Ramji Jhina vs United State of Saurashtra

This is an appeal by accused 1, Ramji Jhina, in a case in which he, along with his three brothers, wag charged with the offence of murder u/s 302, Penal Code.

The prosecution case in short was that the buffaloes of one Jhina, the father of the four accused had caused damage to the standing crops in the field of one Shiva Chaku, and as they were being taken to the pound by Shiva, the four accused attacked Shiva and prevented him from taking them to the pound. On Shiva''a complaint Dana and Natha, who were related to him, went to the place where the buffaloes were, and on their attempting to take them to the pound, a fight ensued between them and the accused. While this fight was in progress, Vira, who was also related to the complainant, came there, and he was given a blow with an axe by accused Ramji.

The defence of accused 1 was that he was not present on the scene at all. The defence of the other three accused who were his brothers, was that they were present, but it was the complainant''s party that was aggressive, and that they gave blows to the accused. They do not explain how the axe blow came to be delivered on the deceased Vira. The learned Judge in appreciating the evidence has observed that the prosecution has greatly exaggerated the case, and that it was not a case of any premeditated fight, but that it was a sudden fight in which blows were given by sticks and axe, and the deceased died on account of a blow of an axe given on his head. There is no doubt that that particular blow was sufficient in the ordinary course to cause death, but the question is with what intent was it given. The learned Judge has acquitted the other three accused on the ground that there was no question of any common intention between the accused, but he has convicted accused 1 relying on the evidence of prosecution witnesses Jiva, Ramji, Dana and Natha. No doubt all these 4 persons -- are related to the oomplainant, and their story has to be accepted with caution. There is also one circumstance on which the defence relied, but on which the learned Judge did not accept the defence case, and that was that the first information was given to the Police Patel who wrote a report and gave it to the complainant to be delivered to the Sub -- Inspector in another village. It is stated that the complainant went with that report to the Sub -- Inspector, but that as it was raining that paper was spoiled and therefore, a report was given by the complainant to the Sub -- Inspector which is the First Information Report, Ex. 26 in the case. Technically speaking it is true that the information written by the Police Patel was not a First Information Report because it was not made to an officer in charge of a police station. It was no doubt a first information given to a policeman, and especially in criminal cases, the first information has very great value. In the present case the report is not forthcoming as it is alleged that it was destroyed by rain, but the Police Patel himself could have been examined, and there is no satisfactory reason for not so doing. We would like to emphasise the necessity of examining every one to whom the first information is given in a criminal case, even though technically it may not be a first information report, but still it being the first information, the Court ought to be told about the contents, if it was reduced to writing. In this case, even though the report might have been destroyed by rain, the Police Patel ought to have been examined as a prosecution witness, but in our opinion, that circumstance does not necessarily detract from the truthfulness of the prosecution case which has been established on other evidence. There is no doubt that the four accused, who are brothers, were there, and there is satisfactory evidence to show that accused Ramji was seen going towards the village from the scene of offence almost immediately after its occurrence. It was undoubtedly in Ramji''a interest to accompany his brothers for protesting against their father''s cattle being taken away to the pound, and if there is evidence to show that Ramji was there, that evidence is rendered probably by the circumstances of the case. There is no doubt that he must be one of the persons in the accused party, who was armed with an axe especially because the fatal injury was such as could be caused by an axe. One axe has been produced in the Court, and it is stated to be stained with blood, but the Doctor is not sure whether the fatal injury could have been caused by such an axe. The prosecution witnesses also say that the axe produced in Court is not the one with which the fatal injury was caused. We have repeatedly pointed out the necessity of sending any article stained with blood in a murder case to the Chemical Analyser. If it was the opinion of the Police officers that this axe which is produced in Court was stained with blood, it was their duty to send it to the Chemical Analyser, but that was not done. It is the prosecution case that the axe which is produced is not the one with which the injury was caused, because it is not capable of inflicting such an injury, and that the real axe used by accused 1 is not forthcoming. Whatever that may be, there is no doubt that the fatal injury must have been caused by some axe, and looking to the fact that that injury did cause the death, ordinarily the accused would be guilty of murder, if there are no other circumstances. The learned Judge has, however, taken into consideration the circumstances in which the fight took place. He has held that there was no common intention, that the fight was not premeditated but was sudden, and that it is difficult to say on the evidence which one was aggressive party. Mr. Vakil, on behalf of the defence, has relied on two rulings to show that where there is no evidence as to who commenced the fight, both the parties must be given the benefit of doubt, and both of them acquitted, even though the persons belonging to both the parties have been injured in the fight. That depends on circumstances, especially the arms which are carried by the members of the party. In this case, the prosecution party were at the most armed with sticks, while at least one of the accused persons was armed with an axe. Whoever began the quarrel, there was no necessity for the use of the axe, if the other party was armed with sticks only. In this Court a new argument has been urged before us, which does not seem to have been advanced before, viz., that the accused had to act in self defence, but there is, in our opinion, no question of self defence. A case must be made out by the accused for proving self defence, but no such attempt has been made in the lower Court. We are unable to hold that accused 1 could have acted in self -- defence, for even though there was a sudden fight, there would be no right of self defence when the complainant''s party were armed only with sticks, and one of the accused''s party had an axe in his possession. We, therefore, think that the learned Judge has appreciated the evidence in a proper manner, and although be does say that the prosecution witnesses are not disinterested, we agree with him that the circumstances are such that accused 1 and 1 alone could have been the person who was armed with an axe and who gave the fatal injury on the head of the deceased.

The learned Judge has convicted accused 1 of the offence u/s 304(2) looking to the fact that there was no premeditated fight and that the fatal injury was given by him in a sudden quarrel. It happened to fall on the vital part of the deceased body, but it was not his intention to kill him. On that view he has given the sentence of eight years'' rigorous imprisonment to the accused. We think, that if the circumstances on which he has relied are established, as he finds that they are, in such a case the ends of justice would be met by sentencing the accused to a sentence of five years'' rigorous imprisonment. Accordingly we confirm accused 1''s conviction for the offence u/s 304(2), Penal Code, but reduce his sentence from eight years'' rigorous imprisonment to that of five years'' rigorous imprisonment.