Vaghabhai Talsibhai Koli and Others vs State of Gujarat

J.C. Upadhyaya, J.—The appellants, who were original accused in Sessions Case No. 4 of 1999, came to be convicted for the offences

punishable under Sections 302, 504 and 324 read with Section 34 of the Indian Penal Code (''IPC'', for short) by Sessions Court, Amreli on

31.8.2001. Each of the appellant-accused was ordered to undergo imprisonment for life and fine of Rs. 5000/-, and in default of payment of fine

R.I. for six months for the offence punishable u/s 302 read with Section 34 of the IPC. No order of separate sentence came to be passed for the

offences punishable under Sections 504 and 324 read with Section 34 of the IPC.

The prosecution case in nutshell is that the incident occurred on dated 29.7.1998 at about 7.30 p.m. in Village Kariyana, Tal. Babra, Dist.

Amreli. At the time and place of the incident, deceased Lakhubhai Harsurbhai along with his son - first informant Maheshbhai Lakhubhai and

Chhaganbhai Jivabhai (PW-12) were proceeding in a rickshaw driven by the first informant Maheshbhai Lakhabhai towards house of witness

Chhaganbhai Jivabhai. They reached in the area called Kolina Nehaliya, at that time, the rickshaw was intercepted by all the four appellants, and at

that time, the appellants No. 1 and 2 were armed with stick, appellant No. 3 was armed with axe and the appellant No. 4 was armed with iron-

pipe. The deceased Lakhubhai and witness Chhaganbhai came out from the rickshaw and immediately appellant-accused No. 3 Valabhai Talsibhai

inflicted a blow of axe on the head of deceased Lakhubhai and Lakhubhai fell on the ground and became unconscious. Deceased was immediately

taken to Government hospital, Babra, and from there he was removed to private hospital of Dr. Trivedi at Rajkot. During the treatment, the

deceased succumbed to the injuries on 30.7.1998 at 13.10 p.m. Son of deceased Lakhubhai named Maheshbhai Lakhubhai lodged first

information report (''FIR'', for short) before PSI, Malaviyanagar police station, Rajkot, and the report, for the purpose of investigation came to be

transferred to Babra police station, as the offence took place within the territorial jurisdiction of Babra police station. The report came to be

registered and police commenced the investigation. During the course of investigation, it was revealed that witness Chhaganbhai Jivabhai (PW-12)

was assaulted by appellant-accused No. 4 Chakabhai Talsibhai with iron-pipe and he sustained injuries on his head and that he was also assaulted

by appellants No. 1 and 2 with sticks. Statements of material witnesses were recorded, weapons used in the crime came to be seized by drawing

necessary panchnamas. After collecting material evidence for the purpose of lodgment of chargesheet, the chargesheet came to be filed in the

Court of learned JMFC, Babra. As the offence was exclusively triable by the Court of sessions, learned JMFC, Babra committed the case to the

Court of sessions, Amreli, which came to be registered as Sessions Case No. 4 of 1999.

2.1 Learned Sessions Judge, Amreli framed charge at Exh.2 against all the four accused appellant-accused persons for the offences punishable

under Sections 302, 324 and 504 of the IPC, to which the accused did not plead guilty and claimed to be tried. Thereupon, the prosecution

adduced its oral and documentary evidence. After the prosecution concluded its evidence, learned Sessions Judge recorded further statements of

all the appellants-accused persons u/s 313 of the Code of Criminal Procedure. The appellants denied generally all the allegations levelled against

them by the prosecution. However, the appellant-accused No. 1 Vaghabhai Talsibhai, in his further statement, stated that accused No. 4

Chakabhai Talsibhai was assaulted by the members of complainant party and in connection with the said incident, complaint came to be filed

against the members of complainant party, and therefore, he was falsely implicated in this case. After considering the evidence on record and the

submissions made on behalf of both the sides, the learned Sessions Judge came to the conclusion that the prosecution successfully proved its case

about the commission of offence punishable u/s 302 of the IPC, and that all the four accused persons in furtherance of their common intention,

caused death of deceased Lakhubhai, and therefore, convicted all the four appellant-accused persons for the offence punishable u/s 302 read with

Section 34 of the IPC. They were also convicted for the offences punishable under Sections 324 and 504 of the IPC read with Section 34 of the

IPC, but no separate order of sentence came to be passed. Therefore, feeling aggrieved and dissatisfied with the impugned judgment and order

rendered by the Sessions Court, Amreli, the appellants-original accused preferred this appeal.

Learned advocate Mr. Buddhbhatti for the appellants submitted that the prosecution miserably failed to prove its case beyond reasonable

doubt. It is submitted that all the so-called eye-witnesses examined by the prosecution in this case, admitted that in the incident, appellant-accused

No. 4 Chakabhai Talsibhai sustained bodily injuries, but, they failed to explain the injuries sustained by accused No. 4. On the contrary, they

pleaded total ignorance about the material aspect. In the FIR, Exh.46, lodged by first informant Maheshbhai Lakhubhai, the son of the deceased,

nowhere he stated that in the incident, witness Chhaganbhai Jivabhai (PW-12) sustained bodily injuries. It is, therefore, submitted that the

prosecution is suppressing the very genesis of the incident. As a matter of fact, it was the first informant-Maheshbhai, his deceased father

Lakhubhai and witness Chhaganbhai, who assaulted with deadly weapons and caused serious bodily injuries to the accused No. 4 Chakabhai

Talsibhai. Therefore, it is submitted that the accused were justified in exercising their right to private defence of person. Thus, the learned Sessions

Judge erred in recording conviction of the appellants for the offence of murder. It is further submitted that about the aspect of motive behind the

commission of the offence, the prosecution has come forward with different stories. That the Investigating Police Officer Mr. Vora (PW-17)

admitted that in connection with injuries sustained by accused No. 4, FIR came to be lodged by the accused No. 4, which came to be registered

as C.R. No. I 87 of 1998. He admitted that he investigated both the offences and that there was a quarrel and free-fight between both the group of

persons. Therefore, it is submitted that the prosecution failed to establish that the act was committed by the accused with premeditation. The

evidence reveals that it was a sudden fight, and a sudden quarrel. It is further submitted that the evidence further reveals that the deceased first in

point of time inflicted axe blow on the head of appellant-accused No. 4 Chakabhai and to save accused No. 4 Chakabhai, the deceased was

assaulted. That thus, as a matter of fact, the accused exercised their right of private defence to their person, but, even if alternatively it is accepted

that the right of private defence came to be exceeded, yet, the offence of murder punishable u/s 302 of the IPC cannot be said to have been

constituted. Thus, alternatively, it is submitted that Exception Nos. 2 and 4 will play predominant role in the facts and circumstances of this case,

and therefore, also the learned Sessions Judge erred in recording conviction for the offence of murder, punishable u/s 302 of the IPC. It is

submitted that the cross-FIR, Exh.62, lodged by appellant-accused No. 4 Chakabhai against deceased, his son Maheshbhai (the first informant)

and Chhaganbhai Jivabhai (PW-12) came to be tendered in evidence during the course of deposition of Investigating Police Officer Mr. Vora by

the prosecution itself, and therefore, the FIR of the cross-case, Exh.62 deserves to be considered together with the contents of the FIR. Therefore,

it is submitted that the appeal may be appropriately allowed.

Learned APP Mr. Mengdey for the respondent-State has vehemently opposed this appeal and submitted that the prosecution successfully

proved that all the accused are involved in connection with offence of murder. The prosecution examined the injured eye-witness in support of their

case. It is submitted that as per the case of the prosecution, the deceased was not attacked by accused-appellant No. 4 Chhaganbhai, but, the

appellant-accused No. 3 Valabhai Talsibhai inflicted axe blow on the head of the deceased. Under such circumstances, Exception No. 4 attached

to Section 300 of the IPC shall not apply in this case. That the very fact that all the four accused persons intercepted the rickshaw armed with

deadly weapons, suggests their common intention, and therefore, there was premeditation amongst the accused persons for the commission of

offence of murder. That the injuries sustained by the deceased was sufficient in the ordinary course of nature to cause death. Therefore, it is

submitted that the appeal may be dismissed.

We have considered the record and proceedings of the trial Court in context with the submissions made on behalf of both the sides.

Considering the record and proceedings of the case, it transpires that the evidence of first informant Maheshbhai Lakhubhai, Exh.45,

Chhaganbhai Jivabhai, Exh.48, Kanchanben Chhaganbhai, Exh.51 and Nirmalbhai Kathi, Exh.52, is required to be considered. Perusal of the

evidence would reveal that the first informant Maheshbhai, the son of deceased Lakhubhai neither in his evidence, Exh.45, nor in the FIR, Exh.46,

referred the fact regarding any injury sustained by witness Chhaganbhai (PW-12) during the course of this incident. About the incident, he stated

that while he himself, his deceased father Lakhubhai and witness Chhaganbhai were proceeding in his rickshaw, at that time, on way to the house

of witness Chhaganbhai, they were intercepted by all the four accused persons and accused No. 3, Valabhai Talsibhai inflicted blow with axe on

the head of his deceased father-Lakhubhai. In his FIR, Exh.46, it is stated that the motive behind this crime was that the accused No. 4 Chakabhai

was involved in one rape case, wherein his deceased father was witness and keeping said grudge in the mind, his deceased father was assaulted.

However, during the course of his evidence, he categorically admitted that the facts he narrated in his FIR about the motive, are incorrect. Much is

said about the contradictory version of motive attributed by the prosecution for the commission of offence on behalf of the appellant, but, we are of

the considered opinion that when the case is based on the evidence of eye-witnesses, and not solely based on circumstantial evidence, no much

weightage should be given to the evidence of motive, because the motive becomes irrelevant and insignificant.

6.1 During the course of cross-examination of first informant Maheshbhai, he admitted that a cross-case is pending against himself, his deceased

father Lakhubhai, witness Chhaganbhai Jivabhai and others about causing injury to the accused No. 4, Chakabhai. He denied the suggestion that

during the course of the incident, he himself and his deceased father assaulted accused No. 4 Chakabhai Talsibhai.

6.2 Chhaganbhai Jivabhai in his evidence, Exh.48, narrating the incident stated that in the incident, he himself sustained bodily injuries. According to

his version, the accused No. 3 Valabhai Talsibhai inflicted blow with axe on his head and that accused No. 4 Chakabhai also inflicted blow of pipe

on his head and accused Nos. 1 and 2 inflicted stick blows on his body. He stated that he took treatment in Government hospital, Babra. He

denied the suggestion that he himself, first informant Maheshbhai and deceased Lakhubhai were armed with weapons. He pleaded his total

ignorance about any injury sustained by accused No. 4 Chakabhai and stated that he does not know whether Chhaganbhai sustained any injury in

the incident. As stated above, the first informant Maheshbhai does not say, either in his evidence or in his FIR about any injury sustained by this

witness Chhaganbhai, in the incident. Witness Kanchanben Chhaganbhai, wife of Chhaganbhai in her examination-in-chief stated that her husband

Chhaganbhai was assaulted by accused persons and they caused the injuries to her husband with different weapons, but, in her cross-examination,

she admitted that she inquired to the first informant Maheshbhai as to what had happened and thereafter, she came to know about the incident.

Witness Nirmalbhai Kathi, though stated that in the incident Chhaganbhai sustained bodily injury, but, he went to the extent of saying that even in

this incident, first informant Maheshbhai also sustained bodily injuries. Maheshbhai, in his evidence, does not state any injury being caused to him

by any accused persons. Under such circumstances, re-evaluating the evidence on record, we are of the considered opinion that the learned trial

Court erred in convicting the appellants-accused persons for the offences punishable u/s 324 read with Section 34 of the IPC. At the same time,

considering the evidence on record, we are of the considered opinion that the prosecution failed to prove the required ingredients of the offence

punishable u/s 504 of the IPC.

It is necessary to consider the medical evidence on record. The prosecution examined Dr. Vindhani at Exh.23, who was serving at the relevant

time as Medical Officer, CHC, Babra. According to his evidence, on 29.7.1998 at 8.45 p.m., Chhaganbhai Jivabhai was brought before him in

injured condition and the history was given to him to the effect that Chhaganbhai was assaulted with axe by somebody. According to his evidence,

on the same day at 8 p.m., injured Lakhubhai was brought before him in injured condition, with the same history that he was assaulted by

somebody. Lakhubhai had sustained serious injuries on his head, and therefore, he referred the patient for further and better treatment to Rajkot.

In his cross-examination on behalf of the defence, he stated that on 29.7.1999 at 11.30 p.m., the accused No. 4 Chakabhai Talsibhai was brought

before him in injured condition. The injuries sustained by accused No. 4 Chakabhai Talsibhai were likely to be caused by hard and blunt

substance. He immediately forwarded one yadi, Exh.38 to PSI-Babra regarding the injuries sustained by accused No. 4 Chakabhai Talsibhai. He

stated that accused No. 4 Chakabhai Talsibhai had sustained two injuries of CLW on his head.

The prosecution, during the course of evidence of Investigating Police Officer PSI Mr. Vora, Exh.60, tendered in evidence the cross-complaint

lodged by accused No. 4 Chakabhai Talsibhai at Exh.62. Considering the cross-FIR, Exh.62, it clearly transpires that during the course of the

very incident, the accused No. 4 Chakabhai Talsibhai sustained injuries on his head and other parts of his body. It is alleged in the cross-FIR,

Exh.62, that he was assaulted by deceased Lakhubhai with axe and two blows were inflicted on his head and that Maheshbhai (first informant)

inflicted blow with hockey on his right leg.

Now comes the question as to which offence can be said to have been constituted in connection with death of deceased Lakhubhai Harsurbhai?

The learned trial Judge held that it was a premeditated well designed murder and that all the four appellants-accused in furtherance of their

common intention, caused murder of Lakhubhai. The appellant-accused persons in the trial Court as well as before this Court have raised the

defence about exercise of right of private defence, and in the alternative, the incident being a free-fight, and therefore, it is submitted that the

learned Sessions Judge erred in recording the conviction of the appellant in connection with the offence of murder, punishable u/s 302 of the IPC.

In support of such contention, the fact regarding the injuries sustained by accused No. 4 Chakabhai and the non-explanation of his injury by the

prosecution is pressed and highlighted. As stated above, though the first informant Maheshbhai admits in his evidence about cross criminal case

pending against him, his deceased father and witness Chhaganbhai Jivabhai in connection with the injuries caused to accused No. 4 Chakabhai,

but, he pleads total ignorance during the course of his evidence about the injuries sustained by the accused No. 4 Chakabhai. Witnesses examined

by the prosecution in capacity as eye-witnesses pleaded their ignorance on this aspect of the matter. However, the medical evidence adduced by

the prosecution in form of deposition Dr. Vindhani, reveals that accused No. 4 was brought before him in injured condition and that the accused

No. 4 had sustained injuries by two blows, of the nature of CLW on his head. Doctor opined that the injuries could be caused by hard and blunt

substance. The prosecution during the course of examination of Investigating Police Officer Mr. Vora, tendered in evidence an FIR lodged by

accused No. 4 Chakabhai Talsibhai against deceased Lakhubhai, first informant Maheshbhai, witness Chhaganbhai and others in connection with

injuries sustained by him during the course of the same incident. The perusal of the FIR, Exh.62, would reveal that deceased Lakhubhai inflicted

two blows of axe on the head of accused No. 4 Chakabhai. Now, as per the case of the prosecution, accused No. 3 Valabhai Talsibhai inflicted a

fatal blow with axe on the head of Lakhubhai and Lakhubhai immediately fell on the ground and became unconscious. The contents of FIR,

Exh.62, suggest that accused No. 4 was attacked by deceased Lakhubhai. It is clear that after sustaining serious injuries, deceased Lakhubhai

immediately became unconscious. Considering the evidence on record, there is nothing that the deceased, after sustaining fatal injuries at the time

of the incident and till he died during the course of his treatment, he ever regained consciousness. Now as stated above, the accused No. 4

contended in his FIR, Exh.62, tendered in evidence by the prosecution itself that he was attacked with axe and two blows were inflicted on his

head by deceased Lakhubhai. After sustaining fatal injuries, deceased Lakhubhai was not in a position to inflict any blow on anybody, including the

accused No. 4. Thus, the picture that emerges while evaluating the entire evidence on record, oral and documentary is that the accused No. 4,

Chakabhai was first attacked by deceased Lakhubhai and thereupon, the deceased Lakhubhai was attacked by accused No. 3 Valabhai. It has

also come in evidence that there was a quarrel and free-fight between two groups of persons namely deceased, first informant Maheshbhai and

witness Chhaganbhai on one hand and the accused on the other hand. The medical opinion further reveals that the injuries sustained by appellant -

accused No. 4 was likely to be caused by a weapon of the nature of hard and blunt substance. On behalf of the appellants, it is submitted that

whatever act appellant-accused No. 3 Valabhai did, was done in exercise of his right of private defence of person. As stated above, the scrutiny of

the entire evidence adduced by the prosecution reveals a group clash or free-fight between the two groups. Medical evidence also reveals that the

injuries sustained by the deceased was sufficient in the ordinary course of nature to cause his death. Though accused No. 3 Valabhai caused

solitary injury, but, the same was caused on the vital part, like head, with a lethal weapon, like axe. Under such circumstances, it can safely be said

that though in good faith the appellant-accused No. 3 tried to exercise right of private defence of person, but, while exercising said right, he

exceeded the power given to him by law and caused death of the deceased Lakhubhai. It further transpires that the incident suddenly took place,

and the overt act which the accused did, does not appear to be outcome of any premeditation, prior design or planning. It was a free fight between

the two groups wherein the deceased and the accused No. 4 sustained injuries.

9.1 The further controversy between the parties is whether remaining accused persons i.e. accused Nos. 1,2 and 4 are liable for the act done by

the accused No. 3 Valabhai? Though, it has come in evidence that there was a free-fight between the two groups of persons and had erupted

suddenly, prosecution has come forward with the case that at the time when the deceased, his son first informant Maheshbhai and witness

Chhaganbhai were passing in a rickshaw, all the four persons intercepted the rickshaw carrying lethal weapons in their hands. However,

considering the evidence of eye-witnesses and especially considering the evidence of first informant Maheshbhai, he stated that from his house, he

himself and his father were going to the house of witness Chhaganbhai and at that time, Chhaganbhai was with them and their rickshaw was

intercepted. However, in the FIR, Exh.46, he nowhere stated that at the time of the incident, Chhaganbhai was with them. Chhaganbhai in his

evidence stated that he himself, Maheshbhai and the deceased left the house of the deceased in rickshaw to go to his house and they were

intercepted by the accused. Now, according to the evidence of Kanchanben, wife of witness Chhaganbhai, she stated that the first informant

Maheshbhai @ Munnabhai and her husband Chhaganbhai had left her house for going to the house of the deceased and the incident occurred.

Under such circumstances, it is not clear as to whether, when the accused allegedly intercepted the rickshaw, the deceased, Maheshbhai and

Chhaganbhai were coming from the house of the deceased or from the house of this witness Chhaganbhai. Moreover, there is nothing on record

that the accused were knowing in anticipation that the above referred three persons are to pass through the place of incident in the rickshaw, so

that before hand they may get ready, carrying arms in their hands to intercept the rickshaw. The incident took place on a road in the village. There

is no allegation levelled against the accused Nos. 1, 2 and 4 by the prosecution that all the three accused persons or any of them caused any injury

to the deceased. It is only alleged that witness Chhaganbhai was attacked by appellants-accused No. 1, 2 and 4. However, we need not repeat

the entire above discussions in this regard and suffice it to say that prosecution failed to prove that appellants No. 1, 2 and 4 caused any injuries to

witness Chhaganbhai. On the contrary, in the incident, appellant - accused No. 4 sustained serious bodily injuries and it is alleged that the same

was caused by the deceased.

In light of the entire above discussions, we are of the considered opinion that the offence of murder punishable u/s 302 of the IPC cannot be

said to have been constituted, but, the offence of culpable homicide not amounting to murder punishable u/s 304 Part II of the IPC can be said to

have been constituted. So far as the appellant-accused No. 3 Valabhai Talsibhai is concerned, the prosecution proved his involvement in the

incident. Under such circumstances, the appellant-accused No. 3 is required to be convicted for the offence punishable u/s 304 Part II of the IPC.

The learned trial Judge, therefore, erred in recording his conviction for the offence of murder punishable u/s 302 of the IPC. Furthermore, the

learned trial Judge erred in holding that the incident occurred in furtherance of common intention as provided u/s 34 of the IPC. As discussed

above in this judgment, there is no material on record to connect the appellant-accused No. 1, 2 and 4 with the crime. Therefore, the conviction

recorded by the trial Court, so far as the accused Nos. 1, 2 and 4 are concerned, deserves to be set-aside. The involvement of appellant-accused

No. 3 Valabhai Talsibhai in the incident is established and the appellant accused No. 3 Valabhai Talsibhai is required to be convicted for the

offence punishable u/s 304 Part II of the IPC.

10.1 Almost identical factual scenario was in the case of Raj Pal and Others Vs. The State of Haryana, . In that case also, there was a free-fight

between the two groups of persons and during the course of the event, one person lost his life and Ors. including the accused sustained bodily

injuries. The plea of right of private defence was raised. The Honourable Apex Court observed that merely because there was a quarrel and some

of the accused sustained injuries, that does not confer a right of private defence extending to causing death. However, the Hon''ble the Apex Court

ultimately came to the conclusion that the offence punishable u/s 304 Part II of the IPC would be constituted, and accordingly, the appeal came to

be partly allowed.

Therefore, in view of the above discussions, the appellant-accused No. 3 Valabhai Talsibhai is required to be convicted for the offence

punishable u/s 304 Part II of the IPC and considering the facts and circumstances of the case and the manner in which the offence came to be

committed, it would be just and proper, if the appellant accused No. 3 Valabhai Talsibhai is ordered to undergo R.I. for ten years and fine of Rs.

1000/- (One thousand only), and in default of payment of fine S.I. for one month.

For the foregoing reasons, the appeal is partly allowed. The conviction of the appellant-accused No. 1 Vaghabhai Talsibhai Koli, appellant-

accused No. 2 Vinodbhai @ Vinubhai Talsibhai Koli (Gohil) and the appellant-accused No. 4 Chakabhai @ Chhanabhai Talsibhai Koli (Gohil)

recorded by the Sessions Court, Amreli in Sessions Case No. 4 of 1999 for the offences punishable under Sections 302, 324, 504 read with

Section 34 of the IPC is set-aside, and are acquitted from the charge levelled against them. The appellants-accused No. 1 and 4 may be set at

liberty, if not required in any other case, and the bail bond of appellant-accused No. 2 shall stand cancelled. Fine, if paid, be refunded to them.

The conviction of the appellant-accused No. 3 Valabhai Talsibhai Koli (Gohil) recorded by the Sessions Court, Amreli in Sessions Case No.

4 of 1999 for the offences punishable u/s 324, 504 read with Section 34 of the IPC is set-aside, but his conviction for the offence punishable u/s

302 of the IPC, is altered to the offence punishable u/s 304 Part II of the IPC and is ordered to undergo R.I. for ten years and fine of Rs. 1000/-

(One Thousand only), in default of payment of fine S.I for one month. Excess amount of fine, if any paid pursuant to the order of the sessions

Court, be refunded to him. The period undergone by him in jail shall be given set-off as against the substantive sentence of imprisonment.