(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The present appeal arises out of judgement and order dated 19.06.2004 rendered by Sessions Court, Valsad, in New Sessions Case No.480 of 2002 (Old Sessions Case No. 159 of 2001). The appellants were the accused before the trial court and were charged for offences punishable under sections 452, 324, 323, 336, 302, 427 and 506(2) all read with section 114 of the Indian Penal Code.
2. As per the prosecution case, first informant Ramanbhai had an altercation with some of the accused persons at about 9.00 a.m. on 28.05.2001. It is the further case of the prosecution that at about 12.00 noon, the accused persons went to the house of the first informant, and trespassed into the house. Thereafter, they attacked Ramanbhai (PW-4), Ramjibhai (PW-9), Dhaulubhai (PW-10), Gopibhai (PW-11), Rajeshbhai (PW- 12) and Rashmiben (PW-13), along with deceased Gopjibhai Ramanbhai, and caused hurt to witness Ramjibhai (PW-9), Dhavulubhai (PW-10) and Rajeshbhai (PW-12), with weapons like sticks and iron rod. It is further the case of the prosecution that Gopjibhai was attacked on head and stomach, which proved to be fatal for him. First Information Report (F.I.R.) was lodged in this behalf at about 6.00 p.m. on the day of the incident by Ramanbhai (PW-4). On the basis of the F.I.R., offence was registered and investigated. At the end of the investigation, police, having found sufficient material, filed charge sheet in the court of Judicial Magistrate First Class, Dharampur, who in turn committed the case to Sessions Court at Valsad, and Sessions Case came to be registered.
3. Learned advocate Mr. Shethna appears for appellants No. 1, 2 and 3 and Ms. Meenu Kumar appears for appellants No. 4 and 5 and Mr. R.C.
Kodekar appears for the State.
4. It is contended on behalf of the appellants that the conviction of the appellants for offence of murder with the help of section 114 of Indian Penal Code is erroneous. There is no evidence on record to show that accused nos. 1 to 4 in any manner attacked the deceased or aided or abetted accused No.5 for the commission of offence. Accused No.5 is alleged to have given the fatal blow. It was submitted further that pursuant to an incident occurred at 9.00 `O' clock in the morning on the date of incident, five persons were alleged to have gone to the house of the first informant Ramanbhai. They were alleged to have armed with sticks and an iron rod. They had a grievance against Ramanbhai, but as per the prosecution case, after going there, they alleged to have dragged Rajeshbhai out of the house, for which no reason is indicated, and thereafter, when the other family members moved out of the house, they were allegedly attacked by the accused. But, it is nobody's case that any of the injured eye witnesses or other eye witnesses had ever tried to intervene the attack on the deceased by accused No.5. It was, therefore, contended that the prosecution has failed to lead any evidence to show that accused No.1 to 4 neither by active participation in the attack on the deceased aided or abetted the act of accused No.5 nor there is any evidence to show that passively they aided and abetted the commission of offence by accused No.5 when they attacked the witnesses, since it is nobody's case that the witnesses tried to deter accused No.5 from attacking the deceased. Therefore, the element of aiding and abetting is missing, and therefore, they could not have been convicted for the offence of murder with the help of section 114 of the Indian Penal Code. There is no charge of having any intention or a common objective.
It was then further submitted that prosecution has examined in all seven witnesses claiming to be eye witnesses to the incident, and none of them alleged any action on the part of accused No.3 Dhakaliyabhai. So far as accused No.4 Chandubhai is concerned, only one witness Dhavulubhai (PW-10) states that he was attacked by Chandubhai, and that Chandubhai also attacked deceased Gopjibhai with stick on his head and stomach. It was submitted that, if the offence of this witness is seen, in cross- examination, he admits that his entire version is an improved version, about which he did not say anything before police.
5. So far as accused No.5 is concerned, he is alleged to have given a blow on the head of Gopjibhai with iron rod. He is also alleged to have hit the deceased on his abdomen, and have beaten Rajeshbhai as well as Ramanbhai.
6. The sum and substance of the arguments of learned advocates for the appellants is that section 114 of the Indian Penal Code is wrongly applied, as the act of each of the accused would be independent of each other, and at the best, they would be responsible for their individual acts.
It was submitted that the prosecution witnesses are not coming out with true genesis of the incident. The F.I.R. was registered belatedly and after deliberations, and thereby, several persons have been implicated. It was, therefore, urged that the appeal may be allowed.
7. Learned A.P.P. has opposed this appeal. According to him, the trial court has taken into consideration all the relevant aspects while rendering the judgment. All the five accused persons have collectively gone to the house of the victim, committed trespass, and then committed the assault. Therefore, they were all acting in a concert, and therefore, they would be vicariously liable for the act of each other. It is, therefore, submitted that the appeal may be dismissed.
8. We have examined the record and proceedings in the context of rival submissions.
9. At the outset, we may record that all the five accused persons are alleged to have gone to the house of the victim, pursuant to an altercation that took place at about 9.00 a.m. on the day of incident. They were all armed with sticks and an iron rod. They all have rushed into the house of the first informant, whereafter, the incident occurs, where several persons have been injured, and one of them was done to death. Prima facie, therefore, it would appear that they were not acting in a concert, and they committed the offence to square up with the other side.
10. However, a close scrutiny would show that accused No.2 Ishwarbhai had dispute with Ramanbhai (PW-4). They all went to the house of Ramanbhai, and then, as per the allegation, dragged Rajeshbhai out of the house with whom they had no dispute whatsoever. As per the prosecution case, Rajeshbhai was dragged out of the house, and therefore, rest of the witnesses came out of the house, and at that point of time accused No.5 attacked Gopjibhai. It is not the case of the prosecution that either Gopjibhai or any of the witnesses tried to rescue Rajeshbahi or tried to intervene. Grievance, if any, was against accused Ishwarbhai. Therefore, it cannot be said that they were acting pursuant to either any intention or any fulfillment of their common objective.
Then what remains is application of section 114 of the Indian Penal Code. Here, it is to be noted that the accused persons after entering the house allegedly dragged Rajeshbhai out of the house, and the other witnesses followed them. None of the witnesses is alleged to have either intervened or tried to rescue Rajesh, not atleast Gopjibhai. Therefore, none of the accused persons would have any reason to attack Gopjibhai. Gopjibhai, as it emerges from the evidence of only Rashmiben, that he tried to rescue, and in that, accused No. 5 attacked him with an iron rod. None of the other accused persons is alleged to have attacked deceased Gopjibhai nor is it the case of the prosecution that any of the witnesses tried to save Gopjibhai, and the other accused persons deterred that witness from rescuing Gopjibhai, and thereby, aided and abetted the commission of crime by accused No. 5. In our opinion, therefore, application of section 144 of Indian Penal Code for recording conviction for any of the offences is ill- founded.
11. We may also observe that it is nobody's case that any of the accused persons had any grievance against each other, and whatever is done can be said to have been done on a spur of moment, and not by way of a concerted effort.
12. With the above background, if the evidence is seen, none of the witnesses say anything about any offence to have been committed by accused No.3 Dhakaliyabhai. His conviction is, therefore, not sustainable at all.
13. So far as accused No.4 – Chandubhai is concerned, none of the witnesses, except Dhavulubhai (PW-10), say anything against accused No.5. Dhavulubhai in his evidence (Exh. 45) says that he was beaten by accused No.4. He also says that accused No.4 attacked Gopjibhai with stick on his head and stomach. However, if the evidence of Dhavulubhai is seen, particularly, in the cross-examination, he admits that he had not stated before police in his statement that he had gone to the house of Gopjibhai at 12.00 noon. He also admits that he has never gone to the place of incident.
This would rule him out as an eye witness and therefore whatever he has stated about accused No.4's role cannot be taken into consideration. As such, that leaves no evidence against accused No.4 and his conviction also cannot be sustained.
14. As discussed earlier, only Ishwarbhai had some dispute with Ramanbhai and the accused persons after entering the house of the first informant Ramanbhai as alleged have dragged Rajeshbhai out of the house, rather than doing anything to Ramanbhai, and after Rajeshbhai is brought out of the house, when the witnesses come out of the house, only Gopjibhai is allegedly attacked by accused No.5 with iron rod, to which there is no evidence of any aiding or abetting by any of the other accused. Therefore, accused No.5 Harjibhai can be held responsible for the fatal injury to the deceased. The said injury is opined to be sufficient in ordinary course of nature to cause death by Dr. Vibhootiben C. Patel (Exh.37). The blow was given by accused No.5 with an iron rod. It was given on a vital part of the body like head. It was given with such a force that a depressed fracture is caused, and there is damage to brain as well. There is a subdued hemorrhage on both the temporal parts. The injuries on head are four in number. This leaves no doubt in our mind that an offence of murder is constituted against accused No.5 Harjibhai.
15. So far as accused No.1 is concerned, he is alleged to have dragged Rajeshbhai out of the house, and has given stick blow on the back of Rajeshbhai and Ramjibhai. So far as injuries of these persons are concerned, they are in the form of tenderness and bruises. This would mean that the blow, which is given with a stick, was not with any great force. The injuries are simple in nature, and therefore, accused No.1 can at the best be said to have committed an offence punishable under section 324 of the Indian Penal Code.
16. Similar is the case of accused No.2 Ishwarbhai. The case against him is that he ran towards Ramanbhai. However, Ramanbhai escaped. He is also alleged to have given stick blow to Ramjibhai, and had beaten Dhavulubhai. He was armed with a stick. So far as injury to Ramjibhai is concerned, it is in the form of tenderness and bruises. So far as beating of Dhavulubhai is concerned, that emerges only in the evidence of Dhavulubhai himself. But, as discussed earlier, he cannot be accepted as an eye witness in the light of his admission, and therefore, accused No.2 cannot be held responsible for alleged beating given to Dhavulubhai. So far as Ramjibhai is concerned, his injuries are simple in nature, and therefore, Ishwarbhai also cannot be held responsible for an offence punishable under Section 324 of the Indian Penal Code.
17. We have heard learned advocates on the question of sentence as well.
18. The appeal stands partly allowed. Conviction of accused No.3 – Dhakaliya Kalu Varli and accused No.4 Chandubhai Dharmabhai Varli for offences punishable under sections 323 and 324 read with section 114 of the Indian Penal Code is hereby set aside. They are acquitted of the charges levelled against them. Accused No.3 – Dhakaliya Kalu Varli is on bail. His bail bond shall stand cancelled. Fine, if paid be refunded to him. Accused No.4 – Chandubhai Dharmabhai Varli is in jail. He be set at liberty forthwith, if not required in any other case. Fine if paid be refunded to him.
19. The conviction of accused No.1 – Rameshbhai Chandubhai Varli and accused No.2 – Ishwarbhai Chandubhai Varli for offence punishable under sections 302, 452, 323 and 427 read with section 114 is hereby set aside. Their conviction for offence punishable under section 324 of Indian Penal Code read with section 114 of Indian Penal Code is altered to one under section 324 of the Indian Penal Code with no change in sentence. Accused No.1 – Rameshbhai Chandubhai Varli and accused No.2 – Ishwarbhai Chandubhai Varli have undergone sentence more than awarded to them, and therefore, their bail bonds shall stand cancelled.
20. Appeal in respect of accused No.5 – Harjibhai Chandubhai Varli is partly allowed. While altering his conviction from section 302 read with section 114 of the Indian Penal Code to one under section 302 of the Indian Penal Code, his conviction for rest of the offences with the help of section 114 is set aside. Fine if paid in respect other offences by him be refunded to him.
(A.L. DAVE, J.) (N.V. ANJARIA, J.) [SN DEVU PPS]