(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. Present appeals arise out of the judgment and order rendered by the Sessions Court, Vadodara in Sessions Case No. 235 of 2004 on 28th December, 2005. The appellant Khodabhai Vechanbhai Vasava in Criminal Appeal NO.121 of 2006 was accused No.1 before the Sessions Court and appellant Bhupatbhai Limjibhai Vasava in Criminal Appeal No.120 of 2006 was accused No.2 before the Sessions Court. They both came to be convicted by the trial Court for the offence of murder of Dineshbhai Ramanbhai Bhatt allegedly committed by them on 14th June 2004 between 1430 hrs. and 1830 hrs. in the outskirts of village Moti Koral punishable under Sections 302 read with Section 114 of IPC and were sentenced to Rigorous Imprisonment for life with a fine of Rs.1,000/ in default to undergo Simple Imprisonment for six days.
2. The prosecution case in brief is that the deceased Dineshbhai Ramanbhai Bhatt was staying at Village Moti Koral and was employed by Maganbhai Vasava for collection of money from the agriculturist of the area for protecting the fields. In the recent past of the day of incident, Maganbhai engaged the present appellants in place of Dineshbhai and Dineshbhai was rendered unemployed. On day of incident, it is alleged that both the appellants went to the house of Dineshbhai on a mare and upon their asking Dineshbhai left with them. Dineshbhai's son Kinjal, however, suspected a foul play and therefore he followed them. He saw A1 beating Dineshbhai with a wooden stick while travelling on a mare itself, in the outskirts of village Moti Koral, at that time, he was asked by Dineshbhai to go home and therefore Kinjalbhai returned. He tried to contact Yogeshbhai but he was not available therefore he went to Munnabhai who was also not available and therefore Kinjal went home. In the late evening, news were received that Dineshbhai was found lying dead near the bus stand of Village Ojh. An FIR was lodged by Kinjal with Karjan Police Station. Offence was registered and investigated. The Investigating Agency having found sufficient evidence against the two appellants filed chargesheet against them in the Court of JMFC, Karjan who in turn committed the case to the Court of Sessions and Sessions Case No.235 of 2004 came to be registered.
2.1 Charge was framed against both the appellants by the trial Court at Exh.4 for the offence punishable under Section 302 read with Section 114 of IPC and Section 135 of Bombay Police Act. Both the accused persons pleaded not guilty to the charge and claimed to be tried. At the end of the trial, considering the evidence led by the prosecution, the trial Court concluded that the charges were proved against both the accused and recorded their conviction and passed the sentence as stated hereinabove, hence, this appeal.
3. Learned advocate Mr. Barot appears for the appellants in both the appeals whereas respondent State is represented by learned APP Mr. K.
L. Pandya in both the appeals.
3.1 Since both these appeals arise out of the same judgment and order they are heard together and are disposed of by this common judgment. For the sake of convenience, the appellants are referred to by their original status and number of accused in this judgment.
4. Learned advocate Mr. Barot submitted that as per the prosecution case as emerging from the chargesheet papers, A1 and A2 took deceased Dineshbahi with them. Kinjal followed them and saw A1 beating deceased with stick while riding on mare. Thereafter on being so asked by deceased, he returns home. Later on, A1 is noticed dropping the deceased at Ojh bus stand in a severely injured condition. The deceased gets up and sits for the but to arrive for going home. It is alleged that he did make a statement before witness Naginbhai Motibhai Patel (PW:4, Exh.18) that he was severely beaten by A1A2. He was offered some beverage and refreshment which he denied and after sometime he collapsed. Later on he was identified. Information was sent to his home. Kinjal lodged FIR and ultimately charge sheet was filed.
4.1 Mr. Barot submitted that prosecution case, even if taken at its face value, does not involve A2 in any manner. No overt act is alleged against him except that he accompanied A1 to the house of the deceased. He is alleged to have played no role by the prosecution. Even the circumstance of 'last seen together' also does not go against him for the reason that as per the prosecution case the deceased was dropped at the bus stand by A1 only and therefore his conviction by the trial Court punishable under Section 302 read with Section 114 is not proper and may be set aside.
4.2 Learned counsel for the appellant then submitted that so far as A1 is concerned, he may not be able to assail the finding of the trial Court on involvement of A1 in the incident but conviction under Section 302 read with Section 114 of IPC is not proper. Mr. Barot submitted that though the deceased had multiple injuries on his person, none was serious. All the injuries were simple in nature and superficial and none of them can be said to be sufficient in ordinary course of nature to cause death though the deceased died because of the injury which got related to damage to kidney. Fact remains that the accused A1 was not armed with deadly weapon, it was only a stick which any agriculturist or Simrakkha (protectors of fields) would keep and that is what is alleged to have been used by A1 as can be seen from evidence of Kinjal. Mr.Barot therefore submitted that intention to cause death which is essential for convicting a person for murder is not possible to be read from the conduct of A1. Mr. Barot submitted further that the deceased died out of injury to kidney and corresponding external injury is again simple in nature and therefore even knowledge that the injuries are likely to cause death is not possible to be inferred in the mind of A1. Factually also as per prosecution case, the deceased did not have any serious injury on his person. Mr. Barot therefore submitted that the conviction of A1 for murder of Dineshbhai is also not maintainable.
4.3 Mr. Barot however submitted that at the best A1 can be said to have committed an offence of grievous hurt punishable under Section 325 of IPC. He, therefore, submitted that the appeal may therefore be accordingly allowed.
5. Learned Additional Public Prosecutor Mr. K. L. Pandya, on the other hand, submitted that though no overtact is alleged against A2, he did participate in episode to the extent of going along with A1 to the house of deceased and taking him out of the house on a mare. Mr. Pandya submitted that though the evidence of Kinjal would involve only A1 in the overt act, A2's presence throughout is a glaring factor showing his involvement. Mr. Pandya then submitted that the deceased was so badly beaten that he died because of those multiple injuries though they were simple in nature. The injuries were all over the body and innumerable in number and one of the injuries has caused damage to the kidney of the deceased which has ultimately resulted in death of victim Dineshbhai. The trial Court was therefore justified in convicting the appellants for the offence of murder. Mr. Pandya submitted that in view of that fact, appeals may be dismissed.
6. We have examined Record and Proceedings in context of rival submissions.
7. Though the prosecution has examined number of witnesses, the prosecution case can be said to stand on evidence of Kinjal Dineshkumar Bhatt (PW:1,Exh.11), Yogeshkumar Kantibhai Purohit (PW:2, Exh.15) and Bhalchandra Ramanlal Bhatt (PW:5, Exh.19).
8. Kinjal is the son of deceased Dineshbhai, aged about 17 years. In his evidence Exh.11, he has stated that he knew both the accused persons and he identifies them in the Court as well. According to this witness his father was formerly working for Maganbhai Vasava and was replaced by the appellants. His father had no occupation. On the day of incident, both the accused came to their place to call his father and conveyed that Maganbhai was calling deceased Dineshbhai. Therefore, deceased left with them on a mare. Witness says that he found the moment suspicious therefore he followed them and the duo took Dineshbhai towards Navi Nagri Station via Nani Koral. The witness says that he saw that A1 was beating his father with stick, his father, however, asked him to go home. This was around 3:00 p.m. He went back to the house of Yogeshbhai but he was not available. Therefore he went to the house of Munnabhai who was also not available and therefore he went home and in the evening he received call from Yakubbhai that his father is lying near Ojh bus stand in the dead condition. The deceased had injuries on back, waist, legs, hands possibly caused with stick. There were bruises on the body. He says that he does not know as to why his father was done to death. His cross examination would reveal that because of appellant's replacing his father, his father's income had stopped but there was no dispute or quarrel between the appellants and his father, not even an altercation.
8.1 The witness identified A2 to be Vechanbhai and he says that the sticks used by the assailants at the time of incident were other than one forming part of muddamal.
8.2 Witness Yogeshkumar Kantibhai Purohit (PW:2, Exh.15) is from village Moti Koral. He received phone from Yakubbhai Mansuri that Dineshbhai is lying dead at the Ojh bus stand. He therefore informed Kinjal, as he was told by Kinjal that Khodabhai Vechanbhai and Bhupatbhai Limjibhai Vasava had come to his house to call his father, and his father had left with them. Kinjal also told him that when he followed them he saw both the persons beating Dineshbhai. He says that they went to village Ojh, found dead body of Dineshbhai near bus stand and noticed injuries possible by giving of a push with stick. One Bharatbhai Maganbhai told him that deceased Dineshbhai was sitting in the evening and that these persons (appellants) had dropped him there after beating. During cross examination he admits that he had learnt that Dineshbhai was alive when he was dropped at the bus stand and was sitting there.
8.3 Bhalchandra Ramanlal Bhatt (PW:5, Exh.19) is brother of deceased Dineshbhai. He on receiving call from Kinjal had gone to the place where dead body was lying and found that there were marks of injuries particularly contusion on the dead body multiple in number.
9. Apart from above witnesses, evidence of Bhartbhai Maganbhai Patel (PW:3, Exh.17) and Naginbhai Motibhai Patel (PW:4, Exh.18) are of some relevance for the purpose of knowing the prosecution case as a whole. These two witnesses have been declared hostile by the prosecution but what their version was before the police has been brought on record through evidence of Investigating Officer Bharatbhai Madhabhai Patidar (PW:21 Exh.:65).
9.1 From evidence of Bharatbhai Patel (Exh.17), it is clear that he did not come to know anything from Naginbhai Motibhai Patel and Desaibhai Dhulabhai Patel and it had not so happened that a person was brought on a mare and dropped near the banyan tree, however, from the cross examination to the Public Prosecutor where he has denied and from Examinationinchief from Bharatbhai Patidar it transpires that the deceased was dropped at the bus stand by A1 in a conscious state wearing white shirt and white paijama.
9.2 From the evidence of Naginbhai (Exh.18) it emerges that deceased had identified himself as Dineshbhai Bhatt before this witness and disclosed before him that Khoda Raman Vasava and Bhupatbhai Vasava, the employees of Simrakkha Maganbhai had picked him up and that he had been badly beaten. Again this aspect is not admitted by this witness, he has been treated hostile and this aspects have been proved by the prosecution through evidence of Bharatbhai Madhabhai Patidar, the Investigating Officer.
10. Having scanned the evidence what we find is that it is only Kinjal who has seen the occurrence or who has seen deceased going in company of the appellants. He states that appellants came to their house and took the deceased with them stating that Simrakkha Maganbhai had called him. Kinjal followed them and noticed A1 beating deceased and the deceased asked him to leave and go back. He, therefore, came back. Then the deceased was dropped at Ojh bus stand. He was dropped by A1 and nobody speaks of presence of A2.
10.1 Now therefore the entire prosecution evidence alleges that the A2 went with A1 to the house of deceased and they took deceased with them for going to Maganbhai's place. On the way, the deceased was beaten by A1. Thereafter what happened to the trio, where did they go, is not on record. The son knows it only when in the evening A1 is found to have dropped deceased near the bus stand. So far as A2 is concerned, there is no overt act alleged against him. There is no material before us to infer that he was part of any scheme, plan or conspiracy with A1. It is not even the case of the prosecution. All that the prosecution has alleged, that he abetted the commission of offence but in that A2 is not alleged to have taken any active part either physically or by oral utterance. He is not alleged to have given any beating to the deceased either. He cannot be said to have been seen lastly in company of the deceased because when the deceased was dropped at Ojh bus stand, he was in company of A1 alone and none else and the time gap between A1,A2 and deceased leaving and A1 dropping the deceased is about 45 hours during which time what happened is not brought on record. The resultant effect is that A2 cannot be said to have aided or abetted the offence. Conviction of A2 under Section 302 of IPC read with Section 114 of IPC therefore cannot be justified in any manner and deserves to be set aside.
11. So far as A1 is concerned, he is alleged to have gone to the house of deceased, taken the deceased with him and he is seen to have been beaten the deceased, by Kinjal. Kinjal does not say anything about how he followed the trio who had left the house on a mare, how he could chase them in the outskirt of village Navinagri station from Moti Karol and therefore we are unable to reconcile as to how he could have seen this but assuming for a moment that he had seen it, then also at the best he saw A1 beating Dineshbhai with sticks. Assuming that the injuries which were found on the person were caused by A1 then also the injuries are of superficial in nature and other injuries are all bruises, nothing beyond that. Only injury no.6 had a relatable internal injury damaging kidney which resulted into death of the deceased but externally there were no special marks to distinguish that injury from other injuries. Therefore, while giving blows the assailants cannot be attributed with any intention to cause death of the deceased and cannot be held responsible for the death either, though death has occurred out of these injuries only. The injuries were superficial in nature and can be inferred to have been caused in all probabilities with a view to teach a lesson and not with a view to cause a death. Even otherwise, had this been of a grave nature and on vital part of the body, the injury which caused death is injury to kidney and no knowledge is attributable to A1 about the same. He has used the same weapon and has caused superficial bruises all over the body, may be this injury no.6 on the back resulted in damage to kidney.
11.1 There is one more factor which requires consideration which is that after the episode A1 drops the deceased on the bus stand to enable him to go to his place and till that moment the deceased was conscious and was at least able to speak and all that he alleges is that, he is beaten by the accused persons. Both the witnesses do not support the say. But assuming that this had happened then also A1 has dropped the deceased at the Ojh bus stand with injuries, none of which was serious in nature. In our opinion, therefore, knowledge or intention cannot be attributed to A1 for causing death of the deceased. All that he can be said to have done is caused multiple simple superficial injuries. The offence that can be said to have been committed at its best would be having caused grave hurt to the deceased. The stick that he has used is an ordinary stick and cannot be treated as a dangerous weapon contemplated under Section 326 of IPC. His case therefore would fall under Section 325 of IPC.
12. As an offshoot of the foregoing discussion, the Criminal Appeal No.120 of 2006 preferred by A2Bhupatbhai Limjibhai Vasava is allowed. The judgment and order of conviction and sentence of A2 rendered in Sessions Case No. 235 of 2004 on 28.12.2005 by the learned Presiding Officer, Fast Track Court No.8, Vadodara, is hereby set aside. He is acquitted of all the charges levelled against him. He is ordered to be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to him.
12.1 Criminal Appeal No.121 of 2006 preferred by A1Khodabhai Vechanbhai Vasava is partly allowed. The conviction of A1 rendered by learned Presiding Officer, Fast Track Court No.8, Vadodara, in Sessions Case No.235 of 2004 dated 28.12.2005 is altered from one punishable under Section 302 r/w Section 114 of the IPC, to one under Section 325 of the IPC. He is sentenced to undergo RI for seven years, with no change in fine.
(A. L. Dave, J.) amit (Paresh Upadhyay, J.)