FATESINH JESINH PARMAR VS STATE OF GUJARAT

 

FATESINH JESINH PARMAR VS STATE OF GUJARAT

In the court of High Court of Gujarat at Ahmedabad

Decided on: 29 January 2003

Equivalent citations: (2003) 2 GLR 1438

Judges and Bench: M Shah, B Shethna

 

INTRODUCTION AND FACTS:

Accused were charged with the offence of committing murder of Agarsinh (hereinafter referred to as "the deceased") who was residing in the same locality of the accused and the witnesses. The prosecution case is that six months before the incident in question took place on 9-4-1994, there was a dispute between the accused and his family members on the one hand and the complainant and his family members on the other hand. On 9-4-1994 at about 5-00 O'clock, Vinusinh, brother-in-law of accused No. 1-Fatesinh Jesinh had gone to the well in the agricultural field of the complainant and complainant-Sardarsinh, nephew of the deceased, had offered water to Vinusinh. Thereafter, in the same evening at about 8-30 p.m., accused No. 1 along with the other accused including accused Nos. 2, 6 and 13 went to the house of the deceased along with deadly weapons like dharia and sticks and accused No. 1 inflicted two dharia blows on the head of the deceased and the other accused gave stick blows to the witnesses and also pelted stones. The deceased as well as the witnesses were rushed to the Civil Hospital at Himmatnagar where the statement of the deceased was recorded before the Investigating Officer in presence of the medical witness, and thereafter, the deceased was rushed to the Civil Hospital, Ahmedabad where the deceased succumbed to the injuries. The crime for the offences punishable under Sections 147, 148, 302, 323 and 325 read with Section 149 I.P.C. and also for the offence punishable under Section 135 of the Bombay Police Act, was therefore, registered against the accused. The weapons used in the incident were produced by the accused themselves which were recovered under the panchnama. The case was committed to Sessions on 14-2-1995 and the accused pleaded not guilty.

 

EXAMINATIONS:

At the trial, the prosecution examined Dr. V. J. Prajapati who had examined Agarsinh before he expired and also the other injured witnesses at Exhs. 44 and 91. Dr. Hansaben Shukla who conducted the post-mortem was also examined. Apart from complainant-Sardarsinh Kesarisinh (nephew of the deceased) (Exit. 57), P.W. 4-Lalusinh Bhupatsinh Rathod (brother of the deceased) (Exh. 58), P.W. 5-Pratapsinh Bhupatsinh Rathod (another brother of the deceased) (Exh. 59), P.W. 6-Manguba Pratapsinh (sister-in-law - Bhabhi of the deceased) (Exh. 61) were examined as eye-witnesses in support of the prosecution case. P.W. 7-Shantaben Daulatsinh and P.W. 8-Udesinh Prabhatsinh Jadav (Exhs. 62 and 63 respectively) also deposed about the incident more particularly in respect of the injuries received by them. The panch witnesses in respect of the panchnama for recovery of the weapons viz, P.W. 9-Ramsinh Kodarsinh and P.W. 10-Lalsinh Bhathisinh were also examined at Exhs. 66 and 72 respectively. Apart from the said panchas, the panchas in connection with the inquest panchnama and the Investigation Officer were examined. Police Inspector-P. U. Raol was also examined at Exh. 101.

 

ISSUES:

The learned Sessions Judge held that, as per the prosecution witnesses, about six months prior to the date of the incident, there was a dispute between two groups in connection with the distribution of flowers amongst the girls of the respective families on the celebration of gauri vrat. Since then, the parties were not on talking terms. In the early evening of 9-4-1994, Vinusinh, brother-in-law of accused No. 1-Fatesinh Jesinh (i.e. Fatesinh's sister's husband) had visited the well in the agricultural field of compIainant-Sardarsinh Kesarisinh, nephew of the deceased and had requested for water, which complainant Sardarsinh readily offered. Thereafter, the complainant had returned to his residence. On coming to know that Vinusinh had been to the well of compIainant-Sardarsinh (nephew of the deceased), accused No. 1 was enraged as to why the family of the deceased had invited a relative of accused No. 1 and accused No. 1 had gone to the residence of the deceased with a dharia. Accused Nos. 2, 6 and 13 had thereafter gone with sticks. Accused No. 1 gave two dharia blows on the head of the deceased and accused Nos. 2, 6 and 13 gave stick blows to the five eye-witnesses including two lady members of the family of the deceased. Hence, the deceased and the other injured witnesses were taken to the Civil Hospital at Himmatnagar. The learned Sessions Judge further held that the deceased gave his dying declaration (Exh. 103) before the Investigating Officer and before Dr. Prajapati in the Civil Hospital at Himmatnagar and as per the dying declaration, accused No. 1 had gone to the place of the deceased with a dharia and gave him two blows. The deceased also disclosed the names of accused Nos. 6, 7, 11 and 13 and said that there were also other persons who had pelted stones. Thereafter, the deceased became unconscious and was rushed to the Civil Hospital at Ahmedabad. The learned Sessions Judge held that Dr. Prajapati was an absolutely independent witness who had no reason for making any false statement. The learned Sessions Judge believed the said medical witness when he stated that the deceased was conscious when he gave the dying declaration before the Investigation Officer and in presence of the said medical witness. The learned Sessions Judge held that accused No. 1 had given two dharia blows, one of which was an incised wound of 10 cms. x 1 cm. x 1 cm. on the right parietal region with bone with a diametre of 5 cms. protruding out of the head. There were also other injuries, one of 1 cm. x 0.5 cm. on the forehead near the left eye, another one of contused lacerated wound of 1 cm. x 0.5 cm. x 0.5 cms. on the forehead near the right eye. There were also fractures on the front parietal right side of the head. Dr. Prajapati also opined that the aforesaid incised wound of 10 cms. x 1 cm. x 1 cm. was capable of being caused by a sharp cutting instrument like a dharia and was sufficient in the ordinary course of nature to cause death. The panchnama under which the weapons were taken from the accused at Exh. 70 (Page 516) also indicates that there were blood-stains on the sharp edge of the dharia recovered from accused No. 1. The learned Sessions Judge, therefore, held that accused No. 1 had gone to the house of the deceased with a dharia with an intention to cause bodily injuries on the deceased and the injuries on the head of the deceased were serious enough in the ordinary course of nature to cause death, and therefore, accused No. 1 was guilty of culpable homicide amounting to murder.

As far as the other accused are concerned, the learned Sessions Judge did not accept the prosecution case that they had gone to the house of the deceased with a common object or common intention of causing death of the deceased. The learned Sessions Judge held that because the houses of accused No. 1, the deceased and other accused as well as the prosecution witnesses are near one and another and on the same road, and therefore, when the incident took place, the neighbours and the relatives in the same locality are bound to come out of the house and merely on that ground they cannot be said to have entertained any common intention or common object. It was after accused No. 1 gave the blows to the deceased that other accused went to the scene of the offence and naturally thereafter there might have been cross-fight. The learned Sessions Judge, therefore, convicted accused No. 1 of culpable homicide amounting to murder punishable under Section 302 I.P.C. and convicted accused Nos. 2, 6 and 13 for the offence punishable under Section 325 I.P.C.. Accused No. 13 was also convicted for the offence punishable under Section 323 I.P.C. for injuring other witnesses.

Aggrieved by the above judgment, accused No. 1-Fatesinh Jesinh Parmar has filed Criminal Appeal No. 23 of 1998 whereas the State of Gujarat has filed Criminal Appeal No. 52 of 1998 for challenging the same judgment and order insofar as the accused (other than accused No. 1-Fatesinh Jesinh Parmar) have been acquitted of the offence punishable under Section 302 I.P.C.

 

CONTENTION OF COURT:

The court was unable to find any infirmity in the judgment of the learned Sessions Judge either in respect of the conviction of accused No. 1-Fatehsin Jesinh Parmar under section 302 IPC or in respect of acquittal of the other accused for the same offence read with Section 149 IPC.

As regards the alleged discrepancy between the medical evidence and the ocular evidence, the learned Sessions Judge rightly accepted the evidence of Dr Prajapati (Exh. 44) who had examined the deceased at the time of his admission to the Civil Hospital at Himmatnagar. As per the said evidence, the serious injury on the parietal region incised wound of 10 cm x 1 cm x 1 cm was caused by a sharp cutting instrument and the blood stains on the dharia of accused No. 1 corroborate the said case. Merely because the witnesses including family members of the deceased said that accused No. 1 gave two dharia blows on the deceased and only one long incised wound is found cannot be a ground for discarding the ocular version of the eye witnesses, who were members of the family of the deceased and whose presence in the house of the deceased was quite natural. Two of the eye witnesses were brothers of the deceased and the third one a sister in law (Bhabhi) of the deceased.

As regards the submission of Mr Japee for accused No. 1 that there was a sudden fight and that in the heat of passion accused No. 1 had given the dharia blow on the deceased, we are not in a position to hold that the evidence on record corroborates any such case of the accused which was not even pleaded at the trial. In his further statement under Section 313 Cr. PC, accused No. 1 himself denied that he had filed the complaint Exh. 113. As regards the injuries on the body of accused No. 1 as stated in the evidence of Dr Vinodkumar J Prajapati (Exh. 91), they were only three minor injuries -

(i) incised lacerated wound of 1 cm x 0. 5 cm on the right index finger.

(ii) an abrasion on the bottom of the right foot.

(iii) complaint of pain on left thigh when pressed.

Apart from the fact that the injuries are very minor and insignificant, they are clearly explained by the finding given that after the deceased fell down on account of dharia blows given by accused No. 1, the eye witnesses and all the accused had a fight. Even looking at the prosecution evidence for this purpose, all that emerges from the record is that Vinusinh (accused No. 1-Fatesinh's sister's husband) had gone to the well of complainant-Sardarsinh (nephew of the deceased) and Vinusinh was offered water by Sardarsinh between 5. 00 and 5. 30 in the early evening on 9. 4. 1994. On the same day at about 8. 00 in the evening, accused No. 1 went to the house of the deceased; accused No. 1 was enraged and annoyed with the deceased as to why a family member of the deceased (the deceased was the uncle of complainant Sardarsinh) had invited Vinusinh to the well of the complainant when there were disputes and animosity between the two groups. Assuming that there was any altercation between accused No. 1 and the deceased at that point of time, there is no explanation as to why accused No. 1 had gone to the house of the deceased with a dharia. This circumstance also is sufficient to rule out the submission of Mr Japee for accused No. 1 that accused No. 1 had gone to the house of the deceased without any premeditation. It was not that the incident in question had taken place in the agricultural field and that the accused had used any agricultural equipment which would be found in an agricultural field for the purpose of agricultural activities and a verbal altercation might provoke the accused to use any such agricultural equipment. Vinusinh had gone to the well in the agricultural field of complainant Sardarsinh between 5 and 5. 30 in the evening and it was thereafter around 8 in the evening i. e. after three hours that accused No. 1 had gone to the house of the deceased with a dharia, enraged by the fact that his brother in law had visited or had been invited to the well of a person from the family of the deceased (complainant was the nephew of the deceased). It is not even the case of the defence that Vinusinh was given any ill-treatment by the complainant, the deceased or any of their family members. On the contrary, the deceased had merely said "your guest is equally our guest. Why have animosity against a guest ?". In the above set of circumstances, it can hardly be said that the ingredients of Exception 1 or Exception 4 to Section 300 have been satisfied.

 

 

PRECEDENTS:

The learned counsel for the accused has relied on the following decisions of the Apex Court in support of his contention that when the accused is found to have given only one blow on the deceased, the Courts have altered the conviction under Section 302 to one under Section 304 Part II IPC:-

(i) Takhaji Hiraji vs. Thakore Kubersing Chamansinh, AIR 2001 SC 2328,

(ii) Addha vs. State of MP, AIR 2001 SC 3973,

(iii) Camilo Vaz vs. State of Goa, AIR 2000 SC 1374,

(iv) Masumsha Hasanasha Masalman vs. State of Maharashtra, AIR 2000 SC 1876,

(v) State of UP vs. Indrajeet, AIR 2000 SC 3158,

(vi) K. Ramakrishnan Unnithan vs. State of Kerala, AIR 1999 SC 1428,

(vii) Chandrakant Murgyappa Umrani vs. State of Maharashtra, AIR 1999 SC 1557,

(viii) State of Bihar vs. Ramnath Prasad, AIR 1998 SC 466 and

(ix) Mavila Thamban Nambiar vs. State of Kerala, AIR 1997 SC 687

 

JUDGMENT:

Mr. Japee has made the following submissions at the hearing of the appeals :-

(i)      As per the medical evidence, there was only one incised lacerated wound on the head of the deceased whereas accused No. 1 is alleged to have given two dharia blows on the head of the deceased, and therefore, the version given by the eye witness is not borne out by the medical evidence, and therefore, the said oral evidence must be discarded.

(ii)     In any view of the matter, accused No. 1 could not have been convicted under Section 302 I.P.C. It was a case of group fight as accused No. 1-Fatesinh Jesinh Parmar himself had filed cross complaint at Exh. 113 which we have seen from the original record and proceedings. It is further submitted by him that the accused themselves had sustained injuries. Therefore, it was a mere case of group fight following the enmity between the two groups as emerges from the prosecution case itself.

(iii)    When the medical evidence discloses that there was only one incised wound on the head, the deceased could not be said to have entertained any intention to cause death of the deceased and therefore, at the highest the case would fall under Section 304 Part II.

Various decisions cited by the learned Counsel for the accused are not required to be dealt with in detail for the simple reason that those decisions are rendered in the facts and circumstances of those concerned cases where the Court held that they were cases of culpable homicide not amounting to murder. Merely because the Court may not have referred to the provisions of any particular exception to Section 300, it would not mean that the Court held it to be a case of culpable homicide amounting to murder, and thereafter, applied the provisions of Section 304 Part II. For instance, in Addha v. State of M.P., AIR 2001 SC 3973, the Court found that there was a sudden quarrel between two groups of people and that the lathi used by the accused caused injury to the deceased resulting in his death. This would clearly mean that the Court applied Exception 4 to Section 300, and therefore, the case went out of Section 300 and it was held to be a case of culpable homicide not amounting to murder, and thereafter, the provisions of Section 304 Part II were applied.

Similarly, in State of U. P. v. Indrajeet, AIR 2000 SC 3158, the accused was a carpenter by occupation and he had used the implement ordinarily used in carpentry, and therefore, the Court held that it cannot be considered as a deadly weapon used with any premeditation, and that there was only one serious blow given by the accused with the said implement and there was absence; of intention to cause death. The Court, therefore, did not attribute any intention or knowledge contemplated by the four ingredients of Section 300, and therefore, held that it was a case of culpable homicide not amounting to murder.

In view of the above discussion, the contention of the learned Counsel for the appellant-accused that the Court should consider whether the case would fall under Part I or Part II of Section 304 cannot be accepted.

For the reasons aforesaid, we do not find any substance in the appeal of accused No. 1 challenging his conviction under Section 302 I.P.C, for which he has been sentenced to the minimum punishment of imprisonment for life.

Coming to the acquittal appeal of the State against acquittal of the other accused of the offence punishable under Section 302 I.P.C., we have gone through the relevant evidence in this behalf, and the judgment of the learned Sessions Judge and also heard the learned Addl. P.P. and the learned Counsel for the accused. In view of the finding given by the learned Sessions Judge that it was after the deceased fell down upon the dharia blow given by accused No. 1 that the other accused, who were relatives of accused No. 1 and were also residing in the same neighbourhood, came to the scene of offence and none of them was carrying any deadly weapon and they were only carrying lathis with them and none of them was found to have inflicted any injuries on the body of the deceased, the learned Addl. P.P. was not in a position to persuade us to take any different view from the one taken by the learned Sessions Judge that no common object or common intention could be attributed to any of the other accused. Hence, there is no basis whatsoever for, conviction of the accused other than accused No. 1 for the offence punishable under Section 302 read with Section 114 or 149 I.P.C.

In view of the above discussion, the appeal of the State of Gujarat also deserves to be dismissed.