These two appeals arise out of a judgment and order rendered by Sessions Court, Rajkot at Gondal in Sessions Case No.132 of 1998. The appellant of Criminal Appeal No.837 of 2006 was A-1, whereas, the appellant of Criminal Appeal No.666 of 2006 was A-2 before the Sessions Court. They were charged and tried for the offence of murder of Bhimsi Govind, allegedly committed by them on 18/06/1998 at about 20:30 hours in the Gram Panchayat Office by A-2 catching hold of the deceased and A-1 inflicting knife blow on the chest of the deceased. Accused persons pleaded not guilty to the charge and came to be tried. On basis of the evidence led by the prosecution, the trial Court found them guilty and sentenced them to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo RI for one year and hence these appeals. 2. The prosecution case is that on the relevant date i.e. 18/06/1998, at about 20:30 hours, deceased – Bhimsi, who was also of the same village Talasama, was in his office alongwith several other persons working on the water supply scheme. At that point of time, both these appellants went to the office and inquired of him as to what is this water supply scheme and what money is required to be paid. They were informed that they had to pay stipulated amount, but then A-1 asked the deceased as to what, if even after payment, water is not supplied. The reply that came from deceased – Bhimsi was that, if there is water it would be supplied and, if there is no water, water would be supplied from well. That enraged A-1– Sanjaysinh resulting into an altercation and a fight. In that fight, it is the case of prosecution that A-1 gave a knife blow to the deceased, whereas, A-2 caught hold of the deceased. Others intervened and deterred A-2 from inflicting further blows. As a result of the knife blow given by A-1 to the deceased, he started bleeding profusely. He was, therefore, carried to hospital and ultimately he succumbed to the injuries. FIR was lodged by P.W.No.7 –Ramdevbhai.
3. The accused persons in their further statement under Section 313 of the Code of Criminal Procedure explained that they had gone to the office for making inquiries about the water supply, where there was a sudden quarrel. A-1 was attacked by the deceased – Bhimsi with a wooden log and the incident occurred. According to A-2, the incident did not occur in the office room of the Sarpanch, but had occurred outside the office and, he in-fact was trying to separate the two, who were fighting and in that process he is involved as a person having caught hold of the deceased, because he and A-1 went to the office of the Sarpanch together, otherwise there was no participation on part of A-2 in the incident. He did not have knowledge of A-1 carrying a knife in his waist-band and, therefore, he is wrongly convicted.
4. Learned Advocate Mr.Anandjiwala while pleading the case of A-1 submitted that from the evidence he would not be able to contend that there is non-involvement of A-1, but according to him, involvement of A-1 in the incident cannot make him guilty of offence of murder. If the evidence is seen, it is clear that the incident occurred all of a sudden. There was a quarrel and fight and in that, the appellant had inflicted the knife blow. He has inflicted only one knife blow and, therefore, provisions contained in Section 304 would be attracted rather than Section 302 of the IPC. He submitted that A-1 is suffering from hemiplegia and is disabled. He has no other criminal antecedents and, therefore, a sympathetic approach may be adopted while awarding sentence.
5. Learned Advocate Mr.Dagli for A-2 submitted that as per prosecution case the only role attributed to A-2 is having caught hold of the deceased and thereby abetted commission of offence of murder. But, the fact is that A-2 did not have knowledge about A-1 carrying a knife with him. The dialogue and the altercation that occurred was between the deceased and A-1 and A-2 had nothing to do with that dispute. He, therefore, had no reason to catch hold of the deceased even otherwise. Mr.Dagli submitted that A-2 is implicated, because he went to the office almost the same time, when A-1 went to the office. In-fact, he was trying to separate the two, when the quarrel started. He, therefore, cannot be convicted for offence of murder with the help of Section 114 of the IPC. Mr.Dagli submitted that he adopts the arguments of Mr.Anandjiwala so far as principal offence is concerned and submitted that it would attract at the best Section 304 Part-II and not Section 302 of the IPC.
6. Mr.Dagli submitted that in order to show that there was a fight immediately after the incident, A-1 as a nature of reaction had lodged the complaint with Police alleging that deceased - Sarpanch had attacked him with a wooden log. Mr.Dagli submitted that appeal may therefore be accordingly allowed.
7. Mr.R C Kodekar, learned APP has opposed these appeals. According to him, A-1 did not stop after giving one blow. He started giving second blow, but he was prevented by others from doing so. Therefore, A-1 did have intention to cause death of the deceased and, therefore, he has rightly been held guilty of offence of murder. Mr.Kodekar, submitted that A-2 facilitated the causing of death of deceased at the hands of A-1 and, therefore, he is rightly convicted for the offence punishable under Section 302 r/w Section 114 of the IPC and appeals may, therefore, be dismissed.
8. We have examined the records and proceeding in context of rival submissions. Since the learned Advocates for the appellants do not dispute involvement of the accused persons in the incident, the evidence of the prosecution is required to be examined for the limited purpose of deciding whether the act would be covered under the definition of murder or culpable homicide not amounting to murder.
9. In this context, evidence of P.W. No.7- Ramdevbhai Ranmalbhai (Exh.30) who is also a first informant, P.W. No.8-Gobarbhai (Exh.33), P.W. No.9- Mukeshkumar (Exh.38) and P.W. No.10-Govindbhai (Exh.41) are relevant. They are the eye-witnesses to the incident who were present in the office, when the incident occurred. They are independent persons not connected with either side so far as incident is concerned.
10. Their evidence is more or less on the same line. What emerges from the evidence is that the accused persons went to the office of the deceased and inquired of him of about the water supply scheme and the deceased informed that they had to pay Rs.1,000/- for water tank connection. That connection would be limited to the private property. At that time, A-1 inquired as to what if water is not supplied even after the payment and the deceased told that if there is water, it would be supplied otherwise, water from well will have to be supplied.
This resulted into an altercation between the two and at that time A-2 caught hold of the deceased, whereas, A-1 inflicted a knife blow. He was about to inflict second blow when the witnesses intervened and prevented him from doing so.
10.1 The above version emerging from examination- in-chief from the witnesses, is required to be tested with the help of other evidence. In this context, it is required to be noted that there is only one injury found on person of the deceased. It is also required to be noted that even if the prosecution story is accepted as it is, then also, there was no premeditation. The accused persons had occasion to inquire about the water supply and in that dialogue an altercation took place. It is now a question whether it followed by a fight or not. In this regard, the case of A-2 in his statement under Section 313 is that he tried to separate the two, but deceased chased A-1 with a wooden log and something happened thereafter outside the office room, wherein the deceased suffered a fatal injury. Suggestions have been put to eye-witnesses also. But, there is contemporaneous record in form of non-cognizable complaint filed by A-1 at Exh.57 being NC no.20 of 1998 regarding the deceased having chased him with a wooden log and having inflicted a blow on his right shoulder. Therefore, the version that is given by A-2 in his statement under Section 313 gets a support from a contemporaneous material which would show that there was a fight between A-1 and the deceased.
10.2 It also emerges from evidence of the witnesses that when A-1 attacked the deceased, they tried to intervene and thereby rescued the deceased. The deceased was then taken to hospital. None of the eye-witnesses have suffered any injury. Their clothes were also not stained with blood and factually there appears to be only one injury on person of the deceased. With this evidence, it is therefore not possible to rule out the possibility of A-1 having no intention to cause death of the deceased. The case therefore would attract explanation-4 to Section 300 of the IPC. There was no premeditation because the accused persons went there to inquire about the water supply scheme. There was a quarrel followed by a fight and A-1 had given only one blow. It therefore cannot be said that he took undue advantage of the situation or that he acted in a cruel manner. Explanation-4 therefore, squarely fits into the facts of the present case. We are, therefore, of the view that A-1 could not have been convicted for offence of murder of deceased – Bhimsi Govind, but he did cause death of the deceased which would be falling in category of culpable homicide not amounting to murder, which would attract Section 304 Part-II of the IPC.
11. So far as A-2 is concerned, he is alleged to have caught hold of the deceased. He reached the office in company of A-1, but no nexus is established between the two that they went there in a group. Further, the entire dialogue has taken place between A-1 and the deceased. There is no history of A-2 having any dispute or enmity with the deceased. There is no evidence to show that he had knowledge about A-
1 carrying knife with him. On the contrary, the cross-examination of P.W. No.7 would show that A-1 was having knife under the waist-band, which he removed by lifting his shirt. Meaning thereby, that the shirt was not inserted in the trouser and therefore, normally one would not know about presence of a knife in the waist-band. A-2 therefore may not have had knowledge about A-1 carrying knife with him. Possibility of his intervening just as others did, cannot be ruled out, which is his defence. There is nothing to infer that A-2 acted to abet offence that was committed by A-1. Therefore, A-2 could not have been convicted for any offence and the trial Court committed an error in recording his conviction.
12. The upshot of foregoing discussion is that Criminal Appeal No.666 of 2006 preferred by org. accused No.2 - Govindbhai Jetsibhai Ahir stands allowed. Conviction of org. accused No.2 for offence punishable under Section 302 r/w Section 114 of the Indian Penal Code and sentence therefor rendered by the learned Presiding Officer, 9th Fast Track Court, Gondal in Sessions Case No.132 of 1998 by judgment and order 30/01/2006 is hereby set aside. He is acquitted of all the charges levelled against him. He be set at liberty forthwith, if not, required in any other case. Fine, if any paid, to be refunded to him.
12.1 So far as Criminal Appeal No.837 of 2006 preferred by org. accused No.1 - Sanjaysinh Anirudhdhsinh Vala is concerned, it stands partly allowed. The org. accused No.1 was in jail for a period of three years, five months and twenty days. We are informed that he was bailed out by this Court on account of suffering from hemiplegia and is suffering from several other ailments. In this peculiar set of circumstances, conviction of org. accused No.1 for the offence punishable under Section 302 r/w Section 114 of the IPC is altered to one under Section 304 Part-II of the IPC and he is awarded imprisonment for the period already undergone by him, with a fine of Rs.50,000/- (Rupees Fifty Thousand Only) in default to undergo R.I. for a period of five years. The fine shall be paid by him within a period of four weeks from today. On payment of fine, Rs.40,000/- (Rupees Forty Thousand Only) shall be paid to the family of the deceased by way of compensation. His bail bond shall stand cancelled.
(A L DAVE, J.) (N V ANJARIA, J.) sompura