IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 588 of 1994 with CRIMINAL APPEAL No 767 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE A.L.DAVE and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 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? -------------------------------------------------------------- BHIKHUBHAI MOHANBHAI PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 588 of 1994 MR YN RAVANI for Appellant No. 1 MR AJ DESAI, APP, for Respondent No. 1 2. Criminal Appeal No. 767 of 1994 MR AJ DESAI, APP, for Appellant No. 1 NOTICE SERVED for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE A.L.DAVE and MR.JUSTICE SHARAD D.DAVE Date of decision: 13/05/2003 ORAL JUDGEMENT (Per : MR.JUSTICE A.L.DAVE) These appeals arise out of a judgment and order rendered by the Additional Sessions Judge, Amreli on April 18, 1994 in Sessions Case No.97 of 1992 before him recording conviction of appellant in Criminal Appeal No.588 of 1994 for an offence punishable under Section 302 of IPC sentencing him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo SI for six months, and acquitting the respondents in Criminal Appeal No.767 of 1994 for the offences punishable under Section 302 read with 114 of IPC and Section 506(2) of IPC. 2. The facts of the case can be stated thus:- Sarambhada is a village located in Amreli taluka of Amreli district. The fields of deceased Popatbhai Devjibhai and respondent No.1 in Criminal Appeal No.767 of 1994 Mohanbhai Polabhai are situated adjacent to each other in the outskirts of village Sarambhada. A long drawn dispute between the two was going on in respect of the boundaries which is customarily maintained by making a low rising earthen wall or a earthen divider. On May 11, 1992 at about 10.00 A.M. deceased Popatbhai Devjibhai and his wife Bhanuben were unloading fertilizer from their bullock cart in their field. They noticed that appellant-Bhikhubhai and respondent-Mohanbhai Polabhai and Fulbaiben wife of Mohan Pola were digging the earthen boundary from the side of the field of Popatbhai Devjibhai. He, therefore, asked them not to do so. Somehow appellant-Bhikhubhai insisted on continuing with the digging and there was an altercation. In this, Mohanbhai Polabhai and Fulbaiben caught hold of deceased Popatbhai and dragged him to an adjoining canal (rain water drain) and at that time appellant-Bhikhubhai Mohanbhai who had a pick axe in his hand inflicted a blow of the pick axe on head of Popatbhai, as a result, Popatbhai fell down. Parallel to this, on hearing the altercation Arvindbhai, nephew of Popatbhai, who was working in his nearby field, came down rushing and saw the incident. On Bhikhubhai inflicting blow on head of deceased Popatbhai and Popatbhai falling down, Arvindbhai and Bhanuben raised shouts. All the three assailants, therefore, fled away immediately. On hearing shouts of Arvindbhai and Bhanuben, Dhiru Kanji and Bachubhai Hadabhai came to the spot. Dhirubhai lifted deceased Popatbhai from the canal. Simultaneously, Bachubhai brought the bullock cart and the deceased was placed in the bullock cart, taken to the village and thereafter to the hospital at Amreli where he was declared dead. A complaint was lodged by Arvindbhai on the basis of which offence was registered and investigation started. At the conclusion of investigation, the investigating agency found that there was evidence against Bhikhubhai Mohanbhai, Mohan Pola and Fulbaiben wife of Mohan Pola and, therefore, chargesheeted them for the offence punishable under Sections 302, 447, 506(2) and 114 of IPC before Chief Judicial Magistrate, Amreli. Since the case was triable exclusively by a Court of Sessions, it was committed to the Court of Sessions by learned Chief Judicial Magistrate and Sessions Case No.97 of 1992 came to be registered. 2.1 Charge was framed against all the three accused persons at Exh.1 for the offences punishable under Section 447 read with Section 34, Section 302 read with Section 34. In the alternative, Section 302 read with Section 114 of IPC and in the alternative Section 302 against accused No.1 only and for offence punishable under Section 506(2) of IPC read with Section 34 of IPC. The accused persons pleaded not guilty to the charge and came to be tried. Considering the evidence led by the prosecution, learned Additional Sessions Judge came to a conclusion that charges against accused Nos.2 and 3 Mohan Pola and Fulbaiben wife of Mohan Pola were not established by the prosecution. However, he came to a positive conclusion that charge of murder against accused Bhikhubhai Mohan was established and he, therefore, recorded conviction and sentenced him to imprisonment for life, as stated above. The learned Additional Sessions Judge acquitted accused Mohan Pola and Fulbaiben of the charges levelled against them. 2.2 Aggrieved by the said order of conviction, accused Bhikhubhai Mohanbhai Patel has preferred Criminal Appeal No.588 of 1994 whereas the State, being aggrieved by acquittal recorded in respect of accused Mohan Pola and Fulbaiben wife of Mohan Pola has preferred Criminal Appeal No.767 of 1994. As both appeals arise out of same judgment, they are heard together and are disposed of by this common judgment. 2.3 For sake of convenience, the appellant in Criminal Appeal No.588 of 1994 is addressed to as accused No.1 and respondents No.1 and 2 in Criminal Appeal No.767 of 1994 are addressed to as accused Nos.2 and 3 respectively in this judgment. 3. Accused No.1 was arrested by the Investigating Officer on 13th May, 1992 and has been in custody since then. While admitting appeal preferred by the State, bailable warrant in sum of Rs.2000/- came to be issued against each of the respondent/ accused No.2 and 3 by order dated November 30, 1994. Accused Nos. 2 and 3 have chosen not to contest this appeal. However, accused No.1 is represented by learned advocate Mr Ravani who has voluntarily assisted this Court in considering the case against accused Nos.2 and 3 as well. The State is represented by learned APP Mr Desai. 4. We have heard learned advocate Mr Ravani and learned APP Mr Desai on merits of their respective appeals. We have been taken through the record and proceedings of the case by them. We have given it a close scrutiny. 5. Learned advocate Mr Ravani submitted that the case of prosecution suffers from a large number of lacunae. He submitted that although Bhanuben and Arvind claimed to be eye witnesses, the possibility of they having not witnessed the incident cannot be ruled out. He submitted that Bhanuben claims to be with the deceased at the time of the incident but makes no attempt to intervene in the incident or to pacify the parties. Admittedly, Bhanuben and the deceased were unloading the fertilizer from the bullock cart, which was at a distance of about 100 to 150 ft. from the boundary. The incident has occurred in the canal beyond the boundary. It has come in evidence that the boundary i.e. earthen wall or divider is of a height of about 3 to 4 ft.. It has also come in evidence that the depth of canal is about 3 to 4 ft.. It has come in evidence that on the earthen boundary, there is plantation of babul tree and kedki. Mr Ravani, therefore, submitted that Bhanuben could not have seen the actual occurrence of deceased being given blow on the head and possibility of somebody else having caused the injury to the deceased cannot be ruled out. 5.1 Mr Ravani submitted that likewise field in which Arvind was working is located at a long distance. There is a road in between the two fields with rain water drain on both the sides of the road and, therefore, neither Arvind could have heard the quarrel nor could he have immediately rushed to the spot, as he claims to have done. He could not have seen the incident himself. Mr Ravani, therefore, submitted that depositions of witnesses Arvindbhai and Bhanuben deserve to be discarded as eye witnesses. They have concocted the story to square up the account with the accused persons for the long drawn dispute on the question of boundary. 5.2 Mr Ravani submitted that when the deceased was taken to the hospital and the Doctor had sent a yadi to the police and that yadi ought to have been treated by the trial Court as the FIR rather than the complaint by Arvindbhai as the FIR. He submitted that the yadi contains reasonable details about the incident and, therefore, it ought to have been treated as the FIR. If that is done, FIR does not reveal the names of the assailants. The complaint is an after thought and contains name of the accused persons, which aspect has not been properly considered by the trial Court. 5.3 Mr Ravani submitted that the medical evidence and the version given by the eye witnesses run contrary to each other. The nature of injury as emerging from the medical evidence is inconsistent with the evidence of all the eye witnesses. The doctor has described the dimension of the injury as 2 cms. X 12 cms. X 1 cm., which would mean that the length of injury was 2 cms. width was 12 cms. and depth was 1 cm.. The weapon alleged to have been used is a pick axe which could not have caused this type of injury. The doctor has, therefore, changed his version in his deposition to suit to the evidence of the eye witnesses. 5.4 Mr Ravani has drawn the attention of this Court to certain contradictions emerging from the evidence led by the prosecution. He submitted that according to Bhanuben, Arvind told regarding the incident to witness Hasmukh whereas witness Hasmukh has deposed that he was informed about the incident by Bhanuben. Likewise, witness Dhiru Kanji has come out for the first time before the Court to say that he intervened by saying, "Dodo dodo shu kam karo chho". This version is not emerging in his statement before the police. 5.5 Mr Ravani submitted that presence of witness Dhiru Kanji is also doubtful although he claims to have reached the place of incident soon after the incident. Mr Ravani submitted that according to this witness, he had picked up the deceased from the canal single handed and brought him out of the canal and put him on the bullock cart. It has come in evidence that the deceased had a very serious type of injury on his head and that he was bleeding at that point of time. In spite of this, it is the case of the prosecution that Dhiru's clothes were not stained with blood. According to Mr Ravani, this is an impossibility and presence of this witness, therefore, becomes doubtful. Mr Ravani submitted that even cloth of Bhanuben was blood stained. That cloth has also not been recovered by the police and an explanation is sought to be given by Bhanuben that the blood stained cloth was washed after the incident. 5.6 The prosecution has relied on the discovery of weapon and a panchnama to that effect has been drawn. Mr Ravani submitted that it is not a discovery nor it is a recovery because it is produced by accused No.3. The condition of the weapon, particularly, the nature of blood stain makes it a doubtful weapon. 5.7 Mr Ravani submitted that the medical evidence suffers from various discrepancies. First is regarding the dimensions of the injury. Second is absence of any foreign particle in the injury and third is that the Doctor has not given due inspection to the injury. There is absence of injury that would be caused while removing the weapon from the body. 5.8 Mr Ravani submitted that all these factors taken collectively would render the prosecution story untrustworthy and doubtful. The trial Court has ignored all these aspects and has recorded conviction of accused No.1. His appeal, therefore, may be accepted by this Court. 5.9 Mr Ravani has made an alternative argument that admittedly there were long drawn disputes between the parties. The quarrel took place suddenly and only one blow is given with pick axe by accused No.1, which is an agricultural implement which was in his hand at the time of the incident. Therefore, the case cannot fall within the definition of "murder". At the most, it would be a case of "culpable homicide not amounting to murder". Mr Ravani submitted that accused No.1 has been in jail since 13th May, 1992, which is exactly 11 years from today. He relied on several decisions of this Court as well as the Apex Court in support of his argument that where an incident occurs suddenly; where only one injury is caused and where the incident has occurred because of loss of self-control, the case would fall within the definition of culpable homicide not amounting to murder and appropriately the punishment may be reduced. He submitted that the conviction may be altered to conviction under Section 304 Part II of IPC. 5.10 As regards Criminal Appeal No.767 of 1994 learned advocate Mr Ravani submitted that there is no evidence to indicate that there was any conspiracy amongst the accused persons nor is there any evidence to indicate that accused Nos.2 and 3 had any intention of aiding or abetting the criminal act of accused No.1 at the time of the incident. He submitted that the incident occurred suddenly and that accused Nos.2 and 3 could not have known or anticipated such an incident. He, therefore, submitted that the trial Court has rightly recorded acquittal in respect of accused Nos.2 and 3 and the said appeal may be dismissed. 6. Learned APP Mr Desai has opposed the conviction appeal vehemently. He has drawn attention of this Court to the evidence on record, particularly, the map to indicate that witness Arvind's field is not very far off. It is across the road and the distance, if considered, would be hardly 50 to 60 ft.. Therefore, he could have definitely heard the altercation, more so, when it has come in evidence that he was working in his field near the boundary of the field adjacent to the road. He submitted that for a villager cross country run of 50 to 60 ft. is not a difficult or time consuming affair and, therefore, he could have definitely run and witnessed the incident as he claims to have done. There is no reason to doubt his evidence. 6.1 Mr Desai submitted that apart from Arvind there is deposition of Bhanuben. The evidence on topography of the place of incident is clear enough to indicate that Bhanuben was standing on the earthen wall. The depth of the canal is hardly 24 to 30 inches. The plantation of Kedki and or Babul had not grown so tall as would obstruct the vision and, therefore, Bhanuben's deposition itself is sufficient to bring home the charge against accused No.1. Mr Desai submitted that Arvind's deposition is only an additional piece of evidence. 6.2 Mr Desai submitted that evidence of Dhiru need not be doubted only on account of lack of blood stains on his clothes. There is no evidence on record which would indicate that the deceased was bleeding profusely. Further, there is no evidence and there is no cross-examination on aspect of how the deceased was lifted by Dhiru. The position would matter in such eventualities. Mr Desai submitted that Dhiru's evidence is only hearsay evidence so far as the incident is concerned. It hardly affects the evidence of the two eye witnesses on the basis of which conviction is recorded by the trial Court. Mr Desai, therefore, submitted that the appeal of accused No.1 may be dismissed. 6.3 On the aspect of alternative submission made by Mr Ravani, Mr Desai submitted that single injury by itself cannot take the case out of the purview of murder. The evidence indicates that there was not much of quarrel or altercation or not much heat was generated. Simply because the deceased asked the accused persons not to dig his field, the blow was given. There is nothing on record to indicate that something had transpired which would suddenly and gravely provoke accused No.1. Besides this, the nature of weapon used, the site of injury and the force with which the blow was given would all go to indicate that the injury was caused with a clear intention of causing death of the deceased. Mr Desai submitted that there cannot be any dispute about the principle that where there is a sudden quarrel without premeditation and if a single injury is caused in heat of passion, the case may fall within the purview of culpable homicide not amounting to murder. But, in the instant case, Mr Desai submitted, that the evidence indicates that there was no provocation, no quarrel and there is nothing to indicate that there was loss of self-control. Mr Desai, therefore, submitted that the alternative submission made by Mr Ravani may not be accepted. 6.4 As regards State's appeal, Mr Desai submitted that accused Nos.2 and 3 dragged the deceased to the canal and that accused Nos.2 and 3 holding the deceased, possibly accused No.1 could not have caused the injury. The deceased could have possibly defended himself and, therefore, accused Nos.2 and 3 ought to have been convicted for offence punishable under Section 302 read with 114 of IPC, if not for Section 302 read with 34 of IPC. He, therefore, urged that Criminal Appeal No.767 of 1994 may be allowed. 7. We have gone through the record and proceedings and the evidence on record. As has rightly been submitted by the learned advocates, the material evidence is that of PW 1 Arvindkumar Rambhai at Exh.10 and the evidence of Bhanuben PW 3 at Exh.17. These two are eye witnesses and, therefore, their deposition will assume importance for considering whether the conviction is rightly recorded or not. 8. Witness Arvindkumar Rambhai Exh.10 happens to be nephew of deceased Popatbhai. He says that their field is located right across the road to the field of Popatbhai. He knows the accused persons. He says that on the day of incident i.e. on May 11, 1992 he had gone to his field. Deceased Popatbhai and witness Bhanuben were in their field. They were bringing fertilizer to the field. The incident occurred at about 10.00 AM. He heard an altercation in the field of his uncle Popatbhai. He saw that the accused persons were quarreling with the deceased. He, therefore, went there. The accused persons were digging the earthen wall (dividing boundary made from soil known as "palo" in vernacular). Deceased Popatbhai was asking them as to why are they digging the dividing boundary and the reply was that they want to do it and what is he going to do ? The three accused persons then dragged deceased Popatbhai to the canal (rain water drain) where accused Nos.2 and 3 caught hold of the deceased and accused No.1 forcefully inflicted a blow of pick axe on head of the deceased. The deceased raised a shout and fell down. Therefore, he (Arvindbhai) and his aunt raised shouts, as a result, all the three assailants went away. While going they intimidated Bhanuben by asking her to take care of her husband and if she creates any problem regarding the divider, she also would be done to death. Hearing their shouts, Dhirubhai Kanabhai and Bachubhai Hadabhai came to the spot and the witness informed them as to how the incident had occurred. They took the deceased in a bullock cart to his house where Hasmukhbhai, Mavjihai, Pragjibhai and Vinubhai Bhagwanbhai were present and were informed about the incident. Thereafter deceased Popatbhai was taken to Civil Hospital, Amreli in a jeep car of one Mansukhbhai. the witness identifies the pick axe as Article No.6. 8.0.1 The witness has been cross-examined at length. The relevant and material aspects of which are that during the cross-examination it has been brought out that he was near the boundary of his field adjacent to the road when he heard the altercation. He denies the suggestion that he could not have seen the incident because of the topography. He says that the canal is 5 to 6 ft. deep where the incident occurred. According to him, the Kedki plants are about 18 inches tall. He denied about existence of babul plantations. He says that on hearing his shouts, witnesses Dhirubhai Kanabhai and Bachubhai Hadabhai came. They arrived there within two to three minutes of departure of the accused assailants. He states in his cross-examination that he had informed Dhirubhai Kanabhai and Bachubhai Hadabhai that Bhikhu Mohan, Mohan Pola and Fulbai Mohan had dragged his uncle into the canal where Mohan Pola and Fulbaiben had caught hold of his uncle and Bhikhu Mohan had forcefully inflicted a blow on head of the deceased with pick axe. He says that no other information was given by him to the two witnesses. It also emerges from the cross-examination that the canal is about 6 to 7 ft. deep and the divider is about 4 ft. high from the ground level. He denies the suggestion that his say about the accused persons dragging his uncle into the canal is false. 8.1 Witness Bhanuben Popatbhai is examined at Exh.17. She happens to be the widow of the deceased and was with the deceased at the time of the incident working in the field. She states that on noticing the accused persons digging the divider her husband asked them as to why are they digging the divider, to which, Mohan Pola replied that "We want to dig your divider what are you going to do?" As a result, there was some altercation. Therefore, she went to the spot. Hearing the altercation, Arvind had also arrived. The three accused persons dragged deceased to the canal where accused No.2 and 3 caught hold of the deceased and accused No.1 gave pick axe blow on head of the deceased. Her husband raised a shout and then fell down. Therefore, the witness and her nephew Arvind started raising shouts. At that time, Mohan Pola intimidated her by saying that she should take care of her husband and if she speaks she will also be done to death. She says that on hearing the shouts, Dhirubhai Kanabhai and Bachubhai Hadabhai came. Arvind told them about the incident and Dhirubhai brought out the deceased from the canal. At that time, deceased was bleeding from the injury. They took the deceased firstly to home in a bullock cart and then in jeep car to the Civil Hospital Amreli where he was declared dead. She identifies the clothes of the deceased. 8.1.1 Witness has been cross-examined at length. Certain material aspect which emerged from the cross-examination are relevant. The witness denies that there is a hedge of Kedki plant on the divider. She also denies about existence of Babul tree on the divider. She says that there are small plants. She denies a suggestion that the canal is about 8 to 10 ft. deep but according to her, it is 6 to 7 ft. deep. She says that at the time of the incident she was on the top of the earthen wall. She denies a suggestion about the earlier fight with the accused persons but she says that there was an altercation. She says that Dhirubhai had singularly brought out the deceased from the canal and laid him in the bullock cart. His clothes were not blood stained. She says that one of her clothes was stained with blood which was washed by her