State of Gujarat vs Patel Amitkumar Rasiklal @ Khano

J.C. Upadhyaya, J.—Both these appeals arise out of a judgment and order rendered by the learned Additional Sessions Judge (FTC), Mehsana, on 18.1.2003, in Sessions Case No. 237/2000. The learned trial Judge was pleased to convict the appellant of Criminal Appeal No. 483/2003 (original Accused No. 1), for the offences punishable under Sections 302 and 324 of the Indian Penal Code ("IPC" for short) and awarded sentence of life imprisonment and a fine of Rs. 1000/-, in default, S.I for three months, for the offence punishable u/s 302 IPC and R.I for one year and a fine of Rs. 500/-, in default, S.I for one month, for the offence punishable u/s 324 IPC. The learned trial Judge recorded acquittal of original accused No. 2, Patel Amitkumar Rasiklal @ Khanno, which has been challenged by the State by preferring Criminal Appeal No. 463/2003.

The prosecution case, in nutshell, is that the incident occurred on 19.7.2000 at about 9.30 A.M in the Campus of V.R. Patel College of Commerce, situated in the city of Mehsana. According to the prosecution case, two days prior to the date of the incident, deceased Nagjibhai Salubhai addressed original accused No. 1, Babi Abdul Raheman @ Babo Nyajmohmmed as "Bandiyo". The accused No. 1 subsequently came to know about this and told first informant Rameshbhai Keshavlal Chaudhary to bring Nagji Salubhai before him. It is alleged that on the date and time of the incident, Nagji was called from village Boriyavi and he had come to the College Campus. When Nagji met accused No. 1, accused No. 1 asked him as to why he addressed him as "Bandiyo". Thereupon, some quarrel took place between accused No. 1 and Nagji, and it is alleged that accused No. 1 abused Nagji and thereupon Nagji slapped twice accused No. 1 and immediately, Nagji tried to escaped, but, after covering some distance, Nagji fell in a ditch. Nagji was chased by accused No. 1 carrying knife in his hand. As soon as Nagji fell in the ditch, accused No. 1 mounted on him and inflicted two knife blows on the neck and backside portion of the body of Nagji. Accused No. 1 thereafter immediately left the place. First Informant Rameshbhai Keshavlal Chaudhary, who was standing near the place of the incident, also escaped, but, accused No. 1 chased him and when he reached near the road to catch a rickshaw, accused No. 1 came near him and inflicted a knife blow on his cheek running across the face. At that time, accused No. 2, Patel Amitkumar Rasiklal, carrying knife in his hand, was accompanied by accused No. 1. Both the accused persons thereafter escaped. First Informant Rameshbhai Keshavlal then went to the hospital of Dr. Gurjar and took primary treatment and lodged F.I.R before P.S.I of Mehsana Taluka Police Station about the incident. FIR came to be registered and investigation was commenced. The statements of the material witnesses were recorded and after collecting the required material, police filed charge sheet in the Court of learned J.M.F.C. Mehsana against both the accused persons. Since the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions at Mehsana, where it was registered as Sessions Case No. 237/2000.

The trial Court framed charge at Exh.9 against both the accused persons for the offences punishable under Sections 302, 324, 506(2) r.w. Section 34 of IPC, to which both of them did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced oral and documentary evidence. After completion of oral evidence adduced by the prosecution, the learned trial Judge recorded further statements of the accused persons u/s 313 of Cr.P.C., and both the accused persons denied generally all the allegations levelled against them by the prosecution, and stated that they were falsely implicated in this case.

After considering the evidence on record and the submissions advanced on behalf of both the sides, the learned trial Judge recorded conviction of accused No. 1, for the offences punishable under Sections 302 and 324 IPC and awarded sentence, as hereinabove referred to in this judgment. However, he was pleased to acquit original accused No. 2, Patel Amitkumar Rasiklal for the charges levelled against him.

Learned advocate Mr. P.M. Lakhani for the appellant in Criminal Appeal No. 483/2003 (orig. accused No. 1) submitted that the learned trial Judge erred in recording the conviction of the appellant for the offence punishable u/s 302 IPC. He pleaded that considering the entire evidence on record, the offence, which can be said to have been constituted, is a culpable homicide not amounting to murder and not murder itself. Learned advocate Mr. Lakhani, however, submitted that considering the evidence adduced by the eye witnesses, on merits, it will not be possible for him to challenge the involvement of the appellant in the incident, in this appeal.

5.1 Mr. Lakhani has maintained that from the evidence of first informant Rakeshbhai and witness Jayeshbhai Mistry, it appears that a quarrel took place between the appellant and deceased Nagjibhai and Nagjibhai slapped twice the appellant; that there is no evidence whatsoever to come to the conclusion that there was any premeditation in the commission of crime on the part of the appellant; that considering the medical evidence on record, the injury sustained by the deceased on right clavicle anterior part of the neck proved fatal causing death of deceased Nagji, however, the second injury described in the post mortem report is one incised wound of 1.5 cm x 0.5 cm x muscle deep and it is a simple injury. Learned advocate Mr. Lakhani, therefore, submitted that Exception-4 attached to Section 300 IPC may apply and the offence which can be said to have been constituted would be culpable homicide not amounting to murder, punishable u/s 304 Part-I or Part-II of I.P.C.

5.2 Learned advocate Mr. Lakhani for the appellant further submitted that the injury sustained by the first informant is simple in nature and, therefore, considering the evidence adduced by the prosecution, it will not be possible for him to challenge the conviction and sentence recorded by the learned trial Judge for the offence punishable u/s 324 IPC. The learned advocate for the appellant ultimately submitted that the appeal may be appropriately allowed.

Learned A.P.P. Mr. Mengdey has vehemently opposed this appeal and submitted that from the evidence on record it is clear that the appellant gave abuses first in point of time to the deceased and, therefore, it was the appellant, who provided provocation to the deceased and not the deceased who provided any provocation to the appellant. Mr. Mengdey asserted that considering the medical evidence on record, injury caused to the deceased with knife by the appellant was sufficient in the ordinary course of nature to cause his death. He, therefore, pleaded that Exception-4 attached to Section 300 IPC shall not apply in the instant case and the conviction recorded by the learned trial Judge for the offence punishable u/s 302 IPC is correct and appropriate, and therefore, the appeal preferred by the appellant, accused No. 1 be dismissed.

6.1 So far as acquittal of original accused No. 2 is concerned, learned A.P.P. Mr. Mengdey submitted that at the time of the incident, he, carrying knife in his hand, remained present with original accused No. 1 who was also carrying knife in his hand, and along with accused No. 1, he chased first informant Rameshbhai. Thus, the prosecution successful proved the common intention on the part of original accused No. 2 to cause murder of Nagjibhai. The learned A.P.P. Mr. Mengdey ultimately submitted that Criminal Appeal No. 463/2003 preferred by the State may be allowed and the respondent (orig. accused No. 2) be appropriately convicted for the offences punishable under Sections 302, 324 read with Section 34 IPC.

None appeared for the respondent (orig. accused No. 2) in Criminal Appeal No. 463/2003.

We have examined the record and proceedings in the context of the submissions made on behalf of both the sides.

Considering the deposition of first informant Rameshbhai Keshavlal Chaudhary, examined at Exh.31, in the first part of his deposition he has narrated the incident which took place two days prior to the date of the main incident. He has deposited that deceased Nagji Salubhai addressed the appellant (orig. accused No. 1) as "Bandiyo"; that the accused No. 1 subsequently came to know about it and asked the first informant to bring Nagji before him. He has stated that on the day of the incident, he himself, Rameshbhai Shankerbhai, Jayesh Mistry and Nilikh Raval went on two scooters to bring Nagji from village Boriyavi, and they brought Nagji to the College Campus at about 9.00 A.M to 9.30 A.M and at that time, both the accused persons were present in the Campus. Nagji went near accused No. 1 and asked him as to why he was called. Thereupon, accused No. 1 asked Nagji as to why he addressed him as "Bandiyo" and he abused Nagji. Thereupon, Nagji slapped twice accused No. 1. The accused No. 1 immediately took out knife from his pocket and seeing accused No. 1 armed with knife, Nagji tried to escape, but, after covering some distance, he fell in a ditch. The accused No. 1 came near the ditch and mounted on Nagji and inflicted two blows with knife on the body of Nagji. Thereafter both the accused persons, carrying knives in their hands, chased first informant Rameshbhai and accused No. 1 inflicted blow with knife on the cheek running across the face of the first informant and threatened him. The first informant has further stated that at the time of the incident, accused No. 2 wielded the knife in air to keep other students at a distance. However, in his cross-examination, he has admitted that he has not stated in his FIR that Nagji asked accused No. 1 as to why he was called and thereupon accused No. 1 asked Nagji as to why he was addressed as "Bandiyo" and accused No. 1 abused Nagji. He has again admitted that he has not mentioned in his FIR that Nagji slapped twice accused No. 1 because accused No. 1 used abusive language for Nagji. He further admitted that he has not stated in his FIR that at the time of the incident, accused No. 2 was wielding knife in the air so as to keep other students at a distance.

The prosecution has examined witness Jayeshbhai Mistry at Exh.35. His evidence runs almost on the same line as the evidence adduced by the first informant. About the incident, he has deposed that a quarrel took place between accused No. 1 and the deceased, and accused No. 1 took out a knife from his pocket and on seeing the knife in the hand of accused No. 1, Nagji tried to escape, but, fell in a ditch and accused No. 1 inflicted two blows with knife on the body of Nagji. Witness Jayeshbhai Mistry does not speak about the presence of accused No. 2 at the time of the incident, or about any act committed by accused No. 2 at the time of the incident.

The prosecution has examined witness Dahyabhai Popatbhai at Exh.36. According to his evidence, at the time of the incident, when he was passing on Modhera road near the College, at that time, the first informant came out of the College Campus and both the accused persons chased first informant Rameshbhai Chaudhary and accused No. 1 inflicted a blow with knife on the cheek of Rameshbhai Chaudhary. Thereafter, both the accused persons ran away.

11.1 Considering the evidence of Dr. Parmar, examined at Exh.17, who performed the post mortem on the dead body of deceased Nagji, and the post mortem report (Exh.18), it transpires that the deceased had sustained three external injuries. Injury No. 1 was stab-incised wound (1.5 cm x 0.5 cm x cavity deep) in the right supraclavicular region and because of the said injury, right subdaxian vessel was cut. Injury No. 2 was an incised wound (1.5 cm x 0.5 cm x muscle deep) on the back of right side chest. Injury No. 3 was multiple abrusion over the lower right leg. According to the medical evidence, injury No. 1 caused internal injury to right lung and major vessel of neck. Injury No. 1 resulted into the death of the deceased.

Considering the above evidence adduced by the prosecution, so far as the appellant, accused No. 1 is concerned, the prosecution successfully proved his involvement in the incident. Under such circumstances, involvement of the appellant, accused No. 1 is rightly not challenged on merits.

However, the learned trial Judge recorded conviction of the appellant, accused No. 1 for the offence of murder punishable u/s 302 IPC. It has come in the evidence that soon before the incident, there was a quarrel between the appellant, accused No. 1 and deceased Nagjibhai. First informant Rameshbhai Keshablal had though stated that accused No. 1 abused the deceased, he has admitted that he has not stated in his FIR that accused No. 1 abused deceased Nagjibhai. Considering the evidence of witness Jayeshbhai Mistry, he has deposed that there was a quarrel between the appellant and deceased Nagjibhai. But, he has nowhere deposed that Nagjibhai was abused by the appellant. Considering the overall evidence on record, we are of the considered opinion that Exception-4 attached to Section 300 IPC will be attracted in this case. There is nothing on record that there was any premeditation while committing the offence. The quarrel took place suddenly. From the evidence, it is clear that the appellant, accused No. 1 did not take any undue advantage or acted in a cruel or unusual manner. The explanation attached to Exception-4 provides that it is immaterial in such cases which party offers the provocation or commits the first assault.

Considering the overall evidence on record, the offence, which can be said to have been constituted is the culpable homicide not amounting to murder and not murder punishable u/s 302 IPC. Considering the seriousness of the injuries sustained by the deceased and the weapon knife used by the appellant, it can safely be said that the appellant, accused No. 1 committed the offence which is punishable u/s 304 Part-I of I.P.C.

However, so far as the acquittal appeal preferred by the State bearing Criminal Appeal No. 463/2003 is concerned, there is nothing on record to come to the conclusion that the respondent Patel Amitkumar Rasiklal (orig. accused No. 2) aided or abetted any of the offences charged again him. None of the eye witnesses examined by the prosecution attributes any role to the respondent, accused No. 2. The learned trial Judge, assigning cogent and convincing reasons, recorded acquittal of the respondent, original accused No. 2. We do not find any justifiable reason to interfere with the order of acquittal recorded by the learned trial Judge.

In the light of the above discussion, Criminal Appeal No. 483/2003 preferred by original accused No. 1, Babo @ Abdul Raheman Nyazmohmmed Babi requires to be partly allowed and his conviction recorded by the trial Court for the offence punishable u/s 302 IPC is required to be altered to one punishable u/s 304 Part-I of IPC, maintaining his conviction and sentence awarded by the learned trial Judge for the offence punishable u/s 324 IPC. Considering the overall evidence on record and the circumstances under which the incident took place, it would be just and appropriate to award R.I for nine years and a fine of Rs. 1000/-, in default, S.I for three months, for the offence punishable u/s 304 Part-I of IPC.

In light of the above discussion, Criminal Appeal No. 463/2003 preferred by the State Government challenging the acquittal of original accused No. 2, Patel Amitkumar Rasiklal deserves dismissal.

For the foregoing reasons, Criminal Appeal No. 483/2003 is partly allowed. The conviction recorded by the learned Additional Sessions Judge (FTC), Mehsana, on 18.1.2003, in Sessions Case No. 237/2000 for the offence punishable u/s 302 of the Indian penal Code is altered to one punishable u/s 304 Part-I of the Indian Penal Code and the appellant, original accused No. 1-Babi Abdul Raheman @ Babo Nyazmohammed is awarded R.I for Nine years and a fine of Rs. 1000/-, in default, S.I for three months. The order of his conviction and sentence recorded by the learned trial Judge for the offence punishable u/s 324 IPC is not disturbed.

Both the sentences shall run concurrently and the appellant, original accused No. 1 shall be entitled to the benefit of set off.

Criminal Appeal No. 463/2003 preferred by the State stands dismissed.