(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 Appellant – convict Baloch Hamidkhan Sorabkhan (original accused No.1) has preferred Criminal Appeal No.769 of 2006 and Criminal Appeal No. 863 of 2006 is preferred by Saiyad Nurumiya Kalumia (original accused No.4) and have challenged the judgment and Order dated 20th March, 2006, passed by the learned Additional Sessions Judge, Patan, in Sessions Case No.43 of 2004, by which they came to be convicted for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code and have been sentenced for life imprisonment and fine of Rs. 5,000/- and in default simple imprisonment for one year.
2 The brief facts of the prosecution case are as under:
That one Gajikhan @ Ladubhai Ahmedkhan Musalman (Baloch) lodged a complaint on 23.2.2004 with Patan City Police Station and alleged that his niece, namely, Najmabanu, got married with original accused No.1 Hamidkhan before six years and she was deserted by him since last more than about one and half months on making allegations about her character. Najmabanu happens to be daughter of sister-in-law of the complainant Gajikhan. Since there was a dispute between his niece Najmabanu and accused No.1 Hamidkhan Sorabkhan, the relationship between the families of his brother-in-law and sister-in-law were not cordial with the family of accused No.1 Hamidkhan and they were not on talking terms. It was further alleged by Gajikhan that in the morning hours on the day of incident at about 11’O clock, because of the dispute between Najmabanu and her husband, there was an altercation between wife of complainant and mother-in-law of Najmabanu, that means, mother of the accused No.1.
It was further alleged that on the same day, when he was at his home, at about 8.30 at night along with his wife Hasina, where his brother-in-law Kamalkhan and his wife Farida had come for social visit, appellant No.1 along with his father Sorabkhan Sherkhan, brother Sikandarkhan Sorabkhan and a family friend of accused No.1 to 3, Nurumiya Kalumiya Saiyad (A-4) came near the residence of the complainant and started abusing his brother-in-law Kamalkhan. Pursuant to the use of abusive language by the accused persons, Kamalkhan, came out of the house and asked the accused persons not to use abusive language with regard to his niece Najmabanu. Pursuant to that, the accused persons got excited and attacked Kamalkhan with deadly weapons like knife, dharia, pipe and gupti one on chest and another on abdominal part of the body. Accused No.1 Hamidkhan gave two knife blows on the chest as well as on the abdominal part and accused No.4 Saiyad Nurumiya Kalumiya gave two blows with gupti. When the complainant tried to save his brother-in-law Kamalkhan, Sikandarkhan i.e. accused No.3 gave a pipe blow on the head of the complainant and Nurumiya Kalumiya – accused No.4 gave a gupti blow on the abdominal part to him. Similarly, Sorabkhan i.e. accused No.2 gave a dharia blow with its blunt part on the back side of the deceased. Pursuant to this attack, Kamalkhan fell down and immediately he was taken to the hospital and he succumbed to the injuries and was declared dead when he was taken to the hospital.
3 Pursuant to the complaint lodged by Gajikhan, the investigating agency collected material against the accused persons and having found sufficient material against the accused, filed charge sheet in the court of learned Judicial Magistrate, First Class, Patan, who in turn, committed the case in the court of Sessions Judge, Patan. The charge was framed at Exhibit-11 by the learned Additional Sessions Judge, Fast Track Court No.2, Patan, against four accused. Out of which, the prosecution was successful in establishing its case against accused No.1 and accused No. 4 and by judgment and order, the learned Sessions Court acquitted the original accused No. 2 and 3 i.e. Sorabkhan Sherkhan and Sikandarkhan Sorabkhan from the charges leveled against them.
However, accused No.1 Hamidkhan Sorabkhan and accused No. 4 Saiyad Nurumiya Kalumiya are convicted and sentenced for the offences as stated here-in-above.
4 We have heard Mr. N.K. Majmudar, learned Advocate for the original accused No.1 - Hamidkhan. He has submitted that looking to the evidence emerges from the record of the case, it would be difficult for him to establish that accused No.1 was falsely involved in the case and he was not present at the time of incident. He has further submitted that his case would fall under Exception-
4 of Section 300 of the Indian Penal Code and, therefore, he may not be convicted for the offence under Section 302 of the IPC, but his case would be governed under Section 304 of the IPC and therefor lesser punishment should be awarded to him. In support of his submission, he has submitted that, since there was dispute between the husband and wife, the altercation might have taken place between the family members of the complainant and him and, therefore, in the heat of passion, his client has committed the crime. He has submitted that there was no premeditation and the incident had occurred in the heat of passion upon a sudden quarrel, in which, Hamidkhan has not taken any undue advantage and has not acted in any cruel or unusual manner and,therefore, instead of convicting him for murder, he shall be punished for culpable homicide not amounting to murder and the sentence may be reduced accordingly.
5 Mr. Ekant G. Ahuja, learned Advocate, appearing for original accused No.4 has submitted that Saiyad Nurumiya Kalumiya is not a family member of Hamidkhan and had no intention to kill him. He further submitted that Nurumiya Kalumiya does not know Kamalkhan. He has tried to submit that he has been convicted for the offence under Section 302 read with Section 34 of the IPC and, if, the deposition of witnesses are read, it emerges that there was no common intention of Nurumiya Kalumiya along with original accused No.1 Hamidkhan and his family members, to act in such a manner, which would result into murder of Kamalkhan. He further submitted that, if, the injuries alleged to have been inflicted by Nurumiya are seen, same are not of serious in nature and have not resulted into death of Kamalkhan and, therefore, lesser punishment shall be imposed on him.
6 On the other hand, learned APP Mr. L.B. Dabhi, has supported the reasons assigned by the Trial Court and submitted that looking to the time, place and weapons used by the accused persons, no lenient view may be shown towards the accused persons. He has submitted that the accused persons went near the house of the complainant. There was no need to keep deadly weapons with them and therefor their intention was clear from the beginning itself to attack the family members of the complainant. He has submitted that looking to the weapons, like knife and gupti, used by the accused persons and the injuries on the vital part i.e. on the chest and abdominal part of the body of the deceased, the appellants – accused are not entitled for lesser punishment.
7 We have heard learned Advocates appearing for the respective parties and have gone through the record and proceedings as well as the depositions of the witnesses and documentary evidence proved by the prosecution before the Trial Court.
8 The prosecution examined 14 witnesses. Out of which three witnesses, namely, Gajikhan Ahmedkhan Baloch, PW-1, Exhibit-20; Faridaben Kamalkhan Baloch, PW-3, Exhibit-33 and Havaben Rehmankhan Baloch, PW-6 Exhibit-40, are the eye witnesses to the incident and have fully supported the case of the prosecution. It appears from the deposition of Gajikhan that there was some dispute between his niece and her husband Hamidkhan – accused No.1. It also appears from his deposition that the family of the complainant as well as the families of accused No. 1, 2 and 3 are residing in the same area and within close proximity. It is stated that, on the day of the incident, in the morning, there was some altercation between his wife Hasina and mother of accused No.1 about the strained relationship of accused No.1 and his niece Najmabanu. The incident was over in the morning itself, however, when he was sitting with his brother-in-law and his wife and other two relatives, accused Nos. 1, 2 and 3 came near the house of the complainant and started abusing his brother-in-law Kamalkhan. Since abusing language was being used continuously by the accused persons, Kamalkhan came out of his house and asked them not to use filthy language. Therefore, the accused persons got excited, and pursuant to which, the accused No.1 Hamidkhan gave one knife blow to his brother-in-law Kamalkhan on the left side of his chest and gave another knife blow on the abdominal part. Accused No.2 Sorabkhan gave a dharia blow with its blunt part on the back of the deceased and when the complainant tried to save his brother-in-law Kamalkhan, accused No.3 Sikandarkhan gave an iron pipe blow on his head. Accused No.4 Nurumiya Kalumiya gave two gupti blows to the deceased Kamalkhan. It has come on his cross-examination that, in this incident, the accused side had also lodged complaint against Gajikhan, in which the accused persons sustained injuries.
We are informed by Mr. Ahuja that Gajikhan along with other accused persons were acquitted by the Trial Court from the charges under Section-323 of the IPC.
Though, these witnesses were exhaustively cross- examined, the defence had failed in establishing that the complaint and his party were the assailants in the incident or there was a free fight between the family members. Now, considering the depositions of other eye witnesses, namely, Faridaben and Havaben, we found no contradictions in their depositions with the say of the complainant about narration of the incident and the involvement of the accused persons. It is an admitted position that all the accused persons went near the house of the complainant at about 8.30 p.m. along with deadly weapons and thereafter started abusing the deceased - Kamalkhan. When the deceased came out of his house and tried to stop the accused persons from using filthy language, pursuant to which, accused No.1 and accused No.4 used their deadly weapons like knife and gupti, and each of them gave two blows to the deceased on his vital part. There was no provocation from the side of the deceased or any family members. The intention of the accused persons reaching at the place of the complainant, it cannot be said that, there was a sudden quarrel, in which the accused persons lost their control in the heat of passion. It cannot be said that, the present appellants/ accused persons have not taken undue advantage since the deceased was having no weapon in his hand and the accused persons were having deadly weapons with them. When the accused persons had gone at the residence of the complainant with deadly weapons, an inference can be drawn that there was premeditation of committing the offence. If the injuries found on the person of deceased – Kamalkhan is seen, as described in Postmortem Note – Exhibit-29, which is described by Dr. Kanubhai Mohanbhai Patni, PW-2, Exhibit-26 in his deposition, the deceased sustained four injuries. Out of which, one is of stab wound and three are of incised wounds. All injuries are on the chest starting with sixth inter coastal space to 9th rib, that means, all injuries were on vital part of the person of the deceased. Though, the cause of death is the first injury i.e. a stab wound, just below the nipple on left side, the accused shall not be entitled for any lesser punishment than that of murder since the accused persons did not stop by giving only one blow to the deceased. On seeing the size of knife and the gupti, it cannot be said that the blows given by the accused person on the vital part of the body of the deceased were just superficial. The knife is of 6" in length and 2" in width and having 3 1/2" handle. Similarly, the size of gupti is of 8" length and 1" width and having 5" long handle. This type of weapons, normally, a person would not keep with him if he had no intention to use when such situation arises.
9 In view of the entire case, it cannot be said that, the appellant-accused No.1 Hamidkhan is entitled for lesser punishment of culpable homicide not amounting to murder.
10 As far as arguments advanced on behalf of the original accused No.4 Nurumiya with regard to applicability of Section 34 of the IPC is concerned, we are of the opinion that this accused along with three other persons having deadly weapons like gupti, went at the residence of the complainant and had used his weapon by giving two blows on the deceased and one blow to the complainant. He has taken active part in the incident. It cannot be accepted that Nurumiya had no enmity with the family of the complainant and, therefore, there was no common intention with accused No.1 to done away the deceased. It is well settled principle of law that Section 34 of the IPC is only a rule of evidence and does not create a substantive offfence. This section does not create a distinct offence. It lays down a principle of liability. When two or more persons joined actively in an assault on a third person, they are directly responsible for the injuries caused to the extent to which they have common intention to cause those injuries and what their common intention was, must be gathered from the circumstances. It is true that, to establish a case under Section 34 of the IPC, it requires to be established that there was a pre- arranged plan and act must have been done in furtherance of common intention of all the accused, who have been charged under Section 34 of the IPC. In the present case, as stated here-in-above, accused No. 4, who is a family friend of the rest of the accused persons, goes at the residence of the complainant with deadly weapon like gupti and using it by giving two blows to the deceased and one blow to the complainant, it establishes that, there was premeditation between the accused persons.
11 In view of these facts of the case, the arguments advanced by learned Advocate Mr. Ahuja, that accused No.4 may be convicted for the offence under Section 304 or of a lesser nature and be sentenced accordingly, cannot be accepted, even though, the injuries sustained by the deceased with the gupti, which was used by accused No.4, are not of serious nature.
12 In view of this, we do not find any mistake committed by the Trial Court in sentencing the accused - appellants under Section 302 read with Section 34 of the IPC. Hence both the appeals are dismissed accordingly.
(A.L. DAVE, J.) (A.J.DESAI, J.) pnnair