CR.A/542/1999 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 542 of 1999 With CRIMINAL APPEAL No. 676 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= HEMCHAND BAVAAJI RATHOD & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR YOGESH S LAKHANI for Appellant(s) Mr. M.G. Nanavati, APP, for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 16/10/2008 CR.A/542/1999 2/9 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Criminal Appeal No.542 of 1999 is directed against the judgment and order of conviction dated 23.4.1999 passed by learned Additional City Sessions Judge, Court No.10, Ahmedabad convicting both the appellants (accused Nos. 1 and 3) for the offence punishable under Section 302 read with 34 of Indian Penal Code. Criminal Appeal No.676 of 2005 is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge, Court No.17, City Sessions Court, Ahmedabad dated 26.11.2004, convicting appellant (original accused No.2 for the offence punishable under Section 302 read with 34 of the IPC. The appellant of Criminal Appeal No.676 of 2005 was charge sheeted along with the two appellants of Criminal Appeal No.542 of 1999 but as at the time when the trial proceeded against the appellants of the above appeal, the trial was separated for original accused No.2 and on his subsequent arrest, he was separately tried and is convicted. The original accused No.4 Vijyaben has been acquitted of the charges levelled against her. 2. To prove the charge under Section 302 read with 34, of the IPC the prosecution has examined in all 12 witness and the prosecution has relied upon various documentary evidences. Number of other witnesses who could throw light on the origin of the incident and the subsequent facts have been dropped by the prosecution by passing a pursis at Exh. 73. Out of the witnesses examined, the complainant Pravin CR.A/542/1999 3/9 JUDGMENT Ramaji (PW 1) and Dharmendra D. Rami (PW 2) Exh.36 and 37 respectively are relied upon. 3. The case of the prosecution against the accused is that on 22.12.1996 at 8 p.m. complainant Pravin had started on his feet from his shop for Kalupur Milk Bazaar to settle the account of milk and was passing through Nava Vas Dhal (slant road) and there Vijaysinh (deceased) met him. It is the further case of the prosecution that both were going talking with each other and while they were climbing Dhal (slant road) accused Nos. 1,2 and 3 having seen complainant and Vijaysinh have come out of their house with weapons. All the 3 thereafter immediately assaulted Vijaysinh and while complainant tried to intervene, accused No.2 injured him on his forehead, chin and on his back and threatened him. Thereafter, the complainant escaped from the scene of incident. He thereafter informed wife of Mahendrabhai, deceased's brother and informed about the incident giving her name of all the 3 accused. It is further said in his complaint that he thereafter came back to the place of incident with other and Vijaysinh was found in a bleeding condition lying there. In the last paragraph of his complaint, he stated that one Dharmendra Rami was with him but having seen the assault being made he escaped from the place of incident. 4. This witness is examined on oath and changing his version he stated while he left for settling the account of milk, he first went to his friend's house whose name is Dharmendra. He further stated that thereafter both of them have gone to Krishna Pan Parlour and Vijaysinh was found sitting on Ota near the Pan shop. Complainant and CR.A/542/1999 4/9 JUDGMENT Dharmendra then had a talk for 4 to 5 minutes with Vijaysinh and then complainant asked Vijaysinh to accompany him. He thereafter says that while they were proceeding through Tulsi Kyara khancha (small street), the accused Nos.1,2 and 3 were standing in the front portion of their house. Having seen them coming the accused have gone inside and thereafter they have come out with weapons and assaulted Vijaysinh. He thereafter said in his chief examination that while he intervened, he was injured by Shailesh who threatened him and, therefore, the complainant ran away for the fear of the accused. He thereafter deposed that he went to Jyotsnaben's house and informed her. He further deposed that while he returned to the place of incident with Jyotsnaben, Vijyaben accused No.3 (wife of accused No.1) met them with a Khanjar in her hand. But, having seen them, she concealed the weapon and thereafter Vijyaben told Jyotsnaben that her husband is lying there. Complainant then deposed that they went to the place of incident and found Vijaysinh lying in a bleeding and unconscious condition. He then said that thereafter Vipul, Satish, Jitu and MLA Bhupendra Khatri have come and removed the injured to the V.S. Hospital in a rickshaw. Complainant then said that while he was going to his family doctor Devendrabhai Doshi, his friend Bansi met him on the road and Bansi took him on his scooter to Dr. Doshi's dispensary but as it was closed, he went to compounder Mithabhai and got himself treated. He then deposed that he thereafter went to inform the nephew of the deceased named Dharmendra @ Pintu near Kalupur Station and informed him about the incident. He thereafter went t one Raghuvirsinh at Asarva who also happens to be the nephew of the deceased. Raghuvirsinh was not there present but his CR.A/542/1999 5/9 JUDGMENT wife was there and at that point of time the complainant came to know that Vijaysinh after he was hospitalised had expired. The complainant Bansi and Dharmendra @ Pintu thereafter went to V.S. Hospital. He further deposed that after reaching to the hospital, police came there and the complainant has lodged his complaint. 5. The complainant in his cross examination stated that Vijaysinh was staying at Asarva which is a at a distance of 4 kilometers from Kalupur Swaminarayan Temple. He states that Vijaysinh and Dharmendra @ Nanko and himself are close friends. He denied the suggestions about most of the factual aspects he narrated in his chief examination having not been mentioned in the FIR. He confirmed in his cross-examination that he has stated in the complaint that Dharmendra Rami was with him and Vijaysinh but having seen the assault being made, to save his life he ran away. 6. It is to be noted that to substantiate the facts mentioned and deposed by the complainant, the prosecution has not examined the witnesses Jyotsnaben, Vipul, Satish, Jitu, MLA Bhupendrabhai Khatri, Bansi, Compounder Mithabhai, nephew of deceased Dharmendra @ Pintu, another nephew of the deceased Raghuvirsinh and his wife. 7. Another witness relied upon by the prosecution and believed by the Trial Court is Dharmendra @ Nanko D. Rami who is examined at Exh.37. Narrating the story as stated by the complainant in his chief examination, this witness deposed that after Shailesh threatened complainant Pravin, complainant Pravin ran away. This witness thereafter deposed CR.A/542/1999 6/9 JUDGMENT that in the meanwhile Vijyaben came out of her house with a wooden log and it was given to accused No.1 and Vijyaben told accused No.1 to hit the deceased on his head. The accused No.1 has, therefore, as stated by this witness had hit the deceased on his head and other part of the body. This witness thereafter stated that having seen the entire incident, accused No.3 Jaga has given him sword blow which injured his left hand little finger. Thereafter, having been frightened, this witness ran away. He also deposed that then he went to his family doctor Mithabhai and had come to know that Vijaysinh was hospitalized and has expired. His statement is recorded on the next-day. 8. This witness is cross examined at length and he denied the suggestion that as soon as Vijaysinh was attacked, he ran away. He has also stated that he had not seen any other witnesses including MLA Bhupendra Khatri. He stated in his cross-examination that he informed Mithabhai- Compounder that he fell down and received an injury on his little finger. He has admitted that he has not stated before the police about any injury having been received by him. He further states that while he reached to compounder Mithabhai, complainant Pravin had not come there for treatment. 9. No other independent witnesses have been examined in the present case. 10. The Investigating Officer Shri N.B. Parmar is examined as PW No.12 at Exh.69 and in his cross-examination he has stated that a Vardhi was received from V.S. Hospital that deceased was brought to V.S. Hospital by one Satish CR.A/542/1999 7/9 JUDGMENT Bhavsar and further that no names of the assailants were disclosed in said Vardhi. He has admitted that Satish Bhavsar's statement is recorded and he has deposed that during the course of investigation it was revealed that Vipul, Jitu and Satish removed the injured to the hospital and within few seconds after the incident MLA Bhupendrabhai reached the place of incident and his statement is also recorded. All these four witnesses are cited as witnesses in the charge sheet. He has also stated that the incident has occurred which is surrounded by the residential buildings and he has recorded the statements of people residing there. He has also deposed that Jyotsnaben's statement is recorded and Dharmendra @ Pintu's statement is also recorded and both of them were cited as witnesses in the charge sheet. He has stated that compounder Mithabhai's statement is recorded. It appears that none of these witnesses have been examined and substantiate the prosecution case as deposed by the complainant and Dharmendra @ Nanko. 11. Looking to the nature of injuries, none of the injuries have caused any fracture of any of the bones of the deceased. The prosecution story qua the role attributed to accused Nos. 1, 2 and 3 is not clearly coming on record. Not only that but two of the prosecution witnesses relied upon the prosecution and believed by the court gave different versions as to the use of weapon at the hand of accused No.1 at the instance of accused No.4. The involvement of accused no.4 Vijyaben, wife of accused No.1 is believed not to have been proved by the trial court and she has been acquitted. The complainant has claimed to have seen the incident and has said that Dharmendra had escaped immediately upon the CR.A/542/1999 8/9 JUDGMENT assault being made whereas Dharmendra claimed to have been witnessed the incident in its entirety and has deposed that when the incident started and the threat was administered to Pravin- complainant, Pravin ran away from the place of incident. Be that as it may, the nature of injuries and the manner in which the incident occurred do not indicate that it was a preplanned assault and that too with an intention to cause the injuries on the body f the deceased as are sufficient in the ordinary course of nature to cause of death. Most of the injuries are not found to be serious and on vital part of the body of the deceased and injury being stab wound caused at the right side back below the lower end of right scapular is found to be fatal injury. However, in the totality in the facts and circumstances the incident seem to have started suddenly without any pre-plan and premeditation. The prosecution could have examined number of witnesses who could through light on the various factual aspects has not examined them, has not chosen to drop them. This court, therefore, comes to the conclusion that the offence of culpable homicide not amounting to murder is proved against all accused and therefore they are held guilty of having committed the offence under Section 304 Part I of the IPC. 12. In the result, the appeals are partly allowed. The conviction of the appellants-accused is altered from Section 302 r.w.s. 34 of IPC to Section 304 Part-I r.w.s. 34 of IPC. The sentence of all the three accused is reduced from life imprisonment to rigorous imprisonment for 10 years with fine of Rs. 500/- each, in default, further rigorous imprisonment for one month. On completion of and serving out of their sentence of 10 years rigorous imprisonment and payment of fine of Rs. CR.A/542/1999 9/9 JUDGMENT 500/- each, the appellants-accused are ordered to be set at liberty forthwith unless they are required in any other case. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)