Cav Judgment:
Anant S. Dave, J.
1. Criminal Appeal No.1185 of 2011 is filed by the State of Gujarat-original complainantappellant herein under Section 377 of the Code of Criminal Procedure, 1973 (for short the Code) for enhancement of sentence imposed upon the accused persons by learned Additional Sessions Judge, Amreli on 29/07/2011 in Sessions Case NO.92 of 2008; whereas Criminal Appeal No.1435 of 2011 is filed by the appellants (original accused Nos.1 and 2) under Section 374(2) of the Code against the very judgment and order of conviction and sentence.
2. The original accused persons were charged and tried for the offences punishable under Sections 143, 147, 148, 302, 307, 323 and 324 read with Section 149 of the Indian Penal Code (for short IPC) and under Section 135 of the Bombay Police Act (for short BP Act) wherein at the end of trial, the learned Judge was pleased to acquit them for the offence under Sections 143, 147 and 148 of the IPC. However, the accused persons were sentenced thus: 2.1 The original accused No.1Viram Gela was convicted for the offence punishable under Section 304 PartI of the IPC and sentenced to undergo ten years RI with a fine of Rs.50,000/, in default, to undergo one moth SI. He was also convicted for offence under Section 135 of the B P Act and sentenced to undergo one month SI with a fine of Rs.100/,in default, to undergo further five days SI.
2.2. The original accused No.2Bhola Jetha was convicted for offence punishable under Section 304 PartI of the IPC and sentenced to undergo ten years RI with a fine of RS.50,000/, in default, to undergo one month SI. He was also convicted for the offence punishable under Section 324 of the IPC and sentenced to undergo two years RI with a fine of Rs.10,000/, in default, to undergo three months SI. He was convicted for the offence punishable under Section 135 of the B P Act and sentenced to undergo one month SI with a fine of Rs.100/, in default, to undergo further five days SI.
2.3. The original accused No.3Nanu Raja was convicted for the offence punishable under Section 308 of the IPC and sentenced to undergo four years RI with a fine Rs.25,000/, in default, to undergo six months SI. He was also was convicted for the offence punishable under Section 135 of the B P Act and sentenced to undergo one month SI with a fine of Rs.100/, in default, to undergo further five days SI. 2.4 The original accused No.4Lala Viha was convicted for the offence punishable under Section 308 of the IPC and sentenced to undergo four years RI with a fine Rs.25,000/, in default, to undergo six months SI. He was also convicted for the offence punishable under Section 325 of the IPC and sentenced to undergo three years RI with a fine of Rs.20,000/, in default, to undergo three months SI. He was also convicted for the offence punishable under Section 323 of the IPC and sentenced to undergo six months SI with a fine of Rs.1,000/, in default, to undergo one month SI. He was also was convicted for the offence punishable under Section 135 of the BP Act and sentenced to undergo one month SI with a fine of Rs.100/, in default, to undergo further five days SI. 2.5 The original accused No.5Oghad Natha was convicted for the offence punishable under Section 325 of the IPC and sentenced to undergo three years RI with a fine of Rs.20,000/, in default, to undergo four months SI. He was also convicted for the offence punishable under Section 323 of the IPC and sentenced to undergo one year SI with a fine of Rs.1,000/, in default, to undergo one month SI. He was also was convicted for the offence punishable under Section 135 of the BP Act and sentenced to undergo one month SI with a fine of Rs.100/, in default, to undergo further five days SI. All the sentences are ordered to be run concurrently with a benefit of set of.
3. The case of the prosecution, in brief, is that complainant-Labhuben Bijalbhai Bharvad is a resident of Village Chhanvad and is doing agricultural work. That, on 08/08/2008 at about 4:00 O'clock in the afternoon, the complainant alongwith his mother Jomiben and her sister Dayaben had gone to agricultural field for the purpose of cultivation. At that time, father of complainant., Bijalbhai had come to that field and, at the same time, one Oghadbhai Nathabhaioriginal accused No.5, who happens to be the uncle of complainant, had come there with sheeps and goats having armed with stick in his hand. Since the sheeps and goats of accused No.5 started damaging the embankment of field of complainant, the father of complainant asked him to take back the sheeps by saying that, "Tara Gheta Hetha Utar, Paalo Vinkhay Jaay Chey". However, the accused No.5 did not pay any heed to the request of father of complainant and, in turn, rudely answered him by saying that, "Gheta Niche Nahi Utre, Tarathi Thay te Kari Leje". There was also hot exchanges between the father of complainant and accused No.5. Thereafter, accused No.5 made a phone call from his mobile phone and called some persons. In the meanwhile, the complainant, her father, mother and sister had started for house towards the way Bhurakhiya and while they were reached near Nursery, they found original accused No.1Viram Gelaarmed armed with axe, original accused No.2Bhola Jetha armed with Dhariya, original accused No.3Nanu Raja armed with iron rod, deceased accused-Nanku Gela armed with sickle and original accused No.4Lalabhai Vihabhai armed with Badiya were coming to the complainant and her father from village Chanvad. They all started quarreling with the father of the complainant. At the same time, brother of the complainant-Bhupatbhai and uncle of the complainant Rana Natha and Bhikhabhai Nathabhai had also rushed for the complainant and intervened to rescue the complainant and her father. However, original accused No.1Viram Gela gave axe blow on head of father of complainant, original accused No.2Bhola Jetha gave Dhariya blow on head of father of complainant, accusedNanku Gela gave sickle blow at the stomach of father of complainant. Therefore, Bhikha Nathauncle of complainant intervened to rescue the father of complainant. However, at the same time, accused No.1- Viram Gela gave axe blow on the head of Bhikha Natha. Therefore, another uncle of the complainant Ranabhai Nathabhai tried to rescue the father of complainant and Bhikha Natha. However, the original accused No.3 Nanu Raja gave a blow with iron rod and accused Lala Viha gave a stick blow on the head of Ranabhai. Therefore, brother of complainantBhupatbhai intervened to rescue his father and uncle, however the uncle of complainant viz., accusedOghadbhai and accused Lila Viha gave stick blows to Bhupatbhai. When all the accused were beating the father, brother and uncle of the complainant, accused Oghadbhai was instigating other accused by saying that, "Maro Maro Patavi Dyo". At the same time, father of complainant fell down on the grass, Bhikhabhaiuncle of the complainant fell down on side of the road. Therefore, the complainant and her mother also intervened, however, the accused No.5-Oghadbhai and accused Lala Viha gave stick blows, as also, fist and kick blows to the complainant and her mother. Therefore, the complainant, her mother and her sister Dayaben started shouting. Thus, the accused persons leaving dhariya and sickle fled away towards village Chanvad by causing serious injuries to father and uncle of the complainant and thereafter they were taken to hospital where both the uncle and father of the complainant were succumbed to the injuries.
4. Upon investigation, there being evidence against the convict, chargesheet was submitted and ultimately the case being triable by the Court of Sessions, was committed to it and convict having pleaded not guilty to the charge (Exhibit6), they were tried.
5. Upon oral as well as documentary evidence examined by learned trial Judge, the order of conviction and sentence, as stated in earlier paragraphs in each of the accused was passed, but basically and substantially the case of the prosecution rest on oral evidence of PW 6-Bhopabhai Bijalbhai, PW 7-Labhuben Bijalbhai, daughter and complainant of deceased and PW 8-Jomiben, wife of deceasedBijal at Exhibit62, 67 and 69 respectively and also PW 1-Dr.Hashmukh Keshavbhai Gondaliya (Exhibit22), PW 2-Dr.Pradipkumar Arjunprasad Sinha (Exhibit27) and Investigating Officer.
6. The prosecution pressed into service the below mentioned evidence oral as well as documentary:
| Sr. No. | Name of Documents | Exhibit |
| 1 | Charge | 6 |
| 2 | OPD Case papers | 25 |
| 3 | PW 2 Dr.Pradipkumar Arjunprasad Sinha | 27 |
| 4 | Postmortem report of Bhikhabhai Nathabhai Dhrangiya | 31 |
| 5 | Postmortem report of Bijalbhai Nathabhai Dhrangiya | 32 |
| 6 | OPD Case papers of Ranabhai Nathabhai | 33 |
| 7 | OPD Case papers of Bhikhabhai Nathabhai | 34 |
| 8 | OPD Case papers of Bijalbhai Nathabhai | 35 |
| 9 | Postmortem note of Bijalbhai Nathabhai | 36 |
| 10 | Postmortem note of Bhikhabhai Nathabhai | 37 |
| 11 | OPD Case papers of Labhuben Dhrangiya | 47 |
| 12 | OPD Case papers of Jomben Bijalbhai Dhrangiya | 48 |
| 13 | Mark 13/25 medical certificate | 49 |
| 14 | Mark 13/26 medical certificate | 50 |
| 15 | Deposition of PW 4 Atulbhai Kantibhai Devmurari | 51 |
| 16 | Mark 13/17 medical certificate | 52 |
| 17 | Deposition of PW 5 Manish Mahidasbhai Chavda | 56 |
| 18 | Mark 13/80 Certificate of Oghadbhai Nathabhai | 57 |
| 19 | Report dated 09/08/2008 of Oghadbhai Nathabhai of Indoor Case No.13/2004 | 60 |
| 20 | Deposition of PW 6Bhopabhai Bijalbhai | 62 |
| 21 | Deposition of PW 7Labhuben Bijalbhai | 67 |
| 22 | Mark 13/3 original complaint. | 68 |
| 23 | Deposition of PW 8-Jomiben Bijalbhai | 69 |
| 24 | Deposition of PW 10-Mangabhai Govindbhai | 72 |
| 25 | Inquest Panchnama | 73 |
| 26 | Deposition of PW 13 Budhabhai Nathabhai | 82 |
| 27 | Deposition of PW 14 Ranabhai Rajabhai | 84 |
| 28 | FSL Report | 105 |
| 29 | Receipt of handing over of dead body. | 106 |
| 30 | Muddamal sent for analysis | 107 |
| 31 | Receipt of muddamal sent for analysis | 108 |
| 32 | Report of analysis | 109 |
| 33 | Report of Chemical analysis | 110 |
| 34 | Serological report | 111 |
| 35 | Copy of FIR | 112 |
8. In the backdrop of two FIR lodged viz., No.78 of 2008 by Labhubendaughter of deceased-Bijal Natha and FIR No.79 of 2008 lodged by Oghadbhai Nathabhai with Lathi Police Station, Dist: Amreli for the incidences, which took place on the same day viz., on 08/08/2008, in the evening hours of 05:30 to 06:00 p.m., case of the prosecution needs to be considered in light of defence raised. The quarrel had a genesis in the incidence when Oghad Natha had gone to graze his animals viz., sheeps and goats on side of the field of Bijal Natha, his real brother. Bijal Natha, his wifeJomiben and two daughters viz., Labhuben- complainant and another daughterDayaben were present. As per complainantLabhuben, while they were weeding out grass, Bijal Natha asked Oghad Natha not to graze sheeps and goats nearby the field so as to destroy the embankment and verbal abuses had taken place and later on accused No.5Oghad Natha made a phone call from his mobile and called some persons. Meanwhile, the complainant alongwith her father, mother and sister started leaving the field towards their house and on way to Bhurakhiya and nearby nursery, they found A1 with axe, A2 with Dhariya, A3 with iron rod, A4 with sickle, A5 with badiya and started quarreling with father of the complainant and at the same time, even brother of the complainant- Bhopabhai and uncle- Rana Natha and Bhikha Natha also rushed to the place, tried to intervene and rescue the complainant and her father, but A1Viram inflicted a blow of axe on head of Bijal Natha, father of the complainant, A2Bhola Natha gave a blow of Dhariya on head of the father of the complainant and then deceased accusedNanku gave a sickle blow on abdomen of father of the complainant. It is to be noted that said Nanku died natural death before the chargesheet was filed by the Police. Even, Bhikha Natha, uncle of the complainant, who intervened and rescued father of the complainant was also given a blow of axe by Viram Gela, who also succumbed to the injuries later on. In the scuffle, even another uncle of complainant also received injuries and A3, A4 and A5 inflicted blow of iron rods and stick on Labhuben and Jomiben. 8.1 As against above, case of A5Oghad Natha, who got FIR No.79 of 2008 registered with Lathi Police Station, complained about presence of Bijal Natha, his wife and two daughters and initial verbal exchanges upon grazing of sheeps and goats nearby field of Bijal Natha who also narrated that he was severely beaten by Bhikha Natha while he was leaving the field and when he was on the way to his house, other persons came there and again quarrel took place in which injuries were received by Bijal Natha and Bhikha Natha for which he had no knowledge. Oghad Natha received initial treatment at Government Hospital and later on, he was shifted to Civil Hospital, Amreli for which the certificates of injury were issued and it was so deposed by the Doctor giving treatment to Oghad Natha. 8.2 The case of the prosecution is believed by learned trial Judge on the strength of deposition of PW 1, 2, 6, 7 and 8. Ocular as well as medico legal version established the case of prosecution. Deposition of Dr.Pradip, who carried out autopsy on dead body of Bijal Natha and Bhikha Natha, almost confirmed the documentary evidence viz., the postmortem reports. However, injuries on the body of a person viz., A5 Oghad remained unexplained by the prosecution. It also created doubt about correctness of version of the complainant and her deposition. Non investigation, so deposed by Investigating Officer about injuries of Oghad and not even recording of statement of witnesses present at the scene of offence viz., Labhuben or Jomiben. ASummary was filed pursuant to investigation for FIR No.79 of 2008 lodged by Oghad on the ground that Bhikha Natha only accused mentioned in the FIR died in the incidence. But the fact remains that no detailed investigation was carried out.
9. Mr.Vaibhav Vyas, learned Counsel for the appellants - original accused Nos.1 and 2 while submitting case on their behalf relied upon oral as well as documentary evidence appreciated by learned Judge and findings and reasonings on the basis of which conclusions were drawn that case of the prosecution at the most can be brought within four corners of partI of Section 304 of the IPC, but according to him, even if evidence so believed by learned Judge is appreciated, it was not a case of imposing a sentence of ten years; inasmuch as,; the quarrel had taken place while the accused tried to intervene for which they had no intention to cause murder. At the same time, their unlawful assembly is not believed by learned Judge.
10. As against above, learned APP submitted that considering the nature of crime and homicidal death of two persons with serious injuries, a case is made out to enhance the sentence. Not only against A1 and A2, also against A3, and A4 who are convicted and sentenced for offence under Section 308 of the Indian Penal Code and sentenced to undergo four years of RI with fine of Rs.25,000/, in default, to undergo six months SI. A5 also convicted under Section 325 of the IPC and sentenced to undergo three years RI with a fine of Rs.20,000/, in default, to undergo four months SI.
11. Having considered rival submissions made by learned APP and the defence Counsel and on perusal of entire evidence in the context of judgment and order of conviction under challenge, we are of view that one of the important facets in the entire evidence viz., FIR bearing No.79 of 2008 lodged by Oghad Natha accused No.5 revealed that, while he was grazing cattle, wife and daughters of Bijalbhai asked him to remove grazing cattle and started quarreling and ran after him. Meanwhile, other brothers of accused No.5, as the accused No.5 and Bijalbhai were brothers, came on the way, while accused No.5 was returning to his residence and started abusing him and inflicted stick blow on various parts of body including on parietal region of head. Five injuries were noticed and certified by Dr.Manish Mahidasbhai Chavda, PW 5 (Exhibit56). Surprisingly, all the injuries for which treatment was given and Oghad Natha was advised to take proper treatment at Civil Hospital, Amreli, but at the end of investigation "A"summary was filed since Bhikha Natha, accused and a deceased in a cross case was not available for investigation, upon his death. That it is the duty of the prosecution to explain injuries on accused, but in the facts of this case, not only the investigation was discontinued, but even injuries were not explained in the trial. Thus, case of the prosecution becomes vulnerable to the extent and involvement of Ogahd Nathaorg. accused No.5 that all three witnesses viz., PW 6-Bhopabhai Bijalbhai, PW 7- Labhuben Bijalbhai, and PW 8-Jomiben Bijalbhai, though asked about injuries on Oghad Natha refused to explain such injuries which do not rule out over implications of all accused. Under the circumstances, exaggeration and implication of accused No.5 in the crime under Section 325 of the IPC cannot be ruled out and testimony of all three witnesses to that extent suffer from exaggeration, improvement and omissions in their statements made before the Police and as witnesses. However, no appeal is preferred by A5 against his conviction and sentence under Section 325 of the IPC.
11.1. In the case of State of Gujarat vs. Bai Fatima reported in (1975) 2 SCC 7, the Apex Court in paras 17 and 20 held as under:
"17. In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:
[1] That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of selfdefence.
[2] It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
[3] It does not affect the prosecution case at all.
Question is in which category the present case falls?
20. In material particulars the evidence of the three eyewitnesses as also the evidence of dyeing declaration of the deceased before PW Gulamnabi is so convincing and natural that no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of respondent No.1. The prosecution case is not shaken at all on that account. In our judgment this is a case which falls in the third category as enumerated above. In agreement with the trial Court, we hold that the guilt of both the respondents have been proved beyond any reasonable doubt".
On overall appreciation of evidence viz. nature of injuries reflect only a blow of axe and dharia for which intention is reflected. However, those injuries in ordinary course of nature may not be sufficient to cause death, but likely to cause death of the injured. It is also born out from the record that the scuffle had taken place without any premeditation and it was sudden and due to grave provocation.
Considering the facts and circumstances of the case on hand, it squarely falls under category [3] set out in para 17 by the Apex Court in the case of Bai Fatima [supra] i.e "It does not affect the prosecution case at all"
11.2. Other circumstances and involvement of original accused Nos.1 and 2 in the offence under Section 302 of IPC, etc., clear roles surface on the record viz., Viram Gelaorg. accused No.1 inflicted axe blow on head of Bijal Natha and even Bhola Jetha org. accused No.2 also inflicted blow of Dhariya on the head of Bijal Natha and Nanku Gela gave a sickle blow and, as a result of which he died and was so certified by Medical Officer, PW 2 and PW 2 deposing about injuries and likelihood of inflicting such injuries by the weapons of assault so described in the medical certificate and deposed by eyewitnesses. The above set of witnesses also deposed about Viram Gela org. accused No.1 inflicting injuries by axe on Bhikha Natha and another accusedBhola Jethaorg. accused No.2 inflicted a dhariya blow on Bhikha Natha to which he succumbed. It is established by prosecution that original accused Nos.1 and 2 committed the crime for which they were charged, which stood established by ocular as well as medico legal evidence for which sufficient reasons are given by the trial Court for convicting and sentencing the accused. No doubt, two persons were killed in a scuffle, which took place due to dispute about grazing of cattle and accused, as well as, the deceased and victims were close relatives, four real brothers viz: two deceased, one injured who refused to depose and Oghad Natha, org. accused No.5, but learned trial Judge has rightly held that the scuffle had taken place without any premeditation and it was sudden and due to grave provocation which attracted Exception 1 and 4 of Section 300 of IPC and original accused Nos.1 and 2 are convicted under Section 304I of the IPC for ten years RI with fine of Rs.50,000/, in default, one year RI. Conviction of two accused viz., original accused Nos.3 and 4 other than accused Nos.1 and 2 for a period of four years RI and fine of Rs.25,000/, in default, SI of six months under Section 308 of the IPC do not require to be disturbed in any manner. Original accused No.5 is convicted and sentenced for three years RI with fine of Rs.20,000/, in default, SI of four months for Section 325 of the IPC, as also convicted and sentenced for one year SI with fine of Rs.1,000/, in default, one month SI do not require to be disturbed in exercise of powers under Section 377 of the Code of Criminal Procedure Code, 1973, appears to be adequate sentence and accordingly, we reject the Criminal Appeal No.1185 of 2011 filed by the State of Gujarat/original complainant for enhancement of the sentence.
11.3. At the same time, in view of unexplained injuries on Oghad Nathaorg. accused No.5 and testimonies of injured eyewitnesses visavis medical evidence, after separation of grain from the chaff, believable testimonies, Criminal Appeal No.1435 of 2011 filed by the original accused Nos.1 and 2 for setting aside the conviction as above also do not warrant any interference as it is ordered by the trial Court under Section 304I of IPC and not under Section 302 of the IPC.
12. In the result, both the appeals fail and are accordingly dismissed.