(Per : HONOURABLE MR.JUSTICE A.J.DESAI) 1. These two appeals have been preferred before this Court by the appellants, who are nephew and maternal uncle respectively, convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo simple imprisonment for life and to pay fine of Rs. 1,000/-, in default, simple imprisonment for one month in Sessions Case No. 15 of 2006 by judgment and order dated 09.05.2006 rendered by learned Additional Sessions Judge and Presiding Officer, Second Fast Track Court at Deesa, District- Banaskantha.
2. In the incident, a pregnant step-mother of Bharatbhai Ishvarbhai Parmar (in Criminal Appeal No. 1026/2006) has been killed and the incident has been witnessed by father of (accused-appellant) Bharatbhai and husband of the deceased.
3. The facts of this case are as under :-
3.1) That one Ishvarbhai Magaji Parmar, resident of Dhanera, District-Banaskantha lodged a complaint on 21.11.2005 at about 19.00 hours with Police Sub-Inspector, Dhanera and alleged that there were some disputes between himself, his first wife-Reshamben, Bharatbhai i.e. (A-1), Aayadanbhai (A-2) and his second wife Maniben. It was alleged in the complaint that all the family members were residing together. However, since last one month his first wife Reshamben and Bharatbhai were demanding for separate residence in which his brother-in-law Aayadanbhai (A-2) was supporting Reshamben and Bharatbhai being real brother of Reshamben.
3.2) Prior to the incident, i.e. 20.11.2005, at about 21.00 hours, his first wife Reshamben and her brother Aayadanbhai (A-2) along with other relatives came to his residence, and at that time Bharatbhai and Reshamben demanded separate residential house from the complainant. An altercation took place between the complainant and his second wife (Deceased-Maniben) and in that incident, his son Bharatbhai, and Aayadanbhai gave threat to them that they will kill him as well as his wife Maniben.
3.3) It was further alleged in the complaint that at about 7.00 O'Clock, in the evening, when he along with his second wife Maniben, had left the house for milching buffaloes, which were grazing in their field, his second wife Maniben was walking ahead of him and when she reached near the cremation ground, Maniben shouted. Pursuant to which, with the help of battery, which was in his hand, he found his son-Bharat along with his maternal uncle-Aayadanbhai standing there. He saw the thick wooden log in the hand of his son Bharatbhai, and his brother-
head and third blow was given on the wrist of Maniben. Before he reaches at the place of attack, his son Bharatbhai and his brother-in-law Aayadanbhai ran away immediately. He found that on the head of his wife lot of blood was oozing out. He immediately informed his relatives, and thereafter lodged a complaint with the police.
4. Pursuant to the complaint lodged by Ishwarbhai Parmar against his son and brother-in- law, the police personnel started investigation and after having found sufficient material, filed a charge-sheet in the Court of learned Judicial Magistrate, First Class at Dhanera, who in turn committed the case in the Court of Sessions Judge at Palanpur. The case was committed to the Additional Sessions Judge at Deesa, having jurisdiction to try the offence, who framed charge at Exhibit-8 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Both the accused denied the charges framed by the Sessions Court and requested for trial. The prosecution after having been examined ten witnesses and scanned several documentary evidence, was successful in proving the charges, levelled against the appellants- accused. After examining the deposition and various documentary evidence properly proved by the prosecution, the trial court convicted the accused persons and sentenced for the same, as stated hereinabove:
5. Bharatbhai Iswarbhai Parmar, who is appellant in Criminal Appeal No. 1060 of 2006 is represented by Mr. Mrudul M. Barot and Ms. Archana U. Amin has represented the case of Aayadanbhai Bhurabhai Parmar, who has filed Criminal Appeal No. 1026 of 2006 and Mr. N.B. Soni, learned APP has represented State of Gujarat in both the appeals. Since the appeals are arising from the common judgment dated 9.5.2006 delivered in Session Case No. 15 of 2006, they are decided by this common judgment.
6. Mr. Barot, learned Advocate appearing for the appellant-original accused No. 1 Bharatbhai has assailed the reasons assigned by the trial court for convicting Bharatbhai (A-1), on the ground that it is a case of sole interested eye witness, who is husband of deceased-Maniben, who lost her life in the incident and therefore careful scrutiny of his testimony is necessary. He submitted that his presence at the scene of offence is doubtful since his behaviour in not trying to rescue the deceased from the attack, is not a natural one. He further submitted that eye witness Ishwarbhai as per his own say, was hardly 20-25 feet away from his wife when the alleged incident took place, but he did not try to save her, which cannot be believed a normal conduct. He has further submitted that as per the cross- examination of Ishwarbhai, he has deposed that he had reached at the place after the incident was over and therefore, he is not an eye witness as claimed by him. He has further submitted that in the winter season looking to the time of incident, it was not possible to identify the accused persons, as claimed by him. He has submitted that the injuries sustained by the deceased are contrary to the say of this witness and contrary to deposition of Medical Officer, who has performed the post mortem and had prepared the post-mortem notes. He has submitted that except this sole eye witness, who is husband of the victim, no other evidence is available on the record, which would lead to the conclusion that the appellant-accused was culprit in the incident and therefore, the appellant-accused may be acquitted from the charges of Section 302 read with Section 34 of the Indian Penal Code.
7. Ms. Archana U. Amin, learned Advocate appearing for the appellant-original accused No.
2 Aayadanbhai has adopted the arguments of Mr. Barot, as far as assailing the deposition of eye- witness-Ishwarbhai is concerned. However, she has admitted that Aayadanbhai, who is maternal uncle of Bharatbhai has not played any role in the incident and role attributed to him is only of exhortation by using the words “give blow and run away as fast as possible”. She has submitted that there was no common intention between the appellant-accused No. 1 and accused No. 2- Aayadanbhai, so as to hold him guilty for the offence under Section 302 read with Section 34 of the Indian Penal Code. She has further submitted that there was no intention on the part of Aayadanbhai to see that Maniben shall be done to death.
7.1). In support of her submissions, she has relied upon the decisions in case of Mohan Singh and another Vs. State of Madhya Pradesh reported in AIR, 1999(SC)883 and Idrish Bhai Daudbhai Vs. State of Gujarat reported in AIR, 2005 (SC) 1067.
7.2). Relying upon these two judgments, she has submitted that the Hon'ble Apex Court had acquitted the accused of the charges under Section 302 read with Section 34 of the Indian Penal Code, wherein the accused had made exhortation by using words “maro-maro” and the Hon'ble Apex Court has held that if a person make exhortation that itself may not give rise to an inference of sharing a common intention. She, therefore, prayed that the appellant-accused may be acquitted of the charges of Section 302 read with Section 34 of the Indian Penal Code.
8. On the other side, Mr. N.B. Soni, learned APP has supported the case of the prosecution and submitted that the reasons assigned by the trial court for convicting the appellants are well founded and the trial Court has properly appreciated the case of the prosecution. He has further submitted that no interference is called for by this Court in a well reasoned and well founded judgment of the trial court.
9. We have heard learned Advocates appearing for the respective parties and we have gone through the records and proceedings of the case.
10. The prosecution examined ten witnesses and proved several documentary evidence like post-mortem notes, panchnama of discovery of weapon used by accused No. 1, arrest panchnama and report of Forensic Science Laboratory.
11. It is true that it is a case of sole eye witness but in our opinion it is supported by corroborative evidence in form of discovery of weapon at the instance of accused and Bharatbhai having blood-stains of the deceased. The blood- stains which were found from the pant of accused No. 1, were of the deceased etc. The most important aspect of the matter is to decide, whether Ishwarbhai Magaji Parmar-complainant is an eye-witness or not. As stated hereinabove, Ishwarbhai Magaji Parmar is husband of deceased pregnant lady though might be a second wife but is also father of accused No. 1.
12. Now considering the deposition of Ishwarbhai Magaji Parmar, who is examined by the prosecution as PW-1 at Exhibit-13, it appears that he got married to Reshamben at least before 20 years. Out of this wedlock, Bharatbhai was born. Since Reshamben was not continuously living at the matrimonial home, Ishwarbhai married Maniben and she was residing with Ishwarbhai as his second wife. He married to Maniben after about 12 years of the first marriage. Out of wedlock with Maniben, there are four children, two sons and two daughters. Subsequent to marriage with Maniben, Ishwarbhai called Reshamben at his home, where he was living with Maniben along with her son Bharat. Therefore, it appears that Ishwarbhai was residing with two wives and five children. It has been deposed by Ishwarbhai that since last one month, his earlier wife and his son Bharatbhai were demanding for separate home. He has deposed that one day prior to the incident i.e. 20.11.2005, his three brothers-in-laws along with their wives came at the residence of Ishwarbhai, where the entire family was residing and Aaydanbhai i.e. accused
threatened both of them that they would be done to death.
13. On 21.11.2011 i.e on the date of incident, when he along with his second wife Maniben, left the house for milching buffaloes which were grazing in their field, his wife Maniben was walking ahead of him. When she reached near the cremation ground, she raised shouts. Pursuant to which when he saw the light with the help of the battery which was in his hand, he found both the accused standing there. At that time, Aayadanbhai i.e. accused No. 2 told his son Bharat to give blow and run away from the place as soon as possible. He has described the incident that his son Bharat gave two blows on the head and third blow was given on the wrist of Maniben. He has deposed that first blow with the wooden log was given by Bharat on the left side of forehead and second blow was given in the middle of the head.
14. Now considering his cross-examination, he has stated that the distance between him and Maniben was about 20-25 feet and it was a winter season. He has admitted that there was a dark but has clarified that it was light dark. Now considering the say of this witness in cross- examination that he reached at the place of offence after completion of incident, we would like to observe that reading the deposition of this witness in toto, it appears that he was walking behind 20-25 feet from his wife and he had seen the entire incident from about 20-25 feet, in which he has identified assailants, who are closely related to him i.e. one of his son and another his brother-in-law. Since the incident took place about 19.00 hours in the month of November, 2005 i.e. winter season, it cannot be said that there was a pitch dark and the witness might not have identified the assailants. Being accused closely related, it was very easy for the witness to identify them.
15. Now considering the say of this witness about giving blows on the head of the deceased, we would like to discuss the deposition of medical officer i.e. Dr. Deepak B. Pranami, who has been examined as PW-9 at Exhibit-29. Dr. Deepak B. Pranami prepared post-mortem notes, Exhibit-31. Deceased-Maniben sustained following injuries :-
(i) Big wide depression over left side of Head on frontperital temporal region. On palpating this depression clinically. There is multiple communital fracture of skull bones.
(ii) CLW over left frontal region of scalp about 3cmx1cm size. Bone deep clotted blood present.
(iii) CLW over left forearm about 5cmx2.5cm size muscle deep. Clotted blood present.
(iv) Clinically fracture of left radius and outer bone.
16. Now considering the injuries sustained by the deceased, the first injury is though a little-bit left side frontal perital region that does not mean that the witness is not clear about the blow given by the accused. It is not necessary to describe the exact place of blow on particular limb when the witness has clearly mentioned the limb on which the blow was given by the accused. In the present case, Ishwarbhai has categorically stated that two blows were given on the head of deceased. One of them might not be exactly on the middle of scull. However, the say of witness-Ishwarbhai is supported by the injuries received by the deceased. Considering the force used in giving repetitive blows on the vital part of the body i.e on the head, the intention of the accused persons was clear to do away the deceased, who was step mother of accused No. 1 and sister of accused No. 2.
17. Considering the arguments advanced, so far as appellant-accused Aayadanbhai is concerned, this accused has not given any blow to the deceased. However, looking to the facts and circumstances of the case, it cannot be said that there was no common intention of these accused persons in committing the offence.
18. It is well settled principle of law that before convicting a person under Section 34 with the main offence, the prosecution has to establish that there was common intention of all the accused, who are involved in the offence to commit the same which can be gathered from the substantial evidence. It is true that if the person is present when the offence was occurred, but there was no common intention between the said person along with other accused person, he would not be punished under Section 34 of the IPC. The common intention may be inferred from surrounding circumstances and the conduct of the accused. The inference can be gathered by the manner in which the accused arrived on the seen and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the act done by others to assess those causing injuries would help determining the common intention. The facts in the present case, if are looked into, it emerges that there were disputes between the first wife of Ishwarbhai and her son and her brother with Ishwarbhai, and his second wife- Maniben. Reshamben and Bharatbhai were demanding separate house since last one month. The dispute reached at peak on 20th November, 2005, when the accused No. 2 Aaydanbhai visited the house of Ishwarbhai along with his wife, brothers and their wives and took up a quarrel with Ishwarbhai and deceased-Maniben. On the next day in the evening, both the accused were standing near the cremation ground having a wooden log in the hand of accused No. 1. Accused No. 2 being maternal uncle was helping his sister Reshamben and his nephew Bharatbhai in their family disputes. There was no reason for Aayadanbhai to come at the place along with accused No. 1-Bharatbhai, where it was a daily routine for deceased to visit her farm. Accused No. 1-Aayadanbhai is residing in Ladhapura Dhanera, while Ishwarbhai and his family were residing in Jawahar Chowk. Therefore, it can be said that there was common intention between the two accused to do away Maniben, who was step mother of the accused No. 1. Looking to the serious injuries sustained by the deceased and repetitive blows given by the accused No. 1, though accused No. 2 might have not given any blow, but has played an important role in the entire incident. After the quarrel which took place between the accused and complainant, the time, place and manner of attack, we are of the opinion that there was meeting of mind between the accused and therefore, accused No.2 has rightly been convicted for Section 302 r/w Section 34 of IPC.
19. In a case of Idrish Bhai Daudbhai (supra), the facts are totally different than in the present case. In that case, the Apex Court acquitted the accused, who was convicted for under Section 302 read with Section 34 of the IPC on the ground that there were contradictions in the statement of the witnesses before the police and before the court. In that case, the deceased was passing near the house of accused person and a quarrel took place between them for some transaction of the house and in that quarrel, the appellant had used words maro-maro and in that context, the Hon'ble Apex Court held that there was no common intention of the appellant in the said case. Since other accused had used lathies and knives which they were possessing in their hands. Similar facts are in the case of Mohan Singh and another (supra), which has been cited by learned Advocate, Ms. Amin. The Hon'ble Apex Court after appreciating the facts of the case found that it was not a case under which the accused person can be convicted under Section 302 read with Section 34 since there was no meeting of mind. After considering the case decided by the Apex Court that emotion developed on the spot and in that scuffle, some of the accused used weapon and in that case, both the accused had used words “kill him”.
20. Relying upon paragraph-24 of the judgment, submission made by Ms. Amin, learned Advocate that the words used in the present case and in the case of Mohan Singh and another are similar and therefore, the present case is squarely covered by the decision of the Hon'ble Apex Court.
We are in agreement with the proposition of law but as stated hereinabove, looking to the facts of the case, neither there was any quarrel at the time of incident nor there was any exchange of words which would create heat and a person would lost his control or would support other accused by just merely using the words “give blow and run away as early as possible”. In fact, the quarrel was going on between the father and his second wife with the accused persons but on the date of incident, there was no quarrel took place between the complainant-husband, deceased-wife and the accused-persons. The accused-persons have chosen the place and time near the cremation ground, where ordinarily there was no public passing through the road.
In view of facts and circumstances of the case, we do not agree with the submissions made by learned Advocate appearing for the parties and we are in agreement with the reasons assigned by the trial court in convicting the accused persons under Section 302 and read with Section 34 of the Indian Penal Code, the appeal, therefore, stands dismissed.
(A.L.DAVE, J.)
(A.J. DESAI, J.)
Ashish N.