Rajubhai Surjibhai Harijan vs State of Gujarat

A.L. Dave, J.—This appeal arises out of a judgment and order rendered by learned Additional Sessions Judge, Panchmahals, Camping at Dahod, in Sessions case No. 199 of 1995, on 23rd August, 1996, convicting the appellant for offence punishable u/s 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay fine of Rs. 5,000/-, in default, to undergo simple imprisonment for a period of six months.

The appellant along with three others, namely, Shaniyabhai Babubhai Harijan, Dilipbhai Surjobhai Harijan and Bai Telki, wife of Surjo Mathur Harijan, came to be prosecuted before the Trial Court for offences punishable under Sections 302 read with Section 114, 323 and 504 of I.P.C. for murder of Raju Mana and for causing hurt to first informant, Dakshaben, witness-Sanjay Mathurbhai and Lalitaben, and insulting them by giving abuses. The said incident, allegedly, occurred on 8th July, 1995, at about 9.30 P.M. in Harijanvas area of Dahod. It is the case of the prosecution that the appellant along with the co-accused persons went near the house of the first informant-Dakshaben and started hurling abuses. On being prevented, the four persons assaulted deceased-Raju Mana, Dakshaben, Sanjay and Lalitaben and, in that assault, the appellant inflicted a blow on head of deceased-Raju Mana with wooden handle of an axe. The handle was not fitted with the blade. The deceased was taken to hospital and was given treatment, initially, by Medical Officer of Cottage Hospital, at Dahod. But, thereafter, as his condition worsened, he was transferred to Civil Hospital, Godhra. The deceased, ultimately, succumbed to the injury on his head. First Information Report was lodged by Dakshaben Chandubhai and, on that basis, offence was registered, investigation was made and charge sheet was filed in the court of learned Judicial Magistrate, First Class, at Dahod, who, in turn, committed the case to Court of Sessions as the offences with which the accused persons were charged were triable by Court of Sessions. Charge was framed against the accused persons at Exh.2. They pleaded not guilty to the charge and claimed to be tried.

2.1 The prosecution led its evidence and the learned Additional Sessions Judge, after considering the evidence on record, came to a conclusion that the prosecution was successful in establishing the charge of murder against the appellant-original accused No. 1. The learned Additional Sessions Judge also came to a conclusion that the charges against rest of the accused persons were not established by the prosecution. Resultantly, the learned Additional Sessions Judge recorded conviction so far as the appellant is concerned and acquitted the rest of the accused persons. Aggrieved by that conviction, the appellant has preferred this appeal. It appears that the State has not preferred any appeal against the acquittal of the co-accused persons.

We have heard learned Advocate, Mr. Vin, for the appellant and learned Additional Public Prosecutor, Mr. Prachchhak, for the respondent-State. They have taken us through the record and proceedings.

Learned Advocate, Mr. Vin, submitted that the Trial Court committed an error in recording conviction u/s 302 of I.P.C. He submitted that, it is difficult for him to come out of the evidence showing involvement of the appellant in the incident, but, by no stretch of imagination, can it be said that the appellant intended to cause fatal injuries to the deceased and, thereby, cause his death. Mr. Vin submitted that, even as per the prosecution case, the parties'' relations were strained. They belong to downtrodden strata of the society. The appellant was under the influence of liquor. The actual incident occurred preceded by a quarrel and the appellant is alleged to have given only one blow to the deceased. Mr. Vin submitted that, even as per the evidence of Dr. Babulal Mittal ( Exh.8), he, even as medical expert, did not find the injury to be serious and, therefore, there could not have been any intention or even knowledge on the part of the appellant that his act is likely to cause death of the deceased. The case would, at the most, fall under definition of grievous hurt and would be punishable u/s 326 of I.P.C. Alternatively, Mr. Vin submitted that the case would certainly fall under definition of culpable homicide not amounting to murder, if not under the head of grievous hurt. At the most, knowledge can be attributed but not the intention and, therefore, the punishment that could have been awarded should have been either u/s 326 of I.P.C. or u/s 304 Part-II of I.P.C. He submitted that the appellant is in jail since 1995 and ends justice would be met, if he is inflicted punishment of imprisonment for the period that he has already undergone. He submitted that the appeal may be accordingly allowed.

The appeal is opposed to by learned Additional Public Prosecutor, Mr. Prachchhak. According to him, the case would not fall under the definition of grievous hurt punishable u/s 326 of I.P.C. He submitted that the Court may take into consideration the fact that the blow was given with a wooden handle of an axe on vital part of the body of the deceased and, if the injuries are seen, though may not have been found to be serious from external appearance, they are all serious in nature and reflective of the force with which the blow must have been given. He submitted that the injuries are certified to be sufficient in ordinary course of nature to cause death and, therefore, the knowledge on part of the appellant has to be inferred, if not intention.

We have taken into consideration rival side submissions. We have examined the evidence of P.W.3-Dakshaben Chandubhai (Exh.12), P.W.4-Sanjay Mathurbhai (Exh.14), , P.W.5-Sukhdev Mansukhbhai (Exh.19), P.W.6-Mayaben Mathurbhai (Exh.21) and P.W.7-Omprakash Lalitprasad Sharma (Exh.23). We notice that, P.W.5-Sukhdev Mansukhbhai, though presented as an eye-witness by the prosecution, has not supported the prosecution case and has been treated as a hostile witness. So far as P.W.3-Dakshaben Chandubhai, P.W.4-Sanjay Mathurbhai and P.W.6-Mayaben Mathurbhai are concerned, they are eye-witnesses to the incident and they support the prosecution case. We are of the opinion, therefore, that the Trial Court was justified in coming to the conclusion that involvement of the appellant is properly established by the prosecution. We are also of the view that the learned Advocate, Mr. Vin, is also right when he does not challenge the involvement of the appellant in the incident.

We notice from the medical evidence of Dr. Babulal Mittal (Exh.8) that, initially, he treated the deceased. He was given a history of injury being caused with a stick. He noticed a C.L.W. on right parietal region of the deceased of the size of 1 x 1/8 x 1/8. He says that the injury is possible with the muddamal stick, which is handle of an axe. The doctor, on being cross-examined, admits that, when deceased-Raju was brought to him, the injuries sustained by him were found simple.

7.1 Dr. Vaishakhiben Jaswantrai (Exh.10) says that, she noticed one injury on right parietal region of the size of 5 cms., which was sutured and there was a contusion of the size of 2 cms. around the injury and that the injury was sufficient in the ordinary course of nature to cause death. She says that corresponding internal injury of the nature of fracture of temporal bone resulting into extra dural haemorrhage were also noticed and the deceased expired on account of cerebral trauma. She also says that the injury was possible with the muddamal stick.

When involvement of the appellant is not in dispute, we have to examine the circumstances in which the incident occurred. It emerges from the evidence of prosecution witnesses that the appellant along with the acquitted accused persons went near the house of first informant, Dakshaben, which is near the house of mother of the appellant. The appellant''s side and the complainant''s side have strained relations and the dispute was in respect of their privilege to collect Valu (evening meal) from the houses of the locality where they were working as sweepers. It also emerges from evidence that the appellant was under influence of liquor. As per the prosecution case, he appears to have gone with his family members to the place and none of the other family members was armed with any weapon. The meeting resulted into a quarrel and the appellant gave a stick blow on head of the deceased. We find that the blow was given on right parietal region where there was no apparent external injury of a serious nature, but there were fractures at the base of the skull on the right parieto temporal bone going to the base of the skull in right mid cranial fosa. We are, therefore, inclined to accept the submission made by learned Additional Public Prosecutor that the blow must have been given with sizeable force. The weapon is a wooden handle of an axe. Obviously, it is supposed to be strong and a little heavy. There cannot be any ostensible evidence in this regard because it is a mental state of the assailant, but the mental state can be inferred from the conduct and surrounding circumstances. Now, in our view, if the blow is given on vital part of the body like head with such a force which results in injuries sustained by the deceased, knowledge on part of the assailant that the act was likely to cause death can safely be inferred. However, it is not the case of the prosecution that there was any attempt on the part of the appellant to cause further injuries. It is difficult to infer intention on part of the appellant to cause death of the deceased. In our opinion, the Trial Court ran into an error in recording conviction in respect of the appellant for the murder of deceased-Raju Mana. The conviction ought to have been for the offence of culpable homicide not amounting to murder punishable u/s 304 Part-II of I.P.C. The conviction is, therefore, required to be altered accordingly.

We have heard learned Advocate, Mr. Vin, for the appellant and the learned Additional Public Prosecutor on the question of punishment. Looking to the circumstances in which the incident occurred and the social background of the appellant as well as the deceased, we are of the view that ends of justice would be met if the appellant is imposed punishment of rigorous imprisonment for a period of 10 years and a fine of Rs. 5000/- and, in default, to undergo further imprisonment for a period of one year.

In the result, the appeal is partly allowed. The judgment and order of conviction and sentence of the Trial Court recording conviction of the appellant for the offence punishable u/s 302, I.P.C. is altered to one u/s 304 Part-II of I. P .C. and the sentence of imprisonment for life and fine of Rs. 5000/- imposed by the Trial Court is altered to rigorous imprisonment for a period of 10 years and a fine of Rs. 5000/- and, in default, to undergo imprisonment for a further period of one year. The judgment and order of the Trial Court shall stand modified to the aforesaid extent.