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(PER : HONOURABLE MR.JUSTICE KS JHAVERI)

1. This appeal is directed against the judgment and order passed by the learned 7th (Ad­hoc) Addl. Sessions Judge, Bhavnagar in Sessions Case No.114 of 2009 dated 12.04.2012 whereby, appellant no.1, original accused no.1, has been convicted for the offences punishable u/s.302 IPC and Section 135 B.P. Act and appellant no.2, original accused no.2, has been convicted for the offences punishable u/s.324 IPC and Section 135 B.P. Act. For conviction u/s.302 IPC, original accused no.1 has been sentenced to undergo imprisonment for life and fine of Rs.1000/­ and in default, SI for six months; whereas, for conviction u/s.135 B.P. Act, the original accused no.1 has been sentenced to undergo SI for six months and fine of Rs.500/­ and in default, SI for three months.

Insofar as original accused no.2 is concerned, for conviction u/s.324 IPC, original accused no.2 has been sentenced to undergo SI for one year and fine of Rs.1000/­ and in default, SI for six months; whereas, for conviction u/s.135 B.P. Act, the accused Page 2 of 15 HC-NIC Page 2 of 15 Created On Thu May 05 02:54:22 IST 2016 R/CR.A/557/2012 JUDGMENT no.2 has been sentenced to undergo SI for six months and fine of Rs.500/­ and in default, SI for three months.

Both the sentences were ordered to run concurrently and the sentence already undergone by the accused persons was given set­off.

2. The facts in brief are that the original complainant, Iqbalbhai Abdullabhai and his brother Ganibhai had undertaken repair and renovation work of the Mosque situated in Sandhiyavad belonging to the "Sunni Sampraday", which was not liked by Tablik Jamat. Therefore, they were employing pressure tactics for closing down the renovation work.

2.1 It is the case of prosecution that on 13.04.2009, in the night hours, the complainant went to the mosque for supervising the repair work. At around 2245 hrs., he proceeded towards his house. While on the way, he stopped at a shop to have some water, where his brother Ganibhai was also present. At that time, the appellants herein, armed with knife, came to the shop and began to hurl abuses at the brother of complainant. During that Page 3 of 15 HC-NIC Page 3 of 15 Created On Thu May 05 02:54:22 IST 2016 R/CR.A/557/2012 JUDGMENT period, appellant no.1 inflicted knife blows on the person of Ganibhai, as a result of which, Ganibhai sustained severe injury. When the complainant attempted to intervene, appellant no.2 stopped him by causing injury with a knife. On hearing the shouts, a crowd began to gather at the place. Thereupon, the accused fled the scene of offence. Injured Ganibhai was rushed to the Hospital, where he was declared dead.

2.2 A complaint in connection with the aforesaid incident was lodged with Bhavnagar 'C' Division Police Station vide I­C.R. No.59 of 2009. Necessary investigation was done and the accused persons came to be arrested. At the end of investigation, charge­sheet was filed against the accused before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately, trial was initiated.

3. During the trial, the prosecution had examined the following witnesses;

3.1 The prosecution had produced and relied upon several documentary evidence, particularly, inquest panchnama at Exh.21, panchnama of scene of offence at Exh.24, discovery panchnama at Exh.19, complaint at Exh.49, Injury Certificate at Exh.51, 55 & 56, Postmortem report at Exh.59 and Serological report at Exh.89.

4. At the end of trial, the Court below recorded further statement of accused persons u/s.313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal.

5. Mr. K.B. Anandjiwala, learned Senior Advocate appearing with Mr. Krunal Shahi for Page 5 of 15 HC-NIC Page 5 of 15 Created On Thu May 05 02:54:22 IST 2016 R/CR.A/557/2012 JUDGMENT the appellants, original accused no.1 & 2, submitted that the Court below committed serious error in placing heavy reliance upon the testimony of original complainant (PW­4) for recording conviction. It was submitted that complainant is the real brother of deceased and therefore, is an interested witness. Though the alleged offence was committed at a public place, no independent witness has been examined by the prosecution. Therefore, the Court below ought not to have convicted the appellants for the alleged crime.

5.1 Alternatively, it was submitted by learned Senior Advocate Mr. Anandjiwala that even if the evidence of complainant is believed, the conviction of appellant no.1 would not fall u/s.302 IPC and at the most, it would fall u/s.304 Part­II IPC since the offence was committed in the heat of moment while exercising the right of self­defence. Therefore, the conviction of appellant no.1 deserves to be altered to Section 304 Part­II IPC.

6. Mr. Pranav Trivedi, learned APP, supported Page 6 of 15 HC-NIC Page 6 of 15 Created On Thu May 05 02:54:22 IST 2016 R/CR.A/557/2012 JUDGMENT the impugned judgment and order and submitted that though the complainant is the real brother of deceased but, after careful scrutiny, his evidence was found to be reliable and trustworthy by the Court below. It was submitted that presence of the complainant at the scene of offence is natural and that he has identified both the appellants. Therefore, the Court below has not committed any error in convicting the appellants for the crime in question.

7. We have heard learned counsel for both the sides and perused the documents on record. To prove the aspect of homicidal death, the prosecution had examined Dr. Jaswant Amrutbhai Darji (PW­6), who had performed the autopsy. This witness has categorically opined that death was caused on account of stab injury on the chest which penetrated into the abdominal cavity causing intra­abdominal hemorrhage. The Postmortem report has been produced on record vide Exh.56 wherein, the cause of death has been narrated as shock and hemorrhage due to stab injury on the chest. Considering the medical evidence on record, we have no hesitation in concluding that deceased died a Page 7 of 15 HC-NIC Page 7 of 15 Created On Thu May 05 02:54:22 IST 2016 R/CR.A/557/2012 JUDGMENT homicidal death.

8. It is a matter of fact that the alleged offence was committed at a public place. However, serious dispute had arisen regarding the place of incident. As per the prosecution case, the alleged offence was committed on the public road situated opposite to the shop named "Uttam Ice­cream". In his evidence, the complainant has (PW­4) deposed that while he and his deceased brother were standing on the public road, situated opposite to "Uttam Ice­ cream", the appellants herein arrived at the place with deadly weapon - knife.

9. Here, it is pertinent to note that cross complaints came to be filed in connection with the same incident. As per the defence, deceased Ganibhai, the complainant and others came to the shop of original accused no.2 and at that time, deceased Ganibhai was armed with iron­pipe and the complainant was armed with knife. They inquired the whereabouts of original accused no.1 and thereafter, deceased Ganibhai inflicted iron­pipe blow on the right hand of original accused no.2. Therefore, original accused no.2 left the shop and ran Page 8 of 15 HC-NIC Page 8 of 15 Created On Thu May 05 02:54:22 IST 2016 R/CR.A/557/2012 JUDGMENT towards his house. He was followed by the deceased and others. Original accused no.1 also followed original accused no.2. After original accused no.2 entered his house, deceased Ganibhai and others forcibly entered the house and locked the door from the inside. In the cross­complaint (Exh.29), the accused have narrated contrary facts regarding the place of incident. The fact that the accused filed a cross­complaint (Exh.29) regarding the same incident proves their presence at the scene of crime.

10. Therefore, the question that is now required to be considered is whether the appellants were victims, as they say, or whether they were the aggressors, as is the prosecution case. It is pertinent to note that in the complaint (Exh.29), no averment has been made to the effect that the accused persons used any weapon to cause injury to either deceased Ganibhai or the complainant while exercising the right of self­defence. It is evident from the complaint (Exh.49) filed by the complainant that specific averment has been made to the effect that the accused persons had assaulted them with deadly Page 9 of 15 HC-NIC Page 9 of 15 Created On Thu May 05 02:54:22 IST 2016 R/CR.A/557/2012 JUDGMENT weapons. Therefore, the prosecution case stands fructified insofar as the use of weaponry is concerned.

11. At this stage, it would be relevant to note that the police party arrived at the scene of offence on the basis of the 'wardhi' received by the Police Control Room on Telephone No.100 from one Irfanbhai. On the basis of the noting made in the 'wardhi', the Ambulance service via Telephone No.108 had arrived at the place. According to the 'wardhi', the place of incident was reported to be the road situated opposite to the shop named "Uttam Ice­cream". The above set of evidence proves that offence was committed on the public road situated opposite to the shop named "Uttam Ice­cream". Thus, it is established that the incident occurred at the place mentioned in the complaint (Exh.49) and not at the place mentioned in the complaint (Exh.29) lodged by the accused. Therefore, the story put forth by the defence that deceased Ganibhai and the complainant were the aggressors and the appellants had acted in self­defence does not have any legs to stand.

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12. In fact, the evidence on record proves beyond doubt that the appellants were the real aggressors and that the incident took place at the scene described in the complaint (Exh.49). Even in the statement recorded u/s.313 Cr.P.C., original accused no.1 had stated that he had attacked the deceased and complainant in exercise of the right of self­defence. In other words, the appellants have admitted the factum of attacking the opposite party. If the appellants were not the aggressors, then they could have examined anybody in their defence. However, that has not been done though the incident is said to have taken place at a public place.

13. The question that is now required to be considered is whether the appellants committed the act in exercise of the right of self­ defence or whether it was an act of murder. It is true that except the complainant (PW­4), no other witness has been examined by the prosecution. However, merely because the complainant is the brother of deceased, his evidence could not be discarded outright. It is well settled law that evidence of a relative could be relied upon if the same is Page 11 of 15 HC-NIC Page 11 of 15 Created On Thu May 05 02:54:22 IST 2016 R/CR.A/557/2012 JUDGMENT found to be reliable on careful scrutiny.

13.1In the present case, having appreciated the oral evidence of the complainant, we find him to be an eye­witness to the incident in question. His evidence proves the presence and role of the appellants beyond reasonable doubt. On all material aspects of the case, his evidence supports the prosecution story. Hence, we are of the opinion that the Court below has not committed any error in relying upon the evidence of complainant (PW­4) for recording conviction of the appellants.

14. Insofar as the conviction part is concerned, it is by now clear that both the parties had indulged into a fight, which had led to the filing of cross­complaints. The medical evidence shows that deceased died on account of stab injury on the chest, which was inflicted by accused no.1. Original accused no.2 had not caused any injury to the deceased though he was found to be armed with a knife. His role is limited to the extent of preventing the complainant from attempting to stop appellant no.1 from assaulting the deceased and in that process, causing minor Page 12 of 15 HC-NIC Page 12 of 15 Created On Thu May 05 02:54:22 IST 2016 R/CR.A/557/2012 JUDGMENT knife injury to the complainant.

15. Considering the facts and circumstances of the case and the medical evidence on record, we are of the view that conviction of appellant no.1, original accused no.1, would fall u/s.304 Part­I IPC and not u/s.302 IPC. We do not accept the submission made by learned Senior Advocate that conviction of appellant no.1 would fall u/s.304 Part­II IPC since the evidence on record proves that he was the real aggressor. The fact that appellant no.1 had arrived at the scene of offence with deadly weapon knife proves that the offence was not committed out of sudden provocation or in the heat of the moment. Hence, the conviction of appellant no.1 would fall u/s.304 Part­I IPC and not u/s.302 IPC.

16. Insofar as conviction of appellant no.2 is concerned, we find the same to be just and appropriate. However, since he had not played any role behind the death of deceased, he could be let­off by imposing only fine. Consequently, the impugned judgment and order is required to be modified appropriately.

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17. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and order dated 12.04.2012 passed in Sessions Case No.114/2009 is modified to the extent hereunder;

The conviction of appellant no.1, original accused no.1, u/s.302 IPC is altered to one u/s.304 Part­I IPC and he is sentenced to undergo imprisonment for Ten Years and fine of Rs.1000/­ and in default, SI for six months. Rest of the impugned judgment and order remains unaltered qua appellant no.1, original accused no.1.

Insofar as appellant no.2, original accused no.2, is concerned, his conviction u/s.324 IPC and 135 B.P. Act is sustained but, instead of undergoing any sentence, original accused no.2 is imposed the total fine of Rs.1500/­ for his conviction under both the offences. Rest of the impugned judgment and order remains unaltered qua original accused no.2. If original accused no.2 is in jail, then he is directed to be set at liberty forthwith, if his custody is not required in connection with any other offence. Records and proceedings, if lying here, be sent to the trial Court forthwith.

Page 14 of 15 HC-NIC Page 14 of 15 Created On Thu May 05 02:54:22 IST 2016 R/CR.A/557/2012 JUDGMENT (K.S.JHAVERI, J.) (BIREN VAISHNAV, J.) Pravin/* Page 15 of 15 HC-NIC Page 15 of 15 Created On Thu May 05 02:54:22 IST 2016