Raghav Savji Padsala and Another vs State of Gujarat

D.H. Waghela, J.—These appeals are preferred from the same judgment dated 13.01.2003 of learned Additional Sessions Judge, Amreli in Sessions Case No. 72 of 2001 wherein the appellants in the first appeal were convicted for the offence punishable u/s 302 read with Section 114 of IPC and sentenced to imprisonment for life, whereas accused No. 3, who is respondent in the second appeal, was acquitted. The appellants in the first appeal are father and son and the respondent in the second appeal is widow of the first appellant and mother of the second appellant in the first appeal. In the appeal from conviction, appellant No. 1, the father, is stated to have passed away pending appeal and his appeal is not pressed. Appellant No. 2, the son, aged 27 at the time of the offence, has undergone imprisonment for nearly seven years. The second appeal is filed by the State to challenge acquittal of the respondent-mother in that appeal. Learned Counsel Mr. Pravin Gondaliya, appearing with learned senior counsel Mr. Y.S. Lakhani, restricted the appeal to urge reduction of the period of sentence on the ground that conviction of the appellant was required to be recorded u/s 304 of IPC, in the peculiar facts and circumstances of the case.

The case of the prosecution before the trial Court was that, on 16.6.2001 the accused were sowing cotton seeds in their field on the outskirts of village Kerala where the deceased victim was hacked to death at around 2.00 p.m. by repeated blows of agriculture implements like sickle and hoe. At 2.55 p.m., Lathi Police Station received a call from the residence of the deceased about the incident and the FIR (Exh.36) was registered at 3.45 p.m. wherein the brother of the deceased mentioned the names of all the three accused persons. The cause of the quarrel and attack by the accused persons was stated in the complaint to be that the deceased had asked the accused persons to remove thorns lying on the common boundary between the fields of the accused and the deceased.

The prosecution mainly relied upon the testimony of the complainant, brother of the deceased, who was examined as P.W. No. 5 at Exh.17. Deposing as an eye witness, he stated that the accused went away as soon as he proceeded to save his deceased brother. He admitted that the accused were distant relatives and there was no previous enmity among them. During his cross-examination, he deposed that when he approached the deceased, the main accused, now deceased Raghavbhai, was working in his own field and thereafter Raghavbhai came into his field and attacked the deceased. He stated that accused No. 1 - Raghavbhai was holding a sickle and a hoe and he never attacked the witness. He deposed that when he saw that his brother was dead, he went to his home and the telephone from his residence was made by someone else in his name. He admitted that the deceased was Sarpanch as well as Vice President of Lathi Taluka Panchayat. He further admitted that their field was given away for cultivation by some labourers. He also admitted that the first call was made from his residence to the police station, at his instance, and no name of any of the accused persons was mentioned at that time. It was also admitted that even as the sickle and the hoe alleged to have been used as weapons were left at the scene of the offence, there was a drizzle at that time and he could not remember how may blows were inflicted and by whom. He denied that any scuffle had taken place at the time of the incident.

Another eye witness, namely Rameshbhai Kalubhai (P.W. No. 7), Exh.30, related an inconsistent version of the incident by deposing that the above eye witness had gone into the field of the accused to persuade them to remove the thorns when the deceased was attacked by a hoe by appellants Raghavbhai and Kishorbhai. He deposed that the incident had taken place within five minutes and immediately thereafter he had returned to another field of the deceased, while the brother of the deceased had returned to the village. He admitted in his cross-examination that there was no one in the surrounding area except deceased Raghavbhai at the time of the incident and while Raghavbhai was peacefully working in his own field, the incident had happened after the deceased and his brother came at the scene and the brother of the deceased was close to the accused, although he was not attacked. He also deposed that the deceased had not threatened or exchanged words of abuse.

The injuries on the body of the deceased victim as enumerated in the post-mortum report (Exh.26) are as under:

External marks of injuries; their size, direction, time of injury and reasons for that:

(1) C.L.W. on right parietal region size about 4 cm. x 2 cm. x bone deep.

(2) (sic) shaped C.L.W. on nose & both sides of it, each part size about 4 cm x 2 cm x bone deep.

(3) C.L.W. on middle of chin including lower lip size 6 cm x 5 cm x bone deep. - middle 6 teeth (Lower jaw) fallen.

(4) C.L.W. on upper part of left eye size about 6 cm x 2 cm x bone deep. Left eye is totally damaged due to - of frontal and orbital bone.

(5) C.L.W. on abdomen 2" above umbilicus size 1 cm x 1 cm 0.2 cm

(6) C.L.W. on left side of abdomen 2" away from umbilicus size 1 cm x 1cm x 0.2 cm

(7) C.L.W. on right side of abdomen 1" away from umbilicus size 1 cm x 1 cm x 5 cm. dia.

By external examination, can we say that there is any fracture:

(1) - of right parietal bone in 3 places below injury No. 1.

(2) - of nasal bone

(3) - of right and left maxillary bone

(4) multiple - of frontal bone at middle left side.

(5) - of left orbital bone.

(6) - of upper jaw, lower jaw bone.

(7) - of mandible at mid portion.

Dr. Prahladbhai M. Patel (PW.6) examined at Exh.25 clearly deposed that seven external injuries were corresponding to seven internal injuries, each one of which had resulted into fracture and injury No. 1 and 4 on the parietal and on the left eye were enough to cause death within 5 to 30 minutes of the injury.

Learned Counsel Mr.Pravin Gondaliya submitted that apart from the contradictions and discrepancies in the deposition of eye witnesses, the prosecution version was so highly improbable and the behaviour of the witnesses was so unnatural that finding of the offence of murder u/s 300 of IPC could not have been recorded on the basis of such evidence. He submitted that even as the accused persons had resorted to bare denial in defence, it was clear from the evidence on record that there was neither any intention, nor any preparation, nor use of any deadly weapon, nor history of enmity that could explain a violent attack on the deceased by the accused persons. He further pointed out from the deposition of Dr.Prahladbhai (Exh.25) that in fact accused No. 1 and 2, father and son, were brought to him on the same day at 9.30 p.m. and they were found to have injuries and abrasions on medical examination. It was also in evidence of the prosecution that the deceased was an able bodied stout man holding several fields and wielding political power. He submitted that apparently the deceased victim and his brother had approached the accused persons by crossing the fencing or the hedge between their fields and a scuffle had taken place wherein the accused persons could have, at the most, wielded as weapons the agriculture implements that they might be holding. Involvement of the son and the mother, namely, Kishorbhai and Shantaben, was very doubtful and the behaviour of the brother of the victim was apparently so unnatural that he deposed to have neither protected his brother, nor taken him to hospital, nor even stood by the dead body. He submitted that even assuming that fatal blows were dealt by the accused persons, they could have been in exercise of their right of private defence or in a sudden fight, without premeditation and in the heat of passion, upon a sudden quarrel and, therefore, the appellants could not have been convicted for murder u/s 300 of IPC.

Learned A.P.P. Ms. Chetna M. Shah submitted that the number of injuries inflicted upon the deceased indicated the number of blows given by the accused persons and such forceful blows on the vital parts of the body of the deceased clearly indicated an intention to kill. She further submitted that the deceased was brutally killed in broad day light and the accused persons did not deserve any sympathy so as to reduce the sentence. It was, however, fairly conceded that the accused persons were not reported to have any other record of criminal cases against them, that the first appellant-father has already passed away and that there was insufficient evidence against the respondent in the second appeal to convict her for any of the offences alleged against the accused persons.

Since the first appeal against conviction is restricted to the quantum of punishment and it is conceded that death of the victim was homicidal and presence of the appellants could not be disputed, it has to be examined whether conviction and sentence for the offence u/s 302 were required to be altered. It is seen from the evidence of the two eye witnesses, as briefly narrated hereinabove, that the accused persons could not be attributed any plan or preparation or even motive for killing the deceased. Therefore, the submission that the scuffle could have taken place upon a sudden fight is plausible. Though the version of the eye witnesses do not inspire any confidence, it is difficult to arrive at any finding of fact as regards the accused persons attacking the deceased in self-defence, particularly in absence of even a suggestion to that effect before the trial Court. It is, however, fairly clear from the evidence that the narration of the offence by the eye witnesses was not trustworthy and it was not clear as to how many and which blows were dealt by the father or the son, the surviving appellant. The implement with which fatal blows were dealt is admittedly a wooden hoe which was broken and blood thereon was supposed to have been washed off due to the drizzle. In such circumstances, the act of dealing blows with hoe or sickle could be said at the most to be with the intention of causing death or of causing such bodily injury as was likely to cause death. Therefore, the offence as narrated by the eye witnesses would amount to culpable homicide not amounting to murder and such offence would be punishable under the first part of Section 304 of IPC.

Accordingly, the appeal is partly allowed as far as appellant No. 2 Kishorbhai Raghavbhai Padsala is concerned and, modifying the impugned judgment and order, he is convicted for the offence punishable u/s 304 read with Section 114 of IPC and sentenced to rigorous imprisonment for nine years, in the peculiar facts and circumstances of the case. The appeal in respect of the first appellant, who has passed away pending appeal, has abated. The appeal of the State against original accused No. 3 is dismissed as devoid of any substance.