CR.A/851/1986 1/41 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 851 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus ALIMAHMAD ISMAIL & 4 - Opponent(s) ========================================================= Appearance : Mr.K.C.Shah, APP for Appellant(s) : 1, MR KB ANANDJIWALA for Opponent(s) : 1 - 4. NOTICE UNSERVED for Opponent(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 12/09/2006 ORAL JUDGMENT CR.A/851/1986 2/41 JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) 1. By means of filing the present appeal under Section 378 of the Code of Criminal Procedure, 1973, the State has assailed the order of acquittal passed by the learned Additional Sessions Judge, District Kachchh at Bhuj in Sessions Case No.8 of 1985 decided on 31.3.1986. 2. By the judgment under challenge, learned trial Judge acquitted the accused from the charge of offences punishable under Sections 147, 148, 149, 302, 324, 325, 323, 504 and 506(2) of Indian Penal Code (hereinafter referred as “the IPC” for short). 3. In the present case, initially, the charge was framed but, thereafter, it was altered and each accused have been charged for each distinct offence they have allegedly committed. It is on record that accused No.5 had expired on 1st September, 2001 and, therefore, the appeal shall have been dealt with accordingly treating it abatted qua respondent No.5 (original accused No.5). CR.A/851/1986 3/41 JUDGMENT 4. Learned APP Mr.K.C.Shah has taken us through the entire judgment and main grounds of challenge mentioned in para 5 of the memo of the appeal and has pointed out error that has been allegedly committed by the learned trial Court at the time of recording the finding of acquittal. One of the backbones of submissions of Mr.Shah before us is that the learned trial Judge has not applied his mind after appreciating the evidence of P.W.12 - Exh.40 Dr.R.B.Keshrani that accused who had given blow on the head of the deceased could have been held guilty of some lesser offence than the offence under Section 302 of IPC and in the same way, other accused persons who have caused injuries to PW Mariam and PW Ayesha also could be held guilty for lesser offence that assailants individually had committed applying the principle of minimum liability. 5. During the course of trial, the prosecution has examined 4 injured witnesses and their evidence has been discarded by the learned trial Judge mainly on the ground that there are certain contradictions in their evidence and they have attempted to keep curtain on some material part of the story of the incident that had occurred on 22nd October, 1984 in CR.A/851/1986 4/41 JUDGMENT the early hours at about 9.30 a.m., especially when these injured witnesses have not satisfactorily explained the injuries that were found on the bodies of the present accused makes the evidence of the injured witnesses unreliable. Learned trial Judge has also observed erroneously, according to Mr.Shah, that defence plea developed by making suggestions to the prosecution witnesses and by putting defence theory in the statement given under Section 313 of Criminal Procedure Code is also one of the probabilities emerging from the evidence on record and, therefore, the accused are entitled to the benefit of acquittal and it would not be safe for the Court to conclude that the prosecution has successfully proved the charges beyond the reasonable doubt. 6. To appreciate the say of the appellant State, we would like to state the basic case that was placed before the trial Court in nutshell. In para 2 of the memo of the appeal, the appellant state has narrated the facts of the prosecution in brief and it would be convenient to reproduce the relevant part of para 2 of the memo of appeal because, according to us, it covers the story of the case of the CR.A/851/1986 5/41 JUDGMENT prosecution. “The accused Nos.1 to 4 are brothers. Accused No.5 has a cement pipe factory at Bhuj. Accused Nos.1, 2 and 4 are working in the said factory. Accused No.3 is working in the Gujarat Electricity Board at Bhuj. According to the prosecution, the parties had a dispute about the way from the plot, from which a chapter case was filed, but afterwards, it was compromised. According to the prosecution, on the previous evening of the day of incident i.e. 22.10.1984 there was a quarrel between the ladies of the parties. As a result of the said quarrel, when the deceased had gone in the morning of the incident to the public latrine, the accused surrounded the deceased, armed with iron rod, pipe and sticks. According to the prosecution, accused no.1 gave blow on the head of the deceased Mamad Osman, who immediately fell down on the ground on account of the blow. The said Mamad Osman raised shouts, Mamad Jusab, who was going on his cycle to his job, on hearing the shouts, had seen the incident. On hearing the shouts Umar Osman and Abdul Sattar Jusab came CR.A/851/1986 6/41 JUDGMENT running. Accused no.2 gave iron rod blow on the head of Umar Osman. Accused no.3 gave stick blow to Abdul Sattar and he fell down. The said three persons Umar Osman, Mamad Osman and Abdul Sattar fell down and accused gave kicks with legs. At that time, Osman Umar, Abdulla Osman, Mariyambai Jusab and Misabai Osman came there. Accused No.3 gave stick blow to Mariyambai on her hand. Accused No.4 gave stick blow to Misabai on her head and back. Accused No.1 gave iron rod blow on the head of Osman Umar. Accused No.5 gave physical beating to Abdulla Osman and sat on his body. All these victims who were beaten shouted and, therefore, the accused ran away. The injured were removed to J.K.General Hospital. Mamad Jusab gave FIR to Bhuj City Police Station.” 7. It is the say of the prosecution that injured Mamad Osman during the treatment was operated and after operative treatment, when he was in the hospital succumbed to the injuries caused in the incident. In the entire incident, the other persons who have been examined by the prosecution i.e., (i) Osman Umar, (ii) Mariyam Jusab and (iii) Ayesha Osman CR.A/851/1986 7/41 JUDGMENT had sustained injuries and the prosecution had proved the nature of injuries sustained by these witnesses in the incident. The following role is assigned and it is alleged that all these over acts of the accused persons were in the capacity of the members of unlawful assembly. So, all the accused persons are constructively liable for each wrong committed by them even in their individual capacity. The alleged over acts are (i) accused no.1 had allegedly inflicted the blow on the head by iron rod to deceased Mamad Osman. He also gave blow with iron rod on the head of P.W.8 - Osman Umar Exh.24, (ii) accused no.2 gave blow with iron rod on the head of Umar Osman - P.W.3 Exh.13 (iii) accused no.3 gave stick blow on the head of Abdul Sattar Jusab - PW 4 Exh.14. He also gave stick blow on the hands of Mariyam Jusab – PW 6 Exh.22, (iv) accused no.4 gave stick blow on the back of PW 5 Ayesha Osman – mother of the deceased Exh.15 and (v) accused no.5 had given kick and fist blow to PW 7 Abdulla Osman - Exh.23. 8. The complaint is filed by PW 2 - Mamad Jusab. He is not the eye witness. In the same way, one another witness P.W.9 Amad Jusab examined by the prosecution is also eye witness to the incident but CR.A/851/1986 8/41 JUDGMENT had not sustained any injuries. 9. Mr.K.C.Shah has taken us through the evidence of all the witnesses. However, he has concentrated his arguments mainly on the evidence given by the injured witnesses and the complainant whose presence at the time of scene of incident, according to Mr.Shah, was natural. It is emerging from the evidence that the accused as well as complainant's side are residing in the same area or in the minimum neighbouring area known as Jyesthanagar of town Bhuj. It is not a matter of dispute that the witnesses examined by the prosecution and the deceased belong to one family except P.W.9 Exh.25 Amad Jusab. P.W.3 Umar Osman and P.W.7 Abdulla Osman are real brothers of the deceased Mamad Osman. P.W.8 Osman Umar is the father of deceased and P.W.6 Mariyam Jusab is the real aunt of the deceased i.e., wife of Jusab Umar. The complainant Mamad Jusab is the first cousin (uncle's son of deceased Mamad Osman). In the same way, P.W.Ismail Jusab and Abdul Sattar Jusab are also first cousin and real brother of the complainant Mamad Jusab. According to Mr.Shah, learned trial Judge ought not to have viewed the evidence of these CR.A/851/1986 9/41 JUDGMENT witnesses with any doubt or suspicion merely because they belong to one family and related inter-se. When the injured witnesses are getting corroboration and their presence at the time of scene of occurrence is found natural, then this Court should reverse the finding of acquittal and should convict all the accused persons saying that the prosecution has successfully established the charges beyond doubt. In the alternative, according to Mr.Shah, if the Court is of the view that the presence of accused nos.3 and 5 at the time of scene of offence probably was not there and that is how acquittal saying that the evidence against these two accused persons are not of cogent nature, then rest of three accused should be held guilty for each wrong that they have committed qua injured, deceased injured and other injured witnesses, but, at least, according to Mr.Shah, this is not a case of acquittal. However, the learned trial Judge has acquitted the accused. This is a case of improper and incorrect appreciation of evidence and it was the duty of the Court to ignore minor contradictions or omissions that are being found in the evidence of witnesses saying that they are not very material and these contradictions and conflicting evidences do not go to the root of the CR.A/851/1986 10/41 JUDGMENT entire prosecution story. 10. On the other hand, Mr.Anandjiwala has strongly supported the order of acquittal and it is submitted that the learned trial Judge, after detailed appreciation of the oral as well as documentary evidence led by the prosecution, has recorded correct finding of acquittal. There is no element of either perversity or illegality in the finding. He has also taken us through the relevant part of the evidence of injured witnesses and the nature of contradictions that have been mentioned specifically by the learned trial Judge while appreciating the evidence of each eye witness examined during the course of trial. He has also taken us through the evidence of P.W.10 and 11 who were examined to prove the crucial panchanamas which are allegedly drawn under Section 27 of the Indian Evidence Act. Only one witness Abdul Gafar Mamad examined to prove four discovery panchanamas i.e. Exhs.28 to 31 who has not supported the case of the prosecution. On the contrary, placing reliance on the deposition of PW - Pruthvising and Sangramji, Mr.Anandjiwala has argued that the accused persons were arrested by the police on 22nd October, 1984 at CR.A/851/1986 11/41 JUDGMENT about 1.40 p.m., meaning thereby, on the date of incident, they were arrested in couple of hours. The accused had not developed any tendency to abscond and they were available. When they were arrested, three out of five accused persons i.e. Accused nos.1, 2 and 4 were found with injuries. By reading document Exh.76 - N.C. registered by the police, Mr.Ananjiwala has argued that injuries found on the accused persons at the time of their arrest, panchanama proved by P.W.11 Exh.32 - Pravinsinh were required to be considered in the background of N.C.- Exh.76 and the learned trial Judge, therefore, has rightly observed that it probablised the defence. Of course, Mr.K.C.Shah and Mr.Anandjiwala both have placed their reliance on the medical evidence led during the course of trial of Dr.Ramji Bhanji Keshrani - Exh.40 and Suresh Kanjibhai Parekh P.W.15 - Exh.56 as well as of Dr.Jagdish Vishwanath Dave P.W.17 - Exh.64. It is argued by Mr.Anandjiwala that accused no.1 had sustained injuries on his head and back portion. In the same way, accused no.4 had also sustained injuries on the head and accused no.2 had sustained injuries on his left hand and back. The case of the prosecution is that when the deceased was proceeding towards the public toilet to reply the CR.A/851/1986 12/41 JUDGMENT call of nature with plastic water jug in one of his hands, he was intercepted and assaulted by accused no.1. On the other hand, the stand of the accused is that wife of accused no.1 had delivered a baby (girl child) in the hospital on the previous evening i.e. 21st October, 1984 and, therefore, he was proceeding towards the hospital to pay visit to his wife and to see the newly born child in the early morning at about 7.30 a.m., on two wheelers described as Mini Rajdoot. At that time, accused no.1 was intercepted by the deceased and was given blow with wooden log and by listening shout of accused no.1, his two real brothers had rushed to his rescue. These two were also assaulted and given blow with hard and blunt substance. The close relative of the first assailant Mamad also had reached to the very spot. Thereafter, all the accused had left the place to save themselves. The motor cycle was also given blow and, therefore also, it was damaged. The glass of the head-light and clutch etc. were broken and by leaving that motor-cycle at the spot of incident, accused no.1 had left the place with his two brothers. This motor-cycle was found at the very spot of incident is one of the undisputed fact and it was lying at the time of drawing the panchanama of scene of CR.A/851/1986 13/41 JUDGMENT occurrence. The map prepared by the Revenue Circle is available on record and learned Judge had considered the topography of the place. 11. Mr.Anandjiwala submitted that on close reading of the evidence of the Civil Surgeon Dr.Jagdish Vishwanath Dave in the background of the evidence given by Dr.Kesrani who had performed the postmortem, one impression is created that probably the deceased had died not because of injuries that he had sustained in the incident in question, but because of external reason, may be because of surgery that was performed, the deceased succumbed because there is no nexus between the external injury that was allegedly inflicted on the deceased and the cause of death that was noticed by Dr.Kesrani. 12. We have given our thoughtful consideration to various aspects that have been brought to our notice by the counsel appearing for the parties, especially learned APP, because one of his arguments is that whether the judgment can be said to have been erroneous because it was possible for the Court to link the accused with the crime relying on the evidence of the injured witnesses. Each injured CR.A/851/1986 14/41 JUDGMENT witness in the present case corroborates the other and there are no material contradictions qua basic facts that they have stated before the Court. The Court should not try or expect to find out corroboration from the independent evidence and the case of the prosecution can be expected from the evidence of close relative and where the beginning is close relative, the duty of the Court is to scan the evidence closely. The presence of such relative at the spot of incident is natural and if no independent witness is otherwise available, then in these type of cases, the Court can acquit the accused on appreciation of the evidence of a person who is partition witness. On close reading of the judgment under challenge, it is clear that the learned trial Judge has considered all these aspects that have been placed before us by Mr.Shah. The case of the State was placed well before the trial Court. The written arguments submitted by the learned APP have been considered thoroughly and the learned trial Judge has observed that each injured witness has attempted to put curtain on certain important aspects of the entire incident that had occurred and they are not unfolding the true story. The Court was assisted by the detailed arguments submitted by the accused Nos.1 CR.A/851/1986 15/41 JUDGMENT to 4. 13. For recording acquittal, learned trial Judge has dealt with each charge separately framed with detailed observation and has also considered motive of the crime that was half-heartedly placed before the trial Court. On plain reading of the judgment, according to us, the following material aspects are found which can be said to be undisputed facts. (1) The accused and the complainant's side are residing in Jyesthanagar or adjacent locality and thereby they are neighbour. (2) The deceased and the witnesses examined by the prosecution who have been posed as eye witnesses to the incident are close relatives. (3) PW 9 Amad Jusab, of course, is not the relative, but he is serving as Talati-cum-Mantri i.e., under the establishment of the District Panchayat and the deceased was also Talati-cum- Mantri and this witness PW 9 is not residing in the area which can be said to be just adjacent to the place of incident. CR.A/851/1986 16/41 JUDGMENT (4) The accused persons had also sustained injuries in the incident in question i.e., in the same transaction of event, but the prosecution has not explained the injuries that were found on the bodies of three accused persons, i.e., accused Nos.1, 2 and 4. The accused No.1 had lodged one complaint and that has been registered as NC complaint, but it is observed and held by the trial Court that the facts narrated by the accused No.1 before the police disclose cognizable offence and the police ought to have registered the FIR and this aspect was not even seriously assailed before the trial Court by the learned Public Prosecutor. (5) In the FIR Exh.77 time and place of incident are shown to be 7.30 a.m., on 22.10.1984, but the FIR was lodged on 9.50 a.m., after admission of the injured in the hospital and there is controversy that which side either accused or complainant had reached to the Police Station first. CR.A/851/1986 17/41 JUDGMENT (6) Mini-Rajdoot motor cycle of accused No.1 was found lying damaged with broken head- light glass etc., at the spot of incident and the body of the deceased was lying at some distance from the motor cycle. (7) The wife of accused No.1 had delivered a baby child in the Maternity Home on the previous evening and this fact brought by the accused on record has not been seriously disputed by the prosecution. (8) It is not the case by the prosecution of free-fight between the accused and complainant's side and it is not pleaded that all the witnesses including deceased were together when the deceased was first assaulted by accused No.1 with the iron rod. (9) The complainant is not the injured witness and claims to be a person who had reached to the place from where he could be able to see / visualize the act of assault by accused No.1 to the deceased. He claims that he was present. Thereafter, two witnesses had reached CR.A/851/1986 18/41 JUDGMENT to the spot i.e. PW 3 Umar Osman (Exh.13) and PW 4 Abdul Sattar (Exh.14) and thereafter remaining four witnesses had reached at the place of incident i.e. (1) Ayeshabai Osman (Exh.15), (2) Mariambai Salemamad Jusab (Exh.22), (3) Abdulla Osman (Exh.23) and (4)Osman Umar (Exh.24). (10) PW 9 Amad Jusab Exh.25 is not named in the FIR and it is not the say of the prosecution initially that he is also the witness to the incident. (11) Considering the document at Exh.76 the presence of three accused persons were there at the place of incident and in view of the injuries found on the bodies of these three persons, their availability and participation do not remain a matter of serious dispute. (12) There is no formal recovery form the place of incident of plastic container that the deceased was allegedly carrying with him, as he was going to reply the call of nature. (13) The house of the deceased and other CR.A/851/1986 19/41 JUDGMENT close relative including the uncle etc. have their own toilets in their residence. The deceased injured was admitted in the hospital at about 8.20 a.m., on 22nd October, 1984 and at that time, two injuries were found on head; one was CLW on right fronto parietal region admeasuring 6 cm x 5 cm x bone deep and the second injury was CLW on the right side temporal region admeasuring 5 cm x 5 cm x bone deep and the certificate as to these two injuries was given by Dr.Kesrani at Exh.41 and none of these two injuries have been found fatal according to the Doctor who had performed postmortem. (14) The injured was operated on 22nd October, 1984 by the General Surgeon who was not Neuro Surgeon and bore-hole was made in the skull of the injured Mamad Osman and it was found of larger size than required as per the Doctor who had performed the postmortem. 14. Learned trial Judge, while appreciating the evidence of all injured witnesses, has recorded the nature of injuries that were found on the bodies of the concerned witness and the injury certificates of CR.A/851/1986 20/41 JUDGMENT these witnesses have been proved by Dr.Kesrani. The injury certificates of Jusab - injured witness, PW Abdul Sattar, Osman Umar, Mariyam, Ayesha Osman, Umar Osman and Abdul Osman are at Exhs.43, 44, 46, 47, 48 and 49 respectively. 15. The Court is aware about the observations made by this Court in the case of State of Gujarat Vs. Panubhai @ Paniyo Kelaji Bhil and another, reported in 1991(1) GLH 85 wherein this Court has observed about various angles from which the evidence of injured witness should be scrutinized closely. The observations made in para 14.4 of this decision are indicating and it says that while appreciating the evidence of injured witness, the Court should ascertain, (1) Whether the alleged injury was received in the course of the same transaction incident only?, (2) Whether the accused were previously known to the injured ?, (3) If not, whether the accused was distinctly described in previous statement before the CR.A/851/1986 21/41 JUDGMENT police?, (4) Whether there was sufficient light at the time and place of the incident to identify the accused, and (5) Whether the injury so found on the person of the witness, rule out a case of a self-inflicted injuries. The Court has observed that injured witness passing these four tests carries with him an in built guarantee of truth, and that in that case, the Court can certainly place implicit reliance upon such evidence. If these tests are applied, then whether it is possible for us to observe that the evidence of eye witness should be accepted as a whole truth. The accused can be convicted, according to us, even after applying this test still there is a scope for the Court to observe that the evidence of such witness is not found reliable or wholly trustworthy. In the present case, the question of identity for the accused was not there because the parties have enemical terms. They are residing in the same locality and they were knowing each other