CR.A/553/1999 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 553 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A. L. DAVE HONOURABLE MR.JUSTICE J. C. UPADHYAYA =============================================== 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 ? =============================================== KARSAN MANDAN CHUDASAMA & Others. Versus STATE OF GUJARAT. =============================================== Appearance : MR MM TIRMIZI for Appellants Nos. 1 to 4 & 6. MR KAUSHAL D PANDYA for Appellant No. 5. MR KT DAVE, APP, for Respondent-State. MR PJ KANABAR for Respondent No.1. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE J. C. UPADHYAYA Date : 03/07/2008 CR.A/553/1999 2/13 JUDGMENT ORAL JUDGMENT : (Per : A. L. DAVE, J.) 1. This appeal arises out of a judgment and order rendered by Sessions Court, Amreli, in Sessions Case No.12 of 1995 on 13th April, 1999. The appellants were accused before the Trial Court. They were arraigned for the offence of murder of one Dhirubhai Jivabhai, son of Jivabhai Karnabhai (P.W.3). According to the prosecution case, the roots of the incident lied in an incident that had occurred exactly one year prior to the present incident. The present incident occurred on 4.11.1994, at about 7.00 A.M. in the field of one Cheena Teja of village Chhara of Taluka Kodinar. Incidentally, that day happened to be the New Year day according to Indian calendar and, as per the prosecution case, in an incident that had occurred on the previous New Year day, deceased- Dhirubhai Jivabhai and others committed murder of the father of appellants Nos.2 to 5. 1.1 According to the prosecution case, on the day of the incident, deceased-Dhirubhai Jivabhai went to attend to nature's call in the outskirts of the village, near the pond. While proceeding to answer nature's call, Arshi Naran and Karsan Lakha also joined him for the very purpose. Around that time, the accused persons were seen proceeding in the same direction with axe in their hands by Rana Naran and Jaswantsing Bhavsing. Rana Naran, therefore, went to the house of deceased-Dhirubhai Jivabhai and informed his father, Jivabhai Karnabhai, that the accused persons have gone towards the pond with axe in their hands to attack Dhirubhai Jivabhai. Jivabhbai Karnabhai, therefore, immediately rushed towards the pond along with Bhikha Rama, Ukha Masri and Rana Naran. Upon reaching near the pond, they noticed all the accused persons assaulting the deceased with axe and then fleeing from the CR.A/553/1999 3/13 JUDGMENT place on seeing them. The incident was also witnessed by Arshi Naran and Karsan Lakha, who had followed the appellants. According to Arshi Naran, when the deceased saw the appellants rushing towards them with axe in their hands, he started running northbound from where they were sitting near the pond. The appellants started chasing him. The deceased could run about two to three fields when the appellants closed in to him and appellant- Karsan Mandan inflicted an axe blow on head of Dhiru Jiva, as a result of which he fell down. Rest of the appellants immediately surrounded Dhiru Jiva and assaulted him with axe in their hands. Arshi Naran and Karsan Lakha tried to intervene and rescue the deceased, but appellant-Natha Punja intimidated them by showing a knife and telling them that, if they intervene, they would also be done to death. They, therefore, stopped at a distance. In the meantime, Dhiru Jiva's father, Jivabhai Karnabhai, in company of Bhikha Rama, Ukha Masri and Rana Naran came there and, on seeing them, all the appellants escaped towards village Damli. On reaching the spot, Jiva Karna found his son lying dead. He, therefore, went to police, at Kodinar, to lodge an F. I. R. He was asked to prepare a written information, which he did with the help of some petition writer and lodged the F. I. R. at 8.30 A.M. On the basis of that F. I. R., offence was registered and investigation was initiated. The police reached the spot, prepared Panchnama of place of incident and Inquest Panchnama, recorded statements of witnesses, sent the dead body for post-mortem and collected requisite information. The accused were arrested and weapons were discovered by them. The weapons discovered were sent to F.S.L. for examination. On receipt of the report from the Serologist of the F. S. L., it was found that clothes of the accused and the weapons discovered by them contained blood of the group of the deceased, i.e. group “B”. The police, therefore, filed charge sheet in the Court of J. M. F. C., Kodinar. Since the case was triable exclusively by the Court of Sessions, the case was committed to the CR.A/553/1999 4/13 JUDGMENT Sessions Court at Amreli, as Kodinar fell under that Sessions' Division at the relevant time and Sessions Case No.12 of 1995 came to be registered. 1.2 The charge against the appellants was framed at Exhibit 1. The accused-appellants pleaded not guilty to the charge and claimed to be tried. 1.3 The prosecution led the evidence. The defence was that of total denial and false implication. On the basis of the evidence led by the prosecution, the Sessions Court came to a conclusion that the prosecution was successful in establishing charges for the offences punishable under Sections 147, 148, 149 and 302 of the Indian Penal Code and Section 135 of the Bombay Police Act. The Sessions Court also concluded that charge under Section 506(2) of I. P. C. was proved against accused-appellant No.3-Nathabhai Punjabhai. The Sessions Court, however, sentenced them to undergo imprisonment for life for the principal offence and did not pass any separate sentence for the other offences. Aggrieved by the said judgment and order, present appeal is preferred by the original accused-convicts. 2. We have heard learned Advocates, Mr. Tirmizi, appearing for appellants Nos.1 to 4 and 6 and Mr. Kaushal Pandya, appearing for appellant No.5 and learned Additional Public Prosecutor, Mr. K. T. Dave, for the respondent-State. We have also examined the record and proceedings before us. 3. The case pleaded on behalf of the appellants by the learned Advocates is that the Trial Court committed an error in not appreciating the fact that the prosecution evidence is self- CR.A/553/1999 5/13 JUDGMENT contradictory and inconsistent; that the witnesses are interested witnesses; that all the eye-witnesses are not examined, though available; that the witnesses could not have seen the incident as they are claiming because of the distance as well as obstructions in the form of a row of babul trees; that the witnesses do not give details of individual role or overt act to any of the accused; and that the motive which is alleged is only an eye-wash and there is no concrete evidence in support of the alleged motive. 3.1 It is contended that names of the appellants are not disclosed in the F. I. R. and that involvement of all the appellants is not emerging from the F.I.R. There is inconsistency between the F.I.R. and the evidence of first informant, Jivabhai Karnabhai. It is also contended that though Arshi Naran is examined, Karsan Lakha, who also claimed to be an eye-witness to the incident, has not been examined by the prosecution and he has been deliberately kept back. The Sessions Court ought to have considered these aspects before recording the conviction. If all these factors are considered collectively, they would at least render the prosecution case doubtful and, therefore, benefit of doubt, if not a clean acquittal, ought to have been recorded by the Sessions Court. The F.I.R. given to the police is the result of deliberations, consultation and premeditation. The appeal, therefore, may be allowed. 4. On the other hand, learned Additional Public Prosecutor, Mr. Dave, drew our attention to the fact that, if the F.I.R. and deposition of the first informant, Jivabhai Karnabhai (Exhibit 22) are seen, they are consistent with each other. The F.I.R. discloses names of all the appellants-accused and it also indicates active participation of all six in the assault on the deceased. Mr. Dave submitted that the F.I.R., though given in a wrong form, is lodged within an hour and a half with the police. CR.A/553/1999 6/13 JUDGMENT The first informant has been cross-examined on this aspect and nothing turns on it to show that it was after deliberations. On the contrary, it appears that, being asked by the police, the first informant got the F. I. R. prepared and immediately lodged it with the police. 4.1 Mr. Dave submitted further that the evidence of first informant, Jiva Karna, Rana Naran and Arshi Naran, who have seen the entire occurrence, goes hands in hand. There is absolutely no inconsistency in their depositions though all of them are subjected to a thorough and detailed cross-examination. The cross- examination does not reveal anything which would render their depositions doubtful or in any way helpful to the defence. Witness Jaswantsinh Bhavsinh (Exhibit 24) also supports the version of Jiva Karna and Rana Naran, initially, of having seen the accused- appellants proceeding towards the pond with axe in their hands. He has given a reasonable explanation for not following the accused, who chased the deceased. Mr. Dave, therefore, submitted that the evidence led by the prosecution is consistent and, unfailingly, leads to show the involvement of all the six persons in the offence with their active participation. 5. We have considered rival side contentions. 6. Arshi Naran, who was present throughout the incident, is examined as P.W.6, at Exhibit 29. He says that, at about 6.45 or so, on the Hindu New Year's day in the year 1994, he started from his home towards the pond to attend to nature's call. At that time, Karsan Lakha and Dhiru Jiva were also heading in the same direction for the same purpose. Therefore, they all went together and attended nature's call near the hedge of babul trees at the bank CR.A/553/1999 7/13 JUDGMENT of the pond. At that time, the six appellants were seen rushing towards Dhiru Jiva with axe in their hands. They were also raising shouts. On seeing them, Dhiru Jiva started running northbound from the pond. Dhiru Jiva started running towards the field of Cheena Teja. The six persons chased him and the witness and Karsan Lakha followed them to rescue Dhiru Jiva. When the deceased reached the field of Cheena Teja, Karsan Mandan inflicted an axe blow on the head of the Dhiru Jiva, as a result of which he fell down. Immediately rest of the accused-appellants surrounded the deceased and assaulted him with axe in their hands. The witness says that when he and Karsan Lakha tried to rescue Dhiru Jiva, Natha Punja intimidated them by showing a knife and told them that, if they intervene, the would also be done to death. They, therefore, stopped at a distance. In the meantime, father of deceased-Dhiru Jiva came there accompanied by Bhikha Rama, Ukha Masri and Rana Naran. They were raising shouts. On seeing them, all the six assailants escaped towards Damli. When they reached near Dhiru, they found him dead. The witness says that he and Karsan Lakha informed Jiva Karna, father of the deceased, about what they had seen and gave the details of the incident as narrated above. The witness is cross-examined at length. What emerges from the cross-examination actually hinges the appellants with the prosecution case. During cross- examination, it emerges that the distance between the pond and the field of Cheena Teja, where the incident had occurred, is about 500 to 600 feet. He admits that a person standing at the pond may not be able to see what is happening in the field of Cheena Teja, but the moment one crosses the row of babul trees, one can see what is happening in the field of Cheena Teja. He states that he saw the accused persons assaulting Dhiru from a distance of about 10 to 15 feet. He says that he has deposed in the Court what he saw at the time of the incident and has not made any attempt to remember it. The witness denies the suggestion that he is related to the father of CR.A/553/1999 8/13 JUDGMENT the deceased or the deceased for that matter. The witness also states that except him and the other witnesses, there was no one else around the place of incident when the incident occurred. There were no ladies fetching water. 7. Witnesses Jiva Karna and Rana Naran are examined at Exhibits 22 and 27, respectively. Their evidence is examined by us closely and we find that they also deposed on the lines of deposition of Arshi Naran. Their cross-examination also reveals nothing favourable to the appellants. Learned Advocates for the appellants are also not in a position to indicate any factor which has emerged in cross-examination of these witnesses, which can be considered favourable to the accused-appellants. 8. Now, when we examine the contention raised by the appellants that all six appellants are not named in the F. I. R. and that their involvement or participation in the incident is not shown in the F. I. R., we find that it is contrary to the record. The F. I. R. (Exhibit 23), if read clearly, indicates that names of all six appellants are given in clear terms. The F. I. R also indicates that all of them assaulted the deceased once the deceased had fallen on the ground. Therefore, it is not possible for us to accept the contention that the F. I. R. and the depositions of the witnesses are inconsistent and there are improvements in the depositions to the effect that they attributed role to the accused and gave their names. CR.A/553/1999 9/13 JUDGMENT 9. So far as the contention regarding interested witnesses is concerned, we may state that the witnesses have been cross- examined on this aspect and what emerges from depositions of Arshi Naran and Rana Naran is that one of them states that they are distant cousins of the first informant and the deceased, whereas the other says that they are not relatives but only caste fellows. But, importantly, it emerges from their depositions that they have no close relations with the family of the deceased. Their depositions, therefore, cannot be thrown overboard on the ground of being interested witnesses. Even if a witness is interested, the deposition of that witness would call for only a close scrutiny and it cannot be thrown overboard on the ground of being interested or related witness. In our view, deposition of such witness can be doubted only if it is shown that they have an interest in acting adverse to the accused-appellant and an interest to falsely implicate him. Simply because the witness is relative of the victim, he would not be interested in falsely implicating an innocent person letting the real culprit go scot-free. We are, therefore, unable to accept this contention either. 10. So far as the contention regarding visibility of the incident is concerned, the incident occurred at about 7.30 A. M. It is nobody's case that it was dark. So far as the distance part is concerned, it is suggested that the place of incident is at a distance CR.A/553/1999 10/13 JUDGMENT of more than 2 kms. From the pond. However, the eye-witnesses indicate that it is no so. It is also pressed into service that a person standing at the pond would not be able to see what transpires in the field of Cheena Teja. This aspect is even admitted by the eye- witnesses, but they say that this is because of the obstruction of row of babul trees. However, they say that they saw the incident after they crossed the babul trees. It has come in evidence that after the babul trees, there is no obstruction in the form of tree or anything between the row of babul trees and the place of incident. It is, therefore, not possible to accept that the witnesses could not have seen the incident. The distance is hardly 500 feet and, therefore, the contention that the witnesses could not have seen the incident is not possible to be accepted. In fact, Arshi Naran says that he saw the incident occurring from a distance of about 15 feet and he was in company of the other eye-witness, Karsan Lakha. 11. There are other aspects also which lend support to the prosecution case. 11.1 The discovery of the weapons has been duly proved with the help of Panch witnesses. Those weapons and clothes of the accused as well as deceased have been sent to F. S. L. and it is found from the report of the Serologist that the weapons and the clothes of the accused as well as deceased contained blood stains of group “B”. There were no injuries on person of the accused and the CR.A/553/1999 11/13 JUDGMENT presence of blood stains on clothes of the accused has remained unexplained. In this set of circumstances, we are of the view that the conviction is rightly recorded. 12. At this stage, we may, now, deal with the contention raised by the learned Advocate for appellant No.5 that the motive is not properly proved by the prosecution and that the motive sought to be attributed is without any basis. In support of this contention, it was submitted that the witnesses do not know the details about the earlier incident, which is alleged to provide motive for the present incident. They do not know who were the accused persons in the earlier case. We find that the contention cannot be accepted for the reason that we have unfailing and reliable evidence of eye- witnesses to the incident and, therefore, even absence of motive will be of no consequence. What emerges from cross-examination of witnesses is that they say that the root of the present incident lies in an incident that occurred exactly one year prior to the present incident wherein father of accused Nos. 2 to 5 was murdered and wherein deceased-Dhiru Jiva was one of the accused persons. The fact that such an incident occurred exactly one year prior to the incident, i.e. on the previous New Year's day, according to Hindu calendar, and the fact that the present incident also occurred on the Hindu New Year day, is not in dispute nor controverted. Now, lack of knowledge of the witnesses about the details of the earlier incident or the case would not abrogate the CR.A/553/1999 12/13 JUDGMENT fact of the two incidents occurring on the same important and auspicious day. The motive attributed by the witnesses, in our view, merits acceptance. The appellants assaulted the deceased exactly on the same auspicious day after one year at a time when he was unarmed, undefendable and unprepared for an assault. They all have rushed to the place collectively, they all were armed with deadly weapon like axe and knife and they have collectively committed the assault, resulting into death of the deceased. These factors would lead to only one inference that they had a common object of doing away the deceased and there cannot be any other object behind it. Individual act in such a situation is not required to be established. In such situation when the witnesses say that all the appellants assaulted the deceased with their weapons indiscriminately, they all would be liable to be convicted for the offence of murder read with section 149 of the the Indian Penal Code, as has been held by the Trial Court. In this regard, we may refer to the decision of the Apex Court in the case of Ramu Gope v. State of Bihar, AIR 1969 SC 689. The appeal, therefore, merits dismissal. 13. We understand from the learned Additional Public Prosecutor that appellant No.1 has already served the sentence and has been released from the prison. So far as appellants Nos. 2, 4 and 5 are concerned, they are in prison, but they have undergone lesser sentence because of their abscondance. We also understand CR.A/553/1999 13/13 JUDGMENT that accused Nos.3 and 6 are absconding. 14. The appeal is dismissed. The judgment and order of the Trial Court is hereby confirmed. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt