Vijaybhai Rameshbhai Vasava vs State of Gujarat

Akil Kureshi, J.—This appeal is directed against the judgment of the learned Sessions Judge, Bharuch, dated 24th April 2009 rendered in Sessions Case No. 89 of 2008. The appellant was original accused. He was charged with offences punishable u/s 302 and 504 of the Indian Penal Code, and Section 135 of Bombay Police Act by the Sessions Judge. He was convicted for the offence u/s 302, and sentenced to imprisonment for life. Fine of Rs. 25,000/-was imposed, out of which, Rs. 20,000/- was to be paid to the wife of the deceased by way of compensation. Briefly stated, the prosecution version was that deceased Vikrambhai Kanjibhai Vasava lived in village Vataria. Near his house, close to a petrol pump, there was a tea stall of Jagdishbhai Chanabhai Vasava. At about quarter to 12 in the night of 31st May 2008, Vikrambhai Kanjibhai Vasava had gone to the said tea stall, where accused Vijaybhai Rameshbhai Vasava was present. Accused and Jagdishbhai Chanabhai Vasava were fooling around. Vikrambhai Kanjibhai Vasava pulled up accused Vijaybhai Rameshbhai Vasava for such frivolous fooling around. Vijaybhai Rameshbhai Vasava got excited, and gave five knife blows to deceased Vikrambhai Kanjibhai Vasava. Due to this, Vikrambhai Kanjibhai Vasava started bleeding profusely. By his family members, he was taken immediately to hospital at Walia, where after giving some treatment, he was referred to the hospital at Bharuch. At Bharuch hospital, he was given further treatment. But, since no surgeon was present, he was taken to a hospital at Baroda, where during treatment he died.

P.W.1-Exh.11 Nathiyabhai Daniyabhai, maternal grandfather of deceased Vikrambhai Kanjibhai Vasava, had lodged the First Information Report (Exh.12). In his deposition, he stated that his daughter Kanuben, mother of deceased Vikrambhai Kanjibhai Vasava, was divorced from her husband, and since then she was living with him along with her children. On the night of the incident, Vikrambhai Kanjibhai Vasava had come home saying that he was stabbed by Vijaybhai. Thereafter, Vikrambhai Kanjibhai Vasava was taken to a hospital on a tempo.

Jagdishbhai Chanabhai Vasava (P.W.7-Exh.22) was an eye witness. He had his tea stall near Vataria petrol pump. In his deposition, he stated that he knew Vijaybhai Rameshbhai Vasava, the accused, since he belonged to the same village. On the night of the incident, when he was at the tea stall, deceased Vikrambhai Kanjibhai Vasava came there, and told Vijaybhai Rameshbhai Vasava not to make fun of people, if he could not himself tolerate such humour. There was a brief exchange between the two, upon which, accused gave three to four blows to Vikrambhai Kanjibhai Vasava on his hands, stomach and chest. Vikrambhai Kanjibhai Vasava was bleeding from chest. He applied dry tea leaves on the wound to stop bleeding. But the bleeding did not stop. Vikrambhai Kanjibhai Vasava then went home, from where he was taken to hospital at Walia.

In the cross-examination, Jagdishbhai Chanabhai Vasava (P.W.7-Exh.22) reiterated that at the time of incident, he was at the tea-stall. Suggestion was put to him that Vikrambhai Kanjibhai Vasava was assaulted by some passerby, who would have stabbed him at the tea stall, and not by the accused. He denied such suggestion. No other contradictions were extracted in such cross-examination.

Priyankaben Vikrambhai Vasava (P.W.11-Exh.33), the wife of the deceased, deposed that she lived with her husband and his grandparents. On 31st May 2008, late at night, her husband feeling very hot, went to the tea stall of Jagdishbhai Chanabhai Vasava, which was situated at a distance of about two to three hundred feet from their residence. At about 12 `O'' clock, Vikrambhai Kanjibhai Vasava returned home with knife injuries. All the family members woke up, and found that he was bleeding from chest and stomach. On enquiry, Vikrambhai Kanjibhai Vasava informed her that accused Vijaybhai Rameshbhai Vasava was fooling around, and when he tried to stop, Vijaybhai Rameshbhai Vasava gave him knife blows. She along with other family members took Vikrambhai Kanjibhai Vasava to the hospital at Walia, from where he was referred for further treatment at Civil Hospital, Bharuch. From there, they went to Baroda Heart Institute for further treatment. At Baroda Heart Institute, her husband died. She identified the pants, which her husband was wearing at the time of incident.

In the cross-examination, she stated that when her husband returned home, he was conscious, and could speak a little bit. After taking him to hospital, he became unconscious.

Kanuben Dharmeshbhai (P.W.13-Exh.39) and Dharmeshbhai Maganbhai (P.W.14-Exh.40) were the other relatives, who had accompanied Vikrambhai Kanjibhai Vasava to the hospital. They also referred to the dying declaration made by him as was referred to by Priyankaben Vikrambhai Vasava (P.W.11-Exh.33).

Dr. Ashwinbhai Khemabhai Katara (P.W.9-Exh.27) had first treated Vikrambhai Kanjibhai Vasava. He was Medical Officer at Community Health Centre at Walia. He deposed that at 12.25 at night on 1st June 2008, Vikrambhai Kanjibhai Vasava was brought to him for treatment. The patient as well as the relatives had come to the hospital on being assaulted by Vijaybhai Rameshbhai Vasava with some object. Upon further being asked, the patient said that because of insufficient light, he could not see the object Vijaybhai Rameshbhai Vasava had in his hand. The doctor produced the case papers at Exh.30. In such case papers, he recorded the history as mentioned above. He had noted the following injuries:

Incised wound in midline near xipustanum of size 3 cm x 0.5 cm, clear cut edges, evated directed vertically, spindle shaped, no active bleeding, depth 1 cm. 2. Incised wound of size 2 cm x 0.5 cm x 1 cm over left nipple directed horizontally, clear cut edges, no active bleeding.

Penetrating wound over left side of chest 4.5 cm below left clavicle, 4.5 cm from midline of sternum of size 4 cm x 0.5 cm x 4.5 cm, active bleeding directed vertically well defined edges emerging.

Sharp cut would over post aspect of left arm (middle 1/3rd part) directed upwards and inwards of size 4 cm x 0.5 cm. 1 cm, clear cut edges, no active bleeding, no limitation of mov. At elbow and shoulder joint.

Incised would over post aspect of left arm above left elbow joint of size 4 cm x 0.5 cm directed horizontally and well defined margins, no limitation of mov. At left elbow joint.

Punctured would of size 4 cm x 0.5 cm x 4 cm. In 5th ICS directed vertically, clear cut parallel edges, active bleeding.

He was shown muddammal articles Nos. 8 and 9, and stated that such injuries could have been caused by such weapon. He further stated that injuries Nos. 3 and 6 were serious and could cause death.

In the cross-examination, he agreed that with timely treatment, possibly the patient could have survived. After stitching the wounds, he referred Vikrambhai Kanjibhai Vasava to immediate treatment at Bharuch Civil Hospital.

Dr. Indiraben Hiralal Parmar (P.W.12-Exh.36) had duty at Civil Hospital, Bharuch, when Vikrambhai Kanjibhai Vasava was brought there by his relatives. She deposed that with a referral note from Community Health Centre, Walia, Vikrambhai Kanjibhai Vasava was brought to the hospital at 2.00 `O'' clock at night. His wife and relatives had come to the hospital, on being informed that Vijaybhai Rameshbhai Vasava had assaulted him. She produced the Injury Certificate at Exh.37, in which also, she had noted similar injuries as that of the doctor at Walia. She also agreed that the injury in the chest could be caused by muddammal articles Nos. 8 and 9. Regarding rest of the injuries, she stated that the same having been stitched, she could give no definite opinion. In the cross-examination, she agreed that if there was a surgeon available in the hospital, perhaps, the patient could have been saved.

Dr. Rashmikant Jagjivanbhai Chowdary (P.W.10-Exh.31) deposed that he has often been called by the Baroda Heart Institute for emergency surgeries. On 1st June 2008 early morning at 3 `O'' clock, he was called by the hospital. He also referred to the injuries as was done by the previous doctors. He stated that the patient was conscious, but was not aware about the place and time. During treatment, the patient died at 6.10 in the evening. He stated that the injuries could have been caused with muddammal articles Nos. 8 and 9. In the cross-examination, he could not state with certainty that with the timely treatment the patient could have been saved.

Dr. Lalitbhai Bhagubhai Patel (P.W.6-Exh.19) had carried out the postmortem. He produced postmortem note at Exh. 20. In the postmortem report as well as in his deposition, he had referred to the following external injuries:

(i) Two stitched wound over posterior aspect of Lt. arm middle to lower part Lt. arm 3 C.M. Size each.

(ii) stitched wound just above Lt. nipple 3 c.m. Size.

(iii) Stitched wound over Lt. 2nd Intercostal space 2 c.m. Lt. 4 to mid stannum 3 c.m. Size.

(iv) Stitched wound over epigastric region 2.5 c.m. Size.

(v) Stitched would over Lt. lateral part of chest in 7th Intercostal space on anterior Axillary lime I.C.D. Inserted in this wound upwards direction.

Corresponding to such injuries, he had noticed the following internal damages:

Punctured wound on upper & lower lobes of Lt. Lung, corresponding to injury (iii) & (v) in column No. 17. 2 c.m. Size each Lt. Lung ruptured about 500 M.L. Blood & blood clots present in thoracic cavity.

Pale.

Rt. chamber containing some blood

Lt. chamber injury.

In his opinion, the cause of death was due to hemorrhagic shock due to intra-thoracic hemorrhage following injury to vital organ of chest i.e. Lt. lung. According to him, injuries Nos. 3 and 5 noted above were serious injuries.

He deposed that such injuries Nos. 3 and 5 were sufficient in ordinary course of nature to cause death. He agreed that all the injuries could have been caused by muddammal articles Nos. 8 and 9.

The murder weapon was discovered at the instance of the accused. Panch witnesses of the discovery panchnama (Exh.51) turned hostile. The investigating officer Bhagabhai Ranjitsinh (P.W.17-Exh.48) referred to the manner in which the discovery was made under the mattresses kept inside the room in the house of the accused, whereto the accused led the police party and panch witnesses too. From the house of one Taraben (with whom the accused had a living relationship.

The Serology report (Exh.55) read in conjunction with the Forensic Science Laboratory Report revealed the presence of blood of group `O'' belonging to the deceased from the clothes of the accused as well as the murder weapon, the knife.

On the basis of such evidence, we do not have slightest hesitation to come to the conclusion that the accused caused death of the deceased. Injuries Nos. 3 and 5 were sufficient in ordinary course of nature to cause death. There is overwhelming evidence on record to the effect that he caused such injuries. Firstly, Jagdishbhai Chanabhai Vasava (P.W.7-Exh.22) was the eye witness. We may recall that the incident took place right at the tea stall. Jagdishbhai Chanabhai Vasava himself was the owner of the tea stall. On the night of the incident, when he was at the tea stall, the accused and Vikrambhai Kanjibhai Vasava had heated exchange. Vikrambhai Kanjibhai Vasava tried to reason that the accused should not fool around. Accused thereupon got angry, and gave five knife blows to the deceased on various parts of the body.

There is no reason to discord such clear testimony of eye witness. He had no enmity or an axe to grind against the accused. He is living in the same village, and also having a tea stall close to the village, he knew both the accused and the deceased well enough. Identity of the accused, therefore, should pose no challenge. In fact, this witness had stated that even after the incident was over, and Vikrambhai Kanjibhai Vasava walked back to his house, the accused was still at the tea stall. The suggestion that some unknown person would have assaulted Vikrambhai Kanjibhai Vasava was thus completely falsified.

Such eye witness accounts gets ample corroboration from other evidence on record. P.W.1-Exh.11 Nathiyabhai Daniyabhai, the first informant, the grandfather of the deceased with whom the deceased lived, referring to the incident stated that when deceased Vikrambhai Kanjibhai Vasava returned home at night bleeding, upon being asked, he referred to the assault by accused Vijaybhai Rameshbhai Vasava.

Wife of Vikrambhai Kanjibhai Vasava, Priyankaben Vikrambhai Vasava (P.W.11-Exh.33) also referred to the dying declaration made by Vikrambhai Kanjibhai Vasava. On 31st may 2008, when she was sleeping at her house, Vikrambhai Kanjibhai Vasava had gone to the tea stall, since he was feeling very hot. Immediately, he came back. Upon being asked, he mentioned about being assaulted by Vijaybhai Rameshbhai Vasava. Such dying declaration was also referred to by other relatives Kanuben Dharmeshbhai (P.W.13-Exh.39) and Dharmeshbhai Maganbhai (P.W.14-Exh.40). Both these witnesses along with Priyankaben accompanied Vikrambhai Kanjibhai Vasava to the hospital.

Even the doctor at Walia recorded the history as given by Vikrambhai of being assaulted by Vijaybhai Rameshbhai Vasava with some object. Truthfully, Vikrambhai Kanjibhai Vasava seems to have informed the doctor that being dark at night, he could not recognize what object it was. This is precisely what the doctor has noted down in the history in the case papers, and was also deposed by him in the court.

One may recall after the brief treatment at Walia, Vikrambhai Kanjibhai Vasava was first shifted to the hospital at Bharuch. There, due to nonavailability of a surgeon, he was taken to Baroda. Dr. Rashmikant Jagjivanbhai Chowdary (P.W.10-Exh.31) noted that the patient was still conscious, but was not aware about the place and time, meaning thereby, till the stage when Vikrambhai Kanjibhai Vasava was taken to the hospital at Bharuch, he had still not became unconscious. The fact that till then he would have spoken to the relatives and the doctor and narrated the incident, therefore, is completely natural and believable.

The murder weapon knife was also discovered at the instance of the deceased. It is true that the panch witnesses turned hostile. Nevertheless, reliance can be placed on the deposition of the investigating officer. From the panchnama as well as the deposition of the investigating officer, it emerges that the accused had led the police party and the panch witnesses to a house wherefrom, inside the room, under the mattresses, the knife was unearthed.

Such evidence gets further corroboration from the forensic analysis. The clothes of the accused as well as murder weapon established the presence of the blood of the deceased.

The postmortem also further supported the prosecution case. As many as five injuries were noticed. Two of them were on vital parts of the body, and could be caused by a knife.

Learned counsel for the appellant however vehemently contended that in any view of the matter, looking to the facts of the case, the offence could be one punishable u/s 304 of the Indian Penal Code, and not u/s 302. He submitted that there was no pre-meditation on the part of the accused. After the sudden fight he used a knife. He had not acted in a cruel manner or taken undue advantage. His case, therefore, would fall under Exception 4 to Section 300 of the Indian Penal Code. From the record, it emerges that there was no provocation or excitement provided by the deceased. He barely tried to reason with the accused not to fool around, if he himself cannot take a joke. It may be a case of no pre-meditation, however, looking to the nature of injuries caused, the weapon used, and the parts of the body where such injuries were caused, in our opinion, the case would squarely fall under second clause of Section 300, which provides that culpable homicide would not amount to murder, if the act by which death is caused without any intention of causing such bodily injury as the offender known to be likely to cause death. Likewise, clause 3 of Section 300 pertains to an act done with an intention of causing bodily injury to any person and the injury intended to be inflicted is sufficient in ordinary course to cause death.

In the present case, the accused assaulted the deceased as many as five times with the knife. Two of such blows were given on the stomach and chest. The blow on the chest resulted into rupturing of lung. The blow on the stomach was also severe and serious. According to the medical opinion, it was sufficient in ordinary course of nature to cause death.

Looking to the repeated blows given by the accused with a sharp cutting instrument on various parts of the body, and in some cases, with full force on vital parts, we do not see how the offence committed by the accused can be brought down to one covered u/s 304 of the Indian Penal Code. Learned counsel for the appellant relied on certain decisions to which we would refer at this stage. Firstly, he relied on the decision in the case of Surinder Kumar Vs. Union Territory, Chandigarh, It was a case where there was a fight on the question of possession of a kitchen. The court recorded that tempers ran high, upon which, the prosecution witness has taken a pen knife. It was only thereafter that the accused picked up a knife from the kitchen and inflicted a simple injury to a witness. The court found that the deceased must have intervened on the side of the witness who was his brother and in the course of the scuffle received three injuries, one on the shoulder, the other on the elbow and the third on the chest. It was in this background that the court held that the case would fall under Exception 4 to Section 300 of the Indian Penal Code.

Learned counsel for the appellant also relied on the decision in the case of Muthu Vs. State by Inspector of Police, Tamil Nadu, In this case, the court found that the accused was working in a waste paper merchant shop. While after opening the shop and arranging the articles, the deceased who had collected the waste paper and card board boxes threw them inside the shop of the accused. On seeing this, the accused got angry and shouted at him saying `why do you do this everyday''. In a scuffle, the deceased pushed the accused. It was then the accused took a knife from the top of a table in the shop and stabbed the deceased in the chest. This was a case of one blow and the court found that the accused had lost his self-control under the situation. It was under such circumstances that his conviction was converted into one under Exception 4 of Section 300 of the Indian Penal Code.

Reliance was placed on a decision in the case of Yomeshbhai Pranshankar Bhatt Vs. State of Gujarat, It was, however, a case where the court found that the accused had lost his self-control due to provocative utterances by the deceased followed by an altercation, upon which, the accused poured kerosene on the maid and set her on fire.

Reliance was also placed on a decision in the case of Mangesh Vs. State of Maharashtra, It was a case where the appellant saw deceased and his sister chatting near his house. Provoked by this, he assaulted the deceased with knife and ran way. Two blows were given on thigh and once in chest but not with full force. It was on this background, the court converted the conviction to one under Exception 4 to Section 300 of the Indian Penal Code.

Under the circumstances, the judgment dated 24th April 2009 of the learned Sessions Judge, Bharuch, is confirmed. The appeal is dismissed. Record and Proceedings may be transferred to the trial court.