(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As both the appeals arise from the common judgement and order passed by the learned Sessions Judge, they are being considered simultaneously.
2. The short facts are that on 21.8.2004 the complaint came to be filed by Rajubhai Ishwarbhai Padhiyar – PW-5, stating that on 20.8.2004 at about 8 O'clock when he was at his residence, his uncle's son K.J. Padhiyar informed him that there was fight and quarrel and, therefore, he went to the place of Vaddalla field and on the road near the house of Kantibhai Chhotta – accused No.2 (A- 2), he saw both his brothers, Pratap Ishwarbhai Padhiyar and Gemalbhai Ishwarbhai Padhiyar were lying and his brother's wife, Meenaben (PW-9) was also there. Since, it was night time, when he minutely examined, he found that both the brothers had sustained a number of injuries and they were blood-shed, they were in unconscious condition and they were not speaking. When he enquired from his brother's wife (Bhabhi) as to what had happened, she informed that when his brother Gemalbhai – deceased was coming after clearing rainy water, A-1, A-2 and A-3 came with dhariya and stick and started quarreling for clearing of the rainy water. At that time, A-1 had dhariya and A-2 had stick in their hands, and since shouting had started, she reached the place and other brother Pratap Ishwarbhai – deceased also came on account of the shouting and when he intervened, all the three gave indiscriminate blows with the weapon and when she tried to save, A-2, with dhariya, injured her right hand and they had run away. Thereafter, both the injured were taken into tempo and brought to SSG Hospital, Vadodara, where Pratap was declared as dead and treatment of Gemalbhai was going on and during the treatment, he has also expired. The aforesaid complaint came to be registered with the Police Inspector, Padra Police Station.
3. The Police investigated into the complaint and ultimately charge-sheet was filed against Accused No.1, 2 and 3 and the case was committed to the Sessions Court in Sessions Case No.263 of 2004. The charge was framed by the learned Sessions Judge and since the guilt was not pleaded, trial was conducted. The prosecution, in order to prove the guilt of the accused, examined 22 witnesses, the details of whom are mentioned by the learned Sessions Judge at paragraph 4 of the judgement. The prosecution also produced the documentary evidences of 17 documents, the details of which are mentioned by the learned Sessions Judge at the very paragraph of the judgement. The learned Sessions Judge recorded the statements of the accused under Section 313 of Cr.P.C., wherein the accused denied the offence against them and in further statement, the accused stated that they were innocent and they had been falsely implicated in the case. The learned Sessions Judge, thereafter, heard the prosecution as well as the defence and found that the prosecution has been able to prove the case against the accused for the offence punishable under Sections 302, 324, and 114 of IPC read with 135 of Bombay Police Act. Therefore, the learned Sessions Judge convicted all the accused. The learned Sessions Judge thereafter also heard the prosecution as well as the defence on the aspect of sentence. Thereafter, the learned Sessions Judge imposed sentence of life-imprisonment upon all the accused for the offence punishable under Section 302 of IPC and acquitted accused No.1 and 3 for the offence punishable under Section 324 of IPC. The learned Sessions Judge imposed sentence of one year S.I., with the fine of Rs.5,000/- upon accused No.2 for the offence punishable under Section 324 of IPC. The learned Sessions Judge also imposed sentence of one month's S.I., upon all the accused for the offence punishable under Section 135 of Bombay Police Act. Under these circumstances, the present appeals before this Court.
4. It may be recorded that initially Criminal Appeal No.1391 of 2008 was preferred by Thakorbhai Kantibhai Padhiyar – A-2 through jail. However, subsequently, all the accused have jointly preferred the appeal against conviction being Criminal Appeal No.1672 of 2008. Under these circumstances both the appeals are considered simultaneously.
5. The learned Counsel appearing for both the sides have taken us to the entire evidences, oral as well as documentary, on record. We have considered the judgement and the reasons recorded by the learned Sessions Judge. We have heard Ms.Sadhna Sagar, learned Counsel appearing for all the appellants – original accused in Criminal Appeal No.1672 of 2008. We have also heard Mr.H.K. Patel, learned APP for the State in both the appeals.
6. The injuries upon both the deceased, Pratap as well as Gemal are proved by the medical evidences of Dr. Kishor, PW-2 (Exh. 29), who has performed postmortem of the dead body of both the deceased namely; Gemal as well as Pratap. As per the evidence of Dr. Kishor (PW-2), there were eight external injuries found on the dead body of the deceased Pratap and on the internal examination of the dead body, he found that there were seven injuries sustained by the deceased on the internal parts of the body. As per the opinion of the doctor, the injury caused on the brain was the cause for death of the deceased. The same witness had examined the dead body of the deceased Gemal and as per the testimony of the said witness, 18 external injuries were found on the dead body of the deceased Gemal. Upon internal examination of the body he had recorded eight features connected with the injury caused in the internal parts of the body. As per the opinion of the doctor, the cause of death is on account of shock and haemorrhage due to multiple injuries. As per his testimony, the injuries were sufficient to cause death of both the deceased. In the cross-examination of the said witnesses, the defence has not been able to bring about any material contradiction. Therefore, the death of the deceased Pratap as well as Gemal is homicidal and is duly proved by the prosecution.
7. Meenaben (PW-9), who has been examined at Exh.
70, is eye-witness to the incident and she is also an injured witness. She has supported the case of the prosecution. It is true that in addition to the accused, in her testimony, she has referred to the involvement and names of other persons, who are family members of the accused, but since no charge-sheet has been filed against them, nor there was any reference in the complaint, we find that the said aspect is not much relevant. However, so far as accused Nos.1, 2 and 3 are concerned, she has stated that A-1 and A-2, both, were having dhariya and A-3 was having stick in his hand and as per her testimony, accused No.1 had given blows with dhariya and A-2 had also given blows with dhariya and when she intervened, A-1 had given blow to her as well as to her husband Gemal – deceased with stick. It is true that there are certain improvements and contradictions in her testimony for the narration of the incident and the involvement of the persons in addition to the accused and it is also stated by her that she was told about the manner in which she had to state in the Court, but in our view, the same is not fatal to frustrate the case of the prosecution for proving that she did not witness the incident. It is not a matter where she is a mere eye-witness to the incident, but she is also an injured witness to the incident. Her testimony gets support on the aspect of injury sustained by her through the testimony of Dr. Nehaben (PW-1) – Exh.24, who had examined Meenaben (PW-9). As per the testimony of Dr. Nehaben (PW-1) – Exh. 24, she had sustained injury of CLW of 5 cm x 1 cm x 5 cm and as per the opinion of the doctor, such injury could be caused with sharp-cutting weapon. Therefore, when PW-9 is also an injured witness, who has sustained injury in the incident, it cannot be said that her statement for witnessing the incident deserves to be discarded, just on a mere ground that she has made certain improvement or that in her cross-examination, she has stated that she was told the manner in which she had to state in the Court. The testimony of the complainant Rajubhai – PW-5 (Exh. 57) supports the case of the prosecution for the complaint having been filed by the said witness. It is true that the complainant is not the eye-witness, but he has supported the case as stated in the complaint. Therefore, his testimony is supporting the case of the prosecution. It is true that Ganshyam – PW-3 (Exh. 38), who is the panch witness has not fully supported the case of the prosecution, but the items, which were recovered got further support from the testimony of I.O., Mr.Manibhai Patel – PW-22 (Exh.110). The other panch Mr.Mafatbhai, PW-16 (Exh. 91) for recovery of the weapon at the instance of the accused, though has not fully supported the case of the prosecution, but discovery of the weapon gets further support from the testimony of I.O., Mr.Manibhai Patel, PW-22 (Exh.110) and also the FSL report, which was referred to hereinafter.
8. The FSL report has come on record at Exh. 113 and it supports the case of the prosecution of the incident. It has also come out and as as per the serological report, the blood found on the weapons, (both the dhariyas) is matching with the blood of the deceased Gemal. The blood is also found of the group matching with the blood group of the deceased Gemal on the stick, which was used in the incident. The blood is also found from the clothes of A-1 of the group matching with the blood group of deceased Mr.Pratap. So far as A-3 is concerned, the blood was found from the clothes, but the group has remained undecided.
9. The attempt was made by the learned Counsel for the appellant to contend that A-1 is having of blood group of 'B', A-2 is having blood group of 'AB' and A-3 is having blood group of 'B' and, therefore, since the accused had the blood group of the same group, both the deceased had as that of 'B' and 'AB', it cannot be said that the scientific evidence of FSL is supporting the case of prosecution. Prima facie the contention may appear to be attractive, but upon close scrutiny, it cannot be accepted because in the statement under Section 313 when the accused was confronted with the evidence of FSL, it is not stated by him that his blood was there, on his clothes or their clothes, as the case may be and there was only denial of evidence. Hence, such contention cannot be accepted.
10. The injury is also found upon the accused and is proved by the prosecution by the evidence of Dr. Pratimaben – PW-6 (Exh.61), who has examined Thakorebhai (A-2) and as per her testimony, there was swelling on the left palm of A-2 and there was also fracture on the last finger of left hand. As per the said witness, A-1 had body-ache but no other complaint was reported to her. She has opined that the injury received by A-2 could be caused with the stick. Dr. Ramorakash – PW-7 (Exh.61) is another doctor, who examined the accused at the later stage at SSG Hospital. His testimony is in confirmity with the evidence of Dr. Pratimaben – PW-7 (Exh.61) for the injury received by A-2. Additionally in the medical history, A-2 is stated to have reported to this doctor that Gemal – deceased, at about 8 O'clock in the night on 20.8.2004, had assaulted him with the stick. He also opined that such injury could be caused with the stick. The aforesaid evidence of the prosecution is also to be considered and appreciated in light of the cross-complaint (Exh. 119) filed by A-2 against deceased Gemal for causing injury to his father i.e. A-1. The pertinent aspect is that as per the said complaint, when the deceased Gemal was abusing, A-1 had gone with dhariya and he tried to convince Gemal not to abuse and at that time deceased Gemal caught hold of of A-1 by collar and because of the same, A-3 came with the stick and A-2 went to his residence and brought dhariya and thereafter the blows were given by A-1 and A-
3 and even after Gemal had fallen down, blows were given by A-3 with the stick. In the said complaint, it is also mentioned that at that time, wife of Gemal, Meenaben – PW-9 (injured eye-witness) had come and the brother of Gemal (Pratap – another deceased) had also come and they intervened and the blows with dhariya were given by the accused on the head of Pratap and blows were also given with stick and after Pratap had fallen down they continued to give the blows and A-2 also sustained injuries and the father of A-2, A-1 has also sustained injury.
11. The aforesaid evidence, if considered with the case of the prosecution, it appears to us that the incident is proved by the prosecution and it could rather be said as the same is getting support from the cross-complaint (Exh.119) and further support of medical evidence in examination of the accused. Further, medical evidence shows that the death of both the deceased was homicidal. The guilt of all the accused is proved by the prosecution. Therefore, it can be said that the injuries upon both the deceased were caused by the accused namely; A-1 and A-2 used the weapon of dhariya and A-3 used stick for giving blows and indiscriminate blows have been given and even after both the deceased had fallen down, they have continued to give blows with the weapon to the deceased. Under these circumstances, it can be said that the prosecution has been able to prove the guilt of the accused for causing death of both the deceased.
12. The learned Counsel for the appellants raised the only contention that it was on account of sudden provocation, the scuffle had started and there was no intention of the accused to cause death of the deceased. She submitted that the deceased Gemal, as stated in the complaint filed by A-2, had started abusing A-1 and the incident had taken place. She submitted that, therefore, there was no intention to cause death and as the incident had happened out of sudden provocation, the case can be said as falling under Section 304 Part-I and II of IPC and not for the offence punishable under Section 302 of IPC as held by the learned Sessions Judge. She, therefore, submitted that this Court may hold accordingly and reduce the sentence appropriately.
13. It deserves to be recorded that the complaint is filed by Rajubhai (PW-5) at 00.50 hours on 21.8.2004 (during night time, after 12 O'Clock of 20.8.2004). The cross-complaint is filed on next day i.e.22.8.2004. The incident is of 8 p.m., on 20.8.2004. Further, if the injuries sustained by the accused are to be considered, A-1 and A-3 have not received any injuries, which are referred to by the doctor. A-2 had swelling in his left palm and minor fracture on the last finger, as stated by the doctor. As against the same, as per the testimony of Dr. Kishor, who performed postmortem, deceased Pratap received 8 serious external injuries and the majority of which are on the vital part of the body. The injuries upon the body of the deceased Gemal were 18 and the majority of which were on the vital part of the body of the deceased. Even as per the cross-complaint filed by the accused – A-2 went to his residence and came back with dhariya. Further, as stated in the very complaint after both the deceased had fallen down, the accused continued to give blows upon the deceased. Such circumstance, in our view, shows that the intention of the accused to cause death of both the deceased was apparent. Therefore, it is not possible to accept the contention of the learned Counsel for the appellants – accused that the accused had no intention to cause death of both the deceased.
14. On the aspect of sudden provocation also we are not satisfied, inasmuch as except in the cross- complaint, no reliable evidence whatsoever had come on record for the abuse by deceased Gemal to any of the accused. Further, the cross- examination of prosecution witness have also not put forward the defence, nor has asked any question showing that there was provocation by any of the deceased. Moreover, in the case where the defence is raised as that of sudden provocation, the Court has to consider the normal conduct of a human being by reasonable prudence. A simple abuse cannot be considered as valid ground for treating the case as that of sudden provocation when the aforesaid multiple injuries with the deadly weapon are caused upon both the deceased and such has continued even after both the deceased had fallen down. Therefore, we cannot agree with the contention of the learned Counsel for the appellants that the case would fall under Section 304 Part-II as sought to be canvassed.
15. In our view, the case is proved by the prosecution for the offence under Section 302 of IPC and the learned Sessions Judge has rightly convicted the accused. Hence, the conviction made by the learned Sessions Judge of all the accused for the offence punishable under Section 302 of IPC and the sentence imposed of life- imprisonment does not deserve to be interfered with. Hence, we are in agreement with the ultimately conviction held and sentence imposed by the learned Sessions Judge upon the accused.
16. Under these circumstances, the Criminal Appeal No.1672 of 2008 is meritless. Hence, dismissed.
17. In view of the aforesaid decision in Criminal Appeal No.1672 of 2008, the case of the original Accused No.2 is also covered, the said Appeal shall also stand disposed of accordingly.
(Jayant Patel, J.) (Mohinder Pal, J.) vinod