These three appeals are being decided together as they arise from the common judgment and order dated 08.06.2006 in Sessions Case No.10 of 2005 delivered by the learned Additional Sessions Judge, Fast Track Court No.7, Panchmahals at Godhra, whereby the three appellants were convicted for the offences punishable under section 302 of Indian Penal Code, 1860 ('IPC', for sake of brevity), and sentenced to life imprisonment with fine of Rs.1,000/ and in default to pay fine, to undergo further imprisonment for one month. The trial court convicted them also for the offence under section 504 of IPC and sentenced to three months imprisonment with fine of Rs.500/ and in default to undergo imprisonment for further one month. For the offence under Section 114, IPC, they were convicted and sentenced to three months imprisonment with fine of Rs.200/, and in default to undergo imprisonment for further one month. In respect of conviction recorded under section 135 of Bombay Police Act, 1951, the appellants were imposed fine of Rs.100 and upon failure to pay the amount of fine, to undergo further imprisonment for seven days. All the sentences were directed to run concurrently. 2. Ratansinh @ Bako Dhulabhai Bariya, appellant of Criminal Appeal No.1245 of 2006, was accused No.1 (A1), Mukeshbhai Raijibhai Bariya, appellant of Criminal Appeal No. 443 of 2007, was accused No.2 (A2) and Raijibhai Dhulabhai Bariya, appellant of Criminal Appeal No.1696 of 2006 was accused No.3 (A3), before the trial court. (for the sake of convenience they are hereinafter referred to as A1, A2 and A3)
3. One Chemabhai Galabhai Bariya, aged 60, was murdered in an incident that took place on 28.09.2004 at around 8:30 in the morning in agricultural field. The prosecution case as revealed from the complaint (Exh.50) lodged by Pratapbhai Chemabhai Bariya, son of the deceased, (PW10) was that he and his fatherthe victim, had gone to their field at around 8.00 a.m. for watering rice crop grown there. At that time A1 and A3 armed with sticks and A2 armed with an iron pipe arrived there. Upon exchange of words over taking water, they got angry and assaulted Chemabhai. They caught hold of the victim, lifted him and took him to adjoining field. The complainant could run away. Hearing the shouts of the complainant, his brothers and the mother came out and reaching the place in the field, found Chemabhai lying seriously injured there having suffered the blows inflicted on different parts of the body. He succumbed to the injuries.
4. This Court heard Ms. Sadhna Sagar, learned advocate for appellants in Criminal Appeal No.1245 of 2006 and Ms. Nisha Parikh, learned advocate for the appellants in the other two appeals. Mr. R. C. Kodekar, learned Additional Public Prosecutor appearing in all three appeals, was heard on behalf of the State.
4.1 Learned advocates for the appellants submitted that the evidence of two eye witnesses was contradictory inasmuch as according to Pratapbhai (PW10), he and his father were together in the field whereas as per the deposition of Udesinh (PW8), the deceased had come to the field alone and PW10 came later. It was further submitted that the eye witnesses were not independent witnesses being related to the victim. According to the learned advocates, the prosecution had failed also in establishing the place of incident. It was submitted that as per the prosecution story, the victim was watering the rice crop when the accused persons had arrived, however, he was found lying injured near the crop of udad. It was next submitted that no blood marks were found on the crime weapons, and, therefore, accused persons were entitled to a benefit of doubt.
4.2 Learned Assistant Public Prosecutor on the other hand submitted that the evidence of the eyewitnesses was cogent on occurrence of the incident. The accused persons were armed with sticks and iron pipe, they beat the victim severely with an intention to kill him and without any provocation. The injuries were serious and if viewed in light of medical evidence, the offence of murder was proved.
5. This Court examined the evidence on record. Amongst the witnesses examined by the prosecution, Pratapbhai (PW10, Exh.42) and Abhesinh (PW8, Exh.37) were the eye witnesses who deposed to give account of the occurrence of incident. PW10 deposed that the accused persons arrived when he and his father were at their field in the morning of the fateful day to water the rice crop. The accused persons were armed with sticks and iron pipe. They objected to taking of water, spoke abusive and upon exchange of words, got angry and assaulted his father Chemabhai. The accused persons catching hold of Chemabhai virtually lifted him and took him to the adjoining field and continued to beat him mercilessly with the weapons they had carried. PW10 stated that he managed to run away and after reaching near his house raised shouts. His two brothers Mohanbhai and Ganpatbhai and mother Bodiben heard the shouts and came out. They all went back to the field where they saw the victim lying injured and bleeding from his head. He was found to have been given indiscriminate blows on the head, on the hand and on the legs. PW10 deposed that the victim was lying where the udad crop was grown, near to the standing rice crop. PW8 deposed in similar veins and stated that he was in his field when Chemabhai came to water the rice crop. The accused persons also came at that time and started beating Chemabhai with sticks etc. and ran away. He stated that PW10 raised shouts.
5.1 Somabhai (PW9, Exh. 38), Mohanbhai (PW11, Exh.43), Ganpatbhai (PW12, Exh.44), being the sons of the deceased, and mother Bodiben (PW13, Exh.47) were also examined. PW11, PW12 and PW13 had reached the field after hearing the shouts of PW10 and had seen Chemabhai lying beaten in the field. PW12 deposed that his father was lying injured in the field where udad was grown and in the surrounding there were other crops. Thus, with his evidence the evidence of PW8 and PW10 in respect of the place of assault where the victim was effectively beaten and laid injured, were corroborated.
5.2 According to panchnama of the place of incident (Exh.12), the place was in the field where udad crop was grown. At that place, the grass and the cropplants were found smashed and shattered. The blood was seen on the portion of the soil which was on the grass. Green coloured slipper in broken condition was recovered. Exh.12 recorded that the crops of Dangar, Udad and Tuver were grown near to one another. The location of the fields depicted in the map (Exh.66) and described in the panchnama (Exh.12) were mutually informing.
5.3 PW10 and the victim had gone to their field ‘Pandediwala’ where rice was grown and the crop of udad was grown adjoining. The crops of rice and udad were close to each other in the different fields. The evidence showed that the accused persons while beating the victim, literally lifted him and took him to the adjoining field where udad was grown and continued to belabour him at that place giving multiple blows with stick and iron pipe on different parts of the body. The victim lying at that place was seen by PW8, PW10, PW12 and PW13 when they reached there. At that place blood stained soil, shattered grass and plants and broken slippers were found. The signs of violence was noticed. The place of incident was duly established by evidence on record.
5.4 The clothes of the deceased were recovered as per the panchnama (Exh.18). Recovery of crime weapons was under panchnama (Exh.25). The iron pipe recovered was of length of 3 Ft. 4 inches. Of the two sticks, one was 3 Ft. 2 inches long and the other was 4 Ft. long. Both Exhs.18 and 25 were proved by the evidence of panch witnesses Kalsingbhai Patel (PW3, Exh.17) and Ramesh Bhikha (PW7, Exh.35). The FSL Report (Exh.72) showed that the stains of blood on the clothes of the deceased was of the same blood group as that of the deceased. The blood of same group was found on the soil in the grass and on the sleepers recovered from the place of crime.
5.5 The appellants' contention that the evidence of two eye witnesses was contradictory was selfdefeating inasmuch as in order to contradict any of the two eye witnesses with either, the correctness of evidence of the other witness had to be accepted. Even if the evidence of either of the eyewitnesses is considered separately without reference to the other, it would help to prove the happening of the incident. Even otherwise, what was sought to be termed as contradiction by learned advocates, was in the nature of minor discrepancy when the evidence is read in its entirety. In A. Shankar Vs. State of Karnataka [AIR 2011 SC 2302], the Supreme Court observed that in all criminal cases normally discrepancies occur in the deposition of witnesses due to normal errors of observation, namely errors of memory due to lapse of time or due to mental disposition. Where the omissions amount to a contradiction, the truthfulness of the witnesses may be doubted and the evidence may not be safe to rely upon, but minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be a ground on which the evidence can be rejected in its entirety. The occurrence of incident in which the attack on the victim by the accused persons armed with the was proved by cumulative evidence on record. When that is the position, a marginal deviation in the evidence of eye witnesses which was otherwise consistent in all respects, could not corrode the credibility of the prosecution case.
5.6 Nor it was possible to accept the contention of the appellants that the eye witnesses being related to the victim, they could not have been relied upon. The evidence of PW8 and PW10 could not be doubted more particularly when they deposed natural and consistent on the manner of occurrence of incident of crime. As held by the Supreme Court in Sonelal Vs. State of M.P. [AIR 2009 SC 760], merely because eye witnesses are family members, their evidence cannot be per se discarded. It was observed that relationship is not a factor to affect credibility of a witness.
5.7 It was also sought to be contended for the appellants that no blood marks were found on the crime weapons, for which a benefit of doubt has to go to the accused persons. The weapons used in commission of crime were sticks and iron pipe, which were not sharp edged weapon such as knife, which would penetrate in the body and would cause wound thus. Considering the kind of weapons involved and considering the nature of injuries which were fractures on different parts of the body besides two head injuries, it could not be said that absence of blood on the crime weapons was an exceptional circumstance which would by itself weaken the prosecution case, especially when the other relevant evidence on record considered as a whole convincingly proved the offence by the accused persons.
5.8 The postmortem report (Exh.58) mentioned 8 external injuries, which included fractures on five parts of the body. The internal injuries also showed fractures on different parts. The external injuries mentioned at Exh.58 were as under.
(1) CLW on (Rt) Parietal frontal area, size of 4 X 5 cms 1/2 cms X 1/2 cms Reddish Brown colour wound Border after Remove stitches obliquely vertical
(2) CLW on (Lt) Parietal Temporal obliquely vertically, size 3 X 1/2 cms X 1/2 cms Deep Reddish Brown Color
(3) Swelling and Deformity (Rt) Arm Mid Fracture S/F Closed i.e. Disfigeration would CLW
(4) (Lt) CLW Forearm with Haematoma 3 cms X 1 cms X Bone Deep with 8X3 cm fore Arm Mid area Reddishbrown
(5) CLW (Lt) Leg (Mid 3rd) after removing hospital bendage front cut Tibia Fibula size 2.5 cms X 1/4 cms X 1/4 cms
(6) CLW (Lt) Leg L3rd Regn front (T/F) 2 cms X 1/4 cms X 1/4 cms
(7) Depressed Fracture Ribs (Rt) Chest upper medially front chest
(8) Fracture (Lt) Forearm R/U on lower 3RD Regn seen on palpation
5.9 The cause of death as per the certificate (Exh.59) was ‘shock followed by head injury and multiple injuries and lung rupture’. The injury No.1 and 2 was on the head of the deceased. Dr.Rameshchandra Chauhan (PW18, Exh.57), who conducted postmortem, in his evidence described the injuries. According to him, the injuries suffered by the victim were possible by hard and blunt substance and they were possible by sticks and iron pipes. He deposed to opine that the death of the victim was the result of head injuries as well as other injuries and because of rupture of lungs and that he had certified accordingly.
6. As the evidence showed that the injuries were serious and were sufficient to cause death in ordinary course, it raised presumption of intention, in absence of anything on record to rebut the intention. In the above circumstances, the ingredients of clause Thirdly of section 300 of IPC could be said to be duly satisfied, as held in the celebrated judgment in Visra Singh Vs. State of Punjab [AIR 1958 SC 465]. The following observations by the Supreme Court may be pertinently recorded.
"The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."
6.1 The rule in Visra Singh (supra) has been followed consistently in umpteen number of judgments. In Thangaiya Vs. State of Tamil Nadu [(2005) 9 SCC 750], the Supreme Court reiterated the principles and held that even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention causing death, the offence would be murder. It was observed that the illustration (c) appended to Section 300 clearly brings out this point. It was observed, “Under clause “thirdly” of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted.”
6.2 No evidence was adduced or shown, nor any circumstance was brought out by the defence which could bring the case within any of the exceptions of Section 300, IPC. The evidence on record taken in its totality having been established, the occurrence of the incident and the involvement of the accused persons wielded with weapons, and the medical evidence on the kind and nature of injuries, which was serious upto cause death in ordinary course, and the death being the outcome of those injuries, the offence of murder was proved.
6.3 Considering the evidence on record and the parameters for offence of murder, the inescapable conclusion is that appellants were guilt for offence punishable under Section 302 of IPC. The other offences for which they were charged were also proved on the basis of evidence on record.
7. Accordingly, the impugned common judgment and order of learned Additional Sessions Judge, Fast Track Court No.7, Panchmahals at Godhra, in Sessions Case No.10 of 2005 and the conviction and sentence recorded thereunder, do not warrant any interference. All three appeals fail and they are hereby dismissed.
[A. L. DAVE, J.] Amit [N. V. ANJARIA, J.]