CR.A/50/1992 1/35 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 50 of 1992 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? ========================================================= BHIKHUBHAI VASTABHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : NOTICE UNSERVED for Appellant(s) : 1, MR YOGESH S LAKHANI WITH MR.SAIYED, LD. ADVOCATE for Appellant, MR.BHATE, ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 10/07/2007 ORAL JUDGMENT The appellant-original accused No.1 of Sessions Case No.1 of 1987 has preferred this appeal against CR.A/50/1992 2/35 JUDGMENT the judgment and order of conviction and sentence dated 13th January, 1992 recorded by the learned Additional Sessions Judge, Amreli for the offence punishable under Section 326 of the Indian Penal Code whereby the appellant has been directed to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/-, in default of making payment of amount of fine, to undergo rigorous imprisonment of one year. 2. The appellant has expressed his grievance against the judgment and order under challenge by indicating various grounds which are mentioned in paragraph 3 of the memo of appeal. Mr.Lakhani, learned Counsel appearing with Mr.S.S.Saiyad, for the appellant has taken me through all the relevant grounds of challenge and also the evidence led by prosecution during the course of trial. 3. On the strength of one complaint registered by Bagasara Police Station being Crime Register No.I- 51 of 1986, the Police had investigated the crime for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code and under Section 135 of the Bombay Police Act against the two accused CR.A/50/1992 3/35 JUDGMENT persons, viz., the present appellant, Bhikhubhai Vastabhai and one Devkubhai Lakhabhai. After the investigation, both the accused were charge-sheeted and on completion of the trial, the Court acquitted the original accused No.2-Devkubhai Lakhabhai from the charge levelled against him. However, the learned trial Judge has held that present appellant-original accused No.1 guilty for offence punishable under Section 326 of the Indian Penal Code but not under Section 307 of the Indian Penal Code, as charged. 4. While assisting the Court, learned Advocate for the appellant and learned A.P.P., for the respondent-State has taken this Court through the judgment and order under challenge and the relevant features which ultimately led the Court to a finding that prosecution has established the charge of offence punishable under Section 326 of the Indian Penal Code beyond reasonable doubt. 5.1 To prove the charge the prosecution has examined 14 witnesses referred to in paragraph 3 of the impugned judgment and order. Out of 14 witnesses, two witnesses are doctor, examined vide Exh.18 and 21 respectively and three witnesses were Panchas who CR.A/50/1992 4/35 JUDGMENT have tendered their evidence at Exhs.26, 28 and 29 in the various Panchnamas drawn. One Executive Magistrate, Ishwarlal Hiralal Shukla was also examined at Exh.31 to prove dying declaration that was recorded when the injured witness, Goganbhai Rambhai was under treatment and his condition was found serious by the doctors who were treating him on account of blood loss. Three important witnesses, Ramnikbhai Kanjibhai, examined at Exh.11, Nagjibhai Bhathabhai, examined at Exh.12 and Janakbhai Ratilal, examined at Exh.17 were cited as witnesses as if they were the eye-witnesses to the incident. However, none of these three witnesses have supported the case of prosecution and these witnesses were declared hostile. The case of the prosecution was mainly resting on the crucial evidence of the complainant, Balabhai Parshottambhai, examined at Exh.7. According to prosecution the complainant was present at the time when the victim was assaulted by accused persons and some other persons were present, who had shifted the injured-Gogan to Bagasara Hospital. But the complainant has not supported the prosecution and was declared hostile. 5.2 The learned trial Judge has recorded the CR.A/50/1992 5/35 JUDGMENT conviction on the strength of the evidence led by prosecution viz., the Prosecution Witness No.2, Gogan Rambhai (Exh.9) and his brother, Prosecution Witness No.3, Shambhubhai Rambhai (Exh.10). The learned trial Judge has also considered the facts emerging from the Panchnama drawn in presence of Panchas by the Investigating Officer, Prosecution Witness No.14, Harjibhai Parshottambhai Nandasan examined at Exh.34. One Panch Witness, Savjibhai Raghavbhai who examined at Exh.26 has materially supported the prosecution case. This witness has proved the collection of blood, etc., from the place of incident and has stated that spot of the incident i.e., place of actual assault was shown to Panch Witnesses by the complainant. 6. It is not a matter of dispute that the complaint was lodged by the complainant, because the complainant has identified his signature on the original complaint shown to him and on the strength of the very complaint, the offence was registered at about 12:30 p.m., on 25/09/1986 by Bagasara Police Station. It is the say of P.S.I., Shri Nadasan, who recorded the complaint and ultimately investigated the crime, that he recorded the complaint of the CR.A/50/1992 6/35 JUDGMENT complainant at Bagasara Hospital. Therefore, presence of complainant at Bagasara Hospital is not under any serious dispute. Both the doctors have narrated the details of injuries noticed by them when the injured witness was brought before them after the assault, firstly at Bagasara and then at Amreli Hospital. 7. It is in evidence that after assault, injured witness-Gogan was taken to Bagasara Hospital immediately and at that time Dr.Selarbhai Golanbhai Kamalia, Medical Officer on duty examined and treated the injured. During the treatment, all the while, the injured was on the stretcher and immediately thereafter he was referred to the Hospital at Amreli, a bigger and better hospital in the district headquarter where Dr.Yasmin Kaba (Exh.21), Medical Officer had examined the injured-Gogan and treated him. It is in evidence of Dr.Yasmin Kaba that as it was necessary to shift the patient to Ahmedabad for further better treatment and diagnosis, she referred the patient to Ahmedabad after treating him. 8. It is not necessary to reproduce the facts narrated by the witnesses who examined by prosecution. However, the Court can consider the CR.A/50/1992 7/35 JUDGMENT relevant parts of the evidence pointed out by Mr.Saiyad as well as by Mr.Bhate, learned A.P.P., while appreciating their submissions and to appreciate the rival side contentions placed before the Court, it would be beneficially to state the basic story of prosecution. The gist of the prosecution case is reflected in the charge framed at Exh.2 and it would be sufficient to reproduce the relevant part of the charge framed by the learned trial Court. The appellant was asked to face, of course, along-with the other co-accused the following charge. “That on 25/09/1986 at about 11:40 noon or thereabout you both the accused were having an intention to commit murder of witness, Goganbhai Rambhai Koli, resident of Bagasara near Gayatri Rewinding situated in Amrapara Area of Bagasara Village, Tal.Kunkavav-Vadia of District Amreli, and were also having an intention to give filthy abuses to him in public so as to breach public piece and tranquility and also were having an intention to commit breach of Notification dated 12/09/1986 issued by Additional District Collector, Amreli prohibiting keeping of arms / weapon. With a view to fulfill your aforesaid intention, you accused-Bhikhu Vasta inflicted blows with sword on witness Gogan Ram on his hand on left side behind the ear, on head, on left CR.A/50/1992 8/35 JUDGMENT shoulder, on right hand and also on other parts of the body and caused deadly injuries and thereby caused grievous hurt to him and thus attempted to commit his murder. That you accused-Devkubhai with a intention to murder / kill, witness, Gogan instigated accused No.1. By doing so you both the accused have committed an offence punishable under Section 307 read with Section 34 of the Indian Penal Code, and this Court has jurisdiction to try you accused for the aforesaid offences. Further, on the same date, time and place you accused persons, with a view your fulfill their aforesaid motive, you both the accused have given filthy abuses to the witness, Goganbhai Rambhai, resulting into breach of public piece and tranquility and, by doing so you both the accused have committed an offence punishable under Section 504 read with Section 34 of the Indian Penal Code, and this Court has jurisdiction to try you accused for the aforesaid offences. Further, on the same date, time and place you accused persons, with a view your fulfill their aforesaid motive, you both the accused, though Notification dated 12/09/1986 issued by the Additional District Magistrate, Amreli regarding prohibition to keep arms, you both the accused CR.A/50/1992 9/35 JUDGMENT possessed deadly weapon like sword and assaulted witness Gogan Ram. By doing so by you both the accused have committed an offence punishable under 135 of the Bombay Police Act and this Court has jurisdiction to try you accused for the aforesaid offences.” 9. As mentioned earlier, the original accused No.2 has been acquitted and the present appellant- accused is not found guilty of the charge of offence punishable under Section 504 or the offence punishable under Section 135 of the Bombay Police Act. The appellant-original accused No.1 is also not found guilty of the charge of offence punishable under Section 307 but he has been held responsible for the offence punishable under Section 326 of the Indian Penal Code individually. It may be mentioned that acquittal of accused from the charge of offence punishable under Section 135 of the Bombay Police Act is on technical ground. 10. The present appeal is preferred under the provisions of Section 374 read with Section 386 of the Code of Criminal Procedure and therefore this Court can re-appreciate the entire evidence led CR.A/50/1992 10/35 JUDGMENT during the course of trial and record its own finding or by adopting the reasons assigned by the trial Court and the judgment under challenge can be upheld. It is also within the domain of this Court to reverse or to alter the findings on account of infirmities and errors but the Court obviously shall have to state the nature of infirmities / errors and their ultimate impact on the legality and validity of the finding recorded. It should be a reasoned order. 11. It is submitted by Mr.Saiyed that the finding recorded by the learned trial Judge is erroneous and the same is based on improper and illegal appreciation of evidence. While developing the argument, Mr.Saiyed has taken this Court through the depositions of doctors as well as injuries certificates (Exh.19 and 23 respectively) issued by both the doctors. It is submitted that if the evidence of both the doctors are considered, the appellant-accused could not have been linked with the crime for the offence punishable under Section 326 of the Indian Penal Code because to bring home the charge of offence punishable under Section 326 of the Indian Penal Code, the prosecution is supposed to prove that the accused was responsible in inflicting CR.A/50/1992 11/35 JUDGMENT the grievous hurt defined under Section 320 of the Indian Penal Code. Mr.Saiyed has taken me through the relevant Sections 320 and 326 of the Indian Penal Code. According to him, the use of word 'serious' would not make any injury grave or grievous hurt within the meaning of Section 320 of the Indian Penal Code. It is further submitted that Dr.Yasmin Kaba has accepted that the patient was referred to orthopedic division and x-rays were taken but no fractures were detected and injuries were simple in nature. There is controversy even as to the use of sword and inconsistency found in the evidence of both the doctors on the contrary rules out the possibility of use of muddamal sword in the assault. The medical evidence also gives impression that one hard and blunt substance must have been used and was used or the assault must be more than one and in such a fact situation, the trial Court ought not to have held that prosecution has proved its basic case beyond reasonable doubt. Where there is a scope of involvement of other persons in the event then why the theory placed by the accused during the course of cross-examination of witnesses including the injured and his brother should not be believed, is a question paused by Mr.Saiyed. The theory of defence is that CR.A/50/1992 12/35 JUDGMENT injured was playing carom with his friends on the public street encroached upon which had only 20' width and 6' land was grabbed by the people who are playing carom including the victim. In the morning time between 10:30 or 11:30 normally one would not play carom that too on a public street. It is suggested to the injured that they were staring to the female members of the society who were passing through that area after fetching water from the hand- pump which was located just near to the place where the incident had occurred. 12. It is also argued that when the complainant is not believed qua the involvement of accused No.2 in the crime then why the version of the complainant should be believed i.e. qua the involvement of the accused No.1, present appellant. According to learned Counsel for the appellant, this is a clear case of false implication and that too on account of grudge that complainant had developed in his mind on account of incident that had occurred prior to two months from the date of incident and for that Mr.Saiyed has taken me through the evidence which is at page No.28 of the paper-book. The person who can be said to be an independent and according to prosecution was a CR.A/50/1992 13/35 JUDGMENT person at the spot having supported the case of prosecution, it would be risky to accept the bare words of the injured in such or similar cases. It was possible for the trial Court to record the statement of the members residing in the very area. No carom board and other relevant material was found at the time of drawing Panchnama and obviously therefore the Police had not seized or recovered such articles. The muddamal sword is recovered by the Investigating Officer after lapse of several days under a pretext of a discovery Panchnama. The learned trial Judge has grossly erred in accepting the evidence of prosecution that the very muddamal sword was used in the incident and the accused is the person who was holding the muddamal sword and had assaulted the injured with the very sword. The evidence of F.S.L., ought not to have been given any weightage when the discovery of the muddamal weapon is found doubtful. 13. One of the point advanced by Mr.Saiyed is that complainant is also not sure that from which direction the assailant had approached him and had given blow. At one place he had told that the assailant had come from back side and had given three to four blows (page 30 of the paper-book) and in the CR.A/50/1992 14/35 JUDGMENT very evidence has stated that assailants had come from the opposite direction, i.e., from the western side of the place where the injured was sitting and both of them had come and some conversation had taken place between them prior to assault (page 28 of the paper-book). These two contrary stories placed by injured victim makes the prosecution case doubtful. One more infirmity in the evidence of the prosecution is that the very injured person had an opportunity to disclose the name of the assailant at the earliest when he was being treated by a doctor at Bagasara Hospital and at that time he was approached by P.S.I., Mr.Nandasana. Mr.Nandasana has stated that he had approached the injured when he was being treated but according to Mr.Nandasana injured was not able to state anything in detail and therefore he recorded the complaint of complainant. According to Dr.Kamalia, the injured was conscious and he never become unconscious and therefore the belated discloser of the name of the assailant by the injured should be viewed with doubt. When the body of the injured person was firstly examined by Dr.Kamalia, he found ten injuries, however when he was taken to District Head Quarter, i.e. Government Hospital, Amreli, Dr.Yasmin Kaba had noticed eighteen injuries. CR.A/50/1992 15/35 JUDGMENT The prosecution ought to have resolved this confusion as to why the other injuries were not noticed by Dr.Kamalia. Mr.Saiyed has averred that it appears that the prosecution was intending to put up a curtain on certain injuries that could have been caused by hard and blunt substance and as the story was placed before the Police that both the accused were armed with a sharp cutting weapon viz., sword and knife, the prosecution was supposed to explain as to how number of injuries were found on the body of the injured which could have been caused by hard and blunt substance. The prosecution has not successfully answered this fact situation. According to Mr.Saiyed when complainant has specifically stated that he has not lodged the complaint then his version should not be believed by this Court and it should be observed that somebody else has given a complaint with ulterior motive to implicate the accused in such a serious offence. It is also argued that the learned trial Judge has erred in considering the dying declaration and deposition of Mamlatdar. The Mamlatdar was not supposed to examine at all. As per the settled legal position, the Mamlatdar cannot prove the statement of a living person, as the injured was survived. The dying declaration cannot CR.A/50/1992 16/35 JUDGMENT be termed as dying declaration within the meaning of Section 32 of the Evidence Act, so it appears that the learned trial Judge was under the influence of the facts stated by the Executive Magistrate examined during the course of trial to prove the dying declaration recorded. 14. Mr.Bhate, learned A.P.P., while resisting the submissions made by Mr.Saiyed has argued that the finding of guilty recorded by the learned trial Judge is based on sound reasons and there is no perversity or illegality in appreciating the evidence led by prosecution witnesses. The trial Judge was supposed to consider the quality of the evidence led by prosecution and if certain witnesses have not supported the case of prosecution, the learned trial Judge can ignore that part of the evidence. The duty of the learned trial Judge was to separate chaff from the grain and that exercise has been done in the present case by the learned trial Judge by accepting the version of the injured witness and also his brother, who reached to the spot in couple of minutes. The presence of complainant at the spot of incident is found established by the conduct of that very witness. How could the complainant be there in CR.A/50/1992 17/35 JUDGMENT the Hospital at Bagasara during odd hours. Normally, in time between 12:30 or 1:00 either one would be at working place or at a lunch table not in the Hospital unless some close relatives is admitted in the hospital for treatment. There was no reason for the trial Court to discard the evidence of P.S.I., Shri Nandasana that he had recorded the complaint of Prosecution Witness No.1 (complainant) at Bagasara Hospital because the signature of the complainant is not under a serious dispute and then version of the injured witness could have been accepted that complainant was one of the persons who had taken the injured to the hospital. According to Mr.Bhate, normally a person present, injured can be taken to hospital for treatment in such a situation. The injured had reached to the hospital without Police Yadi. The hospital case papers indicate that injured was brought by the persons who were relatives of the injured, so, this endorsement made by the Doctor makes the version of the injured genuine and reliable that he was taken to hospital by the persons who were playing carom with him on the street. It is true that normally people would not play a carom board game between 10:30 and 11:30 in the morning. But the human conduct is found strange on number of occasions CR.A/50/1992 18/35 JUDGMENT and the complainant has specifically stated that why he was playing carom on odd hours. It is very likely that he may have reached to the spot but met with a challenge given by the accused after lapse of about two months. Because according to the complainant he was asked not to enter into particular area of town Bagasara known as Amrapara. According to Mr.Bhate, non-seizure of carom board would not make the incident doubtful because the Panchnama of the scene of occurrence is proved by Panch Witness and P.S.I., Shri Nandasana which is sufficient evidence to reach to a conclusion that the incident had occurred at a particular place mentioned in the Panchnama of the scene of offence. No incriminating article viz., weapon was lying at the spot. However, one circumstantial evidence was positively there i.e., blood of the injured. The F.S.L. Report clearly reveals that the earth collected from the place of incident is found with blood of group 'A'. The blood on the clothe of the injured is also of group 'A'. None of the doctors were suggested a question by the defence Counsel that the blood group of the injured was not of group 'A'. There was nothing on record to show that hospital authority had ever analyzed the blood group of the injured. CR.A/50/1992 19/35 JUDGMENT 15. There is enough force in argument of learned A.P.P., that if the resident of the area of Amarapara had objection against playing of carom board game, that was being played on the very day and time and they were annoyed with the activity of the male members sitting at the corner of the street because women of the area were passing through that corner after fetching water from hand pump, then they would have assaulted everybody who were playing carom board game and not only the injured witness. As such there is no reference of hand pump in the Panchnama. Of course, it is not in evidence that what was the population of Bagasara at relevant point of time but a street having width of about 20' cannot be said to be abnormally small entry portion. If the area of 6' was encroached upon by the members who were playing carom then also there would be about 14' of gap and a small vehicle can also pass through that area. A buloockcart or handcart can also pass through that gap. Nobody made a complaint either against the injured or any other members who were playing on the street. It is the experience of the society that number of persons in the society practically are killing their time for want of gainful employment or CR.A/50/1992 20/35 JUDGMENT for any other reasons best known to them. As per evidence it was the first day of the injured to go into Amrapara area. So, according to Mr.Bhate, the incident itself corroborates the story placed by injured that he would not enter into Amarapara area on account of quarrel that had taken place before two months at a 'Pan Shop' run by the injured. Therefore, the learned trial Judge cannot be said to have committed grave error in accepting the version of the injured witness. On the contrary, the settled legal position is that if the Court is able to listen the ring of truth from any single witness, the accused can be linked with the crime. There are no material contradictions nor conflict in the evidence as such