Rameshbhai Bhemabhai Bariya and Others vs State of Gujarat

Akil Abdul Hamid Kureshi, J.—These cross appeals arise out of the judgment of the learned Additional Sessions Judge, Godhra dated 15.10.2008 rendered in Sessions Case No. 146 of 2007. By the said judgment the learned Judge convicted all the four accused for offence u/s 304 Part-I of Indian Penal Code read with Section 114 thereof and sentenced them to 10 years of R.I. Accused were acquitted for offences punishable u/s 504 and 506(2) read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. Original accused have therefore filed Criminal Appeal No. 3081 of 2008 challenging their conviction and sentence. State has preferred Criminal Appeal No. 7 of 2009 challenging the same judgment contending that the accused should have been convicted for offence u/s 302 read with Section 114 of Indian Penal Code.

Briefly stated the prosecution version was that the accused were distant relatives of deceased Hemabhai Sayba. The first informant and sole eyewitness Gemabhai Maganbhai was a cousin brother of deceased Hemabhai. On 26.6.2007 in the afternoon hours Hemabhai approached the accused with a demand that a part of the ancestral agricultural land be handed over to him for cultivation. All the accused thereupon got excited and started abusing Hemabhai. Accused No. 1 Ramesh Bhema was carrying an axe. Accused Nos. 2 and 3 Bhemabhai Chhaganbhai and Rupabhai Chhaganbhai respectively were carrying sticks. Shankarbhai Rupabhai - accused No. 4 was unarmed. Accused No. 1 gave blow on the head of the deceased with his axe and gave yet another blow on the knee. Accused Nos. 2 and 3 gave stick blows. Accused No. 4 gave kick and fist blows. Complainant Gemabhai Maganbhai P.W. No. 5 witnessed the incident, but could not interfere out of fear. He run away from the spot and returned later after informing his brothers. Hemabhai was being taken to the hospital where on the way he died.

The charge was therefore framed against all the accused at Ex. 2 alleging that they had committed offences punishable under Sections 302, 504, 506(2) read with Section 114 of the Indian Penal Code and u/s 135 of the Bombay Police Act.

Gemabhai Maganbhai P.W. No. 5 Ex. 24 deposed that incident took place on 26.6.2007. The accused were distant relatives of the deceased. Deceased was his cousin brother. The ancestral property was divided except one portion which was retained by his grand-father. After his death the land remained fallow. Hemabhai Sayba deceased therefore went and told the accused that since they were not cultivating the lands since two years, they should give his share of the land to him for cultivation. Accused No. 1 Rameshbhai Bhemabhai abused him saying that he wanted to snatch their ancestral lands. Rameshbhai Bhemabhai was carrying an axe from his house, Rupabhai was carrying a pipe, Bhemabhai had a stick, Shankarbhai was unarmed. Rameshbhai - accused No. 1 gave a blow with the axe on the side of the head. Upon which the deceased fell down. Rameshbhai gave another axe blow on the knee. Rupabhai Chhaganbhai and Bhemabhai Chhaganbhai gave pipe and stick blows, Shankarbhai Rupabhai kicked him. The witness was doing his agriculture work there, he therefore rushed to the spot and pleaded to the accused not to beat up the deceased. He was told that one is finished. He would also be finished. He, therefore, run away from the spot and went home and informed his brothers Ganpat Magan and Balubhai. In the evening all the three brothers went to the spot and saw that Hemabhai was bleeding but seemed to be alive. They took him to the Government Hospital in the Chhagdo rickshaw. The doctor on examination declared him dead. His complaint was recorded by the police which was produced at Ex. 25. He identified the accused as well as the weapons used by them before the Court.

4.1 He was asked detailed questions about the location of the place, his house and the fields to improbable his presence and the fact that he had witnessed the incident. Nothing substantial however came out in such detailed cross-examination. He was also asked multiple questions about deceased Hemabhai Sayba not being actively involved in agricultural activities. He, however, denied such suggestion. He denied that from where he was cultivating his land it was not possible to see the incident. He stated that upon hearing the noises he rushed to the spot.

In the FIR Ex. 25 he had given substantially similar version of the family dispute about the ancestral land and the four accused having beaten up deceased Hema Sayba.

Dr. Satish Pawar P.W. No. 6 Ex. 26 had carried out the postmortem. He was the Medical Officer at Primary Health Center, Richhwani. In his deposition as well as in the P.M. Note Ex. 27 he had mentioned the following external injuries.

List of injuries:--

(1) CLW over left frontoparietal eminence size 6 cm long x 3 cm broad, brain tissue deep, transverse in direction.

(2) CLW over left temproparietal region size 4 cm long x 1 cm broad brain tissue deep and posterior to injury No. (1) above.

(3) Incised wound over left parietal eminence of size 5 cm long x 1 and half broad, tissue deep with brain mater escaping.

(4) Incised wound 2 cm above left eyebrow oblique in direction of size 2 cm long x half cm wide on forehead.

(5) Abrasion over posterior aspect of right shoulder of size 2 cm x 2 cm, round and brownish red in colour.

(6) Abrasion over exterior aspect of right elbow of size 3 cm x half wide, transverse in direction of brownish red in colour.

(7) Two parallel bruises over lateral aspect of left shoulder vertical in direction of size 5 cm long x half cm wide and half cm apart dark red coloured.

(8) Two parallel bruises over lateral aspect of lower upper arm transverse in direction, size 4 cm long x half cm wide and half cm apart.

(9) Bruise over exterior aspect of upper left forearm region reddish brown coloured of size 2 cm long x half cm wide.

(10) Small bruises of reddish brown coloured over left side of chest below the nipple.

(11) Bruise over membrane stream, size 1 cm long x half cm wide reddish brown coloured.

(12) Bruise over middle of lateral aspect of left thigh of size 3 cm long x half cm wide, dark red coloured.

(13) Incised wound on poster lateral aspect of left knee, bone deep size 3 cm x 2 cm wide.

(14) Bruise over posteromedial aspect of right knee dark red coloured size 2 cm long x half cm wide.

List of fractures -

(1) Compound fracture of left side of frontal bone.

(2) Fractured left parietal bone and brain mater escaping.

(3) Fractured left temporal bone.

Corresponding to such injuries he has noticed the following internal injuries on the body of the deceased.

(1) CLW over left front parietal region, size 6 cm X 3 cm wide brain tissue deep,

transverse in direction.

(2) CLW over left temproparietal region size 4 cm x 1 cm wide, brain tissue deep.

(3) Incised wound on left parietal region size 5 cm long x 1 and half cm wide brain tissue deep with brain mater escaping.

(4) Incised wound 2 cm above left eyebrow, oblique in direction size 2 cm x half cm wide on forehead.

Fractures:

(1) Compound & open fracture of left side of frontal bone.

(2) Open fracture of left parietal bone C brain mater escaping.

(3) Open fracture of left temporal bone.

- Extracranial & intracranial haemorrhage.

- Massive extradural & intradural haemorrhage.

- Brain membranes & tissue congested.

- Brain mater escaping outside the wounds with massive clots in cranium.

According to him, the injuries were ante mortem. He deposed that the fractures could be caused by ''Kuhadi''. The bruises, abrasions could be caused by a stick or a pipe. The injuries were sufficient in ordinary course of nature to cause death. In his opinion the deceased died due to severe injuries to vital organ (brain) and severe haemorrhage.

6.1 In the cross-examination he agreed that injuries No. 1 in column No. 17 of the postmortem were independent injuries and each one could have independently caused death.

P.W. No. 8 at Ex. 29 Jashwantsinh Jadav had carried out the investigation. He gave the detailed steps undertaken by him during the course of such investigation.

Various articles collected during the course of investigation were sent for forensic analysis. Combined reading of the FSL report and the serological report Ex. 35 established presence of human blood of group "AB", that belonging to the deceased on the clothes of the accused No. 1. Though the clothes of the accused No. 2 also indicated presence of blood the group thereof could not be decided.

On such evidence on record the learned counsel Shri Mankad for the appellants vehemently contended that the prosecution failed to prove the charges against all the accused. In fact, the prosecution case was based on testimony of the sole eyewitness who was related to the deceased. There were earlier disputes between two sides of the family about land partition. There were number of contradictions in his deposition. In absence of any other corroboration conviction cannot be based on such unreliable account of the sole eyewitness.

9.1 Counsel further submitted that in any case the learned Judge erred in applying Section 114 of Indian Penal Code and convicting accused Nos. 2 to 4 for offence culpable homicide. He submitted that it is their individual acts which should be judged.

On the other hand learned APP Shri Jani submitted that evidence on record sufficiently establish the guilt of the accused. In fact, the learned Judge erred in convicting the accused for the culpable homicide not amounting to murder. Looking to the injuries and the weapons used it was clear case of murder.

We may first appreciate the evidence on record. As per the eyewitness P.W. No. 5 Gemabhai when he was looking after the agriculture operation in his field, his cousin brother deceased Hema Sayba went to the four accused and demanded that the portion of the ancestral land which had remained fallow since two years be given to him for cultivation or at least his part of the share may be handed over so that he may cultivate the land. Rameshbhai Bhemabhai started abusing him and accused him of trying to snatch their ancestral land. They were carrying instruments such as axe (accused No. 1), pipe (accused No. 2) and stick (accused No. 3). Accused No. 1 gave blows with the axe on the head. Others gave pipe and stick blows. Accused No. 4 kicked him.

Despite detailed cross-examination no major contradiction or inconsistency were brought out by the defence. The version of this witness was substantially in consonance with his FIR recorded by the police. The medical evidence in the form of deposition of Dr. Satish Pawar P.W.No.6 Ex. 26 and the P.M. Report Ex. 27 corroborate the eyewitness account. The deceased carried as many as 14 injuries, in particular he had fractures on the head which can be caused by a weapon such as an axe. The doctor specified that the fracture could have been caused by a weapon such as the axe. Other injuries such as bruises and abrasions could be caused by a pipe or a stick. The murder weapons were recovered. The clothes of the accused were also recovered, in particular the pant of the accused No. 1 carried the blood of the deceased.

In view of such clear evidence we have no hesitation in accepting the prosecution version that on the date of the incident the deceased Hema Sayba was assaulted by the accused and in particular accused No. 1 gave the fatal blows.

Two questions, however, remain. First is whether the offence could be one of culpable homicide not amounting to murder or one of murder. Second question is would all the accused be answerable to the said offence with the aid of Section 114 of the Indian Penal Code or whether accused No. 1 alone can be convicted for the said offence and other accused should be held liable for individual acts. The second question becomes relevant because from the eyewitness account as well as the medical evidence it clearly emerges that it was accused No. 1 who gave the fatal blows with an axe. The other injuries on different parts of the body which were in the nature of bruises and abrasions could have been caused by the use of the pipes and sticks. There is at the best involvement of the accused No. 4 in giving kicks. To reiterate, the evidence is clear that the deceased died due to the blows given on vital part of the body i.e. head with an axe which caused multiple fractures. According to the doctor also this was the cause of the death. The other accused at best therefore gave pipe, stick and kick blows on the rest of the body and the corresponding injuries were nothing more serious then abrasions and bruises.

Coming to the question of involvement of accused No. 1, in view of the fact that he had used a weapon such as an axe and gave blows, that too on the head, causing serious damage and fractures which ultimately result into death of the deceased, we do not see how at least his case can be covered under definition of culpable homicide not amounting to murder. From the nature of the weapon used, the part of the body where the injuries were caused and the corresponding damage that such blows resulted into, the intention of causing death was writ large on the face of the record. In our opinion, the learned Judge committed a serious error in categorizing the offence as one punishable under Part-I of Section 304 of Indian Penal Code. The learned Judge relied on Exception 4 to Section 300 to shift the offence from the definition of murder to that of culpable homicide not amounting to murder. Exception 4 provides that a culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

It may be a case of a sudden fight. It was certainly not a case where the offender have not taken undue advantage or acted in a cruel manner. He along with his two brothers was duly armed. The deceased was unarmed and alone. The accused No. 1 gave multiple axe blows so severe as to cause serious damage to the vital part of the body. In our opinion therefore at least insofar as accused No. 1 is concerned, he cannot escape the liability of being convicted for the offence u/s 302 of the Indian Peal Code. To that extent the State appeal must succeed.

Coming to the question of involvement of the rest of the accused, as we have already concluded, they did not cause any fatal or even serious injuries. They were armed with pipe and stick. Accused No. 4 had no arms at all. The corresponding injuries on the body of the deceased show mere bruises and abrasions.

In addition to such factors we must bear in mind that the event was not a premeditated action. It was the deceased who came to the accused and demanded his share from the ancestral property. It was thereupon that accused No. 1 got excited, he first abused the deceased and then immediately gave axe blows to him.

Regarding carrying of the different arms we need to peruse the evidence more closely. In the examination-in-chief the sole eyewitness Gemabhai P.W. No. 5 had stated that accused No. 1 Ramesh Bhema was carrying an axe from his house, Rupa Chhagan a pipe and Bhema Chhagan a stick. Shankarbhai Rupabhai was unarmed. This narration comes immediately after the reference to the deceased approaching these four accused and demanding the share of the ancestral property upon which accused No. 1 got angry and started abusing him. One way of appreciating this portion of the evidence could be that after this quarrel the accused went back to their house and came out again with the respective weapons. Another way of looking at the same statements is that the accused were already carrying such weapons when the deceased approached them. If we accept the later interpretation, this version of the witness would be in conflict with his statement in the FIR in which he has stated that in the afternoon on the date of the incident the four accused were proceeding with axe, pipe and stick when the deceased approached them and demanded the share of the property. In our opinion therefore the correct way of looking at the deposition of this witness is that the accused did not go back to their house and come back with the respective weapons after the quarrel and started assaulting him. These persons were carrying such instruments when the deceased approached them. Being agriculturists they could be easily expected to carry such instruments normally used in agriculture operations. This is of some significance because if we accept the version of the accused going back to the house and coming back with the weapons, the same would indicate a certain premeditation and meeting of minds for carrying out a common intention. In the present case all of them were carrying such instruments and used the same after a brief quarrel.

In this respect also it was accused No. 1 who first started shouting and abusing the deceased and gave the axe blows. We may recall that there was no charge of the offence of the murder with the aid of Section 34 of the Indian Penal Code. What was charge was Section 302 read with Section 114 of the Indian Penal Code. Section 114 of the Indian Penal Code provides that whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act. We are therefore essentially concerned with application of Section 107 of the Indian Penal Code, the question of presence of the abettor comes later. Section 107 of the Indian Penal Code defines abetment of a thing. A person is said to have abetted a thing if he instigates a person or engages one or more persons in conspiracy of doing that or intentionally aids any act or illegal omission in doing of that thing. For obvious reason the first and second clauses of instigation and conspiracy do not apply. Nowhere had any of the accused instigated the other to commit the offence. The question is would the third clause, namely, intentionally aiding of the illegal act or omission was established.

In case of Trilok Chand Jain Vs. State of Delhi, the Apex Court observed that, intention to aid commission of crime, is the gist of the offence of abetment by aid. In case of Shri Ram Vs. The State of U.P., the Apex Court observed that in order to constitute abetment, the abettor must be shown to have "intentionally" aided to commission of the crime. Mere proof that the crime charged could not have been committed without interposition of the alleged abettor is not enough compliance with the requirements of Section 107. It was held and observed as under:--

The question which then arises for consideration, a question to which the Sessions Court and the High Court have not paid enough attention, is whether the only inference which arises from the fact that violet gave the particular shout is that by so doing, she intended to facilitate the murder of Kunwar Singh,, Section 107 of the Penal Code which defines abetment provides to the extent material that a person abets the doing of a thing who "Intentionally aides, by any act or illegal omission, the doing of that thing." Explanation 2 to the section says that "Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to and the doing of that act." Thus, in order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invite. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment under the, third paragraph of section 107.

In view of such settled legal position, in our opinion, accused Nos. 2 to 4 cannot be said to have aided the offence of murder committed by accused No. 1. They would be responsible for individual acts. To reiterate, there was no prior meeting of minds nor was there any premeditation no instigation or aiding of the commission of the act was established. Though P.W. No. 5 Gemabhai Maganbhai did say that he was told that one person is finished he would also be finished, he did not specify which accused uttered those words.

In conclusion we are of the opinion that accused No. 1 Ramesh Bhema should be convicted for offence u/s 302 of the Indian Penal Code. The rest of the accused Nos. 2 to 4 can be convicted only for the offence u/s 323 of having caused simple hurt. Accused No. 1 would be sentenced to imprisonment for life. Sentence of accused Nos. 2 to 4 would be reduced to six months of R.I. In each case direction for payment of fine would remain unchanged. In the result, the appeals are disposed of in following manner:--

(1) Rameshbhai Bhemabhai Bariya - accused No. 1 is convicted for offence u/s 302 of the Indian Penal Code and sentenced to life imprisonment. To that extent State appeal is allowed. Direction for payment of fine imposed by the trial Court shall remain unchanged.

(2) Conviction of accused Nos. 2 to 4 for offence u/s 304 Part-I of the Indian Penal Code is set aside. They are instead convicted for offence u/s 323 and sentenced to R.I. for six months. Fine imposed is maintained. We notice, accused Nos. 3 and 4 have served sentence for in excess of what is imposed by us. They shall be released forthwith if not required in any other criminal case. Accused No. 2 has recently been released on bail. His bail bonds stand cancelled.

(3) Criminal Appeal No. 3081 of 2008 is allowed to that extent. R & P to be sent back to the trial court forthwith.