IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 151 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE K.A.PUJ ========================================================= 1. Whether Reporters of Local Papers may be allowed : YES 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? ------------------------------------------------------- BACHUBHAI ALIAS RATANSINH AMBALAL CHAUHAN Versus STATE OF GUJARAT ------------------------------------------------------- Appearance: 1. Criminal Appeal No. 151 of 1991 MR HL MENGHANI for Petitioner No. 1-3 Mr. Pancholi, APP for Respondent State. ------------------------------------------------------- CORAM : MR.JUSTICE K.A.PUJ Date of decision: 16/10/2003 CAV JUDGEMENT This Criminal Appeal is filed by the appellants-original accused Nos. 1, 2 & 3 against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Baroda, dated 27th February 1991 in Sessions Case No. 157 of 1990. The appellants were tried in the Court of learned Additional Sessions Judge, Baroda for the alleged commission of offences made punishable under Section 302 read with Sec. 34 and 114 of Indian Penal Code and also for the offences punishable under Section 134 r/w. 37(1) of the Bombay Police Act. 2. The brief facts, giving rise to the present Appeal, are as under: That the incident in question took place on 1st August 1990 at about 10.00 O'Clock in the night at Village Sherkhi in Baroda District. It was the case of prosecution that the deceased Ganpatsinh Fatehsinh and the informant Ramanbhai Fatehsinh were brothers and they were residing in outskirts of the Village Sherkhi. There was a dispute going on between the appellants-accused on the one side and Ramanbhai and his deceased-Ganpatsinh on the other side in respect of recovery of some amount for purchase of utensils made for and on behalf of their community Panchayat. There was some enmity prevailing between the parties on account of some old dispute regarding land. The deceased had some altercation with the appellants on 1.8.1990 at about 8.30 PM and soon thereafter they had separated and went to their respective places. 3. It is the case of prosecution that it was raining at the night and deceased Ganpatsinh and informant Ramanbhai learnt that beam of the house situated in the village itself near the house of the accused had fallen down. They, therefore, went to see the condition of their house. It was about 10.00 O'Clock in the night and while they were returning, the appellants-accused met them and told that why they have gone there. The prosecution case further shows that in the meantime other two appellants also came there and surrounded the deceased and Ramanbhai. According to the prosecution, the appellants were armed with the stick at that time. The allegation further is that soon thereafter the appellants started beating the deceased and his brother. It is further alleged that the appellant No.3 i.e., Dilipsinh gave stick blow on the head of the deceased with the result the deceased fell down. The other two appellants thereafter gave stick blows on his legs, chest and shoulder. It was further alleged by the prosecution that brother of the deceased, i.e., Ramanbhai tried to intervene and rescue his brother, but he was also assaulted by the appellants. It was further alleged that the appellant No.3 gave a stick blow on his head whereas appellant No.2 gave stick blow on the right hand and shoulder. To save himself from the attack, Ramanbhai ran away from the spot leaving his brother Ganpatbhai there. Another brother of the deceased namely, Chitrasinh learnt about the incident and he, in the company of his brother-in-law Sardarsinh and also Ramanbhai went to the police station to lodge complaint against the appellants. 4. It is further stated that it is borne out from the prosecution evidence that the appellants were also assaulted by Ramanbhai and appellant No.3, i.e., Dilipsinh had sustained injury on the vital parts of his body by means of a knife. When the informant Ramanbhai and his brother-in-law Sardarsinh and Chitrasinh went to the police station, complaint was already lodged by the appellants-accused against Ramanbhai for the offences under Section 324 read with Section 34 r/w. 114 of the IPC which was registered as C.R. No. I-98 of 1990. This offence was registered by prosecution witness No.10, namely Nanubhai Babubhai on the strength of a message given to him by the Police Head Constable on duty at the hospital. The police thereafter registered the offence against the present appellants on the strength of the complaint filed by Ramanbhai and others at about 1.15 a.m. in the night, as C.R. No. I-99 of 1990 and since the offence was of serious nature, due intimation was given to the superior officers. On receipt of the complaint, the police commenced the investigation and Police Sub-Inspector, Jaidev C. Solanki who at the relevant time was attached to the Baroda Taluka police station, reached Village Sherkhi and inspected the spot. He had found that Ganpatsinh was already dead and hence the arrangement for inquest Panchnama was made and thereafter the dead body of deceased Ganpatsinh was sent to the hospital for post mortem examination. After completing the investigation, the police submitted chargesheet in the Court of learned Judicial Magistrate (FC), Baroda against the present appellants for the offences mentioned hereinabove. 5. Since one of the appellants was also injured and offence was registered in respect thereof, the police had also commenced investigation in that case and had filed chargesheet against Ramanbhai. Both these cases thereafter were committed to the Court of Sessions. Since the offences under Sections 302 and 307 were exclusively triable by the Court of Sessions, the case against Ramanbhai being a cross-case of the present case was also committed to the Court of Sessions and the cross-case was numbered as Sessions Case No. 24 of 1990. 6. It is further stated that at the trial, the appellants had not pleaded guilty and claimed to be tried. Their defence was that they were absolutely innocent and it was stated that the complainant and his brother deceased Ganpatsinh were the aggressors who had attacked them first and the appellants were, therefore, required to exercise their right of private defence. 7. It is further stated that the learned Additional Sessions Judge, Baroda, at the end of the trial, by judgment and order dated 27th February 1991, convicted the present appellant No.1 for the offences made punishable under Sections 326 and 324 of the Indian Penal Code and sentenced them to suffer imprisonment for a period of 3 years and to pay a fine of Rs. 350/=, in default, further rigorous imprisonment for 6 months for offences under Sec. 326 of the Indian Penal Code and was also sentenced to suffer R.I. for one year and to pay a fine of Rs. 150/=, in default to suffer R.I. for 3 months for offences made punishable under Section 324 of the IPC. So far as appellant No.2 is concerned, he was convicted for the offence under Sec. 324 of the IPC and was sentenced to suffer R.I. for one year and to pay a fine of Rs. 250/=, in default further R.I. for 3 months. So far as the appellant No.3 is concerned, he was convicted for the offences under Part-II of Section 304 of the IPC and sentenced to suffer R.I. for a period of 4 years and to pay a fine of Rs. 500/-, in default to undergo R.I. for 3 months. He was also convicted for the offence under Section 324 of the IPC and was sentenced to suffer R.I. for one year and to pay a fine of Rs.150, in default to suffer R.I. for 3 months. The learned Additional Sessions Judge had also directed that all the sentences of the accused to run concurrently. 8. So far as other Sessions Case No. 24 of 1990 is concerned, the learned Sessions Judge, vide his judgment and order dated 25th February 1991 convicted the accused, namely Ramanbhai for the offences under Sec. 324 of the IPC and sentenced to suffer R.I. for one year and to pay a fine of Rs. 150/-, in default to suffer R.I. for 3 months. 9. It is this order of the learned Additional Sessions Judge, Baroda, dated 27th February 1991 in Sessions Case No. 157 of 1990 which is under challenge in this Criminal Appeal filed by the appellants, original-accused. 10. Mr. HL Menghani, ld. advocate appearing for the appellants, original-accused, submits that the judgment and order of conviction and sentence passed by the learned Sessions Judge is contrary to the provisions of law and not based on weight of evidence of the case. He has further submitted that the impugned judgment and order of conviction and sentence passed on inferences not warranted by facts and on presumptions not permitted by law. He has further submitted that the prosecution had failed to establish the case against the appellants beyond reasonable doubt and hence they are required to be acquitted. It is further submitted that the learned Sessions Judge has failed to appreciate that there was no independent and reliable evidence of the case to base conviction of the appellants. He has further submitted that the evidence produced on behalf of prosecution suffers from number of inherent infirmities and hence there was hardly any reliable evidence on record to establish the guilt of the appellants. The evidence produced by the prosecution was not sufficient to hold the appellants guilty of which they were charged with. He has further submitted that the oral evidence led by the prosecution was not in accordance with the medical evidence on record, and on this sole ground the prosecution's case requires to be thrown overboard. He has further submitted that there were number of inherent discrepancies between the oral account of the incident given by the witnesses and the medical evidence produced by the prosecution which was not reconciled and hence the prosecution's case should be failed on that count alone. 11. Mr. Menghani has further submitted that it was the case of prosecution that all the present appellants were armed with stick at the time of incident and that they had caused injuries to the deceased and to Ramanbhai by means of those sticks and no use of any sharp-cutting instrument or weapon was alleged to have been made by the appellants at any point of time as per the prosecution's case. Despite this fact, the medical evidence in the nature of post mortem notes of the deceased shows that the injuries suffered by the deceased by means of sharp-cutting instrument. The postmortem notes produced on the record by the prosecution at Exh. 18 shows the injuries described at Column No. 17. Injuries shown at Sr. No. 1, 1(b), 2 and 3 show that they were incised wounds which could only be caused by a sharp-cutting instrument. These injuries could not be caused by a hard and blunt substance like stick. This version of the medical evidence in all probabilities indicates that the deceased must have been assaulted by a sharp-cutting instrument at the time of incident. No prosecution witness, however, had said that any of the appellants was armed with any sharp-cutting instrument and that he had caused those injuries to the deceased. Mr. Menghani has further submitted that the Medical Officer who had carried out the post mortem examination was not right when she deposed before the Court that such injuries would be caused by hard and blunt substance. 12. Mr. Menghani has further submitted that according to the prosecution, the deceased Ganpatsinh and Ramanbhai had gone to village Sherkhi near the house of the deceased to have inspection of their house because, according to them, a beam of their house had fallen down due to heavy rain. It has come on record that the deceased and prosecution witness Ramanbhai did not have any house in the village near the house of the accused. They were residing on the outskirts of the village which is quite at a distance from the house of the accused. The deceased and prosecution witness Ramanbhai had therefore no reason to go near the house of the accused at about 10.00 O'Clock at night and that too at the time when there was heavy rain. He has further submitted that the prosecution has deliberately suppressed the true motive of their visit to the place near the house of the accused. Mr. Menghani has submitted that the prosecution witness Ramanbhai had made certain improvements while giving evidence before the Court at the time of trial in the version of the incident. He had done so with the purpose of suppressing the real reason for their presence near about the house of the appellants at the time of incident. 13. It is further stated that one of the assailants, namely, Dilipbhai had sustained injury with sharp-cutting instrument like knife. It was prosecution witness Ramanbhai who had caused that injury to Dilipbhai. Prosecution witness Ramanbhai, however, did not utter a word about the injury caused to Dilipbhai in his presence before the Court. Mr. Menghani has further submitted that over and above suppressing the true purpose of their visit to the place near the house of the appellants at the time of incident, the prosecution witness Ramanbhai has also tried to suppress the true facts regarding origin of the incident and has also not explained as to how the injuries were caused to the appellant Dilipbhai at the time of incident. All the three factors were therefore sufficient to discard the prosecution case. He has further submitted that the prosecution witness Ramanbhai was also prosecuted for causing injury to one of the appellants, namely Dilipbhai at the time of incident and at the end of trial he was convicted for the offence under Sec. 324 of the IPC and was sentenced to suffer R.I. for one year. The fact that one of the appellants was injured by prosecution witness Ramanbhai at the time of incident was duly proved and despite this fact, the prosecution had not made any effort to explain the injury suffered by one of the appellants at the time of incident. He has further submitted that non-explaining of the injuries on the person of the appellants by the prosecution was fatal to its case and it deserves to be rejected only on that count. 14. Mr. Menghani has further submitted that from the record it emerges that it was the deceased and prosecution witness Ramanbhai who had gone to the place of the accused at night at about 10.00 O'clock and then the incident had taken place where one of the appellants had also suffered serious injuries. It was the deceased and prosecution witness Ramanbhai who had gone there with the intention of attacking the appellants and in fact had caused injuries to one of the appellants, namely Dilipbhai. It is therefore quite clear that the appellants might have tried to defend themselves and while doing so the deceased might have received injuries. The appellants were therefore completely justified in exercising their right of self-defence. 15. Mr. Menghani has further submitted that the prosecution witness Ramanbhai himself had admitted that the whole incident had taken place near the house of Bachhubhai and that they did not have any house near the house of the accused. The prosecution had not examined any independent witness in respect of their case even though the incident had taken place in a residential locality and independent witness could have been available to it. The explanation given by the prosecution in this regard could not have been believed as the prosecution witness Ramanbhai in his evidence has stated that he did not raise any shouts when they were attacked and nobody came at the place of incident. The conduct of the prosecution witness Ramanbhai was highly unnatural inasmuch as any person put in the position of prosecution witness Ramanbhai would have raised shouts for help. If he had been attacked by persons armed with sticks, no other inference can be drawn on the unnatural conduct of prosecution witness Ramanbhai. As a matter of fact, he had not raised shouts establishes that he himself was the assailant or that he did not want any independent person to be a witness of this incident. 16. Mr. Menghani has further submitted that except the evidence of prosecution witness Ramanbhai, there was no other independent eye witness examined by the prosecution, though according to prosecution witness Ramanbhai himself, many persons were residing round about the place of incident. He has further submitted that both the cases, i.e., the case against the appellant and the case against the prosecution witness Ramanbhai were tried together and the learned Judge has convicted the appellants as well as the prosecution witness Ramanbhai. It is therefore a grave error committed by the learned Sessions Judge in doing so. The prosecution witness Ramanbhai has been guilty of offence under Section 324 of the Indian Penal Code, and hence the learned Judge ought to have given benefit of right of self-defence to the appellants. 17. Mr. Menghani has further submitted that the incident was not as a result of a common intention of the appellants as it has come on record that the incident took place near the house of the appellants and P.W. Ramanbhai and the deceased Ganpatsinh had gone at about 10.00 O'Clock in the night. He has further submitted that even if it is assumed that the appellants were responsible for causing injuries to deceased Ganpatsinh, each one of them would be independently liable for the injuries caused, the prosecution has not proved by leading cogent evidence as to which injury was caused by which appellant and in that event all the appellants should have been convicted for the minimum offence, i.e., offence under Section 323 or 324 of the Indian Penal Code. This was more so, in view of the fact that according to the medical evidence, none of the injuries, of its own, was sufficient in ordinary course of nature to cause death. 18. Mr. Menghani, in support of his contention regarding right of self-defence, relied on the decision of the Hon'ble Supreme Court in the case of Buta Singh v. The State of Punjab - AIR 1991 S.C. 1316, wherein it is held that having regard to the nature of the incident, it is difficult to say that he exceeded the right of private defence for the obvious reason that he could not have weighed in golden scales in the heat of the moment the number of injuries required to disarm his assailants who were armed with lethal weapons. The Court has, therefore, rejected the submission of the learned counsel for the State that the appellant had exceeded the right of private defence. 19. Mr. Menghani has further relied on the decision of the Hon'ble Supreme Court in the case of Nabia Bai v. State of Madhya Pradesh - AIR 1992 SC 602, with regard to right of private defence of person. The Hon'ble Supreme Court has held that it is abundantly clear that the appellant neither had any motive nor had any intention to kill the deceased. She only wanted to save herself from an armed intruder who had inflicted knife injuries on her. The Court was satisfied that the appellant acted in her right of self defence and the appellant was acquitted on that ground. 20. He has further relied on the decision of the Hon'ble Supreme Court, in the case of Ram Phal and Others v. State of Haryana - AIR 1993 SC 1979, for the proposition that accused cannot be said to have exceeded the right of private defence and benefit of doubt should be given to the accused. In this context, it is held by the Hon'ble Supreme Court, that "it has to be noted that the accused need not establish their right beyond all reasonable doubt. It is enough if a reasonable doubt arises on examination of the probabilities of the case. In the case before the Supreme Court, it was found that the accused persons received fairly number of injuries and some of them were on vital parts. The prosecution has no plausible explanation. In such a situation, the plea put forward by the accused appears to be quite probable and, therefore, it cannot be rejected. The next question is whether they have exceeded the right of private defence. Only one overt act is attributed to A-1. It is clear that he inflicted only one injury and dealt one blow on his head. Therefore, in such a situation, it cannot be said that the act of A-1 is not in conformity with the limitations laid down in Section 100, I.P.C." The Court has, therefore, given benefit of doubt to all the accused as such by holding that they have not exceeded the right of self-defence. 21. Mr. Menghani has further relied on the decision of the Hon'ble Supreme Court in the case of Makwana Takhat Singh Ratan Singh vs. State of Gujarat - AIR 1992 SC 1989 wherein the Hon'ble Supreme Court has held that to decide as to who was the aggressor this becomes necessary particularly when the accused had come forward with a plea that the prosecution party was the aggressor. The fact that some incised injuries were found on one of the accused itself shows that one of the members of the prosecution party used the sharp-edged weapon. No doubt, some of the prosecution witnesses are also injured but likewise some of the accused persons also received injuries. In this state of affairs, the view by the trial court that the accused party acted in exercise of right of private defence is not unreasonable as to warrant interference in an appeal against acquittal. 22. With regard to his contention that the prosecution has failed to explain injuries on the person of one of the appellants, he relied on the decision of the Patna High Court in Sarjug P. Singh and Others vs. State of Bihar - 1984 Cri.L.J. 1086, wherein it is held as under : "If there is a riot, assault and counter-assault, it is obligatory for the prosecution to come to court with a clean hand and to explain the injuries caused to the other side. If the injuries on the accused are so superficial and small that might not be visibly seen and noticed, non-explanation thereof, may not jeopardise the trustworthiness of a prosecution witness. But if the injuries are quite perceptable and are such which might not go unnoticed, and the evidence transpires that the accused also got injuries in the same incident, a duty is cast on the prosecution to explain the same." 23. With regard to his contention that the Sessions Judge has based his decision solely on the evidence of a solitary eye witness who is an interested party, Mr. Menghani relied on the decision of the Hon'ble Supreme Court in the case of Toran Singh vs. State of M.P. 2003 (1) GLH 244, wherein it is held that, "Apart from material contradictions and omissions in the statements of witnesses, these factors clearly indicate the serious infirmities and improbabilities of the prosecution case giving rise to grave doubts as to the involvement of the appellant in the commission of the offence." It is further observed that the trial court was not right and justified in lightly brushing aside the infirmities and improbabilities brought out from the prosecution case, that too when the entire prosecution case rested on the sole eyewitness, who was interested being the son of the deceased; more so in the absence of any corroboration of his evidence by other independent evidence on material aspects of the