CR.A/301/1998 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 301 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= ASHOKKUMAR MAGANBHAI VANKAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR JV JAPEE for Appellant MS. MANISHA L. SHAH, APP for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MS.JUSTICE H.N.DEVANI CR.A/301/1998 2/34 JUDGMENT Date : 24/08/2007 CAV JUDGMENT (Per : HONOURABLE MS.JUSTICE H.N.DEVANI) 1. By this appeal the appellant challenges the judgement and order dated 11th December, 1997 passed by the learned Additional Sessions Judge, Sabarkantha at Himatnagar in Sessions Case No.32 of 1996, whereby the appellant has been convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced to life imprisonment and fine of Rs.5000/- and in default to undergo simple imprisonment for a period of one year. 2. The case of the prosecution is that the complainant Vidyaben had lodged a complaint that she had acquired a plot at a small distance from the Harijan-vas about four years ago, wherein they had started construction since six months. As the construction was going on it was necessary to sprinkle water on the walls, hence, she and her husband had gone to the plot on 6.12.1995 at about 6:00 p.m. Her husband would fill water in a container from the Harijan-vas and the complainant would meet him half-way on the road and take the container and sprinkle the water on the walls and hand back the empty container to her husband. It was the say of the complainant that her husband had gone to fill an empty container and she had gone to sprinkle CR.A/301/1998 3/34 JUDGMENT water and after sprinkling the water when she returned with the empty container she heard some commotion at the end of the Harijan-vas hence, she went to the narrow lane at the end of the Harijan-vas and found her husband lying in the lane and blood was flowing from his head. At that time, the complainant had seen Ashok Maganbhai Vankar a resident of the Harijan-vas running towards his house with a wooden pestle. She has also seen Pravin Ratnabhai Vankar and others going towards their vas (colony). The complainant went near her husband and found that he was dead, because of which she was frightened and started screaming and went to her house to inform her relatives. After a short while her brothers-in-law, Lavjibhai and Manubhai, carried her husband’s dead body and brought it home. After fetching a rickshaw from the village, her husband was seated in the rickshaw in a horizontal position, and she, accompanied by the leader of the village, one Revabhai Shamalbhai and Manubhai Dhulabhai and Lakhabhai Paragbhai, took her husband to the Idar Civil Hospital for treatment, where the doctor declared him dead. Thereafter, in connection with the death of her husband, the complainant came to know that Pravinbhai Vankar had tried to start the lights from the electric pole at the end of the Vankar- Vas and that a quarrel ensued between him and Ashokbhai Vankar and his mother Dahiben due to which Ashokbhai got hold of a wooden pestle from his house and ran after Pravinbhai. At that time CR.A/301/1998 4/34 JUDGMENT there was a scuffle between the two and the complainant’s husband who had gone to fill water in the container intervened and tried to separate them, whereupon, Ashokbhai gave him one blow on his head with the wooden pestle due to which he fell down and died. The incident occurred at about 7:00 p.m. and the F.I.R. was lodged at about 21:00 hours. 3. Shri Jashwantsinh Babbabhai Rana, Idar Police Station, recorded the complaint (Exh.8) and the same was registered as Idar Police Station I C.R. No.171/95 for the offences punishable under section 302 of the Indian Penal Code and section 135 of the Bombay Police Act. The complaint was recorded at serial No.29 in the Station Dairy (Exh.48). He then drew the Inquest Panchnama between 7:00 to 7:30 a.m. at Idar Civil Hospital in the presence of panchas. Thereafter he sent the dead body for post mortem examination along with the inquest panchnama, police yadi and Marnotar Form (Exh.37). He then proceeded to Nana Kotda village for further investigation, where he drew panchnama of scene of offence (Exh.17) in the presence of panchas and collected muddamal articles from the scene of offence and also recorded the statements of Valabhai Khemabhai Vankar and Lavjibhai Khemabhai Vankar. Upon the accused being found, panchnama of physical condition of the accused (Exh.29), as well as panchnama under section 27 of the Evidence Act, whereby the accused CR.A/301/1998 5/34 JUDGMENT voluntarily discovered the weapon namely wooden pestle (Exh.28) were drawn in the presence of panchas. The Investigating Officer thereafter sent the muddamal articles to the Forensic Science Laboratory along with yadi (Exh.49) On receiving the FSL Report (Exh.50), Serological Report (Exh.51), and the Post Mortem Report (Exh.94), the same were kept in the investigation file. Upon completion of investigation, charge sheet was submitted before the learned Judicial Magistrate First Class, Idar, in Criminal Case No.278 of 1996. 4. As the case was exclusively triable by the Court of Sessions, the learned Magistrate vide order dated 21st March, 1996 committed the matter to the Sessions Court, Sabarkantha where it was registered as Sessions Case No.32 of 1996 and was transferred to the Court of the learned Additional Sessions Judge, Sabarkantha, Himatnagar for disposing the same on merits. 5. The learned Judge framed Charge at Exhibit-4 against the accused for offences punishable under sections 302 of the Indian Penal Code and section 135(1) of the Bombay Police Act at Exhibit 3. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and prayed for trial. 6. In order to prove the charge against the accused, the prosecution examined the following CR.A/301/1998 6/34 JUDGMENT fifteen witnesses: - P.W.1 - Vidyaben Maganbhai Khemabhai – complainant and wife of the deceased, - P.W.2 - Jivabhai Kodarbhai – Panch, Inquest panchnama, - P.W.3 – Revabhai Shankarbhai – Panch, Scene of Offence Panchnama, - P.W.4 – Pravinbhai Ratnabhai, Eye witness, - P.W.5 – Haribhai Roopsinh – Panch, clothes of the deceased panchnama. - P.W.6 – Savnathsinh Devisinh, Panch, Discovery Panchnama and Physical Condition of accused panchnama. - P.W.7 – Rajubhai Ambalal – Circle Inspector who prepared scene of offence panchnama. - P.W.8 – Dr. Ganpatsinh Ambadanji – performed autopsy, - P.W.9 – Galajibhai Paragbhai – Eye witness, - P.W.10 – Muliben Devjibhai – Eye witness, - P.W.11 – Ashaben Maganbhai – daughter of the deceased, - P.W.12 – Vakhatsinh Gambhirsinh Rathod – Recorded NC complaint lodged by Dahiben, mother of the accused, - P.W.13 – Vijaysinh Hamirsinh – P.S.O. Idar Police Station, drew panchnama of clothes of deceased (Exh.25), - P.w.14 – Jashwantsinh Babbaji Rana, Investigating Officer. CR.A/301/1998 7/34 JUDGMENT 7. The prosecution also produced and proved the following documentary evidence: (1) F.I.R. (Exh.8) (2) Inquest panchnama (Exh.10) (3) Scene of offence panchnama (Exh.17) (4) Discovery panchnama of weapon used in commission of the offence (Exh.28) (5) Panchnama of physical condition of the accused (Exh.29) (6) Map of scene of offence (Exh.34) (7) Yadi issued to Medical Officer for performing postmortem (Exh. 36) (8) Post Mortem Report (Exh.37) (9) Death Certificate (Exh.39) (10) N.C. Complaint No.97/95 (Exh.45) (11) Station Diary (Exh.48) (12) Muddamal Yadi issued to FSL (Exh.49) (13) FSL Report with Forwarding letter (Exh.50) (14) Serological Report (Exh.51) 8. On submission of closing purshis by the learned Additional Public Prosecutor, the learned Additional Sessions Judge recorded further statement of the accused under section 313 of the Code qua incriminating circumstances. The defence of the accused was in the nature of denial. The accused neither examined any witness nor stepped into the witness box. 9. The learned Additional Sessions Judge, at the CR.A/301/1998 8/34 JUDGMENT end of trial, after hearing the learned Advocates appearing on behalf of the respective parties and appreciating the evidence on record, was of the view that the prosecution had successfully established the charge levelled against the accused, hence by the impugned judgement and order dated 11th December, 1997 convicted the accused for the offences punishable under section 302 of the Indian Penal Code and sentenced them to suffer imprisonment for life with fine of Rs.5000/- and in default to undergo simple imprisonment for a period of one year. 10. We have heard Mr. J.V. Japee, learned Counsel appearing on behalf of the appellant and Ms. M.L. Shah, learned Additional Public Prosecutor for the respondent State of Gujarat and have perused the record of the case. 11. Mr. J.V. Japee, learned Counsel for the appellant submitted that the prosecution had failed to prove its case beyond reasonable doubt therefore; the accused was entitled to acquittal. It was submitted that there are vital contradictions in the evidence of the eyewitnesses, which go to the root of the case generating serious doubts about the veracity of the prosecution case. 11.2 Referring to the testimony of the complainant CR.A/301/1998 9/34 JUDGMENT Vidyaben, learned Counsel submitted that there were contradictions in the testimony of this witness, in that in her testimony she has come out with an entirely new case from that stated in her complaint, namely that she is a witness to the incident. It was submitted that the witness had made drastic improvements in her case, therefore, her testimony was not reliable and as such the entire testimony is required to be discarded and cannot not be relied upon. 11.3 The next submission advanced by the learned Counsel for the appellant was that the intention of the appellant/accused was not proved and that there was a total absence of motive. It was vehemently urged that witness Pravinbhai was inimical towards the appellant because his ex-wife Ramilaben was related to the appellant and there had been disputes between them on that account. It was submitted that in all probability, Pravinbhai had struck the deceased with the bamboo stick several times to cause his death and had falsely implicated the appellant. 11.4 Pointing out the relationship between PW 9 Galaji Paragji, PW 10 Muliben Devji with PW 4 Pravinbhai, learned Counsel contended that the prosecution had not examined any independent witness and that all the witnesses were close relatives of witness Pravinbhai, and as such they would be interested in protecting him. CR.A/301/1998 10/34 JUDGMENT 11.5 Learned Counsel contended that in view of the discrepancies and improvement found in the prosecution case, it is not safe to rely upon the same to convict the appellant. For this purpose he pointed out that PW 4, PW 9 and PW 10 who are eyewitnesses have in their evidence stated that the appellant had dealt one blow on the head of the deceased, however, if we compare this evidence of the eyewitnesses with the Medical evidence, it is noticed that the injury sustained by the deceased could not have been caused by one single blow. Moreover, the Medical Officer had also opined that if the weapon in question is used for inflicting a blow whether forcefully or not, there is bound to be some external injury, whereas in the present case there is no external injury on the person of the deceased. Therefore, the prosecution has failed to explain the discrepancy between the ocular and Medical evidence. In such circumstances, he contended that it was not safe to rely upon the evidence of these witnesses. 11.6 Learned Counsel for the appellant has further submitted that even if the prosecution case is to be accepted, having regard to the fact that the appellant is alleged to have inflicted only a single blow which proved to be fatal, the offence committed would not be one amounting to culpable homicide. Learned Counsel submitted CR.A/301/1998 11/34 JUDGMENT the incident had occurred on the spur of the moment in the heat of passion and that admittedly there was complete absence of motive to commit the alleged offence and that the complainant had admitted that there was no enmity between the deceased and the appellant. Hence, there was no intention to commit the murder on the part of the appellant. Therefore, if at all the conviction is to be upheld the same should be converted to one under section 304 Part II of the Indian Penal Code. It was urged the when two views are emerging from the prosecution case, the view which favours the accused should be considered. 11.7 In support of his arguments, the learned Counsel has relied upon the following authorities: For the proposition that when two views are emerging from the prosecution case, the view which favours the accused ought to be considered: (i) State of Haryana v. Inder Singh and others, [(2002) 9 SCC 537], (ii) Shingara Singh v. State of Haryana and another, [AIR 2004 SC 124], (iii) Raghunath v. State of Haryana, [AIR 2003 SC 165], (iv) Dev Raj and another v. State of H.P., [AIR 1994 SC 523] CR.A/301/1998 12/34 JUDGMENT For the proposition that the evidence of inimical witnesses is required to be considered with care and caution: (i) State of Rajasthan v. Sheo Singh and others, [AIR 2003 SC 1783], (ii) State of U.P. v. Moti Ram and another, [AIR 1990 SC 1709], (iii) Nanhku Singh v. The State of Bihar, [AIR 1973 SC 491], (iv) Mer Ranmal Arjan and another v. State of Gujarat, 1995 (1) GLR 275]. For the proposition that since the appellant had inflicted a single blow, the conviction ought to be altered to section 304 Part II of the Indian Penal Code: (i) K.Ramakrishnan Unnithan v. State of Kerala, [1999 Cri.L.J. 2101], (ii) Pularu v. State of Madhya Pradesh, [1993 Cri.L.J. 1809], (iii) Sarup Singh v. State of Haryana, [1995 Cri.L.J. 4168], (iv) Ramesh Vithalrao Thakre and another v. State of Maharashtra, [1995 Cri.L.J. 2907], (v) Rajendrasinh Bahadursinh Zala v. State of Gujarat, [2004(4) GLR 3084], (vi) Patel Rasiklal Becharbhai and others v. State of Gujarat, [1992 Cri.L.J. 2334]. CR.A/301/1998 13/34 JUDGMENT Decisions pertaining to examination of the accused under section 313 of the Criminal Procedure Code: (i) State of Maharashtra v. Sukhdeo Singh, [AIR 1992 SC 2100], (ii) Avtar Singh and others v. State of Punjab, [AIR 2002 SC 3343], (iii) Rattan Singh v. State of H.P., [AIR 1997 SC 768]. 12. Ms. Manisha L. Shah learned Additional Public Prosecutor submitted that there was ample evidence on record to connect the accused with the crime in question. It was submitted that as many as three eye witnesses had been examined by the prosecution. That despite searching cross- examination, the defence had not been able to shake the evidence of the said witnesses. It was submitted that the testimony of the eyewitnesses, together with the testimony of the complainant who had seen the accused fleeing away from the scene of offence with a pestle in his hand, coupled with the Medicalevidence and the discovery panchnama whereby the wooden pestle had been recovered at the instance of the accused undoubtedly point towards the complicity of the accused in the crime in question. Countering the submission by the learned Advocate for the appellant that in any case this was a case where a single blow had been CR.A/301/1998 14/34 JUDGMENT delivered and there was no intention to kill the deceased as admittedly the accused did not bear any animus towards the deceased, the learned Additional Public Prosecutor submitted that the intention is evident from the nature of blow inflicted on the deceased and the part of the body on which the blow was dealt. It was submitted that the accused had chosen a vital part of the body, namely the head of the deceased and the intensity of the blow was such that it caused multiple fractures in the skull of the deceased. It was submitted that the nature of the injury was self-speaking and there was no need to prove any further intention. Attention was drawn to the N.C. Complaint, Exh.45 lodged by Dahiben, the mother of the accused, to point out that the presence of the accused and the eye witnesses as well as the occurrence of the earlier part of the incident was duly proved from the said complaint. It was accordingly submitted that the conviction is required to be confirmed by this Court. 13. We have considered the rival submissions advanced by the learned counsel appearing for the parties. We have carefully examined the record of the case and have perused the impugned judgement. We have also considered the authorities cited at the bar. 14. Insofar as the death of the deceased being a homicidal one, the same has not been disputed by CR.A/301/1998 15/34 JUDGMENT the learned Advocate for the appellant, hence, we need not discuss the same in detail. Suffice it to say that the prosecution has succeeded in establishing that the death of the deceased was a homicidal one through the evidence of PW 8 Dr. Ganpatsinh Ambadanji who has been examined at Exh.35 as well as the Post Mortem Note Exh.94 and the Inquest Panchnama Exh.45. This witness has opined that all the injuries were ante- mortem in nature and the cause of death was due to shock as a result of excessive bleeding caused by the serious injuries sustained on the head, which were sufficient to cause death in the ordinary cause of nature. 15. We may now examine the culpability of the appellant–accused in connection with the crime in question. We have noticed that in the instant case, the offence has been committed at about 19:00 hours on 6th December, 1995 and the complaint (Exh.40) had been lodged with promptitude at 21:00 hours, that is, within two hours of the occurrence of the incident. From the complaint, it is borne out that the complainant had emptied the container and had returned to the old Harijan-vas when she heard some commotion and found that her husband was lying in the narrow lane and his head was bleeding. At the same time she had also seen the accused, who was a resident of the Harijan-vas, running away towards his house with a pestle in his hand. She had also seen Pravinbhai (PW 4) CR.A/301/1998 16/34 JUDGMENT and others going towards their Vas and on going near her husband she found that he was dead. The First Information Report (Exh.40) has been duly proved through the testimony of PW 1, the widow of victim. This witness had no enmity with the accused and though there is a tendency to exaggerate, it cannot be gainsaid that the witness must have seen the accused running from the scene of offence with the pestle in his hand. Merely because of some embellishments in the testimony, the whole of her testimony cannot be discarded. Accordingly, through the evidence of this witness the prosecution has succeeded in establishing the time and place of the incident, as well as the presence of the accused (with a wooden pestle) and PW 4 and others at the scene of offence. As the accused as well as PW 4 and others were residents of the Harijan vas, the complainant knew them; hence, there is no question of any misidentification. 16. As regards the scene of offence, the prosecution case finds further corroboration in the deposition of the PW 3 (Exh.47) who is a panch- witness in connection with the scene of offence panchnama (Exh.53). This witness has duly proved the panchnama of the scene of offence, which was drawn by the Investigating Officer in the presence of the panchas. As per the said panchnama the scene of offence is a narrow lane in the Harijan-vas where dried bloodstains were found, from which about 100 grams of CR.A/301/1998 17/34 JUDGMENT bloodstained earth had been collected and sealed. Certain articles including a sandal belonging to the deceased were also collected from the scene of offence. The panchnama further shows that an electric pole is situated at a distance of about 31 feet from the scene of offence. The panchnama also records that the electric pole where PW 4 tried to shake the wires is situated at a distance of about 77 feet from the scene of offence. The prosecution case is further fortified by the FSL report, which shows that the blood stained earth collected from the scene of offence, bears the same blood group as that found from the clothes of the deceased. Therefore, the prosecution has been able to establish beyond reasonable doubt that the offence has been committed on the narrow lane of the Harijan-vas. 17. The evidence of PW 4, who was instrumental in giving rise to the incident, is also significant in that he is an eyewitness to the entire episode leading to the death of the deceased. His evidence therefore, requires to be considered in detail. This witness has deposed that he had returned home after grazing buffaloes at about 4 to 5 O’clock in the evening and between 6:30 to 7:00 p.m. he had gone to his aunt (kaki) Muliben’s (PW 10) house for reading the newspaper. The lights at PW 10’s house had gone off whereas they were on in rest of the neighbourhood. He, therefore, tried to start the CR.A/301/1998 18/34 JUDGMENT lights by shaking the wires with a bamboo stick at the electric pole outside the Harijan vas, which resulted in the lights at the house of accused, who is a neighbour of PW 10, going off. This enraged the accused and he came out of his house along with his mother Dahiben and told him that he was not an electrician and asked him what authority he had to come there. Both of them started abusing PW 4, due to which Ramilaben Galabhai, Galabhai Paragbhai (PW 9) and Dinesh Lalji who were residing in the vicinity came out and tried to pacify them. However, both the accused and his mother hurled even more abuses. Thereafter, the accused went inside the house and came out with a wooden pestle. On seeing the accused coming out with the pestle, PW 4 started running towards the narrow lane in the old Harijan-vas. The accused chased PW 4 and when he caught up with him, he raised the pestle to strike him, but PW 4 dodged it by sitting down and the pestle slipped from the accused’s hand and fell down on the ground. Thereafter, the accused and PW 4 grappled with each other. Upon hearing the noise ensuing there from, PW 10, PW 9 as well as Dineshbhai and Ramilaben came running there. Thereafter, Maganbhai Khemabhai (the deceased) who was going with a container to fill water came there and tried to separate the two. With a view to separate them, he pushed them both apart. As soon as they fell apart, the accused picked up the pestle that was lying on the ground and CR.A/301/1998 19/34 JUDGMENT dealt a blow on the deceased’s head. The blow landed on the posterior side of the deceased’s head with a loud noise like the bursting of fire-crackers and the deceased fell down, whereupon, the accused fled from the scene along with the pestle. PW 4 was also scared and ran away. This witness has been subjected to a searching cross-examination, wherein the defence has tried to make out a case that the said witness was inimical towards the accused because the accused was related to his ex-wife, Ramilaben. The defence has also tried to make out a case that this