CR.A/768/2002 1/118 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 768 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 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 ? ========================================================= TRIKAMBHAI RANCHHODBHAI PARMAR & OTHERS - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR MC BAROT for Appellant(s) : 1 - 6. MR RC KODEKAR ADDL. PUBLIC PROSECUTOR for State of Gujarat ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 3-5-6-7-10 & 20/09/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) CR.A/768/2002 2/118 JUDGMENT 1. Seven accused persons ('A-1, A-2, A-3, A-4, A-5, A-6 and A-7' for short) were charged and tried by the learned Additional Sessions Judge, Kheda at Nadiad (the 'trial Court' for short), in Sessions Case No. 11 of 1999 for the offences under Sections 147, 148, 302/149, 307/149, 326/149, 324/149 and 323/149 of the Indian Penal Code ('IPC' for short) and Section 135 of the Bombay Police Act, on the accusation that they all armed with deadly weapons, formed an unlawful assembly in furtherance of their common object to take revenge upon the victims and prosecution witnesses and they attacked them and in that attack they murdered two persons and caused grievous hurt and hurt to the witnesses. At the end of the trial, all the accused, except A-4, were found guilty of the offences with which they were charged and, therefore, vide judgment and order dated 31.7.2003, A-1, A-2, A-3, A-5, A-6 and A-7 were convicted by the trial court for the following offences and sentenced for the following terms, as stated herein below: CR.A/768/2002 3/118 JUDGMENT S.No Term of sentence Section/s of IPC 1. R.I. for one year and fine of Rs.400/- i.d., S.I. for one month 147 2. RI for two years and fine of Rs.800/- i.d., SI for 2 months 148 3. Imprisonment for life and fine of Rs.3000 i.d., SI for 8 months 302/149 4. RI for four years and fine of Rs.2,000 i.d., SI for 4 months 326/149 5. RI for two years and fine of Rs.1000 i.d., SI for two months 324/149 6. RI for four months and fine of Rs.500 i.d., SI for one month 323/149 7. RI for five months and fine of Rs.400 i.d., SI for one month 504 It is also ordered if the amount of fine is recovered from the accused, Rs.5,000/- shall be paid to the heirs and legal representatives of each of the deceased persons i.e., Gokal alias Gopalbhai Ramabhai and Haribhai Chaturbhai. So far as A-4 is concerned, he has been acquitted of the offences with which he was charged. CR.A/768/2002 4/118 JUDGMENT 2. Aggrieved thereby A-1, A-2, A-3, A-5, A-6 and A-7 have filed this appeal with the aid of Section 374 of the Code of Criminal Procedure ('the Code' for short). 3. The prosecution case, as disclosed from the F.I.R. and unfolded during the trial, is as under: 3.1. It is the case of the prosecution that Chimanbhai Prabhudas Parmar, was working as an agricultural labourer. On 1.9.1998, when he reached home, his wife told him that in the morning at about 9 O' clock there was some exchange of words between Harikaka and Trikam Ranchhod at the Para in connection with some drops being splashed while taking out the vehicle which had got stuck on the road. It is alleged that as a result of the said incident, the ladies had quarreled amongst themselves. Thereupon he immediately went to his uncle's house at Navapara to inquire about him. When he was talking with CR.A/768/2002 5/118 JUDGMENT Harikaka, at about 9 O' clock at night, Trikambhai Ranchhodbhai Parmar and his family members came to his uncle's compound with dharia and sticks and started abusing them, whereupon his uncle Haribhai told them not to abuse them. It is alleged that at this, they suddenly got incited and fell upon his uncle to beat him up with dharia and sticks. Trikambhai Ranchhodbhai had dealt blows with the dharia on his uncle's head as well as on his waist. Therefore, he and other members of his family Ramabhai Chaturbhai, Bhagwanbhai Prabhudas, Ashokbhai Ramabhai, Trikambhai Ramabhai, Gopalbhai Ramabhai, etc., intervened to rescue him. It is further alleged that thereupon Trikambhai Ranchhodbhai and other members of his family assaulted his family members with the dharia and sticks. A-1, Trikambhai Ranchhodbhai had dealt a blow with the dharia on Ramabhai Chaturbhai's right hand and A- 6, Dinesh Bhagwandas had injured him on the left leg with a spear. A-1, Trikambhai Ranchhodbhai had inflicted a blow with the dharia on CR.A/768/2002 6/118 JUDGMENT Gopalbhai's head whereas A-2, Bharat Naranbhai had inflicted stick blows on Gopalbhai. As A-1, Trikambhai Ranchhodbhai tried to deal a blow with the dharia on his head, he raised his hand to catch the dharia whereupon he was hurt on the head with the beak of the dharia. He was also hurt on the finger of his left hand. In the melee, his aunt Devila was injured on the eye and his aunt Ganga was injured on her hand. It is further alleged that at the time when they had come to assault them, A-3, Bhagwanbhai Ranchhodbhai, A-7, Naranbhai Ranchhodbhai, A-5, Shantilal Bhagwandas as well as A-2, Bharat Naranbhai had sticks in their hands whereas A-4, Shanabhai Ranchhodbhai was inciting them. While the assault was going on, other members of the family came running whereupon they had fallen back and as Harikaka and Gopalbhai had sustained head injuries, there was excessive bleeding and hence a rickshaw was called for from the village and immediately they were taken to Anand Nagarpalika Hospital where Devila Kaki and Ganga CR.A/768/2002 7/118 JUDGMENT Kaki had been given treatment as outdoor patients and Ramakaka had been admitted as an indoor patient. As Haribhai Chaturbhai and Gopalbhai Ramabhai had sustained serious injuries on the head and were unconscious, after giving them preliminary treatment, they had been transferred to S.S.G. Hospital at Vadodara for further treatment. 3.2. A complaint in respect of the aforesaid incident was lodged at Anand Rural Police Station where it is registered vide CR No.I-204/98 against the accused persons for commission of the offences under Sections 147, 148, 307/149, 326/149, 324/149 and 323/149 of IPC and Section 135 of the Bombay Police Act. The complaint is reduced in writing by P.W.10, Abhaysinh Lalubhai Vaghela, as per the narration given by the complainant, which is on record at Ex.55. Thereafter Abhaysinh Lalubhai Vaghela started the investigation. During the course of investigation he had drawn the panchnama of the CR.A/768/2002 8/118 JUDGMENT scene of offence in presence of panchas, collected samples of blood stained earth and control earth and seized a helmet and wristwatch from the scene of offence. He had thereafter recorded the statements of witnesses. Since two injured persons were in the S.S.G. Hospital, Vadodara, undergoing treatment, he visited SSG Hospital, Vadodara for recording their statements and upon inquiry he had found that both the patients were unconscious and hence he could not record their statements. On 12.9.1998 he received a telephone vardhy from S.S.G. Hospital, Vadodara to the effect that injured Haribhai Chaturbhai had expired while undergoing treatment. Therefore he had gone to S.S.G. Hospital, Vadodara and drawn the inquest panchnama in presence of panchas. Thereafter the dead body of Haribhai was sent for post mortem examination. He also seized the clothes of the deceased in presence of panchas and drew a panchnama. Thereafter he made a report to the learned J.M.F.C. Anand for addition of Section CR.A/768/2002 9/118 JUDGMENT 302 IPC in the FIR against the accused who were in judicial custody. Thereafter muddamal in connection with the case were forwarded to F.S.L. for analysis. During the course of investigation, a message was received from S.S.G. Hospital, Vadodara that injured Gopalbhai Ramabhai had expired during the course of treatment and hence he had gone to the hospital and prepared the inquest on the dead body of deceased Gopalbhai and prepared the panchnama in presence of panch witnesses. Thereafter he sent the dead body of Gopalbhai for autopsy. He also obtained medical certificates of the injured persons in respect of the injuries sustained by them. On receipt of the autopsy reports of both the deceased persons and injury certificates of the injured witnesses and also F.S.L. report and as incriminating evidence was found against the accused persons, he filed charge sheet against them for commission of the offences under Sections 147, 148, 302/149, 307/149, 326/149, 324/149 and 323/149 of the IPC and Section 135 of the Bombay Police Act, in the CR.A/768/2002 10/118 JUDGMENT Court of learned J.M.F.C, Anand, where it was registered as Criminal Case No.5818 of 1999. 3.3. As the offences under sections 302, 307, etc., of IPC are exclusively triable by a Court of Sessions, the learned JMFC, Anand committed the case to the Sessions Court, Kheda at Nadiad where it was registered as Sessions Case No.11 of 1999 and thereafter it was transferred to the learned Additional Sessions Judge, Camp at Anand. 3.4. The learned Additional Sessions Judge, Camp at Anand to whom the case was made over for trial, framed charges against the accused persons for the offences under sections 147, 148, 302/149, 307/149, 326/149, 324/149 and 323/149 of the IPC and Section 135 of the Bombay Police Act. The charges were read over and explained to the accused persons. The accused persons pleaded not guilty to the charges and claimed to be tried and, therefore, the trial Court put them to trial. CR.A/768/2002 11/118 JUDGMENT 3.5. To prove the culpability of the accused persons, the prosecution has examined as many as 10 witnesses and relied upon their oral testimonies, details of which have been given in paragraph 3 of the impugned judgment and order, as under: PW No Name and status of the witness Ex.No Page 1 Dr. Arvind Jethabhai Dalvadi, who examined the injured persons at Anand Nagarpalika General Hospital 29 331 2 Dr. Ranjit S. Choudhary, who treated the injured victims at SSG Hospital 45 355 3 Dr. Kishor Promodbhai Desai, who conducted post mortem examination on the two dead bodies 49 363 4 Chimanbhai Prabhudas Parmar, complainant and injured eye witness 54 389 5 Solanki Ranjitsinh Punambhai, Circle Inspector 56 410 6 Ramabhai Chaturbhai, injured eye witness 67 433 7 Vipul Haribhai Parmar, son of deceased Haribhai 68 439 8 Devilaben Haribhai, widow of Haribhai, eye witness 69 443 9 Gangaben Ramabhai, sister in law of deceased Haribhai and eye witness 71 452 CR.A/768/2002 12/118 JUDGMENT PW No Name and status of the witness Ex.No Page 10 Abhaysinh Lalubhai Vaghela, PSI and Investigating Officer 76 467 3.6. To prove the charges levelled against the accused persons, the prosecution has also produced a number of documents and relied upon the contents of the same, details of which have been given in paragraph 4 of the impugned judgment and order, which shall be referred to hereinafter in this judgment as and when required. 3.7. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused persons the circumstances appearing against them and recorded their further statement as required under Section 313 of the Code. In their further statement, the accused persons denied the case of the prosecution in its entirety and stated that a false case has been filed against them. They have CR.A/768/2002 13/118 JUDGMENT neither led any evidence nor did they examine any witness in support of their defence. However, they have given a written statement which is on record at Ex.16. In their further written statement the accused have stated that Chimanbhai Prabhudas, Ashokbhai Ramabhai, Trikambhai Ramabhai, Bhagwanbhai Prabhudas, Ramabhai Chaturbhai, Gokal alias Gopalbhai Ramabhai, Haribhai Chaturbhai, etc., had formed an unlawful assembly and by hatching a conspiracy on 10.9.1998 at 9 O' clock at night attacked all the accused in front of the house of deceased Haribhai Chaturbhai and had caused serious injuries to the accused with the weapons in their hands. They reside at Navapara opposite the house of deceased Haribhai Chaturbhai and the way to go to and fro from their house is in front of Haribhai's house. The line of their house is exactly opposite Haribhai's house at a distance of 10 to 15 feet. On the day of the incident at 9 O' clock, he had set out in his vehicle at that time, water, slush and mud had been splashed by CR.A/768/2002 14/118 JUDGMENT the vehicle's tyre on Haribhai Chaturbhai's wife Devilaben and hence she had quarrelled with the ladies in their house and thereafter, Devilaben had informed her husband deceased Haribhai about the quarrel at Ajarpura village where he was serving as a teacher and thereafter Haribhai had returned home at 11.00 in the fore-noon and thereafter he had called his brothers and nephews and had hatched a conspiracy to assault the accused. Accordingly, all the prosecution witnesses had gathered together with weapons and formed an unlawful assembly and were standing in front of Haribhai's house. Haribhai, with the purpose of indulging in a fight, had put on a helmet and was holding a dharia in his hand, whereas Chimanbhai Prabhudas had a stick in his hand, Gokal alias Gopalbhai Ramabhai had a stick in his hand, Ashokbhai Ramabhai and Trikambhai Ramabhai had sticks, Bhagwandas Prabhudas had a stick and Ramabhai Chaturbhai had a stick and all of them, with their weapons, had formed an unlawful assembly and with the intention of CR.A/768/2002 15/118 JUDGMENT killing the accused were waiting for them. Meanwhile, at 9 O' clock at night, Dineshbhai, son of Bhagwandas and Bharatbhai, son of Naranbhai, accused No.6 and 2 in this case, were passing in front of Haribhai's house, at that time the above mentioned persons had stopped Bharatbhai and Dineshbhai and asked them as to why they were quarrelling with ladies and after saying so, Haribhai Chaturbhai dealt blows with the dharia on the wrist of Bharatbhai's right hand and caused a two inch skin deep wound below the palm whereas deceased Haribhai had caused injury to Dineshbhai on his left upper arm with the dharia and deceased Gokal alias Gopalbhai had struck Dineshbhai on the back. At that time Dineshbhai and Bharatbhai had raised shouts whereupon they had come out and on seeing, as they had felt that the prosecution witnesses would kill Dineshbhai and Bharatbhai, the two of them had intervened. At that time the prosecution witnesses as well as deceased Haribhai, Gokal alias Gopal had launched an assault on them, CR.A/768/2002 16/118 JUDGMENT wherein deceased Haribhai had dealt a blow with a dharia on the heel of Trikambhai Ranchhodbhai's right foot and Ramabhai Chaturbhai had inflicted a stick blow on the head and Chimanbhai Prabhudas had struck accused No.3, Bhagwan Ranchhod, on the head and left hand and Bhagwandas Prabhudas had dealt a blow with a stick on the elbow of the right hand as well as left shoulder of accused No.5, Shantilal Bhagwandas, and deceased Gokal alias Gopalbhai Ramabhai had inflicted blows with a stick on the right hand, back and shoulder of accused No.7, Naranbhai Ranchhodbhai, and Ashokbhai Ramabhai and Trikambhai Ramabhai had inflicted stick blows on Dineshbhai Bhagwandas and Bharatbhai Naranbhai and as all the accused had sustained serious injuries they had been sent to the Anand Nagarpalika General Hospital with police yadi where prosecution witness No.1, Dr. Arvindbhai Jethabhai Dalvadi had examined them and provided treatment as all of them had sustained grievous injuries. As excessive blood had fallen on their clothes, their clothes had CR.A/768/2002 17/118 JUDGMENT been seized by drawing panchnama. As per the say of the accused, as the prosecution witnesses as well as deceased Haribhai Chaturbhai and deceased Gokal alias Gopalbhai Ramabhai had come together and formed an unlawful assembly, in connection with a small incident, with the intention of killing the accused and attacked them and caused injuries to them, they had in their self defence, brandished the weapons in their possession and in that process the deceased Haribhai and other witnesses may have sustained injuries and in connection with the injuries sustained by the accused, accused No.6, Dineshbhai Bhagwandas, had lodged a complaint at the Anand Rural Police Station being CR No.I-205/98 on 10.9.1998 in respect of which Sessions Case No.287 of 2000 against the prosecution side is pending. They have further stated that they have not committed any offence and are innocent and that the prosecution side had attacked them because of which all the accused, under the impression that they would be killed, had, by way of self CR.A/768/2002 18/118 JUDGMENT defence, wielded the weapons held by them, as a result of which if the prosecution side had been injured then they cannot be said to have committed any offence. They have also submitted that the prosecution has not placed the correct facts before the Court and despite the fact that there are several houses in the vicinity, no independent person has been examined. During this incident a crowd of 200 to 300 persons had gathered, out of which if any person had been examined, the real truth would have come out. They have further submitted that their written explanation be accepted and have prayed that as they have not committed any offence, they be declared innocent. 3.8. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court has held that the prosecution has failed to establish the charges levelled against accused No.4, and, therefore, he is acquitted of the offences with which he was charged. However, the CR.A/768/2002 19/118 JUDGMENT trial court has held that the prosecution has established that the other six accused persons had formed an unlawful assembly, armed with deadly weapons, and in furtherance of their common object, have murdered two persons and caused grievous hurt as well as hurt to the prosecution witnesses and thus the complicity of A-1, A-2, A-3, A-5, A-6 and A-7 for commission of the offences under Sections 147, 148, 302/149, 326/149, 324/149, 323/149 and 504 IPC is proved beyond reasonable doubt. On the aforesaid finding, the trial court convicted A-1, A-2, A-3, A-5, A-6 and A-7 for commission of the offences to which reference is made in earlier paragraph of this judgment. 4. Mr. Manubhai C. Barot, learned advocate of the accused, has submitted that since A-3, Bhagwanbhai Ranchhodbhai, has been released from jail with effect from 25.12.2003 pursuant to the notification bearing Outward No.1099/5226/Part 1/J dated 24.12.2003 issued by the State of CR.A/768/2002 20/118 JUDGMENT Gujarat, in exercise of the powers conferred under Section 161 of the Constitution of India, granting benefit to those accused persons who have completed 70 years of age and have undergone a jail term of more than five years, on account of celebration of birth anniversary on completion of 80 years of age by the Honourable Prime Minister Shri Atal Bihari Vajpayee, he does not press this appeal qua A-3, Bhagwanbhai Ranchhodbhai. 4.1. So far as remaining accused persons are concerned, Mr. Barot has raised the following contentions: (i) The prosecution has suppressed the genesis and origin of the crime and has not presented the true facts. (ii) The complainant party has formed an unlawful assembly, armed with deadly weapons in furtherance of their common object to attack the CR.A/768/2002 21/118 JUDGMENT accused party and they were the aggressors. They have picked up the quarrel and in that quarrel all the accused persons have received grievous hurt as well as simple injuries. (iii) The prosecution has not explained the injuries sustained on the person of all the accused and, therefore, failure to explain the injuries on the person of the accused is fatal to the prosecution case. (iv) It was a case of a free fight between two groups and since the prosecution has not come with the true and correct facts, the prosecution has failed to prove the charges levelled against the accused persons. (v) There is a defence version that the prosecution has not been able to explain the injuries on the accused persons and the said version is probable and is capable of raising doubt on the prosecution case. CR.A/768/2002 22/118 JUDGMENT (vi) There are lot of improvements in the evidence of the prosecution witnesses in respect of what they have stated in the complaint, in the Court as well as in their police statements. (vii) Since a doubt is raised on the prosecution case, the accused persons are entitled to the benefit of doubt. (viii) Deceased Gopalbhai died after about a month. There is evidence to the effect that had he been given proper treatment, he would not have died. (ix) The accused persons exercised their right of private defence as they were attacked by the complainant party after forming an unlawful assembly, armed with deadly weapons, in furtherance of their common object to take revenge upon the accused persons. (x) There are lot of omissions, CR.A/768/2002 23/118 JUDGMENT contradictions and improvements in the evidence of the prosecution witnesses. Oral evidence of each of the prosecution witnesses does not get corroboration from what they have stated in their police statement. Similarly, each of the prosecution witnesses have contradicted with the other prosecution witnesses in their statement. (x) Alternatively, it is submitted by Mr. Barot that deceased Haribhai died on the next day of the incident and deceased Gopalbhai died after about a month and, therefore, if defence version is not accepted, then also it is not a case of murder but, at the most, it would be a case of culpable homicide not amounting to murder punishable under Section 304 Part I IPC and since the accused persons have already undergone imprisonment for more than nine years, the custodial sentence may be treated as substantive sentence and they may be released from jail. 4.2. In support of his above contentions, Mr. CR.A/768/2002 24/118 JUDGMENT Barot, learned advocate of the accused, has also relied upon the following reported decisions of the Supreme Court: (i) Lakshmi Singh and others v. State of Bihar, (1976) 4 SCC 394, (ii) Ram Asrey Pandey v. State of Bihar, 1977 SCC (Cri.) 374, (iii) Harkirat Singh v. State of Punjab, (1997) 11 SCC 215, (iv) Rukma (Smt.) and others v. Jala and others, 1998 SCC (Cri.) 213, (v) Bunnilal Choudhary v. State of Bihar, (2006) 10 SCC 639. 4.3. On the aforesaid premises, it is submitted by him that the prosecution has failed to prove the charges levelled against the accused persons beyond reasonable doubt and, therefore, the appeal may be allowed and the accused may be set at liberty. Alternatively, it is submitted by him that the conviction recorded under Section 302 IPC may be altered to conviction under CR.A/768/2002 25/118 JUDGMENT Section 304 Part I IPC for the offence of culpable homicide not amounting to murder and custodial sentence undergone by each of the accused which is more than nine years may be treated as substantive sentence and the accused may be set at liberty and the appeal may be allowed in part. 5. In counter submission, Mr. R.C. Kodekar, learned APP, has submitted that the impugned judgment and order does not require any interference of this Court as the impugned judgment and order of conviction and sentence is just and proper on the basis of the evidence on record. He has further contended that no case is made out to take a view contrary to the view taken by the trial court. According to him, the prosecution has not suppressed the genesis and origin of the crime. The prosecution has come out with the true case and genesis and origin