(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of this Appeal, accused Gadhvi Bharatdan Shivdan, has challenged the judgment and order dated 2.01.2006, passed by Sessions Judge, Bhavnagar, in Sessions Case No. 144 of 2000, by which the appellant has been convicted and is sentenced for imprisonment for life and fine of Rs.5,000/-, and in default, simple imprisonment for two years for the offence under Section 302of the Indian Penal Code as well as sentenced for simple imprisonment for one month for the offence under Section 135 of the Bombay Police Act.
2 Brief facts in nutshell of the case are as under:
That one Madhavjibhai Maganbhai Dhandaliya, resident of Bhavnagar, lodged a complaint on 12.5.2000 with Police Inspector, Bhavnagar City `B' Division Police Station and alleged that the present appellant attacked his brother Chandubhai at about 7'O clock with knife when his brother was going on his Rajdoot motorcycle to deliver the milk to their customers. He was informed about the incident of attack by one Vallabhbhai Odhavjibhai Bareya, who knows the complainant, his deceased brother as well as the accused. Pursuant to the knife blow sustained on the chest, his brother Chandhubhai, succumbed to the injuries and declared dead when he reached at the hospital.
Pursuant to this complaint, the Police Inspector investigated the case and after collecting sufficient material, filed a charge sheet in the court of learned Chief Judicial Magistrate, First Class at Bhavnagar, who in turn committed the case in the court of learned Sessions Judge. The charge – Exhibit-4, which was framed by the learned Sessions Judge, was denied by the accused and asked for trial. The learned Sessions Judge, after examining the documentary evidence and perusing the depositions of about 15 witnesses, found that the prosecution was successful in establishing its case against the accused for the offences for which he was charged and convicted and sentenced him for the offences, as stated here-in- above. Hence this appeal.
3 Learned Advocate Mr. Ashish M. Dagli, appearing for the appellant, has assailed the judgment and conviction of the appellant on the ground that the sole eye witness to the incident i.e. Vallabhbhai Odhavjibhai Bareya, PW-2, Exhibit-12, is a chance witness and his conduct of not taking the deceased to the hospital and visiting the complainant to inform him about the incident, is unnatural and, therefore, he cannot be treated as an eye witness and the learned Trial Judge ought to have discarded his evidence on this ground alone. He further submitted that except Vallabhbhai Odhavjibhai Bareya, no eye witnesses had supported the case of the prosecution and, therefore, in absence of other witnesses to the incident, the appellant is required to be acquitted from the charges of Section 302 of the IPC read with Section 135 of the Bombay Police Act. In support of his submission, he has also taken us through the deposition of Dr. Jagsaral Ramdhir Srivastava, PW-10 Exhibit-28, who performed the postmortem and submitted that the injury sustained by the deceased must be more than of 12 hours old as rigor mortis were present all over the body when the postmortem was carried out at 2'O clock in the afternoon. Therefor, the incident must not have taken at 7.00 a.m. as alleged by the prosecution. He further submitted that looking to the injuries, the same was not possible by the knife, which has been alleged to have been used in the incident. He has submitted that no bloodstains were found on the knife.
4 In the alternative to the above submission, Mr. Dagli submitted that if the Court does not accept the non-involvement of the appellant–accused in the offence, the accused shall be convicted for the lesser offence and he may be sentenced accordingly. In his submission, the case would fall under Section 304 of the I.P.C. since Exception-4 of Section-300 of the I.P.C. is applicable in the present case. He submitted that there was no premeditation and the incident occurred in the heat of passion upon a sudden quarrel about the payment of milk and the accused has not taken any undue advantage of the situation and, therefore, the case would fall under the provisions of Section 304 of the IPC. He has submitted that the accused gave one knife blow and there was no intention of the accused to cause death and, therefore, he may be convicted for the Second Part of Section 304 of the IPC.
5 On the other hand, learned APP Mr. Neeraj Soni has opposed this appeal and supported the reasons assigned by the Trial Court while convicting the appellant-accused under Section 302 of the IPC. He submitted that the presence of Vallabhbhai Odhavjibhai Bareya, eye witness, is natural since he has described the entire incident of attack, which is supported by other circumstances like panchnama of scene of offence and, therefore, he cannot be treated as a chance witness and, therefore, his presence at the time of incident, cannot be discarded. As far as the conduct about not rescuing the deceased or taking him to hospital immediately is not that unnatural which would establish that he was not an eye witness to the incident. He submitted that it is well settled principle of law that each witness reacts differently in a given situation. He further submitted that the appellant – accused is not entitled for any lesser punishment as argued by the learned Counsel for the appellant since nothing has come on record which would bring the case of the appellant within the ambit of Exception-4 of Section-300 of the IPC. He submitted that the deceased was travelling on his motorcycle with cans filled with milk and was going in the early hours of the day to deliver milk and, therefore, there is no question of sudden fight or quarrel, in which the accused person, in the heat of passion, lost his control and gave a knife blow. He further submitted that it is the case of premeditation since the incident took place in early hours of the day and there was no reason for the appellant–accused to move with knife on the way the deceased was travelling every day to deliver milk to his customers.
6 We have heard the learned Advocates appearing for the parties and have examined the record and proceedings of the case and perused the depositions of the witnesses as well as the documentary evidence which were proved by the prosecution before the Trial Court.
7 It is true that in the present case Vallabhbhai Odhavjibhai Bareya, PW-2, Exhibit-12, is the only eye witness, who has supported the prosecution case. The complaint at Exhibit-11, which was recorded immediately after the incident, discloses that the complainant Madhavjibhai Maganbhai Dhandhaliya, who happens to be the brother of the deceased, was informed by Vallabhbhai Odhavjibhai Bareya, about the incident. Now, being the only eye witness to the incident, we have carefully scrutinized deposition of Vallabhbhai Bareya. It appears from his deposition that when he was near the Nilkanth Provision Store, where the incident took place, he heard a noise from a street behind the said provision store. On hearing the noise, he waited there and at that time he saw the deceased Chandubhai going on his Rajdoot motorcycle. Chandubhai thrown his motorcycle near the said store and ran towards the store and he saw the appellant accused running behind him having a knife in his hand. Before he reaches near both of them, the appellant – accused gave a knife blow on the chest to the deceased and, therefore, he fell down at the scene of offence near the provision store and thereafter the appellant– accused ran away from the scene of offence. Since he saw Chandubhai lying on the road, he immediately went to the shop of complainant-Madhavjibhai Maganbhai Dhandhaliya, who is the brother of the deceased and informed him about the incident. Immediately, the deceased was taken to the hospital with the help of the complainant and another witness Ishwarbhai Labshankar,PW-4. Vallabhbhai Bareya accompanied the complainant upto the hospital and after waiting for some time, he left the hospital.
8 Now, the defence, who cross-examined Vallabhbhai Odhavjibhai Bareya, PW-2, has failed in nullifying the say of this witness in his chief-examination. We do not find this witness as a chance witness. On the contrary, we find that his conduct establishes that he was an eye witness to the incident. The entire evidence of this witness is corroborated by panchnama of scene of offence–Exhibit-19, which is proved through panch witness Harshadbhai Shankarbhai Prajapati, PW-7, Exhibit-18. If the scene of panchnama is perused, the incident is just about three feet away from Nilkant Provision Store, wherein the motorcycle, on which the deceased was travelling, is found lying 25 feet away from the place i.e. Nilkant Provision Store. So, the say of the witness is that the deceased, after throwing away his motorcycle on the road, ran towards the Nilkant Provision Store, is supported by the said panchnama. This witness is not a got up one or a chance witness. The say of Vallabhbhai cannot be discarded only on the ground that he is of same caste of which deceased and complainant belong. Vallabhbhai has come forward before the Court in his natural conduct. He is not close relative of deceased and therefor in our view his conduct of informing the brother of victim is quite natural. It is well settled that each individual would act differently in a given situation. Therefore, in our view, the appellant–accused is not entitled for acquittal in the case.
9 As far as the submission made by Mr. Dagli, learned Advocate for the appellant, of imposing lesser punishment under Section-304 of the IPC is concerned, we find that no ingredients which would bring the case of the appellant within the purview of Exception-4 of Section-300 of the IPC. It is an established principle of law that ingredients like premeditation, sudden fight in heat of passion and sudden quarrel are necessary, in which the offender has not taken any undue advantage or acted in a cruel or unusual manner to come to the conclusion that the case falls within Exception-4 to Section-300 of the IPC. If, the time, place and conduct of the appellant- accused are seen, it appears that, since the accused was aware about the day-to-day activities of the deceased, he was waiting with a knife in a street behind the said Nilkant Provision Store in the early hours of the day when the deceased was going on his motorcycle to deliver the milk, it cannot be said that, there was no premeditation on the part of the appellant- accused. We do not find any fact, which would lead us to believe that, there was sudden fight in a heat of passion, which got the appellant excited and lost his control and gave a knife blow on the vital part of the body. The only eye witness Vallabhbhai does not say that there was sudden fight or sudden quarrel in which the accused lost the control in heat of a passion. When accused was running after the deceased with a knife in his hand, the intention was clear.
10 If we examine the external and internal injuries sustained by the deceased, the same is described by Dr. Jagsaral Ramdhir Srivastava, PW-10 Exhibit-28, which read as under:
External injuries – 1 stab wound in 5th inter- coastal space; left side chest wound i.e. 3” below from left nipple - size 3 cms x 2 cms goes inside chest; sharp, oval. Margin sharp and clear cut chest cavity.
Internal injuries - Corresponding to injury No.1 – stab wound, extended to Right Atrial of heart after cut down pectorals muscle, inter-coastal muscle of artery and pericardium.
11 Now looking to the injuries, it cannot be said that, the appellant- accused had no intention and had only knowledge that the injury would result into a death. As stated here-in-above, it is not a case of culpable homicide not amounting to murder, covered under Exception-4. Since we have held that there were premeditation and the appellant-accused has taken undue advantage of the deceased since he was going on a motorcycle with several cans of milk to deliver the same to his customers. Though,Vallabhbhai Odhavjibhai Bareya, eye witness, is exhaustively cross-examined by the defence, the defence is not successful in bringing the fact that there was an altercation or sudden fight between the deceased and the appellant- accused.
12 As far as submission made with regard to the development of `rigor mortis' all over the body of the deceased, which normally takes 12 hours from the time of death of a person is concerned, Dr. Jagsaral Ramdhir Srivastava has accepted that normally the development of `rigor mortis' will take 12 hours, however, he has denied that if the lividity is found at the time of postmortem, the death must have occurred before 8 hours from the time of examining the dead body, which is found in the present case. We have considered this submission and we are of the opinion, by relying upon a `Text Book Of Medical Jurisprudence And Toxicology' by Jaising P Modi, that when rigor mortis sets in early, it passes off quickly and vice versa. It is described by the Author in its 24th Edition 2011, in Chapter-14, under the Head of “Late Signs of Death” and under Part-(1)it is described as “Cadaveric Changes in the Muscles”. Part (1) is reproduced for appreciating the case on hand.
Late Signs of Death
(1) Cadaver Changes in the Muscles. - After death, the muscular tissues of the body pass through three stages:
(i) primary relaxation of flaccidity;
(ii) cadaveric rigidity or rigor mortis; and
(iii) secondary relaxation
(i) Primary Relaxation of flaccidity. - Soon after death, the whole muscular system commences to relax, except in those cases, where the muscles have been in a condition of spasm before death. Hence, we notice that the lower jaw of a dead body falls, the eyelids lost their tension, the extremities become soft and flabby, and the joints are flexible. The relaxed muscles, which are subjected to pressure, show contact flattening. However, the muscles are contractile, and react to external stimuli, mechanical or electrical, owing to their retaining molecular life after somatic death.
This stage lasts from three to six hours, but the average is two or three hours. One hour and fifty-one minutes is the average period of duration in Bengal as found by Mackenzie.
(ii) Cadaveric Rigidity or Rigor Mortis. - Cadaveric rigidity, which is also known as death stiffening, comes on immediately after the muscles have lost the power of contractility, and is due to the irreversible changes in the muscles of the body, both voluntary and involuntary.
The voluntary muscles consist of a large number of fine fibres; in each of these fibres, there are many contractile elements called myofibrils. These are formed by two kinds of portein filaments known as myosin and actin, which line in an inter-digitating order with small fine lateral projection in intimate contact with each other. Through the influence of nerve impulse, they are still drawn closer and the muscle contracts. The enzyme Adenosine Triphosphate (ATP) plays a fundamental role in the chemical action, which brings about the normal contraction and relaxation of the muscle. In a resting muscle, this enzyme is in high concentration, its production and utilization are constantly balanced in life, but after death there is a gradual fall of its concentration as it cannot be resynthesised and this leads to fusion of myosin and actin filaments into stiff actomysin resulting in a stage of in elasticity and rigidity of muscles, called rigor mortis. The energy necessary for resynthesis of ATP is derived from the break down of muscle glycogen to lactic acid.
Rigor mortis generally occurs whilst the body is cooling. It is in no way connected with the nervous system, and it develops even in paralysed limbs, provided that the paralysed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.
Owing to the setting in of rigor mortis, all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.
Rigor mortis first appears in the involuntary muscles, and then in the voluntary muscles. In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy, and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Post- mortem delivery may occur owing to the contraction of the uterine muscular fibres.
In the voluntary muscles, rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected, are the small muscles of the fingers and toes. It passes off in the same sequence.
Time of onset – This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop. In India, it usually commences in one to two hours after death.
Duration. - In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor mortis is 24 to 28 hours in winter and 18 to 36 hours in summer. According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the longest forty hours. In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associated findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability, the death might have occurred six to twelve hours or so more before the time of examination.”
13 In view of the above referred medical jurisprudence, in our opinion, there is no time fixed for developing `rigor mortis' all over the body, against submission by Mr. Dagli that it will take minimum 12 hours. It is pertinent to note that Dr. Jagsaral Ramdhir Srivastava, who performed the postmortem is not cross-examined about the phase of rigor whether it was in the developing phase, established phase or maintained phase, etc. which would decide the time of the death of a person. He is also not cross-examined about the stiffness of dead body which would lead to decide the approximate time of death. It does not emerge from the evidence of the Doctor as to what was the exact time of death or what could have been approximate time of death of the victim. What emerges from cross examination is only a general opinion of Doctor on medical possibilities. We have no reason to throw the evidence of eye witness overboard only on the basis of this cross-examination of Doctor when nothing is put to the eye witness who is otherwise found to be a natural and truthful witness. By raising this issue, defence has tried to establish that the deceased had died prior in time than deposed by eye witness, but, in our view, has miserably failed in doing so by failing to put such questions either to the eye witness or the Doctor.
Otherwise also, the expert evidence is of a corroborative nature and when the direct evidence in the nature of eye witness is available in the present case, we would not like to discard the case of prosecution in toto.
14 In view of this, in our view, the appellant -accused is not entitled for any lesser punishment under Section-304 of the IPC and we do not find any error committed by the Trial Court in convicting the appellant-accused under Section 302 of the IPC read with Section 135 of the Bombay Police Act. Hence the appeal fails and stands dismissed accordingly.
(A.L. DAVE, J.) (A.J. DESAI, J.) pnnair