This appeal arises out of a judgment and order rendered by Sessions Court, Surendranagar in Sessions Case No.42 of 2001 on 23/05/2006. The appellants alongwith one Shivkubhai were tried for the offences punishable under Sections 302, 307, 147, 148, 149, 323, 324, 325, 326, 504 and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. During the trial, said Shivkubhai – original accused No.4 expired and at the end of the trial, remaining four accused i.e. org. accused No.1 – Dhamabhai Shantubhai Kathi, org. accused No.2 – Abhubhai Pithubhai Khachar, org. accused No.3-Dilubhai Pithubhai Kathi and org. accused No.5-Jagubhai dhirubhai Dhandhal came to be convicted for the offences punishable under Section 302 r/w Section 149 of the IPC and sentenced to undergo imprisonment for life with a fine of Rs.1,000/- in default to undergo RI for one year. The accused persons were also convicted for the offence punishable under Section 307 r/w Section 147, 148, 149, 323, 324, 325, 326 and 504 of the IPC and sentenced to undergo RI for ten years and to pay a fine of Rs.500/-, in default to undergo six months RI. The accused persons were also convicted for offence punishable under Section 135 of the Bombay Police Act and sentenced to undergo SI for six months and to pay a fine of Rs.500/-, in default to undergo three months SI. The learned Judge was pleased to award a compensation of Rs.10,000/- each to the legal heirs of deceased complainant and heirs of injured Vihabhai. All the sentences are ordered to run concurrently by giving benefit of set of. 2. For the sake of convenience, the appellants would be addressed to by their original status of accused by the respective numbers in this judgment.
3. As per the prosecution case, the incident occurred on 30/04/2001 at about 5:30 p.m. at Village Jinjuda in the house of Kamabhai Merabhai. Daughter-in-law of Kamabhai had gone to the house of accused A-2-Abhubhai to recollect a starter, which was refused to her. She therefore went back and reported the same to the deceased. Incidentally, it appears that A-2 had lent an amount of Rs.10,000/- to Kamabhai Merabhai by way of a loan. Since the daughter-in-law of Kamabhai went and asked for return of starter, accused persons got angry and went to house of Kamabhai and demanded their money back. In that dialogue, the situation flared up and all the accused persons upon instigation by A-2 attacked Kamabhai Merabhai and upon intervention by Visabhai –son of Kamabhai attacked him, so also, Kunvarben-wife of Kamaben. Incident was seen by Lilaben Khodabhai as well. Accused persons were armed with stick and pipes which they used in the attack. Ultimately, Kamabhai was taken to hospital at Chotila and then to Rajkot where he succumbed to the injuries after five days. He suffered injuries mainly on arms and legs, besides one injury on ribs. Whereas Visabhai suffered head injury and Kunverben also suffered simple hurt. Kamabhai's FIR was recorded while he was in the hospital at Chotila, on basis of which, offence was registered and investigated. The Police found sufficient material, filed charge-sheet in the Court of learned JMFC, Chotila, who in turn, committed the case to the Court at Surendranagar and Sessions Case No.42 of 2001 came to be registered.
4. It appears that A-4 Shivkubhai died during the trial and therefore, case against him was abated. Rest of the accused persons came to be convicted and sentenced as stated herein above and, therefore, this appeal.
5. Learned Senior Advocate Mr.Lakhani appearing for the appellants with Mr.Pravin S Gondalia and Mr.N K Majmudar submitted that the case of the prosecution, even if taken at its face value, would not constitute offence of murder. He submitted that even as per prosecution case, there was no intention of causing death. The situation flared up suddenly and A-2 is alleged to have instigated the others to break legs of Kamabhai and the injuries also indicate that there was no attack on vital part of the body of the deceased. Visabhai had suffered injury on the head in the transaction, but causing any hurt or grievous hurt or causing his death could not have been the intention, because it happened upon his intervention suddenly.
5.1 Mr.Lakhani submitted that according to the prosecution case, there are two injured eye-witnesses and one eye-witness to the incident. Eye-witness –Lilaben has not supported the prosecution case, so also, Kunverben. Whereas, injured witness – Visabhai has not been examined by the prosecution. The whole case depends on a dying declaration recorded by Executive Magistrate. Mr.Lakhani submitted that dying declaration can be the basis of conviction, but in the instant case, the dying declaration does not inspire confidence and, therefore, may not be believed. To support this argument that dying declaration does not inspire confidence, he has relied upon inconsistency in the medical evidence. He submitted that if the deceased could give a detailed FIR with full names of the assailants, the deceased could have as well given full names of the assailants in the dying declaration, which he has not done. Keeping all these aspects, the conviction is ill-founded.
6. However, Mr.Lakhani in all fairness submitted that it is difficult for him, though he has tried to do so, to assail the dying declaration and involvement of the accused persons in the episode is difficult to be dislodged. He, therefore, submitted that he does not challenge that aspect, but would only pray for considering the case of the appellants for lesser offence. There is no evidence to indicate that the injuries suffered by the deceased were sufficient in ordinary course of nature to cause death. He also submitted that there was no intention to cause his death, because no injury was caused on vital part of the body. It also appears that even as per prosecution case, the incident erupted all of a sudden in a heat of moment and, therefore, also it cannot be said that it is a preplanned offence. He submitted that so far as injury to Visabhai is concerned, there is no evidence that injury was sufficient in ordinary course of nature to cause death, nor was he the target of attack. Therefore, the conviction by the trial Court for offence punishable under Section 302 and / or 307 of IPC is not well founded. According to Mr.Lakhani the offence that would be constituted would be, at the most, under Section 326 of the IPC, both in the case of Kamabhai as well as Visabhai. He submitted that A-5-Jagubhai is on bail. He has already undergone a sentence of three years and four months. He was about 20 years of age when the incident occurred. While on bail, he has got married and has a young child to look after. He does not have any other criminal antecedents.
6.1 So far as A-2-Abhubhai is concerned, he has remained in jail for six years and two months. A-2 is bachelor and has to look after his mother. So far as A-1- Dhamabhai is concerned, he was 21 years of age when the incident was occurred and his mother is to be looked after by him and he also does not have any criminal antecedents.
6.2 So far as A-3-Dilubhai is concerned, he has been absconding since 27/10/2009 while he was on furlough.
7. Learned Additional Public Prosecutor, Mr.Kodekar, for respondent –State has opposed this appeal. According to him, the judgment is well-reasoned and well- founded and does not call for any interference in exercise of appellate jurisdiction by this Court. He submitted that though there were no injuries on vital part of the body of the deceased, the injuries were so many in number that it has resulted into his death. The intention is to be read from the conduct of the accused. If the accused persons collectively attacked a man aged 60 years with sticks and iron pipes in indiscriminate manner, there could not be any other intention. Mr.Kodekar submitted further that Visabhai had suffered head injury which has caused scar on his brain and which resulted into a big blood clot. Visabhai could not be examined because of his paralytic condition, which again is the outcome of the injuries suffered by him in the incident. Mr.Kodekar submitted that the conviction of the appellants, therefore, is well- founded and may not be interfered with.
8. We have examined record and proceedings in context of rival submissions.
9. Since involvement of the appellants is now not in dispute, since homicidal death of Kamabhai Merabhai is not in dispute and since a grievous hurt suffered by Visabhai and simple hurt suffered by Kunvarben Kamabhai, is not in dispute, what is required to be examined by this Court, is what offence is constituted and who were the miscreants.
10. Learned Advocate Mr.Lakhani was right when he contended that the prosecution case is believed by the trial Court mainly on basis of dying declaration, reason being that injured eye-witness – Visabhai has not been examined by the prosecution. Another eye-witness, Kunverben has not supported the prosecution case and third independent eye-witness – Lilaben Khodabhai has not supported the prosecution case. The evidence showing involvement of the appellants therefore is three fold; first being the FIR, second being the history recorded by the Doctor and third being the dying declaration recorded by the Executive Magistrate. FIR (Exh.105) clearly implicates all the accused persons. They are described by name. The accused persons on one side and the deceased on the other side were known to each other and they were on exchanging terms. The dying declaration (Exh.87), if seen, would clearly indicate involvement of the accused persons. The only difference is that full names of the accused are not given, but the names are given. Therefore, the attack by them is also described and this dying declaration is recorded by the Executive Magistrate in presence of Dr.N.M.Joshi. He has remained present through out the recording of dying declaration. He has certified the patient at the time of commencement of recording of dying declaration and at the end of dying declaration that patient was fully conscious. Learned Advocate Mr.Lakhani, therefore, rightly did not challenge the genuineness of the DD (Exh.87). We need not therefore go into the evidence of Executive Magistrate. Then fact remains that DD involves the accused persons as the assailants and Mr.Lakhani also does not dispute their involvement.
11. Now, the question, therefore, is what offence can be said to have been constituted so far as accused persons are concerned. In this context, FIR (Exhl.105) has to be read. The FIR was given by the deceased – Kamabhai and it has been proved through the evidence of I.O. The FIR shows that all the persons went to the house of the deceased armed with iron pipes or sticks. Upon coming there, A-2 demanded return of money, to which reply was that against Rs.10,000/-, amount of Rs.61,000/- has already been paid and even thereafter if some amount remains outstanding, the same would be paid even by selling or mortgaging the property. In this verbal transaction something happened and the situation flared up where A-2 is alleged to have asked his companions to attack the deceased and break his legs. Even verbally it is not conveyed that A-2-Abhubhai intended to cause death of the deceased. Pursuant to his call, his companions committed assault on Kamabhai with the respective weapons.
11.1 Postmortem Note (Exh.50) would reveal that the deceased died because of cardiorespiratory failure. The PM Notes would also indicate that all the injuries that were suffered by deceased were either on legs or on his arms, except one injury on the back, which resulted into fracture on rib and damage to lungs. There was no injury on any vital part of the body of the deceased. The deceased died after a lapse of about five days with intensive treatment. The medical evidence does not show that the injuries were sufficient in ordinary course of nature to cause death of Kamabhai and therefore by no stretch of imagination can it be said that either there was any intention on part of the accused to cause death of the deceased or there was any intention on part of the companions to cause death of the deceased, as they have not attacked on vital part of the body of the deceased.
12. In our opinion, therefore, conviction of the accused under Section 302 of the IPC of the accused with the help of Section 149 of the IPC cannot be sustained. It has come in evidence that all of them attacked simultaneously. It has also come in evidence that they all were armed with either iron pipes or sticks and that they attacked simultaneously in a consorted manner. That would show that an unlawful assembly was formed and the assembly had an object of teaching the deceased lesson, but not to cause his death. It also emerges from medical evidence that deceased had suffered multiple fractures on legs, arms and ribs. He is, therefore, required to be convicted for the offence punishable under Section 326 r/w Section 149 of the IPC and are accordingly convicted while setting aside their conviction under Section 302 r/w Section 149 of the IPC.
13. The accused persons did not stop at assaulting deceased –Kamabhai, but they also committed an assault on Visabhai Kamabhai and Kunverben Kamabhai. Visabhai had suffered fractures on skull, besides the other multiple injuries. Simply because an injury is found on the head of the injured, it cannot be said that the intention was to cause his death. It is not emerging from the record that the injuries suffered by witness –Visabhai were sufficient in ordinary course of nature to cause death of a human being. The conviction of the accused persons for the offence punishable under Section 307 r/w Section 149 of the IPC has to be now therefore altered to one under Section 326 r/w Section 149 of the IPC.
14. So far as injury to Kunverben is concerned, there is medical evidence of Dr.Nutanben Ashokbhai (Exh.63) and Dr.Mahipatrav Siyaramray (Exh.93). Dr.Nutanben has stated that Kunverben had fractures. Whereas, Dr.Mahipatrav in his evidence says that the xerox report does not confirm the existence of any fracture injury. The injuries, therefore, have to be stated as simple hurt.
15. For the foregoing reasons, the appeal is partly allowed. The judgment and order of conviction and sentence rendered in Sessions Case No.42 of 2001 dated 23/05/2006 passed by the learned Additional Sessions Judge, Fast Track Court No.2, Surendranagar is modified. The conviction of the accused persons for the offence punishable under Section 302 r/w Section 149 of the Indian Penal Code is set aside and they are convicted for the offence punishable under Section 326 r/w Section 149 of the IPC.
15.1 So far as conviction of the accused persons for attempted murder of Kamabhai Merabhai and Vihabhai Merabhai for having caused grievous hurt punishable under Section 307 r/w Section 149 of the IPC is concerned, the same is hereby set aside and accused persons are convicted for offence punishable under Section 326 r/w Section 149 of the IPC and are sentenced to undergo eight years RI with no change in fine.
15.2 So far as conviction of the accused persons punishable under Section 323 r/w 149 of the IPC is concerned, the same is hereby confirmed and accused persons shall undergo RI for a period of one year with a fine of Rs.1,000/-, in deafult to undergo SI for one month.
15.3 Conviction of accused / appellants for offence punishable under Sections 147, 148, 324, 325 and 504 r/w Section 114 of the Indian Penal Code is hereby set aside.
15.4 So far as conviction under Section 135 of the Bombay Police Act is concerned, the same is confirmed alongwith sentence.
15.5 The order of payment of compensation is also confirmed.
15.6 The accused / appellants shall get the benefit of set of. All the sentences to run concurrently.
15.7 Accused No.5-Jagubhai Dhirubhai @ Visubhai Dhandhal is on bail. His bail bond stands cancelled and he shall surrender to the custody within a period of four weeks from today.
(A L DAVE, J.)
(N V ANJARIA, J.)
sompura