. He has proved the panchnama and has identified his signature thereon. This witness has further stated that there was a blood pool towards southern side; police seized earth from there, which was seized as per particulars of panchanama. He has also identified the said muddamal article No.7 and his signature in this panch slips. This witness has further stated that there was one brown coloured shawl near the wooden stand and blood spots were present on its both ends and in the middle and it was the shawl of the deceased. As such has been stated by the complainant, the said shawl was seized in his presence. He has also proved the panchnama and identified his signature thereon. He was shown the slip found from the muddamal article No.8 and has identified his signature as pancha No.1 and he Page 18 of 61 R/CR.A/1552/2009 CAV JUDGMENT has also identified the signature of other panch. One scythe smeared with blood was found near the wooden stand there, which was seized by police. He has identified the scythe and signatures of both the panchas on the slip. On the left side from the place of wooden cot, that is to say on the northern side, extra water was found to have been taken out in the farm of waste land and the farm of Shankarbhai Vallabhbhai Patel was found to have been situated in the eastern side of the scene of offence, and the farm of Navghanbhai Bharvad is situated in the western side.
16.1 In the cross examination of this witness by the learned advocate for the accused, this witness has stated that the police personnel came to call him for drawing panchanama. After he had been called in the panch, police took Visnubhai. This witness has admitted that they both were taken to the farm as they had to appear as panch. They stayed there for about one hour. Police wrote the panchanama and they, the panchas put the signature. Then, the other panch and he were brought back in the village. This witness has admitted that he had not put any signature on the scythe which he had identified on the date of deposition.
17. PW. No.3, Kantiji Babarji Thakore, in his examination-in- chief has stated that the Police personnel of Sanand called him at Nana Viramgam. Other panch, Ishwarbhai Pratapji Thakore, was also called. He and other panch were called in front of the house of Page 19 of 61 R/CR.A/1552/2009 CAV JUDGMENT Kantaben Baldevji Thakore in the village. The police personnel of Sanad Police Station told them that the seizure panchnama of the spade was to be drawn. Therefore, he gave positive reply; similarly, the other panch also said "yes". The spade was to be seized from Kantaben's house. The spade was found from Kantaben's house during seizure. The spade was with iron bade and fitted in bamboo handle. Looking to its blade, its size was 6 inch of length and 9 inch of width. There were three knots in the length of the handle. They and the officer wrote the panchanama. After completing panchanama, he signed as Panch No.1 and Ishwarji Pratapji signed as Panch No.2, This witness has proved the panchanama and has identified his signature as well the other panch, and has also identified the muddamal spade which he identified. He was shown the spade of muddamal article No.10, after looking it he stated that it is the same spade. He was shown Mark-10/9 the panchanama, which bore his signature and the signature of other panch, which he identified and the same was marked as Exhibit No.29.
17.1 This witness was not cross examined by the defence.
18. PW. No. 4 is Dr. Kinnarbhai Rameshbhai, the Doctor who performed the autopsy of the dead-body of the deceased. In his examination-in-chief, he has stated that when he was discharging his duty as M.O in the Sanand Community Health Center in the year 2008, on 17/02/2008 he received one report from the Sanand Police Page 20 of 61 R/CR.A/1552/2009 CAV JUDGMENT Inspector for performing post-mortem of the dead body of Karshanji Ramtuji Thakore and he made endorsement of date and time of 1-00 o'clock in the afternoon.
18.1 According to this witness, the name of the deceased was Karsanji Ramtuji Thakore, residing at Sanand, Nana Viramgam, Dist. Ahmedabad. The elder brother of the deceased Shri Takhaji Ramtuji Thakore had brought the dead body. His elder brother had identified the dead-body. The date of receipt of the dead body is 17th February 2008 at 1-00 hours in the afternoon. He started post-mortem at 1/20 hours in the afternoon on 17th February 2008 and completed it at 2/30 hours on the same date. It was a dead body of one male aged about 20 years. He had put on yellow coloured shirt and black and cream coloured sweater and brown coloured underwear. The clothes were stained with blood. The body was identified. The said body was weak and cold. The rigor mortis of the dead body was found. Presence of P.M liquidity was found. Eyes were open, the eyeballs were open, they were fixed and found dirty; ears were normal, nose was common, mouth was semi open and teeth and tongue were inside mouth. The external injuries of the column No.17 were as under.
(1). One big size temporal bone that is to say upper side of the ear on the right side of the head and a part separated from the skull in right occipital bone was found, it was wound of irregular shape, Page 21 of 61 R/CR.A/1552/2009 CAV JUDGMENT (2). one sharp wound of the size of abut 15 cm of length, 2 c.m of width, deep up to skull, one cut wound deep up to skull was found in the middle of the head.
(3). one fracture wound in the very middle of head and one c.m of width of wound was found connecting the injury No.2. It was 15 cm of length and deep up to brain, that is to say a fracture was found.
18.2 The following internal injuries were found on the dead body:-
1. One big size wound on the right temporal bone, that is to say, a part separated on top of the ear on right side of head and in the right occipital bone. The wound was found to be in irregular shape.
2. One sharp wound of the size of about 15 c m long, 2 c.m of width and deep up to skull. It was in the middle of the head and cut up to the skull.
18.3 The internal injuries were corresponding to the external injuries No.1,2,3, that is to say, the connected injuries to the external injury are the same as have been mentioned in the column No.19.
18.4 Because of the said injury, entire blood of the body was flowed out due to external injuries No.1 and 2. No blood was found in brain and the wall, ribs, soft bones, plura of the lung were found Page 22 of 61 R/CR.A/1552/2009 CAV JUDGMENT normal, right and left lungs were normal. Shrudhya was vacant. Blood was not present in the big vain. The stomach was found empty. Little green coloured liquid was found from small intestine. Some digested excreta was found in the large intestine. Liver was empty. The urinary bladder was empty. Spinal cord was normal. Cause of death is brain injury and hemorrhage. Death was caused due to stoppage of heart and respiratory system. Looking to the injury of the column No.17, the injuries of No.2 and 3 were in chop wound, they were deep, wide, and sharp. The said injuries could be caused by a weapon like scythe.
18.5 This witness has proved the PM Note and has identified his signature thereon.
18.6 Looking to the injuries in column No.17 and its ancillary injuries No.19, according to this witness, they are sufficient and enough to cause death of a person in the ordinary course of nature.
All these injuries were the ante mortem injuries. He was shown the muddamal article No.9, and after looking at the same, he stated that the injuries of column No.17 can be caused by this scythe. The scythe is a heavy cutting weapon. If a blow is given one after another on head, a person can die.
18.7 In the cross-examination of this witness by the learned advocate for the accused, this witness has stated that chop wound can be caused by a spear and axe. This witness has admitted and Page 23 of 61 R/CR.A/1552/2009 CAV JUDGMENT the witness voluntarily states that as the scythe is heavy, such kind of injury can be caused. The injury No.3 can be caused perhaps if a spear, an axe is inflicted forcefully. This witness has admitted that the body of the deceased being thin, there is less possibility of flowing five liters of blood. This witness has denied that looking to the scythe, clean cut margin can be drawn. This witness has admitted that if a sharp instrument has been used, its ends may be found absolutely sharp. This witness has stated that he performed the post-mortem. Out of the injuries, the injury of number one was uneven and the injury of second number was sharp cutting. It is not necessary that if sharp cutting instrument has been used as per Modi's book, said injuries may be sharp. It is not necessary that looking to the scythe if the injury has been caused from the distance of about minimum six feet, such kind of injury is possible. The witness voluntarily stated that it could be caused from the distance of three- four feet. This witness has admitted that looking to the kind of the injury and the blood loss caused due to it, the death of the deceased should have been caused due to hemorrhagic shock. This witness has admitted that if the injury is caused on the said place, he may loose his strength and fall down.
19. Bakaji Javanji Thakor, PW. No.5, in his examination-in- chief has stated that he was a resident Nana Viramgam and resides there with his family and was engaged in agriculture work and maintaining his livelihood. His land, admeasuring 8 Vighas, was Page 24 of 61 R/CR.A/1552/2009 CAV JUDGMENT situated in sim of their village. There are also other houses of the persons belonging to Thakor Community, situated in their village. The incident happened about 14-15 months back. The land of Takhaji Ramtuji Thakor of their village is situated. The said land is situated adjacent to their house. Near the said land, the land of Nathuji Bhaluji of their village is situated at some distance from their home on the road leading to Bhavanpura. The land of Nathuji was cultivated in partnership by Bachuji Baldevji at the time of incident and therein, wheat was cultivated in the relevant year. Near the said land, the lands of both brothers - Takhaji Ramtuji Thakor and Karshanji Ramtuji Thakor were also situated. In the said land also, wheat was cultivated in the relevant year. They all were taking water from Narmada canal. This Narmada canal passes through the farm of Nathuji and the water of this canal is used for the farms by turns.
19.1 At the time of incident, he was at his house. At that time, at about 8.30 a.m., when he came to his courtyard, Rameshji Zenaji and Govindji Atmaram were going towards the farm of Nathuji. As shouting was made in the farm of Nathuji Bhaluji, Rameshji Zenaji and Govindji Atmaram were going towards that side. Therefore, he also went there and when he went to the place where incident took place, Karsanji Ramtuji was lying in a bleeding condition near the water sloping. He had sustained injury on head and Takhaji Ramtuji was also standing there. As Takhaji Ramtuji asked him to give mobile, he gave his mobile to him. He called 108 Ambulance. Thereafter, Page 25 of 61 R/CR.A/1552/2009 CAV JUDGMENT Takhaji talked him that before two days, he and his brother came to turn water in the field and as Bachuji Baldevji Thakor refused turning water, they both brothers, came back to house. Thereafter, after two days, i.e. on the date of the incident, he and his brother went to turn water into wheat at about 8.00 a.m. Takhaji was stretching pipe and Karshanji went to release water. Then, Bachuji Baldevji refused. Bachuji Baldevji was speaking abusive words. There was scythe in the hand of Bachuji Baldevji. Lakshmanji Shivaji, Kantaben Baldevji also spoke abusive words. There was scythe in the hand of Bachuji Baldevji. He inflicted two blows on the head of Karshanji. There was a spade in the hand of Karsanji. Kantaben took it. As shouting was made, the accused persons ran away and threw scythe at that place. In the mean time, as 108 Ambulance came, Karsanji was taken therein, his brother -Takhani went with his brother. He was taken to Bopal hospital. Thereafter, after one hour, it came to know that Karshanji died. Takhaji Ramtuji gave complaint in police. Police recorded his statement and he had dictated the facts. 19.2. In the cross-examination by the learned advocate for the accused, this witness has stated that he was a resident of Nana Viramgam from his birth. The house of Takhaji is situated near his Maholla (street). They belong to same community, but they have no family relations. On festival occasions, they used to go to the house of each other. His agricultural land is situated at a distance of one and half km. from village in front of the place of incident. Wheat was Page 26 of 61 R/CR.A/1552/2009 CAV JUDGMENT cultivated also on his agricultural land. He went to look after his farm. He did not go to his farm on the day of incident. Except himself, his family members used to go and come on the agriculture land. This witness has admitted that he saw Rameshji Zenaji and Govindji Atmaram running. Before that, they did not make any conversation with him. This witness has stated that he also went by running behind them.
19.3. This witness has further stated that when he went to the place of incident, Karshanji was lying near water course. When he reached, water was flowing in water course. At the said place, the earth was not sticky and there was no mud. He did not phone through his mobile to call Ambulance. At that time, his mobile number was 9725313893. He did not feel to ask him to inform the police. When the Ambulance departed by taking Karshanji, this mobile was with him. He did not go in Ambulance. He did not feel that the police should be informed, because, his brother was present there and therefore, he did not feel proper to go to police station. Karshanji died. Such information was known by him through the people of village through conversation. Police personnel took him on that day at about 8.30 p.m. and at that time, Govindbhai Ratmaram Thakor, Rameshji Zenaji Thakor etc. were also taken with him. They were taken to police station. Before that Takhaji did not meet him. He did not know the name of police personnel. Police came by jeep. He did not know as to how many police persons were there. He did not make Page 27 of 61 R/CR.A/1552/2009 CAV JUDGMENT verification in this regard. He did not feel the necessity of verification since it was a police jeep and there must be police personnel therein. They stayed in police station for one and half hours. Police recorded his statement on that day and his signature was also obtained. Thereafter, he did not go to police station again. Police came to give summons to him to give deposition in this regard. During this period, police did not come to him.
19.4. On the same date of the incident, Takhaji Ramtuji told him about a quarrel, and not before the incident and he did not know also about the matter of quarrel. Takhaji talked about quarrel and only on the basis of it, he gave statement. Except it, he did not know any fact. This witness has denied that he did not go only to the place of incident and due to having good relation with Takhaji, he was giving false deposition.
20. PW No. 6, Jyotsnaben Karshanji Thakor, is the widow of the victim. In her examination-in-chief she has stated that she was residing with her husband, parents-in-laws, Jeth (brother-in-law), Jethani (sister-in-law) and one daughter Daksha, aged: 2 years together at Nana Viramgam. She was having pregnancy of nine months at the time of incident. Her husband was engaged in agriculture work at the time of incident. Their agricultural land was situated on the road of Bhavanpura. They have farm of about 4 vighas. Wheat was cultivated therein at the time of incident and this Page 28 of 61 R/CR.A/1552/2009 CAV JUDGMENT wheat was watered from the Narmada canal.
20.1. This witness has further stated that the incident happened before one year. On the day of incident, her husband and her jeth both went to turn water into their farm at 8.00 a.m. Before two days, her husband and her jeth both went to turn water. At that time, the accused Bachuji asked her husband and jeth not to turn water in their farm and he also quarrelled with them. Thereafter, on the day of incident, her husband and her jeth both went to the farm. In the meanwhile, the accused Bachuji made quarrel and Bachuji, Lakshmanji and Kantaben were present there. Thereafter, as shouting was made in farm, she and her parents-in-laws and jethani went to farm. They saw in farm that Rameshji Thakor, Bakaji Javanji, Govindji etc. of village were present there and also saw that her husband was lying in a bleeding condition. Her husband sustained injury in head and it was bleeding from his head. Her husband could not speak. Thereafter, as Ambulance van came there, her husband was taken to hospital for treatment. Thereafter, she knew that her husband died. Her jeth dictated complaint to the police in this regard. Police recorded her statement. She dictated the facts in her statement. Bachuji Baldevji, Lakshmanji Shivaji and Kantaben Baldevji all three had jointly beaten her husband and caused death of her husband. This witness has stated that she knew the accused persons and she has identified the accused persons in the court.
Page 29 of 61 R/CR.A/1552/2009 CAV JUDGMENT 20.2 In the cross-examination by the learned advocate for the accused, this witness has stated that on the date of deposition, she had come with her jeth Takhaji and Bakaji to give deposition. Bakaji's house is situated in front of their house. Their family members have good relations with Bakaji. She did not know as to whose farms are situated around their farm, because she never went to the farm. When the incident took place, on that day, her parents-in-laws took her to the farm. Before she was taken to farm, her mother-in-law did not make any conversation with her. She could not say as to whether she should have gone in ambulance, when her husband was taken in ambulance because, at that time, she had lost consciousness. This witness has admitted that Takhaji stated her fact of incident, except it, she did not know. This witness has denied that before two days, a quarrel took place between her husband and her jeth with Bachuji Baldevji and her husband did not talk to her in this regard. She did not talk to anyone. The incident happened after two days. Police came to her. This witness has admitted that it did not happen that she herself had gone to police station. Police recorded her statement at her home. When police recorded her statement, her mother-in-law and jethani were sitting with her. Only at the same time, police also inquired her mother-in-law and jethani. Her jeth mentioned all facts to police. This witness has admitted that her jeth dictated facts to police, she did not dictate anything.
21. PW. No. 7, Mukundsinh Pruthvisinh Vaghela, has, in his Page 30 of 61 R/CR.A/1552/2009 CAV JUDGMENT examination-in-chief stated that he was performing duty in Sanand Police Station in the year 2008. During the said period, on 17 th February 2008, from 8-00 to 12-00 in morning, his duty was as a Police Station Officer. During the said period, the complainant of this case - Takhaji Ramtuji Thakor, Resi.: Nana Viramgam, Taluka: Sanad, came to lodge complaint to police station and gave complaint before him that Bachuji Baldevji Thakor, Lakshmanji Shivaji Thakor, Kantaben Shivaji etc. of his village caused death of his brother Karshanji Ramtuji by hitting him with scythe on his head after entering into altercation on the issue of turning water in the farm of wheat. In this regard, as complaint was given against the accused persons, he registered the complaint, vide I- C.R. No. 53/08 for the offence under sections 302, 294(B), 114 of the I.P.C. and entry thereof was made in station diary. He handed over further investigation to P.S.I Mr. K.V. Solanki. He has proved the complaint and the signature of the complainant below the said complaint and also his signature as 'Before me'. This witness has stated that he had written the complaint as dictated by the complainant. As the complaint was lodged, he registered the offence. He has produced and proved the station diary wherein in column no. 1 and serial no. 11 and in the column 12 of time and in the column of criminal register number, First 53/8, I.P.C 302 etc. and the facts of incident have been written. He had also produced the original index and proved the same. 21.1. In the cross-examination of this witness by the learned Page 31 of 61 R/CR.A/1552/2009 CAV JUDGMENT advocate for the accused, this witness has denied that Takhaji came to him and he did not write the complaint as dictated by him, but he had written it arbitrarily.
22. PW. No. 8, Gunvantray Devram Trivedi, is a Police Inspector. In his examination-in-chief he has stated that he was performing duty as Police Inspector in Sanand police station in month of February - 2008. As he resumed his duty after availing leave on 25th February 2008, the investigation of Sanand Police Station 1st C.R. No. 53/08 of I.P.C section 302 etc. was handed over to him by Mr. R. D. Mitra, the then In-charge Police Inspector. The overall investigation was completed. The F.S.L Analysis Report and sketch of the place of incident from Revenue Circle Inspector were not received. As both of them were subsequently received and there was sufficient evidence against the accused persons, he filed charge-sheet in Magistrate Court on 21st April 2008. As the map of the place of offence and F.S.L report were received, he enclosed them in the case. He has proved the map of the place of offence, acknowledgment receipt from F.S.L. wherein there was signature of the Assistant Director, the F.S.L report with F.S.L forwarding letter, and the original report received from F.S.L. Serological Department with the signature with designation of Scientific Officer Mr. J.A. Shah below it.
22.1. In his cross-examination by the learned advocate for the accused persons, this witness has admitted that after making study of Page 32 of 61 R/CR.A/1552/2009 CAV JUDGMENT all the papers of investigation, he did not seem proper to take further statement. This witness has admitted that as the investigation papers were received by him and as it was an offence of visitation, the Superior Officer verified necessary papers. This witness has admitted that most of investigation was carried out by his subordinate, P.I. Solanki, since he was on leave at that time. This witness has denied that he had filed the charge-sheet without completing investigating so as to support the investigation of Mr. Solanki.
23. PW No. 9, Ravindra Dhanjibhai Mitra, is another police witness. In his examination-in-chief he has stated that he was performing his duty as Police Inspector at Local Crime Branch, Ahmedabad (Rural). When he was In-charge of Sanad Police Station in the month of February-2008, on 17th February 2008, he took over the charge of the investigation of First C. R. No. 53/08 registered u/s. 302 of IPC etc., from P.S.I. Mr. K.V. Solanki of Sanand and the investigation was continued on 18th February 2008. Report was made to the Revenue Circle (Officer) for preparing sketch and the arrested accused Kantaben was sent to court. On 19th February 2008, after making the detailed Panchnama of the accused persons Bachuji Baldevji, Lakshmanji Shivaji, he seized clothes, put on by the accused persons at the time of committing offence as per details of Panchnama. Thereafter, after preparing muddamal and dispatch note of this case, the same were sent to F.S.L. Out of the accused persons Page 33 of 61 R/CR.A/1552/2009 CAV JUDGMENT of this case, the accused nos. 2 and 3 are present in the court today. This witness has stated that he knew them and if the accused no. 1 is present, he could identify him. He has identified the muddamal clothes of this case, which are shown to him. A yadi was made to the Revenue Circle Inspector to prepare map of the place of offence and he has proved the same. He has also proved the dispatch note, certificate regarding power was obtained, wherein there are signature and designation Mr. A.M. Jadeja, Deputy Police Superintendent, Sarkhej section. Thereafter, on 25th February 2008, as Mr. J.D. Trivedi resumed his duty, he handed over further investigation to him. 23.1. In his cross-examination by the learned advocate for the accused, this witness has denied that the accused persons have not voluntarily produced any clothes. This witness has denied that he intentionally used the blood of deceased for sprinkling on the clothes of the accused persons.
24. PW. No. 10, Kalpesh Vitthaldas, is another police witness. In his examination-in-chief he has stated that when he was performing his duty as P.S.I at Sanand on 17th February 2008, at 12 O'clock, the complaint was lodged in the case of said offence. As its further investigation was handed over to him according to the instruction of Superior Officer, he made inquest panchnama of deceased by going to Government hospital in this case. Thereafter, post-mortem of the dead-body of deceased was performed. The Page 34 of 61 R/CR.A/1552/2009 CAV JUDGMENT Police Station Officer seized the clothes of deceased and annexed the papers of its panchnama in the investigation. Then, the panchnama of the place of offence was produced. Thereafter, on making search investigation at the house of the accused Kantaben, the spade, which was used in offence, was found and it was seized. In the panchnama of the place of offence, the scythe used by the accused Bachuji in beating the accused and shawl were found from the place of offence and the same were also seized. Out of three accused persons of this case, after making panchnama of physical condition of Kantaben Baldevbhai, was arrested on 17th February 2008 at 19.30 Hrs. and further investigation was handed over to the In-charge Police Inspector. He recorded the statements of relevant witnesses. 24.1. This witness has identified the accused Kantaben who was present in the court. When he received investigation, the complaint was also along with report of P.S.O. He has proved the complaint. Besides, he has also proved the inquest panchnama, the panchnama of the place of offence the Post mortem report, the yadi written to the Medical Officer, Sanand to give report and sample after making Post Mortem. This witness has further stated that after getting post-mortem report of deceased of this case, it was enclosed in the case, and he has identified the same. The Police Station Officer seized the clothes of deceased of this case and he has proved the panchnama thereof. This witness has stated that one spade was seized by keeping the accused woman Kantaben present, and he has Page 35 of 61 R/CR.A/1552/2009 CAV JUDGMENT proved the said panchnama and he has identified the signatures of both panchas and his signature. The panchnama of physical condition of Kantaben was shown to him and he had identified his signature and the signatures of both panchas (made) before him. The panchnama regarding physical condition and clothes of the accused Bachuji was shown to him. He stated that there were one black full sleeve shirt having brown coloured checks and old like pants having black colour. Besides, clothes of the second accused Lakshmanji Shivaji were produced. Therein, a white coloured shirt was produced. The panchnama was drawn in this regard by Police Inspector Mr. Mitra, who was with him. There is signature of R.D. Mitra below it. He has identified and proved the same.
24.2. This witness was shown the panch slips of Exh. 19 to 22 and he identified his signature and the signatures of both panchas therein. This witness was also shown the muddamal article - 9 scythe and muddamal article no. 10 spade, which were shown to him and he has identified the same.
24.3. In his cross-examination by the learned advocate for the accused, this witness has admitted that the complaint had been registered. He verified the complaint. Before drawing panchnama of Kantaben, as the panchnama of physical condition of Kantaben was to be drawn, he did not deem it necessary to keep a lady pancha. This witness has denied that at the time of arresting Kantaben, a Page 36 of 61 R/CR.A/1552/2009 CAV JUDGMENT woman constable was not kept present. This witness has admitted that he did not record her statement. This witness has admitted that such fact has not been dictated in the complaint that Bachuji threw the scythe in the farm of wheat. This witness has denied that scythe and shawl were not found from the place of offence. This witness has admitted that the panchnama of blood sample handed over by doctor was not made. This witness has denied that the panchnamas were not made before panchas and signatures were obtained in prepared panchnamas. This witness has denied that after verifying the complaint, any statement has not been recorded in this regard.
25. After hearing the learned counsel for the parties and after going through the materials on record, we find that the PW. No.1, the complainant who is an eyewitness, has, in detail, narrated the incident. It appears that in the cross-examination, a specific suggestion was given to him on behalf of the accused persons that as the deceased told that Narmada Canal is the Government property and it was not owned by anybody's father, the appellant No.1 got infuriated, caught hold of the deceased and inflicted the injuries and the complainant has admitted such suggestion. From the aforesaid suggestion, it is clear that the incident narrated by the complainant is the true version. Mr. Kanani tried to convince us that it is apparent from the aforesaid suggestion that the incident occurred as the appellant No.1 was provoked by the victim, and, therefore, at the most, it is a case of culpable homicide not amounting to murder. We Page 37 of 61 R/CR.A/1552/2009 CAV JUDGMENT are afraid, we are not impressed by such submission of Mr. Kanani. If it appears that the deceased, in exercise of his lawful right to use Narmada water for the purpose of his cultivation, resisted the illegal action of the appellant No.1 by which he prevented the deceased from taking the water at the relevant time, and in the process, uttered those words, such action cannot be branded as a provocation leading to the crime. What the deceased said was correct and there is nothing wrong in saying that the Narmada water is a Government property and is not owned by anybody's father.
26. It is not the case of the appellant No.1 that he was not at all present at the place of the incident and that somebody else had killed the victim. Such being the position, we do not find any reason to disbelieve the version of the complainant particularly having regard to the nature of suggestion given to him in the cross- examination on behalf of the accused as indicated above.
27. In Tarun Bora alias Alok Hazarika v. State of Assam reported in 2002 Cri.LJ 4076, a three Judge Bench of the Supreme Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in TADA Sessions case wherein the ap- pellant was convicted under Section 365 of the Indian Penal Code read with Section 3 (1) and 3 (5) of the Terrorists and Disruptive Activ- ities (Prevention) Act.
Page 38 of 61 R/CR.A/1552/2009 CAV JUDGMENT
28. The Supreme Court while considering the evidence on re- cord took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the accused, arrived at the conclusion that the presence of the ac- cused was admitted. We quote with profit the following observations made by the Supreme Court in paragraph 15, 16 and 17:
15. The witness further stated that during the assault, the as-
sailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night he was carried away blind-folded on a bicycle to a different place and when his eyes were unfolded, he could see his younger brother-Kumud Kakati (P.W.-2) and his wife Smt. Prema Kakati (P.W.-3). The place was Duliapather, which is about 6-7 kms. away from his village Sakrahi. The witness iden- tified the appellant-Tarun Bora and stated that it is he who took him in an ambassador car from the residence of Nandeswar Bora on the date of the incident.
16. In cross-examination the witness stated as under :
"Accused-Tarun Bora did not blind my eyes nor he assaul- ted me."
17. This part of cross-examination is suggestive of the presence of accused-Tarun Bora in the whole episode. This will clearly suggest the presence of the accused-Tarun Bora as admitted. The only denial is the accused did not participate in blind-fold- ing the eyes of the witness nor assaulted him.
29. In Rakeshkumar alias Babli v. State of Haryana re- ported in AIR 1987 SC 690, the Supreme Court was dealing with an Page 39 of 61 R/CR.A/1552/2009 CAV JUDGMENT appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34 of the Indian Penal Code. While re-appreciating the evidence on record, the Su- preme Court noticed that in the cross-examination of the PW 4, Sube Sing, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. The Supreme Court taking into consideration the nature of the suggestion put by the defence and the reply arrived at the conclusion that the presence of the accused namely Dharam Vir was established on the spot at the time of occurrence. We quote with profit the following ob- servations made by the Supreme Court in paragraph 8 and 9 as un- der:
8. P.W. 3, Bhagat Singh, stated in his examination-in-chief that he had identified the accused at the time of occurrence. But curiously enough, he was not cross-examined as to how and in what manner he could identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and it was not possible to identify the assailants of the deceased.
9. In his cross-examination, P.W. 4, Sube Singh, stated that the accused Dharam Vir. was wearing a shirt of white colour. It was suggested to him on behalf of the accused that Dharam Vir was wearing a shirt of cream colour. In answer to that suggestion, P.W. 4 said "It is not correct that Dharam Vir accused was wear-
ing a shirt of cream colour and not a white colour at that time." The learned Sessions Judge has rightly observed that the above Page 40 of 61 R/CR.A/1552/2009 CAV JUDGMENT suggestion at least proves the presence of accused Dharam Vir, on the spot at the time of occurrence.
30. Thus, from the above two cases it is evident that the sug- gestion given by the defence counsel to a prosecution witness in the cross-examination, if found to be incriminating in nature in any man- ner, would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client. Any con- cession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. In this connection, we may appropriately refer to the following observa- tions of the Supreme Court in the case of BSNL vs. Subhash Chandra Kanchan reported in AIR 2006 SC 3335 while dealing with the ques- tion of binding nature of concession by a counsel on a question of fact:
"Furthermore, in terms of Order III, Rule 1 of the Code of Civil Procedure, a litigant is represented by an advocate. A con- cession made by such an advocate is binding on the party whom he represents. If it is binding on the parties, again sub- ject to just exceptions, they cannot at a later stage resile there from. The matter may, however, be different if a concession is made on a question of law. A wrong concession on legal ques- tion may not be binding upon his client. Here, however, despite the stand taken by the Appellant in its written statement before the High Court the learned Advocate consented to appointment of a person as an arbitrator by the High Court in exercise of its jurisdiction under Section 11 of the 1996 Act, in our considered Page 41 of 61 R/CR.A/1552/2009 CAV JUDGMENT view, the same should not be permitted to be resiled from. A person may have a legal right but if the same is waived, en- forcement thereof cannot be insisted."
31. So far as the accused No.3 is concerned, the only allegation against her was that she had snatched away the spade from the hands of the deceased, which of course has been denied by the appellant No.3 by giving a specific suggestion to the witness concerned. It appears that there is no allegation against the accused No.3 that she either instigated or that she had any common intention of killing the victim. Even if it is assumed that she had snatched the weapon from the hands of the victim, at the most, it can be legitimately argued that she tried to save her son, the appellant No.1, by snatching the weapon from the hands of the deceased. There is, however, no cogent evidence to show that she tried to snatch away the weapon from the hands of the victim so that appellant could without resistance kill the deceased. In the absence of any further evidence showing participation of the appellant No.3 in the incident, apart from snatching away the weapon from the hands of the deceased, we are unable to hold that the appellant No.3 should also be held guilty of committing murder when the act has been really committed by her son, the appellant No.1 while the appellant no. 2 got hold of the hands of the deceased. We, thus, find in the facts of the present case that the learned Sessions Judge should not have convicted the appellant No.3 for abetment of committing murder although she neither abetted the other two accused to commit Page 42 of 61 R/CR.A/1552/2009 CAV JUDGMENT murder nor did participate in the act of committing murder. She had at the most the intention to see that her son was not injured by the weapon in the hand of the deceased and for that purpose, she snatched the said weapon from the hand of the deceased.
32. The appellant No.2 has already died, against whom the allegation was that he held the hands of the deceased while the appellant No.1 applied the weapon on the deceased. Since the appellant No.2 had died, his appeal is abated.
33. The only question that remains to be decided is whether in the facts of the present case, the conviction of the appellant No.1 should be converted to one punishable under section 304 Part I or Part II of the Indian Penal Code.
34. In order to appreciate the question, it will be profitable to refer to the definition of murder as provided in Section 300 of the Indian Penal Code which is quoted below:
300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of Page 43 of 61 R/CR.A/1552/2009 CAV JUDGMENT the person to whom the harm is caused. or-
3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he Page 44 of 61 R/CR.A/1552/2009 CAV JUDGMENT may not have intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.
Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Illustrations
(a) A, under the influence of passion excited by a provocation Page 45 of 61 R/CR.A/1552/2009 CAV JUDGMENT given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was giving by a thing done in the exercise of the right of private defence.
(f) Z strikes B. B is by this provocation excited to violent rage.
A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.
Page 46 of 61 R/CR.A/1552/2009 CAV JUDGMENT Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide. Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
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's having taken undue advantage or acted in a cruel or unusual manner. Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.-Culpable homicide is not murder when the person Page 47 of 61 R/CR.A/1552/2009 CAV JUDGMENT whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Illustration A, by instigation, voluntarily causes Z, a person under eighteen years of age, to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.
35. At this stage, it will also be profitable to refer to the following observations of the Supreme Court in the case of State of A. P. vs. Raayavarapu Punnaya reported in AIR 1977 SC 45 where the Supreme Court laid down the distinction between murder and the culpable homicide not amounting to murder in the following way:
"12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable hom- icide' but not vice versa. Speaking generally, 'culpable hom- icide' sans 'special characteristics of murder' is 'culpable hom- icide not amounting to. murder'. For the purpose of fixing pun- ishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable hom- icide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the First Part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three Page 48 of 61 R/CR.A/1552/2009 CAV JUDGMENT grades. Culpable homicide of this degree is punishable under the Second Part of Section 304.
13. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The confusion is caused if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the inter- pretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of Sec- tions 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section 299 Section 300
A person com- Subject to certain exceptions culpable
mits culpable homicide is murder if the act by which
homicide if the the death caused is done -
act by which the
death is caused
is done -
INTENTION
(a) with the in- (1) with the intention of causing death;
tention of caus- or
ing death; or
(2) with the intention of causing such
(b) with the in- bodily injury as the offender knows to
tention of caus- be likely to cause the death of the per-
ing such bodily son to whom the harm is caused; or
injury as is likely
to cause death;
or (3) with the intention of causing bodily
injury to any person and the bodily in-
Page 49 of 61
R/CR.A/1552/2009 CAV JUDGMENT
jury intended to be inflicted is suffi-
cient in the ordinary course of nature
to cause death; or
KNOWLEDGE
(c) with the (4) with the knowledge that the act is
knowledge that so imminently dangerous that it must
the act is likely in all probability cause death or such
to cause death. bodily injury as is likely to cause
death, and without any excuse for in-
curring the risk of causing death or
such injury as is mentioned above.
14. Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essen-
tial requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likeli- hood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this Clause. This aspect of Clause (2) is borne out by Illustration (b) appen- ded to Section 300.
15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases fall- ing under Clause (2) of Section 300 can be where the assailant Page 50 of 61 R/CR.A/1552/2009 CAV JUDGMENT causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the as- sailant had no such knowledge about the disease or special frailty of the victim, nor an intention to. cause death or bodily injury sufficient 'in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
16. In Clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding Clause (b) of Sec- tion 299, the words "sufficient in the ordinary course of nature"
have been used. Obviously, the distinction lies between a bod- ily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and if overlooked, may result 'in miscarriage of justice. The difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determ- ines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in Clause (b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury... sufficient in the or- dinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.
17. For cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so long as the death en- sues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and an- Page 51 of 61 R/CR.A/1552/2009 CAV JUDGMENT other v. State of Kerala, AIR 1966 SC 1874, is an apt illustration of this point.
18. In Virsa Singh v. The State of Punjab, AIR 1958 SC 465, Vivi- an Bose, J. speaking for this Court, explained the meaning and scope of Clause (3), thus :
"The prosecution must prove the following facts before it can bring a case under Sec.300, '3rdly'. First, it must es- tablish, quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the en- quiry proceeds further, and, fourthly it must be ,proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has noth- ing to do with the intention of the offender."
19. Thus, according to the rule laid down in Virsa Singh's case (supra), even if the intention of accused was limited to the in- fliction of a bodily injury sufficient to cause death in the ordin- ary course of nature and did not extend to the intention of causing death, the offence would be murder. Illustration (c) ap- pended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general - as dis- tinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be Page 52 of 61 R/CR.A/1552/2009 CAV JUDGMENT of the highest degree of probability, the act having been com- mitted by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section
300. If the answer to this question is in the negative, the of- fence would be 'culpable homicide not amounting to murder', punishable under the First or the Second Part of Section 304, depending. respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code."
36. Applying the above principles to the case before us we find that there is no dispute that the death of the deceased occurred due to culpable homicide and not due to accident or suicide. We, Page 53 of 61 R/CR.A/1552/2009 CAV JUDGMENT therefore, propose to consider whether the incident comes within any of the exceptions indicated in Section 300 of the Code.
37. In our opinion, the utterance of the deceased that the Narmada water is not the father's property of anybody cannot, at any rate, be said to be "grave and sudden provocation" so as to bring it within the first exception of Section 300 of the Code. Moreover, one cannot take the benefit of the provocation, if at all, of the deceased, if the purported provocation was given for exercising a lawful right of the deceased to have Narmada water in his adjoining field and the necessity of uttering such sentence arose because of the illegal act of the accused no.1 in refusing the benefit of the Narmada water to the deceased which he was lawfully entitled. Thus, the case does not come within the first exception.
38. Mr. Kanani then tried to impress upon us that the case comes within the purview of the fourth exception to Section 300 of the Code. In order to bring the case within fourth exception, the essential requirement as pointed out by the Supreme Court in the case of Parkash Chand vs. State of State of Himachal Pradesh reported in (2004) 11 SCC 381 is as follows :
The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of pro- vocation not covered by the first exception, after which its place would have been more appropriate. The exception is Page 54 of 61 R/CR.A/1552/2009 CAV JUDGMENT 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 reason 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 uni- lateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the ex- ception more appropriately applicable would be Excep- tion 1. There is no previous deliberation or determina- tion 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 dif- ficult 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 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" occur-
ring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion re- Page 55 of 61 R/CR.A/1552/2009 CAV JUDGMENT
quires that there must be no time for the passions to cool down and in this case, the parties had worked them- selves into a fury on account of the verbal altercation in the be- ginning. 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 suffi- cient 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 a cruel or unusual manner. The expression "undue advant-
age" as used in the provision means "unfair
advantage".
39. Applying the aforesaid test to the facts of the present case, we find that the dispute of taking water started two days before the date of incident and on the date of incident, there was no fight between the two groups in that sense inasmuch as the incident was one-sided and there was no injury on any of the accused persons. At the time of the fateful blow on the deceased he was unarmed and his both the hands were caught hold of by the appellant no.2 and the ap- pellant no.1 applied the heavy weapon on the head of the unarmed deceased simply because he tried to exercise his lawful right to take Narmada water for cultivation. The appellant no. 1, thus, took advant- age of his own wrong and acted in a cruel and unusual manner.
40. We have already noticed the extent of injury as it Page 56 of 61 R/CR.A/1552/2009 CAV JUDGMENT appears from the deposition of the Doctor who performed the post- mortem. Having regard to the nature of the injury caused by the heavy weapon which was applied on the vital part of body, there is no escape from the conclusion that it is a case of 302 of the Indian Penal Code. We have already stated that we are not impressed by the contention that it was a case of provocation and if the deceased merely asserted his right to have Narmada water for cultivation that cannot be said to be an act of provocation. Moreover, as the deceased was killed when the appellant No.2 had caught hold of the deceased, it cannot be said to be one of culpable homicide not amounting to murder.
41. Mr. Kanani, in this connection, relied upon the following two decisions of the Supreme Court in support of his contention that this is a fit case for converting the offence to one punishable under section 304 Part I or part II of the Indian Penal Code. [1]. Mangesh v. State of Maharashtra reported in 2011 (O) GLHEL-SC 49274.
[2]. Budhi Singh v. State of H.P. Reported in 2012 (O) GLHEL- SC 52527.
41.1. In the case of Mangesh [supra], the appellant assaulted the deceased with a knife thrice and ran away from the spot. The High Court dismissed the appeal against conviction and sentence. Page 57 of 61 R/CR.A/1552/2009 CAV JUDGMENT The Supreme Court held that the appellant stabbed the deceased twice in thigh and only once in chest and he also fled from the scene without inflicting more injuries and, therefore, the attack was not premeditated and the injury was caused without intention to kill. 41.2. In the facts of the present case, we find that the injury was caused to the deceased on the most vital part, the head, and the extent of injury was such that the entire blood of the victim throughout his body flowed out within a short period of time as opined by the Doctor. Therefore, the nature of the injury in the case of Mangesh [supra] cannot be compared to the present one where the appellant No.1 knew that striking of such a nature of weapon on the head of the deceased whose hands were caught hold of by the appellant no. 2 would definitely cause death. The judgment of Mangesh [supra] is, therefore, of no assistance to the case of the appellant No.1.
41.3. Similarly, in the case of Budhi Singh [supra], the prosecution alleged that the deceased had consumed liquor and thereafter started throwing stones at his father who had called him thief. As the deceased was beating his father, his father called another son, the accused, who came with a small axe and hit the deceased on his head. The medical report indicated that there was only one injury on the head of the deceased and the FIR corroborated the medical evidence. The prosecution could not establish any Page 58 of 61 R/CR.A/1552/2009 CAV JUDGMENT enmity between the parties. In such a case, the Supreme Court was of the view that the act on the part of the deceased in throwing stones towards his father gave sudden and grave provocation so as to reasonably conclude that it was a case of culpable homicide not amounting to murder.
41.4. We have already pointed out that in the case before us, we are unable to accept the statement of the deceased that Narmada water is a Government property and is not owned by anybody's father to be so much provocative so as to cause a fatal injury on the vital part of a person with a heavy weapon knowing well that it would cause his death.
41.5. We, thus, find that the above two decisions do not help Mr. Kanani in any way.
42. On consideration of the entire materials on record, we, therefore, hold that in this case, it is established beyond reasonable doubt that the appellant No.1 was involved in the act of committing murder of the victim. When the appellant No.2 caught hold of the deceased from behind, the appellant No.1 caused death of the victim by inflicting a fatal blow on the head of the deceased.
43. As regards the appellant No.3, we have already pointed out that she had not played any role in committing the murder of the Page 59 of 61 R/CR.A/1552/2009 CAV JUDGMENT victim and the entire responsibility is upon her son, the appellant No.1. We are of the view that she only snatched away the weapon from the hands of the deceased lest any injury is caused to her son. It has not been established even from the evidence of the complainant that she either instigated or played any other role in the act. We, therefore, acquit the appellant No.3.
44. We, further, do not find any ground for conviction of the appellants for offence punishable under section 294(b) of the Indian Penal Code. There is no evidence to show that there were any utterances by the accused persons falling within the purview of offence punishable under section 294(b) of the Indian Penal Code. What were the actual utterances allegedly made by the accused persons have not come from the deposition of the prosecution witnesses.
45. In the result, this appeal is partly allowed. The order of conviction and sentence recorded against the appellant No.1 is confirmed insofar as the offence punishable under section 302 of the Indian Penal Code is concerned. The appellant No.1 is, however, acquitted of the offence punishable under section 294(b) of the Indian Penal Code.
45.1. The appeal of the appellant No.2 is abated as he has died during the pendency of the appeal.
Page 60 of 61 R/CR.A/1552/2009 CAV JUDGMENT 45.2. The appeal of the appellant No.3 is allowed, and the appellant No.3 is acquitted of the offences charged against her in this case. She is already released on bail and her bail bonds stands discharged forthwith.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 61 of 61