CR.A/909/1987 of BACHUBHAI BHAGAWANBHAI KOLI Vs STATE OF GUJ on 12 December 1995

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

2. To be referred to the Reporter or not? No

3. Whether their Lordships wish to see the fair copy of judgment? No

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? No

5. Whether it is to be circulated to the Civil Judge? No .T.......T......JT.....J..T.........T.......T......JT.....J..T.........T.--------------------------------------------------------------- Shri Sunil C. Patel, Advocate, for the Appellant Shri S.R. Divetia, Addl. Public Prosecutor, for the Respondent

---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ.

(Date: 12th December 1995)

ORAL JUDGMENT (per Divecha, J.)

The judgment and order of conviction and sentence passed by the learned Sessions Judge of Surendranagar on 8th December1987 in Sessions Case No. 21 of 1987 convicting the appellant ofthe offence punishable under sec. 302 of the Indian Penal Code,1860 (the IPC for brief) and sentencing him to rigorous imprisonment for life is under challenge in this appeal at theinstance of the original accused.

The facts giving rise to this appeal move in a narrowcompass. The incident is stated to have occurred on 7th January1987. The place of incident, according to the prosecutionversion, was nearly one sweetmeat shop in the name and style ofJai Mahavir Mart opposite Milan Talkies in Surendranagar. Theshop belonged to the complainant and his deceased brother,named, Rasikbhai (the deceased for convenience). On theprevious day, the appellant had gone to the shop of the deceasedand had consumed some sweets and he wanted payment to be madelater on. He was denied the credit facility by the complainanton the ground that the previous outstanding in the sum of Rs. 5was not cleared. The appellant was required to make payment forthe sweets consumed by him. He was thereupon displeased withthe complainant and presumably his deceased brother also. It isthe prosecution version that he left the sweetmeat shop with athreat of dire consequences some time later. On the day of theincident, the complainant is reported to have set out from hishome around 8.45 a.m. It may be mentioned that the complainantand the deceased resided in Bungalow No. 55 of one housingsociety by the name of Swastik Society. When the complainantwas near Bungalow No. 15 in that very society, the appellantmet him and abused him for not giving any credit for the sweetsconsumed by him in the previous evening. According to theprosecution version, the complainant was about to be assaultedat that time but he somehow hurriedly ran away to his shop. Hereported the incident to his deceased brother. Both thebrothers thereupon went to the police station and lodged thecomplaint of the incident. The police assured them allnecessary action. Thereupon both the brothers returned to theirshop around 9.30 a.m. on that very day. It is the case of theprosecution that the appellant reached the rickshaw standopposite the sweetmeat shop of the complainant and his deceasedbrother at about 10 a.m. on the day of the incident. At about10.45 a.m. the complainant was leaving the shop to ease out.According to the prosecution, the complainant was then beckonedby the appellant to approach the latter. Abuses were hurled bythe appellant to the complainant. The complainant felt that hemight be assaulted. The deceased was in his shop. He alsoapprehended assault on his brother. He took his 'tavetha' andcame out of the shop with a view to protecting the complainant.According to the prosecution version, at that stage theappellant came out of the rickshaw after taking out his knifefrom its sheath and inflicted one blow on the left side of hisabdomen rupturing the liver and the spleen. The deceasedthereupon collapsed. He was carried to M.G.S. GovernmentHospital at Surendranagar. In the meantime, the complainantgave his complaint of the incident. That set the investigatingmachinery into motion. The investigating officer went to the

hospital and recorded the dying declaration of the injuredvictim. He also sent for the Executive Magistrate with a yadi.The Executive Magistrate also recorded the dying declaration ofthe injured victim between 12.50 p.m. and 1.05 p.m. Themedical officer in charge of the hospital advised the patient tobe carried to Ahmedabad as his condition was found to besomewhat serious. Thereupon the injured victim was brought toV.S. Hospital in Ahmedabad. On examination he was declareddead. It appears that he breathed his last during his journeyfrom Surendranagar to Ahmedabad. The dead body of the deceasedwas brought back to M.G.S. Hospital at Surendranagar. Itspost-mortem examination was carried out by the medical officerin-charge. The appellant came to be arrested on 9th January1987. On completion of investigation, the charge-sheet againstthe appellant as the accused was submitted to the court of theChief Judicial Magistrate at Surendranagar charging the accusedwith the offence punishable under sec. 302 of the IPC. Sincethe trial of the case was beyond the competence of the learnedMagistrate, it was committed to the Court of Sessions atSurendranagar for trial and disposal. It came to be registeredas Sessions Case No. 21 of 1987. The charge against theappellant-accused was framed on 15th October 1987. He did notplead guilty to the charge. He was thereupon tried. Afterrecording the prosecution evidence and after recording thefurther statement of the accused under sec. 313 of the Code ofCriminal Procedure, 1973 and after hearing rival submissions,the learned Sessions Judge of Surendranagar convicted theaccused of the offence punishable under sec.302 of the IPC andsentenced him to rigorous imprisonment for life. The aggrievedaccused has thereupon invoked the appellate jurisdiction of thiscourt by means of this appeal for questioning the correctness ofhis conviction and sentence.

3. Learned Advocate Shri Patel for the appellant-accusedhas taken us through the entire evidence on record in support ofhis submission that the learned trial Judge was in error incoming to the conclusion that the prosecution had brought theguilt home to the accused beyond reasonable doubt. According tolearned Advocate Shri Patel for the appellant, the place of theincident is shrouded in mystery and the ocular account given bytwo eye witnesses could not be relied on as they were interestedwitnesses. In the alternative, runs the submission of learnedAdvocate Shri Patel for the appellant, the evidence on recordwould go to show that the appellant acted in exercise of hisright of private defence and at the most he could be said tohave exceeded his such right by using a wrong weapon at therelevant time. It has also been urged on behalf of theappellant that it was a case of only one single blow and theappellant could not be said to have intended the murder of thedeceased. As against this, learned Additional Public ProsecutorShri Divetia has submitted that the learned trial Judge has carefully appreciated the evidence on record and has reached theconclusion of guilt of the present appellant and that conclusioncalls for no interference by this court in this appeal. It hasbeen urged by learned Additional Public Prosecutor Shri Divetiathat the ocular account given by the two eye witnesses, thoughrelated to the deceased, is quite truthful and trustworthy andthat can be the basis of conviction of the appellant of theoffence with which he stood charged at trial. The sum andsubstance of the submissions urged before us by learnedAdditional Public Prosecutor is that there is no warrant forinterference with the judgment and order of conviction andsentence passed by the learned trial Judge on carefulappreciation of the evidence on record.

4. It cannot be gainsaid that the deceased died of ahomicidal death. It has clearly been established on record thatthe present appellant was responsible for the homicidal death ofthe deceased. The ocular account in that regard appears to bequite truthful and trustworthy. The witness at Exh. 23 is thecomplainant and he has seen the ghastly incident of thehomicidal death of his brother with his own eyes. Some minorcontradictions appearing in his evidence qua his complaintcannot and need not be overemphasised. It has to be rememberedthat the incident occurred on 7th January 1987 and hisdeposition was recorded some time on 11th November 1987 about 10months later. One cannot expect a photographic memory on thepart of a person so as to describe vividly all graphic detailsas to what exactly happened at what exact time. His evidence iscorroborated by the oral testimony of the other eye witness,named, Vadilal Rajpal, at Ex. 25. The latter witness was thematernal uncle of the deceased. He had no grudge or grouseagainst the appellant. It would be too much to expect a personto swallow the bitter pill when someone else is ailing howeverdear or near that someone else could or would be. In that viewof the matter, it is difficult to believe that the witness atEx. 25 has not given a truthful and trustworthy account simplyon the ground that he was the maternal uncle of the deceased.We are satisfied that the ocular account given by the two eyewitnesses at Exhs. 23 and 25 are quite truthful and trustworthyand they can be relied on for the purpose of fastening the penalliability to the appellant-accused for the homicidal death ofthe deceased.

5. Learned Additional Public Prosecutor Shri Divetia forthe State is right in his submission that no plea of privatedefence was taken at trial. It is true that no suggestion wasmade to the eye witnesses at Exs. 23 and 25 or either of themto the effect that the appellant was required to act in themanner he did with a view to defending himself against thelikely assault or attack from the deceased. He does not seem tohave taken such defence even in his further statement under sec.

313 of the Code of Criminal Procedure, 1973. It cannot howeverbe gainsaid that, on the basis of the material on record, itwould be open to the appellant-accused even at the stage ofappeal to press into service his right of private defence inaccordance with the well-settled principles of criminaljurisprudence. We have therefore permitted learned AdvocateShri Patel for the appellant to raise the new plea based on theright of private defence on the part of the appellant.

6. It transpires from the depositions of the eye witnesses

at Exs. 23 and 25 that the deceased was engaged in his work andapprehending that his brother (the complainant) was likely to beassaulted by the appellant, he came out of the shop with histavetha in his hand. This becomes clear also from his dyingdeclaration at Ex. 90 on the record of the case. Therein hehas eloquently and unequivocally stated that, with a view toprotecting his brother, he came out of his sweetmeat shop withhis tavetha in his hand. Prosecution Witness No. 5 at Ex. 25has clearly stated that at the relevant time the deceased wasbusy doing his work. If the deceased had his tavetha in hishand at the relevant time, he must be busy in preparation ofsome sweets. It is everyone's common knowledge that the tavethaof a sweetmeat maker is sufficiently long and it would be quitehot if it was actually used for preparation of any sweet. Evenat the cost of repetition, we may reiterate that, as transpiringfrom the deposition of the witness at Ex. 25, the deceased wasengaged in his work and he had therefore his tavetha in hishand. It can therefore reasonably be inferred that the deceasedcame out with his tavetha which was quite hot at the relevanttime as he was engaged in his sweets-preparatiion activities.Since the witness at Ex. 25 was on the counter, there could beno other inference except that the deceased was engaged inpreparation of some sweet with tavetha in his hand. A heatedtavetha could be a dangerous, if not deadly, weapon in the handsof its holder. When the appellant saw the deceased rushingtowards him with his hot tavetha in his hands, it can reasonablybe inferred that he might have been scared that he would beattacked with his hot tavetha. It is possible that, with a viewto averting infliction of any such injury with the help of thetavetha, the appellant might have acted by taking out his knife.It appears that some scuffle might have ensued between theappellant and the deceased at the relevant time. It may be madeclear at this stage that the ocular account regarding suchscuffle is absolutely silent. The medical evidence on recordhowever clearly shows that the appellant was found havingsustained injuries in his left palm below his ring finger. Theprosecution has not tried to explain the injuries found on theperson of the accused at the relevant time. Learned AdditionalPublic Prosecutor Shri Divetia is right in his submission thatthe medical certificate pertaining to the appellant at Ex. 12shows that such injuries could have been caused by his own

knife. The medical certificate at Ex. 12 will have to be readin the light of the police yadi at Ex. 14 on the record of thecase with which the appellant-accused was sent to the medicalofficer. In the very first point it was sought from the medicalofficer whether or not the injuries found on the person of theaccused could have been self-inflicted. It is obvious that themedical officer tried to oblige the prosecution agency byincorporating in the certificate at Ex. 12 that the injurieswas caused to the appellant by his own knife. It maybe notedthat in his oral testimony at Ex. 7 the medical officer hasremained silent with respect to the injuries found on the personof the appellant as to how such injuries could have been caused.Not a word has been stated by the medical officer at Ex. 7 inthat regard. Ordinarily, we might not have highlighted thisomission. The deposition at Ex. 7 given by the medical officermakes some interesting reading. He testifies the blood group ofthe appellant to be AB+. Nowhere in his evidence he has statedthat he had himself analysed the blood of the appellant in thelaboratory of his hospital or elsewhere. In that view of thematter, it becomes doubtful as to how the medical officer at Ex.7 could find out the blood group of the appellant-accused. Theonly inference is inevitable. It appears that the serologicalreport received from the forensic science laboratory was shownto the medical officer at Ex. 7 before he stepped into thewitness box for giving deposition. The blood found on theclothes put on by the appellant at the relevant time was shownto be AB+. In view of this important circumstance appearing onthe record, we are inclined to believe that the medical officerat Ex. 7, while issuing the medical certificate at Ex. 12pertaining to the appellant, tried to oblige the prosecution bystating therein that the injuries found on the palm of theappellant at the relevant time could have been by his own knifekeeping in mind the first point raised in the police yadi at Ex.14. In that view of the matter, more particularly when injurieson the left palm of the appellant are found at the relevanttime, we are of the opinion that some scuffle might have ensuedbetween the deceased and the appellant at the relevant time. Aspointed out hereinabove, the deceased was armed with a hottavetha in his hand and in order to stave off some serious, ifnot dangerous or deadly, assault by the deceased, the appellantmight have, in sudden and grave provocation, used his knife forinflicting the blow on the abdomen of the deceased. In thisview of the matter, at the most it can be said that theappellant exceeded his right of private defence. The appellantcould have staved off the likely assault by any other meanswithout using his knife for the purpose.

7. In view of our aforesaid discussion, we are of theopinion that the appellant can be said to be guilty of thehomicidal death of the deceased not amounting to murder. Hewould be guilty of the offence punishable under sec. 304 Part 2

8. The same conclusion can be reached by examining the casefrom a different angle. The appellant had given only one blowto the deceased. If we accept the ocular account given by thecomplainant at Ex. 23 and the witness at Ex. 25, the deceasedand the complainant were returning to their shop and at thatstage the appellant inflicted a blow on the left side abdomen ofthe deceased. Such blow could not have been intended to causethe murder of the deceased. In that view of the matter also,the appellant can be said to be guilty of the offence punishableunder sec. 304 Part 2 of the IPC.

9. The learned trial Judge has found the appellant guiltyof the offence punishable under sec. 302 of the IPC. Theminimum sentence prescribed therefor is imprisonment for life.That sentence cannot be sustained. The sentence awardable tothe appellant for the offence punishable under sec. 304 Part 2of the IPC is imprisonment for a term extending up to 10 years.It transpires from the record that the appellant was arrested on9th January 1987 and he has remained in jail except for a fewdays between 13th February 1987 and 18th February 1987 duringwhich period he was released on bail. He has thus remained injail for nearly 8 years and 10 months. Even if the maximumsentence permissible for the offence punishable under sec. 304Part 2 of the IPC is imposed on the appellant, with possibleremission and other available benefits, the effective term ofjail could be about 9 years or so. As pointed out hereinabove,the appellant has remained in jail for nearly 8 years and 10months. In that view of the matter, we think the interests ofjustice will be fully met if we impose on him the sentence ofrigorous imprisonment he has already undergone from the date ofhis first arrest on 9th January 1987.

10. In the result, this appeal is partly accepted. Thejudgment and order of conviction and sentence passed by thelearned Sessions Judge of Surendranagar on 8th December 1987 inSessions Case No. 21 of 1987 is modified by convicting theappellant of the offence punishable under sec. 304 Part 2 ofthe IPC and by sentencing him to the rigorous imprisonmentalready undergone from the date of his first arrest on 9thJanuary 1987. The rest of the impugned judgment and orderpassed by the learned trial Judge is maintained. The appellantis ordered to be set at liberty if no longer required in anyother case.

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