(Per : HONOURABLE MR.JUSTICE A.J. DESAI)
1. By way of present appeal, the appellants have challenged the judgment and order dated 29.6.2006 passed by learned Sessions Judge, Patan in Sessions Case No.73 of 2005 by which the accused persons were convicted for Section 302 read with Section 34 of Indian Penal Code as well as Section 447 of Indian Penal Code, and sentenced them for life imprisonment and fine of Rs.1,000/-, and in default S.I. for one month as well as R.I. for one year and fine of Rs.500/-, and in default S.I. for 15 days.
2. The brief facts of the prosecution case are as under:
2.1 On 23.6.2005 one Jayaben (P.W.4 Exh.42) wife of Bachabhai Vajabhai disclosed an incident before Santalpur Police Station in which she alleged that the appellants-accused had attacked her husband deceased Bachabhai Vajabhai with deadly weapon like dharia in the field of deceased in her presence. Pursuant to which the deceased sustained serious injuries and ultimately succumbed to the injuries when he was being brought in the Government hospital at Santalpur. The said information was recorded as First Information Report. Pursuant to which the investigation started by Santalpur Police Station. Having been found sufficient material against the accused persons, chargesheet was filed by the police against the appellants-accused under Section 302 read with Section 34 of Indian Penal Code as well as under Section 447 of Indian Penal Code in the Court of learned JMFC at Radhanpur, who in turn committed the case to the Sessions Court at Patan which was numbered as Sessions Case No.73 of 2005.
2.2 After examining several witnesses and perusing the documentary evidence, the learned Sessions Judge at Patan came to the conclusion that the appellants have committed the offence for which they were charged and convicted the accused under Section 302 read with Section 34 of Indian Penal Code as well as Section 447 of Indian Penal Code as stated hereinabove.
3. Learned advocate Mr.Jay Thakkar appearing for the appellants has taken us through the deposition of about 8 witnesses and has also taken us through the post-mortem notes, serological and FSL reports etc., and submitted that the trial court ought not to have accepted the version of Jayaben widow of Bachabhai, who posed herself as eye-witness to the incident since she is an interested witness because her husband was killed in the incident. It was further argued that the learned Judge ought not to have accepted the testimony of this witness Jayaben, since another witness Arjanbhai Bhikabhai (P.W.5 Exh.43) does not describe the entire incident as alleged by Jayaben in her deposition before the Court. He has further submitted that another witness Ranabhai Manabhai (P.W.6 Exh.44) whom the prosecution has cited as an eye-witness has not supported the case of the prosecution and was declared hostile with the permission of the Court. Therefore, in absence of other eye-witnesses, the learned trial court ought to have discarded the deposition of this witness Jayaben and acquitted the accused persons from the charges levelled against them.
In the alternative, he argued that looking to the injuries sustained by the deceased on a non-vital part of the body, there was no common intention of all the accused persons to commit murder of the deceased. To support his submission, he further submits that the doctor has categorically deposed that the injuries were of such a nature which would not have resulted into death of a person. In view of the injuries sustained by the deceased on non-vital part of the body, the trial court ought to have convicted for lessor offence and not under Section 302 of IPC.
4. On the other hand, learned APP Mr.L.B.Dabhi has supported the reasons assigned by the trial court in arriving at the conclusion that there was common intention of the accused persons to commit murder of the deceased and requested not to alter the sentence by arriving at the conclusion that the appellants-accused had committed offence other than the offence for which they are convicted. He further submitted that if the Court comes to the conclusion that the injuries were on a non-vital part of the body and to commit offence of murder, but the way in which the deceased was attacked with deadly weapons, they had common intention to cause such bodily injury which would result into death. Therefore the accused persons shall be convicted for such offence which would, in his submission, shall fall under Section 304 of Indian Penal Code.
5. We have gone through the deposition of the witnesses as well as the documentary evidence on record.
5.1 Now considering the deposition of Jayaben widow of deceased Bachabhai, we are of the opinion that the way in which she has narrated the time, place and manner of the incident, her presence at the place of incident was a natural one. As per her say in the FIR Exh.51 as well as in her deposition, she went along with the husband at their field in the morning about 6:00 clock and she was walking behind her husband with the breakfast. She was just behind 3 to 4 feet away from the place where her husband was standing in his field. At that time the accused persons came in the field of the deceased and asked her husband to hand over the possession of the field. On refusal by her husband, the accused persons got excited and started giving dharia blows to her husband. It was alleged that appellant - accused No.2 Nagdanbhai Bhikhabhai Ayar gave a dharia blow on right leg of the deceased, appellant - accused No.3 Savabhai Dayabhai Ayar gave dharia blow on right shoulder of the deceased, appellant - accused No.4 Devayatbhai Dayabhai Ayar gave a dharia blow on left hand of the deceased and appellant - accused No.1 Nagabhai Bhikhabhai Ayar had given blow on neck with blunt side of the dharia. Pursuant to this attack, her husband fell down and at that time other persons Arjanbhai Bhikhabhai (P.W.5 Exh.43) and Jivanbhai Narayanbhai (P.W.7 Exh.47) reached at the place of the incident and therefore the accused persons ran away from the scene of offence. She has categorically stated about the role played by each of the accused persons and the defence could not cull out anything in her cross-examination except minor contradiction with her complaint.
5.2 Arjanbhai Bhikhabhai (P.W.5 Exh.43) who reached at the place of the incident has categorically stated in his deposition that he has seen the accused persons running away from the place of the incident with the deadly weapons dharia in their hands. In his cross-examination also the defence could not cull out anything which would suggest that he had not seen the accused persons running away from the place of the incident.
5.3 We are of the opinion that, though Jayaben, widow of deceased Bachabhai, is an eye-witness since her presence at their own field cannot be discarded only on the ground that she is related to the deceased and was interested to see that the accused persons are falsely implicated in the offence. We are therefore accept her version and come to the conclusion that the appellants-accused were the assailants in the incident.
5.4 Now considering the other aspect of the matter, we find that the deceased received about 14 injuries which are either on the hands or on the legs of the deceased. We find the following external as well as internal injuries on the person of the deceased from the post-mortem report Exh.27 which are as under:
"(i) Abrasion -
2 c.m. X 1 c.m. - Post Auricular are of Rt.ear.
(ii) Abrasion - ½ c.m. - on chin.
(iii) C.L.W. - 15 c.m. X 6 c.m. - Rt. Arm.
(iv) C.L.W. - 2 c.m. X 1 c.m. - Ring finger of Rt.hand
(v) Confusion with swelling - 15 c.m. x 6 c.m. - Left Arm.
(vi) Abrasion - 2 c.m. - Between fore finger, middle finger of left hand.
(vii) Abrasion - 2 c.m. x 1 c.m. - Thumb of left hand.
(viii) C.L.W. - 15 c.m. x 10 c.m. x 7 c.m. ((Muscle Bony deep) - Bony Protrusion - Left leg above the ankle joint.
(ix) Abrasion -
Multiple ( 1 c.m. x 1 c.m.) on thigh of Rt. Leg and Thigh
(x) Multiple Abrasion -
Rt. Leg.
(xi) Closed Multiple compound fracture of Humerus of Rt.Hand.
(xii) Fracture (#) of Carpal Bones of fore finger, ring finger of Rt. Hand.
(xiii) Closed compound fracture (#) of shaft of Humerus of left hand.
(xiv) (#) fractures of shaft of Both Bones i.e. fibula tibia of left leg."
5.5 The said injuries are explained by Dr.Kumar Kundan, Medical Officer, CHC Santalpur (P.W.1 Exh.24) in detail, who performed the post-mortem and prepared the notes accordingly. In his opinion, the cause of death is cardio respiratory arrest due to shock produced by massive haemorrhage through different parts of the body. However, he has admitted in his deposition that all these injuries are not of such a nature which would result into death of a person in ordinary course. In his cross-examination he has admitted that none of the injuries which the deceased received was on a vital part. It was admitted by him that, looking to the injuries, the same were not sufficient which would result into death of a person. He himself deposed that if a person is not immediately treated, this type of injury would result into death. He has further admitted that looking to the injuries of fractures which are received on the legs of the deceased, no artery was found cut or broken. The fractures of tibia fibula received by the deceased on his left leg does not show that there was profuse bleeding from the said injury.
5.6 Now considering the overall facts and circumstances of the case, we found that there was some dispute about the field on which the incident took place. In recent past of the incident the field was made free from the mortgage and the work of cleaning the same was going on since last one week. We are in agreement with the submissions made by learned advocate for the appellants that though the deadly weapons like dharia were used in the incident, none of the appellants-accused gave any blow to vital part of body like head, chest, abdominal etc. The injuries received by the deceased are of fractures on both the hands and legs. It does not appear from the attacked by these four appellants-accused that any of the accused was having intention to kill the accused since nobody has given any blow on the vital part of the body. We are, therefore, of the opinion that the common intention of the appellants-accused was to see that the deceased does not cultivate the field and therefore assaulted the deceased on his hands and legs which resulted into grievous hurt to the deceased ultimately resulted into death of the person. In view of this, we are of the opinion that in absence of any ingredients of committing of an offence of a culpable homicide, the cause would fall within the provisions of Section 326 of the Indian Penal Code and, therefore, accordingly they are convicted for the same.
6. For the foregoing reasons, the appeal stands partly allowed. The conviction and sentence recorded by the learned Additional Sessions Judge, Patan in Sessions Case No.73 of 2005 for the offences punishable under Section 302 read with Section 34 of Indian Penal Code is hereby altered to one under Section 326 read with Section 34 of Indian Penal Code, and the appellants-accused are sentenced to undergo R.I. for a period of three years with a fine of Rs.10,000/- each, in default to undergo S.I. for a period of two months. So far as conviction under Section 447 of IPC is concerned, the same is confirmed, however, the sentence is reduced to three months which would run concurrently with the sentence which is imposed hereinabove, and in default, each appellant shall pay a fine of Rs.500/-. If the fine is deposited, half of the amount shall be paid to the legal representatives of the victim by way of compensation. We understand that the appellant No.3 - Savabhai Dayabhai Ayar and appellant No.4 - Devayatbhai Dayabhai Ayar have been bailed out by this Court. They shall surrender to the jail authority within a week from today.
( A.L. DAVE, J. ) ( A.J. DESAI, J. ) syed/ Top