IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 864 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE J.N.BHATT and MR.JUSTICE A.M.KAPADIA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? - to all Courts taking up Criminal cases in Gujarat. -------------------------------------------------------------- AAMED @ KALU ABDULBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PM THAKKAR for appellants MR KP RAVAL APP for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE J.N.BHATT and MR.JUSTICE A.M.KAPADIA Date of decision: 18/11/98 ORAL JUDGEMENT (Per J.N. Bhatt, J.) 1. The imprisonment of life imposed upon the appellant No.1 - Aamad alias Kalu Abdulbhai Majothi and appellant No.2 - Akbar Abdulbhai Majothi/ original accused Nos.1 and 2 ("A-1 and A-2", for short, respectively), on being found guilty for having committed offences punishable under Section 302 and Section 504, read with Section 114 of Indian Penal Code ('IPC' for short) and also under Section 37 (1) read with Section 135 of the Bombay Police Act, 1951 ('the Act' for short), by learned Additional Sessions Judge, Rajkot, in Sessions Case No. 82 of 1990, by judgment and order passed on 30.9.1991, is in the focus in this appeal under Section 374 (2) of the Criminal Procedure Code, 1973 ('Cr.PC' for short). 2. A short spectrum of material facts arising from the prosecution case, needs articulation, so as to appreciate the merits of the appeal at the instance of the original accused and challenge by the respondent State. 3. Original accused Nos.1 and 2 are brothers and they are also brothers-in-law of the elder brother of deceased Kasam Osman Majothi. The incident in question occurred, on 22.8.1990, between 10.30 A.M. to 11 A.M., near Street No.4, Ranchhodnagar Society, near Dhiraj Pan House, on Kuwadwa Road, near City of Rajkot. One prosecution witness, Jummabhai Noormohmed Majothi, is the complainant, who reached Rajkot alongwith relative of deceased Kasam, on 21.8.1990. The complainant, Jummabhai and deceased Kasam stayed at the residence of one Abdulbhai. 4. On the next day, i.e., 22.8.1990, at about 9.30 A.M., the complainant, alongwith the deceased, halted at the office of "Maha Gujarat Transport Company" which was enroute to the office of "Kailash Transport". The deceased had communicated with some persons in the office of Maha Gujarat Transport Company. At about 10.30 A.M. on the same day, both the accused persons came there in a rickshaw and called deceased Kasam outside the said office and started quarrelling with the deceased. The accused persons asked the deceased to accompany them in a rickshaw to which the deceased agreed. The complainant and both the accused persons, after sitting in the rickshaw, when reached near the scene of offence, A-2 Akbar dealt a knife blow on the waist of the deceased, below the neck, and A-2, Kalu, also gave a blow with the help of a knife, which is mentioned as "Gupti", on the person of the deceased. The deceased was profusely bleeding and sustained serious injuries and, therefore, he was shifted to Civil Hospital, Rajkot, by the complainant. 5. The prosecution has also ascribed the motive for the commission of the crime in question. In that, it was alleged that the deceased Kasam had given slaps to his brother's wife, Zarina, and, therefore, there was animosity. However, an amicable settlement was reached between the deceased Kasam and the brothers of Zarina, who are the accused persons. In short, it is the prosecution case that since the deceased Kasam had beaten Zarina, the accused persons, who are her brothers, entertained an animus to take vengeance, which, according to the prosecution, culminated into homicidal death of deceased Kasam. 6. Upon the complaint produced, at Ex.42, the offence came to be registered and the investigation was carried out. Upon conclusion of the investigation, charge-sheet followed and after the committal, the Sessions Court, a charge, at Ex.1 came to be framed against the accused persons on 26.4.1991 in Sessions Case No. 82 of 1990 for the offences punishable under Sections 302 and 504 read with Section 114 of IPC and also under Section 37 (1) read with Section 135 of the Bombay Police Act, 1951. 7. To justify the charge against the accused persons, prosecution placed reliance on 17 witnesses and also on the documentary evidence to which reference will be made by us as and when required hereinafter, at an appropriate stage. The trial Court, after evaluating the evidence, the factual scenario, defence of the accused persons and the rival submissions, convicted the accused persons for the offences with which they were charged and sentenced them to suffer rigorous imprisonment for life without recording separate sentence for the offences under Section 37 (1) read with Section 135 of the Bombay Police Act and without recording any sentence for the offence under Section 504 of IPC, by its judgment and order dated 30.9.1991, which is, precisely, under challenge before us in this appeal, at the instance of the original accused persons. 8. Before we examine the merits of the rival contentions raised before us, in extenso, let us have a look at the defence propounded before the trial Court. 9. According to the defence strategy, the accused persons were called by deceased Kasam between 9.30 A.M. to 10 A.M., on the day of the incident, near the office of Maha Gujarat Transport Company, situated, at Kuwadwa Road, near the City of Rajkot, for the purpose of settlement of the dispute, in consequence, whereof, they had gone in a rickshaw. Having seen the deceased Kasam crossing the road, they halted near Dhiraj Pan House. After initial conversation, there was talks for compromise of family discord, followed by heated exchange of words because of which heat was generated and they went into a shop, wherein, tyre tube repairs, puncture, etc., had been done. After having gone inside the said shop, popularly known as "Tyrewala shop", there was a scuffle, in the course of which deceased Kasam took out a knife. Therefore, A-2 picked up a weapon used for soldering tyres from the tube and started wielding for self-defence. However, the owner of the tyre repairing shop pushed them out from the shop. Thereafter, deceased Kasam ran after the accused persons and inflicted one knife blow on the person of A-2, Akbar, resulting into serious injury to him. Thereafter the accused persons went for treatment and could not say what transpired thereafter. It is the pith and substance of the defence propounded by the accused persons in the course of trial, before the trial Court. The trial Court expressed its inability to recognise the plea of private defence and acknowledged the proposition of the prosecution case. Therefore, the impugned judgment and order. 10. Learned advocate for the appellants/ original accused persons, in defence, has canvased following points before us in the course of his marathon submissions: (i) That the prosecution has not been able to prove the culpability in criminology charged against the accused persons beyond reasonable doubt, (ii) That the contradictions in the evidence of eye witnesses and the vague narration of the statement of the deceased before the Executive Magistrate in his dying declaration, would not justify the impugned judgment and order of conviction and sentence' (iii) That the prosecution has to establish its case beyond reasonable doubt notwithstanding the specific plea raised, as a defence strategy, in the course of further statement under Section 313 of the Cr.PC. (iv) That the prosecution case fails on account of non-explanation of injuries sustained by the accused persons. (v) That in the alternative, the nature of offence, even if it is held to be proved against the accused persons, would not fall, in any case, under Section 302 of IPC and at the best it would fall within the ambit of Section 304 Part II of the IPC. 11. The aforesaid submissions are controverted by learned Additional Public Prosecutor, who has, fully, supported the impugned judgment and order, inter alia, raising following further contentions: (1) That the evidence of the complainant is quite reliable and is compatible with the main story of the prosecution. (2) That the dying declaration before the in-charge police constable at Civil Hospital, Rajkot, culminating into the intimation to the police station by him immediately after the deceased was brought to the hospital in an injured condition, is not only the recognizable First Information Report under Section 154 of Cr.PC. but is also a dependable first declaration of the deceased, being a dying declaration. (3) That the contradictions highlighted by the defence are at minor level and would not, in any case, dislodge the central theme of the prosecution case. (4) That the dying declaration recorded by the Executive Magistrate and produced, at Ex.39, as it answers all requisite and material components of the provisions of Section 32 (1) of the Evidence Act, could be founded the basis for conviction. (5) That the prosecution has, successfully, accounted and explained the injuries sustained by the deceased. (6) That the evidence of hostile witnesses cannot be thrown overboard in its entirety and, therefore, evidence of prosecution witness, Dawood Hasam, Ex.44, driver of the rickshaw in which the injured Kasam was shifted from the venue of the offence to the hospital, cannot be ignored, as the injuries sustained by the accused persons have been explained. (7) That the evidence of the complainant and the eye witness Govind Arjan also support and corroborate the prosecution main theme. Therefore, the impugned judgment and order of the trial Court does not warrant interference of this Court. 12. Since the aforesaid rival contentions and submissions are interlinked and inter-dependable and with a view to avoid repetition of the narration of the evidence, we propose to deal with and discuss the same simultaneously. 13. The following facts which have remained unimpeachable from the record of the prosecution case, may be highlighted at this juncture: (i) Accused persons are real brothers and they are brothrs-in-law of the elder brother of deceased Kasam. (ii) Deceased and the accused persons were working as drivers. (iii) The main incident preceded by a quarrel culminating into family discord due to slapping by the deceased Kasam to Zarina, the sister of the accused persons, which, of course, was conciliated upon and settled. (iv) Deceased Kasam has died a homicidal death. He had sustained in all five injuries on his person out of which two injuries were grievous and inflictable by sharp cutting instrument like knife. Of course, remaining three injuries were minor in nature, in view of the medical evidence of P.W.1, Dr. Parsottambhai Meghjibhai, who was working as a Medical Officer, at the relevant time in the Civil Hospital, Rajkot City. (v) P.W.1, Dr. Parsottambhai Meghjibhai, was examined, at Ex.31, in whose evidence the post mortem report is produced and proved, at Ex.32. There were five external injuries and three internal injuries as per the post mortem report. The grievous injuries sustained by the deceased were possible by sharp cutting instrument like knife or "Gupti". (vi) The cause of death of deceased Kasam was traumatic shock due to massive intra-abdominal haemorrhage after sustaining injuries to vital organs like (i) left kidney, (ii) renal vessels, (iii) mesentera, (iv) small intestine, (v) colon and (vi) stomach. Thus, as per the medical evidence, vital parts of the body of the deceased had sustained grievous injuries which culminated into homicidal death of deceased Kasam. (vii) A-1, Kalu, had sustained two injuries. He was examined at about 10.30 A.M. in the Civil Hospital, Rajkot, by P.W.2, Dr. Ashok S. Mehta, at Ex.33. As per medical certificate, A-1, Kalu, had sustained following injuries: (i) Linear Sup. abrasion 4" long below left shoulder. (ii) Sup. abrasion 1/2" x 1/2" on the base of left thumb. (viii) A-2, Akbar, had also sustained injuries. P.W.3, Dr.Bharat H. Trivedi, who was examined, at Ex.35, had examined A-2, Akbar, on 22.8.1990, at about 2.55 P.M. in Civil Hospital, Rajkot, and noted following injuries: (i) Incised wound 1" x 1/2" on left shoulder, oblique. (ii) Stitched wound 1" on chin. (iii) Linear of 4" on lower lip with swelling. (ix) That P.W. 7, Dawoodbhai Hasambhai, Ex.44, was the driver of the rickshaw in which, immediately, after the incident, in a blood stained and wounded condition, deceased Kasam was shifted alongwith the complainant Jummabhai Noormohmad, to the Civil Hospital, at Rajkot. (x) The in-charge police constable of Civil Hospital Police Chowki, Maganbhai Nanjibhai, P.W.9, Ex.50, was informed by the Medical Officer, Civil Hospital, Rajkot, about the admission of injured Kasam in emergency ward and he recorded the information given by injured Kasam in the police station diary which is, as such, a dying declaration, and the same is produced, at Ex.51, and the intimation whereof was communicated to "B" Division Police Station, Rajkot. A copy of the police station diary entry No.13 of 1991, recorded by the PSO, "B" Division Police Station, Rajkot, is produced, at Ex.64. A copy of the police station diary is produced, at Ex.66. (xi) Pursuant to the request of the investigating officer, after recording the offence against the accused persons, the Executive Magistrate, P.W.4, V.B. Vasoya, who was examined, at Ex.37, recorded the dying declaration of injured Kasam between 1.40 P.M.on 22.8.1990. (xii) A-2, Akbar, had also lodged a complaint against the deceased which was produced, at mark 10/35. (xiii) That the discovery of weapon known as "Gupti" (muddamal article No.10) by accused No.1, Kalu, was made after drawing a panchnama in that behalf. The said weapon was discovered from the District Garden. Of course, both the panchas have turned hostile. Therefore, it is proved in the evidence of the investigating officer. The Muddamal Article No.7, knife, was recovered from the accused No.2, Akbar, at the time of his arrest. (xiv) Reports of Forensic Science Laboratory are produced, at Ex.29 and serological report is produced, at Ex.30. It is found from the said reports that blade portion of each weapon, on both sides, was found tainted with human blood in 3 1/2 cm. part. 14. Since homicidal death of deceased Kasam has been, unquestionably and unimpeachably, established, next it would lead us to examine and appreciate who are the authors of the crime of homicide. The trial Court, upon analysis and appraisal of the evidence, has, unequivocally, held that the authors of the culpable homicide of deceased Kasam are the accused and only the accused persons, without any doubt, which is, seriously, criticised by the defence. Although the defence of the accused persons is of exercise of right of private defence, the prosecution is obliged to prove its case beyond reasonable doubt. Weakness of the defence strategy cannot augment the strength of the prosecution case. It is for the prosecution to prove the culpability of the accused persons beyond reasonable doubt. We are, therefore, in complete agreement with the submission on this proposition. However, the irresistible proposition from the entire records would emerge is that the accused persons were present and there was exchange of hot words followed by a fight which culminated into the, unfortunate, demise of deceased Kasam. The prosecution witness, complainant, Jummabhai Noormohmed, examined at Ex.41, has in clear terms testified that the main incident had preceded slapping of Zarina by deceased Kasam and, therefore, there was quarrel between the accused persons, who are brothers-in-law of the elder brother of the deceased, and the deceased Kasam. He has also supported the prosecution case about infliction of blow by the accused persons. He had gone to police station for lodging complaint immediately after the incident. The complaint is produced, at Ex.42. Thus, the complaint was lodged with utmost promptitude and without loss of any time. Evidence of the complainant is criticised, being contradictory, to which we plead our inability to agree. There are minor contradictions, but the main theme of the prosecution case is that the accused persons, who are armed with sharp cutting instruments like "Gupti" and knife, had used the same and caused such injuries on the deceased Kasam, which culminated into his homicidal death. The main anxiety while scrutinising the evidence is to find out as to whether the main theme of the prosecution is established to the hilt or not. A few minor contradictions here and there for variety of reasons, including delay in recording evidence after the incident, are as such inconsequential and insufficient to discard the testimony of the complainant, Jummabhai Noormohmad. Therefore, the criticism and the resultant submission that the evidence of the complainant does not help the prosecution, is not acceptable. No doubt, because of relationship with both the parties, the complainant had difficult and delicate situation. Nonetheless, in so far as the main theme of the prosecution case is concerned, the complainant's testimony has remained unshaken. 15. The complaint lodged by the complainant, P.W.5, Jummabhai Noormohmad, is produced, at Ex.42. It was lodged at the earliest point of time, without any delay. The complaint came to be recorded, at about 1.30 P.M., whereas, the oral dying declaration was recorded prior in point of time, in the police station diary, by P.W.9, Maganbhai, examined, at Ex.50, who was incharge of the police chowki in the Civil Hospital, at Rajkot, at the relevant time and who was summoned by the Medical Officer immediately on admission of the deceased Kasam in an injured condition in the emergency ward, in Civil Hospital, Rajkot. Maganbhai Nanjibhai went to the emergency ward at about 11.25 A.M. on the same day pursuant to the request of the medical officer and on making inquiry from the injured Kasam, he narrated the incident which was noted down by P.W.9, Maganbhai Nanjibhai, in the police station diary and it was communicated to "B" Division Police Station, Rajkot. The statement of the injured Kasam recorded at about 11.25 A.M. on the same day, by Maganbhai Nanji, who was examined at Ex.50, is, as such, a dying declaration, and the same is produced at Ex.51. This answers all the material conditions of the provisions of Section 154 of the Cr.PC. The trial Court, therefore, ought to have considered, Ex.51, being first in point of time, as information about commission of a cognizable case. In our opinion, therefore, Ex.42, the complaint recorded at about 1.30 P.M. on the same day, as narrated by the complainant, P.W.5, Jummabhai Noormohmad, cannot be characterised as First Information Report under Section 154 of the Cr.PC. We, therefore, find much substance in the contention propounded by learned Additional Public Prosecutor, Mr. Raval. 16. Ex.51, a note, as narrated by the deceased, would, obviously, become a dying declaration in view of the clear provisions of sub-section (1) to Section 32 of the Evidence Act, though it is the First Information Report under Section 154 of Cr.PC. It is a statement of deceased Kasam as to the cause of his death, or, at the best, as to on what circumstances a major mishap or episode which resulted into his death, took place. Therefore, such a statement of the deceased is a relevant evidence. Though hear-say evidence, untested and unsworn, it is a material evidence in the armoury of the prosecution under Section 32 (1) of the Evidence Act. So is the case of the statement recorded by Executive Magistrate, P.W.4, V.B. Vasoya, who is examined, at Ex.37. He was summoned by the police for recording dying declaration. Being Executive Magistrate, immediately he rushed to the hospital and after observing necessary formalities and procedure, recorded the dying declaration of deceased Kasam, which is produced, at Ex.40. Both the dying declarations, produced at Ex.51 and Ex.40, recorded by police constable Maganbhai and Executive Magistrate respectively, unequivocally, connect the accused persons with the authorship and the complicity which resulted into death of Kasam. 17. Now the question which would emerge for our consideration, at this stage, would be whether the aforesaid two dying declarations are acceptable and dependable. After having assessed the evidence of the prosecution and considering relevant proposition of law with regard to dying declaration, we are of the clear opinion that both the dying declarations are trustworthy and dependable. It is a settled proposition of law that conviction can be founded even on the sole dying declaration of the deceased, if it is, successfully, noticed to be voluntary, true, unprompted and natural version of the deceased with regard to the incident which resulted into his death. We are satisfied from the record of the present case that statement recorded by the Executive Magistrate, which is in question and answer form, is a natural and true version of the deceased, who was mentally fit to make statement with regard to the incident. The Executive Magistrate is an independent person against whom no allegation is levelled. From the record of the present case, we find that the Executive Magistrate started recording the dying declaration of the injured Kasam, after the Medical Officer in-charge put his signature as a token of certifying the mental condition and fitness of the injured to make statement, and the dying declaration recorded by the Executive Magistrate, as narrated by the injured, is true and natural version of the deceased. Both the dying declarations are completely compatible and in accordance with the prosecution case. 18. Needless to emphasis that dying declarations need not be in a detailed and meticulous form of a regular statement. There is no prescribed form of recording the same. The main anxiety of the Court, while assessing the dying declaration, is to see that the version emanates from the dying declaration is unprompted, untutored, voluntary, rational and reasonable statement of the deceased and relatable to the circumstances which resulted into final voyage of his life. The relevance of dying declaration, though, of course, is an unsworn, uncouched, untested one, is only because of the fact that it is made by a man who is sinking. The fast approaching death lends authenticity to such statement. 19. After having taken into consideration the relevant and dependable two dying declarations with regard to authorship of the crime, coupled with the evidence of complainant, P.W.5, Jummabhai Noormohmad, at Ex.41, evidence of eye witness, P.W.6, Govind Arjan, at Ex.43, and the medical record proved and the reports of Forensic Science Laboratory, we have no hesitation in finding that the accused persons and nobody else were the authors of the complicity charged against them in so far as the homicidal death of deceased Kasam is concerned. 20. The prosecution has, successfully, beyond reasonable doubt, established that the accused persons inflicted knife blow and Gupti blow on the person of deceased Kasam which resulted into profuse bleeding due to cutting of left kidney, renal vessels, mesenteras, small intestine, colon and stomach of deceased Kasam and that caused not only traumatic shock but massive intra-abdominal haemorrhage resulting into death of deceased Kasam. Uninfluenced by the plea recorded in the further statement by the accused as defence strategy, we have, successfully, found from the appraisal of the evidence on record that the plea of private defence propounded by the accused persons in further statement under Section 313 of Cr.PC. is not only not proved but is disproved by the proved factual scenario. It is a settled position of law that the person who raises the plea or propounds recourse to any one of the exceptions, is obliged to prove the same. Section 105 of the Evidence Act makes it clear that the burden of proof that the case of the accused falls within an exception is on the accused. The plea of private defence, therefore, must be proved by the accused. Section 105 of the Evidence Act reads as under: "When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the