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Judgment
D.H. Waghela, J.—Criminal Appeal No. 2014/06 is preferred by the appellants upon being convicted for the offence punishable u/s 323
and sentenced to RI for 3 months and fine, whereas, Criminal Appeal No. 2303/06 is preferred from the same judgment upon the appellant being
convicted for the offence punishable u/s 302 of IPC and being sentenced to life imprisonment with fine of Rs. 75,000/-. All the appellants are real
brothers and the victims of the offence are neighbours.
According to the prosecution case, the main accused dealt a single blow of axe on the head of the victim on 28.10.1992 at around 5.00 p.m.
after sudden quarrel due to brother of the deceased not removing his moped from public street and the way of brother of the main accused being
partly blocked while he was trying to pass on his scooter. The appeal of the main accused was restricted to urging reduction of sentence on the
basis that he could not have been convicted for the offence punishable u/s 302 of IPC but ought to have been, at the most, be punished u/s 304 of
IPC with leniency, in the peculiar facts of the case. The other two appellants sought acquittal on the basis that the injuries alleged to have been
inflicted by them were not proved and assault by them on the women folk among the victims was utterly improbable.
Perusing the impugned elaborate judgment, it was clear that the trial was conducted after 13 years of the offence and main three eye witnesses
were close relatives of the victims as also neighbours of the appellants. Initially, the appellants were charged with the offence punishable under
Sections 302 and 323 read with Section 34 of IPC and Section 135 of the Bombay Police Act. However, at the end of the trial, after appreciation
of entire evidence on record, the trial court recorded findings of fact to the effect that motive or premeditation for committing the offence was not
proved, that the eye witnesses were present at the time of offence, that the accused persons had come to the scene of the offence one after the
other, that there were number of minor discrepancies and major contradictions which were negligible or apparently caused due to long lapse of
time between the offence and recording of evidence. The injury on the deceased was inflicted on vital part of his body and a single blow of the axe
was forceful enough to cause death while the other victims had also received minor injuries. Section 34 of IPC could not be applied in the facts of
the case and there was no evidence of any notification for the violation of which offence u/s 135 of the Bombay Police Act could be held to have
been proved.
It was argued before the trail court and reiterated before this Court that in fact one of the appellants had lodged a complaint on the next day for
the injuries suffered by him on his back by three blows of spade dealt by the deceased-victim. That complaint was exhibited in evidence as Exh.65
(Exh.58) in deposition of the Investigating Officer Mansurbhai who was examined as PW 12 at Exh.54. Even independent of the contents of the
complaint, it had come in the deposition of Investigating Officer Mansurbhai that complainant Rajesh had injuries on his body, that he was sent to
hospital and was examined by Dr. Mahayaveshi. It also came on record by panchnama Exh.21, and supported by the Investigating Officer, that
the main accused person had suffered from previous injury on his leg and was limping whereas complainant of the counter complainant, namely
Rajesh had minor injuries on his back.
Thus, it could not be gainsaid that there was a quarrel and scuffle among the family members of the victims and the assailants at the time of the
incident in question which happened at around 5.00 p.m. on 28.10.1992. There is also no dispute about the fact that the incident had happened on
a busy street and there were number of other unconnected people, none of whom was examined as eye witness. There is also no dispute about the
death of the victim having been caused by the single fatal blow in the form of bone deep chop wound of the dimension of 10.5 cm x 2 cm in the
occipital and parietal region causing fracture and instant death. It was the case of the prosecution that the wife of the deceased had rushed to the
spot and while she was holding the body of the deceased, other injuries were inflicted by the other accused with stick.
Perusing the important and relevant part of the depositions of the eye witnesses, it was seen that the wife of the deceased (Exh.25 PW 5) clearly
deposed that the quarrel started when the brother of the deceased pulled out his Luna on the street and Rajesh, one of the accused, asked him to
remove it. According to her, the main accused Navnit came running and limping with a bandage on his leg and dealt a blow of axe on the head of
her deceased husband. She immediately sat down holding her husband on the ground when another accused Praful came there and dealt two
blows of stick on her husband, before running away. At that time, another eye witness, Sumanben, was coming to help and she was also dealt a
blow of stick by Praful. Rajesh, who had come on scooter, was stated to have dealt fist blows and kicks on the deceased. In her cross-
examination, she admitted that people were coming and going on the street and when Rajesh had come on scooter, she was inside her house. She
stated that her brother-in-law, Mukesh, never alighted from his moped and Praful had come after two minutes of the arrival of main accused
Navnit. Then she turned around and deposed that when the altercation was going on, Navnit was in his house and after her husband fell down, all
her family members sat and made a crowd around him. She further deposed that her husband was shifted to the Civil Hospital within two minutes
of the injury. She also admitted that when she came out of her house, Rajesh and Mukesh were already engaged in physical altercation. She also
admitted that there was a heap of gravel near her house as some civil work for construction of steps in the neighbouring house was going on. She
clearly admitted that cases under the Prohibition Act were registered against her in Umra Police Station, and the street is closed after the incident
for general public.
Another eye witness and injured victim, namely Sumanben, was examined at Exh.39 and told a different and inconsistent story in her cross-
examination. She deposed that she was cooking inside her house at the time of incident and by the time she came on the spot, many other people
from neighbourhood had already gathered at the scene. It was indirectly admitted that the moped parked by Mukeshbhai was really blocking the
street, which was very narrow at the spot, and the verbal quarrel had continued for several minutes before the physical altercation started. She
clearly stated that during the whole of the incident, Rajesh had never got down from his scooter and never moved. It was indirectly admitted by her
that Rajesh was encircled by the family members of the deceased and she admitted that Rajesh had lodged complaint against herself.
The third eye witness, viz. Mukesh (Exh.42 PW 8), after reiterating broadly the version of the prosecution, admitted in his cross-examination
that the house of the main accused, i.e. Navnit, was more than 100 feet away from his house and any verbal altercation or even shouting could not
have been heard even outside the house of Navnit. He stated that after 5 to 10 minutes of falling of the victim on the ground, Praful had come and
dealt blows of stick and kicks on the deceased.
Reading the depositions as a whole of all the three eye witnesses, it clearly transpires that the witnesses have tried to stick to a consistent version
but failed to be consistent in the details when they were cross-examined. In absence of any strong motive or even an allegation of premeditation, it
was clear that the incident was occasioned by blocking of the street by brother of the deceased and Rejesh was first engaged in the quarrel instead
of the street being cleared for passage of his scooter. The quarrel appears to have heated up into a scuffle when the main accused Navnit rushed
from his house in spite of recent serious injury in his leg and dealt a blow of an axe without even caring to see the face of the victim. That indicated
gravity of the situation or imminent danger to the person of his brother, who was admittedly surrounded by members of the victim''s family, who
were otherwise also hostile. Thus, in short, even as the injury caused by the main accused was such as was likely to cause death it could not have
been his intention to cause death since the situation had arisen without premeditation in a sudden fight and he appeared to have dealt the blow in
the heat of passion upon a sudden quarrel. While it has clearly come in evidence of the prosecution that the accused had immediately fled from the
spot, it was highly improbable that they would have overstayed to deal kick or stick blows on the victim, who had already fallen or that they would
have returned to cause injuries to the other female members. In any case, injuries on the other victims are not proved and no other injuries except
the fatal blow on back of the head of the victim, are recorded in the postmortem report. Therefore, none of the accused persons appeared to have
acted in concert or in an extraordinarily cruel manner so as to take undue advantage of the situation. Under such circumstances, the culpable
homicide does not fall in the parameters of Clause (3) of Section 300 of IPC and it satisfied the conditions contained in exception (4) of Section
300 of IPC. Since the intention of the main accused person was not clearly established to be that of causing death or such bodily injury as was
likely to cause death, the homicide could be said to have been at least with the knowledge that injury on the head with an axe was likely to cause
death. Therefore, it is found and held that the prosecution had succeeded to the extent of proving beyond reasonable doubt the case of culpable
homicide not amounting to murder, which would fall in Second Part of Section 304 of IPC. The other offences against the other accused persons
were not proved beyond reasonable doubt insofar as, not only that the injuries were not proved but some injuries appeared to have been caused
to one of the accused as well, indicating serious physical altercation wherein all the parties were entitled to exercise their right of private defence
and it could not be ascertained as to how and by whom, injuries were caused to the accused or the assailants.
It was, in the above context, submitted on behalf of the appellants by learned Counsel Mr. Qureshi and Mr. Buch that the appellants are
workers in the lower middle class without any record of any other offence, whereas, the victim and his family were very highhanded and
headstrong persons, who blocked public street at the time of and after the incident and the widow of the deceased had a record of Prohibition
cases registered against her. Even then, the appellants proposed to offer higher amount of fine to be paid by way of compensation to heirs of the
deceased victim so as to take care of his orphaned children. It was submitted that the appellant Navnit voluntarily offered the sum of Rs.
3,00,000/- by way of compensation which the court may order as payment to be made to the heirs of the victim u/s 357 of the Code of Criminal
Procedure, 1973.
Learned APP vehemently argued and supported the impugned judgment by submitting that a single forceful blow with a deadly weapon like an
axe could be presumed to have been dealt only with the intention of killing a person and the injuries alleged to have been suffered by one of the
appellants could not be taken to have been proved. He, on that basis, submitted that the appellants were not entitled to any benefit of doubt as the
prosecution had succeeded in bringing home the charge and the trial court was fully justified in convicting the appellants for the offences as held to
have been proved.
In the facts and for the reasons discussed hereinabove, Criminal Appeal No. 2014 of 2006 is allowed and the appellants are acquitted of the
charge of offence u/s 323 of IPC, and the impugned judgment is set aside to that extent. Criminal Appeal No. 2303 of 2006 is partly allowed so
as to convert conviction of the appellant from the offence punishable u/s 302 to conviction u/s 304 of IPC, with the result that the sentence of
imprisonment for life is reduced to R.I. for 5 years with fine of Rs. 3,00,000/- (Rupees Three lacs only), whole of which shall be deposited with the
Sessions Court at Surat and distributed equally among all the children and widow of the deceased-Dhirubhai Dahyabhai Patel, after due
verification. The impugned judgment stands modified and the order of sentence stands substituted to the aforesaid extent. It is made clear that if the
appellant fails to deposit Rs. 3,00,000/- within three months from the date of the judgment, the appellant shall have to undergo R.I. for one year in
addition to what is ordered hereinabove. The appeals are disposed accordingly.