CR.A/579/2003 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 579 of 2003 With CRIMINAL APPEAL No. 701 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? ========================================================= SHARDULSINH CHHATRASINH RAJ - Appellant Versus STATE OF GUJARAT - Respondent ========================================================= Appearance : Ms REKHA H KAPADIA for Appellant. MR UR BHATT, ADDL.PUBLIC PROSECUTOR for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 22/12/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) CR.A/579/2003 2/18 JUDGMENT Both these criminal appeals arise out of the judgment and order dated 26.2.2003 rendered by the learned Additional Sessions Judge, Fast Track Court No.2, Bharuch, in Sessions Case No.150/1999. The learned Additional Sessions Judge, by virtue of the impugned judgment and order, recorded conviction of the present appellant, who was original accused No.2 in the aforesaid Sessions Case, for the commission of the offence punishable under Section 304 Part-I of the Indian Penal Code and sentenced him to undergo R.I for ten years and to pay a fine of Rs.3000/-, in default of payment of fine, to undergo imprisonment for six months. The learned trial Judge acquitted the appellant for the offence punishable under Section 302 IPC. 2. The appellant-accused has challenged the legality and validity of his conviction in Criminal Appeal No.579/2003. The State of Gujarat has challenged the acquittal of the appellant herein for the offence punishable under Section 302 IPC in Criminal Appeal No.701/2003. CR.A/579/2003 3/18 JUDGMENT 3. The prosecution case, in nutshell, is that the incident took place at about 12.00 O'clock in the midnight on 27.3.1999, in the outskirts of village Asnera, Taluka : Amod. The present appellant and co.accused Chhatrasinh Shankersinh Raj, who died during the pendency of the trial, suspected that deceased Gemalsinh used to trespass into their agricultural field and cut the cotton plants and thereby used to cause damage. At the time and date of the incident, both the accused were in their field and when they saw deceased Gemalsinh, deceased accused Chhatrasinh opened fire from his revolver and the present appellant-accused inflicted stick blows on the head of deceased Gemalsinh. It is the case of the prosecution that the incident occurred on account of prior conspiracy hatched by both the accused to commit murder of the deceased. Chhatrasinh Nansinh Raj, who is the younger brother of the deceased, lodged FIR against both the accused persons, i.e. present appellant and deceased accused Chhatrasinh Shankersinh Raj, with Amod Police Station, which came to be registered. The investigation was commenced, CR.A/579/2003 4/18 JUDGMENT statements of material witnesses were recorded, necessary panchnamas were drawn in presence of panchas and dead body of the deceased was sent to hospital for post-mortem examination. After receipt of the post-mortem report and the report from F.S.L, charge-sheet came to be filed in the Court of learned J.M.F.C. Amod for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code and Section 25(1)(c) of the Arms Act. Since the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, Bharuch, where it was registered as Sessions Case No. 150/1999. 4. The learned trial Judge framed charge against the present appellant at Exh.3, for the offence punishable under Section 302 r.w.section 114 IPC. At the time when the charge came to be framed, original accused No.1-Chhatrasinh Shankersinh Raj had expired and, therefore, the charge came to be framed only against the present appellant-accused. The appellant- accused did not plead guilty to the charge and claimed to be tried and, therefore, the prosecution CR.A/579/2003 5/18 JUDGMENT adduced its oral and documentary evidence. After completion of oral evidence, the learned trial Judge recorded further statement of the accused under Section 313 of the Code of Criminal Procedure and the accused denied generally all the allegations levelled against him by the prosecution and submitted his written reply, wherein the accused took defence that at the time when he and deceased co.accused Chhatrasinh Shankersinh, who happened to be his father, were keeping watch in their field, they saw two unknown persons trespassing into their field and they were rushing towards them, one of whom, was armed with sickle. Thereupon, his deceased father, co-accused, had opened fire and, therefore, one of the trespassers ran away, but, the second one, who was armed with a sickle, came near them and tried to cause injuries to the present appellant-accused and his deceased father. Thereupon, his deceased father again opened fire and he inflicted 2 to 3 blows with stick on the head of that person. After sustaining injuries, that person started escaping and when he reached near the field of one Vinubhai, he fell down. Thereupon, the appellant and his deceased father, co- CR.A/579/2003 6/18 JUDGMENT accused, went to the field of Vinubhai and with their torch light, they saw the person who fell in the field of Vinubhai, and found that he was Gemalsinh. Thereafter they went to Amod Police Station and informed the police about the incident. 5. After appreciating the evidence on record and considering the arguments advanced on behalf of both the sides, the learned trial Judge recorded conviction of the appellant-accused for the offence punishable under Section 304 Part-I of IPC, and acquitted him for the offence punishable under Section 302 IPC, by judgment and order dated 26.2.2003. Hence, both these appeals. 6. We have heard learned advocate Ms.Rekha Kapadia for the appellant, and learned A.P.P. Mr.U.R.Bhatt for the State. 7. Learned advocate Ms.Kapadia submitted that admittedly, there is no eye witness to the occurrence. The case solely depends upon the so- called circumstantial evidence, but, the prosecution failed to establish the chain of circumstances and CR.A/579/2003 7/18 JUDGMENT failed to prove its case beyond reasonable doubt. That, whatever act the appellant-accused did, was done in exercise of his right of private defence of his person and his property. Therefore, it is submitted by Ms.Kapadia that the appeal preferred by the appellant-accused be allowed and the appellant be acquitted. 7.1 With regard to the appeal filed by the State, learned advocate Ms.Kapadia submitted that since the prosecution has miserably failed to prove its case beyond reasonable doubt and the appellant- accused deserves acquittal, the acquittal appeal preferred by the State under Section 378 Cr.P.C., be dismissed. 8. Learned A.P.P. Mr.Bhatt has vehemently opposed the appeal of the appellant-accused and submitted that considering the evidence on record, it is crystal clear that the prosecution successfully proved the chain of circumstances in the form of circumstantial evidence against the appellant- accused. That, soon before the incident, the deceased was last seen together with the appellant-accused and CR.A/579/2003 8/18 JUDGMENT the co-accused, who died during the pendency of the trial. Thereafter, co-accused himself informed the police about the incident involving deceased Gemalsinh and others in the offences punishable under Section 447, 427 r.w.section 114 IPC. If all these facts are considered collectively, they would suggest involvement of the appellant-accused in the crime. That, the post-mortem report of deceased Gemalsinh indicates 15 external injuries caused by hard and blunt substance on the body of the deceased and majority of them were on the vital part like head of the deceased. Even the death occurred due to massive head injuries. Learned A.P.P submitted that, thus, the appeal preferred by the appellant-accused is meritless and deserves dismissal. 8.1 It is submitted by Mr.Bhatt that since serious injuries were caused by the appellant-accused to the deceased, the learned trial Judge should have convicted the appellant-accused for the offence of murder punishable under Section 302 IPC and, therefore, Criminal Appeal No.701/2003 preferred by the State under Section 378 Cr.P.C may be allowed. CR.A/579/2003 9/18 JUDGMENT 9. We have considered the records and proceedings of the case in the context of the submissions made on behalf of both the sides. 10. First of all, considering the entire evidence on record, it becomes clear that there is no eye witness to the occurrence. The case of the prosecution depends on circumstantial evidence. First informant Chhatrasinh Nansinh Raj is examined at Exh.17. According to him, the deceased was his elder brother. He was residing separately, though in the same village. He has stated that at about 4.00 A.M, in the early morning, Sanjaysinh, son of his deceased brother Gemalsinh, came to his house and informed him that police had come to his house and, therefore, he went along with Sanjaysinh to the house of his brother Gemalsinh, where police informed him that his elder brother Gemalsinh was murdered and that there was quarrel between his deceased brother and the appellant-accused and the deceased co-accused. Thereafter, he went to Amod Police Station and saw the dead body of his brother. He, therefore, lodged FIR in connection with this offence. Thus, CR.A/579/2003 10/18 JUDGMENT considering the deposition of the first informant, he had not seen the commission of offence, nor his deposition is relevant so far as circumstantial evidence is concerned. 10.1 Witness Sanjaysinh, who is examined at Exh.19, has stated in his deposition that on 27.3.1999 at about 5.00 p.m in the evening, deceased accused Chhatrasinh had come to his house and had told to his father Gemalsinh that during the night hours some miscreants used to cause damage to the cotton crop standing in their fields and, therefore, it was necessary to keep watch during the night hours. Thereafter, Chhatrasinh left his house. Again, at about 9.00 p.m, present appellant-accused came to call his father Gemalsinh and thereafter, his father, co-accused deceased Chhatrasinh and present appellant-accused Shardulsinh went towards their fields at the outskirts of the village. Thereafter, at about 4.00 a.m., in the early morning, police came to his house and informed him that there was a scuffle between his father and both the accused, and his father was admitted in Amod Government Hospital. CR.A/579/2003 11/18 JUDGMENT Thereupon, he went to the house of his uncle, first informant Chhatrasinh and then, they went to Amod Police Station, where they saw the dead body of his father. 10.2 Thus, considering the evidence of Sanjaysinh, it becomes clear that the appellant- accused was last seen together with the deceased by this witness Sanjaysinh. On this aspect, there is no effective cross-examination on behalf of the defence. 10.3 Ghanshyambhai Joshi is examined at Exh.20, however, the prosecution has declared him as hostile witness. But, during the cross-examination by the learned A.P.P, this witness admitted that deceased co-accused Chhatrasinh had come to his house and had told him that while he and his son (i.e. present appellant) were keeping watch in their field during night hours, at that time, two persons including deceased Gemalsinh had trespassed into their field and therefore, deceased accused Chhatrasinh had opened fire and the appellant-accused had inflicted stick blows on the head of deceased Gemalsinh. That, at the time when co-accused Chhatrasinh informed him CR.A/579/2003 12/18 JUDGMENT as above, the appellant-accused was also present. Thus, in view of the testimony of witness Ghanshyambhai, the evidence adduced by him can be considered as extra-judicial confession of the accused before the witness. 10.4 P.S.I. Mr.Sutaria is examined at Exh.23. He recorded the F.I.R lodged by first informant Chhatrasinh Naransinh. According to his evidence, deceased co-accused Chhatrasinh Shankersinh had also lodged FIR against deceased Gemalsinh, a copy of which is produced at Exh.11. According to his evidence, deceased co-accused Chhatrasinh informed the police about the incident first in point of time. 10.5 Dr. Anilkumar Chaudhary is examined at Exh.15, who performed the post-mortem of the dead- body of Gemalsinh. According to his evidence and the post-mortem report Exh.16, there were 15 external injuries on the body of deceased Gemalsinh and majority of them, were on the head of the deceased. The injuries were contused lacerated wounds. According to his opinion, the injuries could be caused by hard and blunt substance like stick. CR.A/579/2003 13/18 JUDGMENT According to the medical opinion, the cause of death was shock due to massive head injuries and internal brain haemorrhage. 11. During the course of recording of his further statement by the learned trial Judge under Section 313 Cr.P.C., the appellant-accused produced his written reply in support of his further statement, wherein it is clearly stated that at the time when he and his deceased father co-accused Chhatrasinh were keeping watch in their field, two persons trespassed into their field with a view to cause damage to the cotton crop standing in their field and thereupon, the co-accused opened fire and out of those two trespassers, one had run away, but, the second one still approached towards them holding sickle in his hand and, therefore, co-accused opened fire second time, yet that person came near them and with a view to protect his life and property, the appellant- accused inflicted 2 to 3 blows with the stick on the head of the trespasser. After sustaining the injuries, the trespasser tried to run away, but, he CR.A/579/2003 14/18 JUDGMENT fell down in the field of one Vinubhai. They both reached near him and when they saw in the torch light, they found that the trespasser was Gemalsinh. He has even stated that co-accused Chhatrasinh informed the police about the incident and lodged FIR against Gemalsinh for the offences punishable under Sections 447 & 427 IPC. 12. The sum and substance of the evidence discussed above, would suggest that the prosecution successfully established the chain of circumstances in the form of circumstantial evidence to connect the appellant-accused with the crime. The evidence in the form of the appellant-accused last seen together with the deceased and the extra-judicial confession of the co-accused before the independent witness, is duly proved by the prosecution. The further statement of the appellant-accused recorded under Section 313 Cr.P.C and the written reply filed by the appellant during the course of recording of his further statement, suggest the involvement of the appellant- accused in the occurrence. From the panchnama of scene of occurrence, it appears that the sickle was CR.A/579/2003 15/18 JUDGMENT found from the place of occurrence. As per the defence of the accused, the deceased was armed with a sickle and he tried to attack the appellant and the co-accused with the said sickle. Under such circumstances, the learned trial Judge, though acquitted the appellant-accused for the offence of murder punishable under Section 302 IPC, but, convicted him for the offence punishable under Section 304 Part-I of IPC. The learned trial Judge, after appreciating the evidence on record, came to the conclusion that though the appellant-accused tried to exercise his right of private defence to his life and property, considering the medical evidence on record and the number of injuries caused by him to deceased Gemalsinh, the appellant-accused had exceeded the right of his private defence. Therefore, the learned trial Judge, though acquitted the appellant from the charge of murder, recorded his conviction for the offence punishable under Section 304 Part-I of IPC. We do not find any illegality or irregularity committed by the learned trial Judge in acquitting the appellant-accused of the offence punishable under Section 302 IPC and recording his CR.A/579/2003 16/18 JUDGMENT conviction for the offence punishable under Section 304 Part-I of IPC. The learned trial Judge has rightly recorded the conviction of the appellant- accused for the offence punishable under Section 304 Part-I of IPC. However, the appellant was sentenced to undergo R.I for ten years and to pay a fine of Rs.3000/-. As per the endorsement made below the judgment of the trial Court, the appellant-accused has already paid the amount of fine of Rs.3000/-. From the record of the case, it transpires that during the pendency of the trial, the appellant was in jail for a period of about eight months. He came to be convicted on 26.2.2003 and since then he is in jail. Thus, in connection with this offence, the appellant-accused has remained in jail for a period of about six years. Considering the circumstances under which the incident took place and the extent of punishment prescribed for the offence punishable under Section 304 Part-I of IPC, we are of the considered opinion that the interest of justice would be served if the sentence of R.I for ten years awarded by the learned trial Judge is altered to the period already undergone by the appellant in the CR.A/579/2003 17/18 JUDGMENT jail, maintaining the sentence of fine. 13. In view of the fact that the conviction appeal preferred by the appellant has been partly allowed and considering the merits of the evidence, we do not find any reason to interfere with the acquittal of the appellant herein, so far as offence punishable under Section 302 IPC is concerned. On the contrary, we have confirmed the conviction of the appellant- accused in his conviction appeal for the offence punishable under Section 304 Part-I of IPC by reducing the sentence of imprisonment, after re- appreciating the evidence on record. Criminal Appeal No.701/2003, therefore, deserves to be dismissed. 14. For the foregoing reasons, Criminal Appeal No.579/2003 is partly allowed. The conviction of the appellant recorded by the learned Additional Sessions Judge, Fast Track Court No.2, Bharuch by judgment and order dated 26.02.2003, in Sessions Case No.150/1999, is hereby confirmed. However, the sentence of imprisonment is altered to the sentence already undergone by the appellant, without any change in the sentence of fine. The fine is already CR.A/579/2003 18/18 JUDGMENT paid as per the endorsement below the judgment of the trial Court. The appellant be set at liberty forthwith, if not required in any other case. Criminal Appeal No.701/2003 stands dismissed. (patel) [A.L. Dave,J.] [ J.C.Upadhyaya,J.]