IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 811 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE KSHITIJ R.VYAS 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- RABARI BHUPAT DEVAYAT Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 811 of 1995 MR KB ANANDJIWALA for Petitioner No. 1-4 Mr I M Pandya, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE KSHITIJ R.VYAS and MR.JUSTICE D.P.BUCH Date of decision: 05/06/2003 ORAL JUDGEMENT (Per : MR.JUSTICE D.P.BUCH) The appellants above named have preferred this appeal under section 374 of the Code of Criminal Procedure, 1973, (for short, 'the Code'), challenging the judgment and conviction order dated 31.7.1995 recorded by the learned Addl.Sessions Judge, Junagadh in Sessions Case No.129/93 convicting the present 5 appellants for various offences including the offences punishable under sections 302, 326, 307 read with section 35, 324, 147, 148 and 149 of IPC. By the said judgment and conviction order, the learned trial Judge had inflicted following punishments on the appellants: i. Appellant No.1, Bhupat Devayat Rabari was convicted for an offence under section 302 of IPC and was sentenced to suffer R.I. for life. He was also directed to pay fine of Rs.200/-/- and in default of payment of fine, he was directed to suffer R.I. for six months. He was also convicted for an offence punishable under section 307 read with section 34 of IPC but no separate sentence was imposed upon him for the said offence. ii. Appellant No.2, Raja Lakha Rabari was convicted for offence under section 307 of IPC as well as for offence under section 302 read with section 34 of IPC and for offence punishable under section 302 read with section 34. He was sentenced to suffer R.I. for life. He was also directed to pay fine of Rs.200/-/- and in default of payment of fine, he was required to undergo further R.I. for six months. No separate sentence was imposed upon this appellant for offence under section 307 of IPC. iii. Appellant No.3, Jika Devayat Rabari was also convicted for offence under section 302 read with section 34 of IPC as well as for offence punishable under section 307 read with section 34 of IPC and similar sentence has been imposed on him also. iv. Appellant No.4, Jadav Devayat Rabari was also convicted for offence under section 302 read with section 34 of IPC as well as for offence under section 307 read with section 34 of IPC and similar sentence was imposed on him also. 2. The trial court further directed that the appellants be given benefit of provisions made under section 428 of the said Code and the sentence already undergone be set off against the sentence awarded. 3. The facts of the case of the prosecution as can be gathered from the FIR filed by injured eye witness Bhovan Harjibhai at Exh.38 may be briefly stated as follows: Injured eye witness Bhovan Harjibhai was dealing with the business of sale and purchase of groundnut in the partnership of deceased Balubhai. Both of them used to purchase groundnut from different districts and used to sell and supply the same to Amar Industries at Junagadh. They used to hire truck of prosecution witness-Naran Rana. 4. The incident took place on 13.5.93 at about 10.30 p.m. According to the said FIR, two days prior to the said incident, the informant and prosecution witness Naranbhai Rana had gone to Savar Kundala Taluka for the purchase of groundnut in truck bearing No.GTK 4260 belonging to the said witness Naranbhai Rana. They purchased groundnut from Savar Kundala and emptied the truck in the premises of Amar Industries at Junagadh on 13.5.1993 which is situated in GIDC estate and which belongs to one Kantibhai Patel. After unloading the truck in the said premises at about 7 p.m. on 13.5.1993, they both were returning to their residence. On the way, near Majevadi gate, the first appellant met them on the road and enquired as to why they were not transporting their goods in his (truck of appellant No.1-Bhupat) truck and why they used to hire truck of other persons. He also told them that if they wanted to hire truck of a stranger, then they should pay an amount of Rs.200/- per trip to him. At that point of time, the informant told him that he was not in a position to pay the said amount to the first appellant. Thereafter the informant, deceased Balu, his brother Naughanbhai Ebhabhai all had gathered together at the place of the informant. Even witness Naranbhai Rana was also present at the said residence. At that point of time, the informant informed the deceased that the first appellant was demanding money and was stopping his vehicle on the way. That at that time, the deceased replied that money could not be paid to the first appellant. That thereafter they decided to meet the first appellant and, therefore, they all went to the residence of the first appellant which is situated outside Majevadi gate at Junagadh. However, the first appellant was not available there. Therefore, they all returned to the house of the informant which is situated near Randal well at Junagadh. It was around 10.30 p.m. They all were standing right in front of the residence of the informant. At that point of time, the appellants Bhupat Rabari, Raja Rabari, Jika Rabari and Jadav Rabari arrived there. Out of them first appellant-Bhupat Rabari had an iron pipe with him, appellant-Raja Rabari was having a sword with him whereas appellants Jadav Rabari and Jika Rabari possessed iron pipe and stick respectively. On arrival of the said appellants, they enquired as to why they did not use to hire their truck. They also enquired as to why these people had visited the house of the first appellant. On so saying, the first appellant dealt a forceful blow of iron pipe on the head of the deceased. Appellant Raja Rabari dealt a sword blow on the back of the informant. Appellant Jadav had dealt a blow with iron pipe on the head of Naughanbhai and another blow on the back side of the shoulder of the deceased. Driver Naranbhai Rana tried to intervene and at that point of time, Jika Rabari dealt a stick blow on him. Thereafter, these witnesses started shouting at which son of the informant Nilkanth Bhovanbhai and the wife of the informant Sharda and their daughter Varsha and the persons staying in the neighbourhood rushed to the spot. In the meantime, all the four appellants fled away in a rickshaw. Thereafter, the injured witnesses were taken to the Government Hospital in the vehicle of Naranbhai Rana for treatment. There it was noticed that the injuries received by the deceased were serious and the deceased was unconscious. That when the incident took place, the lights were on and the informant could identify the accused persons. Accordingly FIR as lodged by the informant at 12.40 midnight against the appellants. 5. Thereafter it was noticed that the injuries received by the deceased as well as by the informant were serious and, therefore, they were referred to the Civil Hospital at Ahmedabad. Therefore, they were on way to Ahmedabad. In the meantime, the condition of the deceased was found to be serious and, therefore, instead of going to Ahmedabad, they approached the Civil Hospital at Rajkot. There some treatment was given to the injured persons. However, the deceased died and, therefore, offence punishable under section 302 of IPC was also registered against the appellants. The informant was treated at the Civil Hospital at Rajkot and thereafter he was treated in a private hospital also as his condition was also serious. 6. On receiving the aforesaid FIR, investigation was undertaken by P.I. Chudasma. He, drew panchnama of the scene of the offence and dead body of the deceased was referred for post mortem and postmortem report was collected. During the course of investigation, statements of the witnesses were recorded, panchnamas were drawn for the recovery and discovery of muddamal weapons. Reports of FSL and serologist were collected. The appellants were arrested and they were presented before the concerned learned Magistrate. At the end of the investigation, the Investigating Officer found that a case was made out against the appellants and other two accused persons and, therefore, charge sheet was filed against all the persons by the learned Magistrate, Junagadh. Since the offences punishable under sections 302 and 307 of IPC were exclusively triable by a Court of Sessions, the learned Magistrate committed the case against the appellants to the court of Sessions under section 209 of the said Code. There the case was registered as Sessions case no.129/93. The learned Judge incharge of the case framed charge against the appellants for the aforesaid offence. It was read over and explained to the appellants. They pleaded not guilty and claimed to be tried. Therefore, the learned trial Judge, proceeded to record evidence against the appellants and other two accused persons. At the close of the evidence, the learned trial Judge recorded further statements of all the accused persons under section 313 of the Code. The appellants and other accused persons had pleaded a case of total denial. They contended that they were not present at the time of the commission of the offence and they had not committed any offence. After hearing the argument, the learned trial Judge found the present appellants guilty for the aforesaid offences. However, the learned trial Judge found that original accused No.6 and 7 were not proved to have committed any offence and, therefore, benefit of doubt was extended to them and they were acquitted. Then the learned trial Judge heard the learned Advocates for the parties on the quantum of punishment and thereafter, sentenced the appellants for the aforesaid offence as aforesaid. 6. Feeling aggrieved by the said judgment and conviction order of the trial court, the appellants have preferred this appeal before this court. Even before this court it has been mainly contended by the learned Advocate for the appellants that the appellants were not present at the scene of the offence. That they have not committed any offence, that the name of the first appellant was not properly described in the FIR and since he was not present, name of the first appellant has been shown as Bhupat Kala whereas the first appellant is Bhupat Devayat Rabari and, therefore, there is a clear case of mistaken identity and, therefore, the prosecution cannot be treated to have proved that the first appellant was present at the scene of the offence and he committed the offence in question. That on the whole, the judgment and conviction order of the trial court are illegal and erroneous and deserve to be set aside. The appellants have, therefore, prayed that the present appeal be allowed, the judgment and conviction order against the appellants be set aside, the appellants be held not guilty for the aforesaid offences and they may be set at liberty forthwith. On receiving the appeal, it was admitted but bail was refused. 8. When the appeal came up for final hearing, Mr K B Anandjiwala, learned Advocate appeared on behalf of the appellants whereas on behalf of the State, the appeal was argued by learned APP, Mr I M Pandya, who has supported the judgment of the trial court. 9. In order to prove the guilt against the appellants the prosecution has examined as many as 23 witness as follows: -------------------------------------------------------- i. PW 1 Exh.14 Dr.Tulsidas Aghara, Rajkot ii. PW 2 Exh.24 Dr. Sushilkumar Karia, " iii. PW 3 Exh.26 Dr.Viral vasavada, Rajkot iv. PW 4 Exh.37 Bhovanbhai Harjibhai, Informant-injured eyewitness v. PW 5 Exh.39 Naughanbhai Ebhabhai, injured eye witness vi. PW 6 Exh.40 Nilkanth Bhovanbhai, eye witness, s/o Bhovanbhai vii. PW 7 Exh.41 Rameshbhai Ramjibhai (hostile) viii. PW 8 Exh.43 Amrutlal Vrajlal, Panch ix. PW 9 Exh.45 Ksambhai Hussain (hostile) x. PW 10Exh.47 Jentilal Dayalal (hostile) xi. PW 11Exh.49 Arbham Oghad " xii. PW 12Exh.51 PSI Hansaben Joshi xiii. PW 13Exh.54 H.C. Merubhai Devani xiv. PW 14Exh.56 Hasan Mohmad (hostile) xv. PW 15Exh.58 Lalitkumar Parmanand " xvi. PW 16Exh.60 Savarsingh Chhagansingh " xvii . PW 17Exh.65 Nilesh Girdharlal (panch witness Exh.47) xviii. PW 18Exh.66 Manoj Kishorchand (panch witness Exh.45) xix PW 19Exh.67 Sarman Samat (hostile co-panch) xx. PW 20Exh.68 Naranbhai Rana (hostile) xxi. PW 21Exh.69 Dr.Nilaben (post mortem) xxii. PW 22Exh.71 Girdharlal Mohanlal xxiii. PW 23Exh.72 P.I.Shri Chudasama -------------------------------------------------------- The prosecution has also brought on record certain documentary evidence as follows: i. Injury certificate of deceased Exh.15 ii. X-ray plate of the injuries Exh.16&17 of the deceased iii. X-ray plate of the injuries of the informant Exh.18&19 iv. -do- Exh.20 v. X-ray plates of injuries of injured eye witness Navghan Ebhabhai Exh.21&22 vi. Injury cert. of injured Naavghan Exh.23 vii. Injury cert. of Dr.Karia Exh.25 viii. Cert.of injury and treatment issued by Dr.Vasavada Exh.26 ix. Inquest panchnama of deceased Exh.29 x. Panchnama for collection of blood of the informant Exh.30 xi. Panchnama regarding clothes of deceased Exh.31 xii. Panchnama regarding seizure of rickshaw Exh.32 xiii. Outward letter issued to the chemical Analyser Exh.33 xiv. C.A. report of FSL Exh.34 xv. Serological report & CA report Exh.35&36 xvi. FIR Exh.38 xvii. Panchnama regarding scene of offence Exh.44 xviii. Panchnama reg. seizure of clothes of informant Exh.46 xix. Panchnama reg.seizure of shirt/clothes of Naran Rana Exh.48 xx. Station diary entry Exh.52 xxi. Station diary entry Exh.53 xxii. -do- Exh.55 xxiii. Arrest panchnama of accused 1 to 6 Exh.57 xxiv. Arrest panchnama of accused No.7 Exh.59 xxv. Injury certificate of Navghan Ebha Exh.74 10. So far as the ocular evidence is concerned, the prosecution examined Dr.Tulsidas of Rajkot at exh.14, Dr.Karia of Rajkot at Exh.24, Dr.Vasavada of Rajkot at Exh.26 and Dr.Nilaben Vasantji at Exh.69. So far as the death of the deceased is concerned, we find evidence of Dr.Nilaben at exh.69. At the relevant point of time, she was working as Medical Officer in the Civil Hospital, Rajkot. On a requisition made by the Pradyumannagar police station, Rajkot, she had performed the post mortem in respect of the dead body of the deceased. She has clearly deposed before the trial court that she had performed post mortem in respect of the dead body of the deceased. At that point of time, she had noticed following injuries on the person of the deceased: i. Deep wound near middle right side region of head - cross mark shape ii. one CLW of 1 cm size over right hand outer side. It was also noticed by her that so far as the head injury is concerned, clotting of blood was noticed and internal injury was also found - 8 cms size. It was also noticed that there was fracture in respect of skull bone. The witness has recorded her opinion that the deceased died on account of shock sustained by him on account of haemorrhage and on account of the injuries sustained by him. She has also stated that the said injuries were sufficient in the ordinary course of nature to cause death of the deceased. She has further deposed that the injuries could be caused by muddamal iron pipe. 11. Looking to the said evidence, it is apparent that the deceased died on account of the said injuries sustained by him. Even there is evidence of the informant that the appellants had dealt blows with weapons on the head of the deceased and, therefore, he sustained injuries. Therefore, he was carried to different hospitals and ultimately the deceased died on account of the said injuries. Considering the medical evidence, it is apparent that the deceased died a homicidal death. It may be added here that this fact was not seriously disputed before the trial court as well as before this court. Therefore, it has to be held that the trial court was justified in observing that the deceased died a homicidal death. 12. Then we have to decide as to whether the trial court was justified in holding that the said injuries were actually caused by the present appellants. As said above, the informant has stated in FIR Exh. 38 as well as in his oral evidence that the informant as well as the deceased both were dealing with business of sale and purchase of groundnut in partnership and they used to transport groundnut in the vehicle of witness Naran Rana. It is also the evidence of the informant that in the past they used to transport their goods in the vehicle of the first appellant. Now at this stage, it has been argued on behalf of the appellant that the first appellant did not have any vehicle and, therefore, there could not be any transport of goods of the informant and the deceased in the truck of the first appellant. Now the truck may not be belonging to the first appellant or other appellants. It seems that the deceased as well as the informant used to transport their goods through the first appellant. In other words, the first appellant may be working as commission agent or he may be making arrangement for the transport of the goods of the informant as well as of the deceased from one place to another. The witnesses have consistently stated that the first appellant used to transport goods of the informant as well as of the deceased before about 5 years. They have also said that for the said purpose, the first appellant used to come to the house of the informant. When the first appellant was at business terms with the informant and the deceased, it would be quite natural that they would visit the residence of the informant for the purpose of discussion. Therefore, it is quite natural that the informant and the deceased knew the first appellant since long. It has also been stated in the FIR that since last about 5 years they used to transport their goods in the truck of prosecution witness Naran Rana. This would show that the goods of the informant and the deceased was not being transported in the truck of the first appellant or through his agency since last five years. It can be gathered from the said event that the first appellant was therefore, angry and annoyed on account of the aforesaid conduct of the informant and the deceased and, therefore, he met the informant on the date of the incident at about 7 p.m. near Majevadi gate at Junagadh and enquired from him as to why the goods were not being transported in the truck of the first appellant. It means that the first appellant insisted that the informant should transport his goods in the truck of the first appellant then the informant should pay R.200/- per trip to the first appellant. This appears to be a threatening proposal made by the first appellant to the informant. The informant replied that he could not pay the said amount and ultimately there was a meeting at 10 p.m. at the residence of the informant with the deceased. The deceased, according to the FIR, was also not agreeable with the said threatening proposal and, therefore, he proposed to persuade the first appellant and, therefore, all of them had gone to the house of the first appellant which is situated outside Majevadi gate. Undisputedly the first appellant has been staying there outside the said gate. These facts have not been seriously disputed during the cross examination of the informant also. The aforesaid facts are further supported by ocular evidence of the informant. Therefore, oral evidence of the informant on this aspect has been amply supported by the FIR which has been registered within two hours of the happening of the incident. This shows that the FIR was lodged without any loss of time and it, therefore, cannot be said that the prosecution has concocted the same story with a view to falsely implicate the appellants in the offence in question. 13. The said fact is further supported by the conduct of the first appellant. The first appellant in the company of other appellants went to the house of the informant where the incident in question took place. This shows that the first appellant knew the address and whereabouts of the informant. This again shows that the first appellant was on visiting terms with the informant. There also they enquired as to why the deceased and the informant did not transport their goods in the truck of the first appellant. At that point of time, the appellants dealt blows with iron pipes, sword and stick on the informant, deceased and Naran Rana and all of them sustained injuries at the hands of the appellants as per the case made out in the FIR. 14. The aforesaid facts are further supported by the evidence of the informant which has been recorded before the trial court at Exh.37. There also the said fact has been reiterated by the informant in details. The aforesaid facts are further supported by the evidence of other eyewitnesses. We can find the evidence of Naughan PW 5 Exh 39. The deceased was the sister's husband of this witness. This witness has stated that at the time of the incident, he was staying at Surat. He had come to the place of the deceased for attending certain marriage. He has also stated that at about 10 a.m. on the date of the incident he was present at the residence of the informant. That the informant and the witness-Naran Rana were also present there. That at that time, the informant disclosed that the first appellant had met him near Majevdi gate and inquired as to why his truck was not utilised for carrying the goods of the deceased and the informant. That the first appellant also told him that if they did not use the truck of the first appellant, they would be required pay to the first appellant a sum of Rs.200/- per trip. That at that time, the deceased told the informant that money could not be paid in that way and, therefore, the informant and the deceased with others went to the residence of the first appellant but he was not available and, therefore, they all returned to the residence of the informant. That they were right on the road, lights were on and they were exchanging some talks. In the meantime, the appellants arrived there in a rickshaw and again enquired as to why they were not transporting their goods in his truck. At that point of time, before the deceased could give reply, the first appellant dealt pipe blow on the head of the deceased. Appellant Jadav dealt pipe blow on the head of the witness. Appellant-Raja Lakha dealt a blow with sword on the back of the informant. Appellant Jika Devayat dealt a stick blow on the hand of Naran Rana. That thereafter they started running away towards the rickshaw and ultimately they ran away in the said rickshaw. According to the witness, thereafter the injured were taken to the Government Hospital and after primary treatment at Civil Hospital at Junagadh, the informant and the deceased were treated at Civil Hospital, Rajkot where the deceased died in the early morning. The witness has also identified all the appellants. 15. Even this witness has also deposed that he used to go to Junagadh at some intervals. That he had seen the appellants and therefore he was in a position to identify the appellants. The appellants tried