CR.A/89719/1997 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 897 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 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 ? No. 5 Whether it is to be circulated to the civil judge? No. ========================================================= BEGADIYA SOMABHAI KALABHAI & 3 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MC BAROT for Appellant(s) : 1 - 4. MS MEETA PANCHAL for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 14/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellants – convicts have challenged CR.A/89719/1997 2/14 JUDGMENT the judgment and order of conviction and sentence rendered on 30-8-1997 by learned Addl. Sessions Judge, Banaskantha at Palanpur in Sessions Case No.45 of 1995 convicting the appellants for offences punishable u/ss. 302, 323, 324 read with Section 34 of the I.P. Code and u/s 135 of the Bombay Police Act and sentenced them to undergo different sentences. 2. It was the prosecution case that on 4-11-1994 at about 15-00 hours in furtherance of their common intention to commit murder of Anada Ratna, appellant Kala Kaala and Kaala Ratna committed his murder and appellant Soma Kaala and appellant Vira Kaala caused injury with stick having iron rings to Nopabhai Ratnabhai and Chandubhai Bhemabhai and appellant Kala Kaala and appellant Kaala Ratna abetted the accused in commission of offence and thereby committed offences punishable u/s 302, 323, 324 and 34 of the I.P. Code and u/s 135 of the Bombay Police Act. 3. On the basis of the first information report lodged by Nopabhai Ratnabhai before Danta Police Station, offence was registered as I – CR No. 107 of 1994 against the accused and the investigation was started. On completion of investigation charge sheet against the accused CR.A/89719/1997 3/14 JUDGMENT for the aforesaid offences was laid before the J.M.F.C., Danta. As the offences were triable by Sessions Court, the case was committed to the Sessions Case, Banaskantha at Palanpur and it was registered as Sessions Case No. 45 of 2005. Learned Addl. Sessions Judge, Banaskantha at Palanpur framed charge Exh.3 against the accused for the aforesaid offences. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused denied having committed the offence in their further statements recorded u/s 313 of the Code of Criminal Procedure and stated that they have been falsely implicated in the offence. 4. After hearing the learned A.P.P. for the State and learned advocate for the accused, the trial Court convicted the appellants and sentenced them to undergo difference sentences. Being aggrieved by the said decision, the accused have preferred the present appeal. 5. Heard learned advocate Mr. M.C. Barot for the appellants and learned A.P.P. Ms. Meeta Panchal for the respondent – State at length and in great detail. We have also perused the impugned judgment and records and proceeding and CR.A/89719/1997 4/14 JUDGMENT proceedings of the trial court. 6. Mr. Barot learned advocate for the appellants mainly submitted that the prosecution witnesses have tried to suppress the real facts and there are material contradictions in the evidence of the so called eye witnesses. He also submitted that the incident occurred all of a sudden as there was heated exchange of words which resulted into clash and there was no premeditation or pre-plan to commit offence and therefore the appellants could be convicted for minor offence. 7. Learned A.P.P. Ms. Panchal submitted that the evidence clearly indicates that the appellants had common intention to commit offence and there was premeditation. The medical evidence as well as depositions of the witnesses indicate that all the appellants with common intention to commit offence attacked deceased and therefore the learned trial Judge was justified in recording conviction. Hence, no interference is warranted in the impugned judgment. 8. In view of submissions of Mr. Barot, appellants have not disputed the incident. Therefore, the only question is whether the case would fall under Section 304 of the I.P. Code ? CR.A/89719/1997 5/14 JUDGMENT 9. It appears from the prosecution case that appellants Kala Kaala and Kaala Ratna committed murder of Anadabhai Begadiya and appellant Soma Kaala and appellant Vira Kaala abetted. It is also the prosecution case that appellants Soma Kaala and Vira Kaala caused injury with stick to Nopabhai Ratna and Chandubhai Bhemabhai and other appellants abetted in commission of offence. 10. The prosecution examined injured P.W. 2 Nopabhai at Exh 18. This witness lodged F.I.R. Exh. 39. It appears from the evidence of this witness that the witness had heated exchange of words with appellant Soma Kaala as he demanded money. The evidence also indicates that on account of heated exchange of words other appellants came running there and appellants Soma Kaala and Kala Kaala had bow and arrow, appellants Kaala Ratna and Vira Kaala had stick having iron rings and appellant Soma Kaala hit arrow on right side of his forehead. According to the witness appellant Vira Kaala hit stick having iron rings on his right wrist and backside of his head. 11. The prosecution produced the injury certificate of the witness at Exh. 14. It CR.A/89719/1997 6/14 JUDGMENT indicates the following injuries. : i. Incised wound oblique 2.5 cm x ½ cm x ½ over right side of forehead. ii. C.L.W. Vertical 1 cm x ½ cm x ½ cm over right forearm. According to the certificate injury No.1 was possible by sharp cutting instrument and injury No. 2 was possible by hard and blunt object. 12. The F.I.R. Exh. 39 also indicates that before the incident heated exchange of words took place and the appellants Soma Kaala and Vira Kaala assaulted P.W. 2 Nopabhai. 13. The evidence indicates that there was exchange of words between P.W. 2 and appellant Soma Kaala who hit arrow on his forehead and appellant Vira Kaala, hit stick on his right wrist. The Doctor's evidence indicates that such injuries were possible by arrow and stick. This clearly indicates that on account of heated exchange of words the incident occurred and the witness was injured. 14. According to P.W. 3 Chandubhai Bhemabhai Exh. 25 he was also injured in the assault by appellant Soma Kaala but there is no medical CR.A/89719/1997 7/14 JUDGMENT evidence to show the injuries. Therefore, it is difficult to believe that the witness was injured in the assault. 15. The prosecution also examined eye-witness P.W. 4 Kamliben Anadabhai at Exh. 26. The witness has deposed about the injuries to P.W. 2 Nopabhai and P.W. 3 Chandubhai. 16. In view of above evidence, it clearly emerges that the incident occurred as P.W. 2 demanded money from appellant Soma Kaala and there was exchange of words and due to this heated exchange of words, appellant Soma Kaala got enraged and inflicted injury and appellant Vira Kaala also gave stick blow to P.W. 2. Therefore complicity of appellant Soma Kaala and appellant Vira Kaala is proved beyond reasonable doubt in causing injury to P.W. 2 but the evidence does not indicate that they had abetted appellants Kala Kaala and Kaala Ratna in committing murder of Anada Ratna. As regards appellant Kaala Ratna, according to P.W. 2 he hit stick on the head of deceased Anada Ratna. This version is supported by P.W. 4. The postmortem report Exh. 15 also indicates that injury was found on head of the deceased and P.W. 1 Dr. Jayantibhai Ambaram Exh. 13 has deposed that such injury was possible by stick. Therefore, CR.A/89719/1997 8/14 JUDGMENT involvement of appellant Kaala Ratna in causing injury to deceased is proved but there is no evidence to indicate that appellant Kaala Ratna had common intention to commit murder of the deceased. Analysing the evidence, it becomes clear that appellants Soma Kaala and Vira Kaala caused injuries to P.W. 2 and appellant Kaala Ratna caused injury to the decease but there is no evidence to come to a conclusion that these appellants had common intention to commit murder or to cause injury to P.W. 2 and P.W. 3. 17. As regards death of Anada Ratna, the prosecution examined Medical Officer P.W. 1 Dr. Jayantibhai Ambaram Patel at Exh. 13. The witness performed postmortem of dead body of Anada Ratna. According to him the injuries found on the dead body were recorded in postmortem report Exh. 15 and certificate indicating cause of death produced at Exh. 16 was issued by him. According to the Doctor, injury No.1 was sufficient in the ordinary course of nature to cause death and such injury was possible by muddamal arrow. 18. Postmortem Exh. 15 indicates following external injuries in Column No.17. i. Stabbing wound oblique 2.5 cm x 1 cm CR.A/89719/1997 9/14 JUDGMENT size over right of epigastric region. Omentum came out side through wound. ii. C.L.Ws. 3 in no. oblique, 1 cm x ½ cm x ½ on left side of parietal region of scalp. iii. C.L.W. Oblique 2.5 cm x ½ cm x ½ cm over left temporal region of scalp. iv. Abrasions 3 in no. of 1 cm size over left knee. The cause of death was shock due to intraperitoneal haemorrhage on account of stabbing injury over abdomen. 19. As observed earlier P.W. 2, P.W. 3 and P.W. 4 have deposed that as P.W. 2 demanded money from appellant Soma Kaala, there was heated exchange of words. They have also deposed that as deceased Anada Ratna came running there appellant Kala Kaala hit arrow on his abdomen. The medical evidence also indicates that such injury was the cause of death. Therefore, the death was homicidal in nature and appellant Kala Kaala was responsible for such injury. It also appears that the deceased was not present at the place of incident when there was exchange of words but came subsequently. Therefore there was no premeditation and there was no intention on the part of appellant Kala Kaala to assault the deceased. The incident occurred all of a sudden in heat of passion. Considering the CR.A/89719/1997 10/14 JUDGMENT injury caused by the appellant, it cannot be said that he acted in cruel or unusual manner and took undue advantage of the situation. Therefore, the case would fall into exception 4 to Section 300 of the I.P. Code and hence learned trial Judge committed error in convicting appellant Kala Kaala for the offence punishable u/s 302 of the I.P. Code. 20. Scrutinising the evidence it appears that there is no cogent, reliable and convincing evidence to indicate that the appellants had common intention to cause injury to P.W. 2 and in furtherance of common intention, they attacked P.W. 2. Considering nature of injuries and weapons used for inflicting the injuries appellant Soma Kaala, Vira Kaala and Kaala Ratna could be convicted for the offence punishable u/s 324 of the I.P. Code. Therefore, learned trial Judge has committed error in convicting appellants No.1, 2 and 4 for the offence punishable u/s 302, 323 read with Section 34 of the I.P. Code and hence conviction of these appellants for such offences is required to be set aside and their conviction for the offence punishable u/s 324 of the I.P. Code and u/s 135 of the Bombay Police Act is required to be confirmed. CR.A/89719/1997 11/14 JUDGMENT 21. As regards murder of Anada, there is no evidence to indicate that there was common intention of the appellants to commit his murder. Therefore, it cannot be said that the appellants in furtherance of their common intention caused murder of Anada. 22. Now the Court will have to find out whether the appellant Kala Kaala could be held guilty for the offence of murder or whether it falls within the ambit of any exception enumerated in Section 300 of the I.P. Code. It appears that there was quarrel preceding the incident and the deceased tried to intervene in the quarrel. Therefore, the manner in which incident has occurred and considering the medical evidence it appears that the murder was committed without premeditation in a sudden heat of passion. Therefore, in our considered view, the present case would be governed by Section 304 Part – I of the I.P. Code more particularly when only one blow was given by appellant Kala Kaala. Therefore, approach of the learned trial Judge being erroneous in law is liable to be quashed and set aside. 23. Having regard to the facts and circumstances of the case as well as the manner in which the incident has taken place, appellant Kala Kaala CR.A/89719/1997 12/14 JUDGMENT could be held guilty of offence punishable u/s 304 Part-I and not u/s 302 of the I.P. Code. 24. We have heard learned advocate Mr. Barot for the appellants and learned A.P.P. Ms. Panchal for the respondent – State on the question of sentence. It is stated that appellant Kala Kaala has undergone imprisonment of more than 10 years and other appellants were released on bail by this Court pending the appeal. It is also submitted by Mr. Barot that the manner in which the incident had occurred, it would be just and proper that imprisonment already undergone by them be imposed. In our view, considering the facts and circumstances of the case this submission is required to be accepted. 25. For the foregoing reasons, the appeal is partly allowed and conviction of the appellants Begadiya Soma Kaala, Begadiya Virabhai Kaala and Begadiya Kaala Ratnabhai recorded vide judgment and order dated 30—8-1997 passed by the learned Addl. Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 45 of 1995 for the offence punishable u/s 302, 323 read with Section 34 of the I.P. Code is quashed and set aside. However, conviction of these appellants for the offence punishable u/s 324 of the I.P. Code and u/s 135 of the Bombay Police Act is confirmed. These CR.A/89719/1997 13/14 JUDGMENT appellants are directed to undergo the sentence of rigorous imprisonment for the period already undergone by them. Appellants No.1, 2 and 4 are on bail and hence their bail bonds stand cancelled. 26.1 So far as conviction of the appellant Begadiya Kala Kaala recorded vide judgment and order dated 30-8-1997 passed by the learned Addl. Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 45 of 1995 for the offence punishable u/s 302 is concerned, it is altered from Section 302 of the I.P. Code to Section 304 Part-I of the I.P. Code and the appellant is directed to undergo sentence of rigorous imprisonment for the period of 10 (Ten) years. Order of conviction and sentence imposed by the trial court for the offence punishable u/s 135 of the Bombay Police Act is confirmed. However, conviction of this appellant for the offence punishable u/s 323, 324 read with 34 of the I.P. Code is set aside. 26.2 In view of the jail report, it appears that appellant No. 3 - Begadiya Kala Kaala has already undergone sentence of rigorous imprisonment imposed by this Court. Therefore, the Superintendent, Ahmedabad Central Jail, CR.A/89719/1997 14/14 JUDGMENT Ahmedabad is directed to set free appellant No.3 Begadiya Kala Kaala forthwith unless his presence is required in any other case. 26.3 All the sentences are ordered to run concurrently. The appellants are entitled to get set off. 26.4 The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta,J.) /JVSatwara/