This group of appeals arises out of judgment and order rendered by Sessions Court, Veraval in Sessions Case No.75 of 2001 on 04th March, 2005. They are heard together and decided by this common judgment for that very reason. 2. Brief facts of the case are that on 17.06.1999 at about 8-30 pm in the evening, when complainant Dahyabhai Savdasbhai Bheda was attending to nature’s call on his land adjoining to his house, A1 i.e. Kana Bogha came there and started giving him abuses. He objected to the said act, which resulted into an altercation and it is said that A1 inflected a stick blow to the complainant Dahyabhai Savdasbhai. As there was an altercation, persons from both the sides came there, which resulted into a quarrel and a fight, where both the sides assaulted each other. A2 inflicted a pipe blow on the head of Arjanbhai, brother of the complainant. FIRs were lodged by both the sides with Kodinar Police Station. Victim Arjanbhai, on whose head pipe blow was inflicted, died on 29.06.1999.
Police, after investigation, filed charge-sheet against seven accused persons. The case was committed to the Court of Sessions, where charge was framed against them at Exh.4 in Sessions Case No.75 of 2001 and upon the accused persons pleading not guilty, the case was tried. By the impugned judgment and order, the trial Court acquitted original accused Nos.6 and 7, Gangaben and Rudiben, whereas convicted accused No.2 for charge of murder of Arjanbhai and convicted accused Nos.3, 4 and 5 for very offences punishable under Section 323 of the Indian Penal Code and Section 135 of the Bombay Police Act, whereas accused No.1, Kana Bogha, came to be convicted for only offence punishable under Section 135 of the Bombay Police Act.
2.1 Accused No.2 – Teja Bogha was sentenced to imprisonment for life with fine of Rs.1,000/-, in default, simple imprisonment for six months. Accused Nos.3, 4 and 5 were convicted under Section 323 of the Indian Penal Code and were given benefit of probation. Hence, the present appeals.
3. Being aggrieved by the said judgment and order, accused no.2 – Teja Bogha has preferred Criminal Appeal No.661 of 2005. The State has preferred Criminal Appeal No.1038 of 2005 against acquittal of accused Nos.1, 3, 4, 6 and 7 of the offence of murder. The State has also preferred Criminal Appeal No.1039 of 2005 for enhancement of sentence awarded by trial Court to accused no.1.
4. We have heard learned advocate Mr. Gondalia for appellant in Criminal Appeal no.661 of 2005 and the respondents in Criminal Appeal No.1038 of 2005 and Criminal Appeal No.1039 of 2005.
5. Learned APP Mr. Soni appears for the State.
6. Mr. Gondalia submitted that after having gone through the evidence and after having taken instructions from his client, he does not press Criminal Appeal No.661 of 2005 for a clean acquittal. He states that involvement of the appellant in the incident is not disputed by the appellant, but his conviction for the offence of murder is not proper. He prays for altering the conviction to lesser offence. In support of this submission, he has drawn our attention to following aspects :
6.1 The incident has occurred without premeditation and suddenly, which has resulted into a quarrel and a fight and no undue advantage can be said to have been taken by the appellant accused. Therefore, Exception 4 to Section 300 has been squarely applicable.
6.2 Mr. Gondalia submitted that though the incident appears to have been initiated by A-1, it ultimately culminated into a free fight and even the trial Court has accordingly fixed the liability of the accused persons. Under the circumstances, the conviction of A-2 may be altered from Section 302 to Section 304 of the Indian Penal Code.
6.3 Mr. Gondalia further submitted that so far as appeal by the State against acquittal of other accused for the offence of murder is concerned, it has come in evidence that only accused no.1 went to the place of incident first and after hearing the sound, the other accused came there, so also the people of other side also assembled there and the fight started. None of the other accused persons than A2 is alleged to have inflicted injury or blow on person of the deceased. Though four injuries are found on person of the deceased, only one injury is attributable to A2. One is a simple abrasion and two are surgical injuries. Mr. Gondalia also submitted that the trial Court has justified in acquitting the accused persons from the offence of murder holding it to be a free fight. These accused persons are not given a clean acquittal, but they have been convicted for other lesser offences. Mr.
Gondalia further submitted that once the Court comes to the conclusion that there was no conspiracy; that there was no unlawful assembly; that there was no common intention, there is no question of convicting these accused persons with offence of murder and no interference, therefore, is called for by entertaining Criminal Appeal No.1038 of 2005 and Criminal Appeal No.1039 of 2005.
7. Learned APP Mr. Soni has opposed Criminal Appeal No.661 of 2005 and has supported the judgment of the trial Court qua A2. He has assailed the judgment of the trial Court qua other accused and has made submissions in support of his appeals being Criminal Appeal No.1038 of 2005 and 1039 of 2005. According to him, all persons have actively participated in the incident. They were armed with iron pipe, sticks, etc., and therefore, the trial Court erred in not convicting for being part of unlawful assembly. The benefit of probation given to them by the trial Court is, therefore, erroneous. That is granted only for the lesser offences. Mr. Soni submitted that so far as A2 is concerned, he had no reason to be armed with an iron pipe and attack the deceased on his head and he, therefore, has rightly been convicted for murder and that appeal should, therefore, be dismissed. He has vehemently submitted that Criminal Appeals No.1038 of 2005 and 1039 of 2005 be allowed.
8. We have examined the record and proceedings in context of rival submissions. We have gone through evidence of witness Dahyabhai Savdasbhai, Exh.17, who is the complainant and eye-witness, evidence of Jagubhai Savdasbhai, Exh.19, who is also an eye-witness, evidence of Hiruben Savdasbhai, Exh.35, who is also an eye-witness. Their presence at the place of incident cannot be disputed because except the first informant, the other two witnesses are said to have gone to the place upon hearing the sound. PW3, first informant, is an injured eye-witness, who claims that he suffered injuries in the incident for which accused persons, other than A2, have been convicted and against that conviction, there is no appeal by the convicts. With this background, if the evidence is seen, it is clear that the incident occurred in the evening when PW3 had gone out of his house in the adjoining piece of land for attending nature’s call, where A1 comes and gives abuses and then the incident starts. The reason for presence of the accused at the place of incident stands explained in the evidence that though the accused persons stay at a distant place, they were required to pass through the land of the first informant for going to their respective fields. The incident occurred on 17th June, 1999 at about 8-30 in the evening which is a normal time when the people would be returning from their fields to the home. Nobody would have anticipated presence of first informant at the place at the relevant time and therefore, the incident cannot be said to have occurred with premeditation. The incident then results into an altercation i.e. a quarrel and then a fight when A1 is alleged to have inflicted a stick blow on head of PW3. Because of the shouts, persons from both the groups got assembled and as can be seen from the evidence of these three eye-witnesses, there was a melee or a free fight. There could not have been any premeditation to cause anybody’s death or to cause particular type of injury to anyone. The deceased has received only one fatal injury on his head. The other injuries is in the form of an abrasion and rest of the two injuries are surgical wounds. Therefore, it cannot be said that any undue advantage is taken by anyone, particularly, A2. The injury that is caused to the deceased is on head which is a vital part of the body. It has resulted into fracture of the skull and it is caused with a pipe which is a common agriculture implement, carried out by people in that area. The manner in which the incident has occurred is also required to be kept in mind. A2 has given a pipe blow on the head of PW3 as well. He has not died. Somehow, the victim has succumbed to the injuries, that too not immediately, but after 13 days. In this fact situation, we are of the view that Mr. Gondalia is justified in submitting that intention to cause death cannot be read in the act of A2. The case, therefore, would attract Exception 4 to Section 300 of the Indian Penal Code. Although the intention cannot be attributed to A2 of causing death of the deceased, knowledge certainly can be attributed to him and therefore, the offence would be punishable under Section 304 Part II of the Indian Penal Code.
8.1 Criminal Appeal No.661 of 2005, therefore, deserves to be partly allowed by altering the conviction of the appellant i.e. original accused no.2.
9. So far as Criminal Appeal No.1038 of 2005 is concerned, as discussed earlier, the accused persons having come there upon hearing shouts, cannot be said to have been constituted an unlawful assembly nor can they be said sharing common intention. The trial Court was justified in convicting them for the individual acts. In the set of circumstances narrated hereinabove, we, therefore, do not find any substance in Criminal Appeal No.1038 of 2005.
10. So far as Criminal Appeal No.1039 of 2005 is concerned, it is against grant of probation to the accused shown as respondents therein resorting to Section 377 of the Code of Criminal Procedure. The trial Court in its judgment and order has convicted respondents in the appeal for the offence punishable under Section 323 of the Indian Penal Code and has given benefit of probation. The trial Court did not award any sentence for this offence as can be seen from the operative part of the order. The appeal is, therefore, technically defective. Apart from that, if the appeal is treated as it under Section 377, then it is for appellant – State to convince this Court, whether the sentence awarded by the trial Court is shockingly disproportionate to the nature of offence, which the State has failed to do here. We, therefore do not find any substance in this appeal either.
11. The result of forgoing discussion is that Criminal Appeal No.661 of 2005 is partly allowed. The conviction of the appellant – original accused no.2 is hereby altered from the offence punishable under Section 302 to Section 304 Part II of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for seven years with no change in fine.
12. Criminal Appeal No.1038 of 2005 and Criminal Appeal No.1039 of 2005 stand dismissed.
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(A.L.DAVE, J.) MH Dave Sd/-
(PARESH UPADHYAY, J.)