R.P. Dholaria, J.
1. Both these appeals arise out of the same incident and involve common questions of law and facts and hence, they are being decided by this common judgment.
2. Criminal Appeal No.902 of 2002 is preferred by the appellants original accused against the judgment and order dated 23.10.2002 passed by learned Additional Sessions Judge, Fast Track Court, Panchmahal at Godhra in Sessions Case No.200 of 2002 whereby the original accused Nos.1, 2 and 3 were convicted for the offence under section 304 of the Indian Penal Code and sentenced them to undergo five years rigorous imprisonment and to pay fine of Rs.1000/-, in default, to undergo one month simple imprisonment and for the offence under section 135 of Bombay Police Act, the said original accused were convicted and sentenced to undergo one month simple imprisonment and to pay fine of Rs.100/-, in default, to undergo seven days simple imprisonment, whereas original accused Nos.4 and 5 were convicted for the offence under section 326 of the IPC and sentenced them to undergo three years rigorous imprisonment and to pay fine of Rs.500/-, in default, to undergo one month simple imprisonment and for the offence under section 135 of the Bombay Police Act, the accused were convicted and sentenced to undergo one month simple imprisonment and to fine of Rs.100/-, in default, to undergo seven days simple imprisonment. Whereas, the appellant State of Gujarat has preferred Criminal Appeal No.1540 of 2006 under section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 15.9.2005 rendered by learned Presiding Officer, Fast Track Court, Dahod in Sessions Case No.351 of 2004 (new) (old Sessions Case No.178 of 2004) whereby the original accused Ramsubhai Haklabhai Machhar has been acquitted of the charges levelled against him.
3. The short facts giving rise to the present appeal are that on 28.3.2002 as there was festival of Holi, the complainant along with Jayantibhai Ramsubhai, Shamjibhai Fatabhai and Valsing Fatabhai have gone to the place of Holi at village Dhadeli and at the place of Holi, other persons of village named Vestabhai Matabhai, Ramsubhai Haklabhai, Mansukhbhai Haklabhai, Chhaganbhai Haklabhai, Matabhai Haklabhai, Dalubhai Vestabhai and others were also present. It is further case of the prosecution that at the time of Holi, all the persons from the complainant side and from accused side were singing songs of Holi and during that period at about 9.30 hours Vestabhai and others came to the complainant side and by giving filthy abuses to the complainant told "why are you singing song relating to our caste" and thereby raised dispute. Thereafter, all the accused persons in abetment of each other assaulted the complainant and prosecution witnesses with the deadly weapons like swords and axe and thereby caused death of Samjibhai M
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tabhai and grievous hurt over the person of Lalsinh and thereby the accused committed the offence under sections 147, 148, 149, 504, 302, 326 of Indian Penal Code and section 135 of the Bombay Police Act. Therefore, the complainant lodged the complaint vide CR No.I 61 of 2002 before Fatehpura Police Station.4. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondents accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.4.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced documentary evidences.4.2 At the end of trial, after recording the statements of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned Additional Sessions Judge, Fast Track Court, Panchmahal at Godhra in Sessions Case No.200 of 2002 delivered the judgment and order convicting the original accused, whereas learned Presiding Officer, Fast Track Court, Dahod in Sessions Case No.351 of 2004 (new) (old Sessions Case No.178 of 2004) acquitted original accused Ramsubhai Haklabhai Machhar who remained absconded for about two years.5. Being aggrieved by the same, the appellants original accused as well as the State of Gujarat has preferred the Criminal Appeals, as stated above, before this Court.6. By way of preferring Criminal Appeal No.902 of 2002, it is mainly contended by the appellants original accused that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. It is further contended that learned trial Judge has wrongly recorded the finding that accused Vestabhai Matabhai Damor, Mansukhbhai Haklabhai Machhar and Chhaganbhai Haklabhai Machhar have caused injuries over the person of deceased Shamjibhai with an intention to kill and as a result, they were held guilty for the offence under section 304-I of IPC. It is further contended that learned trial Judge has failed to appreciate that as there was no enmity between the parties and the incident occurred on the spur of moment suddenly and therefore there was no intention to kill deceased Shamjibhai and hence, the original accused could not have been held guilty for the offence under section 304-I of IPC but the offence could have been brought down for inflicting injuries over the person of deceased Shamjibhai and the accused could have been at the most held guilty for the offence under section 326 or 325 of IPC.6.1 Whereas the State of Gujarat has preferred the acquittal appeal, inter alia, contending that learned trial Judge has based its findings upon inferences not warranted by the facts of the case and also on the presumptions and conjectures not permitted under the law. It is contended that learned trial Judge has failed to appreciate the oral as well as documentary evidence on record and thereby committed serious error in acquitting the respondent accused though the prosecution proved the case against the respondent accused beyond reasonable doubt. It is further contended that learned trial Judge has failed to appreciate the evidence of injured eye witness PW 2 as well as injured eye witness Lalsinh in its true perspective. It is contended that both the said eye witnesses have deposed regarding the incident in question and the said fact is also getting corroboration from other evidences available on record and that evidence of both the eye witnesses were in consonance with each other and the said fact has also remained unchallenged, as such.7. Mr.Darshit Brahmbhatt, learned advocate for Mr.D.F.Amin, learned advocate for appellants original accused has taken this Court through the entire Record and Proceedings of the case and submitted that in the tribal area, Adivasis are celebrating Holi as a great festival and in the said festival, ordinarily, they used to sing vulgar song i.e. fag-song concerning even the persons and community also and they used to enjoy the said festival. He submitted that while the complainant, injured witness and deceased Shamjibhai as well as other members of the complainant side were celebrating Holi on 28.3.2002 by singing vulgar songs, at that time, convicted accused as well as acquitted accused came to the place of incident and warned the complainant side not to sing vulgar song, at that time, they suddenly excited and assaulted with their respective weapons over the persons of the deceased as well as injured witness Lalsinh, but none of the accused had inflicted more than one assault. He, therefore, urged this Court to bring down the offence punishable under sections 323 and 325 of IPC and also urged to considerably reduce the sentence inflicted upon the appellants accused accordingly. He also urged this Court that convicted accused have already undergone the sentence nearly for about 6 7 months and their sentence may be reduced to that extent only.8. Mr.Bhargav Mehta,learned advocate for Mr.Zubin F.Bharda, learned advocate for the respondent acquitted accused has supported the judgment of acquittal. He vehemently submitted that the prosecution has miserably failed to establish any corroborative piece of evidence linking the accused with the crime in question, more particularly, muddamal axe which came to be recovered and that the same is not proved by the prosecution in accordance with law as almost all the panchas have turned hostile as they did not support the case of the prosecution. According to his submission, the entire case of the prosecution rested upon the evidence of two eye witnesses i.e. complainant as well as injured Lalsinh as well as police official and the evidence of eye witnesses are not at all getting corroboration from the medical evidence and on that count, the judgment of acquittal recorded by learned trial Judge does not warrant any interference by this Court.9. Mr.K.P.Raval, learned APP appearing for the State has strenuously opposed the appeal filed by the convicted accused. He submitted that learned trial Judge has already taken very lenient view and extended the benefit of convicting them under section 304-I of IPC though accused have assaulted deceased Shamjibhai on vital part of the head wherein the injuries are so severe so that a person may die instantly. He submitted that as per the evidence of Medical Officer, four injuries were inflicted on skull and skull was fractured wherein injuries came to be caused by sword and axe in which two injuries were severe in nature and therefore learned trial Court ought to have believed the case falling under section 302 of IPC, however, learned trial Court has extended the benefit and brought down the conviction under section 304-I of IPC. He, therefore, submitted that conviction and sentence imposed upon the accused needs no further reduction in conviction and sentence or reduction in conviction altering the offence under section 325 or 326 of IPC as urged by learned advocate for the appellants accused.10. So far as acquittal appeal is concerned, Mr.Raval, learned APP has drawn attention of this Court that learned trial Judge has based his findings on the premises and conjectures, more particularly, in paragraph 18. He submitted that findings recorded by learned trial Judge are not based upon the factual scenario available on record. He submitted that learned trial Judge has recorded the findings that it was nobody's case that big axe was referred but the weapon came to be used or found to be small axe and the same weapon was not found containing blood stain and even recovery was not proved in accordance with law. He submitted that such findings are not in accordance with material available on record. He submitted that as per the evidence of PW 2 eye witness and complainant wherein he has specifically deposed that the acquitted accused gave axe blow over the head of deceased Shamjibhai and even other details as regards as to how the incident in question has occurred and the said testimony of PW 2 eye witness has not been challenged during the course of cross examination and therefore, his deposition involving acquitted accused remains unchallenged and stands proved in accordance with law, as such. He further submitted that the said aspect is also revealing from the evidence of injured witness PW 5 Lalsinh wherein also, he has in clear and unequivocal terms deposed that acquitted accused assaulted deceased Shamjibhai with axe over the head and the said fact also remains unchallenged, as such. He submitted that the prosecution has also examined other witnesses who came at the place of incident and they have also deposed that all the accused were found with their respective deadly weapons at the scene of occurrence and other corroborative evidence of the Medical Officer is also available on record. He submitted that, however, at the time of trial conducted at Godhra, axe was not shown and hence no clear opinion was given by the Doctor who carried out autopsy over the dead body of deceased Shamjibhai, still however, on reading the evidence of the Doctor, no conclusion can be drawn that injury found over the head of deceased Shamjibhai could not have been inflicted by using axe which was held by accused Ramsubhai. He further submitted that this is a case wherein the view taken by learned trial Judge is not at all plausible as the judgment of conviction recorded by learned Sessions Judge, Godhra was already made available to him wherein learned trial Judge has already convicted five accused on the same set of evidence though learned trial Judge recorded his findings based upon the presumptions and conjectures and even against the evidence available on record which is not sustainable at law. He submitted that only view which could have been taken is that of convicting the accused, more particularly, taking into consideration the evidence of the complainant eye witness as well as injured eye witness which remains unchallenged during the course of cross examination and the prosecution has successfully proved its case beyond reasonable doubt. He, therefore, submitted that the findings recorded by learned trial Judge, Dahod are not sustainable at law which is required to be reversed, as such.11. It is pertinent to note that Sessions Case No.200 of 2002 came to be tried at Godhra against five accused, whereas Sessions Case No.351 of 2004 came to be tried at Dahod against Ramsubhai absconded accused. As both the cases arisen out of the same incident, witnesses are the same. In the previous case, for about 13 witnesses have been examined, whereas 9 witnesses have been examined in the later case.12. Indisputably, in the incident in question, victim Shamjibhai Parghi succumbed to assaulted injuries and as testified by the Doctor, he received following four injuries over his person.(i) I.W. Or head 12 cm x 2 cmx bone deep, oblique, starting from Rt frontal eminance to Lt parietal region bone at brain matter seen.(ii) I.W. On head 15 cm x 3 cm x bone deep, oblique, going upward from postr to Rtees to Rt parietal region to interparietal region, bone cut, brain matter seen.(iii) I.W. On Rt thigh middle and lateral aspect 20 cm x 7 cm x bone deep (muscles cut totally).(iv) I.W. Above Rt knee jt cb and lateral aspect 16 cm x 6 cm x bone deep (muscles cut).The Doctor further testified that the cause of death is shock and hemorrhage due to injuries over vital organ brain and the Doctor testified that injuries over the head were sufficient to cause death and therefore, the death of deceased Shamjibhai is rightly held to be homicidal death and there appears no dispute on this point.13. So far as injuries over the injured witness Lalsinh Fatabhai are concerned, he received the two grievous injuries which are mentioned at page 79 of the paper book. PW 2 Dr.Ashok Devidas Bachani in Sessions Case No.200 of 2002 who treated injured witness Lalsinh has testified the aforesaid injuries to be grievous hurts and injuries caused over the head, more particularly, on the occipital region of the head had also fractured over skull and therefore, it was certified to be grievous hurts.14. Doctor who have certified the aforesaid injuries were possible through the weapons i.e. axe and sword over the person of the deceased as well as possible by the sword and stick over the person of injured witness Lalsinh Fatabhai.15. The prosecution has examined eye witness as well as other witnesses in order to prove the case of the prosecution. Complainant Chimanbhai Bachubhai has deposed that the incident in question occurred at the place of Holi. At the time of incident, he was accompanied by injured Lalsinh, deceased Shamjibhai and Jayantibhai who were present and singing the fag song. At that time, accused Vestabhai came to the place of incident and asked as to why they were singing vulgar song concerning their community. The complainant has deposed that accused Vestabhai gave sword blow over the right thigh of deceased Shamjibhai and accused Ramshu gave axe blow over the head of deceased Shamjibhai and Mansukhbhai assaulted through his sword over the head of deceased Shamjibhai. The witness has deposed that accused Mana Hakla assaulted injured witness Lalsinh over his stomach and Dalu Vesta assaulted through his sword over the head of Lalsinh, due to which, they shouted, at that time, other witnesses and other villagers gathered at the place of incident and thereafter injured were shifted to the hospital. The complainant identified all the accused who were present in the trial Court and in subsequent case also, he identified accused Ramshu and also identified respective muddamal weapons used by the accused at the place of incident. In the cross examination undertaken by learned advocate for the accused, nothing worth has come out. It is also pertinent to note that even testimony as regards to assault came to be made by the respective accused was also not challenged and hence testimony remains to be unchallenged, as such. By way of putting defence theory, it was tried that there was scuffle between the complainant side and the accused side and therefore, both the injured got injuries from the side of the complainant and the accused were wrongly implicated, as such. However, the same is not accepted by the witness. Another theory was also put up indicating that while celebrating Holy, tribal community used to sing vulgar song concerning the person and community, due to which, quarrel took place. It is also tried to bring the case that incident occurred due to grave and sudden provocation excited by the complainant side and in the cross examination, not only the deposition came to be made against the accused remains unchallenged, but even got established and therefore, whatever allegations made in the complaint as well as by the eye witnesses, the same came to be proved beyond reasonable doubt by the prosecution.16. Injured eye witness Lalsinh Fatabhai has also deposed that on the day of celebrating Holy festival, he along with complainant Chimanbhai, deceased Shamjibhai and Jayantibhai were present and after lightening Holy, they were singing fag song, due to which, accused got excited and Vestabhai asked as to why they are singing vulgar song concerning their community and got excited and assaulted deceased Shamjibhai by his sword over the right thigh and accused Ramshu assaulted with his sword over the head of deceased Shamjibhai and Mansukh also assaulted by his sword on the head of deceased Shamjibhai. Thereafter, Chhagan Hakla assaulted by his sword over the knee of deceased Shamjibhai. At that time, he intervened, due to which, Mana Hakla assaulted with his sword over his stomach and Dalu assaulted by his sword over the head of deceased Shamjibhai. Thereafter, they were taken to the hospital. He undergone treatment for about 11 days and he received fracture injuries over his head. He identified the accused as well as muddamal weapons. In his cross examination, nothing worth has come out and as noted above, testimony as regards to assault came to be made by the respective accused has remained unchallenged. On the contrary, respective assaults on the part of respective accused got established in the cross examination also.17. Witness Chhaganbhai Matabhai Parghi and witness Ratanbhai Fatabhai arrived at the place of incident after assault over deceased Shamjibhai and Lalsinh got over and he testified that accused were holding their respective weapons and that fact even also got admitted in the cross examination as in the cross examination itself, it was established that he seen the accused running away from the place of incident from 50 feet away.18. Pw 13 Mr.Kanjibhai Ramjibhai Parmar of Sessions Case No.200 of 2002, Investigating Officer has detailed as to how he has recorded the statements and drawn various panchnamas and after collecting necessary evidence on record, he had filed the chargesheet. He identified the accused as well as also testified as regards to drawal of panchnamas and panchas signed over such panchnamas and he obtained necessary papers from the FSL and ultimately filed the chargesheet.19. Over and above the aforesaid oral evidence, the prosecution has also filed the documentary evidence in the nature of postmortem report, inquest panchnama, panchnama of scene of offence as well as injury certificate and treatment certificate concerning injured Lalsinh and various panchnamas have been brought on record. We have carefully perused the same during the course of hearing of the present matters.20. We have thoughtfully considered the oral as well as documentary evidence available on record as well as rival submissions made by learned advocates for the respective parties and also gone through the Record and Proceedings as well as impugned judgments delivered in both the aforesaid sessions cases.21. On overall consideration of rival submissions, the fact that the manner in which the incident occurred leaves no manner of doubt that it was occurred suddenly and there was no pre-meditation on the part of the accused and they were used to carry such weapons with them on such festival day as the accused are belonging to the tribal community and the incident in question erupted due to singing vulgar song concerning the community of the accused, due to which, they got excited and in the heat of passion, upon receipt of grave and sudden provocation, they have given respective blows without keeping any previous enmity in their mind. In that view of the matter, learned trial Judge has rightly not believed the case punishable under section 302 of IPC so far as the death of Shamjibhai is concerned and rightly convicted the accused, who have assaulted over the vital part of the head of deceased Shamjibhai for the offence under section 304-I of IPC and the accused who have inflicted injuries over the person of injured Lalsinh have been rightly held guilty for the offence under section 326 of IPC.22. It is the contention of Mr.Brahmbhatt, learned advocate for the accused to bring down the offence from section 304-I to either section 326 or section 325 of IPC and requested this Court to reduce the sentence accordingly. Similarly, Mr.Brahmbhatt, learned advocate for the accused also urged to bring down the offence from section 326 to section 323 of IPC and requested this Court to bring down the sentence to the extent of sentence undergone by the concerned accused. We have thoughtfully considered the oral as well as documentary evidence on record in this regard. We have also visualized the scenario as regards to celebration of Holi festival in the tribal area and singing of vulgar songs is the common phenomena in the tribal community. However, due to faction in between the complainant side and the accused side, the accused took it adverse and excited and assaulted which has resulted into the death of Shamjibhai and grievous hurt on the person of Lalsinh. Keeping in mind the aforesaid peculiar facts and circumstances of the case as well as taking into consideration the fact that the prosecution has established the case beyond reasonable doubt as regards to assault which came to be made by the respective accused over the person of the deceased as well as injured witness Lalsinh by using their respective weapons, more particularly, those who have inflicted injuries over the head which were of such nature as testified by the Doctor that it were sufficient to cause the death of a person in ordinary course of nature and, therefore, in our considered opinion, when the weapons are used by the respective accused which are swords and axe which are deadly weapons and necessarily taking into consideration its size and selection of the part of human body i.e. head and resultant effect of it was spontaneous death of Shamjibhai leads us to arrive at the finding of death as the culpable homicide not amounting to murder, but surely the said act was with an intention and knowledge and therefore, we are unable to accept the argument advanced by Mr.Brahmbhatt, learned advocate for the accused to bring it down the grievous injuries punishable under section 326 of IPC. Similarly, so far as the injury over the person of injured Lalsinh is concerned, both the injuries are deep, more particularly, injuries over the head had caused fracture over the occipital region of head which clearly indicates gravity and force and therefore, we are not inclined to accept the same to bring down the offence to be punishable under section 323 of IPC and learned trial Judge has rightly made it punishable under section 326 of IPC.23. So far as acquittal appeal preferred by the State of Gujarat against accused Ramshu is concerned, we have minutely perused the impugned judgment rendered by learned Sessions Judge, more particularly, the findings recorded in paragraph 18. Having gone through the said findings in paragraph 18 of the impugned judgment, we are of the considered opinion that the same are not in consonance with the evidence available on record. Learned trial Judge appears to have been wrongly dwell into the nature of weapons as to whether it was big or small axe and wrongly not believed the case of the prosecution and even other findings recorded by learned trial Judge are not at all in consonance with the evidence available on record, as stated above.24. Precisely, in order to consider the acquittal appeal preferred the State of Gujarat, we have thoughtfully considered the arguments advanced by Mr.Raval, learned APP as well as Mr.Mehta, learned advocate for Mr.Zubin Bharda, learned advocate for the accused wherein Mr.Mehta, learned advocate for the accused could not point out as regards to the evidence of the aforesaid two eye witnesses i.e. complainant Chimanbhai and injured eye witness Lalsinh which clearly describing the role of accused Ramshu inflicting injuries by an axe over the head of deceased Shamjibhai and that fact even has not been challenged during the course of cross examination. On the contrary, role of Ramshu came to be established even in the cross examination itself. On overall appreciation of the evidence on record, we do not hesitate to arrive at the finding that accused Ramshu was initial assailant who assaulted after asking Vestabhai as regards to singing vulgar song and inflicted injury over the person of the deceased and that fact is established by the prosecution with clinching and cogent evidence which leaves no manner of doubt regarding his participation in the crime in question. Resultantly, we are of the clear and considered opinion that the judgment of acquittal recorded by learned trial Judge is not at all sustainable and the finding recorded by learned trial Judge is totally not in consonance with the evidence and the view taken by learned trial Judge is not at all in accordance with the clear and clinching evidence available against accused Ramshu and therefore, the appeal filed by the State of Gujarat deserves to be allowed.25. It may not be out of place to mention here that while considering the case of the prosecution in its entirety, we have gone through the reasons and findings recorded by learned trial Judge for convicting the accused who inflicted on the vital part of the person of Shamjibhai to be punishable under section 304-I of IPC as well as the accused who have inflicted grievous hurt made punishable under section 326 of IPC along with other sentence thereof. In our considered view, reasons assigned by learned trial Judge are in accordance with the evidence available on record and factual scenario emerged out at the time of incident, as such.26. The upshot of the aforesaid discussion may be stated that the accused who inflicted on the blow over the vital part of the person of deceased Shamjibhai are held guilty for the offence punishable under section 304-I IPC and the accused who have inflicted grievous hurt over the person of witness Lalsinh are held guilty for the offence punishable under section 326 of IPC. As the acquittal of Ramshubhai Haklabhai Machhar is converted into conviction, as stated above, for inflicting appropriate sentence upon him, he is required to be heard and therefore, learned advocate for accused - Ramshubhai Haklabhai Machhar shall secure the presence of accused - Ramshubhai Haklabhai Machhar on the next date of hearing for inflicting appropriate punishment. Similarly, we have also proposed to consider contention of other accused for reduction of sentence along with accused - Ramshubhai Haklabhai Machhar.27. List the matters on 28th August 2017.