IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 539 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- RAVIYABHAI B VASAVA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 539 of 1994 MRS SHILPA J UNWALLA for Appellant MR DP JOSHI, Ld. APP for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 09/10/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) 1. By filing this Appeal under Section 374(2) of the Code of Criminal Procedure, 1973, the appellant has challenged the legality of the judgment dated May 9, 1994 rendered by the learned Additional Sessions Judge, Bharuch in Sessions Case No.114 of 1993, by which he is convicted of the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and fine of Rs.100/- in default R.I. for one month. 2. The complainant - Lalitaben Ambubhai Vasava is a resident of village Vanthewad, Tal.Jaghadia, District : Bharuch. At the relevant time, she was residing with her parents. Deceased Dalsukhbhai Madhiabhai, who was son of her uncle was also residing with her as the father of the deceased had expired. The appellant was cultivating the land belonging to the deceased but the deceased was demanding back the land from the appellant as the deceased was desirous of constructing a residential house for him. Because of this demand quarrels were taking place between the appellant and the deceased. Witness Fatehsinh Mohanbhai Vasava was formerly, the Police Patel of village Vanthewad and was a leading citizen of the village. The people of the village used to approach Fatehsinh for advice and redressal of their grievances. Accordingly, the deceased had gone to the house of witness Fatehsinh Mohanbhai Vasava on April 8, 1993 at about 7:45 P.M. regarding the resolution of dispute between him and the appellant. At that time, witness Fatehsinh Mohanbhai Vasava and his family members were taking dinner and, therefore, witness Fatehsinh Mohanbhai Vasava had asked the deceased to wait in wada situated on the back of his residential house. At that time, the appellant had also come to the house of Fatehsinh Mohanlal Vasava and had gone towards the wada situated on the back of the house of Fatehsinh Mohanbhai Vasava. Meanwhile dinner for the deceased was prepared by complainant Lalitaben and, therefore, Lalitaben had asked her younger sister Vanitaben Ambubhai Vasava to call the deceased for the purpose of dinner. Witness Vanitaben had gone to the house of the Fatehsinh Mohanlal Vasava for the purpose of calling the deceased and seen that the appellant had given two knife blows i.e. one on the waist and another on the back of the deceased. Thereafter, witness Vanitaben had informed her sister Lalitaben about the incident. When the knife blows were given by the appellant to the deceased, the deceased had raised shouts, as a result of which Fatehsinh who was taking dinner with his family members, had come out from his house and found that the deceased was lying on the ground. On receipt of information from witness Vanitaben, the complainant i.e. Lalitaben had come to the place of incident and, thereafter, Lalitaben had gone to Jaghadia Police Station for the purpose of lodging the complaint against the appellant. The Police Officer in the charge of the Police Station had asked Lalitaben to bring the injured to the Police Station and, therefore, she had come back to the place of incident and the deceased was taken to the Police Station in the cart belonging to witness Fatehsinh. At the Police Station, the complaint as narrated by Lalitaben, was reduced in writing and registered. Initially, the investigation into the case was made by the Head Constable Ishwarbhai Maganbhai, who had arrested the appellant on April 9, 1993 and prepared panchnama regarding production of blood stained knife by the appellant in the presence of independent witnesses. He had also visited village Vanthewad and prepared the panchnama of the place of occurrence. The injured was first taken to C.H.C. Hospital, Bharuch. The medical Officer on examination had found that the deceased had sustained serious injuries and, therefore, the deceased was referred to S.S.G. Hospital, Vadodara for better treatment by experts. The deceased was admitted in S.S.G. Hospital, Vadodara on April 9, 1993 at about 5.35 A.M., but succumbed to the injuries on April 9, 1993 at about 9.00 A.M. Initially, the offence punishable under Section 324 of the Indian Penal Code was registered against the appellant, but on receipt of wireless message to the effect that the deceased had succumbed to the injuries, an offence punishable under Section 302 of the Indian Penal Code was registered against the appellant. Thereafter, further investigation into the case was made by P.S.I. Mr. Vajesinh Kalubha Rana of Jaghadia Police Station. After taking over the investigation from the Head Constable Ishwarbhai Maganbhai, he had verified the statement of the witnesses which were recorded by Head Constable Ishwarbhai Maganbhai. The P.S.I. had also recorded the statement of other witnesses who were found conversant with the facts of the case. The blood stained earth and blood stained knife produced by the appellant as well as other articles seized during the course of the investigation were sent to Forensic Science Laboratory for analysis and the report of the Serologist was obtained. On conclusion of investigation, the appellant was chargesheeted of the offence punishable under Section 302 of the Indian Penal Code in the Court of learned Judicial Magistrate, First Class, Jaghadia. As the offence punishable under Section 302 of the Indian Penal Code is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Bharuch for trial where it was numbered as Sessions Case No.114 of 1993. 3. The charge at Exh.3 was framed against the appellant of the offence punishable under Section 302 of the Indian Penal Code as well as Section 135 of the Bombay Police Act. The charge was read over and explained to the appellant who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined. - (i) Lalitaben Ambubhai Vasava, P.W.1, Exh.12; (ii) Vanitaben Ambubhai Vasava, P.W.2, Exh.13; (iii) Dr.Rakeshbhai Narendranath Tandan, P.W.3, Exh.14; (iv) Nagjibhai Narsinhbhai Parmar, P.W.4, Exh.14; (v) Fatehsinh Mohanbhai Vasava, P.W.5, Exh.19; (vi) Chimanbhai Mangabhai, P.W.6, Exh.21; (vii) Ashokkumar Bhanubhai Purohit, P.W.7, Exh.22; (viii) Geetaben Fatehsinh Vasava, P.W.8, Exh.23 ; (xi) Ishwarbhai Maganbhai, P.W.9, Exh.25 and (x) Vajesinh Kalubha Rana, P.W.10, Exh.27, to prove its case against the appellant. The prosecution also produced documentary evidence such as arrest panchnama of the appellant at Exh.6, inquest report at Exh.7, report of the Serologist at Exh.11, post mortem note of the deceased at Exh.15, complaint lodged by witness Lalitaben at Exh.17, panchnama of the place of incident at Exh.20 etc. in support of its case against the appellant. After recording of the evidence of the prosecution witnesses was over, the learned Judge explained to the appellant circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement as required by Section 313 of the Criminal Procedure Code. In his further statement, the appellant stated that the case of the prosecution against him was false, but did not examine any witness in support of his defence. However, the appellant submitted written explanation on April 4, 1994 stating inter alia that on the day of incident, he had not gone to the house of witness Fatehsinh Mohanbhai Vasava which is situated in the village Vanthewad. In the written explanation, the appellant claimed that on seeing the deceased in a bleeding condition in his Wada or the field, witness Fatehsinh had called Lalitaben and Vanitaben and after conspiring with them had falsely implicated him in the incident. The appellant also stated in his written explanation that he had no dispute regarding wada with the deceased and that earlier no quarrel had taken place between him and the deceased relating to the Wada. Lastly, the appellant in his written explanation asserted that he had not produced the muddamal knife and that he had not committed any offence as claimed by the prosecution. 4. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the deceased had died a homicidal death. The learned Judge referred to the evidence of the complainant Lalitaben as well as that of witness Vanitaben and after noticing contradictions appearing in their evidence held that their evidence was reliable, trustworthy and cogent. The learned Judge also referred to the evidence of witness Fatehsinh Mohanbhai Vasava as well as that of witness Geetaben Fatehsinh Vasava and held that their evidence being trustworthy was acceptable. After placing reliance on the sworn testimony of witness Lalitaben, witness Vanitaben, witness Fatehsinh and witness Geetaben, the learned Judge held that it was proved by the prosecution that the appellant had caused death of the deceased by inflicting knife blows. The learned Judge referred to the evidence of Dr.Rakeshbhai Narendranath Tandan who had conducted post mortem examination of the dead body of the deceased and held that the appellant was liable to be convicted of the offence punishable under Section 302 of the Indian Penal Code. The learned Judge noticed that the prosecution had not produced any Notification issued by the Competent Authority under Section 37(1) of the Bombay Police Act and, therefore, concluded that the charge against the appellant of the offence punishable under Section 135 of the Bombay Police Act was not proved. In view of the above referred to conclusions, the learned Judge has convicted the appellant of the offence punishable under Section 302 of the Indian Penal Code and imposed the sentence, which is referred to earlier, by the judgment dated May 9, 1994, giving rise to the present Appeal. 5. Mrs Shilpa J. Unwalla, learned counsel for the appellant, after taking as through the entire evidence on record submitted that neither the evidence of the complainant Lalitaben nor the evidence of her sister Vanitaben is either reliable or trustworthy and, therefore, the same should not have been relied upon by the learned Judge of the trial Court for the purpose of convicting the appellant of the offence punishable under Section 302 of the Indian Penal Code. According to the learned counsel for the appellant, the complainant Lalitaben in her substantive evidence before the Court has claimed that on hearing shouts raised by her sister Vanitaben to the effect that the deceased was assaulted with knife, she had gone to the wada of witness Fatehsinh and that she had found that the deceased was lying on the ground, whereas in her complaint, she has stated that she was at her house where her sister Vanitaben had informed her about the assault on deceased and, thereafter she had gone to the wada of Fatehsinh and as her evidence stands contradicted by her complaint, her evidence should not have been relied upon by the learned Judge. Further, the learned counsel for the appellant pleaded that Lalitaben in her testimony before the Court has stated that she was informed by the deceased that he was assaulted with knife by the appellant whereas no reference to any such oral dying declaration having been made by the deceased to the witness is to be found in her complaint and, therefore, in view of the material improvement made by the witness in her evidence, her evidence should be discarded. So far as the evidence of witness Vanitaben is concerned, the learned counsel for the appellant contended that her claim that she had witness the incident in question is highly doubtful because she has stated in her deposition before the Court that she had entered into the wada of Fatehsinh through the opening in hedge provided on the western side of the house of witness Fatehsinh. The learned counsel for the appellant emphasized that the claim of witness Vanitaben that the witness Fatehsinh had caught red handed the appellant and had tied him with a staircase is totally false and does not get corroborated from the evidence of witness Fatehsinh and, therefore, the evidence of witness Vanitaben could not have been relied upon by the learned Judge for the purpose of convicting the appellant. The learned counsel for the appellant referred to the panchnama of the place of occurrence as well as evidence of witness Fatehsinh and claimed that in view of the hedge between the house of the complainant and wada of witness Fatehsinh, Vanitaben could not have witnessed the incident and her evidence should be disbelieved. According to the learned counsel for the appellant the appellant had no knowledge that at about 7:45 P.M. on April 8, 1993, the deceased was to go to the house of witness Fatehsinh and, as the appellant had no reason to go to the house of witness Fatehsinh, the case of the prosecution that after going to the wada of witness Fatehsinh, the appellant had inflicted knife blows on the deceased is not reliable. What was stressed was that the prosecution evidence does not establish that any altercation had taken place between the appellant and the deceased before so called knife blows were delivered by the appellant with knife and, therefore, the prosecution case being improbable should be disbelieved. The learned counsel for the appellant urged that the evidence of witness Fatehsinh establishes that at the time of incident there was darkness in the wada and as no arrangement for light was made in the wada, his claim that the appellant was not found in the wada when he had come out of his house on hearing shouts of the deceased, being unreliable, should be ignored by the Court. So far as the evidence of witness Geetaben Fatehsinh Vasava is concerned, the learned counsel for the appellant argued that her evidence does not establish that the appellant was the author of the injuries caused to the deceased and, therefore, the same should not be taken into consideration, while deciding the question as to whether the appellant is guilty or not. The learned counsel for the appellant also pleaded that the production of blood stained knife by the appellant in presence of panch witnesses is highly doubtful, as the panch witnesses have turned hostile and, therefore, find of blood on the knife having the same blood group as that of the deceased should not be taken into consideration by the Court, while assessing the evidentiary value of the evidence adduced by the prosecution against the appellant. The learned counsel for the appellant claimed that the production of the clothes of the deceased has been fabricated by the Investigating Agency and the investigation being dishonest, a reasonable benefit of doubt should be given to the appellant. It was argued that there is delay of about three hours in lodging of F.I.R. by complainant Lalitaben which probabilises the defence of the appellant that on seeing the injured lying in his wada, witness Fatehsinh, after calling witnesses Lalitaben and Vanitaben had conspired the case, against the appellant and, therefore, the prosecution case being of doubtful nature, should be disbelieved by the Court. Lastly, the learned counsel for the appellant submitted that the evidence on record does not establish satisfactorily that the appellant had committed murder of the deceased and, therefore, the appeal to be accepted. 6. Mr.D.P.Joshi, learned APP for the respondent State has contended that the contradictions and/or improvements appearing in the evidence of complainant Lalitaben Ambubhai Vasava and witness Vanitaben Ambubhai Vasava should not be over emphasized by the Court as they are rustic village women and had given deposition about the incident after a lapse of nine months. The learned APP for the respondent - State pleaded that witness Lalitaben as well as witness Vanitaben are related to the deceased as well as the appellant and in such circumstances, false implication of the appellant is totally ruled out. The learned APP for the State claimed that there is no reason for any of the prosecution witnesses to falsely implicate the appellant in such a serious case and, therefore, the learned Judge of the trial Court did not commit any error in placing reliance on their evidence for the purpose of convicting the appellant. What was stressed by the learned APP for the State was that the evidence of complainant - Lalitaben Ambubhai Vasava stands materially corroborated, not only by her complaint, but also by the evidence of witness Vanitaben as well as witness Fatehsinh and witness Geetaben and, therefore, the conviction of the appellant as was recorded by the learned Judge of the trial Court should be confirmed by this Court. According to the learned APP for the State, the evidence of prosecution witnesses established beyond reasonable doubt that the appellant was cultivating the land belonging to the deceased and that as the deceased had demanded the land for construction of his house quarrel had taken place between the appellant and the deceased and that the appellant had strong motive to commit the murder of the deceased. The learned APP for the State further pleaded that the prosecution case against the appellant, having been established by cogent and convincing evidence, the appeal should be dismissed. 7. We have considered the arguments advanced at the Bar and reappreciated the whole evidence on record. The fact that the deceased had died a homicidal death is not in dispute. The evidence of Dr.Rakesbhai Narendranath, P.W.3 Exh.14 establishes that on April 9, 1993 at about 4.30 P.M. the dead body of the deceased was brought before him by Police Sub-Inspector of Raopura Police Station, Vadodara for post mortem examination and that he had conducted post mortem examination on the dead body of the deceased. His evidence further shows that on examination of dead body, he had found two external injuries which are as under :- "1. Incised stab wound of size 4.5 CM X 1.8 CM X14 CM deep in muscle plane present on back of left chest extending transversely just left of midline track is going down wards, forward slightly and towards right side in muscle plane on back of right chest below skin and subcutaneous tissue wound is 20 CM below the nape of neck. 2. Incised stab wound of size 4.5 CM X 1.4 CM X abdominal cavity deep present on left outer part of abdomen mid and anterior axillary line transversely placed, 9 CM above antem region illiae spine and 24 CM below axillare mesenteric and coils of G.I. are preprotruding out of the wound. On internal examination, the doctor had found the injuries which are enumerated by him in detail in post mortem notes. The doctor has stated before the Court that the external injury No.2 was sufficient in the ordinary course of nature to cause the death of the deceased and that the said injury was possible by muddamal knife. The cause of death as mentioned in the postmortem notes is heamorrhage and shock following stab injury on abdomen. Further the injuries, which were sustained by the deceased, are also mentioned in detail in the inquest panchnama, which is produced on the record of the case at Exh.7. It is nobody's case that the injury sustained by the deceased were suicidal or accidental. Having regard to the nature of evidence adduced by the prosecution we are satisfied that the deceased had died a homicidal death and, therefore, the finding recorded by the learned Judge to the effect that homicidal death of the deceased is proved beyond the reasonable doubt being just and proper is hereby upheld. 8. As observed earlier, the prosecution has mainly relied upon evidence the witnesses (1) Vanitaben Ambubhai Vasava, P.W.2 Exh.13, (2) Fatehsinh Mohanbhai Vasava, P.W.5 Exh.19 and (3) Geetaben Fatehsinh Vasava, P.W.8, Exh.23 to prove the charge against the appellant. So far as the evidence of witness Lalitaben Ambubhai Vasava P.W.1, Exh.12 is concerned, we find that the deceased was her cousin and was residing with her. She has stated in her testimony that the incident had taken place at about 8.00 P.M. in the Wada of Police Patel Fatehsinh Mohanlal which is situated on the back of his house and that at that time she was at her house. The witness has stated that the house of Fatehsinh is at a distance of about 50 steps from her house and that she had asked her younger sister Vanitaben Ambubhai Vasava to call the deceased as the dinner was ready. According to this witness, her sister Vanitaben had gone to the house of witness Fatehsinh for the purpose of calling the deceased and that witness Vanitaben had raised shouts that the deceased was injured with knife. The witness has further stated in her evidence that on hearing of shouts, she had gone to the Wada of witness Fatehsinh and had found that the deceased was lying on the ground. According to her, she had found that there was an injury on the waist of the deceased and she had applied the bandage. The witness has stated in her evidence that, thereafter, she had gone to Jaghadia Police Station with her younger brother on a cycle and that Vanitaben had informed her that the appellant had given knife blows to the deceased. According to her, the deceased had also told her that he was given knife blows by the appellant. What is claimed by her in her evidence is that the Police Officer incharge of Jaghadia Police Station had asked her to bring the injured to the Police Station and, therefore, she had returned with her younger brother and that the deceased was taken to the Jaghadia Police Station in the cart of Police Patel. The witness has stated that at Jaghadia Police Station, she had lodged a complaint, which was registered by the Police and, thereafter, the injured was removed to Jaghadia Dispensary with Police Yadi. The witness has claimed that the doctor on duty at Jaghadia Dispensary had advised to remove the deceased to Bharuch Hospital and, therefore, the deceased was removed to Bharuch Civil Hospital by her brother. The witness has also informed the Court that thereafter, the deceased was removed to S.S.G. Hospital, Vadodara, where he had expired on the next day. In cross-examination, the witness has stated that the incident had taken place after 8.00 P.M. and at that time there was darkness. The witness has admitted during her cross-examination that there was a cactus hedge between her house and the house of witness Fatehsinh. The witness has also admitted during her cross-examination that she had not stated in her complaint that the deceased had informed her that he was given knife blows by the appellant. The witness has also admitted that she had not stated in her complaint that Vanitaben had raised shouts to the effect that the deceased was assaulted with knife and, therefore, she had gone to Wada of Fatehsinh. According to this witness, the distance between village Vanthewad and Jaghadia is about 2 K.M. On re-appreciation of the evidence of complainant Lalitaben Ambubhai Vasava, it becomes evident that she has not posed to be an eye-witness at all. It is not her case that she had witnessed the incident. Her claim that the deceased had made an oral dying declaration before her, does not inspire confidence because not only we do not find any reference to any such oral dying declaration having been made in her complaint, but even other witnesses