IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL No. 1276 of 2004
With
CRIMINAL APPEAL No. 1579 of 2004
For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/
HONOURABLE MR.JUSTICE N.V. ANJARIA Sd/
========================================================= 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 ? 1 to 5: NO =========================================================
THAKORE RAJUJI MANGAJI - Appellants
Versus
STATE OF GUJARAT - Opponent
=========================================================
Appearance :
MR PRAVIN GONDALIYA for Appellants: 1 – 4 (Cr.A.No.1276/2004) MR MAHENDRA K PATEL for Respondent (Cr.A.No.1579/2004) MR RC KODEKAR ADDL PUBLIC PROSECUTOR for State =========================================================
CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA
and
HONOURABLE MR.JUSTICE N.V. ANJARIA
Date : 27/02/2012
CAV JUDGMENT
(Per : MR.JUSTICE D.H.WAGHELA)
1. Criminal Appeal No.1276 of 2004 is preferred by four brothers convicted of the offences punishable under sections 302 and 504 of the Indian Penal Code (IPC) as well as the offence punishable under section 135 of the Bombay Police Act and sentenced, inter alia, to life imprisonment in Sessions Case No.42 of 2003 which was decided on 10.6.2004 by learned Additional Sessions Judge, 3rd Fast Track Court, Patan; and Criminal Appeal No.1579 of 2004 is preferred by the State from the judgment and order of the same Court in Sessions Case No.91 of 2003 whereby three accused persons were acquitted of the charge of offences punishable under sections 326, 323, 504 and 114 of IPC and section 135 of the Bombay Police Act. Both the sessions cases were cross-cases arising from the same incident wherein one Chaturji Bhavanji was killed in the early hours of 08.02.2003 at a public place near the residence of all the accused persons involved. In the judgment in Sessions Case No.91 of 2003, it is recorded as the basis of acquittal that the injuries suffered by Manojaji, an accused in the cross-case, were attributed only to the deceased and the other accused were implicated for taking the plea of self-defence. The acquittal appeal of the State from that judgment could not be seriously pressed in view of paucity of evidence on record about the alleged offences.
2. In Criminal Appeal No.1276 of 2004, the case of the prosecution was that, when deceased Chaturji went out of his house in the morning to reach his shop of paan-beedi run in a cabin, his cries for saving him were heard by his nephews. When they heard the shouts, a sister of the deceased rushed to the spot and they found the four accused brothers, appellants herein, hurling words of abuse at the deceased and attacking him with knives, stick and pipe. Hearing the shouts, several other persons from the neighbourhood of the appellants' caste gathered at the spot with weapons. The victim Chaturji was taken to Sidhpur Government Dispensary from where he was transferred to Mehsana in an unconscious condition, and on his way to Mehsana, he breathed his last at around 09.15 a.m. The prosecution examined 12 witnesses in evidence and produced 20 documents, whereas the appellants relied upon deposition of the doctor (DW.1, Exh.64) who treated one of the appellants and his medical certificate (Exh.65). The defence of the appellant was to the effect that the deceased had attacked Manojaji with a knife and the deceased received injuries on account of Manojaji exercising his right of personal defence, even as none of the appellants entered the box or stated any detail of their version in their statements recorded under section 313 of Cr.P.C.
3. Among the important evidence led by the prosecution, Dr.Arvind H.Patel (PW.1, Exh.20), who conducted post-mortem of the deceased at 13.50 on 08.02.2003, described the injuries and deposed that the five injuries inflicted upon the deceased were collectively sufficient to cause death in the natural course, while injury No.1 to 4 were not on the vital parts but injury No.5 on the head was fatal. The post-mortem report (Exh.22) described the injuries as under:
“17. (1) Stitched wound over (R) wrist oblique in nature. One posterior medial Aspect length of 3 cm. On opening stitches, Incised wound size of 3 cm x 1-1/2 cm x deep upto bone, related muscles, vessels, nerves (upto bone) joint is cut.
(2) Stitched wound over (R) buttock region, upper, inner medial portion, size of 3 cm length- on opening stitches stab wound going upwards, medially size of 3 cm x 1 cm x depth 10 cm, related muscles, vessels, nerves deep in to gluteal muscles.
(3) Stitched wound over (R) gluteal region lower medial quadrant, on opening stitches stab wound, size of 4 cm x 1 cm x 6 cm deep in to gluteal muscles related vessel, muscles, nerves cut.
(4) Stitched wound over (R) palm, ventral Aspect over lateral aspect, on opening stitches Incised wound, size of 2-1/2 cm x ½ cm deep to muscles.
(5) C.L.W. over (R) perital region of head, oblique size of 4 cm x 1 cm deep upto bone.
18. (a) Ante-mortem.
19. Injury No.5 Injury over head as Col.No.17 & 18, on dissection of skin fold, opened, scalp examined Fracture (R) perital bone of skull, oblique, size of length of 5 cm.
On opening skull and examination. Meningeal Hemorrhage present Laceration over (R) perital lobe of brain present, below fractured portion size of 3 cm x 2 cm, blood collection present around injured portion of brain.”
The cause of death stated against Col.No.23 of Exh.22 read as under:
“Hemorrhagic and Nurogenic shock and Cardio-Respiratory failure due to injury over Head, causing fractured skull bone and Trauma to the Brain substance and two stab wound over (R) buttock and injury of (R) palm and (R) wrist leading to massive external Hemorrhage”
3.1 Sonalben Bhavanji, aged 30, sister of the deceased, (PW.7 Exh.42) deposed that she was living with the deceased and she had heard, after two minutes of the deceased leaving their residence, his shouts for saving his life. Therefore, she, Kanubhai (complainant) and Rajubhai rushed to the spot near a water tap, where all the appellants had surrounded the deceased and they were accusing the deceased, with words of abuse, of his informing the police about their liquor business. At that time, Manojaji had stabbed the deceased, with a knife, on his abdomen; Rajuji had injured left-hand of the deceased with a knife and Vadanji had given a stick-blow on his back. The fourth appellant, Kanuji, had struck a blow of iron pipe on the head of the deceased, due to which he fell on the ground and even thereafter the appellants had inflicted injuries with knives on the buttocks of the deceased. She admitted in her cross-examination that she and the other two witnesses had tried to save the deceased, but none of them had received any injury or had blood on their clothes.
3.2 Rajuji (PW.8 Exh.43) related the same version as PW.7 and stated the reason of the attack to be suspicion of the appellants that the deceased was informing the police about their liquor business. He admitted that no one else was there who could have injured Manojaji. Another nephew, Kanuji, the complainant (PW.6 Exh.40), corroborated the evidence of PW.7 and 8 (Exh.42 and 43). All these three witnesses were not shaken and no material contradictions were found in their cross-examination.
3.3 Nizamudin Nagori (PW.12 Exh.52), who recorded the complaint (Exh.41) at 11.45 a.m., deposed that three of the four accused persons were arrested on 10.02.2003 and their respective weapons were recovered from them. The fourth accused person, namely, Manojaji, was under treatment at a private dispensary and hence he was arrested on 22.02.2003 and a knife was recovered at his instance. He produced at Exh.58 serological report received from Forensic Science Laboratory. He admitted that cross-complaints were registered as C.R.No.15 of 2003 and 16 of 2003 and the time, date and place of the offences were the same in both the complaints.
3.4 Dr.Rajeshkumar R.Bhargav (DW.1, Exh.64) deposed that Manojaji was brought to his dispensary at 08.00 a.m. on 08.02.2003 when he was found to be in a serious and semi- conscious condition and his pulse or blood pressure could not be recorded. He found six injuries on the body of Manojaji, one of the accused appellants, out of which two were fractures on the ribs and other injuries were minor but they could have resulted into death if the injured person was not immediately treated and the injuries were such as could have been caused by a sharp-edged weapon. He admitted that the relatives who had brought the victim to him had not stated names of any person who had inflicted the injuries. He further admitted that in his certificate (Exh.65) he had not stated any injuries to be stab wounds. He also admitted that in spite of the history given by the relatives and the accused being brought without a police yadi, he had not informed the police about any treatment by him. The certificate (Exh.65) is not wholly readable and it is dated 01.03.2003. He also admitted that his certificate did not show the time when the injured was brought to him or the treatment given by him; nor was age of the injury mentioned in his certificate.
3.5 After extensive reference to the evidence on record, the trial Court found that death of the deceased was culpable homicide and the extract of Chapter Case No.72 of 2002 (Exh.48) indicated that the parties had a quarrel about electricity line. Even as the knife recovered at the instance of Manojaji, vide panchnama at Exh.38, had blood of the group of the deceased, Vadanji was proved to be present at the scene, but was not proved to have inflicted any injury by his stick on the deceased. However, he was also convicted by invoking the provisions of section 114 of IPC. Dealing with the plea of self- defence, the trial Court negatived the contention by reference to evidence in the cross-case (Sessions Case No.91 of 2003) and held that the deceased did not have any weapon in his hand.
4. Arguing for the convicted appellants in Criminal Appeal No.1276 of 2004, learned counsel Mr.Gondaliya submitted that the injuries suffered by Manojaji were not explained by the prosecution, even as Manojaji had lodged an FIR against the deceased and three others. He submitted that neither any motive nor any intention to kill the deceased was established in the prosecution evidence. In fact, the three eye- witnesses, who were near relatives of the deceased, had given an exaggerated account of attack, insofar as only five injuries, of which four were simple, were found on the body of the deceased. He further submitted that the version given out by the eye-witnesses could not be relied upon in view of the admitted fact that none of them received any injury while trying to save the deceased and even no blood-stains were to be found on the clothes of any of them. He submitted that in view of the cross complaint and the six injuries found on vital parts of the body of Manojaji, it was, at the worst, a case of free and sudden fight between two groups of the same community and the appellants could be reasonably believed to have exercised their right of self-defence. He pointed out that there was nothing on record to prove that the appellant Rajuji or Vadanji had inflicted any injury on the deceased, in spite of being alleged to have a knife and a stick in their hands. On that basis, it was submitted that at least three of the appellants were entitled to the benefit of reasonable doubt about their intention or participation in the fight resulting into death of the deceased. Learned counsel has, in his additional written arguments, inter alia, stated that the appellants were ready and willing to pay, by way of compensation, the sum of rupees two lakh to the heirs of the deceased, without prejudice to their rights and contentions.
5. As against the above arguments for the appellants in Criminal Appeal No.1276 of 2004, learned A.P.P. and learned counsel Mr.M.K.Patel, appearing for the respondent in Criminal Appeal No.1579 of 2004, submitted that the convicted appellants had carried out a planned attack on the deceased, without any provocation or sudden quarrel, and one of the assailants had cleverly and deliberately separated himself by admission into a private nursing home to set up the defence of attack upon him by the deceased. It was submitted that deposition of the defence witness (Exh.64) was wholly unreliable and rightly discarded by the trial Court so as to convict all the appellants for the capital offence of murder. It was also submitted that, even if the role and participation of Rajuji and Vadanji were not clearly established and it was not even alleged that they had inflicted any fatal injury with the arms attributed to them, their presence at the spot indicated common intention on the part of the assailants.
6. Learned counsel Mr.Gondaliya relied upon judgments of the Apex Court in Parusuraman v. State of Tamil Nadu [1992 Supp (1) SCC 429] and Genda Singh v. State of Uttar Pradesh [(2008) 11 SCC 791] to submit that if the intention to kill were not proved or if the right of private defence were exceeded, conviction under section 304 and sentence of imprisonment for ten years were appropriate and sufficient punishment. He also relied upon judgments of this Court in Dineshbhai Pujabhai Baria v. State of Gujarat [2009 (2) GCD 1683], Dineshbhai Bhikhabhai Bamcha v. State of Gujarat in Criminal Appeal No.695 of 2003 and in Makwana Kanubhai Revabhai v. State of Gujarat in Criminal Appeal No.1018 of 2000 as also in State of Gujarat v. Patel Anilkumar Rasiklal in Criminal Appeal No.463 of 2003 and judgment dated 02.072009 in Paka @ Prakash Dhirubhai Gohil v. State of Gujarat in Criminal Appeal No.117 of 2003, in support of the arguments that in the case of free fight between two groups, conviction under section 304 of IPC was recorded. That, in case of accused taking plea of right of private defence, he is not required to establish his plea necessarily by calling witnesses, but the plea could be based upon the circumstances transpiring from the prosecution evidence itself and the plea need not be established to the hilt. He also submitted that only one fatal blow could, without any premeditation, amount, at the most, to offence under section 304 Part-I and not under section 302 of IPC.
7. It is, however, also observed by the Apex Court in Salim Zia v. State of Uttar Pradesh [AIR 1979 SC 391] that in case of the accused claiming right of private defence, the burden is on the accused to show that he had a right of private defence which extended to causing of death. In order to find whether right of private defence was available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. At the same time, the person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step-by-step with any arithmetical exactitude, but the right of private defence is essentially a defensive right circumscribed by the governing statute, i.e. IPC, and available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence and not of retribution and has not been devised as a mechanism whereby an attack may be a pretense for killing. The general principles evolved by the Courts in so many judgments have to be applied in the facts and circumstances of each case after the facts emerging from the evidence are ascertained.
8. Having regard to the evidence on record in the facts of the present case, as briefly narrated hereinbefore, it is clearly established by the prosecution that the four convicted appellants were present at the scene of offence and at least two of the appellants had wielded deadly weapons for inflicting injuries upon the victim. The fatal injury on the head of the victim was dealt with blow of a pipe and it was dealt with such ferocity that the victim immediately fell down. It is true that the other injuries were not fatal although inflicted by a knife. The appellants concerned could be attributed the knowledge that such injuries, intentionally inflicted upon the victim, could result into death in natural course. There was no scope for an inference that there was sudden quarrel or fight between the victim and the appellants, because the victim was attacked with weapons within two minutes of his leaving his house while he was proceeding to attend his shop. Therefore, even as there was no evidence of any strong motive or common intention of killing the victim, the evidence of infliction of injuries, even after the victim falling down on the ground, clearly indicated the intention of inflicting serious injuries at least by Kanuji and Manojaji. Therefore, the injuries inflicted upon the victim by Kanuji and Manojaji are found and held to be inflicted with the knowledge that they were likely to cause death, but without any clear intention or premeditation to cause such bodily injuries as were likely to cause death. No injuries having been proved to have been inflicted upon the victim by Rajuji and Vadanji and no role or participation which could indicate common intention to cause severe injuries or death being proved and section 114 of IPC being inapplicable in the facts of the case, they could not be convicted of the offence of culpable homicide even with the aid of section 34 of IPC. On the other hand, the plea of self-defence or free fight between the two groups have remained wholly unsubstantiated and rightly rejected by the trial Court. It appears from the totality of facts emerging from the evidence that immediately after the victim leaving his house, he was caught into a brawl wherein the victim would have found himself encircled by the appellants and seeing the weapons, he would have cried for help. Even as his sister and nephews came out, Manojaji appeared to have attacked the victim with his knife and the victim would have tried to defend himself with his hands, while Kanuji had inflicted the fatal blow on the head with the pipe. All this could have happened so quickly that there was hardly any scope for the sister and the nephews of the victim to intervene. But no question of Manojaji being injured by the victim could have arisen except for some minor injuries during the scuffle. No weapon with blood-stains of Manojaji having been recovered or produced, the theory of exercise of right of private defense could not be sustained and only the medical certificate of doubtful authenticity and detail supported by unreliable testimony of the doctor could not help the appellants.
9. Therefore, Criminal Appeal No.1276 of 2004 is required to be partly allowed and the impugned judgment is required to be set aside to the extent that appellants Rajuji Mangaji and Vadanji Mangaji have to be granted the benefit of doubt for want of sufficient evidence of common intention or commission of any offence by them; and conviction of appellants Kanuji Mangaji and Manojaji Mangaji has to be converted into conviction for the offence punishable under section 304 - Part II of IPC. Consequently, the appellants Rajuji Mangaji and Vadanji Mangaji are acquitted and Kanuji Mangaji and Manojaji Mangaji are convicted for the offence punishable under Part II of Section 304 of IPC and each of them are sentenced to rigorous imprisonment for a term of nine years with fine of rupees one lakh each, and in default of payment of fine, they shall undergo further simple imprisonment for two years. The conviction and sentence of these two appellants for the offences punishable under section 504 of IPC and section 135 of Bombay Police Act are confirmed and accordingly they shall undergo simple imprisonment for three months and four months respectively with fine of Rs.100/- each, and in default, further simple imprisonment for fifteen days for each of these two offences. All the sentences shall run concurrently and the imprisonment already undergone shall be set off under section 428 of Cr.P.C. The amount of fine of total rupees two lakhs to be paid by Kanuji Mangaji and Manojaji Mangaji, as soon as it is realized, shall be distributed equally among the dependent heirs of deceased Chaturji Bhavanji, namely, his mother Shantaben, his widowed sister Sonalben and sons, namely Jayesh and Kirti, as requested by learned counsel Mr.M.K.Patel, appearing for the respondents in Criminal Appeal No.1579 of 2004, which appeal is dismissed. The acquitted appellants in Criminal Appeal No.1276 of 2004 shall execute personal bonds in the sum of Rs.10,000/- with one surety of the like amount in terms of the provisions of Section 437-A of the Code of Criminal Procedure. As three appellants in the appeal are stated to be on bail, their bail bonds shall be cancelled and the convicted appellant shall surrender to jail latest by 15.03.2012.
(KMG Thilake) Sd/-
( D.H.Waghela, J.) Sd/ ( N.V.Anjaria, J.)