Gujarat High Court
Hirabhai Bhanabhai Ahir vs State Of Gujarat on 30 December, 1999
Equivalent citations: (2000)3GLR154
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT
1. This appeal is directed against the impugned judgment and order dated 5th July, 1989, rendered by the learned Additional Sessions Judge, Surat, in the Sessions Case No. 221 of 1988. The learned additional Sessions Judge has convicted the present appellant (hereinafter referred to as "Accused")for the offences punishable under sections 302 and 201 of the Indian Penal code and has sentenced him to undergo imprisonment for life for the first offence and rigorous imprisonment for a period of three years for the other offence and to pay fine of Rs. 500/-, in default of payment of fine, ordered to suffer rigorous imprisonment for one month. He however acquitted the Accused Nos. 2-3 of the said offences, read with section 114 of the IPC, giving them benefit of doubt.
2. Briefly stated the prosecution case is that on 28th day of July,1988, at around 1O.OO hours in the morning, one Ramdas, the brother of the complainant Bhikhubhai Ravjibhai had gone to his field in the outskirt of village Sarsana, for the purpose of tethering his cattle. At that point of time, two witnesses, namely, Dilipbhai Namlabhai and Gopalbhai Babubhai Patel had also gone to their respective fields. It is the prosecution case that the cattle of the accused trespassed upon the field of Ramdas, who had driven out the cattle from his field, resulting into the Accused persons reaching there, and the Accused No. 1, asking Ramdas as to why he had driven out his cattle from the field. Ramdas retorted saying that the Accused had formed habit of seeing that his cattle trespassed upon the field, and therefore, they were driven out. The Accused No. 1, therefore, got enraged and ran to beat Ramdas. Ramdas, therefore, ran to escape, the accused chased him and caught him. The Accused Nos. 2-3 caught hold of Ramdas, and the Accused No. 1 gave a stick blow on the head of Ramdas. Ramdas fell down and at that time, both the abovenamed witnesses shouted (for not beating Ramdas), but, the Accused threatened them that they would have to suffer if they did not go away. Both the witnesses therefore left the place. It is the prosecution case that thereafter the Accused persons lifted Ramdas who was lying on the ground and took him to the nearby khadi (creek) and threw him into the waters of the khadi. As the cattle returned home without Ramdas, the complainant started inquiring into the whereabouts of Ramdas, but, he could not trace him out. He, therefore, lodged a complaint with Umra Police Station about missing of Ramdas. The inquiry was continued on the next day when the dead body of Ramdas was found in the khadi near new road in the outskirt of Sarsana village. It was sent for post mortem in the New Civil Hospital, and thereafter, was handed over for the cremation ceremony thereof. At the time of cremation of the dead body, the witnesses Dilipbhai alias Dipakbhai Namlabhai and Gopalbhai Babubhai talked to the complainant about the incident. It is the prosecution case that since the witnesses were threatened by the accused, they could not immediately inform about the incident and Dipakbhai had to go to purchase necessary articles since his wife was pregnant and Gopalbhai had gone to his parents in law's house, as his wife was sick. However, they had the occasion to go to the place of cremation where cremation ceremony of the dead body of Ramdas was in progress and on that occasion they informed the complainant and other persons of the village about the incident in question.
Since it was raining and the night set in, the complaint was given at 11.45 A.M. on the next day i.e. 30/7/1988.
3. With regard to what transpired in the proceeding before the police it has been alleged that head constable Balkrishna Pandurang was on duty as the P.S.O. on 28/7/1988 when the complainant disclosed the facts about his missing brother Ramdas. He recorded statement of one Motibhai. P.S.I. Mr. Shukla started investigation. Dead body of the deceased was sent for post mortem after making inquest thereon. The medical officer was questioned to find out the cause of death. On receipt of complaint on 30/7/1988 as stated above, investigation was entrusted to the senior P.S.I. Mr. Bense who recorded statements of the witnesses, made panchnamas of the person and clothes of accused no. 1 and arrested him at 4.30 P.M. (16.30 hours). Since he was ready to show muddamal stick, the same was accordingly discovered. Further statement of the complainant and statements of other witnesses were recorded. On 31/7/1988 he made panchnama of the person and the clothes of accused nos. 2 and 3 who were arrested at 10.30 a.m. Muddamal articles were sent for forensic examination and upon receipt of the F.S.L. report charge-sheet was presented. The case was committed for trial before the Sessions Court.
4. While denying the charges, all the three accused asserted that they were falsely implicated for the charges on account of enmity.
5. After hearing the prosecution and the defence, the Ld. Addl. Sessions Judge, rendered conviction of the first accused and imposed sentence on him as above and acquitted the other two accused giving them benefit of doubt. That is how the first accused is before this Court by way of this conviction appeal.
6. During the hearing of the appeal, it was brought to the notice of this Court that the State had an occasion to prefer acquittal appeal against the accused no. 2 and 3 while praying for condonation of delay in Criminal Misc. Application No. 2633 of 1989 in Criminal Appeal No. 688 of 1989. The Bench (Coram : A.P. Ravani and V.H. Bhairavia, JJ.) passed following order on February 14, 1990 :-
"There is a delay of 24 days in filing the appeal. Ordinarily, we would have issued notice/rule and after hearing the respondents-accused, we might have condoned the delay, but in the facts of the case, we do not find substance in the main matter. Therefore, we think that issuance of the notice/rule to the respondents-accused would be an exercise in futility and would result into unnecessary and avoidable hardship and expenses to the respondents-accused. In above view of the matter, we have heard the learned Add. P.P. for the State as regards the merits of the main matter. The view taken by the learned Addl. Sessions Judge as regards the evidence of two eye witnesses and believing their deposition in part as far as the same relates to the accused no. 1 alone is concerned, is possible. Once the view taken by the learned Addl. Sessions Judge is possible, it would not be just and proper to interfere with the judgment and order of acquittal passed by the trial Court. In this view of the matter, even if the delay is condoned and the matter is required to be considered on merits, appeal against the judgment and order of acquittal of respondent nos. 1 & 2 herein (original accused nos. 2 & 3) would have been dismissed. In the above view of the matter, considerations of substantial justice require that the application for condonation of delay be rejected. Hence, the same is rejected."
In the background of acquittal of the accused no. 2 and 3 Mr. K. J. Shethna, learned counsel for the accused has submitted that there is no reason to take a different view of the prosecution evidence qua the first accused if the same has not been found trustworthy qua accused no. 2 and 3. According to his submission the prosecution story is so connected and inseparable one that if it is found to be not trustworty regarding accused no. 2 and 3, it cannot be dissected for holding it acceptable against the first accused. For that purpose he read the evidence of two eye witnesses as also the medical evidence so as to canvass the maxim "Falsus in uno falsus in omnibus" meaning thereby that false in one particular would mean false in all. At this very stage it may be noted that in Abdul Gani v. State of M.P. reported in AIR 1954 S.C. 31 this principle has been succinctly stated by the Supreme Court in following terms :-
"Though the prosecution witnesses have not told the whole truth and though it is not possible to get an absolutely true picture of the events from their evidence, where it is not possible to say that the prosecution case is a complete fabrication and where it appears that certain murders have resulted from a riot in which some at least of the several accused have taken part, the Court should make an effort to disengage the truth from the falsehood and to sift the grain from the chaff. It is an error to take an easy course of holding the evidence discrepant and the whole case untrue.
Of course, the story given by the eye witnesses has to be carefully scrutnized and unless it can be said with reasonable certainty that a certain person took part in the riot, the benefit of doubt has to be given to him."
There is then a line of decisions indicating that the rule covered by the maxim is neither sound rule of law nor a sound rule of practice. It is, therefore, the duty of the Court to scrutinise the evidence carefully and separate the grain from the chaff. It is the substratum of the prosecution case or the material part of the evidence which would merit consideration. Reference in this connection may be made to a recent decision on the point. It is in the case of State of Haryana v. Tek Singh reported in (1999) 4 S.C.C. 682. Following observations of the Court appearing in para. 6 of the citation would assume importance :
" ...... Further, the Court while appreciating the evidence ought to have kept in mind and visualised the situation at the time of occurrence of the incident. The evidence of the witness should be appreciated by keeping the ground reality and the fact situation in mind. It is also established law that even with regard to the interested witness, it is the duty of the court to separate the truth from falsehood and the chaff from the grain. In view of the close relationship, witnesses naturally would have a tendency to exaggerate or add facts but while appreciating the evidence exaggerated facts are to be ignored unless it affects the substratum of the prosecution story. In the case of State of U.P. v. M.K. Anthony (1985) 1 SCC 505 : 1985 SCC (Cri.) 105 : AIR 1985 SC 48 this Court pointed out that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, a hypertechnical approach in perusal of the evidence should be avoided. The Court pertinently observed : (SCC pp. 514-15 para. 10) :
"Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer."
7. It is now time to find out if the prosecution has established beyond reasonable doubt as to whether Ramdas met with homicidal death and also whether the accused in this appeal is responsible for his death or atleast the hurt. Reference in this connection has been made to the medical evidence which consists of oral evidence of Dr. Smt. Meghrekha Hasmukhbhai P.W. 3 exh. 16 and post mortem report exh. 17. It would appear from this evidence that deceased Ramdas Ravajibhai Patel had following external injuries :-
i. C.L.W. over right side of the forehead, oblique 5 cm. x 1 cm. x subcut deep.
ii. C.L.W. over right side of upper lip 1 cm. x 0.5 cm. x subcut deep.
The internal injuries noticed in the post mortem are :
Depressed commuted fracture of occipital bone present. Laceration of the brain tissue seen present in the fractured area. Extradural hoematoma present in the form of clotted blood over occipital region. Subdural haematoma present in the form of clotted blood 1/4th cm. thick over occipital region. Conization of brainstem with bosal haemotoma at the base of the skull brain and maninges are pale.
Now the medical witness has clearly deposed that the death of Ramdas was caused due to head injury and shock as also bleeding. In the post mortem report the cause of death is stated to be shock and haemorrhage as a result of head injury. In order to confirm the cause of death the investigating agency sent a questionaire to the medical witness who has as per exh. 19 opined that the death of deceased could be caused as a result of blow of hard and blunt substance (on the head), that the head injury was anti-mortem, that the dead body fell into the creek waters that is to say Ramdas was not alive when his body fell into the creek waters. The deceased did not show any symptom of swallowing water after he sustained injury/injuries and the death has not been caused on account of drowning. In her cross-examination the medical witness has frankly admitted that she was knowing the answers to the questions when she was performing the post mortem, but in order to get assurance she found it necessary to obtain further expert opinion and, therefore, she did not give answers to the questions on 29/7/1988 itself when the post mortem was performed. It would, therefore, clearly appear that Ramdas died unnatural death although which injury has resulted into the death might further be noticed from the expert evidence. The medical witness has admitted in her cross-examination that the external injuries noted above were simple in nature and neither could cause death in the ordinary course of nature. She has admitted that if any hard substance has come into severe contact with the occipital bone part of the head, the fatal injury might result. In reply to the question placed by the trial Court she has asserted that the aforesaid external injuries or either of them and internal injuries were not possible by one blow. It would, therefore, clearly appear that the finding of the Ld. Addl. Sessions Judge to the effect that Ramdas died homicidal death appears to be quite in consonance with the medical evidence, but IT HAS HOWEVER TO BE NOTED WITH CARE THAT WHEREAS THE INTERNAL INJURIES AS STATED IN THE POST MORTEM REPORT WERE CORRESPONDING TO THE EXTERNAL INJURIES/EXTERNAL INJURY IT IS NOT MADE CLEAR WHETHER THE FIRST EXTERNAL INJURY ON THE RIGHT SIDE OF THE FOREHEAD CAN BE SAID TO BE CORELATED TO THE INTERNAL INJURY WHICH HAS RESULTED INTO THE DEATH OF RAMDAS. The medical evidence clearly reveals that internal injury cannot be corelated with the external injury. However, the fact regarding the blow appearing to have been given on the vital part of the body, namely the forehead, cannot be overlooked. Therefore, the circumstance which would assume importance while finding out nature of offence keeping in mind the prosecution evidence of eye witnesses is that there is atleast one blow which has been given on the right side of forehead of Ramdas.
8. Before the ocular account is taken into consideration it would be appropriate to deal with belated filing of FIR in respect of the incident alleged by the prosecution as can be seen from the prosecution story. The FIR is at exh. 14. Now this FIR is with regard to missing of Ramdas as informed by his brother Bhikhubhai Ravajibhai Patel P.W. 2 exh. 13. He was informed by one of the village inmates that his brother Ramdas did not return home although the cattle he had taken to the field came back. He has also stated that according to his information his brother had drowned into the water flow. This information came to be given at about 6 O'clock in the evening on 28/7/1988. At this point of time the complainant Bhikhubhai Ravajibhai did not know about what in fact happened to his brother Ramdas. It was, therefore, quite natural to him to inform the police about his missing brother. This is clearly not an FIR about commission of cognizable offence. Therefore, exh. 15 dated 30/7/1988 has been treated to be the FIR given by the aforesaid complainant and according to this FIR the complainant came to be informed at the time of cremation of dead body of Armadas, by Dipakbhai Namabhai (Dilipbhai Namlabhai) that his brother had driven out cattle of Hirabhai Bhanabhai (the accused no. 1) of village Bhimrad from his field (the field of Ramdas), and that getting enraged the said accused had quarrelled with Ramdas and during such quarrel he had given a stick blow on the head of Ramdas and had thrown the dead body into the waters. He was given similar information by his village inmate Gopalbhai Babubhai. He has explained the delay of lodging the FIR by saying that he remained busy in the cremation ceremmony of dead body of Ramdas till upto 11 O'clock at night and since it was raining and late at night and no vehicle was available he gave the FIR on the next day (at about 11.45 a.m.). It might be noted at this stage that the facts about some verbal exchange as well as giving of a stick blow on the head of Ramdas have been clearly set out in the FIR exh. 15 and the prosecution story has remained consistent more or less with regard to the first accused giving a stick blow on the head of Ramdas, who ultimately died. At this very stage it will have to be borne in mind that the FIR also disclosed verbal exchange between Ramdas and the first accused whereas there is no mention with regard to the involvement of other two accused who have been acquitted by the trial Court and whose acquittal has been upheld by summmary rejection of acquittal appeal as per the order quoted hereinabove. The complainant P.W. 2 exh. 13 has testified to the facts of the prosecution case while also deposing that it was heavily raining and, therefore, he felt that Ramdas might have drowned into the flowing waters. On the next day when a search was made at around 7 to 7.30 O'clock in the morning dead body of Ramdas could be spotted in the creek (Khadi) nearby Sachin new road side. Police was informed about the find of dead body by one Motibhai. Inquest Panchnama and the Panchnama with regard to the place where the dead body was found were made. On the next day umbrella and scythe (Dhariya) belonging to deceased Ramdas were found from the waters. It is in the examination in chief of this witness that the other two accused also were brought into picture by saying that they were also by the side of the first accused and they cought hold of Ramdas while first accused approaching the deceased from behind gave a stick blow on the head. Ramdas, therefore, fell down and all the three accused, while taking away Ramdas towards the creek threatened the two eye witnesses of their life. In his cross-examination the complainant admitted that both the aforesaid eye witnesses were residing in the same village, that the village was inhabited by around 150 to 200 persons, that though the eye witnesses were acquainted they were neither his friends nor relatives. He has explained that he was disturbed and, therefore, he did not go to the police station on the same night. However, he felt that his brother was killed when he saw the dead body. He has been confronted with certain contradictions and omissions. However, the facts with regard to he having been informed at the time of cremation by the aforesaid two eye witnesses regarding accused no. 1 giving one stick blow while he had verbal exchange appear to have remained consistent.
9. It would, therefore, appear from the evidence of complainant that he acted in giving information to the police with reasonable promptness although there was delay of around two days in giving FIR exh. 15. Mr. Shethna, learned counsel apearing for the appellant has drawn our attention to a decision of the Hon'ble Supreme Court in the case of Ram Kumar v/s. State of M.P. reported in AIR 1975 S.C. 1026 in respect of omission of important facts in the FIR which was filed late. He referred to observations appearing in para. 9 of the decision, which would read as under :-
"9. No-doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23/3/1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."
Mr. Shethna, however, fairly drew our attention to a later decision in the case of Ram Chander v. State of Haryana reported in AIR 1981 S.C. 1036 in which aforesaid decision has been distinguished. Para. 9 also in this decision would need reproduction :-
"9. Shri Bhagat very ingeniously argued that the evidence of P.Ws. 6 and 9 could yet be acted upon to the extent their evidence was substantiated by the first information report given by P.W. 2. When we pointed out that neither P.W. 8 nor P.W. 9 was the author of the first information report and, therefore, the report could not be used to corroborate their evidence. Shri Bhagat suggested that we could do so by invoking the provisions of Section 11 of the Evidence Act. He relied upon the following observations of Beg J. in Ram Kumar Pande v. The State of Madhya Pradesh (1975) 3 SCR 519 at p. 522 : (AIR 1975 SC 1026) :
"No doubt, an F.I.R. is a previous statement which can, strictly speaking be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the ocurrence, so far as they were known up to 9.15 p.m. on 23/3/1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow of Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."
Beg, J. apparently had the first part of Section 11 in mind and though that the presence of the daughters at the scene was inconsistent with the failure of the father to refer to their presence in the first information report having regard to the circumstances under which the report must have been made. Even assuming that under certain circumstances it is permissible to use the first information report under the first part of Section 11 (we say nothing about the correctness of the view), there is in the present case no question of invoking the first part of Section 11, which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case. Nor do we think that the first information report can be used by resort to the second part of Section 11. The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statements of persons who are called as witnesses. These provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness, on the ground that such former statement renders the evidence highly probable or improbable. We can do no better than to refer to Stephen, the framer of the section who said : "It may possibly be argued that the effect of the second paragraph of Section 11 would be to admit proof of such facts as these (viz. statements as to facts by persons not called as witnesses; transactions similar to but unconnected with the facts in issue; opinions formed by persons as to facts in issue or relevant facts). It may, for instance, be said : A (not called as a witness) was heard to declare that he had seen B commit a crime. This makes highly probable that B did commit that crime. Therefore, A's declaration is a relevant fact under Section 11. This was not the intention of the section as is shown by the elaborate provision contained in the following part of Chapter II (Ss. 31 to 39) as the particular classes of statements which are regarded as relevant facts either because the circumstances under which they are made invest them with importance, or because no better evidence can be got. The sort of facts which the section was to include are facts which either exclude or imply more or less distinctly the existence of the facts sought to be proved". We, therefore, do not think that Section 11 may be invoked in the present case, in the manner suggested by the learned counsel. In the result we accept the appeal, set aside the conviction and sentence and direct the appellant to be set at liberty forthwith."
He then made a reference to a decision in the case of State of M.P. v. Dhirendra Kumar reported in AIR 1997 S.C. 318. In this case also reference was made to Ram Kumar's case (supra), but on facts Ram Kumar's case was distinguished while saying that the Court could not agree with the submission that Ram Kumar's case would require the Court to disbelieve the evidence of PWs 1 and 2 regarding dying declaration of the deceased only because the FIR did not mention about it. The Court noticed settled proposition of law that FIRs are not taken as encyclopaedia and omission of a fact therein, even if material, cannot by itself make the witness deposing about that fact unbelievable at that point.
In so far as present case is concerned, the prosecution story touching the involvement of accused nos. 2 and 3 shall have to be accepted as not established beyond reasonable doubt for upon appreciation of evidence not only the learned trial Judge but also this Court as per the order reproduced hereinabove had taken that view of evidence. Nonethe less so far as the prosecution story saying about giving of one stick blow on the head of Ramdas by accused no. 1 is concerned, the consistency thereof is not found to be impeachable. We have also stated about settled legal propositions with regard to separating the truth (grain) from the falsehood (chaff) hereinabove. We have, therefore, to go to the evidence of the eye witnesses who have been believed in so far as the first accused is concerned. They have been examined respectively at exhs. 29 and 30 as P.W. 7 and P.W. 8. Dilipbhai Namlabhai exh. 29 has testified that when he was returning from his field at around 10.30 to 11.00 O'clock in the morning of 28/7/1988 he was accompanied with another eye witness Gopalbhai. Ramdas was present in his field which is situated nearby the fields of two eye witnesses. They saw first accused asking Ramdas who had driven out his buffalo (cattle) and Ramdas replied that accused was frequently leaving his cattle into his field (field of Ramdas) and, therefore, he had driven out the cattle from his field. Then comes the story with regard to accused no. 1 having been accompanied with other two accused persons and hurling of abuses by accused no. 1 to Ramdas and Ramdas running away from the field when he saw the accused rushing to him to beat him. The witnesses asked the accused persons to stop and to leave Ramdas. But they did not, and instead other two accused caught hold of Ramdas and first accused gave a stick blow on the back side of head of Ramdas. Ramdas, therefore, fell down. The accused persons then threatened the witnesses to go away else they (accused) would see them. Thereafter, the accused persons had lifted Ramdas and proceeded towards the creek. The witnesses went home. What happened thereafter to the witnesses has been set out in the opening part of the judgmment while narrating prosecution story. The witness, however, in his cross-examination has testified that the Nala (creek) was at a distance of about 50 to 60 ft. from his field. He has been confronted with several omissions which would assume importance with regard to the prosecution case concerning the other two accused persons. He has, however, admitted that when the accused persons lifted Ramdas, Ramdas was unconscious and he did not feel that Ramdas would be thrown into the Nala (creek), but he felt that Ramdas sustained serious injury as he was unconscious. He denied the suggestion that he faced a prohibition case and that he was dealing in illicit liquor and was giving false evidence at the instance of the police. Similar is the tenor of evidence of another eye witness Gopalbhai Babubhai P.W. 8 exh.30. What is important is that that part of the prosecution story stated by this witness which relates to the involvement of other two accused is found to be not acceptable upon appreciation of evidence of both these witnesses. However, other part of the prosecution story which speaks about accused No. 1 having given stick blow on the head of Ramdas has been accepted by the Ld. Addl. Sessions Judge, but has been sought to be assailed in this appeal. On going through the evidence of both the eye witnesses it would appear in the context of its scrutiny qua the other two accused by the Ld. Addl. Sessions Judge as well as by this Court that the same will have to be considered with utmost care and caution. Some corroboration to the aforesaid separated part of the prosecution story is obviously needed. We have already dealt with the medical evidence, which prima-facie corroborates the ocular account about giving of one stick blow on the forehead of Ramdas. It has been submitted on behalf of the accused that it is not in the prosecution evidence that accused no. 1 was head strong or atleast known to be so head strong that two eye witnesses would have yeilded to the alleged threat having been given by the first accused for not giving the information with regard to what they had seen at the earlist point of time. However, it would clearly appear from the evidence of these two witnesses that there were number of circumstances which might have intervened so as to prevent them from disclosing the facts of the incident which they had the occasion to witness. It is an admitted fact that it was raining on that day. It also appears from the evidence of the eye witnesses that they did not know that Ramndas died. In fact they have come out with a positive story of Ramdas having become unconscious when he fell down at the time when the stick blow was given by accused no. 1 on the head of Ramdas. It is only when they had an occasion to go to the place of cremation or around that time that they came to know about Ramdas having died. It is true that the eye witnesses do not appear to be giving complete rendition of the incident as can be seen from the other circumstances, namely find of umbrella and Dhariya belonging to Ramdas indicating that Ramdas was having with him a Dhariya and an umbrella at the time of incident in question pointing at the probability of some resistence on the part of Ramdas at the time of incident. Even then the ocular account of the eye witnesses with regard to accused no. 1 giving stick blow on the head of the deceased would merit acceptance not only on account of that fact getting corroborated from the medical evidence, but also on account of that fact getting corroboration from the discovery of Muddamal stick, the Panchnama in respect of which appears at exh. 26. The Panch witnesses are Shantilal Jivanji Patel and Ishvarbhai Mithabhai Patel. Ishvarbhai Mithabhai Patel has been examined as P.W. 6 at exh. 25. The evidence of this panch witness is not commented upon. He appears to have withstood the cross-examination. It has appeared from the evidence of the panch witness as well as Panchnama that the Muddamal stick was seized at the instance of the accused and was sent for its forensic examination. The report of the Senior Scientific Assistant from Forensic Science Laboratory has been placed in evidence with communication exh. 37. Sample no. 1 is Muddamal stick and it contained light blue and earthern type stains and the analysis revealed that it contained blood. Exh. 38, the report of Serologist further indicates that the blood was human blood, but its group could not be ascertained. It has been submitted by Mr. Shethna that this evidence cannot be accepted because since it was admittedly raining at the time of alleged incident, even if the stick had got blood, it would have been washed off. However, find of human blood on the Muddamal stick is a hard fact and some how or the other it remained stuck to the Muddamal stick. This fact would obviously provide a connecting link so far as the external injury on the forehead of Ramdas is concerned.
10. It will not be out of place at this stage to have a glance at the inquest Panchnama. It appears at exh. 8. Ishvarbhai Babubhai Patel and Gosaibhai Nathubhai Patel are the Panch witnesses. The Panchnama has been received in evidence by consent. What is important to be noticed from the inquest Panchnama is that around 1/2 to 3/4th to an inch long wound has been noticed on the middle of the head of Ramdas. The wound appeared to be bleeding. It also disclosed small cut wound on the right side of the upper lip. It has been submitted by Mr. Shethna that location of the wound on the head as stated in the inquest Panchnama exh. 8 is different from the location of the external injury no. 1 as appearing in the medical evidence. The external injury in the medical evidence is on the right side of the forehead of the deceased; whereas the external injury as noticed in the inquest Panchnama is on the middle of the head ( ). However, if one keepsin mind the perception with regard to describing location of wound, it has to be held that the wound on the head of dead body of Ramdas described in the inquest Panchnama and the external injury described in the medical evidence would obviously tally. Right side of the forehead can as well be described as the middle of the head if the dead body is seen from the side. Be that it may, the conclusion that this injury in the medical evidence tallies with the one described in the inquest Panchnama exh. 8 is inescapable, since there is no other external injury which has been noticed either in the medical evidence or in the inquest Panchnama. Therefore, this is one more piece of corroboration to the ocular account rendered by the two eye witnesses.
11. On the scrutiny of the evidence as a whole as also of the eye witnesses in particular, it would clearly appear that giving of one stick blow on the head of Ramdas by accused no. 1 is clearly established although the manner in which the incident occurred is not established beyond reasonable doubt. This would assume importance for the purpose of finding out the nature of offence attributable to the first accused.
12. Following conclusions, therefore, clearly emerge from the prosecution evidence :-
I. The fact that accused no. 1 gave one stick blow at the time of the incident on the forehead of Ramdas is established beyond reasonable doubt.
II. The fact that Ramdas died unnatural death on account of the internal injuries as noted from the medical evidence is also established beyond reasonable doubt.
III. The co-relation of external injury no. 1 on the right side of the forehead of deceased Ramdas which corroborates the prosecution version about accused no. 1 having given a stick blow on the head of Ramdas is also established beyond reasonable doubt. It has to be considered as to what is the nature of that injury and whether it could be said beyond reasonable doubt that accused no. 1 intended to cause death of Ramdas or whether with such knowledge he gave the blow in question.
IV. Internal injury as appearing in the medical evidence and noted hereinabove is a corresponding head injury. However, there is apparently no co-relation between the external injury attributable to the first accused and the internal injury which resulted in the death of Ramdas. Hence, intention to cause death by giving a stick blow or knowledge about giving of such stick blow as would result into death of Ramdas, on the part of the accused cannot be said to have been established beyond reasonable doubt and to that extent the conclusion of Ld. Addl. Sessions Judge cannot be accepted.
V. The prosecution has failed to explain find of Dhariya belonging to Ramdas from the waters of the creek from where his dead body was found and it has to be assumed that Ramdas must have been having with him Dhariya at the relevant point of time, and VI. Prosecution has failed to bring to light the actual manner in which the incident must have occurred. The external injury no. 2 would assume importance in that respect.
13. Question is as to what is the nature of offence attributable to the first accused. It has been submitted on behalf of the prosecuting agency that since the first accused was involved in giving stick blow on the head atleast it should be inferred that he must be in knowledge that such an act on his part might result in death of Ramdas. Mr. Patel, Ld. A.P.P. canvassed a decision in the case of Joginder Singh v. State of Punjab reported in JT 1995 (6) S.C. 81 in support of his submission that in a case where death is alleged to have been caused by a stick blow on head and where eye witness account is consistent with the medical evidence in that respect conviction and sentence would merit acceptance. He then referred to another decision in the case of Shri Sat Pal v. The State of Punjab reported in JT 1995 (6) S.C. 379 for the similar proposition coupled with assault with deadly weapons such as Kulhari, while also relying upon the observations that delay in lodging the FIR should be dealt with in the light of the circumstances disclosed from the story. He also referred to State of Haryana v. Bhagirath and others (1999) 5 S.C.C. 96 explaining the meaning of "reasonable doubt". The factual matrix in so far as the present case is concerned might be noticed for distinguishing the facts in these decisions. In reply, the above circumstances have been reiterated for holding only minimum liability for the first accused. In this connection, we had an occasion to draw the attention of Ld.A.P.P. as well as Ld.counsel for the appellant to a couple of decisions of the Apex Court from which we are in a position to draw an appropriate conclusion with regard to the nature of offence proved to have been committed by the 1st accused.
14. First one is in the case of Mohinder Singh v. State reported in 1985 Criminal Law Journal 1903. In that case accused was convicted u/S. 302 of the IPC by the trial Court. The High Court upholding guilt of the accused modified the conviction to one u/S. 304 Part II and sentenced him to R.I. of 10 years and fine. The alibi set up in defence by the accused - appellant was found not acceptable. The evidence given in the case was of a general type and it was difficult to corelate the blow given by the appellant with the internal injury which according to medical evidence led to death. In the background of such brief facts it has been held by the Apex Court that the accused could be convicted u/S. 325 of the IPC. The second one is in the case of M/s. Formina Sebastio Azardeo v. State of Goa, Daman & Diu reported in AIR 1992 S.C. 133. That was the case of the accused tying the deceased to the electric pole and assaulting him with an intention to teach him lesson for spreading of scandalous information concerning the alleged illegitimate intimacy between the accused. There was no evidence as to any accused having expressed intention to kill deceased or any of them having been armed with deadly weapon. In the background of such brief facts it has been held that the offence would be also falling under clause (viii) of Section 320 of the IPC and not Section 302 of the IPC. We might reiterate at this stage that in the present case the medical evidence of P.W. 3 Dr. Smt. Meghhrekha clearly indicates that the first external injury could be said to be simple hurt inasmuch as it would never result into death. However, it would clearly appear to have been caused on the vital part of the body. In the result there is little difficulty in coming to the conclusion that the offence attributable to the first accused could be one u/S. 325 of the IPC read with clause (viii) of Section 320 thereof. The conviction of the accused appellant u/S. 302 of the IPC shall, therefore, have to be altered to one u/S. 325 of the IPC.
15. In so far as offence u/S. 201 of the IPC is concerned, the same shall have to be set aside bearing in mind the fact that prosecution story leaving Ramdas when he fell down upon giving of stick blow by accused no. 1 has not been accepted by the trial Court as well as by this Court as can be seen from both the orders. If that is so, it woud be difficult to accept such a story qua the first accused. In fact, role of accused no. 1 after he gave the stick blow has become a matter of inference. All the possibilities including possibility of accused no. 1 having left the place seeing Ramdas falling on the ground cannot be ruled out. Hence, bearing in mind all the circumstances of the case, conviction of the accused no. 1 u/S. 201 of the IPC is on the face of it is not sustainable in view of what is stated above.
16. We have heard the learned counsel for the appellant as well as Ld. A.P.P. on the question of sentence. It is not in dispute that the appellant has already undergone sentence to the extent of two and half years. Maximum substantive sentence that could be imposed u/S. 325 of the IPC is imprisonment of seven years. At the same time the accused would also be liable to sentence of fine. Nearly nine years have passed since the appeal has been filed. The accused has been enlarged on bail duing the pendency of this appeal obviously on account of passage of time. While imposing sentence this aspect would assume importance. At the same time the fact that Ramdas died also cannot be ignored while fixing the amount of fine.
17. In the result, following order will serve the ends of justice :-
This appeal is partly allowed, in asmuch as conviction of the appellant - accused no. 1 Hirabhai Bhanabhai Ahir is altered from section 302 of the IPC to one u/S. 325 of the IPC, while setting aside his conviction and sentence u/S. 201 of the IPC. His sentence of life imprisonment is hereby set aside and altered to the imprisonment already undergone (nearly two and half years), but he is directed to pay fine of Rs. 11,000/- (Rupees elevan thousand only) by depositing the said amount in the trial Court within one month from today, failing which he shall undergo further rigorous imprisonment for two and half years. As and when the amount of fine is deposited, Rs. 10,000/- (Rupees ten thousand only) out of the fine amount of Rs. 11,000/shall be paid to the heirs of deceased Ramdas by way of compensation. Upon depositing the fine, bail bonds shall stand cancelled.