IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 229 of 1994 with CRIMINAL APPEALS No 234 of 1994, 267/94, 268/94, 318/94 AND CRIMINAL APPEAL NO. 406 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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? : -------------------------------------------------------- CRIMINAL APPEAL NO. 229 OF 1994 : VINUGIRI MOTIGIRI - Appellant (original Accused No.6) Versus STATE OF GUJARAT - Respondent CRIMINAL APPEAL NO. 234 OF 1994 : KALUBHAI M. KOLI - Appellant (original Accused No.1) V. STATE OF GUJARAT - Respondent CRIMINAL APPEAL NO. 267 OF 1994 : LALITGIRI R. BAVAJI - Appellant (original Accused No.3) V. STATE OF GUJARAT - Respondent CRIMINAL APPEAL NO. 268 OF 1994 : BAVAJI KIRANGIRI RAMGIRI - Appellant (Original Accused No.2) V. STATE OF GUJARAT - Respondent CRIMINAL APPEAL NO. 318 OF 1994 : BAVAJI RAMESHGIRI RAMGIRI - Appellant (original Accused No.4) V. STATE OF GUJARAT - Respondent CRIMINAL APPEAL NO. 406 OF 1994 : BAVAJI ASHOKGIRI - Appellant (original Accused No.5) V. STATE OF GUJARAT - Respondent -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 229 of 1994 MR MJ BUDDHBHATTI for the Appellant MR KG SHETH, APP for the State 2. Criminal Appeal No. 234 of 1994 MR JITEN M. BUDDHBHATTI for the Appellant MR KG SHETH, APP for the State 3. Criminal Appeal Nos.267/94, 268/94 & 318/94 MRS SHILPA J. UNWALA for the Appellants MR KG SHETH, APP for the State 4. Criminal Appeal No. 406 of 1994 MR AJ SHASHTRI for the Appellant MR KG SHETH, APP for the State -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE SHARAD D.DAVE Date of decision: 20/07/2001 ORAL JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI for the Court) 1. All these six appeals arise from the judgement and order dated 28th January 1994 of the learned Additional Sessions Judge, Gondal in Sessions Case No. 212 of 1994 convicting all the six accused persons for the offence under section 302 read with section 149 of the Indian Penal Code and sentencing them to life imprisonment and payment of fine of Rs.3,000=00 each, in default to undergo further imprisonment for a period of one year. 2. The prosecution version was that, on 15th September 1992 at about 9.30 in the morning, all the six accused persons, after having formed an unlawful assembly and in furtherance of their common object of causing death of Hareshbhai Jivkubhai, attacked him on Rajkot Dhoraji Road, near the house of Gigabhai in Navagadh. In the process, they caused him as many as 18 wounds with knives and a gupti. According to the prosecution, the accused No.4 gave him blows with gupti and all the other accused with knives. On that morning, Hareshbhai had left his house for proceeding to Gondal to attend one sessions case in which his three brothers were the accused persons. His sister Geetaben who was in the house, thereafter, proceeded for going to Monghiben, wife of Gigabhai to inquire about her health. On her way, she took alongwith her a young girl Damuben to accompany her. After they reached Gigabhai's house and while Geetaben was sitting with Monghiben and Damuben, who was about 13 years of age, was playing outside the `deli' (entrance gate), Damuben saw the six accused persons attacking Hareshbhai with knives. She, therefore, raised cries and on hearing commotion, Geetaben, Inaben who is the daughter of Monghiben and Monghiben came out of the `Deli'. Hareshbhai who was given multiple blows with these weapons entered the `Deli' at that time. According to the prosecution, after Hareshbhai entered the `Deli', the `deli' was closed from inside by Monghiben. Hareshbhai who was injured, was uttering the names of the accused Nos.2, 3 and 4 imploring them to leave him. All the six accused then climbed over the rooms of the said house known as `Chamunda Nivas' and started pelting bricks in the `fali' of the house from the top where these bricks were lying. According to the prosecution, Hareshbhai had taken off his `zabba' and was pressing it against his bleeding wounds. He then lay on the cot inside the room of Monghiben and died. He was declared dead when he was taken to the Jetpur Government Hospital at about 10 o'clock in the morning. The prosecution version is that four eye witnesses had seen Hareshbhai being attacked by these six accused persons and these were Damuben, PW-9, exh.24, Bishubhai Dahyabhai, PW-6, exh.21, Induben Bishubhai, PW-7, exh.22 and Jivkubhai, father of Hareshbhai, PW-8, exh.23. Of these persons, Bishubhai was a tenant residing in the house of Gigabhai with his wife Induben. Jivkubhai who, according to the prosecution, returned from the Dyeing Factory due to moist climate, was walking behind his son at some distance and had seen these accused persons attacking him. According to the prosecution, Monghiben and her daughter Inaben had also seen these accused persons having climbed over their house after Hareshbhai entered the `Deli' and Monghiben closed the door from inside and their pelting bricks in the `fali' of their house. The prosecution case is that the accused Nos. 2, 3, 4 and 5 could be traced together only on 26-9-1992 near village Ganod and at the time when they were arrested, blood stained clothes were seized from their body. 2.1 The prosecution case also is that the weapons which were used by these accused persons in causing injuries to Hareshbhai were discovered at their instance under various discovery panchnamas and that five of these weapons as well as the clothes which were seized from the accused Nos. 2, 3, 4 and 5 were having blood stains of human blood, which as per the Serologist's report, was of group `B' in each case. According to the prosecution, the `Jhabba' which was having multiple cuts due to various blows inflicted on Hareshbhai and which Hareshbhai had removed to press it against his bleeding wounds, was seized from the `fali' (courtyard) of the house of Gigabhai and on analysis, that article was also found to be having blood stains of group `B' blood. The articles which were removed from the dead body of Hareshbhai at the hospital under the panchnama exh.27 and which were also forwarded for analysis were found to be having blood group of `B'. Similarly, some of the bricks which were allegedly thrown by the accused persons when they had climbed over the rooms of the house of Gigabhai as well as blood stained earth collected from the `fali' were also on analysis found to be having blood of group `B'. 2.2 It was also the prosecution version that the accused persons had ample motive to commit the offence. On 2-2-1992, FIR mark 12/29 was lodged by one Sudhaben against the accused Nos. 3 and 1 for the offences under sections 452, 354, 504 read with section 114 of the Indian Penal Code against these two accused persons and it was alleged therein that while trying to save the complainant from an attempted rape, Hareshbhai who was the Sarpanch at that time, had given a blow on the head of the present accused No.1 - Koli Kaliya. The prosecution version also is that Koli Kaliya had filed an FIR mark 12/30 on 2-2-1992 against Hareshbhai Jivkubhai i.e. the deceased in the present case and two women. Furthermore, the accused No.3 Kiran who was formerly a Upa Sarpanch, by getting Hareshbhai involved in a false case. The accused Nos. 2, 3 and 4 are real brothers and the accused No.5 is their cousin brother. There was, therefore, ample motive for the accused persons to take revenge against Hareshbhai. According to the prosecution, it was established beyond any doubt that all the six accused persons had, by forming an unlawful assembly, attacked Hareshbhai on 15-9-1992 in the morning and inflicted as many as 18 incised wounds and achieved the common object of causing murder of Hareshbhai. 3. All the accused were charged for the offences under sections 143, 144, 146, 148, 302 read with section 149, in the alternative section 302 read with section 34 of the Indian Penal Code and section 37(1) read with section 135 of the Bombay Police Act, by Charge exh.1 on the aforesaid facts. 4. The trial Court in a detailed judgement on the basis of the evidence on record found that it was established by the prosecution that all the six accused persons had, on 15-9-1992, formed an unlawful assembly with the common object of intentionally causing death of Hareshbhai Jivkubhai and had attacked him with sharp cutting instruments like knives and gupti with a view to achieve their common object and caused him serious injuries with these weapons, which were sufficient in the ordinary course of nature to cause death and that, as a result of these injuries, Hareshbhai died homicidal death. The trial Court negatived the contentions which are sought to be raised before this Court also and convicted all the six accused persons for the offence under section 302 read with section 149 of the Indian Penal Code. 5. The four learned counsel appearing for the accused persons have contended before us that the story narrated by the so called eye witnesses was highly improbable and it was not possible that six persons would be assaulting simultaneously with sharp cutting instruments like knives and a gupti resulting in eighteen wounds. It was submitted that there was nothing on record to show as to how these six accused persons come to know that Hareshbhai was to pass from near the place where they are said to have attacked him. It was submitted that though it may have been established that a crime was committed, the perpetrators of the crime were required to be proved by cogent evidence and this has not been done in the instant case. In the FIR, two unknown persons were shown to have been there amongst the six assailants whose names, or description, were not disclosed and there has been a deliberate introduction of eye witnesses only after making of the entry exh.57 in the station diary with a view to boost up the prosecution story. According to the learned counsel, the FIR exh.83 appeared to have been recorded after the recording of the statements of witnesses and after the investigation had already commenced and if that document is ignored and the entry exh.57 was taken to be the FIR, there was no disclosure of the names of any the accused, nor did the prosecution version figure in that entry. It was submitted that delay in lodging the FIR was deliberate and for the purpose of concocting the story against the accused persons. It was further contended that the entire incident had occurred in a broad daylight and there were many passersby on the road, yet no independent witnesses were examined by the prosecution in support of its version. Only interested witnesses taken from the same `fali' were examined by the prosecution. It was then contended that the medical evidence did not corroborate the eye-witnesses and there was conflict on material aspects between the medical evidence and the ocular evidence. As per the medical evidence, out of the eighteen injuries inflicted on Hareshbhai, six were sufficient individually to cause his death instantaneously and yet, the prosecution has developed the story that Hareshbhai had, after being given these injuries, entered the `deli' of the house of Gigabhai. According to the learned counsel, in view of the nature of serious injuries, Hareshbhai could not have walked any distance and entered into the house of Gigabhai. Furthermore, no mud sample was collected from the alleged spot where Hareshbhai was assaulted, nor was any blood trail detected therefrom to indicate that he had gone from that spot through the `deli' into the house of Gigabhai. It was submitted that absence of blood marks in the open space where the attack is said to have taken place shows that the incident may have occurred elsewhere. It was also contended that no test identification was held during the investigation and therefore, no reliance can be placed on the identification made by the witnesses in the Court. It was also contended that the motive alleged does not fit in with the pattern of the crime. The learned counsel appearing for the accused No.6 submitted that so far as the accused No.6 was concerned, no motive was alleged at all. It was further submitted by all the learned counsel that the discovery panchnamas could not be relied upon, because, most of the panch witnesses had turned hostile which would show that the investigation was not straight forward. It was also submitted that the shoes which were recovered from the dead body of Hareshbhai were not having any mud on them, which falsifies the prosecution version that blood stains could not be detected in the open space where Hareshbhai is said to have been assaulted by these six accused persons due to rain. It was submitted that profuse bleeding that would take place because of such incised wounds, would have resulted in blood being found from the spot where the assault was committed and since this was not detected, the benefit should go to the accused by holding that the place of occurrence was not satisfactorily established. They further argued that there was a major discrepancy in the blood group of the deceased which was noted in the post mortem notes and deposed to by the medical expert and the group which was detected on various articles which were forwarded for a report of the Serologist. It was submitted that the post mortem notes mention that the blood group of the deceased was `O', while as per the Serologist's report, the blood group was `B'. In view of this discrepancy, the possibility of the investigating agency trying to use the planted articles to connect the accused persons with the crime cannot be ruled out and the benefit of such discrepancy should go to the accused persons, because, it would appear that the blood which was detected on various articles including the weapons which were discovered under the panchnamas, was of some person other than Hareshbhai. It was further argued that all the eye-witnesses were interested and chance witnesses, whose testimony did not inspire any confidence. The conduct of witness Jivkubhai was assailed as unnatural, because, as a father of Hareshbhai, he did not even react when his son was being seen by him assaulted by six persons with knives and a gupti. Since Jivkubhai had not satisfactorily explained his presence near the scene of the offence, he should be treated as a `chance witness'. He was also an interested witness being related to the deceased. It was submitted that the version of all the witnesses was exaggerated and there were material improvements made in their evidence making them unreliable. It was also argued that the story that all the six accused persons climbed over the house of Gigabhai was highly improbable, because, if they were holding knives in their hands, it was not possible for them physically to climb over the wall and go on the top of the rooms of Gigabhai's house. Therefore, even the partial eye-witnesses who are said to have witnessed the six persons climbing over the house of Gigabhai and throwing bricks, were highly unreliable. As regards the witness Damuben, it was submitted that she was a child witness of 13 years of age and it was not even ascertained as to whether she understood the sanctity of oath and therefore, no implicit reliance can be placed on her deposition. All the learned counsel, therefore, submitted that their appeals should be allowed and all the accused should be acquitted of the charges for which they have been convicted. 5.1 In support of their contentions, the learned counsel for these accused persons relied upon the following decisions : [a] The decision of the Supreme Court in Rameshwar Singh v. State of Jammu & Kashmir, reported in AIR 1972 SC 102 was cited for the proposition that identification of the accused by the concerned witness where the accused is not previously known to the witness furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to the furnishing corroboration of the evidence to be given by the witness later in court at the trial and from this point of view, such identification is a matter of great importance both for the investigating agency and for the accused. The decision of the Supreme Court in Mohanlal Gangaram Gehani v. State of Maharashtra reported in AIR 1982 SC 839 was also relied upon for the same proposition. [b] The decision of the Supreme Court in Chhabi Nath v. State of U.P. reported in AIR 1988 SC 345 was cited for the proposition that failure to state identity of the accused in the FIR raises a reasonable doubt about complicity of accused in crime and was relied upon by the learned counsel for the accused Nos. 5 and 6 whose names did not appear in the FIR. It was held that, in a case of decoity occurring in the darkness of the night, the evidence of the test identification should be carefully scrutinised and in such case where the eye witnesses, on their own admission, did not know the appellants before the occurrence, their identification of the accused persons for the first time in the dock after a long lapse of time would have been improper. [c] The decision of the Supreme Court in Raju alias Rajendra v. State of Maharashtra reported in 1998 SCC (Cri.) 296 was cited to point out that, in that case, in absence of any test identification held for identification of one of the accused immediately after his arrest, the Court found it difficult to solely rely upon his identification by the witnesses for the first time in Court. It may be noted from para 8 of the judgement that so far as the accused No.2 was concerned, it was admitted by the witnesses that they saw him for the first time on the day of the incident. As regards the identification of accused No.1 which is discussed in para 7 of the judgement, it was found that he was known to both the witnesses from before and in such circumstances, their identification of the accused No.1 as one of the two miscreants who assaulted the deceased with stone, cannot be questioned. [d] The decision of the Supreme Court in Varghese v. State of Kerala reported in 1998 SCC (Cri.) 890 was cited to point out that it was held, in a case where the articles were found lying in the open in a paddy field, that mere recovery of a knife and gloves in the presence of the accused cannot be regarded as sufficient for connecting the accused with the commission of crime. [e] The decision of the Supreme Court in Kali Ram v. State of Himachal Pradesh, reported in AIR 1973 SC 2773 was cited for the proposition that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is in favour of the accused should be adopted. It was observed in that case that this principle had a special relevance in cases wherein the guilt of the accused was sought to be established by circumstantial evidence. [f] The decision of the Supreme Court in B.N. Singh v. State of Gujarat, reported in AIR 1990 SC 1628 was cited to point out that in a case where it was stated that the accused had surrounded the deceased and were beating him, it would not have been possible for them to cause injury without causing hurt to the persons holding the accused. In that case, it had been stated that the three accused persons had stabbed four or five times on the chest and thighs of the deceased and three other persons were holding his hands. On the facts of the case, the Supreme Court held that the evidence of witnesses was untrustworthy. [g] The decision of the Supreme Court in Pohalya Motya Valvi v. State of Maharashtra, reported in AIR 1979 SC 1949 was referred to for the proposition that the recovery of murder weapon becomes incriminating not because of its recovery at the instance of the accused, but because the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gave information leading to its discovery was the person who concealed it. [h] The decision of the Supreme Court in Makhan Singh v. State of Punjab, reported in AIR 1988 SC 1705 was cited to point out that it was held that since the exclusive knowledge of the discovery of the dead bodies could not be attributed to the accused, the evidence under section 27 cannot be said to be a circumstance against the accused. In para 11 of the judgement, it was observed that, there was no other corroborative evidence about the extra judicial confession and that as rightly conceded by the learned counsel for the State the extra judicial confession was a weak peace of evidence and was hardly of any consequence. [i] The decision of the Supreme Court in Dudh Nath Pandey v. State of U.P. reported in AIR 1981 SC 911 was cited to show that in a case of circumstantial evidence, the evidence of recovery of pistol at the instance of the accused was held not by itself sufficient to prove that it was he who pointed out the weapon wielded it in offence. In that case, it was observed that the statement accompanying the discovery was woefully vague to identify the authorship of concealment with the result that the pointing out of the weapon may at best prove the appellant's knowledge as to where the weapon was kept. [j] The decision of the Supreme Court in Trimbak v. The State of Madhya Pradesh, reported in AIR 1954 SC 39 was cited to point out that the Supreme court held in that case that when the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused was compatible with the circumstances of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles. That was a case under section 411 of the Indian Penal Code and the Supreme Court observed that it was settled law that the presumption of the innocence of an accused person is reinforced by an order of acquittal and thus, where in an appeal against the acquittal the High Court's approaching the case as if it was an appeal against the conviction and taking the view that the accused having given no explanation regarding his knowledge of the place from which the ornaments were taken out, it must be presumed that he must have kept the ornaments there and that the fact that the field did not belong to the accused and place was accessible to others would not show that the ornaments were not in his possession, was not a correct way of approaching the decision of the case under section 411 of the IPC. [k] The decision