CR.A/1360/1999 1/55 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1360 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= HIKHA JIVA GUJARIA & 3 Versus STATE OF GUJARAT ========================================= Appearance : MR YOGESH S LAKHANI for Appellants MS ARCHANA RAVAL APP for Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 12/12/2008 CR.A/1360/1999 2/55 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 Instant Appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973, and is directed against the judgment and order dated 13th of October, 1999, rendered by learned Additional Sessions Judge, Junagadh, in Sessions Case No. 164 of 1996, whereby present appellants No. 1 and 2 came to be convicted for the offence punishable under Section 302 of the Indian Penal Code, while appellants No. 3 and 4 came to be convicted for the offences punishable under Sections 302 to read with Section 34 of the Indian Penal Code. Each of the appellants was sentenced to undergo imprisonment for life and to pay fine of Rs. 500/­ in default to undergo simple imprisonment of 30 days. 2 As per the prosecution case, incident occurred on 10th of June, 1996, near the statute of Ambedkar at old bus­stand chowk, in the town of Visavadar, District – Junagadh, wherein Samat Sajan Charan died on account of injuries. On that day, deceased Samat Sajan and his brother PW­4 Pala Sajan, residents of Haldarwa nesh (hamlet), came to village Visavadar to sell ghee and purchasing of household things. Both these brothers reached Visavadar at about 8.00 a.m. and went to the shop of one Jagadishbhai Chandubhai to sell ghee. Thereafter, deceased Samat Sajan separated from his brother Pala CR.A/1360/1999 3/55 JUDGMENT Sajan and asked him to complete the purchasing, and that he (deceased) was going towards old bus stand and thereafter he (deceased) wanted to go to Junagadh. Now, after the deceased and his brother Pala Sajan separated, complainant Oghad Pancha met deceased Samat Sajan in the old bus stand chowk. They exchanged pleasantry and talked about a plot of land, which was to be purchased by the complainant. In the meantime, one Kathi Jagubhai and forester Chavdabhai also came there and deceased suggested to take tea together. All of them took tea at the hotel of Amubhai and thereafter complainant and deceased both went to see the plot of land and returned after about one and half hours. While when they reached at near new bus stand, in the chowk of statute of Ambedkar, deceased was walking behind the complainant and heard beckoning shouts. When complainant looked behind, he found four persons, which turned out to be four appellants herein in TI parade, were beating Samat Sajan with axe (`farsi') and sticks. Jagubhai Kathi, who was standing near, attempted to prevent the appellants, but in the meantime, all the four appellants started suddenly beating the deceased Samat. Out of four appellants, two were having axes and the two were having sticks. One of the appellants gave consecutive blows on the right side of the head and behind the ear of the deceased. The second appellant, who had an axe, also gave blows on the head of the deceased. It was turned out CR.A/1360/1999 4/55 JUDGMENT during investigation that accused No.1 Hikha Jiva Gujaria and accused No.2 Gogan Kalabhai had axes with them and accused No.3 Harsur Vala Gujaria and accused No.4 Gabha Valabhai Gujaria had sticks with them. Accused No.2 Gogan Kala Gujaria had also inflicted an axe blow on the lower part of the body of the deceased and attempted to extract an axe from the body of the deceased. He could not do it. PW­4 Pala Sajan, according to prosecution case involved to Lakhabhai Sidabhai Gujaria, who was 5th accused and acquitted by the Trial Court and he was saying that to kill Samat. It was also transpired from the prosecution case that the deceased was friend of complainant Oghad Pancha and they had relation for last five years. Wife of the complainant was made sister by the deceased. The cause of dispute was that daughter of one Charan Hikha Mandan was kidnapped by the deceased and thereafter she was relieved and, therefore, for the last 15 years between these families, the enmity was continued. The complainant Oghadbhai Pancha did not know the names of the accused at that time, but in T.I. Parade, he identified four accused to be the participating accused along with weapons attributed to them. During investigation, in all six accused were revealed and charge sheeted. Accused No. 5 Lakhabhai Sidabhai Gujaria came to be acquitted by the Trial Court by judgment and order impugned in this Appeal and there is no Appeal against the acquittal by the State. Accused No. 6 CR.A/1360/1999 5/55 JUDGMENT Valabhai Bhimabhai Gujaria died during trial and trial was abated as against him. 3 According to the further case of the prosecution, PW­17 Pradipkumar Odhavji Bhatt was serving as PSI Visavadar Police Station and was in patrolling. At that time, he received information that a murder is committed in the chowk of old bus stand at Visavadar. Therefore, he immediately went to said chowk and found the dead body of the deceased lying in blooding condition. Complainant Oghad Pancha was present at that time and he gave the complaint, which he produced on record at Exhibit­53. The said complaint came to be recorded in Visavadar Police Station by PW­15 Jujarsinh Ramsinh Thakore, who was In­charge of Police Station. The complaint was forwarded by PW­17 Pradipkumar Odhavji Bhatt to the police station. Investigation was entrusted to PW­17 and he arranged to draw the inquest panchnama and forwarded the dead body for the postmortem at Government Hospital. He also draw the panchnama of scene of offence and from the scene of offence, bloodstained earth was seized. He recorded the statements of witnesses Pala Sajan and Jagubhai Bhimabhai Khuman. One motorcycle belonged to accused No.6 was found near the scene of offence was seized. The accused were arrested and the weapons were recovered from them. Since the complainant Oghad Pancha did not know the accused, test identification parade was CR.A/1360/1999 6/55 JUDGMENT held on 13th of April, 1996 by PW 16 Vishalbhai Rudabhai Bharvad, Executive Magistrate, Visavadar, wherein the present appellants were identified by the complainant Oghad Pancha. Therefore, charge sheet came to be filed in the court of learned JMFC, in all, against six accused. Out of the six accused, accused No.1 died during trial and accused No.6 Lakhabhai Sidabhai Gujaria was acquitted by the trial court. 4 The case was committed to the Court of Sessions and was registered as Sessions Case No. 164 of 1996. Charge came to be framed against all the accused by learned Additional Sessions Judge, Junagadh, on 28th of August, 1998, vide Exhibit­1. Charge was read over to all the six accused. They pleaded not guilty and, therefore, the evidence of prosecution was led. Prosecution examined as many as 17 witnesses and produced on record voluminous documentary evidence. After the evidence was over, the learned Trial Judge brought incriminating circumstances appearing in the evidence against the accused to the notice of the accused, but the case of each of the accused was of total denial. After hearing the prosecution as well as defence, the learned Trial Judge was pleased to acquit accused No.5 Lakhabhai Sidabhai Gujaria and convicted the present appellants i.e. accused No. 1 to 4 for the offences punishable under Sections 302 and under Section 302 to read with Section 34 of the Indian Penal Code. CR.A/1360/1999 7/55 JUDGMENT Accused No.6 died during trial. The learned Trial Judge did not believe the case of unlawful assembly. 5 To prove its case, prosecution examined 17 witnesses. PW­1 Dr. Kadvabhai Gopalbhai, examined at Exhibit­13, being Medical Officer of Visavadar Community Health Center, performed postmortem on dead body of the deceased from 1.30 p.m. to 3.30 p.m. The dead body had some articles, which were seized by the Doctor and were given to the Police. Clothes upon the dead body were found blood stained. Two ST bus tickets of Rs. 3.00 and O.50ps respectively were also found. In dead body, there was one axe, which was extracted and handed over to the Police, which was seized by the Police. According to the Dr. Kadvabhai Gopalbhai, the deceased had the following external injuries. 1. Incise wound on right occipital region 6” x 6 1/2” brain deep oblique upto back of ear. Brain matter seen and bulged. 2. Incise wound on right occipital region below & parallel to injury No.1 overlapping each other on anterior side. 5” x 1” brain deep oblique. Brain matter presents bulged. 3. Incise wound on right parietal region 4” x 1” brain deep A.P. Direction. CR.A/1360/1999 8/55 JUDGMENT 4. Incise wound on left temporal parietal region 6 1/2” x 1” x brain deep oblique. Brain matter bulged. 5. Incise wound on back starting from right renal angle towards left renal area and flank upto anterior axillary line. Axe was impacted in the wound on left flank by 2” abdominal wall flap. The axe entered from left renal region and excited from left flank. The handle of axe was lying towards left axilla. Sharp portion of the axe came out from wall. 6. Abrasion on right dorsum of hand 2” x 1” oblique. On internal examination, the Doctor found the following injuries. 1. Right side occipital region 6” x 1” oblique A.P. Corresponding to injury No. 1, 2 of Column No.17. 2. Right parietal bone 4” x 1” A.P. Direction corresponding to injury No.3 of Column No. 17. 3. Left temporal & parietal bone 6 1/2” x 1” oblige A.P. Corresponding to injury No.4 of Column No. 17. 4. Cartex and medulla of right occipital area of brain cut 6” x 1 1/2” deep corresponding to injury No. 1, 2 of Column No.17. Blood vessels and meninges also cut. 5. Cartex and medulla of left temporal parietal region of brain cut. 6 ½ “ x 1/2” x 1” deep oblique corresponding to injury No.4 of Column No.17 blood vessels & meninges CR.A/1360/1999 9/55 JUDGMENT cut. 6. Free blood & clots present over surface of brain. According to Dr. Kadavabhai Gopalbhai, the injuries were ante­mortem and the cause of death was due to intracarnial hamerrohage and injury to brain. The injuries were sufficient in ordinary course of nature to cause death. Injuries No. 1 to 5 above could be caused by sharp cutting weapon while injury No.6 could be caused by hard and blunt substance. This witness has been cross­ examined. PW­2 Maksud Ahmad Ibhrahimbhai, examined at Exhibit­18, was serving as Circle Inspector in Revenue Department and had prepared a map of scene of offence, which he produced at Exhibit­20. PW­3 Oghad Pancha, examined at Exhibit­21, was complainant and eye witness. PW­4 Pala Sajan Taparia, brother of the deceased, examined at Exhibit­22, is also an eye witness of the incident. PW­5 Jagubhai Bhimabhai Khuman, examined at Exhibit­23, was an eye witness, according to the prosecution case, but he did not support the prosecution case and, hence, he was declared hostile. PW­6 Durlabh Virabhai Dabhda, examined at Exhibit­24, is also a panch witness of scene of panchanama and he stated that in his presence the CR.A/1360/1999 10/55 JUDGMENT panchnama of scene of offence was drawn, which he produced at Exhibit­25. Complainant Oghadbhai showed the scene of offence. PW­7 Natvarlal Gaurishankar Rajyaguru, examined at Exhibit­33, is a pancha of panchnama at Exhibit­34, by which police has seized muddamal articles including the clothes worn by the deceased. PW­8 Suresh Jagjivan Sadrani, is panch of panchnama at Exhibit­36, by which motorcycle of the original accused No.6 was seized. He is also the panch of panchnama of test identification parade, by which the complainant identified all the four appellants. The panchnama is produced at Exhibit ­ 37, but this panch has neither supported the panchnama at Exhibit ­ 34 nor the panchnama at Exhibit­37 and, hence, he was declared hostile by the prosecution and confronted with the panchnama. PW­9 Somabhai Danabhai Vala, examined at Exhibit­38, is also a panch of panchnama at Exhibit­36, by which motorcycle of accused No.6 was seized and he has also not supported the prosecution case. PW­10 Vallabhbhai Ramjibhai Gujariya, examined at Exhibit­39, is second panch of test identification parade panchnama at Exhibit­40 is also panch of panchnama at Exhibit­34, by which the clothes upon the dead body were seized by the police and muddamal articles which were found from the body were also seized, but this witness has also not supported the prosecution case. PW­12 Govindbhai Khima Vora, examined at Exhibit­41, is panch of panchnama at Exhibit­42 and CR.A/1360/1999 11/55 JUDGMENT Exhibit­43. Panchnama at Exhibit­42 is the panchnama of arrest of accused No.5 Lakhabhai Sidabhai Gujariya, who has been acquitted by the Trial Court, while panchanama at Exhibit­43 is panchnama by which present appellants were arrested and from their custody, weapons were recovered. However, this witness did not support the prosecution case in respect of both the panchnamas and, therefore, prosecution cross­ examined the witness and confronted him with both the panchnamas. PW­13 Bhabhlubhai Selarbhai Chand, examined at Exhibit­44, is second panch of panchnama – Exhibit­43, by which all the four appellants were arrested, but he has also not supported the prosecution case. PW­14 Badha Mulu Vank, is examined at Exhibit­45, is a panch of panchnama at Exhibit­42, by which accused No.5 Lakhabhai Sidabhai Gujariya was arrested. This witness has also not supported the prosecution case. PW­15 Jujarsinh Ramsinh Thakore, examined at Exhibit­46, was in­ charge of Visavadar Police Station on 10th of June, 1996 and at about 11.05 hours PSI Pradipkumar Odhavji Bhatt, forwarded a complaint for registration of crime and he had registered the crime. He produced station diary entry of registration of crime at Exhibit­47. PW­16 Vishalbhai Rudabhai Bharvad, examined at Exhibit­49, is the Executive Magistrate and Mamlatdar of Visavadar, who conducted the test identification parade on 13.06.1996 at 3.30 p.m. whereby the complainant Oghad Pancha identified the present appellants and that CR.A/1360/1999 12/55 JUDGMENT panchnama is produced at Exhibit­37. He also produced a letter sent by PSI, Visavadar Police Station, requesting him to hold test identification parade, which he placed on record at Exhibit­50. He, vide his letter produced at Exhibit­51, informed the Police about arranging of T.I. parade. PW­17 Pradipkumar Odhavji Bhatt, examined at Exhibit­52, who was the then PSI of Visavadar Police Station and he reached at the scene of offence and recorded the complaint of complainant Oghadbhai Pancha and investigated the offence. 6 In nutshell, this is the evidence of the prosecution. In addition to this, postmortem note is produced at Exhibit­15 and the complaint is produced at Exhibit­53. 7 Learned Senior Counsel Mr. Y.S. Lakhani, for the appellants, vehemently urged that the whole case rests upon the evidence of PW­3 Oghadbhai Pancha and PW­4 Pala Sajan Taparia. Admittedly, Oghadbhai is thickly related to deceased while Palabhai is brother of the deceased and, hence, both are related and interested witnesses. The third circumstance which according to Mr. Lakhani, learned counsel, appears in the evidence of T.I. Parade and so called evidence of Forensic Science Laboratory­Exhibit­6. Only one independent witness is examined as PW­5 Jagubhai Bhimabhai Khuman, who has turned CR.A/1360/1999 13/55 JUDGMENT hostile and has not supported the prosecution story. According to learned Advocate for the appellants, both these witnesses i.e. PW­3 Oghadbhai Pancha and PW­4 Pala Sajan, are got up witnesses and their presence at the place of incident is doubtful and since Oghadbhai admitted in his deposition that the wife of the witness was believed sister of the deceased and they were thickly related, their evidence must be scrutinized carefully. When according to learned Advocate for the Appellants, the evidence of Oghadbhai is scrutinized, he stated that, when he met deceased Samat, Samat was alone and Pala was not present with him, indicating that Pala was a got up witness. In clear terms, witness stated that, he was walking ahead of the deceased and when he looked behind, injuries were already inflicted on Samat. He was not sticking to the story of FIR and did not depose that how the incident occurred nor stated that who inflicted which injuries nor stated that how many injuries were inflicted by each of the accused. In this regard, attention of this Court is drawn to the deposition of Oghadbhai wherein in cross­examination he stated that on the day of test identification parade, from police station to the office of Mamlatdar, one Head Constable Maldebhai had taken him and the accused and he was made to sit in the room which was adjoining to the Office of Mamlatdar. It is submitted that, therefore, it is clear that before T.I. Parade, the accused were shown to this witness and there was no CR.A/1360/1999 14/55 JUDGMENT meaning of T.I. Parade when this witness and accused were together and were taken to the Mamlatdar Office. Maldebhai, who is Head Constable, has been referred in the case but the prosecution has not examined this witness. It is also stated that where the incident occurred is densely situated area, which is apparent from the cross­examination of both the witnesses and no independent witnesses is examined by the prosecution. It is submitted by the learned Advocate for the appellants that if we see the story narrated in the FIR and deposition of complainant Oghadbhai, complainant differs in major portion of story even in attributing the role to each of the appellant, and the story about after the incident. According to FIR and the deposition of the Investigating Officer PW­17 Pradipkumar Odhavji Bhatt, he recorded the FIR at the scene of offence because when he visited the scene of offence, he found the crowd and from crowd, complainant Oghadbhai Pancha was standing 40 to 50 feet away from the scene of offence and he came to him and he recorded the complaint at Exhibit­53 on the bonnet of the government vehicle. It is submitted by learned Advocate for the appellants that in this regard, in cross­examination, witness Oghad Pancha stated that after the incident, he went to his house and reached at this house at 11.00 a.m. When he reached at his house, one Head Constable Maldebhai had been to his house and Maldebhai took him to the police station, where the complaint came to be recorded. It is CR.A/1360/1999 15/55 JUDGMENT submitted that therefore this is a serious contradiction in the prosecution case and the story narrated in the complaint is falsified by the contradictions in the evidence of the Investigating Officer as well as this witness Oghad Pancha in respect of recording of the complaint and, therefore, the evidence of this witness must not be believed. In respect of T.I. Parade of the accused by witness Oghad Pancha, it is submitted by learned Advocate for the appellants that in his evidence, Oghadbhai stated that at the time of T.I. Parade, all persons worn clothes of different colours and the persons who had identified by him were in white clothes. It is submitted that this was the second opportunity for the witness to identify the accused easily or to provide clue by the investigating agency. In any case, it is submitted by learned Advocate for the appellants that this witness is thickly related and when the complainant submitted detailed story in FIR and described the incident differently in deposition and since there is a contradiction in recording of the FIR, it clearly appears that, this witness is got up one and should not be believed. About other eye witness PW­4 Pala Sajan, it is submitted that this witness stated that he and deceased, being brothers had come to Visavadar together and had sold ghee to one Jagadishbhai. According to learned Advocate, this story of the witness is not supported because Jagadishbhai to whom ghee was sold has not been examined. In fact, according to the story which Pala Sajan has CR.A/1360/1999 16/55 JUDGMENT stated, after selling of ghee to Jagadishbhai, deceased and the witness, both separated and had decided to meet at new bus stand, which is away from old bus stand about half kilometer, where the incident occurred. Therefore, there was no reason for this witness to go to the old bus stand. This is so because, from the new bus stand of Visavadar, this witness and the deceased, both were to go to Junagadh in one forest case and, therefore, this is a chance witness and could not be believed. It is submitted that the witness narrated that, he witnessed the incident from near the office of Municipality and distance between the Office of the Municipality and the Chowk, where the incident occurred, is about 500 feet and, therefore, in any case, he must not have seen the incident. It is submitted that very important fact is this that witness attempted to involve accused No.5 Lakhabhai Sidabhai Gujariya who is acquitted by trial court and, therefore, he is not a truthful witness and being brother of the deceased, he posed himself to be an eye witness. The conduct of this witness is also condemnable because even he being real brother of the deceased and he was near the scene of offence, he did not try to save his brother nor made any such attempt to intervene. It is submitted that the witness stated that his statement was recorded by the police at Haldarwa nesh (hamlet) while, according to the Investigating agency, his statement was recorded on the same day. According to the story which he stated in his CR.A/1360/1999 17/55 JUDGMENT police statement, after the incident, he was frightened and, therefore, he ran towards river, known as `Popatdi' and from there through the railway track he ran to Haldarwa nesh (hamlet). While in deposition, the witness stated that on account of he being frightened, he went towards Hanumanpura and from there he went to Satadhar Road to Haldarwa nesh to convey the incident to his father, but he was informed that his father had been to Visavadar on motorcycle of one Jillubhai Darbar of village Visavadar and, therefore, in one truck he returned to the scene of offence and found that still his brother was lying at the scene of offence and had died. It is submitted that this story has not been stated by the witness and this contradiction is proved in the evidence of Investigating Officer that after the incident, he ran towards the river Popatdi and from there through railway track he went to Haldarwa nesh. It is submitted that if the witness goes to Haldarwa nesh and returned, which is about 15 kms away from the scene of offence and still the witness finds the dead body of his brother at the scene of office, is improbable story and, therefore, this is the indication that the witness is a got up one and not an eye witness. None of the witnesses attributed any specific role to appellant No.3 and appellant No.4 in the evidence and, therefore, in fact, there is no evidence against appellants No. 3 and 4. In fact, it has come in the evidence that the deceased was headstrong person and might have been killed by somebody. There is CR.A/1360/1999 18/55 JUDGMENT no investigation at all on the line that the accused knew that the deceased was coming to Visavadar on that very day. It is submitted that in these circumstances, when both the witnesses, posing themselves to be