CR.A/411/2000 1/23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 411 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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 ? ========================================================= MANOHAR SHYAMRAVKUMAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1, MADANSINGH O BAROD for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 31/01/2008 CR.A/411/2000 2/23 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against the judgment and order dated 30.03.2000 passed by the learned Addl. Sessions Judge, Surat in Sessions Case No. 236 of 1997 whereby, the appellant – original accused was convicted for the offences punishable u/s. 302, 392 & 397 r/w. Section 34 of the Indian Penal Code, 1860 [for short, “the I.P.C.”]. For conviction u/s. 302 r/w. Section 34 of the I.P.C., the appellant was sentenced to undergo imprisonment for life with fine of Rs.800/- and in default of payment of fine, simple imprisonment for a further period of two months. While for conviction u/s. 392 and 397 r/w. Section 34 of the I.P.C., the appellant was sentenced to undergo rigorous imprisonment for seven years with fine of Rs.400/- and in default of payment of fine, simple imprisonment for a further period of one month. Both the sentences were ordered to CR.A/411/2000 3/23 JUDGMENT run concurrently. The appellant was also given the benefit of set-off. 2.0 The facts in brief, as brought out by the prosecution, are as under ; 2.1 On 10.04.1997, at around 1600 hrs., the complainant, Shantilal Hiralal Shah and his eighteen year old son, Nilesh proceeded towards Surat City for the purpose of collecting the outstanding business dues from other traders in their motor-cycle. After collecting an aggregate amount of Rs.66,000/-, they returned for their home in the motor-cycle. 2.2 At around 2115 hrs., when they reached near an area called Gangasagar Township on the Godadara Road, an Auto-rickshaw dashed their motor-cycle, as a result of which both the complainant as well as his son – Nilesh fell down. From the said Auto-rickshaw, three CR.A/411/2000 4/23 JUDGMENT persons came out and they tried to snatch away the bag from Nilesh in which the said amount of Rs.66,000/- were kept. Therefore, said Nilesh tried to run away from the place of accident. However, he was followed by two out of the said three persons. 2.3 After running certain distance, Nilesh was caught hold by the said two persons and thereafter, they inflicted knife blows on the neck and face portion of Nilesh. As a result thereof, Nilesh suffered serious injuries and he started bleeding profusely. During the aforesaid incident, one of the said three accused persons also inflicted a knife blow on the complainant. A crowd gathered at the place of incident. The three accused persons tried to flee the scene of offence in the Auto-rickshaw in which they had come by leaving behind the bag of cash which they had attempted to rob from Nilesh. CR.A/411/2000 5/23 JUDGMENT 2.4 At that time, the crowd caught hold of one of the three accused persons. However, the two other accused persons fled the scene of offence. Thereafter, the complainant and said Nilesh were taken to Mahavir Hospital. On verification, the Doctor declared Nilesh as dead. In the Hospital, the complainant narrated the history of the incident to the Doctor who, in turn, informed about the said incident to Limbayat Police Station. The P.S.O., who was on duty at the relevant point of time, made an entry to that effect in the Station Register vide Entry No. 26 of 1997. On the basis of the said entry, a 'wardhi' was handed over to the Police Inspector for making necessary preliminary inquiry into the said incident. 2.5 The Investigating Officer went to the Hospital and recorded the complaint. The said complaint was sent to the P.S.O. for registration and it was registered as I – C. R. No. 78 of 1997 for offences punishable u/s. CR.A/411/2000 6/23 JUDGMENT 302, 392, 397 and 34 of the I.P.C. On the said complaint, necessary investigation was carried out. 'Panchnama' of the scene of offence was done and 'muddamal' articles were collected. In the meanwhile, inquest 'panchnama' was done. 'Marnottar' form was filled up and necessary arrangements were made for sending the dead body for performing post-mortem. The clothes on the dead body of the deceased were seized by way of a separate 'panchnama'. 2.6 Further investigation was carried out and statements of several witnesses were recorded. The accused person who was caught from the scene of offence was arrested after completing necessary formalities. The clothes wore by the appellant at the relevant point of time were also seized by way of a separate 'panchnama'. The clothes wore by the complainant at the relevant point of time were also seized by way of a separate 'panchnama' in the presence CR.A/411/2000 7/23 JUDGMENT of 'panchas'. All the 'muddamal' articles were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM Report and other Reports, they were kept in the investigation file. An N.C. complaint was also filed by the appellant in relation to the said incident. 2.7 On completion of investigation, charge-sheet was filed against the appellant before the Court of learned Judicial Magistrate, First Class, Surat and as the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Surat and it was numbered as Sessions Case No. 236 of 1997. The matter was then transferred to the Court of learned Addl. Sessions Judge for disposal on merits. The learned Addl. Sessions Judge framed the charge and as the appellant pleaded not guilty to the charge leveled against him, trial was initiated. 3.0 The prosecution has examined in all thirteen CR.A/411/2000 8/23 JUDGMENT witnesses in order to prove the guilt against the appellant, namely, PW – 1 Ismail Alma Bhatti at Exhibit – 18, PW – 2 Ibrahim Mahmad Patel at Exhibit – 19, PW – 3 Hanif Abdul Karim at Exhibit – 20, PW – 4 Mohmmad Ilyas Patel at Exhibit – 21, PW – 5 Anilsinh Chatrasinh Solanki at Exhibit – 22, PW – 6 Shantilal Hiralal Shah at Exhibit – 24, PW – 7 Dr. Krishna Ratilal Pensuriya at Exhibit – 28, PW – 8 Sureshbhai Somabhai Patel at Exhibit – 30, PW – 9 Rajeshbhai Ballubhai Patel at Exhibit – 31, PW – 10 Kamleshbhai Babubhai at Exhibit – 33, PW – 11 Dr. Sanjay Narsinhgdas Modi at Exhibit – 34, PW – 12 Govindbhai Polsabhai Borse at Exhibit – 36 and PW – 13 Prithvisinh Mohansinh Chapiya at Exhibit – 43. 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 25, 'panchnama' of the clothes seized from the dead body of the deceased at CR.A/411/2000 9/23 JUDGMENT Exhibit – 27, the PM Report at Exhibit – 29, the Injury Certificate issued to the complainant at Exhibit – 35, 'panchnama' of the scene of offence at Exhibit – 23, 'panchnama' of the clothes wore by the appellant at the relevant point of time at Exhibit – 45 and the F.S.L. Report at Exhibit – 47. 3.2 On submission of the closing ‘purshis’, the further statement of the appellant was recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment and order convicting the appellant for the offence in question and imposed sentence as narrated in the earlier part of this judgment. Hence, the present Appeal. 4.0 Mr. Madansingh O. Barod learned Advocate for the appellant has submitted that the prosecution has CR.A/411/2000 10/23 JUDGMENT failed to prove the guilt of the appellant beyond doubt inasmuch as a majority of the 'panch' witnesses have turned hostile and there is no other evidence on record worth the name to connect the appellant with the alleged offence in question. He has submitted that the appellant has been falsely implicated in the alleged offence in question. He has, therefore, submitted that looking to the entire evidence available on record, this is a fit case wherein the appellant – accused deserves to be acquitted by granting him the benefit of doubt. 4.1 Learned Advocate for the appellant has contented that it is not in dispute that the incident in question took place in a public place and that the appellant was caught by the crowd for allegedly committing the offence in question. However, no Test Identification Parade was conducted so as to prove his guilt. In that view of the matter, the appellant deserves to be acquitted from the alleged offence in question by CR.A/411/2000 11/23 JUDGMENT granting him the benefit of doubt. 4.2 Learned Advocate has further contented that the prosecution has failed to arrest the two other accused persons involved in the commission of the alleged offence in question. He has submitted that the appellant herein had not played any active role in the entire episode and that the main culprits were the other two accused persons. However, the appellant has been roped into the alleged offence simply because he was caught by the crowd. Thus, in the absence of cogent evidence on record, the appellant could not be convicted for the alleged offence in question and deserves to be granted the benefit of doubt. 5.0 Mr. H. L. Jani learned APP has submitted that the oral evidence on record in the form of depositions of PW – 6 Shantilal Hiralal Shah at Exhibit – 24, PW – 8 Sureshbhai Somabhai Patel at Exhibit – 30, PW – 9 CR.A/411/2000 12/23 JUDGMENT Rajeshbhai Ballubhai Patel at Exhibit – 31 and PW – 10 Kamleshbhai Babubhai at Exhibit – 33 and documentary evidence in the form of complaint at Exhibit – 25, 'panchnama' of the clothes seized from the dead body of the deceased at Exhibit – 27, the PM Report at Exhibit – 29, the Injury Certificate issued to the complainant at Exhibit – 35, 'panchnama' of the scene of offence at Exhibit – 23, 'panchnama' of the clothes wore by the appellant at the relevant point of time at Exhibit – 45 and the F.S.L. Report at Exhibit – 47 clearly establish the guilt of the appellant. Hence, no interference is required from this Court in this Appeal. 6.0 Heard learned counsel for the respective parties and perused the oral as well as documentary evidence on record. The father of the deceased – Shantilal Hiralal Shah, who is also the complainant in this case, has been examined as PW – 6 at Exhibit – 24. In his deposition, PW – 6 has stated that on the date of CR.A/411/2000 13/23 JUDGMENT the alleged incident in question, he was driving the motor-cycle while his deceased son was the pillion rider at the relevant point of time. He has deposed that at around 2115 hrs., when they reached near a place called Gangasagar Township, an Auto-rickshaw carrying three persons and coming from the opposite direction, dashed their motor-cycle on account of which they both fell down. From the said Auto-rickshaw, two persons came out and they were having sharp-edged weapon like knife with them. He has further deposed that before he could get up, one of the said two persons inflicted a blow with the said weapon on the back portion of his body. On noticing the said incident, his deceased son started to run away from the place of incident and at that time, the person who had inflicted the said blow to him, followed his deceased son. After running a certain distance, the said person caught hold of his deceased son and thereafter, inflicted blows with the said weapon on the chest and neck portion of his deceased son as a CR.A/411/2000 14/23 JUDGMENT result of which his deceased son fell down. Thereafter, the said person snatched away the bag containing cash from his deceased son and the said person, along with the other person who had come out from the Auto- rickshaw, started to flee from the scene of offence. 6.1 This witness [PW – 6] has further categorically deposed that it was the appellant, out of the said three persons, who had inflicted the said weapon blow on his back portion as well as on his deceased son and had also snatched away the bag containing cash from his deceased son. This witness has further categorically deposed that out of the said two persons who had tried to flee the scene of offence with the bag containing cash, the crowd which had started to gather at that place on hearing the shouts of his deceased son, had caught hold of one of the said two persons, i.e. the appellant herein. However, the other person was successful in fleeing the place of incident. This witness has also deposed that he CR.A/411/2000 15/23 JUDGMENT is not aware as to whether the third person who had accompanied the other two persons, including the appellant, in the said Auto-rickshaw had fled the place of incident at that time or not. This witness has identified the 'muddamal' weapon – knife as also the bag that contained cash before the Court below. 6.2 This witness has been cross-examined at length before the Court below. It is true this in his cross-examination, this witness has admitted the fact that he was not aware as to how many persons had come in the said Auto-rickshaw at the relevant point of time. However, it is pertinent to note that when a specific question was put to this witness as to whether one and the same person had inflicted the said knife blows on him as well as his deceased son, he had replied in the affirmative. Thus, from the evidence led by this witness, it is established beyond doubt that one and the same person had inflicted the knife blows on both CR.A/411/2000 16/23 JUDGMENT himself and his deceased son. Nothing incriminating has come out from his cross-examination which may lead us to believe the evidence led by this witness to be untrue or unreliable. 7.0 This witness has narrated the same facts, as has been deposed by him before the Court below, in the complaint filed by him at Exhibit – 25. So far as the injuries allegedly sustained by the complainant at the hands of the appellant on the date of the alleged incident is concerned, the same is established from the Injury Certificate issued to the complainant at Exhibit – 35 as also from the oral evidence of Dr. Sanjay Narsinghdas Modi who had given necessary treatment to the complainant and who has been examined as PW – 11 at Exhibit – 34. 7.1 It is true that in his deposition the said Doctor has denied that the injuries in question sustained by the complainant were not possible by the infliction of CR.A/411/2000 17/23 JUDGMENT the 'muddamal' knife. However, he has stated that the said injuries were possible by a fall on the ground or on account of the infliction of blows by some hard and blunt substance. It is required to be noted that this witness has not been cross-examined by the other side before the Court below. In that view of the matter, it has to be said that the narration given by the complainant before the Court below in the form of his deposition as PW – 6 at Exhibit – 24 to the effect that the appellant had inflicted knife blow on the back portion of his body after he had fallen down from the motor-cycle gets support from the Injury Certificate at Exhibit – 35 and the deposition of the Doctor as PW – 11 at Exhibit – 34. Thus, it is established beyond doubt that the complainant had sustained the injuries in question, at the time of the alleged incident in question, at the hands of one of the said three persons who had come in the Auto-rickshaw. CR.A/411/2000 18/23 JUDGMENT 8.0 So as to prove the presence of the appellant at the scene of offence at the relevant point of time, the prosecution has examined PW – 8 Sureshbhai Somabhai Patel at Exhibit – 30. In his deposition, he has stated that on the date of the alleged incident in question while he along with some of his friends were sitting in Thakore Nagar area of the Society, they heard shouts that some robbery had taken place and noticed that a person was running from the direction of the house of one Babubhai and coming towards Thakore Nagar Society. Therefore, he and his friends followed the said person. After running certain distance, the said person fell down and, therefore, he along with his friends and some other persons caught hold of the said person and brought him to the house of said Babubhai. The bag containing cash of about of Rs.66,000/- was also recovered from the said person. On inquiring about his identity, the said person had introduced himself as Manohar Shyamrao. CR.A/411/2000 19/23 JUDGMENT 8.1 This witness has been cross-examined at length by the other side before the Court below. However, nothing incriminating has come out from his cross-examination, which may lead us to believe his evidence to be untrue or unreliable. 9.0 PW – 9 Rajesh Ballubhai Patel at Exhibit – 31 and PW – 10 Kamleshbhai Babubhai at Exhibit – 33 are also the persons who were sitting in the said area near Thakore Nagar Society at the relevant point of time. These two witnesses have also narrated the same facts, as has been deposed by PW – 8 Sureshbhai Somabhai Patel at Exhibit – 30. These two witnesses have also categorically stated that when a specific question was put to the person who was caught by them at the relevant point of time as regards his identity, the said person had introduced himself as Manohar Shyamrao. These two witnesses have also identified the 'muddamal' bag seized from the said person at the relevant point of CR.A/411/2000 20/23 JUDGMENT time. Both these witnesses have been cross-examined at length before the Court below. However, nothing incriminating has come out from their cross- examination, which may lead us to believe their evidence to be untrue or unreliable. 10.0 Thus, from the evidence led by PW – 8 Sureshbhai Somabhai Patel at Exhibit – 30, PW – 9 Rajesh Ballubhai Patel at Exhibit – 31 and PW – 10 Kamleshbhai Babubhai at Exhibit – 33, it is established beyond doubt that on the date of the alleged incident in question while the appellant had tried to flee the scene of offence, after inflicting knife blows on both the complainant as well as the deceased son, he was caught by the crowd which included the aforesaid three witnesses. All the three witnesses have identified the appellant before the Court below. Thus, the presence of the appellant, at the relevant point of time, is established beyond doubt. There shall not be any CR.A/411/2000 21/23 JUDGMENT question of mis-identification also, though it was night- time, since all the three witnesses had caught hold of the appellant while he was trying to flee the place of incident. 11.0 The medical evidence on record in the form of PM Report of the deceased at Exhibit – 29 and the deposition of the Medical Officer – Dr. Kiran Ratilal Pensuriya, who has performed the post-mortem of the deceased, as PW – 7 at Exhibit – 28, also supports the case of the prosecution. The PM Report of the deceased at Exhibit – 29 clearly supports the say of the complainant regarding the knife blows inflicted on which portion of the body of the deceased by the appellant. The Medical Officer has also categorically opined that the injuries were ante-mortem and that they were possible by the infliction of 'muddamal' weapon – knife. Thus, we have no hesitation in coming to the conclusion that the deceased died a homicidal death. CR.A/411/2000 22/23 JUDGMENT 12.0 The other evidence on which the prosecution has placed heavy reliance is the F.S.L. Report at Exhbibit – 47. It may be noted that the clothes wore by the appellant at the relevant point of time and seized by way of 'panchnama' at Exhibit – 45 contained human blood stains of Blood Group 'A', which is similar to that of the deceased. Thus, the F.S.L. Report at Exhibit – 47 also clearly establish the guilt of the appellant. 13.0 In view of the above discussion, we are of the opinion that the prosecution has been able to prove beyond doubt the guilt of the appellant. The oral evidence in the form of depositions of PW – 6 Shantilal Hiralal Shah at Exhibit – 24, PW – 8 Sureshbhai Somabhai Patel at Exhibit – 30, PW – 9 Rajesh Ballubhai Patel at Exhibit – 31 and PW – 10 Kamleshbhai Babubhai at Exhibit – 33 and documentary evidence in the form complaint at Exhibit – 25, the PM Report at Exhibit – 29, the 'panchnama' of CR.A/411/2000 23/23 JUDGMENT the clothes seized from the body of the appellant at Exhibit – 45 and the F.S.L. Report at Exhibit – 47 clearly establish the guilt of the appellant beyond doubt. We are in complete agreement with the reasonings given by, the findings arrived at and the resultant order of conviction recorded by the Court below and hence, find no reasons to interfere with the same. 14.0 For the foregoing reasons, the Appeal is dismissed. Office is directed to send the Records & Proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*