IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1177 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE D.K.TRIVEDI and Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- LIYAKAT ALI KALUMIYA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR EE SAIYED for Appellants MR YU MALIK for Appellants MR LR PUJARI, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.K.TRIVEDI and MR.JUSTICE J.R.VORA Date of decision: /05/2003 C.A.V. JUDGEMENT (Per : MR.JUSTICE J.R.VORA) 1. This Appeal is preferred by the accused of Sessions Case No. 145 of 1994 against the judgment and order of learned Addl. Sessions Judge, Ahmedabad (Rural), Mirzapur, recorded on 24.11.1994, convicting both the appellants for the offence under Section 302 read with Section 34 of the Indian Penal Code and sentencing each of the appellants for life imprisonment and imposing fine of Rs.5,000/-, in default, imprisonment of five years. It is also directed that the amount of Rs.5,000/- out of the fine, if paid, by the appellants, shall be compensated to the family members of the deceased. 2. The incident, culminated in the above said criminal trial for murder of one Abdulrashid Ismailbhai Shaikh, occurred on 19.4.1994 at 1730 hours at village Pethapur, Taluka - Gandhinagar. The complaint before the police is given by Babubhai @ Juberahmad Ismailbhai, elder brother of the deceased. On the fateful day, Babubhai, PW-1, Exh. 18, after closing his shop of cycle repairing, was proceeding towards his house and reached near the garden known as Sitabai Wadi. At that juncture, Babubhai @ Juberahemad and PW-3 Yakubkhan Akbarkan Pathan, Exh.22, were standing on road near the hand-cart of PW-2 Noormahammed Nazarmahmed Pathan. PW-2 was also present at his cart on which he was preparing and selling samosa. They saw deceased Abdulrashid Ismailbhai Shaikh coming on road from GEB side near the scene of offence. While deceased was about to reach near PW-1, PW-2 and PW-3, both the accused - appellants accosted the deceased Abdulrashid that as to why Abdulrashid was not entering into compromise in the case pending between them. The conversation culminated into hot altercation and accused No.1 Liyakatali Kalumiya Saiyad gave filthy abuses to the deceased. Accused No.2 thereafter caught hold of deceased by the hands and appellant No.1 Liyakatali Kalumiya took out a knife from his waist and gave two blows to the deceased one after the other on chest and the second one on abdomen. Babubhai @ Juberahmad Ismailbhai, PW-1 including PW-2 and PW-3 attempted to intervene but appellant No.2 Nisharahmed @ Katu Jahangirmiya Shaikh threatened them not to intervene and thereafter both the accused ran away from the scene of offence. Abdulrashid was seriously injured, had fallen down on the ground and after struggling for sometime for life, he succumbed to the injuries and was dead. Babubhai @ Juberahmed Ismailbhai thereafter had gone to GEB Colony to inform his eldest brother about the incident. The residence of the eldest brother of Babubhai was situated about 1 1/2 Kms. away from the scene of offence. Babubhai brought his eldest brother to the scene of offence and thereafter went to the Police Station for recording of the complaint. PW-7 Pravinchandra Harichandrasinh, PW-7, Exh. 31 was Police Station Officer of Pethapur Police Station and he recorded the complaint of Babubhai as dictated by him. Thereafter, the offence was registered against both the accused - appellants at 1915 hours. PW-7 Head Constable Pravinchandra entrusted the investigation to the Head Constable Arjunsinh who rushed at the spot to draw inquest panchnama. The inquest panchnama of the deadbody was prepared by Arjunsinh from 19.30 to 20.00 hours. Deadbody of Abdulrashid then was shifted to Pethapur Hospital on the same day and postmortem was performed by Dr. Devang Shah, PW-5 on 20.4.1994. On 19.4.1994, at about 20.10 hours Police Sub-Inspector of Pethapur Police Station, PW-8 Najibhai Kalasava took the charge of the investigation of the offence from Head Constable Arjunsinh. He recorded the statements of witnesses including PW-2 and PW-3 on 19.4.1994 and also recorded the further statement of complainant PW-1. Early on 20.4.1994, PW-8 I.O. drawn the panchnama of scene of offence in the presence of panchas from 7.00 hours to 8.00 hours and recorded the statements of other witnesses. On 6th of May, 1994, both the accused appellants were apprehended from the cave of River Sabarmati and were brought to Pethapur Police Station. On 6.5.1994, from 19.00 to 2000 hours, the panchnama of recovery of clothes of both the accused as well as arrest panchnama were drawn by the Investigating Officer. On 7.5.1994 at 6.30 hours to 7.45 hours, discovery panchnama was also drawn by the Investigation Officer in the presence of panchas where appellant No.1 Liyakatali, according to the prosecution case, had shown his willingness to recover the knife used in the crime from the cave of River Sabarmati. After investigation was over, both the appellants were charged with the offence punishable under Sections 302, 504 read with Section 34 of the IPC. Learned Trial Judge vide Exh. 5 framed the above said charges against both the accused to which they pleaded not guilty and hence the prosecution tendered oral as well as documentary evidence to prove its case. 3. The prosecution examined PW-1 Babubhai Juberahmed Ismailbhai at Exh. 18, PW-2 Noormohammad Nazarmahmed Palani, Exh.21 and PW-3 Yakubkhan Akhbarkhan Pathan, Exh.22 as eye witnesses of the incident. All the three eye witnesses supported the prosecution case and stated that the incident occurred at 1730 hours near Sitabai Wadi at village Pethapur where all the eye witnesses were standing near the hand-cart of PW-3 Yakubkhan, who was doing the business of selling samosa and at that time Abdulrashid - deceased came from GEB colony and was proceeding towards three witnesses standing near the larry of Yakubbhai when Abdulrashid accosted by both the accused. Accused No.1 asked the deceased as to why Abdulrashid was not compromising the cases between them. Accused No.1 Liyakatali uttered filthy abuses and he was excited. Accused No.2 Nisharahmed caught hold of the deceased by the hands and accused No.1 Liyakatali inflicted two knife blows to the deceased after taking knife from his waist. The blows landed on chest and abdomen. On attempt to rescue the deceased, accused No.2 threatened all the three witnesses not to intervene. On other persons gathering at the scene of offence, both the accused ran away towards River Sabarmati. 4. Prosecution examined Jeevnakhan Kajimiya, PW-4, Exh. 23 as panch of scene of offence and panch of recovery of clothes of deceased. PW-4 Jeevnakhan in all respects supported the panchnama of scene of offence at Exh. 24 and panchnama at Exh. 25 of recovery of clothes of deceased. 5. Dr. Devang Shah has been examined at Exh. 26 as a Prosecution Witness No.5. He deposed that the dead body was brought to him at 1930 hours on 19.4.1994 and he started postmortem on 20.4.1994 at 1100 hours and completed at 1240 hours. He deposed that the deceased had the following external injuries: " (i) Piercing wound obliquely situated over front of lt. side of chest (over 7th intercoscal space) which is 2 cms away from midline. Aperture of the wound is 4 cms x 2 cms and clear cut edges with acute angles. Wound is going upwards, backwards and to the lt. In the chest cavity and depth of it is 11 cms. (2) Piercing wound vertically situated over lt. side of epigastric 1 cm away from midline and 2 cms below from injury No.1 Aperture of the wound is 4 cms x 2 cms and clear cut edges with acute angles. Wound is directed towards backwards, upwards and to the lt. and depth of it is 6 cms. " The Doctor deposed that the injuries were antimortem and there were corresponding following internal injuries. (1) Clear cut two incise wounds over pericardium which coincise with the injury No.1 & 2 of column No.17. 250 gms (1) perforating wound over ant. surface of lt. ventricle, which is oblique. - Spindle shaped & approximately 3 1/2 cms x 1 1/2 cms in size and coincise with the injury No.1 of Col. No.17. (2) Perforating wound over post surface of Rs ventricle which is coincise with the root of injury No.1 of Col. 17 which is spindle shapes. 2 cms x 1 cm in size. (3) Perforating wound over ant. surface of lt. ventricle which is coincise with injury No.2 of Cl. No.17. According to Doctor, the cause of death was hemorrhagic shock due to injuries to vital organ (heart). The Doctor produced the postmortem note which was exhibited as Exh. 27. In examination-in-chief, he admitted that the injuries were possible by the knife of muddamal while in examination-in-cross, he stated that these injuries were not possible by the weapon like mudammal knife because the injuries were possible by the weapon which had both sharp edges. The evidence will be discussed later on. 6. Prosecution examined Babulal Shivlal Sharma, at Exh. 28 as PW-6 who was panch witness in panchnamas Exh. 29 and Exh.30. Panchnama Exh.29 is discovery panchnama prepared on 7.5.1994 at 6.30 to 7.40 hours wherein accused No.1 voluntarily disclosed before the panchas to discover the knife used by him in the crime. However, the Panch witness No.6, Babulal Sharma though he is not treated hostile, did not support wholeheartedly the panchnama Exh. 29. He was also the panch of Panchnama Exh.30 by which the clothes of both the accused were recovered on 6.5.1994 at 1900 hours and accused were arrested at 2000 hours. The panchnama was drawn between 1900 hours to 2000 hours. 7. Prosecution examined Pravinchandra Harichandra Sinh as PW7 at Exh. 31 who was in-charge of Pethapur Police Station on 19.4.1994 and at about 17.00 to 17.15 hours PW-1 Babubhai @ Jubarahmed Ismailbhai appeared before him and declared his complaint which was recorded by this witness as dictated by complainant Babubhai Ismailbhai Shaikh. The said original complaint which is the First Information Report is produced on record at Exh. 20. 8. The Investigating Officer Najibhai Kalasva, PW-8, has been examined at Exh. 32 by the prosecution. He deposed that he took over the investigation from Arjunsinh at 2010 hours on 19.4.1994. Since it was not possible to draw the panchnama of scene of offence on the same day because of night fall, on 20.4.1994, at about 7.00 hours to 8.00 hours in the presence of panchas which is at Exh.24, panchnama of scene of offence was drawn by him. On the day of incident i.e. on 19.4.1994, he recorded the further statement of complainant Babubhai and the statement of two eye witnesses. He recorded other statements as well. The accused were arrested and apprehended from the cave of River Sabarmati on 6.5.1994. Their arrest panchnama was drawn by him from 1900 hours to 2000 hours and next day he also in the presence of panchas drawn the panchnama of discovery of knife on 7th May, 1994 in the early hours of day. 9. The prosecution has produced on record the inquest panchnama at Exh. 10 drawn at 1930 hours to 2000 hours on 19.4.1994, which is admitted by the accused and exhibited. Muddamal i.e. the knife recovered from accused No.1, clothes of both the accused, clothes of deceased and the blood samples of the scene of offence including sample earth were sent to Forensic Science Laboratory vide Letter at Exh. 12 and the opinion of Forensic Science Laboratory is produced at Exh.15. 10. Learned Advocate Mr. Saiyed attacked the case of the prosecution on the ground that no independent witnesses have been examined by the prosecution. Both the witnesses PW-2 Noormohammad Nazarmohammad Palani as well as PW-3 Yakubkhan Akhbarkhan Pathan, according to learned Advocate Mr. Saiyed, are interested witnesses and their evidence cannot be relied upon. It was submitted that complainant Babubhai Exh.19 does not inspire confidence inasmuch as his conduct after the event is not natural. According to Mr. Saiyed, Pethapur Police Station is at a distance of 70 to 80 feet from the scene of offence and instead of going to Police Station, PW-1 Babubhai had gone to inform his eldest brother at GEB colony situated at a distance of 1 1/2 Kms. It was argued that none of the witnesses present at the scene of offence tried to intervene in the quarrel more particularly when deceased was the younger brother of PW-1. It was argued that GEB Colony is situated at a distance of 1 1/2 Kms, even then, Babubhai walked upto the residence of his eldest brother instead of rushing there and complaint allegedly had been filed at 1915 hours after delay even though the Police Station is situated nearby the scene of offence. The conduct of Babubhai thus discredits his evidence. It was argued that otherwise also the evidence of complainant is required to be discarded because he made improvements in his evidence and stated about two blows inflicted by the deceased while in the complaint at Exh. 20 he stated about one blow on the chest. Not only that, it was stated that in compliant Exh. 20, PW-1 never stated about the threats given by Nisharahmed about the intervention of Babubhai and other witnesses. According to Mr.Saiyed, these are material contradictions, vitiating the prosecution case. He further stated that both other eye witnesses i.e PW-2 and PW-3 are interested witnesses residing in the same mohlla in which PW-1 resides, as admitted by the witnesses. It was argued that the map which is at Exh.17 does not show the pangalla of PW-3 Yakubkhan nor the handcart of PW-2 on which PW-2 Noormohamad was preparing samosa and selling them. It was argued that the discovery panchnama at Exh. 29 cannot be said to have been proved by PW-6 Babulal Sharma. It was argued that PW-6 Babulal Sharma is a Barber and a police panch and, therefore, he was called as a panch by the Police in two panchnamas at Exh. 29 and Exh. 30. It was argued that his evidence does not inspire confidence and otherwise also according to deposition of PW-6 Babulal Sharma since the discovery of the knife is not at the instance of the accused No.1, the evidence in this regard is required to be discarded. Likewise, he also argued that PW-4 Jeevnakhan Kajimiya who is panch of panchnamas at Exhibits 24 and 25 of scene of offence as well as recovery of clothes of deceased is also a police panch, to whom the police had called for two panchas. It was argued that though the discovery of weapon is not proved, PW-5 Dr. Devang Shah at Exh. 26 categorically stated that external injuries which the deceased had, could not have been inflicted by muddamal article knife. It was further submitted that in view of the medical evidence and in view of weakest discovery evidence, the case of the prosecution through so called got up eye witnesses should not be believed. Mr. Saiyed also drawn our attention to the fact that postmortem note Exh. 27 clearly indicated that the dead body of the deceased was brought to the Civil Hospital at Gandhinagar at 1930 hours. Police Constable Arjunsinh had brought the dead body to the Civil Hospital. It was submitted that Dr. Devang Shah PW-5 at Exh.26 also admitted in cross-examination that he received the dead body of the deceased at 1930 hours on 19.4.1994. According to learned Advocate, the deadbody was admittedly shifted to Gandhinagar Hospital only after the inquest panchnama at Exh.10 which had been drawn during 1930 hours to 2000 hours on 19.4.1994, learned Advocate Mr.Saiyed submitted that how it could be possible that since the inquest panchnama was being drawn from 1930 hours to 2000 hours on 19.4.1994, deadbody could be handed over to the Hospital by Arjunsinh at 1930 hours on 19.4.1994 at Gandhinagar Hospital for postmortem. It was submitted that these discrepancies destroys the case of the prosecution and it transpires that the Investigating Officer has done something fishy and has roped both the accused in this serious crime. It was further submitted that according to the eye witnesses, the root cause of dispute between the deceased and the accused was some pending litigations, in which the deceased was asked to enter into compromise by the accused. It is submitted that this genesis or motive of the prosecution case has not been proved because nothing has come on the record to indicate that what were the litigations pending between the deceased and the accused. 11. Learned Advocate Mr. Saiyed submitted to acquit the accused of the charge levelled against them. Alternatively, it was also argued that there was no intention on the part of the accused to inflict such injuries as to cause murder of the deceased and the incident occurred on the spur of moment and if at all the accused are liable, then, they might have committed the offence under Section 304 Part-II of the Indian Penal Code. It was submitted that the accused are in jail for 9 years. 12. Learned APP Mr. L.R.Pujari, supported the judgment of the Trial Court and submitted that three eye witnesses were natural witnesses and there is no reason to discredit them. The conduct of PW-1 was natural in the circumstances. There may be mistake on the part of the Investigating Agency in noting timings of sending of dead body to the hospital but that itself is not a reason to overthrow the evidence of three eye witnesses. In the circumstances, according to Mr. Pujari, PW-1 Babubhai could not have gone to the Police Station and would have gone to his eldest brother who was residing only at the distance of one and half Kms away from the scene of offence. There is nothing, discredit worthy or unnatural conduct on the part of PW-1 in reaching Police Station at 1915 hours on the same day. Ultimately, it was stated that the murder was committed of younger brother in the presence of elder brother. In these circumstances, we cannot presume how one would react. 13. In light of the submissions made before us, we have carefully gone through record and proceedings of the Trial Court. We have evaluated and scanned all the testimonial collections as well as the documentary evidence produced before the Trial Court carefully. When we appreciated the evidence of PW-1 Babubhai, Exh. 18, we found that the evidence of Babubhai is creditworthy. He has stated that he was standing near the hand-cart of PW-2 Noormohamad along with PW-3 Yakubkhan. His presence at the scene of offence appears to be quite natural. He has deposed that he opens his cycle repairing shop situated near the Pethapur Bus stop at 8.00 or 8.30 in the morning and closes at 5.00 or 5.30 p.m. in the evening. The scene of offence is at a distance of 4 to 5 minutes from his shop of cycle repairing. Accordingly, as per routine, while he was proceeding towards his residence, he stopped at the larry of PW-2 where PW-3 Yakubkhan was also standing when the above said incident occurred. He was extensively cross-examined by the defence but nothing is brought about to disbelieve PW-1 Babubhai. True it is that he had not mentioned two facts in his complaint at Exh. 20. First about two blows inflicted and second about threatening of accused No.2 to prevent intervention of PW-1, but these are not the contradictions destroying the case of the prosecution. These are merely minor discrepancies or variance. Discrepancy or minor variance will have to be distinguished from contradictions. The contradiction in the statement of witness is undoubtedly fatal to the prosecution case while it should be contradiction and not variance. Minor discrepancy or variance in evidence will not make the prosecution case doubtful. This is so because the normal course of human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies on the contrary in law may render credential to the deposition. It is know canon of law that parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard must be required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which he perceived the scene of crime and environment and the condition of a witness when he narrates the scene of crime to the authorities. The only improvement which is vehemently advanced by the defence in respect of this witness is in regard to two blows of knife given by the accused No.1. In complaint, witness stated one blow, and in deposition he stated two blows. PW-1 also deposed that he did not intervene because of the threats given by accused No.2. Now appreciating the circumstances, it is clear that PW-1 had witnessed gruesome crime committed against his own younger brother causing the life of his brother. The so called contradiction or minor improvement attempted to magnify by the defence would be insignificant because it is revealed in the evidence that on the same day i.e. 19.4.1994 when PW-8 took investigation from Arjunsinh, recorded the further statement of PW-1 Babubhai @ Juber Ahmed Ismailbhai, wherein PW-1 categorically narrated that the accused No.1 inflicted two blows to the deceased and accused No.2 gave threat to prevent intervention. PW-1 is corroborated by the inquest panchnama Exh.10 drawn soon after the incident and by the medical evidence of PW-5 Dr.Devang Shah at Exh. 26 and by postmortem note at Exh. 27. The prosecution case itself is that accused No.2 threatened PW-1, Pw-2 and Pw-3 and prevented their intervention. This prosecution case though not disclosed by PW-1 in the complaint but this important disclosure is made by PW-2 Noormohammad Nazarmohammad Palani and PW-3 Yakubkhan Akbarkhan Pathan and that too soon after the incident because it is proved that I.O. recorded the statements of eye witnesses PW-2 and PW-3 on 19.4.1994 soon after the incident. No contradictions whatsoever are brought on the record by the defence in the cross-examination. Meaning thereby that PW-2 and PW-3 stated before the Court what they had stated before Police soon after the incident and consistently also. Both these witnesses, in this respect, corroborates PW-1 complainant Babubhai rendering defence argument baseless that there was contradiction and improvement in prosecution case. It would be noteworthy here that the statements of PW-2 Noormohammad and PW-3 Yakubkhan were recorded by Investigating Officer on 19.4.1994 and very promptly and while we appreciate the evidence of these two witnesses PW-2 and PW-3, we do not find any improvement or contradictions in the prosecution case as to two blows of knife and as to threat of accused No.2. Meaning thereby that the evidence of PW-1 cannot be thrown overboard on this count as submitted by learned advocate for the appellants because immediately the further statement of the PW-1 was recorded and there was no contradictions in the evidence of PW-1, PW-2 and PW-3, all the three eye witnesses. On the contrary, prompt action to record the statement on the part of the Investigating Agency would lend credence to the evidence of PW-1, Exh. 18 Babubhai @ Juberahmed Ismailbhai. 14. Much has been said about the conduct of this witness PW-1 Babubhai, criticising him in not approaching the Police Station which was 70 feet away from the scene of offence and going to GEB Colony to inform his eldest brother. We do not find any manipulation in prosecution case on this score. Having witnessed murder of youngest brother, one would