IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 95 of 1997 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE SHARAD D.DAVE ============================================================ 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- KANUBHAI GAFURBHAI RATHOD & 4 Ors. Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 95 of 1997 MR KJ SHETHNA for appellant. MR AY KOGJE, APP, for Respondent-State -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE SHARAD D.DAVE Date of decision: 01/09/2003 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Five appellants have filed instant appeal under Section 374 of the Code of Criminal Procedure, 1973 and challenged legality of judgment and order dated December 10, 1996, rendered by the learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, in Sessions Case No. 237 of 1994, by which they are convicted under Section 302 read with Section 149 of the Indian Penal Code as well as under Section 324 read with Section 149 of the Indian Penal Code, whereas the appellant Nos.1 to 4 are convicted of the offence punishable under Section 148 of the Indian Penal Code and all the appellants are sentenced to suffer imprisonment for life for the offence punishable under Section 302 read with Section 149 I.P.C. as well as R.I. for one year for the offence punishable under Section 324 read with Section 149 I.P.C. and appellant Nos.1 to 4 are sentenced to suffer R.I. for one year for the offence punishable under Section 148 I.P.C. It may be stated that the substantive sentences in case of each appellant are ordered to run concurrently. 2. Dansingbhai Nathabhai is a resident of village Kavitha, Taluka : Dholka, District : Ahmedabad. He is an agriculturist and owns a field known as "Gayjawala" located in the sim of village Kavitha. He had four sons, namely, (i) Pratapsinh, (ii) Mahobatsinh, (iii) Udesinh, and (iv) Himatsinh. In the morning of May 6, 1994, Pratapsinh and Udesinh with their two labourers i.e. Dhanjibhai Mavjibhai and Ramanbhai Somabhai had gone to the said field for sowing sugarcane crop. At about 8.00 A.M., appellant Nos.1, 3 & 5 had come in a tractor for going to the field of appellant No.1 and in that process, had damaged sugarcane crop, as a result of which there was exchange of words. All the three accused had gone away and administered threats to Pratapsinh and Udesinh. At about 11.00 A.M.,complainant Dansingbhai Nathabhai had come to his field and was informed as to what had happened at 8.00 A.M. in the morning. At about 1.00 P.M. Pratapsinh had gone to village Kavitha for the purpose of bringing tea for those persons who were working in the field and had returned back in the tractor to the field at about 1.30 P.M. At about 2.00 P.M., all the appellants had come in a tractor which was driven by the appellant No.5. After alighting from the tractor, appellant No.3 had given two knife blows to Pratapsinh. On seeing that his brother was being assaulted, Udesinh had come to his rescue, but the appellant No.5 had caught hold of him; whereas appellant No.4 had given knife blows to him. Dansingbhai Nathabhai on witnessing that his two sons were assaulted had tried to intervene, but appellant No.1 Kanubhai had given two dharia blows on his head and leg; whereas appellant No.2-Dhirubhai had aimed a dharia blow on his head, but,Dansingbhai had raised his hand in defence and therefore, blow had landed on his elbow. On commotion taking place, two labourers, who were working in the field, had come where the three persons were being assaulted and, therefore, appellant No.1 had taken out revolver and attempted to fire a shot, but could not succeed. Thereafter, all the appellants had boarded the tractor in which they had come. It was driven by appellant No.5, and all the appellants had run away from the scene of offence with their respective weapons. The two labourers had lifted and placed two sons of the complainant and the complainant himself in the tractor which was brought by Pratapsinh before the incident had taken place. It may be stated that distance between the field and the house of complainant Dansingbhai which is situated in village Kavitha, is roughly 1 K.M., and when the injured were being brought to the village, at the outskirts of the village, Himatsinh who is son of the complainant had met. Himatsinh had informed the labourers that he was making arrangement for Matador for removing the injured to Hospital for treatment. Himatsinh had made arrangement for Matador in which injured were removed to V.S.Hospital, Ahmedabad at about 4.00 P.M. The doctor on duty, who had examined the two sons of the complainant i.e. injured Pratapsinh and injured Udesinh, had declared that they were brought dead, and advised the labourers and the complainant to go to Civil Hospital. Therefore, in a Van, two dead bodies and injured complainant were removed to Civil Hospital, where the complainant was admitted in the hospital for treatment. After treatment of the complainant was started, an information was conveyed at Bavla Police Station from Ahmedabad Rural Control on telephone to the effect that a quarrel had taken place at village Kavitha wherein three persons were injured and were admitted in Civil Hospital, but two had died. On receipt of information, Mr. T.S.Patel, who was then Police Sub Inspector of Bavla Police Station, had gone to village Kavitha and arranged bandobast. Thereafter, he had gone to Civil Hospital and recorded complaint of Dansingbhai Nathabhai. The complaint given by Dansingbhai was sent to Bavla Police Station for registration and after registration, investigation into the case was made by Mr.T.S.Patel. He had recorded statements of witnesses, who were found conversant with the facts of the case and prepared panchnama of place of incident. Further, he had also recovered the weapons used by the accused on the basis of information given by them and sent incriminating articles to Forensic Science Laboratory for analysis. On completion of investigation, the appellants were chargesheeted in the Court of learned Judicial Magistrate, First Class, for the offences punishable under Section 302 & 307 of the Indian Penal Code. As the offences punishable under Sections 302 & 307 of the Indian Penal code are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Ahmedabad for trial, where it was numbered as Sessions Case No. 237 of 1994. 3. The learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, had framed charge against the appellants at Exh.8 for the offences punishable under Section 302 read with Section 149 of the Indian Penal Code and under Section 324 read with Section 149 of the Indian Penal Code. Appellant Nos.1 to 4 were also charged of the offence punishable under Section 148 of the Indian Penal Code. The charge was read over and explained to the appellants, who had not pleaded guilty to the same. Therefore, in order to prove its case, the prosecution had examined, (1) injured complainant Dansingbhai Nathabhai, PW.1 at Exh.16, (2) Prahladbhai Bhagvanbhai Patel, PW.2 at Exh.17, (3) Eye witness Dhanjibhai Mavjibhai, PW.3 at Exh.21, (4) Eye witness Ramanbhai Somabhai, Pw.4 at Exh.22, (5) Dasharathbhai Popatbhai, PW.5 at Exh.23, (6) Dinubhai Fulabhai Rathod, PW.6 at Exh.26, (7) Kushalsinh Bhagvanbhai, PW.7 at Exh.28, (8) Ishwarbhai Nathabhai, PW.8 at Exh.32, (9) Executive Magistrate Rajnikant Prahladji Trivedi, PW.9 at Exh.34, (10) Gulam Dastniy Gulam Husen, PW.10 at Exh.36, (11) Dr.Ganesh Pyarelal Govekar, PW.11 at Exh.40, (12) Dr.Jayendra Ratilal Modi, PW.13 at Exh.45, (13) Udesinh Prabhatsinh, PW.14 at Exh.48, (14) Investigating Officer Trikambhai Shankerdas Patel, PW.15 at Exh.50, and (15) Harikrushna Ghanshyambhai Patel, the then S.D.P.O, PW.16 at Exh.56. The prosecution had also produced documentary evidence, such as, complaint of Dansingbhai Nathabhai at Exh.65, panchnama of place of incident at Exh.18, report of Serologist at Exh.20, panchnama of clothes of injured complainant Dansingbhai at Exh.24, inquest held on the dead body of deceased Pratapsinh at Exh.25, inquest held on the dead body of deceased Udesinh at Exh.27, panchnama relating to seizure of clothes of the accused at Exhs. 28 & 29, panchnama of discovery of weapons at the instance of accused Kanubhai, Jagabhai and Dhirubhai at Exh.30, panchnama of identification parade relating to appellant No.5 at Exh.33, panchnama of identification of appellant No.5 by dog at Exh.37, postmortem notes of deceased Pratapsinh at Exh.41, postmortem notes of deceased Udesinh at Exh.42, Vardhy receipts at Exhs.44, 49, 51 etc., injury certificate of injured complainant Dansingbhai at Exh.46, map of place of incident at Exh.57 etc. in support of its case against the appellants. After recording of evidence of the prosecution witnesses was over, the learned Judge had explained to the appellants circumstances appearing against them in the evidence of prosecution witnesses, and recorded their further statements as required by Section 313 of the Code of Criminal Procedure, 1973. In the further statement, defence of the appellants was that of total denial. However, the original complainant had submitted written submissions at Exh.60; whereas appellant Nos.1,2 & 5 had submitted written submissions at Exh.62, for consideration of Court. 4. After appreciation of evidence adduced by the prosecution and hearing the learned counsel of the parties, the Trial Court concluded that the evidence of the complainant and that of two eye witnesses was cogent, reliable and trustworthy, as there were no major discrepancies in their testimonies. The learned Judge of the Trial Court on analysis of the evidence led by prosecution concluded that it was proved by the prosecution beyond reasonable doubt that deceased Pratapsinh and deceased Udesinh had died homicidal death in the incident which had taken place in the sim of village Kavitha on May 6, 1994. The learned Judge on critical analysis of evidence held that it was proved by the prosecution that on the day of incident, the appellants had formed an unlawful assembly, the common object of which was to cause murder of the complainant and his relatives, and in furtherance of their common object, the appellants were guilty of rioting within the meaning of Section 147 of the Indian Penal code. According to the learned Judge, while indulging into rioting, appellant Nos.1 to 4 were armed with deadly weapons and were, therefore, liable to be convicted of the offence punishable under Section 148 of the Indian Penal Code. On assessment of evidence led by the prosecution, the learned Judge deduced that it was proved by the prosecution that in prosecution of the common object of unlawful assembly, appellant No.3 had caused murder of deceased Pratapsinh by inflicting knife blows and, therefore, appellant No.3 was liable to be convicted of the offence punishable under Section 302 of I.P.C.; whereas rest of the appellants were liable to be convicted of the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. The learned Judge also held that in prosecution of the common object of the unlawful assembly, appellant No.4 had caused murder of deceased Udesinh by inflicting knife blows and, therefore, he was liable to be convicted of the offence punishable under Section 302 of the Indian Penal Code; whereas rest of the accused were liable to be convicted of the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. The learned Judge further held that it was proved by the prosecution that appellant No.1 had caused injury on left thigh and head of the complainant by means of dharia; whereas appellant No.2 had caused injury on right hand elbow of the complainant by means of dharia, but, the injuries were simple in nature and, therefore, they were liable to be convicted of the offence punishable under Section 324 of the Indian Penal Code; whereas rest of the appellants were liable to be convicted of the offence punishable under Section 324 read with section 149 of the Indian Penal Code. In view of the abovereferred to findings, the learned Judge has convicted the appellants of the offence punishable under Section 302 read with Section 149 of the Indian Penal Code as well as under Section 324 read with Section 149 of the Indian Penal Code, whereas appellant Nos.1 to 4 are also convicted under Section 148 I.P.C. and after recording conviction, the learned Judge has imposed sentences referred to earlier giving rise to instant appeal. 5. During the pendency of the appeal, the appellants had moved Criminal Misc. Application No.488 of 1997 and prayed the Court to direct that Mr.B.R.Patel, Executive Magistrate, Metropolitan area, Ahmedabad City, who had recorded statement of complainant Dansingbhai Nathabhai Rathod between 11.15 P.M. and 11.35 P.M. on May 6, 1994 as dying declaration be examined as a Court witness in Sessions Case No.237 of 1994. After hearing the parties, the Division Bench comprising N.J.Pandya & H.L.Gokhle,JJ., vide order dated February 7, 1997, had directed the Sessions Court to record testimony of Executive Magistrate Mr.B.R.Patel, and proceed further to prepare paper-book, as the appeal was already admitted. Pursuant to abovereferred to direction dated February 7, 1997, testimony of Baldevbhai Rambhai Patel was recorded as Court Witness No.1 at Exh.70, and the statement of complainant Dansingbhai recorded by Mr. B.R.Patel was produced on record of the case at Exh.71. 6. Mr.K.J.Shethna, learned counsel of the appellants contended that the first information report was recorded late after about 7 hours of the incident and report under Section 157 of the Code of Criminal Procedure was not despatched to the learned Magistrate promptly, which renders the prosecution case doubtful and, therefore, conviction recorded should be set aside. According to the learned counsel of the appellants, the complaint was neither lodged promptly by the two labourers nor by Himatsinh to whom all the relevant facts were conveyed by the two labourers at the outskirts of village Kavitha nor by the complainant himself and as the accused have been falsely implicated in the case because of enmity, the prosecution case should be disbelieved. What was maintained was that though inquest on the dead body of deceased Udesinh was held on May 6, 1994 between 8.00 P.M. and 8.30 P.M. and inquest on the dead body of Pratapsinh was held between 9.00 P.M. and 9.30 P.M. in presence of witnesses belonging to village Kavitha, no names of the appellants were revealed to anyone at the earliest point of time, which makes the case of the prosecution highly doubtful. The learned counsel of the appellants argued that in Exh.44, which is Vardhi given by Civil Hospital to Shahibaug Police Station on May 6, 1994 as well as in Vardhi Exh.49, which was received by police head constable Udesinh Prabhatsinh, names of the appellants were not disclosed at all, nor names of the appellants were disclosed by the injured before the doctor, who had treated him, which makes the prosecution case against the appellants doubtful and, therefore, the appeal should be accepted. The learned counsel pointed out that Executive Magistrate Baldevbhai Patel had recorded statement of complainant Dansingbhai between 11.15 P.M. and 11.35 P.M., but crime register number was not mentioned in the said statement, which raises serious doubt as to whether the complaint of the complainant was, in fact, recorded at 9.30 P.M. and the appellants having been falsely implicated in the case because of enmity, the appeal should be allowed. On reference to the evidence of Dr.Modi, who had treated the injured complainant, it was pleaded that the complainant was never admitted as an indoor patient and was conscious all throughout, but had not lodged the complaint promptly and, therefore, the prosecution case should have been disbelieved by the learned Judge. What was highlighted was that Himatsinh, who was brother of the deceased and son of the complainant, was not examined as one of the witnesses by the prosecution with an oblique motive, though he was fully conversant with the facts of the case as conveyed to him by the two labourers and was also present at the hospital and, therefore, after drawing adverse inference against prosecution, case of the prosecution against the appellants should be disbelieved. While criticising the evidence of two labourers, namely, Dhanjibhai and Ramanbhai, it was argued that if the two labourers had known the name of appellant No.5, then in Exh.18, which is panchnama of place of incident, labourer Dhanjibhai would not have referred to appellant No.5 as Kanubhai's relative and, therefore, it was doubtful whether, in fact, they had witnessed the incident. The learned counsel further submitted that joint recovery of weapons at the instance of original accused Nos. 1 to 4 between 11.30 P.M. and 3.00 P.M. is doubtful and, therefore, recovery of weapons of offence at the instance of appellant Nos.1 to 4 should not have been treated as an incriminating circumstance against the appellants by the learned Judge. The learned counsel of the appellants referred to in detail the evidence of investigating officer and pointed out that in view of defects committed by him in investigation, benefit of doubt should be accorded to the appellants. It was contended that evidence regarding identification parade adduced by the prosecution being feeble in nature should be discarded by the Court and the appellant No.5 deserves to be acquitted, as there is no other reliable evidence establishing his involvement in the incident in question. What was asserted was that appellant No.5 was neither known to the complainant before the incident nor known to two labourers, who were hailing from village Kavitha and as the complainant never knew as to who were assailants, at least the appellant No.5 is entitled to acquittal rendering conviction of rest of the appellants with the aid of Section 149 I.P.C., as bad in law, and as Section 34 I.P.C. is not pressed into service by the prosecution, the appellants should be convicted on the basis of principle of minimum liability. The learned counsel stressed that the learned Judge of the Trial Court has not properly appreciated the evidence in its proper perspective and, therefore, the appeal should be accepted. 7. Mr.A.Y.Kogje, learned Additional Public Prosecutor, pointed out that the incident in question had taken place at about 2.00 P.M., after which the injured were taken to the village in a tractor from-where they were removed to hospital and on doctor declaring two injured as dead before arrival, injured complainant was removed to Civil Hospital where he was treated and where his complaint was recorded and as there is no delay in lodging the complaint, the prosecution case is rightly believed by the learned Judge. In the alternative, it was argued that delay, if any, in lodging complaint stands satisfactorily explained by the evidence of the complainant read with the evidence of the investigating officer and, therefore, the appellants are not entitled to any benefit of doubt on the ground that there was delay in lodging F.I.R. The learned counsel of the State Government referred to the evidence of injured complainant as well as two witnesses in detail, and argued that not only their evidence is cogent and consistent, but inspires confidence, as they have not narrated parrot like story before the Court and, therefore, conviction of the appellants based on their testimonies, should be upheld by this Court. The learned counsel of the State Government emphasised the reason as to why inquest is being held in a case of murder as well as importance of panchnama of place of incident in criminal trial, and emphasised that non-mention of crime register number therein is of little consequence, nor non-mention of crime register number would entitle the appellants to claim acquittal. According to the learned Additional Public Prosecutor, Himatsinh was not an eye witness and was conveyed information from others, and as his evidence would be hearsay evidence, his non-mention is of no consequence when prosecution case is unfolded by reliable and trustworthy evidence of the complainant and two other eye witnesses. What was asserted was that it was never suggested by the defence to any witness that before filing of the F.I.R., deliberations had taken place between the complainant and others, as a result of which, the appellants were falsely implicated in the case and as false implication is ruled out, appeal has no merits. It was argued that had there been deliberations before lodging of the complaint, appellant No.5 would not have been described as a relative of Kanubhai i.e. appellant No.1, but would have been named as such, which factor indicates that no part of evidence was concocted by the prosecution against the appellants and the appellants are not entitled to the benefit as claimed by the learned counsel of the appellants. It was emphasised on behalf of the State that in view of well reasoned judgment of the trial Court, conviction of the appellants is not liable to be set aside and the appeal should be dismissed. 8. We have considered the submissions advanced at the Bar and undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to broad reasonable probabilities of the case. The fact that deceased Pratapsinh and deceased Udesinh died homicidal death is not in dispute. Injured complainant Dansingbhai Nathabhai father of deceased Pratapsinh and deceased Udesinh, has stated in his testimony before the Court that his two sons were assaulted by the appellants and had received knife injuries. He is corroborated by eye witness Dhanjibhai and eye witness Ramanbhai. The inquest panchnama of Pratapsinh produced at Exh.25 also mentions the injuries sustained by him. So also inquest panchnama relating to deceased Udesinh produced at Exh.27 mentions injuries sustained by him. Further, postmortem notes of deceased Pratapsinh are produced at Exh.41, wherein injuries sustained by him are mentioned in detail. Similarly, postmortem notes of deceased Udesinh produced at Exh.42 also contain details of injuries sustained by him. As per the postmortem notes, deceased Pratapsinh had died due to shock of haemorrhage, as a result of stab injuries sustained by him; whereas as per the postmortem notes of deceased Udesinh, he had died due to shock of haemorrhage consequent upon stab injuries sustained by him. Thus, this Court finds that the finding that deceased Pratapsinh and deceased Udesinh had died homicidal death, is eminently just and is hereby upheld. 9. Before dealing with the contentions raised at the Bar, it is relevant to notice that the prosecution has placed reliance on testimonies of injured complainant Dansingbhai Nathabhai and two eye witnesses, namely, Dhanjibhai and Ramanbhai, to prove case against the appellants. Therefore, it would be relevant to notice important features appearing from their evidence recorded before the Court. Dansingbhai Nathabhai, PW.1 Exh.16, has stated that the incident in question had taken place on May 6, 1994, and that in the morning, his two sons i.e. deceased Pratapsinh and deceased Udesinh had gone to his field for the purpose of sowing sugarcane. According to the complainant, he had gone to his field at about 11.00 A.M. and found that his two sons were sowing the crop and were being helped by two labourers, namely, Dhanjibhai and Ramanbhai. The witness has stated before the Court that the labourers belong to village Badarkha. According to him, after he reached his field, he was informed by his son Udesinh that in the morning at about 8.00 A.M., appellant No.1, appellant No.3 and appellant No.5 had entered field of the appellan No.1 in a tractor and damaged the crop, as a result of which he had scolded them, but he was threatened and asked to be in the field, as they were to return immediately. What is mentioned by this witness in his examination-in-chief