IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 652 of 1990 with CRIMINAL APPEAL No 790 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------- CRIMINAL APPEAL NO. 652 OF 1990 : Chandrasinh @ Chandubha Lalubha .. Appellant Versus State of Gujarat .. Respondent -------------------------------------------------------- Appearance: MR KB ANANDJIWALA for the Appellant (original accused No.2) MR SN SHELAT, ADVOCATE GENERAL WITH MR SUDANSHU S. PATEL, APP for Respondent - State -------------------------------------------------------- CRIMINAL APPEAL NO. 790 OF 1990 -------------------------------------------------------- The State of Gujarat .. Appellant Versus 1. Ajitsinh Andubha Parmar 2. Bharatsinh Andubha Parmar .. Respondents (original accused Nos.1 & 3) --------------------------------------------------------- Appearance : MR SN SHELAT, ADVOCATE GENERAL WITH MR SUDANSHU S. PATEL, APP for Appellant - State MR KB ANANDJIWALA for Respondent No. 1 & 2 (original accused Nos. 1 & 3) -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE SHARAD D.DAVE Date of decision: 06/07/2001 ORAL JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI for the Court) 1. These two appeals arise from the judgement and order dated 17th July 1990 passed by the learned Additional Sessions Judge, Surendranagar in Sessions Case No. 56 of 1987, convicting the original accused No.2 Chandrasinh for the offence under section 302 of the Indian Penal Code and sentencing him to rigorous imprisonment for life and to pay a fine of Rs.2,000=00, in default of which to undergo rigorous imprisonment for six months, and acquitting the original accused No.1 Ajitsinh Andubha and the original accused No.3 Bharatsinh Andubha for the offence under section 302 read with section 34 of the Indian Penal Code. There was Sessions Case No. 73 of 1987, clubbed with Sessions case No. 56 of 1987 in respect of the same incident. The original accused No.4 - Bakubha @ Ashoksinh Lalubha, who is the brother of the original accused No.2 - Chandrasinh was also tried and by the same judgement and order, original accused No.4 Bakubha @ Ashoksinh Lalubha was also acquitted for the offence under section 302 read with section 34 of the Indian Penal Code. 1.1 Criminal Appeal No. 652 of 1990 is preferred by the original accused No.2 - Chandrasinh against his conviction, while Criminal Appeal No. 790 of 1990 has been preferred by the State Government against the acquittal of the original accused Nos. 1 and 3 of the Sessions Case No. 56 of 1987. The acquittal of the original accused No.4 - Bakubha @ Ashoksinh Lalubha is not challenged. 2. The prosecution version was that a couple of days before the day of incident, there was some quarrel between Sahdevsinh, who was the younger brother of the deceased Gajubha and the original accused No.4 - Bakubha @ Ashoksinh, who was the younger brother of the original accused No.2 - Chandrasinh Lalubha. In that quarrel, Sahdevsinh was injured by a spade blow given to him by the original accused No.4. However, no complaint was filed in respect of that incident. On 14th May 1987 in the morning, while Abhesinh who was also the younger brother of Gajubha, was cleaning the `utara' (a place of tethering cattle as per the prosecution witnesses) which was near their house, the accused No.4 quarrelled with him and the father of the accused No.4, Andubha caught Abhesinh's hands from the back and the accused No.4 dealt a knife blow to him for which the FIR exh.55 was lodged by Abhesinh at Muli police station. The injured Abhesinh was then sent to the Muli Hospital and thereafter taken to Surendranagar Hospital for treatment by his father Manubha. 2.1 In the same morning, at about 10 o'clock, according to the prosecution, the accused Nos. 1 and 3 i.e. Ajitsinh and Bharatsinh, who are real brothers, and are the cousin brothers of the accused No.2 and the accused No.4, barged into the house of Gajubha and started beating his mother Mayaba who was dragged out of the house. At that time, Ranubha and his sister Harshaba were present. Harshaba was also given a push. According to the prosecution, these two accused persons Ajitsinh and Bharatsinh assaulted Mayaba also with sticks causing her injuries, in respect of which, she was later on treated and medical certificate was issued. 2.2 While the accused Nos.1 and 3 started assaulting Mayaba, Ranubha rushed to their `utara' to call his brother Gajubha for help. Gajubha immediately started rushing towards his house which was only 200 feet away from the `utara' and when he came near a spot which is described as the rear of the house of Surubha (`Surubha Na Ghar Ni Pachhit'), and saw his mother being beaten, he shouted at the accused. At that juncture, the accused No.2 Chandrasinh emerged from the lane adjoining Surubha's house, took out a knife from a maroon coloured sheath and gave two knife blows, one on the chest and the other on the abdomen of Gajubha. On getting the knife blows, Gajubha started running back towards his `utara' and at that time, the accused Nos. 1 and 3 who were beating his mother left her and started chasing Gajubha with lathis in their hands. While Gajubha was running back to his `utara', he was given another knife blow near a spot which is described in the evidence as `Mataji's Madhi', which spot is, as per the map exh.37, one hundred feet away from the spot where the knife blows were first given to Gajubha by the accused No.2 near the house of Surubha. That earlier spot was about sixty-two feet away from the entrance of the house of Gajubha and his family. Even after inflicting a knife blow at the spot near `Mataji's Madh', these three accused continued to chase Gajubha, who fell down near his `utara', at which place the accused Nos. 1 and 3 had given stick blows to him on his head. According to the prosecution, Mayaba who was being beaten in that very street and Harshaba who was also with her had witnessed this incident. Ranubha who had gone to call Gajubha to help their mother, had also seen the incident. 2.3 Ranubha who was hardly 16 years of age at that time, tried to seek help when his brother Gajubha fell down due to the assault by these accused persons and witness Tejubha who had also seen the incident from a distance of 50 feet went and brought a bullet motorcycle alongwith Jambha and they carried Gajubha to the Civil Hospital. From there, the injured Gajubha was taken to Surendranagar in Mahatma Gandhi Hospital. At the Mahatma Gandhi Hospital, Surendranagar, Gajubha was examined by Dr. Wadher at 10.40 a.m. on that day. The statement of Gajubha was recorded as per exh.14 by the police at about 1.30 p.m. which ultimately become a dying declaration. The Executive Magistrate was also summoned and he recorded his dying declaration exh.72 between 3.10 p.m. and 3.35 p.m. on 14-5-1987. In the evening, injured Gajubha was advised to be shifted to Ahmedabad and was brought to the V.S. Hospital, where he was admitted at 8.25 p.m. on 14-5-1987. Gajubha died on 18-5-1987 in the V.S. Hospital, Ahmedabad during treatment as a result of these injuries. According to the prosecution, Gajubha though seriously injured was fully conscious and in a position to give the dying declarations. He had also given an oral dying declaration before his father Manubha, who had come to the hospital after getting Mayaba treated for her injuries caused by the accused Nos. 1 and 3. 2.4 According to the prosecution, in all his dying declaration, Gajubha had stated that he was given knife blows by the accused No.2 - Chandrasinh and stick blows by the accused Nos. 1 and 3 i.e. Ajitsinh and Bharatsinh. As regards the accused No.4 - Ashoksinh, he had stated that the said accused tried to give him a knife blow, which however did not land on him. 2.5 The prosecution case further is that, from the spot where the accused No.2 - Chandrasinh had given two knife blows initially to Gajubha near the back side of the house of Surubha, blood stained sheath and a pair of chappals were recovered which ultimately were found to be having blood of group `O' which was of Gajubha. According to the prosecution, the knife was discovered at the instance of the accused No.2 and it was having blood stains on the blade. Moreover, from the spot where a further knife blow was inflicted by the accused No.2 on Gajubha while he was running back, near the `Mataji's Madh', blood stained scrappings were taken from the wall of the `Madh' which were found to be having the blood of `O' group, which was of Gajubha. 2.6 The prosecution has also relied upon the evidence of Puriba PW-2 who is residing in the same street near `Mataji's Madh' as an eye-witness who had seen one knife blow being inflicted by the accused No.2 on Gajubha and the accused Nos. 1 and 3 chasing him with lathis and also another neighbour Prannaba PW-7 who saw the accused No.2 giving two knife blows near Surubha's house and the accused No.1 and 3 with sticks. 2.7 The prosecution version, therefore, is that both from the ocular version as well as the dying declarations of Gajubha, it was established beyond doubt that the accused No.2 had inflicted knife injuries to Gajubha with intention of causing his death and that the accused Nos. 1 and 3 had inflicted stick blows causing injury on his head and had shared his common intention of causing death of Gajubha. 3. In the Charge exh.3, it was alleged that all the four accused persons, in furtherance of their common intention of causing death of Gajubha and causing injuries to Mayaba, had entered the house of Gajubha and the accused No.2 - Chandrasinh @ Chandubha had inflicted knife blows on the chest and abdomen of Gajubha and the accused Nos. 1 and 3 had given stick blows to him, and thereby, they had intentionally caused his death and that they had committed an offence under section 452, 302 read with section 34 of the Indian Penal Code. All the accused were also charged for the offence under section 323 read with section 34 of the IPC as regards the injuries which were caused to Mayaba. In the alternative, each one of them was separately charged for the offences punishable under sections 452 and 302 of the Indian Penal Code. They were also charged for offence under section 302 read with section 114 of the IPC. Finally, they were charged for the offence under section 135 of the Bombay Police Act for committing breach of the notification prohibiting carrying of arms in public places. 4. The learned trial Judge, on the basis of the material on record, came to a finding that death of Gajubha was homicidal. It was held that the prosecution had proved that, on 14-5-1987, the accused No.2 Chandrasinh @ Chandubha had given knife blows to Gajubha. It was, however, held that it was not established that the other accused persons had common intention of causing death of Gajubha. The Court held that the prosecution did not establish that accused Ajitsinh and Bharatsinh had given stick blows to Mayaba and thereby committed offence under section 323 read with section 34 of the Indian Penal Code. The charge for the offence punishable under section 135 of the Bombay Police Act regarding the breach of the notification issued by the Collector was held as not proved. The trial Court found that Gajubha died a homicidal death which was caused due to injuries inflicted upon him, which were sufficient in the ordinary course of nature to cause death. The learned trial Judge while holding that it was established that the accused No.2 had inflicted knife blows on Gajubha, held that the dying declaration was silent about the incident that took place at his house where the accused Nos. 1 and 3 are said to have assaulted his mother Mayaba, and that it was also silent about his brother Ranubha having come to call him and pursuant to that call, he having rushed towards his house to save his mother. The trial Court observed that the contradictions in the version of Mayaba and Harshaba were proved in the cross-examination through the investigating officer. Here, the trial Court overlooked the fact that there were two police statements of each of these eye witnesses, one recorded on 14-5-1987 and the other on 18-5-1987 by two different police officers. The P.S.I. Jhala who took over the investigation on 18-5-1987 when Gajubha died, had recorded further statements of the witnesses. The trial Court observed that, looking to the evidence of Ranubha, Puriba, Harshaba and Mayaba, the incident at home was not proved, because, there were material contradictions and omissions which go to the root of the case. This the trial Court has observed without specifying as to what type of material contradictions and omissions were there and without considering whether the omissions were material, as can be seen from paragraph 30 of the judgement where these observation occurs. The trial Court, however, accepted the version of the witnesses and as occurring in the dying declaration of Gajubha that Gajubha was assaulted and given knife blows by the accused No.2 Chandrasinh. The defence version that the only one incident had taken place and that was at 7.30 a.m. on 14-5-1987, and that while there was an altercation, the crowd had assaulted Gajubha by a knife, was rejected by the trial Court. The trial Court observed that it cannot be a mere coincidence that the slippers found from the scene of offence where the initial knife blows were given to Gajubha would fit the accused No.2, nor was it a mere coincidence that in the sheath which was found from that spot, muddamal knife could be fitted. The trial Court found that the accused Nos. 1 and 3 had sticks and the original accused No.4 tried to give a knife blow to Gajubha which did not cause any injury, but held that this was not sufficient for the Court to believe that all of them had assaulted Gajubha. It was held that the fact that the incident occurred during the daylight, ruled out the possibility of any mistake in identifying the assailants who were known persons. The trial Court, while convicting the accused No.2 for the offence under section 302 of the Indian Penal Code, observed that, "For rest of the accused, it is not that they are falsely involved but authorship of injury cannot be attributed to them." It was held that the prosecution had failed to prove that all other accused had acted in furtherance of common intention to murder Gajubha. The accused Nos. 1, 3 and 4 were, therefore, acquitted. 5. We have heard the learned counsel appearing for both the sides in these two appeals at great length. It has been contended by the learned counsel appearing for the accused No.2 Chandrasinh @ Chandubha Lalubha, who is the appellant in Criminal Appeal No. 652 of 1990, and also for the original accused Nos. 1 and 3 (respondents of Criminal Appeal No.790 of 1990) that, having regard to the physical condition of Gajubha, who according to the medical evidence was gasping for breath due to leakage in his lung which was punctured by the stab wound, it would not have been possible for him to speak and therefore, the story that Gajubha had narrated the events in the dying declaration, cannot be accepted. Therefore, the earliest version which is said to be reflecting in the dying declaration exh.14 recorded around 1.30 p.m. on 14-5-1987 was doubtful. He submitted that the subsequent dying declaration exh.72, which was taken around 3.15 p.m. by the Executive Magistrate, was also doubtful for the same reason. The learned counsel further contended that there was a conflict between the version of Gajubha given in the dying declarations and the version of the eye-witnesses, as regards the origin, manner, sequence and place of the incident in which Gajubha is said to have been assaulted and injured. There is also conflict between these two versions as regards the part attributed to the accused persons. He submitted that the dying declarations in fact destroy the ocular version, because, there is no reference to the incident about the assault on the mother of Gajubha by the accused Nos. 1 and 3 and Ranubha going to Gajubha for help and Gajubha rushing to save his mother which was a version coming out from the eye-witnesses. He also submitted that, in the dying declarations, there was no reference to the assault that took place on Abhesinh, brother of Gajubha in the morning at 7.30 a.m. on that day by the accused No.4. He submitted that, in the dying declaration exh.14, Gajubha is said to have stated that he initiated the talk with the accused No.2 about the assault on his younger brother and there was a sudden attack by the accused No.2 which story was different from the version of the eye-witnesses who have said that when Gajubha was coming to save his mother and was near the spot described as rear (`pachhit') of the house of Surubha which was about sixty-two feet away from the house of Gajubha, the accused No.2 Chandrasinh had, at that time, emerged from the by-lane adjoining Surubha's house and gave two knife blows to Gajubha. It was further submitted that, in the dying declaration exh.72, Gajubha speaks about the incident having taken place near his `utara' and even in that dying declaration, Gajubha had not spoken about the incident of assault on his mother Mayaba and his rushing to save her on being called by his youngest brother Ranubha. The learned counsel further argued that the conduct of the so called eye-witnesses does not inspire any confidence and that there were material contradictions and omissions in their version. The learned counsel referred to the contradictions and omissions brought out in the cross-examination of the First Grade Head Constable Tulsibhai in his deposition exh.58 had stated that Mayaba had not stated in her police statement that she was pulled by her hair by the accused Nos. 1 and 3, or that the accused Nos. 1 and 3 had sticks with which they had beaten her son Gajubha. He also referred to other contradictions and omissions in respect of other witnesses brought out in the cross-examination of this police witness. When it was pointed out to the learned counsel that these contradictions are with reference to the statements of these witnesses which were recorded on 14-5-1987 and they were not with reference to the further statements of these witnesses which were recorded by P.S.I. Navalsinh Zala on and after 18-5-1987 when he took over the investigation, as stated by him in his deposition exh.16, the learned counsel strongly contended that this Court cannot refer to the police statements (which are on record in the miscellaneous papers) of any witnesses for the purpose of ascertaining as to from which of the two statements the contradiction was put. He submitted that the appellate Court cannot look into the police statements for any purpose whatsoever. The learned counsel submitted that even such use of the police statement was not permissible by section 162 of the Criminal Procedure Code and this Court may read the evidence as it is, without referring to the police statements from which the contradictions / omissions were proved in the deposition of the investigating officers. The learned counsel for the accused persons further argued that in this case no motive was established which would have caused the accused No.2 Chandrasinh to assault Gajubha or the accused Nos. 1 and 3 to assault Mayaba. It was submitted that the accused No.2 - Chandrasinh never took part in the earlier incident which took place in the morning at 7.30 a.m. wherein his real brother Ashoksinh and his father Andubha are said to have assaulted Abhesinh, the younger brother of Gajubha. It was also submitted that no independent person from the locality was examined by the prosecution and only relatives of the injured were examined as eye-witness. It was submitted that some ingenious mind seems to have worked to fabricate false story for implicating all the members of the accused family. It was further argued that Mayaba was not corroborated by medical evidence regarding her version that she was pulled out of the house by her hair by the accused Nos. 1 and 3. It was submitted that Ranubha did not give the names of the assailants to Rejubha whom he met in a few seconds after the incident and this created a doubt as to whether he had witnessed the incident. Moreover, when the history was recorded, the name of the accused No.2 Chandrasinh alone was disclosed to the doctor by some person from the crowd and it has come on record that one of the relatives of Manubha, father of the deceased was a police person named Lakhubha. It was, therefore, submitted that it was likely that Chandrasinh's name was roped in because of the quarrel between Abhesinh and Ajitsinh in the morning. He also submitted that the fact that the word `family' was written alongwith the name of Chandrasinh by the doctor in the history of the case given by a member from the crowd, shows that an attempt was made to implicate not only the accused No.2, but his other family members also, and this circumstance creates doubt over the prosecution story. The learned counsel finally contended that looking to the medical evidence, it appears that there were chances of Gajubha's survival if complications had not occurred due to the injuries suffered by him and proper medical treatment was given. He submitted that the immediate cause of death was not injury and the accused could have lived with one lung even if the lung which was punctured was removed. He, therefore, submitted that the accused cannot be held guilty for the offence of murder, because, the death could have been averted with proper treatment. It was also submitted that the contused lacerated wound on the head was initially described by the earlier doctor as an incised wound. It was contended that an incised wound would be caused by a sharp cutting instrument like knife and therefore, the story that a stick blow was given on the head of Gajubha by the accused Nos. 1 and 3 cannot be accepted, as a stick blow cannot cause an incised wound. 5.1 The learned counsel for all the accused persons in these two appeals cited the following decisions in support of his contentions : [a] The decision of the Supreme Court in Harchand Singh v. State of Haryana reported in AIR 1974 SC 344 was cited for the proposition that where one set of evidence condemned the other set, the Court was left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. In that case, the prosecution led two sets of evidence, each one of which contradicted the other. [b] The decision in case of State of U.P. v. Madan Mohan reported in AIR 1989 SC 1519 was cited to point out that where the prosecution version regarding the incident as stated by the two eye-witnesses materially differed from the version unfolded by the dying declaration, the acquittal of the accused was confirmed. In that case, the Supreme Court on the basis of the material on record