IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 145 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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? -------------------------------------------------------------- RUPSINGBHAI TERSINGBHAI BHEDI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR KB ANANDJIWALA for Appellants MR HL JANI,APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 07/10/2004 ORAL JUDGEMENT 1. The present Appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 against judgment and order dated 30th January, 2003, delivered by Joint District Judge and Additional Sessions Judge, 2nd Fast Track Court, Panchmahal at Dahod, in Sessions Case No. 77 of 2002, by which present appellants are convicted by the learned Trial Judge for the offence punishable under Section 304 Part-II read with Section 34 of the Indian Penal Code, and each of the appellant is sentenced to undergo rigorous imprisonment of five years and to pay fine of Rs. 500/- in default to undergo simple imprisonment for 15 days. 2. Incident in question appears to have occurred during night hours of 12th of September, 2001 and early hours of 13th of September, 2001 at village Jasuni, District Godhra. Deceased Mansingbhai Varubhai Palas, aged about 35 years, resided at village Tarkada-mahudi had married to one Jantaben. Jantaben, wife of deceased Mansingbhai, died before three years of the incident on account of delivery of child. From the marriage of Jantaben, Mansingbhai had five children, out of which, two daughters and three were sons. At the relevant time, eldest son Jignesh, aged about 11 years and one son of third number were studying at Limkheda. Youngest daughter was with Kantibhai, brother of the deceased at Degham, while other daughter, named, as Usha aged about 10 years, was staying with the deceased along with youngest son aged about 5 years. On account of death of Jantaben, wife of the deceased, it was decided that the deceased would re-marry Kokilaben, sister of Jantaben and sister-in-law of the deceased. Parents of Kokilaben consented this relationship. On this account, deceased Mansingbhai was frequently visiting village Jasuni where his in-laws were residing. After some time, the idea of marriage of Kokilaben with the deceased was objected by Hakliben, mother of Kokilaben and four brothers of Kokilaben and, therefore, as per the customs prevailing in their caste, though deceased Mansingbhai had paid Rs. 10,000/- to his parents-in-laws, they were not sending Kokilaben to deceased Mansingbhai. On this account, there was some dispute between Mansingbhai and his in-laws, for which civil as well as criminal litigations also took place between the parties. 2.1 Complainant - Vechatbhai Mavjibhai Palas at that time, serving in Collector Office at Godhra as an Audtior happened to be cousin brother of deceased Mansingbhai. Mother of deceased Somliben was alive when incident took place. On early morning on 13th of September, 2001 at about 5.00 a.m. Sureshbhai Varsing Bhedi and Gulabbhai Bhursing Bhedi, both relations of in-laws of deceased Mansingbhai Palas, visited the house of complainant Mavjibhai Vechatbhai. Both of them conveyed to Vechatbhai that on last evening, deceased Mansingbhai visited the house of his in-laws at village Jasuni, and at night, his mother-in-law and his brother-in-laws, had beaten deceased Mansingbhai, and his legs were broken. Sureshbhai Varsing Bhedi and Gulabbhai Bhursing both requested Vechatbhai, to shift Mansingbhai in the hospital. On receiving this information, Vechatbhai went to his uncle Harjibhai Kaljibhai Palas and other cousin Limsingbhai Mansingbhai Palas. Thereafter, complainant Vechatbhai, Harjibhai and Limsingbhai, all the three went to village Jasuni on motorcycle and reached at the house of in-laws of deceased Mansingbhai at about 7.00 a.m. They noticed that deceased Mansingbhai was lying on a cot outside in a field owned by P.W.1 Bhursingbhai and his left leg below knee was broken totally and had injuries on left leg also. They noticed that Mansingbhai had other injuries on his body as well. They also found that Mansingbhai was groaning in pain and grief and was requesting the complainant and the others to shift him to hospital. All the three inquired from deceased Mansingbhai that what had happened. Deceased Mansingbhai replied that "on last night, my four brothers-in-law Laxmanbhai, Rupsingbhai, Bharatbhai, Prabhatsingbhai and mother-in-law Hakliben had beaten him with sticks". All the three noticed that Mansingbhai had serious injuries and suffering from severe pain and agony. Out of these three persons, Harjibhai was sent to obtain a vehicle for shifting Mansingbhai in the hospital, but in the meantime, soon thereafter, Mansingbhai had died. Complainant Vechatbhai Palas gave First Information Report before Jhalod Police Station at 13.30 hours on 13th of September, 2001, which was recorded by Senior Police Inspector of Jhalod Police Station PW-7 Jayprakash Dayaljibhai Sutriya, and the crime came to the registered against five appellants. Investigation was entrusted to Jayprakash Sutriya, who visited place of incident, and draw panchnama of place of occurrence and also held inquest of the dead body of the deceased, and thereafter dead body of Mansingbhai was sent to PHC Sanjeli on 14th of September, 2001 at about 6.3.0 a.m or p.m. The Investigating Officer recorded the statements of the relevant witnesses. He forwarded mudammal to Forensic Science Laboratory. Mudammal contained clothes of deceased and piece of wood recovered from the scene of offence, and ultimately, charge sheet was filed in the Court of Judicial Magistrate, First Class, Jhalod, against the appellants for the offence punishable under Section 302 read with Section 34 of IPC. Since the case was triable by the Court of Sessions, the learned Magistrate, committed the case to the Court of Sessions at Panchmahal, where learned Additional Sessions Judge, Panchmahal Camp at Dahod, framed charges against appellants, vide Exh.2, on 19th of August, 2002. 3. All the appellants pleaded not guilty and, therefore, prosecution tendered the following oral as well as documentary evidence, to prove its case against the appellants, as under : 1. PW-1 Bhursingbhai Nanjibhai Bhedi Exh.10 2. PW-2 Mansingbhai Nanjibhai Palas Exh.18 3. PW-3 Mavjibhai Vechatbhai Palas Exh. 20 4. PW-4 Harjibhai Kaljibhai Palas Exh. 22 5. PW-5 Dr. Rameshchandra Ramlakhan Zha Exh.23 6. PW-6 Limsingbhai Mansingbhai Palas Exh.26 7. PW-7 Jayprakash Dayaljibhai Sutriya Ex.27 The prosecution also produced documentary evidence such as (i) Complaint at Exh. 21, (ii) inquest panchnama at Exh. 11, (iii) panchnama of place of occurrence at Exh. 19, (iv) panchnama of body of the accused Exhts. 12 & 13 (v) certificate of cause of death Exh. 14; (vi) Postmortem Note at Exh.24, (vii) certified copies of Complaint of Criminal Case No.459/01 Exh.28 and Certified copy of Complaint of Criminal Case No.810/01 at Exh. 29, (ix) Report received by FSL at Exh. 15, (x) Receipt of Mudammal sent to FSL at Exh. 16 and (xi) Certificate of Power at Exh. 17. 4. Out of 7 witnesses examined by the learned Trial Judge, PW-3 Mavjibhai Vechatbhai Palas Exh.20, PW-4 Harjibhai Kaljibhai Palas Exh.22 and PW-6 Limsingbhai Mansingbhai Palas at Exh.26, are the witnesses, who on receiving the information from Sureshbhai and Gulabbhai, reached at the place of offence and as per the prosecution case, before whom the deceased made declaration that he was beaten by his four brothers-in-law and mother-in-law. Out of these three witnesses, PW-4 Harjibhai Kaljibhai Palas, Exh.22, has not supported the prosecution case. 4.1 PW-3 Vechatbhai Mavjibhai Palas stated in his deposition that he was serving as an Auditor in Collector Office at Jhalod, and was residing at Jitpura . Valbhai Meghabhai Palas was his uncle and had two sons. Out of which, one was Kantibhai and the younger was deceased Mansingbhai. Deceased Mansingbhai had married with Jantaben. Jantaben had died during child birth before three years of the incident. Deceased Mansingbhai had five sons, and on death of Jantaben, it was agreed between the parties that Kokilaben, sister of deceased Jantaben, would marry deceased Mansingbhai. The incident took place on 12th of September, 2001. On 13th of September, 2001 at about 5.00 a.m. Sureshbhai Varsing and Gulabbhai had been to his house, and they stated that deceased Mansingbhai had been beaten in the house of his in-laws, and had received injuries on his left leg and blood was pouring from the wound. They also requested Vechatbhai to arrange to shift deceased Mansingbhai in hospital. Thereafter, he went to the house of Harjibhai and Limsingbhai, and both were informed about the incident. Thereafter, all the three started to go to village Jasuni on a motorcycle. On reaching at village Jasuni, they found that deceased Mansingbhai was lying in a cot and was groaning in pain. They asked to Mansingbhai that what had happened. Mansingbhai had replied that his brothers-in-law and mother-in-law had beaten him. He stated names of his brothers-in-law. Thereafter they attempted to shift Mansingbhai in hospital and in the meantime Mansingbhai had died. He went to Jhalod and gave complaint. He stated that complaint at Exh. 21 was the same complaint which he had given. He identified his signature on the complaint and identified the accused. In examination-in-cross, he stated that he could not say when Mansingbhai started from his house to go to village Jasuni. After completion of funeral, etc. he had been to the house of deceased Mansingbhai and asked from his mother and daughter as to about when Mansingbhai started for Jasuni on the day of incident. They replied that in the evening of the incident, one brother-in-law had called Mansingbhai, but they did not give the exact time when Mansingbhai started from his village to go to village Jasuni. Thereafter he stated that he could not say whether anybody possessed tractor or car at village Jasuni. He denied the suggestion that Mansingbhai on enquiring by them, in reply stated that he was beaten by his mother-in-law and brothers-in-law. He denied that Sureshbhai and Gulabbhai did not inform to him about the incident. He denied that when they reached at village Jasuni, Mansingbhai had died. He stated that ordinarily upto 11 or 12'O clock at night people take their supper. He could not say where Mansingbhai took his supper on the day of incident, and his mother did not say whether Mansing had taken his supper. He denied the allegation that between him and Mansingbhai no conversation took place, but to fabricate false evidence, he deposed like that. 4.2 PW-6 Limsingbhai Mansingbhai Palas stated that at the time of the incident, he was Manager in a mid-day meal scheme. On 13.9.2001, while he was at his house, at about 5.00 a.m. Vechatbhai Mavjibhai and Harjibhai Kaljibhai had been to his house and conveyed that Mansingbhai was beaten at his in-laws place and that they should go there. Therefore, all the three, in motor cycle went to village Jasuni, and found that Mansingbhai was lying on cot in the courtyard of Bhursing Nanji and on the back side of the house of the appellants. They found that bones of the leg of Mansingbhai were broken and blood was pouring. Mansingbhai was groaning in pain. They asked Mansingbhai about what had happened, and Mansingbhai replied that he was beaten by his four brothers-in-law and mother-in-law. They tried to manage a vehicle. At that time, family members of in-laws of Mansingbhai were also present. They were requested that Mansingbhai should be shifted to hospital as he was their brother-in-law, but they did not help. Thereafter, Mansingbhai became unconscious and died. He identified appellants in the court. He stated that the reason for quarrel was about sister-in-law of deceased Mansingbhai. Deceased Mansingbhai had filed one suit in the court. Wife of deceased Mansingbhai had died and he was to re-marry with sister-in-law, and hence, for that he had filed one civil suit in the court. In his cross-examination distance between his house and the house of the deceased Mansingbhai was asked, which he replied that, it was nearby. He stated that he did not know when Mansingbhai started to go to Jasuni on the day of the incident. He admitted that in his police statement he did not state that Vechatbhai and Harjibhai came to his house for calling him at 5.00 a.m. He stated that whether the case which was pending in the court was filed by Mansingbhai or the opposite party, he could not say. He denied that on account of litigation pending, they had no occasion to visit each other voluntarily. He stated that Mansingbhai was visiting his in-laws frequently. They sent Harjibhai for arranging vehicle and he returned after half an hour. When Harjibhai returned, Mansingbhai had died. He could not say the exact time of returning of Harjibhai. He reiterated that he asked Mansingbhai about what had happened, and he stated that he was beaten and his leg was broken and he was required to be shifted to the hospital. On inquiring that who had beaten him, Mansingbhai had replied to him that his brothers-in-law and mother-in-law had beaten him and stated that he was beaten by sticks. He denied the fact that in his police statement, he did not state names of any brothers-in-law of the deceased Mansingbhai. He denied that he did not visit the place of offence. He admitted that deceased Mansingbhai had happened to be his cousin brother. He denied that when conversation between him and Mansingbhai took place, Harjibhai was present. Even after the incident, he could not know when Mansingbhai started from his village for going to Jasuni. Some contradictions from his police statement were asked. 4.3 While third witness on this fact examined by the prosecution i.e. P.W.4 Harjibhai Kaljibhai Palas Exh.22, did not support the prosecution case. He stated in his deposition that at the time of incident, he was serving as a teacher in primary school at Jasuni. Incident took place on 12th of September, 2001. On 13th of September, 2001, at about 5.00 a.m. Vechatbhai Mavjibhai Palas had come to his house and stated that Mansingbhai had been beaten at village Jasuni, and they should go there. Thereafter, all the three i.e. himself, Vechatbhai and Limsingbhai went to village Jasuni on a motor cycle. They found that deceased Mansingbhai was lying in a cot and was groaning in pain. There were injuries on his leg. He stated that deceased Mansingbhai did not say that who had beaten him. Thereafter, on motorcycle, he went for arranging vehicle to shift Mansingbhai in the hospital. When he returned, he found that Mansingbhai had died. Learned APP thereafter sought permission to declare the witness hostile and confronted him with his police statement. He denied that Mansingbhai was inquired about what had happened, and deceased Mansingbhai in reply stated to them that his four brothers-in-law and mother-in-law had beaten him with sticks and had broken his left leg. He denied that he had stated this fact in his Police statement. 4.4 Thus, these three witnesses were examined by the prosecution to prove the oral dying declaration of the deceased Mansingbhai. 5. As per the prosecution case, there was one eye witness of the incident, and that was PW-1 Bhursingbhai Nanjibhai Bhedi, who witnessed that appellants and Mansingbhai were quarrelling, and appellants were giving filthy abuses to Mansingbhai. In the meantime, appellant Rupsingbhai Tersingbhai Bhedi attacked Mansingbhai with a stick and to escape, Mansing ran towards southern direction and in the field of this witness. Mansing was apprehended by appellant Rupsing, and Rupsing inflicted injuries on both the legs of deceased Mansing. However, this witness did not support the prosecution case. He stated in his deposition at Exh. 10 before the Court that the incident took before one year. At that time, he was at his house along with his wife and his son Gulab. In the morning, he found Mansing of Jitpur village lying on the cot near road of his field. Mansing was their family son-in-law. Tersingbhai, father-in-law of Mansing, happened to be his brother. Except that, he knew nothing. In examination in cross by learned APP, the above facts stated by the witness in police statement was confronted, but he denied to have stated anything like that in his police statement. Though in the police statement he stated that the incident took place at abut 12'O clock at night but he denied that facts also. 6. Prosecution examined Mansingbhai Nanjibhai Palas as PW-2 Exh.18, being panch of panchnama of scene of offence, produced at Exh.19. He supported the prosecution case and panchnama and stated that the scene of offence was situated in the field of PW-1 Bhursingbhai Nanjibhai Bhedi, from where the blood was found on the earth, and one piece of blood stained wood, was also recovered by the Police. 7. Dr. Rameshchandra Ramlakhan Zha is examined by prosecution as PW-5 at Exh. 23. He stated that on 14th of September, 2001 he was serving as Medical Officer at PHC Sanjeli, and Police Constable Dalsingbhai Tersingbhai of Jhalod Police Station with a Police Yadi and inquest panchnama, brought dead body of Mansingbhai for postmortem at about 6.30 a.m. At about 7.00 a.m. he started postmortem and found following four external injures: (1) A contusion injury over the right ankle joint above the lateral malleolus on outer surface size is 2 inch x 1 inch. (2) A contusion over the Rt. arm on anterior surface in lower part. Size is 1 inch x 1 inch. (3) A big contusion over the Rt. ankle joint on inner side over the medial malleolus. Size is 4 inches x 3 inches. (4) A big contused - lacerated wound over the left leg in middle part on anterior medial surface. Size is 3 inches x 3 inches. Both tibia and fibula bones completely fractured. Distal part freely mobile in all direction. Fracture ends of bones was seen from outside in the wound area. He stated that bones of legs were extensively found broken on mere touch. The injuries were antemortem. Stomach contained semi digested food, and the food was maize grain. He stated that cause of death was due to haemorrhagic and neurologic shock due to compound fracture of both tibia and fibula bones of leg on left side. He stated that the deceased might have taken food before one to four hours previous to death. He produced on record the postmortem note at Exh.24. He stated that the injuries could be caused by stick, and due to loss of blood, the death was possible in such kind of injuries. Due to this injury, person may be in condition to speak. In his cross-examination, he stated that the death might have caused during before 20 to 48 hours from the dead body brought before him. He stated that the external injuries were possible by vehicular accident also. He admitted that the injuries received were on vital part of the body, had immediate treatment made available to such person, his life could have been saved, but otherwise, death was possible in such type of injuries within two to four hours. The deceased might have taken food before he received injuries. He stated that on account of loss of blood, possibility of death was there. 8. Last witness that prosecution examined is PW-7 Jayprakash Dayaljibhai Sutriya at Exh.27. In chief-examination, he stated that Exh. 21 complaint was recorded before him. He draw panchnama and recorded the statements of some witnesses, and filed charge-sheet. In his cross-examination, he stated that in his investigation, the fact came out that the incident took place at about 11.30 hours at night. He stated that Sanjeli outpost was nearer than Jhalod Police Station. In Sanjeli outpost also, complaints were recorded. From Jhalod Police Station to Sanjeli Outpost, on motorcycle, it takes only 15 minutes. He stated that when he visited the place of offence, he found that dead body of Mansing was lying on cot. Some contradictions of the witnesses were proved in his evidence. 9. Thus, this is all the evidence of the prosecution case. The learned Trial Judge came to the conclusion that the prosecution proved beyond doubt that the death caused was culpable homicide, and he further came to the conclusion that the medical opinion for fixing the time of the incident and time of death was not sufficient, and that only because semi digested food was found in stomach of the deceased, no conclusion could be arrived at that the incident had taken place only 4 to 5 hours before 7.00 a.m. as argued by the defence. After appreciating the evidence of two witnesses i.e. PW-3 Vechatbhai Palas and PW-6 Limsingbhai Mansingbhai Palas, learned Trial Judge came to the conclusion that both the witnesses were reliable witnesses, and oral dying declaration made before them by the deceased, should be acted upon. He ruled out the possibility shown by the defence that when Vechatbhai, etc. reached at the scene of offence, deceased Mansingbhai had already died, could not be believed. There are no contradictions in the evidence of these two witnesses, according to the learned Trial Judge, and therefore, their evidence was found credible by the learned Trial Judge. The Trial Judge also took into consideration that it is established fact that deceased was found lying on cot near the house of the accused. Learned Trial Judge while rejecting the argument of the defence about late filing of FIR, observed that in the facts and circumstances of this case, six hours delay in filing the First Information Report, is not that delay, which would require to be explained by the prosecution. Even, according to learned Judge, one hostile witness, out of three, before whom, oral Dying Declaration was made by the deceased, witness Harjibhai Kaljibhai has supported the prosecution case to the extent that when they reached at the place of offence at about 7.00 a.m. the deceased was alive. Therefore, after relying on the oral dying declaration, the learned Trial Judge found the appellants guilty for the incident, but the learned Trial Judge further came to the conclusion that there were no injuries on vital part of body, and that injuries were caused by weapon like sticks and, therefore, there was no required intention on the part of the appellants to cause death of the deceased, and hence the case squarely was falling within the scope of Section 304 Part-II of the Indian Penal Code, and hence, after convicting the appellants for the offence under Section 304 Part-II, instead of Section 302 of IPC, the learned Trial Judge sentenced each of the appellants as above said. 10. This court has undertaken a complete and comprehensive appreciation of all vital features of the case, and the entire evidence on record with reference to broad and reasonable probabilities of the case. It is pertinent to note at this juncture that, only eye witness of the prosecution, did not support and, therefore, the prosecution case hinges on oral dying declaration of deceased as deposed, by two above said witnesses. 11. Dying declaration under Section 32(1) of the Indian Evidence Act, 1872 is an exception to the general rule that hearsay evidence is not admissible evidence, unless evidence is tested by cross-examination. Under Section 32 where a statement is made by the person as to the cause of death or as to any of the circumstances, which resulted in his death and when cause of death or that person's death comes into question, such a statement, oral or in writing made by the deceased to the witness, is a relevant fact and is admissible in evidence. Undoubtedly, it is well settled that conviction can be based on the dying declaration itself if it is found satisfactory and reliable by a court, but at the same time, if there are any important infirmities in