CR.A/70120/2002 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 701 of 2002 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 ? 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 ? ========================================= = RABARI BHALU SARMAN KODIYATAR & OTHERS Versus STATE OF GUJARAT ========================================= = Appearance : MR JB PARDIWALA for Appellants MR MG NANAVATI, ADDL PUBLIC PROSECUTOR for Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA CR.A/70120/2002 2/6 JUDGMENT Date : 03/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The appellants – convict have preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court, Junagadh on 6.7.2002 in Sessions Case No.20 of 2001. 2. Appellants were tried in the Court of the Addl. Sessions Judge, Fast Track Court, Junagadh for the offences under sections 147, 148, 149 and 302 of the Indian Penal Code in connection with an incident which occurred on 5.11.2000 at village Darsali. 3. The sum and substance of the charge against the appellants is to the effect that the accused persons formed an unlawful assembly and in furtherance of the common object of the unlawful assembly assaulted the deceased Mansukh Govind in his agricultural farm with axe and stick. 4. The motive put forward by the prosecution for the alleged crime is long standing enmity on account of some election dispute. i) Accused No.1 Rabari Bhalu Sarman is alleged to have inflicted one blow with an axe on the head of the deceased, but from the blunt side of the axe i.e. the rear portion. ii) Accused No.2 is alleged to have been in possession of an CR.A/70120/2002 3/6 JUDGMENT axe. iii) Accused No.3 is also alleged to have been in possession of an axe. iv)Accused No.4 is alleged to have been armed with stick and he inflicted one blow on the head of the deceased. v) Accused No.5 was also armed with a stick. 5. It is the case of the prosecution that accused No.1 Rabari Bhalu Sarman and accused No.4 Rabari Lakha inflicted one blow each on the head with their respective weapons i.e. axe and stick, whereas the other accused persons i.e. accused Nos.2,3 and 5 are alleged to have assaulted the deceased on the lower limbs. 6. The injuries on the deceased noted at the time of Postmortem are as under: i) Fracture of Tibia of left leg. ii) Fracture of Tibia of right leg. iii) One contused lacerated wound – 3cm X 2cm on the left leg. iv)One contused lacerated wound – 1cm X 1 cm on the head in the middle. v) One contused lacerated wound -3 cm X 1 cm X 1 cm on the rear portion of the head – downwards. vi)Swelling on left hand. vii)Injury on the ring finger. viii)Swelling on the right shoulder. 7. As per the medical evidence, these injuries were possible by hard and blunt object. Doctor has deposed that if the blunt part of the axe is inflicted, then the injuries sustained by the CR.A/70120/2002 4/6 JUDGMENT deceased were possible. However, the cause of death was not due to any head injury or injury on the lower limbs, but was on account of rupture of spleen and some injury to the left kidney. 8. Accused Nos.1 to 4 are brothers and accused No.5 is the father. All the accused appellants were arrested on 6.11.2000. So far as the accused Nos.1 to 4 are concerned, they are in custody since 6.11.2000. So far as the accused No.5 is concerned, father of appellant Nos.1 to 4, considering his age and poor health, his sentence was commuted by the State Government and has been released under the State Government's scheme or policy on 2nd October, 2007. 9. Considering the manner in which the incident has occurred and the nature of injuries sustained by the deceased, it cannot be said by any stretch of imagination that the common object of the unlawful assembly intended to cause such a bodily injury sufficient in the ordinary course of nature to cause death. It is more than prima facie clear that the common object of the unlawful assembly was to thresh and belabour the deceased, but in the process his spleen got ruptured resulting in his death. Therefore, the case falls within Part I of section 304 of the Indian Penal Code – Culpable homicidal not amounting to murder. 10. It has been submitted by the learned APP that all the accused have indiscriminately caused injuries to the deceased though the injuries are simple but even the head was not speared. Such injuries have been inflicted all over the body including the head. He has further submitted that cause of death is rupture of spleen and kidney, the manner in which CR.A/70120/2002 5/6 JUDGMENT injuries have been inflicted, suggests that the accused could have the knowledge that such injuries may result in death and therefore, the trial Court was right in convicting the accused for the offence of murder and sentencing them to life imprisonment. 11. We have heard learned counsel Mr. J.B. Pardiwala for the appellant and learned APP Mr. M.G. Nanavati at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court. 12. It appears that though the deceased was given blows on the head, the said injuries are neither fatal nor serious. In fact, from the evidence of the doctor, it is clear that all the injuries inflicted on the body of the deceased are not of grievous nature and individually none of these injuries would have resulted in death of the accused. However, as a cumulative effect of some of the injuries inflicted on the vulnerable part of the deceased, the spleen and kidney got ruptured which would cause the death. In view of such internal injuries, it is difficult to ascertain as to which accused has given blow, which resulted in rupture of spleen and kidney. In the aforesaid background, we are in agreement with the statement of the learned counsel for the accused that conviction under section 302 cannot be sustained and at best, the accused can be convicted for the offence punishable under section 304 (Part I) read with section 149 of the Indian Penal Code. So far as the quantum of sentence, which has been stated by the learned counsel for the accused that the accused Nos.1 to 4 have by now undergone about 9 years and therefore, the said period may be considered sufficient. We feel that ends of justice CR.A/70120/2002 6/6 JUDGMENT would be met, if the sentence of the accused Nos.1 to 4 is reduced to the period already undergone. As stated above, the accused No.5 had already been released on his sentence being commuted by the State Government. 13. In the result, the appeal is partly allowed. The judgment and order of conviction of the present appellants dated 6.72002 passed by the learned Additional Sessions Judge, Fast Track Court, Junagadh in Sessions Case No. 20 of 2001 for the offence punishable under section 302 r/w 149 of the I.P. Code is altered from section 302 to section 304 (Part I) read with section 149 of the Indian Penal Code and the substantive sentence is reduced to the period already undergone. The accused Nos.1 to 4 i.e. Rabari Bhalu Sarman Kodiyatar, Rabari Kisa Sarman Kodiyatar, Rabari Bijal Sarman Kodiyatar and Rabari Lakha Sarman Kodiyatar, are ordered to be released forthwith, if not required in any other case. The conviction under sections 147, 148 and 447 of the Indian Penal Code are maintained. (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) shekhar/-