IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1292 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 ?
4 Whether this case involves a substantial question of law as 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 ?
========================================================= SUPABHAI VESTABHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance :
MR MRUDUL M BAROT for Appellant(s) : 1, MR KP RAVAL, APP for Opponent(s) : 1, ========================================================= HONOURABLE THE CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 06/09/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) The present Appeal is at the instance of a convict accused for the offences punishable under Section 302 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 26th September 2007, passed by the learned Sessions Judge, Narmada at Rajpipla in Sessions Case No.16 of 2007. By the aforesaid order, the learned Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently, sentenced him to suffer Life Imprisonment and to pay fine of Rs.1000/- for the offence punishable under Section 302 IPC. In default of payment of fine the appellant was directed to undergo further Rigorous Imprisonment for 6 months. The learned Sessions Judge also convicted the accused for the offence punishable under Section 135 of the Bombay Police Act. However, the learned Sessions Judge has not imposed any sentence or fine so far as the offence under Section 135 of the Bombay Police Act is concerned.
I. Case of the Prosecution :
PW1 Bhaguben Exh.5 is the original first informant and the wife of the deceased. On 6th February 2007 PW1 Bhaguben lodged a First Information Report Exh.23 with Sagbara Police Station stating that she was residing at a place called Barktura at Taluka Sagbara with her husband, the deceased, and her children. At around 6 O’clock in the evening on the previous day of the incident, the deceased told the first informant – his wife that he was on his way to an agricultural field called as 'Dungarwala' field and saying so the deceased left the house.
The first informant was doing her household work and at that point of time one Sariyabhai, a resident of the village, came at around 7 O’clock in the evening at the house of the first informant and informed that the accused had inflicted injuries on the head of the deceased with an axe and the deceased was lying on the ground. Sariyabhai also informed the first informant that the accused had run away from the place of incident with an axe in his hand. On learning this, the first informant along with her daughter, reached at the place of occurrence and saw the accused lying on the ground in a pool of blood. The first informant also noticed that her husband, the deceased, had sustained injuries on the left cheek, on the chest as well as on the head. On inquiring from the people who had gathered near the dead body of the deceased, the first informant was told that the accused came running with an axe in his hand and inflicted injuries on the body of the deceased. In the first information report, the first informant stated that the motive behind the commission of the crime was that her agricultural field and the agricultural field of the accused were adjoining to each other. In between the two fields on the edges, there were Teak trees and all the said Teak trees belonged to the first informant whereas the accused was also claiming to be the owner of the said Teak trees. In this regard, before around 7 years a quarrel had ensued and thereafter both the families kept on quarreling over the issue of grass grown on the edges between the two fields. However, with the intervention of few people of the village, the controversy was resolved between the two families. The first informant has stated that a day before the date of incident in the morning, the daughter-in-law of the accused cut few branches of the Teak trees for which the daughter-in-law of the first informant reprimanded the daughter-in-law of the accused. Keeping this in mind and out of spite and vengeance, the accused inflicted injuries on the deceased and caused his death.
On the strength of the FIR Exh.23 lodged by the PW1 Bhaguben w/o the deceased, the investigation commenced. The dead body of the deceased was sent for postmortem examination and the postmortem examination revealed that the deceased had sustained a lacerated wound on left side of face as well as on the left oracle of neck. The cause of death was assigned to be traumatic hemorrhagic shock leading to cardio respiratory failure due to injury on the vital part of the body i.e. head. Inquest Panchnama Exh.11 was drawn. The arrest Panchnama of the accused Exh.12 was drawn on 6th February 2007. The clothes which were worn by the accused were changed and were taken in possession under a Panchnama Exh.12. The clothes of the deceased stained with blood were also recovered under a Panchnama Exh.13. Thereafter the scene of offence Panchnama Exh.19 was drawn in presence of the panch–witnesses. The axe alleged to have been used in the commission of the offence was also recovered at the time of drawing of the arrest Panchnama of the accused Exh.12. The muddamal articles were sent for chemical analysis to the Forensic Science laboratory. Statements of witnesses were recorded.
On completion of the investigation charge-sheet was filed against the accused for the offence punishable under Section 302 IPC as well as for the offence under Section 135 of the Bombay Police Act in the Court of learned JMFC, Dediapada.
As the case was exclusively triable by the Sessions Court, the JMFC, Dediapada committed the case to the Sessions Court under Section 209 Cr.P.C. The Sessions Court framed charge against the accused Exh.3 and statement of the accused was recorded. The accused did not admit the charge and claimed to be tried.
The prosecution adduced the following oral evidence in support of its case.
PW1 Bhaguben Dhana Panchiya Exh. 5 - Original complainant and wife of The deceased.
PW2 Dr.Sanjaykumar Exh. 6 ShriJogeshwarprasad Singh -
Medical Officer who performed Postmortem.
PW3 Sariyabhai Nandariyabhai Exh. 8 - Eye-witness.
PW4 Chanduben Devdas Vasava. Exh. 9 PW5 Imaben Kunjubhai Vasava Exh.10 -Witness.
PW6 Nathubhai Fojiyabhai Vasava Exh.16
- Panch witness.
PW7 Ashokbhyai Valabhai Katkar Exh.22
- PSI who recorded FIR.
PW8 Manharbhai Virsing Patel Exh.25
- Investigating Officer.
The following pieces of documentary evidence were adduced by the prosecution.
After completion of oral as well as documentary evidence of the prosecution, the statement of the accused under Section 313 of Criminal Procedure Code was recorded, in which the accused stated that the complaint was a false one and he was innocent.
At the conclusion of the trial, the learned trial Judge convicted the accused for the offence under Section 302 of IPC and sentenced him as stated herein before. The learned trial Judge also convicted the accused for the offence punishable under Section 135 of the Bombay Police Act, however, no sentence for the said offence was imposed.
Being dissatisfied, the accused-appellant has come up with the present Appeal.
II. Oral Evidence on Record :
I) The prosecution has examined PW1, Bhaguben, Exh.5 – wife of the deceased. PW1 is also the original first informant. PW1 has deposed that on the date of the incident her husband, the deceased, had gone to an agricultural field known and recognized as Dungarwala field at around 6 O’clock in the evening. At that point of time the PW1 was at her home. At around 6:45 hours in the evening, one Sariyabhai Nandariya came at the house of PW1 and informed that the accused had inflicted injuries with an axe on the deceased and had run away. PW1 has also deposed that Sariyabhai informed her that four injuries were inflicted by the accused. Thereafter, the PW1 along with her daughter, named, Laxmi ran at the place where the incident had occurred. According to the PW1 the incident had occurred near the house of Sariyabhai and she saw her husband, the deceased, lying dead in a pool of blood. She has also deposed that the deceased had sustained injuries on the cheek, shoulder as well as on the head and was bleeding profusely. The people who had gathered at the place of incident informed the PW1 that it was Supa Vesta – the accused who inflicted injuries on the deceased with an axe. The PW1 has also deposed that the daughter-in-law of the accused had cut few branches of Teak trees for which she was reprimanded by the daughter-in-law of the PW1. PW1 has deposed that for the said reason, the accused, out of vengeance, committed murder of her husband – the deceased. PW1 identified the accused in the Court room. In her cross-examination PW1 has deposed that it was true that she had not actually witnessed the incident.
She denied the suggestion that the dead body of her husband, the deceased, was lying near their agricultural field. PW1 has further deposed that when she reached at the place of incident, she saw a mob of around 100 people gathered near the dead-body of her husband, the deceased. At that point of time, the accused was not present. PW1 has also deposed that thereafter she went to Sagbara along with one Vija Patel, Shivji Noorji, Raviya Mudiya, Bhimabhai Mudiya to inform the police about the incident.
II) Prosecution also examined PW2, Dr.Sanjay Kumar Singh, Exh.6. The PW2 is a Medical Officer who performed the postmortem on the dead body of the deceased. The PW2 has deposed that the deceased had sustained the following injuries.
(1) Lacerated wound with rough border vertical on the left side of face extending from upper border of maxillary protuberance to upper border of mandible. Size :- 3” x 1½” x upto bone.
(2) Lacerated wound with rough border from lower border left auricle to middle part of left side of neck. Size :- 3½” x 2” x upto bone.
(3) Abrasion 3 cm x 2 cm and brownish blackish in colour on right leg.
III) PW2 has also deposed that the injuries were possible by a hard and blunt substance or an object. PW2 in his evidence has deposed on being shown the muddamal article axe alleged to have been used in inflicting injuries on the deceased, that if the rear portion i.e. the blunt part of the axe was used for hitting, then the injuries sustained by the deceased were possible. PW2 has also deposed that in the same manner if a person falls down even then the injuries which the deceased had sustained were possible. All the injuries were sufficient in the ordinary course of nature to cause death. In the cross-examination PW2 deposed that due to excessive bleeding a person may die. He has also deposed that if there is 1/3rd loss of blood from the body a person would die. PW2 has deposed that no fracture was noticed in the scalp. He has also deposed that if a sharp side of the weapon would have been used, then in such a case the skull would break into two pieces. He has also deposed that a single or an individual injury sustained by the deceased was not sufficient in the ordinary course of nature to cause death, however, injury no.2 proved to be fatal. He has deposed that the injuries nos.1 and 3 were possible by a hard and blunt object. He has also deposed that the weapon with which the injuries were inflicted would get stained with blood. PW2 has also deposed that the death might have occurred before around 14 hours from the time of commencement of the postmortem. PW3 has proved the postmortem report – Exh.7.
IV) Prosecution has also examined PW3, Sariyabhai Nandaria Vasava, Exh.8. This witness is the eye-witness to the incident. PW3 in his evidence has deposed that the incident occurred at around 6.30 in the evening. PW3 was on his way to a shop and at that point of time PW3 met the deceased. In the meantime, the accused came over there and all of a sudden inflicted injuries on the head of the deceased with an axe. PW3 has also deposed that next to the place of incident is the house of one Raheman Miya. The incident occurred on the road. On injuries being inflicted on the deceased with an axe, the deceased fell down and died on the spot. PW3 thereafter went to the house of the deceased and informed his wife, the PW1, as well as the daughter-in-law of the deceased. PW3 has also deposed that the fields of the accused as well as the deceased were adjoining to each other. He has also deposed that there were Teak trees in the said field. PW3 has deposed that the daughter-in-law of the accused had cut few branches of Teak trees and for such reason, the incident in question occurred. In his cross- examination, the PW3 has deposed that when he went near the deceased, nobody was present at that point of time. He has also deposed that he did not see anyone sitting on the road. At the time of incident, he was not at the shop, but was on his way to the shop. There were many houses near the place, where the deceased was lying after sustaining injuries. PW3 has also deposed that he witnessed the incident at a distance of around 20 ft. He has deposed that he heard the shouts raised by the deceased for help and therefore, he went near the deceased. He has deposed that it was true that in his statement before the police he had not stated that axe was hit on the head. He has also deposed that persons engaged in agricultural work would ordinarily carry an axe with them.
V) Prosecution witness No.4 is Chanduben Devdas Vasava Exh.9. PW4 Chanduben is also one of the eye-witnesses to the incident. PW4 Chanduben has deposed that she was residing at village Barktura. On the date of incident in the afternoon she had gone from Selamba to village Barktura. The incident occurred at around 5.30 in the evening. She has further deposed that she had been to her uncle’s house at around 5 O’clock and was returning home at around 6 O’clock in the evening. While PW4 Chanduben was walking on the road, she noticed that the deceased was also walking ahead of her at a distance of about 5 ft. PW4 has further deposed that the accused had covered his upper part of the body with a shawl and beneath the shawl the accused had concealed an axe. The accused all of a sudden inflicted injuries on the neck of the deceased with an axe as a result the deceased fell down and the accused ran away from the place of incident. PW4 has also deposed that near the place of incident, houses of one Rajaram Maliya as well as one Raheman Miya are situated. On witnessing the incident PW4 Chanduben went away to her father-in-law’s house. PW4 identified the axe as the same axe which was in the hand of the accused at the time of assault. PW4 also identified the accused sitting in the Court room as the assailant. In her cross-examination she has deposed that when she was walking on the road Sariyabhai was also there on the said road. She has deposed that Sariyabhai was walking ahead of her. She has deposed that deceased had not raised any shouts for help. On seeing the accused with an axe in his hand PW4 Chanduben got frightened and ran away to the house of her father-in-law. She denied the suggestion that she had not witnessed the incident and was deposing falsely against the accused.
VI) PW5 is Imaben Kunjubhai Vasava – Exh.10. PW5 Imaben is the daughter-in-law of the deceased. She has deposed that the complainant is her mother-in-law. It was a month of Holi. On the date of incident, the PW5 had gone to the agricultural field which was known as 'Dungarwala' field. She has also deposed that adjoining their field was the field of the accused. She has also deposed that at that point of time, the daughter-in-law of the accused named Premila came and started cutting a Teak tree. On seeing this, the PW5 Imaben told Premila not to cut the tree as the tree belonged to her family. On this issue, there was an altercation between the PW5 Imaben and Premila. Thereafter, the PW5, Imaben, returned home from the field. She informed about the altercation with Premila to her mother-in-law. She has further deposed that on that day in the evening, her father-in-law, the deceased, had gone to the field and thereafter Sariyabhai came home and informed them that the accused had inflicted injuries on the deceased and the deceased was lying dead. At that point of time, her mother-in-law was also present. She has deposed that she was the first to rush to the place of incident followed by her mother-in-law. On reaching the place of incident, she found that her father- in-law, the deceased, was dead. As the vehicle was not available, they all went to Sagbara Police Station at 9 O’clock at night to lodge FIR. She identified the accused in the Court-room. PW5, Imaben, has deposed in her cross-examination that past 5 to 6 years they had been quarreling with the family of the accused regarding Teak trees. On intervention of few noted persons of the village, a settlement was arrived at in this regard. She has deposed that she had not actually witnessed the incident but it was Sariyabhai who came and informed about the incident.
VII) PW6 is Nathubhai Fojiyabhai Vasava Exh.16. PW6 Nathubhai has deposed that on 6th February 2007 he was called at Sagbara Police Station at 9 O’clock in the morning to act as a Panch-witness to the panchnama of the scene of offence. Along with him there was one Bhimsing Vasava as a second panch. PW6 Nathubhai has deposed that the place of occurrence was near the house of Raheman Miya Vasava on the road. The place of occurrence was shown by Sariyabhai - one of the eye- witnesses to the incident. PW6 Nathubhai has also deposed that there was a puddle of blood at the place of occurrence. The blood stained soil was collected by the police and was put in a box and thereafter, the box was sealed. This witness proved the scene of offence Panchnama Exh.19.
VIII) PW7 is Ashokbhai Valabhai Katkar Exh.22. This witness is a Police Officer. On 6th February 2007 he was in-charge as a PSI at Sagbara Police Station. He has deposed that at that point of time, Bhaguben Dhanabhai Vasava - wife of the deceased, came at the police station to lodge FIR and the same was recorded. Thumb impression of Bhaguben was obtained on the said FIR Exh.23. Thereafter, the Higher Officers were informed about the incident. This witness went to the place of occurrence. A yadi was sent to the Executive Magistrate for the purpose of drawing inquest. The dead body was brought from the place of incident and was sent for postmortem examination. The inquest panchnama was drawn in the morning Exh.11. He has also deposed that thereafter the scene of offence panchnama Exh.19 was drawn. The blood stained soil as well as control soil were collected. In his cross- examination, the PW7 Ashokbhai has deposed that he had visited the place of occurrence at around 1:30 in the night. The information about the incident was received at around 11:45 in the night. During the course of investigation, it was revealed that the incident occurred at around 6.30 in the evening. He has deposed that the investigation revealed that two injuries were inflicted on the deceased. PW7 further deposed that thereafter he handed-over the investigation to another PSI.
IX) PW8 is Manharbhai Virsingbhai Patel Exh.25. PW8 is the 2nd Investigating Officer. He has deposed that past one year he was serving as PSI at Sagbara Police Station. He has deposed that as he was on leave from 4th February 2007 to 5th February 2007, his charge was with PSI Shri Katkar of Dediyapada. On 6th February 2007, the PW8 Manharbhai resumed his duty and took over the investigation of CR.I No.6 of 2007 registered at Sagbara Police Station. He has deposed that he recorded statements of few witnesses. On receipt of information that the accused was present at his house, he went with a team of policemen at the house of the accused and arrested the accused. He has deposed that the panchnama of the person of the accused was drawn in presence of two panchas and at that point of time, the accused voluntarily handed over the axe which was used in inflicting injuries on the deceased. After arresting the accused, the relatives of the accused were informed. The clothes worn by the accused at the time of incident were recovered by drawing a panchnama. At the end of the investigation charge-sheet was filed in the Court of Judicial Magistrate, First Class, Dediyapada. In his cross- examination he has deposed that the accused was arrested on 6th February 2007 at around 3 O’clock in the afternoon. He has also deposed that at the time of his arrest he did not verify as to whether there were any blood stains on the clothes of the accused. He has deposed that the accused was brought at the police station where the clothes were changed and thereafter were placed in a bag applying seal. He denied the suggestion that the accused had not handed over the axe in presence of the panch-witnesses.
III. Contentions on behalf of accused-appellant:
Shri Mrudul Barot, learned counsel appearing for the accused vehemently submitted that the trial Court committed a serious error in convicting the accused for the offence of murder by implicitly relying on the oral evidence of the eye- witnesses. Mr.Barot submitted that the evidence of the two eye-witnesses to the incident could not be termed as wholly reliable and therefore, trial Court ought to have discarded such a piece of evidence. Mr.Barot vehemently submitted that the trial court has committed a serious error in not taking into consideration the apparent conflict between the ocular version of the eye-witnesses and the medical evidence on record.
Mr.Barot submitted that the injuries sustained by the deceased were contused lacerated wound. According to Mr.Barot, if the sharp side of the axe would have been used in inflicting injuries, then it would not have resulted in contused lacerated wounds but the injuries would have been in the nature of incised wounds, to be precise, cut wounds. However, in the present case the evidence of the doctor, according to Mr.Barot, makes it explicitly clear that the accused may have inflicted the blunt part of the axe in inflicting the injuries on the deceased. The main plank of Mr.Barot’s submission is that if an object like an axe is used in commission of an offence and if the assailant inflicts injuries with the blunt side of the weapon, then it reflects on the intention of the accused. Mr.Barot submitted that in the present case considering the evidence of the doctor it could be said that the accused had inflicted injuries with the reverse side of the axe i.e. the blunt side of the axe in inflicting injuries.
Mr.Barot, learned counsel appearing for the accused, submitted that in case as alleged had indeed the axe being used while causing injuries to the deceased, then in that case, the prosecution should have been forthright clear enough and for that purpose ought to have sought clarification from the eye-witnesses as regards which side of the axe was used.
Mr.Barot, learned counsel appearing for the accused, submitted that even if the evidence of the two eye witnesses is believed to be true and accepted, even then the case is one of culpable homicide not amounting to murder and not murder. Mr.Barot urged before us that having regard to the manner in which the incident is alleged to have occurred, it could be said that the accused had no intention to cause death of the deceased. Mr.Barot submitted that the act committed by the accused would come within the offence punishable under Section 304 Part-I of the Indian Penal Code as he could be attributed with the knowledge that the injury caused by him was likely to cause death. Mr.Barot, therefore, urged before us to alter the conviction of the accused from the offence punishable under Section 302 IPC to one under Section 304 Part-I or Part-II of IPC. In support of his contentions Mr.Barot relied upon two decisions of the Supreme Court : (i) Balbir Singh and others v/s. State of Punjab & others, (2005) 9 SCC 299 and (ii) Hanuman v/s. State of Haryana, AIR 1994 SC 1302.
IV. Contentions on behalf of the State :
Mr.K.P.Raval, learned Public Prosecutor vehemently submitted that trial Court has not committed any error in basing conviction of the accused for the offence punishable under Section 302 IPC relying on the oral evidence of the two eye-witnesses; PW3 Sariyabhai and PW4 Chanduben.
Mr.Raval further submitted that the contention of the learned counsel for the accused that there are contradictions between the medical evidence and oral evidence is not of much consequence as the witnesses could not be in a position to specifically say as to which portion of the weapon was used when there was a sudden attack by the accused on the deceased. Mr.Raval further submitted that the oral evidence of the two eye-witnesses is amply corroborated by many other pieces of relevant evidences on record. Mr.Raval submitted that during the course of investigation while drawing arrest Panchnama Exh.12 of the accused, the shawl which the accused had used to cover the body for concealing the axe inside the shawl was recovered and taken in possession and simultaneously the weapon of offence i.e. axe was also recovered from the accused. As per the Serological Test Report, the shawl was also stained with blood matching with the blood group of the deceased i.e. ‘A’. At the same time blood was also found on the axe matching with the blood group ‘A’ of the deceased. Mr.Raval submitted that the most incriminating piece of circumstance viz. recovery of blood stained shawl and blood stained axe could be said to have been admitted by the accused as the contents of Panchnama Exh.12 were not disputed as the defence counsel in the trial court put an endorsement that he had no objection in taking panchnama Exh.12 on record. According to Mr.Raval this is evident from the endorsement put by the defence counsel in Exh.2 i.e. the list of documentary evidence produced by the prosecution during the course of trial.
Mr.Raval submitted that in the same manner the pant worn by the accused at the time of incident was also recovered which contained blood stains matching with the blood group of the deceased.
Mr.Raval lastly submitted that the prosecution has been able to prove the strong motive in commission of the crime. Mr.Raval, therefore, urged that no error could be said to have been committed by the trial court in convicting the accused for the offence of murder.
Having heard the learned counsels for the respective parties and having gone through the materials on record, the only question that falls for our determination in this appeal is as to whether the accused could have been convicted for the offence of murder punishable under Section 302 IPC.
We have minutely gone through the oral evidence of the two eye-witnesses PW3 as well as PW4. Both these eye- witnesses have categorically deposed that they saw the accused inflicting injuries on the deceased with an axe. We have also noticed that PW4 Chanduben has deposed as regards the presence of PW3 Sariyabhai at the place of occurrence. PW3 Sariyabhai is the person who immediately went to the house of the deceased and informed the wife of the deceased as well as the daughter-in-law of the deceased. We do not find any infirmity or anything improbable in the evidence of PW3 as well as PW4 so as to disbelieve the testimony on any ground. PW3 as well as PW4 both are independent witnesses. They are no way related to the deceased as well as to the accused. The oral evidence of PW3 as well as PW4 is also corroborated in material particulars, more particularly recovery of blood stained shawl as well as blood stained axe from the accused. The serological test report Exh.29 makes the picture further clear. On the weapon of offence i.e. axe, blood was found matching with the blood group of the deceased. Even the pant and the shawl of the accused were found to be stained with blood matching with the blood group of the deceased. PW1 Bhaguben – the first informant and wife of the deceased has also explained in her deposition as regards the motive behind the commission of the crime. PW1 Bhaguben in her deposition had stated that there was a long standing enmity between the two families on the issue of ownership of Teak trees. An attempt was made on behalf of the learned counsel appearing for the accused to show from the evidence of PW1 Bhaguben that the long standing dispute was finally resolved with the intervention of few noted people of the village and therefore, there was no reason for the accused to commit the crime. However, even assuming for the moment that the controversy was resolved but still it appears that on the date of the incident the daughter-in-law of the accused was found cutting a Teak tree and for which daughter-in-law of the deceased PW5 Imaben reprimanded the daughter-in-law of the accused. It appears that this incident which occurred in the morning hours again sparked a controversy and that could have been the reason for the accused to inflict injuries on the deceased.
We have also noticed that the Panchnama Exh.12 was admitted by the defence counsel before the trial Court. The effect of such concession would be to admit the contents of the document. By admitting the contents of the document Exh.12 the defence admitted recovery of blood stained axe, blood stained shawl as well as blood stained pant of the accused.
The evidence of circumstance that the accused, at the time of his arrest, more particularly, at the time of drawing of panchnama of the person of the accused, produced the shawl stained with blood as well as the weapon of offence i.e. the axe, would be admissible as conduct under Section 8 of the Evidence Act, quite apart from the admissibility of the disclosure statement under Section 27. As the Supreme Court observed in A.N.Venkatesh v/s. State of Karnataka, (2005)7 SCC 714:
“By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90]. Even if we hold that the disclosure statement made by the accused-appellants (Exts. P-15 and P-16) is hot admissible under Section 27 of the Evidence Act, still it is relevant under Section 8.”
We do not know and it is not clarified even by learned counsel Mr.Barot appearing for the accused as to why his counter-part in the trial Court, while defending the accused, thought fit to admit the contents of the panchnama Exh.12, more particularly, when the same is incriminatory in nature.
Section 294 of the Code of Criminal Procedure is in the following terms :
“294. No formal proof of certain documents.- (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed :
Provided that the Court may, in its discretion, require such signature to be proved.”
Section 294 is totally a new section inserted for the first time in the Code of 1974. A proper reading of the said section persuade us to hold that it is meant to cover those documents which require only formal proof. It has been introduced for the purpose of accelerating the pace of criminal trial by dispensing with the formal proof of certain documents. Where the contents of a document are to be proved by examining the author of that document, the provisions of Section 294 of the Code cannot come into play. Where the relevance of a document depends entirely on its genuineness, the procedure prescribed under Section 294 of the Code can be followed and once the genuineness is admitted, then that document itself may be read in evidence.
In our opinion, the provisions of Section 294 are not meant for circumventing the provisions of the Evidence Act and in particular the provisions relating to the proof of certain facts which can only be done by examining the witnesses though those facts might have been mentioned in a document. Conceivably, Section 294 of the Code may cover letters written, photographs taken and it may also cover specimen handwriting and fingerprints. It is not necessary for our purpose to enumerate the documents which are conceivably covered by Section 294 of the Code. It is enough to mention that documents like memorandum of the postmortem examination, scene of offence panchnama, panchnama of the recovery of clothes of the accused at the time of arrest, are not such documents, the proof of which can be dispensed with by resorting to the provisions of Section 294 of the Code. The contents of such documents would not prove by itself. As we have already mentioned earlier, a document which is not a substantive evidence by itself and the contents of which have to be deposed to by a witness, can never be tendered in evidence by following the procedure mentioned in Section 294 of the Code.
In this regard, Division Bench of this High Court in Kalu Raghav and another v/s. State of Gujarat, (1976)17 GLR 988, had sounded a note of caution 35 years back wherein it has been pointed out that the Legislature while enacting Section 294 in the Code must not have thought that this salutary provision would be abused in actual practise and the person incharge of the prosecution or defence would make it a handle of their inaction or indifference. It has been further pointed out that the underlying idea of Section 294 seems to be that the formality of proving of some document may not unnecessarily hamper the smooth flow of the trial. Proceeding further, the Division Bench pointed out as follows :
“It is true that under sec. 294 of the Criminal Procedure Code, 1973 a provision has been inserted for the avoidance of unnecessary delay that where any document is filed before any court by the prosecution or the accused, the contents thereof may be admitted by the other side and if such documents are admitted, genuineness of such documents thereafter cannot be called in question. However, the legislature while enacting this provision must not have thought that this salutary provision would be abused in Actual practice and the persons in-charge of the prosecution or the defence would make it the handle of their inaction or indifference, sec. 296 of the code in this connection deserves to be read and it shows that the evidence of any person if it is only of formal character may be given by an affidavit and subject to all just exceptions, t would be read in any enquiry or trial under this code. The underlying idea seems to be that the formality of proof of some documents may not unnecessarily hamper the smooth flow of the trial. But it could not have been envisaged that important witnesses like a doctor who has examined patients would also be dispensed with by resort to this provision of sec. 294. We, therefore, emphasize the importance of medical evidence in such cases involving injuries, and particularly fatal injuries, and we insist that in ail such cases, the persons in-charge of prosecution or the defence would not tinker with the problem and leave the court to decide the important questions by resorting to only surmises or conjectures on a technical subject like medical science. The Judges trying such cases have an important duty to perform and if they allow such short- cuts to be resorted to, they would obviously be remiss in their judicial duties. The other day, before us a case ended in conviction under sec. 304 part ii because there was no medical evidence showing that the injury in question was sufficient in the ordinary course of nature to cause death. It is to be noted that even the advocates in- charge of defence also have an important role to play in such trials. They cannot do away with the necessary pains of examining such witnesses by giving consent to admission of such documents without the important witnesses being examined. In the case on hand, the learned advocates, who were defending the accused also were remiss in their duties when they adopted the short cut method in this way, and agreed to get the certificates of injuries and postmortem notes admitted into evidence forthwith without exploring the pros and cons of the medical evidence .
9. The panchnama of the scene of offence also was admitted into evidence with the consent of the other side without the panch having come to be examined. The said panchnama is Ex. 28 on the record. What we have observed with respect to medical evidence would apply to such important evidence like the panchnama of the scene of offence also and such panchnamas and the evidence of the panch would have a material bearing in some cases, particularly like the one before us.”
We once again emphasize that the trial Courts are expected to be much more vigilant and should not permit Public Prosecutors or the defence to resort to the provisions of Section 294 of the Code in a slipshod manner. A proper understanding of the scope of Section 294 will, we hope, prevail keeping in mind the Division Bench judgment of this very High Court in the case of Kalu Raghav (supra).
We shall also deal with the submission of Mr.Barot as regards the nature of the injuries sustained by the deceased and the so-called conflict between the ocular version of the eye-witnesses and the medical evidence on record. PW2 Dr.Sanjay Kumar Singh – Exh.6, the Doctor who performed the Postmortem, in his evidence, has deposed that if the sharp side of the axe would have been used in inflicting the injuries on the deceased, then probably there would have been a fracture of skull, to be precise in the words of PW2 the skull would have been divided into two parts. PW2 has further deposed that the injury Nos.1 and 3 were possible by a hard and blunt object. He has also deposed that if the reverse side of the axe would have been used for inflicting injuries, then the injuries of the nature, as reflected in the Postmortem report, were possible.
We have to our profit two decisions of the Supreme Court throwing substantial light on the issue in question. Supreme Court in paragraph 11 of its decision in the case of Hallu and others v/s.State of Madhya Pradesh, reported in AIR 1974 SC 1936, made the following observations :
“11. The post mortem report prepared by Dr. N.Jain that on the body of Jagdeo were found three bruises and a hematoma. On the body of Padum were found four lacerated wounds and two bruises. According to the eye- witnesses the two men were attacked with lathis, speares and axes but that clearly stands falsified by the medical evidence. Not one of the injuries found on the person of Jagdeo and Padum could be caused by a spear or an axe. The High Court however refused to attach any importance to this aspect of the matter by saying the witnesses had not stated that "the miscreants dealt axe blows from the sharp-side or used the spear as a piercing weapon". According to the High Court axes and spears may have been used from the blunt side and therefore the evidence of the eye-witnesses could safely be accepted. We should have thought that normally when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharpedged or a piercing instrument was used as a blunt weapon.”
As against this decision, the Supreme Court in yet one another decision rendered in the case of Sone Lal and others v/s. State of Uttar Pradesh, reported in AIR 1978 SC 1142, in paragraph 20 made the following observations :
“Normally a sharp pointed weapon would cause a punctured wound but the weapon like banka or ballam can cause incised wounds provided instead of the pointed end the surface of the weapon is used. In the melee that followed it would have been difficult for the witnesses to say with exactitude that ininjuries were caused by the surface or by the pointed end. The injurise found on the deceased persons would, therefore, be sufficient evidence of the nature of the assault. In these circumstances, we are unable to find any real inconsistency between the medical and the ocular evidence and the learned Sessions Judge was not at all justified in rejecting the prosecution case on this ground.”
Having carefully perused both the aforesaid decisions of the Supreme Court, in our view, each one of them appears to be rendered in the background of the respective facts and circumstances of the said cases. As a matter of fact, in our respectful opinion, in the matter of appreciation of evidence, there indeed cannot be any matter of precedence, as each case has its own distinct background, characteristics and attending set of circumstances and accordingly has to be decided upon the basis of peculiar facts and circumstances of that particular case in which the weapon in question came to be used.
In the case at hand, the lightening manner in which the accused inflicted the injuries on the deceased as narrated by the eye-witnesses, it would be difficult for the eye-witnesses to remember exactly as to what side of the weapon, such as axe, was used.
Many a time, wounds caused by an axe give out an appearance of contused lacerated wound also. Recital from Modi's Medical Jurisprudence, page 204 (17th Edition of 1971) reads as under :
“The edges of a wound made by a heavy cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light cutting weapon, such as a knife, razor, etc. and may show signs of contusion.”
Reference may be made to the observations made by the Supreme Court in this regard in the case of Thaman Kumar v/s. State of Union Territory of Chandigarh, reported in (2003) 6 SCC 380. In paragraph 16, the Court observed as under :
“16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witness. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.”
On overall appreciation of the evidence on record, oral as well as documentary, we have no hesitation in coming to the conclusion that the trial court rightly convicted the accused for the offence of murder punishable under Section 302 IPC.
We shall now look into the two decisions of the Supreme Court relied upon by Mr.Barot in support of his contention that the case is one of culpable homicide not amounting to murder and this court may alter the conviction from Section 302 IPC to Section 304 Part-I or Section 304 Part-II IPC.
Before we look into the decisions, the aforesaid submission of Mr.Barot is based on the assumption that the deceased had sustained contused lacerated wounds suggestive of the fact that the reverse side of the axe might have been used in inflicting the injuries and if the reverse side of the axe i.e. the blunt part of the axe was used, then that would reflect on the intention of the accused. This aspect has been very exhaustively dealt with by us in the foregoing paras, however, we may look into the decisions as to whether they are really helpful to the accused or not. In Balbir Singh & others (supra), Supreme Court, after repelling the contention of the appellants’ counsel that there was contradiction between the medical evidence and the oral evidence, the Court proceeded to consider the nature of the offence committed by the appellants. Supreme Court in that case noticed that there was evidence to the effect that the appellants only wanted to teach a lesson to the deceased. They were aggrieved by the fact that the deceased had purchased the agricultural land which they had expected to get from one Gurdayal Kaur. Two of the assailants were armed with axes, but they did not use the sharp edge of those weapons and injuries sustained by the deceased were not deep penetrating injuries. Supreme Court also noticed that most of the injuries were of minor nature, having possibly been caused by the blunt edge of the weapon. Supreme Court, on consideration of the entire prosecution evidence, more particularly in the background of the so-called motive alleged, recorded a finding that it was very difficult to discern that the appellants of that case had any common intention to cause the death of the deceased. On careful analysis of the prosecution evidence and the role played by each one of the appellants of that case, Supreme Court took the view that the evidence did not show that the appellants shared a common intention to cause the death of the deceased. However, one of the appellants caused injuries on deceased which proved to be fatal at the end. Supreme Court took the view that the act committed by the appellant responsible for the death of the deceased would come within the offence punishable under Section 304 Part-I IPC as he could be attributed with the knowledge that the injury caused by him was likely to cause death. Under such circumstances Supreme Court thought fit to alter the conviction from Section 302 IPC to Section 304 Part-I IPC. Thus, it could be seen that on the basis of the evidence of that particular case, Supreme Court in overall view of the matter found that the accused had no intention but only knowledge could be attributed and, therefore, altered the conviction. This judgment of the Supreme Court cannot be said to be laying down an absolute proposition of law that in all cases wherein it was found that a blunt side of the weapon had been used instead of the sharp side, then under no circumstances an accused could be convicted for the offence of murder under Section 302 IPC. It all depends on the individual case and the nature of the evidence led by the prosecution in a particular case. It also depends how the incident has occurred and in what manner injuries have been inflicted and many other factors would decide as to whether the case is one of murder or culpable homicide not amounting to murder.
In Hanuman (supra), the Supreme Court noticed on appreciating the evidence of the eye-witnesses that there was a fight between the two families and in those circumstances Supreme Court concurred with the finding recorded by the High Court in that case that common object of the unlawful assembly was not to commit the murder and convicted the appellant of that case only for his individual act. Supreme Court noticed while deciding as to whether the offence committed by the appellant of that case was one punishable under Section 302 simplicitor that the quarrel, which took place between the two families was, according to the prosecution, a result of misbehavior of one Raghubir Singh with Rajbala wife of Prabhavati – the brother of Hanuman. Supreme Court noticed that a quarrel took a serious turn and both sides indulged in fight armed with weapons. It was during such situation that the appellant of that case was alleged to have dealt a blow with blunt side of the axe on the head of the deceased. On overall appreciation of the evidence on record in that particular case Supreme Court held that it was difficult to hold that either Clause-I or Clause-III of Section 300 was attracted. However, Supreme Court held that the appellant of that case could be attributed knowledge that by inflicting such a blow he was likely to cause the death of the deceased and under such circumstances altered the conviction from one under Section 302 IPC to Section 304 Part-II of IPC. This judgment also would not help the accused as it does not lay down any absolute proposition of law. In fact, as held by this very bench that in matters of appreciation of evidence in criminal cases precedents would hardly have any role to play and precedents could be relied upon only if a pure question of law is decided by the Supreme Court.
For the reasons stated aforesaid, we do not find any merit in this appeal and the same is accordingly dismissed. The impugned order of conviction and sentence passed by the learned Sessions Judge are confirmed.
(Bhaskar Bhattacharya, C.J.)
/moin
(J.B.Pardiwala, J.)