CR.A/1049/1983 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1049 of 1983 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= PATEL JAYANTILAL CHHAGAN & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR ARUN H MEHTA for Appellant(s) : 1 - 2. MR UR BHATT, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 28/08/2008 ORAL JUDGMENT 1. The present appellants are convicted for the offence punishable under Section 307 of IPC and CR.A/1049/1983 2/18 JUDGMENT sentenced them to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/- each, in default, to further undergo Rigorous Imprisonment for six months, by the judgment and order dated 30.9.1983 passed by the learned Addl.Sessions Judge, Rajkot in Sessions Case No. 12 of 1983. By filing this appeal, the said judgment and order is challenged by the present appellants-original accused Nos.1 and 2. 2. The brief facts of the prosecution case are as under: 2.1 It is the case that injured Ravji Pancha and the accused are residents of the village Moti Marad. Both the appellants-accused are real brothers. There are in all, four brothers. The injured Ravji Pancha is having his field known as 'Vidi' in the sim of village Moti-Marad. The field of the accused also is touching the field of Ravji Pancha. Before about five days or so before the incident, there had been a quarrel between the accused on one hand and Ravji Pancha on the other hand, in connection with grass on the “Sheda” land between the fields of both the parties. On the date of the incident, Ravji Pancha had gone to his field 'Vidi' on his motor-cycle at about 6.30 p.m. and he was on his way back to home. CR.A/1049/1983 3/18 JUDGMENT The witness Muktaben, who was working as a labourer in the field of Ravji Pancha, had also accompanied Ravji Pancha on his motor-cycle. On the way, they saw that the accused were going towards village Moti- Marad along with agricultural implements. On seeing Ravji Pancha and Muktaben on the motor-cycle from behind, the accused halted their cart and got down from it. Accused No.1 was having a Ramp (an iron blade to be fitted with a plough for agricultural operations) in his hand and accused No.2 was having a Kharpiya (a stick with a curved iron-blade used for cleaning the plough while in operation). On seeing the accused, Ravji Pancha asked Muktaben to get down from the motor-cycle. After he stopped his motor- cycle, taking advantage of the loneliness of Ravji Pancha, both the accused pounced upon him and began to beat him. Ravji Pancha ran to escape towards the canal upto a distance of about 30 ft. where he fell down. The accused ran after him and beat him till he was unconscious and then they rode the cart. By this time, Muktaben, afraid of the accused, was going towards the village, but she was overtaken by the accused and she was threatened by the them that if she disclosed the incident to anybody else, she would also be beaten to death. Muktaben went home, leaving CR.A/1049/1983 4/18 JUDGMENT Ravji Pancha where he was lying in an unconscious condition and at that time, one motorist Nikhilbhai Jayantilal Shah passed by that road as he was going from Dhoraji to Bhader in his Ambassador car. Said Nikhilbhai took Ravji Pancha to the hospital in village Moti-Marad. The relatives of Ravji Pancha including his wife and cousins gathered together in the hospital, and after Ravji Pancha was given first aid, he was removed to Dhoraji hospital from where he was referred to Junagadh hospital. The cousins of Ravji Pancha, Maganbhai and others who had gone to Dhoraji and Junagadh returned to Moti-Marad and began to make inquiries as to how the incident had occurred and Ravji Pancha was injured, as nobody knew as to how Ravji Pancha was injured. In their pursuit, Maganbhai Naranbhai went towards 'Vidi' of Ravji Pancha and when he came near the canal, he found that the motor-cycle of Ravji Pancha was lying on the road and the petrol was spilled on the road. He also found a pool of blood. In order to make further inquiry, Maganbhai Naranbhai and his brother Trikambhai Naranbhai went to the house of Muktaben and after she was assured protection, she disclosed as to how Ravji Pancha was injured. Muktaben narrated to them that Ravji Pancha was beaten by the CR.A/1049/1983 5/18 JUDGMENT accused and on that strength of information at about 6.15 a.m. on 30.8.1982, Maganbhai lodged the complaint in Patanvav Police Station that one Jayantilal Chhagan and his brother whose name he did not know had assaulted Ravji Pancha and made an attempt to murder him. On receiving this complaint, an offence was registered and investigation was started. On the other side, the story is that, at Junagadh Hospital, the Constable on duty sent a note to Junagadh City Police Station that one Ravji Pancha had been admitted in Civil Hospital, Junagadh with injuries by motor-cycle and necessary action is to be taken. The Station diary entry was made in Junagadh Police Station. A policeman went to the hospital and on questioning the relatives and particularly one Ratna Mavji who is related to Ravji Pancha noted that the injured had received injuries as the motor- cycle slipped and he had fallen down. The PSI of Patanvav Police Station was then informed by Junagadh City Police Station, as the incident occurred within the jurisdiction of Patanvav Police Station. 2.2 PSI, Amrutiya, who had already started investigation informed his higher authority about the incident and drew up a panchanama of the site of the CR.A/1049/1983 6/18 JUDGMENT offence. He recorded the statements of Muktaben and other witnesses and attached blood soaked soil and control samples, a pair of shoes, a watch strap, and blood soaked tar. The accused presented themselves at about 2.00 p.m. before the PSI along with the weapons and the weapons were attached and sealed. The PSI went to Junagadh, but the injured was found in an unconscious condition and the Medical Officer on duty told him that the injured was not in a fit state of health to give statement. The PSI attached the blood-stained clothes of Ravji Pancha and recorded the statements of other witnesses available. He informed the Executive Magistrate to take the dying declaration of the injured, but the Magistrate did not appear to have recorded the statement. Even as on the next day, the investigation was continued and the accused were sent to the judicial custody. On 2.9.1982, PSI Amrutiya went to Junagadh hospital and recorded the statement of the injured. The muddamal attached was sent to Forensic Science Laboratory (FSL), Junagadh for analysis. On receiving the medical certificate and receiving the muddamal sent to FSL, the accused were charge-sheeted before the learned Judicial Magistrate, First Class, Jetpur. CR.A/1049/1983 7/18 JUDGMENT 2.3 The learned Magistrate finding the case to be exclusively triable by the Court of Sessions, by his order, committed the case to the Court of Sessions for trial. During trial, the accused pleaded not guilty of committing the offence and claimed to be tried. 3. The prosecution has examined the following witnesses: PW-1 – Maganbhai Naranbhai PW-2 – Jayaben Dayabhai PW-3 – Bavanji Rudabhai PW-4 – Nikhil Jayantilal Shah PW-5 – Ravjibhai Panchabhai PW-6 – Dr.Gokaldas Manjibhai Kansagara PW-7 – Dr.Jasmatbhai Dayabhai Rabara PW-8 – Dr.Dhirajlal Ladhabhai Raiyani PW-9 – Ratnabhai Mavjibhai PW-10- Chhaganlal Gordhanbhai PW-11- Jivabhai Khimjibhai PW-12- Muktaben Ravji PW-13- Trikambhai Naranbhai PW-14- PSI Mansukhlal Bhagvanji Amrutiya. 4. I have heard learned Senior Advocate Shri Arun Mehta for the appellants and learned APP Mr.U.R.Bhatt CR.A/1049/1983 8/18 JUDGMENT for the respondent State. I have also gone through the entire record of the case. For the purpose of deciding this appeal, the deposition of the main and important witnesses, namely, (i) PW-5 - Ravji Panchabhai, Exh.10; (ii) PW-12 – Muktaben Ravji, Exh.30; and (iii) PW-8 – Dr.Dhirajlal Ladhabhai Raiyani, Exh.20. Learned Senior Advocate Mr.Arun H.Mehta for the appellants-accused has argued that the charge under Section 34 of the IPC is not framed against the appellants-accused and the trial Court has convicted both the appellant-accused under Section 307 of IPC which is bad in law for the reasons that neither the injured Ravji nor the eye witness Muktaben says which accused has given nature of blow to the victim and that out of the three Doctors who have been examined, none of them says that a particular injury caused by a particular blow could have been proved fatal. In support of his submission, he took this Court to the evidence of injured witness Ravji, eye witness Muktaben Ravji, Dr.Gokaldas Manjibhai Kasangara of Junagadh Civil Hospital; Dr.Jasmatbhai Dayabhai Rabara; and Dr.Dhirajlal Ladhabhai Raiyani. It is argued by him that there is no evidence on record that both the accused have common intention so as to attract the CR.A/1049/1983 9/18 JUDGMENT provisions of Section 307 of IPC. It is also argued by him that nothing comes out on the record as evidence which shows that in furtherance of a pre- planned meeting, injured Ravji was attacked and in any case, it cannot be said that there was a common intention of both the accused to injure Ravji. However, without considering the same, the trial Court has convicted both the appellants-accused for the offence punishable under Section 307 of IPC. 5. It is further argued by learned Senior advocate Mr.Mehta that there are major contradictions in the evidence of the witnesses along with the police statement and in the evidence before the Court, which the trial Court has not considered and thus the trial Court has committed an error in convicting both the accused. It is further argued by Mr.Mehta that the prosecution has failed to prove beyond reasonable doubt that accused No.2 was identified by the injured as well as by the eye witness Muktaben and as per the evidence, injured witness Ravji did not know the name of the accused No.2, but he only stated that one Jayanti, son of Chhagan had attacked him which caused injury. It is also argued by Mr.Mehta that it has come in evidence that there is previous CR.A/1049/1983 10/18 JUDGMENT enmity because of quarrel which had taken place with regard to raising of 'Sheda', 'Dhari' and 'grass' between the accused persons and injured and so only with an ulterior motive, accused No.2 has been falsely roped in the offence and that the trial Court has not considered the same and committed an error in convicting the accused No.2. Alternatively, he has submitted that accused No.2 is entitled to the benefit of doubt and requires to be acquitted. 6. On appreciation of the evidence of injured Ravji (PW-5) and Muktaben (PW-12), and also the medical evidence, it clearly transpires that injured Ravji has categorically narrated the incident in the manner in which it had taken place before the Court. As per his evidence, when he and witness Muktaben were going on motor-cycle, accused Jayantilal and Amrutlal who were travelling in a bullock cart stopped the motor- cycle and (Ravji (PW-5) asked Muktaben to go to her house. As per the evidence of this witness, both the accused got down from the bullock cart and accused Amrutlal inflicted Kharpiya injuries on the head of the injured Ravji (PW-5) and on receiving such injuries, he fell down from the motor cycle. CR.A/1049/1983 11/18 JUDGMENT According to this witness, accused Jayantilal also gave him Ramp blow on Ravji's head and as he received two blows on his head, he ran away from the spot, but he fell down. However, again, he got up and tried to run away, but the accused chased him. However, after reaching at about 30 ft., Ravji fell down and therefore, the accused came back as the injured again fell down. On account of receiving the injuries, the injured Ravji became unconscious and thereafter he did not know what had happened. He fairly stated before the Court that before about five days of the incident, a quarrel had taken place with regard to “Sheda” grass. Nothing has come out from his cross examination which falsifies his evidence about his testimony before the Court. The learned Senior advocate Mr.Mehta has tried to magnify that this witness did not know the name of accused No.2 (Amrutlal) and he had not identified the accused and so accused No.2 is entitled to get the benefit of doubt. But, there is no substance in this argument if we carefully go through the evidence of this witness and in cross examination, he has stated that except Jayanti, he was knowing accused by face, however by name, he did not know accused No.2. He also fairly stated in cross examination that before police CR.A/1049/1983 12/18 JUDGMENT statement that the injury caused is with Kharpiya by the younger brother of Jayantilal, but he did not mention the name of accused No.2. He has stated that two sons of Chhaganbhai caused injuries to him and amongst the two, one was Jayanti, but the name the other was not known to him. It may be noted that in villages and moufusil places, generally, the young persons are known in the shade of their fathers' name or the name of the person eldest in the family. So this argument that merely because this witness did not identify accused No.2 by name has no substance. It is also pertinent to note that this witness involves Jayantilal, but though he has not given the name of this accused, gives the description of accused No.2 and so also, his evidence inspires confidence and finds trust-worthy. 7. It is an admitted fact that when injured Ravji Pancha was admitted in the hospital, he was in an unconscious stage and was not in a position to speak and therefore, he did not disclose regarding the incident immediately after receiving the injury, but when he regained consciousness, he stated before the Doctor that he was assaulted by one Jayanti, son of Chhaganbhai. Thus, it clearly suggests that the CR.A/1049/1983 13/18 JUDGMENT evidence of injured witness Ravji Pancha is quite natural and trust-worthy. Otherwise, he could not have given the said names specifically. In the opinion of this Court, the evidence of this witness is quite natural and not suffering from any infirmity and also corroborates with the evidence of Muktaben (PW-12). 8. PW-12 – Muktaben Ravji, in her deposition has clearly stated that she was pillion rider of deceased Ravji on the way to 'Vidi' and after the incident, the accused had threatened her with dire consequences if she disclosed about the incident to any one else and because of fear, she did not disclose about the incident to Maganbhai Naranbhai and Trikambhai at the first instance. 9. As per the evidence of Muktaben, she is a labourer and at the time of incident, she was pillion rider of injured Ravji Pancha. On inquiry by PW-1 Maganbhai Naranbhai, though because of fear, she did not state as to how Ravji Pancha was injured, but on his assurance that she will be protected, she stated before him that Ravji Pancha was assaulted by the appellants-accused. It is submitted by learned Senior advocate Mr.Mehta that Mukktaben had not CR.A/1049/1983 14/18 JUDGMENT disclosed about the incident before anybody, even before her husband, and so, she is a got-up witness. It is pertinent to note that she is a labourer of the injured Ravji Pancha; her husband is a handicapped person; she has five children, and because of fear and other reasons, she did not disclose about the incident to anybody and it could not be said that she is a got-up witness. Therefore, there is no substance in the said argument. 10. As per the submission of learned Senior advocate Mr.Mehta regarding charge under Section 34 of IPC is concerned, it is not acceptable. If we go through the Charge framed at Exh.1, it clearly and specifically mentions that accused No.1 was armed with Ramp whereas accused No.2 was armed with Kharpiya with a common intention to cause bodily injuries or with knowledge that in such circumstances, if Ravji is succumbed to the injuries, then both of them will be liable for attempting to commit murder and they have to undergo punishment under Section 307 of IPC. From the plain reading of the charge, it is crystal clear that it is specifically mentioned regarding the intention of the accused persons and knowledge of the accused. Merely because Section 34 of IPC is not CR.A/1049/1983 15/18 JUDGMENT mentioned, it cannot be said that there was no charge under Section 34 of IPC. Therefore, there is no substance in the said submission. Even assuming that charge under Section 34 of IPC is not there, then also, it is a mere irregularity, but by that itself, cannot be said that the accused were not liable to be punished under Section 307 of IPC. As far as common intention is concerned, it can be gathered only from the act of the accused while committing the offence and as discussed above, there is common intention on the part of the accused to murder Ravji with the aforesaid weapons. 11. Further, learned Senior advocate Mr.Mehta has submitted that taking into the medical evidence, the case does not fall under Section 307 of IPC as the evidence of the Doctor clearly suggests that all head injuries can not cause death. According to him, none of the Doctors who examined the injured says that which particular injury caused by a particular blow has proved fatal. Mr.Mehta further submitted that one Ratnabhai Mavjibhai (PW-9) has stated before the police that Ravji received injury because of falling down from the motor-cycle and therefore there is no doubt that the injury caused to CR.A/1049/1983 16/18 JUDGMENT Ravji is due to accident and hence, the accused are entitled to the benefit of doubt. However, the trial Court has not believed the same and convicted the appellants-accused. 12. It is also pertinent to note that as per the evidence of PW-8 Dr.Dhirajlal Ladhabhai Raiyani who examined the injuries sustained by the injured, it is not possible if a person falls down from the motor- cycle, such injuries are possible. He has noticed the following injuries on the body of injured Ravji: (i) Oblique CLW over frontal region in mid line 10 cms. X 1.5 cms. X bone deep. A fracture of the frontal bone was also suspected. (ii)Oblique CLW over frontal region crossing injury No.1 – 6 cms. X 1 cm. X bone deep. Therefore, there is no possibility of receiving such injuries in a vehicular accident by Ravji Pancha and it is proved beyond reasonable doubt by the prosecution that the injuries received by injured Ravji Pancha is not because of falling down from motor-cycle and it was because of serious assault by hard and blunt substance. Even according to the Doctor, the injuries which are received on the vital part of the body of the injured are sufficient to CR.A/1049/1983 17/18 JUDGMENT cause death in natural course. Further, it is proved beyond doubt that the appellants-accused have used the weapons, like “Ramp” and “Kharpiya” in assaulting the injured Ravji Pancha, which caused serious and fatal injuries to him. Therefore, considering the gravity of the offence committed by the appellants- accused, the trial Court has rightly convicted and sentenced the appellants-accused, and no interference of this Court is warranted. 13. It is argued by Mr.Mehta that as the appellants- accused have been falsely involved in the case because of previous enmity. But there is no substance in this submission considering the medical as well as the evidence of witnesses which is trustworthy and inspiring confidence as well as totally corroborated with the medical evidence, the question does not arise as to falsely implicating the accused in this case. Therefore, the trial Court has examined the case in its true perspective and rightly convicted the appellants-accused. Hence, this Court finds no error committed by the trial Court in relying upon the evidence of these witnesses. 14. In the result, the appeal is dismissed. The CR.A/1049/1983 18/18 JUDGMENT judgment and order passed by the trial Court under challenge is hereby confirmed. The appellants-accused shall surrender to custody within a period of 30 (thirty) days from today to undergo the sentence awarded by the trial Court. The bail bonds shall stand cancelled. Sreeram. (M.D.Shah, J.)