Khoda Avsar Chumeria Koli and Others vs State of Gujarat

G.R. Udhwani, J.—Both these appeals arise out of the common judgment and order of conviction and sentence rendered in Sessions Case No. 151 of 1998 and Sessions Case No. 12 of 2003 by the learned Additional Sessions Judge, (2nd Fast Track Judge), Dhrangadhra on 06/04/2004, whereby the appellants herein have been convicted for the offences punishable under Sections 302 r/w Section 34 and Section 324 r/w Section 34 of the Indian Penal Code (for short IPC) and sentenced to undergo imprisonment for life with fine of Rs. 1,000/-, in default, to undergo six months SI; and sentenced to undergo one year RI with fine of Rs. 250/-, in default, to undergo one month RI respectively. Briefly stated, the facts of the case are that the complainant-PW No. 1, being a sole eyewitness, an injured, lodged a complaint against the appellants alleging the offence under Sections 302 and 324 of the IPC for they having caused homicidal death of his brother-Sudhir Ratilal. As per prosecution case, deceased-Sudhir was a resident of Tal. Dhragandhra and the complainant and accused were resident of Village Rajpar situated near Dhragandhra. The complainant had been to Dhragandhra for purchasing various articles required by him to run his Pan Shop situated at Rajpar and it is the case of prosecution that while the complainant and his brother were near the State Bank in the market at Dhragandhra, accused-Khoda Avsar Koli and Natubhai Laghrabhai Koli came there on motorcycle and accused Husen started giving knife stabs on the person of the deceased viz., on chest, as also to the complainant. Accused-Khoda Avsar attributed with a wooden log and accused-Natu Koli is attributed with iron pipe and it was alleged that accused-Khoda also took part in the offence by inflicting the blows by wooden log on the person of the deceased. Accused-Umer Husen absconded for a period of five years after the offence and, therefore, subsequently, upon his arrest, Sessions Case No. 12 of 2003 was lodged against him. Both the Sessions Cases were tried together; various witnesses were examined by the prosecution including PW No. 1-Rajesh Ratilal brother of deceased at Exh. 23, who is the sole eyewitness and injured and, ultimately at the end of trial the learned Court below has recorded the conviction and sentence as stated herein above.

Appellants-original Accused Nos. 1 and 2 of Sessions Case No. 151 of 1998 have filed Criminal Appeal No. 737 of 2004; whereas appellant-original accused of Sessions Case No. 12 of 2003 has filed Criminal Appeal No. 1771 of 2004.

Learned Counsel Mr. Jayant M Panchal appearing for A-1 and A-2 submitted that, even if the evidence adduced by the prosecution is taken at face value, no case against the said accused persons with the help of Section 34 and 114 of the IPC, is made out, inasmuch as, there are no injuries worth the name either caused by wooden log or iron pipe; nor there is an evidence of pre concert, which is a sine qua non for applicability of Section 34 of the IPC. In his submission, incident had admittedly started suddenly and these accused did not have even know the possession of deadly weapon with accused-Umer and, therefore, could not have shared the common intention to kill the deceased. Relying upon the decisions in case of Vithal Tukaram More and Others Vs. The State of Maharashtra, and in case of Dani Singh and Others Vs. State of Bihar, , Mr. Panchal submitted that what has been established by prosecution is mere presence of A-1 and A-2 at the site of offence and, therefore, they could not have been convicted.

As against that, learned APP Mr. Nanavati would submit that all the three accused had pre concert, came together on a motorcycle and previous animosity was the reason available with them and since accused-Umer was in company with A-1 and A-2, their knowledge of possession of deadly weapon like knife by accused-Umer can well be inferred. In his submission, therefore, the Court below has rightly convicted the accused persons with the help of either Section 34 or 114 of the IPC.

We have given a conscious consideration to the arguments advanced by the learned Counsel appearing for both the sides. It is not in dispute that the medical evidence shows injuries caused by stab wounds and there are no injuries, which can be attributed to A-1 and A-2 of Sessions Case No. 151 of 1998, who admittedly, were having a wooden log and iron pipe. The complainant appears to be exaggerating the story by attributing the injury caused by wooden log to accused-Khoda. Except, the reference of blood stains wooden log in the site of Panchnama, there is no other evidence connecting A-1 and A-2 with the offence. Section 34 requires a sharing of common intention and for that pre concert/meeting of minds is sine qua non. There is no evidence to even suggest that there was such pre concert or meeting of minds. Admittedly, accused-Umer drew the knife from his waist and unless a specific evidence was adduced to show that such possession of knife was known to other accused, it was not possible to invoke Section 34 of IPC attributing common intention to A-1 and A-2. Under the circumstances, the conviction of A-1 and A-2, appellants of Criminal Appeal No. 737 of 2004 cannot be sustained.

Insofar as accused-Umer is concerned, it appears that oral as well as documentary evidence indicates that he belonged to the same village and the deceased was the brother of complainant staying at Dhragandhra, which could be reached within period of 20 minutes. A cross-complaint also came to be filed by accused alleging the assault by the complainant and deceased-Sudhir at the very same place and time and thus the presence of the accused, complainant and his brother at the site of offence, is established beyond reasonable doubt.

PW No. 1-Rajeshbhai Ratilal examined at Exh. 23 has clearly mentioned the role played by accused-Umer. As per his version, three accused above named had come to the site of offence on a motorcycle; accused-Umer pulled out a knife from his waist; gave two knife stabs on the chest of the deceased as also one knife stab on the stomach of complainant, who ran away towards Shaktiman Temple, situated nearby. According to his version, accused-Khoda Avsar with wooden log continued beating even after deceased collapsed. After sometime, the complainant returned and as per his version auto-driver-Mohan Shaktilal and one Khojabhai helped the deceased to the hospital and complainant also followed him. He has deposed as to the cause of incident by stating that about a month back, there was a quarrel of Isha Hussain, brother of accused-Umar Husen and the complainant, who was playing tape recorder and to avenge that, the accused persons had committed the offence in question. In the cross-examination, what was tried to be elicited is that witness having the previous quarrel was known only to said Isha Husen and the complainant and site of the incident was a populated area and that since near the Shaktiman Temple, a Police Station was situated from where complainant-Ratilal could have immediately sought help. Various other suggestions which were denied by the witness; were the possession of knife by himself, as also the deceased; accused-Natu having intervened in the scuffle to calm down the accused and the complainant side; involvement of the complainant side in various offences particularly under Bombay Prohibition Act, etc. It could be seen from the cross-examination of PW No. 1 that insofar as accused-Husen is concerned, the material facts of his assaulting by means of knife on the person of the deceased as well as complainant, has remained un-shattered.

It was sought to be argued by relying upon evidence of PW No. 18-Barkatali examined at Exh. 53 and PW No. 19-Mohanlal Shantilal examined at Exh. 54 that the presence of complainant, at the scene of offence was doubtful, inasmuch as, both the witnesses have deposed that, except these witnesses, no other person had accompanied them to the Hospital and no relative of deceased came forward at the site of the offence while the deceased was being helped in auto-rickshaw. It was submitted that since two different versions; one from the above two witnesses and other from the complainant, bring a contradictory situation as to presence of complainant at the scene of offence, benefit of doubt must be given to the accused-Umer.

8.1. We are afraid; this submission cannot be accepted for the simple reason that, as per testimony of PW No. 1, he after sustaining injury, left the site for some time and, therefore, probably he was absent for some time, but thereafter from the testimony of Doctor as well as Medical Officer, it is apparent that PW No. 1 had gone to the hospital with injured-Sudhir, who subsequently died, as also for his own treatment. It is obvious that after sustaining of injury, a person would be in pain and, therefore, his first priority would be to run to the hospital. Therefore, it may be that at the time when deceased was being helped to the hospital in an auto-rickshaw, he might not be there, but from his unimpeached testimony it appears that before he was wounded, the first attack was on the deceased-Sudhir and thus he appears to have witnessed the substantial part of the entire incident. There is nothing on record to discredit this witness.

The medical record also establishes the injuries which could have been possibly caused by sharp cutting weapon and the Doctor who was examined as PW No. 20, after explaining the injuries on the person of the deceased, has identified the knife possessed by accused-Umer, as the weapon of offence which might have been used on the person of the deceased. As per the testimony of PW No. 20, from the dead body, he recovered the garments and also blood stained currency notes. All these articles including knife are established to have blood stains of blood group ''B'' which is established to be that of the deceased.

Testimony of PW No. 21-Kishorsinh Manharsinh Jadeja, I.O., examined at Exh. 60 was sought to be questioned mainly on the ground that the cross-case filed by accused persons was not fairly investigated and though the complainant in the cross-case named the accused-Nanakbhai Ratilal as assailant, was not arrested and no investigation proceeded in that direction.

It is borne out from the record that Nanakbhai is the nickname of complainant-Rajesh. More than sufficient opportunity was available to the accused persons to have adduced proper evidence, if they chose against the complainant. Assuming that the Investigating Officer was not fair in investigating the offence against the complainant, nothing could have prevented the accused in applying to the trial Court for necessary orders in that regard. No such exercise was made and, therefore, it appears that the said contention does not have any merit.

It was also argued that injuries on the person of accused-Natu were not explained by the prosecution and therefore, the prosecution had not come out with clean hands and benefit of doubt should be given to the accused. The injury certificate in respect of accused-Natu indicates a minor injury, simple in nature, on his thumb. It was alleged in the cross-case that, he, with a view to block the possible knife blow, caught hold of the knife. If that fact was true, there would not have been a mere simple minor injury only on the thumb, the injuries could have been much more, particularly, on the palm as well. In all probabilities, the thumb injury on the person of accused-Natu appears to be self-inflicted and he lodged a complaint on the next date and that too at Halvad and not at the place where the offence was alleged to have been committed and he was examined by the Doctor after the lodgment of the complaint and it is not as if the prosecution has suppressed his injuries; in fact, they were brought on record and the above circumstances suggest that they have been sufficiently explained.

It was also sought to be argued that Defence Witness No. 1 establishes the fact that complainant-Rajesh was a headstrong person in company of one Mr. V.P. Yadav, who allegedly is involved in the liquor business. Even if that fact was true, the testimony of complainant cannot be discredited on such mere fact. On close scrutiny, we find his testimony credible particularly when he is injured witness having immediately gone to the hospital and also having disclosed the names of the assailants to the Doctor.

It was also sought to be submitted that the offence in question insofar as accused-Umer was concerned, was the outcome of grave and sudden provocation and it was established from DW No. 2-Jusubbhai Umerbhai Sipoi, son of accused-Umer Hasan that his wife had illicit relation with the complainant who was found in compromising position by his son-DW No. 2. Except, the above facts, there is nothing on record indicating the grave and sudden provocation; no date, time and place has been mentioned by DW No. 2 and therefore, it is not possible to ascertain as to on what date and time, did the accused-Umer lose control over his emotions and commit an offence. It is settled law that reaction on grave and sudden provocation has to be within minutes and not hours and days, inasmuch as, if there is a gap, a person receives an opportunity to cool down and the grave and sudden provocation will then evaporate. Therefore, such theory also cannot be accepted.

It was also sought to be argued that in view of deposition of DW No. 3-Chhotubha Lalubha Jadeja, accused-Umer could not have been present at the site of the offence. As per version of DW No. 3, accused-Umer was employed with him; his duty hours were between 05:30 a.m. to 09:30 p.m.; the offence had occurred at about 01:30 p.m. From the cross-examination of this witness, it appears that it was not unusual for labourers to leave the work place for lunch in the mid hours of the day. Furthermore, the place of service is within the village itself and, therefore, it was possible for the accused-Umer to reach to site of offence. In our considered opinion, therefore, such defence of alibi is also not available to accused-Umer.

Insofar as cross-case is concerned, the complainant side was acquitted. The depositions rendered by accused persons in the cross complaint was placed on the record of the Court below. However, in view of acquittal of the complainant side, it is not possible to re-appreciate the same in this appeal. In the result, Criminal Appeal No. 737 of 2004 preferred by Accused No. 1-Khoda Avsar and Accused No. 2-Natubhai Laghrabhai Chumeria Koli of Sessions Case No. 151 of 1998 is allowed. The judgment and order of conviction and sentence so far as Accused No. 1-Khoda Avsar and Accused No. 2-Natu Laghra of Sessions Case No. 151 of 1998, rendered in Sessions Case No. 151 of 1998 on 06/04/2004 by the learned Additional Sessions Judge, (2nd Fast Track Judge), Dhragadhra, is set aside. The appellants of Criminal Appeal No. 737 of 2004 are acquitted of all the charges levelled against them. They are ordered to be set at liberty forthwith, if not required in any other case. Bail bond and sureties executed by them shall stand cancelled. Fine, if paid by the appellants, is ordered to be refunded to them. So far as Criminal Appeal No. 1771 of 2004 preferred by Accused-Umarbhai Husenbhai Sepoy of Sessions Case No. 12 of 2003 is concerned, the same is dismissed. The judgment and order of conviction and sentence so far as Accused-Umarbhai Husenbhai Sepoy of Sessions Case No. 12 of 2003, rendered in Sessions Case No. 12 of 2003 on 06/04/2004 by the learned Additional Sessions Judge, (2nd Fast Track Judge), Dhragadhra is confirmed. Yadi of this Farad shall be forwarded to the Jail Authorities immediately.