Maheshbhai Kalyanbhai Baria and 2 Others vs State of Gujarat

Akil Kureshi, J.—This appeal is directed against the judgment of learned Special Judge, Panchmahals at Godhara dated 28th April, 2008 rendered in Special Case No. 18 of 2007. The appellants were original accused. They were charged with offences punishable under Section- 302 read with Section- 114 of the Indian Penal Code and Section- 3(2)(v) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act"). Briefly stated the prosecution version was that the deceased Lallubhai Gamabhai Rathva, son of the first informant had developed romantic relations with one Bhavnaben, who though was previously married, was residing at her parent�s place due to matrimonial disputes. Bhavnaben was sister of Maheshbhai Kalyanbhai Baria, the accused No. 1. Accused Nos. 2 and 3 were other family members. Keeping a grudge about such conduct of the deceased, all the three accused came to the house of the complainant late at night on 29th May, 2007 armed with sticks. The deceased Lallubhai and Bhavnaben were sleeping outside the house in the open. The three accused gave multiple blows with the sticks to Lallubhai, causing serious injuries. Bhavnaben immediately ran away to save her life. The incident was witnessed by Gamabhai Gandabhai, father of Lallubhai and first informant, as well as Hamiraben Gamabhai PW-2, the sister of deceased Lallubhai. The injuries proved fatal and Lallubhai died on the spot. All the accused also abused Lallubhai in the name of his community he belonged to Scheduled Tribe. In view of above allegations, charge was framed against the accused at Exh. 2 of having committed offences punishable under Section- 302 read with Section- 114 of the Indian Penal Code and Section- 3(2)(v) of the Atrocities Act.

Gamabhai Gandabhai, the complainant PW-1 had examined at Exh. 13. He deposed that he belonged to Rathva community. He produced at Exh. 15, a certificate showing that he belonged to a Scheduled Tribe. He deposed that he knew Bhavnaben, daughter of Kalyanbhai Saburbhai, who though was married, was residing with her father and did not go to her in-law�s place. His son Lallubhai and Bhavnaben had developed close relations. They were moving from place to place and sometimes hiding in the forest. He had also warned the father of Bhavnaben that Lallubhai and Bhavnaben were developing illicit relations. On the night of the incident, Lallubhai and Bhavnaben were sleeping outside his house in an open place in the wada. At night, all the three accused came armed with sticks. He was, at that time sleeping in the house. He heard Lallubhai shouting for him and screaming that he was beaten-up. He therefore, went there. All the three accused were giving blows with their sticks to his son on the head and on the hands. Bhavnaben ran away towards the forest. His son started bleeding from the head. They looked for transport, but could not find any at night. When he returned, his son had already died. He identified all the three accused before the Court. He produced F.I.R. at Exh. 14, which he had lodged before the Police Station. According to him the accused had used derogatory expressions and admonished the deceased being Rathva, of having kept the daughter of Barias.

He identified the muddamal article-sticks, as those used for the commission of the offence. He also identified the clothes worn by his son at the time of the incident.

In the cross-examination, he stated that after developing the relation, Lallubhai and Bhavnaben had stayed away for about three months. A month before the incident, they returned to the village. The in-laws of Bhavnaben used to visit the village searching for her. So that, they may not catch them, Bhavnaben and Lallubhai would spend time in the forest and come home at night and sleep there after dinner. He admitted that in the wada, at the time of the incident, the light was not on. He admitted that in the F.I.R., he had stated that out of fear, he did not go closer. When he went there, Bhavnaben was still standing.

He admitted that in his complaint, he had not referred to the utterances of the accused regarding the caste and that they had abused the deceased on such basis.

Hamiraben Gamabhai PW-2 Exh. 17 is another eye-witness. She is the sister of the deceased. She was also though previously married, was divorced and was therefore, residing at her father�s place at the time of incident. She deposed that on 29th May, 2007 when the incident took place, her brother Lallubhai and Bhavnaben were sleeping under a lime tree in the wada. She and other family members were sleeping in the house. At about 11:00 O�clock at night, her brother Lallubhai shouted for the father. She and her father went there and saw the accused carrying sticks. They all were giving blows to Lallubhai with the sticks. They were abusing him in the name of his community and for having kept the daughter of Barias. Bhavnaben run away towards the forest. Her brother got injury on head and he was bleeding. Maheshbhai Kalyanbhai Baria had charged towards her father.

In the cross-examination, she stated that Lallubhai and Bhavnaben had run away towards Baroda and came to the house about 10 days before the incident. She denied that when she reached the place of incident, the assailants had already run way towards the forest and clarified that the incident lasted for about 10 minutes and thereafter, assailants went away towards the forest. She denied that she never left the house and therefore, had no occasion to see the incidence.

The murder weapons, the sticks, were recovered under panchnama Exh. 26 and the panch witness Shri Andarsinh Dipabhai Rathva PW-4 Exh. 25 supported the prosecution.

The panchnama of the scene of incident was produced at Exh. 19. The panch witness Prabhatbhai Laxmanbhai Nayak PW-3 Exh. 18 supported the prosecution. From his deposition, as well as from panchnama, it can be gathered that at the scene of the incident, there was a pool of blood on the ground. To the East of this place, there were three lime trees. Right behind, the house of the complainant was situated. Close to the house on the Western side, the forest area began.

Dr. Kananbala Saini, PW-9 Exh. 45 had carried-out the postmortem. She was the Medical Officer at Community Health Center, Halol. In her deposition, as well as in the postmortem note Exh. 47, she had noted following external injuries. (1) CLW on Rt. frontal region of skull 1� c.m. x � c.m. x bone deep. (2) Bruise 3 c.m. above the rt. eye. (3) Multiple bruises of various shapes on lt. side of neck, lt. shoulder, lt. arm & on left elbow. (4) One small bruise on lt. Leg (on front). (5) Multiple stick marks & bruises on trunk.

Corresponding to such external injuries, she had noted the following internal injuries. (1) CLW on Rt. frontal bone of skull 1� c.m. x� c.m. x bone deep. (1) Fracture-Rt. Frontal bone.

According to her, the cause of death was Neuro Hemorrhagic shock due to head injury.

She deposed that such injuries were sufficient in ordinary course of nature to cause death and that they could have been caused with the sticks.

In the cross-examination, she further clarified that if timely treatment was made available, the patient could possibly survived. She agreed that if a person in lying-down condition tries to evade stick blows with his hand, it could result into fractures and other injuries. She agreed that on the body of the deceased, no injury marks were seen on the hand from the palm till the elbow. She stated that it was not necessary that upon giving blows with the stick invariably blood marks would be found on the stick.

Punamchandra Shanabhai, PW-8 Exh. 35 was Investigating Officer. He gave the detailed steps undertaken by him during the course of investigation. In the cross-examination of this witness, the defence brought-out certain improvements made by PW-2 Hamiraben in her deposition as compared to the police statement.

Various articles recovered during the investigation and in particular the sticks were sent for forensic analysis. Blood group of deceased was found to be Group ''O''. From the Serological report Exh. 44, we gather that from one of the three sticks presence of human blood was noticed. Group thereof, however, could not be ascertained.

On the basis of such evidence on record, the learned Judge held that all the three accused were guilty of offence punishable under Section- 302 read with Section- 114 of the Indian Penal Code. For such offence he awarded life sentence and also ordered payment of fine. The learned Judge also convicted the accused for offence under Section- 3(2)(v) of the Atrocities Act. He however, did not award separate sentence for such offence in view of the fact that, he had already awarded life sentence to all the accused for offence under Section- 302 of I.P.C.

On the basis of such evidence, learned counsel Shri Dave for the appellants vehemently contended that the trial Court committed a serious error in convicting the accused. In his contention, neither PW-1 nor PW-2 could be stated to be eye-witnesses. He drew our attention to certain internal inconsistencies between depositions of these two witnesses to canvas that neither of the two witnesses had an occasion to see the incident. The possibility that some other assailants caused injuries and run away before these witnesses arrived at the scene of incident cannot be ruled out. Referring to the deposition of Gamabhai Gandabhai, PW-1, that it was the in-laws of Bhavnaben, who were looking for Lallubhai and Bhavnaben, the counsel would contend that not the present accused, but the in-laws of Bhavnaben had the motive to commit crime.

Learned counsel submitted that as per the witnesses, Bhavnaben was present at the time of the incident. She was not examined by the prosecution. This must prove fatal.

Counsel further submitted that in any case, this was not a case for conviction under Section- 302 of the Indian Penal Code, particularly looking to the nature of arms carried and the injuries caused.

With respect to the Section- 3(2)(v) of the Atrocities Act, the counsel contended that the ingredients thereof are not established. Allegations of utterance in the name of community are only afterthought. The complainant never made any such allegations in the F.I.R.

On the other hand, learned APP Mr. Jani, opposed the appeal contending that the prosecution had brought on record reliable and cogent evidence through which involvement of all three accused was established. Learned Judge has given detailed reasons for conviction. No interference is called for.

The fact that Lallubhai and Bhavnaben had developed romantic relations, though Bhavnaben was previously married and that such marriage was subsisting is not seriously in dispute. Bhavnaben''s family lived in the same village as that of the deceased. As per PW-1 and PW-2, to avoid being caught, Bhavnaben and Lallubhai had made themselves scares for a few months. Only recently they returned home, that too most of the day time, they would spend in the forest and return home only late at night to have food and to sleep there. So much of the evidence of the prosecution, is not seriously under challenge.

On the night of 29th May, 2007, Lallubhai and Bhavnaben were sleeping outside their house. As per PW-1, at about 11:00 O''clock, he heard his son shouting for help. He rushed to this place and saw all the three accused assaulting his son with the sticks. This is also the version of Hamiraben-PW-2 Exh. 17. Both the witnesses were sleeping inside the house, while Lallubhai and Bhavnaben were sleeping in the open in the wada. From the deposition of these witnesses and the panchnama of scene of incidence, it clearly emerges that there was a very short distance between place of the incident and the house. Where pool of blood was found on the ground was barely a few feet away from the house. If therefore, in the quiet of the night, the complainant heard the shouts of his son and rushed to see what was happening, when the incident was still going on, the same was but natural. Both Gamabhai PW-1 and Hamiraben PW-2 were sleeping inside the house right adjacent to the open wada, where Lallubhai and Bhavnaben were sleeping.

Lallubhai received multiple injuries on the head and other parts of the body. As per the doctor carrying out postmortem, such injuries could be caused by sticks. All the three sticks were recovered during the course of investigation. One of them even detected spots of blood. We may recall, both the eye-witnesses refer to Lallubhai bleeding from the head. The panchnama of the scene of incident also records a pool of blood on the ground.

In so far as the incident is concerned, involving all the three accused assaulting Lallubhai when he was sleeping outside his house with sticks causing injuries on the head and other parts of the body, we have no manner of doubt. This has come through the eye-witness accounts of two witnesses, whose presence was natural.

It is true that there are certain minor inconsistencies in the versions of these two witnesses. It is equally true that PW-2 Hamiraben has made certain improvements and perhaps there is note of exaggeration. For example, she referred to one of the accused even challenging or charging PW-1 Gamabhai. Gamabhai has not mentioned any such event. However, such minor inconsistencies need not deflect from their core depositions with respect to the actual incident and the manner in which the events took place. In so far as the three accused coming to the house of the complainant, where deceased sleeping outside, armed with sticks and giving multiple blows causing his death, there are absolutely no contradictions or inconsistencies. Though, PW-1 Gamabhai Gandabhai agreed that the light in the wada was not on when the incident took place, we cannot forget that the accused and the witnesses lived in the same village and were known to each other. Gamabhai Gandabhai infact had warned the family of Bhavnaben about illicit relations between her and Lallubhai. The witnesses and accused were thus familiar and known to each other since long. Their identification, therefore, by these witnesses before the Court, should not be doubted. Further, as the learned Judged has noted in the impugned judgment, it was the 13th night of Hindu calendar month of Chaitra. There would thus be bright moonlight. The incident from the very nature of the injuries received by the deceased, could not have been over in a matter of moments. According to Hamiraben the assault lasted for about 10 minutes.

In view of the eye-witness accounts duly corroborated by medical and forensic evidence, we have no hesitation in holding that all the three accused came of the house at the complainant armed with sticks and assaulted his son, causing multiple injuries, one of them on the head proved fatal.

Regarding non-examination of Bhavnaben, the learned Judge in impugned judgment, has discussed this aspect referring to the possibility of the said person having turned hostile and therefore, being dropped by the prosecution. In view of this, non-examination of Bhavnaben need not be viewed seriously.

With respect to the offence under Section- 3(2)(v) of the Atrocities Act, however, we find that the learned Judge has committed serious error in holding the charge to be proved. To begin with, the first informant in the complaint Exh. 14, never mentioned to any utterances by the accused in the name of the community. In the deposition, he did however refer to certain derogatory remarks by them. PW-2 Hamiraben did mention about the accused abusing Lallubhai in the name of his community and having dared to develop illicit relationship with the lady of Baria community, in view of total non-mentioning of any such incident by the complainant in the F.I.R. itself, in our view, it would be highly unsafe to rely on the oral testimony of Hamiraben-PW-2, unaided and uncorroborated by any other evidence. We may recall, Hamiraben had shown some tendency of exaggeration. In our view, therefore, though the allegation of accused having caused multiple injuries to the deceased, causing his death stand proved, the fact that such act was committed on the ground that the deceased was a member of scheduled tribe is not established. This is a prime ingredient for offence punishable under Section- 3(2)(v) of the Atrocities Act. When such ingredient is not established, conviction for the said offence would not be justified.

We now, come to the question of the precise nature of the offence committed by the accused-appellants. In view of our above conclusions, what emerges is as follows:-

(i) Deceased Lallubhai and Bhavnaben sister of accused No. 1 had developed romantic relations.

(ii) Bhavnaben was already married, but had strained relations with her husband. She was therefore, residing at her parent�s house.

(iii) Lallubhai and Bhavnaben were moving from place to place avoiding being caught by the relatives of Bhavnaben.

(iv) On the night of the incident, the accused came to the house of the complainant, armed with sticks and assaulted Lallubhai with such sticks.

(v) The injuries caused to Lallubhai, show one head injury and multiple other injuries on the body. Such injuries, however, were not serious and did not result into any fracture. Primarily, such injuries were in the nature of bruises.

(vi) Gamabhai Gandabhai-PW-1, did not rush to help his son out of fear. This is what he admitted in deposition of having stated in the complaint.

(vii) It was a night time and help from other neighbours would not be easily forthcoming.

The cumulative effect of above factual findings would be that though the accused came with the premeditation of beating-up Lallubhai, the nature of weapons carried by them would not indicate that they intended to cause death. Nothing prevented them from carrying more deadly weapons such as dhariyas or axes etc., which are also otherwise ordinarily carried by agriculturists in rural areas. Though they had ample opportunity; as pointed-out by Hamiraben PW-2, the incident lasted for 10 minutes; they did not cause more serious injuries. Even, PW-1 Gamabhai Gandabhai had stated in the F.I.R. that out of fear, he did not rush to help. Even with the sticks, if the accused had intended to cause death, nothing prevented them from causing more serious injuries on vital parts of the body including the head. Only one blow on the head was more serious and resulted into skull fracture. The remaining blows on the body did not result into any fracture and caused simple bruises. Under the circumstances, in our opinion, it cannot be stated that the accused intended to cause death. They must, however, ought to have knowledge that the injury, which they were causing was likely to result into death. Section- 304 of the Indian Penal Code prescribes punishment for offence of culpable homicide not amounting to murder. Part-II thereof provides that, whoever causes death by an act, which is done with the knowledge that such act is likely to cause death, but without any intention to cause death or such bodily injury as is likely to cause death, would be liable to be punished with the imprison for a term, which may extend to 10 years or with fine. In our opinion, all the accused could be stated to have committed offence of culpable homicide not amounting to murder punishable under Part-II of Section- 304 of I.P.C. read with Section- 114 of the Indian Penal Code thereof. Awarding sentence of rigorous imprisonment of 7 years, looking to the facts and circumstances, would in our opinion, would be sufficient punishment. Their conviction under Section- 135 of the Bombay Police Act, is required to be reversed. In the result, appeal is allowed in part. The conviction of the appellants-original accused, for offence under Section- 3(2)(v) of the Atrocities Act, 1989 is set aside. They are acquitted of the said charge.

Their conviction for the offence under Section- 302 read with Section- 114 of the Indian Penal Code is converted into that of Section- 304 Part-II of the Indian Penal Code. They are awarded sentence of 7 years rigorous imprisonment for such offence and direction for payment of fine of Rs. 2,000/- each is maintained.

Appeal disposed of accordingly.