CR.A/1145/1986 1/39 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1145 of 1986 with CRIMINAL APPEAL No.378 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HON'BLE SMT. JUSTICE ABHILASHA KUMARI ================================================= 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 ? ================================================= STATE OF GUJARAT Versus BHAYA LAKHDHIR & 2 ================================================= Appearance : MR KC SHAH APP for Appellant MR RR TRIVEDI for Respondents No.1-2 MR NK MAJMUDAR for Respondent No.3 ================================================= CR.A/1145/1986 2/39 JUDGMENT CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 18/09/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) [1] The three accused – (1) Bhaya Lakhdhir, (2) Samant Lakhdhir and (3) Kana Lakhdhir charge- sheeted and committed for the trial before the Court of Sessions, District: Rajkot at Gondal for the charges levelled against them under Sections 307, 323, 324 and 114 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act, vide Sessions Case No.52/1985. The said Sessions Case was made over to the learned Assistant Sessions Judge, District: Rajkot at Gondal. All the three accused were put to trial and after full-fledged trial, learned Assistant Judge, vide judgment and order dated 27th February, 1986 was pleased to acquit all the accused for the offences punishable under CR.A/1145/1986 3/39 JUDGMENT Sections 307, 323, 324 of the Indian Penal Code and under Section 135 of the Bombay Police Act, though all the three accused were found guilty for the offences punishable under Section 325 to r/w. Section 114 of the Indian Penal Code. Accused No.1 – Bhaya Lakhdhir and accused No.3 – Kana Lakhdhir each was sentenced by the trial Court to suffer simple imprisonment for one year and to pay fine of Rs.100/- each in default to suffer simple imprisonment for one month. While accused No.2 – Samant Lakhdhir was directed by the trial Court to be released on surety of Rs.1,000/- for good behaviour for one year under probation. [2] Against the above said judgment and order, accused No.1 – Bhaya Lakhdhir and accused No.3 – Kana Lakhdhir preferred Criminal Appeal No.14/1986 in the Court of learned Sessions Judge, at Rajkot against their conviction and sentence. While State preferred Criminal Appeal No.1145/1986 under Section 378 of the Code of CR.A/1145/1986 4/39 JUDGMENT Criminal Procedure against all the three accused for their acquittal for the offences punishable under Sections 307 to r/w. Section 114 of the Indian Penal Code. [3] Criminal Appeal No.1145/1986 filed by the State against the order of acquittal came to be admitted by the Division Bench of this Court on 7th April, 1987 by following the order. “Leave granted. Appeal admitted. Papers of Criminal Appeal No.14/86 filed by the original accused Nos.1 & 3 in the Court of Additional Sessions Judge, Gondal, be called for and the same be placed for hearing along with this appeal.” [4] Hence, Criminal Appeal No.14/1986 filed by the accused at Gondal was transferred to this Court and was numbered as Criminal Appeal No.378/1987. CR.A/1145/1986 5/39 JUDGMENT [5] Thus, Criminal Appeal No.1145/1986 filed by the State against the order of acquittal against all the accused and Criminal Appeal No.378/1987 filed by the accused Nos.1 and 3 against their conviction are heard together as both the appeals have arisen from the same judgment which is impugned in both the Criminal Appeals as aforesaid. [6] Stating the prosecution case in brief, the incident in question occurred on 28th June, 1985 at 5.30 p.m at Upleta S.T. Bus Stand. According to the prosecution case, before 15 days of the incident, injured Joga Giga and with the persons of the accused party there was some quarrel about Rajibai daughter of one Devsur of village Jamraval and, thereafter, since the parties were inter-related, the quarrel was compromised peacefully. [7] On 28th June, 1985 on the day of incident, Joga Giga had met. Accused Samant Lakhdhir in the CR.A/1145/1986 6/39 JUDGMENT village, but however, Samant Lakhdhir failed to greet Joga Giga and, therefore, Joga Giga had beaten Samant Lakhdhir with fist and kicks. Accused – Samant Lakhdhir conveyed this fact to his brothers i.e. other two accused in this case and, thereafter, all the three accused came to S.T. Bus Stand of Upleta Town where Joga Giga injured, Surabhai Mansur, complainant in the matter and his mother-in-law Mesariben were sitting. Wife of Surabhai named as Somiben and sister of injured Joga Giga was also present. The time was about 5.30 p.m. Near Platform No.1 of S.T. Bus Stand. At that time, all the three accused came and accosted Joga Giga that why he had beaten Samant Lakhdhir earlier. All the three accused, thereafter, inflicted blows by sticks fitted with iron rings indiscriminately upon the head of Joga Giga and Joga Giga received serious injury and had fallen down on the ground. He became unconscious. At that juncture, some police constable came at the scene of offence and took away all the three accused. Joga Giga first was shifted to Civil Hospital at Upleta and he was CR.A/1145/1986 7/39 JUDGMENT treated by P.W.5 – Dr.Himmatlal Bhanji Patel. Injury appeared to be serious, Joga Giga was then shifted to Civil Hospital at Junagadh where he was treated by P.W.4 Dr.Mukesh Revashankar Mehta. Surabhai Mansur, brother-in-law of the injured filed a complaint before the Police Sub- Inspector, Upleta Police Station at about 19.15 hours on the same day and crime came to be registered against the three accused which was investigated at first by P.W.18 – Adesing Jurubha Zala and, thereafter, P.W.19 – Ranmalbhai Nathabhai Dayakar, P.S.I. Upleta. Ultimately, at the result of investigation as stated above, charge-sheet came to be submitted before the learned Judicial Magistrate, First Class at Upleta who committed this case to the Court of Sessions and the said Sessions Case i.e. Sessions Case No.52/1985 was made over to the learned Assistant Sessions Judge, Gondal, District: Rajkot. [8] Learned Assistant Sessions Judge framed charges for the above said offences against all the three accused vide Ex.1 on 17th January, 1986. CR.A/1145/1986 8/39 JUDGMENT The charge was read over to each of the accused to which they pleaded not guilty. The prosecution, thereafter, examined as many as 19 witnesses and produced on record documentary evidence to prove its case. Learned trial Judge, thereafter, drew the attention of each of the accused to the circumstances appearing against them under Section 313 of the Code of Criminal Procedure wherein after denying the impeaching evidence of the prosecution, each of the accused denied the prosecution case in toto. Learned trial Judge, thereafter, heard the State and defence and came to the above conclusion to acquit the accused for the charges under Section 307 to r/w. Section 114 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. Learned trial Judge came to the conclusion that injuries on the body of injured was proved and, therefore, each of the accused was liable for the offences punishable under Section 325 to r/w. Section 114 of the Indian Penal Code and, therefore, each of the accused was sentenced accordingly, as aforesaid. CR.A/1145/1986 9/39 JUDGMENT [9] Learned APP Mr.K.C.Shah for the State in both the Appeals, while learned advocate Mr.U.A.Trivedi for the original accused in both the appeals were heard in detail. So far as Criminal Appeal No.1145/1986 filed by the State against the order of acquittal is concerned, learned APP submitted that the injury caused to the injured was a fracture of right fronto parietal bone of the head were depressed fracture right fronto parietal bone was detected and the injury was serious and was sufficient in ordinary course of nature to cause death. The weapon used was stick with iron ring attached with it and all the three accused attacked injured Joga Giga and hence the case under Section 307 was made out and not under Section 325 of the Indian Penal Code as the intention on the part of the accused for attempt of murdering Joga Giga is distinctly established by the prosecution. [10] As against that learned advocate CR.A/1145/1986 10/39 JUDGMENT Mr.U.A.Trivedi for the original accused in both the appeals submitted that there was single blow, that too by stick may be attached with iron ring and the injury was serious only if the same was not treated timely. Learned advocate Mr.Trivedi draw the attention to this Court referring to the evidence that the accused Kana Lakhdhir had also received injury in the same incident and complaint was filed. Therefore, neither intention nor knowledge can be imputed upon any of the accused as this was the case of free fight between the parties. It is submitted that so far as the Criminal Appeal No.378/1987 for conviction under Section 325 to r/w. Section 114 of the Indian Penal Code of the accused is concerned, a compromise has been arrived at between the parties and accused have tendered an application for permission to place on record compromise and the compromise itself arrived at between the parties. Therefore, it is stated by the learned advocate Mr.Trivedi that Criminal Appeal No.1145/1986 has no merits and Criminal Appeal CR.A/1145/1986 11/39 JUDGMENT No.378/1987 be allowed in view of the compromise arrived at between the parties. [11] We have undertaken threadbare scrutiny of the evidence recorded during the trial and have re-appreciated the evidence. We have taken into consideration the documents produced on record and the contentions raised by the appellant and respondents in both the appeals. We have also assessed vital features of both the appeals and reasonable probability arising out of the circumstances of the case. We have also scanned the reasons assigned by the trial Court for acquitting the accused for the charges under Section 307 r/w. Section 114 of the Indian Penal Code. [12] The summary of the evidence recorded during the trial is as under: [12.1] P.W.1 – Prabhashankar Purushotam examined CR.A/1145/1986 12/39 JUDGMENT at Ex.7, was an Executive Magistrate and he recorded Dying Declaration of injured Joga Giga. That Dying Declaration is placed on record at Ex.8. P.W.2 – Jaysukh Diyabhai examined at Ex.9, was panch of panchnama at Ex.10 of scene of offence and according to him, he had scene blood stains at the scene of offence. P.W. 3 – Arjan Hamirbhai examined at Ex.11, was panch of panchnama Ex.12 by which accused No.1 – Bhaya Lakhdhir presented himself before the police including the muddamal article stick with iron ring. The witness stated that though he had signed panchnama, but he could not say whether the same accused which was present in the Court had presented before the police the said stick of muddamal article which was attached by the police. P.W.4 – Mukesh Revashankar Mehta examined at Ex.14, was serving as, Medical Officer at Junagadh and injured Joga Giga was transferred to him from Upleta Hospital vide a yadi for a further treatment. He examined Joga Giga at 8.00 p.m at Junagadh on 28th June, 1985. The patient CR.A/1145/1986 13/39 JUDGMENT was admitted in the hospital and was discharged on 7th July, 1985. According to this witness, injured had given history of assault and had a stitch wound T. shape on right frontal of right forehead area of scalp. It was at about 2.0 each length. The witness further stated that injury was on vital part and might have been caused using considerable force. The injury was serious and was capable of causing death, if no immediate treatment was given to the patient. In examination-in-cross, the witness admitted that the patient was able to talk (he was semi- unconscious). The X-ray was taken by Radiologist and it was found that there was depress fracture of right fronto parietal bone. According to him, the injury was possible by fall and dashing with stones. The certificate is produced on record at Ex.15. The X-rays taken are produced on record vide Exs.16, 17 and 18. P.W.5 – Dr.Himmatlal Bhanji Patel examined at Ex.21, treated deceased Joga Giga first in point of time at Upleta Hospital at 6.30 p.m. The patient was unconscious CR.A/1145/1986 14/39 JUDGMENT and somebody given history of assault. He was bleeding from nose and according to the witness, he had one injury of C.L.W. 1” X 1/2” bone deep on frontal scalp. The above injury was fresh grevious and caused by hard and blunt object. The patient was transferred to Civil Hospital, Junagadh immediately. He produced certificate at Ex.22. He also examined accused No.1 – Kana Lakhdhir at 7.05 p.m on the same day and according to him, he also gave history of assault by somebody and the patient was conscious. According to the witness, accused No.1 – Kana Lakhdhir had C.L.W. 1” x 1/2” x 1/2” on left frontal scalp oblique. X-ray did not reveal any fracture. The above injury was fresh, simple and could be caused by hard and blunt object. The witness was cross-examined by the defence. P.W.6 – Surabhai Mansur examined at Ex.24 is the complainant and stated that Joga Giga happened to be his brother-in-law i.e. brother of his wife – Somi. Mesariben was his mother-in-law, while accused are his cousins. At the time of incident, CR.A/1145/1986 15/39 JUDGMENT he had been to his field and when he returned, he found that accused – Kana Lakhdhir had fallen down on the ground as well as Joga Giga had also was lying on the ground at about 5.30 p.m. at the Bus Stand. He had not witnessed the incident. The complainant – Surabhai, who had given FIR, did not support the prosecution case and, therefore, he was declared hostile. He has not been cross- examined by the defence. His statement was recorded by Police Sub-Inspector, Upleta City Police Station, which is on record at Ex.25, while report under Section 154 is also placed on record. Injured Joga Giga has been examined as P.W.7 at Ex.26. He deposed that on the day of incident, he was sitting at Platform No.1 of the Bus Stand of Upleta. His mother Mesariben, sister – Somiben and husband of his sister Surabhai Mansur were also with him. Two police constables were also present. Accused No.1 inflicted one blow of stick with iron ring which he avoided and was landed on his left hand. Accused No.2 – Samant Lakhdhir also inflicted one blow by stick CR.A/1145/1986 16/39 JUDGMENT with iron ring on his shoulder. The third blow was given by accused – Bhaya Lakhdhir, which was landed, according to him, on his right side of frontal region of his head, the injury started bleeding and, therefore, he became unconscious. His mother, sister and brother-in-law shifted him to Upleta Hospital and thereafter, to Junagadh Hospital where he took treatment for 13 days. He identified the accused and muddamal stick. In his cross-examination, he stated that in his statement before the police, he had stated that which accused inflicted which blow, but police did not record the same. He also admitted that though he stated before the police that his sister Somi and his mother Mesariben present at the time of incident, but police had not recorded the same. He denied the allegation that complainant – Surabhai was not present at the time of incident. He denied the suggestion of the defence that after inflicting injury to accused Kana Lakhdhir, while he was escaping, he had fallen down and he had got the said injury. CR.A/1145/1986 17/39 JUDGMENT He admitted that in hospital, he had instructed his brother-in-law Surabhai that before the opposite party filed a complaint against them, they must file complaint against accused party. He admitted that what was quarrel about, he did not know. P.W.8 – Mesariben Giga Meram examined at Ex.27, mother of the injured Joga Giga stated that at the time of the incident Surabhai Mansurbhai, her daughter Somi and husband of her daughter were sitting at Upleta Bus Stand at about 5.30 p.m, at that time, accused came running with stick and they inflicted blow on Joga Giga by stick. Joga Giga was injured on his head and, thereafter, he was shifted to the hospital. She denied that the accused Kana was injured in the incident. She denied the fact that Surabhai was not present at the time of the incident and she was also not present. P.W.9 -Bhikhubha Dhirubha examined at Ex.28, was unarmed Police Constable, was on duty at the relevant juncture on bus stand of Upleta. According to him, at 5.15 p.m at Platform No.1, CR.A/1145/1986 18/39 JUDGMENT three persons came with sticks and started beating Joga Giga with the sticks having iron rings. Joga Giga was injured on his head and they had apprehended those three persons which he identified to be accused. Other police constable – Dilavarkhan was also with him. None of the accused was injured in the incident. He has been cross-examined by the defence. He stated in clear terms that before the police, he stated that accused – Kana Lakhdhir also received injury on his head and was admitted to the Government hospital for treatment at Upleta. P.W.10 – Prabhudas Jamnadas examined at Ex.29, was a hawker doing his business at S.T.Bus Stand, Upleta. According to him, some quarrel had taken place in which injured Joga Giga had fallen on the ground and he assisted Joga Giga to stand up. Police Constable Dilavarkhan and other police constables apprehended attacker and they were taken into Police Station. The witness was declared hostile by the prosecution. P.W.11 – Sattar Valibhai examined at Ex.30, was doing CR.A/1145/1986 19/39 JUDGMENT labour work at S.T.Bus Stand, Upleta and stated that at the time of incident, three persons attacked Joga Giga and on account of this beating Joga Giga started bleeding. He identified three accused to be attacker. He has been cross- examined by the defence and he stated that he could not say whether accused Kana Lakhdhir was also lying on the ground in bleeding condition. P.W.12 – Bhupatsinh Pravinsinh examined at Ex.31, was also hawker and had a Tea Stole at the Bus Stand of Upleta. In very short deposition, he stated that at about 4.30 p.m., a quarrel took place in which injured Joga Giga had become unconscious and three persons to whom he identified to be the accused were beating Joga Giga with sticks. The witness was cross-examined by the defence. P.W.13 – Hanubhai Dudabhai examined at Ex.32, was a panch of panchnama at Ex.33 whereby person of the injured was examined. The witness did not support the prosecution case. The said panchnama is placed on record at Ex.33. P.W.14 – Karsan Tejabhai examined at Ex.34, was a CR.A/1145/1986 20/39 JUDGMENT second panch of panchnama at Ex.33, but he also did not support the prosecution case and hence, turned hostile. P.W.15 – Kalabhai Rana examined at Ex.35 was a panch of panchnama of arrest of the two accused and he stated that the police had obtained his signature on panchnama, but he did not know whether any sticks were attached from the accused. He has not been declared hostile by the prosecution. P.W.16 – Narendrasinh Amarsinh examined at Ex.36, was the then Head Constable on hospital duty at Junagadh. According to him, he received a yadi from P.S.O., Junagadh indicating that the Joga Giga was admitted to the hospital. He produced on record a yadi at Ex.20. In pursuance of the yadi, he recorded the statement of injured Joga Giga which he entrusted to the then P.S.O. In his cross-examination, he stated that he recorded the statement of injured after his dying declaration was recorded. In statement, Joga Giga did not state that which accused inflicted which blow, but he named three accused and stated that three accused inflicted injuries CR.A/1145/1986 21/39 JUDGMENT upon him by sticks. P.W.17 – Mulubha Laljibhai examined at Ex.37 was the then P.S.O. of Upleta Police Station. According to him at about 18.30 hours on 28th June, 1985, he received emergency information from Cottage Hospital and from Medical Officer by phone that Rabari Joga Giga, aged about 20 years was injured in a quarrel and was admitted to hospital. The witness recorded this fact in station diary No.25/85 and P.S.I. was informed by written yadi. He produced on record copy of the station diary at Ex.38. According to him, the investigation was entrusted to P.S.I. Zala of Upleta Police Station. According to the witness, thereafter, P.S.I., Zala recorded the complaint of Surabhai at hospital and presented the said complaint before him and from that he registered the offences vide C.R.Nos.73/85 and 74/85. He has not been cross- examined by the defence. P.W.18 – Adesingh Jorubhai Zala examined at Ex.40, was the then P.S.I of Upleta Police Station. He was informed by written yadi by P.S.O. of Upleta Police CR.A/1145/1986 22/39 JUDGMENT Station about the quarrel in which Joga Giga was injured. Therefore, according to the witness, he visited Government hospital at Upleta and found that injured Joga Giga was unconscious and hence, he recorded the complaint of Surabhai which he produced at Ex.25. He also recorded the complaint of Kana Lakhdhir at hospital. He had taken both these complaints to Police Station from which the then P.S.O registered crime in both the complaints. He was entrusted with the investigation, drew panchnama, attached blood stain cloths of Kana Lakhdhir and arrested the accused. He attached the muddamal sticks. He recorded the statements of the concerned witnesses. Ex.41 is a panchnama in respect of the body of accused Kana Lakhdhir and attaching of cloths as presented by him. P.W.19 - Ranmalbhai Nathabhai Dayakar examined at Ex.42, the then P.S.I. of Upleta Police Station was second Investigating Officer of C.R.No.73/85. P.S.I. Zala had entrusted all the papers of his investigation to this witness. According to this CR.A/1145/1986 23/39 JUDGMENT witness, he also recorded the statements of other witnesses and drew the panchnama of the body of the injured Joga Giga by which blood stained cloths were also attached. When investigation was over, he submitted a charge-sheet. The witness cross-examined by the defence. This is all the evidence of the prosecution. [13] From the above evidence, learned trial Judge came to the conclusion that FIR was filed by the informant quickly and injured was taken to hospital immediately and, thereafter, he was transferred to Junagadh on account of serious nature of injury. The accused failed to suggest any enmity between the parties as to why and how the accused would be involved by the prosecution witness in such a case. As per the medical evidence, the injury was found serious. In support of the prosecution case about injury caused to injured, injured as well as other witnesses of the prosecution are creditworthy and CR.A/1145/1986 24/39 JUDGMENT believable and they were corroborated by two Medical Officers. There was no reasons why the injured should not be believed when he is supported by other witness about the quarrel. The learned trial Judge observed that the prosecution though was not able to prove other injuries on the body of the injured Joga Giga, the prosecution proved the fracture of frontal bone on scalp. The medical evidence could not be dislodged by the defence in the cross- examination. According to the learned trial Judge, the prosecution through the evidence was able to prove that all the three accused on 28th June, 1985 at 5.00 p.m. at Upleta Bus Stand caused injury to deceased Joga Giga. Learned trial Judge further observed that looking to the evidence on record and on scanning the provision of Section 307 of the Indian Penal Code, the evidence was not sufficient to prove that the death of Joga Giga was attempted by the accused. It could not be