Ravjibhai Tabhabhai Dafda vs State of Gujarat

Akil Kureshi, J.—These appeals arise out of a judgement dated 29.1.2009 rendered by the learned Additional Sessions Judge, Rajkot in Sessions Case No. 50/2008. Both the appellants were the original accused. They were charged with offences punishable under sections 302, 450, 323, 504 read with section 114 of the Indian Penal Code and section 135 of the Bombay Police Act. By the impugned judgement, they were convicted for such offences. For the offence u/s 302 of the IPC, they were were sentenced to life imprisonment. Fine was also imposed. For the remaining offences, lesser punishments were imposed. Substantive sentences were made concurrent. They have therefore, filed two separate appeals challenging such judgement. Briefly stated, the prosecution version was that the accused lived in the same locality as Chaganbhai Somabhai Makwana (the deceased). Previously during Janmasthami time on the issue of girls gambling with cards, a quarrel had taken place between Chaganbhai and the accused. Chaganbhai was beaten up. As a sequel of such incident on 1.1.2008, the accused came to the house of the deceased in the evening hours. When he and his wife were at home, they assaulted the deceased with a hockey stick and pipe, gave several blows on all parts of body including on the head. Chaganbhai died on the spot. He was shifted to the hospital where he was declared brought dead. FIR was lodged by his wife Kantaben.

Charge to this effect was framed at exh.15 alleging that the accused had committed offences punishable under sections 302, 450, 323, 504 read with 114 of the IPC and section 135 of the Bombay Police Act.

Kantaben Chaganbhai, PW-9, exh. 43, wife of the deceased, was eyewitness and the first informant. She deposed that she lived with her husband at Dalitvaas of Jivapur village since years. On 1.1.2008, in the evening at 6 O'' clock, she was at home. Her husband was also there. The accused at that time came there. Naresh Mananbhai (accused No. 2) was carrying a pipe. Ravjibhai Tabhabhai (accused No. 1) had a hockey stick. Both gave repeated blows to her husband. She tried to save him but she was asked to go away. Naresh Mananbhai gave pipe blows on the head. Ravjibhai Tabhabhai gave blows with hockey. Her husband fell down bleeding upon which these people ran away. Her husband died there. Her complaint was recorded at the spot which was produced at exh.44. Her husband was carried to a hospital where the doctor declared him dead. According to her previously during ''Atham'' festival, her husband had scolded girls gambling, upon which the accused had quarreled with him and beat up her husband. Since they were residing in the same area, no complaint was filed about it. She identified the accused as well as the weapons before the Court.

3.1. In the FIR exh.44, she had given similar version, except that in the complaint she had not referred to the accused telling her to go away or else she would be killed when she tried to intervene. Other than this, no major contradictions were extracted in the cross examination.

Ramilaben Harsurbhai Makwana,PW-10, exh.45, in her deposition also referred to the incident of ''Atham''. She further stated that when she was at home, she was informed that accused are beating up Chaganbhai. She ran there to see the accused running away after leaving the hockey stick and pipe. She saw Chaganbhai outside his house bleeding.

Like-wise, Jiviben Hisarbhai,PW-13, exh.48, also lived in the neighbourhood. She deposed that on the date of the incident, she heard noises. She therefore, ran towards the house of Chaganbhai. She crossed Naresh Mananbhai (accused No. 2) carrying a pipe. He gave a blow with the pipe on her leg and ran away. She limbed back to her house.

Dr. Jamnadas Vitthalbhai Makwana,PW-7,exh.28, had carried out the postmortem. In his postmortem report, exh.29 and in his deposition, he had mentioned the following external injuries:

(1) A CLW-transversely at lateral end of it eyebrow - 1 cm x 0.5 cm x deep to bone.

(2) An abrasion on lt. maxillary region.

(3) A CLW-2" x 1 cm x deep to bone-vertically on lt. parital region.

(4) A CLW -4" x 1 cm x deep to bone on Rt. parital region vertically of Rt. parital bone Rt. parital bone divided into multiple pieces lines irregular.

(5) An abrasion on rt shoulder region.

(6) An abrasion at lower part of lt. arm run above lt. elbow on back.

(7) An abrasion on back of lt. elbow.

(8) Abrasions on Rt.& Lt. patella.

(9) A CLW - 1 cm x 0.5 cm x deep to bone vertically on medial aspect of lt. lower limb, 4 inches above it ankle region of lt. tibia and fibula both bones divided into two pieces by a transverse line.

(10) A CLW - 2" x 1 cm x deep to bone vertically midline at ruination of frontal and parital bones.

(11) A CLW - 2" x 1 cm x deep to bone on occipital region. of occipital bone. Bone divided into multiple pieces lines irregular.

6.1. Correspondingly, he had noticed the following internal injuries:

Brain matter damaged under Rt. parital region and occipital region of head. Evidence of profuse hemorrhage intracranially. Brain matter pale and coated by hemorrhage blood.

Meninges teared in Rt. partial region and occipital region.

6.2. According to him the cause of death was shock and hemorrhage due to injury on head and intracranially caused by blunt hard object.

6.3. According to him, such injuries could have been caused by hard blunt substance such as the muddamal articles pipe and hockey stick shown to him. Such injuries were antemortem.

6.4. This doctor had also examined Jiviben PW-13, on 2.1.2008. He had recorded the history of Jiviben as being hit by Naresh Mananbhai with a pipe when she tried to intervene in the fight.

Dr Haridas Narbheram Desani,PW-8,exh.36, had treated both the accused who were presented before him on 3.1.2008. He had recorded the history given by Ravjibhai Tabhabhai (accused No. 1) as being hit by a stick by Chaganbhai(the deceased). He had noticed one wound on head, 3 inch long and quarter inch deep. He had also noticed a superficial abrasion near the first mentioned injury. He had noticed two bruises on the leg.

7.1. He had also recorded the history of Naresh Mananbhai (accused No. 2) as being injured by the assault made by Chaganbhai Makwana (the deceased). On this accused, the doctor had recorded contuse wound of half a inch x half a inch skin deep on the head and the second injury in the nature of bruise of half a inch diameter.

Various articles were collected by the investigating officer Shri Vigneshchandra Nanalal Rajguru, PW-17, exh. 60 during the investigation. The serological report exh.81 read in continuation of FSL report established the presence of human blood of group ''AB'' that belonging to the deceased on the murder weapons, the pipe as well as the hockey stick. This in the nutshell is the evidence on record.

On the basis of such evidence, involvement of the accused in causing the injuries to the deceased which ultimately caused his death simply cannot be discarded. There was ample evidence on record about involvement of these accused persons. To begin with, wife of the deceased Kantaben PW-9, was at the home when the incident took place. According to her, it was about 6 in the evening when the accused arrived armed with a pipe and a stick and gave multiple blows on the head and other parts of the body of her husband. Her husband Chaganbhai was lying in a pool of blood and died on the spot shortly thereafter.

The presence of the accused was more than sufficiently established through other evidence also. Ramilaben Makwana PW-10, residing in the neighbourhood also referred to the accused running away from the spot when she arrived to see what was happening. Harsubhai Chanabhai Makwana,PW-11,exh.46, also referred to the attack by the accused and their running away when he arrived at the scene. Jiviben Makwana PW-13, also lived in the neighbourhood. Upon hearing the shouts, she rushed out to see what was happening. She was herself attacked by one of the two accused. She was given a blow on her leg. Dr. Jamnadas Vitthalbhai Makwana,PW-7, had treated Jiviben for such injury.

The presence and involvement of the accused is thus established by consistent and clear eyewitnesses'' accounts.

Such evidence was duly corroborated by other evidence on record. Firstly, even the history given by both the accused to Dr. Haridas Narbheram Desani,PW-8, confirmed their presence. They themselves had disclosed to the doctor of receiving injuries at the hands of the deceased. Such history would be thus of considerable importance and link the presence of accused with the scene of the incident. Such statement though incriminating, not being in the nature of a confessional statement, would not be hit by sections 25 and 26 of the Indian Evidence Act.

In fact, accused No. 1 had lodged a NC complaint which was produced at exh.54. In such a complaint, he had stated that on 1.1.2008, at quarter to 6 in the evening, when he was sitting at home, Naresh Mananbhai (accused No. 2) came there and informed that Chaganbhai is using abuses since morning. Let us go to his house to finish him. He had thereupon, picked up a hockey stick and went to the house of the deceased. Accused No. 1 asked him why was he abusing since morning. Chaganbhai got angry upon which he could not control himself and raised his hockey stick. At that time, deceased gave a blow with the stick on his head causing bleeding thereupon he and Naresh gave repeated blows with hockey stick and pipe. Hockey stick had also broken.

The ocular evidence was duly corroborated by the medical and the forensic evidence. Dr. Jamnadas Vitthalbhai Makwana,PW-7, had in the deposition as well as in the postmortem report recorded as many as 11 injuries on the body of the deceased. In his opinion, injuries No. 4 to 11 were sufficient in the ordinary course of nature to cause death. Injury No. 1,3,4 and 11 were particularly, serious and were caused on the head. In injury No. 4 and 11, the doctor not only recorded fracture of skull, he further recorded that the bone had broken into many pieces. The murder weapons noted presence of blood of deceased as also the clothes of accused No. 2.

Involvement of accused thus was apparent from the record and clearly established by the prosecution witnesses.

Learned advocates for the appellants however, submitted that this was not a case of murder. The accused did not intend to cause death. The offences are therefore, to be covered u/s 304 of IPC at the very best.

The evidence on record however, suggest to the contrary. The accused went to the house of the deceased duly armed. One person was carrying a pipe, another a hockey stick. They went there with full intention of picking up a quarrel and to cause serious bodily injuries. This was a sequel to the incident of few months earlier when in connection with the issue of girls gambling, a quarrel had taken place between the accused and the deceased when the deceased was beaten up. The manner in which the accused assaulted the deceased, the number of blows given on all parts of the body and in particular on the head, the force with which such hard blunt substance like hockey stick and pipe were used, leave no manner of doubt that the accused intended to cause such bodily injuries as were likely to cause death. Merely because the intention of committing murder may not be premeditated, in facts of the present case, would not mean that the accused did not intend to cause such bodily injuries as were likely to cause death.

The medical evidence clearly brings out the force with which the blows were given, particularly, on the head. The force applied was so severe that hockey stick broke into pieces. This was not a case of a single blow being given in the heat of the moment, after a sudden fight, due to loss of self control.

We are however, surprised with the conviction of accused for offence u/s 135 of the Bombay Police Act. Neither the pipe nor the hockey stick can by itself be called a prohibited weapon. Conviction for such offence is therefore, set aside. In the result, to the limited extent of reversing conviction of accused u/s 135 of the Bombay Police Act and setting aside corresponding sentence and fine, if any, rest of the judgement of the trial Court is confirmed. Appeals disposed of in above terms.

R & P may be transmitted to the concerned trial Court.