CR.A/444/1999 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 444 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE DN PATEL ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= BHUPATBHAI MOHANBHAI VAGHELA & 3 - Appellants Versus STATE OF GUJARAT - Opponent ========================================= Appearance : MR PV HATHI for the Appellants. MS MS PANCHAL, APP for the Opponent. ========================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE DN PATEL Date : 24/07/2008 CAV JUDGMENT CR.A/444/1999 2/22 JUDGMENT (Per : HONOURABLE MR.JUSTICE DN PATEL) 1. The appellants have preferred this Criminal Appeal against judgment and order of conviction dated 10th March,1999 passed by learned Additional Sessions Judge, Kheda at Nadiad in Sessions Case No.5 of 1998. By the said judgement, the present appellants have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo for life imprisonment and to pay fine of Rs.5,000/-, in case of default, further simple imprisonment of one year. Accused No.2 namely Manubhai M. Vaghela is convicted for the offence punishable under Section 307 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.3,000/-, in case of default, further simple imprisonment for 6 months. Accused nos.3 and 4 namely Ramanbhai Gotabhai Vaghela and Bhanubhai Gotabhai Vaghela have been convicted for the offence punishable under Sections 323 and 324 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/-, in case of default, further simple imprisonment for three months. Accused Nos. 1 to 4 are also convicted for the offence punishable under Section 135 of the Bombay Police Act and sentenced to undergo rigorous imprisonment for three months. All sentences were ordered to run concurrently with main sentence. CR.A/444/1999 3/22 JUDGMENT 2. Brief facts of the case are as under: * Date of incident : 9th October,1997 * Time of incident: 3:30 p.m. * Place of incident : Village: Rajnagar, Taluka: Chaklasi, District : Nadiad. * Name of the deceased: Laxmanbhai Jenabhai * F.I.R. : C.R.No.I/222/97 registered on 9th October,1997 by complainant Raijibhai Laxmanbhai. Accused were cutting a tree, which was belonging to the deceased at Village: Rajnagar. The accused had already cut a babul tree. They had also collected the logs and at that time, deceased, his brother, his son and other relatives came there. They told the accused as to why the babul tree, which was situated in the field of the deceased was cut by the accused and they prevented the collection of logs. The accused assaulted and caused injuries to the deceased and other injured eye-witnesses. Laxmanbhai Jenabhai and Somabhai Laxmanbhai were taken immediately to the Hospital. At a Primary Health Center at the nearest available place near Taluka: Chaklashi. Dr.Hirubhai M. Patel (PW-4) had examined Laxmanbhai but the injuries were very serious and, so, immediately, he referred the case to Civil Hospital situated at Nadiad, where he was examined by Dr.Nasar Kayambhai (PW-1), CR.A/444/1999 4/22 JUDGMENT who also examined other injured witnesses on 9th October,1997 at about 4:15 p.m. Looking to seriousness of injuries caused to Laxmanbhai Jenabhai, he was referred at V.S.Hospital, Ahmedabad. Laxmanbhai Jenabhai expired on 11th October,1997 at about 4:00 p.m.. Dr.Mrugesh Chandrakantbhai Shah (PW-2) had performed postmortem of deceased Laxmanbhai on 12th October,1997 at about 7:15 p.m.. As per injured eye-witnesses deposition, accused no.1 namely Bhupatbhai Vaghela and accused no.2 namely Manubhai Vaghela, who caused injuries by iron pipe and axe respectively upon deceased Laxmanbhai Jenabhai. There were head injuries. Accused No.2 i.e. Manubhai Vaghela had also caused injuries to injured eye-witness Somabhai Laxmanbhai (PW-6) by an axe on the head and hand. Accused No.3 caused injuries to Shankarbhai (PW- 5) by chisel and accused No.4 namely Bhanubhai Vaghela had caused injuries by stick to Manguben (PW-7). Raijibhai, who is son of the deceased Laxmanbhai (PW-3), who lodged FIR being CR. No.I/222/1997, on 9th October,1997 (Exh-40) 3. It is also brought on record during the course of investigation that in a civil litigation between the parties, possession of the field was believed to be with deceased and status quo with regard to the possession was given by the competent Trial Court (Exh-52). Order was passed by learned Civil Judge (J.D.), Nadiad dated 6th January,1997. This stay was granted below Exh-5 – injunction application. The suit was instituted by the deceased CR.A/444/1999 5/22 JUDGMENT against accused no.1 i.e. Bhupatbhai Mohanbhai Vaghela and accused No.3. Ramanbhai Gotabhai Vaghela, accused no.2 is brother of accused no.1 and accused no.4 is brother of accused No.3. Thus, accused were having weapons in their hands. Despite the stay granted by Civil Court, they cut babul tree. When deceased, his brother and his sons opposed, accused Nos.1 and 2 caused serious injuries to the deceased on head by iron pipe and axe. Likewise, accused No.2 Manubhai Vaghela also caused serious injuries on head and hand by axe to Somabhai Laxmanbhai (PW-6), which endangered life of this witness, whereas accused no.3 caused injuries to Shankarbhai (PW-5) and accused No.4 caused injuries to Manguben (PW-7) by stick. Offence was investigated, charge-sheet was filed and Sessions Case No.5 of 1998 was registered against the accused and upon recording evidence, accused were convicted and sentenced as stated hereinabove vide order dated 10th March,1999. Against which, an appeal has been preferred by the accused under Section 374 of the Code of Criminal Procedure,1973. 4. We have heard learned counsel for the appellants, who has mainly submitted that prosecution has failed to prove the case beyond reasonable doubt against the accused. The appellants – convicts were not aggressive party. There is no pre-planned well designed action. The accused were in possession of the property, it may be unlawful possession of the field but they were not aggressors. Only four eye-witnesses have been examined and other CR.A/444/1999 6/22 JUDGMENT eye-witnesses have not been examined by the prosecution. Accused No.1 namely Bhupatbhai Mohanbhai Vaghela also filed FIR bearing C.R.No.II -100/97 (Exh-29) dated 9th October,1997, which was prior in point of time, than the FIR lodged by son of the deceased bearing C.R.No.I- 222/1997 (Exh-40) and, therefore, even if the case against the accused is established, the accused have not committed any offence under Section 302 of the Indian Penal Code. There is no common intention on the part of the accused to cause death of Laxmanbhai Jenabhai. There are number of omissions and contradictions in the depositions of the prosecution witnesses. Occular evidence is not corroborated by medical evidence. In view of this, conviction deserves to be quashed and set aside. 5. We have heard learned Additional Public Prosecutor on behalf of the State, who has vehementaly submitted that the prosecution has proved the case against appellants beyond reasonable doubts. Prosecution witnesses are injured eye- witnesses. Somabhai Laxmanbhai (PW-6) has sustained very serious injury at head by accused no.2 by an axe, has given clear deposition without omissions and contradictions, which proves the case against accused beyond reasonable doubt. Learned Additional Public Prosecutor has also relied upon the deposition of the other eye-witnesses namely Shankarbhai Surubhai (PW-5) and Manguben Rameshbhai (PW-7). All these prosecution witnesses (PW Nos. 5, 6 and 7) are injured eye-witnesses. Likewise, Raijibhai Laxmanbhai is CR.A/444/1999 7/22 JUDGMENT also injured eye-witness (PW-3), who has lodged FIR. Learned Additional Public Prosecutor has also relied upon medical evidence and pointed out that looking to the depositions of PW - 1, 2 and 4, which are at Exh. 31, 36 and 42 respectively, the case of the prosecution is clearly established and offence as alleged by the prosecution is proved beyond reasonable doubts. There is also a corroboration by postmortem note, which is at Exh-37, which is performed by PW- 2- Dr. Mrugesh Shah and looking to the serologist report at Exh-80, there is enough corroboration to the depositions of the injured eye-witnesses. It is also submitted by learned Additional Public Prosecutor that accused were having weapons in their hands, like iron pipe, axe, chisel, stick, etc. They used their weapons and caused injuries on the vital part of the body of Laxmanbhai and had caused danger to his life and other injured eye-witnesses. Common intention can also be developed at the spur of moment. Looking to the evidence of the prosecution witnesses, there was common intention and participation of the accused in commissioning of the offence and, therefore, the order of conviction has been correctly passed by the Trial Court and, therefore, appeal deserves to be dismissed. 6. We have perused the record and proceedings of the case. Learned counsel for both the sides have taken this Court to the depositions of the prosecution witnesses and to other evidences, various panchnamas, FSL Report (Exh-79), Serologist CR.A/444/1999 8/22 JUDGMENT Report (Exh-80), Postmortem note (Exh-37) and other injury certificates of the injured eye-witnesses and also to the order passed by Civil Court below Exh-5 in pending Civil Suit i.e. below injunction application. Looking to the overall evidences of the prosecution, it can be divided into four parts : I. Deposition of injured eye-witnesses; II. Deposition of Doctors; III. Deposition of police, panch witnesses and other witnesses; and IV. Contemporary evidences like Injury Certificates of the injured eye-witnesses, postmortem note, FSL report, Serologist report and various panchnamas of recovery of weapons and panchnamas of scene of offence, FIR, etc. 7. Looking to the evidence of Raijibhai Laxmanbhai, who is PW-3 has stated in his deposition that when he was in his field on 9th October,1997 with his father Laxmanbhai and his brother Somabhai at about 3 to 3:30 p.m., all four accused were cutting babul tree. This witness along with his father and brother told the accused not to cut the tree, but, the accused replied that the babul tree was belonging to them. Meanwhile, accused nos. 1 and 2 started caused injuries to Laxmanbhai Jenabhai and to Somabhai Laxmanbhai. Looking to the deposition of this witness, other accused have also caused injuries to Shankarbhai and to Manguben and to Raijibhai Laxmanbhai himself. Thereafter, Laxmanbhai and CR.A/444/1999 9/22 JUDGMENT Somabhai had falled done. Immediately Laxmanbhai was taken to the nearest Primary Health Center at Taluka: Chaklasi. Looking to the serious injury caused to Laxmanbhai, he was referred to Civil Hospital at Nadiad, where he was examined and doctor at Nadiad district referred his case to V.S.Hospital at Ahmedabad. Laxmanbhai expired on 11th October,1997 at about 4 p.m. Other injured witnesses were also taken to the Hospital. This witness has also narrated the fact as to the Civil litigation and has stated that possession of the deceased, who was plaintiff in the civil suit was believed and, therefore, injunction application was decided in favour of the deceased. Despite this, the accused entered into the field and cut the babul tree. This witness has clearly narrated the role played by the accused and also narrated the weapons in their hands. After narrating the role played by every accused, he has also narrated that all four accused were beating them. Thus, individual role was also narrated. Looking to the cross-examination of this witness, nothing is taken away from examination-in-chief. Nothing is found in cross-examination, which is fruitful to the accused. This witness is a natural witnesses. His presence is natural at the scene of offence. He is injured eye-witness, who was examined by Dr.Hirubhai M. Patel (PW-4) , who has issued a injury certificate for this witness, which is at Exh-45. There is no reason for this Court to disbelieve the deposition of this injured eye-witness. CR.A/444/1999 10/22 JUDGMENT 8. Looking to the deposition of PW-5 Shankarbhai Surubhai, who has also sustained injuries, whose injury certificate is at Exh-34. Looking to the deposition of this witness i.e. PW-5 at Exh-49, he has stated that on 9th October,1997, he was with deceased Laxmanbhai in the field along with Somabhai Laxmanbhai (PW-6), accused were cutting babul tree. Deceased and his brother were convincing the accused not to cut the babul tree but the accused were adamant enough. They started causing injuries by weapons like iron pipe, axe, chisel and stick. This witness has also narrated the role played by the accused. Looking to the cross- examination of this witness, nothing is coming out in favour of the accused. Main part of the deposition is that accused were aggressive. They came with weapons and they have caused injuries mainly to deceased Laxmanbhai and Somabhai Laxmanbhai. Injury was also caused to this witness, who is also examined by the Doctor and Injury Certificate was also issued for this witness. Looking to this deposition and other circumstances and other evidences, he is a trustworthy witnesses. 9. Looking to the deposition of Somabhai Laxmanbhai, who is PW-6, he has given deposition at Exh-50, has also narrated the whole incident in detail. It has been stated by this witness that accused No.1 caused injuries to the deceased by iron pipe and accused no.2 caused injuries to deceased by axe on head. This witness himself has also sustained serious injuries on head and CR.A/444/1999 11/22 JUDGMENT hand, which were caused by accused no.2 namely Manubhai M. Vaghela. Injury Certificate of this witness is at Exh-35. This witness was examined by Dr.Nasar Kayambhai (PW-1). Very serious injuries were caused on the head of this witness, as per injury Certificate at Exh-35. Looking to the cross-examination of this witness, the accused has tried to get deposition from the accused to the effect that there was hot altercation between them and this witness in para-6 of his deposition narrated that before the incident has taken place, the deceased Laxmanbhai was convincing the accused not to cut babul tree. He has also denied in cross-examination that the possession of the field was with this accused. Thus, this witness is an injured eye-witness and looking to cross-examination and overall deposition, his presence is natural one at the scene of offence and is a reliable witness, so far as narration of whole offence is concerned. 10. There is one more injured eye-witness, who is examined by the prosecution as PW-7 at Exh-53 namely Manguben Rameshbhai, who has also reiterated the narration of the incident. She was also examined by Dr.Hirubhai Patel (PW-4) and has issued a Certificate of injury of Manguben Rameshbhai at Exh-44. This witness has also narrated as to what weapons, the accused were having. They were also identified by this witness in the Court. Looking to the deposition of this injured eye-witness, it appears that she is a trustworthy eye-witness and reliable witness. She has CR.A/444/1999 12/22 JUDGMENT stated that the accused no.1 caused injury by iron pipe to the deceased Laxmanbhai Jenabhai and has sustained head injury by Laxmanbhai and was done to death. Other witnesses were also injured by accused nos.3 and 4. Though accused were claiming that they were not aggressors, but, it appears from the deposition of the injured eye- witness that they were aggressors. They came with weapons like iron pipe and chisel, over and above, axe, which they must have brought for cutting the babul tree. Accused nos. 1 and 2 selected a person namely Laxmanbhai Jenabhai and caused serious injury on head of Laxmanbhai Jenabhai. Accused No.2 namely Manubhai M. Vaghela has caused more than one injury by axe, to Somabhai Laxmanbhai on head and hand. Looking to the injury certificate of Somabhai Laxmanbhai, which is at Exh-35, injuries are very serious and dangerous to life of Somabhai Laxmanbhai. Ordinarily, the persons, who are cutting the babul tree are not coming with other weapons like iron pipe and chisel. Deceased was convincing the accused not to cut babul tree. Accused were opposing this and accused nos.1 and 2 caused serious injuries to the deceased with a common intention to cause death of Laxmanbhai Jenabhai. Son of the deceased Laxmanbhai intervened, he was also assaulted and was severely injured by accused no.2 by axe on head and hand. Thus, intention of accused nos.1 and 2 can be gathered from their actions. Though as per the allegation of accused, they were cutting babul tree, looking to the deposition of the injured eye-witness, CR.A/444/1999 13/22 JUDGMENT they brought other weapons also with them, which were ultimately used also for causing injuries to death to Somabhai Laxmanbhai (PW-6). As a cumulative effect of these, we are of the opinion that accused were aggressive and accused nos.1 and 2 had common intention and injuries caused by accused nos.1 and 2 to Laxmanbhai Jenabhai were sufficient in ordinary cause of nature, to cause death of the deceased. 11. Looking to the other set of evidences, namely, Doctors, who are examined as PW 1, 2 and 4 at Exhs - 31, 36 and 42 respectively. PW-4 is Dr.Hirubhai M. Patel, who is a doctor at Primary Health Centre at Village: Chaklasi. Before this witness, Laxmanbhai was taken first in point of time. Looking to the seriousness of the injury, he immediately referred the case of Laxmanbhai Jenabhai for further treatment to Civil Hospital at Nadiad. Thus, hurriedly, he has noted the injuries of Laxmanbhai. This witness has also examined Manguben and Raijibhai, who have sustained injuries and who are PW-7 and 3. Injury Certificates have also been issued for these witnesses by Dr.Hirubhai M. Patel. Looking to the deposition of this witness, he has narrated one injury of Laxmanbhai Jenabhai and has also narrated injuries to the other witnesses. Looking to Para-8 of deposition of this witness, he has narrated that Laxmanbhai Jenabhai was very serious, he had not observed other injuries upon Laxmanbhai. Thereafter, Laxmanbhai was taken to Civil Hospital at Nadiad, who was examined by CR.A/444/1999 14/22 JUDGMENT Dr.Nasar Kayambhai (PW-1) at Exh-31, who has narrated one injury on head of Laxmanbhai Somabhai and has also stated that this injury was caused by axe. This Dr.Nasar, PW-1, also examined Somabhai Laxmanbhai (PW-6) and has narrated three injuries on head of this witness and also there was a fracture at right hand of bone reddish. There was a fracture of clevical bone. Thus, there were serious injuries on vital part of Somabhai Laxmanbhai as well as two fractures. This witness has also stated that injuries to Somabhai Laxmanbhai can be caused by axe. Looking to the deposition of Dr.Mrugesh Chandrakant Shah, PW-2 at Exh-36, who has performed postmortem of deceased Laxmanbhai Jenabhai, he has stated that there were several injuries upon the deceased. Looking to para-2 of the deposition of this witness to be read with deposition of PW-6- Somabhai Laxmanbhai, it appears that injury nos. 5 and 6, were caused by accused nos. 1 and 2. There was also corresponding internal injuries, as per para-3. As per deposition of this witness, there was a fracture on skull of deceased Laxmanbhai. These injuries can be caused by hard and blunt substance as well as by axe. Looking to the fracture on skull, use of axe is established, which is corroborative to the deposition given by the injured eye- witnesses especially by PW-6 Somabhai Laxmanbhai. Thus, both accused nos. 1 and 2 have caused injuries to Laxmanbhai Jenabhai. There is corroboration to the deposition by PW-6 with the help of postmortem note prepared by this witness, postmortem note is at Exh-37. It is contended by learned counsel for the appellants that CR.A/444/1999 15/22 JUDGMENT there is a contradictions in the deposition of three doctors. Dr.Hirubhai M. Patel (PW-4), Dr.Nasar Kayambhai (PW-1) have not narrated second injury, and, therefore, benefit of doubt ought to be given to the accused. This contention is not accepted by this Court firstly for the reason that Dr.Hirubhai M. Patel (PW-4) was a Doctor at Primary Health Center at Village: Chaklasi, before whom, Laxmanbhai Jenabhai was brought. Looking to Para-8 of his deposition at Exh-42, it is stated by Dr.Hirubhai Patel that he had not seen another injury of Laxmanbhai Jenabhai because Laxmanbhai was very serious, immediately he was referred to Civil Hospital at Nadiad; secondly for the reason that Dr.Nasar Kayambhai PW-1, has stated that Laxmanbhai Jenabhai was examined by him. He saw very serious injury on head and skull and immediately he was referred to Civil Hospital, Nadiad for further treatment, but, this doctor has also observed fracture on skull. This Doctor has also stated that injury can be caused by axe and looking to the deposition of Dr. Mrugesh Chandrakantbhai Shah at Exh-36, who is working at Forensic Medicine Department at V.S.Hospital at Ahmedabad. While performing postmortem of deceased Laxmanbhai, who expired on 11th October,1997 at about 4 p.m., he had observed two injuries on skull. Injury Nos.5 and 6 were capable of being caused by iron pipe and axe. There is also a corresponding injury on skull. There is a fracture. Otherwise also, when there are reliable and trustworthy eye-witnesses and very clear deposition is given by them, occular evidence should be believed. Both accused CR.A/444/1999 16/22 JUDGMENT nos. 1 and 2 caused injuries to the deceased Laxmanbhai Jenabhai. This fact is proved beyond reasonable doubt by the prosecution with the help of depositions of the injured eye-witnesses, medical evidence and with the help of postmortem note. 12. Looking to other evidence like police witnesses and panch witnesses of various panchnamas, it appears that there is a corroboration to the depositions of the eye-witnesses. Looking to the evidence of PW-9 Dineshbhai Dahyabhai at Exh-54, who has prepared scene of offence panchnama, who has narrated place of scene of offence. There was a babul tree, which was cut. Looking to the cross-examination, nothing is coming out in favour of the appellants. Looking to the deposition of PW-10 Fatehsinh Chhaganbhai Vaghela, who is also panch witness of scene of offence panchnama, who is examined at Exh-57, which also corroborates deposition of PW-12 Budhabhai Mangalbhai Vaghela. Panchnama of discovery of weapons is also proved. Iron pipe, axe, chisel and stick, were recovered. The panchnamas, which are at Exh-54 to 57 were signed by these witnesses. Likewise, PW-13, who is Shankarbhai Bhaijibhai Vaghela, who is at Exh-69, is also a panch witness for discovery of the weapons, who has also signed the panchnamas, which are at Exh-64 to 68. 13. PW-16 at Exh-73 is evidence of Investigating Officer namely Rajeshbhai Ramjibhai, who has also stated of recording CR.A/444/1999 17/22 JUDGMENT statement of the witnesses, who has also gathered injury certificate of injured eye-witnesses and drawn various panchnamas, especially from Exhs - 64 to 68. 14. Looking to the postmortem report, FSL report and serologist report, there is enough corroboration of the offences alleged against the appellants. Postmortem note is at Exh-37. FSL report is at Exh-79 and serologist report is at Exh-80. Looking to the postmortem note, there are injuries on the vital part of the deceased, as stated by PW-2 Dr.Mrugesh Shah at Exh-36. Injury Nos. 5 and 6 can be caused by iron pipe and axe. These weapons were used by accused nos.1 and 2, as per PW-6, injured eye- witness, Somabhai Laxmanbhai (Exh-50), Looking to Exh-74, which is dispatch note, i.e. items, which were sent by Investigating Officer for its examination at FSL to be read with FSL report and serologist report, it appears that upon shirt of Laxmanbhai, human blood was found out, having blood group of AB. Likewise on iron pipe, which was discovered at the beheast of Bhupatbhai Mohanbhai, which was at Mark “D” in Dispatch note at Exh-74, looking to the Serologist report at Exh-80, was having human blood stains, having blood group AB. Likewise, axe, which was presented by accused no.2 Manubhai Vaghela, which was referred as Mark “E' as Dispatch note at Exh-74,