Satishbhai Laljibhai Rabari and Others vs State of Gujarat

A.L. Dave, J.—The appellants were the accused before the Sessions Court, Vadodara in Sessions Case No. 46 of 2004 who came to be convicted for offences punishable under Sections 143, 147, 148, 302 read with 149 and 447 of the Indian Penal Code (for short "IPC") and Section 135 of the Bombay Police Act by judgment and order dated 29th July, 2005. Their sentences are as under:

1.1 For offence punishable u/s 143 of IPC, they are sentenced to undergo RI for six months and to pay a fine of Rs. 100/-, in default to undergo further RI for ten days.

1.2 For offence punishable u/s 147 of IPC, they are sentenced to undergo RI for one year and to pay a fine of Rs. 100/-, in default to undergo further RI for ten days.

1.3 For offence punishable u/s 148 of IPC, they are sentenced to undergo RI for one year and to pay a fine of Rs. 100/-, in default to undergo further RI for ten days.

1.4 For offence punishable u/s 302 read with Section 149 of IPC, they are sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/-, in default, RI for one month.

1.5 For offence punishable u/s 447 of IPC, they are sentenced to undergo RI for one month and to pay a fine of Rs. 100/-, in default to undergo further RI for ten days.

1.6 For offence punishable u/s 135 of the Bombay Police Act, they are sentenced to undergo RI for one month.

The prosecution case is brief is that the appellants along with Juvenile Mukesh Ravjibhai Rabari were playing cricket at about 17:30 hrs on 16th November, 2003 on the RCC Road at village Dena near the house of Ramabhai Jivabhai Rabari. At that very point of time, Ramabhai Jivabhai Rabari and his associates were loading and filling gunny bags with paddy. While the appellants were playing cricket, the ball hit deceased Ramabhai. Ramabhai therefore, asked them to go and play somewhere else, as a result of which, the appellants got enraged. Accused No. 2 caught hold of Ramabhai by neck, accused No. 4 caught hold of Ramabhai by hand, accused No. 1 inflicted blows with cricket bat on chest, back and other parts of body of Ramabhai, whereas accused No. 3 inflicted blows with silver wristband that he was wearing and accused No. 5 instigated the others, as a result of which, the deceased died. It is further the case of the prosecution that when first informant Pravinbhai Savabhai Rabari intervened, he was also given kick and fist blows by the appellants.

Victim Ramabhai was taken to Hospital, where he was primarily treated, but died during the treatment. On basis of the first information given by Pravinbhai Savabhai to Vadodara Taluka Police Station, offence was registered and case was investigated. Charge sheet was filed in the Court of JMFC (3rd Court), Vadodara, who in turn committed the case to the Court of Sessions and Sessions Case No. 46 of 2004 came to be registered. Charge was framed against the accused persons (the appellants) at Exh-3. Mukesh Ravajibhai, being Juvenile, was referred to the Board of Juvenile Justice, Vadodara. The accused pleaded not guilty to the charge and claimed to be tried and convicted and sentenced as stated in the earlier part of this judgment.

Heard learned Senior Advocate Mr. KJ Shethna for the appellants and learned APP Mr. Parikh assisted by learned advocate Mr. Vikram Thakor for the respondent State.

Learned Senior Advocate Mr. Shethna submitted that there is no evidence worth the name to prove the case. He submitted further that there is no evidence as to when the deceased reached the Hospital and what history was given about the incident in the Hospital. It was also submitted that the allegation is that accused No. 2 pressed the neck of the deceased. Accused No. 2, at that time was hardly 19 years of age, whereas the deceased was 45 years of age with robust health. PW 1 Pravinbhai Savabhai, the first informant has stated in the history given to the doctor about himself being injured by accused No. 2 with bat. His case history is that he was given kick and fist blows by all the assailants. Though, the incident has occurred in a residential area, no eye witness is examined by the prosecution and only interested witnesses are examined. Mr. Shethna submitted that the medical evidence is not sufficient to show that the injuries were sufficient in ordinary course of nature to cause death. Harkhaben, wife of Savabhai (Exh-46) is a tutored witness and her evidence is not convincing. PW 13 Amratben, wife of victim Ramabhai, is required to stay at her parental house on account of quarrel about having a daughter. Mr. Shethna submitted that in any event, there is no evidence to show that there was an unlawful assembly, which had a common object of causing death of the deceased. He further submitted that accused No. 2 also cannot be attributed with any intention of causing death of the deceased. As per the first informant, the deceased was taken to Hospital, treated and died during the treatment. If accused No. 2 had any intention of causing death of the deceased, he had the opportunity to cause death of the deceased by continuing with the throttling for few moments more. The act attributed to accused No. 2 therefore, cannot be considered as murder. So far as other accused are concerned, Mr. Shethna submitted that each of them would be responsible for his own overt act in absence of any material to show that there was either an unlawful assembly or that there was a common intention. By way of alternative submission, Mr. Shethna submitted that the conviction will have to be altered from Section 302 to Section 304 (Part II) of IPC in respect of accused No. 2 and conviction of rest of the accused, at the worst, could be for the acts attributed to each of them individually.

Learned APP Mr. Parikh has opposed this appeal. According to him, there is evidence of eye witnesses to show that the accused persons assaulted the deceased and the first informant, and caused death of the deceased and hurt to the first informant. There is supporting medical evidence. There is no reason to disbelieve the version of eye witnesses. The relations between the accused and the first informant were strained on account of earlier land disputes and, therefore, the appeal may be dismissed.

According to Mr. Parikh, accused No. 2 has throttled the deceased to death, and ultimately, the deceased has succumbed to the assault. When somebody is throttled what else could be the intention of the appellants and, therefore, the appeal qua accused No. 2 may be dismissed. Mr. Parikh submitted that there is consistent evidence of the first informant and other witnesses to implicate the appellants. They have therefore, rightly been convicted and the appeal may therefore, be dismissed.

We have examined record and proceedings in the context of rival submissions. If medical evidence is seen, Dr. Gupte is examined at Exh-37 and Dr. Desai is examined at Exh-40. Exhibit 41 is the postmortem note. The postmortem note indicates that the cause of death was Asphyxia due to strangulation. The postmortem note indicates following external injuries.

Abrasion over the lateral end of the supraclavicular fossa in an area of 4 X 4 cm.

Abrasion over the front of the neck first above the suprasternal notch 3 X 1 cm.

Abrasion 5 X 3 cm over the Rt supraclavicular fossa lateral aspect.

Linear abrasion over the Rt side of the neck posterclateral aspect 7 X 1 cm, 2 cm above the previous injury.

Abrasion 1 X 1 cm over the Rt eye.

Abrasion over the back of the chest at the level of T12, 3 X 2 cm, over 11 3 X 2 cm.

According to postmortem, external injury Nos. 1, 5, 6, 7, 8 and 9 and injury on throat (neck) were sufficient in ordinary course of nature to cause death. The external injuries on neck and corresponding internal injuries would show that the deceased died of strangulation. The injuries could not have been either accidental or suicidal and, therefore, the deceased met with a homicidal death.

If evidence of first informant PW 1, Pravinbhai Savabhai (Exh-17), is seen, he describes the injury as stated earlier and attributes throttling to accused No. 2, giving of blows to the deceased with bat on various parts of body of the deceased to accused No. 1, causing injuries with silver wristband to accused No. 3, accused No. 4 with having caught hold of the deceased and accused No. 5 with instigation. He further goes to say that people intervened. That his uncle deceased Ramabhai started having fits and froth started coming out from his mouth. He was therefore, immediately taken to SSG Hospital in auto rickshaw and the doctor started emergency treatment. However, the victim died during the treatment. The other eye witnesses are PW 7, Gitaben Savabhai Rabari (Exh-33), PW 9, Akbarali Motaji Chauhan (Exh-35), PW 10 Ismail Umarbhai Chauhan (Exh-36) and PW 14, Harkhaben Savabhai Rabari (Exh-46).

Perusal of these witnesses would indicate that witnesses Akbarali Motaji Chauhan (Exh-35) and Ismail Umarbhai Chauhan (Exh-36) have not supported the prosecution case. It is the first informant Pravinbhai Savabhai, Gitaben Savabhai (Exh-33) and Harkhaben Savabhai Rabari (Exh-46) are the witnesses who supported the prosecution case. Their evidence is consistent that accused No. 2 caught hold of the deceased by neck, accused No. 1 gave blows with bat on stomach and back of the deceased, accused No. 3 caused injuries with silver wristband, accused No. 5 is attributed with instigation, whereas accused No. 4 is attributed with having caught hold of the deceased by hand. The witnesses have been cross-examined.

From the evidence, what emerges, is that the incident occurred all of a sudden and without premeditation when the ball of the accused side hit the deceased and the deceased rebuked them. It is the case of the prosecution itself that the accused persons were playing cricket and the incident occurred. There is no question of any premeditation or meeting of minds to have common object together and then to formulate the unlawful assembly.

The acts of each of the accused therefore, would not be governed by application of Section 149 of the IPC, as has been done by the trial Court.

13.1 So far as role of accused No. 1 Satishbhai Laljibhai Rabari is concerned, he is alleged to have caused injuries with bat on stomach and back of the deceased. He is not attributed any other act. The assault has resulted only in simple injuries on the deceased and, therefore, he can be convicted for offence punishable u/s 324 of the IPC.

13.2 So far as accused No. 2 Kanubhai Ravjibhai Rabari is concerned, he is alleged to have throttled the deceased. In that context, evidence is consistent and gets corroborated by the medical evidence of injuries on neck of the deceased. Accused No. 2 is convicted for the offence of murder, but the manner in which the incident has occurred and the power that accused No. 2 used against the deceased are good enough to rule out the possibility of intention on part of accused No. 2 to cause death of the deceased. Accused No. 2 has not used any weapon. He is himself a physically challenged person aged 19 years and if he had common intention to cause death of the deceased, he would not have left the neck of the deceased halfway. It is an indisputable situation as is deposed by the first informant, that the deceased died at the Hospital while he was being treated. If accused No. 2 had any intention of causing murder of the deceased, he would not have let go the grip on the neck of the victim that he had strongly held. If the intention is missing, obviously accused No. 2 cannot be convicted for the offence of murder.

13.3 Accused No. 4 is attributed with the act of having caught hold of the victim and it was therefore, urged that his active participation of this nature facilitated the commission of the main crime and therefore, he should be convicted with the help of either Section 34 or 114 or 144. As discussed earlier, Section 149 is not attracted. So far as application of Section 114 or 144 is concerned, there is no material to show that the appellants nurtured any intention to cause death nor is there any material to show that he shared a common intention with accused No. 2. The incident occurred abruptly. Nobody could have anticipated the ball to hit the deceased and resultant quarrel.

13.4 So far as accused No. 3 is concerned, he is alleged to have caused hurt to the deceased with the help of silver wristband, and the injuries found on the person of the deceased would corroborate the case of the prosecution as far as they relate to accused No. 4 and accused No. 1.

13.5 Accused No. 5 is alleged to have instigated the rest of the accused persons.

When the incident occurred all of a sudden and when there is no material to show that there was any premeditation, there could not have been any unlawful assembly nor could it be said that the appellants shared a common intention of causing death, because it has not resulted instantaneously upon throttling by accused No. 2 and, therefore, would not assume any greater importance.

In our view, accused Nos.3,4 and 5 cannot be said to have shared any common intention, but they jumped into the quarrel which erupted suddenly. They would therefore, all be responsible for their own individual acts. The conviction of the appellants for various offences with the help of Section 149, therefore, is unsustainable.

In the result, the appeal is partly allowed. The conviction and sentence dated 29-7-2005 passed by the learned Addl. Sessions Judge, Fast Track Court No. 14, Vadodara in Sessions Case No. 46 of 2004, is hereby set aside and:

16.1 Accused No. 1 Satishbhai Laljibhai Rabari is convicted for offence punishable u/s 324 of IPC and is sentenced to undergo RI for 30 months and to pay a fine of Rs. 1000/-, in default, to undergo further SI for fifteen days.

16.2 Accused No. 2 Kanubhai Ravjibhai Rabari is convicted for offence punishable u/s 304 (Part II) of IPC and is sentenced to undergo RI for five years and to pay a fine of Rs. 2000/-, in default, to undergo further SI for one month.

16.3 Accused No. 3 Rajubhai Laljibhai Rabari is convicted for offence punishable u/s 323 of IPC and is sentenced to undergo RI for one year and to pay a fine of Rs. 1000/-, in default to undergo further SI for fifteen days.

16.4 So far as accused No. 4 Maheshbhai Devabhai Rabari is concerned, he is alleged to have caught hold of the deceased. He is also alleged to have caused hurt to first informant Pravinbhai Savabhai Rabari by giving kick and fist blows. He is therefore, convicted for offence punishable u/s 323 of IPC and is sentenced to undergo RI for one year and to pay a fine of Rs. 1000/-, in default to undergo further SI for fifteen days.

16.5 So far as accused No. 5 Shankarbhai Lakhabhai Rabari is concerned, he is alleged to have instigated, but evidence of first informant Pravinbhai Savabhai indicates that he also participated in giving kick and fist blows to the first informant himself. He is therefore, convicted for offence punishable u/s 323 of the IPC and is sentenced to undergo RI for one year and to pay a fine of Rs. 1000/-, in default to undergo further SI for fifteen days.

16.6 The conviction of the appellants for offence punishable u/s 447 of IPC is not sustainable for the reason that the incident occurred outside the house on a public road and therefore, is set aside. So far as conviction u/s 135 of the Bombay Police Act is concerned, the same is not sustainable for the reason that the death is caused by throttling and the weapon allegedly used is a cricket bat, which cannot be considered as a weapon. Therefore, the conviction u/s 135 of the Bombay Police Act is set aside.

16.7 All the sentences shall run concurrently and the convicts shall have benefit of set off.