CR.A/352/1999 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 352 of 1999 With CRIMINAL APPEAL No. 404 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE DN PATEL ========================================================= 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 ? ========================================================= JAYANTILAL RAYMALJI - Appellant Versus STATE OF GUJARAT & 1 - Opponents ========================================================= Appearance in Criminal Appeal No.352 of 1999 : MR CHIRAG M PAWAR for the Appellants. MR HL JANI, APP for the Opponents. Appearance in Criminal Appeal No.404 of 1999 : MS SADHNA SAGAR for the Appellant. MR HL JANI, APP for the Opponents. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL CR.A/352/1999 2/19 JUDGMENT Date : 10/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE DN PATEL) 1. Criminal Appeal No.352 of 1999 has been preferred by original accused Nos.1 and 3, whereas, Criminal Appeal No.404 of 1999 has been preferred by original accused No.2, against the judgement and order of conviction and sentence dated 23rd February,1999, passed by learned Additional City Sessions Judge, Court No.3, Ahmedabad in Sessions Case No.273 of 1998, whereby each of the present appellants was convicted and sentenced for life imprisonment and to pay a fine of Rs.1000/-, in default, further rigorous imprisonment of two months, for the offence punishable under Section 34 read with Section 302 of the Indian Penal Code. Appellants of Criminal Appeal No.352 of 1999 were also convicted and sentenced to undergo four months' simple imprisonment and pay a fine of Rs.250/- each, in default, to undergo further simple imprisonment of seven days, for an offence punishable under Section 135(1) of the Bombay Police Act. 2. If the facts of the prosecution are unfolded, they are summarized in short, as under: 3. It is the case of the prosecution that on 4th CR.A/352/1999 3/19 JUDGMENT January,1998 at about 22-15 hours, Ashokbhai Bhanji Vanzara was caught hold by accused No.2 Suraj @ Kanio Budhaji Marwadi (appellant of Criminal Appeal No.404 of 1999) and accused No.1 Rajesh @ Lala Jayantilal Waghela and accused No.3 Jayantilal Raymalji Waghela (Appellants of Criminal Appeal No.352 of 1999) have caused injuries by Katar and Knife respectively to Ashokbhai Bhanji Vanzara on the vital part of the body, who expired on the spot. The incident had taken place near house of the deceased. P.W.No.1 Mukesh Ganpatbhai Marwadi, who is cousin brother of the deceased and who is eye-witness, rushed to Amraiwadi Police Station in the city of Ahmedabad and lodged F.I.R. bearing C.R.No.I-11 of 1998 at 22-50 hours on 4th January,1998, wherein, clearly name of accused Nos.1 and 3 have been mentioned along with weapons and their roles, whereas, accused No.2 was not named in the F.I.R, but, the narration was given. Other persons had gone to the Hospital with the body of Ashokbhai Vanzara, where he was examined by Doctor and declared dead. It also appears that police constable at the Hospital i.e. P.W. No.9 namely Rameshkumar Gawade had noted in Hospital Telephone Register maintained by him at Exh-24 that Ashokbhai Vanzara has been done to death by one Bharat Dayal. This message was supplied to Amraiwadi Police Station by telephonic message at 23-05 hours. Thus, the F.I.R. was registered first at 22-50 hours and, subsequently, this message was received from the CR.A/352/1999 4/19 JUDGMENT Hospital. Thereafter, on the very same day, the accused persons were not traceable and, therefore, necessary messages were sent to the concerned Police Station that the accused mentioned in C.R.No.I-11 of 1998 are not traceable and are likely to be flee away. This message was also received by P.W.No.8 Madarsing Bhikhaji Solanki, who is police witness, who arrested all the accused from Ahmedabad Central Bus Depot. Necessary arrest panchnama of accused was reduced in writing at Exh-20. Shirt of accused No.1 was found blood stained and there was recovery of Katar from accused No.1. Investigation was further carried out by P.W.No.11. Accused were charge sheeted and Sessions Case No.273 of 1998 was registered against the accused persons and, upon evidence, accused Nos.1, 2 and 3 have been mainly convicted and sentenced for an offence punishable under Section 34 read with Section 302 of the Indian Penal Code for life imprisonment and to pay a fine of Rs.1,000/-, in case of default, further two months' rigorous imprisonment have been awarded. Against this order, these criminal appeals have been preferred by the appellants. 4. We have heard learned counsel appearing on behalf of the appellants of Criminal Appeal No.352 of 1999 (appeal preferred by original accused Nos.1 and 3), who has mainly submitted that Trial Court has not properly appreciated the evidence on record and CR.A/352/1999 5/19 JUDGMENT prosecution has failed to prove the offence beyond reasonable doubt. Incident had taken place at night hours. Witnesses have failed to narrate as to which weapons was in the hands of which accused. 5. We have heard learned counsel appearing on behalf of the appellants of Criminal Appeal No.352 of 1999 (appeal preferred by original accused Nos.1 and 3), who has mainly submitted that there are material omissions and contradictions in the depositions of P.W.Nos.1 and 7, who are so called eye-witnesses. It has also been submitted by learned counsel for the appellants that Trial Court has failed to appreciate that there were no blood stains on the clothes of accused No.3. If injuries would have been inflicted by accused No.3, there ought to have been blood stains on the clothes of accused No.3. Likewise, it has also been pointed out by reading panchnama of recovery of Katar from accused No.1, that it is highly improbable that accused No.1 was moving with weapon in his pocket. Likewise, discovery of knife is also highly improbable as the same has been recovered from the public place, which is amenable to all. 6. It is also submitted by learned counsel for the appellants that looking to Exh-24, originally Bharat Dayal was accused, but, there was no investigation for his accusation upon Bharat Dayal. The said Exh-24 was not CR.A/352/1999 6/19 JUDGMENT treated as F.I.R. In fact, the information given on telephone at Ext-24, reveals the offence first in point of time. Looking to this evidence, neither accused No.1 nor accused No.3 was referred in the F.I.R. at all. No role is assigned in the said document at Exh-24 and alternatively, it has been argued that no role is played by accused Nos.1 and 3 (appellants of Criminal Appeal No.352 of 1999) to commit the murder of the deceased. They are not hardened criminals and, therefore, prosecution has failed to prove an offence against accused Nos.1 and 3 beyond reasonable doubt and, therefore, order of conviction and sentence passed by the Trial Court deserves to be quashed and set aside. 7. Learned counsel for the appellant of Criminal Appeal No.404 of 1999 (appeal preferred by original accused No.2), submitted that charge and conviction in this case are not consistent. Charge levelled against the accused No.2 is under Section 114 read with Section 302 of the Indian Penal Code, whereas, conviction is under Section 34 read with Section 302 of the Indian Penal Code. This has caused prejudice to accused No.2. No opportunity was given to meet with this charge of Section 34 to accused No.2. They were never sharing any common intention to commit murder of deceased with accused Nos.1 and 3. It has been submitted by learned counsel for the appellant (original accused No.2) that in fact so called CR.A/352/1999 7/19 JUDGMENT eye-witness namely P.W.No.1 has never stated before the Court that accused No.2 had caught hold of the deceased, nor even P.W.No.1 has mentioned name of accused no.2 in his complaint, nor clothes of accused no.2 were having blood stain, as per evidence. If accused No.2 caught hold of the deceased, there would be blood stains on the clothes of accused No.2, but, as per prosecution, there were no blood stains on the clothes of accused No.2 and this aspect of the matter has not been appreciated by the Trial Court. There are major omissions and contradictions in the deposition of the witnesses and, therefore also, order of conviction and sentence passed by the Trial Court, so far as accused no.2 is concerned, deserves to be quashed and set aside. It is submitted by learned counsel for accused No.2 that accused No.2 has been enlarged on bail vide order dated 24th April,2001 in Criminal Misc. Application No. 1039 of 2000 in Criminal Appeal No.404 of 1999 and, therefore, actual sentence undergone by him, along with set off period is approximately 3 years and 3 months. 8. It is submitted by learned Additional Public Prosecutor on behalf of the State that Trial Court has correctly appreciated evidence on record. Learned Additional Public Prosecutor has relied mainly upon deposition of P.W.No.1 and P.W.No.7, who are eye- witnesses. Doctors evidence and police witnesses and CR.A/352/1999 8/19 JUDGMENT panch witnesses have provided enough corroboration to the deposition of eye-witnesses. It is submitted by learned Additional Public Prosecutor that it is proved beyond reasonable doubt that accused No.1 and accused No.3 have given fatal blows to deceased whereas deceased was caught hold by accused No.2 therefore, conviction awarded by the Trial Court may not be altered by this Court and the criminal appeals may be dismissed by this Court. 9. Having heard learned counsel for both the sides and looking to the evidence on record, it appears that P.W.No.1 - Mukesh Ganpatbhai Marwadi at Exh-8 was examined by the prosecution. He has deposed that he had accompanied the deceased and this witness is a cousin brother. It appears that they had gone to put telephonic message to call their cousin brother Durgabhai and while going to put telephonic message to Durgabhai, this witness saw accused No.1 and accused No.2. Accused No.1 slapped the deceased and, thereafter, he had gone to his residence to call his father, who is accused No.3. Thereafter, accused Nos.1 and 3 came with katar and knife. Meanwhile, deceased was returning to his home and just he was nearest to his home, he was assaulted by accused Nos.1 and 3 and the injuries were caused to the deceased by Katar and Knife by accused Nos.1 and 3 and the deceased was done to death. This witness is a natural witness and looking to his examination-in-chief and CR.A/352/1999 9/19 JUDGMENT cross-examination, it appears that nothing is coming out in his cross-examination, in favour of the accused No.1 and accused No.3. P.W.No.1 is a trustworthy witness. He has narrated the incident in detail. Clearly the names of accused Nos.1 and 3 have been given and role played by them has also been narrated by this witness. It is stated by this witness that accused No.2 caught hold this P.W.No.1 10. Looking to the deposition of Rajubhai Bhanuji Vanzara - P.W.7 at Exh-18, he is also an eye-witness of the incident. Upon hearing noise, he came out of the house and he saw accused Nos.1 and 3 causing injuries to his brother Ashokbhai. Ashokbhai fell down, who was declared dead and the accused had run away. Incident had taken place near the house of this witness and the deceased. His presence at the scene of offence is natural one and looking to his deposition, it is clear that he has not exaggerated any version. If the whole incident is bifurcated, it can be bifurcated in three parts. First part is that previous hot altercation a week before for kite flying and second part is that P.W.No.1 and deceased were going to put telephonic message to Durgabhai. P.W.No.1 saw accused Nos.1 and 2. Accused No.1 slapped the deceased and, thereafter, he had gone to his residence from the house of the deceased. Accused No.1 called his father i.e. accused No.3. Thus, both accused CR.A/352/1999 10/19 JUDGMENT Nos.1 and 3 came with deadly weapons and they assaulted the deceased. This assault is a third part of the whole incident. P.W.No.7 had seen the third part of the incident i.e. actual assault by accused Nos.1 and 3 with deadly weapons, at the front side of the house of the deceased. Thus, looking to the deposition of P.W.No.7 without any exaggeration, he has narrated the whole incident. Looking to his cross-examination, nothing is taken away or shaken from his examination-in-chief. He is a trustworthy witness and he corroborates the deposition of P.W.No.1, who is a complainant. 11. Looking to the deposition of these two eye- witnesses i.e. P.W.Nos.1 and 7, there is enough corroboration by F.I.R, which is at Exh-28, which was registered on 4th January,1998 at 22-50 hours. Incident has taken place on 4th January,1998 at 22-15 hours. Thus, immediate is the FIR within couple of minutes. It appears that P.W.No.1 had gone to Amraiwadi Police Station for lodging his complaint and other relatives had gone to the Hospital and from very same Hospital, when recording of F.I.R. was going on at Amraiwadi Police Station bearing C.R.No.I-11 of 1998, Amraiwadi Police Station received telephonic message from Rameshkumar Gawade, P.W.No.9 at Exh-23 from Shardaben Hospital that one patient namely Ashokbhai Vanzara was brought by some persons, who was assaulted by one Mr.Bharat Dayal. A contention has been CR.A/352/1999 11/19 JUDGMENT raised by learned counsel for the appellants that this telephonic message, which was recorded in the Register maintained at Hospital by P.W.No.9, which is at Exh-24 ought to be treated as an FIR. This contention is not accepted by this Court firstly for the reason that looking to Exh-28, which is treated as an FIR, was registered at 22-50 hours at Amraiwadi Police Station. Secondly for the reason that telephonic message received from P.W.No.9 is at 23-05 hours on 4th January,1998. Thus, telephonic message at Exh-24 is subsequent in point of time. Thirdly for the reason that Exh-28 is given by eye- witness, wherein, it is clear narration about the whole incident. Even previous days' dispute with the deceased, has also been narrated with time, place and weapons. Whole narration is given in complaint at Exh-28, whereas, Exh-24 is a cryptic type of telephonic message. If it is read with Exh-23 deposition of P.W.No.9, he does not know, who gave name of Bharat Dayal. No narration of the offence is given in document at Exh-24. As a cumulative effect of the aforesaid facts and reasons, Exh-28 is FIR whereas Exh-24 cannot be treated as FIR. There is enough corroboration by F.I.R. to the deposition of the eye- witnesses i.e. P.W.Nos.1 and 7. There is also one more reason to believe Exh-28 as FIR that Exh-24 is not a Register, which is maintained by the police, at a police station, but, Exh-24 is a Register maintained by P.W.No.9 at Hospital, whereas, Exh-28 is a exact FIR, recorded at CR.A/352/1999 12/19 JUDGMENT Amraiwadi Police Station and signed by P.W.No.1, who is a eye-witness. 12. Looking to the deposition of P.W.No.2 Madhavbhai Ganpatbhai Vanzara at Exh-9, who is panch witness of scene of offence. It appears that the said offence has taken place nearby house of deceased and nearby houses of P.W.Nos.1 and 7. From this scene of offence panchnama at Exh-10, it appears that accused had gone to the house of the deceased for committing murder of the deceased. This panchnama also corroborates deposition of P.W.Nos.1 and 7, who are eye-witnesses. It also appears from the evidence recorded during the course of trial that accused were not available at the initial stage and, therefore, intimation was given by police that accused persons are likely to run away and, therefore, P.W.No.8 Madarsing Bhikhaji Solanki at Exh-19 was keeping a watch, nearby Central Bus Depot of city of Ahmedabad. On the very next day i.e. on 5th January,1998 in morning hours, when all three accused had come to Ahmedabad Central Bus Depot, they were arrested by the police. Looking to Exh-20, which is arrest panchnama, shirt of accused No.1 was found blood stained. Katar was also recovered from the bags of accused No.1. Likewise, deposition of Uttamsing Hadmatsing-P.W.No.5, who is panch witness of discovery of knife at the beheast of accused No.3. There is enough corroboration by Exh-15 of discovery of knife and by Exh- CR.A/352/1999 13/19 JUDGMENT 23 to the deposition of P.W.Nos.1 and 7. Looking to F.S.L. Report, human blood was found from weapon – katar recovered from accused No.1 and blood group “B” was found from knife, discovered at the beheast of accused No.3. Blood group of deceased was “B”. The same is blood group upon knife. Shirt of accused No.1 was also having blood marks of group “B”. Serologist report at Exh-31 also corroborates deposition of P.W.Nos. 1 and 7. Looking to the deposition given by P.W.No.10 Dr.Hasumatiben Ranchhodlal Patel at Exh-25, who had performed postmortem of the deceased. Postmortem Note is at Exh-26. There are four stab injuries upon the deceased at the chest and stomach. Internal injuries were also corresponding to external injuries. Looking to her deposition, these injuries could have been caused by the weapon, which have been shown to her and were antimortem and sufficient in ordinary course of nature, to cause death of the deceased. 13. Learned counsel for the appellants contended that the whole incident has taken place at night hours. There is no proper identification of the accused. This contention is not accepted by this Court so far as accused Nos.1 and 3 are concerned, mainly for the reason that incident had taken place near the house of the deceased. These accused Nos.1 and 3 were known to the P.W.Nos.1 and 7. Their names were given in the FIR, which CR.A/352/1999 14/19 JUDGMENT was registered within couple of minutes, after the incident. Therefore, there is no question of misidentity, whereas, accused No.2 is concerned, his name was not given in the FIR. 14. Looking to the deposition of the prosecution witnesses and evidence on record, it appears that P.W.Nos.1 to 7 are trustworthy witnesses. Their presence at the scene of offence was natural. They knew accused Nos.1 to 3. P.W.No.1 had immediately gone to Amraiwadi Police Station for lodging FIR, wherein, he has clearly given name of accused Nos.1 and 3. Weapons used were also narrated in the FIR and looking to the scene of offence panchnama at Exh-10, also looking to Exh Nos.15 and 20 read with Serologist Report at Exh-31, there is enough corroboration to the deposition of the eye-witnesses P.W.nos.1 and 7. They both have committed murder of Ashokbhai Vanzara. No error has been committed by the Trial Court in appreciating the evidence. There is no perversity in the order passed by the Trial Court. So far as accused nos.1 and 3 are concerned, we see no reason to take any deviation from the conclusion arrived at by the Trial Court and, therefore, there is no substance in Criminal Appeal No.352 of 1999 and, hence, the same deserves to be dismissed. 15. Criminal Appeal No.404 of 1999: CR.A/352/1999 15/19 JUDGMENT As both these appeals have been heard together, they are decided by this common order. Facts and depositions have been narrated herein above. Now, looking to the case against accused No.2, it appears that : (a) In FIR, though it is an immediate version and though it was given by eye-witness, name of accused No.2 was not given. (b) From the very beginning, accused No.2 is not a main assailant. (c) Even if the case of the prosecution is taken at its highest pitch, it is not a case that he has caused any injury to the deceased. (d) Though P.W.No.1 is eye-witness, looking to his deposition at Exh-8, nowhere he has stated that accused No.2 had caught hold of the deceased. (e) Looking to the deposition of prosecution witnesses, it appears that accused No.2 was present with accused No.1, when P.W.No.1 and deceased were going to put telephonic message to Durgabhai at that time, accused No.1 slapped the deceased. Thereafter, accused No.1 had gone to his residence, which is nearby the house of the CR.A/352/1999 16/19 JUDGMENT deceased and returned with his father, who is accused No.3, with separate weapons in their hands. This is a vital part of the whole incident. No common intention was shared by accused No.2, either with accused No.1 or with accused No.3. Looking to the deposition given by P.W.No.1, who is eye-witness of the incident, never he has stated before the Court that accused No.2 had caught hold of the deceased, with a view to facilitate the original assailants. Looking to the charge, which is at Exh-28, charge levelled against accused No.2 is under Section 114 read with Section 302 of the Indian Penal Code, whereas, conviction is under Section 34 read with Section 302 of the Indian Penal Code. 16. Looking to the deposition of prosecution witnesses, it appears that accused No.2 has not caused any injury to the deceased. Accused No.1 after initiating hot altercation, must have gone to his house from where he has called his father i.e. accused No.3. Both came with weapons and they assaulted the deceased. Therefore, there is no common intention of accused No.2 to cause death of the deceased. On the facts of the case and looking to the evidence, case against accused No.2 is doubtful. Accused No.2 is not named in the FIR. In this set of circumstances, accused No.2 is entitled for benefit of doubt. As on the facts of the case and upon deposition, we give benefit of doubt to accused No.2. It CR.A/352/1999 17/19 JUDGMENT is kept open and left open, Whether the accused is charged with Section 114 read with Section 302 of the Indian Penal Code, can be punished under Section 34 read with Section 302 of the Indian Penal Code or not. This question is left open. 17. Looking to the deposition of P.W.No.1 and FIR at Exh-28, there is contradiction so far as role played by accused No.2 is concerned. In F.I.R., which was lodged by P.W.No.1, he has stated that accused No.2 caught hold of the deceased, wherein, in his deposition at Exh-8, P.W.No.1 has stated that accused No.2 has caught hold of himself. This also raises doubt about the role played by accused No.2 and, therefore, he is entitled for benefit of doubt. In view of this deposition, it is a doubtful that accused No.2 had ever abetted accused Nos.2 and 3. This aspect of the matter has not been properly appreciated by the Trial Court. Hence, Criminal Appeal No.404 of 1999 is hereby allowed and judgement and order of conviction and sentence passed by the Trial Court, so far as accused No.2 is concerned, is hereby quashed and set aside. 18. It also appears that accused Nos.1 and 3 were having deadly weapon in their hands. Accused Nos.1 and 3 had gone to the house of the deceased and caused fatal injuries to the deceased on the vital part of the body. CR.A/352/1999 18/19 JUDGMENT Thus, accused Nos.1 and 3 have assaulted with all vengeance upon the deceased. Intention of accused No.1 is also clear that he had gone to his residence and called accused No.3 and have come with deadly weapon in their hands and cause murder of the deceased. 19. Learned counsel for the appellants (original accused Nos.1 and 3) submitted that the whole incident has taken place because of a sudden altercation and without any intention. This contention is not accepted by this Court mainly for the reason that looking to the deposition of P.W.No.1, accused No.1 initially slapped the deceased. He had gone to his residence and called his father i.e. accused No.3. They both came with deadly weapons and assaulted the deceased. Secondly for the reason that looking to