CR.A/123/1990 of BABOOBHAI R RAVAL Vs STATE OF GUJ on 6 November 1995

1. Whether Reporters of Local Papers may be allowed to see the Judgment ?

2. To be referred to the Reporter or not ?

3. Whether Their Lordships wish to see the fair copy of Judgment ?

4. Whether this case involves substantial question of law as tothe interpretation of the Constitution of India, 1950 or any order made thereunder ?

5. Whether it is to be circulated to the Civil Judge?

Shri Maganbhai M. Desai, Advocate for the appellant.

Shri S.T. Mehta, Additional Public Prosecutor for the respondentState.

Coram: A.N. Divecha,J. & H.R. Shelat,J.(16-11-1995)

ORAL JUDGMENT: (Per: H.R. Shelat, J.)

The appellant-accused, who has been convicted of theoffences under Section 302, 324 and 504 of the Indian Penal Code,and sentenced to life imprisonment for the offence under Section302, rigorous imprisonment for six months and fine of Rs.100/- indefault simple imprisonment of one month for the offence underSection 324, I.P.C., and 3 months simple imprisonment and fine ofRs.50/-, in default 15 days simple imprisonment more for theoffence under Section 504, I.P.C.,by the then learned AdditionalSessions Judge at Mehsana on 31st January 1990 by the judgment and order passed in Sessions Case No. 48 of 1989, has preferredthis appeal.

2. Chaturbhai Manibhai Raval maintains himself by doinglabour. He, his wife Dahiben, his sons Lavji and Bhagu as wellas his daughter Lilaben and others had been to Rangakui for thepurpose of their livelihood. They had gone from their nativeplace Bhimpura. Lakhiben is the sister of Chaturbhai ManibhaiRaval. She has married the appellant. The appellant and hiswife Lakhi had also gone to Rangakui for the purpose oflivelihood. Two families were residing in the huts nearer toeach other. The appellant was plying a camel cart for thepurpose of carriage of goods from one place to another. Lakhibenand Dahiben were selling vegetables to the village people inconsideration of grains at times called barter system. If thecustomers were not in a position to tender the grains, theconsideration against the delivery of vegetables, on credit alsothey used to sell the same and collect the grains on the next dayor when the customer used to give. On the day of the incidentDahiben and Lakhiben were altercating in respect of thecollection of grains from the customers. Dahiben was under thebelief that from her customers, Lakhiben had collected thegrains, while Lakhiben was denying the same asserting that shecollected her own from the customers. Both finding fault witheach other were also abusing each other. Bhagu the son ofChaturbhai Manibhai Raval appealed both not to altercate andtried to pacify. At that time, the appellant went there with aknife and gave a knife blow to Bhagu on his chest causing injuryto the heart. Chaturbhai Manibhai Raval tried to intervene, andtherefore the second blow which was aimed at Bhagu struckChaturbhai and so he came to be injured. Because of the shouts,neighbours assembled there. By the camel cart of the appellantinjured Bhagubhai was taken to Gothwa for the purpose oftreatment but the Doctor considering the case to be a seriousone, advised them to go to Visnagar. The injured was then takento Vijapur. The doctor at Vijapur examining injured Bhagudeclared him dead. Thereafter a complaint before the police waslodged. The police carried out investigation. After theinvestigation was over the charge-sheet against the appellant wasfiled before the Court of the Judicial Magistrate, (First Class)at Visnagar alleging that on 16th January 1989 at 12.30 p.m. atRangakui the appellant, knowing fully well that the injury he wasgoing to cause was in the ordinary course of nature sufficient tocause death, gave a knife blow and causing fatal injury heintentionally caused the death of Bhagu Chaturbhai, andvoluntarily caused injury by a knife, a sharp cutting instrumentto Chaturbhai Manibhai. The learned Magistrate was not competentin law to hear and decide the case, and therefore he committedthe case to the Court of Sessions at Mehsana. The case then cameto be registered as Sessions Case No. 48 of 1989. It wasassigned to the then Additional Sessions Judge, Mehsana for

hearing and disposal in accordance with law. A charge was framedat Exh.3 against the appellant. The appellant pleaded notguilty. The prosecution then adduced necessary evidence. At theconclusion of the trial, the learned Additional Sessions Judgefound that the prosecution had beyond reasonable doubtestablished the charge and therefore he convicted the appellant,and sentenced him as aforesaid. The appellant has, therefore,preferred this appeal and has challenged the judgment and orderconvicting and sentencing him.

3. Mr. M.M. Desai, learned Advocate appearing on behalf ofthe appellant took us through the evidence on record andsubmitted that there was nothing on record justifying theconviction and sentence. According to him, complainantChaturbhai Manibhai had gone to the appellant's house andscuffled after the appellant advised them not to abuse. Whenthat is the case possibility of assailing the appellant byChaturbhai cannot be ruled out. It seems the evidence is notcorrectly read because of a mistake committed by the typist. Inbetween unnecessarily a full point has been typed and thereforethe statement is found to have been divided into two independentparts giving rise to fallacy in the mind of those going throughthe evidence. But when with care it is read keeping its contextin mind it becomes evident that the fact about scuffle, and thengoing to the appellant's house is categorically denied. Whenthat is the case, the submission gains no ground to stand upon,and we cannot jump to the conclusion as canvassed by Shri Desai,learned Advocate representing the appellant.

4. It is alleged that the appellant took the panchas andpolice personnel to his place and pointed out the knife from thebundles of stalks. Chaturbhai Manibhai Raval the complainanthowever has come out with contrary version. According to him hesnatched the knife from the appellant, and the appellant then ranaway. Mr. Desai, the learned Advocate therefore submitted thatsuch paradoxical case about the knife was not explained at allconsequently the evidence of Chaturbhai Manibhai Raval and otherwitnesses could not be said to be free from doubt. Thesubmission gains no ground to stand upon. The evidence ofChaturbhai is misread. It is because the typist, not careful inhis duties, typed full-stops in between the whole statement, as aresult the statement has been divided into two or more partsgiving rise to a meaning foreign to it. In fact when read withgreat care, what becomes clear is that while cross-examining whena suggestion in defence was made, Chaturbhai denied the samestating that he had not gone to the appellant's house, scuffledid not take place, he did not snatch away the knife from theappellant and the appellant had not run away. There is thus atypist's mistake; in fact there is no paradoxical case about theknife.

5. It was next contended on behalf of the appellant thatsimply because the appellant pointed out the knife, he could notbe implicated because the place wherefrom the knife was pointedout by him was some open land and accessible to all; anybodycould have hidden the knife there, and the appellant might haveany how come to know about the same. True that if the accusedpoints out the place where any one can go freely and from thatplace the thing or weapon said to have been used for commissionof offence is recovered, he cannot ordinarily be roped in withthe offence as in that case he can be said to have known aboutthe same any how or through any source and possession of thething/weapon cannot be attributed to him. But if otherpersuasive or cogent circumstances on record fastens the accusedwith the offence, the recovery of the thing or weapon from theopen place at the instance of the accused will in addition toother factors be indicative of the guilt of the accused.

6. The clothes of the deceased, as well as the appellant,

6. The clothes of the deceased, as well as the appellant, blood collected from the dead body, blood-stained dust from theplace of offence and the knife pointed out by the appellant weresent to the Chemical Analyser. It is reported by the chemicalanalyser that the blood group of the blood of the deceased was'B'. The blood-group of the blood-stains on the knife is foundto be 'B'. On the jacket (Band) of the appellant blood-stainswere seen. The blood-group thereof is also found to be 'B'. Onthe bush-shirt of the deceased a cut-mark was found. Thechemical analyser has opined that the cut-mark can possibly becaused by the muddamal knife's cut. Such facts on record notonly confute the submission made but without any doubt connectthe appellant with the offence. Of course the blood-group of theappellant cannot be found out from the evidence on record butthat aspect loses the value because when the appellant wasarrested no injury was found on his person. There is hence noscope for any other possibility, from such facts, favouring theappellant. In view of such convincing facts on record, the factof recovery of the knife at the instance of the appellant fromthe place about 50 ft. from his house and near the heap ofstalks cannot be construed as having a possibility favouring theappellant as canvassed.

7. Chaturbhai Manibhai Raval had gone to the police stationalong with others, and in the cross-examination it seems heinadvertantly made the statement that those who were accompanyinghim were prompting him and he was telling the same to the policewhich the police was noting down; but on such statement we cannotstamp the case of the prosecution a concoction, the outcome ofvengeance of the complainant and his group. The evidence has tobe appreciated as a whole and not picking up a statement fromhere and there. The capacities of the person cannot beoverlooked, along with his infelicities. The complainant is alabourer and illiterate man. He is credulous. He does not know in what manner he should narrate the case before the police. Hemay also miss to state a particular point, as every one is notexpected to have a photographic memory and ability to narratewith exactitude. It is therefore quite possible that at timessome one might be reminding a point so that the complaint mightbe written correctly and truly. It will therefore be unjust ifwe agree with the submission that some one remaining behind thecurtain, induced complainant to lodge a false complaint againstthe appellant, or the complainant was made a tool of some one'scabal. Balubhai Mohanbhai (Exh.32) who recorded the complaintrefutes possibility of some one's design to rope in theappellant. According to him the complainant was narrating and henoted down what the complainant stated to him. Nothing is askedto this witness suggesting that some one was prompting. Thecontention of the appellant therefore gains no ground to standupon. On no other ground the judgment and order of the lowerCourt is assailed.

8. For the reasons stated hereinabove, we find no justification to accept any of the submissions made by thelearned Advocate Mr. Desai and reach the conclusions favouringthe appellant. We are satisfied, without any doubt that theappellant took up a cause so as to side his wife altercating withher bhabhi, and being provocated went to his place, brought outthe knife and gave the blows to the deceased who was trying tobring both the warring women to reason and caused death. In viewof such fact, the point that now arises for consideration iswhich of the penal provisions would apply.

9. As the incident happened because of the exchanges ofabuses and heated words certainly the appellant was provoked ashis wife was being abused and looked down upon. He then in theheat of excitement lost mental equilibrium as well as wisdom. Hethen went into his hut, took the knife, and rushing towards thedeceased gave knife blows so as to deter the deceased from takingside of her mother, and make him to realise to have selfrestraints in such ticklish matter between two family members.The highhanded act must be frowned upon; but such facts wouldconstitute the offence of culpable homicide not amounting tomurder, and not murder, because intentionn to kill cannot bespelt out. While inflicting injury out of anger, he might nothave knowledge that the death would be the most probable result,he must have the knowledge the death would be the likely resultnot amounting to murder. In our view therefore the case willfall within the ambit of Sec. 304, Part II and not Sec.302,Indian Penal Code. The conviction and sentence will havetherefore to be altered suitably.

10. Chaturbhai came to be injured when he tried to rescue thedeceased. The appellant was about to give another blow to thedeceased but it struck the complainant as he intervened. It was hence contended that the injury was not voluntary and so Sec.324would not be attracted. This was obviously without prejudice toone's own defence.

11. If the person while causing injury gives the blow andaccidently or for any other reason the blow lands on the personnot aimed at, absence of mens rea cannot be assumed or accepted,the criminal intention is not obliterated; and the relevant penalprovision will come into play. However in this case, we cannotuphold the conviction of the offence under Section 324, IndianPenal Code. The certificate of the doctor (Exh.16) does notsupport the case of injury having been caused by a knife. Thedoctor found abrasion which is possible by hard and bluntsubstance or by pointed instrument or by grazing tool. Whenincised wound is not seen, though ought to have been if the blowwas at all given in the way alleged, possibility of unduly takingadvantage of the injury having been sustained due to any otherreason, cannot be ruled out. In any case, the appellant isentitled to benefit of doubt as causing of injury by knife ismistrustful or fishy. The conviction and sentence of the offenceunder Section 324, Indian Penal Code, cannot, therefore, bemaintained.

12. So for as the offence under Section 504 is concerned,there is no evidence whatsoever on record which would justify usto maintain the conviction and sentence thereof. Wheneverprosecution comes out with the case that the accused by utteringabuses, intentionally caused insult and thereby gave provocationto the complainant or others to break the public peace, it isincumbent upon the prosecution to bring those words uttered onrecord so that the Court can judge whether the words utteredwould provoke any one to break public peace or commit any otheroffence or would cause insult. If evasively it is alleged thatthe accused uttered filthy language or revilled it would not besufficient. In the case on hand, the alleged abusive wordsuttered are not brought on record in the evidence of any of thewitnesses examined and therefore it is not possible to determinewhether the alleged offence is committed; the charge underSection 504, Indian Penal Code in the result cannot be said tohave been established; and therefore conviction and sentenceinflicted in that regard by the lower court will have to bequashed.

13. Now question about the quantum of punishment of theoffence under Section 304 Part 2, Indian Penal Code requires tobe examined. We are conscious of the fact that the punishmentmust commensurate with the gravity of the offence, it can neitherbe light nor very harsh. In this case, because of theprovocation, the appellant was led to commit the offence.Further the complainant and the appellant are closely related andfor restoration of harmonious relations in future, neither harsh nor lighter sentence but reasonable should be inflicted, and thatmust be the same undergone uptill now.

14. Under the circumstances, the appeal partly succeeds. Weaccordingly allow the appeal partly. The judgment and order ofthe lower court convicting the appellant of the offences underSection 302, 324 and 504 are hereby quashed and set aside; andthe appellant is acquitted of the same. But the appellant isconvicted of the offence under Section 304 Part II, Indian PenalCode altering the conviction of the offence under Section 302,Indian Penal Code and is sentenced to undergo the imprisonment hehas undergone so far. As the sentence he has undergone uptillnow is inflicted, the appellant-accused be set at libertyforthwith if no longer required in any other matter.