IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 785 of 1992 with CRIMINAL APPEAL No 831 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE B.J.SHETHNA and Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES 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 -------------------------------------------------------------- LILA MASHRAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 785 of 1992 MR YOGESH S LAKHANI for Petitioners No. 1-2 Mr K P RAval, APP for Respondent No. 1 2. Criminal Appeal No. 831 of 1992 MR YOGESH S LAKHANI for Petitioner No. 1 MR K P RAval, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE B.J.SHETHNA and MR.JUSTICE D.P.BUCH Date of decision: 27/12/2001 C. A. V. JUDGEMENT (Per : MR.JUSTICE D.P.BUCH) These two appeals have been filed under section 374 of the Criminal Procedure Code, 1973 against the judgment and conviction order dated 20.7.1992 passed by the learned Addl.Sessions Judge at Porbandar in Sessions Case No.3/92, under which the learned Addl.Sessions Judge convicted the aforesaid appellants for the offence punishable under section 302 of IPC read with section 34 of IPC and sentenced them to suffer R.I. for life and further directed them to pay fine of Rs.500/-. The appellants have been directed to undergo further R.I. for three months in default of payment of fine. The appellants have also been convicted for offence under section 37(1) read with section section 135 of Bombay Police Act and have been sentenced to suffer R.I. for four months and they have been directed to pay fine of Rs.100/-, in default of payment of default, they have been directed to further undergo R.I. for 15 days. 2. In fact the appellants stood as accused before the learned Addl.Sessions Judge at Porbandar in Sessions Case No.3/92. The original accused No.3 and 4 have filed Criminal Appeal No.785/92 whereas original accused No.1 and 2 have filed a separate Criminal Appeal being No.832/92. Both the appeals arise from one and the same judgment in one and the same case before the learned Addl.Sessions Judge, Porbandar. Common arguments have also been advanced by the learned Advocates for the parties, therefore, both the appeals are being heard and disposed of by this common judgment. 2. The facts of the case of the prosecution may be briefly stated as follows: That on 6.8.1991, little before 9.10 a.m., the appellants, according to the case of the prosecution, dealt knife blows on the person of the deceased Laxman Arjan, brother of eye witness Bogha Arjan, just near the gate of the court building of Porbandar and deceased Laxman Arjan sustained as many as 36 injuries on his person. On account of the said charges, deceased Laxman Arjan died on the spot. According to the case of the prosecution, the event was witnessed by PW 12 Bogha Arjan Exh.31, who is the brother of the deceased. FIR was filed by PW 14 Balu Rama Exh.34, who was not an eye witness to the incident in question. The FIR has been produced at Exh.35. The case of the prosecution is that there was a motive behind the said incident and the said motive is also relevant for the purpose of disposing and deciding the case before us. This has been disclosed by the brother of the deceased PW 12 Bogha Arjan at Exh.31. There he has stated that one Balu Laxman was murdered before about 6 to 7 years and deceased Laxman Arjan and one relative of his family Ranmal Giga were involved in the said offence. That deceased Laxman Arjun as well as Ranmal Giga both were acquitted in the said offence. That Balu Laxman was the brother of accused No.1 Karsan Laxman and, therefore, with a view to take revenge of the previous offence, the appellants have collectively assaulted the deceased and they have killed him by inflicting knife blows on his person. At the initial stage, Balu Rama at Exh.34 had filed FIR Exh.35 without disclosing names of the assailants, since he was not an eye witness to the incident. Thereafter PW 12 Bogha Arjan at Exh.31 disclosed names of the assailants during the course of his statement recorded by the Investigating Officer. Therefore, search was made with respect to the appellants and they were arrested and, after their arrest, the investigation proceeded ahead and after conclusion of the investigation, the I.O. found that there were materials before him for filing charge sheet against the appellants. Therefore, charge sheet was filed before the learned Judicial Magistrate First Class, Porbandar. The learned Magistrate found that the offence punishable under section 302 of IPC was exclusively triable by the Court of Sessions and, therefore, he committed the case against the appellants to the Court of Sessions. There, it was registered as Sessions Case No.3/92. The learned Addl.Sessions Judge, Probandar supplied copies of police investigation papers to the appellants. Charge at Exh.2 was prepared and framed. It was read over and explained to the appellants on 3.6.1992. The appellants pleaded not guilty to the charge and claimed to be tried. Therefore, the learned Judge proceeded to record evidence produced before him by the prosecution. After conclusion of the evidence, the learned Addl.Sessions Judge recorded further statements of the appellants under Section 313 of the Criminal Procedure Code, 1973 (for short, 'the Code'). The learned Judge heard the arguments advanced by the learned Advocates and thereafter, the learned Judge found that there was reliable evidence on record to convict the appellants for the aforesaid offence. Accordingly, the learned Judge convicted the appellants for the offence punishable under Section 302 read with section 34 of IPC. The learned Judge also convicted the appellants for offence punishable under Section 37(1) read with Section 135 of the Bombay Police Act. The learned Judge also sentenced the appellants as aforesaid. 4. Feeling aggrieved by the said judgment and conviction order of the learned Addl.Sessions Judge, the appellants have preferred this appeal before this court. The appellants have contended before this Court that the learned Judge has committed serious error in relying upon the evidence of Bogha Arjan Exh.31. That the entire evidence tendered by the said witness is highly unnatural and his conduct clearly indicates that he was not a witness to the incident and he has been introduced as a witness with a view to involve the appellants falsely in the present case. That he was not present at the time when the offence was committed by someone else. That even his evidence that he had chased the appellants is also not acceptable. That the evidence of this witness saying that when he returned to the spot, the dead body of the deceased brother was not there, is also not acceptable. That even the witness said that at the time when he returned to the spot, the police was preparing panchnama and yet he did not contact the police officer drawing panchnama for the purpose of disclosing the names of the appellants. That his statement was recorded very late and there was sufficient time for introducing the names of appellants falsely in the present case since the FIR and other investigation papers did not disclose names of the assailants. That therefore, the evidence of Bogha Arjan could not have been relied upon by the learned Addl. Sessions Judge. It has also been contended that even PW 14 Balu Rama at Exh.34 is also not a witness to the incident and that can be gathered from his FIR Exh.35 which does not disclose names of the assailants. It is further contended that PW 15, Amriben Exh.36, the mother of the deceased, who believed to be a true witness by the learned Addl.Sessions Judge is also not a reliable witness, as there were contradictory statements given by her. That this family had strong reservations against the appellants for falsely implicating them in the present case. That there is no evidence on record to show that the offence was committed by the present appellants. That the offence is said to have been committed by the accused before 9 a.m. in the broad day light in the heart of City of Porbandar. That the place of offence is surrounded by many shops and it is a thickly populated locality. That even the municipal bus terminal is just opposite the place of offence. That therefore, many disinterested witnesses must be present at the time of commission of offence and yet the prosecution did not examine a single disinterested neutral witness to support the case of the prosecution. That in that view of the matter, the interested testimony of the prosecution witness Bogha Arjun at Exh.31 should have been rejected by the prosecution. That on the whole, the judgment and conviction order of the learned Addl.Sessions Judge are illegal and erroneous and deserve to be set aside. The appellants, therefore, pray in both these appeals that these two appeals be allowed, the judgment and conviction order of the learned Judge be quashed and set aside and the appellants in both the appeals be ordered to be acquitted and they may be ordered to be set at liberty forthwith. 5. At the stage of admission, the appeal was ordered to be admitted and bail was refused by order dated 23.2.1993. At the initial stage, Mr Pravin Gondaliya, learned Advocate argued the matter on behalf of Mr Y S Lakhani for the appellants to a great extent. Subsequently, Ld. Advocate, Mr Y S Lakhani also appeared and argued the matter and also submitted the points and submission at the close of his arguments. On the other hand, Mr K P Raval, learned APP supported the judgment of the trial court. Therefore, we are required to deal with the evidence produced on record. 6. In order to prove guilt of the appellants, the prosecution has examined as many as 20 witnesses. They can be enlisted as follows: (i) PW 1 Dr. D A Vyas Exh.17 (ii) PW 2 Navin Mehta, who prepared the sketch at Exh. 20 Exh.18 (iii) PW 3 Manoj Vasudev, Panch Exh.21 (iv) PW 4 Bhoja Pota " Exh.23 (v) PW 5 Arjan Veja " Exh.24 (vi) PW 6 Vinodrai " Exh.25 (vii) PW 7 Narsi Arjan " Exh.26 (viii) PW 8 Hitesh Maganlal " Exh.27 (ix) PW 9 Harish Gagan " Exh.28 (x) PW 10 Meraman Vangha " Exh.29 (xi) PW 11 Pita Parbat " Exh.30 (xii) PW 12 Bogha Arjan, Eye witness Exh.31 (xiii) PW 13 Babulal Premji, Panch Exh.33 (xiv) PW 14 Balu Rama, informant Exh.34 who submitted FIR at Exh.35 (xv) PW 15 Amriben Hardas, mother of the deceased Exh.36 (xvi) PW 16 Dhangar Devgar, P.S.O. Exh.37 (xvii) PW 17 Nonghan Savdas Exh.39 (xx) PW 20 P.I. Dabekar Exh.42 ----------------------------------------------- 7. It may be stated at the outset that out of the aforesaid 20 witnesses, many of them have turned hostile and they have not supported the case of the prosecution. These hostile witnesses include PW 3 Exh.21, PW, Exh.23, PW 5, Exh.24, PW 6 Exh.25, PW 7 Exh.26, PW 8, Exh.27, PW 9, Exh.28, PW 10, Exh.29, PW 11, Exh.30 and PW 13, Exh.33. So these witnesses have not supported the case of the prosecution to any extent. Therefore, it is not very much necessary to go through their evidence since their evidence does not get corroboration from other angles also. In fact, their evidence does not support the case of the prosecution to any extent and, therefore, it is not even necessary to go through the evidence supporting some part of their evidence on record. 8. The prosecution has mainly relied upon the evidence of PW 12, Bogha Arjan Exh.31. Since he is the only witness to the incident in question, it would be necessary for us to closely scrutinise the evidence of this witness. 9. So far as this witness is concerned, it is undisputed that he was the brother of the deceased and, therefore, he should have some interest in bringing conviction to the appellants. Another aspect of the case is that according to his own evidence, one Balu Laxman, brother of accused no.1 was murdered and in the said matter, the present deceased Laxman Arjan and one of his relative Ranmal Giga were involved and both of them were acquitted in the said case. That therefore, according to the case of this witness, the appellants have killed his brother Laxman Arjan. This shows that there was a case of previous enmity between the two groups. Therefore also it would be necessary for us to go for a close scrutiny of the evidence of this witness. The matter does not rest there. This witness has stated in the cross-examination that since the appellants were his enemies, he wanted to chase the appellants and also wanted to catch hold of them. That therefore, he chased the appellants without any fear from them. He has further stated in the cross-examination that had he been able to catch the appellants, he would have fought with him. He has further stated that there was deep root of enmity between the two. This also shows that the witness had strong inimical feelings for the appellants and, therefore, likelihood of false implication of the appellants in the case of murder of his real brother cannot be totally ruled out. Therefore, also his evidence is required to be scrutinised very closely. 10. It is an admitted position that the witness as well as deceased were both staying in village Mitrala situated at some distance from Porbandar. The witness has stated at Exh.31 that his father Arjanbhai had left their residence at village Mitrala about 12 to 13 days before the date of the event in question. That therefore, he, in the company of the deceased had gone in search of his father. Now it is to be seen that here also some doubt is created in the statement of fact given by the witness, though the said statement of fact is not very much important for the decision of the case. If the father had left village Mitrala before 12 to 13 days, in the ordinary course of nature, members of the family would have made rigorous efforts for the search of the father. There is no material on record to show that efforts were made by any member of the family to search the father during a span of 12 to 13 days. Another aspect of this case is that the witness and his deceased brother had no reason to search for his father at Porbandar. It is to be seen here that his mother Amriben does not fully support the witness on this point since her evidence differs from the evidence of this witness to some extent. Amriben Hardas Exh.36 had deposed that her husband and father of deceased-Arjan was at Porbandar on the date of the incident. That he was sick and therefore, he was staying at Porbandar for taking medicine and for treatment. She also states that witness Bogha as well as the deceased both have told her that they would bring their father and, therefore, they had gone to Porbandar in a bus starting at about 6 am in the morning. Therefore, the evidence of the mother differs from the evidence given by her son. The son does not say that his father was at Porbandar. On the other hand, the mother does not say that the father left village Mitrala for 12 to 13 days and, therefore, the two brothers had gone to Porbandar in search of him. Therefore, there is contradictory version given by these two witnesses who are mother and brother of the deceased. 11. Even if we do not give more weight to the said contradictory versions of the two witnesses, we can straightaway go to the factual aspects of the evidence of Bogha Arjan at Exh.31. He has stated that both of them had gone to Porbandar in search of the father. That after reaching Porbandar, they were going towards Sudama chowk. That at that time, deceased Laxman Arjan went to take pan near the gate of the court, and he (the witness) went to Sudama Chowk in search of his father. The father was not found there therefore, he (the witness) returned from Sudama Chowk and when he was on his way back, he saw at some distance, the appellants beating deceased Laxman Arjan. That he was able to identify the appellants and he raised shouts - " stop, stop beating, why do you beat him"? It is also deposed by him that all the four appellants caused injuries to the deceased by means of knife blows. Since he raised shouts, the appellants ran towards the bus stand leaving the deceased there on the ground. That thereafter, the appellant hired a tempo and he (witness) also hired a tempo and chased him towards Birla Chhaya Road. It is also deposed by him that he had returned to the spot as he could not overtake the appellants and the tempo was totally lost sight of. 13. This witness further states that when he returned to the spot, his brother was not found on the spot and the police were drawing panchnama. That Nonghan Savdas was present and he had told him that the appellants had beaten the deceased. That thereafter, his statement was recorded by the police. 14. Now it is to be seen that the incident took place little before 9.10 a.m. This can be seen from an entry made in the police diary showing that the information was received at the police station at 9.10 a.m. about the commission of the offence in question. This means that the offence was actually committed at or before 9.10. a.m. Now it is to be seen that so far as the panchnama is concerned, we can see from the post mortem report at Exh.15 that the dead body was received by the hospital at 11.35 a.m. The post mortem was commenced at 11.45 am and it was completed at 2.15 p.m., on that day i.e. on 6.8.1991. There is no dispute that after the post mortem was over, the dead body of the deceased was handed over to this witness Bogha Arjan. Since the post mortem is shown to have been completed at 2.15 p.m., as per the post mortem report, the dead body of the deceased must have been handed over to Bogha Exh.31 after 2.15 p.m. Even Bogha has also made the thing clear during the course of his evidence. He has stated that in para 3 of his evidence that the police had handed over the dead body of his brother to him. He has also deposed before the trial court that his statement was recorded by the police after the dead body was handed over to him. This would mean that the statement of this witness could be recorded only at or after 2.15 p.m. 15. Now, it is to be seen that according to the evidence of this witness, the appellants had run away towards bus stand after commission of the offence. Learned Advocate for the appellants Mr Y S Lakhani has clearly pointed out that the witness himself was coming from the bus stand and, therefore, this would mean that the appellants had actually run towards the direction from which the appellant was coming to the spot. Now if the appellants had actually run in that direction, then the witness may not have allowed them to run away he could have caught at least one or two appellants if he could not catch all the four of them. This has not happened. 16. Another aspect of the evidence of this witness is that even according to this witness the appellants hired a tempo and vanished from the place. He has also stated that he also hired a tempo. Now this would naturally consume lot of time as tempo would not be ready and it is nobody's case that a tempo was hired in advance by the witness. If tempo was to be taken to some place then naturally, hiring charges were required to be fixed and that would require some time and it is likely that during that span, the witness would have reached the spot where the appellants were negotiating with the owner or driver of the said tempo. This has not happened. 17. Moreover, even this witness has also said that he also hired a tempo. Again this would require some time and in the meantime, the appellants would run away to a great deal of distance. Yet, according to the case of this witness, he hired a tempo and chased the appellants but he lost sight of the tempo of the appellants and returned to the spot. This also shows that this evidence on the part of this witness cannot be treated to be natural. Moreover, there is no further evidence on record to show as to which tempo was hired by the appellants and which tempo was hired by the witness. So far as the tempo hired by the appellants is concerned, the I.O. could have recorded statement of the drivers or owners of the tempo or other vehicles which might be standing at the said place at the time of the event. From those statements, the prosecution would have further shown that the appellants had actually travelled by the said tempo to some place. This has also not been done in the present matter. Similarly, even the statement of the owner or driver of the tempo hired by witness Bogha has also not been recorded. An attempt was made to argue that the witness Bogha did not know the number of the vehicle hired by him. Even if we accept that Bogha did not note down the number of the said tempo, then also the I.O. could have recorded statements of surrounding persons for getting details about the numbers of the two tempos, names of the drivers or owners of the said two tempos, the time at which the two tempos left the spot, the time at which the second tempo said to have been hired by Bogha, returned back to the spot in question. These materials could be gathered, had there been some efforts on the part of the I.O. while recording the statements of witnesses who might be present at the relevant point of time. 18. Now it is also to be seen that according to the witness Bogha Argan, when he returned to the spot, dead body of his brother was not there and the police was drawing panchnama of the place of offence. As said above, dead body of his brother was received by the Doctor for conducting post mortem at 11.35 a.m. It would, therefore, be very clear that the witness would not have returned to the spot till about 11 a.m. in the morning. Moreover, if we go through the panchnama on record, it can be gathered that the inquest panchnama Exh.12 was drawn by the Police Investigating Officer on 6.8.1991 at 9.50 a.m. Now this would naturally be drawn when the dead body was there at the spot. This means that till the dead body was sent for post mortem, witness Bogha had not returned to the spot. 19. We can turn to the panchnama relating to the scene of the offence. The said panchnama must have been drawn after 11 a.m. It seems that according to the evidence of the witness, when he had returned to the spot, the said panchnama was being drawn by the police. That would mean that the police officer