IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL No. 2156 of 2004
With
CRIMINAL APPEAL No. 2257 of 2004
For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= KISHORBHAI DAHYABHAI CHAUHAN & 3 - Appellants Versus THE STATE OF GUJARAT - Opponent =========================================================
Appearance :
MR ND GOHIL and MR ASHISH DAGLI for Appellants MR RC KODEKAR ADDL PUBLIC PROSECUTOR for Opponent ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE N.V. ANJARIA
Date : 29/03/2012
CAV JUDGMENT (Per : MR.JUSTICE D.H.WAGHELA)
1. These appeals are preferred from common judgment and order dated 08.11.2004 of learned Additional Sessions Judge, Bhavnagar. All the appellants are, by the impugned judgment, convicted for the offences punishable under section 302 read with section 34 of the Indian Penal Code (IPC) and accordingly sentenced to imprisonment for life and fine. According to the prosecution case, the complainant and his friend Pravin were sitting in a rikshaw at the rikshaw stand at around 7.30 p.m. on 25.3.2004 when the accused-appellants came there and one of them, Kishor Bachubhai, called upon Pravin and asked his companions to beat up the victim. Then, Budhabhai @ Kaliyo, Kishor Dahya and Pratap Dana came out of the rikshaw and seeing knife in the hands of Kaliyo, the victim gripped his hand, but Kishor Bachubhai and Kishor Dahya caught hold of the victim and Kaliyo repeatedly stabbed the victim after regaining the knife from the victim. Then, Kishor Bachubhai took the knife from Kaliyo and dealt two stabbing wounds on the chest of the victim. The cause of the altercation was alleged to be that Kishor Bachubhai and Pravin had a quarrel before about two months about a bi-cycle. The victim Pravin was taken to the government hospital where he succumbed to the injuries and chargesheet for the offence under section 302 of IPC came to be filed against all the accused persons after the investigation. For the sake of convenience, the accused-appellants are described herein as A-1 (Budabhai @ Kaliyo, son of Bholabhai Shamjibhai Vegad), A-2 (Kishorbhai, son of Dahyabhai Lakhmanbhai Chauhan), A-3 (Kishor @ Khanna, son of Bachubhai Nanubhai Dharajiya) and A-4 (Pratap @ Bobi, son of Danubhai Chhaganbhai Parmar). According to the charge framed on 29.7.2004, A-1 and A-2 had caused the fatal injuries and A-3 and A-4 had held the victim to commit the offences punishable under section 302 read with section 34 of IPC and under section 135 of Bombay Police Act.
2. Among the important witnesses examined by the prosecution, Vinubhai Valjibhai (PW.1, Exh.15) deposed that he was a friend of the victim Pravin and had been with him on the fateful day and had been sitting in a rikshaw after dark. At that time, somebody came and asked whether Pravin was there. After Pravin alighted from rikshaw, that person had dealt blows on the victim and run away in two to three seconds. Thereafter, he and Mansukhbhai, the rikshaw driver, had taken Pravin to hospital and informed the wife and the younger brother of Pravin. He turned hostile and claimed ignorance about what was written in his statement before Police. He denied all the important suggestions made during his cross- examination and stuck to his stand that he did not know the assailants. Upon being asked by the Court, he stated that he was afraid of the assailants as they might as well kill him. During his cross-examination by the defence, he deposed that the accused were used to go for eating pav bhaji at the cart of the victim and they had a quarrel with Pravin about 15 to 20 days before the incident. He admitted that the victim had four or five cases pending against him for scuffles and beating, and he had also been in jail for a year under the Prevention of Anti Social Activities Act (PASA). He also admitted that the victim was of highly irritable nature, and that the incident had happened where there was no street light in the vicinity, but it was a public square and he had not come out of the rikshaw at the time of the incident.
2.1 Another eye-witness Mansukhbhai Vanraj (PW.2, Exh.16) also turned hostile and deposed that Vinod and Pravin were his friends and he had not given names of any of the accused to the police and when he came out of the rikshaw, Pravin was bleeding and lying on the ground. Thereafter he had gone to inform the wife and brother of the victim that Pravin was injured by someone.
2.2 Manojbhai Ranchodbhai (PW.3, Exh.17), brother of the victim, deposed that when he reached the spot of the incident, the victim was found to be bleeding and he had taken him to hospital in a rikshaw. Vinod and Mansukhbhai had met him on the way and informed him about stabbing of his brother. He also turned hostile and deposed in cross- examination that he was told by Vinod that A-1 and A-3 had injured Pravin with a knife and Vinod had not given names of two other accused. He also deposed that his brother had no enmity with the accused, but he admitted that there were several criminal cases pending against the victim and he had many enemies in the area.
2.3 Lilaben, wife of the victim (PW.4, Exh.18), deposed that Mansukhbhai had come to inform her about stabbing of her husband by A-1 and A-3 due to which she ran to the spot. When she asked Pravin about the assailants, she was told that two persons had held him and two others had assailed. In her cross-examination, she categorically denied that names of the two accused persons as the assailants were disclosed by the deceased and she admitted that the victim had quarrels with so many people and was facing several criminal cases.
2.4 Ranchodbhai Shivabhai (PW.5, Exh.19), father of the victim, deposed that he was at his cart at the time of the incident and when he reached hospital, the deceased had told him that there were four persons and given the names of A-1 and A-3, out of whom A-1 was stated to have stabbed him in the chest and A-3 was stated to have injured his hands with blows of knife. He further stated that he himself had got Pravin arrested as he used to wander with his friends.
2.5 Bhupatbhai Ranchodbhai (PW.6, Exh.21), brother of the victim, also deposed to have reached the hospital after the incident and stated that A-3 and the victim had quarrelled as A- 3 and others were used to come to his cart for eating pavbhaji.
2.6 Panch Witnesses, namely Bharatbhai (PW.7, Exh.22), Mohanbhai (PW.8, Exh.24), Bharatbhai (PW.9, Exh.31) as also witness Kalusha Ibrahimsha Shaikh (PW.10, Exh.33) turned hostile and did not support the prosecution case.
2.7 Fulsingh Amarsingh Gohil (PW.12, Exh.36) conducted the investigation and related recovery of the weapon, bloodstained clothes etc. and recording of statements. He admitted in his cross-examination that he was not informed about names of the assailants through the telephone received from the hospital, even as Vinubhai had in his complaint stated that A-3 had asked the other accused to kill the victim and A-1 had alighted from the rikshaw with a knife in his hand.
2.8 Dr. Satishbhai Dinkarbhai Kalele (PW.13, Exh.49) inter alia deposed that following external injuries were found on the body of the deceased when he supervised the postmortem on 26.3.2004:
“ On removing the dressing on right side chest, two stitched wounds were seen.
Vertically oblique 5 cm long stitched wound with 5 black intrepted stitches on front of the right side of the chest, just inner to right nipple. On removal stitches margins of the wound were sharply cut. The wound enter between 3rd and 4th rib which were sharply cut alongwith underlying muscles, haemorrhage was present in wound. Internally this wound penetrated through the lower lobe of right lung then went through the diaphragm the right lung was pale and collapsed. Right chest cavity was filled with 2.5 liter blood.
(2) Transverse 1 cm long stitched wound with 1 black stitch on right front and outer side of chest in anterior axillary line 6 cm to the right of lower end of injury No.1. On removing the stitch margin were sharply cut and haemorrhage was present.
Internally the wound entered the right chest cavity between the two ribs, this wound appears to be due to treatment without any injury to internal organ.
On removal of dressing of right hand, the following injuries were seen.
(3) Transversely placed muscle deep 1 to 2 cm long sharp cuts were present on middle part of right index, middle and ring finger and also on tip of the right little finger. With haemorrhage in the wound, all this cuts were also possible by single blows by sharp cutting object or the weapon.
(4) Partially stitched wound 8 cm long was found on web space between right thumb and index finger. It was muscle deep and its margins were sharply cut with haemorrhage in the wound.
On removal of dressing of left hand, following injuries were seen:
(5) Muscle deep sharp cut wound was present in the web space between left thumb and index finger. It was 11 cm long, extending upto middle of palmar surface from where sharply cut tendon end of muscle of index finger was protruding out, haemorrhage was present in the wound.
(6) Transversely placed muscle deep 1 to 2 cm long sharp cuts were found on palmar surface of left middle and ring fingers on middle phalanx with sharply cut margins and haemorrhage in the wound, possible by one blow.
(7) Transversely place 1 cm long stitched wound of venesection present on medial aspect of left ankle. 2.5 cm above left medial malleolus with black stitch inside the wound.
(8) Vertically oblique 2.5 x 0.5 cm stab wound with upper end blunt and lower end pointed directed downward, forward and laterally going into the muscle then in the right chest cavity between 2 ribs found on right side back of chest just to right of midlishe, 12 cm below the nape of the neck, margins were sharp cut with haemorrhage in wound. Internally this wound has penetrated right atrium of the heart through posterior wall and was haemorrhage pericardial cavity and right chest cavity.
All above injuries were ante-mortem injury, all this injuries possible by sharp cutting instruments.”
The witness described the cause of death to be due to haemorrhage shocks on account of stab injuries which penetrated into the chest cavity along with the corresponding internal injuries.
3. The trial Court has, after reference to the relevant evidence, recorded the findings that the witness Mansukhbhai (PW.2) was definitely at the spot and had disclosed the names of at least two assailants before the other witnesses when he rushed to inform them. That blood of the group of the blood of the victim was found on the clothes of all the accused persons, except A-4, and the knife, weapon of the offence, with blood of the blood group of the victim was recovered at the instance of A-1. It was held to have been proved that the fatal injuries could have been caused by the knife and doubts could only be raised about identity and presence of A-4 at the time of the offence. However, Vinubhai (PW.1, Exh.15) and Mansukhbhai (PW.2, Exh.16) having revealed before the police the names of all the accused persons as the assailants and the FSL report having supported the prosecution case, the appellants were convicted as aforesaid by the impugned judgment.
4. It was argued by learned counsel Mr.N.D.Gohil, appearing for A-2 and A-4 that there was complete absence of evidence about presence or participation of those appellants as also about any common intention to injure or kill the victim and, therefore, they were entitled to acquittal as a matter of right. Learned counsel Mr.,Dagli, appearing for A-1 and A-3 , submitted that the prosecution evidence regarding revelation of the names of A-1 and A-3 as the assailants was insufficient and unreliable, insofar as the important eye witnesses had turned hostile and had not fully supported the case of the prosecution. He pointed out that those appellants could not be convicted for the offence under section 302 of IPC only on the basis of the evidence of the investigating officer, who had not stated anything about how and where the weapon was kept for ten days before being sent to FSL. He submitted that, obviously for some obscure reasons, the real facts about the incident were not brought to light, particularly when, admittedly, the investigating officer (PW.12, Exh.36) had recorded statements of various persons residing nearby and none of such independent witnesses was examined. He further submitted that it was proved on record that the deceased was a head-strong person used to picking up quarrels on small issues and any of such persons having disputes with the deceased could have the intention to injure or kill the victim. He also submitted that out of the four main injuries found on the body of the victim, two were on the chest and others were on the fingers of his hands. He argued that the prosecution has failed to prove any motive on the part of any of the accused and hence, in his alternative submission, it could be a case of culpable homicide not amounting to murder in view of absence of any evidence about any premeditation or common intention and in view of the very short duration during which the offence was alleged to have been committed in the dark; and it could at best be described as an incident of sudden fight and random injuries and the assailants could not be attributed a common intention to kill. It was further stated in the written submissions on behalf of A-1 and A-3 that, without accepting involvement of the appellants and without prejudice to their contentions, those appellants were ready and willing to deposit an amount to the tune of Rs.50,000/- as fine/ compensation.
5. Learned counsel Mr.Dagli relied upon recent decisions of the Apex Court in Elavarasan v. State [2011 Cri.L.J. 4329] and Sayaji Hanmat Bankar v. State of Maharashtra [2011 Cri.L.J. 4338], to submit that in case of sudden quarrel without any premeditation, accused would be liable to be convicted under section 304 of IPC. Another decision of the Apex Court in Alister Anthony Pareira v. State of Maharashtra [2012 (1) G.L.H. 405] was relied upon for the submission that, when accused was about 20 years of age at the time of incident and the charge of offence under section 304 Part-II of IPC showed despicable aggravated offence warranting punishment proportionate to the crime, the Court had considered the objectives of the sentencing policy, which are deterrence and correction. In the facts of the present case, the victim having a quarrelsome attitude and he as well as all the accused persons belonging to a poor and backward strata and being of relatively young age, the Court was required to take a lenient view in imposing fine and punishment, according to the submission.
6. Considering the aforesaid evidence on record and submissions of learned counsel as also the fact that one of the appellants (A-3) having been stated to have unexplained injury to himself, as indicated by Exh.43, it is clear that the deceased was victim of culpable homicide and at best A-1 and A-3 were reported to be involved and present at the incident. However, there is absence of any clear and reliable evidence about how the incident happened, who first assaulted whom and who inflicted which injuries. It is, therefore, difficult and unreasonable to assume that all the appellants have simultaneously and with common intention participated in the commission of the offence so as to catch hold of the victim and stab him to death. The injuries on the hands of the deceased indicated a scuffle which would naturally happen as the victim could not have received the injuries without any resistance. However, injuries on the vital parts of body of the deceased with a deadly weapon like a knife also indicated intention of the assailants to cause such injuries as they could be presumed to have the knowledge that they could result into death. As the names of A-1 and A-3 are clearly revealed and blood of the victim was found on their clothes, they were proved beyond reasonable doubt to have been involved in the assault which resulted into death of the victim. Therefore, in absence of any conclusive evidence about involvement, intention or presence of A-2 and A-4, aged 19 and 21 at the time of the offence, they are required to be given the benefit of doubt; while A-1 and A-3 could be convicted for the offence punishable under section 304 of IPC; attributing to them at least the knowledge that their act of armed assault and stabbing on the chest could result into death.
7. Accordingly, Criminal Appeal No.2257 of 2004 is partly allowed and the impugned judgment is set aside to the extent that appellants, viz. Budhabhai @ Kaliyo, son of Bholabhai Shamjibhai Vegad and Kishor @ Khanna, son of Bachubhai Nanubhai Dharajiya, are convicted for the offences punishable under section 304 Part.II read with section 34 of IPC and sentenced to eight years of rigorous imprisonment, with fine of Rs.30,000/-, in default of payment, to undergo further rigorous imprisonment for two years. If and as soon as the fine is paid, it shall be disbursed in equal proportion to the father and the widow of the deceased by way of compensation. And, Criminal Appeal No.2156 of 2004 is allowed and the appellants therein, viz. Kishorbhai, son of Dahyabhai Lakhmanbhai Chauhan and Pratapbhai @ Bobi, son of Danubhai Chhaganbhai Parmar, are acquitted and fine, if any paid by them, shall be refunded to them. They being on bail, pending the appeal, their bail bonds shall be cancelled after six months so as to enure till then in compliance with the provisions of section 437- A of the Code of Criminal Procedure.
( D.H.Waghela, J.) (KMG Thilake) ( N.V.Aanjaria, J.)