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1998 Supreme(Guj) 453
Gujarat High Court
Judgename :A.L.DAVE, J.N.Bhatt
STATE OF GUJARAT - Appellant
Versus
ALLARAKHA KHAMISA MANSURI - Respondent
CRIMINAL APPEAL 18 of 1991
Decided On : 08/19/1998
Headnote:(a) Criminal Procedure Code, 1973 - Sec. 378 - Penal Code, 1860 - Sec. 302 - Appeal against acquittal - Consistent evidence of three eye witnesses duly corroborated from FIR & medical evidence - A-1 inflicted four `dharia blows on vital parts of the deceased who was armless - Motive of pecuniary gain - Intention to commit murder - Held, A-1 is guilty of offence punishable under Sec. 302.
Dr. Jadeja has clearly testified that the injuries were ante mortem and were sufficient in the ordinary course of nature to cause death and were possible by a sharp cutting instrument like dharia, produced as Art No. 9.
[Para 20]
The A-1 (appellant) was prompted or allured or induced to commit the capital crime by giving successive dharia blows on the head of the deceased Abdul Karim and what for ? For pecuniary advantage and the gain so that a man who has settled and who was running a tea stall since long may not stand any longer for the competition, that was likely to be created, for the reason of accused party having constructed a tea stall near the tea stall of the deceased. So, we have no hesitation in finding that motive is established and motive was for economic gain which is really a heart stealing.
[Para 37]
The offence committed by accused No. 1 Allarakha in committing murder of deceased Abdul Karim was intentional prompted by a strong pecuniary motive. It is evident from the record that A-1 inflicted first blow of dharia on the face of deceased, as a result of which deceased fell down and who was unarmed. It was accused No. 1 who was the aggressor. Not only that, after inflicting one severe dharia blow on the face resulting into cutting of a cartilage bone which was sufficient as a result of which deceased fell down on the ground, A-1 gave a very severe blow with the help of dharia, armed with him, on the vital part of the body i.e. on the head upon a preson who was lying helplessly and armlessly. Thereafter, also A-1 inflicted two more dharia blows. But for the intervention of the eye witnesses and other persons probably there would have been some more blows. The deep seated motive is established by the prosecution by trustworthy and succinct evidence of 3 eye witnesses. A-1. therefore , not only gave 4 severe blows of dharia which is a deadly weapon and on a vital organ of anatomy. but prompted by the motive of pecuniary gain. Deceased had not given abuses to the accused No. 1. Deceased was without arms. Therefore, there would not arise any question for giving blows to the A-1 with deadly weapon.
Court have no hesitation in finding that A-1 was the aggressor. He inflicted 4 dharia blows on the vital portion of anatomy of the deceased, three out of them when even deceased was lying on the ground who had no arms. Therefore, apart from defence proving the case either under exception to 2 or 4 to Sec. 300 of IPC on the strength of the preponderance of probabilities, the prosecution has led very potent and strong evidence of 3 eye witnesses supported and corroborated by F.I.R. Exh. 30 medical evidence of Dr. Acharya and Dr. Jadeja and motive of pecuniary gain, that exceptions 2 and 4 to Sec. 300 are not at all attracted in the present case.
[Para 61]
The act committed, the complicity established against the accused in causing death which was with an intention with the infiliction of 4 dharia blows on the vital portion of the body without any provocation is nothing, but would amount to only and only murder as provided in Sec. 300 of IPC which is punishable under Sec. 302 of the IPC, and therefore, there is no question of invoking by the accused the provisions of Sec. 304 part I and II. We are fully satisfied from the evidence that A-1 did commit murder as defined under Sec. 300 of IPC with an intention by inflicting 4 dharia blows on the person of the deceased Abdul Karim, and therefore, he is liable for conviction under Sec. 302 of IPC. Accordingly, the accused is held guilty for the offence punishable under Sec. 302 of IPC for committing murder of deceased AbdulKarim, by quashing and setting aside the impugned acquittal judgment and order against respondent original A-1.
[Para 62]
(b) Criminal Trial - Commencement of investigation - Information received on phone & recorded in the daily diary - One Head Constable deputed to venue of offence to maintain the law & order - Deputation of Head Constable does not amount to commencement of investigation.
No investigation as such had been carried out by any person pursuant to entry No. 20/89 which came to be given exh. 36, except that, a constable had gone to the venue of offence for the purpose of maintaining law and order which is otherwise a duty of the police. This is amply clear from the testimony of PSI Makwana. P.W. 10.
One person is deputed to go to the venue of offence for maintenance of law and order, it cannot be said that it would tantamount to commencement of the investigation.
[Para 27]
(c) Criminal Procedure Code, 1973 - Sec. 154 - FIR - Cryptic message given on telephone to police does not constitute the FIR.
The telephonic massage to the Police Station at Bhachau which was too cryptic could not constitute the F.I.R. lodged in the present case as inadmissible in evidence.
[Para 36]
( 1 ) THE sole but substantial question which has come up in focus in this appeal before us is, as to whether the acquittal of the respondent-original accused No. 1 (a-l) from the main charge of Sec. 302,i. P. C. is valid and justified? thus, this is an acquittal appeal under Sec. 378 of the Code of Criminal Procedure, 1973 (code) at the instance of the State.
( 2 ) ). The skeleton projection of material and relevant facts leading to the rise of this appeal may be shortly articulated at this juncture with a view to appreciating the merits of this acquittal appeal and challenge against it by the defence.
( 3 ) ). According to the prosecution case, on 27-3-1989, at about 7-30 p. m. , near bhachau bus stand, in Bhachau town of Kutch District, respondent No. 1 (A-l) and respondent No. 2 (A-2) went to the tea stall of deceased Abdul Karim Ali Mohmed. At that time, A-l was holding a dharia and A-2 started giving abuses to the deceased to which the deceased told not to give abuses. At that time, A-1 inflicted four dharia blows there and then on and around head portion of the deceased, as a result of which, the deceased Abdul Karim sustained serious injuries on head and parietal as well as face portion of his body which proved fatal. Injured was shifted to the government Hospital.
( 4 ) ). Bhachau police station received a message, at about 7-45 p. m. , from the medical officer of Bhachau Government Hospital wherein, it was stated that one abdul Karim had sustained serious injuries who was brought to the hospital, for treatment and since the injuries sustained by him were serious in nature, he was being shifted to Bhuj Civil Hospital. This intimation by the medical officer to the person in charge of the police station, Bhachau came to be recorded as Crime Entry 20 of 1989, in the police station diary. Firstly, P. W. No. 10. P. S. I. Makwana deputed police personnel for patrolling in the area around S. T. bus stand, the venue of offence, to see that nothing untoward recurs and for protection of law and order, P. S. I. Makwana, thereafter, started going towards the venue of offence. When he was about to come out of the police station, he had an occasion to meet the complainant Ali Mohmed. Therefore, he recorded his complaint in the police station as narrated by him and after taking his signature. offence came to be registered. The said complaint is produced, at Exh. 30. In the course of evidence of P. S. I. Makwana, an objection was raised by the defence about the admissibility of the complaint of complainant Ali Mohmed, as the police had already recorded the intimation and information as per the information given by the medical officer of Bhachau hospital. However, in the course of his evidence, the trial Court, it appears, after hearing the parties when an objection was raised by the defence, thought it fit to exhibit it and it came to be exhibited and it was given Exh. 30.
( 5 ) ). In view of the serious injuries, the deceased was shifted to Bhuj Civil Hospital. The muddamal articles - clothes of the deceased etc. , collected after the panchnama of the scene of offence were forwarded to the Forensic Science Laboratory for opinion and report. The reports are produced at Exhs. 34 and 35.
( 6 ) ). On completion of the investigation, charge-sheet followed and accused persons were charged in Sessions Case No. 67 of 1989 in the Sessions Court, at bhuj, under Sec. 302 of the I. P. C. against A-l and under Secs. 504 and 302 read with Sec. 144, I. P. C. against A-2. A-l was also charged under Sec. 135 of the bombay Police Act for committing violation of the notification of the District magistrate. The charge came to be framed on 15-2-1990 which the accused denied and claimed to be tried. In order to substantiate the charges, the prosecution placed reliance on the evidence of the following prosecution witnesses :- exhibit No. P. W. 1. . . . . . . Ramnikgiri Goswami. . . . . . . . . . . . . . . . . . . . 12p. W. 2. . . . . . . Dr
