Kshitij R. Vyas, J.
1. The convict-appellant has preferred this appeal challenging the judgment and order of conviction and sentence dated 12.7.1996 passed in Sessions Case No.337/95 by the learned Addl.City Sessions Judge, Ahmedabad City, convicting him for offences punishable under section 302 of IPC and under section 135(1) of the Bombay Police Act awarding sentence to suffer R.I. for life and to pay a fine of Rupees Five thousand. In default to undergo R.I. for one month for offence under section 302 of IPC and to pay fine of Rupees five hundred for the offence under Section 135(1) of the Bombay Police Act. In default, to undergo further R.I. for one month.
2. The case of the prosecution in brief is as under:
The accused was tried for committing murder of deceased Jayesh Chudasma (hereinafter referred to as 'the deceased'). The incident had taken place on 31.1.1995 at about 7 or 7.30 p.m. on the public road near the petrol pump in the area of Naroda in the City of Ahmedabad. The deceased and his friends have decided to eat dabeli and thus they were going towards the petrol pump. There near the Popular Hotel, the accused was coming on scooter towards their side. Suddenly, they saw the accused slipping from his scooter and falling down. On seeing this, the deceased and his friends burst into guffaw, which provoked the accused. The accused showered filthy abuses on them. Thereafter quarrel and scuffle took place between the accused on one side and the deceased and his friends on the other. The accused took out a knife and chased the deceased. The deceased fell down near a ditch. The accused started delivering knife blows to the deceased on his chest, abdomen etc. As many persons gathered there, the accused fled on his scooter. The deceased, in his injured condition, disclosed name of the accused as the person who gave knife blows to him to the persons gathered there. The relatives of the deceased took him to hospital of Dr. Atulbhai Patel. From there he was taken to the hospital of Dr.Narendra Sanghvi, who gave him primary treatment. Later he was removed to Civil Hospital where he succumbed to the injuries. It appears that Dr.Sharma, the Medical Officer of Civil Hospital, informed the Naroda Police Station about the incident. PSI, Sonavane of Naroda police station on the basis of the information conveyed to the said police station, went to the Civil Hospital, prepared inquest panchnama and recorded complaint of Gajubha Chudasma, father of the deceased. On the basis of the complaint, offence was registered as CR No 46/1995 Police Inspector, N G Patel took over the investigation from the PSI, Sonavane and started investigation thereafter. It appears that the investigation was taken over by Sr.P.I. Mr R M Solanki on 5.2.1995. From his evidence, it appears that the accused was absconding and was arrested on 23.8.1995 i.e. seven months after the incident.
3. After collecting sufficient materials against the accused, charge sheet came to be filed against the him. The learned Addl.City Sessions Judge framed charge Exh.1 against the accused for the offence punishable under section 302 of IPC and for the offence under section 135 of the Bombay Police Act. The accused pleaded not guilty and claimed to be tried. In his further statement recorded under section 313 of the Criminal Procedure Code, while denying the evidence led by the prosecution, he has pleaded his innocence by stating that he has neither committed any offence, nor has inflicted any blow and he has been falsely involved by the police.
4. The learned trial Judge, after appreciating the oral as well as documentary evidence, held that the prosecution has established the charges levelled against the accused beyond reasonable doubt and therefore, passed the order of conviction and sentence as aforesaid. Hence the present appeal.
5. We have heard Mr K J Shethna, learned Sr.Advocate appearing for the appellant-accused and Mr RC Kodekar, learned APP for the respondent-State. We have also gone through the entire evidence on record.
5.1. Learned Advocate appearing for the appellant submits that the evidence of the so-called eye witnesses is not believable inasmuch as they are highly interested witnesses. It is his submission that if the Prosecution Witnesses have taken the victim from the place of the incident to the hospitals, their clothes must have been blood-stained. However, the prosecution has failed to establish that the clothes of any of the PWs was blood stained. He also submits that looking to the injuries, possibility of more than one weapon being used cannot be ruled out, inasmuch as some injuries are caused by sharp weapons and some are caused by hard and blunt objects. By inviting our attention to the evidence of the Investigating Officer Mr Sonawane wherein he has stated that during the investigation, two names other than that of the accused were disclosed. He has also stated that in the remand application against the accused he had asked for the remand stating inter alia that after the incident, the accused had escaped on a scooter with three co-accused persons as pillion riders, is under investigation. In view of this, it is submitted that PWs are suppressing the real incident and therefore, no conviction can be based relying upon their evidence. Finally, Mr Shethna submitted that as the inquest report was earlier in time than filing of the FIR - meaning thereby, the investigation had already started and a subsequent FIR was not valid and therefore, it cannot corroborate the complaint or evidence of other PWs claiming to be the eye witnesses. The learned advocate also submits that in the inquest report no names of the assailants or the witnesses have been disclosed and, therefore, the Investigating Officer has created the evidence and falsely involved the accused. He further submits that even if the prosecution case is believed, the accused cannot be convicted for the offence under section 302 of IPC. In the alternative, he submits that the case will fall under Exception-I of section 300 of IPC and, therefore, the accused at the most can be convicted for the offence under section 304 Part I of IPC.
6. Learned APP, Mr R C Kodekar on the other hand, supported the reasonings and the conclusion reached by the learned trial Judge in toto.
6.1. To bring home the charges levelled against the accused, the prosecution has placed reliance on the evidence of PW 3 Paresh, PW 4, Bhanuprasad, PW 5 Gaurang and PW 8 Brijesh who are the friends of the deceased and were with the deceased when the incident occurred. Over and above the evidence of the aforesaid eye witnesses, reliance is also placed on the evidence of supporting witnesses, namely PW 2-Gajubha, father of the deceased and PW 9, Prithruraja Pathuba, uncle of the deceased.
7. It is an undisputed fact that the deceased died an unnatural homicidal death. PW 1, Dr.Atulbhai Patel, Exh.26 in his evidence has stated that he is running a nursing home in the name of Jeevenjyot Medical Hospital in Naroda Bazar. According to him, on 31.1.1995 at about 7.45 pm, one patient in bleeding condition was brought to his nursing home by two or three persons. He did not know the name of the injured. As the case was being medicolegal and surgical one, he advised to take the injured to the civil hospital. Dr Narendrabhai Sanghvi,PW 7, Exh.36 who is running a hospital in the name of Anand Surgical Hospital at Naroda road, in his evidence stated that some persons brought one injured person at 7.45 p.m. on 31.1.1995 and he treated the injured on account of one stab injury on the right side of the chest, one stab injury on the abdomen due to which the intestine had come out. The condition of the injured was serious. He has provided emergency drugs i.e. efcorlin injection as well as dexona and advised to take the injured to the civil hospital. He, in his cross examination, has stated that it was not possible for him to record the blood pressure of the deceased. He has stated that due to loss of blood and due to the shock, it was possible that the injured would have lost consciousness.
7.1. Dr. Ganesh Govekar, PW 13 Exh.47, who performed the post mortem of the deceased on 1.2.1995 found the following external injuries:
'Col.No.17 - External injuries: (1) One incised wound of 3 x 0.5 cm size present over right side of chest placed 14 cms. right midline & 7.5 cms. below outward to right nipple placed in the right anterior axillary line having its both angle acute.
(2) Incised wound of 0.2 x 0.1 cms present obliquely 1.5 cm above suprasternal notch in the midline and having failing of 4.5 cms. going obliquely upward.
(3) Stab wound of 3.5 x 1.0 cm transpersely placed over abdomen in the midline 3 cms. above umbilicus with its left angle obtuse and touching to midline and right angle acute having its both margins clean cut.
(4) Stab wound & fusiform shape obliquely placed over right lumber quadrant having its both margins clean cut, upper angle obtuse, lower outer angle acute placed 15 cm right to umbilicus (at the level of umbilicus) and 4.5 cm above Iliac crest.
(5) Incised wound of 1.5 x 0.5 cm placed obliquely over left lumber back, both margins clean cut and both angle acute. All injuries showing bright red odoured clotted blood of deposition at edges of wounds.' As far as internal injuries are concerned, Dr. Govekar noticed that injury no.1 is getting skin subcutaneous tissue and muscle only. Injury no.2 is getting skin subcutaneous only while injury no.5 is getting skin subcutaneous tissue and muscle only. Injury no.3 is getting skin subcutaneous tissue muscle, pentonium liver, stomach. Injury no.4 is getting skin subcutaneous tissue, muscle, pentonium and injury on anterior and posterior wall of caecom. According to the doctor, all the injuries were ante-mortem and were sufficient in ordinary course of nature to cause death. He opined that the death is due to haemorrhage and shock consequent upon the multiple stab injuries sustained. All injuries are ante-mortem and the injuries are caused by sharp edged weapon. In the cross examination of this witness, nothing substantial has been brought out by the defence. This witness has admitted in the cross examination that considering the injuries, possibility of use of more than one weapon is not ruled out.
8. Considering the medical evidence on record, it is clear beyond any manner of doubt that the deceased died unnatural homicidal death. From the evidence of Dr.Govekar, it is also clear that all the injuries are possible by sharp edged weapon i.e. knife. Since the injuries sustained by the deceased are incised wounds and stab wounds, it is possible by sharp edged substance. We see no substance in his submission that over and above the knife, weapon with hard and blunt substance was also used. Merely because Dr.Govekar has admitted in the cross examination that possibility of more than one weapon having been used, is not ruled out, will not lead us to conclude involvement of more than one accused and different weapons.
9. Gajubha Dadubha Chudasma is the complainant in the present case. He was examined as PW 2 at Exh.27. He is the father of the deceased Jayesh. According to him, the deceased at the time of the incident was 19 years of age and was studying in the first year in College. He was running a pan galla/shop opposite Krishna Cinema, Naroda in the name of Ashwin Pan Centre. According to him, at about 7.45 p.m. on 31.1.1995 when he was at his pan shop, one Brijesh Patel came to him and told that scooter of accused Chetan Battery slipped near the petrol pump and on account of this he and the deceased Jayesh exchanged abuses resulting in some scuffle and the accused had given knife blows to Jayesh. On hearing this, this witness and his brother Padhubha and others went to the spot after closing the pan shop. There he came to know that Jayesh was removed to the hospital of Dr. Atul Patel where he found his son and others. On the advice of Dr. Atul Patel, Jayesh was removed to Anand Surgicals where treatment was taken and after obtaining some treatment, his son was taken to Civil Hospital where he died. In the cross examination, he has stated that it would require two or three minutes' time from the petrol pump to reach his shop. He has admitted that he has stated the fact of accused having given knife blow to the deceased. Even though he has stated the said fact to the police, according to him, he is not aware of the inquest report prepared by the police as he was made to sit outside. His statement was recorded by the Head Constable at 4.30 p.m. According to him, the statement of other accused persons were also recorded.
10. Brijesh Patel, PW 8, Exh.37 has supported the complainant by stating that after the incident he had gone to the pan shop of Gajubha to inform about the incident. He, in his evidence has narrated the entire incident. According to him, he met Gaurang Chandubhai Patel, Pareshsingh and Jayesh at about 7.30 p.m. on 31.1.1995 at the panshop of Paresh and from there they decided to go to a lari near Popular Hotel selling food item Dabeli and when they reached near the petrol pump, they saw the accused riding on a scooter slipping and falling down. On seeing this, they burst into guffaw. The accused gave filthy abuses as they laughed. When deceased Jayesh tried to intervene, asked him not to abuse, both had a scuffle followed by exchange of hot words. He, Gaurang, Paresh and Jayesh tried to intervene. However, the accused took out knife and chased Jayesh. Jayesh fell down near a ditch, whereupon the accused delivered repeated knife blows to him. Immediately after this, he had gone to inform the father of the deceased. Gaurang also followed him. Thereafter, he and the uncle of the deceased had gone to the scene of the offence and found Jayesh lying there profusely bleeding. Thus he was removed to the hospital. He identified the accused sitting in the court.
11. In his cross examination, he has repeated that the accused was famous and known as Chetan Battery and, therefore, he knew him. He also knew him because his father was serving in the school. He has also admitted that over and above the scuffle, the deceased and the accused had exchanged abuses continuously for about 3 to 4 minutes. He has denied the suggestion that the accused was given blows while he was running. He has denied the suggestion that he has not witnessed the incident of beating. He has not given the details about the blows given on which portion of the body. He has also not given any details regarding blows given to the accused. He has admitted the fact that his statement was recorded on the night of the incident. Gaurang, PW 5 Exh.32 has given similar version in his evidence. He has confirmed presence of Paresh and Brijesh at the time of the incident. As he has given identical version given by PW 8 Brijesh, it is not necessary to renarrate the same. In his cross examination he has specifically denied the suggestion that there were two other persons along with the accused on the scooter. He has clearly stated that it was only the accused who was driving the scooter. On seeing the accused inflicting blows to deceased Jayesh, he had gone to the shop of Gajubha to inform him about the incident. He has admitted the fact that he has not witnessed the incident. He has, however, repeated that in his police statement, he has stated that so many persons including Pathubha, uncle of Jayesh and others had rushed towards the spot and, therefore, he saw Jayesh in pool of blood after sustaining knife blows. Paresh, PW 3 Exh.30 in his evidence has confirmed the fact that on the date in question, he was present at the shop of Gajubha wherefrom he, Brijesh, Gaurang and Jayesh had decided to go for food item Dabeli and when they were walking towards the petrol pump, the accused riding a scooter came from the side of Popular Hotel and suddenly throwing him off-balance. On this, they all burst into guffaw. The accused, after keeping the scooter on stand, came and asked why they laughed and started abusing them. When Jayesh protested against the abuse, the accused got excited and started beating him and consequently a scuffle had taken place. Thereafter they all started running and the accused chased them with open knife. The deceased was apprehended near a ditch and was inflicted blows with knife. Thereafter, the accused fled away on his scooter. Thereafter Brijesh and Gaurang had gone to the shop of Gajubha to inform him. Pathubha and others also reached the place. Jayesh who was in injured condition informed that Chetan battery had inflicted knife blows upon him. Uncle of Jayesh had taken the deceased to hospital. He had returned home at 8.30 p.m. and again had gone to Civil Hospital where police had recorded his statement.
12. In the cross examination, he has admitted that hand-to-hand fight had taken place between Jayesh and accused. According to him, during the hand-to-hand fight and scuffle, he, Brijesh and Gaurang also intervened. He has denied the suggestion that over and above the accused, other two persons were also there on the scooter. He has admitted that he was not in a position to say which part of the body received the first knife blow. According to him, he knew the accused as he used to see him at the pan shop during Navratri.
12.1. Bhanuprasad, PW 4 Exh.31 in his evidence, has stated that on the day in question, he after completing his work at the Golden Triangle shopping centre, while returning home, saw the accused inflicting blows to a boy. He, therefore, ran to the spot and on seeing him, the accused ran away. In the meanwhile, uncle and other relatives of the deceased had come. According to him, he knew Jayesh. Jayesh was conscious and he told that when the scooter of the accused was slipped near the petrol pump, they all laughed and the accused abused them and had also given them fist blows and, therefore, with a view to save his life, he started running. The accused after causing injuries to Jayesh, ran away. This witness has admitted the fact that he has witnessed the incident and has identified the accused.
13. In his cross examination, he has admitted the fact that Gajubha is his old friend. He had remained with him after the incident. He has admitted the fact that he saw the incident from Golden Triangle Shopping Centre and identified the accused but he could not identify the deceased. He has given reason for the same, i.e. he was on the opposite side of the road and the deceased, at that time was lying on the ground. He has stated that there was pool of blood on the road and he remained with the deceased in the hospital till 2'0 clock in the night. His statement was also recorded at the hospital at 1.30 a.m. According to him, he did not know Paresh, Gaurang and Brijesh. However, they were introduced to him subsequently in the hospital.
14. Having closely considered the evidence of the above prosecution witnesses, it clearly appears that they are narrating the entire incident in a very natural and realistic manner. Nothing substantial has been brought out by the defence to doubt their presence at the time of the incident. PWs 3, 5 and 8 being friends of the deceased had gone to eat a particular food stuff on the day in question and thereafter, occurrence of the incident and their subsequent conduct all appear to be natural and truthful. The so-called omissions or contradictions which have been brought out by the defence is not material which would make their evidence unbelievable. There is no reason for them to falsely involve the accused. Likewise, the evidence of PW 4 Bhanuprasad also appears to be quite trustworthy. Merely because he happened to be the friend of the informant Gajubha that fact by itself will not be a ground to treat him as an interested witness. He, in his evidence has stated that injured Jayesh had not disclosed the fact of accused having causing knife injuries to him. This fact also gets support from the evidence of Padhubha, PW 9 Exh.40. Padhubha, in his evidence also stated that he was informed about the incident by Brijesh. Thus, the presence of the eye witness at the time of the incident also gets corroboration from other supporting witnesses. Evidence of all the PWs totally rule out the presence of more than one accused as they have clearly involved the accused who was on the scooter, in the incident. It is true that Investigating Officer Sonawane, PW 12 at Exh.45, in his evidence, has admitted the involvement of two other accused along with the accused in the offence as noticed at the time of investigation which is clear from the remand application filed by him.
15. From the original record we have seen the remand application dated 23.8.1995 filed by Mr R R Solanki, P.I. of Naroda police station. On perusal of the same, it appears that on four grounds, remand of the present accused was sought. Grounds No.2 and 4 in the said application suggest that there were other accused also. However, on a close reading of those two grounds, it appears that other accused entered the scene after the incident. Ground no.2 states who had taken away the accused on scooter after the incident and enquiry regarding their names and scooter is required to be made. Ground no.4 states who were the other accused who fled on scooter along with the accused after the incident. Thus, it is clear that it was the accused alone who had come on scooter on the day in question and was involved in the offence. The said fact is clear from the evidence of the eye witnesses. We accordingly find no substance in the submissions advanced before us that there were other co-accused also along with the present accused at the place of the incident and that all of them escaped on scooter after the incident. If we rule out the presence of other co-accused, the answer given by Dr.Govekar at Exh.47 to the suggestion put to him in the cross examination; that looking to the injuries, possibility of more than one weapon having been used, cannot be ruled out and thus it loses all its importance. In any case, he has positively opined in his evidence that all the injuries are possible with sharp cutting weapon.
16. It is true that from the evidence on record, it is clear that the deceased was profusely bleeding and yet no blood was found on the spot. However, that fact itself will not lead us to conclude that the incident was not witnessed by the prosecution witnesses. It is to be noted that the incident had taken place in the evening time on a busy public road. The scene of panchnama Exh.10 at page 69 commenced at 8.30 a.m. and was completed by 9 a.m. on 1.2.1995 i.e. after almost 12 hours of the incident. By that time there is bound to be some movement of passers-by as well as vehicular traffic through the place of incident and thereafter the earth collected from the scene of offences as per the report of Forensic Science Laboratory does not show the blood stains. Thus, taking into consideration all aspects of the matter, we are clearly of the opinion that the prosecution has established through prosecution witnesses no.3,4,5 and 8 the involvement of the accused in the offence beyond all reasonable doubt. In our opinion, the evidence of those prosecution witnesses is natural, credible and reliable. The accused being the resident of the said area, he is known to those witnesses and therefore, they knew him and they also identified him in the court. Barring few minor discrepancies in the evidence of the above prosecution witnesses, they have remained consistent in their evidence. The so-called contradictions and omissions in their evidence as tried to suggest by the learned Advocate for the appellant, are too trifle and they have no reason to suggest false involvement of the accused and therefore, they are required to be ignored. In view of the above discussions, we are in total agreement with the findings recorded by the learned trial Judge that the accused has assaulted the deceased with knife causing serious injuries resulting in the untimely death of the deceased.
17. The next question which arises for our consideration is, what offence the accused has committed. Learned APP Mr Kodekar, while supporting the reasonings of the learned trial Judge submitted that the fact of the accused chasing the deceased with open knife and inflicting six blows on vital parts of the body is sufficient to hold him guilty for offence punishable under section 302 of IPC. On the other hand, Mr Shethna, after inviting our attention to Exception 1 of section 300 of IPC, has submitted that the case on hand, even though a case of culpable homicide, is not a murder. The circumstances pointed out by the learned Advocate to substantiate his submission prompted us to examine the case from that angle.
17.1. The law is that burden of proving such an exception is on the accused. Exception 1 of section 300 provides that culpable homicide is not a murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, causes death of a person who gave provocation or causes death of any other person by mistake or accident. The said exception is subject to the three proviso, since they are not necessary to decide the case on hand and, therefore, it is not necessary for us to renarrate or to have further discussion. Therefore, the question which arises for our consideration is as to whether the case on hand is a case where the accused lost power of self-control by any grave and sudden provocation and committed death of the deceased who gave him the provocation. On a close scrutiny of these proviso, we are of the view that the accused can get the benefit of Exception 1 of section 300. On visualising the incident, it appears that the incident happened all of a sudden. The deceased with his friends saw the accused riding a scooter. His scooter slipped and he fell off from the scooter. Instead of helping the scooterist, the deceased and his friends burst into guffaw and rediculed him. On this, the accused questioned as to why they laughed. From the evidence on record, it appears that the accused gave them filthy abuses and thereafter started quarrelling. However, the evidence is also to the effect that a scuffle had taken place between the deceased and the accused which continued for three to four minutes. The prosecution witnesses also tried to intervene though evidence is silent whether there was any physical fight between the deceased and the accused. However, possibility of the accused having been beaten at the hands of the deceased and his friends, cannot be ruled out. It should be noted that none of the PWs has alleged that when the scuffle was on, the accused took out the knife from his pocket. Thus, from the aforesaid facts, it clearly appears that the deceased and his friends initially provoked the accused by bursting into guffaw at him when his scooter slipped and he fell down. The quarrel and the scuffle and may be the beating was sufficient to deprive him of the power of self-control. He, thereafter took out the knife and chased the deceased and in that process the deceased fell down near a ditch. Therefore, it became easy for the accused to assault the deceased. By that time, the accused lost all powers to think rationally or to control himself and started inflicting indiscriminate blows with the knife. He could have given just one blow on a non-vital part of the body and could have stopped. He did not do so but it appears in a bit of rage, he lost the power of self-control. Without thinking whether it is right or wrong, he gave as many as six blows and that too on vital parts like chest, abdomen etc. The aforesaid facts show that the provocation had blown directly from the victim. Under these circumstances, the appellant can be granted benefit of exception 1 of section 300 of IPC.
18. Considering the matter from this angle, we do feel that accused though committed the crime, the same is not a murder. The act committed by the accused which has resulted into death of the deceased, even though with the intention of causing death, in our opinion, at the most be construed as culpable homicide not amounting to murder and therefore, he is liable to be convicted for the offence punishable under section 304 Part I of IPC.
19. For the foregoing reasons, this appeal is partly allowed. The impugned judgment and order of conviction dated 12.7.1996 passed by the learned Addl.City Sessions Judge, Ahmedabad City in Sessions Case No.337/95 convicting the appellant for the offence punishable under section 302 of IPC is altered to conviction under section 304 Part I of IPC. However, the order of imposition of fine ordered by the trial court is retained, even for the offence under section 304 Part I of IPC.
From the jail record of the convict, it appears that by this time, he has already undergone 10 years, 5 months and 5 days of actual imprisonment. We accordingly award the sentence to suffer imprisonment for period already undergone by the accused. The accused is present in court, as we have released him on temporary bail. On or before expiry of the bail period, he is directed to formally surrender to jail. Thereafter, he is ordered to be released forthwith, if not required in any other offence. Muddamal is ordered to be disposed of as per direction of the trial court.