This appeal arises out of a judgment and order rendered by Sessions Court, Bhavnagar camp at Mahuva in Sessions Case No.42 of 2005, dated 09/06/2006, convicting the appellant for an offence punishable under Section 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act and sentencing him to suffer imprisonment for life and SI for 15 days respectively. 2. The prosecution case, in brief, is that the appellant – accused attacked his uncle Bhupatbhai Maganbhai Solanki on 12/12/2004 at about 02:00 p.m., in the outskirts of Village Khandhera of Tal. Talaja, Dist: Bhavnagar, with a weapon akin to sickle. The motive attributed by the prosecution behind this act is that the appellantaccused suspected the deceased of having attempted to outrage modesty of Ashasister of the accused.
3. As per the prosecution case, the incident was seen by wife of the deceased – Lilaben Bhupatbhai and his niece – Champaben Jodhabhai. The deceased died of cardiorespiratory failure due to shock suffered by him on account of profuse bleeding out of injury caused on his face by Katariyu. Medically, it was opined by the Doctor that the injuries were sufficient in ordinary course of nature to cause death, both collectively and individually. The FIR was lodged by Lilaben Bhupatbhai with Datha Police Station, on basis of which offence was registered and case was investigated. At the end of investigation, the Police found that there was sufficient material against the accused and, therefore, the chargesheet was filed in the Court of learned JMFC, Talaja, who in turn, committed the case to the Court of Sessions and Sessions Case No.42 of 2005 came to be registered.
3.1 Charge was framed against accused at Exh.3 for offence punishable under Section 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act, to which he pleaded not guilty and claimed to be tried.
4. The prosecution led evidence, both oral and documentary, and the trial Court at the end of trial, found that the prosecution was successful in proving the charges against the appellantaccused and, therefore, recorded conviction and awarded sentence, as stated herein above by the judgment impugned in this appeal. Hence, this appeal.
5. We have heard learned Advocate Ms.Tanuja Kachchi for the appellant and learned APP, Mr.Neeraj Soni for the respondent – State of Gujarat.
6. Ms.Kachchi submitted that the appellant does not dispute his involvement in the incident, but the incident has not occurred in the manner canvased by the prosecution and upheld by the trial Court. Ms.Kachchi submitted that on the date of incident, deceased Bhupatbhai had tried to outrage modesty of Ashasister of the appellant – accused. Aggrieved thereby, the appellant approached the deceased. There was a dispute, a quarrel and the incident occurred. Ms.Kachchi in fairness submitted that there are two versions emerging from prosecution evidence itself. One that the appellantaccused had Katariyu with him; whereas the other version indicates that the deceased firstly attacked the accused with Katariyu, when the accused went to rebuke him and in transaction the deceased suffered injuries at the hands of the accused. Ms.Kachchi submitted that in either event, the case would not attract Section 302 of IPC, as element of intention would be missing. The incident has occurred at its worst, in grave and sudden provocation offered by the deceased by attempting to outrage modesty of Ashaben, which provoked the accused and, therefore, Exception I to Section 302 would be attracted. Ms.Kachchi submitted that even if the theory of the accused that when he rebuked his uncle the deceased, he was attacked by the deceased with a Katariyu is not believed, the conviction under Section 302 of the IPC may be set aside and the appellant at the best can be convicted under Section 304 of the IPC, as he is in jail for a period of about seven years and eight months.
7. On the other hand, learned APP, Mr.Soni has opposed this appeal. According to him, the theory of grave and sudden provocation is not even put to the eyewitnesses; forget about theory of exercise of private defence. He submitted that the trial Court was justified in convicting the appellant and appeal may therefore be dismissed.
8. We have examined the record and proceedings in context of rival submissions.
9. The prosecution has examined Lilaben Bhupatbhai as PW No.2 at Exh.16. She is the widow of deceased – Bhupatbhai. She claims to be an eye witness to the incident and she says that when the incident occurred, she and Champaben were going towards home. They were at a distance of about 20 feet from the deceased, when the appellant came and inflicted threefour blows of Katariyu on the head of the deceased. Her husband fell down and the appellant ran away. The neighbours came and they took the deceased in a tempo to Talaja Hospital where he was declared dead. According to her, her husband had heard rumour about the relations between appellant and his sister – Asha and he had therefore rebuked the appellant, which resulted into the incident. According to her, the incident of rebuking the appellant had occurred three days prior to the present incident. The witness has been crossexamined and during crossexamination she states that there was never any dispute between the family of the appellant's father and her family prior to the incident. She stated that she had lodged the FIR while she was at the hospital and then she has stated that there was never any dispute between the two families and that why appellant murdered her husband, she does not know. It emerges from her cross examination that she had stated before Police that there was a rumour in the town and even the ladies who came to meet her used to say that incident in question occurred because the husband of the witness tried to ravish the sister of the appellant – Asha.
9.1 She also admits that she had stated before Police that her husband had seen the appellant and his sister indulging in improper behaviour in the afternoon of the day in question and, therefore, the incident occurred. She denies the suggestion that her husband had many enemies in the town.
10. The second eyewitness is PW No.3Champaben Jodhabhai who is examined at Exh.17. She states that she was with PW No.2 at a distance of about 20 feet when the incident occurred. She states that at that time, appellant inflicted Katariya blows on the head of Bhupatbhai. She saw Bhupatbhai falling to the ground bleeding profusely and the appellant had run away. At that time, Madhabhai and Shantuben came. Ultimately, Bhupatbhai went to Hospital and she also went to Hospital and the doctor declared the victim to have died. This witness is also subjected to cross examination but nothing emerges which may turn the tables.
11. Apart from this the prosecution has examined Dr.Dhirajbhai Mayaram Agrawat, as PW No.7 at Exh.27 who describes the injuries suffered by the deceased which were four in numbers. Doctor says that the injuries were antemortem and were sufficient in ordinary course of nature to cause death individually. The deceased had injuries on other parts of the body as well. According to the Doctor, the cause of death was cardiorespiratory failure due to profuse bleeding.
11.1 Postmortem Notes are at Exh.28.
12. The last witness who is examined by the prosecution is the Investigating Officer, Mr.Indravijaysinh Bharubha Chudasma at Exh.40. His deposition reveals certain very important facts which though not directly relating to the episode, are very relevant for the purpose of deciding this matter. He states about recording Lilaben's FIR. He says that after completing formalities of Panchnama of the place of incident, etc., when he went to the Police Station, appellant was present. He lodged complaint against the deceased and that complaint was reduced into writing registered as an FIR against the deceased. According to that FIR, the appellant had suffered injury on his elbow which was caused by the deceased with a Katariya and when the deceased started giving a second blow with Katariya, he tried to snatch it and in that scuffle deceased suffered several injuries. Witness further states that he had sent the appellant for medical examination and upon receiving certificate of injuries suffered by the appellant, he placed the same alongwith FIR and produced before the Court with a report for abated summary, deceased having died.
12.1 This FIR given by the appellant is produced on record at Exh.44. It is an FIR against the deceased alleging commission of offence punishable under Sections 354 and 323 of the Indian Penal Code and under Section 135 of the Bombay Police Act. During crossexamination, this witness admits that the appellant had reached the Police Station before he came back from the scene of offence and Hospital. In the meantime, the appellant had already given a complaint as to what had happened there and it was narrated that the appellant went to rebuke the deceased where he was attacked by the deceased and the appellant received a defence wound on his elbow. When the deceased tried to commit further assault, the appellant tried to snatch away the weapon and injuries were caused to the deceased in that transaction. It also reveals from the FIR produced at Exh.44 that the sister of the appellant – Ashaben told him about the deceased having misbehaved with her and, therefore, the appellant immediately went to the house of the deceased and the incident occurred.
13. Unfortunately, Ashaben is not examined by the prosecution, but fact remains that Ashaben conveyed a complaint to the appellant about deceased having misbehaved with her as a result of which the appellant went to the house of the deceased and the incident occurred. It also transpires from the FIR given by the appellant that the appellant upon learning about this misbehaviour by the deceased, immediately went to the house of the deceased. Necessarily, therefore, that he reacted spontaneously to the conduct of the deceased in provoked state of mind. The story that emerging from the FIR given by the appellant, is also corroborated by crossexamination of PW No.2Lilaben that there were rumour that the incident had occurred because of the husband of the first informant trying to ravish the sister of the appellant. The trial Court was justified in not accepting the stray version emerging from evidence of Lilaben that the deceased had tried to rebuke the appellant on account of the appellant's relationship with his sister – Ashaben. Both of them were married and both of them were full blood brother and sister, are the two factors that have weighed with the trial Court in not accepting this version. We also agree with the trial Court on this aspect.
14. The story, therefore, that emerges is that Asha told the appellant about misbehaviour by the deceased, provoked thereby, the appellant goes to the house of the deceased where the incident occurs. Here, it must be recorded that the genesis of what transpired there is not fully brought on record by the prosecution. Whether the appellant was armed with a Katariyu or it was the deceased who used Katariyu first, are the questions that remain unanswered, but the possibility of the deceased having used Katariyu first on the appellant cannot be ruled out. Because, he did suffer injury on his elbow for which he was treated and the certificate was obtained by the Investigating Officer which was produced alongwith FIR while seeking abated summary. The resultant effect is that the two eyewitnesses viz., Lilaben and Chmpaben cannot be wholly relied upon about the incident when they speak nothing about the deceased having attacked the appellant with Katariyu.
15. With the foregoing discussion, it is difficult to accept the finding of the trial Court that the appellant committed murder of the deceased. If the appellant was not armed with Katariyu when he went to his uncle, which possibility cannot be ruled out, then there is no question of reading any intention and is a natural act. Any brother would be disturbed with the conduct of an uncle who tries to outrage the modesty of his niece. The appellant would be justified in trying to rebuke his uncle. At the best it can be said that he goes there to rebuke his uncle and when he was assaulted upon while trying to snatch away the weapon, the injuries may have occurred. The appellant was even if armed with a Katariyu, then also, was in a provoked state of mind because the provocation was offered by the deceased by his conduct with the sister of the appellant and, therefore, also it is not possible to read any intention in the mind of the appellant to cause death of the deceased. We are of the view therefore that under no set of circumstances the appellant could have been punished under Section 302 of the IPC. We, therefore, set aside that conviction.
15.1 However, undisputedly, the involvement of the appellant in the incident is not disputed. We have two versions, which are possible. One is that appellant went to the house of the deceased with Katariyu and the incident occurred under provoked state of mind, and the second is that appellant went to the house of the deceased in a provoked state of mind, incidentally where he was attacked upon by the deceased with a Katariyu and in trying to defend himself, the incident occurred. In either case, the injuries are on vital part of the body as certified by the Doctor and each injury was individually good enough to cause death of human being in ordinary course of nature and therefore the act attributed to the appellant can be and has to be that of a culpable homicide not amounting to murder punishable under Section 304 of the IPC. According to the nature of injuries suffered by the deceased and the seat of injuries, we are of the view that partI of Section 304 of the IPC would be attracted.
16. We, therefore, partly allow the appeal by altering the conviction from one under Section 302 of the IPC to one under Section 304 PartI of the IPC and sentence him to RI for seven years. So far as conviction under Section 135 of the Bombay Police Act is concerned, the conviction cannot be permitted to stand for the reason that the weapon which is used is an agricultural implement and there is shaky and scanty evidence on whether the weapon which was used in commission of offence was with the appellant from the beginning. We, therefore, set aside the conviction under Section 135 of the Bombay Police Act.
(A L DAVE, J.) (PARESH UPADHYAY, J.) sompura