IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 158 of 1991 For Approval and Signature: 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 Civil Judge? : NO -------------------------------------------------------------- RABARI KHETABHAI PABABHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 158 of 1991 MR DK ACHARYA for Petitioner No. 1 MR MA BUKHARI, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH Date of decision: 16/01/2002 CAV JUDGEMENT #. This is an appeal against the judgement and conviction order dated 31.1.1991 recorded by the learned Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No.168 of 1990 in which the learned Additional Sessions Judge convicted the present appellant for the offence punishable under section 304, Part II of IPC and sentenced him to suffer RI for 5 years. The appellant was further directed to pay a fine of Rs.300/-. He was also directed to undergo RI for two months in case he did not pay the fine. #. The facts of the case of the prosecution against the present appellant may be briefly stated as follows.: #. On 9.5.1990 at about 1.00 p.m. deceased Ratnabhai Karamsibhai was taking his food under a neem tree near a water tank at village Santalpur in Banaskantha District. His cattle were sitting under the neem tree by the side of him. At that point of time, the present appellant and his two brothers - Rabari Vashrambhai Pababhai and Rabari Velabhai Pababhai arrived there with sticks in their hands. They asked the deceased Ratnabhai Karamsibhai to remove his cattle from the said place so that the appellant and his brothers could allow their cattle to sit there. At that time, the deceased refused to obey the said directions of the appellant and his two brothers. Therefore, the appellant dealt stick blow on the head of the deceased. Thereafter, other two brothers also dealt stick blow on the deceased. Same-way, the father of the deceased was also present there at that time. A stick blow was dealt on his person also. Even the brother of the deceased who was present there also sustained injuries at the hands of the aforesaid accused persons. Thereafter, informant raised shout. The appellant and his brothers ran away from the said spot. The deceased had head injury and had fallen on the ground. His injury was bleeding. Thereafter, a motor vehicle was engaged and the deceased was taken to Santalpur hospital. However, a doctor was not available at the said place, and therefore, the deceased was taken to Radhanpur hospital. Sister of the deceased namely Naviben Karamsibhai lodged the FIR at about 7.30 p.m. at Radhanpur police station. #. The offence was registered at "0" number, since the offence fell within the territorial jurisdiction of Varahi Police Station. The FIR was transferred to Varahi police station and it was registered there. After the registration of the offence at Varahi police station, the Investigating Officer undertook the investigation. The panchnama of the scene of the offence was drawn. The muddamal articles were recovered. The appellant and two other accused persons were arrested. The statements of the witnesses were recorded. The dead-body of the deceased was sent for post-mortem and appropriate reports were collected. At the conclusion of the investigation, chargesheet was filed against the present appellant and his two brothers for the offence punishable under sections 302, 323 read with section 34 of IPC as well as for the offence punishable under section 37(1) read with section 135 of the Bombay Police Act for carrying weapons in contravention of the notification of the District Magistrate of Banaskantha District. #. Since the offence punishable under section 302 of IPC was exclusively triable by the court of Sessions, the learned Magistrate committed the case against the appellant and two other accused persons to the court of Sessions. #. The learned Additional Sessions Judge in charge of the case, supplied the copies of the police investigation papers to the appellant and two other accused persons, charge was prepared and framed at Exh.4 for the aforesaid offences. It was read over and explained to all the three accused persons, they pleaded no guilty to the said charge, and therefore, the learned Additional Sessions Judge proceeded to record the evidence against the appellant and two other accused persons. At the close of the evidence, further statements of the accused persons were recorded under section 313 of the Code of Criminal Procedure, 1973. The three accused persons pleaded not guilty and contended that, false case was filed against them. The arguments were heard and at the end of the trial, the learned Additional Sessions Judge found that the present appellant could not be convicted for the offence punishable under section 302 of IPC. However, the learned trial Judge found the appellant guilty for the offence punishable under section 304, Part II of IPC and punished him as aforesaid after hearing the appellant and other accused persons on the quantum of punishment. #. Two other accused persons were also sentenced to suffer SI for one month and were directed to pay a fine of Rs.200/- and in default of payment of fine, they were required to undergo further SI for one month for the offence punishable under section 323 of IPC. They were, however, not convicted for the offence punishable under section 302 read with section 34 of IPC. #. Feeling aggrieved by the aforesaid judgment and conviction order of the learned Additional Sessions Judge, the present appellant - accused No.1 preferred this Criminal Appeal before this Court. The main contentions of the appellant before this Court are that the learned Additional Sessions Judge has committed serious error in appreciating the evidence. That entire story against the appellant has been fabricated. That there was no person present at the time when the deceased sustained injuries, and therefore, false FIR has been filed naming the appellant as the person who had dealt stick blow on the person of the deceased. That even the local situation shows that there was a slope and the blood was found almost at the top of the slope which is at the distance of about 57 feet from the place where the tree is situated under which the deceased was allegedly taking his food at the time of commission of the offence. That it is highly improbable that the deceased could have climbed the distance of 57 feet after receiving the injuries. That therefore entire episode as suggested by the prosecution witnesses is improbable indicating that the prosecution witnesses were not the eye witnesses. It is also contended that, except the evidence of interested witnesses, there is no independent witness corroborating their evidence, and therefore, the trial Court ought to have rejected their evidence. That on the whole, the judgment and conviction order of the learned Additional Sessions Judge are illegal and erroneous and deserve to be set aside. It is, therefore, prayed that the present appeal be allowed, the judgment and conviction order against the appellant be set aside, the appellant be acquitted of the charges levelled against him and he may be set at liberty forthwith directing the cancellation of bail bond presented by him. #. The appeal was admitted and the appellant was released on bail by an order dated 20.3.1991. Therefore, the appellant is on bail at present pending hearing and disposal of the appeal. ##. At the hearing, Mr.D.K.Acharya, learned advocate argued the matter on behalf of the appellant. On the other-hand, the State was represented by Mr.M.A.Bukhari, learned Additional Public Prosecutor. They have argued the matter at length and they have also taken me through the oral and documentary evidence as well as findings and reasonings recorded in the judgment by the learned trial Judge. ##. Two other brothers of the present appellant who were also accused before the trial Court in Sessions Case No.168 of 1990 and who were also convicted by the learned Additional Sessions Judge as above, have not preferred an appeal and they have undergone their sentence and have paid their fine as per the statement made by the learned advocate for the appellant. Therefore, we are required to deal with the present appeal involving the present appellant who has been sentenced as above. ##. In order to prove the case against the present appellant, the prosecution has examined the following witnesses before the trial Court. (i) PW-1 Dr.Vaishnav Exh.11 (ii) PW-2 Keshavlal Thakore Exh.17 who prepared the sketch. (iii) PW-3 Naviben Karamsibhai Exh.20 sister of the deceased and informant. (iv) PW-4 Chhaganbhai Merabhai Harijan Exh.23 panch witness who turned hostile. (v) PW-5 Arjan Karamsibhai Exh.28 brother of the deceased and eye witness No.2. (vi) PW-6 Vasudev Aaditram Exh.29 panch witness (vii) PW-7 Ranjitsing Sardarsing Exh.34 Head Constable, Radhanpur Police Station who recorded the FIR. (viii) PW-8 Karamsibhai Virabhai Exh.37 father of the deceased and injured eye witness no.3. (ix) PW-9 PSI Shri Pritvirajsinh Sarvaiya Exh.38 who conducted the investigation. ##. So far as the death of the deceased is concerned, there was no serious dispute before the trial court. Similarly, there was no serious dispute before me when the matter was argued at length by Mr.D.K.Acharya, learned advocate for the appellant. It is in the evidence that the deceased was found in injured condition when he was taken to the hospital. It seems that, the deceased actually died before he could reach the hospital at Radhanpur. He was declared dead at that point of time. Dr.Vaishnav Exh.11 had clearly stated that the deceased had injuries on his front left part of the head and there was linear fracture. The said internal injury was corresponding to the external injury referred as above. The doctor has also produced the post-mortem note Exh.13 wherein it has been clearly stated by the doctor that the deceased had died on account of external haemorrhage followed by the head injury. This clearly indicates and proves that the deceased died a homicidal death. The trial court has also recorded its finding accordingly and there is no room for doubting the said findings of the trial court. ##. As regard the actual happening, we can find the evidence of the informant - Naviben Karamsibhai - PW-3 at Exh.20. According to her evidence, she had gone with her younger brother for providing food to her brother Ratna and father - Karamsibhai who had gone to graze their cattle. She had deposed that, she reached at the spot at about 1.00 p.m. and she had served the food to the deceased Ratna and father Karamsibhai. That both were sitting under the neem tree by the side of the water tank. That at that time, the present appellant and his two brothers Vashram and Vela arrived their at the spot and asked the deceased to take away the cattle sitting under the said neem tree. The appellant and his brothers wanted their cattle to sit under the said neem tree, and therefore, they wanted to remove the cattle of the deceased from the said place. The deceased replied that, he was taking his food and he would not take away his cattle from the said place. At that time, all the three accused persons started beating the deceased with their sticks. That the appellant dealt a stick blow on the head as well as on the right hand of the deceased. That the deceased tried to run away from the said place, but the appellant and his brothers threw him on the ground. That at that time, the deceased was climbing the slope to reach the top. The witness has further stated that, her father Karamsibhai and brother Arjan also tried to intervene and the accused nos.2 and 3 had dealt stick blows on their persons. That she raised shout, and therefore, the appellant and other accused persons ran away from the said place. She made it clear that, she did not know as to where they run away and whether they took away their sticks with them or not. That thereafter, Chhaganbhai Merabhai, Vasudevbhai and other persons had arrived there. 14.1 The witness has been cross examined at length. Efforts were made to show that the witness was not present when the incident took place. However, on going through the cross examination of the witness, it becomes clear that the witness has stood the test of cross examination and her evidence has not been shaken to any extent. 14.2 Her evidence has been amply corroborating by the FIR which was filed by her at about 7.30 p.m. at Radhanpur Police Station. This shows that the FIR has been filed without any loss of time. It is required to be considered here that the deceased was first taken to Santalpur for his treatment, but no doctor was available there, and therefore, the deceased was taken to Radhanpur hospital. Therefore, these facts themselves are sufficient to explain some sort of delay which has been caused in filing the FIR. Therefore, it is clear that the FIR has been filed by Naviben sister of the deceased without any loss of time. 14.3 The FIR clearly supports and corroborates the testimony of the informant - Naviben. There is no material contradiction/omission or material improvement in her evidence. The FIR clearly shows that the incident took place as stated by her in her evidence. It also shows that the present appellant had dealt, forcefully, the stick blow on the head of the deceased, and therefore, the deceased had fallen on the ground. She has further stated about the injury caused by two brothers of the appellant to the brother - Arjan and father Karamsibhai. ##. Then we can take the evidence of her brother Arjan at Exh.28. He also stated that, he, in the company of his sister, had gone to provide the food to their brother and father. That both of them were taking their food under the neem tree and cattle were sitting under the tree. That when the father and the brother were taking their food, the appellant in the company of two other accused persons arrived there and they asked the deceased to take away his cattle from the said place. He has further stated that the deceased told the appellant and his brothers that he was taking the food, and therefore, he would take away the cattle after he finished his food. He also told that the neem tree did not belong to them. At that time, according to him, the appellant got angry and started hot exchange of words. That the appellant and the deceased both were moving towards the top of the slope. That thereafter the appellant dealt a stick blow on the head of the deceased, and therefore, the deceased had fallen on the ground. That he, his sister and the father tried to intervene at which the accused No.2 Vashram dealt stick blow on his right thigh and another accused - Vela dealt a stick blow on the left knee of the father. That he and the father both had fallen on the ground on receiving the said injuries. 15.1 The witness has further stated that shouts were raised at which Chhagan Mera Harijan had arrived at the spot, but the appellant and other accused persons had run away from that place. That the injury of the deceased was bleeding. That thereafter, the deceased was taken to Santalpur hospital in a vehicle, but since the doctor was not present there, the deceased was taken to the Government hospital at Radhanpur where the doctor declared that the deceased had already died. That thereafter sister - Naviben filed the FIR before the police station at Radhanpur. 15.2 The witness is an injured eye witness. His evidence clearly corroborates the oral evidence of his sister - informant Naviben. The witness has been cross examined at length, but nothing fruitful has been derived from the lengthy cross examination. It is true that there are some minor contradictions between his oral evidence and his statement recorded by the police but there is no material improvement noticed in his evidence. ##. The third eye witness is the father - Karamsibhai at Exh.37. He was shown to be 70 years of age. The learned Additional Sessions Judge has recorded that the witness-Karamsibhai was very old and he was found to be physically weak. He was hard of hearing and he found difficulty in understanding the questions put to him. This witness had deposed that he and his son - deceased Ratna were present by the side of neem tree. That his daughter and son - Naviben and Arjan had come to supply food to them. That both of them were taking their food, that at that time the appellant in the company of two other accused persons arrived there. That the accused Vela dealt the stick blow on his person and the appellant Kheta dealt the stick blow on the head of the deceased and killed him. He has also stated that, he has sustained the injury on his left knee which was on account of the stick blow dealt on him by the accused Vela. That thereafter the deceased was taken to the hospital. He stated that, he had not gone to Radhanpur at that time, but he had gone there thereafter. 16.1 The witness has admitted in his cross examination that he was hard of hearing and his vision was also weak. He stated that, he would be able to see an object at the distance of 4 to 5 feet. He also stated that he could go to the upper floor of the court house with difficulty. That he had gone to the water tank at noon hours very slowly. ##. Efforts were made to argue that this witness is a got up eye witness and he had no reason to go to the spot to graze the cattle. ##. It is true that the witness is an aged person. He found difficulty in walking and hearing. His vision is also weak. Looking to the aforesaid physical condition, it is argued that the witness could not be present at the time of incident. ##. Now it is to be seen that, his presence has been disclosed in the FIR itself lodged by rustic village girl without any loss of time. It is true that, the witness was physically weak and he had all possible difficulties as admitted by him, but nevertheless such an old person sometimes may not find it proper or suitable to remain at home for the whole day. It is, therefore, stated that, he had reached there late in the morning. It may be that the witness may not be regularly going to graze the cattle for the whole day, but he may go for the said work on part time basis for a few hours in a day. That may also not be very regular. It would depend upon the physical condition and health of the witness. In that view of the matter, simply because the witness is an aged person and simply because he has physical difficulties, it cannot be said that the witness was not present at the spot and had been got up as eye witness. He could have narrated the entire story in details as has been deposed by his son and daughter. His evidence has very limited facts. He has not described the entire episode in detail. This clearly shows that the witness cannot be treated to be a got up one and his presence at the scene of the offence, therefore, cannot be questioned. ##. When the brother and sister both were eye witnesses and when other witnesses were also examined, it was not necessary for the prosecution to introduce this witness as false and fabricated witness. His version appears to be natural and did support and corroborate to the evidence of his son and daughter to some extent. At the same time, evidence of the son and daughter also corroborates the oral testimony of this witness. ##. It is required to be considered here that, even his evidence has been corroborated by the medical evidence. The witness was examined on 11.5.1990 at Public Health Center at Radhanpur by Dr.Vaishnav at Exh.11 who has clearly deposed that, he had examined the person of the present witness - Karamsibhai and he had noticed that the witness had following injuries on his person: (i) Abrasion on left elbow (ii) Contusion on left knee lat.side. According to the evidence of this medical officer, these two injuries could be caused by a hard and blunt substance and could be cured within 8 to 10 days if no complication occurres. The oral evidence of this witness got corroboration from the certificate issued and produced by him during his evidence. ##. Even the evidence of Arjan has been corroborated by the medical certificate since the doctor has stated that he had examined Arjan and he found abrasion on left side of thigh which could be caused by a hard and blunt susbtance. This shows that the oral evidence of these two injured eye witnesses has been fully supported and corroborated by the independent medical evidence in the shape of oral evidence of Dr.Vaishnav at Exh.11 and his certificates at Exh.15 and 16. ##. Then the evidence of these three witnesses got full corroboration from the oral evidence of Dr.Vaishnav with respect to the injuries on the person of the deceased. Dr.Vaishnav has clearly described the injuries sustained by the deceased while giving oral testimony at Exh.11 which is supported by the post-mortem note Exh.13. ##. So oral evidence of the brother, sister and father of the deceased supports one another and their evidence is supported by the medical evidence in the form of oral testimony of Dr.Vaishnav, post-mortem note and injury certificates. ##. The learned advocate for the appellant had argued at length that there is a slope of nearly 60 ft. and the blood has been found almost at the top of the said slope which is at the distance of 57 ft. from the neem tree under which the deceased is alleged to have been sitting at the time of incident. Mr.Acharya argued that the deceased could not have climbed the distance of 57 ft. after receiving injuries in question. It is also argued that, nobody was present on the spot. That the deceased was killed by some stranger. That the witnesses came to know about the murder of the deceased. That, therefore, false FIR has been filed against the appellant and two other accused persons. ##. Above argument advanced by Mr.Acharya, learned advocate for the appellant did not convince me. It is true that there is a distance of 57 ft. from the neem tree to the place at which the blood was found. Here, we have to consider some important aspects which are brought on record through the evidence of the prosecution. It is undoubtedly true that the distance between the neem tree and the place where the blood was found was 57 ft. and that the said place is almost at the top of the slope. Therefore, one would be required to climb the distance of 57 ft. for going from the neem tree to the place where the blood was found. ##. At the same time, it is required to be considered here that the distance has been measured from the stem of the tree. It is not the case of the prosecution witnesses that the deceased was sitting under the tree touching the stem of