IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 843 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE A.L.DAVE ============================================================ 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 Civil Judge? : NO -------------------------------------------------------------- SATISH SHANTILAL LOHANA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR MJ BUDDHBHATTI for appellant. MS GAJJAR, APP, for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE A.L.DAVE Date of decision: 11/10/2000 ORAL JUDGEMENT (Per : MR.JUSTICE A.L.DAVE) 1. The subject matter of challenge in this appeal is the judgment and order delivered by the learned Additional Sessions Judge, Rajkot, in Sessions Case No.117 of 1991 on September 7, 1992, convicting the present appellant (original accused No.1) for offence punishable under Section 302 of Indian Penal Code and Section 135 of Bombay Police Act. 2. The facts of the case can be narrated, briefly, thus:- 2.1 A First Information Report came to be lodged with Rajkot City "A" Division Police Station on April 12, 1991, at about 16.00 hours. According to that F.I.R., the incident in question occurred on that very day at about 14.00 hours near Luvana Chowk in Rajkot City. The report was lodged by Jayaben, wife of Mohanlal Ramdas. According to her, she is residing in Luvana Para area of Rajkot City with her husband, two sons - Devidas and Khodidas. Her eldest daughter-Sharda and next her to Dinu are married. Next to Dinu is Jyotsna, who is married at village Kothi and the youngest daughter is Bharti. In the complaint, there was reference to an incident that had occurred on the previous day, i.e. April 11, 1991. In that incident, on previous evening, when the complainant's daughters were returning home after attending to nature's call, some boys seating near the bridge teased them. They, therefore, reported the incident at home to the deceased. Deceased-Mohanlal thereafter went there to rebuke the boys. There the appellant and his associates took up quarrel with him. The deceased was rescued by his nephew-Dinesh, who was passing by coincidently. In respect of this incident, separate complaint also came to be lodged. On the day of incident, at about 2.00 P.M., the complainant's husband-Mohandas was at home. So also Jyotsna and Bharti. At about 2.00 P.M., Mohandas went out of the house to attend to nature's call and soon thereafter, there were shouts and, therefore, the complainant and her daughter went out to see, what had happened. The complainant saw accused No.1 - the present appellant running away after giving blow to the deceased with a knife. The complainant was followed by Jyotsna, who also saw the appellant running away from the place. The deceased was, therefore, taken to the hospital immediately by the complainant and Jyotsna in an auto rickshaw. Mohanlal succumbed to the injuries at the hospital while under treatment. Jyotsnaben, therefore, lodged the complaint. On basis of that complaint, offence was registered and investigation started. Upon collecting the evidence, the Investigating Agency found evidence against the appellant and three other accused persons, namely, Girish Shantilal Luvana, Munno alias Bhipin Shantilal Luvana and Mano alias Manoj Narandas Kumbhar. All of them were, therefore, charge sheeted by the police before learned Judicial Magistrate, First Class, Rajkot and Criminal Case No.2771 of 1991 was registered before him. The learned Judicial Magistrate, First Class committed the case to the Court of Sessions as the offences for which the accused persons were charge sheeted were triable exclusively by the Court of Sessions. Upon committal to the Court of Sessions, Sessions Case No.117 of 1991 came to be registered. In that case, charge was framed against the four accused persons for offences punishable under Section 302 read with Sections 34, 120-B and 114 of Indian Penal Code and Section 135 of the Bombay Police Act. The accused persons pleaded not guilty to the charge and expressed their desire to face the trial. The prosecution led oral and documentary evidence in support of its case. The prosecution examined the following witnesses :- (1) P.W. No.1-Y.D. Mehta (Ex.13). (2) P.W. No.2-Maganlal Nanjibhai (Ex.21). (3) P.W. No.3-Bhalabhai Arjanbhai (Ex.22). (4) P.W. No.4-Dahyalal Manubhai (Ex.23). (5) P.W. No.5-Harshad Kantilal (Ex.25). (6) P.W. No.6-Bhupendra Kalyanji (Ex.27). (7) P.W. No.7-Ramjibhai Motibhai (Ex.28). (8) P.W. No.8-Rajendrasinh B. Zala (Ex.29). (9) P.W. No.9-Pradhyuman Vashrambhai (Ex.31). (10) P.W. No.10-Jaysukh Mansukhlal (Ex.32). (11) P.W. No.11-Pravin Govindbhai (Ex.33). (12) P.W. No.12-Mahendra N. Mehta (Ex.35). (13) P.W. No.13-Jayaben Mohandas (Ex.38). (14) P.W. No.14-Bharti Mohandas (Ex.39). (15) P.W. No.15-Dinesh Vasantdas (Ex.40). (16) P.W. No.16-Devidas Mohandas (Ex.41). (17) P.W. No.17-Jyotsnaben Kishore (Ex.43). (18) P.W. No.18-Bachubhai Naranbhai (Ex.44). (19) P.W. No.19-Jagish S. Gondalia (Ex.46). (20) P.W. No.20-Ramesh B. Parmar (Ex.49). (21) P.W. No.21-Chetan Hasmukhlal (Ex.50). (22) P.W. No.22-Trikamdas Babulal (Ex.52). (23) P.W. No.23-Ramsajivan Lalaram (Ex.53). (24) P.W. No.24-Bhanushanker Laxmanbhai (Ex.54). (25) P.W. No.25-Govind Motibhai (Ex.64). (26) P.W. No.26-Manjibhai Somaji (Ex.68). (27) P.W. No.27-Chandjiram Nobatram (Ex.71). 2.2 The prosecution led following documentary evidence:- (1) Complaint of Jayaben Mohandas. (2) Letter written to the Medical Officer for conducting the post-mortem of the dead body. (3) Inquest Panchnama. (4) Medical Report of the Civil Surgeon. (5) Panchnama of the place of offence. (6) Panchnama for taking possession of clothes of the deceased. (7) Receipt of handing over of dead body. (8) Entry No.13 of the Station Diary. (9) Copy of N.C. registration. (10) Copy of entry No.8 of Hospital Police Chowki. (11) Arrest Panchnama of Accused No.1. (12) Arrest Panchnama of Accused Nos.2 and 3. (13) Arrest Panchnama of Accused No.4. (14) Discovery Panchnama. (15) P.M. Report. (16) Letter written to the Mamlatdar for preparing the map of the place of offence. (17) Report of the Medical Officer. (18) Medical report of Blood Sample. (19) Receipt of muddamal for analysis. (20) Letter written to Forensic Science Laboratory for analysis of muddamal. (21) Forwarding of muddamal. (22) Report of the Deputy Director, Forensic Science Laboratory. (23) Analysis Report. (24) Result of Serological Analysis. (25) Notification of the Police Commissioner. (26) Map of the place of offence. 2.3 After the evidence was led, the statements accused persons under Section 313 of the Code of Criminal Procedure were recorded for affording opportunity to explain the circumstances against them. 2.4 After considering the evidence led by the prosecution and the arguments advanced by the prosecution and the defence, the learned Additional Sessions Judge came to a conclusion that the prosecution had failed to prove the charge against accused Nos. 2, 3 and 4, i.e. Girish Shantilal Luvana, Munno alias Bipin Shantilal Luvana and Mano alias Manoj Narandas Kumbhar and acquitted them of those charges. 2.5 The learned Additional Sessions Judge, however, came to a conclusion that the charges against original accused No.1 (present appellant) for offences punishable under Section 302 of Indian Penal Code and Section 135 of the Bombay Police Act were successfully proved by the prosecution and, thereafter, after hearing the accused on question of sentence, sentenced the appellant-accused with life imprisonment for offence punishable under Section 302 of Indian Penal Code with a fine of Rs.500/and ordered him to undergo further imprisonment for one month in case of default in payment of fine. No separate punishment was imposed for the offence punishable under Section 135 of the Bombay Police Act. Aggrieved by the said judgment and order, original accused No.1 has preferred this appeal. 3. Learned counsel, Mr. Buddhbhatti, appearing for the appellant has taken us through the evidence led by the prosecution. He has assailed the judgment and order on the ground that the prosecution has not led correct evidence on the incident and its genesis. To substantiate his say, he submitted that the timings as emerging from the prosecution case indicate that the incident had not taken place at the time when it is alleged to have taken place. He submitted that, according to the complainant and Jyotsna, who claim to be eye-witness, the incident occurred at about 2.00 P.M., whereas if the evidence of police witnesses-Ramsajivan and Bhanushanker Laxmanbhai is considered, it is clear that Bhanushanker intimated Ramsajivan at 13.00 hours to attend the dead body. Mr. Buddhbhatti submitted that this indicates that the deceased had reached the hospital before 13.00 hours and, therefore, the incident must have occurred prior thereto. The complainant and the witness-Jyotsna, therefore, are not giving correct version about the incident. Mr. Buddhbhatti submitted that the story of these two witnesses being eye-witnesses to the incident also, therefore, would become doubtful. Mr. Buddhbhatti submitted that the two witnesses do not account for any injury on thigh of the deceased as noticed in the postmortem notes and, therefore, their story about they being eye-witnesses to the incident also becomes further doubtful. 3.1 Mr. Buddhbhatti submitted that Jyotsna was married just 15 days prior to the incident and, therefore, her presence at her parental house at the time of the incident ought not to have been accepted. In order to substantiate his version about Jyotsna and Jayaben being not eye-witnesses, Mr. Buddhbhatti submitted that blood stains are not found on their cloth and, therefore, their presence at the time of the incident becomes doubtful, which has been ignored by the Trial Court. 3.2 Assailing the F.I.R., Mr. Buddhbhatti submitted that the F.I.R. is given late. The F.I.R. and the version given by the witnesses in their depositions do not appear to be true for the above stated reasons. Further, the F.I.R. is given after deliberations only with a view to implicate the accused persons falsely and, as admitted by the Investigating Officer, the complainant has admitted in her further statement before him that Shantilal was falsely implicated by the complainant initially, but on their further statement having found that Shantilal was falsely implicated, he was neither arrested nor charge sheeted by the police. This being so, Mr. Buddhbhatti submitted that the prosecution witnesses have no regard for the truth, have a tendency to implicate innocent persons falsely and, therefore, the possibility of these witnesses implicating the accused-appellant falsely cannot be ruled out. This aspect is ignored by the learned Additional Sessions Judge and, therefore, the conviction may be set aside. 3.3 Mr. Buddhbhatti submitted that the appellant had no enmity or motive against the deceased. He further submitted that no test identification parade was arranged by the Investigating Agency. The Trial Court has overlooked the fact that the accused was not residing nearby and, therefore, the conclusions arrived at by the Trial Court are not correct. 3.4 By way of alternative submission, Mr. Buddhbhatti submitted that considering that only one blow is alleged to have been given by the appellant and that too, on non-vital part of the body, it cannot be said that an offence under Section 302 of Indian Penal Code is constituted. He can at the most be held guilty of offence punishable under Section 304, Part-II of I.P.C. and, therefore, the appeal may be allowed to that extent. 4. Ms. Gajjar, learned Additional Public Prosecutor, appearing for the respondent-State submitted that the appellant had reason to assault the deceased. Another incident had occurred on the previous day of the incident and on that day also, the deceased was assailed upon by the appellant along with this accomplice. Fortunately, the deceased was rescued by Dinesh, his nephew. For that purpose, a separate complaint was also lodged. Ms. Gajjar submitted that the incident was witnessed by the complainant as well as Jyotsna. Presence of both these witnesses was natural. The incident occurred just outside the house of the complainant. Presence of Jyotsna cannot be doubted only because she was married recently. Ms. Gajjar submitted that, according to the prevailing custom, a newly wedded bride visits her parental house shortly after the marriage and there is nothing to doubt her presence. Ms. Gajjar submitted that the deposition of the complainant and Jyotsna cannot be doubted only because they happen to be relatives of the deceased. They are related witnesses and not interested witnesses. Ms. Gajjar submitted that the medical evidence supports the prosecution case. Both the complainant and Jyotsna have seen the accused with a knife at the place of the incident. No one else was there. They have no reason to falsely implicate the accused and let go the real assailant and, therefore, their depositions may be accepted. 4.1 Ms. Gajjar submitted that the accused and the complainant or Jyotsna are not strangers and, therefore, there was no question of holding any test identification parade. She submitted further that an attempt is made to indicate that the incident has occurred much prior to the time indicated by the witnesses. And for that purpose, support is sought from two police witnesses, who said that intimation was given at 13.00 hours to keep a watch on the dead body, meaning thereby that the dead body was already in the hospital at 13.00 hours. Ms. Gajjar submitted that if the medical case papers are seen, they clearly indicate that the dead body reached the hospital at 1.55, i.e. 13.55 hours. Apart from that, the entry made on telephonic Wardhi given by hospital Constable also indicates that entry was made at 14.20 hours. It is also indicated that death occurred at 14.10 hours and, therefore, the admissions made by these two witnesses seem to be under some error and the Trial Court has taken this aspect into consideration while considering this contention of the defence. Ms. Gajjar submitted that witnesses tend to add or exaggerate to their original version out of enthusiasm only with a view to ensure that their deposition is not thrown out as unbelievable and, therefore, only because there is some frill or embroidery or exaggeration, the entire deposition may not be thrown off. 5. The appellant has assailed the judgment and order mainly on the ground that the details of incident given by the so-called witnesses, namely, Jayaben and Jyotsnaben are not trustworthy. It was contended that, according to these witnesses, this incident occurred around 2 'o clock in the afternoon whereas, as per deposition of two police witnesses, namely, Bhanushanker Laxmanbhai (Ex.54) and Ramsajivan (Ex.53), the message was sent by Bhanushanker to Ramsajivan at 13.00 hours to attend to the dead body at the hospital and, therefore, the incident must have occurred prior to 13.00 hours and, therefore, witnesses Jayaben and Jyotsnaben cannot be accepted as eye-witnesses. It is true that these two witnesses have stated in their respective depositions as stated above. But their say is not supported by any contemporaneous material. Not only that, but as stated by Bhanushanker, no entry in the Station Diary was made by him about the message sent by him at 13.00 hours to Ramsasjivan to attend the dead body at the hospital. On the contrary, according to this very witness, the entry was made in the Station Diary at 14.20 hours following a telephone Wardhi from police constable Ashok Patel of Hospital Chowki and, according to that entry, the deceased was brought to the hospital in emergency section and expired at 14.10 hours while under treatment. Apart from this, there is another material that requires consideration and that material is in form of the medical case papers of the hospital. A perusal of these medical papers (Ex.18) clearly indicates that the dead body was brought to the hospital at 1.55 P.M. and, therefore, the contention that the incident must have occurred prior to 13.00 hours does not find support from contemporaneous material. For whatsoever reasons, these two police witnesses have stated in their deposition that the message was sent and received at 13.00 hours. The medical case papers also indicate that the patient expired at 2.10 P.M. Under the circumstances, the contention that the witnesses-Jayaben and Jyotsnaben are not reliable because they are given wrong time of the incident cannot be accepted. Mistake or infirmity in deposition of one witness cannot weaken the evidential value of deposition of another witness. 6. Another contention that is canvassed on behalf of the appellant is that witness-Jyotsna was married just about 15 days prior to the incident. It is true that this aspect is undisputed. But only because Jyotsna was married a fortnight prior to the incident, no inference can be drawn that her presence at her parental house was not possible. Jyotsnaben is examined at Ex.43 wherein she categorically states that she saw the appellant running away after giving blow to her father with a knife on the left side. She has been cross-examined searchingly on the incident, but she has remained unshaken. In cross-examination, she admits that her marriage took place about 15 days prior to the incident in the month of Falguna and she stayed at her matrimonial house for about 15 days, but no specific suggestion was put to her that she was not present at the place of the incident or no question was put to her as to when she came back from her matrimonial house or no suggestion was put that she was at her matrimonial home. Only on this admission of marriage as stated above, an attempt is made to eliminate her presence at the time of the incident, which is difficult to accept when consistently she has deposed about the incident and has stood the test of cross-examination. It may also be noted that presence of this witness was stated by Jayaben-the complainant, in her deposition. The Investigating Officer-Chandakiram Yadav (Ex.71) has also stated that he recorded the statement of Jyotsnaben after drawing the Panchnama of the place of incident. The contention about the presence of Jyotsnaben at the place of incident, therefore, cannot be doubted, as argued on behalf of the appellant. 7. The third contention that is raised is regarding lack of support to the version given by the eye-witnesses from the medical evidence. It is contended that neither Jayaben nor Jyotsnaben speak about any injury on thigh of the deceased. That injury is noted in the postmortem notes and, therefore, they cannot be accepted as eye-witnesses. In this regard, it may be noted that Jayaben, in her deposition, says that, on hearing the shouts, she ran out of the house and saw Satish (appellant herein) running away with a blood stained knife. Likewise Jyotsnaben (Ex.43) says that, when she was going out of the house to throw away garbage she saw the appellant in company of Girish, Munno and Manoj and her father was shouting and, at that time, the appellant had a knife with which he gave blow on the left side of the deceased and, thereafter, the appellant ran away. Thus, what these witnesses have seen is only giving of the blow on the left side of the trunk of the deceased and, thereafter, running away of the appellant. What happened prior thereto may not have been witnessed by these witnesses, but that would not render their depositions untrustworthy in respect of what they deposed to have witnessed. It would also be worth to note that the Inquest Panchmana at Ex.15 is also slient about the thigh injury, which is noted in the postmortem notes. What is observed in the Inquest Panchnama is the injuries on the left side of the trunk and no other injury was noted. The thigh injury is noted for the first time in the postmortem note. When the Inquest Panchnama is drawn and the injury has gone unnoticed, the eye-witnesses cannot be disbelieved for not stating about this injury, as it may have escaped their attention as well or, as stated above, they may have reached the place after that injury was caused. After all, postmortem is done by an expert and he takes his own time to examine the dead body, whereas the incident occurred all of a sudden and the time is short and would depend on observation power of the witness. Because a witness fails to mention about a particular injury, which is not noticed even in the Inquest Panchnama, he/she cannot be disbelieved for other injuries for which he/she accounts for. The contention raised on behalf of the appellant, therefore, cannot be accepted. 8. A contention is raised about the late F.I.R. The deceased was taken to hospital at 1.55 P.M. During the course of treatment, he expired at 2.10 P.M. and, as can be seen from the Station Diary Entry, the message was sent at 2.20 P.M. Thereafter, the Investigating Officer is informed and he initiates the investigation and, ultimately, the complaint is recorded at 16.00 hours. An attempt was made to indicate that when the complainant was at the hospital, the Investigating Officer also went to the hospital and put some questions to her, but did not record the F.I.R. immediately and, later on, the F.I.R. is framed after deliberation. In this regard, Ex.57, the Station Diary Entry, may be looked into. Station Diary Entry No.14 is made at 16.00 hours. This is regarding the recording of F.I.R. and registering of this particular offence. Deposition of Police Inspector, Yadav, the Investigating Officer, is at Ex.71. He has been cross-examined at length. But nothing comes out to doubt the recording of the F.I.R. at the time indicated therein. This aspect was argued before the learned Additional Sessions Judge and has been dealt with by him. We have been taken through the impugned judgment and we are in agreement with the finding given by the learned Additional Sessions Judge and the reasoning adopted therefor. The contention, therefore, cannot be accepted. 9. It is contended that an attempt is made to falsely implicate Shantilal by the complainant. This aspect is brought on record by the defence during cross-examination of the Investigating Officer, who admits that in the further statement, the complainant has stated that she had given name of Shantilal at the hospital as she was in a disturbed state of mind. It is contended that the witness has falsely implicated innocent person and, therefore, no reliance can be placed on this witness. In support of this contention, reliance is placed on the case of B.N. Singh v. State of Gujarat, AIR 1990 SC 1628 and it is urged that the accused-appellant may be acquitted by allowing this appeal. 9.1 The above contention is difficult to be accepted in the present case. We have examined this argument qua the complainant. It may be noted that the complainant has not implicated Shantilal in her deposition nor has she implicated Shantilal in the F.I.R. Even the Station Diary Entries based on information received from the duty constable at the hospital (Ex.57 and 59) are seen, they do not appear to be verbatim reproduction of what may have been stated by the person disclosing the incident. There does not appear to be any tendency on part of the prosecution witness to falsely implicate an innocent person. If it was so, the complainant would also have implicated Shantilal in the F.I.R. as well as in her deposition. Jyotsnaben, whose deposition lends support to complaint also would have done the same. But that is not done by these witnesses. Besides this, there is no other factor to distrust the evidence of these witnesses implicating the appellant in the incident. The deposition, otherwise found trustworthy, cannot be discarded on this count. 9.2 In B.N. Singh v. State of Gujarat (supra), the Apex Court did not accept the version given by the three eye-witnesses as they were found to be interested witnesses and their version in their deposition was found to be improbable in light of medical evidence. In the instant case, the facts are altogether different. Jayaben cannot be branded as interested witness simply because she happens to be related witness. Her deposition cannot be disbelieved on basis of such admission by the Investigating Officer of