Ajmelbhai Bhikhabhai Parmar and Others vs State of Gujarat

Bankim N. Mehta, J.—Instant appeal is preferred challenging the judgment and order of conviction and sentence rendered by the learned Additional Sessions Judge, FTC-8, Nadiad, on 13.4.2005, in Sessions Case No. 194/2002, by which the Appellants are convicted for the offences punishable u/s 302 & 323 read with Section 114 of the Indian Penal Code ["IPC" for short]and sentenced them to undergo life imprisonment and to pay a fine of Rs. 2000/-each, in default, R.I for six months, for commission of offence punishable u/s 302 IPC, and R.I for six months and to pay a fine of Rs. 500/- each, in default, R.I for one month, for commission of offence punishable u/s 323 IPC. Both the sentences were ordered to run concurrently.

According to the prosecution case, on 29.3.2002 at about 18.00 hours, when first informant Jigneshkumar Bhikhabhai Patel and the witnesses were playing volleyball, Appellant No. 1- Ajmelbhai Bhikhabhai Parmar gave a slap to the first informant, as a result of which, altercation took place. Thereafter, keeping grudge in mind, the Appellants and absconding accused Arvindbhai Natvarbhai Parmar and Vinodbhai @ Hathibhai Natvarbhai Parmar uttered abuses and gave fists and kick blows to victim Bhikhabhai. The Appellants-accused also inflicted stick blows on the head and other parts of the body of deceased Bhikhabhai and caused serious injuries to him. The Appellants and the absconding accused also gave stick blows to witness Mehulbhai Bhikhabhai Patel and witness Manjulaben Bhikhabhai Patel. Bhikhabhai was taken to Thasara Hospital and then he was shifted to SSG Hospital, Baroda and on the next day, he succumbed to the injuries.

On the basis of the First Information Report lodged by Jigneshkumar Bhikhabhai Patel with Thasara Police Station, offence was registered and investigation was started. During the course of investigation, panchnama of scene of offence was drawn, statements of the witnesses were recorded, dead body of Bhikhbhai was sent for post-mortem and having found sufficient material against the Appellants, they came to be arrested.

On completion of the investigation, charge sheet came to be filed against the present Appellants for the offences punishable under Sections 302, 504, 323 and 114 of the Indain Penal Code and Section 135 of the Bombay Police Act, in the Court of learned J.M.F.C. Thasara. As two accused, namely, Arvindbhai Natvarbhai parmar and Vinodbhai Natvarbhai Parmar were absconding, charge sheet could not be filed against them. As the offences were triable by the Court of Sessions, the case against the present Appellants was committed to the Sessions Court, Kheda at Nadiad, where it was registered as Sessions Case No. 194/2002. Meanwhile, the absconding accused were also arrested and charge sheet against them came to be filed and their case was committed to the Sessions Court, Kheda at Nadiad, where it was registered as Sessions Case No. 177/2004. Since both the Sessions Case arose out of the same incident, they were tried and decided together by the learned Judge of the trial Court.

The learned Presiding Officer, FTC, Nadiad, framed charge at Exh.5 for the aforesaid offences against the accused. The charge was read over and explained to them. The accused pleaded not guilty to the same and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of the evidence, the learned Judge explained to the accused the incriminating circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required u/s 313 of the Code of Criminal Procedure. In their respective further statements, the case of the accused was that of total denial and they stated that a false complaint was filed with a view to harass them.

After hearing the learned Additional Public Prosecutor and the learned advocate for the accused and appreciating the evidence adduced by the prosecution, the trial Court convicted and sentenced the accused, as mentioned hereinabove, by judgment and order dated 13.4.2005, giving rise to instant appeal.

It may be stated that the trial Court acquitted the accused in Sessions Case No. 177/2004 of the offences with which they were charged and it is reported that no any appeal is preferred by the State against their acquittal recorded by the trial Court.

Heard the learned advocate Mr. Buddhbhatti for the Appellants and learned A.P.P. Mr. Pandya for the State, at length and in great detail. We have also examined the record and proceedings of the case in the context of rival submissions.

Mr. Buddhbhatti, learned advocate for the Appellants, restricted his arguments with regard to nature of offence qua Appellant No. 4, Pratapbhai @ Ibhu Ajmalbhai Parmar, and submitted that on account of sudden quarrel, the incident ensued. He submitted that there was no intention on the part of the said accused to cause death of victim Bhikhabhai Ichchhabhai Patel and, therefore, the learned trial Judge committed an error in convicting him for the offence of murder of Bhikhabhai. He also submitted that only one blow was inflicted on the head of the victim and that too, with a stick. Therefore, looking to the nature of weapon used in the commission of offence and the injuries caused to the victim, the said accused could have been convicted, at the most, for the offence punishable u/s 304 Part-II of IPC and, therefore, to that extent the appeal is required to be allowed. As far as the other Appellants are concerned, learned advocate Mr. Buddhbhatti submitted that the prosecution has failed to prove their alleged role in the commission of the offence and the eye witness account with regard to their role is not consistent and, therefore, benefit of doubt is required to be given to them.

The learned A.P.P. Mr. Pandya has opposed this appeal. He submitted that the evidence on record indicates that there was no sudden quarrel, as Appellant No. 4, Pratapbhai @ Ibhu Ajmalbhai Parmar, with predetermined mind, armed with a stick, attacked the victim and, therefore, it cannot be said that the incident occurred out of a sudden quarrel. He submitted that, therefore, the learned trial Judge was justified in convicting him for the offence of murder. Mr. Pandya further submitted that as far as the other accused are concerned, they abetted the commission of offence of murder of Bhikhabhai, as they also attacked the deceased with sticks and the learned trial Judge was justified in recording their conviction for the murder of Bhikhabhai as well as for causing injuries to the witnesses and, therefore, no interference in the impugned judgment is warranted and the appeal is required to be dismissed.

This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case.

In order to prove homicidal death, the prosecution examined Dr. Haresh Budhabhai Kothari as PW.10 at Exh.37. This witness has mentioned in column No. 17 of the post-mortem note (Exh.38) the external injuries found on the dead body of Bhikhabhai and also mentioned the cause of death. In his cross-examination, the witness has admitted that the injuries mentioned in column No. 17 of the post-mortem note were not possible by sharp cutting weapon. It appears from the external injuries mentioned in column No. 17 of the post-mortem note (Exh.38) that injury No. 8 was the cause for the death of the victim. The cause of death as mentioned by the doctor was "shock & haemorrhage following head injuries and its complications". Column No. 17 of the post-mortem note indicates that there were other injuries in the nature of abrasion on the other parts of the dead body of Bhikhabhai. This medical evidence clearly suggests that on account of the head injuries, victim Bhikhabhai died.

The prosecution has examined eye witnesses Jigneshkumar Bhikhabhai Patel as PW.11 at Exh.40, Mehulkumar Bhikhabhai as PW.12 at Exh.54 and Manjulaben Bhikhabhai as PW.13 at Exh.59, and produced the FIR lodged by Jigneshkumar (PW.11) at Exh.41, to prove the prosecution case.

13.1 From the oral depositions of these eye witnesses it clearly emerges that on 29.3.2002 at about 4 O''clock in the noon, when the first informant and others were playing volleyball, Appellant No. 1-Ajmelbhai came and slapped to the first informant, without any reason. But, as he was in an inebriate condition, he was let off. However, after about 10 to 15 minutes, Appellant No. 1-Ajmelbhai came back and started abusing. Therefore, the first informant stopped playing volleyball and left for his home. However, at about 6 O''clock in the evening, the Appellants-accused, armed with sticks, came to the house of the first informant. Appellant No. 4-Pratapbhai @ Ibhu inflicted 3-4 stick blows on the head of victim Bhikhabhai and the other Appellants-accused also inflicted blows with sticks on the back of Bhikhabhai.

From the above oral evidence, it clearly reveals that at about 4 O''clock in the noon, when the first informant was playing volleyball, Appellant No. 1-Ajmelbhai picked up a quarrel with him. However, thereafter at about 6 O''clock in the evening, Appellant No. 4-Pratapbhai @ Ibhu came at the house of the first informant and assaulted deceased Bhikhabhai, the father of the first informant, with stick and hit him on the head. It appears that prior to the incident, there was no provocation, either from the victim or the first informant, to instigate the Appellants-accused to assault the victim. There was no quarrel between them. Therefore, Appellant No. 4-Pratapbhai @ Ibhu made assault on victim Bhikhabhai without any cause. The evidence also indicates that Appellant No. 4-Pratapbhai @ Ibhu assaulted with stick and caused injuries on the head of the Bhikhabhai, which resulted into the death of victim Bhikhabhai. Looking to the manner in which the assault was made by Appellant No. 4-Pratapbhai @ Ibhu, it is difficult to believe that the assault was made in a heat of moment and it was not predetermined. The assault made by Appellant No. 4-Pratapbhai @ Ibhu was predetermined and, therefore, the submission that the assault was made in a sudden provocation cannot be accepted. As observed earlier, the head injuries were the cause of death of victim Bhikhabhai. It cannot be disputed that the injuries were caused on the vital part of the body, i.e. head. Therefore, in our view, the learned trial Judge was justified in recording conviction of Appellant No. 4-Pratapbhai @ Ibhu for the offence of murder of Bhikhabhai.

As far as the conviction of the other Appellants-accused for the offence punishable u/s 302 read with Section 114 IPC is concerned, it appears from the oral depositions of the eye witnesses that Appellant No. 4-Pratapbhai @ Ibhu firstly assaulted the deceased and the other Appellants-accused came running thereafter and inflicted injuries with sticks to eye witnesses, i.e. PW.12- Mehulbhai and PW.13-Manjulaben, and also caused injuries to deceased Bhikhabhai. As observed earlier, the injuries found on the other parts of the dead body of deceased Bhikhabhai are abrasions. The doctor, who performed the post-mortem, has not opined that such injuries were possible by sticks. Therefore, it is difficult to believe that the other Appellants-accused made assault with sticks on deceased Bhikhabhai and caused injuries to him. Even the post-mortem report also indicates that there were abrasions on the dead body of Bhikhabhai. In this set of circumstances, in our view, the prosecution has failed to prove that the other Appellants-accused abetted the commission of offence of murder by Appellant No. 4 - Pratapbhai @ Ibhu.

The First Information Report (Exh.41) also alleges that Appellant No. 4-Pratapbhai @ Ibhu came running with stick and caused injuries on the head of the deceased and the other Appellants-accused, taking support/side of Appellant No. 4-Pratapbhai @ Ibhu, came running there with sticks and inflicted stick blows on deceased Bhikhabhai. This also indicates that the other Appellants-accused came subsequent to the assault made by Appellant No. 4-Pratapbhai @ Ibhu on the deceased. Therefore, the prosecution case, with regard to the role allegedly played by the other Appellants-accused, raises doubt about their involvement in the offence.

It also appears from the prosecution evidence that PW.13, Manjulaben, has stated in her deposition that she was not aware as to who caused injuries to her. PW.12, Mehulbhai has not stated about any injury caused to him.

After analysing, sifting and assessing the evidence on record with particular reference to its trustworthiness and truthfulness by a process of dispassionate scrutiny, this Court finds that it is difficult to uphold the conviction of Ajmelbhai Bhikhabhai Parmar (orig.accused No. 1), Shanabhai Ajmelbhai Parmar (orig.accused No. 2) and Natvarbhai Bhikhabhai Parmar (orig.accused No. 3) for the offence of murder of Bhikhabhai with the help of Section 114 of IPC as well as for causing injuries to eye witnesses Mehulbhai and Manjulaben, and also the conviction of Appellant No. 4-Pratapbhai @ Ibhu for the offence punishable u/s 323 IPC.

For the foregoing reasons, the appeal is partly allowed. The conviction and sentence of Appellant No. 4- Pratapbhai @ Ibhu Ajmelbhai Parmar recorded by the learned Additional Sessions Judge, FTC-8, Nadiad by judgment and order dated 13.4.2005, in Sessions Case No. 194/2002, for the offence punishable u/s 302 of the Indian Penal Code is hereby confirmed; whereas his conviction for the offence punishable u/s 323 IPC is set aside. The conviction and sentence of Appellant No. 1 - Ajmelbhai Bhikhabhai Parmar, Appellant No. 2-Shanabhai Ajmelbhai Parmar and Appellant No. 3-Natvarbhai Bhikhabhai Parmar, recorded by the trial Court, for the offences punishable under Sections 302 & 323 IPC is hereby set aside and they are acquitted of the said offences. They are on bail and, therefore, their bail bonds shall stand cancelled. Fine, if paid, be refunded to them.