CR.A/602/1986 1/85 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 602 of 1986 with CRIMINAL APPEAL No. 765 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= ASHOK SOMALAL THAKKAR & 1 Versus STATE OF GUJARAT ================================================= Appearance : Criminal Appeal No.602/1986 MR JM PANCHAL for Appellants No.1-2 MR IM PANDYA APP for Respondent Criminal Appeal No.765/1986 CR.A/602/1986 2/85 JUDGMENT MR IM PANDYA APP for Appellant MR JM PANCHAL for Respondents ================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 20/06/2007 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J. R. VORA) [1] Both the above referred Criminal Appeals have arisen from the same judgment and order delivered by the learned Additional Sessions Judge, Narol on 19th April, 1986 in Sessions Case No.12/1986. There were in all nine accused and were charged with the offences punishable under Sections 148, 323, 307, 302 to read with Section 149 of the Indian Penal Code as well as for the offences punishable under Section 135 of the Bombay Police Act, 1951. [2] Vide above said judgment and order, the learned trial Judge acquitted all the nine accused for the offences charged against them so CR.A/602/1986 3/85 JUDGMENT far as the offences punishable under Sections 302, 307, 148 and 149 of the Indian Penal Code is concerned. While, except accused No.1 – Ashok Somalal Thakkar and accused No.3 – Arvind Somalal Thakkar, all other accused also were acquitted by the trial Court for the rest of the offences charged against said seven accused. Vide above said judgment and order, accused No.1 was convicted for the offence punishable under Section 323 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of nine months and to pay fine of Rs.1,000/-, in default, to undergo imprisonment of six months, while accused No.3 was convicted for the offence punishable under Section 324 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of two years and to pay fine of Rs.1,000/-, in default, to undergo imprisonment of six months. Accused No.1 and 3 as aforesaid were acquitted by rest of the charges levelled against them. [3] Against the above said judgment and CR.A/602/1986 4/85 JUDGMENT order, so far as the order of acquittal of learned trial Judge is concerned in respect of all the accused, the State has preferred Criminal Appeal No.765/1986, while accused No.1 Ashok Somalal Thakkar and accused No.3 Arvind Somalal Thakkar, both preferred Criminal Appeal No.602/1986 against the conviction of each of the accused as aforesaid. According to the prosecution case, deceased and victim of the incident is Bhailalbhai Madhabhai Patel, while injured is one Banesingh Vajesingh and one Rameshbhai. The incidents have taken in two parts, but as per the prosecution case, both the incidents have occurred in the same transaction and, therefore, the accused were charged in the same charge-sheet for both the incidents. According to the further prosecution case, deceased Bhailalbhai Madhabhai Patel and witness Jalaji Vajaji and other prosecution witnesses had enmity with accused persons and on account of that on 12th September, CR.A/602/1986 5/85 JUDGMENT 1985 at about 9.30 a.m. all the accused formed unlawful assembly and with weapons like dharia, iron rod, sticks etc. first caused injuries to witness and complainant Banesingh Vajesingh near the houses of Gujarat Housing Board at village : Chandkheda on I.O.C. Road and, thereafter, they chased the witness – Jalaji Vajaji and near double storied buildings of Gujarat Housing Board caused injuries to deceased – Bhailalbhai Madhabhai Patel, who died on 14th September, 1985 and caused injuries to witness Rameshbhai. The complaint came to be filed by witness Banesingh Vajesingh at Adalaj Police Station right after the incident. According to the further prosecution case, injured Banesingh Vajesingh were three brothers, out of them two were residing at village : Chandkheda and to see his brothers, witness Banesingh Vajesingh used to visit village : Chandkheda about twice in a month and, therefore, he knew people residing at village : Chandkheda. On the day of incident, he had been to Sabarmati at 8.30 a.m. for purchasing CR.A/602/1986 6/85 JUDGMENT dhotis, and his brother – Jalaji Vajaji and one Vajubha Ramaji both had accompanied him. Vajubha Ramaji happened to be his cousin brother. After purchasing Dhotis from Sabarmati, all these three persons were returning to village : Chandkheda in one rickshaw. When their rickshaw reached near housing colony from the road of Railway Station and turned towards the housing colony, they noticed eight persons standing there, out of which Banesingh Vajesingh identified accused No.1, accused No.3, accused No.4 and accused No.5. According to him, accused No.3 i.e. appellant – Arvind Somalal Thakkar had a dharia with him, accused No.4 had a knife with him, accused No.1 and 5 had sticks with them, others had also sticks with them. According to him, he knew other accused, but not by name. According to the prosecution case, all those accused were standing near housing board colony. The accused halted their rickshaw and on rickshaw being stopped, his brother Jalaji Vajaji started running and witness Banesingh Vajesingh also CR.A/602/1986 7/85 JUDGMENT started running after Jalaji Vajaji. At that time accused No.3, appellant – Arvind Somalal Thakkar inflicted one blow by dharia on the head of Banesingh Vajesingh and, thereafter, accused No.4 inflicted a blow with knife between the fingers of left hand and left leg of Banesingh Vajesingh. Remaining accused started beating Banesingh Vajesingh with sticks. He fell down on the ground and, thereafter, one Vajubha Ramaji and Anupsinh brought him to Adalaj Police Station where he gave complaint. According to the further prosecution case, while Banesingh Vajesingh was being attacked, Jalaji Vajaji ran towards the double storied building. He heard the accused uttering that they had intended to beat Bhailalbhai Madhabhai Patel and one Ramesh Babulal. According to the prosecution case, Banesingh Vajesingh had acquittance with Ramesh Babulal and Bhailalbhai Madhabhai Patel. The witness – Jalaji Vajaji overheard utterance of the accused and, therefore, he ran towards Bhailalbhai Madhabhai Patel to convey him that CR.A/602/1986 8/85 JUDGMENT the accused were rushing to attack him and Ramesh Babulal. According to the prosecution case, Chaising Jalaji, accused reached near double storied building at village : Chandkheda where deceased Bhailalbhai Madhabhai Patel and other injured person Ramesh Babulal were standing. Reaching there, out of all the accused, accused No.1 inflicted a blow of stick on the head of deceased Bhailalbhai Madhabhai Patel. Accused No.1 also inflicted one stick blow on the back of the Bhailalbhai Madhabhai Patel. It is the further prosecution case that Bhailalbhai Madhabhai Patel had fallen on the ground and all other accused inflicted sticks injuries on Bhailalbhai Madhabhai Patel. It is also the prosecution case that one other accused i.e. accused No.1 inflicted stick blow on the head of witness – Ramesh Babulal and accused No.2 Natubhai Jivram inflicted a stick blow on one eye of witness Ramesh Babulal. According to the prosecution case, when at about 10.30 a.m. Banesingh Vajesingh was offering his complaint CR.A/602/1986 9/85 JUDGMENT before P.W.15 – Kanabharti Shivabharti, P.S.O. of Adalaj Police Station, the witness – Ramesh brought Bhailalbhai Madhabhai Patel at Adalaj Police Station and all the three were sent to hospital for further treatment. An investigation was handed over to Police Jamadar Jagdishchandra Ambalal Vyas, who is examined as P.W.16 and, thereafter, P.W.17 – Lallubhai Harilal Desai, examined at Ex.66, investigated further and submitted the charge-sheet against all the accused in the Court of learned Judicial Magistrate, First Class at Ahmedabad (Rural), Ahmedabad. The case was committed and learned Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad framed abovesaid charges against all the accused vide Ex.4 on 7th March, 1986. All the accused pleaded not guilty and the prosecution tendered oral as well as documentary evidence. [4] We may categorize oral evidence with reference to prosecution case as under: P.W.1 - Banesingh Vajesingh is examined CR.A/602/1986 10/85 JUDGMENT at Ex.21, who is complainant and injured in first incident. P.W.2 - Jalaji Vajaji is examined at Ex.23 and he is an eye witness of injuries of witness Banesingh Vajesingh in first incident as well as he is also an eye witness of the second incident wherein deceased Bhailalbhai Madhabhai Patel was injured. P.W.12 – Vajubha Ramaji is examined at Ex.52 being an eye witness of the first incident wherein injured Banesingh Vajesingh received injuries. P.W.13 – Bipinchandra Dahyabhai is examined at Ex.53 and he is also an eye witness of the incident in which Banesingh Vajesingh received injuries. [5] So far as second incident in which deceased Bhailalbhai Madhabhai Patel received injuries, P.W.2 as aforesaid Jalaji Vajaji is examined at Ex.23 as an eye witness. P.W.4 – CR.A/602/1986 11/85 JUDGMENT Rameshbhai Babubhai is also received injuries in second incident and he is an eye witness to the injuries of deceased Bhailalbhai Madhabhai Patel. He is examined at Ex.28. P.W.5 – Babarbhai Meghabhai is examined at Ex.20. He is also an eye witness of the second incident in which Ramesh Babubhai and deceased Bhailalbhai Madhabhai Patel received injuries. P.W.6 – Kanubhai Mehorbhai is examined at Ex.30 and P.W.7 – Hargovindbhai Umedbhai is examined at Ex.31, who are the witnesses of the second incident in which deceased Bhailalbhai Madhabhai Patel and Ramesh received injuries. [5.1] P.W.3 - Dr.Tulsibhai Vashrambhai Bhalodia is examined at Ex.24, who examined injuries of deceased Bhailalbhai Madhabhai Patel at Ahmedabad Civil Hospital. P.W.9 – Dr.Sunil Maganlal is examined at Ex.35, who conducted postmortem on the deadbody of deceased Bhailalbhai Madhabhai Patel. P.W.10 Dr. Kanaiyalal Sakarlal Patel is examined at Ex.45, who examined injured Banesingh CR.A/602/1986 12/85 JUDGMENT Vajesingh at Civil Hospital, Ahmedabad and injured Ramesh, who was injured in second incident. [5.2] P.W.8 – Chandulal Mathurbhai is examined at Ex.32 being panch of discovery panchnama at Ex.34 by which it is stated that original accused No.2 discovered all weapons used by all the accused in both the incidents. P.W.10 – Sureshbhai Sedhabhai is examined at Ex.37 to prove the panchnama of scene of offence and that panchnama is at Ex.38. [5.3] P.W.14 – Govindbhai Jivabhai Pandya is examined at Ex.54 and being Circle Inspector, he prepared the maps of seen of offence, which are placed on record at Exs.55 and 56. [5.4] P.W.15 – Kanabharti Shivabharti is examined at Ex.58, who recorded and registered the complaint offered by injured Banesingh Vajesingh at Adalaj Police Station because this CR.A/602/1986 13/85 JUDGMENT witness was incharge of Police Station being Head Constable. P.W.16 – Jagdishchandra Ambalal Vyas is examined at Ex.65, who is first Investigating Officer and was Head Constable of Adalaj Police Station at the relevant time. P.W.17 – Lallubhai Haribhai Desai, the then P.S.I. of Adalaj Police Station is examined at Ex.66 being second Investigating Officer. [6] Thus, the prosecution, in all, examined 17 witnesses. [7] In addition to the above oral evidence, the prosecution also tendered documentary evidence as under. A complaint offered by Banesingh Vajesingh at Ex.22. Panchnama of scene of offence at Ex.38, Panchnama of damage caused to the rickshaw at Ex.33, Discovery panchnama at the instance of accused No.2 at Ex.34, Inquest Panchnama at Ex.41, Postmortem Note of deceased Bhailalbhai Madhabhai Patel at Ex.36, Muddamal cloths of the CR.A/602/1986 14/85 JUDGMENT injured and deceased were sent to Forensic Science Laboratory and the opinion is produced at Exs.61 and 62. Ex.46 is the certificate of injuries caused to the injured Banesingh Vajesingh, while Ex.47 is the injury certificate for the injury received by Ramesh Babulal. Exs.25 and 26 are the case papers and X-Ray reports in respect of deceased Bhailalbhai Madhabhai Patel. [8] Learned trial Judge, thereafter, recorded the statements of the accused under Section 313 of the Indian Penal Code wherein the case of each accused is of total denial and no defence witness was produced by the defence. After hearing both prosecution as well as defence counsel, the learned trial Judge came to the above said conclusion and hence, both these appeals as aforesaid. [9] Learned APP Mr.I.M.Pandya for the State in appeal against the acquittal i.e. Criminal Appeal No.765/1986 as appellant and for the CR.A/602/1986 15/85 JUDGMENT respondent in Criminal Appeal No.602/1986 was heard in detail. While learned advocate Mr.K.J.Panchal for the appellants – accused in Criminal Appeal No.602/1986 and for the respondents in Criminal Appeal No.765/1986 was also heard in detail. [10] So far as the appeal against the acquittal is concerned, learned APP Mr.I.M.Pandya vehemently urged that there were eye witnesses to the incident like injured witness Rameshbhai Babubhai, is examined at Ex.28 and supporting witnesses Babarbhai Meghabhai at Ex.29, Kanubhai Mehorbhai at Ex.30, Hargovindbhai Umedbhai at Ex.31 and supporting medical evidence is also brought on record, which could not be properly appreciated by the learned trial Judge in coming to the conclusion of acquittal of the accused in causing murder of deceased Bhailalbhai Madhabhai Patel and causing injuries to witness Rameshbhai Babubhai. It is vehemently submitted that there is no reason to disbelieve these many eye CR.A/602/1986 16/85 JUDGMENT witnesses, who are actual witnesses of the incident and reasons offered by the learned trial Judge for acquittal, appears to be perverse and an order of acquittal is result of improper appreciation of the evidence and, therefore, the conclusion requires interference by this Court. It is submitted that when witnesses have stated that they were present at the scene of offence and have witnessed the incident then it was improper on the part of the learned trial Judge to discard their evidence, so easily as if the witnesses were totally unreliable and that too on flimsy grounds. It is submitted that in fact charge against all the accused in respect of Sections 149 and 148 of the Indian Penal Code as well as under Section 302 of the Indian Penal Code of causing murder of deceased Bhailalbhai Madhabhai Patel is amply proved by the prosecution. It is, therefore, submitted that the appeal against the order of acquittal as preferred by the State i.e. Criminal Appeal No.765/1986 is required to be allowed causing CR.A/602/1986 17/85 JUDGMENT interference in the conclusion arrived at by the learned trial Judge. So far as the Criminal Appeal No.602/1986 of conviction of accused No.1 and 3 i.e. appellants of Criminal Appeal No.602/1986 is concerned, it is submitted by learned APP Mr.Pandya that in fact, both the accused are required to be held guilty for the offence punishable under Section 307 of the Indian Penal Code, as in the first incident, the person was injured i.e. Banesingh Vajesingh is examined and he is corroborated by P.W.2 – Jalaji Vajaji, P.W.12 Vajubha Ramaji and P.W.13 Bipinchandra Dahyabhai. It is submitted that the injury caused to Banesingh Vajesingh is proved by the prosecution through the evidence of Dr.Kanaiyalal Sakarlal Patel examined as P.W.11. He produced on record the certificate in respect of Banesingh Vajesingh as well as Rameshbhai Babubhai at Exs.46 and 47. According to the learned APP there is medical evidence in support of oral evidence. Therefore, it is urged that while allowing the acquittal appeal CR.A/602/1986 18/85 JUDGMENT even for the offence punishable under Section 307 of the Indian Penal Code, the question of interference in appeal against the conviction of appellants of Criminal Appeal No.602/1986 would not arise. In fact, according to the learned APP, these appellants also are required to be convicted for the offences punishable under Sections 149, 148, 302 and 307 of the Indian Penal Code along with other accused as submitted in appeal against the order of acquittal. Ultimately, learned APP submitted that while allowing Criminal Appeal No.765/1986, Criminal Appeal No.602/1986 filed by the original accused No.1 and 3 is required to be dismissed. [11] As against that learned advocate Mr.K.J.Panchal for the appellants in Criminal Appeal No.602/1986 as well as for the respondents in Criminal Appeal No.765/1986 submitted that the prosecution case is found full of contradictions. Learned advocate Mr.Panchal drew the attention of this Court towards the contradictions which we CR.A/602/1986 19/85 JUDGMENT would discuss later on. It is submitted by the learned advocate that firstly, there is no motive for occurrence of the incident and secondly, it is not explained by the prosecution that why nine persons assembled and caused injuries to Banesingh Vajesingh, Bhailalbhai Madhabhai and Ramesh Babubhai. It is submitted that according to the prosecution case, Banesingh Vajesingh was not resident of village : Chandkheda and was outsider. If there was some enmity between accused and Bhailalbhai Madhabhai Patel in natural course, the accused would have straightway attacked Bhailalbhai Madhabhai Patel and it is not understood that why firstly Banesingh Vajesingh was injured by the accused. It is submitted that common object, therefore, on the part of all the accused is not proved. It is submitted that the prosecution case is destroyed on probability that how accused came to know that Banesingh Vajesingh and two others were coming in rickshaw after purchasing dhotis. It is also submitted that though Bhailalbhai Madhabhai Patel CR.A/602/1986 20/85 JUDGMENT was brought to the Police Station and Banesingh Vajesingh had offered his complaint and was in a position to give a statement, in spite of that neither his statement was recorded nor dying declaration was recorded. It is submitted that it clearly appears, however, on appreciation of the evidence of the eye witnesses that genesis of the incident was suppressed by the prosecution and the witnesses were not telling the whole truth before the Court. It is submitted that the learned trial Judge properly appreciated the evidence of the witnesses and taking into consideration major contradictions in the prosecution case acquitted all the accused from the charges levelled against them in respect of Sections 148, 149, 307 and 302 of the Indian Penal Code. It is, therefore, submitted that no interference is required in appeal against the acquittal i.e. Criminal Appeal No.765/1986. Unless, it appears that the conclusion arrived at by the learned trial Judge is perverse, in acquittal appeal, no interference is allowed by CR.A/602/1986 21/85 JUDGMENT the law. The learned trial Judge, for the reasons recorded by him, did not believe the eye witnesses. Learned advocate vehemently urged that it is not the law that the injured eye witness must be believed in all circumstances, but the law is, when a particular injured witness is not creditworthy he may not be believed eventhough he is injured. It is submitted that the learned trial Judge erred in convicting the accused No.1 and 3 which is subject matter of Criminal Appeal No.602/1986. Bringing again the contradictions in the depositions of the eye witnesses, learned advocate vehemently urged that the evidence of Banesingh Vajesingh on whose testimony, the learned trial Judge solely relied upon to convict accused No.1 and 3 is full of contradictions and is in conflict with medical evidence, the witness i.e. Banesingh Vajesingh was not coming before the Court with full truth and he has suppressed genesis of the incident. The complaint is filed within an hour of the incident and still, there are major contradictions between the evidence of CR.A/602/1986 22/85 JUDGMENT Banesingh Vajesingh and the complaint which he preferred before the police. It is submitted that the learned trial Judge discarding the evidence of all other eye witnesses in respect of injuries caused to Banesingh Vajesingh, relied upon the sole testimony of injured person Banesingh Vajesingh for convicting accused No.1 and 3 in respect of injuries caused to Banesingh Vajesingh. It is submitted that a major portion of testimony of Banesingh Vajesingh is not believed by the trial Judge and only placing reliance on a line of deposition of witness Banesingh Vajesingh, conviction is inflicted upon accused No.1 and 3. It is submitted that on account of major contradictions and taking into consideration over all circumstances, the witness Banesingh Vajesingh is not at all creditworthy and, therefore, to that extent, learned trial Judge erred in convicting the accused No.1 and 3 for the offences punishable under Sections 323 and 324 of the Indian Penal Code. It is submitted that complaint itself is cryptic and not giving CR.A/602/1986 23/85 JUDGMENT any details. The prosecution has examined mostly chance witnesses, who could not explain their presence at scene of offence and when major portion of the evidence of Banesingh Vajesingh is not relied upon by the trial Court, he would not have been believed for minor part of his evidence upon which the conviction of accused No.1 and 3 is based. It is submitted that since taking into consideration all circumstances together, the prosecution is not able to prove the case against the accused beyond reasonable doubt, the accused No.1 and 3 are entitled to benefit of doubt so far as injuries caused to Banesingh Vajesingh is concerned and hence, Criminal Appeal No.602/1986 is required to be allowed and accused No.1 and 3 are required to be acquitted of the charges under Sections 323 and 324 of the Indian Penal Code respectively for which each of these appellants – accused are convicted and sentenced. It is submitted that it is not the case that some portion of deposition of Banesingh Vajesingh is not trustworthy and portion regarding injuries CR.A/602/1986 24/85 JUDGMENT caused by accused No.1 and 3 is trustworthy, but the question is whether the evidence of witness Banesingh Vajesingh is so creditworthy as to inspire confidence for convicting accused No.1 and 3 for the injuries which Banesingh Vajesingh received during first incident and more particularly so when major portion of evidence of witness Banesingh Vajesingh, is not believed by the trial Court on account of credibility of the witnesses. According to the learned advocate for the appellants in Criminal Appeal No.602/1986, the learned trial Judge erred in coming to the conclusion that only some lines in respect of injuries caused by accused No.1 and 3 to Banesingh Vajesingh could be acted upon and rest of the whole evidence of Banesingh Vajesingh was not trustworthy. It is submitted, therefore, that the learned trial Judge ought to have come to the conclusion that the evidence of Banesingh Vajesingh on account of contradictions and over all circumstances of the prosecution case was not wholly reliable and the learned trial Judge ought CR.A/602/1986 25/85 JUDGMENT not to have convicted accused No.1 and 3 even for the offences punishable under Section 323 and 324 of the Indian Penal Code. It is ultimately urged that Criminal Appeal No.602/1986 preferred against the order of conviction of accused No.1 and 3 is required to be allowed and is liable to be set aside, while Criminal Appeal No.765/1986 against acquittal of all the accused for the aforesaid charges is required to be dismissed. [12] Both the appeals have arisen from the same judgment and order and hence were heard together and being decided together. Though, the incidents involved in the prosecution case can be judged and appreciated separately and each incident can be scrutinized on its own merits, overall prosecution case is also required to be appreciated and scrutinized, taking into consideration both the incidents simultaneously. [13] We have undertaken a complete and comprehensive appreciation of all vital feature CR.A/602/1986 26/85 JUDGMENT of the case in both the appeals and the entire evidence on record with reference to the broad and reasonable probabilities of the case, have been considered by us. The contentions raised by both the sides have also been taken into consideration. We have re-appreciated and scrutinized each corner of the case to come to our independent conclusion. [14] Dealing with Criminal Appeal No.765/1986 by which all the accused are acquitted for the offences punishable under Sections 148, 149, 307 and 302 of the Indian Penal Code, it is necessary to