IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 941 of 1996 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- RAMAJI THAVRAJI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 941 of 1996 MRS SHILPA J UNWALLA for Appellant MR S S Patel, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 16/07/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE D.P.BUCH) Present appeal under section 374(2) of Criminal Procedure Code, 1973 (for short, 'the Code') has been preferred by the appellant abovenamed, challenging the judgment and conviction order dated 31.8.1996 recorded by the learned Addl.Sessions Judge, Sabarkantha at Himatnagar in Sessions Case No.82/94 convicting the present appellant for offence punishable under sections 302 and 324 IPC and sentencing him to suffer R.I. for life and directing him to pay fine of Rs.500/-. In default, R.I. for six months for an offence punishable under section 302 IPC and R.I. for six months and a fine of Rs.100/- for an offence punishable under section 324 IPC. The trial court directed that both the substantive sentences to run concurrently. At the same time, the appellant was acquitted of an offence punishable under section 323 IPC and under section 135 of Bombay Police Act. 2. The prosecution case against the present appellant may be briefly stated as follows: Appellant had some dispute regarding land with the deceased. Therefore, according to the case of the prosecution, on 22.3.1994 at about 11.30 a.m. when the deceased was reparing his hedge at village Dhuleta and when his daughter, informant-Savitaben was grazing her goats in the same field, the appellant arrived at the spot. Then, according to the case of the informant-daughter, a pickaxe was lying near the deceased. The appellant picked up the pickaxe, heat it on fire and place the said heated pickaxe on various parts of the body of the deceased. The deceased shouted at which the daughter went to the place where the deceased was lying at that point of time. The appellant, on seeing the daughter coming to that place, ran away from the said place. Daughter-Savitaben saw the deceased lying on the ground. The deceased had several injuries including burn injuries on his person. Savitaben called her mother Laxmiben who was also staying in a hut in the same field. Other persons were also called. Her brothers were away from the village. Therefore, message was sent to one of them and the daughter herself went to village Palla to inform another brother who was working there. Thereafter, it seems, the daughter went to outpost to file FIR at village Palla. She noted that no police personnel was present there. Therefore, she went to village Shamalaji and filed FIR at the said police station. 3. It is also the case of the prosecution that the incident actually took place in the field of one Manji Kalaji who happens to be uncle of the appellant. The prosecution has also come out with a case that even Manji Kala had also come to the spot on hearing shouts of the deceased. Manji Kala has been cited as an eye witness by the prosecution. 4. When the FIR was filed, the concerned Head Constable came to the spot and he had drawn inquest panchnama in respect of the dead body of the deceased. Thereafter, he entrusted the investigation to the Police Sub-Inspector. The Police Sub-Inspector in-charge of the investigation visited the place. He had drawn panchnama of the scene of offence and muddamal articles were seized from the said place. They included slipper, hand kerchief, axe, pickaxe etc. All these muddamal articles were seized in presence of panch witnesses. Statements of witnesses were recorded, muddamal articles were sent for examination and opinion to the Forensic Science Laboratory. Dead body of the deceased was sent to the hospital for post mortem examination. Dr.Pravinchandra Sheth had carried out post mortem examination and sent the post mortem report to the police investigating officer. Thereafter, the investigation was undertaken in order to arrest the present appellant. Efforts were made and ultimately the appellant was arrested. In the meantime, investigation was also undertaken in order to ascertain as to whether the appellant was attending the place of his duty where he was working. Relevant record was also obtained from the said employer in order to ascertain if the appellant was attending to his duty. On completion of investigation, charge sheet was filed in the court of learned Judicial Magistrate First Class, Himatnagar, where the case was registered as criminal case No.469/94. Charge sheet was filed for offence punishable under sections 302 and 324 IPC and for other offences. As offence under section 302 IPC is exclusively triable by a Court of Sessions, the case against the appellant was committed to the Court of Sessions. There it was registered as Sessions Case No. 82/94. 5. Learned Addl.Sessions Judge, in-charge of the said Sessions Case, framed charge at Exh.8. It was read over and explained to the appellant. The appellant pleaded not guilty to the said charge and, therefore, the learned Addl.Sessions Judge proceeded to record evidence against the appellant. During the course of recording of evidence, the prosecution has produced following oral evidence before the trial court. -------------------------------------------------------- PW 1 Savitaben Badaji, d/o decd.and informant Exh.12 PW 2 Manji Kala, eye witness & uncle of the appellant Exh.14 PW 3 Jitendrakumar M Modi, officer of the employer of the appellant Exh.15 PW 4 Manji Dhulabhai, panch witness Exh.23 PW 5 Galbaji Hiraji, Head Constable, who registered the FIR of Savitaben Exh.25 PW 6 Dr.Pravinchandra Jayachand das, M.O. who performed the post mortem examination Exh.33 PW 7 Kantiji Navaji, Head Constable & I.O. Exh.38 PW 8 Ramsingh Gopalsingh Chawla, PSI,I.O. Exh.39 --------------------------------------------------------- 6. The prosecution has also produced certain documentary evidence before the trial court such as FIR of Savitaben Exh.13, records of the employer of the appellant at Exh.16, inquest panchnama Exh.17, panchnama about recovery of the clothes of the deceased Exh.18, panchnama regarding search of the house of the appellant Exh.19, arrest panchnama Exh.20, panchnama regarding recovery of the clothes of the appellant Exh.21, death certificate of Laxmiben, wife of the deceased who died pending trial - mark 22/1, panchnama regarding scene of offence Exh.24, map/Sketch of the place of offence Exh.27, post mortem report, exh.35, communication sent to FSL Exh.40 , FSL report Exh.41, sketch of scene of offence Exh.42 etc. 7. On conclusion of the evidence, the learned trial Judge recorded further statement of the appellant as required under section 313 of the Code of Criminal Procedure. The learned trial Judge afforded opportunity to the appellant to explain the circumstances appearing in evidence against the appellant. There the appellant has come out with a case of denial stating that he has not committed any offence and he was falsely involved in the said offence. However, the appellant has not examined any witness. The trial court found that the case against the appellant was duly proved. That the two eye witnesses had given a correct version of the incident and therefore, the evidence was acceptable. The trial court also found that the oral evidence of the two eye witnesses was corroborated by circumstantial evidence as well as by medical evidence. Therefore, the trial court found the evidence on record to be acceptable. On the strength of the findings on the evidence on record, the trial court found that the appellant was proved to have committed intentional murder of the deceased and also voluntarily caused injury to the deceased by means of a deadly weapon. On the strength of the aforesaid set of findings, the learned trial Judge convicted the appellant for offence punishable under section 302 and 324 IPC and sentenced him as aforesaid. 8. Feeling aggrieved by the aforesaid judgment and conviction order of the trial court, the appellant has preferred this appeal before this Court. It has been mainly argued here that the two eye witnesses relied upon by the trial court were not reliable eye witnesses and, therefore, he has committed serious error in accepting them as true and genuine eye witnesses. It has also been contended that the genuineness of the evidence of the eye witnesses has not been properly appreciated and it is not possible that the deceased would receive 33 injuries on his person and till then nobody had reached there. It has further been contended that even though it is a case in evidence of the prosecution that the appellant had branded with pickaxe on different parts of the person of the deceased and though the deceased had put on a jersey with sleeves, no black mark or burn mark was found on the clothes of the deceased which would seriously doubt the genuineness of the case of the prosecution. It has also been contended that there were other witnesses who have not been examined by the prosecution. It is further contended that it is not probable that one person would go on heating the pickaxe very frequently and then would go on placing it on different parts of the body of the deceased and then that would result injury marks which are 33 in number. That if the appellant intended to cause death of the deceased, he would have hit the deceased by means of pickaxe. It is also in evidence that along with the pickaxe, an axe was also lying by the side of the deceased at the time of the offence and therefore, it has been contended that the appellant could have used the said axe for killing the deceased if at all he wanted to kill him. It has also been contended that Manji Kala has been cited as an eye witness but his name has neither been conveyed to the police in FIR nor in oral testimony of the informant in the trial court it has been mentioned. Therefore, the presence of Manji Kala is doubtful. Even the conduct of the daughter of the deceased is doubtful and the delay in filing FIR would also show that there was some concoction in the factual aspects of the case with a view to falsely implicate the present appellant in commission of a serious offence of murder. It has also been contended that if the deceased had a land dispute with the appellant and same way he had some dispute with Manji Kala and, therefore, the appellant has been wrongly involved in the present offence. It has, therefore, been contended that these aspects have not been properly appreciated by the trial court. That therefore, the judgment and conviction order are illegal and deserve to be set aside. 9. The appellant has, therefore, claimed that the present appeal be allowed, the judgment and conviction order recorded by the trial court be set aside, the appellant may be acquitted of the offence punishable under section 302 and 324 IPC and he may be set at liberty forthwith. In the alternative, it has been claimed that the prosecution has suppressed genesis of the entire episode and looking to the conduct of the witness and looking to the nature of the injury sustained and looking to the other circumstances, at least it may be held that the prosecution has not proved its case against the appellant beyond reasonable doubt and, therefore, benefit of doubt may be extended to the appellant. 10. On receiving the appeal, it was admitted. However, the prayer for bail was rejected. At the final hearing, the matter has been extensively argued on behalf of the appellant by learned Advocate Mrs. Shilpa Unwala. On the other hand, Mr S S Patel, learned APP has supported the judgment. 11. As said above, the case of the prosecution before the trial court was that there was some land dispute between the deceased and the appellant and on account of the said dispute, the appellant caused severe injuries to the deceased by branding with pickaxe and as a result of which the deceased died. The prosecution has examined Dr.Pravinchandra Sheth at Exh.30 who has produced and proved post mortem note at Exh.35. Evidence of the Medical Officer and the post mortem note clearly shows that the deceased died on account of shock produced by stoppage of heart and due to blows on chest and burns on body. 12. The above evidence clearly indicates that the deceased died a homicidal death. Even before the trial court, the fact that the deceased died a homicidal death was not seriously disputed. Same way, before this Court also this issue has not been seriously disputed though an attempt was made to show that the deceased died a natural death on account of heart attack. But in view of the evidence on record, it is not possible to accept the same. Therefore, the trial court has also observed that the deceased died a homicidal death. Even this court also finds the said findings of the trial court does not appear to be incorrect and therefore, the said finding is required to be confirmed. 13. The next question will be as to whether the said injuries were really caused to the deceased by the present appellant. In this connection, the prosecution has examined two witnesses. First is Savitaben, PW 1 Exh.12. She is the daughter of the deceased. She was staying with the deceased, two brothers and mother. Their house was situated in the field where the offence is said to have been committed. She has deposed before the trial court that she was grazing her goats in her field and the deceased was repairing hedge on the boundary line of the field. She has further deposed that when the deceased was repairing the hedge, the appellant was found branding the deceased with pickaxe. She has also deposed that the appellant heated the pickaxe and placed it on the head of the deceased also. That similarly, the deceased was also branded by the appellant by means of heated pickaxe on his hand, chest, left leg, right leg as well as on his abdomen. She has further deposed that the deceased raised shouts and therefore, she rushed to him and when she reached the spot, the deceased was lying on the ground and the appellant had run away from the said place. 14. Almost similar evidence has been given by another eyewitness Manji Kalaji, PW 2 at Exh.14. He has also stated that when he was at his house in his field adjoining to the field in which the incident took place, he heard shouts from the direction of the house of the deceased. Therefore, he came out of the house and saw that the appellant was branding the deceased by means of pickaxe. He has further deposed that the deceased was killed by the appellant and PW 1 Savitaben had arrived there. She has further stated that even Laxmiben, widow of the deceased had also arrived there. 15. Incidently, it may be stated that Laxmiben was wife of the deceased. She was shown as eye witness. However, before the commencement of trial, she died and, therefore, she naturally could not be examined as a prosecution witness. The record shows that death certificate of the deceased has also been produced on record by the prosecution for confirmation and information. 16. Any way, these are the two eye witness who have been brought to the Court by prosecution with a view to prove that the deceased was branded with pickaxe by the appellant and, therefore, the present appellant had caused death of the deceased. 17. Now, it is required to be considered that so far as PW 2, Manjibhai the appellant is concerned, his name has not been mentioned in the FIR as argued by the learned Advocate for the appellant. The FIR has been produced at exh.13 and it has been proved through oral evidence of the informant herself. On going through the FIR it becomes clear that though the names of other persons have been indicated in the FIR, the name of the aforesaid eye witness is significantly absent in the aforesaid FIR. The informant does not clarify as to why the name of the said eye witness has not been mentioned in the FIR. 18. Another aspect of the case is that the informant has tendered evidence before the trial court as PW 1 at Exh.12. There also she has not disclosed presence of Manji Kala as eye witness. It is required to be considered that the name of the said witness has not been mentioned at all by this witness as eye witness during the course of her lengthy cross-examination. On the one hand, name of the said witness has not been shown by the informant as eye witness during the course of evidence, on the other hand, she has also not stated that the said witness had come to the spot soon after the incident was over. 19. It may happen that a rustic village girl of 22 years of age may not disclose names of all the witness when FIR is filed. It is more so, when she filed the FIR after seeing her father being killed. On the other hand, the evidence was recorded about 2 years after the incident had happened. At least at that point of time she was mentally steady and, yet, she was not in a position to give full account of the incident which took place in her presence. Even her evidence shows absence of the name of the said witness as an eye witness or as a witness who had arrived at the spot after the death of the deceased. This shows that reasonable doubt has been created on the point as to whether Manji Kala was really an eye witness to the incident. 20. If we turn to the evidence of Manji Exh.14, then also we find that he has clearly deposed that when he came out of his house on hearing the shouts of the deceased, he noticed that the appellant was giving pickaxe blow, on the person of the deceased. In order to appreciate the evidence of this witness, it would be appropriate to refer to the medical evidence on the subject. The prosecution has examined Dr.Pravinchandra Sheth, PW 6 Exh.33. According to the evidence of this medical expert, he had noticed not less than 33 injuries on the person of the deceased when he had undertaken the post mortem examination of the deceased. It is required to be considered that according to the evidence of this witness, all the injuries were superfluous and there was no internal injury noticed by him when internal examination of the dead body of the deceased was undertaken. 21. If the deceased was really hit by means of pickaxe, then naturally there would be injuries on the person of the deceased and these injuries would penetrate the skin of the deceased also. However, the evidence of medical expert is very clear and there it has been clearly mentioned that there was no internal injury noticed when the internal examination was undertaken. This clearly indicates that the injuries sustained by the deceased could not have been caused as a result of blows being dealt at him particularly when the allegation in the evidence is that the deceased was hit by means of pickaxe. 22. It is not much in dispute that a pickaxe is an iron instrument. It is heavy in weight and when blow is dealt by means of pickaxe, then naturally there would be injuries penetrating the skin of the deceased. In the present case, we find that the injuries were superfluous and the injuries were on the surface of the body of the deceased and they had not penetrated the skin of the deceased. This would clearly indicate that the deceased could not have been hit by the appellant or by someone else by means of a pickaxe which is an iron instrument. In other words, the evidence of Manji Kala at Exh.14 becomes doubtful when he says that the deceased was found hit by the appellant by means of iron pickaxe. 23. Another aspect of the case is that though Manji Kala Exh.14 has deposed before the trial court that the deceased had burn injuries on his person, the evidence of this witness does not disclose that he had seen the appellant heating pickaxe and then causing injuries to the deceased by means of the said heated pickaxe. 24. On the other hand, the informant has deposed before the trial court that the appellant was seen placing the pickaxe on fire and then placing the same on different parts of the body of the deceased. On the one hand, the informant says like this, on the other hand, another eye witness Manji Kala Exh.14 does not say so. It is true that there were burn injuries on the person of the deceased when examined by the Medical Officer referred to hereinabove. However, the fact that the heated pickaxe was placed on different parts of the body of the deceased was stated in evidence by the informant and the said fact was totally absent in the evidence of Manji Kala Exh.14. Therefore, there is material contradiction between the evidence of two eye witnesses with respect to material particulars which goes to the root of the case of the prosecution. The aforesaid contradiction has not been explained by the prosecution. Even during the course of judgment, the said contradiction has been properly dealt with by the trial court. Even before this court, the learned APP supporting the judgment of the trial court, has not been able to explain the said contradiction appearing in evidence between the eye witnesses. 25. In the present case, we find only two eye witnesses are there to depose before the trial court. There is no other eye witness who had given evidence before the trial court. Therefore, when there were only two eye witnesses before the trial court and when there are material contradictions on material particulars, then it would be difficult to accept the evidence of either of the two. In that view of the matter, it would be necessary to seek corroboration to the testimonies of the aforesaid two witnesses. This court is aware of the fact that when eye witnesses have tendered evidence and even if they are closely related to the deceased, it would not be necessary to reject their testimonies on the ground that the witnesses were related to the deceased. 26. At the same time, when it is found that there are contradictions on material particulars between the evidence of two eye witnesses and when there is no other eye witness available to the prosecution, then in that case, it would be necessary to seek some corroboration to the testimonies of these two witnesses. 27. Now, so far as the evidence of Manji Kala is concerned, his evidence as referred to hereinabove, has been contradicted by the medical evidence. It is more so, when it is not even the case of the informant that the deceased was hit by pickaxe by the appellant. Therefore, on the one hand, the evidence of Manji Kala Exh.14 does not get corroboration from the evidence of the informant, on the other hand, his evidence stands contradicted by the medical evidence referred to hereinabove. This would show that the evidence of Manji Kala Exh.14 is doubtful and, therefore, even his presence at the time and place of