NARVAT ALIAS BHATTI RAYAJIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Appeal is directed against the conviction and sentence as awarded to the appellants in Sessions Case No. 63 of 1991 by the learned Addl. Sessions Judge, Godhra vide his judgment and order dated 17-1-1994 whereby the appellants have been held guilty of the offences punishable under Sec. 304 Part II read with Sec. 34 of the I.P.C. and each of them have been sentenced to 4 years R.I. and a fine of Rs. 500.00 and in default to undergo one month's S.I.

(2.) Briefly stated the case of the prosecution is that in the year 1990, thresher of Prabhatbhai Adabhai was brought on hire by the deceased Babubhai Nanabhai. On 12-9-1990 at about 8 O'clock in the morning deceased Babubhai with Kanubhai, Parvat and Bhala left for work at Kalol from Jhankharipura. While they were passing nearby flour mill of Jaswantbhai, the two accused-appellants, namely, Narvat Rayajibhai and Jethabhai Madabhai interrupted them. Narvat was having a stick and he started abusing Babubhai, raising a grievance that how they had brought the thresher prior to them because they were also scheduled to use the thresher on hire. Babubhai asked them not to abuse and he told that he did not know that the accused persons were also to use the thresher on hire. Both the accused-appellants then assaulted Babubhai and Narvat-appellant-accused No. 1 gave a stick blow on the back and waist of Babubhai. Babubhai fell down and thereupon the appellant No. 2 also gave him blows with fist and kicks. Parvat rushed down to the complainant's house and Babubhai also ran away from the spot and took shelter in the house of Mada Dava. The two appellants-accused ran away. The father of the deceased then came to the place of the incident and brought Babubhai to his house in a cot and took him to the Police Station, Kalol. The deceased was sent to Hospital at Kalol with a Police Yadi and was then referred to the Civil Hospital, Godhra where he died on 14-9-1990 in the afternoon at 2-45. The Police had initially registered the case against the two appellants-accused persons under Secs. 323, 504 and 114 of I.P.C. and Sec. 135 of the Bombay Police Act. Whereas Babubhai had died during the course of the investigation, the case was then registered under Sec. 302 I.P.C. by the Police. The inquest report was prepared and the dead body was sent for postmortem. During the course of investigation, the stick was recovered at the instance of the appellant-accused No. 1, i.e., Narvat and after completing the investigation, the charge-sheet was filed against the accused persons in the Court under Secs. 302, 504 and 114 I.P.C. and Sec. 135 of the Bombay Police Act. The Judicial Magistrate, First Class, Kalol vide his order dated 1-4-1991 committed the case under Sec. 209 of the Cri.P.C. to the Sessions Court of Panchmahals District wherefrom the case was sent for trial to the Court of Addl. Sessions Judge, Panchmahals, camp at Godhra. Both the accused were charged for the offences under Secs. 302, 504 and 114 I.P.C. and Sec. 135 of the Bombay Police Act. They denied the charge and claimed to be tried. After recording evidence, the statements of the appellants-accused were recorded under Sec. 313 of the Cri. P.C. The learned Addl. Sessions Judge after taking into consideration the oral evidence and the medical evidence came to the conclusion that the offences under Secs. 302, 504 and 114 of I.P.C. and Sec. 135 of the Bombay Police Act had not been proved against the appellants-accused, but he convicted both the appellants for the offence under Sec. 304 Part II read with Sec. 34 of the I.P.C. Having convicted both the appellants, as above, the learned Addl. Sessions Judge sentenced each of the two appellants to 4 years R.I. with a fine of Rs. 500.00 and in default to undergo one month's S.I. each vide order dated 17-1-1994.

(3.) It is against this order dated 17-1-1994 passed by the learned Addl. Sessions Judge, Panchmahals at Godhra that the present Appeal has been preferred by the two appellants. At the time of arguments Mr. R. N. Shah, learned Counsel for the appellants, confined his argument on the question of sentence only. He submitted that the incident took place on 12-9-1990 and Babubhai had died on 14-9-1990. While referring to the medical evidence, it has been argued by Mr. Shah that in fact Babubhai did not die on account of the injuries, which have been caused by the appellants, but because of the post-operative complications while he was being treated. He has also submitted that it was a very minor issue relating to the use of hired thresher, as to whether which party was to use the thresher first, on which the incident took place and the appellants in fact had no intention to cause such bodily injury to the deceased so as to cause his death. He has referred to the post-mortem report as also the injury report and the statements of the concerned Doctors P.W. 3 - Dr. Sunil D. Nagori and P.W. 4 - Dr. Nilesh N. Thakker. Dr. Sunil D. Nagori - P.W. 3 has stated that at the time when the deceased was brought to him he was fully conscious and was also able to sit. In crossexamination, he has stated that at that time his blood pressure was normal. He has also stated that he was not in a position to give the size of the injuries and he was also not in a position to say as to whether the blow was given with normal force or with slight force, no X-ray was taken by him, he had examined him only externally and that according to him the injuries sustained by the deceased would have taken 10 to 12 days in the process of healing. Dr. Nilesh N. Thakker - P.W. 4, who had conducted the autopsy, has deposed that there was a fracture of 8th, 9th, 10th and 11th ribs on the left side, the lower chamber on the right side of the heart was full of blood clots whereas the lower left side chamber of the heart was without any blood and he has stated that cause of death was respiratory failure on account of the blood clots on the right side of the heart. It appears from his statement that the injuries sustained by the deceased had been X-rayed, but it has been deposed by him that in the case papers there was no written report of the Radiologist nor the X-ray plate was there. In the case papers no fracture was mentioned except in column No. 20, i.e., with regard to the ribs. He has also deposed that in absence of the X-ray plate, he was not in a position to give the details about the injuries and as to whether they had been natural or unnatural and he has also stated that according to the case papers on 13-9-1990 the general condition of the deceased was reported as good. It is a fact that the Doctor, who operated deceased Babubhai, has not been examined.