IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 201 of 1997 For Approval and Signature: HON'BLE MR.JUSTICE M.H.KADRI and HON'BLE MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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? -------------------------------------------------------------- SARDARBHAI KANTILAL MAVI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 201 of 1997 MR MJ BUDDHBHATTI for Appellant MR KT DAVE, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.H.KADRI and HON'BLE MR.JUSTICE H.H.MEHTA Date of decision: 29/08/2003 C.A.V. JUDGEMENT (Per : HON'BLE MR.JUSTICE H.H.MEHTA) 1. The appellant has, by filing this Criminal Appeal under Section 374(2) of the Criminal Procedure Code, 1973 (for short the "Cr.P.C.) challenged the correctness, legality and validity of the judgment Ex.59 dated 20.04.1995 rendered by the learned Additional Sessions Judge, Panchmahals, at Godhra, Camp at Dahod (who will be referred to hereinafter as the "learned Judge of the trial Court") in Sessions Case No.30 of 1994, by which the appellant has been convicted for the offences punishable under Sections 302 and 324 of Indian Penal Code, 1860 (for short the "I.P.C.) and is sentenced to undergo life imprisonment and to pay a fine of Rs.500/-and in default of payment of fine, to undergo further simple imprisonment (S.I.) for 10 days for an offence punishable under Section 302 of I.P.C. and no separate sentence has been inflicted for an offence punishable under Section 324 of I.P.C. The appellant has been acquitted for an offence punishable under Section 135 of the Bombay Police Act, 1951 (for short the "B.P.Act"), for which the State Government has not filed any acquittal appeal against the present appellant (accused). 2. The facts leading to this present criminal appeal can be summarized in a nutshell as follows. The complainant, P.W.3 Kasamben d/o. Somabhai Desingbhai Pasaya, is resident of village Gumali in Limkheda Taluka. As per the complaint, she is residing with her parents at village Gumali in Limkheda Taluka and studying in Standard 12th in Higher Secondary School at village Kanjeta. The complainant Kasamben has five brothers and one sister and amongst them; eldest is Laxman, second is Maniben, who is married with Sardarbhai Kantibhai Mavi (appellant/accused) of village Kanjeta, third is brother Maganbhai, fourth is Himmatbhai (victim deceased), fifth is P.W.3 Kasamben herself, sixth is Parvatbhai and seventh youngest is Kanubhai. Himmatbhai (deceased) was also studying in the School at village Kanjeta. On or about 11.10.1993 in the morning at about 8.00 A.M. Kasamben in company of Himmtbhai, P.W.10 Tejaliben and other 6 to 7 students, by travelling in a Bus, had gone to Kanjeta to appear at the examination in the Higher Secondary School at Kanjeta. They reached the school at Kanjeta at about 9.30 A.M. Maniben, who is sister of the complainant and Himmtbhai (deceased) is serving as an employee to fetch water for the school. The said Maniben is the wife of the present appellant. Before 09.10.1993, the appellant had sent one letter (chit) Ex.41 to the complainant in which abuses were stated. In reply to that letter, complainant had written one letter, Ex.40 dated 09.10.1993 addressed to the accused. The complainant handed over that letter Ex.40, which she had addressed to the appellant, to her sister Maniben asking her to give that letter to the appellant. Thereafter, the complainant and the Himmtbhai (deceased) and other students went inside the examination hall for appearing at the examination. After appearing at the examination, Kasamben in company of Himmtbhai (deceased) other students P.W.8 Sumitraben, P.W.10 Tejaliben, P.W.9 Shankarbhai, and P.W.6 Navalsingbhai proceeded on foot to reach Bus-Stand for their return journey to village Gumali. It is the case of the prosecution that when they were going on foot and reached near the Police Thana, suddenly, the appellant, who is husband of the sister of the complainant came there on the way and asked the complainant as to what she had written in the letter sent to him. Thereupon, she replied in question form to the appellant as to what she had written in the letter. Thereupon, the appellant got excited and inflicted a knife blow at the back portion near the waist of the complainant. Meanwhile, Himmtbhai (deceased) brother of the complainant intervened and asked the appellant as to why he was beating his sister. Thereupon, the appellant inflicted a knife blow on the chest of Himmtbhai (deceased) and that knife blow was landed on the left portion of the chest, and Himmtbhai (deceased) started to suffer from giddiness and then he fell down on the road. The complainant shouted addressing her brother "Himmat Himmat", but Himmat could not speak. Thereafter, complainant went to one shop of Samadbhai situated nearby the place and brought water and Himmtbhai (deceased) was made to drink the water. The Himmtbhai (deceased) drank a little water and caused some voice "ARRR" from within his throat and died at the place. Thereafter, complainant went running to Police Thana for informing about the incident. Meanwhile, the appellant ran away towards his house. One police man Pravinsinh took complainant on his scooter and brought her to Dhanpur Police Station. After reaching Dhanpur, as she was injured, P.W.11 P.S.I. Rathod sent her to Primary Health Centre of Dhanpur for treatment. After coming back from Primary Health Centre to Dhanpur Police Station, she lodged her complaint against the appellant at 16.15 hours on 11.10.1993. That complaint came to be registered as C.R.No.I-136/93 for the offences punishable under Sections 302 and 324 of I.P.C. and also under Section 135 of B.P.Act. P.W.11 P.S.I. Udesinh Ratansinh Rathod, took down the complaint of P.W.3 Kasamben and, thereafter, crime was registered. He took over the investigation of the case. First he went to the place of the incident and in the presence of panch witnesses, he held inquest of the deceased Himmatbhai Somabhai Pasaya for which he drew an inquest panchnama. Thereafter, he along with his report, a copy of inquest panchnama and death report sent deadbody of the deceased Himmtbhai, to Primary Health Centre at Dhanpur for autopsy. Thereafter, he went to the place of the incident and drew a panchnama of the scene of an offence, which was shown by witness Somabhai Desingbhai (father of the deceased Himmtbhai). From that place, he attached and seized a sample of control earth, blood stained earth for the purpose of examination and analysis under a panchnama. Thereafter, on 11/10/1993, the accused was arrested under an arrest panchnama. While arresting the accused, one knife and one letter (chit) were found from the left pocket of his pantaloon. These articles were also attached and seized by P.S.I. Rathod. Thereafter, on 12.10.1993, police constable Kalichadan Gisuram, brought articles like ; wrist watch, S.T.Bus pass, question paper, pair of slippers, haircomb etc., which were found from the deadbody of the deceased Himmtbhai, and that articles were attached and seized under a panchnama. He recorded the police statements of witnesses who were conversant with the facts of the present case. On 13.10.1993, P.W.11 P.S.I. Rathod went to Government Hospital at Devgadh-Baria, where complainant was admitted as an indoor patient and he recorded her further statement. A panchnama with regard to physical condition of Kasamben was drawn. At the time of drawing panchnama of physical condition of Kasamben, P.S.I. Rathod attached and seized clothes worn by her and one chit in pieces found from the pocket of her skirt. Thereafter, P.S.I. Rathod under a forwarding letter sent all incriminating articles, clothes of the accused and clothes of Kasamben to Forensic Science Laboratory, Surat (for short the "F.S.L.) for examination and analysis. Thereafter, on receipt of injury certificate and post-mortem notes and on completion of investigation, P.S.I. Rathod filed a charge-sheet against the accused in the Court of the learned J.M.F.C., Devgadh-Baria, Camp at Limkheda on 04.01.1994. That charge-sheet came to be registered as Criminal Case No.1 of 1994. As one of the offences viz. an offence punishable under Sections 302 of I.P.C. is exclusively triable by the Court of Sessions, the learned J.M.F.C., Devgadh-Baria, Camp at Limkheda, by passing a committal order under Section 209 of Cr.P.C. committed the said case to the Court of Sessions, Panchmahals at Godhra. On receipt of the case papers, that case came to be registered as Sessions Case No.30 of 1994 in the Court of Sessions, Panchmahals at Godhra. 3. The said Sessions Case No.30 of 1994 was assigned to the learned Judge of the trial Court, who conducted the trial, at Dahod. On the basis of material on record, the learned Judge of the trial Court framed a charge Ex.2 on 14.10.1994. That charge was read over and explained to the accused. On recording his plea, he pleaded not guilty to the charge and claimed to be tried. 4. In order to bring home the charge against the accused for which the charge Ex.2 was framed, the prosecution examined the following witnesses :- P.W.1 Dr.Kailashchandra Ramlalji Devada, Ex.31 Medical Officer, Shri J.S.Chauhan Hospital, Devgadh-Baria. P.W.2 Dr.Keshubhai Sengharam Prajapati, Ex.33 Medical Officer, Primary Health Centre, Dhanpur. P.W.3 Kasamben Somabhai Pasaya, Ex.38 (Complainant) P.W.4 Hitendrasinh Omkarsinh, (Sarpanch) Ex.42 P.W.5 Kalukhan Majidkhan Pathan, Ex.43 (Panch witness) P.W.6 Navalsinh Chhaganbhai Damor, Ex.48 (Student of Kanjeta High School) P.W.7 Budhsing Jaysing, Ex.50 (Police constable of Kanjeta Police Out Post) P.W.8 Sumitraben Chhaganbhai, Ex.51 (Student of Kanjeta School) P.W.9 Shankarbhai Bachubhai, Ex.52 (Student of Kanjeta High School) P.W.10 Tejaliben Gopsing, (Student of Ex.53 Kanjeta High School) P.W.11 Udesing Ratansing Rathod, Ex.54 (P.S.I. Dhanpura Police Station) 5. The prosecution also produced and proved the documents such as 1. Injury certificate of Kasamben Ex.32 2. P.M. Notes Ex.34 3. Inquest panchnama Ex.35 4. Panchnama of the scene of offence Ex.36 5. Panchnama of clothes put on by the Ex.37 deceased and produced by the police constable Kalichadan. 6. Complaint Ex.39 7. Letter dated 09.10.93 written by Ex.40 Kasamben to the accused. 8. Letter in pieces addressed by accused Ex.41 to Kasamben. 9. Arrest panchnama Ex.44 10. Panchnama of physical condition of Ex.45 Kasamben. 11. Map prepared by Revenue Circle Ex.46 Inspector, Dhanpur. 12. Report of F.S.L. together with report Ex.47 of serologist. 13. Vakalatnama of advocate Mr.Sajora Ex.49 14. Copy of F.I.R. sent to learned J.M.F.C. Ex.56 Devgadh-Baria. 15. Office copy of police yadi along with Ex.57 it Kasamben was sent to Medical Officer of Primary Health Centre, Dhanpur for giving her medical treatment - - to prove the case against the accused. 6. On recording the evidence of the prosecution witnesses was over, the circumstances appearing against the appellant were brought to the notice of and explained to him and whatever the replies were given by him, were recorded below his plea Ex.3 as a result of which further statement was recorded under Section 313 of Cr.P.C. The accused has admitted that he had married with Maniben sister of Kasamben and his wife Maniben is serving as employee to fetch water in Kanjeta Higher Secondary School. He has admitted that he had addressed a letter Ex.41 to which reply by letter Ex.40 was given to him by Kasamben and that letter Ex.40 was given to the sister of Kasamben for handing over it to him. From his further statement recorded under Section 313 of Cr.P.C., it appears that the defence of the accused is of complete denial of the prosecution case. He has stated that a false case has been lodged against him and he has been implicated falsely in the case. The accused has, neither examined himself nor any witness in his defence. He has not produced any documentary evidence, in his defence. 7. Thereafter, after hearing the arguments of the learned advocates for both the parties and after making examination, scrutiny and appreciation of the evidence, the learned Judge of the trial Court came to a conclusion that the accused by inflicting a knife blow on the chest of the deceased Himmtbhai committed a murder of deceased Himmtbhai. He has also come to a conclusion that accused voluntarily caused injury to the witness Kasamben by inflicting a knife blow in her waist portion. He has further come to a conclusion that the prosecution has not proved a case that the accused by keeping with him a prohibited weapon namely knife in public place committed a breach of the notification issued by the District Magistrate. On the basis of the aforesaid conclusions, he by rendering his judgment Ex.59 dated 20.04.1995 convicted the accused for the offences punishable under Sections 302 and 324 of I.P.C. and acquitted him for an offence punishable under Section 135 of B.P.Act. After hearing the accused, on the point of quantum of sentence, he inflicted sentence of life imprisonment and fine of Rs.500/- and in default of payment of fine, to undergo further S.I. for ten days for an offence punishable under Section 302 of I.P.C. Though, the learned Judge of the trial Court has convicted the accused for an offence punishable under Section 324 of I.P.C., he did not inflict a separate sentence for an offence punishable under Section 324 of I.P.C. 8. Being aggrieved against and dissatisfied with the said judgment of conviction and sentence, the accused has preferred this present Criminal Appeal. It be noted that though the learned Judge of the trial Court has acquitted the accused for an offence punishable under Section 135 of B.P. Act, the State Government has not filed any acquittal appeal for that offence. 9. We have heard Mr.J.M.Budhbhatti, the learned advocate for the appellant/accused and Mr.K.T.Dave, learned APP for the respondent - State in detail at length. Mr.Budhbhatti has taken us through the entire evidence on record and Mr.Dave has taken us through the impugned judgment. 10. At the outset of his arguments, Mr.Budhbhatti has fairly conceded and submitted that complicity of the appellant is established. He has further argued that P.W.10 Tejaliben has deposed in her examination-in-chief that on examination in the school was over, P.W.8 Sumitraben and she herself both proceeded on foot for reaching their residence and when they reached near Government fair price shop, Kasamben was following them and at that time, Sardar husband of the sister of Kasamben came from behind of Kasamben and he caught hold of the hand of Kasamben. She has deposed that when accused was beating Kasamben, the brother of Kasamben came to her for her rescue. She has further deposed that as "Maramari" (scuffle) took place, she was frightened and, therefore, she ran away from that place. By reading this evidence, Mr.Budhbhatti has argued that this witness Tejaliben has not been declared as hostile witness and, therefore, her evidence given in examination-in-chief cannot be lightly ignored. He has further argued that from the deposition of P.W.10 Tejaliben, it appears that some scuffle had taken place before actual incident took place and for that scuffle "something" must have happened. He has further argued that in view of this evidence of P.W.10 Tejaliben, the prosecution has suppressed the material facts leading to scuffle and, therefore, the facts regarding genesis of the case are withheld by the prosecution for which an adverse inference should be drawn against the prosecution. He has further argued that looking to the evidence on record, it is admitted on the part of the prosecution as well as accused that Kasamben wrote a letter Ex.40 which was a nasty letter and taste and tenor of the contents of the letter Ex.40 were so provocative that a man of reasonable prudence would certainly get excited and provoke. He has argued that looking to this admitted fact that the incident took place, as a result of letter Ex.40 received by the accused from Kasamben, accused got excited and under provocation, he committed misdeeds and, therefore, it cannot be said that it was an intention of the accused to commit a murder of deceased Himmtbhai. He has further argued that looking to the facts and circumstances of the case and more particularly, the evidence of letter Ex.40, this is a case in which the defence of accused squarely falls under Exception 4 of Section 300 of I.P.C. and, therefore, at the best the case of the prosecution can be said to have been proved for an offence punishable under Part I of Section 304 of I.P.C. In support of his submissions, Mr.Budhbhatti has cited the following two decisions. [1] Akhil Alijehangir Ali Sayyed Vs. State of Maharashtra, reported in (2003) 2 S.C.C. 708, wherein on facts and circumstances of that case, the Hon'ble Supreme Court held that the case of the prosecution was falling under Part-I of Section 304 of I.P.C. instead of Section 302 of I.P.C. [2] Hem Raj Vs. The State (Delhi Administration), reported in AIR 1990 S.C. 2252, wherein occurrence happened in a spur of moment and in heat of passion upon sudden quarrel and there was no pre-meditation. On the facts and in the circumstances of the case, the Hon'ble Supreme Court held that intention to cause death or to cause fatal injury could not be imputed against accused and ultimately accused was convicted for an offence punishable under Part II of Section 304 of I.P.C. Lastly, he has argued that the conviction of accused under Section 302 of I.P.C. requires to be altered and modified and by convicting him for an offence punishable under Part I of Section 304 of I.P.C., suitable sentence be inflicted on accused in accordance with law. He has also argued that the accused has, practically, undergone the sentence of about ten years and, therefore, he be acquitted by treating a sentence already undergone as sufficient sentence for the said offence punishable under Part I of Section 304 of I.P.C. 11. Mr.K.T.Dave, learned APP for the respondent State has supported the judgment, through out. He has argued that looking to the number of infliction of knife blows and situs of the injuries, case falls under Clause (3) of Section 300 of I.P.C. He has further argued that looking to the facts and circumstances of the case, the alleged provocation was not given by the deceased or the injured, but from the record, it appears that he provoked Kasamben by addressing letter Ex.41 to her and that is why in reply to that letter Ex.41, Kasamben wrote a letter Ex.42 to the accused. He has further argued that looking to the facts and circumstances of the case, this is not a case in which the incident occurred all of sudden. He has argued that on the contrary, the evidence speaks that there was a pre-meditation on the part of the accused, who came along with a knife to the school and he was waiting for arrival of Kasamben and Himmtbhai from the school and, therefore, necessary ingredients required to be established for bringing the case under Exception 4 of Section 300 of I.P.C. are not established on the basis of principle of ponderance of probability. In view of this, Mr.Dave has argued that the contention of Mr.Budhbhatti for bringing the case under Exception 4 of Section 300 of I.P.C. is devoid of merits and it requires to be rejected straightway. Lastly, he has argued that this appeal lacks of merits and it requires to be dismissed. 12. We have dispassionately considered the submissions of the learned advocates for both the parties. We have carefully and minutely examined the evidence on record. We have made thorough scrutiny and re-appreciation of the evidence on record to come to our own conclusions to decide this appeal. We have perused the impugned judgment, which is challenged in this appeal. We have also gone through the record and proceedings of the case, which have been called for from the trial Court. 13. As said earlier, Mr.J.M.Budhbhatti, learned advocate for the appellant has fairly conceded the facts with regard to complicity of the accused in the case. He has strenuously argued in the appeal so as to bring the case under Exception 4 of Section 300 of I.P.C. and thereby, it is his submission that the accused be convicted for an offence punishable under Part I of Section 304 of I.P.C. by treating the sentence, which has already been undergone as sufficient sentence for the said offence. 14. There is no dispute with regard to the fact that the Himmtbhai son of Somabhai Pasaya died homicidal death on 11.10.1993. Though, the learned Judge of the trial Court has not framed a specific point with regard to the nature of the death of Himmtbhai, he has discussed and dealt with the evidence of an inquest panchnama, Ex.35, medical evidence of P.W.2 Dr.Keshubhai Sengharam Prajapati, who performed the postmortem of deadbody of the deceased Himmtbhai, and prepared a P.M. Notes Ex.34. As per the evidence of P.W.2 Dr.Prajapati on 11.10.1993, when he was on duty as Medical Officer, in Primary Health Centre, Dhanpur at about 11.45 P.M., one Police Constable Pande, B-39, brought to him a deadbody of deceased Himmatbhai Somabhai Pasaya for the purpose of autopsy. He has further deposed that along with the said deadbody, a copy of inquest panchnama and police death report were also submitted to him. He has further deposed that he started to perform postmortem at 7.00 A.M. and completed it at 9.30 A.M. As per his evidence, he noticed the following external injuries, which he noted down in column No.17 of P.M. Notes Ex.34. "Single incised wound on left side of the chest just medial to left nipple. Direction - vertical in the 4th intercostal space. Size : 1 1/4" length x 1/2" breath x 2" deep upto lung (by probing). Clean cut margin oval in shape tappering both encls. As per his evidence, he noticed the following internal injuries, which he noted down in column No.20 of P.M.Notes Ex.34. THORAX :- 1. Walls, Ribs, Cartilages : Single incised wound on left side of the chest just medial to nipple in the 4th ICS. Ribs & Cartilages - Normal - right side - Normal. 2. Pleura : Punctures on left side. Right side - Normal. 3. Larynx, Trachea and : N.A.D. Bronchi. 4. Right Lung : Rt. Lung : N.A.D. wt. 1.1 oz. 5. Left Lung : Lt. Lung : Middle Lobe injured 1" X 1/4" x deep lung left peural cavity hemothorax wt. 11.5 oz. 6. Pericardium : Congested. 7. Heart : Wt.5 oz. (Chamber-Empty). Dr.Prajapati has deposed in his evidence that the aforesaid injuries were antemortem. He has also deposed, in para-10 of his deposition that the injuries sustained by the deceased Himmtbhai were, on the vital parts of the deceased Himmatbhai, as a result of which the said injuries were sufficient in ordinary course of nature to cause the death. He has opined for cause of death in para-23 of P.M.Notes, Ex.34 as follows :- "The cause of death in my opinion is - SHOCK DUE TO INTRATHORACIC HAEMORRHAGE DUE TO INCISED WOUND ON LEFT LUNG." In the cross-examination, he has deposed that it appears to him that the deceased Himmtbhai was not given any medical treatment prior to his death. He has also deposed that deceased Himmtbhai would have survived with immediate and urgent treatment, if it could be available to him. In the cross-examination, he has also deposed that a human being, who has received injuries, similar to injuries sustained by the deceased Himmtbhai, could survive for maximum period of 30 minutes. It be noted that the incident took place in the village Kanjeta. As per the evidence of P.W.5 Kasamben, immediately after the occurrence of incident, she called for water from nearby fair price shop and she made her brother to drink water, but that water came out from the portion where the deceased Himmtbhai had sustained injuries and there was a voice