(Per : HONOURABLE MR.JUSTICE A.L.DAVE) This appeal arises out of a judgment and order rendered by the City Sessions Court, Ahmedabad, in Sessions Case No. 301/2003, on 17.3.2005. The appellants were charged with the offences punishable under Sections 323, 294(B) & 302 read with Section 34 or 114 of the Indian Penal Code [ IPC for short] by the trial Court. The learned Principal Sessions Judge, Ahmedabad City, by judgment and order dated 17.3.2005 convicted the appellants-accused for the offences punishable under Sections 302 and 323 read with Section 34 of IPC and sentenced them to undergo R.I for life and to pay a fine of Rs. 1000/- each, in default to undergo further R.I for six months, for the offence under Section 302 IPC. For the offence punishable under Section 323 IPC, all the appellants-accused were sentenced to undergo R.I for six months and to pay a fine of Rs.500/- each, in default, to undergo further R.I for two months. The trial Court acquitted all the accused persons of the offence punishable under Section 294 IPC.
2. The incident occurred on 17.5.2003 at about 6.30 P.M in Rohilavad of Raikhad area, Ahmedabad when a quarrel erupted suddenly on the question of parking a bicycle between Kalubhai Jummabhai and the accused-appellants. Mohid Hatimbhai, brother-in-law of Kalubhai Jummabhai, tried to intervene and in that, it is the case of the prosecution that the assailants turned on him, where accused No.3, Jahir Fajalbhai gave a kick blow on the abdomen of deceased Mohid and upon the deceased falling down, all the accused persons gave kick blows to him. It is the further case of the prosecution that accused No.4, Salim, dragged the deceased by his legs and caused hurt to him with the help of stone. The deceased ultimately succumbed to the injuries and an offence was registered with Gaikwad Haveli Police Station upon lodging of an FIR by Nasimbanu, daughter of Kalubhai. The case was investigated and charge sheet was filed in the Court of learned Metropolitan Magistrate, Ahmedabad, who, in turn, committed the case to the City Sessions Court, where it was registered as Sessions Case No.301/2003.
3. Charge at Exh.1 was framed, which was read over and explained to the appellants-accused, who pleaded not guilty to the same and claimed to be tried.
4. We have heard learned Senior Advocate Mr.Lakhani appearing with learned advocate Mr.Vikesh Gajjar for the appellants and learned A.P.P. Mr.Pandya for the State.
5. Learned Senior Advocate Mr.Lakhani has submitted that the prosecution case, even if taken at its face value, would not constitute an offence of murder. He submitted that none of the accused persons is alleged to have used any weapon. All that is alleged is that accused No.1 or accused No.3 gave one kick blow in the abdomen of the deceased, as a result of which, the deceased fell down on the road and the accused persons gave him kicks. The medical evidence would also indicate that there were no marks of any external injury on the abdomen area or other parts of the body, except contusion in the frontal region. He submitted that internally also there were no marks of injuries, except injury in the head and that internal head injury was opined to be the cause of death. Mr.Lakhani submitted that in view of the fact that the incident erupted suddenly out of a quarrel and that there had not been use of undue force or weapon against the deceased by any of the accused persons and nobody was alleged to have given any blow on the head of the deceased, none of the accused persons could have been held responsible for the internal injuries which were certified to be the cause of death by the doctor. Mr. Lakhani has submitted that the trial Court committed an error in recording conviction for the offence punishable under Section 302 IPC. Neither intention nor knowledge could have been attributed to any of the accused, so far as the death of the victim was concerned. He further submitted that in view of the fact that the incident had occurred all of a sudden, section 34 IPC could not have been employed in service. Mr.Lakhani submitted that the trial Court, therefore, erred in convicting the appellants for the offences punishable under Sections 302 & 323 IPC and, therefore, the appeal may be allowed.
6. Learned A.P.P. Mr.Pandya has opposed this appeal. According to him, head injury, which was caused in the incident, was the cause of death. The appellants could safely be attributed with the knowledge that such injury was likely to result into fall of the deceased on the ground and consequent similar injuries might cause death. The offence, therefore, would be punishable under Section 302 IPC and so the appeal may be dismissed.
7. We have examined the record and proceedings in the context of rival side submissions.
8. Nasimbanu Kalubhai Shaikh, who was examined as PW.1 at Exh.10, is an eye witness to the incident. She was sitting on a cot from the beginning when the incident occurred. She stated that at about 6.30 P.M, while she was sitting on a cot, Fajalbhai, Jahirbhai, Allarakha and Salimbhai had come there and Fajalbhai asked her mother to remove the bicycle and then picked up a quarrel. According to this witness, appellant No.1, Fajalbhai, gave a kick blow in the abdomen of her maternal uncle Mohid, as a result of which, he fell down, and then, all the accused persons gave him kick blows. The witness, therefore, raised shouts and on hearing her shouts, her sister Shainabanu came there, who was told by the witness to make phone calls to her brothers. She, therefore, made telephonic calls and thereupon, Kalubhai, Jahangirbhai and her brother-in-law came down. The victim was then taken to V.S.Hospital in an auto-rickshaw, where he was declared dead. The witness stated that she had lodged an FIR with Gaikwad Haveli Police Station. The witness was subjected to cross-examination, but, no question was put to her on the actual occurrence. The evidence of this witness has to be accepted as if it appears in the examination-in-chief.
8.1 Other witnesses, namely, Kalumiya Jumabhai, Shainabanu Kamalshah, Sohanabanu Jahangirbhai, Hajarabibi Kalubhai and Salimbhai Mohitbhai were also examined by the prosecution as PW.2 at Exh.13, PW.3 at Exh.15, PW.4 at Exh.16, PW.5 at Exh.17 and PW.9 at Exh.23 respectively. They claimed to be eye witnesses to the incident. But, from the deposition of the first informant Nasimbanu, it is clear that after the incident occurred, the first informant told her sister to call their brothers telephonically and her sister, in turn, telephoned her brothers and thereupon, her brothers came. As such, they could not have witnessed the actual occurrence and their depositions, therefore, would lose significance as evidence of eye witnesses.
9. All that emerges is that suddenly the dispute arose about parking of a bicycle and in that altercation, a scuffle also took place. The evidence of the first informant Nasimbanu indicates that appellant No.1 gave a kick blow in the abdomen area of the deceased, as a result of which, the deceased fell down and then all the accused persons assaulted the deceased. In the meantime, the deceased suffered head injury. Internal head injuries are shown to be the cause of death of the deceased. There is no direct evidence about the appellants having shared any common intention of causing death of the deceased. From the evidence it emerges that there were some manageable things and when the mother of the first informant was asked to remove the bicycle, there was an altercation. Till then, there was no trace of any quarrel, dispute, altercation or fight. On being asked to remove the bicycle, there was an altercation, which was followed by a scuffle and in that, a kick blow was alleged to have been given by appellant No.1.
10. In the above set of circumstances, it is difficult to infer that the accused persons shared any common intention. However, the fact remains that all the accused persons actively participated in the occurrence. Therefore, their involvement in the incident would be with the help of section 114 IPC and not section 34 IPC.
11. Now, if the evidence is seen, appellant Nos.2, 3 & 4 are attributed to have given kick blows to the deceased after the deceased fell on the ground. There is no medical evidence to support this version. But, assuming that to be true, since the version of PW.2 was not challenged in the cross-examination, by no stretch of imagination, any one of them, could have heen held to have involved in murdering the deceased. Coming to the act attributed to appellant No.1, he is alleged to have initially given a kick blow in the abdomen area of the deceased, as a result of which, the deceased fell down and then all the accused persons gave kick blows. The medical evidence, in this regard, does not speak of any marks of injuries on the stomach or abdomen area. An inference, therefore, can be drawn that the kick was not given with a great force, which would permit the Court to draw an inference about knowledge on the part of appellant no.1 of the injury being sufficient in the ordinary course of nature to cause death of the deceased.
12. The medical evidence is that there was a contusion on the head of the deceased. This contusion can be inferred to have been caused when the deceased fell on the ground. But, that external injury on the head of the deceased is not attributable to any of the accused persons. It is nobody's case that external head injury was caused by any of the accused persons. If that is so, responsibility for internal injury cannot be fastened on appellant No.1 or appellant No.3, who are alleged to have given kick blows. The version as emerges from the evidence of PW.1 and PW.3 differs from each other, as PW.1 attributes a kick blow on abdomen area of the deceased to accused No.1 and PW.3 attributes kick blow to accused No.3. In this context, at the cost of repetition, it can be noted that the presence of PW.3 at the time of occurrence is very much doubtful because even according to PW.1, PW.3 came to the spot on hearing the shouts of PW.1. The shouts were raised by PW.1, admittedly, after the incident was over.
13. The resultant effect of the foregoing discussion is that neither knowledge nor intention can be attributed to accused No.1, or for that matter, any of the accused persons of causing death of the deceased. In an unfortunate incident, that occurred abruptly, PW.1 appears to have given a kick blow and it is misfortune that when the deceased fell on the ground, all the accused persons gave kick blows to the deceased, as is evident from the deposition of PW.1, which has gone unchallenged in the evidence.
13.1 The external injury on the head of the deceased is opined to be possible by fall on the ground while a man is walking. That injury is also again simple and is not the cause of death of the deceased. The cause of death is the internal injury. Differently put, the deceased had no external injury, which can be considered to be of a grave nature than a simple hurt. Resultantly, the appellants ought to have been convicted for an offence punishable under Section 323 read with Section 114 IPC rather than 302 read with Section 34 IPC.
14. The appeal is partly allowed. Conviction of the appellants awarded by the learned Principal Sessions Judge, Ahmedabad City, in Sessions Case No.301/2003 vide judgment and order dated 17.03.2005, for the offence punishable under Section 302 read with section 34 of the Indian Penal Code is hereby altered to an offence punishable under Section 323 read with Section 114 of the Indian Penal Code.
14.1 So far as the sentence is concerned, considering the manner in which the incident had occurred and considering the fact that none of the accused persons has any criminal antecedents, we direct the appellants to undergo S.I for one year for having committed offence punishable under Section 323 read with Section 114 IPC, with no change in the amount of fine. The appellants would be entitled to the benefit of set off. The appellants are on bail and their bail bonds shall stand cancelled.
[A.L.Dave,J.] [R.M.Chhaya,J.] (patel) Top