Bharatbhai Manjibhai Patni and Others vs State of Gujarat

A.L. Dave, J.—These two appeals arise out of a judgment and order rendered by the City Sessions Court, Ahmedabad in Sessions Case No. 1 of 2001 on 28/9/2001, whereby the appellants came to be convicted for the offences punishable under Sections 147, 148, 504, 294[b], 302 read with Section 149 of the Indian Penal Code [IPC] besides Section 135 of the Bombay Police Act. Criminal Appeal No. 846 of 2001 is preferred by the original accused No. 3 and Criminal Appeal No. 837 of 2001 is preferred by the original accused Nos. 1, 2 and 4 to 6 in the said Sessions Case. For sake of convenience, the appellants in these two appeals are referred to as ''accused'' with their respective numbers.

The incident occurred in the evening of 6th May, 2000 in respect of alleged eve-teasing by the accused persons while standing near a Pani Puri cart when they were rebuked and the cart owner was asked not to stand there. Next day i.e., on 7th May, 2000 at about 5.30 p.m., when the cart owner came to the place for business, he was asked not to do so. He, therefore, left the place and went to one of the accused persons for help leaving behind the cart. Thereafter, it appears that Raju was called for compromise and he went out. But after going out, he felt that he may be attacked and, therefore, escaped therefrom.

2.1. That very evening, Bhagaji and Umesh Makaji had gone to Hanumanji temple for attending Bhajan function. At about 11.00 pm the electricity failed and lights went off. They, therefore, came out and were sitting on the Ota. At that point of time, it is the case of the prosecution, that the appellants along with absconding accused Harish alias Chhapan Patni, Mukesh Babubhai Mamrawala, Jayantibhai Popatbhai Sportclubwala and one Amrit came there from different directions and started talking to Bhagaji Viraji. It is further the case of the prosecution that thereafter there was altercation followed by a scuffle. During the scuffle, it is alleged that all the assailants started giving kick and fist blows to Bhagaji. During the transaction, accused No. 3 took out a knife and inflicted one blow on chest and one blow in the abdomen of Bhagaji. One of the absconding accused also took out a knife and inflicted a blow on Bhagaji. In this transaction, Ramaji Viraji, brother of Bhagaji, intervened, as a result of which, the assailants left the place. Bhagaji was taken to hospital where he was declared dead by the doctor.

2.2. In the meantime, it appears that some news reporters informed the police of the incident of stone pelting. PSI Mr. Vankar went to the spot and got engaged in establishing law and order situation. In the meantime, another message was sent by the doctor to the police.

2.3. On basis of the second information, the Investigating Officer [IO] went to the place and found the earlier police officer engaged in establishing law and order situation by trying to disperse the crowd.

2.4. An FIR was lodged in connection with the incident by Ramaji Viraji, brother of the deceased, who happened to be present at the place of incident, with Meghaninagar Police Station, on basis of which offence was registered and investigation started. The police having found sufficient material against the accused persons so also against absconding accused, filed charge-sheet in the Court of the Metropolitan Magistrate, who in turn committed the case to the Sessions Court and Sessions Case No. 1 of 2001 came to be registered.

2.5. The Sessions Court framed charge against the accused persons at exh. 4 for offences punishable under Sections 294[a] and 504 read with Sections 147, 148 of IPC and Section 302 read with Section 149 of IPC or in the alternative Section 302 read with Section 34 of IPC, besides Section 323 read with Section 149 of IPC and Section 135 of the Bombay Police Act, against all 6 accused persons, to which they pleaded not guilty and claimed to be tried. The Sessions Court, after considering the evidence led by the prosecution, found that the charges of offences punishable under Sections 147, 148, 504, 294[b] and 302 read with Section 149 of IPC came to be proved against all accused. The Court also held that offence punishable u/s 135[1] of the Bombay police Act also came to be proved against the accused and recorded the conviction accordingly awarding punishments as under:

[i] For offence u/s 147 of IPC, fine of Rs. 1,000/-, in default RI for one month.

[ii] For offence u/s 148 of IPC, fine of Rs. 1,000/-, in default RI for one month.

[iii] For offence u/s 504 of IPC, fine of Rs. 500/-, in default SI for 15 days.

[iv] For offence u/s 294[b] of IPC, RI for 2 months and fine of Rs. 250/-, in default RI for 7 days.

[v] For offence u/s 302 read with Section 149 of IPC, imprisonment for life and fine of Rs. 500/-, in default RI for 15 days.

[vi] For offence u/s 135(i) of BP Act, RI for one month and fine of Rs. 250/-, in default RI for one week to accused No. 3 - Jayanti alias Balio.

[vii] Accused No. 1, 2 and 4 to 6 were on bail during the pendency of trial and hence their bail bonds were cancelled and taken into custody on 28th September, 2001.

2.6. Aggrieved by the said conviction and order of sentence, the accused persons have preferred these two appeals. The convicts appellants of Criminal Appeal No. 837 of 2001 are original accused No. 1, 2 and 4 to 6; whereas the appellant in Criminal Appeal No. 846 of 2001 is original accused No. 3, who is alleged to have inflicted the fatal injuries.

Learned advocate Mr. AD Shah submitted that if the evidence on the whole is considered, it is clear that accused No. 1, 2 and 4 to 6 are alleged to have given only kick and fist blows for which there is no medical evidence. He submitted that all the accused persons have come from different directions and there is no evidence to indicate that they had formed an unlawful assembly and had come to the place in furtherance of their common object or for fulfillment of the common object. Mr. Shah submitted that presence of victim Bhagaji along with one Umesh Pakaji at the spot was incidental or coincidental. It was not that there is any previous planning. Nobody could have anticipated failure of electricity and coming out of the deceased with Umesh Pakaji outside the temple on the Ota where the incident has occurred. Therefore, there is not a case of the prosecution about formation of unlawful assembly and the accused persons acting in furtherance of common object may not be accepted.

3.1. Mr. Shah submitted that the prosecution has not examined Umesh Pakaji, who was in company of the deceased during the entire transaction and the genesis of the incident is not brought on record by the prosecution. There is no evidence worth a name, which would throw light on the questions as to how the incident started, what was the cause of incident and what had transpired initially before the altercation started followed by scuffle and fatal assault. Mr. Shah submitted further that once application of Section 149 of IPC is not believed, each of the accused would be responsible for his individual overt act. Undisputedly except accused No. 3, all others are alleged to have given kick and fist blows to the deceased, for which there is no medical evidence at all. The version of the eye witnesses, therefore, may not be believed and they may be acquitted of the charges. Accused persons, other than accused No. 3 or the absconding accused, who also used the knife, cannot be expected to know that the accused No. 3 or the absconding accused had a knife with them and may use the same. The trial Court, therefore, committed an error in convicting all the appellants for offence punishable u/s 302 read with Section 149 of IPC, besides Sections 294[b] and 504 of IPC. Mr. Shah submitted that the Prosecution Witness [PW] No. 3 - Dilipbhai Kalaji Thakore and PW 4 - Laxmansinh Mohansinh Chauhan are chance witnesses. PW 3 says that he was passing by the place of incident and saw the incident, whereas PW 4 says that he was standing near tailor shop and saw the incident. Mr. Shah submitted that neither of them have shown any reason for they being there. Mr. Shah submitted that there was no animosity between the parties and there is no evidence at all.

3.2. Mr. Shah submitted that the FIR which is recorded by the police, cannot be considered as the FIR because the police only had received a telephonic message from the press reporter followed by a message from the doctor. On basis of the first message, PSI Mr. Vankar left for the place and took charge of the situation. The subsequent FIR by Ramaji Viraji cannot be considered as FIR at all and the telephone message which was sent by news reporters has not been produced on record of the case. As such the prosecution has failed to produce the FIR about the incident on record. The case cannot be said to have been proved beyond reasonable doubt against any of the appellants. Mr. Shah submitted that by way of alternative submission, accused No. 3 can be said to have inflicted knife blow with the help of a small knife, which is of total length of 9. The incident is result of previous incident of early evening hours. The case, therefore, would fall within the definition of culpable homicide not amounting to murder rather than murder and would be punishable u/s 304 Part-II of IPC. He, therefore, submitted that appeal may be allowed.

3.3. Learned advocate Mr. Raval appearing for appellant in Criminal Appeal No. 846 of 2001 has adopted the arguments made by learned advocate Mr. AD Shah.

Ld. APP Mr. Mengdey has opposed these appeals. He submitted that forming of unlawful assembly with an illegal object and acting in pursuance of such common object is a mental process and there cannot be any ocular evidence in that regard. He submitted that the assailants assembled near the place of incident and then conjointly assaulted the deceased. He submitted that the trial Court rightly employed Section 149 of IPC while recording conviction. Mr. Mengdey submitted that there are eye witnesses to the incident, who in terms say that the accused persons along with absconding accused had an altercation with the deceased, assaulted him and gave him kick and fist blows and that accused No. 3 and one of the absconding accused gave knife blows to the deceased, to which he ultimately succumbed. The assailants, therefore, acted in harmonious and concerted way, which is possible only if there was a meeting of mind. The conviction of the trial Court is, therefore, justified.

4.1. He submitted that the case cannot fall within the definition of culpable homicide not amount to murder. The appellant has given two blows with knife, one in chest and another in abdomen, on basis of which his intention of causing death of the deceased can be read. Mr. Mengdey submitted that trial Court taken into consideration all relevant aspects and has convicted the appellants and the appeals may, therefore, be dismissed.

At the outset, we may record that learned advocates for the appellants do not argue that involvement of appellants in the incident is not proved by the prosecution against the appellants. The evidence of the first informant Ramaji PW 2 exh. 19 is a picturesque description of what had transpired at the time of incident. He gives names of all the appellants along with absconding accused and states that they came there and started giving abuses to Bhagaji and then started giving kick and fist blows. Ramaji says that he intervened, at that time Super and Tiger - accused No. 4 and accused No. 2 respectively, gave him kick blows, as a result of which, he fell down. He says that thereafter Harish Chhapanbhai and accused No. 3 took out knives from their trousers and accused No. 3 inflicted two blows, one in the abdomen and one in the chest of the deceased; whereas Harish Chhapanbhai inflicted knife blow on the back side of head of the deceased. The deceased started bleeding profusedly and fell down.

5.1. Similarly, eye witness Dilipbhai Kalaji Thakore exh. 22 also deposes on same lines. Witnesses Laxmansinh Mohansinh Chauhan exh. 23, Parbatsinh Shankarsinh Parmar exh. 24, Ishvarbhai Shivaji exh. 28, Vinod Laxmichand Soni exh. 30, Rajubhai Viraji Bhat, exh. 31 and Mohamji Viraji Bhat exh. 53 have all supported the prosecution case. They have been tested on the touchstone of cross-examination. We do not find any material from the depositions which may help the appellants from escaping from the allegation of their involvement in the incident. Learned advocates for the appellants, therefore, were justified in conceding to the situation that involvement of the appellants in the incident cannot be agitated or denied. Their overall contention is that the appellants could not have been convicted with the aid of Section 149 of IPC as members of unlawful assembly acting in furtherance of the common object. The only questions that require consideration are, therefore, whether Section 149 of IPC can be employed in service and if not, what would be the liability of each of the accused.

In this regard, it has to be recorded that it has come in evidence that all the assailants came from different directions. None except accused No. 3 and the absconding accused Harish Chhapanbhai had any weapon with them. It also appears that initially there was some altercation followed by a scuffle and assault by the assailants with kick and fist blows and thereafter suddenly, accused No. 3 and Harish Chhapanbhai took out their knives and caused the injuries to the deceased. It is also to be recorded that except the incident of previous evening, there was no animosity between the deceased and the appellants. There is no evidence to show that the appellants had earlier assembled somewhere else and formed an unlawful assembly. The incident has occurred at a place where there is a temple nearby and even at that odd hour, there were people around other than the persons involved in the incident. This would mean that this was a place frequently visited upon by common people. It has also to be recorded that there is nothing to indicate that the accused - assailants had any intimation or knowledge about the deceased and witness Umesh Pakaji going to attend Bhajan function, failure of electricity and they deciding to come out of the Bhajan function and sit on the Ota. Even the sequence of events would go to show that they could not have formed an unlawful assembly, the common object of which would be to commit murder of the deceased.

Considering the evidence of eye witnesses and other aspects, we are of the view that there is no material to show that the appellants were acting in furtherance of their common object nor is there any material to show that their common object was to commit murder of the deceased or even to cause hurt to him. As a result, Sections 143, 147, 148 and 149 of IPC would not be attracted to the facts of the present case and none of the accused can be convicted by employing in service Section 149 of IPC. The appellants, therefore, would be responsible for the individual overt act.

Allegations against accused No. 1, 2 and 4 to 6 is of having given kick and fist blows to the deceased. This version is coming from the evidence of eye witnesses, many of whom are independent and have no axe to grind against any of the accused. There is no reason why their version should not be believed. It is true that prosecution has not examined Umesh Pakaji, who would have been the best person to depose about what started just before the incident, at the time of incident and during the course of incident. It is also true that there is no medical evidence in support of the allegations against accused No. 1, 2 and 4 to 6. Under the circumstances, accused No. 1, 2 and 4 to 6 are liable for having caused hurt to the deceased. Absence of medical evidence would not be significant because kick and fist blows have not proved to be fatal to the deceased and may not have any external signs of violence on the body of the deceased. Absence of medical evidence, therefore, would not disprove the prosecution case, contrary to the fact that presence of medical evidence would have proved the case of prosecution against the accused. In our view, therefore, the conviction of appellants No. 1, 2 and 4 to 6 for offences punishable under Sections 147, 148, 294[a] read with Section 149 and u/s 302 read with Section 149 of IPC cannot be sustained and has to be set aside. However, accused No. 1, 2 and 4 to 6 can be said to have committed an offence punishable u/s 323 of IPC of having caused hurt to the deceased.

So far as accused No. 3 is concerned, there is ample evidence to show that he inflicted knife blows in the chest and abdomen of the deceased. The evidence also shows that there was altercation, scuffle and then assault. The knife that is used is a small domestic knife with a blade size of 4" and handle size of 5", totaling to a length of 9". It is also clear from the evidence that after the assault, the deceased started running helter-skelter to save himself and it is not the case of any-one that accused No. 3 tried to chase him and tried to inflict more blows. Keeping in light the decision rendered in the case of Surinder Kumar Vs. Union Territory, Chandigarh, , we are of the view that exception 4 to Section 300 would be attracted. The accused persons have come from different directions. There is no evidence of any previous meeting or meeting of their minds of having formed any unlawful assembly or of having any common intention to cause death of the deceased. Though actual genesis is not coming on record, it has come in evidence that there was some discussions or altercations followed by quarrel and scuffle and thereafter followed by attack. Therefore, the case would be covered by exception 4 to Section 300. The ingredients having been satisfied, the accused No. 3, therefore, can be said to have committed culpable homicide of the deceased which would not amount to murder. He would, therefore, be punishable u/s 304 of IPC. Section 304, if read, in context of evidence on record, would go to show that part-I of the said section would be attracted for convicting and awarding punishment to accused No. 3. The conviction of accused No. 3 for offence punishable u/s 302 read with Section 149 of IPC cannot be sustained.

On account of foregoing discussions, we are of the view that the appeals deserve to be allowed in part. The appellants are held to be liable for the individual acts. The conviction of the appellant - Jayanti alias Balio Manjibhai Patni in Criminal Appeal No. 846 of 2001 is altered to one punishable u/s 304 Part-I of the IPC. He is sentenced to undergo RI for 9 [nine] years and to pay fine of Rs. 5,000/- [Rupees five thousand only], in default to undergo SI for a further period of six months.

The conviction of appellants - [1] Bharatbhai Manjibhai Patni, [2] Dinesh alias Tiger Haribhai Tiwari, [3] Nagin alias Super Ramubhai Patni, [4] Kamlesh Popatbhai Patni and [5] Kishan alias Kishor in Criminal Appeal No. 837 of 2001 is altered to one punishable u/s 323 of the IPC and are ordered to undergo SI for a period of 3 [three] months with fine of Rs. 500/- [Rupees five hundred only] each, in default to undergo SI for a further period of one month.

All the appellants will be entitled to benefit of set off. The appellants in Criminal Appeal No. 837 of 2001 shall surrender to prison within a period of one week from today. Their bail bonds shall stand cancelled. Excess amount of fine, if paid, be refunded.