GAMAR KIKABHAI BHERABHAI vs STATE OF GUJARAT

These Criminal Appeals arise out of a common judgment dated 25.7.2008 rendered by the learned Additional Sessions Judge, Himmatnagar, in Sessions Case Nos. 91/2007 and 9/2008.

Briefly stated, prosecution version was that there was money dispute between the original accused no.1 Kikabhai Bherabhai with the family of the complainant. On the date of the incident, i.e. 6.11.2006, at about 7 O'' clock in the evening, the said accused Kika came along with other accused persons to the house of the complainant and started quarelling with him and other family members about the money matters. Sajkiben, mother of the complainant, tried to intervene and persuade the accused not to quarrel, upon which, Kika used his bow and arrow which he was carrying and hit Sajkiben with an arrow on her arm. The arrow pierced through her arm and penetrated the lung, rupturing it causing her death.

When the charge was framed at exh.3 to this effect alleging commission of offences under section 302 and 504 of the IPC against Kikai, the remaining accused were absconding, However, before the trial was completed, rest of the accused were arrested and brought to trial. These two Session Cases therefore, were decided by a common judgment. Learned Sessions Judge convicted Kika for the offence punishable under section 302 of the IPC and sentenced him to imprisonment for life. Rest of the accused were acquitted of all the charges. Kika has challenged the judgment of conviction. The State has preferred appeal against acquittal of the rest of the accused.

Dr. Arunkumar Muljibhai, PW1, exh.5, was the Medical officer at the Community health centre, Poshina. He had carried out the postmortem of the body of Sajkiben. He had found an entry puncture wound behind the right arm below the shoulder which had pierced in the arm and entered the right side of the chest. He had found that one of the ribs was fractured and the lung had ruptured. He had given the certificate of cause of death opining to be due to hemorrhage shock on account of rupture of the right lung. In the cross examination, he agreed that the injury on the arm was not sufficient to cause death. He also agreed that if the arrow was left in the body and not pulled out, the chances of saving the injured were brighter. He agreed that when the body was brought to him, there was no arrow in the body. This doctor had given the postmortem report, exh.6, in which a rough sketch of the dead body was drawn showing the position of the wound starting from the outer side of the right arm and continuing onwards to the side of the chest upto the lung.

Shamalbhai Karnabhai, PW2, exh.17, son of the deceased, was also the first informant. He deposed that he lived with his brothers, sisters and other family members at the village. His uncle Keshabhai had died four or five years back. His agricultural land was mortgaged with Kikabhai Bherabhai for borrowing money for treatment of his uncle. Couple of years after the death of the uncle, his uncle''s wife Modalben had returned the money and released the land from mortgage. Kika however, was demanding double the amount. His father and mother told Modalben not to pay the additional sum. Kika was therefore, annoyed with them. On 6.11.2006, at about 7 O'' clock, he was at home along with other family members including his wife and his mother. They were sitting outside the house talking and at that time accused Kika Bhera came there along with other three accused Bhojabhai Bherabhai, Sagram Bhera and Mola Dhulabh Gamar. They were all using foul language. They were carrying bows and arrows. His mother tried to persuade them not to pick up a quarrel since they had guests at home. At that time Kika Bhera released an arrow and hit his mother. The arrow had hit her near the right elbow and then pierced into her chest. His uncle pulled out the arrow and they took her to the hospital at Poshina. However, on the way his mother died. He had lodged the FIR exh.18. In his cross examination, nothing substantial has come out.

Deposition of this witness regarding the incident was duly supported by several other eyewitnesses such as, Kashranabhai Homidabhai PW3 exh.19, Limbabhai Homidabhai PW4 exh.20, Karnabhai Punabhai PW5, exh.22 and Modarben Keshabhai Gamar PW6 exh.23.

The evidence on record thus established beyond doubt that on 6.11.2006, accused Kika Bhera had come to the house of the complainant. There were past quarrels going on between him and the family. The complainant''s uncle was sick. The family therefore, had to raise money for his treatment. This they did by mortgaging their land to Kika. According to the complainant, the family had repaid the mortgaged amount and released the land from mortgage. Kika was still demanding more money. The complainant''s parents were preventing Modalben from paying such money. On 6.11.2006, after a brief quarrel, Kika used his bow and arrow and severely injured Sajkiben, mother of the complainant. The arrow hit her on the side of the right arm, pierced through the arm and entered the chest.

Deposition of the complainant and eyewitness Shamalbhai Karnabhai, PW2, was clear and precise. There were no contradictions and in the cross examination nothing substantial came out. In fact, there were several other eyewitness who as noted above, supported the same version.

In view of such evidence on record, the fact that Kika hit deceased Sajkiben with an arrow is duly established on record. This was also the cause of death, as pointed out by Dr. Arunkumar Muljibhai, PW1. Involvement of Kika in causing the death of Sajkiben is therefore, established beyond doubt.

Whether such act of Kika amounts to offence punishable under section 302 of the IPC is however, yet to be decided. In order to do so, we may take into account the following factors : 1) The arrow was not aimed at any vital part of the body.

2) Clearly the arrow was shot aiming to injure Sajkiben since it was hit on her arm. If the intention was to cause death, the assailant could easily have aimed the arrow at some vital or vulnerable part such as, chest, neck, or stomach.

3) It appears that due to the force used in releasing the arrow, it did not stop at causing damage only to the arm and injuring the victim. It pierced through the arm and entered to the side of the chest and in the process punctured the lung of Sajkiben.

4) Dr. Arunkumar Muljibhai, PW1, in his cross examination, agreed that had the arrow not being pulled out from the body, possibility of saving the injured would have been brighter. It has come on record through the evidence of Shamalbhai Karnabhai, PW2, that his uncle had pulled out the arrow, possibly to save her.

It can thus be seen that the accused Kika never intended to cause death of Sajkiben. He however cannot escape the liability of having caused such injuries which were likely to cause death. His conviction is therefore, required to be reduced from that under section 302 to section 304 Part II of the IPC. His jail record would suggest that he has already served a sentence of more than 10 years including the period of setoff. Such sentence would be more than sufficient to meet the ends of justice.

So far as the State appeal is concerned, we have not the slightest doubt in confirming the judgment of the trial Court in acquitting all th remaining accused. There was no iota of evidence against any other accused of having shared the common intention of accused Kika in causing death. The entire incident took place in the spur of the moment. Kika had in past also quarrelled with the family on the money dispute. On the date of the incident, once again he came demanding more money. After a brief quarrel, he shot an arrow. Thus neither Kika nor his other companions had any premeditation of causing serious injuries to Sajkiben or anyone else. No overt act is attributed to any other accused of instigating Kika to commit the offence. Merely because Kika and his other companions were carrying bows and arrows, would not show preplan or premeditation. It is well known fact that the tribal population in remote rural areas routinely carry bows and arrows for self protection and hunting.

In the result, Criminal Appeal No.1114/2012 is partly allowed. Conviction of Gamar Kikabhai Bherabhai is converted from that under section 302 to section 304 Part II of the Indian Penal Code. His sentence is reduced to one already undergone. He shall be released forthwith, if not required in any other case. Criminal Appeal No.1114/2012 is disposed of accordingly. Criminal Appeal No.2593/2008 filed by the State against acquittal of rest of the accused is dismissed. R&P may be transmitted back to the concerned trial Court.