IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 577 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE A.L.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 Civil Judge? : NO -------------------------------------------------------------- SATWARA HIRA BABU Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: Mr.Magan Barot, Senior Advocate, with Mr.Jiten M. Buddhbhatti for the appellants Ms. Katha Gajjar, APP, for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE A.L.DAVE Date of decision: 20/10/2000 ORAL JUDGEMENT (Per : MR.JUSTICE M.H.KADRI) 1. Appellants, in this appeal which is filed under Section 374 of the Code of Criminal Procedure (hereafter referred to as 'Code'), have challenged judgment and order dated May 20, 1992 passed by learned Additional Sessions Judge, Jamnagar, in Sessions Case No.14 of 1991, by which judgment, the appellants were convicted under Section 302, read with Section 34, of Indian Penal Code and each of them was sentenced to suffer imprisonment of life and to pay fine of Rs.1000/in default, R.I. for two months. However, the appellants were acquitted for offence punishable under Section 135 of the Bombay Police Act. 2. The prosecution case, as unfolded at the trial, is as under: P.W. 1, Premiben, (complainant), wife of Ramji Kanji, was residing in the out-skirt of Jamnagar city in a wadi (agricultural field wherein farm house is also constructed) near Manikeshwar Mahadev, along with her husband, Ramji Kanji, and seven sons, namely, (1) Arjan Ramji, (2) Laxman Ramji, (3) Premji Ramji, (4) Bhagwanji Ramji, (5) Devji Ramji, (6) Mulji Ramji, and (7) Gopal Ramji. P.W.1, Premiben had also four daughters and all of them were married. Daughter Muktaben had become widow and therefore she was residing with the complainant. According to the complainant, prior to five years of date of incident, brass-parts factory was established in the wadi and, to run the factory, they had taken electricity line from the adjoining wadi belonging to appellant No.6, Babu Laxman, and his brother, Jayanti Alias Nanu Laxman. It is the case of the complainant that the side of the appellants, time and again, used to disconnect the electricity supply which was given from their wadi. For that, Laxman Ramji (since deceased) had filed a complaint to the Gujarat Electricity Board. Because of filing of the complaint, appellant No.6 and his brother Jayanti Laxman, had developed strained relation with the complainant and her family. When the Officers of the Gujarat Electricity Board had come to the wadi of the complainant to restore electricity supply, appellant No.1 and Jayanti Laxman had beaten them. The Officers of the Electricity Board had complained to their superiors and, therefore, the police personnel had come to their wadi and arrested appellant No.1 and his brother Jayanti Laxman. After this incident, illwill and enmity had developed between the family of the complainant and the family of appellant No.6. Prior to the incident, the side of appellant had attacked the family members of the complainant and, in that incident, Premji, Bhagwanji, Mulji and nephew of the complainant, Lalji, had sustained injuries due to infliction of blows by swords. In the same incident, the complainant had lost finger of her right hand. For this incident, criminal case was lodged against the side of the appellants. A suit for compensation for injuries sustained by the complainant and her family members was also filed, which was pending in the Civil Court at Jamnagar. As per the prosecution case, during pendency of the criminal as well as civil proceeding, election of Jamnagar Municipal Corporation had taken place and, during that election period, Dahyababu, who was son of appellant no.6, was murdered near Darbargadh, Jamnagar, wherein, for murder of Dahya Babu, son of the complainant,namely, Gopal Ramji and Kanji Bhimji were arraigned as accused. Brass-parts factory, which was previously established in the wadi of the complainant, was after sometime shifted to Kisan Chowk, which was situated in the city of Jamnagar. On the day of the incident, i.e. November 11, 1990, Laxman Ramji, Premji Ramji, his nephew Lalji Bhimji, Jaisukh Arjan and Hemant Arjan had gone to attend the brass-parts factory at Kisan Chowk. Jaisukh Arjan and Hemant Arjan had returned to the wadi around 7 p.m. According to the complainant, Laxman Ramji, Premji Ramji and her nephew Lalji Bhimji had remained at the factory because of some work and they were to return late at night. All the above three persons had two cycles between them. Between 9.30 p.m. and 10 p.m., when the complainant was at her residence situated in the wadi, she heard shouts of all the three persons crying for help. The complainant took a dry-cell battery which was available in the house and rushed towards the directions from which shouts of three persons were raised. As the complainant came out of her wadi, she was shocked to see appellant No.1, Hirji Babu, carrying a sword, appellant no.2, Gopal Babu, carrying a dharia, appellant No.3, Lalji Babu carrying a sphere, appellant no.4 Jayanti Laxman carrying iron khampali (harrow or a rake - name of a tool used by a farmer), appellant No.5, Shamji Laxman carrying gupti and appellant No.6 Babu Laxman (unarmed). All the six persons were proceedings towards their wadi. The complainant with the help of battery went in the direction of river-bed where her nephew Lalji Bhimji was lying in injured condition. Lalji Bhimji was lying on the river bed. When the complainant asked Lalji Bhimji as to how he had sustained injuries, Lalji Bhimji informed the complainant that Hira Babu, appellant No.1, with sword, Gopal Babu, appellant No.2 with dharia, Lalji Babu appellant No.3 with sphere, Jayanti Laxman appellant No.4 with khampali, Shyamji Laxman appellant no.5 with gupti, and appellant No.6 Babu Laxman with iron pipe, had assaulted him and caused injuries. Lalji also informed the complainant that two brothers, namely, Premji Ramji and Laxman Ramji were lying in injured condition near wadi of Hameed Ahmad. Thereafter, the complainant went to her son, Laxman Ramji, who was lying near wadi of Hameed Ahmad. Laxman Ramji was also seriously injured and had narrated about the incident in the same way as narrated by Lalji Bhimji. Thereafter, the complainant went near the wadi where Premji Ramji was also lying in seriously injured condition. According to the complainant, Premji Ramji also gave same vivid description of the incident and weapons used by each appellant in causing fatal injuries on his body. As per the say of the complainant, her son, Arjan Ramji, Bhagwanji and two sons of Arjan, had also arrived at the place of incident. Thereafter, the complainant instructed Arjan Ramji and his sons to bring a cart. Accordingly, cart was brought, wherein, all the three injured persons were taken to Kisan Chowk. In the cart, the complainant, Arjan Ramji, his two sons, and Bhagwanji had accompanied injured persons. From the shop of Moon Video, which was situated at Kissan Chowk, a message was sent to call for an ambulance. Within 10-15 minutes of message, the ambulance had arrived at and in that ambulance, all the three injured persons, complainant and her son, had gone to Irwin Hospital. When they reached at the hospital at 24.30 hrs, the Doctor on duty on examination of injured persons, had declared them dead. Accordingly vardhi was given to the police constable who was on duty at Irwin Hospital. The police constable, in turn, had sent vardhi to Police Control Room of Jamnagar City, that three persons had died due to beating (maramari). P.I. G.V. Chauhan, received vardhi while he was patrolling on 12.11.2000 around 0.30 hrs that maramari incident had taken place near Manikeshwar Mahadev, P.I. Chauhan to find out the jurisdiction under which police station Manikeshwar Mahadev was situated went to the police station and when he was satisfied that the incident had taken place in the territory of Jamnagar "B" Division Police Station, hd gone to the place of incident via Irwin Hospital. He had posted one constable at the place of incident. After returning to the police station, P.I. Chauhan had recorded complaint of P.W.1, Premiben around 5 a.m. On November 12, 1990. Inquest of dead bodies of Lalji Bhimji, Laxman Ramji and Premji Ramji was held and dead bodies were sent for autopsy. P.W.2, Dr. Satish Dinkar Kalele of M.P. Shah Medical College performed autopsy of the dead bodies of Lalji Bhimji, Laxman Ramji and Premji Ramji. P.I. Chauhan, thereafter, prepared panchanama of scene of offence as shown by P.W.6, Mulji Ramji. From the place of incident, P.I. Chauhan, collected blood-stained earth, blood-stained gupti, blood-stained knief, two bicyles, one rampuri knief, one pair of goggles in broken condition, and thumb of Lalji Bhimji, which was choped off in the incident. P.I. Chauhan had also collected blood-stained earth where body of Lalji Bhimji was lying near the river bed. From that place, P.I. Chauhan seized one iron pipe, one knife (nagni chhari), which was stained with blood. All these articles were seized under panchanama. Thereafter, P.I. Chauhan had recorded statements of witnesses, Mulji Ramji, Sita, wife of Arjan Ramji, Rasila Arjan, Devaben Arjan, Dhanuben, wife of Arjan Ramji, Maniben, wife of Bhagwan Ramji, Dahyaben wife of Mulji Ramji and Bhanuben wife of Jaisukh Arjan. P.I. Chauhan could not record statements of other witnesses because they were busy with funeral ceremony of three deceased. Appellant Nos, 1, 2 and 3 were arrested under arrest panchanama and their clothes which were stained with blood were seized. On November 13, 1990, P.I, Chauhan had gone in search of other accused and had recorded statements of witnesses. Appellant Nos. 1, 2 and 3, when they were in custody, had shown their willingness to produce weapons used in the incident and, therefore, two independent panchas were called and preliminary panchanama was prepared at the police station. Thereafter, the police party and panchas had gone to the direction as shown by appellants Nos.1, 2 and 3 and had recovered muddamal weapons which were used in commission of offence. The said weapons were seized under panchanama in presence of panchas. The appellants, who were arrested, were taken on remand till November 15, 1990. Thereafter, P.I.Chauhan, recorded statements of Arjan Ramji, Jaysukh Arjan, Hemant Arjan, Shamji Lalji, Bhagwanji Ramji, Dahyeben wife of Premji Ramji, Veluben wife of Ramji, Ramji Kanji, Amrutben, Devji Ramji, Muktaben, daughter of Ramji Kanji, and Deviben wife of Shamji Lalji. Other appellants came to be arrested on November 14, 1990 under an arrest panchanama. At the instance of appellant no.4 under the discovery panchanama, weapons used in the incident came to be discovered. On the same day, P.I. Chauhan recorded statement of Ranchhod Alias Babu Bhimji, and Odhavji Bhimji. Blood samples of all the appellants were collected under panchanama on November 15, 1990. P.I. Chauhan recorded statements of Kanti Mavji, Memon Hamid Haji, Ravji Premji, Rabhuba Jhulabhai, Premji Mavji and Dineshbhai Gordhanbhai, who was owner of Moon Video. On November 16, 1990, P.I. Chauhan received blood-stained clothes and blood samples of deceased from Irwin Hospital, and the said clothes and blood samples were sent to chemical analyser. After receiving post-mortem notes from Dr.Kalele, P.I. Chauhan filed chargesheet against the appellants for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code and under Section 135 of the Bombay Police Act. As offence under Section 302 of the Indian Penal Code was exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate committed the case to the Court of Sessions, Jamnagar, wherein, it was numbered as Sessions Case No.14 of 1991. 4. Charge Exh.1 was framed against the appellants for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code as well as Section 302 read with sections 147, 148 and 149 of Indian Penal Code and Section 302 read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. The charge was read over and explained to all the appellants, wherein, they pleaded not guilty and claimed to be tried. The prosecution, to bring home guilt of the appellants, examined following witnesses: (1) P.W. 1, Premiben Ramji (complainant) Exh.13; (2) P.W.2, Dr.Satish Dinkar Kalele, Exh.15, (3) P.W.3, Ajubha Jelamji Jadeja, Circle Inspector, Exh.23, (4) P.W.4, Raghav Bhimji, panch witness (hostile), Exh.27, (5) P.W.5, Ali Mohammed Ismailbhai, panch witness (hostile), Exh.29, (6) P.W.6, Mulji Ramji, brother of deceased Premji Ramji, Exh.31, (7) P.W.7, Arjan Ramji, Exh.32, (8) P.W.8, Naranbhai Gokalbhai, panch witness (hostile), Exh.33, (9) P.W.9, Ashokbhai Zavergiri, panch witness (hostile), Exh.35, (10) P.W.10, Ismailbhai, panch witness (hostile), Exh.37, (11) P.W.11, Iliyaas Mohammed, panch witness (hostile), Exh.39, (12) P.W.12, Ashwin Nathalal, panch witness (hostile), Exh.41, (13) P.W.13, Dhanjibhai Mohanbhai, panch witness (hostile), Exh.43, (14) P.W.14, Vinodbhai Prabhulal, panch witness (hostile), Exh.45, (15), P.W.15, Bhimabhai Naranbhai, panch witness (hostile), Exh.48, (16) P.W.16, Bachubhai Dayabhai, panch witness (hostile), Exh.50, (17) P.W.17, Rameshbhai Kantilal, panch witness (hostile), Exh.52, (18) P.W.18, Bipinbhai Bhawanbhai, panch witness (hostile), Exh.54, (19) P.W.19, Bhalshibhai Koyabhai, Police Constable, Jamnagar "B" Division Police Station, Exh.56, (20) P.W.20, Bharatbhai Galabhai, Head Constable, City "A" Police Station, Jamnagar, Exh.58, and (21) P.W.21, Investigating Officer, P.I. G.B. Chauhan. The prosecution produced documentary evidence such as inquest panchanam Exh.17, post-mortem notes of deceased Premji Ramji at Exh.20, post-mortem notes of deceased Lalji Bhimji at Exh.21, post-mortem notes of deceased Laxman Ramji at Exh.22, panchanama of scene of offence at Exh.25, map of scene of offence at Exh.26, panchanama of scene of offence at Exh.28, arrest panchanama of appellants Nos. 1, 2 and 3 Exh.34, discovery panchanama by appellants Nos.1, 2 and 3 Exh.36, 37 and 38, discovery panchnama by appellant No.4 Exh.40, panchanama of seizure of clothes of deceased persons Exh.44, arrest panchanama of appellants Nos.4, 5 and 6 at Exh.46, inquest panchanam Ex.49, complaint lodged by P.W.1, Premiben Exh.62, report of FSL Exh.66, report of serological analysis Exh.67, etc, to prove the case against the appellants. 5. After completing evidence led by the prosecution, the appellants were questioned with regard to evidence led against them and their statements came to be recorded under Sections 313 of the Code. The defence of all the appellants is of general denial. The appellants, in their further statements, had stated that, as they were witnesses in the murder case of Dahya Babu, they were falsely involved in the present case. It is further stated that, because of inimical relationship with the complainant's side, they were falsely implicated in this case. 6. Learned Additional Sessions Judge, after hearing the arguments of learned Public Prosecutor and learned counsel for defence, concluded that: (1) all the three deceased died homicidal death; (2) all the three deceased persons had given oral dying declaration before P.W.1, Premiben, which implicated all the six appellants for causing death of deceased persons; (3) that medical evidence of Dr. Kalele did not indicate that deceased persons were not in a position to speak and give oral dying declaration before P.W.1, Premiben; (4) P.W.1, Premiben when she came out of her wadi after hearing shouts of three persons, had seen in light of battery all the six appellants coming from the direction of the place of incident armed with deadly weapons and hurriedly proceeding towards their wadi; (5) the appellants had motive to cause death of deceased persons because of long-drawn enmity and various proceedings pending between two rival parties; (6) there was no delay in lodging of first information report; (7) evidence of P.W.1, Premiben was most reliable and trust-worthy and there was no reason to falsely implicate the appellants; (8) oral dying declaration made by three deceased persons was reliable and trust-worthy as deceased persons, who were on the verge of their death, would not spare the real culprits and would not involve innocent persons; (9) there was no question of mistaken identity as the appellants were known to P.W.1, Premiben because they were residing in the adjoining wadi. On the basis of abovereferred to conclusion, learned Additional Sessions Judge convicted and sentenced the appellants as mentioned in paragraph 1 of this judgment, which has given rise to filing of this appeal. 7. Learned Senior Advocate, Mr. M.R. Barot and learned Additional Public Prosecutor, Ms. Katha Gajjar, have taken us through the entire evidence produced at the trial. Learned Senior Advocate, Mr. M.R. Barot has vehemently submitted that injuries sustained by three deceased persons were of such grave nature that they would not have been able to make any declaration before P.W.1, Premiben. Learned Senior Advocate, Mr. M.R. Barot, further submitted that evidence of P.W.1, Premiben, was highly doubtful as she had made many improvements and there are infirmities in her evidence, which casts serious doubt about alleged oral dying declaration made by the deceased. Learned Senior Advocate, Mr. M.R. Barot, submitted that the dead bodies of deceased had reached Irwin Hospital at around 23.40 hrs and duty constable, namely, Bharatbhai Galabhai, P.W.20, at the hospital had interrogated the persons who had accompanied the dead bodies, and, on interrogation, they had not disclosed the names of appellants but had only mentioned that deceased persons had sustained injuries in a maramari (beating). Learned Senior Advocate, Mr. M.R. Barot, submitted that Premiben and her son, Arjan Ramji, had also gone to Irwin Hospital along with dead bodies and in spite of the fact that they claim to have knowledge that the appellants had caused murder of three deceased persons, they had not disclosed the names to duty constable, Bharatbhai Galabhai, P.W.20. Learned Senior Advocate, Mr. M.R. Barot, therefore, submitted that the first information report was lodged after due deliberation in early hours of 12.11.1990 around 5 a.m. and, therefore no reliance should be placed on the delayed first information report. Learned Senior Advocate, Mr. M.R. Barot further submitted that independent witnesses, whose statements were recorded, were deliberately not examined in the Sessions Court and, therefore, adverse inference should be raised against the prosecution. Learned Senior Advocate, Mr. M.R. Barot, submitted that vardhi, which was sent from Irwin Hospital, should be treated as first information report, because, on the basis of that vardhi, investigation had already started and the first information report which was lodged by Premiben would be merely a statement recorded by the Police Officer and would be hit by provision of Section 162 of the Code. Learned Senior Advocate, Mr. M.R. Barot further submitted that alleged recovery of weapons at the instance of the appellants was not proved as panch witnesses had turned hostile. Learned Senior Advocate, Mr. M.R. Barot, also submitted that as per the panchanama drawn on the scene of offence some of the weapons alleged to have been used in commission of crime were found from the scene of offence and, therefore also, recovery made at the instance of the appellants should not be believed. Learned Senior Advocate, Mr. M.R. Barot, also submitted that according to the evidence of P.W.1, Premiben, except appellant No.6, all other appellants were found running away from the scene of offence carrying weapons in their hands whereas panchanama of scene of offence revealed that weapons like gupti, knife, dagger, were found from the place of incident and, therefore, evidence of Premiben that she had seen appellants hurriedly going towards their wadi carrying weapons was unreliable. Learned Senior Advocate, Mr. M.R. Barot therefore submitted that the case against the appellants was solely based on oral dying declarations which was highly doubtful because the deceased had sustained serious injuries and they could not have been in fit state of mind and able to speak and, therefore, the appeals should be allowed and conviction and sentence should be set aside. 8. Learned Additional Public Prosecutor, Ms. Gajjar, has, on the other hand, submitted that there is no reason to discard the evidence of P.W.1, Premiben, who, on hearing shouts of three deceased persons, had gone to the direction of river bed and on the way in light of the battery she had seen appellants running away with weapons in their hands towards their wadi. Learned Additional Public Prosecutor has further submitted that Premiben had first approached deceased Lalji Bhimji who was lying in river-bed and when she asked him as to how the incident had taken place, Lalji Bhimji had explained in detail the injuries sustained by him and had also narrated which appellant was carrying which weapon and how the injuries were inflicted on them. Learned Additional Public Prosecutor has further submitted that accordingly other two deceased person,namely, Premji Ramji and Laxman Ramji, had also narrated in detail the weapons carried by the appellants and assault launched on them by the appellants. Learned Additional Public Prosecutor has further submitted that merely because witnesses examined by the prosecution are related, their evidence can at best be minutely scrutinized but their evidence cannot be disgarded in toto. Learned Additional Public Prosecutor has further submitted that when the prosecution had unfolded the entire story, there was no need to examine all the witnesses. Learned Additional Public Prosecutor has further submitted that it is not the quantity of witnesses, but quality of evidence should be borne in mind while appreciating the prosecution case. Learned Additional Public Prosecutor has further submitted that vardhi which was sent from Irwin Hospital by P.W.20, Bharatbhai Galabhai, to the police control room was a cryptic message and no investigation had started because P.I. Chauhan was not certain as to under the jurisdiction of which police station the place of incident would fall. Learned Additional Public Prosecutor has therefore submitted that after receiving vardhi he had first gone to the place of incident to find out under the jurisdiction of which police station the place of incident would fall. Learned Additional Public Prosecutor has further submitted that the investigation had actually started after recording of complaint by Premiben at 5 a.m. on November 12, 1990. Learned Additional Public Prosecutor has further submitted that evidence of Dr. Kalele did not suggest that all the three deceased persons would not have been able to make statements before Premiben with regard to the fact that the appellants with their respective weapons, had caused injuries on three deceased persons. Learned Additional Public Prosecutor has further submitted that the appellants had strong motive to commit murder of three deceased persons because of previous enmity and as they suspected that the side of the complainant was responsible for causing death of Dahya Babu, who was son of appellant No.6. Learned Additional Public Prosecutor has also submitted that evidence of P.W.1, Premiben, was most reliable and trust-worthy and there is no reason to disbelieve her evidence with regard to oral dying declaration made before her by three deceased persons and, therefore, the appeal may be dismissed. 9. It is an admitted fact that wadi (farm house with agricultural field) of the complainant side was situated in the outskirts of Jamnagar city near Manikeshwar Mahadev, which was at a distance of nearly 6 kms from the city. The wadi of the appellants was also adjoining to the wadi of Premiben. The entire prosecution rests on oral declaration made by three deceased persons before Premiben. According to the post-mortem note Exh.20 deceased Premji Ramji had sustained the following injuries. External injuries.: 1. 7 cm. x 2 cm. vertical clean cut wound, bone deep, 2 cm. above the right eyebrow on right half of forehead. 2. Curved 7 cms. long, scalp deep clean cut wound directed backward and slightly downward with avalsion of posterior flap of scalp of wound, situated on right side of front of head, right to inj - (1). 3. 13 cm. long, brain deep anterpposterior clean cut chopwound, directed tangentially to left and slightly downward, situated on top of