IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 491 of 1992 with CRIMINAL MISC.APPLICATION No 5236 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 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 -------------------------------------------------------------- KAUSHIKBHAI FULABHAI PANCHAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 491 of 1992 MR KJ SHETHNA for Petitioners MR KG SHETH, APP for Respondent No. 1 .......... for Respondents No. 2-3 3. Criminal Misc.Application No. 5236 of 1993 MR KJ SHETHNA for Petitioner No. 1 MR KG SHETH, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 29/10/2001 ORAL JUDGEMENT (Per : MR.JUSTICE AKSHAY H.MEHTA) 1. The appellants have filed this appeal under Section 374 of the Code of Criminal Procedure challenging the judgment and order of conviction and sentence passed by the Ld. Addl. Sessions Judge, Nadiad dated 16/4/1992. Vide said judgment the appellants have been convicted for offence punishable u/S. 302 read with section 34 of the Indian Penal Code and they have been sentenced to suffer RI for life and to pay fine of Rs.5,000/-, in default RI for 15 days. They have also been convicted for offence punishable u/S. 324 read with section 114 of the Indian Penal Code and sentenced to suffer RI for 3 years and pay fine of Rs.500/-, in default RI for one week. The Ld. Judge has given direction that upon recovery of fine of Rs.5,000/-, amount to be given to Vinaben, widow of deceased Ashokbhai Chunilal Panchal by way of compensation. Further direction has been given by the Ld. Judge that if fine of Rs.500/- is recovered, the amount to be given to injured Bharatbhai Chunilal Panchal as compensation. 2. The case of the prosecution is that on 11th September, 1990 wife of Ashokbhai Panchal had come to the place of appellant no. 1 to invite them to a dinner arranged as a part of obsequial ceremonies on the 12th day of the demise of mother of one Kanubhai, namely Mahalaxmiben. At that time the wives of appellants nos. 1 and 2 had talked to Vinaben very rudely and they had insulted her. After returning home Vinaben informed her husband and other members of the family about the rude behaviour of the ladies. On the very night at about 9.45 p.m. deceased Ashokbhai alongwith prosecution witness Bharatbhai Panchal and Kanubhai was sitting outside the house of Kanubhai and all the three were talking about the obsequial ceremonies of Mahalaxmiben. During the course of the talks, they also discussed the incident wherein Vinaben came to be insulted by the wives of appellant nos. 1 and 2. At that very time nephew of appellant no. 1 Alkeshbhai was sitting near these people and he overheard the talks which were going on between Ashokbhai and Kanubhai. He, therefore, went home and informed the appellants that Ashokbhai and Bharatbhai were instigating Kanubhai against the appellants. As a result of this, the present appellants came at the place where Ashokbhai and others were sitting. Kaushikbhai i.e. appellant no. 1 asked Ashokbhai that why he was instigating Kanubhai against them. Ashokbhai therefore, replied that they were talking inter-se and they were not talking anything about the appellants. On hearing this reply, appellant got enraged and he immediately went to the shop of one Bhikhabhai, who is a cobbler and brought implement for cutting leather known as Rapi and with said Rapi he caused one injury to Ashokbhai on the left side of his abdomen. Bharatbhai tried to intervene, but he was caught hold of by appellant nos. 2 and 3 and appellant no. 1 caused two injuries with Rapi on the right hand shoulder and one injury on left thigh. At that time the paternal aunts of Ashokbhai and Bharatbhai, namely Shantaben and Kantaben came there and on seeing them the appellants went away. According to the prosecution, Bharatbhai and Kanubhai thereafter took Ashokbhai on a scooter to Haridas Municipal hospital. After taking initial treatment Ashokbhai was thereafter removed to the Civil Hospital at Nadiad. At the Civil Hospital one Mariyamben, an employee of the Civil Hospital, telephoned the police station and summoned the police at the hospital. When the police visited the hospital, Bharatbhai gave the complaint which was duly recorded by the police. This complaint is at Exh. 25 on record. Bharatbhai was also admitted in the hospital as an indoor patient and since condition of Ashokbhai was precarious, he was advised to be taken to Ahmedabad. Accordingly Ashokbhai was brought to Ahmedabad in the Civil Hospital where during treatment he expired. The police on receipt of the complaint commenced usual investigation and in the course of the same they arrested the appellants, recorded statements of various persons conversant with the facts of the case, drew panchnamas, got the post mortem of the dead body of Ashokbhai done, obtained the necessary medical certificates with regard to injuries to Bharatbhai and seized the blood stained clothes of the deceased as well as Bharatbhai and sent them for chemical analysis to the Forensic Science Laboratory and obtained its report. Upon completion of the investigation, a charge-sheet against the appellants was submitted in the Court of the Ld. Judicial Magistrate First Class at Nadiad and the Ld. magistrate committed the case to the Court of Sessions, as the offence punishable u/S. 302 was exclusively triable by the Court of Sessions. 3. At the trial the Ld. Judge framed charge against the appellants for offences u/S. 302 read with section 34 of the Indian Penal Code, for offence u/S. 324 read with section 114 of the Indian Penal Code and also for offence u/S. 135 of the Bombay Police Act. The charge is at Exh. 2 on record of the case. The appellants denied the charge and claimed to be tried. 4. At the trial the prosecution examined (1) Dr. K.I. Methews P.W. 1 Exh.13, (2) Bharatbhai Chunilal Panchal P.W. 2 Exh. 24, (3) Bhikhabhai Vitthaldas Chauhan P.W. 3 Exh. 26, (4) Hasmukhlal Hiralal P.W.4 Exh. 40, (5) Kanubhai Manilal Panchal P.W.5 Exh. 42, (6) Dineshbhai Haribhai P.W. 6 Exh. 43, (7) Mohanbhai Mathurbhai P.W.7 Exh. 45, (8) Vijeshkumar Satishchandra Rao P.W.8 Exh. 47, (9) Vajesinh Vakhatsinh Rathod P.W.9 Exh. 48 and Bharatsinh Pratapsinh Sarvaiya P.W.10 Exh. 49. In support of its case the prosecution also relied on certain documentary evidence, namely complaint at Exh.25, the panchnama of inquest at Exh.28, panchnama of the weapon used in commission of the offence Exh.29, post mortem notes of deceased Ashokbhai Exh.34, panchnama of scene of offence at Exh. 44 and also the injury certificate of Bharatbhai at Exh.17, etc. After the evidence of prosecution was recorded the appellants in their further statements u/S. 313 of the Code of Criminal Procedure were put the circumstances appearing against them in evidence to enable them to render any explanation, if they so desire. However, no specific case was pleaded by them except that a false case had been filed against them. 5. At the end of the trial the Ld. Addl. Sessions Judge came to the conclusion that the prosecution had been able to prove that Ashokbhai Chunilal Panchal had died homicidal death and the death was caused by appellant no.1. The Ld. Judge also came to the conclusion that the prosecution had been able to prove that on 11th September, 1990 at about 9.45 p.m. the appellants in furtherance of their common intention to commit murder had picked up quarrel with deceased Ashokbhai and Bharatbhai and appellant no. 1 had brought Rapi from the shop of Bhikhabhai and caused a fatal injury to Ashokbhai on the left side of his abdomen by said Rapi and thereby all the three appellants committed offence punishable u/S. 302 read with section 34 of the Indian Penal Code. The Ld. Judge also came to the conclusion that at the same time the other appellant nos. 2 and 3 had caught hold of Bharatbhai while appellant no. 1 caused him injuries on the right hand shoulder and also on the left thigh by means of the Rapi and thereby all three appellants had committed offence punishable u/S. 324 read with section 114 of the Indian Penal Code. The Ld. Judge held that the prosecution had not been able to prove offence against the appellants u/S. 135 of the Bombay Police Act. In short, according to the Ld. Addl. Sessions Judge, the prosecution had been able to establish beyond any reasonable doubt that the appellants had committed offences u/Ss. 302 read with section 34 of the Indian Penal Code and u/S. 324 read with section 114 of the Indian Penal Code and for that he awarded them the sentences which have been already described above. 6. The appellants on being aggrieved by the said judgment and order of conviction and sentence, have approached this Court by way of this appeal u/S. 374(2) of the Code of Criminal Procedure. The appeal came to be admitted by this Court [ Coram : K.J. Vaidya and J.M. Panchal, JJ.] vide order dated 24th June, 1992. The same reads as under :- "Appeal admitted. Bail for appellant no. 1 is refused. So far as appellants nos. 2 and 3 are concerned, they are ordered to be released on same bail fresh bonds." 7. Subsequently another application came to be filed by appellant no. 1 being Misc. Criminal Application No. 4839 of 1992 praying that during pendency of the appeal his sentence of imprisonment for life be suspended and he be released on bail. The said application came to be granted by the Division Bench of this Court comprising the Hon'ble Mr. Justice N.J. Pandya and Hon'ble Mr. Justice D.G. Karia vide order dated September 17, 1993. On his release from the prison, appellant no.1 was murdered on 25th September, 1993. As a result thereof the widow of appellant no. 1 has filed aforesaid Criminal Misc. Application u/S. 394 of the Code of Criminal Procedure requesting that she be allowed to continue the present appeal in place of appellant no.1. This application was filed on 12th October, 1993 and it was placed before the Division bench of this Court comprising Hon'ble Mr. Justice B.C. Patel and Hon'ble Mr. Justice K.R. Vyas and on July 5, 1995 the following order was passed :- "At the request of the learned advocate Misc. Criminal Application No. 5236 of 1993 is ordered to be heard with the main appeal." In light of this order, we now take up this Misc. Criminal Application for our consideration. We, therefore, issue Rule and direct Mr. K.G. Sheth, Ld. APP to waive service of rule on behalf of respondent. Accordingly Mr. Sheth has waived the service and has addressed us on the merits of the application. Having heard both the sides on this application, we therefore finally disposed of this Misc. Criminal Application. Provisions of section 394 of the Code of Criminal Procedure deal with abatement of appeals. The section inter-alia provides that every appeal u/S. 377 or section 378 shall finally abate on the death of the accused and every other appeal under this chapter (except an appeal from sentence of fine) shall finally abate on the death of the appellant. It is, therefore, clear that if a sentence of fine is involved, a question of conviction and sentence will have to be gone into even on the death of appellant, as the fine is recoverable from the assets of the deceased appellant in the hands of legal representatives. Even assuming that the appeal abates on the death of the appellant, the proviso of section 394 read with sub-section (2) of section 394 enables any near relative to prosecute the appeal by filing necessary application within the period of limitation prescribed therein as by virtue of sentence of fine, the proprietory interest of deceased's relatives is involved. In view of the averments made in the application as well as in the light of the submissions made by the counsels of both the parties, we are of the opinion that this is a fit case where the application of the widow of appellant no. 1 be granted and she may be permitted to prosecute the appeal. The rule is, therefore, made absolute in aforesaid Criminal Misc. Application. 8. Now reverting backl to the appeal, Mr. K.J. Shethna, learned counsel for the appellants has submitted that the prosecution has not been able to prove its case beyond any reasonable doubt and, therefore, his case should fail. According to him, the Ld. trial Judge has committed an error in holding the appellants guilty of the offences with which they were charged. He has further submitted that in the alternative considering the facts of the case, appellant no. 1 can at the most be held guilty of committing an offence punishable u/S. 304 Part-II of the Indian Penal Code for causing injuries to deceased Ashokbhai. He has further submitted that so far injuries caused to Bharatbhai are concerned, there is no reliable evidence and appellant no. 1 should be acquitted of the said offence. He has further submitted that looking to the fact that the appellants came to the scene of offence unarmed and after initial heated altercation which lasted for about 10 minutes, appellant no. 1 went to the shop of Bhikhabhai and brought Rapi and caused injuries to Ashokbhai and Bharatbhai, appellant nos. 2 and 3 cannot be saddled with any criminal liability by virtue of sections 34 and 114 of the Indian Penal Code. In other words, according to him, the prosecution had failed to prove that there was any common intention shared by all the appellants to commit an offence u/S. 302 of the Indian Penal Code and appellants nos. 2 and 3 cannot be convicted for offence u/S. 302 r/w. section 34 of the Indian Penal Code. He has further submitted that so far injuries caused to prosecution witness Bharatbhai are concerned, there are two sets of evidence on record, one attributing overt act to appellant nos. 2 and 3 to the effect that when Bharatbhai tried to prevent assault on Ashokbhai, appellant nos. 2 and 3 caught hold of him and appellant no. 1 caused him injuries on shoulder as well as left thigh. As against that, the other set of witnesses does not attribute any overt act having been committed by appellant nos. 2 and 3. He, therefore, submitted that the evidence which favours appellant nos. 2 and 3 be accepted and their conviction for offence punishable u/S. 324 read with section 114 of the Indian Penal Code be set aside. He has further submitted that appellant nos. 1 and 2 have also suffered injuries and the prosecution has not been able to explain those injuries and, therefore, that benefit should be given to the appellants. He has also submitted that the assault on Ashokbhai and Bharatbhai by appellant no. 1 could also be possible for exercising right of private defence. As against that, Mr. K.G. Sheth, Ld. APP appearing for the State, has submitted that looking to the weapon and the nature of injury and the place at which it has been caused on the body of deceased Ashokbhai, it can well be inferred that the appellant no. 1 had the intention of causing death of Ashokbhai. He has further submitted that the other appellants, namely appellant nos. 2 and 3 have also participated in the incident and their participation shows that there was a common intention shared by all the appellants to commit offences of murder and assault. His submission is that catching hold of Bharatbhai by appellant nos. 2 and 3 would show that they had facilitated assault on Bharatbhai by appellant no. 1 and thereby all the three had acted in furtherance of their aforesaid common intention. According to Mr. Sheth, the conviction recorded by the Ld. Judge of the appellants was proper and the sentence imposed upon them was completely legal and, therefore, this appeal is required to be dismissed. 9. To appreciate the rival contentions, we may now refer to the relevant evidence oral as well as documentary on the record of this case. 9.1. The prosecution has examined Dr. K.I. Methews P.W.1 Exh.13, who at the relevant time was attached to the Civil Hospital at Nadiad as Medical Officer. According to the evidence of this witness, at about 10.00 p.m. on 11th September, 1990 injured Ashokbhai Chunilal was brought to the Civil Hospital with Yadi issued by police of Nadiad Town Police Station. On examination, he found one stab wound of 6 cm x 3 cm bleeding on the left hand side of the abdomen and the Intestine had come out from the said wound. The injury was panitoriam cavity deep. He, therefore, called the full time Surgeon attached to the said hospital. On examination of the injured, the full time Surgeon advised him to be taken to the Civil Hospital at Ahmedabad as his condition was very serious. Acting on the advice of the Surgeon attached to the Civil Hospital, Nadiad, injured Ashokbhai was removed to the Civil Hospital at Ahmedabad. During the course of treatment at Ahmedabad Ashokbhai expired. 9.2. Vijeshkumar Satishchandra Rao has been examined by the prosecution as P.W.8 at Exh.47. Mr. Rao at the relevant time was serving as Tutor in Forensic Medicine Department at B.J. Medical College at Ahmedabad on 12th September, 1990. On 13th September, 1990 a dead body was brought from Civil Hospital Ahmedabad by Police Head Constable of Shahibaug Police Station alongwith police Yadi for carrying out the autopsy thereof. The dead body was that of Ashokbhai Chunilal. This witness commenced the autopsy at about 10.30 a.m. and completed the same at 12.15 p.m. Before the trial Court this witness has produced the result of autopsy in the form of post mortem notes at Exh.34. The post mortem notes show following injuries on the dead body of Ashokbhai, namely (1) Stab wound found over abdomen left upper quadrant about 22.0 cms. below and 3.5 Cms. lateral to left nipple. Its size is about 4.5 Cms. x 1.5 Cms. x going deep in the abdominal cavity. It is obliquely vertical having upper end lateral and outer and lower end medially upper angle is acute of the margins are clean cut regular and red and show clotted blood. The wound is directed inwards, medially downwards and posteriority. Blood is found in the wound. (2) A small abrasion found over right wrist joint anterolateral aspect, size about 0.5 cm. diameter. Red in colour. (3) Abrasion over left left great toe medial part, size about 1.2 cm. x 0.8 cm. Red in colour. (4) Abrasion over left arm posterior aspect about 7.0 Cm. proximal to olceranon process. It is oblique semilunar in shape, size about 0.6 cm. x 0.2 cm. Red in colour. This witness found the internal injury corresponding to external injury no.1. A stab wound directed inwards medially, downwards & posteriorly. Along its course it cuts skin, sub-cutaneous tissue, abdominal muscles about lower 0.5 cm. of costal cartilage of 10th left rib, peritoneum, mesentery and penetrates into left kidney anterolateral aspect middle part. In the opinion of this witness, the cause of death was haemorrhage and shock as a result of stab injury sustained to left kidney. Injury caused by sharp edged penetrating object. 9.3. The defence has not been able to bring out any material of significance rendering the evidence of these two witnesses doubtful. In our opinion, therefore, the prosecution has been successful enough to establish that deceased Ashokbhai died a homicidal death. 9.4. The prosecution has examined Bharatbhai Chunilal Panchal, P.W. 2 Exh. 24 to establish that the appellants were the authors of this crime. According to this witness, deceased Ashokbhai was his real brother. He had a cousin Kanubhai Manubhai Panchal. Kanubhai's mother Mahalaxmiben had expired and, therefore, on 11th September, 1990 at about 9.45 p.m. he, Ashokbhai and Kanubhai were sitting outside the house of Kanubhai and they were talking about the obsequial ceremonies of Mahalaxmiben. He has further stated that on that day Vinaben, his sister-in-law had been to different relatives for inviting them to a dinner arranged as a part of obsequial ceremonies on the 12th day of Mahalaxmiben's demise. Vinaben had also gone to the house of appellant no. 1 for inviting them for dinner. At that time Shobhnaben, wife of appellant no. 1 and her sister-in-law Kailasben talked to Vinaben in a very rude manner and insulted her. This was informed by Vinaben when she returned home to the family members. During their talks this topic was also touched and at that time Kanubhai told Ashokbhai and Bharatbhai as to why Vinaben was sent to the house of Kaushikbhai as the relations between the two families were not cordial. This was over heard by one Alkeshbhai, who happened to be the nephew of appellant no.1. Alkeshbhai went home and informed appellant no. 1 about the talks going on between Kanubhai and deceased Ashokbhai and Bharatbhai. The witness has further stated that appellant no. 1 alongwith appellant nos. 2 and 3 came there and he asked deceased Ashokbhai why he was instigating Kanubhai against them. In reply Ashokbhai told him that they were not talking about him i.e. appellant no.1. However, on receiving this reply, appellant no. 1 got enraged and he went to the shop of cobbler Bhikhabhai and brought Rapi and he caused injury on Ashokbhai on the left abdomen. As a result of this injury Ashokbhai started bleeding profusely. At this juncture the witness tried to intervene, but he was caught hold of by appellant nos. 2 and 3 and appellant no. 1 caused injuries with Rapi to the witness on his right hand shoulder and also on the left thigh. He also started bleeding. He has further stated that when the assault was going on, his paternal aunts, namely Shantaben and Kantaben came there and on seeing them the appellants went away. The witness and Kanubhai thereafter took Ashokbhai to Municipal Haridas Hospital on a scooter for treatment. After taking primary treatment Ashokbhai was taken to Civil Hospital at Nadiad in a rickshaw. In Civil Hospital one Mariyamben, an employee of the hospital rang up police station and called the police. Upon the arrival of the police, this witness gave complaint which was duly recorded by the Police Sub Inspector Mr. Rathod. This witness was thereafter admitted as an indoor patient and Ashokbhai was transferred to Ahmedabad as his condition was very serious. During treatment at Ahmedabad Civil Hospital Ashokbhai expired. This witness was shown the weapon used for commission of the crime and he identified the same as having used by appellant no. 1 for causing injuries to him as well as Ashokbhai. In the cross-examination by the defence, this witness has stated that appellant no. 1 was in the legal profession for the last 10 to 12 years. He has further stated that Vinaben had informed them that it was Kailashben, wife of appellant no. 2, who had insulted her when she had gone to extend the invitation. The defence has also tried to bring on record in the cross-examination of this witness that there was a continuous police patrolling in this area and a police point was being maintained on account of communal riots taking place off and on. He has further stated that previously the relations between two families were quite cordial. But subsequently they got strained and for the last 4 to 5 years members of both the families