CR.A/627/1999 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 627 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE 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 ? ========================================= BHUPATSINH NARSINH PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================= Appearance : MRS SHILPA R SHAH for the Appellant. MR KP RAVAL, APP, for the Respondent-State. ========================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 09/11/2006 CR.A/627/1999 2/22 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. Present appeal arises out of a judgment and order rendered by Sessions Court, Panchmahals, at Godhra, in Sessions Case No. 182 of 1997 on 16th June, 1999. The appellant along with his wife-Vimlaben was charged for having committed murder of his brother-Fatesinh Narsinh and causing injury to his brother's wife- Narmadaben Fatesinh. 2. As per the prosecution case, the appellant along with his wife-Vimlaben went to a field known as “Kyardavalu” cultivated by deceased-Fatesinh Narsinh under a mutual family arrangement, although the said field was owned by the parents of the appellant and the deceased, and started questioning the deceased as to why was he cultivating the land. The incident occurred on 22nd June, 1999, at about 8.00 A. M. The deceased explained about the arrangement. The appellant was, therefore, enraged. The appellant had in his company his daughter, who pelted a stone at the CR.A/627/1999 3/22 JUDGMENT deceased which hit him on his forehead, as a result, the deceased fell down. The appellant had bow and arrows with him and he, by pinning down the deceased to the ground by putting his foot on him, darted an arrow in the eye of the deceased. This caused injury to the eye and the brain substance of the deceased. In this transaction, Narmadaben, wife of the deceased, intervened and she was caused hurt by the appellant with the bow. Thereafter, the appellant, his wife and his daughter went away. Wife of the deceased went to the Police Station along with the deceased in an auto-rickshaw and, thereafter, went to Primary Health Centre, at Morva, where he was given primary treatment and then was referred to Civil Hospital, Godhra. The deceased was given treatment at Godhra, but, ultimately, he succumbed to the injuries and expired on 24th June, 1997, at about 9.00 P.M. In the meantime, wife of the victim-Fatesinh Narsinh had lodged an F.I.R., on the basis of which offence was registered and investigated. The police, having found sufficient evidence, laid charge sheet in the Court of learned Chief Judicial Magistrate, Panchmahals, at Godhra, who, in turn, committed the case to the Court of Sessions and Sessions case No.182 of 1997 came to be CR.A/627/1999 4/22 JUDGMENT registered. 2.1 Charge was framed against the accused persons at Exhibit 2. Both the accused pleaded not guilty to the charge and claimed to be tried. On examining the evidence led by the prosecution, the Trial Court came to a conclusion that the prosecution was successful in establishing charges for the offence of murder and hurt against the appellant and sentenced him to undergo imprisonment for life and to pay a fine of Rs.200/-, in default, to undergo rigorous imprisonment for two months for the offence of murder and imprisonment for two months and a fine of Rs.100/-, in default, to undergo rigorous imprisonment for one month for the offence of hurt. Both the sentences were ordered to run concurrently and he was to be given benefit of set off. It is against this judgment that the appellant (original accused No.1) has preferred this appeal. 2.2 The appellant's wife-Vimlaben also came to be convicted for offence punishable under Section 337 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for 17 days and CR.A/627/1999 5/22 JUDGMENT to pay a fine of Rs.50/-, in default, to undergo rigorous imprisonment for a further period of 10 days. However, it appears that no appeal is preferred by the said accused. 3. We have heard learned Advocate, Ms. Shilpa Shah, for the appellant and learned Additional Public Prosecutor, Mr. K. P. Raval. The record and proceedings are before us, which we have examined from the angles suggested by both the sides. 4. Learned Advocate, Ms. Shah, submitted that the Trial Court committed an error in not appreciating the fact that the prosecution did not approach the Court with whole truth. The genesis of the incident is not disclosed in the prosecution evidence, the sequence of events as emerging from evidence of so called eye- witnesses is doubtful and the evidence of P.W.1-Narmadaben and P.W.2-Bhavnaben that there was a family arrangement for cultivating the 'Kyardavalu' field is not supported by any other cogent evidence. On the contrary, if the evidence is seen, it appears that place of incident is in the field of the appellant and, therefore, the deceased was the aggressor which negatives the CR.A/627/1999 6/22 JUDGMENT theory of the prosecution that the appellant with his wife went to the field which was being cultivated by the deceased. She also submitted that in absence of any material to show the family arrangement that is alleged, the motive attributed to the appellant that he did not like the arrangement gets negatived. Ms. Shah submitted that, if evidence of P.W.1-Narmadaben and P.W.3- Jayantibhai Shakarabhai is seen, the time of the incident is not properly established. Their evidence is self-contradictory and inconsistent with each other. Likewise, there is discrepancy about the place of incident. Ms. Shah submitted that, if the conduct of the appellant is seen, he is said to have been arrested from the spot after about an hour from the time of incident. He has not tried to abscond, which would be a normal conduct of a murderer or an assailant. 4.1 Ms. Shah lastly submitted that there is no evidence to show that the injury which was caused to the deceased was sufficient in ordinary course of nature to cause death. 4.2 Ms. Shah submitted that, if the above defects are CR.A/627/1999 7/22 JUDGMENT considered, the cumulative effective effect would be that the prosecution case becomes doubtful. It would indicate that the prosecution has not approached the Court with whole truth and, therefore, the benefit may be given to the appellant by accepting the appeal and setting aside the judgment and order recording conviction and awarding sentence. Ms. Shah submitted that if the Court does not find that the evidence is sufficient to connect the appellant with the offence of murder, the appellant may be given benefit of lesser offence by convicting him under Section 326 or at the most Section 304 of I. P. C. as there is no evidence to show that the injury was sufficient in the ordinary course of nature to cause death. In support of this contention, Ms. Shah has relied on the decision in the case of Amu Mavji Khavas v. State of Gujarat, as reported in 1988(1) GLR 319. 5. Learned Additional Public Prosecutor, Mr. Raval, has opposed this appeal. According to him, the evidence of P.W.1- Narmadaben Fatesinh, P.W.2-Bhavnaben Fatesinh and P.W.3- Jayantibhai Shakarabhai clearly establishes the nexus between the accused and the offence. The evidence of P.W.5-Dr. Narendrabhai CR.A/627/1999 8/22 JUDGMENT Punjabhai clearly indicates that the injury caused to eye was the injury which caused death of the deceased. The injury is caused with an arrow from a very close quarter to a vital organ like eye with a weapon like arrow and with such a force that the arrow went deep into the eye-socket and affected the brain. Mr. Raval, therefore, submitted that simply because the doctor has not stated that the injury was sufficient to cause death in the ordinary course of nature, the case cannot be said to fall out of the definition of murder. He submitted that the evidence recording time is not at all inconsistent and it cannot be overlooked that minor discrepancies do creep into the evidence of rustic villagers. About the place of incident also, he submitted that the quarrel started in the 'Kyardavalu' field. Place of incident shown is adjacent to the edge of that 'Kyardavalu' field and the blood which is found in the field by the appellant is probably the place where the deceased may have fallen down after the incident. This may not be considered as sufficient to render the prosecution evidence and case so doubtful as to give benefit to the appellant. 5.1 Responding to the contention that there is no evidence CR.A/627/1999 9/22 JUDGMENT to show that the injury was sufficient in ordinary course of nature to cause death and, therefore, the conviction for murder cannot be confirmed, Mr. Raval relied on decision in the case of Brij Bhukhan and Ors. v. The State of U. P., (S) AIR 1957 SC 474 and decision in the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 and submitted that the decision relied upon by Ms. Shah in the case of Amu Mavji Khavas was rendered in the facts of the case where the Court found that the knife which was used was rusted and not sharpened for use for such purpose, that the injury was not inflicted with force and that the doctor, who examined the deceased immediately after the incident, did not feel that life of the victim was in danger. Besides the above factors, the Court also found that there was no clear evidence to establish that the injury was sufficient in ordinary course of nature to cause death and, on the cumulative effect thereof, the judgment was rendered. Mr. Raval, therefore, submitted that the said judgment cannot be applicable to the facts of the present case if the principle laid down by the Apex Court in the case of Brij Bhukhan and Virsa Singh (supra) are taken into consideration. Mr. Raval, therefore, submitted that the appeal may be dismissed. CR.A/627/1999 10/22 JUDGMENT 6. We have examined the record and proceedings and we find that the first informant, Narmadaben Fatesinh is examined at Exhibit 11 as P. W.1. She is an eye-witness to the incident. She stated in her evidence that her in-laws have four sons, the first being Lerabhai, the second being Udesinh, the third being her husband-Fatesinh and the 4th and the youngest one is Bhupatsinh. Her father-in-law had partitioned the property in four equal shares to the four sons and all of them were cultivating their respective pieces of land. Her father-in-law had retained 'Kyardavalu' field for his living. She says that her husband had given his field for cultivation to his brother-Lerabhai and, in exchange, they were cultivating 'Kyardavalu” field of the father-in-law, as it was located nearby their house. This was not liked by Bhupatsinh. On the day of the incident, her husband went with a plough to the field for ploughing. She also followed him after some time along with their daughter-Bhavna, around 8.00 A.M. While they were at the field, the appellant, his wife-Vimla and their daughter-Rekha came there where her husband was ploughing the 'Kyarduvalu” field and asked why he was ploughing the field. He was told that it was given to CR.A/627/1999 11/22 JUDGMENT them by Lerabhai. At that time, Rekha pelted a stone at the deceased, which hit him on the forehead. Thereafter, Vimla pelted a stone at her husband but the witness says that, she intervened and, therefore, the stone hit her. Then the appellant aimed an arrow at her husband and caused injury to his left eye with the blade of the arrow remaining in the eye-socket and the stick falling down. Thereafter, the appellant ran after her and hit her with the bow. Thereafter, they ran away. Then she called Sursing Bhayji, Dhula Shakara, Mansukh Lambu, etc. and took the deceased in an auto-rickshaw to Morva Police Station, where she lodged the F.I.R., which is at Exhibit 12, and the he was taken to Primary Health Centre at Morva and from there to Civil Hospital, Godhra. Her husband expired after about 36 hours while under treatment at Civil Hospital, Godhra. During cross-examination, she says that a writing was entered into regarding exchange of fields but she does not know whether all the brothers of her husband have signed the said writing. During cross-examination, she says that the deceased had started cultivating the 'Kyardavalu' field from the northern edge where the adjoining field of Mangla Natha is located and the accused persons had come there. During cross, she says that when CR.A/627/1999 12/22 JUDGMENT her husband fell down, the appellant put his leg on him and, thereafter, darted the arrow at her husband. 6.1 P.W.2-Bhavnaben, daughter of the deceased and the first informant is examined at Exhibit 13. She also reiterates about the partition and exchange of field. She has stated that her father had left for the field at about 7.30 A. M. and, thereafter, she herself and her mother were present at the 'Kyarda' Her father was ploughing the land. At that point of time, Rekha came and pelted a stone which hit her father on his forehead and he fell down. She says that her aunt-Vimla was about to pelt a stone at her father when her mother intervened, but the stone hit her mother's hand. Then her uncle (the appellant) came with a bow and arrow and darted an arrow in the left eye of her father. Then he turned on to her mother and hit her mother with the bow. On raising shouts, others came. Her father was bleeding from the eye. The blade of the arrow had sunk into the eye-ball and the stick was lying on the side. She says that, thereafter, her father was taken in a rickshaw to Morva. She also went along with them. The first information was lodged by her mother. Thereafter, the deceased was taken to CR.A/627/1999 13/22 JUDGMENT Morva Hospital and then to Civil Hospital, Godhra, where he lived for 36 hours and then succumbed to the injury. 6.1.1 The witness has been cross-examined and in cross- examination, she has remained unshaken so far as the incident is concerned. She has denied the suggestions that they went to the place after the incident and when they went to the place, the victim was lying in the 'Kyarda”. She also denies the suggestion that, at that time, the appellant, his wife and his daughter were not present. 6.2 The third eye-witness is Jayantibhai Shakarabhai, who is examined at Exhibit 14. He says that the incident occurred around 7.30 in the morning. At that time, he was at his house. He heard a hubbub from rear side of his house and, therefore, he went out and saw Rekhaben pelting stone at Fatesinh, as a result of which he fell down and, thereafter, Bhupatsinh, the present appellant, darted an arrow in the eye of the deceased. Thereafter, the appellant turned on to Narmadaben and caused hurt on her hand. This witness is also cross-examined at length. He denies the CR.A/627/1999 14/22 JUDGMENT suggestion that when he went to see as to what had happened, Fatesinh had already fallen down. He says that he went to the place along several other persons and when he reached the field, he saw Bhupatsinh lying on the ground. 7. It is clear from the evidence of the above referred three eye-witnesses that the appellant caused injury to the deceased with an arrow by darting it in his left eye. It is also evident that the appellant caused injury to Narmadaben on her arm. The evidence is consistent and unshaken. Although it is indicated that there is inconsistency about the time of the incident if the evidence of Narmadaben and Jayantibhai is perused, we do not find much substance in it for the reason that Narmadaben says that at first her husband left for the field and, thereafter, around 8 o' clock, she and her daughter went to the field and, thereafter, the appellant along with his daughter and wife came there. Jayantibhai says that the incident occurred around 7.30 in the morning. If Narmadaben says that she started from home at about 8.00 A. M. after the deceased had left for the field, it can be inferred that the deceased left around 7.30 in the morning. The incident occurred in a field. CR.A/627/1999 15/22 JUDGMENT The witnesses are villagers and it would not be justified to expect minute to minute accuracy about time from them. The occurrence cannot be disputed because of surrounding circumstances and evidence. The witnesses who have seen the incident have been tested on touchstone of cross-examination and have remained unshaken. Therefore, we cannot give much weightage to this discrepancy about exact time of the incident. It cannot outweigh the effect of other cogent evidence. 7.1 The second contention is regarding the place of incident. Reliance is placed on the Panchnama of place of incident where it is alleged that the place of incident is located in the field of Bhupatsinh Narsinh. However, if we read the Panchnama, we find that the Panchnama indicates that the place of incident is located at a distance of about 5 feet towards the east from the edge of 'Tadwala' field of Bhupatsinh Narsinh. The map of the place of incident also makes it clear. Apart from that, the evidence also indicates that, at the time of occurrence, the deceased was ploughing the 'Kyarda' field of his father, which does not belong to the appellant in any event and the say of the prosecution witnesses, CR.A/627/1999 16/22 JUDGMENT therefore, that the incident occurred in the 'Kyarda' field, which was being cultivated by him in exchange of a family understanding gets support through cogent evidence. We do not find substance in the contention that there is a discrepancy about the place of incident. 8. Now comes the question that once the involvement of the appellant in the incident is established, whether he is rightly convicted for the offence of murder. 8.1 On this question, it was contended that there is no evidence to show that the injury was sufficient in ordinary course of nature to cause death. On examining the evidence, we also find that there is no positive medical evidence that the injury was sufficient in ordinary course of nature to cause death, but there is evidence of the doctor that the injury caused to the left eye and the brain substance by darting of arrow by the appellant was the cause of death. In this regard, evidence of Dr. Naranbhai Punjabhai Patel (Exhibit 18) as well as the postmortem notes (Exhibit 19) has been led by the prosecution. CR.A/627/1999 17/22 JUDGMENT 9. When there is positive evidence that the appellant put his leg on the deceased after the deceased fell down on the ground following injury by stone and, thereafter, the appellant darted arrow in the left eye of the deceased, which went deep into the skull cavity and caused severe damage to the eye and the brain substance, which ultimately resulted into his death, there is hardly anything left to imagination, presumption or inference about the intention of the appellant. Arrow is a weapon which is darted with the help of a bow and it travels with a force to a long distance. When it is darted form such a close quarter, the force of the arrow would be greater and when it is darted from a close quarter and is darted in the eye, it cannot be said that the aim was somewhere else and when it is aimed at the eye, the necessary inference is that the arrow would penetrate deep into the eye and would cause damage not only to the eye, but also the brain, which is a vital organ and, therefore, although there is no specific medical evidence that the injury was sufficient in ordinary course of nature to cause death, an inference can be drawn that if an injury is caused to brain substance by darting an arrow with force from a close quarter, the CR.A/627/1999 18/22 JUDGMENT intention would be of causing death and not else. 10. Learned Advocate, Ms. Shah, has relied on decision in the case of Amu Mavji Khavas (supra). We have examined the judgment and we find that the judgment was rendered in facts of the case. The facts of the case were that the appellant therein inflicted one knife blow to the victim on her neck. It was found by the Court that the incident occurred without premeditation, that the blow was only one in number and that it was not inflicted with force. It was also found that the knife which was used was rusted and not sharpened for the use for any such purpose and in those sets of circumstances, Their Lordships gave benefit to the accused of lesser offence by altering the conviction from one under Section 302 to one under Section 304 Part I of I. P. C. 11. As discussed above, in the instant case, the appellant has used bow and arrow as a weapon, which cannot be used for any other purpose. Arrow is a weapon which is darted with a force with the help of a bow. The force is greater initially and gets reduced gradually as the arrow travels a distance. But when it is CR.A/627/1999 19/22 JUDGMENT darted from close quarters, as is the case here, the force would be greater. When it is darted from a close quarter, there is no scope for inferring that the target was some other part of the body and when the arrow is darted with such a force from a close quarter on a vital organ like eye, which is the only opening which can damage the brain, the intention is clear and the case cannot be equated with a case where, in a sudden quarrel, a rusted knife is used and a single blow is inflicted on neck which was not found even by the doctor to be dangerous to the life of the victim. The judgment, therefore, cannot be of any help. 11.1 However, in such cases, the prosecution has to establish the presence of bodily injury, its nature and that there was an intention to inflict that particular injury, that is to say that it was not an accidental or unintentional injury or that some other kind of injury was intended. Once that is done, it has to be established that the injuries were sufficient to cause death in ordinary course of nature. Then only the case would fall under Section 300 “thirdly” of I. P. C. It does not matter that there was no intention to cause death; it does not matter that there was no intention even to cause CR.A/627/1999 20/22 JUDGMENT an injury of a kind that is sufficient to cause death in the ordinary course of nature; and it does not matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the inquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in ordinary course of nature to cause death. (Virsa Singh v. State of Punjab, AIR 1958 SC 465). 11.2 In the case of Brij Bhukhan (supra), although the medical evidence did not show that any one of the injuries on the body of the deceased was sufficient to cause death in ordinary course of nature, it was held to be