IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 32 of 1996 with CRIMINAL APPEAL No 808 of 1996 For Approval and Signature: HON'BLE MR.JUSTICE N.G.NANDI and HON'BLE MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- THAKOR HANSAJI NEMAJI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 32 of 1996 MR MC BAROT for Appellants No. 1-4-5 MR MB PARIKH for Appellant No. 5 MR AJ DESAI, APP for Respondent No. 1 2. Criminal Appeal No. 808 of 1996 MR AJ DESAI, APP for Appellant No. 1 MR MC BAROT for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE N.G.NANDI and HON'BLE MR.JUSTICE M.C.PATEL Date of decision: 26/09/2003 COMMON ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE M.C.PATEL) 1. The appellants in Criminal Appeal No.32 of 1996 were the accused no.1, 2, 3, 5 and 6 in Sessions Case No.28 of 1995 before the learned Additional Sessions Judge, Banaskantha. The appellants no.1 and 2 were convicted of the offence under Section 302 of the I.P.C. for causing the death of Maganji Manaji and sentenced to imprisonment for life. The appellant no.3 was convicted of the offence under Section 324 for causing injury to p.w.6 Pratapji Manaji and also to deceased Maganji Manaji and was sentenced to R.I. for one year and to pay a fine of Rs.500/-, in default, to suffer further imprisonment for one month. The appellant no.4, who was the original accused no.5, was convicted under Section 326 for causing grievous injury to the deceased Maganji Manaji and sentenced to R.I. for five years and to pay a fine of Rs.1,000/-, in default, to suffer further imprisonment for three months. The appellant no.5, who was the original accused no.6, was convicted under Section 324 for causing injury to p.w.6 Pratapji and sentenced to R.I. for one year and to pay a fine of Rs.500/-, in default, to suffer further imprisonment for one month. The appellants no.1 and 2 were acquitted of the offence under Sections 143, 147 to 149, 326, 324, 323 of I.P.C. and under Section 135 of the Bombay Police Act. The appellants no.3, 4 and 5 were acquitted of the offence under Sections 143, 147 to 149, 302, 324 and 323 of the I.P.C. and Section 135 of the Bombay Police Act. Balvantji Manaji - the original accused no.4 was acquitted of all the offences charged against him. 2. The appellants have, therefore, filed Criminal Appeal No.32 of 1996 challenging their conviction and sentence. The State has filed Criminal Appeal No.808 of 1996 challenging the acquittal of the accused of the various offences. 3. The prosecution case is to be found in the evidence of p.w.6 Pratapji Manaji who was the brother of the deceased and who was also injured in the incident. According to the prosecution, the incident occurred at about 8 o'clock in the morning on 18th September, 1994. The place was near the water tank in the sim of village Dhandharva, Taluka Santalpur, District Banaskantha. 4. Pratapji was the younger brother of deceased Maganji Manaji. Pratapji was cultivating his land in village Dhandharva. His brother Maganji was living in village Khodla and cultivating the land of Rabari Soma Dosha there. Their house was near the water tank in the village. Their agricultural land was about 2 kms from the village. They also kept cattle and tethered them in their 'vada' which was at a distance of about 600-700 feet from their house. 5. Ratanben was the wife of appellant no.2 Shankerji. The accused suspected Pratapji's brother Maganji Manaji of having an affair with Taraben, the wife of appellant no.3 - Chelaji Madhaji. Because of his suspicion, about one year before the incident, the accused had picked a quarrel with his brother Magan and they were not on speaking terms. There had been no settlement of the dispute. On the day of the incident, he had gone to tether his ox in the 'vada'. It is in the evidence of Ajiben Ujaji (p.w.7), the mother of deceased Maganji, that about two days before the incident, Maganji who had been living in village Khodla had come to their village since his father was not well. According to Pratapji, when he went to take the ox in the 'vada', his brother Magan had gone to answer the call of nature. When he was returning from the 'vada', Maganji was going ahead of him towards the house. When they came near the water tank, the appellant no.1 - Hansaji Nemaji, the appellant no.3 - Chelaji Madhaji, the appellant no.2 - Shankerji Madhaji, Balvantji Manaji - the original accused no.4 and appellant no.5 - Devaji Manaji were standing there. Chelaji Madhaji gave filthy abuses to his brother Magan. Then Hansaji Nemaji dealt a dharia blow on the head of his brother Magan. Shankerji Madhaji too dealt a similar blow on the head of Magan. Maganji, therefore, fell down. Just then, Vaja Mana - the appellant no.4 came running and dealt a dharia blow on the left leg of Maganji. Chelaji gave a stick blow on his left leg. Balvantji also gave a stick blow to him. Pratapji tried to intervene to save his brother. Chela Madha then delivered a stick blow on his left hand. Devaji Manaji gave a stick blow on his head. On hearing the uproar, his mother also came to intervene. She too was injured. His uncle Badurji Gagaji then came and he and his brother were then taken to their house. A cart was sent for and Pratapji and Maganji were taken to village Dhekwada. From there, they were carried in another vehicle to Community Health Centre at Radhanpur. There Pratapji, Maganji and Bai Aji were examined by Dr. Rajendra Kumar Gupta (p.w.5). He noted the injuries suffered by them. The injury certificates of Pratapji, Maganji and Bai Aji are at Exhs.35, 36 and 37 respectively. After preliminary treatment, the doctor advised them to take his brother Magan to the hospital at Mehsana. However, Magan died on the way to the hospital. They, therefore, returned to the hospital at Radhanpur. After leaving his dead body at the hospital, Pratapji went to lodge his complaint at the police station at Radhanpur. His complaint (Exh.43) was recorded at 4.30 in the afternoon. 6. The post-mortem was carried out by Dr. Rajendra Gupta. The post-mortem report is at Exh.40. The following external and internal injuries were noted in the post-mortem report: External injuries (1) 6 cm long stitched wound over Rt. parietal region 10 cm above Rt. mastoid process along sagital plane (2) Stitched wound over Rt. frontoparietal region 8 cm above the junction of medial 1/3 & lateral 2/3 of Rt. eyebrow 10 cm long (3) Black eye Rt. side (4) Incised wound over anterolateral aspect of lt. leg 10 cm below tibial tubercle 10 cm x 1/2 cm x bone deep fracture lt. tibia Rt. Parietal bone (5) Bruise over Rt. gluted region 10 cm x 1 cm Internal Injuries (1) fracture Rt. parietal bone (2) Hematoma over parietal region in scalp moss (3) Meninges torn over parietal lobe on Rt. side Rt. parietal lobe is cut over parietal prominence 6 cm x 1 cm x 1 cm Rt. Middle meninges vessel ruptured Blood & hematoma in extradural space over parietal region on Rt. side 7. The next eye-witness examined by the prosecution was Ajiben Ujaji (p.w.7). She was the mother of Pratapji and deceased Maganji. According to her, she and Shankhuben Harjibhai (p.w.11) were there at the water tank when the incident occurred. She has also described how Maganji and Pratapji were attacked and given blows by various weapons. According to her, she too received an injury on the middle finger of right hand. Her evidence is corroborated by the injury certificate (Exh.37). Shankhuben (p.w.11) has also more or less given the same version of the incident. 8. All the three witnesses were cross-examined at length. The defence that was put to Pratapji and Ajiben was that deceased Maganji had an affair with Ratan, the wife of Shankerji (the appellant no.1), that the village people had gathered and scolded Maganji, that Maganji used to sit near the water tank and make advances to women. It was alleged that on the date of the incident, when Ratanben came to the water tank for fetching water, Maganji had caught her hand and was trying to drag her, that on hearing Ratanben's shouts, Shankerji had come running from his house, that Shankerji had a quarrel with Maganji while trying to release Ratan and that after the clash between Shankerji and Maganji, Pratapji and Ajiben came subsequently. It was also alleged that at that time, accused Chela Madha also came and Pratapji had a quarrel with him. Pratapji denied all these suggestions. He also denied that Hansaji Nemaji had not dealt a dharia blow on the head of Magan. 9. On behalf of the defence, Ratanben was examined as a witness. She said that Maganji had been harassing her for the last two years and the village people had gathered and told Magan to leave the village and hence, he had gone to village Khodla. On the date of the incident, she had gone to the water tank. At that time, there were no other women there. Magan was sitting there and he had caught her hand. She had, therefore, given a cry and her husband Shankerji had come running and got her released. She then went to her house and she did not know what had happened between Shankerji and Maganji thereafter. According to her, at that time, Ajiben or Shankhuben were not there. However, in cross-examination, she admitted that she came to know about the incident when she was weeding in the field. This makes it clear that the incident that had occurred did not follow immediately after the alleged incident in which Maganji had caught the hand of Ratanben. The attempt by the defence to establish that there was some sort of provocation in response to which the alleged incident occurred is not successful. It may be that there was some incident in the early morning in which the deceased had caught the hand of Ratanben. Thereafter, Ratanben had left and gone to the field and the incident in which Maganji came to be killed occurred subsequently. Hence, it is not possible to accept the contention advanced on behalf of the appellants that the incident was an immediate reaction to the incident involving Maganji and Ratanben and hence, the offence would fall under Section 304 Part I of the I.P.C. It was contended that the witnesses were related to the deceased and they were highly interested and no independent witness has been examined. However, in such cases, independent witnesses may not be available and there is no reason to disbelieve the evidence of Pratapji and Ajiben who were injured in the incident. It was also contended that Ajiben came later on after hearing the uproar and she had not seen the entire incident. It is also contended that Hansaji (the appellant no.2) was also not there and has been falsely implicated. However, as stated earlier, Ajiben was an injured witness and the map shows that all the persons mentioned in the evidence were within the sight of each other and whereever the witness was, she could have seen the entire incident. It was contended that the doctor has stated in his cross-examination that both the injuries on the head were near each other and they must have been caused by a weapon of the same kind. It was, therefore, contended that the two blows must have been dealt by the same person and Hansaji had, therefore, been wrongly implicated. However, it is not possible to accept this contention. All that the evidence of the doctor shows is that both the injuries must have been caused by the same weapon, namely, dharia but it does not destroy the evidence of the two injured witnesses when they say that both Shankerji and Hansaji dealt one dharia blow each on the head of Maganbhai. The doctor has also stated that internal injury to the brain corresponded to the two external injuries on the head and the injuries on the head were sufficient to cause death in the ordinary course of nature. Thus, the appellants no. 1 and 2 each inflicted a blow on the vital part of the body which proved fatal. There are no circumstances on the record which would bring their case under any of the exceptions to Section 300 of the I.P.C. The learned Additional Sessions Judge has, therefore, rightly convicted them of the offence under Section 302. 10. Similarly, the evidence of the witnesses that injuries have been caused by appellants no.3, 4 and 5 has been corroborated by medical evidence. The learned Additional Sessions Judge has, therefore, rightly convicted the appellants no. 3 and 5 of the offence under Section 324 of the I.P.C. and the appellant no.4 of the offence under Section 326 of the I.P.C. 11. As far as the acquittal appeal filed by the State is concerned, the learned Additional Sessions Judge held that Balvantji Manaji (original accused no.4) was not there and that accused no.5 Vajaji Manaji came subsequently. Hence, there was no unlawful assembly. The view taken by the learned Additional Sessions Judge is a possible and reasonable view and there is no reason to interfere with the same. In the circumstances of the case, it cannot be said that the appellants had any common intention and each of them has been rightly convicted for the injury caused by each of them. 12. The result of the above discussion is that the conviction of appellants no.1 and 2 Hansaji Nemaji and Shankerji Madhaji for the offence under Section 302, of appellant no.3 Chelaji Madhaji for the offence under Section 324, of appellant no.4 Vajaji Manaji for the offence under Section 326 and of appellant no.5 Devaji Manaji for the offence under Section 324 is confirmed. However, appellant no.3 Chelaji Madhaji is sentenced to suffer R.I. for three months and to pay a fine of Rs.500 (Rupees five hundred only) for the offence under Section 324 of the I.P.C., in default, to suffer R.I. for one month. The appellant no.5 Devaji Manaji is also sentenced to suffer R.I. for three months and to pay a fine of Rs.500/- (Rupees five hundred only) for the offence under Section 324 of the I.P.C., in default, to suffer R.I. for one month. The appellant no.4 Vajaji Manaji is sentenced to suffer R.I. for three years for the offence under Section 326 of the I.P.C. and to pay a fine of Rs.1000/- (Rupees one thousand only), in default, to suffer R.I. for three months. The appellants no.4 and 5 shall surrender to bail and serve the remaining part of the sentence. Mr. A.J. Desai, learned APP has produced a statement signed by the Deputy Superintendent, Central Jail, Ahmedabad showing that the appellant no.3 Chelaji Madhaji spent two months and 23 days as an undertrial prisoner and served one month after conviction, before he was released on bail during the pendency of the appeal. Thus, he has already served the substantive sentence of three months. He shall surrender to bail and serve the remaining part of the sentence in default, if he does not pay the fine of Rs.500/-, which he is sentenced to pay. They are given time till 15th November, 2003 to surrender. Criminal Appeal No.32 of 1996 is, thus, partly allowed. The conviction of the appellants is confirmed but the sentence of appellants no.3, 4 and 5 is reduced, as stated above. Criminal Appeal No.808 of 1996 is dismissed. ( N.G. Nandi, J. ) ( M.C. Patel, J. ) hki