IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 467 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE S.M.SONI and MR.JUSTICE J.R.VORA ============================================================ 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? -------------------------------------------------------------- THAKKOR BAKALJI @ JAYANTIJI UDAJI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR HM CHINOY for appellant no.1 Mr. Saurin A. Shah for appellants nos.1,2,4,6,12,14,18, 5,13,15, 17 and 19. Mr. K.C. Shah, A.P.P. for the State. -------------------------------------------------------------- CORAM : MR.JUSTICE S.M.SONI and MR.JUSTICE J.R.VORA Date of decision: 10/02/98 ORAL JUDGEMENT The appellants original accused are held guilty of offences punishable under Section 302 read with Section 149, Sec.323 read with Section 149, Section 324 read with Section 149 and Section 451 read with Section 149 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for life, S.I. for one month and fine of Rs.50/- in default, 10 days, S.I. for three months and fine of Rs.150/-, in default, S.I. for six months and fine of Rs.100/-, in default 30 days S.I. respectively. All the accused were acquitted of the offences under Section 135 of the Bombay Police Act. The learned Additional Sessions Judge had ordered the sentence to run concurrently of each of the accused. Against this judgment and order of 29th June, 1991 in Sessions Case no.60/1991 passed by the learned Sessions Judge, Mehsana, present appeal is preferred. The facts leading to the prosecution of the appellants(hereinafter referred to as the accused) alongwith one Balaji Nathaji who died on 20th January, 1991 after submission of chargesheet however, before commencement of trial are that one Somaji Nathaji ( PW 3) had two sons named Alkaji and Bhuptaji and two daughters. One of the daughters was serving in thrashing flour. Her remuneration of about Rs.500/- received was lent by her brother Bhuptaji to Thakore Bakaji Udaji some six months before the date of incident i.e. 18th September, 1990. Bhuptaji used to demand the same and Bakaji Udaji therefore had filed a complaint against Bhuptaji. Despite the same, demand for money by Bhuptaji continued. Keeping this in mind, in the evening of 18th September, 1990 when PW 3 Somaji was sitting at the house of his brother Fataji PW 4, Bhuptaji, his wife Chanda PW 5, Amthiben mother of Bhuptaji were in their house. At this time Thakore Bakaji Udaji, Karnaji Hiraji, Manaji Mansangji and Bakaji Karnaji came rushing near the house of the complainant PW 3. They called the son of PW 3 from his house and were abusing. These four persons were also followed by other persons. All of them were armed and were shouting " How do you demand money repeatedly from Bakaji Udaji?" Bhuptaji son of PW 3 being scared rushed to the house of his uncle PW 4 to save himself. At this point of time all the accused persons rushed behind him and before Bhuptaji entered the house of PW 4 Bakaji Udaji and Bakaji Karnaji gave dharia blow on his head and being injured on the head he fell down in front of the road. All others who accompanied said Bakaji also assaulted Bhuptaji with their weapons. Wife of Bhuptaji PW 5 intervened to save Bhuptaji and she was also injured by Bakaji Karnaji by dharia on her right hand and also by stick blows of Karnaji Hiraji and Jeetaji Ravaji. Thereafter as there was shouting and Bhuptaji was bleeding all these persons ran away. Bhuptaji was struggling for life and died. PW 3 therefore went to Vijapur Police Station and filed a complaint against 20 persons of which Balaji Nathaji had died before commencement of trial. On offence being registered, the investigation was entrusted to PW 14 who investigated into the matter and on completion of investigation, submitted chargesheet against all the 20 accused in the Court of Judicial Magistrate, First Class, Vijapur who in his turn committed the same to the Court of Sessions at Mehsana. The learned Additional Sessions Judge framed charge against the 19 accused. The accused pleaded not guilty and prayed to be tried. The prosecution led necessary evidence to prove the charge levelled against the accused and on completion of the prosecution witnesses further statement of the accused were recorded. The accused examined one defence witness Lilaben Tolsangji a minor girl aged about 14 years. They also produced certain documents in their defence. Till their further statement came to be recorded their defence was of total denial. Thereafter, on examination of the defence witnesses, they have tried to explain how Bhuptaji has died. According to the defence Moholla people of Lilaben had assaulted Bhuptaji as they were enraged because of rape committed by Bhuptaji on her. No doubt these were the suggestions put to prosecution witnesses by way of cross examination. In our opinion, this is an attempt to explain how Bhuptaji has died but the defence is that they have not committed this offence. The learned Additional sessions Judge on completion of the evidence for prosecution as well as defence, heard their learned Advocates and held all the nineteen accused guilty of the offence referred hereinabove. This judgment and order is under challenge in this appeal. This appeal for 19 accused is initially filed by the learned Advocate Mr. H.M.Chinoy. Later on, Advocate Mr. S.A. Shah has filed his appearance for appellants nos.1 to 14. Heard learned Advocate Mr. S.A. Shah for appellants nos.1 to 14. Learned Advocate Mr. H.M. Chinoy though duly informed of the hearing of this appeal for appellants nos.15 to 19 is not present before the Court. We may make it clear at this juncture that all the accused are charged also of an offence punishable under Section 149 of the Indian Penal Code. We have ourselves perused the record and proceedings of this case. Learned Advocate Mr. S.A. Shah has taken us through the oral evidence of all the witnesses examined on behalf of the prosecution. Learned Advocate Mr.S.A. Shah has challenged the order of conviction mainly on the ground that the witnesses examined and relied on by the prosecution are all interested and partisan witnesses. In view of the contradictions in their evidence their evidence is not acceptable. He supported this contention by an additional fact that though independent witnesses were available the same are not examined by the prosecution. Therefore evidence of the prosecution witnesses requires to be rejected and the learned Addl.Sessions Judge has erred in acting and relying on this evidence of interested witnesses. The defence witness a minor girl of about 14 years old has come forward with a say that deceased committed rape on her return from sim/field. When her Moholla people came to know about the same they got enraged, went to the house of deceased Bhuptaji and had assaulted him. Mr. Shah therefore contended that in view of this defence it is the Moholla who have assaulted the deceased and not the present accused. The present accused are wrongly roped in by the prosecution witnesses because of their enmity with the deceased and his family members. Mr. Shah further contended that the enmity between the family of the deceased and the present accused was to the effect as alleged in connection with the demand of Rs.500/- by the deceased from the accused no.1 and denial of the accused no.1 to pay the same. According to the defence, it was the deceased who was a strong headed man against whom the accused no.1 had to file a complaint which is part of the record. Mr. Shah further contended that the injuries caused on the person of the deceased and the weapons attributed to the accused do not reconcile in view of the oral evidence of the prosecution witnesses. Mr. Shah contended that the motive as alleged by the prosecution is not that sufficient that a man may commit such an act. Mr. Shah, in the alternative, contended that even on facts as stated by the prosecution witness and as suggested by the defence witness, the object of the assembly cannot be said to be to commit murder but that would be only to teach a lesson to the deceased that what he did with defence witness was not just and proper and he may not commit the same again or with anyone else. Mr. Shah, therefore contended that the oral evidence does not inspire confidence and creates doubt about the presence of the accused at the relevant time. The accused should have been given the benefit of doubt in view of this contention. Mr. Shah further contended that the incident took place at about 7.00 or 7.30 p.m. in the month of September when there was no sufficient light and visibility, and therefore accused could not have been identified verbatim as stated by the prosecution witness. There is nothing on record to show that there was sufficient light to identify the accused. Mr. Shah therefore contended that on this count also the accused should get the benefit of doubt. Learned A.P.P. Mr. K.C. Shah supports the judgment and order of the learned Sessions Judge. The learned A.P.P. Mr. Shah contended that as many as 19 accused have assaulted the deceased and keeping in mind the time of incident, all the prosecution witnesses were at whom and can be assumed to be at whom as all the accused belong to the same village named Techava. They are not unknown to each other. The learned A.P.P. Mr. Shah contended that all the accused persons are related to each other and there is a transaction of money lending by PW 3 and/or his son who is accused no.1. Therefore with the light which can be available in September at about 7.30 p.m.identity cannot be that difficult. Mr. Shah, learned A.P.P. further contended that the defence witness, on the contrary, can be broadly said as supporting the prosecution case by saying in the cross examination to the effect that the residents of her street came to know about the misbehavior of the accused with her. Therefore all the residents went to the residence of Bhupataji and Bhupatji was killed and all these residents are arrested. Mr.Shah learned A.P.P. therefore contended that the short question, even if we accept the defence story, then remains to be considered is whether the incident of assault on Bhupatji took place because of rape on defence witness or because deceased has demanded money from the accused no.1 and the Court has to consider which of the fact is probable and consistent with the commission of the offence. Mr. Shah further contended that if the injury caused on the person of the deceased is not consistent with the weapon attributed to the accused then such a thing is likely to happen when as many as 20 persons have assaulted on one person and this will not affect the case of the prosecution in view of the fact that all of them are charged under Section 149,IPC. Mr. Shah, learned A.P.P. further contended that it cannot be simply an object to beat and teach a lesson to the accused by the members of the assembly which was an unlawful one. Even a simple object to beat will make that assembly an unlawful one. It is not necessary that only the initial object of the unlawful assembly is required to be looked into but the conduct of the assembly will hold responsible the other members of the assembly. Mr. Shah, learned A.P.P. therefore contended that the appeal is liable to be dismissed. Mr. Shah also contended that there is no substance in the alternative case advanced by the learned Advocate for the accused. Before we deal with the contentions in detail, it will be relevant to refer to the prosecution witnesses. In our opinion, in view of the injuries on the person of the deceased, there can be no dispute to the fact that the deceased had died a homicidal death. There are as many as 18 external injuries and 9 internal injuries on the person of the deceased which are as under: External injuries: 1. Oblique spindle shape incised wound(IW) over the middle to rt. occipital region directed from upwards to downwards 3.75" x .5" deep brain memb. 2. Oblique spindle shape IW 1/2" left to lower end of injury no.1 over the lt occipital parital region 5" x .5" dep brain memb. 3. Oblique spindle shape IW 1" below the upper end of inj.no.2 over the lt parital region directed from upwards to downwards 1.5" x .5" deep bone. 4. Oblique spindle shape IW over the lt parital occipital region parallel to injury no.2 1.5" away from each other directed from upwards to downwards i.e. parital to occipital 2.5" x .5" deep brain memb. 5. Oblique spindle shape IW over the left parital region between injury nos.2 and 4 and parallel to injury no.3 and 1" away from no.3 1.5" x .5" deep bone upwards to downwards. 6. Oblique spindle shape IW over the lt parital region parallel to injury no.5 and 1/2" away from that directed from upwards to downwards 3" x .5" deep brain memb. 7. Verticle IW spindle shape over the glabella meeting point of two parital and one occipital bone directed upwards to downwards 1/2" left or away to upper end of injury no.1. 1" x .25" deep bone. 8. Oblique spindle shape IW over the right occipital parallel and 1" away from inj.no.1 directed from upwards to downwards 2.5" x .5" deep bone. 9. Oblique spindle shape IW over the right parito occipital region making 60 degrees angle with upper end of injury no.8 directed from parital to occipital region. 1.75" x .25" deep skin. 10. Vertical spindle shape IW over the lt temporal of cheek 1" away from lt eye and 2.5" away from left ear. 2.5" x .5" deep bone directed from upwards to downwards. 11. Oblique spindle shape IW over the lt shoulder region superior aspect 4.5" x 2.5" x .5" deep muscle directed from left to right. 12. Vertical scratch over the rt scapular region 5". 13. Oblique incised wound over the lt. scapular region 3" away from injury no.12. .75" x .25" deep skin. 14. Vertical IW over the lt. shoulder region 1" x .25" deep bone. Vertical linear crack on the lt clavicle shoulder end. 15. Two oblique IW over the right scapular region parallel to each other and 1/2" away from each other .5" x .25" deep skin. 16. Vertical IW over the rt palm 3.5" x .5" deep bone. 17. Detachment of rt. index and middle finger from 2nd phalanx. Cut margin seen on the rt index and middle finger. 18. Fracture rt. ring finger 1st proximal phalanx and connected only with skin to bone. cvt. skin seen. Internal injuries 1. Oblique linear fracture according to injury no.1 & Col.no.17 1" x .25" middle of injury deep memb. 2. Oblique linear fracture according to injury no.2 Col.No.17 1.25" x .25" middle of inj. deep memb. 3. Oblique linear crack according to inj.no.3 5" length Col.No.17. 4. Oblique linear fracture according to inj.no.4 of .75" x .25" deep memb. Col.No.17. 5. Oblique linear crack according to inj.no.5 of .5" length Co. No.17. 6. Oblique linear fracture according to inj.no.6 of 1" x .25" deep memb. Col No.17. 7. Vertical linear crack according to inj. no.7 of .5" length Col. No.17. 8. Oblique linear crack according to inj.no.8 of 1" length Column No.19. 9. Vertical linear fracture of lt temporal according to injury no.10 of column no.17 1" x .25" deep. PW 1 Dr. Hasmukbhai Goswami has shown that the internal injuries are corresponding to the external injuries. He has also stated that external injuries nos.1, 2, 4 and 6 are sufficient to cause death in the ordinary course of nature. He has not noticed any stab wound on the deceased. Thus, from the evidence of this witness, it is clear that deceased has died a homicidal death. Before we appreciate the evidence of other witnesses we would like to find out as to where is the scene of offence from the houses of the witnesses examined and referred to by some of the witnesses and not examined by the prosecution. Map Exh.53 is duly proved by the evidence of PW 2 Arvindbhai. In the said map houses are shown and they are marked with nos. 1 to 14. Incident took place in between the houses which are Mark 2 and 3. Mark 2 is the house of PW 4 and Mark 3 is the house of PW 3. PW 5 and PW 3 are residing in house Mark 3. The occupant of house Mark 1 is one Chaganji who is alleged to have witnessed the incident, however, he is not examined by the prosecution. Another woman Kalaben is also alleged to have scene the incident, however, she is also not examined. From the map, it is difficult to find out, rather it is not shown as to where the house of Kalaben is located. One of the contentions of the learned Advocate for the defence is that PWs 3, 4 and 5 who are alleged to be eye witnesses do not refer to the presence of independent witnesses Kalaben and Chaganji and therefore the possibility of their having seen the incident becomes doubtful. As in the map it is neither shown where the house of Kalaben is located nor the defence has come out with the suggestion as to where her house is located in the map, it is difficult to say whether P Ws. 3,4 and 5 could have seen her when the incident took place. Location of the house of Chaganji is at fig. mark 1 and when incident took place between the house of PWs 4 and 3 attention and concentration of the witnesses will be towards the incident and not towards the house fig. Mark 1 and therefore it they do not refer to the presence of Chaganji that does not make it unnatural or entitle their evidence to be rejected. We may state at this juncture that when a particular incident took place and when one of the kith and kin is being assaulted then the persons may have their attention and concentration towards the incident and not towards the person with a view to notice as to who are witnessing the incident. Therefore, not noticing presence of Chaganji by any of the PW 3, 4 and 5 is not an unnatural conduct. On the contrary, in our opinion, it is more natural as their attention would be to the incident and not to the surroundings. Therefore not referring presence of Kalaben and Chaganji by P Ws 3, 4 and 5 does not make their evidence either doubtful or an unacceptable one. We may also make it clear at this juncture that non examination of Kalaben and Chaganji does not affect the prosecution case. For non-examination of a witness, law provides for drawing adverse inference. We may also agree to this proposition that adverse inference should be drawn for non examination of witnesses. The question, however is: What adverse inference should be drawn? In our opinion, learned A.P.P. Mr. Shah rightly stated that adverse inference to the effect that these two witnesses do not know about the case of prosecution can be drawn. He contended that adverse inference to the effect that the prosecution case is wrong or false one cannot be drawn. He also contended that an adverse inference to the effect that these witnesses were knowing about some different men or persons as accused than the prosecution witnesses refer also cannot be drawn. If such an inference was required to be drawn, then it was the duty of the defence to examine them as defence witness or make such sugestion in cross examination of witnesses to bring on record the facts which they want to infer by way of adverse inference. Mr. Shah has relied on the judgment in the case of Pal Singh and others vs. State of U.P , A.I.R 1979 SC 1116. The relevant observation in paragraph (2) reads as under: " Even if the High Court may not have been wholly correct on this aspect of the matter, the fact remains that after the High Court had believed the eye witnesses Nos.1 and 2, and having found that their testimony was absolutely creditworthy and truthful, it could not have rejected the prosecution case merely because some of the eye-witnesses mentioned in the F.I.R. were not examined. In such cases, the question which has to be determined is not whether the absence of the examination of the independent witnesses would vitiate the prosecution case by itself but that the evidence actually produced is reliable or not. Once the Court gives a finding of fact that the evidence led by the prosecution is reliable and trustworthy, the infirmities arising out of non-examination of witnesses will not be sufficient to put the prosecution out of Court." Therefore, in the instant case, what is required to be considered is whether the evidence of P Ws. 3, 4 and 5 is acceptable or not. If not acceptable then non examination of these independent witnesses need not be bothered but if acceptable non examination does not affect the prosecution case. Now the question is whether evidence of P Ws 3,4, and 5 is reliable or not. PW 3 Somaji Nathaji has deposed as under: " Bhupatji was residing with him. Name of his wife is Chanda..........Name of my brother is Fataji. He resides in a house near to him. We have lent Rs.500/- to accused no.1. The same was lent by my son. It was promised to be paid back within two months, however, the same was not paid. Demand therefore was made, yet monies were not paid. However, he was reacting to the same when the demand was made. He tried to assault and accordingly he had filed a complaint for the same. Incident took place some eight months back. It was the first day of Northa. Incident took place at about 7.30 night. In my house Bhupat's wife Chanda, Bhupat, and my wife were present. I was at the house of Fataji. I was sitting in the courtyard of Fataji. In the house of Fataji, Fataji, his wife Rai,daughter Kala ,and son Dashrat were present at home. Fataji was taking his supper. Dashrat came to courtyard after supper. At that time Kala was serving grass to cattle. Bakaji Udaj, Manaji Mansangji, Bakaji Karnaji and Karnaji Hiraji came to assault at the place where I was sitting. Addressing to Bhupatji they were saying " You come out , we may pay your money" . They were followed by other persons who were also giving abuses............On seeing these persons Bhupatji ran towards the house of Fataji on the North. All ran after Bhupat..........from amongst all Bakaji Udaji gave dharia blow on the rear side of the head of Bhupat , Manaji Mansanghji gave axe blow on the head, Karnaji Hiraji gave stick blow, Bakaji Karnaji gave dharia blow on the head. Manaji Shankerji gave axe blow on the right shoulder, Chamanji Vanaji, Amratji Shivaji Babuji Manaji, Chunaji Hiraji, Nenaji Talaji all gave dharia blow on the head, Valaji Jawanji gave sword blow on Bhuptaji. Bhuptaji warded it by his right hand as a result of which two of his fingers chopped out. Sarthanji also gave sword blow on Bhuptaji's hand and cut off Bhuptaji's fingers. When Fataji intervened he was also given stick blow on his hand by Jeetaji. Sardarji had a stick which he struck on the wrist of Chandaben. Amratji Sardarji gave stick blow on Bhupatji. Bakaji Karnaji