State Of Gujarat ­ Opponents

(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As all the appeals arise from the common judgment and order passed by the learned Sessions Judge in Sessions Case No.450/06, they are being considered simultaneously.

2. All the appellants for the sake of convenience shall be referred to as per their status in the trial court as A1 (accused no.1), A2 (accused no.2), A3 (accused no.3) and A4(accused no.4).

3. As per the prosecution case, Jahirkhan Dariyakhan Pathan (PW1), filed complaint on 01.07.2006 stating that he had five sons and one daughter, out of them one Asif Khan aged 25 years was residing with him and he was driving rickshaw. On 30.06.2006, the complainant had gone to the hotel of Jamilbhai near Gujarat Today Press for taking tea and when he was going back to his residence, at about 11.45 pm, when he reached near Gujarat Today Press, Imran (A2) who is son of social worker Saberabanu and Irfan @ Gabbar (A1) and other two persons were standing and at that time, his son Asif Khan came on Yamaha motorcycle with Usmangani@Raju Patel as pillion rider and when his son reached nearby Gujarat Today Press, A1 stopped the motorcycle and told his son as to why he was moving with A1's sister and thereafter there was altercation of words and quarrel. Thereafter, A1 told for catching hold of his son. Then A2, A3 and A4 caught hold of his son and A1 took out his knife and gave blows to his son Asifkhan, one on the left hand near elbow, another on the palm and third on the left side of the shoulder near chest and therefore, his son was blood shedded and he had fallen down. Thereafter, there was shouting and all the four persons (accused) ran away. The son of the complainant in blood shedded condition proceeded further with the motorcycle, but he fell down near Shehnaz Chicken Centre. Thereafter, Imdadali and Usmangani @ Raju Patel took his son in a rickshaw and brought to Vadilal Sarabhai Hospital and in the hospital, his son expired. The aforesaid complaint was filed with Dani Limda Police Station. The complaint was investigated by the police and ultimately, the charge­sheet was filed against all the four accused and the case was committed to the Sessions Court being Sessions Case No.460/06. The learned Sessions Judge framed the charge but as the accused did not plead guilty, the trial was conducted.

4. The prosecution in order to prove the guilt of the accused, examined 11 witnesses, details of whom are mentioned by the learned Sessions Judge at paragraph 7 of the Judgment. The prosecution also produced documentary evidence of 25 documents, the details of which are mentioned by the learned Sessions Judge at para 8 of the judgment.

5. After the trial was over, the statements of the accused were recorded under section 313 wherein the accused denied evidence against them and in the further statement, they had stated that there is false implication of them in the incident.

6. The learned Sessions Judge thereafter, heard the prosecution as well as the defence and found that the prosecution has been able to prove the case against all the accused for the offence under sections 302, 120B, 341 and 114 of the IPC. The learned Sessions Judge, thereafter, heard the prosecution as well as the defence on the aspect of sentence and ultimately, the learned Sessions Judge convicted A1 for the offence under section 302 of IPC and imposed sentence of life imprisonment with fine of Rs.5000 and two months further imprisonment for default in payment of fine. The learned Sessions Judge also convicted A2, A3 and A4 for the offence under sections 120B read with section 114 of the IPC and and convicted the accused A2, A3 and A4 for the offence under section 302 read with sections 120B and 114 of the IPC and imposed sentence of life imprisonment with the fine of Rs.2000 each and further one month imprisonment for the default in payment of fine. The learned Sessions Judge convicted all the accused for the offence under section 341 read with section 120B and 114 of the IPC and imposed sentence of one month imprisonment. The learned Sessions Judge acquitted all the accused for the offence under section 135(1) of the Bombay Police Act read with section 114 of the IPC. The learned Sessions Judge also directed for undergoing sentence concurrently. It is under these circumstances, the present appeals before this Court.

7. We may record that A1 has preferred Criminal Appeal No.2965/09, A2 has preferred Criminal Appeal No.926/08, A3 has preferred Criminal Appeal No.2960/08 and A4 has preferred Criminal Appeal No.250/09. Since all the appeals arise from the common judgment and order of the learned Sessions Judge, they are being considered simultaneously.

8. The learned counsel appearing for the appellants Mr.Umesh Trivedi with Mr. C.B. Raval in all the appeals as well as the learned APP have taken us to the entire evidence on record as well as the judgment of the learned Sessions Judge. We have also heard the learned counsel appearing for the appellants in all the appeals and Mr. Patel, learned APP for the State. We have considered the judgment and the reasons recorded by the learned Sessions Judge. We have also considered the oral as well as documentary evidence on record.

9. P.W.1 Jahirkhan Dariyakhan Pathan (exhibit 12) has supported the case of the prosecution for filing of the complaint. He is also an eye witness to the incident. As per his testimony, he had witnessed the incident of giving the blow with the knife by A1 to the deceased. However, in the complaint he had stated that A2, A3 and A4 had caught hold of, but in his testimony, he has improved the case by stating that two persons had caught hold of the hand of the deceased and A2 had caught hold of the neck of the deceased. As per his testimony, after the blow was given with the knife by A1, since there was shouting, all the four persons had run away. His son, after the assault had restarted the bike and he had followed him where his son had fallen down near Shehnaz Chicken Centre and Imdadali and Usangani @ Raju Patel took him in rickshaw to the hospital. He also stated that in the identification parade, two persons, A3 and A4 were identified by him before the Executive Magistrate. He has also identified the knife which was used by A1 for the assault. In his cross­examination, he has deposed that he had heard the quarrel between A1 and his son. But he stated that since he was frightened and disturbed, he did not make any attempt to save his son. He has admitted that he was a former police officer who has retired as PSI and he has worked as PSI in the last 3 months. He has deposed that he was knowing A2 because he was residing in his area and he was not knowing A3 and A4.

10. Usmangani @ Raju Patel, p.w.2, exhibit 16, who was pillion rider with the deceased on the motorcycle has also supported the case of the prosecution but not to the fullest extent. In the examination in chief, he has stated that when he went inside the mob, at that time, he found that the deceased had received assault and injuries. He stated that in the said mob he was knowing two persons who were present in the Court and the other persons were also present in the Court. He has deposed that A1 had given blows and A2 had caught hold of the deceased from the neck and other two persons had caught hold of the hand of the deceased. He has deposed that complainant Jahirkhan had shouted for help. He has also stated that he has identified other two persons before the Executive Magistrate.

11. In the cross examination, the said witness has stated that Jahirkhan did not prohibit the deceased from driving the motorcycle after he received injuries. He also stated that that he was not knowing that in rickshaw who was with him.

12. The aforesaid evidence of both the witness PW1 and PW2 can be said as supporting the case of the prosecution against A1 for chasing deceased on motorcycle and for giving blow with the knife by A1. However, so far as A2, A3 and A4 are concerned, as per the witnesses, it has been stated that A2 had caught hold from the neck to the deceased and A3 and A4 caught hold of the hands of the deceased. Imdadali PW3, exhibit 17 has supported the case of the prosecution for the incident to the extent that when he reached, he found that the deceased was in blood­shed condition and he and Usmangani @ Raju Patel both started shouting and thereafter, the deceased was taken to the hospital. He is not the eye witness to the incident, but the attempt is made by the prosecution to show in his deposition that when the deceased was in rickshaw and he knew this witness Imdadali PW3 when he was caught hold by A2 from his neck and A3 and A4 from his hand and A1 had given the knife blow. In his cross­ examination, he has stated that he was unable to state the time at which the incident had happened.

13. The panchnama for the scene of offence has come on record with the evidence of Mahmadmiraz, p.w.4 exhibit 19. His testimony is supporting the case of the prosecution for the place of the incident, the injuries received, the blood found and the recovery of samples. P.W. 5 Baluji Bhikhaji exhibit 43 is Executive Magistrate who is supporting the case of the prosecution. In the cross­examination of the said witness, the defence has not been able to bring about any contradiction.

14. The medical evidence through the testimony of Doctor Saumil Premchandbhai Merchant, p.w.8, exhibit 56, has also supported the case of the prosecution for total four injuries received by the deceased and as per the opinion of the Doctor, all the injuries could be caused by the sharp weapon and such injuries were sufficient to cause death of the person. In the cross­ examination, the said witness has stated that injury no.1 was serious injury and if the treatment was not given immediately, the chances of survival of the patient will be very less. On the shoes and cloths of A1, bloodstains are found matching to the blood group of the deceased. On the cloth of A4 also, bloodstains are found matching to the blood group of the deceased. On the cloth of the other accused, the blood is not found. The weapon knife is recovered at the instance of A1, but no blood is found.

15. The aforesaid entire evidence shows that the prosecution has been able to prove (1) the incident (2) the injury received by the deceased (3) the death of the deceased (4) the presence of all the accused. But the pertinent aspect is that there is no evidence led by the prosecution for hatching of any conspiracy prior to the incident. No evidence has come on record that there was any prior meeting of mind of the accused. It may be that in several case, such evidence may not be available and intention may be gathered either prior to the incident or at the incident by conduct of all the accused and the role played by the accused. So far as A1 is concerned, the intention is apparent inasmuch as the prosecution has substantially proved that he has given assault with the deadly weapon knife and blow given is also on the vital part of the body. The injury sustained is more than one. Both the eye witnesses have stated that the dispute as per the prosecution case, on the aspect of motive, the attribution is only to A1 because the deceased was moving with his sister, quarrel for the same with the deceased by A1. The instigation for chasing the deceased was also by A1. The blows are given on multiple place to deceased by A1.

16. However, so far as A2, A3 and A4 are concerned, in the complaint, p.w.1 Jahirkhan has not stated about catching hold of by A2 from neck, or A3 and A4 by hand but the only statement is that A2, A3 and A4 had caught hold of the deceased. It is true that all aspect in detail may not be in the complaint in every case but the said witness is a former police officer, therefore, importance of the description of incident and the role played by each of the accused could not be said as unknown to the complainant. Inspite of the same, the said description for catching hold of in a particular manner by a particular accused, i.e., A2, A3 and A4 has not been stated in the complaint. Therefore, at the most, it can be said that there is improvement by the complainant in his testimony at exhibit 12. But thereby, the whole of the testimony of the complainant p.w.1 cannot be discarded as sought to be canvassed by the learned counsel for the appellants.

17. The learned counsel for the appellants did contend that if the witness has improved his version before the Court which is not stated in the complaint, such witness can be said as unreliable witness and he is the complainant and therefore, the same would be fatal to the case of the prosecution and the accused including A1 would be entitled to the benefit.

18. We are not at all impressed by the submission for the simple reason that merely because at one stage even if it is found that the witness has improved the statement, thereby the whole testimony of the witness cannot be discarded. It is by now well settled that it is for the Court to segregate the chaff from the grain and the appreciation of the testimony which is in conformity with the other corroborative evidence of the prosecution can be taken into consideration. Further, if the testimony of the said witness is considered with the examination in chief, it would not lead to a situation of discarding the total evidence of the said p.w.1, complainant. It is also by now well settled that if a particular statement of the witness is to be further considered on account of the contradiction or improvement on other aspects, the Court may seek the corroboration by the other evidence may be documentary or oral led by the prosecution. So far as the presence of the P.W.1 for witnessing of the incident is concerned, no contradiction has come on record which may lead the Court to disbelieve his presence or witnessing of the incident as eye­witness. Further, the same is corroborated by the testimony of other eye witness, p.w.2 Usmangani @ Raju Patel who was pillion rider in the motorcycle being driven by the deceased and he has accompanied for taking the injured to the hospital. Therefore, we are not at all impressed by the submission that merely because there is improvement on the aspects of catching hold of, by p.w.1, the whole deposition of p.w.1 Jahirkhan deserves to be discarded resulting into the case of the prosecution as fatal.

19. Even otherwise also, the presence of A2, A3 and A4 is proved by the testimony of p.w.2 Usmangani @ Raju Patel. Not only that A2, A3 and A4 are identified before the Executive Magistrate by p.w.1 as well as p.w.2. Even as per the FSL report, bloodstains are found from the cloth of A4. Therefore, scientific evidence is also supporting the case of the prosecution for showing the presence of A4 at the time of the incident. Therefore, the contention that the presence of A2, A3 and A4 is not satisfactorily proved by the prosecution does not deserve to be accepted.

20. However, the contention raised on the aspects of role played by A2, A3 and A4 for the incident in question, and whether the offence under sections 114 and 120(B) can be said as proved for convicting A2, A3 and A4 for the offence under section 302 of IPC or not, deserves to be considered.

21. We can narrate the following circumstances, which will have relevance to the case ­

a) There was no enmity of A2, A3, A4 with the deceased and they had no axes to grind for attributing motive as it existed for A1.

b) A2, A3 and A4 were not armed with any weapon whatsoever.

c) There was no evidence that there was any prior meeting of mind to eliminate the deceased by all the accused.

d) Even as per the prosecution case, A2, A3 and A4 have not assaulted to cause death of the deceased.

e) No evidence has come on record to show that when A2, A3 and A4 had caught hold of the deceased, they had knowledge that A1 is in

22. No evidence has come on record to show that any of the accused A2, A3 and A4 have given even any fist or kick blow to the deceased.

23. As per the case of the prosecution the deceased after receiving the injury had restarted the motorcycle and had driven the motorcycle to a particular distance and thereafter, near Shehnaz Chicken Centre, he had fallen down. Therefore, there is no evidence led by the prosecution for creating a situation of no escape whatsoever by the deceased.

24. If the improvement is taken out from the evidence of the prosecution since it is not in conformity with the statement made in the complaint, the only evidence which would remain on record would be that of A2, A3 and A4 for the offence under section 114 of the IPC. The requirement for holding a person guilty for the offence under section 114 of IPC is that abetment must be proved. Section 108 of the IPC provides that the abettor should have the knowledge and should have the same intention as that of the offender or the principal accused who has caused death, which is lacking for A2, A3 and A4 in the present case in view of the facts and circumstances referred to hereinabove.

25. If there was no pre­meeting of mind or the knowledge or intention to cause death was lacking, consequently the requirement of section 120B of IPC would also not be satisfied for holding A2, A3 and A4 guilty for the offence. At this stage, we may refer to the decision of this Court in the case of Kantibhai S. Nayak v. State of Gujarat reported in 2009(5) GLR 4106, wherein this Court had an occasion to consider the scope and ambit of the common intention and the role played by each of the accused for the incident. At paragraphs 14, 15, 16, 17 and 18, it was observed thus ­

14. It appears that the common intention could be gathered on the basis of the material on record, the other circumstances and also the conduct of the accused at the time when the incident has occurred. Had it been a case where there was evidence available on conspiracy or a meeting at which the decision is taken to kill the deceased, it may be a valid circumstance, which is not at all available in the facts of the present case. It is true that even in absence of predetermination by way of conspiracy or otherwise, the common intention could be gathered if the facts and circumstances so warrant at the time when the incident had happened and more particularly arising from the conduct on the part of each accused qua the deceased. Merely because all have gone together cannot be a sole basis for upholding conviction under Section 34 treating the same as common intention of everybody. If the overall circumstances are considered in the present case it appears that the accused are the relatives of the deceased and they had the ill­feeling that as the deceased was a witch, their family members were remaining sick or ill. Therefore, to express their ill­feeling, it appears that all the accused together with their father Shana Nayak had gone to the place of the deceased. Not only that, but even in the complaint there is a reference of altercation and exchange of words on the said aspects and there is also reference to the quarrel on the said aspect. This shows that at least there could not be common intention to kill but to express the ill­feeling. It, at the most, could be said as to give assault by some of the accused. At this stage, reference may be made to the decision of Apex Court in the case of Dukhmochan Pandey and Ors. v. State of Bihar, reported in AIR 1998 SC, 40 and more particularly the observations made by the Apex Court on page 46, the relevant of which reads as under:­ “6. ... The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot during the progress of the crime. Usually it implies a pre­arranged plan which in turn pre­supposes a prior meeting of mind. But in a given case such common intention which developed at the spur of the moment is different from a similar intention actuated a number of persons at the same time, and therefore, the said distinction must be borne in mind which would be relevant in deciding whether Section 34 of the Indian Penal Code can be applied to all those who might have made some over attack on the spur of the moment.”

15. It was further observed that “The distinction between a common intention and a similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice.”

16. It was also observed that “In other words, unless such common intention is established as a matter of necessary inference from the proved circumstances of the case then the accused persons could be individually liable for their respective overt attacks and not for the act done by any other person.”

17. Therefore, if the evidence on record is examined in light of the aforesaid legal position at the most there could be the common intention of all the accused, who visited the place of the deceased to the extent of expressing ill­feeling generated due to sickness of the members of the family upon a doubt that the deceased was a witch. The fact that altercation of hot words is referred to by the complainant herself in the complaint shows that while expressing the feeling, the position had aggravated and the incident has happened. Therefore, if during the period of aggravation of the incident A­1, who was possessing axe has given blow on the head and cheek of the deceased and A­2, who was possessing stick has given blow on the left hand of the deceased, it could be said that A­1 and A­2 have exceeded in their role and the guilt for such purpose could not be traced for A­3 and A­4, so as to uphold the conviction under Section 34 of IPC as recorded by the learned Sessions Judge. Therefore, in view of the facts of the present case, we find that the charge for Section 34 could not be said as proved in the present case and the learned Sessions Judge has committed error to that extent.

18. The next aspect would be to trace the guilt of the accused on the basis of the role played by each of the accused in commission of crime. As observed earlier qua A­1, the role played is to the extent of causing death by using lethal weapon and giving blow on the vital part of the body, which in normal course would be sufficient to cause death of a human being. Whereas the role played by A­2 is of causing fracture by giving blow on the left hand of the deceased with the stick. However, so far as A­3 and A­4 are concerned, as observed earlier, the prosecution has not been able to prove their role beyond reasonable doubt that they caught hold of the deceased when the blows were given by A­ 1 or A­2.”

Therefore, if the individual role of A2, A3 and A4 are to be considered, at the most, it can be said that they caught hold of the deceased without knowledge that A1 is to cause death of the deceased.

26. At this stage, we may refer to the decision of the Apex Court in the case of Hanmantu Nagappa Joglekar vs. State of Maharashtra and others reported at (2007) 15 SCC 567 wherein the Apex Court had an occasion to consider separate conviction by segregating the role played by the accused other than the accused who had the intention to cause death. At para 4, it was observed thus ­ “4. The evidence tendered before the trial court through PWs 5, 6 and 7 is clearly to the effect that all that the appellant is stated to have instigated accused No. 1 Sangappa Berre was to give blows. He entered the scene some time after the quarrel had started and did not have the knowledge that Sangappa had knife with him and all that he is stated to have instigated him was "to give blows and he would take care of the situation". This does not mean that he had an intention to cause the death of the deceased, particularly, when all of a sudden Sangappa Berre took out the knife from his pocket and attacked the deceased Shantabai. In the circumstances neither the trial court nor the High Court could come to the conclusion that he had intention common with accused No. 1 to do away with Shantabai and, therefore, could not have been convicted under Section 324 read with Section 114 IPC or Section 302 read with Section 34 IPC. The appropriate provision under which he could have been convicted is Section 323 read with Section 34 IPC or Section 114 IPC. He could have been convicted for a period not more than one year under the said provision. However, it is stated that he has already undergone more than three years of incarceration and there is no need to sentence him afresh. He is convicted under the said provisions accordingly and the said period of imprisonment already undergone is more than sufficient to cover the sentence imposed under that provision. He stands now released and bail bonds if any furnished shall stand cancelled.”

We are inclined to take the same view in view of the facts and circumstances of the case so far as A2, A3 and A4 are concerned and that the facts in the present case could be said to be more or less similar as was considered by the Apex Court in the above referred decision.

27. The learned counsel for the appellants has stated by now, A2, A3 and A4 have already undergone the sentence of 2 years and 6 months and therefore, we find that even if the A2, A3 and A4 are sentenced for the offence under section 323 read with section 114 of IPC, the sentence would be one year with fine of Rs.5000 and it can be two months more for default in payment of fine.

28. In view of the aforesaid observations and discussions, the judgment and order passed by the learned Sessions Judge for holding A1 guilty for the offence under section 302 of IPC and the sentence imposed upon him of life imprisonment with the fine of Rs.5000 is not interfered with and is hereby confirmed. The judgment and order of the learned Sessions Judge for holding A2, A3 and A4 guilty for the offence under sections 302 read with section 120(B) read with section 114 of IPC and the sentence imposed for life imprisonment with the fine of Rs.2000 each is hereby set aside and it is further held that A2, A3 and A4 are held guilty for the offence under section 323 read with section 114 of the IPC and the sentence shall be 1 year RI with fine of Rs.5000 each and further imprisonment of 2 months RI for default in payment of fine. The conviction of all the accused for the offence under section 341 read with section 114 of the IPC are not interfered with.

29. In the result, Criminal Appeal No.2965/08 shall stand dismissed.

30. Criminal Appeal No.926/08, 2960/08 and 250/09 shall stand allowed to the aforesaid extent. If A2, A3 and A4 have already undergone the sentence and are not required for any other case, they shall be set to liberty forthwith.

(JAYANT PATEL, J.) (MOHINDER PAL, J.) *bjoy