IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 169 of 1997 with CRIMINAL APPEAL No 170 of 1997 with CRIMINAL APPEAL No. 625 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO 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 -------------------------------------------------------------- STATE OF GUJARAT Versus ZINABHAI CHATURBHAI VASAVA -------------------------------------------------------------- Appearance: CRIMINAL APPEALS No. 169/97 & 170/97 MR RM CHAUHAN,APP for the State MR NAVIN PAHWA, Advocate for the respondents-accused CRIMINAL APPEAL NO. 625/97 MR NAVIN PAHWA, Advocate for the appellants-accused MR RM CHAUHAN, APP for the respondent-State -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE J.R.VORA Date of decision: 09/01/2002 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) On a trial held by the learned Additional Sessions Judge, Bharuch, in Sessions Case No. 205/95, the five respondents in Criminal Appeal No. 170/97 were prosecuted of the offences punishable under sections 147, 148, 149, 302 & 504 of the Indian Penal Code as well as section 135 of the Bombay Police Act. The learned Additional Sessions Judge has convicted the respondents no.1 & 2 of the offences punishable under section 304 Part-I read with section 34 of the Indian Penal Code as well as section 135 of the Bombay Police Act and punished them with R.I. for 4 years and fine of Rs. 1000/-, in default S.I. for six months, but acquitted the respondents no.3 to 5 of the offences with which they were charged, by judgment dated December 31, 1996. In Criminal Appeal No.170/97, the State of Gujarat has questioned acquittal of all the five respondents of the offences punishable under sections 147, 148, 149, 302 & 504 of the Indian Penal Code; whereas in Criminal Appeal No. 169/97, the case of the State of Gujarat is that maximum punishment provided under the law ought to have been imposed on the respondents no.1 & 2 for commission of the offences punishable under section 304 Part-I read with section 34 of the Indian Penal Code and section 135 of the Bombay Police Act. Thus, Criminal Appeal No. 169/97 is filed under section 377 of the Code of Criminal Procedure, 1973 for enhancement of sentence imposed on the respondents no.1 & 2. The respondents no.1 & 2 in Criminal Appeal No. 170/97 have filed Criminal Appeal No. 625/97 and questioned the legality of judgment by which they have been convicted of the offences punishable under section 304 Part-I read with section 34 of the Indian Penal Code and section 135 of the Bombay Police Act as well as imposition of sentence on them. All the three appeals arise out of the common judgment dated December 31, 1996 rendered by the learned Additional Sessions Judge, Bharuch, in Sessions Case No. 205/95. As common questions of facts and law arise for our consideration in these appeals, we propose to dispose them of by this common judgment. 2. Deceased Ganpatbhai was a resident of village Bamalla, Taluka : Jhagadia, District : Bharuch. He was cultivating the field belonging to one Patel on crop share basis with the help of a labourer. The incident in question took place on August 22, 1995. On the date of the incident, the deceased in the company of labourer Laljibhai Mansingbhai had gone to the field known as 'savlivala' for the purpose of ploughing the same and worked upto 12.00 noon. Shardaben, wife of deceased Ganpatbhai, had brought meals for both of them and after taking meals, they had again started ploughing the land. Shardaben was also working in another part of the field. Meanwhile, Shardaben had seen that the respondents no.1 & 2 in Criminal Appeal No. 170/97 were coming towards deceased Ganpatbhai with dharias in their hands and were accompanied by the respondents no.2 to 5 in Criminal Appeal No.170/97. On seeing the respondents no.1 & 2 coming with deadly weapons in their hands, Shardaben had immediately rushed towards her husband and entreated him to leave the place immediately, as she had apprehended assault on her husband. However, before the deceased could leave the field, the respondents in Criminal Appeal No.170/97 had come to the place where the deceased was working and the respondents no.1 & 2 had started grappling with him. It is the case of the prosecution that thereafter the respondent no.1 in Criminal Appeal No.170/97 had inflicted dharia blows on both the hands of the deceased, whereas the respondent no.2 in Criminal Appeal No.170/97 had inflicted dharia blows on the legs of the deceased and rest of the respondents instigated the respondents no.1 & 2 to kill the deceased. Because of the injuries, the deceased had fallen down and died within 10 to 15 minutes because of profuse bleeding which had taken place due to the injuries. While her husband was being assaulted, Shardaben had raised shouts and, therefore, those who were working in the nearby fields, had also come to the place of the incident. According to the prosecution, the deceased was also discharging duties as a watchman for the purpose of protecting crops standing in the fields and as he had impounded cattle belonging to the respondents no.1 & 2, they were infuriated and, therefore, they had assaulted the deceased. Meanwhile, someone had informed the police about the incident and, therefore, police had gone to the field where the incident had taken place at about 6.00 P.M. At the field, complaint filed by Shardaben was recorded and C.R.No.84/95 was registered against the five respondents of the offences punishable under sections 302, 147, 148, 149 & 504 of the Indian Penal Code and section 135 of the Bombay Police Act. The case was investigated by Mr. D.H.Rathod, who was then P.S.I. at Umalla Police Station. The Investigating Officer had held inquest on the dead body of the deceased and made arrangement for sending dead body to the hospital for postmortem examination. The panchnama of place of occurrence was prepared by the Investigating Officer in presence of independent witnesses and the weapons used by the respondents no.1 & 2 in commission of the offences were also recovered from the house of the respondent no.1. The incriminating articles, which were recovered and seized during the course of investigation, were sent to Forensic Science Laboratory for the purpose of analysis. On receipt of report from Forensic Science Laboratory and at the conclusion of investigation, the five respondents in Criminal Appeal No. 170/97 were chargesheeted of the offences punishable under sections 147, 148, 149, 302 & 504 I.P.C. and section 135 of the Bombay Police Act in the Court of learned J.M.F.C. Jhagadia. As the offence punishable under section 302 I.P.C. is exclusively triable by the Court of Sessions, the case was committed to Sessions Court, Bharuch for trial, where it was numbered as Sessions Case No. 205/95. The charge at Exh.6 was framed by the learned Additional Sessions Judge against the five respondents of the offences punishable under sections 147, 148, 149, 302, 504 I.P.C. and section 135 of the Bombay Police Act. The charge was read over and explained to the respondents, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined; (1) Dr. Shankerbhai Nanubhai Barot, PW 1 Exh.16 (2) Shardaben Ganpatbhai, PW.2 Exh.21, (3) Laljibhai Mansing, PW.3 Exh.22, (4) Manilal Kalidas, PW.4 Exh.23, (5) Chhatrasinh Narsinhbhai, PW.5 Exh.24, (6) Somabhai Vadiyabhai, PW.6 Exh.25, and (7) Dalpatsinh Hamirsinh Rathod, PW.7 Exh.38, to prove its case against the respondents. The prosecution also produced documentary evidence, such as, postmortem notes of the deceased prepared by Dr. Shankerbhai at Exh.18, inquest panchnama at Exh.26, different arrest panchnamas of the respondents, report of Serologist, complaint filed by Shardaben etc. in support of its case against the respondents. On behalf of the respondents, two witnesses were examined as defence witnesses viz. (1) Vinaychandra Lallubhai Patel, DW.1 Exh.42, and (2) Mukesh Dhirajlal Doshi, DW.2 Exh.46. After recording of evidence of the prosecution witnesses was over, the learned Judge had explained to the respondents the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required by section 313 of the Code of Criminal Procedure. In their further statements, the respondents had denied the case of the prosecution. 3. On appreciation of evidence adduced by the parties, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the deceased had died a homicidal death. The learned Judge was of the view that before recording of the complaint of Shardaben, somebody had informed the police about the incident and the police had come to the field and, therefore, the complaint filed by Shardaben was not admissible as F.I.R., but was a previous statement of witness Shardaben recorded during the course of investigation. The learned Judge considered the evidence of witness Shardaben, witness Laljibhai,witness Manilal as well as witness Chhtrasinh and concluded that their evidence was trustworthy, reliable and inspiring confidence against the respondents no.1 & 2 in Criminal Appeal No.170/97, but no case was made out by the prosecution against the respondents no.3 to 5 at all. Placing reliance on the sworn testimonies of the above referred to witnesses, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the respondent no.1 had caused injuries on both the hands of the deceased by means of dharia, whereas the respondent no.2 had also caused injuries on the legs of the deceased by means of dharia. The learned Judge thereafter considered the nature of the offence committed by the respondents no.1 & 2. The learned Judge was of the view that no injury was inflicted either by the respondent no.1 or by the respondent no.2 on the vital part of the body of the deceased and, therefore, it was difficult to come to the conclusion that the respondents no.1 & 2 had intention to cause death of the deceased. In that view of the matter, the learned Judge held that the offence committed by the respondents no.1 & 2 would not fall under section 300 I.P.C. but would be punishable under Part-I of Section 304 I.P.C. It was found by the learned Judge that the respondents no.1 & 2 had carried and used dharias contrary to the notification promulgated by the competent authority under section 37 of the Bombay Police Act and, therefore, they were also liable to be convicted of the offence punishable under section 135 of the Bombay Police Act. In view of the above-referred to conclusions, the learned Judge, by judgment dated December 31, 1996 has convicted the respondents no.1 & 2 in Criminal Appeal No. 170/97 of the offences punishable under section 304 Part-I read with section 34 I.P.C. as well as section 135 of the Bombay Police Act and punished them with R.I. for 4 years and fine of Rs. 1000/- in default S.I. for six months, and acquitted rest of the respondents, giving rise to the above-numbered three appeals. 4. Mr. R.M.Chauhan, learned A.P.P. submitted that it has been proved by the prosecution that the respondent no.1 had inflicted dharia blows on both the hands of the deceased,whereas the respondent no.2 had inflicted dharia blows on the legs of the deceased and as the cumulative effect of the injuries caused to the deceased was such that in the ordinary course of nature the death would have ensued, the respondents no.1 & 2 ought to have been convicted of the offence punishable under section 302 I.P.C. According to the learned A.P.P., the evidence of witness Shardaben,witness Manilal and witness Chhatrasinh clinchingly establishes that the acquitted respondents had instigated the respondents no.1 & 2 to kill the deceased and, therefore, all the respondents ought to have been convicted of the offences punishable under sections 147, 148, 149, 302, 504 of I.P.C. and section 135 of the Bombay Police Act. What was claimed by the learned counsel for the State Government was that it is proved by the prosecution by leading cogent and convincing evidence that the respondents no.1 & 2 had caused injuries which were present during the course of postmortem examination and as the injuries collectively were sufficient in the ordinary course of nature to cause death, Clause Thirdly of Section 300 I.P.C. would be attracted to the facts of the present case and, therefore, the acquittal appeal should be accepted. In the alternative, it was pleaded that the punishment imposed for commission of the offence under section 304 Part-I of I.P.C. is inadequate and having regard to the facts of the case, the maximum sentence of life imprisonment provided under section 304 Part-I should be imposed on the convicted respondents. Lastly, it was pleaded that there is no substance in the appeal filed by the convict accused which is directed against their conviction under section 304 Part-I of the Indian Penal Code as well as imposition of sentence and therefore, the same should be dismissed. 5. Mr. Navin Pahwa, learned counsel for the respondents contended that the evidence of witness Shardaben Ganpatbhai, witness Laljibhai Mansing, witness Manilal Kalidas and witness Chhatrasinh Narsinhbhai is full of improbabilities and inconsistencies and, therefore, the same should not have been relied upon by the learned Judge for the purpose of convicting the respondents no.1 & 2 in Criminal Appeal No. 170/97. It was pleaded that a false case was made out by the prosecution against the respondents no.3 to 5 in Criminal Appeal No. 170/97 and, therefore, the whole prosecution case ought to have been disbelieved by the learned Judge. In the alternative, it was argued that it is not proved by the prosecution that the respondents no.1 & 2 had caused injuries to the deceased with the intention of causing his death and, therefore, the case would not fall under section 300 I.P.C. It was vehemently argued that the prosecution has failed to prove the motive, which is alleged to have prompted the respondents no.1 & 2 to assault the deceased and, therefore, the whole prosecution case becomes doubtful. The learned counsel emphasised that none of the injuries sustained by the deceased can be said to be individually sufficient in the ordinary course of nature to cause death and as the death had taken place because of excessive bleeding, the respondents no.1 & 2, at the best, can be convicted of the offence punishable under section 304 Part-II of the Indian Penal Code. The learned counsel mentioned that none of the respondents no.1 & 2 had inflicted any injury on vital part of the body of the deceased and before the injuries were caused to the deceased a scuffle had taken place between the deceased on one hand and the respondents no.1 & 2 on the other and, therefore, the intention to cause death of the deceased should not be attributed to the respondents no. 1 & 2 because had it been their intention to cause death of the deceased, they would have straightway assaulted the deceased after reaching the place of incident and a scuffle would not have ensued. The learned counsel for the respondents further submitted that two views are possible as to whether the offence committed by the respondents no.1 & 2 would fall under section 300 or would fall under section 304 Part-II of the Indian Penal Code and, therefore, as the view taken by the learned Judge that the offence committed by the respondents no.1 & 2 would be punishable under section 304 Part-I of I.P.C. is not perverse, the same should not be interfered with in the acquittal appeal. Lastly, it was contended that having regard to the facts of the case,the learned Judge was justified in punishing the respondents no.1 & 2 with R.I. for 4 years and no case for enhancement of sentence having been made out, enhancement appeal should be dismissed. In support of his submissions, the learned counsel placed reliance on the decision in Kalinder Bharik v. Himachal Pradesh, AIR 2000 3618. 6. We have considered the submissions advanced at the Bar and reappreciated the whole evidence on record. 7. The fact that deceased Ganpatbhai died a homicidal death is not in dispute at all. The evidence of Dr. Shankerbhai Nanubhai Barot, PW.1 Exh.16 shows that on August 22, 1995 he was serving as a Medical Officer at Umalla Primary Health Centre and that Police Constable Kanaksinh had brought dead body of the deceased with a police yadi for postmortem examination. The doctor has stated that he had started postmortem examination at about 8.30 A.M. and completed the same at 11.00 A.M. On external examination, the doctor had found six injuries which are mentioned by him in his substantive evidence before the Court. The injuries which were found by the doctor while performing autopsy on the dead body of the deceased, are also mentioned in Column-17 of the postmortem notes produced at Exh.18. Further, the injuries, which were sustained by the deceased, are also mentioned in detail in the inquest panchnama Exh.26. All the four eye witnesses have deposed before the Court that the deceased was assaulted with dharias by the respondents no.1 & 2. It is nobody's case that the injuries sustained by the deceased were either accidental or suicidal or natural. Under the circumstances, we are of the opinion that the learned Judge was justified in coming to the conclusion that it was proved by the prosecution beyond reasonable doubt that the deceased had died a homicidal death. The said finding being eminently just, is hereby upheld. 8. As noticed earlier, the learned Judge has not treated the complaint filed by Shardaben as First Information Report in the case on the ground that the information about the incident was conveyed by Beat Constable Hiralal to P.S.I. Mr. D.H.Rathod on telephone, after which the P.S.I. had gone to the field and recorded the complaint of Shardaben. In this regard, we find that the evidence of P.S.I. Mr.D.H.Rathod shows that initially Beat Constable Hiralal had learnt that a quarrel had taken place at village Bamalla and, therefore, he had gone to village Bamalla from Umalla Police Station. The evidence of Mr. Rathod further shows that after reaching village Bamalla, Beat Constable Hiralal had telephonically informed him that a murder had taken place in village Bamalla. Mr. Rathod in his evidence has stated that he had not made any entry at Umalla Police Station regarding information received by him from Beat Constable Hiralal on telephone. According to him, he had thereafter gone to the place of incident and recorded the complaint as given by Shardaben, which is exhibited by the learned Additional Sessions Judge at Exh.39 in the case. The evidence of witness Shardaben shows that after the incident, she was sitting by the side of dead body of her husband and that as somebody had informed the police, the police personnel had come to the field and her complaint was recorded. We may state that the evidence of P.S.I. Mr. Rathod establishes that Beat Constable Hiralal had learnt that a quarrel had taken place at village Bamalla. However, from this information learnt by Beat Constable Hiralal, one cannot jump to the conclusion that an information regarding commission of a cognizable offence was laid before Beat Constable Hiralal. Further, as per the case of P.S.I. Mr. Rathod, Beat Constable Hiralal had informed him on telephone that in a quarrel, a murder had taken place at village Bamalla. The evidence of P.S.I. Mr. Rathod does not show that Beat Constable Hiralal had given any particulars about the incident, except stating that in a quarrel, a murder had taken place at village Bamalla. It was never conveyed by the Beat Constable to P.S.I. Mr.Rathod that Ganpatbhai had a quarrel with any of the respondents in Criminal Appeal No. 170/97 or that Ganpatbhai was murdered or that the respondents no.1 & 2 had caused injuries to Ganpatbhai and also caused his death. Thus, it is difficult to conclude that before recording of complaint of Shardaben, disclosure of commission of a cognizable offence was made by any one and, therefore, in our view, the learned Additional Sessions Judge was not justified in not treating the complaint lodged by Shardaben as the First Information Report in the case. The information, which was received by Beat Constable Hiralal regarding quarrel which had taken place at village Bamalla as well as the information conveyed by Beat Constable Hiralal on telephone to P.S.I. Mr.Rathod, were cryptic and lacking in material particulars. Under the circumstances, the learned Judge was not justified in holding that the complaint lodged by Shardaben was hit by the provisions of section 162 of the Code. In our view, the information lodged by Shardaben is rightly exhibited by the learned Judge in the case and the same will have to be treated as F.I.R. in view of the provisions of section 154 of the Code of Criminal Procedure. 9. The evidence of Shardaben Ganpatbhai, PW.2 Exh.21 shows that on the date of the incident her husband in the company of labourer Laljibhai had gone to the field known as Savlivala where cotton crop was grown and that she had taken meals for both of them at about 12.00 noon. She has mentioned in her substantive evidence before the Court that after taking meals, her husband and labourer Laljibhai were working in one part of the field; whereas she was working in another part of the field. What is claimed by her before the Court is that she had seen all the five respondents coming towards the place where her husband was working and as the respondents no.1 & 2 were armed with dharias, she had apprehended that her husband would be assaulted and, therefore, she had rushed to the place where her husband was working, to warn him. According to this witness, the respondents no.1 & 2 had grappled with the deceased and the respondent no.1 had inflicted blows with dharia on both the hands of the deceased; whereas the respondent no.2 had inflicted dharia blows on the leg of the deceased and other respondents had instigated the respondents no.1 & 2 to kill the deceased. The witness has maintained before the Court that on assault being mounted, she had raised shouts and, therefore, those who were working in the nearby field, had come to the place of the incident. The witness has stated in her deposition that on receipt of injuries, the deceased had fallen down and died within 10 to 15 minutes. Further, the witness has claimed that because somebody had informed the police, police personnel had come to the field where her complaint was recorded. During the course of her examination-in-chief, she identified all the respondents as well as dharias which were used by the respondents no.1 & 2 in commission of offences. In her cross-examination, she denied the suggestion made by the defence that she had not raised shouts when her husband was being assaulted. It was admitted by her that she was working in one part of the field, whereas her husband was working in another part of the field and that it was not possible to see her husband from the place where she was working, but it is relevant to notice that her assertion that on seeing the accused, she had rushed to the place where her husband was working and had warned him, was not challenged by the defence at all. She further admitted in her cross-examination that after grappling was over, immediately the respondents no.1 & 2 had inflicted dharia blows immediately one after another and that as she was threatened to death, she had not intervened in