IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 104 of 2001 with CRIMINAL APPEAL No 270 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE N.G.NANDI and Hon'ble MR.JUSTICE RAVI R.TRIPATHI ============================================================ 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- VIKRAMSINH AMARSINH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 104 of 2001 MS SADHANA SAGAR for Petitioner No. 1 THROUGH JAIL for Petitioner No. 1 MR KC SHAH Ld. APP for Respondent No. 1 2. Criminal Appeal No. 270 of 2001 MR KC SHAH Ld. APP for Petitioner No. 1 MR PM DAVE for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE N.G.NANDI and MR.JUSTICE RAVI R.TRIPATHI Date of decision: 29/07/2003 ORAL JUDGEMENT (Per : MR.JUSTICE N.G.NANDI) 1. In the incident of 1/9/1999, at 7.00 p.m., at village Bedhia, Taluka Kalol, District Panchmahals, Amarsinh Bhagwansinh sustained knife injuries and later on succumbed to the said injuries which led to the trial of four persons viz. Vikramsinh Amarsinnh Chauhan, Prabhatsinh @ Dhalu Ramsinh, Ranjitsinh @ Bhayobhai Ganpatsinh and Balvantsinh @ Bodabhai Pratapsinh in Sessions Case No.3 of 2003 for the offences under Sections 302, 324, 323, 504 and 114 of Indian Penal Code read with Section 135 of the Bombay Police Act. The learned Additional Sessions Judge at Godhara, District Panchmahals by judgement dated 20.1.2001 convicted accused no.1 - Vikramsinh Amarsinh Chauhan which has given rise to Criminal Appeal No.104 of 2001 by the appellant - convicted by the trial Court AND acquitted accused no.2 - Prabhatsinh @ Dhalu Ramsinh, accused no.3 - Ranjitsinh @ Bhayobhai Ganpatsinh and accused no.4 Balvantsinh @ Bodabhai Pratapsinh which has given rise to Criminal Appeal No.270 of 2001 by the appellant - State under Section 378 (1) (3) of the Code of Criminal Procedure. 2. That the accused persons, deceased Amarsinh Bhagwansinh and the complainant - Pravinkumar Somabhai Chauhan resided at village Bedhia, Taluka - Kalol, District - Panchmahals; that on 1/9/1999, at about 19.00 hours, Pravinkumar Somabhai Chauhan was going to the shop of Nanusinh Chandrasinh; that at that time Vikramsinh Amarsinh Chauhan, Bhayabhai Gatabhai Chauhan, Prbhatsinh @ Dhalu Ramsinh and Balvant @ Bodabhai met Pravinkumar; that Parvinkumar asked Vikramsinh as to why he had quarrelled with Jaswantsbhai Raijibhai on Raxabandhan day, whereupon Vikramsinh got enraged on Pravinkumar and started giving abuses, and said as to who is he to ask him and so saying, gave a slap on the left cheek of Pravinkumar; that in the meantime, Amarsinh Bhagwansinh arrived and told Vikramsinh as to why he is beating Pravinkumar; that Vikramsinh immediately took out knife from his pocket and inflicted knife blow on the left thigh of Amarsinh; that other persons started giving abuses saying beat him and they gave fist and kick blows to Amarsinh; that cries were raised and Koyabhai Shanabhai came running and intervened; that he was also given knife blows by Vikramsinh below the left elbow and on the left arm upper portion and in the left side of the back of Koyabhai; that the blood started oozing from the injured site of Amarsinh and Koyabhai; that Amarsinh and Koyabhai both were removed to Civil Hospital, Kalol; that Vikramsinh succumb to his injuries; that Pravinkumar Somabhai Chauhan lodged complaint about the incident against Vikramsinh Amarsinh and 3 other persons as stated above; that offence was registered and usual investigation started; that the charge against all the accused came to be framed; that accused persons denied the charge levelled against them and claimed to be tried. 3. The prosecution in order to bring the guilt home to the accused adduced oral as well as documentary evidence. The learned trial Judge appreciating oral as well as documentary evidence and considering the further statement of the accused under Section 313 of the Code of Criminal Procedure, found accused no.1 - Vikramsinh Amarsinh Chauhan guilty for the offences punishable under Section 304 (2) of the Indian Penal Code and sentenced him to suffer 7 years SI and fine of Rs.2000/- and in default, two months SI and also under Section 324 of Indian Penal Code and sentenced to suffer 2 years SI and fine of Rs.1000/- and in default, one month SI. It is this conviction and sentence which have been assailed by Criminal Appeal No.104 of 2001 by the appellant - convict Vikramsinh Amarsinh Chauhan. 4. The learned trial Judge acquitted accused no.2 -Prabhatsinh @ Dhalu Ramsinh, accused no.3 - Ranjitsinh Bhayobhai Ganpatsinh and accused no.4 - Balvantsinh Bodabhai Pratapsinh of the charge levelled against them. It is this acquittal recorded in favour of accused nos.2, 3 and 4 which has been assailed by the appellant - State by filing Criminal Appeal No.270 of 2001. 5. We have heard the submissions advanced by Ms. Sadhna Sagar for the appellant - convict in Criminal Appeal No.104 of 2001 and Mr.P.M.Dave, learned advocate in Criminal Appeal No.270 of 2001 for the respondents. We have also heard the submissions advanced by Mr. K.C.Shah, learned APP in both these appeals for the State. The R & P of the case has been requisitioned from the trial Court. We have reappreciated the evidence adduced in the case before trial Court. 6. As per the prosecution case, on 1/9/1999, at about 19.00 hours, Pravinkumar Somabhai Chauhan was going to the shop of Nanusinh Chandrasinh; that at that time accused persons met him and he asked Vikramsinh as to why he had quarrelled with Jaswantsinh on Raxabandhan day, whereupon Vikramsinh got enraged and started giving abuses and gave a slap on left cheek of Pravinkumar; that Amarsinh Bhagwansinh came and tried to intervene, saying as to why Pravinkumar has been wrongly beaten, whereupon Vikramsinh took out knife from his pocket and giving abuses, dealt knife blow on the left thigh of Amarsinh; that other accused persons also abated and instigated Vikramsinh and started giving fist and kick blows; that hearing hubbub and shouts Koyabhai Shanabhai came to the place of incident and tried to intervene and pacify; whereupon Vikramsinh dealt knife blow below the left elbow on the upper portion of left arm of Koyabhai; that thereafter the accused persons fled away; that during the treatment Amarsinh succumbed to his injuries sustained in the incident. 7. It is not disputed that Amarsinh sustained injuries and succumbed to the same. It is suggested by PW-1 - Dr. Mohib Akbarali Maksud, M.O., Civil Hospital, Godhara that on 1/9/1999, at about 8.45 p.m., Amarsinh Bhagwansinh came with police yadi to the witness in injured condition; that on examination, one external injury on the upper portion of left thigh in the nature of incise wound 2 cm by 1/2 cm muscle deep was found for which Certificate Exh.18 has been issued; that the patient was conscious and his general condition was not good; that the patient was admitted in the post operative treatment; that the injured died at 9:10 p.m.; that the injuries noticed on the person of Amarsinh were caused by sharp cutting weapon like knife; that witness had prepared the case papers Exh.42 for the treatment. 8. The evidence of PW-2 - Dr.Rameshchanda Kodarji Chauhan suggests that he performed post-mortem on the dead body of Amarsinh Bhagwansinh on 2/9/1999; that external injuries found on the dead body, have been noted in Column No.17 and internal injuries found, have been noted in Column No.19 of P.M.Notes; Exh.13 prepared by him; that according to evidence of PW-2 and P.M.Notes Exh.13, the cause of death is hemorrhagic shock followed by external and internal hemorrhage. It is further suggested that the injuries on the dead body could be caused by sharp edged weapon like knife; thus as per the medical evidence deceased Amarsinh Bhagwansinh died homicidal death in the incident of 1/9/1999. 9. As far as the implication of accused no.1 Vikramsinh in the incident is concerned, the say of the prosecution is that when Vikramsinh and Pravinkumar were having exchanges on the incident which took place on Raxabandhan day, wherein Vikramsinh is said to have some quarrel with Jaswantsinh. Deceased Amarsinh Bhagwansinh came to spot and took the side of Pravinkumar, whereupon Vikramsinh became excited, gave abuses and took out knife from his pocket and dealt knife blows on upper portion of left thigh near hip joint. Hearing the shouts Koyabhai rushed to the place of incident and intervened, who was also given knife blow below the left elbow and the upper left arm portion. The other accused persons are said to have abated Vikramsinh in commission of the aforesaid acts and after giving the knife blows, Vikramsinh with other accused persons fled away from the place of incident. 10. The evidence of PW-3 - complainant - Pravinkumar Somabhai Chauhan suggests that on 1/9/1999, at about 6.00 O'clock in the evening, he had gone to the shop of Nanusinh Chandrasinh; the accused followed him at the said shop; that altercation took place between PW-3 and Vikramsinh about the quarrel which took place on Raxabandhan day between Jaswantsinh and Vikramsinh; that Vikramsinh got enraged and started giving abuses and gave 2 to 3 slaps on the left cheek of PW-3. It is also suggested that Amarsinh Bhagwansinh came to the place and reprimanded Vikramsinh as to why he is wrongly beating PW-3; that Vikramsinh took out knife and dealt knife blow on the upper portion of left thigh near hip joint of Amarsinh; that Koyabhai rushed to the place of incident and intervened and Vikramsinh dealt knife blow below the left elbow and upper portion of the left arm of Koyabhai besides the knife blow on the left side back of Koyabhai. The say of complainant PW-3 finds corroboration from the medical evidence inasmuch as PW-1 and Pw-2 have stated in his evidence that the injuries on the person of the deceased could be caused by muddamal weapon. 11. As far as participation of Vikramsinh in the incident is concerned, as pointed out above, PW-3 has specifically deposed about the part played by Vikramsinh in the incident inasmuch as he dealt knife blow on the upper left thigh near the hip joint of deceased Amarsinh and also the knife blows dealt below the elbow and the upper portion of the left arm of the Koyabhai. 12. The evidence of PW-10 Nanusinh Chandrasinh suggests that the witness is having a shop at village Bedhia; that at about 7.00 O'clock in the evening of 1/9/1999, the witness was at his shop attending to his customers; that at that time Koyabhai Shanabhai (PW-15) came shouting in injured condition with blood oozing and said that Vikramsinh has dealt knife blow below the left elbow and on the back portion; that Koyabhai also said that Bodiya has been injured with knife by Vikramsinh and that witness should inform police station on phone; that the witness tried to inform police by phone but, phone was not working; that Koyabhai had knife injuries on left elbow and the blood was oozing out of it; that the incident took place at a distance of about 25 feet from the shop of the witness; that when the witness went to see Amarsinh, his pant was blood stained and the blood was oozing out from left thigh upper portion. 13. It is suggested from the evidence of PW-11 -Madhuben Narvatsinh that the incident took place on the day called "Radhan Chhat" at about 6.00 to 7.00 O'clock in the evening; that at that time the witness was preparing food and upon hearing the shouts of quarrel, she came out and saw Bodiya @ Amarsinh lying in the street; that at that time Parvinkumar Somabhai was seen holding Amarsinh, and she asked Amarsinh whereupon Amarsinh said Vikramsinh has given knife blow and has run away; that he has also said that there were about 2 to 3 persons with Vikramsinh and that Dhalubhai was one of them; that Koyabhai was also there; that witness knows accused nos.1 and 3 by name; that she does not know the name of accused no.4 but, she knows him. The evidence of this witness suggests that complainant Pravinkumar (PW-3) was by the side of injured Amarsinh and he was holding Amarsinh, who was in injured state with blood oozing out; that the witness has categorically deposed that Amarsinh gave the name of Vikramsinh as the assailant dealing knife blow to him. It may be seen that the statement made by Amarsinh to PW-11 Madhuben would be a dying declaration since Amarsinh succumbed to his injuries within few hours of the incident. 14. The evidence of PW-12 Lilaben Babarbhai suggests that the incident took place at 7.00 O'clock on the day of Radhan Chhath and she was busy preparing food in her kitchen; that at that time, Vikramsinh, Prabhatsinh and nephew of Bhayosinh Dhalubhai whom she knows by face, came quarrelling; that at that time Vikramsinh dealt knife blow on Amarsinh and Amarsinh fell down; that there were 3 other persons also, who were giving fist and kick blows to Amarsinh; that Amarsinh shouted for help, whereupon Koyabhai came to the place of incident; that Koyabhai also shouted, whereupon Bhagwanbhai and Natubhai came to the place of incident; that Koyabhai tried to rescue Amarsinh and in the process, Koyabhai sustained injuries on the left elbow; that Vikramsinh dealt knife blow on left thigh of Amarsinh. It is further suggested that the witness saw the incident from the courtyard of her house and the incident had taken place near the steps of her house in the street and that Amarsinh because of the injuries had fallen down near her otta; that on the next day, she learnt that Amarsinh died because of the injuries sustained in the incident. Nothing substantial has been brought out from the cross-examination of this witness so as to disbelieve her testimony. 15. PW-13 - Nanubhai Koyabhai Chauhan has deposed to the effect that he witnessed the incident when he was sitting on the otta of his house at about 7.00 p.m.; that Vikramsinh gave knife blow on the left thigh of Amarsinh; that at that time 3 other persons were with Vikramsinh; that because of the knife blows Amarsinh fell down and the accused persons gave fist and kick blows to Amarsinh; that Koyabhai Shanabhai was also dealt knife blow by Vikramsinh below the left elbow as well as on the back portion; that thereafter, Bhagwansinh and Natwarsinh came and removed Amarsinh and Koyabhai to the Hospital in camel-cart. It may be seen that PW-10, PW-11, PW-12 and PW-13 are the independent witnesses having nothing to do either with the accused or the injured. It is not the say of the defence that these witnesses are in any manner interested witnesses. It is not suggested from the evidence of these witnesses that they have any axe to grind against Vikramsinh. There can be no reason for these witnesses to tell lie as they have no connection with the victims or animosity with accused Vikramsinh. 16. In the incident, besides the fatal knife injury- a blow on the left thigh of Amarsinh, Koyabhai (PW-15) who tried to intervene also sustained knife blow at the hands of Vikramsinh causing injury below the left elbow and left upper arm portion. PW-16, Head Constable Dolatsinh Bhuptasinh Rauliji, has stated in his evidence that in course of the investigation on 3/9/1999 Vikramsinh produced knife in presence of panchas which was recovered by making panchnama vide Exh.36 proved in the evidence of PW-16. It is suggested from the panchnama that muddamal knife did not have any visible blood marks. It is suggested from the evidence that the muddamal knife was not sent to FSL probably for this very reason. It is suggested from the record that the clothes of the deceased were recovered vide Panchnama Exh.31. The FSL report, Exh.39, suggests that the pant of the injured had human blood but, the blood group could not be ascertained. It is also suggested that the sample of the earth taken from the place of incident also contained human blood but, without ascertainment of the blood group. 17. The evidence of PW-15 Narvatsinh @ Koyabhai Shanabhai, an injured in the incident, suggests that at the time of incident, he had gone to the shop of Nanusinh Chandrasingh with Amarsinh Bhagwan; that at that time Vikramsinh Amarsinh, Prabhatsinh @ Dhalu Ramsinh, Bhayabhai Gatabhai and Bodabhai were beating Pravinkumar Somabhai; that Amarsinh intervened and at that time, Vikramsinh dealt knife blow in the abdomen of Amarsinh; that the witness tried to rescue Amarsinh and Vikramsinh also dealt knife blow on the left elbow and upper arm portion of the witness; that witness and Amarsinh raised cries, whereupon other persons rushed to the place of incident; that the witness with blood oozing from the injury site came to the shop of Nanusinh Chandrasinh for informing Godhara Police by telephone, and told Nanusinh to inform police by phone but, no contact could be established on phone. It is stated that motive for the incident was the quarrel on the Raxabandhan day, wherein Jaswantsinh was given beating by Vikramsinh for which Amarsinh and Pravinkumar had gone to the police for lodging the complaint. As observed earlier, PW-10 Nanusinh Chandrasinh has also deposed on the same line, corroborating the say of PW-15 inasmuch as PW-10 has stated that Koyabhai Shanabhai came shouting in injured condition with blood oozing to the shop of the witness and told him that Vikramsinh has dealt knife blow below the left elbow and on the back portion of the witness and that Koyabhai also said that Bodiya has been injured with knife by Vikramsinh, and that witness should inform police station on phone. Thus, PW-15 has been supported of all particulars by PW-10 as far as the occurrence is concerned. PW-1 (Exh.10) - Dr.Mohib Akbarali Maksud, M.O., Civil Hospital, Godhara also examined injured Narvat Shanabhai (PW-15) on 1/9/1999 and noted the external injuries in the certificate Exh.11 issued by him. It is suggested from the deposition as well as the injury certificate, Exh.11, that the injured Narvat Shanabhai had sustained one incised wound on the middle of the left hand of 5 cm by 1 cm muscle deep and also one incised wound on the left hand outer portion of 8 cm by 1 cm muscle deep, and on the rear of the chest i.e. on the back side one incised wound. That in the injury certificate, Exh.11, following external injuries have been noted. (i) I.W. on the left upper arm - m/3-Post. Size - 5 cq x 1 cq x muscle deep. (ii) I.W. on the left forearm O/3 -Post. Size - 8 cq x 1 cq x muscle deep. (iii) I.W. on the left side of arm - Post at angle of scapula. Size - 2 cq x 1/2 cq x 5 cq deep. Looking to the medical evidence Exh.10 and Exh.11 and the deposition of injured Narvat Shanabhai (PW-15) and Nanusinh Chandrasinh, PW-10, the giving of the knife blow by accused Vikramsinh on the person of Narvat Koyabhai has been sufficiently established. Looking to the evidence recorded as far as the injuries caused to PW-15 by accused Vikramsinh is concerned, we do not find any interference is called for in the conviction recorded, for the offence under Section 324 of the Indian Penal Code, by the learned trial Judge. 18. As seen above, medical evidence also corroborates the say of the prosecution witnesses as far as the injury found on the person of deceased Amarsinh. The involvement of accused Vikramsinh in the incident by giving of knife blow by accused Vikramsinh on the left upper thigh near the hip joint has been sufficiently established by the ocular as well as the medical evidence. In the instant case, accused Vikramsinh has been convicted for the offence under Section 304 (2) of the Indian Penal Code. There is no appeal by the State contending that the conviction should have been under Section 302 of the Indian Penal Code. Even in Criminal Appeal No.270 of 2001 preferred by the State is only against the acquittal recorded in respect of the other accused persons. Under the circumstances, we have to take the conviction recorded by the trial Court against accused Vikramsinh under Section 304 (2) of the Indian Penal Code without questioning correctness / legality of the same in absence of any appeal by the State in this regard. As far as the Criminal Appeal No.104 of 2001 preferred by the appellant -accused Vikramsinh is concerned, as pointed out above, the reappreciation of evidence suggests that the learned trial Judge has justifiably convicted the accused Vikramsinh in the incident wherein Vikramsinh had dealt knife blow on the left upper thigh near the hip joint which injury culminated into the death of Amarsinh few hours later and imposed sentence of 7 years SI with fine of Rs.2000/- and in default, 2 months SI. Thus, it will be seen that no interference is called for in the judgement convicting the appellant - convict - Vikramsinh for the offence punishable under Section 324 and 304 (2) of the Indian Penal Code imposing the sentence as aforestated and, therefore, Criminal Appeal No.104 of 2001, being devoid of merits, is liable to be dismissed. 19. Criminal Appeal No.270 of 2001 preferred by the State, challenging the acquittal of respondents - accused no.2 - Prabhatsinh @ Dhalu Ramsinh, accused no.3 Ranjitsinh @ Bhayobhai Ganpatsinh and accused no.4 Balvantsinh @ Bodabhai Pratapsinh is concerned, the say of the prosecution is that after Vikramsinh dealt knife blow on the upper left thigh of Amarsinh, Amarsinh fell down and other persons gave fist and kick blows to Amarsinh. It is submitted by Mr.P.M.Dave, learned advocate for the respondents - accused that there is no medical evidence to suggest giving of the fist and kick blows to deceased Amarsinh much less by the respondents causing any injury / tenderness thereby. It is true that from the P.M.Notes, Exh.13, it is not suggested particularly from the external injuries any tenderness or some such injury which could be caused by fist and kick blows. It may be that because of the knife injury caused on the person of Amarsinh, the attention of treating doctor was focused on the knife injury. Anyway, there is no medical evidence to suggest any tenderness caused with of any portion on the body of Amarsinh by fist and kick blows. 20. The evidence of PW-3 complainant Pravinkumar Somabhai Chuhan suggests that Vikramsinh got enraged and gave 2 to 3 slaps to the witness and at that time, Amarsinh came and intervened, who was dealt knife blow by Vikramsinh and other accused persons gave fist and kick blows to Amarsinh. In Para.2 of the cross-examination, it has been deposed that Vikramsinh had dealt 4 to 5 slaps on the cheek of the witness, with the result there was tenderness on the left cheek for which no medical treatment was taken by the witness. As seen earlier, there is no corroboration from the medical evidence for the fist and kick blows stated to have been given to Amarsinh and P.W.3 complainant has not been medically treated for the slaps which he stated to have been given to him. 21. The evidence of PW-11 an eye witness suggests that upon asking Bodiyabhai about the injury caused to him, Bodiyabhai is stated to have told her that Vikramsinh had dealt knife blow on him and that there were 2 to 3 persons also with him. It is pertinent to note that witness is not told about fist and kick blows stated to have been given to Amarsinh. It is