CR.A/1117/1986 1/37 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1117 of 1986 For Approval and Signature: HONOURABLE MR. JUSTICE J.R. VORA HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= STATE OF GUJARAT Versus CHHOTABHAI BABARBHAI PARMAR & ORS ========================================= Appearance : MR. PRADI D BHATE APP for Appellant MR NITIN M AMIN for Opponents ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 23/08/2007 CR.A/1117/1986 2/37 JUDGMENT ORAL JUDGMENT :(Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 Instant Appeal is preferred by the State under Section 378 of the Code of Criminal Procedure against the judgment and order delivered by learned Additional Sessions Judge, District – Kheda at Nadiad, on 30th of April, 1986, in Sessions Case No. 133 of 1985, whereby all the five respondents herein being accused of the Sessions Case No. 133 of 1985 came to be acquitted by the Trial Court for the offences charged against them under Sections 302, 324, 504, 147, 148, 149 and 326 to read with Section 34 of the Indian Penal Code. 2 A charge sheet for the above offences came to be filed against all the accused in the Court of Chief Judicial Magistrate, First Class, on 03rd of September, 1985, which was registered as Criminal Case No. 1770 of 1985 and said Case, vide order dated 14th of October, 1985, was committed to the Court of Sessions and was registered as Sessions Case No. 133 of 1985. 3 Briefly depicting the case of prosecution, it is revealed that the incident in question took place on 28th of February, 1985 at village Dehgam. On earlier day of the incident i.e. on 27th of February, 1985, in the evening at about 8.00p.m. one election meeting was arranged and Congress Party Leader Fulsinh Dabhi was to address the public. People CR.A/1117/1986 3/37 JUDGMENT were gathered there and accused No.1 also was amongst them. Injured in this case Ravjibhai Fatabhai and complainant of this case Fatabhai Rajabhai both were present. Accused Chhotabhai Babarbhai came in the public meeting in drunken condition and started speaking in cavalier manner. Injured Ravjibhai persuaded accused No.1 and stated that the meeting was in progress and accused No.1 should attend the meeting calmly. On the contrary, accused No.1 was provoked and challenged Ravjibhai that if he wished to fight with him, Ravjibhai was free to come out. It appears that there were some altercations between the parties and public meeting was dispersed. Other persons persuaded accused No.1 and was sent to his house. 4 In pursuance of the above incident of earlier day, the present incident occurred on 28.02.1985 at about 10.00 a.m. It was alleged that all the five accused formed an unlawful assembly, quarreled with injured Ravjibhai and to achieve common object to teach lesson to Ravjibhai and to beat him, all the accused assembled near the house of Budhabhai Khatarbhai Raval. At about 10.30 a.m. Ravjibhai i.e. PW-3 and Udesinh Dahyabhai, who is deceased in the incident, both, according to prosecution case, had been to temple of Mahadevji to have darshan. They were coming back from temple and when they reached near the house of Budhabhai Khatarbhai Raval, CR.A/1117/1986 4/37 JUDGMENT they found that accused Nos.1 and 2 i.e. Chhotabhai Babarbhai and Ravjibhai Babarbhai Parmar were standing with dharias in their hands. Accused No.1 called Ravjibhai by shouting “come here”. PW-3 Ravjibhai went near accused No.1 and accused No.1 stated that why Ravjibhai was advising him to be calm down in the public meeting and thereafter picked up quarrel with Ravjibhai. Accused No.1 inflicted a dharia blow on the head of Ravjibhai. To ward the blow, Ravjibhai raised is right hand and the blow landed on the right hand of Ravjibhai, causing serious injuries. Accused No.1 Chhotabhai Babarbhai again inflicted second blow on the head of Ravjibhai. Udesinh Dahyabhai, deceased in the case, to save Ravjibhai, intervened, and at that time, deceased Udesinh had a cogged part of dharia with him. Accused No.1 attempted to snatch the said cogged part of dharia from deceased Udesinh. Accused No.2 Ravjibhai Babarbhai, at that time, inflicted two instant blows on right shoulder of deceased Udesinh and accused No.1 Chhotabhai Babarbhai gave a knocking blow on the throat of Udesinh. Thereupon, Udesinh had fallen on the ground and in the meantime PW-5 Chandubhai came near the opening of the hedge where the quarrel was taking place and at that juncture, accused Nos. 3, 4 and 5, who had concealed themselves around the hedge came at the scene of offence. Accused No.3 Kantibhai Ravjibhai inflicted a blow of dharia on the ankle of right leg of Ravjibhai CR.A/1117/1986 5/37 JUDGMENT and so Ravjibhai had also fallen down on the ground. PW-5 Chandubhai Vaghabhai requested accused not to beat Ravjibhai and Udesinh. Thereafter accused ran away from the spot. According to prosecution, Udesinh Dahyabhai died on the spot and PW-3 Ravjibhai was unconscious. Father of Ravjibhai i.e. complainant Fatabhai Rajabhai, came to know about the incident by shouts of the village persons and, therefore, though he was at his house, he came running at the scene of offence and found that Udesinh Dahyabhai and his son Ravjibhai, both were lying on the ground and PW-5 Chandubhai Vaghabhai was standing there. He inquired from Chandubhai Vaghabhai as to who had beaten these two persons. Chandubhai replied that both had been beaten by accused No.1 Chhotabhai Babarbhai and accused No.2 Ravjibhai Babarbhai and asked Fatabhai Rajabhai to arrange to shift both of them to hospital. Complainant Fatabhai Rajabhai thereafter went to his village for obtaining a vehicle to shift injured to hospital, but there was no vehicle in the village and, therefore, he and his neighbour one Ashabhai Vanabhai came on the road at the place known as “Sixth Mile”. From Sixth Mile, they got a bus for Vaso town and they reached at Vaso at about 2.30 p.m. They straightaway went to Vaso Police Station and declared that two persons were injured at village Dehgam. The police personnel present there advised the complainant that if the injured were serious, first they must be shifted to the hospital CR.A/1117/1986 6/37 JUDGMENT and thereafter complaint could be recorded. Complainant and Ashabhai Vanabhai both from Vaso road obtained one tempo and came to Dehgam at the scene of offence, and in the said tempo, injured Ravjibhai and deceased Udesinh Dahyabhai were taken to the Government Hospital at Vaso and thereafter complainant Fatabhai gave his complaint before Vaso Police Station at 15.30 hours against accused Nos. 1 and 2. A crime came to be registered as aforesaid in Vaso Police Station and investigation was handed over to PW-12 Girdharlal Ratanlal Gadhavi. He visited Primary Health Center and arranged an inquest panchnama in respect of Udesinh Dahyabhai and thereafter had drawn the panchnamas of scene of offence and had recorded the statements of the witnesses, had arrested the accused and had drawn discovery panchnamas at the instance of the accused. Ultimately, as aforesaid, charge sheet came to be filed against five accused . 5 The learned Additional Sessions Judge framed charges for the above said offences against all the five accused individually as well as collectively vide Exhibit – 3 on 20.1.1986. All the five accused pleaded not guilty to the charge and, hence, prosecution tendered oral as well as documentary evidence. CR.A/1117/1986 7/37 JUDGMENT 6 In oral evidence, PW-1 Dr. Rajendraprasad Dhirajlal Purani, examined at Exhibit – 9, who was the Medical Officer, Primary Health Center at given time, had examined three persons, Ravjibhai, Udesinh and accused No.1 Chhotabhai Babarbhai and Udesinh. Udesinh was brought dead and he deposed about the injuries of other two persons. PW-2 Fatabhai Rajabhai - complainant, is examined at Exhibit – 14. PW-3 Ravjibhai Fatabhai, injured, is examined at Exhibit – 17. Dr. Mukesh Indukumar Shukla is examined as PW-4, Exhibit – 18, who was Medical Officer in Civil Hospital at Ahmedabad and on 28.2.1985, at 7.10 p.m. he had examined injured Ravjibhai Fatabhai, who was referred to him by transfer Yadi. He deposed about the injuries of the injured. PW-5 Chandubhai Vaghabhai, examined at Exhibit – 20; PW-6 Shankarbhai Raisingbhai, examined at Exhibit – 21; PW-7 Raijibhai Malabhai, examined at Exhibit–22 and PW-10 Jesingbhai Pujabhai, examined at Exhibit – 27, are the four eye witnesses of the prosecution. PW-14 Dr. Ramanlal Hiralal Makwan, examined at Exhibit-60, was serving as Medical Officer at Civil Hospital, Nadiad, treated the injured accused - Chhotabhai Babarbhai on 28.2.1985. PW-8 Valimohmad Satarbhai, examined at Exhibit–23, is a panch witness of panchnama at Exhibit–24 drawn by the police on 1st of March, 1985, by which it was alleged that accused No.2 Ravjibhai Babarbhai discovered mudammal article dharia. PW-9 Ashabhai CR.A/1117/1986 8/37 JUDGMENT Gothabhai, examined at Exhibit 25, is second panch of panchnama at Exhibit-24. PW-11 Vikrambhai Purshottam Prajapati, examined at Exhibit – 45, is an Executive Magistrate, who recorded dying declaration of Ravjibhai Fatabhai Parmar at Ahmedabad on 1st of March, 1985. PW- 12 Girdharlal Ratanlal Gadhavi, examined at Exhibit-49, was the then PSI of Vaso Police Station and he recorded the complaint of Fatabhai Rajabhai and investigated the crime. PW-13 Ranachodbhai Hamirbhai Padhiar is second Investigating Officer, who took charge of the investigation from Police Sub-Inspector Mr. Gadhavi on 13.3.1985 and he submitted the charge sheet, as aforesaid. 7 In documentary evidence, important documents like injury certificates, arrest panchnama, panchnama of scene of offence, panchnama of seizure of clothes of the deceased and injured, forwarding letter to Forensic Science Laboratory forwarding therewith muddamal articles, opinion of Forensic Science Laboratory, map of scene of offence, dying declaration of injured Ravjibhai Fatabhai, complaint as given by Fatabhai Rajabhai, etc. are produced on record. 8 Thereafter, statements of the accused were recorded by the learned Sessions Judge in respect of incriminating circumstances appearing in the evidence under Section 313 of the Code of Criminal CR.A/1117/1986 9/37 JUDGMENT Procedure. After denying the evidence in toto of the prosecution, accused Nos. 1 and 2 submitted on record their written further statements at Exhibits 72 and 74. Accordingly, accused No.1 stated that his father Babarbhai Dhulabhai was sarpanch of the village and leading worker of the area and they supported Janata Party as against Congress Party. In the Assembly Election, candidate of Janata Party was elected on account of their support and, therefore, the accused party being supporters of the Congress Party, had grudge against them. On 27th of February, 1985, in public meeting of Fulsinhbhai Dabhi, he stated to Fulsibhai that they visited village only when election was ensuing and except that they did not care for the village and he started to ask questions in the public meeting. Fulsibhai could not reply and, therefore, crowd was shouting and to avoid quarrel, his relatives had taken him to his house to save from opposite party. On the day of the incident, after having darshan at Mahadevji temple, he was returning to his house. When he reached near the house of Budhabhai Khatarbhai Raval, without any weapon in his hand, he found that deceased Udesinh Dahyabhai, Ravjibhai Fatabhai and Chandubhai Vaghabhai were standing there with dharias in their hands and shouting at him. They stated that they wanted to teach him a lesson for breaking Congress Party meeting. On apprehension that he would be beaten by the opposite party, through the hedge of the house of CR.A/1117/1986 10/37 JUDGMENT Budhabhai Khatarbhai Raval, he went inside of the house and the said house had no doors, the opposite party i.e. the above three persons also chased him in the house of Budhabhai Khatarbhai Raval. Therefore, he picked up one dharia lying in the house of Budhabhai Khatarbhai Raval and requested these three persons not to beat him. Even then, they attacked him and he raised shouts to save him. Ravjibhai Fatabhai and Udesinh Dahyabhai started inflicting dharia blows on his body and injuries were caused on his chest, on his hands and on his back. Many blows were parried by him and to save his life he wielded his dharia and that caused injuries to Ravjibhai and Udesinh. In the meantime, people gathered there with sticks and dharias and they also had beaten Ravjibhai and Udesinh and thereafter on account of vertigo, he had fallen down on the ground and had become unconscious. From there he was shifted to his house and his elder brother Ravjibhai had thereafter come and he had narrated the incident. Ravjibhai had given a complaint against three persons before Vaso Police Station. He was then taken to Vaso hospital and from there he was transferred to Nadiad Hospital where he was an indoor patient for long time. During that period, he filed his bail application and therefore he was arrested and was discharged from the hospital. He was sent to Nadiad Jail and, ultimately, was released on bail on 20th of March, 1985. He had pain in his ribs and obtained treatment from Orthopaedic Surgeon CR.A/1117/1986 11/37 JUDGMENT Dr.Kshatriya. He had taken x-rays of his ribs which he produced on record and the certificates issued by the Doctor that there were fractures in his ribs and certificates were also produced by accused No.1. He informed the Investigating Officer about this, but nothing was done on account of political pressure on Investigating agency. 9 While accused No.2 Ravjibhai Babarbhai Parmar stated in his written statement that his brother's wife Chambapen conveyed to him that Udesinh Dahyabhai, Ravjibhai Fatabhai and Chandubhai Vaghabhai had beaten his brother Chhotabhai and therefore Chhotabhai was injured. He thereupon went to the house of Chhotabhai and inquired about the incident. He found that Chhotabhai – accused No.1 was seriously injured and therefore he shifted Chhotabhai to the hospital and gave a complaint before Vaso Police Station for the same incident, which was registered as Criminal Case No. 29 of 85 for the charges under Sections 326 and 324 of the Indian Penal Code. His brother was serious and, therefore, he was shifted to the hospital at Nadiad. 10 After recording of the further statements, the learned Trial Judge heard prosecution as well as defence and came to the conclusion to acquit the accused, as stated above and, hence, this Appeal. CR.A/1117/1986 12/37 JUDGMENT 11 Learned APP Mr. Pradip D Bhate on behalf of appellant State submitted vehemently that the evidence of witnesses, particularly of injured witness Ravjibhai, has not been properly considered by the Trial Court and, hence, this wrong conclusion. In support of Ravjibhai, the evidence of complainant Fatabhai Rajabhai is corroborative piece of evidence, which has been brushed aside by the Trial Court saying that the same was not reliable though, in fact, as per prosecution case there were other eye witnesses and those are PW-6 Shankar Raisinh, PW-7 Raijibhai Melabhai and PW-10 Jesinghbhai Pujabhai, but they have not supported the prosecution case, but PW-5 Chandubhai Vaghabhai has supported the prosecution case. Thus, according to learned APP, the evidence of injured witness Ravjibhai Fatabhai, complainant Fatabhai Rajabhai and eye witness Chandubhai Vaghabhai establishes the prosecution case above board and the appreciation of the Trial Judge appears to be perverse, more particularly, when the injures of Ravjibhai Fatabhai are proved by medical evidence. Not only that, the medical expert PW-1 Dr. Rajendra Dhirajbhai Purani deposed that the said injuries were possible by muddamal article dharias. There may be contradictions here and there, but it must be remembered that when complaint came to be filed and when the statements of the witnesses were recorded, particularly, injured Ravjibhai was in agony of injuries CR.A/1117/1986 13/37 JUDGMENT and could not have remembered the incident picturesque and recollect and reproduce the same before the court. This fact itself must not weigh with the court to come to an adverse conclusion as to the occurrence of the incident. The evidence is required to be evaluated as a whole and not in piecemeal as has been done by the Trial Court. Explaining of injury on accused in all cases by the prosecution is not a universal rule and, therefore, on that count the findings arrived at by the Trial Judge are erroneous. Discovery of dharia is proved by panch witnesses, more particularly PW-9 Ashabhai and the Investigating Officer and this also is a corroborative piece of evidence, could not be ignored. Going through the reasoning given by the Trial Judge for the conclusion, learned APP submitted that the learned Trial Judge ought not to have placed much reliance upon minor contradictions in the evidence and, therefore, this Appeal is meritorious and required to be allowed. It is submitted that the death of Udesinh is proved by cogent evidence as homicidal death is not in dispute. It is submitted that the defence led by the accused through further statements is not probable in view of clear and cogent evidence of prosecution witnesses. It is further submitted that FSL report is also supporting the prosecution case. 12 As against that, learned Advocate Mr. Nitin M. Amin for the respondents – accused submitted that, in fact, the evidence of three CR.A/1117/1986 14/37 JUDGMENT witnesses are required to be evaluated and which has been done by the Trial Court. PW-5 Chandubhai Vaghabhai was not an eye witness and that is well established by the evidence of Ravjibhai Fatabhai, who deposed that Chandubhai came only when the incident was over and he destroys the presence of PW-5 Chandubhai Vaghabhai at the scene of offence. It is submitted that complainant Fatabhai Rajabhai is formal witness and he is not an eye witness. He was informed by Chandubhai Vaghabhai, whose presence at the scene of offence, was doubtful and that complainant – Fatabhai Rajabhai could not explain the delay caused in filing the First Information Report. While Ravjibhai Fatabhai deposed before the court the incident in altogether different manner. Contradictions in his evidence as to the whole of the incident has been proved by the evidence of Investigating Officer, that, witness Ravjibhai Fatabhai did not state before the police which he stated before the Court. The injuries caused on accused No.1 could not be explained by the prosecution and those injuries are not minor nor superfluous. When evidence of the prosecution is ambiguous, serious injuries found on the body of the accused in the same incident is required to be explained by the prosecution, and in absence of which, adverse inference should be drawn against the prosecution case. It is an admitted fact that the cross complaint came to be filed against the prosecution witnesses and the said case was also committed to the Court of Sessions, but in the said CR.A/1117/1986 15/37 JUDGMENT case, for the charge under Section 324 of the Indian Penal Code, the parties compromised the matter and the offence was compounded. The discovery of weapons as discussed by the learned Trial Judge, could not be proved by the prosecution beyond the reasonable doubt. Thus, in these circumstances, Budhabhai Khatarbhai Raval, in whose house, the incident took place, was a material witness and was not examined by the prosecution. It is submitted that, this is an Appeal, against the acquittal and unless the reasons and the findings given by the Trial Court are perverse, no interference is warranted and in this Appeal, the State could not establish that how the findings arrived at by the Trial Court are perverse. Therefore, it is submitted that the Appeal is required to be dismissed. 13 We have undertaken a complete and comprehensive appreciation of all vital features of the case and we have scanned the entire evidence on record with reference to the broad and reasonable probabilities of the case to ascertain whether the findings arrived at by the Trial Court are palpably wrong or perverse. We have gone through the each corner of record of the case and we have carefully scanned the reasons advanced by the Trial Judge to come to the finding of acquittal. We have taken into consideration the contentions raised by both the sides in this Appeal. CR.A/1117/1986 16/37 JUDGMENT 14 From the evidence of effective witnesses of the prosecution, i.e. PW-2 Fatabhai Rajabhai, Exhibit – 14, PW-3 Ravjibhai Fatabhai, Exhibit – 17 and PW-5 Chandubhai Vaghabhai, Exhibit - 20, it has been revealed that on 28th of February, 1985, at about 10.00 a.m. near the open space of the house of Budhabhai Khatarbhai Raval, accused No.1 inflicted blows by dharia on hands and on head of PW-2. During the incident, deceased Udesinh Dahyabhai intervened to save Ravjibhai Fatabhai from this attack, and at that time, accused No.2 Ravjibhai Babarbhai Parmar inflicted dharia blows on right shoulder of deceased Udesinh. Accused No.1 intentionally and carefully inflicted a knocking blow on the throat of deceased Udesinh, and on account of this, trachea was cut and Udesinh died on the spot. What is revealed by the evidence is, Udesinh fallen down on the ground after the attack and thereafter in two/three seconds, injured Ravjibhai had also fallen down on the ground. At this juncture, accused No.3 Kantibhai Ravjibhai Parmar inflicted one dharia blow on their right leg ankle of injured Ravjibhai and thus Ravjibhai got injuries and Udesinh died in the incident. 15 Whether this case is proved or not by the prosecution, by cogent and reliable evidence is matter of evaluation of evidence and the learned Trial Judge undertook that exercise in detail and came to the CR.A/1117/1986 17/37 JUDGMENT findings that none of these three effective witnesses of the prosecution was reliable. It is therefore necessary to evaluate and assess the reasons assigned by the Trial Judge for not placing reliance on this three witnesses. 16 The learned Trial Judge noted that it was an admitted fact that there was a cross case for the same incident in which accused No.1 had injuries on his body, and that is evident from the evidence of Investigating Officer PW-12 Girdharlal Ratanlal Gadhavi, who in turn, in para-12 of his deposition, stated that in the said Criminal Case No. 29/85, Chandubhai Vaghabhai, prosecution witness in this case and accused in the said case, had presented two dharias duing investigation. 17 The learned Trial Judge also noted that in view of the decision of the Apex Court in the matter of LAXMANSINH vs. STATE OF BIHAR, as reported in 1976 Cri. L.J., page 1736, in this case also, serious injuries received by the accused No.1 in the same incident could not be explained by the prosecution witnesses and, therefore, the prosecution suppressed the genesis and the origin of the occurrence of the incident and not presented the true version. The learned Trial Judge also observed that the second presumption would be, the witnesses of prosecution, while denying the injuries on the person of the accused CR.A/1117/1986 18/37 JUDGMENT were lying on most material points of the prosecution case and, therefore, their evidence was not reliable. 18 In light of above, the learned Trial Judge first noted injuries of PW-3 Ravjibhai Fatabhai as under : i) Trans-verse incised wound on back of right forearm size 4” x 1 ½ x bone cut of. ii) `Y' shaped lacerated wound on right occipital protuberance of head – size 3” x 1” x bone deep. iii)Incised wound on dor-sum of right foot size 1” x 1/2” muscle deep. Injured Ravjibhai was thereafter transferred to Ahmedabad Civil Hospital and according to the evidence of PW-4 Dr. Mukesh Indukumar Shukla, injured Ravjibhai had following injures. i) C.L.W. - on the occipital region – 5 cm x 1 cm bone deep bleeding tut. ii) C.L.W. - on post. Aspect of proximal 1/3 of rt. F.A. 5 cm x