IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 520 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE B.J.SHETHNA and Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO 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 Civil Judge? : NO -------------------------------------------------------------- MULUBHAI RANCHHODBHAI KOLI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 520 of 1992 MR H N Joshi for Mr PM THAKKAR for appellants Mr K P Raval, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE B.J.SHETHNA and MR.JUSTICE D.P.BUCH Date of decision: 11/12/2001 ORAL JUDGEMENT (Per : MR.JUSTICE D.P.BUCH) This is an appeal under section 374 of Criminal Procedure Code against the judgment and conviction order dated 30.4.1992 recorded by learned Addl.Sessions Judge, Amreli in Sessions Case No.53/90 under which the learned Sessions Judge convicted the aforesaid appellants for offence punishable under section 302 read with section 149 of IPC and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs.1000/-. The learned Addl.Sessions Judge further directed that in case the appellants do not pay the amount of fine, then they should further undergo rigorous imprisonment for a period of six months. Appellants No.4 and 5 have further been convicted for an offence punishable under section 37(1) read with section 135 of the Bombay Police Act and each of them has been sentenced to suffer rigorous imprisonment for six months and each of them is directed to pay fine of Rs.250/- in default of payment of fine, each of them has been directed to further undergo rigorous imprisonment for 15 days. The learned Addl.Sessions Judge did not award separate sentence for the offence punishable under sections 147 and 148 of IPC. The learned Judge further directed that the sentence as above shall be run concurrently. 2. The facts of the case leading to the above judgement and conviction order against the appellants above named may be briefly stated as follows: The original informant Diwaliben-Exh.26 is the widow of deceased Mohanbhai Bhana, who was allegedly murdered by the appellants above named on 18.4.1990 at about 10.30 a.m. on the way between village Dedan and Munjiyasar of Rajula Taluka in Amreli District. It was the case of the prosecution before the trial court that the deceased Mohanbhai was the husband of informant Diwaliben. That, on the date of the aforesaid incident, informant Diwaliben was staying with her deceased husband Mohanbhai at Munjiyasar village. That on the aforesaid date, aforesaid deceased Mohanbhai had gone to village Dedan for purchasing sugar and other grocery articles. The prosecution further alleged that the only bus from village Dedan would normally arrive at 10 a.m. That therefore, informant Diwaliben went to the bus stand to see the deceased coming from the said bus. The bus had arrived but the deceased did not alight from the said bus and, therefore, informant Diwaliben started going on foot towards village Dedan. On the way, she saw the deceased coming from the opposite direction. He had a vessel containing oil in his hand. He had also a bag of sugar on his head. When the deceased was at a little distance from informant Diwaliben, it was noticed by her that the appellants above named were found hidden behind a hedge and they all got up and rushed towards the deceased. The deceased saw the appellants rushing towards him. At that time, Appellant No.4 Manubhai Koli had spear with him and appellant Lakhmanbhai had got an axe in his hand. The prosecution has further alleged that since the deceased saw the appellants rushing towards him with weapons, as aforesaid, in their hands, the deceased threw the head-load on the ground and he also threw the oil jar. That thereafter the deceased tried to run away from the spot towards eastern direction. The prosecution further alleged that the appellants chased the deceased and in the meantime, appellant-Lakhmanbhai was the first to reach and overtake the deceased. In the meantime, other four appellants also reached there. That thereafter appellant-Lakhmanbhai dealt axe blow on the head of the deceased and that at that time, the deceased raised shouts and in the meantime, appellant Lakhmanbhai dealt another axe blow on his hand. That at that time, informant Diwaliben also raised shouts and requested the appellants with folded hands not to beat her husband. That the appellant did not pay any heed to the said request and all the five appellants continued to beat the deceased at random and indiscriminately. That after some blows being inflicted on the person of the deceased, the appellants ran way from the spot. 3. The prosecution has further alleged that injuries on the person of the deceased were bleeding and the blood was oozing and emerging out of those injuries. That informant Diwaliben waited there for some time but none had come at the spot and therefore, the informant covered the body of the deceased with a cloth and went to her residence and informed about the incident to one Devshibhai and told him to call her son Pragjibhai, who has gone to the field. That thereafter, she again went to the scene of offence. That, Pragji, her son had also arrived there. He went to village Dedan and got a tempo (motor vehicle). That the deceased was taken in the said tempo to the dispensary at Rajula. The informant had also accompanied the deceased. That by the time they reached the dispensary at Rajula, the Doctor examined the deceased and declared that the deceased had already died. That in the meantime, the deceased was unconscious but his body was warm and, therefore, the informant felt that the deceased was alive. Thereafter, the police had come to the said dispensary at Rajula and the informant lodged FIR before the police at the said dispensary. The prosecution has alleged that there was some dispute about right of passage between the deceased and the appellants and, therefore, the appellants had intentionally caused murder of the deceased. That even two years back the appellants had beaten son of the deceased and a complaint was filed against the appellants for the said purpose. That even a Civil Suit was also filed against the appellants-Manubhai and Lakhabhai. 4. On receiving the FIR, the Investigating Officer proceeded to investigate the case. Panchnama was drawn in respect of the spot of the offence. The oil tin was seized from the spot. Oily mud was also collected from the spot. Other muddamal articles were also seized. The appellants were arrested and were sent to the learned Magistrate in judicial custody. Statements of witnesses were recorded, Post Mortem note was collected from the Doctor who had performed postmortem of the deceased. After conclusion of the investigation, the Investigating Officer submitted charge-sheet before the Court of learned Judicial Magistrate First Class. Since the offence punishable under section 302 of IPC was exclusively triable by the Court of Sessions, the learned Magistrate committed the case against the appellants to the Court of Sessions. There the copies of investigation papers were supplied to the appellants, charge prepared at Exh.1 was framed against the appellants for offence punishable under section 302 read with sections 147, 148 and 149 on 29.10.1991. Charge was also framed against them for offence punishable under section 37(1) read with section 135 of the Bombay Police Act for committing violation of the notification issued by the District Magistrate for not carrying weapons in public places. The charge was read over and explained to the appellants, who pleaded not guilty to the said charge in the statements recorded by the learned Judge. Thereafter, the learned Addl.Sessions Judge proceeded to record the evidence produced before him by the prosecution. It appears from the record that the prosecution had examined the following witnesses before the trial court: --------------------------------------------------------- i. PW 1 Ratilal Shamaji, Circle Inspector who prepared the map of the scene of the offence Exh. 24 ii. PW 2 Diwaliben, informant and wife of the deceased - Exh.26 iii. PW 3 Sompuri Rampuri Exh.28 iv. PW 4 Dr. Popatbhai Naran Bhaliya Exh.29 v. PW 5 Devshibhai Exh.32 vi. PW 6 Pragjibhai Mohanbhai Exh.34 vii. PW 7 Mangan Mohanbhai Exh.38 viii. PW 8 Nathabhai Naranbhai Exh.39 ix. PW 9 Premjibhai Exh.41 x. PW 10 Ranchhodbhai Iswarbhai Exh.44 xi. PW 11 Udaypuri Lalpuri Exh.45 xii. PW 12 Prithviraj Tapubhai Exh.46 xiii. PW 13 Usmarbhai Ishwarbhai Exh.48 xiv. PW 14 Hakumesih Jorubha Exh.50 ------------------------------------------------------- 5. After conclusion of evidence, the learned Addl.Sessions Judge recorded further statements of the appellants under section 313 of the Cr.P.C. He examined the evidence appearing against the appellants on record and sought explanation from the appellants if they wanted to say something. After recording further statements of the appellants, the learned Addl.Sessions Judge heard the arguments advanced by the parties. Thereafter, the learned Addl.Sessions Judge found that the prosecution had successfully established the commission of offence by the appellants and, therefore, the appellants were convicted by the learned Addl.Sessions Judge for the offence punishable under section 302 read with sections 147, 148 and 149 of IPC and sentenced them to suffer R.I. for life and to pay Rs.1000/-. The learned Judge also convicted appellants No.4 and 5 for the offence punishable under Section 37 (1) read with section 135 of Bombay Police Act and sentenced them to suffer R.I. for six months and to pay fine of Rs.250/-. 6. Feeling aggrieved by the said judgment and conviction order dated 30.4.1992, the appellants have preferred this appeal before this Court. It has been mainly contended here that the learned Addl.Sessions Judge has committed serious error in depending upon the testimony of Diwaliben. That the learned Judge ought to have found that Diwaliben was a chance witness at the place of offence and her evidence was not natural. That the learned Addl.Sessions Judge has not properly appreciated the fact that there was no motive proved on record. That even the conduct of informant Diwaliben at the time of the incident was quite unnatural and that has been overlooked by the learned Judge, that even the evidence of Diwaliben that the deceased was carrying head-load sugar has not been established by the panchnama of the place of evidence wherein sugar has not been found on the spot and has not been attached by the Investigating Officer. That on the whole, the judgment and conviction order recorded by the learned Addl.Sessions Judge are illegal and erroneous and deserve to be set aside. The appellants, therefore, pray that the present appeal be allowed, the judgment and conviction order be set aside and the appellants be acquitted and set at liberty forthwith. On receiving the appeal, it was ordered to be admitted and bail was refused on 1.10.1992. 7. We have heard the arguments advanced by Mr H N Joshi on behalf of Mr P M Thakker, learned Advocate for the appellants. We have also heard the arguments advanced by Mr K P Raval, learned APP for the State. Learned Advocates for the appellants as well as for the respondent have taken us through the entire evidence on record including documentary and oral evidence. They have also taken us through the judgment delivered by the learned Addl.Sessions Judge. 8. It is very clear that the case of the prosecution substantially rests on the evidence of Diwaliben-exh.26 who is the solitary eye witness to the incident in question. It is an admitted position that non else was present when the incident took place. It is also a matter of record that as per her evidence at Exh.26, deceased Mohanbhai had gone to village Dedan for purchasing household articles. It is also her evidence that the bus arrived at 10 a.m. and she had gone to the bus stand but the deceased did not alight from the bus. Therefore, she proceeded ahead on foot towards the direction of village Dedan. That when she crossed some distance, she saw her deceased husband coming from the opposite direction carrying on headload of sugar and oil tin in his hand. In the mean time, the appellants were found hiding themselves behind a hedge and they ran towards the deceased. It is also her evidence that the deceased saw the appellants rushing towards him with dharia, axe and spear. That therefore, the deceased threw the head-load and oil container and tried to run away from the spot. She, further deposed that the appellants chased the deceased and they could overtake the deceased very soon. That thereafter, the appellant Lakhmanbhai dealt two axe blows on the head of the deceased and thereafter other appellants also had caused injuries at random and indiscriminately on the person of the deceased. She has stated that she requested them not to beat her husband but the appellants did not pay any heed to the said request and after beating the deceased extensively, the appellants ran away from the spot. Thereafter, she waited for a while but nobody turned up the spot and, therefore, she went home and informed about the incident in question and also requested one Devshibhai to call her son Pragjibhai from Wadi. That Pragjibhai arrived there and thereafter he brought a motor vehicle from Dedan in which the deceased was carried to Rajula for treatment but Doctor at Rajula declared that the deceased had already died. 9. This witness has been cross examined at length by the learned Advocates appearing for different appellants before the trial court. Efforts were made to show that she was not an eye witness and she had simply reached the spot after learning about the death of her husband subsequent to the incident in question and she was, therefore, not a witness to the incident. On going through the cross-examination of the witness, it is clearly noticed that her evidence has not been shaken to any extent during the very lengthy cross-examination undertaken by the learned Advocates for the appellants. She has stood the test of the cross examination and all suggestions have been negatives by her. Even with respect to the motive, she has given evidence. She has further stated that on an earlier occasion her son Pragjibhai was beaten up by the appellants and a case has also been filed and was pending against the appellants. She has further stated that a Civil Suit has already been filed against at least two appellants. Therefore, her evidence has been relied upon by the learned trial Judge. 10. The evidence of the witness has been supported by the evidence of Devshibhai and Pragjibhai. They both have corroborated the testimony of informant Diwaliben. Her evidence has further been supported by the evidence of Medical Officer Dr. Popatbhai N Bhaliya at Exh.29 who has deposed that when the post mortem was carried out, it was noticed that the deceased had so many injuries on his person. The injuries noticed by the Medical Officer on the person of the deceased may be reproduced as follows: (i) Incised wound of 1"x1/4" bond deep middle part of forehead. (ii) Incised wound of 3"x1" by bond deep on skull. Fracture of skull oblique right side of forehead. Fracture of skull, Right side of temporal bond, anti posterior. (iii) Multiple factures of left Ulna and humerus at lower part of arm, (iv) Fracture of left ulna & radius of upper head, (v) C.L.W. lateral aspect of left thigh - Size : 3" x 1/2" x 1/2" (vi) C.L.W. lateral aspect of left thigh Size: 2 1/2" x 1" x 1" (vii) C.L.W. size 1" x 1/2" bone deep on chin of left tibia C.L.W. size 2" x 1" bone deep below above injury (viii) C.L.W. 1/2"x1/2" x bone deep, right side of lower leg (ix) incised wound on temporal region right side of skull size: 2"x1" x Bone deep (x) Fracture of tibia and fibula of both legs (xi) Evident of fracture of humerus and radius of ulna right side (xii) Evident fracture of temporal bone (xiii) Incised wound in brain tissue. Right side of brain tissue Size: 3"x1/2"x1" bone deep in brain tissue On internal examination, it was noticed that there was fracture on right side of temporal bone and right side of skull, Size: 3"x1"xBone deep. It was also noticed that there was incised wound in brain tissue - Right side of brain. Size 3"x1/2"x1" bone deep in brain tissue. Doctor has certified the cause of death of the deceased to be due to injury of vital organ i.e. brain, during the course of his evidence. Doctor has also deposed that both the lungs of the dead body of the deceased were full of blood but the stomach was empty. It has also been testified by him that all the injuries were anti mortem. It has further been deposed by him that injuries No. 2, 9 and 13 were possible with one single blow and that the said weapon would be a sharp edged instrument. On seeing the muddamal weapons, he has deposed that the said injuries could be caused by the said weapons. He has again deposed that muddamal weapons, dharia and spear could cause the said injuries. He has produced the post mortem note signed by him at Exh.31. 11. This witness has also been cross examined at length on behalf of the appellants by their learned Advocates. However, the evidence of this witness has remained unshaken during the course of cross examination. 12. This evidence has further been supported by the evidence of Devshibhai at Exh.31. According to his evidence, he was at his residence at the relevant point of time. He happens to be the nephew of deceased Mohanbhai and both of them have been staying in adjoining houses. He has deposed that on the date of incident, his health was not good and, therefore, he was at his home. That informant Diwaliben had come to him at about 11 a.m. in the morning and had told him that the appellants had beaten the deceased. That informant also told him that the appellant Lakhmanbhai had beaten the deceased. Thereafter, he went to the field where son of the deceased Pragjibhai was working. He had conveyed the information given by Diwaliben and also told him about the place where the incident took place. Thereafter Pragjibhai went to the spot in the company of his younger brother Govindbhai and thereafter the witness came to know that the deceased had died. 13. This witness has also been cross examined at length but nothing more could be derived from the cross examination. An attempt was made to show that this witness thereafter, did not convey this information to anyone else. He has deposed that since his health was not good he was at home and even he went to the field to inform son of the deceased, Pragjibhai, and after informing Pragjibhai, he returned home and he was again relaxing. Therefore, he had no occasion to inform about the said incident to anyone else. Moreover, his health was not good. It was not necessary for him to move out frequently from his residence and he had no occasion to pass the information to anyone else. His statement was recorded on the very next day. This has clearly supported the case of informant Diwaliben and, therefore, his evidence has been relied upon by the learned Addl.Sessions Judge. 14. PW 6 Pragjibhai, son of the deceased has been examined at Exh.34. According to his evidence, he and his brother had been at their field and that their father had gone to village Dedan at 7 a.m. to purchase household articles, that at about 11 a.m. Devshibhai had approached him at his Wadi and informed him that five people had beaten his father (deceased) and was lying in pool of blood. He has further deposed that the said information was conveyed to Devshibhai by his mother Diwaliben. Thereafter the witness along with Govindbhai had gone to the spot. He noticed that Diwaliben was present at the spot. He also noticed that the deceased in an unconscious condition lying in a pool of blood. He, thereafter, went to Dedan and brought a private vehicle for carrying the deceased to the hospital and the deceased was taken to the hospital at Rajula. Doctor examined the deceased and according to the evidence of this witness the Doctor announced that the deceased had already died. This witness clearly corroborated the testimony of Diwaliben and Devshibhai. 15. So far as the other witnesses are concerned, Ratilal exh.24 is a Revenue Circle Inspector who had drawn the sketch of the scene of offence. He has produced it at Exh.25 which shows that the place of offence is really on the way to village Dedan. It is an open place by the side of the road. Even thereafter panch and other witnesses have been examined and panchnama with respect of the scene of offence has also been brought on record. Manganbhai at Exh.38 is a panch witness but he has not supported the prosecution and, therefore, he was treated hostile by the prosecution. The witness at Exh.39 has also turned hostile. He has not supported the case of prosecution. 16. Then the evidence of Premjibhai Bhikhabhai at Exh.41 says that appellant Manubhai was present in the police station and he had told him that a spear hidden by him would be discovered by him. That thereafter panchnama was drawn and his signatures were obtained. That thereafter they all went in a police vehicle to a spot from where appellant Manubhai had produced the spear before the police which was hidden in an embankment. That it was stained with blood, that the said spear was seized by the police and panchnama was also drawn. The said witness identified the spear before the court and also identified his signature. The witness further said that appellant Lakhmanbhai was present and that he volunteered to discover the axe hidden by him. Preliminary panchnama was drawn and appellant Lakhmanbhai took them to his Wadi. That muddamal axe was hidden in a hedge at his Wadi which was taken out by the said appellant from the hedge and produced before the police which was stained with blood. The said axe was also identified by the witness and he also identified his signatures in the paper slip affixed on the said axe. 17. This witness was also cross-examined at length and efforts were made to show that the two appellants did not make the discovery of the said weapons. However, the efforts failed and the witness stood the test of cross examination and stuck to the panchnama of muddamal at Exhs. 42 and 43. The prosecution examined Ranchhod Ishwarbhai at Exh.44. He is witness to the panchnama regarding discovery of other weapons. However, he has not supported the case of the prosecution. Same way, Udaypuri Lalpuri has also not supported the prosecution. Prosecution witness Prithviraj at Exh.46 has also not supported the case of prosecution. Any way, the fact of discovery of the said weapons by the concerned appellants has been duly established by the prosecution. 18. Next witness Umarbhai Ishwarbhai at Exh.48, had recorded the FIR lodged before him by the informant. His evidence is followed by evidence of P.S.I. Zala, who had carried out the investigation. He has clearly corroborated the testimony of the aforesaid panch witness in whose presence the discovery of the said two weapons was made. 19. On appreciation of the evidence of the informant and the evidence of Devshi and Pragjibhai as well as evidence of the said panch witness and the evidence of the I.O., the learned Addl.Sessions Judge found that the evidence is reliable and trustworthy