IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1061 of 1994 With CRIMINAL APPEAL No. 1089 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ RAJUBHAI RRTHODIA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR FB BRAHMBHATT for the appellants in Criminal Appeal No. 1061/94. MR KB ANANDJIWALA for the appellant in Criminal Appeal No.1089/94. MR KG SHETH, APP for Respondent in both the appeals. -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 04/09/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) On a trial held by the learned Sessions Judge, Panchmahals at Godhra, three appellants in Criminal Appeal No. 1061/94 and sole appellant in Criminal Appeal No.1089/94 have been convicted of the offences punishable under sections 302, 232, 324, 506(2) read with section 114 of the Indian Penal Code, section 135 of the Bombay Police Act as well as section 3(1)(x) & 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in Sessions Case No. 62(A)/93 and punished with R.I. for life and fine of Rs. 500/or in default to undergo R.I. for 3 months.In both these appeals, common judgment dated October 7, 1994 rendered by the learned Sessions Judge, Panchmahals at Godhra in Sessions Case No. 62(A)/93 is challenged. As common questions of facts and law arise for our consideration, we propose to dispose them of by this common judgment. 2. The complainant i.e. Dhanjibhai Vaghjibhai is a resident of village Pavagadh, Taluka : Halol, District : Panchmahals. At the time of incident, he was a member of joint family consisting of his brothers, parents etc. and was residing jointly with them. His elder brother Raghavbhai was serving as Head Constable at Limkheda Police Station of Panchmahals District. The name of his another brother is Harjibhai, who is a Lawyer by profession; whereas his 3rd brother was a driver. It may be stated that the complainant and his brothers are having their own agricultural lands and the complainant was looking-after agricultural operations. 3. The appellant no.2 in Criminal Appeal No.1061/94 i.e. Bhanuprasad Kantilal Shrimali is residing in the falia (street) of the complainant and belongs to Gorda community. According to the prosecution, Bhanuprasad was a head strong person and had habit of consuming liquor. The case of the prosecution is that Bhanuprasad after consuming liquor, used to quarrel with the persons residing in the falia and, therefore, many complaints were lodged against him at the police station. In one such incident, he had assaulted Valiben, residing in the falia of the complainant and given her a knife blow, regarding which a complaint was lodged against him. The prosecution claims that family of the complainant is a respected as well as leading family in the falia and, therefore, those who were residing in the falia were coming to the house of the complainant for the purpose of taking advice as well as for solution of their problems. Because of erratic behaviour of Bhanuprasad, complaints were made and, therefore, brother of the complainant i.e. Raghavbhai, who was serving as Head Constable, had scolded Bhanuprasad and advised him not to quarrel with anybody in the village. The prosecution claims that thereupon Bhanuprasad was annoyed and had given threats to the members of family of the complainant. 4. The incident in question took place on August 4, 1993. Two days prior to the date of the incident, a calf belonging to the family of the complainant was missing and, therefore, on August 4, 1993, the complainant i.e. Dhanjibhai and his brother Raghavbhai had gone in search of the missing calf. According to the prosecution, they had left their residential premises at about 7.00 P.M. and had reached near village Jepura at about 8.45 P.M. It is the case of the prosecution that when the complainant and his brother had reached the temple of Baliya Dev, they had seen accused Bhanuprasad Kantilal Shrimalia, Raju Raiyaji, Kanti Raiyaji and Pratap Amarsinh Baria standing there with their cycles. On seeing the complainant and his brother, Bhanuprasad had shouted that the complainant and his brother had become bullies of the falia and Raghavbhai would not be spared. The prosecution claims that accused Bhanuprasad had suddenly rushed towards the complainant and his brother with farsi (battleaxe) and given farsi blow on the hand of the complainant. It is the case of the prosecution that when Raghavbhai, who was brother of the complainant, had tried to save the complainant, accused Bhanuprasad had given farsi blow on the head of Raghavbhai, due to which Raghavbhai had fallen down. What is claimed by the prosecution is that when the complainant had tried to save his brother Raghavbhai, accused Bhanuprasad had given blow with back portion of farsi to the complainant; whereas accused Kantibhai Raiyajibhai had given stick blows on back of the complainant. Further the case of the prosecution is that accused Rajubhai Raiyajibhai had given hockey blows to the complainant on his chest. It is the case of the prosecution that due to assault mounted on him by the accused, the complainant had tried to run away from the place of incident, but accused Pratapsinh Amarsinh Baria had given a kick blow, as a result of which the complainant had fallen down on the ground. The case further put-up by the prosecution is that Raghavbhai was assaulted by Rajubhai Raiyajibhai by means of hockey and a blow was given with such a force that the hockey had broken into three pieces. According to the prosecution, accused Bhanuprasad had given 3 to 4 blows with farsi to Raghavbhai; whereas accused Pratapsinh had pelted stones on Raghavbhai. It may be stated that another brother of the complainant viz. Premji Vaghji in company of witness Dahyabhai Saburbhai had also gone in search of the missing calf to village Gokulpura and while coming back, they had heard shouts near village Jepura and, therefore, they had also gone to the place of incident. The prosecution claims that witness Dahyabhai Saburbhai had tried to intervene and save the deceased from being assaulted and at that time accused Rajubhai Raiyajibhai had given fist blow on his nose, due to which he had sustained a bleeding injury. As deceased Raghavbhai was assaulted, the complainant had shouted for help and on hearing his shouts, Narvatsinh Amarsing Master,Takhatsinh Prabhatsing, Ramsinh Himatsinh and others who were residing adjoining the place of incident had come there and on their arrival, the accused had run away on their cycles towards village Pavagadh. The prosecution case is that the persons who had rushed to the scene of offence on hearing shouts of help, had found that Raghavbhai had died on the spot. Therefore, Narvatsinh Master had gone to inform the Sarpanch of village Jepura. The sarpanch and other persons had come to the place of incident and injured Dhanjibhai as well as sarpanch had gone to Halol Police Station for lodging complaint, where first information report as given by injured Dhanjibhai was registered. The first information report lodged by injured Dhanjibhai was investigated by Mr. Pathak, Senior Police Sub-Inspector of Halol Police Station. During the course of investigation, the accused were arrested as well as other steps, such as, holding of inquest on the dead body of the deceased, sending the dead body for postmortem examination, recovery of weapons used in commission of crime etc. were taken. On the conclusion of investigation the accused were chargesheeted for the offences punishable under sections 302, 323, 324, 506(2) read with section 114 of the Indian Penal Code, section 135 of the Bombay Police Act as well as section 3(1)(x) & 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the Court of learned Judicial Magistrate, First Class, Halol. As the offence punishable under section 302 I.P.C. is exclusively triable by the Court of Sessions, the case was committed to Sessions Court, Panchmahals at Godhra for trial, where it was numbered as Sessions Case No. 62(A) of 1993. The charge was framed at Exh.3 against the accused of the offences punishable under sections 302, 323, 324, 506(2) read with section 114 I.P.C., section 135 of the Bombay Police Act as well as sections 3(1)(x) & 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The charge was read over and explained to the accused, who pleaded not guilty to the same and claimed to be tried. Therefore, the prosecution examined; (1) Dhanjibhai Vaghjibhai Vankar, P.W.1 at Exh.12, (2) Premjibhai Vaghjibhai, P.W.2 at Exh.14, (3) Babubhai Ahmedbhai Shekh, P.W.3 at Exh.15, (4) Vanrajbhai Talshibhai Patel, P.W.4 at Exh.17, (5) Dahyabhai Saburbhai, P.W.5 at Exh.19, (6) Dr. Sunil Nagori, P.W.6 at Exh.20, (7) Rajendra Kantilal, P.W.7 at Exh.28, (8) Govindbhai Samatbhai, P.W.8 at Exh.30, (9) Rajukumar Ratilal Shah, P.W.9 at Exh.32, (10) Nisar Ahmed Raheman Khatri, P.W.10 at Exh.34, (11) Pravinsinh Parbatsinh, P.W.11 at Exh.36, (12) Narvatsinh Amarsinh, P.W.12 at Exh.37, (13) Harjibhai Vaghjibhai Helaiya, P.W.13 at Exh.43, (14) Mansing Somabhai, P.W.14 at Exh.44, (15) Rajeshkumar Chunilal Pathak, P.W.15 at Exh.45, and (16) Govindbhai S.Parekh,P.W.16 at Exh.53, to prove its case against the accused. The prosecution also produced documentary evidence, such as, complaint lodged by injured Dhanjibhai, inquest panchnama, postmortem notes prepared by Dr. Nagori, panchnama of place of occurrence etc. in support of its case against the accused. After recording of evidence of prosecution witnesses was over, the learned Sessions Judge explained to the accused the circumstances appearing against them in the evidence of the prosecution and also recorded their further statements as required by section 313 of the Code of Criminal Procedure, 1973. In their further statements, the accused denied the case of the prosecution, but did not examine any witness in support of their defence. The original accused nos.1,2 & 4 submitted their written statement; whereas one certificate dated August 9, 1994 issued by Talati-cum-Mantri of Jepura Group Gram Panchayat was produced to establish that street lights in Mota Jepura, Nana Jepura, Abhetani Muvado and Ganeshpuri falia as well as Gokalpura village were not working since last five years. The appellant in Criminal Appeal No.1089/94 also produced a report submitted by him to the competent officer indicating that on the date of the incident, he was dischaging duties as watchman in the Office of Archaeological Survey of India, Vadodara and was not involved in the incident as was claimed by the prosecution. 5. On appreciation of evidence adduced by the prosecution and after hearing the learned counsel for the parties, the learned Judge deduced that it was proved by the prosecution that deceased Raghavbhai had died a homicidal death. According to the learned Judge, it was proved by the prosecution that the accused had formed an unauthorised assembly to fulfil their common intention of committing murder of Raghavbhai and causing injuries to complainant Dhanjibhai. The learned Judge held that it was proved by the prosecution that accused Bhanuprasad was armed with battleaxe; whereas Rajubhai Raiyajibhai was armed with hockey and Kantibhai Raiyajibhai was armed with stick, whereas accused Pratapsinh Amarsinh Baria was armed with stone to execute their common intention of committing murder of the deceased and causing injuries to the complainant. According to the learned Judge, the prosecution was successful in establishing that accused Bhanuprasad had caused serious injuries to the deceased and the complainant by deadly weapon like battleaxe. Further the learned Judge deduced that it was proved by the prosecution that all the accused to fulfil their common intention to commit murder of the deceased and cause injuries to the complainant, had caused injuries as claimed by the prosecution. After referring to the evidence of injured complainant Dhanjibhai, the learned Judge held that it was proved by the prosecution that accused Bhanuprasad had caused injuries to the complainant with sharp cutting instrument i.e. battleaxe. What was held by the learned Judge was that it was established beyond reasonable doubt that accused Rajubhai Raiyajibhai had given blow with a stick; whereas accused Kantibhai Raiyajibhai had given hockey blow and accused Pratapsinh Amarsinh Baria had given stone blow to the deceased. Further according to the learned Judge, all the accused were armed with deadly weapons in a public area and had, therefore, committed breach of notification issued by the District Magistrate under the provisions of the Bombay Police Act. After holding that the deceased was a member of scheduled caste, the learned Judge held that the accused had intentionally insulted him and given threats and thereby committed offences punishable under section 3(1)(x) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The learned Judge further held that it was proved by the prosecution that witness Dahyabhai Saburbhai had received simple injury due to fist blow given by accused Rajubhai Raiyabhai. In view of the above-referred to conclusions, the learned Judge held that the accused were guilty of the offences punishable under sections 323, 324, 506(2) read with section 114 of the Indian Penal Code as well as section 135 of the Bombay Police Act and sections 3(1)(x) & 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, by judgment dated October 7, 1994. The learned Judge thereafter heard the accused on the question of sentence and has punished all the accused with R.I. for life and fine of Rs.500/- i/d. R.I. for 3 months,by judgment dated October 7, 1994, which has given rise to the above-referred to two appeals. 6. Mr. K.B.Anandjiwala,learned counsel for the appellant in Criminal Appeal No.1089/94 and Mr. F.B.Brahmbhatt, learned counsel for the appellants in Criminal Appeal No. 1061/94 submitted that the incident had taken place in a dark night of rainy season and as there was no light with the help of which the accused could have been identified, the learned Judge should not have convicted the appellants. According to the learned counsel, panchnama of place of occurrence does not indicate that at the time of preparing panchnama, the bulb on D.P.Post was burning and as there is no reliable evidence to establish that there was any light at the place where the incident had taken place, atleast benefit of doubt ought to have been given to the appellants. After referring to the evidence of injured complainant, the learned counsel submitted that he had not mentioned the names of witness Premjibhai Vaghjibhai and witness Dahyabhai Saburbhai as those who had seen the incident and, therefore, the whole evidence being of doubtful nature, the accused ought to have been acquitted. It was claimed that there is delay in filing first information report by injured Dhanji and as detailed complaint was filed by the complainant after consultation with his brother Harjibhai Vaghjibhai Helaiya, who is a practising advocate, false implication is not ruled out and, therefore, the appeals of the appellants should be accepted. The learned counsel emphasised that accused Bhanuprasad was falsely implicated in the present case by injured Dhanji as Dhanji and his brothers wanted to usurp his property and in view of enmity between accused Bhanuprasad on one hand and complainant and others on the other hand, the prosecution case ought to have been disbelieved. The learned counsel referred to the medical evidence on record and submitted that the version putforth by Dhanji that the deceased was assaulted with hockey and sticks, is not corroborated by medical evidence at all and, therefore, his claim that he had witnessed the incident, ought to have been rejected by the learned Judge. According to the learned counsel, the conduct of the complainant was most unnatural, inasmuch as he had not given names of the present accused as assailants to Narvatsinh, who had come on the spot immediately and as the evidence of the complainant is improbable as well as full of inconsistencies, benefit of doubt ought to have been given to the appellants. The learned counsel for the appellants referred to the evidence of witness Premji Vaghji as well as that of Dahyabhai Saburbhai in extenso and submitted that as these witnesses were got-up to back-up a false case, the appellants should be acquitted. So far as evidence of witness Dahyabhai Saburbhai and witness Premji Vaghji is concerned, it was claimed that they had no opportunity to return to village Jepura before the incident had taken place and, therefore, their evidence could not have been relied upon by the learned Judge. The learned counsel for the appellants pointed out contradictions as well as omissions appearing in the evidence of prosecution witnesses and claimed that the evidence tendered by the prosecution witnesses being unreliable, should be discarded by the Court. According to the learned counsel, from the place of incident, a cycle was found, but no investigation was made by the investigating officer to find out whether it belonged to any of the accused or the deceased and in view of defective investigation, benefit of doubt should be given to the appellants. The learned counsel further submitted that the appellant in Criminal Appeal No. 1089/94 was not present at the place of incident, as he was serving as watchman in the Office of Archaeological Survey of India, Vadodara and, therefore, he is entitled to a reasonable benefit of doubt. What was emphasised was that the witnesses examined by the prosecution were not witnesses of truth and, therefore, after disbelieving the prosecution case, the appeals should be allowed. 7. Mr. K.G.Sheth, learned A.P.P. submitted that the injured complainant was knowing all the accused even before the incident had taken place and, therefore, he would not commit any mistake in identifying the accused as perpetrators of crime. According to the learned counsel for the State, evidence of injured complainant Dhanji is corroborated in material particulars not only by medical evidence on record which is tendered by witness Dr.Nagori, but also by evidence of two other eye witnesses, namely, Premji Vaghji and Dahyabhai Saburbhai and, therefore, the learned Judge did not commit any error in convicting the appellants of the offences with which they were charged. According to the learned Additional Public Prosecutor, farsi was produced by accused Bhanuprasad Kantilal Shrimali at the Police Station before he was arrested which was found to be blood stained and as the report of Serologist establishes that farsi had same group of blood as that of the deceased, it would be reasonable to hold that Bhanuprasad was near the deceased when the incident had taken place and had all opportunity of committing crime in question. What was claimed was that no enmity worth the name is suggested by the defence at all so far as appellants in Criminal Appeal No. 1061/94 are concerned and, therefore, their false implication in such a serious case is totally ruled out. The learned counsel stressed that though there are some contradictions as well as omissions in the evidence of prosecution witnesses, they are neither vital nor material so as to affect the prosecution case and, therefore, it cannot be said that any error was committed by the learned Judge in placing reliance on the evidence of the witnesses examined by the prosecution. The learned counsel pleaded that no evidence worth the name was adduced by accused Pratapsinh Amarsinh Baria to establish that he was not present at the place of incident, but he was discharging duties as watchman in the Office of Archaeological Survey of India at Vadodara and, therefore, plea of alibi having not been proved satisfactorily, no benefit of doubt should be given to the said appellant. In the alternative, the learned counsel for the State pleaded that even if the Court comes to the conclusion that evidence of witness Premji Vaghji and witness Dahya Sabur does not inspire confidence, conviction of the appellants should be sustained on the evidence of injured complainant Dhanji which is corroborated by medical evidence as well as find of blood on the farsi produced by him and there being no substance in the appeals, both the appeals should be dismissed. 8. We have heard the learned counsel for the parties at length and reappreciated the evidence on record. The fact that deceased Raghavbhai died a homicidal death is not in dispute. That fact stands amply proved by the evidence of Dr. Sunil Nagori who is examined as P.W.6 at Exh.20. Further postmortem notes prepared by Dr. Nagori would indicate that the deceased had sustained injuries on different parts of his person and that cause of his death was head injury sustained by him. The injuries sustained by the deceased are also mentioned in detain in inquest report which is produced on the record of the case at Exh.16. Thus, we are of the opinion that the learned Judge rightly concluded that it was proved by the prosecution that the deceased had died a homicidal death. The said finding being eminently just, is hereby upheld. 9. So far as the incident in question is concerned, the same is unfolded through the evidence of injured complainant Dhanji Vaghji Vanker, who is examined as P.W.1 at Exh.12. This witness in his evidence before the Court has stated that on August 4, 1993, he and his deceased brother Raghavbhai had gone to Nana Jepura village in search of their missing calf at about 7.00 P.M. and had reached the village at about 8.45 P.M. According to this witness, all the appellants were standing with their cycles near the temple of Baliya Dev and when he and his brother had reached near the accused, accused Bhanuprasad had shouted that the witness and his brother would be done to death. According to this witness, on hearing shouts, his brother Premji accompanied by Dahyabhai Sabur had also come at the place of incident, but Bhanuprasad had given farsi blow to him and as he had tried to ward it off, an injury was caused on his right hand. The injured witness further claimed before the Court that his deceased brother had tried to rescue him, but accused Bhanuprasad had inflicted a blow with farsi on his forehead as well as second blow on the right side of his chest and 3rd blow on right shoulder, as a result of which his brother had fallen down. According to Dhanjibhai, he had tried to intervene and, therefore, Bhanuprasad had given 2 to 3 blows with back portion of his farsi on his right thigh and at that time accused Rajubhai was beating his brother Raghavbhai by means of hockey; whereas accused Kantibhai was giving blows with stick to his brother and when his brother had tried to get-up, accused Pratapsinh Amarsinh had thrown stones on his chest. According to this witness, on hearing his shouts, persons of village Jepura had rushed to the place of incident and they had found that his brother had expired. What is claimed by this witness is that thereafter sarpanch of village Jepura was called and on his arrival, he had gone to Halol Police Station to lodge complaint. According to this witness, from village Jepura he had gone to Pavagadh by foot and from Pavagadh to Halol they had gone in a truck and met his brother Harishbhai, who was at that time present at his residence and his brother had told him that he should go to the Police Station to lodge complaint and narrate the incident as it had happened. The witness has further stated that after lodging the complaint he had gone to Hospital for treatment and after taking treatment he had gone to his residence. The witness claimed in his evidence that Dahyabhai Saburbhai who had tried to intervene