IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2311 of 2006 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================= ================ 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 ?
Whether this case involves a substantial question of law as 4 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 ?
========================================= ================ NAYI BHARATKUMAR KESHAVLAL , Appellant(s) Versus THE STATE OF GUJARAT , Opponent(s) ========================================= ================ Appearance :
MR PP MAJMUDAR for Appellant(s) : 1, MR. K.P. RAVAL, ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================= ================ HONOURABLE THE CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :11/10/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B. PARDIWALA)
1. This appeal is at the instance of a convict-accused for the offence of murder punishable under Section 302 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 28th November, 2006, passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Patan, in Sessions Case No.48/2006. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently sentenced him to undergo rigorous imprisonment for life and fine of Rs.5,000/, with a further stipulation that in the event of default of payment of fine the accused shall undergo further Simple Imprisonment for a term of one year.
2. Case of the Prosecution :
The complainant, one Narsinhbhai Dhanabhai Nai was residing at village Chandumana, Ta.& Dist: Patan with his family. The complainant was running a hair-cutting salon at village Chandumana and his nephew, the deceased, Dashrathbhai Somabhai Nai was also running a hair-cutting Salon in the same village. The hair cutting salon of the complainant and that of the deceased were adjoining to each other. The accused was also running a hair-cutting salon in the same village and at the same place. It is the case of the prosecution that the accused used to frequently quarrel with the deceased regarding customers who used to come at the salon of the deceased for a hair-cut. On 27th February,2006, at about 5 O’clock in the evening, the accused picked up a quarrel with the deceased regarding a customer and started hurling abuses. The deceased had asked the accused to stop hurling abuses. The accused got enraged and is alleged to have brought a Danti (sickle) from his hair-cutting salon and hit two blows with the said sickle on the head of the deceased. As the accused inflicted injuries on the head of the deceased, the deceased raised shouts which were heard by the complainant, one Ashwinbhai Vyas and one Kalaji Rashiji, who all rushed at the place of occurrence and tried to save the deceased. The accused is alleged to have ran away from the place of occurrence. The complainant in the company of Ashwinbhai Shivabhai Vyas and Kalaji Rashiji shifted the deceased to Patan Government Hospital for treatment. The complainant lodged the report of the incident at Patan City Police Station on 27th February, 2006 at 22.30 hours for the offences punishable under Sections 326, 324, 504, 506(2) of the Indian Penal Code and Section 135 of the Bombay Police Act.
3. The Doctor at Patan General Hospital, having regard to the serious nature of injuries which the deceased had sustained, advised the complainant and others to shift the deceased to the Ahmedabad Civil Hospital. Accordingly after taking some treatment at Patan General Hospital the deceased was shifted on the same day in the night hours to the Ahmedabad Civil Hospital for further treatment. It appears that on being transferred to the Ahmedabad Civil Hospital, the deceased went in coma and passed away after a period of 5 days.
4. On the strength of the First Information Report lodged at Patan City Police Station, the investigation commenced. The Inquest Panchnama being Exh.27 was drawn in the presence of two panch witnesses. As the deceased passed away during the course of treatment at the Ahmedabad Civil Hospital, the offence of murder punishable under Section 302 Indian Penal Code was added in the FIR. The scene of the offence Panchnama, being Exh.29 was drawn in the presence of the two panch witnesses. The blood stained pant, shirt and a handkerchief of the deceased were handed over to the police by the wife of the deceased, and the same were collected by drawing a Panchnama, being Exh.38. The statements of the witnesses were recorded. The dead body of the deceased was sent for postmortem examination. The postmortem examination, being Exh.14, revealed that the deceased had sustained a wound of 24cms long semi circular in shape from left front to left parietal region. There was a fracture of skull which was felt externally by a touch. The brain matter was found slightly protruded. The cause of death was due to shock as a result of head injury.
5. The accused was arrested on 1st March, 2006, at around 14.30 hours from Kundher Bus Stand. The arrest Panchnama was drawn, being Exh.35, in the presence of two panch witnesses. While in police custody after arrest, the accused expressed his willingness to point out the place where he had concealed the weapon of the offence i.e. the sickle. Accordingly, as pointed out by the accused, the weapon was discovered from the bushes of wild trees. The discovery Panchnama of the weapon was accordingly drawn, being Exh. 31, in the presence of the two panch witnesses. On 3rd March, 2006, the Investigating Officer collected the medical certificate, being Exh.10, from the Patan General Hospital where the deceased was treated on the first day itself. As there was sufficient evidence collected against the accused during the course of investigation, the Investigating Officer filed charge-sheet for the offence of murder, punishable under Section 302 of the Indian Penal Code, against the accused, in the Court of Chief Judicial Magistrate, Patan.
6. As the case was exclusively triable by the Sessions Court, the Chief Judicial Magistrate, Patan committed the case to the Court of Sessions under the provisions of Section 209 of the Criminal Procedure Code. On the case being committed to the Court of Sessions, the Sessions Court framed charge against the accused, being Exh.4, and the statement of the accused was recorded. The accused did not admit the charge and claimed to be tried.
7. During the course of the trial, the prosecution adduced the following oral evidence in support of its case.
P.W.1 Dr. Abidhussain AhmedHusain Mansuri, Exh. 9 the Medical Officer who first treated the deceased at Patan Gen.Hospital.
P.W.2 Dr. Rajendrakumar Bhagirathprasad Exh.13 Joshi, the Doctor who performed the postmortem
P.W.3 Narsinhbhai Dhanabhai Nai, Exh.20 Original complainant and eyewitness.
P.W.4 Ashwinkumar Shivprasad Vyas, Exh.22 Eyewitness.
P.W.5 Vinubhai Girijashanker Thaker, Exh.23 Eye-witness.
P.W.6 Kanubhai Jamabhai Nai, Exh.26 Panch witness.
P.W.7 Babubhai Karamshibhai Rabari, Exh.28 Panch witness.
P.W.8 Hemtuji Hamirji Thakor, Exh.30 Panch witness.
P.W.9 Tribhovanbhai Karsanbhai Parmar, Exh.33 Panch witness.
P.W.10 Babubhai Manusinh Darbar, Exh.34 Panch witness
P.W.11 Bhupendra Ishwarbhai Nai, Exh.37 Panch witness.
P.W.12 Kantilal Dalsukhbhai , PSO Exh.42
P.W.13 Maganbhai Valabhai Parmar, Exh.44 Investigating Officer.
P.W.14 Ranjit Hathisinh Jadeja, Exh.48 2nd Investigating Officer.
P.W.15 Chenaji Ranchhodji Thakore, Exh.56 Police Constable who recorded the First Information Report.
8. The following pieces of documentary evidences were adduced by the prosecution.
1) The Medical Certificate of the deceased. Exh.10
2) Original case papers of the deceased. Exh.11
3) X-ray Plate No.6083 and 6084. Exh.12
9. After completion of oral as well as documentary evidence of the prosecution, the statement of the accused under Section 313 of the Criminal Procedure Code was recorded by the learned Additional Sessions Judge, in which the accused stated that a false case was instituted against him as, the accused was to contest an election and only with a view to see that the accused is unable to contest the election, the accused was falsely implicated for the offence of murder.
10. At the conclusion of the trial, the learned trial Judge convicted the accused-appellant, under Section 302 of the Indian Penal Code and sentenced him as stated herein before.
11. Being dissatisfied, the accused-appellant has come up with the this Appeal.
12. Submissions on behalf of the accused- appellant:
i) Mr. Sharvil Majmudar, the learned Counsel appearing for the accused-appellant, vehemently submitted that the Trial Court committed a serious error in holding the accused guilty of the offence of murder punishable under Section 302 of the Indian Penal Code, by relying on the evidence of the three eyewitnesses, namely, (1) the P.W.3, Narsinhbhai Dhanabhai, (2) the P.W.4, Ashwinkumar Shivprasad Vyas and (3) the P.W.5, Vinubhai Girijashanker Thaker. According to Mr.Majmudar none had witnessed the incident and the three eyewitnesses, as projected by the prosecution, are concocted eyewitnesses.
ii) Mr. Majmudar, to substantiate his submission that the P.W.3, the original complainant, the P.W.4 and the P.W.5 had no idea whatsoever as to who was the assailant and how the incident had occurred, submitted that it was evident from the fact that when the deceased was first taken to Patan General Hospital for treatment, none of the three eyewitnesses disclosed the name of the accused as the assailant before the doctor while giving history. According to Mr. Majmudar, the Medical Certificate, being Exh.10, issued by the Patan General Hospital is also silent in so far as the name of the accused being an assailant, is concerned. Mr. Majmudar, inviting our attention to the medical certificate Exh.10, submitted that all that was stated while giving history to the Doctor was, the assault with a sickle by the assailant. Mr. Majmudar submitted that the history was also given by the deceased himself. According to Mr. Majmudar nothing had prevented three eye-witnesses in disclosing the name of the accused as the assailant, more particularly when they claimed to have witnessed the assault by the accused with a sickle on the deceased. Mr. Majmudar, inviting our attention to Exh.11/1, i.e. the medical case papers of the Patan General Hospital, submitted that even the complainant himself failed to disclose the name of the accused. In the history of assault given by the complainant as reflected from the medical papers being Exh.11/1 all that was stated before the Doctor by the complainant was the assault by sickle and nothing more. According to Mr. Majmudar, the omission on the part of the three eyewitnesses to disclose the name of the accused as the assailant before the doctor at the Patan General Hospital by itself was suggestive of the fact that none of the three eyewitnesses had any idea as to who was the assailant.
On this ground alone, according to Mr. Majmudar, the Trial Court ought to have given the benefit of the rule of reasonable doubt.
iii) Mr. Majmudar further contended that none of the three eyewitnesses have clarified in their evidence as to whether the blunt side of the sickle was used or the sharp side of the sickle was used by the accused while inflicting the injuries on the head of the deceased. According to Mr. Majmudar, the prosecution owed a duty to seek this clarification from the witnesses, more particularly when the witnesses on their own have not deposed as regards the side of the weapon used for inflicting injuries by the accused.
iv) Mr. Majmudar next contended that the Trial Court committed a serious error in relying upon the circumstance of discovery of the weapon i.e. the sickle at the instance of the accused as both the panch witnesses of the discovery Panchnama failed to support the case of the prosecution and were declared as hostile witnesses. Apart from this, according to Mr. Majmudar no credence could be lent to such a piece of circumstance, more particularly when no blood was found on the weapon of offence according to the Serological Test Report. Thus, according to Mr.Majmudar though the Investigating Officer deposed about the statement being made by the accused while being in police custody after his arrest leading to the discovery of the fact, viz., the weapon of the offence, still no reliance could have been placed on such discovery in the absence of blood being found on the sickle.
v) Mr. Majmudar also submitted that there was a delay of about 4 hours in lodging the First Information Report and the complaint could have been lodged by the complainant at the nearest police station immediately after the incident, but according to Mr. Majmudar the complaint was lodged at Patan City Police Station, more particularly when while travelling from village Kundher towards the Patan General Hospital there were many Police Stations on the way and on any of those Police Stations, the First Information Report could have been lodged. According to Mr. Majmudar this delay is fatal to the case of the prosecution as after due deliberations the eyewitnesses and the others had falsely implicated the accused in the crime.
vi) Mr. Majmudar further contended that the prosecution dropped important eyewitnesses and the Trial Court ought to have drawn an adverse inference against the prosecution for not examining important witnesses.
vii) Mr. Majmudar also submitted that the prosecution also failed to examine the Neuro Surgeon, who had performed the operation of the deceased.
viii) Mr.Majmudar, lastly submitted that the present case is not one of murder punishable under Section 302 of the Indian Penal Code, but is one of culpable homicide not amounting to murder, as the incident occurred at a spur of moment, and in a heat of passion. According to Mr. Majmudar, even if the entire case of the prosecution is accepted as true, the case falls within the Exception-4 to Sec. 300 of the I.P.C. and, therefore, the conviction of the accused could have been at the most under Section 304, Part-II of the Indian Penal Code. To substantiate this submission Mr. Majmudar relied upon the nature of injuries which the deceased had sustained. According to Mr.Majmudar, the injuries on the head of the deceased were in the nature of Contused Lacerated Wounds, suggestive of the fact that the blunt part of the sickle might have been hit in inflicting injuries on the head of the deceased. Mr. Majmudar submitted that there was no pre-plan or any pre-meditation on the part of the accused to commit the crime and, therefore, the conviction of the accused may be altered from Sec.302 of the Indian Penal Code to one under Sec. 304, part-II of the Indian Penal Code and appropriate sentence may be imposed. Mr.Majmudar in support of his submissions relied on three decisions of the Supreme Court :
(a) Satguru Singh Vs. State of Punjab, AIR 1995 SC -2449
(b) Yomeshbhai Pranshanker Bhatt Vs. State of Gujarat, 2011 (3) G.L.R. – 1833 (SC)
(c) Devinder Vs. State of Haryana, AIR 1997 SC – 454.
13. Submissions made on behalf of the State:
i) Mr. K.P.Raval, the learned Public Prosecutor appearing for the State, vehemently submitted that the Trial Court has rightly convicted the accused for the offence of murder punishable under Section 302 of the Indian Penal Code by relying on the oral evidence of the P.W.3, the complainant, being an eyewitness, the P.W.4 and the P.W.5 also being eyewitnesses. Mr. Raval submitted that nothing substantial could be elicited by the defence through the cross-examination of all the three eyewitnesses so as to render the version of the three eyewitnesses doubtful or improbable in any manner.
ii) Mr. Raval submitted that failure on the part of the three the eyewitness in disclosing the name of the accused as the assailant before the doctor while giving history at the Patan General Hospital by itself is no ground to discard the entire prosecution case. According to Mr.Raval there is no legal obligation on the part of the doctor also to ascertain as to who was the assailant and in the same manner no obligation as such is cast upon the witnesses to disclose the name of the assailant before the doctor while giving history of assault.
iii) Mr. Raval next submitted that only because no blood was found on the weapon of the offence i.e. the sickle by itself is no ground to overlook the circumstance of discovery of the sickle at the instance of the accused.
iv) Mr. Raval also submitted that there is no merit in the submission of the defence that there was material contradiction between the medical evidence and the ocular evidence.
v) Mr. Raval submitted that assuming for the moment that there was material contradiction between the medical evidence and the ocular evidence, though there is none in the present case, cannot override unimpeachable testimony of the eyewitnesses.
vi) Mr.Raval lastly submitted that the plea of the defence as regards the benefit of Exception-4 to Sec.300 of the Indian Penal Code is also without any merit. The manner in which the accused inflicted injuries on the deceased is suggestive of the fact that the accused took undue advantage and acted in a cruel and unusual manner. According to Mr.Raval, sudden fight without any pre-plan or in the heat of passion by itself is not decisive of the fact that the case is one of culpable homicide not amounting to murder. For Exception-4 to Sec.300 of the Indian Penal Code to be made applicable, the onus is on the accused to establish or prove that he had not taken any undue advantage or had not acted in a cruel or unusual manner.
14. Before adverting to the rival submissions of the parties, we find it necessary to look into some part of the oral evidence on record.
i) The P.W.1, Dr. Abidhussain Ahmedhussain Mansuri is the doctor, who, at the relevant point of time, was serving as a Medical Officer at the Patan General Hospital. The P.W.1 Dr. Abidhussain Mansuri, in his evidence Exh.9, deposed that on 27th February, 2006, Dashrathbhai Somabhai Nai, the deceased was brought at the hospital by his relatives and in the history, it was stated by the relatives that Dashrathbhai Sombhai Nai, the deceased, was inflicted injuries by the assailant with a sickle. He further deposed that there were two injuries on the head of the deceased, (i) contused lacerated wound, muscle deep on occipital region admeasuring 4 x 0.5cms and (ii) contused lacerated wound on the parietal region admeasuring 3cm x 0.5cm bone deep. The x-ray revealed doubtful fracture of left parietal bone. The P.W.1 further deposed that on the very same date i.e. 27th February, 2006, the injured was transferred at around 9.40 in the night to the Ahmedabad Civil Hospital for better treatment. The P.W.1 had issued a medical certificate, being Exh.10, as regards the treatment and the injuries which were noted at the time of examination on 27th February, 2006. The P.W.1 has further deposed that the injuries could be possible by a hard and blunt object and if the reverse portion of the sickle i.e. hard and blunt part of the sickle is hit on the head, then the injuries of the nature as revealed above were possible. The P.W..1 on being shown the muddamal Article-4, sickle, deposed that if the reverse side of the sickle was used, then the injuries as noted in the medical certificate, Exh.10, could be possible. In the cross-examination of the P.W.1, the P.W.1 deposed that the history of assault was narrated by the injured himself, and the injured had not disclosed the name of the assailant while giving history.
ii) The P.W.2, Dr. Rajendrakumar Bhagirathbhai Joshi was examined by the prosecution to prove the Postmortem Report being Exh.14. The P.W.2, in his evidence, stated that on 5th March,2006 he was serving at Civil Hospital, Ahmedabad and at that point of time the dead-body of the deceased was brought for Postmortem Examination by the Head Constable of Shahibaug Civil OPD along with the copy of the Inquest Panchnama. The P.W.2 in the company of one Dr. V.R.Patil and Dr. S.K.Jhaveri performed the postmortem upon the dead body of the deceased. The postmortem revealed the following external as well as the internal injuries:
External injuries:-
1. Stitched wound of 2 cm long, semi circular in shape from left frontal to right parietal and reaches to the left temporal region of head.
2. Stitched wound of 7cm long over left parietal of head in line of injury No.1, transversely situated.
3. Stitched wound of 4.5cm long over occipital region of head, transversely situated.
4. Surgical tracheotomy wound of 2 x 1 cm trachea deep over anterior aspect of base of neck.
Internal injuries:-
After removing the skin stitches, the brain is covered with flap of vault of skull and stitched with temporal muscle. After removal of stitch, brain matter is seen. The skull bone of # area is removed of size 13 x 11cm. The brain matter is slightly protruded outside due to oedema. Contusion and laceration and necrosis of brain at left parietal and temporal region of 6 x 2 x 2 cm size. S.D4 at the entire right cerebral hemisphere with contusion and laceration and necrosis of base of whole right frontal lobe of 7 x 2 x 2cm in size. There is superficial contusion and laceration and necrosis of base of left cerebral hemisphere over posterior part. Clots and blood seen mixed, C. lacerated brain matter. Sub arachnoid haemorrhage at some parts of brain.
iii) The P.W.2, in his evidence stated that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. The P.W.2, in his cross- examination also deposed that the injury No.1 was the result of surgery performed by the Neuro Surgeon to save the patient, and the injury No.4 was due to Tracheotomy performed at the time of surgery to save the life of the patient. The P.W.2 denied the suggestion that the injuries which were noted in the postmortem examination report were simple in nature and the P.W.2 also denied the suggestion that the injuries were caused due to postmortem being performed upon the dead body of the deceased.
iv) The P.W.3, Narsinhbhai Dhanabhai is the original complainant. The P.W.3, Narsinhbhai happened to be the uncle of the deceased. The P.W.3 was also engaged in the business of running a hair-cutting salon, whereas his nephew, the deceased was also running a hair-cutting salon. At the same time the accused was also engaged in the business of running a hair-cutting salon. The P.W.3, in his evidence has stated that the incident in question occurred at around 5 O’clock in the evening on 27th February, 2006. He deposed that at the time of the incident he was in company of one Ashwinbhai Vyas and one Thakor Kalaji. The P.W.3 deposed that the accused was hurling abuses to the deceased in relation to the customers who were coming at the salon for a hair-cut. At that point of time the deceased asked the accused to stop hurling abuses. The accused got enraged and brought an iron sickle from his shop and inflicted injuries on the head of the deceased. The P.W.3 deposed that the first blow was hit straight on the head and the second blow was hit on the rear part of the head. As a result of the injuries inflicted by the accused, the deceased shouted and on hearing the shouts of the deceased, the P.W.3 along with Ashwinkumar Vyas and Thakor Kalaji, ran at the place of occurrence and got the deceased released from the clutches of the accused. The P.W.3 has further deposed that at that point of time the accused threatened to kill the deceased. The accused, thereafter with the sickle in his hand ran away from the place of occurrence. As the deceased had sustained severe injuries, the P.W.3 along with one Labhshankerbhai Pramodbhai and others carried the deceased in a private vehicle to the Patan General Hospital. As the deceased had sustained serious injuries on the head, the doctor at the Patan General Hospital advised that the deceased be shifted to the Ahmedabad Civil Hospital and accordingly, in a Government Ambulance, the deceased was shifted to the Ahmedabad Civil Hospital. The deceased passed away after 5 days at the Ahmedabad Civil Hospital, while in coma.
v) The P.W.3 was extensively cross-examined by the defence, but nothing substantial could be elicited through the cross-examination by the defence so as to render the evidence of the P.W..3 doubtful or improbable in any manner. The P.W..3 denied the suggestion that as the accused was very unpopular amongst the people of the village, the accused was falsely implicated in the crime. The P.W.3 also denied the suggestion that the deceased on the previous day had banged himself with a pole as a result of which the deceased fell on a stone resulting in the injuries on the head. The P.W..3 also denied the suggestion that by influence, the accused was falsely implicated in the offence.
vi) Close on the heels of the evidence of the P.W.3 is the evidence of the P.W.4, Vyas Ashwinkumar Shivprasad. The P.W.4 in his evidence has deposed that on the date of the incident the accused picked up quarrel with the deceased regarding the customers who were coming at the hair-cutting salon, and the deceased had asked the accused to stop hurling abuses. The P.W.4 has deposed that the accused got enraged and brought a sickle from his shop and inflicted injuries on the head of the deceased. The P.W..4 was also extensively cross- examined by the defence, but nothing substantial could be elicited through the cross-examination of the P.W.4 so as to render his evidence doubtful or improbable in any manner.
vii) On the same footing is the evidence of the P.W.5, Vinubhai Thaker, being Exh.23. The P.W.5 is also one of the eyewitnesses to the incident. The P.W.5 in his evidence has deposed that on the date of the incident a quarrel ensued between the accused and the deceased as a result of which the accused started hurling abuses to the deceased. The deceased had asked the accused to stop hurling abuses and on saying so the accused got enraged and brought a sickle from his shop and with the said sickle inflicted injuries on the head of the deceased. The P.W.5 has further deposed that the first blow was hit straight on the head and the second blow was hit on the rear part of the head, as a result of which the deceased raised shouts. The P.W.5 heard the shouts and the P.W.5 along with one Ashwinkumar, Kalaji Thakor and Narsinhbhai Dhanabhai ran at the place of the occurrence and got the deceased released from the clutches of the accused. The accused thereafter, went away from the place of occurrence with the sickle in his hand. The P.W.5 was also cross-examined extensively by the defence, but nothing substantial could be elicited through the cross-examination of the P.W..4 so as to render the version of the P.W.5 doubtful or improbable in any manner.
viii) The P.W.6, Kanubhai Jamabhai, was examined by the prosecution to prove the Inquest Panchnama. The P.W.6, Kanubhai, in his evidence, being Exh.26, deposed about the inquest Panchnama which was drawn.
ix) The P.W..7, Babubhai Karamshibhai, was examined by the prosecution to prove the scene of offence Panchnama. The P.W.7, Babubhai, in his evidence, being Exh.28, proved the contents of the scene of offence Panchnama, being Exh.29. In his cross-examination the P.W.7 has deposed that the place of occurrence was near a shop and close to the place of occurrence was the hair-cutting salon of the accused.
x) The P.W.8, Hemtuji Hamirji, was examined by the prosecution to prove the discovery Panchnama of the weapon i.e. the sickle. However, the P.W..8, Hemtuji, failed to support the case of the prosecution and was accordingly, declared as a hostile witness.
xi) In the same manner the P.W.9, Tribhovanbhai Karanbhai was also examined by the prosecution to prove the discovery panchnama of the weapon, but the P.W.9 also failed to support the case of the prosecution and was accordingly, declared as a hostile witness.
xii) The P.W.10, Babusijng Manusing, was examined by the prosecution as a panch witness to prove the arrest Panchnama of the accused. The P.W.10, Babusing, in his evidence has deposed that on 1st March, 2006 he was called at the Patan Taluka Police Station to act as a Panch witness. The P.W.10, Babusing, has deposed that the accused was present at the police station. The accused had produced the clothes worn by him and the same were collected by the Police under a Panchnama.
xiii) The P.W.11, Bhupendrabhai Ishwarbhai, was examined by the prosecution as a Panch witness to prove the Panchnama of the clothes of the deceased, being Exh.38, which were collected at the hospital.
xiv) The P.W.13, Maganbhai Valabhai Parmar is the Investigating Officer. The P.W.13, in his evidence, being Exh.44, deposed the manner and method in which he conducted the investigation. The P.W.13, deposed that on 27th February, 2006, after the offence was registered at 22.30 hours for the offences punishable Under Sections 326, 324, 504, 506(2) of the Indian Penal Code, the investigation was handed over to him and the P.W.13, accordingly, reached village Chandumana and inspected the place of occurrence which was pointed out to him by one Thakor Kalaji Rashiji. On the next day, the scene of offence Panchnama was drawn and the statements of witnesses were recorded. The P.W.13 thereafter visited the Civil Hospital at Ahmedabad where he found that the injured was in a coma. The wife of the deceased handed over the clothes which were stained with blood to the P.W.13 which were collected by the P.W.13 under a Panchnama. On 1st March, 2006, early in the morning, the P.W.13 again visited the village Chandumana in search of the accused and while returning from village Chandumana, the accused was apprehended near the Bus stand of village Kundher. The accused on being arrested was brought to the police station and the Arrest Panchnama was accordingly, drawn in the presence of the Panch witnesses. The P.W.13 further deposed that the accused on his own free will expressed his desire to point out the place where he had concealed the sickle and accordingly, the accused led the P.W.13 and other police officials including the panch witnesses to village Chandumana and pointed out the place from where the weapon of offence i.e. the sickle was discovered. The P.W.13 was cross-examined by the defence, but nothing substantial could be elicited through the cross- examination of the P.W.13 so as to point out any infirmity going to the root of the matter.
15. The picture that emerges on cumulative reading of the entire oral evidence on record, is that the accused was at inimical terms with the deceased due to business rivalry and both used to frequently quarrel on the issue of customers who used to come at their respective hair cutting salons. The evidence of the three eyewitnesses is straight forward and very consistent. On the date of the incident the accused picked-up an altercation with the deceased and started hurling abuses to the deceased. The deceased asked the accused to stop hurling abuses due to which the accused got enraged and brought a sickle from his shop and hit two blows on the head of the deceased causing serious injuries including a fracture of the skull. It appears that immediately thereafter, the three eyewitnesses took the deceased to the Patan General Hospital for treatment. The Doctor, after giving some preliminary treatment at the Patan General Hospital, and having regard to the serious nature of injuries, advised that the deceased be transferred to the Ahmedabad Civil Hospital and accordingly, the deceased was brought to the Ahmedabad Civil Hospital. It also appears from the evidence on record that by the time the deceased was shifted to the Ahmedabad Civil Hospital, he went in coma. On 5th March, 2006, the deceased passed away. The accused was not available in the village from 27th February, 2006 as he had absconded immediately after the incident. It is only on 1st March, 2006 that the accused was apprehended from a bus-stand of village Kundher. Immediately after arrest the accused also made statement before the panch-witnesses leading to the discovery of the weapon i.e. the sickle.
16. We are not impressed by the submission of Mr. Majmudar that the accused is entitled to be given the benefit of doubt as the three eyewitnesses to the incident who had brought the deceased to Patan General Hospital failed to disclose the name of the accused before the Doctor. In our opinion this argument is only stated to be rejected. As held by the Supreme Court in the case of Patipati Vainkaiyya Vs. State of Andhra Pradesh – AIR 1985 SC 1715, the doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary efforts is to save the life of a person brought to him and inform the police in medicolegal cases. In the state of confusion, the P.W.3 complainant, the P.W.4 and the P.W.5 may not have chosen to give details of the incident or the assault to the doctor. It is well settled that the doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declarations or hold the postmortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.
Thus, the omission on the part of the eyewitnesses to disclose the name of the accused as the assailant before the doctor by itself is not a circumstance on the basis of which the accused is entitled to the benefit of rule of reasonable doubt. "A reasonable doubt”, it has been remarked, “does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason (Salmond, J. in his charge to the jury in R.v. Fantle reported in 1959 Criminal Law Review 584). As observed by Lord Denning in Miller v. Minister of Pensions (1947) 2 All ER 372) "Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt, but nothing short of that will suffice”. In Khem Karan v. State of U.P. (AIR 1974 SC 1567), the Supreme Court observed (at p.1569) :
“Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony.”
17. We are also not impressed by the submission of Mr. Majmudar that the ocular version of the eyewitnesses is in conflict with the medical evidence on record and, therefore, the evidence of the three eyewitnesses deserves to be eschewed from consideration. In our opinion, this argument is also only stated to be rejected.
18. The three eyewitnesses in clear term have deposed that the accused inflicted injuries on the head of the deceased with a sickle, a Danti. The three eyewitnesses have also deposed that the first blow was hit straight on the head and the second blow was hit on the rear portion of the head. The medical evidence on record suggests that the deceased had sustained Contused Lacerated Wounds including a fracture in the skull. Now, whether the accused inflicted the sharp side of the sickle or the reverse side of the sickle which is ordinarily the blunt side, is not material in the present case. Only because the three eyewitnesses are not specific as to which part of the sickle was inflicted by itself would not lead to an inference that the ocular version is in conflict with the medical evidence. The P.W.1, Dr. Abidhussain Mansuri, who had treated the deceased at the Patan General Hospital and the P.W.2, Dr.Rajendrakumar Joshi, who performed the postmortem of the dead body of the deceased, both have deposed that the injuries were sufficient in ordinary course of nature to cause death. The P.W.1, Dr.Abidhussain Mansuri, has deposed in clear terms that if a hard and blunt object is hit on the head of a person, then the injuries which were sustained by the deceased could be possible. Thus, we do not find any substance in this contention also apart from the fact that the opinion of the Doctor as to how an injury was caused cannot over-ride unimpeachable testimony of eyewitnesses. In case there is any inconsistency between them, the opinion of the doctor is not a definitive.
19. In case of Thaman Kaumar v. State of Union Territory of Chandigharh, (2003) 6 SCC 380 : (AIR2003 SC3975 : 2003 Cri LJ 3070), the Apex Court has considered conflict between the medical evidence and eyewitness/witnesses statements and observed as under:-
“The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the types which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.”
Thus, the position of law, in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.
20. We are also not impressed by the submission of Mr. Majmudar that the circumstance of discovery of the weapon should be discarded as no blood was found on the weapon as per the Serological Test Report. In our opinion in the peculiar facts and circumstances of the case, mere absence of the blood on the sickle would not be sufficient to disbelieve the prosecution version and overwhelming clinching circumstance definitely pointing out to the guilt of the appellant. The sickle for many reasons may not have been stained with the blood. At any rate this factor has no adverse telling effect on the credibility of the prosecution case and the circumstances as established against the appellant.
21. We are also not impressed with the submission of Mr. Majmudar as regards delay of four hours in lodging the First Information Report. The incident occurred at around 5 O’clock in the evening. The three eyewitnesses, who were present at the place of occurrence thought fit and in our opinion very rightly to immediately carry the deceased to the Patan General Hospital. On reaching the Patan General Hospital, treatment was given to the deceased. X-ray of the skull was also taken which revealed a fracture. Taking into consideration the seriousness of the injuries, the doctor at the Patan General Hospital advised the three eyewitnesses to immediately shift the deceased to the Ahmedabad Civil Hospital and accordingly, the deceased was shifted to the Ahmedabad Civil Hospital. It is well known that when a murderous assault of this nature takes place the first anxiety of the nearest ones of the victim would be to take him to the nearest hospital to get him medical aids to save his life. In the instant case the FIR was lodged at 22.00 hours after the occurrence took place at 17.00 hours under such circumstances, it cannot be said that there was a great delay.
22. We are also not impressed by the submission of Mr. Majmudar that the act of the accused could not be termed as murder punishable under Section 302 of the Indian Penal Code, but the case is one of culpable homicide not amounting to murder, punishable under Section 304, Part-II of the Indian Penal Code. The foundation of this submission of Mr. Majmudar is that the incident occurred at a spur of moment and in a heat of passion. According to Mr. Majmudar, there was no pre-plan or any pre-meditation on the part of the accused in committing the crime. Mr. Majmudar laid much emphasis on the fact that first there was an altercation and thereafter, in a heat of passion, the accused might have inflicted the injuries on the head of the deceased.
23. The sine quo non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder. We must, therefore, assume that this would be a case of murder and it is for the accused to show the applicability of the Exception. Exception 4 reads as under:-
"Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
A perusal of the provision would reveal that four conditions must be satisfied to bring the matter within Exception 4 :
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in the heat of passion; and; that
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.
On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found.
24. It would be profitable for us to quote the following observations of the Supreme Court explaining the scope and ambit of Exception 4 of Section 300 IPC, made in the case of Vishal Singh V. State of Rajasthan, reported in 2009 Criminal Law Journal 2243. A three Judge Bench observed in paragraph 7 as under:-
"7. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for, in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat (2003 (5) Supreme 223]; Parkash Chand v. State of H.P. (2004 (11) SCC 381); Byvarapu Raju v. State of A.P. and Anr. (2007 (11) SCC 218) and Hawa Singh and Anr. v. State of Haryana (SLP (Crl.) No.1515/ 2008, disposed of on 15.1.2009)."
Applying the aforesaid principles as explained by the Supreme Court in the facts of the present case, more particularly considering the evidence on record, we have no hesitation in coming to the conclusion that the present case is not one of culpable homicide not amounting to murder, but the same is a case of murder. It is very difficult for us to accept the submission of Mr. Majmudar that the case would fall within Exception 4 of Section 300 IPC and such benefit be extended to the accused. We do agree to a certain extent with Mr. Majmudar that the incident occured all of a sudden, but it is difficult to say that there was a fight between the accused and the deceased. It appears from the evidence on record that the accused was in the habit of picking up altercation with the deceased on account of business rivalry, and used to quarrel frequently. On the date of the incident also it appears that it was the accused who started the altercation and all that was told by the deceased to the accused was to stop hurling abuses. We cannot overlook the fact that the accused went to his shop and brought a sickle with which he hit two blows on the head of the deceased, resulting in serious head injuries including fracture of the skull.
25. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of proportions, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh Vs. State of Rajasthan (AIR 1993 SC 2426), it was held that if the accused used deadly weapons against an unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage. A fight suddenly takes place, for which both the parties are more or less to be blamed. It might be that one of them starts it, but if the other had not aggravated it by his own conduct, it would not have taken the serious turn it did. There is then mutual provocation and aggravation and it is difficult to apportion the share of blame which attaches to each fighter. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down.
26. We have also noticed that the accused, in his statement recorded under Section 313 of the Criminal Procedure Code, went to the extent of taking a false defence that as he wanted to contest an election, the rival party, with a view to see that the accused is unable to contest the election, falsely implicated the accused in the crime. This defence of the accused, on the face of it, is a false defence. Falsity of defence is an additional circumstance in the chain of circumstances. Not only that, but the accused also went to the extent of denying that he was not convicted by the trial Court in a prohibition offence, despite the fact that the prosecution placed on record the judgment and order of conviction of the accused for the offence under the Bombay Prohibition Act. It appears that such evidence was led to show that the accused was also addicted to liquor. Be that as it may, the fact is that the accused, in his statement under Section 313 of the Criminal Procedure Code, failed to explain any of the incriminating circumstances which were put to him by the trial Court. The accused also failed to explain as to why he was not available in the village from 27th February, 2006, till the time of his arrest i.e. on 1st March, 2006. This would also reflect on his conduct, which would be a relevant fact under Section 8 of the Evidence Act.
27. We shall now deal with the decisions relied upon by Mr.
Majmudar in support of his submissions.
27.1 In Devinder (Supra.) the deceased was a vegetable vendor. On the date of the incident the accused went to the shop of the deceased and asked for some vegetables on credit. The deceased told the appellant that as he had not paid his earlier dues, he would not oblige him any more. Such refusal of the deceased in the presence of the two witnesses and for that reason the accused of that case felt insulted and left for the house. After about 20 minutes the accused came back with a knife, the deceased at that point of time was cooking and attempted to escape. The deceased could not succeed in his attempt as the accused had inflicted injuries with the knife on the left side of the chest and the other on the abdomen. One Jagdish and Satbir Singh who were there and one Umesh who had reached there by chance, had witnessed the assault. Jagdish and Umesh had carried the deceased in a rickshaw to the Medical College Hospital, where he was examined first by one Dr. Sushilkumar Jain. The deceased, who was admitted as an indoor patient in the hospital, was operated upon by one Dr. Pradipkumar for his injuries, but the deceased succumbed to them on the following day. The Designated Court held the accused guilty of murder punishable under Section 302 of the Indian Penal Code, Sections 25 and 27 of the Arms Act, 1959 read with sec.6 of the Terrorists and Disruptive Activities (Prevention) Act, 1985. As the order of conviction and sentence was one by the Designated Court, the appeal was preferred before the Supreme Court. The Supreme Court held in the facts of that case that it was not possible to sustain the conviction of the accused, though there was no reason to disbelieve the two eyewitnesses, because of certain underlined circumstances which persuaded the Supreme Court to give the benefit of the reasonable doubt to the accused. The Supreme Court held that the deceased, after being admitted in the hospital was fully normal and was able to give his father’s name, his address, his occupation and also an account as to how the injuries were sustained by the deceased. The Supreme Court stated that the particulars which were furnished as reflected from the medico legal report could have been furnished by the deceased or the two witnesses who had brought the deceased to the Hospital. In that context the Supreme Court held that if really the accused was the assailant then under such circumstances his name would have been disclosed by the deceased or the two witnesses, who had brought the deceased to the hospital. The Supreme Court in the facts of that case held that at the earliest available opportunity the name of the accused was not disclosed. This finding of the Supreme Court was in light of the fact that the FIR was registered on the next day of the date of the incident and that too only after the case was converted to one under Section 302 of the Indian Penal Code consequent upon the death of the deceased. Under such circumstances, the Supreme Court held that the FIR did not see the light of the day till the death of the deceased and the version of the prosecution that the FIR was recorded on July 26, 1986 was not found to be true. Thus, it could be seen that on the basis of the evidence in that case and taking into consideration certain underlined circumstances the Supreme Court was persuaded to give the benefit of reasonable doubt. As such no principle of law could be said to have been laid down by the Supreme Court in the said case so as to make it applicable in the present case.
27.2 In Satguru Singh (Supra) the accused of that case was tried for an offence U/s.307 of the Indian Penal Code. It was argued before the Supreme Court that since the FIR on the own showing of the prosecution had been lodged after an inordinate delay of ten days, the very basis of the prosecution had been rendered doubtful. In that case there was material available on the record to indicate that the injured was fit enough to make a statement on the next day of the incident. The Investigating Officer in his statement had stated that he had met the injured at the hospital and had inquired about the assailants and the occurrence but the injured had refused to disclose anything to him on the belief that the respectable of the village were trying to have the matter compromised and he did not wish to initiate action against anybody. The Supreme Court in the peculiar facts of the case and on the basis of the evidence on record, also noticed that the injured, at the very first opportunity, had not disclosed the name of the assailant to the Medical Officer at the hospital and had disclosed to the Medical Officer that he had sustained injury during the fight. The Supreme Court after noticing such infirmities emerging from the evidence on record, held that the prosecution had failed to successfully establish the case against the appellant of that case beyond reasonable doubt. In this case also the Supreme Court had not laid down any principle of law but on overall appreciation of the evidence on record thought fit to extend the benefit of reasonable doubt. In our opinion, even this judgment of the Supreme Court would not help the accused-appellant in any manner.
27.3 In Yomeshbhai (Supra), the deceased was working in the house of the accused as a maid. The deceased was absent from her duties and, therefore, the accused had gone to her house which was at a nearby area to call her to join her duties. In the house of the deceased, an altercation ensued between the accused and the deceased, as the deceased refused to come and join the work as a maid. The accused on the spur of a moment went to the deceased and gagged her mouth. At the time of incident the deceased was cooking and a vessel of kerosene was lying nearby which was picked-up by the accused and the kerosene was sprinkled on the deceased. The accused thereafter lit the matchstick. The Supreme Court noticed that the entire case was based on the circumstantial evidence and the statement of the deceased in more than one dying declarations. In peculiar facts of that case, taking into consideration, the manner in which the incident occurred, the Supreme Court held that the accused had no pre-meditation to kill the deceased or cause any bodily harm or injury to the deceased. The Supreme Court took the view that everything had happened on the spur of a moment as the appellant might have lost self-control on some provocative utterances of the deceased. The Supreme Court held that the fact that kerosene was sprinkled on the deceased by the accused could not be disputed and accordingly held that the case was one under Section 304 part-II of the Indian Penal Code. Even this judgment does not lay down any absolute principle of law which could be made applicable in the present case. Having regard to the manner in which the entire incident occurred, the Supreme Court in the facts of that case thought fit to alter the conviction of the accused from one under Section 302 of the Indian Penal Code to under Section 304, Part-II of the Indian Penal Code.
Thus, in our opinion none of the three decisions relied upon by Mr. Majmudar in support of his submissions could be made applicable in the present case. As a matter of fact, in our respectful opinion, in the matter of appreciation of evidence, there indeed cannot be any matter of precedence, as each case has its own distinct background, characteristics and attending set of circumstances and accordingly has to be decided upon the basis of peculiar facts and circumstances of that particular case.
28. Thus, on a sum total of the evidence and the circumstances mentioned above and considering the reasons given by the Trial Court for convicting the accused, we are of the opinion that the learned Additional Sessions Judge committed no error in holding the accused guilty of the offence of murder punishable under Section 302 of the Indian Penal Code. For the foregoing reasons, we dismiss the Appeal and uphold the conviction and sentence awarded by the learned Additional Sessions Judge.
(Bhaskar Bhattacharya, C.J.) (J.B. Pardiwala, J.) */Mohandas