CR.A/383/1986 1/45 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 383 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ============================================================== 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 ? ============================================================== STATE OF GUJARAT - Appellant(s) Versus KOLI DHARMASHI SHAMA – Respondent (s) ============================================================== Appearance : MR KP RAVAL APP for Appellant MR SUNIL C PATEL for Opponent(s) : 1, ================================================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 04/02/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. The acquittal of the respondents ('the accused' for short) of the offence punishable under Sections 302, 147, 148, 149, 323 and 325 of the Indian Penal Code ('IPC' for short) recorded CR.A/383/1986 2/45 JUDGMENT by the learned Additional Sessions Judge, Bhavnagar, vide judgment and order dated 23.12.1985 rendered in Sessions Case No.81 of 1984 is the subject matter of challenge in instant appeal, which is filed under Section 378 of the Code of Criminal Procedure ('the Code' for short) by the appellant, State of Gujarat. 2. At the outset, it is pertinent to mention that in all five persons were charged and tried for the offence as enumerated above. The trial court acquitted all the five accused persons of all the charges against which the State of Gujarat has preferred instant appeal challenging the judgment and order of acquittal. 3. The appeal was placed for admission hearing before a Division Bench of this Court. The Division Bench vide order dated 10.7.1986 granted leave to appeal in respect of only two accused and accordingly the appeal was admitted only CR.A/383/1986 3/45 JUDGMENT against accused No.1, Koli Dharmashi Shama and accused No.5, Koli Mavji Shama. So far as accused Nos.2, 3 and 4 are concerned, the appeal was dismissed at the admission stage. It is further pertinent to mention that during the pendency of instant appeal, accused No.5, Koli Mavji Shama passed away and, therefore, the appeal against him stood abated. 4. The order dated 10.7.1986 passed by the Division Bench of this Court at the time of admitting the appeal is set out herein below: “Leave granted. Appeal admitted against respondent No.1, Koli Dharmashi Shama and respondent No.5, Koli Mavji Shama. Bailable warrants to issue against respondents Nos.1 and 5 in the sum of Rupees two thousand each, with one surety. Appeal dismissed at the admission stage against respondent No.2, Koli Parshottam Mulji, respondent No.3, Koli Vitthal Mulji CR.A/383/1986 4/45 JUDGMENT and respondent No.4, Koli Jeram Mashru. At the instance of Mr. D.K. Trivedi, APP we are not assigning our reasons for confirming the judgment of acquittal regarding the respondents Nos.2, 3 and 4. No orders on the Criminal Revision Application No.142 of 1986”. 5. It is also pertinent to mention that above mentioned order of dismissal of appeal at admission stage against accused Nos.2, 3 and 4 was not challenged by the State of Gujarat in higher forum, therefore, the said order has become final. 6. The prosecution case, as disclosed from FIR and unfolded during trial, was that: 6.1.On 9.5.1986, Savitaben Gagjibhai Punabhai, P.W.4, lodged a First Information Report at “A” Division Police Station, Bhavnagar against the CR.A/383/1986 5/45 JUDGMENT accused for commission of offences punishable under Sections 147, 148, 149, 323, 325, 326 and 307 of the IPC which was registered vide CR No.I- 62 of 1984. As per the allegations made in the FIR, the complainant Savitaben happens to be widow of deceased Gagjibhai Punabhai Koli. On 9.5.1984 at about 5 P.M. the complainant, her husband Gagjibhai and her mother-in-law were at home. At that time Gagjibhai saw a boy named Ghanshyam, son of A-1, Koli Dharmashi, was cutting the bushes on the hedge and for that act of Ghanshyam, Gagjibhai reprimanded him. Ghanshyam at that time started abusing Gagjibhai. Gagjibhai told Ghanshyam to go away from that place otherwise he would be beaten. When this altercation between Gagjibhai and Ghanshyam was going on, mother of Ghanshyam, Tabuben came over there and she in turn informed about it to her husband, i.e., A-1 - Koli Dharmashi Shama. Dharmashi called for four persons named Parshottam Mulji (original accused No.2), Vitthal CR.A/383/1986 6/45 JUDGMENT Mulji (original accused No.3), Jeram Mashru (original accused No.4) and Mavji Shama (original accused No.5) and in response to the call, they all, armed with deadly weapons, forcefully entered in the court-yard of the house of the Gagjibhai. It was the case of the prosecution that A-1, Koli Dharmashi had a dharia in his hand and with it he inflicted a blow on the head of Gagjibhai Punabhai. It was the case of the prosecution that Savitaben was also assaulted with a stick by original accused No.5, Koli Mavji Shama, injuring her on her head, wrist and ear. It was also the case of the prosecution that other persons over there i.e., original accused Nos.2, 3 and 4 also had sticks in their hands and they were party to the assault. Immediately thereafter many persons from the neighbourhood came down at the scene of the offence and saved Savitaben and her husband from further assault. Thereafter injured Savitaben and her husband were put in a car and were taken for medical treatment CR.A/383/1986 7/45 JUDGMENT as they had sustained serious injuries. Savitaben was admitted in Ward No.9 whereas her husband Gagjibhai was admitted in Ward No.8 in Sir T. Hospital. 6.2. The motive behind this incident as alleged by the prosecution was that on the day of the incident, in the evening, deceased Gagjibhai saw Ghanshyam, son of Koli Dharmashi, cutting the bushes on the hedge. Gagjibhai reprimanded Ghanshyam for this act which was not liked by the accused persons. 6.3.On 9.5.1984 i.e., on the day of the incident, Gagjibhai was brought to Sir T. Hospital, Bhavnagar for treatment and thereafter on 16.5.1984 he was transferred to Civil Hospital, Ahmedabad for further treatment. On 18.5.1984 Gagjibhai succumbed to the injuries. Accordingly, charge of murder punishable under Section 302 of IPC was added in the complaint lodged by CR.A/383/1986 8/45 JUDGMENT Savitaben. 6.4.During the course of investigation, the Investigating Officer recorded statement of witnesses, drawn panchnama of scene of offence, held inquest on the dead body of Gagjibhai Punabhai and thereafter the dead-body was sent for post-mortem, collected autopsy report and as sufficient incriminating evidence against the accused was found, they came to be charge-sheeted in the Court of learned JMFC, Vallbhipur, Umrara, who committed the case to the Court of Sessions of Bhavnagar District as the offence punishable under Section 302 of IPC alleged against the accused is exclusively triable by the Court of Sessions. 6.5.On committal, the case was made over for trial to the learned Additional Sessions Judge, Bhavnagar who framed necessary charge against the accused vide Ex.5 on 22.5.1985 which was read CR.A/383/1986 9/45 JUDGMENT over and explained to them. The accused pleaded not guilty to the charge and claimed to be tried. Thereupon the five accused were put to trial in Sessions Case No.81 of 1984. 6.6.In order to bring home the charge levelled against the accused, the prosecution examined as many as 13 witnesses and relied upon their oral testimony, the details of which have been given in para 3 of the impugned judgment and order. They are as under:- (i) P.W.1, Ladji Jibhai Malek (Panch Witness), Ex.15. (ii)P.W.2, Jitendrabhai Mohanbhai Ardhvariyu, Medical Officer, Sir T. Hospital, Bhavnagar, Ex.17. (iii) Rameshbhai Dhanjibhai, Panch Witness, Ex.23. (iv) P.W.4, Savitaben Mohanbhai, first informant, widow of deceased Gagjibhai, Ex.34. CR.A/383/1986 10/45 JUDGMENT (v) P.W.5, Ambaben Devjibhai, mother of deceased Gagjibhai, Ex.36. (vi)P.W.6, Nanjibhai Naranbhai, Panch witness, Ex.37. (vii) P.W.7, Savitaben Ravjibhai, neighbour, Ex.41. (viii) P.W.8, Duda Bhagwan, neighbour, Ex.42. (ix)P.W.9, Tarsibhai Karamsibhai, neighbour, Ex.43. (x)P.W.10, Vashrambhai Chhaganbhai, neighbour, Ex.44. (xi)P.W.11, Dayaldas Madhavdas Lashkari, Head Constable 'A' Division, Bhavnagar Police Station, Ex.46. (xii) Dr. Rathindra Bala Saheb Deshmukh, Medical Officer, who performed the post-mortem of the deceased at Civil Hospital, Ahmedabad, Ex.52. (xiii) P.W.13, Girishkumar Ambalal, Patel, Investigating Officer, Ex.60. 6.7.The prosecution has also produced a number of CR.A/383/1986 11/45 JUDGMENT documents and relied upon the contents of the same. They are as under: (i) Note of muddamal sent to FSL – Ex.26. (ii)FSL Report, Ex.28. (iii) Serological report, Ex.29. (iv)Inquest panchnama, Ex.30. (v) Panchnama of place of incident, Ex.31. (vi)Complaint, Ex.35. (vii) Panchnama of the person of the accused, Ex.38. (viii)Panchnama of seizure of the cloth of the deceased, Ex.39. (ix)Panchnama of the person of the deceased drawn when the deceased was alive i.e., on 11.5.1984, Ex.45. (x) Post-mortem note of deceased Gagjibhai Punabhai, Ex.53. (xi)Dr. Chhaganlal Kanjibhai, Medical Officer of Referral Hospital, Vallbhipur was examined as a defence witness to prove the injuries sustained CR.A/383/1986 12/45 JUDGMENT by Mavjibhai Shamabhai, original accused No.5, Ex.64. (xii) Certificate of the injuries on the body of original accused No.5, Mavjibhai Shamabhai, Ex.65, issued by the doctor. 6.8.After recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement under Section 313 of the Code. In their further statement they denied the prosecution case in toto. 6.9.It is important to note that accused No.1 not only denied the prosecution case in toto but also filed written statement at Ex.61, wherein he explained the circumstances under which he inflicted one blow with sickle (danti) which was lying in a corner of the house of deceased CR.A/383/1986 13/45 JUDGMENT Gagjibhai, in exercise of right of his self- defence, when Gagjibhai attempted to assault him with dharia. 6.10. So far as accused No.5 is concerned, he in his further statement recorded under Section 313 of the Code stated that at the relevant time deceased Gagjibhai was assaulting Ghanshyam, son of A-1 in his court-yard. Therefore he along with A-1 went there and asked Gagjibhai not to assault Ghanshyam. At that time Gagjibhai inflicted dharia blows on him which resulted in injuries on his head as well as leg. A-1 tried to intervene and save A-5 and at that time Gagjibhai rushed towards A-5 to assault him. As A-5 had received injuries on his head and leg, he was admitted in Referral Hospital, Vallbhipur where he was treated by Dr. Chhaganlal Kanjibhai. A-5 sought permission from the trial Court to examine the doctor who examined and treated him in Referral Hospital. On getting such permission, to prove CR.A/383/1986 14/45 JUDGMENT the injuries sustained by him, A-5 examined Defence Witness No.1, Dr. Chhaganlal Kanjibhai, at Ex.64. In short, the case pleaded by them in their further statement recorded as per requirement of section 313 of the Code was the total denial of the prosecution case or the theory of self- defence, as the case may be. 6.11. On appreciation, evaluation, analysis and scrutiny of the evidence adduced and produced by the parties, the learned trial Judge came to the conclusion that the prosecution has not been able to establish the complicity of the accused in committing murder of Gagjibhai. The learned trial Judge also came to the conclusion that evidence on record was not sufficient to constitute an offence to punish the accused under sections 147, 148, 149, 323, 325 or 302 of the IPC. For coming to the said conclusions, the CR.A/383/1986 15/45 JUDGMENT learned trial Judge considered the following aspects: (a) Genesis of the prosecution case was highly doubtful. (b) The first informant, widow of deceased Gagjibhai, who was an eye witness, had suppressed the true origin of the occurrence. ( c ) The prosecution could not prove the injuries sustained by A-5- Mavjibhai. (d) The plea of A-1 that he inflicted one blow on the head of the deceased Gagjibhai with sickle which was lying in a corner of the house of deceased Gagjibhai in exercise of his self- defence was more probable and plausible. 6.12. On the aforesaid premises, the learned trial Judge recorded the finding of not guilty against the accused and resultantly he acquitted the accused of the offence with which they were charged, giving rise to instant appeal at the CR.A/383/1986 16/45 JUDGMENT instance of the State of Gujarat. 7. Mr. KP Raval, learned APP for the appellant, State of Gujarat, has submitted that there is ample evidence on record to come to the conclusion that the accused had formed an unlawful assembly with common object to assault Gagjibhai and in furtherance of their common object, all of them, armed with deadly weapons, went to the house of Gagjibhai and assaulted him with dharia on his head and with a stick on Savitaben, the complainant, on various parts of her body, as a result of which Gagjibhai received fatal injuries whereas Savitaben received grievous injuries. According to him, to prove the complicity of the accused, the prosecution has examined in all four eye witnesses who have given a correct account which is capable of proving complicity of the accused in commission of the offence. It is true that they are near and dear relatives of deceased Gagjibhai. Their presence CR.A/383/1986 17/45 JUDGMENT at the scene of occurrence was very natural as the incident had taken place near the house of deceased Gagjibhai. Mr. Raval has further submitted that it is settled principles of law that merely because the eye witnesses happen to be relatives of the deceased, their testimony cannot be thrown overboard. He has also emphasised that there is a motive behind the crime. As Gagjibhai saw Ghanshyam, son of A-1 cutting the bushes on the fence of his house, he reprimanded Ghanshyam and told him to leave the place immediately. Therefore, with a view to take revenge for the reprimand of the deceased, they assembled with a common object to teach Gagjibhai a lesson and a fatal blow was inflicted by A-1 on the head of Gagjibhai. Therefore, according to Mr. Raval, learned APP, the order of acquittal of A-1 for the offence punishable under Section 302 of the IPC is illegal and improper and requires to be quashed and set aside by allowing the appeal filed by the appellant – State of Gujarat CR.A/383/1986 18/45 JUDGMENT and thereby holding A-1 guilty of the offence punishable under Section 302 of the IPC and accordingly he may be punished. He, therefore, urged to allow the appeal filed by the appellant – State of Gujarat. 8. Per contra, Mr. Sunil Patel, learned advocate of A-1, has submitted that the prosecution has suppressed the genesis of the crime and the injuries caused to A-5 have not been explained, which defect is fatal to the prosecution case. So far as so-called four eye witnesses including the complainant is concerned, they are near and dear relatives of deceased Gagjibhai and, therefore, they have not given the correct account of the crime as to how and in what manner the incident has taken place. According to him, the accused were not aggressors. They only went to the scene of occurrence for rescuing Ghanshyam, son of A-1 who was being beaten by Gagjibhai after confining him in the court-yard of his house and when they CR.A/383/1986 19/45 JUDGMENT reached there, Gagjibhai assaulted A-5 with a dharia as a result of which A-5 received injuries. Thereafter Gagjibhai tried to assault A-1 also but A-1 could luckily save himself from the blow. When A-1 felt that his life is in danger, he took a sickle which was lying in the corner of the house and in his self-defence, inflicted a blow with the said sickle, which hit on the head of Gagjibhai as at that point of time it was a question of survival. Therefore, according to him, A-1 has exercised right of his self-defence to the limit so as to protect himself from the assault at the hands of Gagjibhai because at the relevant time Gagjibhai was having dharia in his hand and if A-1 had not inflicted the sickle blow then he would have been killed by Gagjibhai with the dharia. He has also emphasised that the aforesaid story was pleaded by A-1 in his further statement. According to him, it is a settled principle of criminal jurisprudence that when the explanations and CR.A/383/1986 20/45 JUDGMENT assertions with regard to the conduct of the accused offered by him in his written statement tendered while recording his further statement though are not proved they should ordinarily be accepted unless the circumstances indicate that they are false. It is also asserted by Mr. Patel that the prosecution has not explained the injuries sustained by A-5. In the said incident, A-5 had also received injuries. However, the prosecution did not take pains to collect evidence in this regard. Therefore, A-5 had to examine the doctor who examined and treated him for the said injuries, in his defence as D.W.1. A-5 has also lodged a complaint against Gagjibhai which fact has been admitted by the investigating officer in his evidence. However, the prosecution has not produced the said complaint on record. This shows that the prosecution has suppressed the genesis of the crime as well as not explained the injuries caused to A-5 which is fatal to the prosecution case. On the aforesaid CR.A/383/1986 21/45 JUDGMENT premises, it is submitted by Mr. Sunil Patel that the impugned judgment and order of acquittal recorded by the learned trial Judge does not call for any interference of this Court. 8.1.In support of the aforesaid contention, Mr. Sunil Patel, learned advocate of the accused, has relied upon the following decisions of the Supreme Court: (i) Lakshmi Singh and others v. State of Bihar, AIR 1976 SC 2263; (ii)Chandu v. State of Maharashtra, (2002) 9 SCC 408; (iii)Govindbhai M. Raval v. The State of Gujarat, 1997 (2) GLH 302. 8.2.Mr. Sunil Patel, learned advocate of the accused, has drawn the attention of this Court to the principle which governs and regulates the hearing of appeal by the High Court against an CR.A/383/1986 22/45 JUDGMENT order of acquittal passed by the trial Court and according to him, in an acquittal appeal, if other view is possible, then also the appellate court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 8.3. On the aforesaid premises, he contended that the appeal lacks merit and deserves to be dismissed and, therefore, he prayed that the appeal may be dismissed. 9. We have considered the submissions advanced by Mr. KP Raval, learned APP for the appellant – State of Gujarat and Mr. Sunil C. Patel, learned advocate for A-1 at length and in great detail. We have also perused the impugned judgment and order and the paper book containing testimonial CR.A/383/1986 23/45 JUDGMENT collections. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and reread by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. 10. The fact that Gagjibhai died a homicidal death is not in dispute. In this connection, the prosecution has examined P.W.12, Dr. Rathindra B. Deshmukh, at Ex.52, which is on page 134 of the compilation. He has, inter alia, testified that at the relevant time he was Associate Professor, Medicine Department, Civil Hospital, Ahmedabad. He has testified that on 17.5.1984, dead body of Gagjibhai was brought to him by Head Constable of Shahibaug Police station at about 12 noon for post-mortem examination. He started post mortem at 12.10 P.M. and completed it at 1.15 P.M. According to him, cause of death of Gagjibhai was shock as a result of head injury sustained by CR.A/383/1986 24/45 JUDGMENT him. According to him, all the injuries were ante-mortem and the death had occurred about 12 hours prior to the post-mortem examination. Post- mortem report is produced on record which is at Ex.53. 10.1. In view of the aforesaid oral evidence of P.W.12, Dr. Rathindra Deshmukh, Ex.52 and the autopsy report at Ex.53, there is no difficulty in coming to the conclusion that Gagjibhai died a homicidal death and accordingly it is held that Gagjibhai had died a homicidal death. 11. Having held that deceased Gagjibhai died a homicidal death, the next question that falls for our determination is as to whether A-1 had inflicted the blow on the deceased with an intention to cause his death or he has inflicted the blow in his right of self-defence? 12. In this connection, firstly we shall examine CR.A/383/1986 25/45 JUDGMENT the oral testimony of P.W.4, Savitaben, the first informant and is the widow of deceased Gagjibhai, who has been examined at Ex. 34, which is at page 89 of the compilation. She, in her oral testimony, has stated that Ghanshyam, son of A-1 came to her house for cutting the bushes at the fence adjacent to her house. Her husband Gagjibhai saw this and he reprimanded Ghanshyam and asked him to go away immediately. Thereupon Ghanshyam abused her husband. Her husband again reprimanded him and warned him that he would be beaten if he stayed there any further. During this altercation, mother of Ghanshyam informed about this alteration to the accused persons. Therefore, all the accused persons came there. A- 1 was having a dharia in his hand and remaining 5 persons were having sticks in their hands. In all six persons were there. They rushed to the courtyard of deceased Gagjibhai. A-1 inflicted a blow with the dharia on the head of her husband and A-5 inflicted sticks blow on her. As a CR.A/383/1986 26/45 JUDGMENT result of dharia blow given by A-1 on the head of her husband, he fell down. She also fell down on receiving stick blows inflicted by A-5. Thereafter all the accused persons inflicted stick blows on her husband and thereafter they fled from the scene of offence. People assembled there and they shifted her and her husband to hospital. Police came to the hospital and took her complaint which is at Ex.35. She has also testified that during the course of treatment, her husband died. She was also cross-examined by the learned advocate of the accused at length and in great detail. She has denied the suggestion that her husband had confined Ghanshyam in the courtyard and beaten him. She has also denied the suggestion that at the time of the incident A-2, A-3 and A-4 were not present. She has also denied the suggestion that A-1 had taken the sickle which was lying in a corner of her house and inflicted injury on the head of her husband in his self-defence. CR.A/383/1986 27/45 JUDGMENT 13. Similar is the evidence of P.W.8, Duda Bhagwan, resident of village Datretia and known to the accused as well as the injured, at Ex.42, which is at page 114 of the compilation as well as P.W.9, Tarsibhai Karamsibhai, a resident of village Datretia and known to the accused as well as the injured whose evidence is recorded at Ex.43, which is at page 117 of the compilation. Their evidence is more or less mere reiteration of the version of P.W.4, Savitaben Gagjibhai, in her evidence. 14. On reappreciation of the evidence of P.W.4, P.W.8 and P.W.9, it is clear that they are near and dear relatives of deceased Gagjibhai. So far as P.W.4 is concerned, she is the widow of deceased Gagjibhai whereas P.W.8 and P.W.9 are neighbours as well as relatives of the deceased Gagjibhai. CR.A/383/1986 28/45 JUDGMENT 15. It is also a fact that in the very incident, A-5 had also received injuries and, therefore, he had remained as