CR.A/259/1999 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 259 of 1999 With CRIMINAL APPEAL No. 301 of 1999 With CRIMINAL APPEAL No. 380 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= CHANDANSING @ TINIYO DHURAJI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= CRIMINAL APPEAL No. 259 OF 1999 : Appearance : CR.A/259/1999 2/33 JUDGMENT THROUGH JAIL for Appellant(s) : 1,MS REKHA H KAPADIA for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, CRIMINAL APPEAL No. 301 OF 1999 : Appearance : MR YS LAKHANI for Appellant(s) : 1 & 2, MR HL JANI APP for Opponent(s) : 1. CRIMINAL APPEAL No. 308 OF 1999 : Appearance : MR HL JANI APP for Appellant(s) : 1, MR SS SAIYED (Amicus Curie) for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 17/01/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 All these Appeals are directed against the judgment and order dated 23.02.1999 passed by the learned Addl. Sessions Judge, Court No. 10, City Civil and Sessions Court, Ahmedabad in Sessions Case No. 52 of 1998, whereby Original Accused Nos. 1, 2 & 3 were convicted for the offence punishable u/s. 302 r/w. Section 34 of the Indian Penal Code [for short, “the I.P.C.”] while Original Accused No. 4 was acquitted from all the charges levelled CR.A/259/1999 3/33 JUDGMENT against her. For conviction u/s. 302 r/w. Section 34 of the I.P.C., Original Accused Nos. 1, 2 & 3 were sentenced to undergo imprisonment for life with fine of Rs.250/- and in default of payment of fine, they were sentenced to undergo rigorous imprisonment for a further period of one month. 1.1 Criminal Appeal No. 259 of 1999 has been preferred by Original Accused No. 1, Criminal Appeal No. 301 of 1999 has been preferred by Original Accused Nos. 2 & 3 while Criminal Appeal No. 380 of 1999 has been preferred by the State against the acquittal of Original Accused No. 4. 1.2 As all the three Appeals arise from the judgment and order dated 23.02.1999 passed in Sessions Case No. 52 of 1998, they are heard together and disposed of by this common judgment. 2.0 The facts in brief, as brought out by the prosecution, are as under ; CR.A/259/1999 4/33 JUDGMENT 2.1 On 26.10.1997, at around 1530 hrs., Nainaben, daughter of deceased – Bhamraji, had gone to fetch water from a nearby public tap. As there was no supply of water in the said tap at the relevant point of time, Nainaben went to the house of original accused no. 3, which was situated in the neighborhood of her house, to fetch the same. While Nainaben was fetching water, original accused nos. 1, 2 & 3 and some other persons began to tease Nainaben. Therefore, Nainaben returned to her house. 2.2 After returning to her house, Nainaben informed about the said incident to her father, deceased – Bhamraji. As a result thereof, deceased – Bhamraji went to the house of original accused no. 3 and warned them not to repeat such thing in future. Thereafter, the deceased left the house of original accused no. 3. 2.3 Some time later, all the four accused persons went to the house of deceased – Bhamraji and during that time, original accused no. 1 was having a 'Rampuri' – knife, original accused no. 4 was having a stick while the two CR.A/259/1999 5/33 JUDGMENT other accused persons, i.e. original accused nos. 2 & 3, were unarmed. Original accused nos. 2 & 3 caught hold of the deceased while original accused no. 1, who was having a knife, inflicted knife blows on the right hand side region of the abdomen as also the thigh region of the deceased. As a result thereof, the deceased fell down and all the accused persons fled the scene of offence. 2.4 Thereafter, the deceased was taken to Sardarnagar Police Station in an Auto-rickshaw. At that time, the P.S.I. of Sardarnagar Police Station, Kanaksinh Bhulabhai Rathod, advised that the deceased be taken to the Civil Hospital, Ahmedabad for necessary treatment. Accordingly, the deceased was taken to Civil Hospital, Ahmedabad, where he was given necessary treatment. 2.5 The said P.S.I. - K. B. Rathod went to Civil Hospital, Ahmedabad and made necessary inquiry. A complaint with respect to the aforesaid incident was recorded by the P.S.I., which was later sent to the P.S.O. of Sardarnagar Police Station for the purpose of registering the CR.A/259/1999 6/33 JUDGMENT offence. The said complaint came to be registered as I – C. R. No. 257 of 1998 for offence punishable u/s. 326, etc. of the I.P.C.. 2.6 In the meanwhile, the P.S.I. made necessary arrangements for the purpose of recording the Dying Declaration of the deceased. Thereafter, he went to the scene of offence and prepared a 'panchnama' in the presence of 'panchas'. Necessary 'muddamal' articles were also collected. Statements of several witnesses were recorded. The clothes worn by the deceased at the relevant point of time were seized by way of a separate 'panchnama' in the presence of 'panchas'. 2.7 On the next day, i.e. on 27.10.1997, investigation into the case was taken over by P. I. - Jorawarsinh Manusinh Chavda. On 27.10.1997 the deceased succumbed to his injuries before his Dying Declaration could be recorded. Inquest 'panchnama' was done. 'Marnottar' form was filled up and the dead body was sent for performing post-mortem. A Report was sent to the learned Metropolitan CR.A/259/1999 7/33 JUDGMENT Magistrate, Ahmedabad for adding Section 302 of I.P.C. in the complaint. In the meanwhile, the ‘muddamal’ articles were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM note and other Reports, they were kept in the investigation file. 2.8 Further investigation was carried out and statements of several witnesses were recorded. As cogent evidence was found against the accused persons, they were arrested on 27.10.1997. Arrest 'panchnama' was prepared and after completing necessary formalities, the accused persons were sent to judicial custody. The clothes worn by the accused persons, at the time of the alleged incident in question, were also seized by way of a separate 'panchnama' in the presence of 'panchas'. During the course of interrogation, as original accused no. 1 showed willingness to produce the 'weapon' used in the commission of the alleged offence in question, the same was recovered by way of separate 'panchnama' in the presence of 'panchas'. 2.9 On completion of investigation, charge-sheet was CR.A/259/1999 8/33 JUDGMENT filed against the accused persons in the Court of learned Metropolitan Magistrate, Ahmedabad. As the case was exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate, Ahmedabad committed the case to the City Civil & Sessions Court, Ahmedabad and the same was numbered as Sessions Case No. 52 of 1998. On production of the accused persons, the learned trial Judge framed the charge and as the accused persons pleaded not guilty to the said charges, trial was conducted against them. 3.0 The prove the guilt against the accused persons, the prosecution has examined eleven witnesses, namely, PW – 1 Tulsiben Bhamraji at Exhibit – 16, PW – 2 Mangal Madhubhai at Exhibit – 17, PW – 3 Durgaben Malaji at Exhibit – 19, PW – 4 Ramesh Atmaram at Exhibit – 20, PW – 5 Nainaben Ranchhodbhai at Exhibit – 22, PW – 6 Parulben Kanjibhai at Exhibit – 24, PW – 7 Champaben Rajani at Exhibit – 25, PW – 8 Dr. Hasumati Ranchodlal Patel at Exhibit – 29, PW – 9 Viraji Sonaji at Exhibit – 34, PW – 10 Kanaksinh Bhulabhai Rathod at Exhibit – 35 and PW – 11 Jorawarsinh Manusinh Chavda at Exhibit – 38. CR.A/259/1999 9/33 JUDGMENT 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 36, the discovery 'panchnama' of weapon – knife at Exhibit – 41, the 'Panchnama' of the scene of offence at Exhibit – 52, the Inquest 'panchnama' at Exhibit – 28, the PM note at Exhibit – 30 and the F.S.L. Report at Exhibit – 44 to 46. 3.2 On submission of the closing ‘purshis’, the further statement of the accused persons were recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned trial Judge passed the impugned judgment, which is under challenge before this Court by way of these Appeals. 4.0 CRIMINAL APPEAL No. 259 OF 1999 : Ms. R. H. Kapadia learned Advocate for the appellant has contented that the evidence of those witnesses, on whom the prosecution has placed heavy reliance, are the close relatives of the deceased person and that none of them is an CR.A/259/1999 10/33 JUDGMENT independent witness. Therefore, their evidence is required to be scrutinized minutely and require necessary corroboration. 4.1 Learned Advocate has further contented that the appellant, original accused no. 1, has been falsely implicated in the alleged offence in question, inasmuch as his presence at the scene of offence, at the relevant point of time, is not established beyond doubt. Therefore, the appellant is required to be acquitted from the alleged offence in question by granting him the benefit of doubt. 4.2 Learned Advocate has submitted that even if we believe the evidence led by the prosecution witnesses to be true, then also, at the most, the case would fall u/s. 304-I of the I.P.C. and not u/s. 302 of the I.P.C. since it is a case of sudden provocation. Learned Advocate has lastly submitted that considering the fact that the appellant has already undergone imprisonment for more than nine years, the Court may release the appellant from the custody by treating the sentence already undergone as the sufficient CR.A/259/1999 11/33 JUDGMENT sentence. 4.3 Learned Advocate for the appellant has relied upon a decision of the Apex Court in the case of B. N. Singh etc. v. State of Gujarat reported in A.I.R. 1990 S.C. 1628, wherein on the facts and circumstances of the case, the accused persons were acquitted from the alleged offence, as the evidence of the witnesses were not found to be trustworthy on appreciation of the same. 5.0 CRIMINAL APPEAL No. 301 OF 1999 : Mr. Y. S. Lakhani learned Advocate for the appellants, original accused nos. 2 & 3, has submitted that the case of the prosecution mainly rests upon the oral evidence of PW – 1 Tulsiben Bhamraji at Exhibit – 16, PW – 5 Nainaben Ranchhodbhai at Exhibit – 22, PW – 6 Parulben Kanjibhai at Exhibit – 24 and PW – 7 Champaben Rajani at Exhibit – 25, who are close relatives of the deceased person. However, their evidence could not be relied upon inasmuch as there are several contradictions in it. Therefore, on this ground CR.A/259/1999 12/33 JUDGMENT itself, the appellants deserve to be acquitted from the alleged offence in question. 5.1 Learned Advocate has further contented that even if we believe the say of the prosecution that the appellants, i.e. original accused nos. 2 & 3, had caught hold of the deceased and original accused no. 1 had inflicted the knife blows but, looking to the nature of the injuries sustained by the deceased, there ought to have been blood stains on the clothes of the appellants. The 'panchnama' of the clothes of the appellants does not show the existence of any human blood stains on it, which clearly establishes that the appellants were not present at the scene of offence at the relevant point of time. 5.2 Learned Advocate for the appellants has also relied upon a decision of the Apex Court in the case of Ramashish Yadav & ors. v. State of Bihar reported in A.I.R. 1999 S.C. 3830, wherein the Court has laid down the principles regarding applicability of Section 34 of the I.P.C. Learned Advocate has, therefore, submitted that this CR.A/259/1999 13/33 JUDGMENT is a fit case wherein the appellants deserve to be acquitted from the alleged offence in question. 5.3 Learned Advocate has relied upon a decision of the Apex Court in the case of Badam Singh v. State of Madhya Pradesh reported in A.I.R. 2004 S.C. 26, wherein it has been held that the High Court, being a final Court of fact, it should examine the evidence critically and merely because the eye-witnesses have consistently deposed against the accused, the conclusion reached by the High Court on the facts of that case that the prosecution has proved its case, was not the correct approach. 6.0 CRIMINAL APPEAL Nos. 259/1999, 301/1999 and 380/1999 : Mr. H. L. Jani learned APP appearing on behalf of the State in all the three Appeals has submitted that it is true that there are contradictions in the oral evidence of the said four witnesses, viz. PW – 1 Tulsiben Bhamraji at Exhibit – 16, PW – 5 Nainaben Ranchhodbhai at Exhibit – 22, PW – 6 Parulben Kanjibhai at Exhibit – 24 and PW – 7 Champaben Rajani at Exhibit – 25. But, on material point, CR.A/259/1999 14/33 JUDGMENT their evidence is consistent and clearly point towards the guilt of the accused persons. 6.1 Learned APP has submitted that the presence of the witnesses, at the relevant point of time, is also natural. Both the parties reside in the same locality since last many years and, therefore, there shall not be any question of mis- identifying the accused persons. Thus, merely because they are close relatives of the deceased person, their evidence could not be discarded. 6.2 Learned APP has further submitted that the complaint at Exhibit – 36 has been filed at the earliest possible time, inasmuch as after the alleged incident in question had taken place, the family members of the deceased had taken the deceased directly to the Police Station and, thereafter, to the Civil Hospital, Ahmedabad, which is evident from the deposition of PW – 10 Kanaksinh Bhulabhai Rathod at Exhibit – 35. Thus, the complaint at Exhibit – 36 also supports the case of the prosecution beyond doubt and there shall not be any question of falsely CR.A/259/1999 15/33 JUDGMENT implicating the accused persons in the alleged offence in question. 6.3 Learned APP has submitted that so far as the appellant of Criminal Appeal No. 259 of 1999 is concerned, the F.S.L. Report at Exhibit – 45 clearly establishes his guilt inasmuch as the clothes of original accused no. 1 as also the 'muddamal' – knife, seized by way of separate 'panchnamas', contained human blood stains of Blood Group 'O', which is similar to that of the deceased. 6.4 Learned APP has further submitted that from the evidence on record, it can be seen that at about three months prior to the date of alleged incident in question, the daughter of the deceased – Nainaben was teased by the accused persons and at that time the issue was settled. However, again the accused persons teased the daughter of the deceased, which compelled the deceased to issue a warning to the accused persons. However, the said warning did not go well with the accused persons and they got enraged by it and, ultimately, committed the offence in CR.A/259/1999 16/33 JUDGMENT question. Thus, the existence of motive behind the act is also established beyond doubt. Therefore, this is a fit case wherein the impugned judgment and order is required to be confirmed qua original accused nos. 1 to 3 and qua original accused no. 4, it is required to be modified by convicting the respondent – original accused no. 4, as her involvement is not established beyond doubt. 6.5 Learned APP has relied upon a decision of the Apex Court in the case of Parasa Raja Manikyala Rao & anr. v. State of A.P. reported in A.I.R. 2004 S.C. 132, wherein the Court has laid down the factors that are required to be considered while deciding the applicability of Section 34 of the I.P.C. in a given case. 7.0 CRIMINAL APPEAL No. 380 OF 1999 : Mr. S. S. Saiyed learned Advocate for the respondent, original accused no. 4, has contented that from the entire oral as well as documentary evidence available on record, it is evident that original accused no. 4 has not played any active role in the entire episode and the Court below has rightly CR.A/259/1999 17/33 JUDGMENT acquitted her from the alleged offence in question. Hence, no interference is required from this Court qua the appeal preferred by the appellant – State is concerned. 8.0 Having heard learned counsel for the respective parties, it appears that the case of the prosecution mainly rests upon the oral evidence of PW – 1 Tulsiben Bhamraji at Exhibit – 16, PW – 5 Nainaben Ranchhodbhai at Exhibit – 22, PW – 6 Parulben Kanjibhai at Exhibit – 24 and PW – 7 Champaben Rajani at Exhibit – 25 whom it claims to be eye- witnesses to the alleged incident in question. We shall carefully scrutinize the evidence led by each of these witnesses, so as to ascertain as to whether the said claim made by the prosecution has any merits or not. 9.0 PW – 5 Nainaben Ranchhodbhai at Exhibit – 22 is the daughter of the deceased. In her deposition, she has stated that on the date of the alleged incident in question, she had gone to fetch water from a public tap situated in their neighborhood. As there was no supply of water in the said tap at that time, she went to the house of original CR.A/259/1999 18/33 JUDGMENT accused no. 3 to fetch the same. Original accused no. 1 & 3, who were present in the house at that time, teased her and, therefore, she left the house of original accused no. 3 and came back to her house. She informed about the said incident to her deceased – father, who, in turn, went to the house of original accused no. 3 to issue necessary warning to the accused persons. 9.1 She has further deposed that after her deceased father had returned to the house, the four accused persons came to their house. Thereafter, original accused nos. 2 & 3 caught hold of the deceased and original accused no. 1 inflicted a knife blow on the back of the deceased. She has further deposed that she is not certain as to how many knife blows were inflicted by original accused no. 1 and that after the first knife blow was inflicted on the deceased, she had fallen down. 9.2 This witness has been cross-examined at length before the Court below. In her cross-examination, she has admitted that at the time when the alleged incident in CR.A/259/1999 19/33 JUDGMENT question had taken place, she had not noticed as to what was carried by whom. However, she has categorically stated that at the relevant point of time original accused nos. 2 & 3 had caught hold of the deceased. She has denied the fact that by the time she had come out of her hut, her deceased father had fallen down. 9.3 Thus, from the evidence led by this witness, it is established beyond doubt that on the date of the alleged incident in question, original accused nos.1, 2 & 3 had gone to the house of the deceased. After reaching the house, original accused nos. 2 & 3 caught hold of the deceased and original accused no. 1 inflicted a knife blow on the back portion of the deceased. Thus, from the evidence led by this evidence, it transpires that she is an eye-witness to the alleged incident in question. 10.0 PW – 1 Tulsiben Bhamraji at Exhibit – 16 is the wife of the deceased as also the complainant in this case. This witness has also narrated the same facts as has been stated by PW – 5 Nainaben Ranchhodbhai at Exhibit – 22. CR.A/259/1999 20/33 JUDGMENT As regards the role played by original accused nos. 1, 2 & 3 in the entire episode is concerned, this witness has categorically stated that original accused no. 2 had caught hold of the deceased and original accused no. 3 had inflicted a stick blow on the shoulder of the deceased. Thereafter, original accused no. 1 had inflicted three knife blows on the deceased, out of which one blow was inflicted on the right hand side of the abdomen and two blows were inflicted on the thigh region of the deceased. 10.1 Here, it is required to be noted that this witness has deposed about a very vital fact that after the incident in question had taken place, firstly, the deceased was taken to the Police Station and, thereafter, to the Civil Hospital, Ahmedabad. The said conduct of this witness is clearly indicative of the fact that at the earliest point of time, this witness wanted to bring to the notice of the police authority about the happening of the alleged incident in question. The said fact gets support from the evidence led by PW – 10 Kanaksinh Bhulabhai Rathod at Exhibit – 35, who was discharging his duties as a P.S.I. at the relevant point of CR.A/259/1999 21/33 JUDGMENT time at Sardarnagar Police Station. 10.2 The complainant [PW – 1 at Exhibit – 16] has been cross-examined at length before the Court below. It is required to be noted that in her cross-examination, this witness has sticked to her version that original accused no. 2 had caught hold of the deceased and that original accused no. 3 had inflicted stick blows on the shoulder of the deceased. Nothing incriminating has come out from the cross-examination of this witness which may lead us to believe her evidence to be untrue or unreliable. Thus, from the evidence led by this witness also, the presence of original accused nos. 1, 2 & 3, at the relevant point of time, is established beyond doubt. This witness has narrated the same facts as has been stated by her in the complaint filed by her at Exhibit – 36. 11.0 PW – 6 Parulben Kanjibhai at Exhibit – 24 is the niece of the deceased. This witness has categorically stated in her deposition that on the date of the alleged incident in question, all the four accused persons had come to their CR.A/259/1999 22/33 JUDGMENT house. Thereafter, original accused nos. 2 & 3 had caught hold of the deceased and original accused no. 1 had inflicted three knife blows on the right hand side of the abdomen of the deceased. 11.1 It is true that in her cross-examination this witness has stated that at the time when the alleged incident in question had taken place, no one else was present. It may be noted that this witness was residing along with her family in the neighborhood of the deceased at the time when the alleged incident in question had taken place. She has stated that she had noticed the alleged incident in question from a distance of about 4 ft. - 5 ft.. She has categorically stated in her cross-examination that at the relevant point of time she had noticed the accused persons fleeing the scene of offence. 11.2 If we consider the evidence led by this witness in light of the evidence discussed herein above, the probability cannot be ruled out that at the time when the alleged incident in question had taken place, this witness was at CR.A/259/1999 23/33 JUDGMENT her house while the two other witnesses, viz. PW – 1 Tulsiben