IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 686 of 2007 With CRIMINAL APPEAL No. 690 of 2007 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 ?
========================================== =============== ROHITKUMAR MAGANBHAI PATEL & SOMABHAI DEVABHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================== =============== Appearance :
MR BC DAVE for Appellant(s) : 1,MR MILIND R KULKARNI & MR. D.R. DHIMAR for Appellant(s) : 1, MS. MAITHILI MEHTA & MR. K.P. RAVAL, ADDL. PUBLIC PROSECUTORS for Opponent(s) : 1, ========================================== =============== HONOURABLE THE CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 3/08/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B. PARDIWALA) Both the above captioned appeals preferred by respective convict-accused arise from a common judgment and order of conviction passed by the learned Additional Sessions Judge, Surat, dated 15th February, 2007 in Sessions Case No. 6 of 2002 and therefore, they were heard together and are being disposed of by this common judgment and order.
2. Criminal Appeal No. 686 of 2007 is at the instance of Rohitkumar Maganbhai Patel, a convict for the offences punishable under Sections 302, read with Section 34 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 15th February, 2007, passed by the learned Additional Sessions Judge, Surat, in Sessions Case No. 6 of 2002. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offences punishable under Section 302, read with Section 34 of the Indian Penal Code and consequently, sentenced him to suffer life imprisonment and a fine of Rs. 75,000/- for the offence punishable under Section 302 of the Indian Penal Code. In default of payment of fine, the appellant was directed to undergo further rigorous imprisonment for two years.
3. Criminal Appeal No. 690 of 2007 is at the instance of Somabhai Devabhai Rathod, a co-accused and convict for the offences punishable under Sections 302, read with Sections 34 and 307 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 15th February, 2007, passed by the learned Additional Sessions Judge, Surat, in Sessions Case No. 6 of 2002. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offences punishable under Section 302, read with Sections 34 and 307 of the Indian Penal Code and consequently, sentenced him to suffer life imprisonment and a fine of Rs. 75,000/- for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, with a further stipulation that in default of payment of fine, the appellant shall undergo further rigorous imprisonment for two years. The appellant was also found guilty of the offence punishable under Section 307 of the Indian Penal Code and consequently, he was sentenced to suffer rigorous imprisonment for a term of ten years and a fine of Rs. 25,000/- with further stipulation that in default of payment of fine, the appellant shall undergo further rigorous imprisonment for one year.
4. Case of the prosecution:
4.1 As per the charge Exh.6 framed by the learned Additional Sessions Judge, Surat dated 16th January, 2003, both the accused-appellants, in furtherance of the common intention, picked up quarrel with the complainant and the deceased at around 11'O Clock in the morning on 29th August, 2001 on the issue of opening a fence, which was put up by the complainant in his agricultural field. It is the case of the prosecution that accused-Rohitkumar Patel inflicted fist blows on the body of the deceased and thereafter, with an intention to kill, inflicted injuries on the body of the deceased with a knife and thereby caused the death of the deceased. It is also the case of the prosecution that the co-accused-Somabhai Devabhai Rathod, who was the servant of the accused-Rohitkumar, inflicted two knife injuries in the stomach of the complainant and thereby attempted to commit murder of the complainant.
4.2 For the alleged incident which occurred on 29th August, 2001 at around 11'O Clock in the morning, First Information Report was lodged by the injured witness, namely - Rameshbhai Jagubhai Patel, at 12.45 hours. It appears that the first informant happens to be the cousin of the deceased and the accused Rohitkumar also appears to be a relative of the deceased, and the dispute was with regard to opening of a fence which was put up by the deceased.
4.3 The Police was informed about the incident and accordingly, started the investigation. It appears that the first informant, who was injured, was admitted first at Community Health Center and thereafter, he was referred to Civil Hospital at Bardoli and while on the way to Bardoli, the first information report was recorded by the Investigating Officer for the offences punishable under Section 302, read with Section 34 and Sections 307 and 114 of IPC.
4.4 The body of the deceased was brought to Community Health Center where inquest panchnama was drawn. The deadbody was thereafter, sent for postmortem and the postmortem examination revealed that the cause of death of the deceased was due to cardio-respiratory failure as a result of massive haemorrhage on account of stab injury over heart. The scene of offence panchnama was also drawn from where samples of soil stained with blood were taken for the purpose of serological examination. The statements of various witnesses were recorded by the Investigating Officer. Both the accused persons were arrested by drawing panchnama of their person. Finally, chargesheet was filed against both the accused-appellants in the Court of learned Judicial Magistrate First Class, Mandvi.
5. As the case was exclusively triable by the Sessions Court, the Judicial Magistrate First Class, Mandvi committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure. The Sessions Court framed charge against the accused, Exh.6 and statement of both the accused were recorded. Both the accused did not admit the charge and claimed to be tried.
6. The prosecution adduced the following oral evidence in support of its case.
(i) PW-1, Ramesh Jagubhai, Exh.14, first informant and injured witness.
(ii) PW-2, Chhaganbhai Ramabhai, Exh.18, panch witness of the scene of offence panchnama;
(iii) PW-3, Arunkumar Chimanlal, Exh.20, panch witness of the panchnama of the clothes of the first informant;
(iv) PW-4, Ganibhai Suleman Shaikh, Exh.22, second panch witness of the panchnama of the clothes of the first informant;
(v) PW-5, Prabhubhai Dahyabhai Patel, Exh.23, panch witness of the panchnama of the agricultural field of the accused No.1 and panchnama of the house of the deceased;
(vi) PW-6, Manjulaben Thakorbhai, Exh. 26, eyewitness;
(vii) PW-7, Dr. Tanulata R. Pavagadhi, Exh.27, the doctor who performed postmortem and also who treated the injured first informant;
(viii) PW-8, Jatinbhai Gemalbhai, Exh.34, eyewitness and son of the deceased;
(ix) PW-9, Sureshbhai Vallabhbhai, Exh. 35, panch witness of the discovery panchnama of the weapon and clothes of the accused persons;
(x) PW-10, Prabhubhai Ranchhodbhai, Exh. 39, panch witness of the discovery panchnama of the weapon at the instance of the accused No.1 and recovery of clothes of the accused No.2;
(xi) PW-11, Mohanbhai Nanubhai Surti, Exh. 41, the Surveyor who prepared the map of the scene of occurrence;
(xii) PW-12, Manharlal Dahyalal Patel, Exh. 43
(xiii) PW-13, Dhirubhai Devjibhai, Exh.44, witness who produced the clothes of the first informant and sample of the blood;
(xiv) PW-14, Dr. Dipen H. Shah, Exh. 45, the Medical Officer who treated the injured first informant;
(xv) PW-15, Pushpaben P. Kadam, Exh.49, PSO
(xvi) PW-16, Maulesh Bhanuprasad Joshi, Exh.51, the Investigating Officer.
7. The following pieces of documentary evidences were adduced by the prosecution.
(a) Original first information report dated 29.8.2001, Exh. 15;
(b) Inquest panchnama of the deadbody of the deceased, dated 29.8.2001, Exh.16;
(c) Scene of offence panchnama, dated 29.8.2001, Exh. 19;
(d) Panchnama of the clothes of the deceased after postmortem, dated 29.8.2001, Exh. 17;
(e) Panchnama of the paddy field of the deceased, dated 30.8.2001, Exh.25;
(f) Photographs of the scene of offence and the panchnama of the trouser of the deceased, dated 30.8.2001, Exh.24;
(g) Panchnama of the clothes of the first informant, dated 30.8.2001, Exh. 21;
(h) Panchnama of the person of the accused No.1 at the time of arrest, dated 30.8.2001, Exh. 36;
(i) Panchnama of the person of the accused No.2 at the time of arrest, dated 30.8.2001, Exh. 38;
(j) Panchnama of the discovery of knife stained with blood, at the instance of the accused No.2, dated 31.8.2001, Exh.
37;
(k) Postmortem report of the deceased, dated 29.8.2001, Exh. 30;
(l) Medical certificate of the treatment given to the injured first informant, dated 18.9.2001, Exh. 28;
8. After completion of oral as well as documentary evidence of the prosecution, the statement of both the accused persons under Section 313 of the Criminal Procedure Code were recorded, in which both the accused persons stated that the complaint was a false one and they are innocent.
9. At the conclusion of the trial, the learned trial Judge convicted the accused No.1 for the offence punishable under Section 302, read with Section 34 of the Indian Penal Code and sentenced him as stated hereinbefore. In the same manner, the trial Court also convicted the accused No.2 for the offence punishable under Section 302, read with Section 34 of Indian Penal Code, as well as Section 307 of Indian Penal Code, and sentenced him as stated hereinbefore.
10. Being dissatisfied, both the accused-appellants have come up with their respective appeal.
11. Oral evidence on record:
11.1 The prosecution examinedPW-1, Rameshbhai Jagubhai, Exh.14. This witness is the first informant and also an injured witness. In his deposition, this witness stated that the deceased happened to be his Kaka (uncle) and was residing next to the house of this witness. This witness knew the accused No.1 Rohit very well as Rohit happens to be son of his another Kaka (uncle). According to this witness, the accused No.1 was also residing next to the house of the deceased. the accused No.2 was also known to this witness as he was working as a servant at the house of the accused No.1. This witness further deposed that next to the house of the accused No.1, there is a cattle shed and adjoining the cattle shed, there are two parcels of open land, which belongs to this witness and the deceased. Adjoining to the open land is the house of one Thakorbhai and next to the house of Thakurbhai, there is a passage to enter in to the open land which belongs to this witness and the deceased. PW-1 deposed that the incident occurred on 29.8.2001 at around 10.45 in the morning. On the previous day, both the accused persons drove their tractor in such a manner as a result of which the crop which was standing on the land of the deceased got damaged. On the date of the incident, this witness and the deceased were trying to explain to the accused persons as regards what had happened on the previous day. This witness has further deposed that in the open land he himself and the deceased had put up a wire fence and this fence was broken open by the accused persons. This witness and the deceased also tried to persuade and explain the accused persons as to why they were breaking open the fence. At that relevant point of time, both the accused persons were on the Otta (sit out) of their house. This witness and the deceased both together tried to explain to the accused persons that if they wanted to go into the open plot, then at that time they might open the wire fence and thereafter once again might close the same. However, the accused No.1 told the first informant and the deceased to do whatever they wanted to do. Thereafter, this witness and the deceased went to close the fence. When this witness and the deceased went to close the fence, at that point of time both the accused persons and mother of the accused No.1 Lilavatiben came at that place. At the relevant point of time, mother of this witness, his wife and one Manjuben, wife of Thakorbhai Ganpatbhai along with the wife of the deceased and the son of the deceased were also present. One Madhuben, who happens to be a relative was also present. The deceased was at the footsteps of the house of Thakorbhai. At that point of time, the accused No.1 gave a forceful push to the deceased, as a result of which the deceased fell down. Thereafter, the accused No.1 pounced upon the deceased and inflicted two knife injuries in the chest and started to run way. The deceased also, despite injury, ran behind the accused No.1 and this witness along with others who were present also tried to chase the accused No.1. At that point of time, the accused No.2, the servant of the accused No.1, inflicted two knife injuries on the body of this witness. According to this witness, one blow was inflicted on the stomach, and the second one, a little above the stomach. The deceased after running few paces fell down. This witness and the others were unable to catch hold of the accused No.1. The deceased was picked up and was brought to his house and thereafter, he was taken to a dispensary at Mandvi. The doctor after examining the deceased declared that the deceased was already dead. This witness was taken to to a Health Center at Mandvi for treatment and from there, he was transferred to Civil Hospital. While on his way from Mandvi to Surat, the Police recorded the First Information Report. This witness thereafter deposed that since Bardoli was close to his house, he got admitted at Bardoli Sardar Hospital and took treatment for about ten days. This witness in his cross-examination admitted that in his First Information Report, he had stated as regards the fact that when the accused persons were at their Otta of their house, they were requested that if they wanted to go to the open plot, they might open the fence and thereafter close the same. However, this witness tried to clarify that if such a fact is not reflected in the first information report, then he would not like to clarify in this regard. He also stated that in his first information report, he did inform the Police that he and the deceased thereafter went to close the fence and at that point of time both the accused persons and mother of the accused No.1 Lilavatiben arrived there. This witness was confronted with his first information report and the defence Counsel brought few contradictions in the form of omissions on record. However, PW-1 stuck to his original version and his credibility could not be impeached in any manner by cross-examination. This witness proved the first information report, Exh.15.
11.2 PW-2, Chhaganbhai Ramabhai, Exh.18, is a panch witness of the scene of offence panchnama. Nothing much turns around so far as the evidence of this panch witness is concerned. He is the panch witness of the panchnama under which blood samples were drawn from the place of occurrence.
11.3 PW-3, Arunkumar Chimanlal, Exh.20, is also a panch witness of the panchnama of the clothes of the first informant, and nothing much turns around so far as the evidence of this panch witness is concerned, because he was declared hostile.
11.4 PW-4, Ganibhai Suleman Shaikh, Exh.22, is a second panch witness of the panchnama of the clothes of the first informant, He was also declared hostile at the time of trial.
11.5 PW-5, Prabhubhai Dahyabhai Patel, Exh.23, is a panch witness of the panchnama of the agricultural field of the accused No.1 which was damaged due to the fact that the accused persons drove their tractor in a particular manner.
11.6 PW-6, Manjulaben Thakorbhai, Exh. 26 is an important witness, as she is an eyewitness. This witness deposed that on 29th August, 2001 at around 10.45 in the morning, she heard the voice of the accused No.1 and therefore, came out of her house. This witness deposed that at that point of time, the accused No.1 gave a push to the deceased, as a result of which the deceased fell down at the footsteps of her house. She has also deposed that thereafter the accused No.1 inflicted injuries on the body of the deceased with a knife and when PW-1 Rameshbhai tried to save the deceased, at that point of time the accused No.2, the servant of the accused No.1 inflicted knife injuries on the body of PW-1 Rameshbhai. She has also deposed that the accused No.1 ran away from the place of occurrence and the deceased also tried to run behind the accused No.1, but the deceased thereafter fell down in the Vada (boundary) of the accused No.1. The deceased was lifted by few persons and was brought to his house and thereafter, he was taken to Mandvi dispensary. This witness learnt at around 1'O Clock in the afternoon that the deceased had passed away. Thereafter, Police came and recorded her statement. This witness has deposed that at the time of incident, Urmilaben, Hansaben and Madhuben were also present. She has also deposed that PW-1 Rameshbhai and son of the deceased Jatinbhai were also present. The accused No.1 also happens to be a relative of this witness. This witness has further deposed that she had no idea as to what happened to PW-1 Rameshbhai after he sustained injuries. This witness identified muddamal article No.12 as the same knife which was used by the accused No.1 and muddamal article No. 21 as the same knife, which was used by the accused No.2.
11.7 The prosecution examined PW-7, Dr. Tanulata R. Pavagadhi, Exh.27. This witness in her deposition has stated that on 29th August, 2001, she was serving as a Medical Officer at Referral Hospital and at around 12.05 hours, PW-1 Rameshbhai Jagubhai was brought to the hospital. Upon enquiry, the said Rameshbhai revealed that at around 11'O Clock one Somabhai Devabhai (the accused No.2) inflicted injuries with a knife on his stomach. This witness has deposed that the patient was conscious and upon examination, two injuries were noticed, namely - (i) Contused Lacerated Wound 3.5 x 1.5cm over epigastric region (sharp cutting injury) and (ii) CLW about 1 x 0.5cm on left hypochondrial region and profuse bleeding was noticed. This witness deposed that the patient was referred to Civil Hospital, but the patient insisted that he should be taken to Bardoli Hospital, as the same would be convenient. This witness has further deposed that the injuries were possible by a sharp cutting weapon. She proved the certificate, Exh. 28, which was issued by her. She was also shown the weapon muddamal article No. 21 i.e. knife, and she opined that the injuries were possible by such a knife. This witness has further deposed that at the same time, a deadbody of the person named Gemalbhai was brought to the Hospital. The Police was informed about the same. When PW-1 Rameshbhai was admitted in the Hospital for treatment, at the same time the deadbody of the deceased was brought to the hospital. This witness has further deposed that PW-1 Rameshbhai gave history of the incident to the effect that on 29th August, 2001 at around 11' O Clock, the accused No.1 Rohitbhai inflicted injuries with a knife on the deceased and his mother, Lalitaben, abetted in the same. This history was given in context of the deceased. This witness has further deposed that postmortem on the deadbody of the deceased was performed, which revealed the following injuries on the body of the deceased:-
1. Sharp cutting stab wound injury over leftside chest about 4 x 1/2 cm at left pericardial region at lateral side of sternum just near to lateral border of sternum;
2. About 4 x 1/2cm over left fourth intercostal region 4cm lateral to mid-sternum skin margin - clean cut;
The internal injuries were as under:-
1. Two stab wounds over pericardium about 1.2 x 0.3cm and 1 x 0.3cm below wound (A);
2. Two stab wounds over right ventricle anterior wall of heart (about 1.2 x 0.3cm) & (about 1 x 0.3cm) penetrating through whole thickness of right ventricle wall.
The cause of death assigned in the postmortem report was to the effect that the deceased died due to Cardio Respiratory arrest as a result of massive haemorrhage due to stab wound injuries over heart. This witness proved the postmortem report Exh.30. This witness also deposed that the injuries on the body of the deceased were sufficient in the ordinary course of nature to cause death of a person and were possible with a knife. This witness was cross-examined and in her cross-examination, she stated that Police had not sought any opinion by forwarding the knife. She further stated that "C.L.W" means 'Contused Lacerated Wound' and such a wound is possible by hard and blunt object. She further stated that "C.L.W" would not be possible with a pointed sharp cutting weapon. This witness was confronted with the medical certificate, Exh.28 to point out that in the medical certificate, she had described the injuries as "C.L.W". However, this witness on her own clarified that in bracket it has been stated in the certificate as "sharp cutting injury". This witness clarified that it was a mistake on her part in describing the injuries as Contused Lacerated Wound and therefore, subsequently having realized the mistake, she noted in bracket as sharp cutting injury. She also stated that she realized about the mistake only when she came in the Court to depose. She deposed that after joining service at the hospital, it was her first examination. She also deposed that the postmortem which was performed on the body of the deceased was the first postmortem of her career.
11.8 The prosecution also examined PW-8, Jatinbhai Gemalbhai, Exh.34. This witness is the son of the deceased. In his deposition, he stated that the accused No.1 Rohit happens to be his cousin. The incident occurred at around 11 'O Clock in the morning of 29th August, 2001. On that day he had gone to the school at Bardoli. However, on reaching the school, he learnt that there was a strike declared by the Teachers and therefore, he returned home at around 10.15 in the morning.
His father, the deceased, had gone to his agricultural field. He further stated that PW-1 Ramesh told his father that the accused No.1 had broken open the wire fence which should be closed. The house of the accused No.1 is next to the house of this witness. His father and Rameshbhai tried to explain to the accused No.1 that if he would have requested for the road, they would have willingly given to him, but there was no point in damaging the crops. After trying to explain this, his father went to close the fence and when his father was closing the fence, the accused No.1 in a loud voice said that you may do whatever you want to do. Thereafter, the accused No.1 gave a push to his father and pouncing upon his father, inflicted knife injuries and ran away. This witness has deposed that the incident occurred near the house of Thakorbhai. When Rameshbhai, PW-1 tried to intervene, the accused No.2 stopped him and inflicted two knife injuries on the body of Rameshbhai. His father ran behind the accused No.1 to catch hold of him; his mother Manjuben and others also ran behind them, but as the deceased was injured, he fell down in the Vada of the accused No.1, next to a Gobar Gas plant. This witness thereafter called up one Dhansukhbhai Patel and tried to arrange for a vehicle but he was unable to find a single vehicle. His father was taken to his house; his father was bleeding profusely; and as no vehicle was available, they thought of taking the deceased on a motorcycle. One Anilbhai came home and took the deceased to Mandvi Hospital on his motorcycle, accompanied by Rameshbhai. This witness joined one Mohanbhai on his bike. On their way, as there was lot of discomfort to the deceased, they had to stop to give some rest to the deceased. Accordingly, they stopped and made the deceased to sit under a neem tree. In the meantime, Dhansukhbhai came with a Sumo and the deceased was thereafter taken to Mandvi Hospital in that Sumo. On reaching the hospital, his father was declared dead. He has deposed that Rameshbhai was hospitalized at Bardoli for about 10 days.
The defence tried to impeach the credibility of this witness by cross-examining on the line that he had not witnessed the incident as he was at school and the story of strike declared by the Teachers on that day was a fabricated one. A suggestion was put to this witness that there was no strike on that day in the school and this witness had not returned home. This suggestion was denied. This witness maintained his stand that he had witnessed the incident, barring few minor contradictions brought on record in the evidence of this witness.
11.9 PW-9, Sureshbhai Vallabhbhai, Exh. 35 is a panch witness of the discovery panchnama of the weapon i.e. knife and clothes of the accused persons. However, this witness was declared hostile.
11.10 PW-10, Prabhubhai Ranchhodbhai, Exh. 39 was also examined as one of the panch witnesses. This witness was a panch witness of the panchnama of clothes of the accused persons. This witness deposed that he was called at the Police Station on 30th August, 2001; both the accused persons were present at the Police Station; Police drew a panchnama of clothes and knife; the clothes were of the accused No.2, Somabhai Devabhai and the knife was produced by the accused No.1. This witness deposed that the knife was in the right side pocket of the pant of the accused No.1 and the knife was sealed. He identified the knife as the same being muddamal article No.12. He further deposed that on the same day, clothes of the accused No.2 were also sealed, few stains of blood were also noticed on the clothes.
11.11 PW-11, Mohanbhai Nanubhai Surti, Exh. 41 is the Surveyor who prepared the map of the scene of offence.
11.12 PW-12, Manharlal Dahyalal Patel, Exh. 43 is a Police witness and nothing much turns around on the evidence of this particular witness.
11.13 PW-13, Dhirubhai Devjibhai, Exh.44, is a witness who produced the clothes of the first informant and sample of the blood, and nothing much turns around on the evidence of this particular witness.
11.14 The prosecution examined PW-14, Dr. Dipen H. Shah, Exh. 45. This witness deposed that on 29.8.2001 at around 1.55 hours, one Rameshbhai Jagubhai Patel was brought to the hospital in an injured condition. He was referred from CHC, Mandvi. This witness deposed that Rameshbhai, in the history of incident, narrated that one Somabhai Devabhai (the accused No.2), Rohitbhai (the accused No.1) and Lalitaben Maganbhai Patel, mother of the accused No.1 had inflicted injuries on him. This witness deposed that upon examination, two injuries were found on the body of Rameshbhai, i.e (i) One stab wound 4 x 2cm on epigastric region; and another stab wound 1cm x 0.5cm on the region of hypochondrial, somewhere on the leftside near the chest. Operation was performed on Rameshbhai. This witness proved the certificate dated 12th September, 2001, Exh.46.
11.15 The prosecution examined PW-16, Maulesh B. Joshi, Exh.51, the Investigating Officer. This witness deposed that on 29th August, 2001, he was serving as a Senior Police Sub Inspector at Mandvi Police Station. He received information as regards some fight at village Ungodawadi. This witness accordingly started the investigation by recording the FIR of PW-1 Rameshbhai, necessary panchnamas were drawn and statements of the witnesses were recorded.
12. The picture that emerges from a cumulative reading and assessment of the material available on record is thus:
12.1 In the present case, there is evidence of three eye witnesses, PW-1 Rameshbhai Jagubhai, the first informant himself is an eyewitness, being an injured witness. The second eyewitness is PW-6, Manjulaben Thakorbhai. The third eyewitness is the son of the deceased viz. PW-8 Jatinbhai Gemalbhai, Exh.34.
12.2 It appears that the accused No.1 was related to the deceased. The accused No.2 was the servant of the accused No.1. The dispute between the parties was with regard to a fence, which time and again was being opened by the accused No.1 for the purpose of plying his tractor. It appears that one day before the date of the incident, the accused persons drove their tractor in such a manner which damaged the standing crops of the deceased. The deceased and the injured witness Rameshbhai tried to persuade the accused No.1 by explaining that if he wanted to open the fence to enter the open plot, then he might do so, but at the same time, should take care to see that the accused No.1 closed the fence once again. The issue was very trivial. On the date of the incident it seems that while trying to explain to the accused No.1, the accused No.1 got furious and gave a forceful push to the deceased, as a result of which the deceased fell down. The accused No.1 thereafter pounced upon the deceased and inflicted two injuries with a knife in such a manner that it damaged the heart to a considerable extent, as revealed by the postmortem report. It also appears that no sooner was the deceased inflicted with knife injuries by the accused No.1, than the accused No.1 ran away and was chased by the deceased and others, but the deceased fell down near a Gobar Gas plant. It also appears that when PW-1 Rameshbhai and other witnesses ran behind the deceased, the accused No.2 inflicted knife injuries on the stomach of PW-1 Rameshbhai. Rameshbhai is an injured witness and also the first informant. The evidence of Rameshbhai stands substantially corroborated by the evidence of PW-6 Manjulaben Thakore, Exh.26 and with the evidence of PW-8 Jatinbhai Gemalbhai, Exh.34. So far as the basic version of the incident is concerned, the witnesses are consistent about the same. We do not find anything glaring being brought on record through cross-examination of any of these three eye witnesses so as to disbelieve the testimony of these three eye witnesses. The defence had tried to establish that PW-8 Jatinbhai, the son of the deceased, is a got up eyewitness because at the time of incident, he was at school. However, it has been clarified by PW-8 Jatinbhai that on the date of the incident, he had gone to the school, but as there was a strike declared by the Teachers, he returned home by 10.15 in the morning. Nothing substantial could be elicited by the defence through cross-examination so as to discredit the evidence of PW-8 Jatinbhai. It appears that on a very trivial issue, the accused No.1 being a relative of the deceased and the injured witness Rameshbhai, went to the extent of drawing a knife and inflicting two severe injuries on the chest of the deceased, resulting in serious injury to the heart, as a result of which the deceased died. The accused No.2, as a faithful servant, also played his own role. Having realised that PW-1 Rameshbhai and other witnesses were trying to chase the accused No.1, he inflicted two injuries with a knife in the epigastric region of PW-
1 Rameshbhai. The presence of both the accused is well established. The ocular version of the eye witnesses is also fully corroborated by medical evidence on record.
12.3 At this stage, we may state that Mr. Dhimar, appearing for the accused No.2, tried to point out the discrepancy so far as the injuries reflected in the medical certificate Exh.28 prepared by PW-7 Dr. Tanulata R. Pavagadhi, is concerned Mr. Dhimar, relying on the certificate Exh.28 submitted that both the injuries sustained by PW-1 Rameshbhai were shown to be contused lacerated wound, and if a knife is alleged to have been used, then injuries could not have been contused lacerated wounds. We may say that this aspect has been quite satisfactorily explained by PW-7 Dr. Tanulata R. Pavagadhi, and more particularly, the entire discrepancy could be said to have been set at rest by the evidence of PW-14 Dr. Dipen H. Shah, Medical Officer. PW-1 Rameshbhai, after being treated at CHC Mandvi, was shifted to Bardoli where he was treated by PW-14 Dr. Dipen H. Shah. PW-14 Dr. Dipen H. Shah in his evidence Exh.45 in so many words has stated that PW-1 had sustained two injuries and both were stab wounds.
12.4 We may add that PW-1 Rameshbhai is an injured eyewitness. The evidence of an injured witness must be given due weightage being a stamped witness; thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein, as has been held by the Supreme Court in Jarnail Singh V. State of Punjab, (2009) 9 SCC 719, Balraje @ Trimbak V. State of Maharashtra, (2010) 6 SCC 673 and Abdul Sayed V. State of Madhya Pradesh (2010) 10 SCC 259.
13. Mr. B.C. Dave, learned counsel appearing for the accused No.1 very laboriously submitted that even if the entire case of the prosecution is accepted as true, the case would not fall within the ambit of murder but it would fall within the ambit of culpable homicide not amounting to murder. As a matter of fact, we may state that during the course of the arguments, Mr.
B.C. Dave, laid much emphasis in convincing the Court that the case falls within Exception 4 to Section 300 of IPC. In fact, the entire argument was confined to this rather than trying to argue anything regarding the genesis of the occurrence or the quality of evidence of the eyewitnesses. Mr. Dave strenuously submitted that it is the prosecution's own case that the incident occurred at a spur of moment. Mr. Dave submitted that there was no premeditation and it was a case of sudden fight. Mr. Dave also submitted that having regard to the nature of the injuries sustained by the deceased, it could not be said that the intention of the accused No.1 was to kill the deceased and under such circumstances, the accused No.1 is entitled to get the benefit of Exception 4 to Section 300 of IPC.
14. Mr. Dhimar, learned counsel appearing for the accused No.2 forcefully submitted that the trial Court committed a serious error in convicting his client for the offence of murder punishable under Section 302 IPC with the aid of Section 34 of IPC. Mr. Dhimar submitted that considering the manner in which the incident occurred, it could not be said that his client shared a common intention to commit the crime with the accused No.1. Mr. Dhimar submitted that there is a material difference between the sharing of similar intention and common intention. According to Mr. Dhimar, Section 34 IPC can be attracted only if the accused share a common intention and not where they share similar intention. According to Mr. Dhimar, there are no circumstances on the record from which it may be possible to draw the inference that his client had shared the common intention. He further submitted that mere presence together is not sufficient to hold that his client shared the common intention with the accused No.1 to murder the deceased. Mr. Dhimar further submitted that the trial Court also committed a serious error in convicting his client for the offence punishable under Section 307 of IPC i.e. attempt to commit murder. Mr. Dhimar submitted that taking into consideration the nature of the injuries sustained by PW-1 Rameshbhai, the injured witness, it could not be said that his client had intention to cause injuries on PW-1 Rameshbhai sufficiently to bring the case within the ambit of Section 307 IPC. Mr. Dhimar submitted that the conviction of his client deserves to be altered from Section 307 IPC to one under Section 324 IPC. Mr. Dhimar placed reliance on the decision of the Supreme Court in Harbans Nonia Vs. State of Bihar, reported in AIR 1992 SC 125. He also placed reliance on the decision of the Supreme Court in Jai Bhagwan Vs. State of Haryana, reported in AIR 1999 SC 1083 and another decision in Jaspal Singh Vs. State of Haryana, reported in 1977 SC 1821 in support of his contentions.
15. In order to appreciate the submission of Mr. Dave appearing for the accused No.1, we may look into Exception 4 to Clause 300 of IPC. 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.
16. 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. Dave that the case would fall within Exception 4 of Section 300 IPC and such benefit be extended to the accused No.1. We do agree to a certain extent with Mr. Dave that the incident occurred in the heat of a moment and the fight was also sudden. However, we cannot overlook the fact that the deceased in company of PW-1 Rameshbhai, just tried to persuade the accused No.1 that if he wanted to open the fence, he might open, but at the same time should see that the fence was closed by the accused No.1. On this trivial issue, the accused No.1 went to the extent of drawing a knife and inflicting severe injuries on the body of the deceased, who was unarmed and was helpless. The injuries must have been inflicted with such a force that it damaged the heart of the deceased to a considerable extent. Under such circumstances, it could be said that the accused No.1 took undue advantage and acted in a cruel and unusual manner. We therefore, reject this submission of Mr. Dave so far as Exception 4 of Section 300 IPC is concerned. We may only say that the case on hand is not one where the accused No.1 in the heat of a moment picked up a stick or a log of wood or any other agricultural implement lying near the place of occurrence and hit one blow on the body of the deceased and thereafter, withdrawing himself on realizing the consequences of the same. Here in the present case, the accused No.1 was armed with a knife. He gave a forceful push to the deceased, as a result of which he fell down on the footsteps of the house of Thakorbhai and Manjulaben and thereafter, pounced upon the deceased and inflicted two injuries on the vital part of the body like chest causing extensive damage to the heart.
17. We shall now deal with the submissions of Mr. Dhimar, learned counsel appearing for the accused No.2. The accused No.2 was the servant of the accused No.1 and his presence at the time of occurrence is also established beyond reasonable doubt. PW-1 Rameshbhai, the injured witness, has deposed that when he and others were trying to ran behind the deceased as the deceased started chasing the accused No.1, the accused No.2 at that point of time with a view to restrain PW-1 Rameshbhai, inflicted two injuries with a knife in the epigastric region. Considering the nature of evidence which has been led by the prosecution, the question which falls for our consideration is as to whether the trial Court was justified in coming to the conclusion that the accused No.2 had the common intention along with the accused No.1 to commit the crime. The question which we need to address is as to whether the conviction of the accused No.2 under Section 302 read with Section 34 of IPC is sustainable on the basis of the evidence on record or not. A three Judge Bench of the Supreme Court in Suresh and anr. Vs. State of U.P. reported in (2001) 3 SCC 673 had the followings to state pertaining to Section 34 of the Indian Penal Code.
"Section 34 of the Indian Penal Code recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The Section gives statutory recognition to the common sense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a pre- arranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as "the Code") is the element of participation in absence resulting in the ultimate "criminal act". The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.
Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the Court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Palar v. Emperor (AIR 1919 Pat 111) held that it is only when a Court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
18. What then is the fact situation said to have been proved in the present case? It is in this context the factual score thus, ought to be noticed at this juncture.
The evidence on record goes to show that on the date of the incident at around 10.45 hours in the morning, the accused No.2 being the servant of the accused No.1 was very much in company of the accused No.1. It may be true that the dispute as regards the wire fence was between the accused No.1 and the deceased. The accused No.2 as such had nothing to do with the inter-se dispute between the accused No.1 and the deceased. However, the fact remains that the accused No.2 was very much present along with the accused No.1. Not only that when the deceased started chasing the accused No.1 after being assaulted by the accused No.1 and when the other witnesses like PW-1 Rameshbhai also tried to run behind the deceased, the accused No.2 played his own role by restraining PW-1, Rameshbhai from running further and at the same time inflicted knife injuries in the epigastric region. The injuries sustained by PW-1 were not superficial or simple injuries, but they were very serious injuries which needed surgery and PW-1 Rameshbhai was fortunate enough to survive. This act on the part of the accused No.2 is sufficient enough to positively attribute common intention to commit the crime. We do agree with the submission of Mr. Dhimar, learned counsel appearing for the accused No.2 that there is a material difference between the sharing of similar intention and common intention and Section 34 IPC can be attracted only if the accused share a common intention and not where they share only similar intention. In the present case however, what we find from the evidence on record is that there are circumstances to draw the inference that the accused No.2 had shared the common intention. Before a person can be held liable for acts done by another, under the provisions of Section 34, it must be established that (i) there was common intention in the sense of a prearranged plan between the two and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this Section 34 cannot apply. In the present case, both these tests can be said to have been established considering the evidence on record, more particularly the evidence of the injured witness, PW-1 Rameshbhai. In most cases common intention has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which he can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved.
In the Oxford English Dictionary, the word "furtherance" is defined as 'action of helping forward'. Adopting this definition, Russel says that "it indicates some kind of aid or assistance producing an effect in future" and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of effecting that felony. (Russel on Crime 12th Edn. Vol.1 p.487 and 488). In Shankarlal Kacharabhai and Ors. v. The State of Gujarat (AIR 1965 SC 1260) the Supreme Court has interpreted the word "furtherance" as 'advancement or promotion'.
19. We shall now deal with the submission of Mr. Dhimar so far as the conviction of his client under Section 307 of IPC is concerned. It is a settled law that to justify a conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and way even, in some cases be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the accused would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 307 IPC. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
In the instant case, the accused No.2 was in company of the accused No.1. After the accused No.1 inflicted injuries with a knife on the body of the deceased and started running away and when other witnesses were trying to chase, the accused No.2 at that point of time inflicted two injuries on the epigastric region of PW-1, Rameshbhai. It is the case of the prosecution that after being assaulted by the accused No.1, the deceased tried to chase the accused No.1 as he ran away from the scene of occurrence and when others also tried to help the deceased; at that stage, with a view to stop PW-1 Rameshbhai, the accused No.2 with a knife inflicted injuries. Hence, in our view, the accused No.2 was rightly held guilty of offence punishable under Section 307 IPC.
20. We shall now look into the decisions relied upon by Mr. Dhimar, in support of his contentions:-
(a) In the case of Harbajan Singh Vs. State (supra), the Supreme Court in the facts of the case thought fit to set aside the conviction under Section 302 IPC read with Section 34 IPC and substituted the one for offence under Section 326, read with Section 34 IPC. In the facts of the said case, the Supreme Court held that there was no evidence indicating that there was any preconcert of mind of all the accused persons including the appellants before the Court in perpetrating the offence of murder. This decision is of no assistance to Mr. Dhimar in support of his contention.
(b) In Jaybhagwan Vs. State of Haryana (supra), the Supreme Court has explained as regards the factors, which must be established to apply Section 34 of IPC. The Supreme Court stated that two factors must be established to apply Section 34 IPC (i) common intention and (ii) participation of the accused in the commission of an offence. The Supreme Court further observed that if common intention is proved, but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability, but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. The Court further observed that in every case it would not be possible to have direct evidence of common intention, and for the same one has to infer from the facts and circumstances of each case. This judgment is also of no assistance to Mr. Dhimar in support of his contention, as from the evidence it is established beyond any pale of doubt that the accused No.2 had the common intention to commit the crime alongwith the accused No.1.
(c) In Jaspal Singh Vs. State of Haryana (supra), the Supreme Court held that there was no evidence to hold that the accused shared the common object of the two other accused to commit the murder of Balbirsingh. Finally, the Supreme Court upheld the conviction of the accused in the said case under Section 325 of the IPC. This judgment would also be of no assistance to Mr. Dhimar, as in the facts of the said case the Supreme Court took the view that the accused shared the common object of the other two accused to commit the murder, and no absolute proposition of law has been laid down.
At this stage, we may only say that a decision has to be considered in the background of the factual scenario. In criminal cases of the present nature, the question of a precedent, particularly relating to appreciation of evidence is really of no consequence.
21. In the circumstances, we come to the conclusion that both these appeals must fail and are liable to be dismissed. Both the appeals are accordingly dismissed.
(Bhaskar Bhattacharya, C.J.) FURTHER ORDER:
(J.B. Pardiwala, J.) After the order is passed, it has been brought to our notice that the accused No.2 Somabhai Devabhai Rathod, the accused-appellant of Criminal Appeal No. 690 of 2007 is on bail. As we have dismissed his appeal, the bail bond stands cancelled. The accused No.2 Somabhai Devabhai Rathod is directed to surrender himself before the jail authorities within a period of one week from today, failing which it shall be open for the trial Court to issue non-bailable warrant.
(Bhaskar Bhattacharya, C.J.) */Mohandas (J.B. Pardiwala, J.)