CR.A/99/1999 1/36 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 99 of 1999 With CRIMINAL APPEAL No. 171 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ====================================================== 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 ? ====================================================== KUMAR @ KARIM VALIMAMAD SUMRA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ====================================================== Appearance : CR.A. No. 99 OF 1999 : THROUGH JAIL for Appellant(s) : 1, MR CHIRAG M PAWAR for Appellant(s) : 1, MR KP RAVAL APP for Opponent(s) : 1 CR.A. No. 171 OF 1999 : MR KP RAVAL APP for Appellant(s) : 1, MR CHIRAG M PAWAR for Opponent(s) : 1. ====================================================== CR.A/99/1999 2/36 JUDGMENT CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 09/10/2007 ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE R. P. DHOLAKIA) 1.0 These appeals are directed against the judgment and order dated 30th December, 1998 passed by the learned Addl. Sessions Judge, Jamnagar in Sessions Case No. 7 of 1994 whereby, the appellant – accused was convicted for the offences punishable u/s. 302, 307 & 452 of the Indian Penal Code, 1860 [for short, “the I.P.C.”]. 1.1 For conviction u/s. 302 of the I.P.C., the appellant – accused was sentenced to undergo imprisonment for life with fine of Rs.500/- and in default of payment of fine, Rigorous Imprisonment for a further period of One Month. CR.A/99/1999 3/36 JUDGMENT For conviction u/s. 307 of the I.P.C., the appellant – accused was sentenced to undergo Rigorous Imprisonment for Three Years with fine of Rs.250/- and in default of payment of fine, Rigorous Imprisonment for a further period of Fifteen Days; while for conviction u/s. 452 of the I.P.C., he was sentenced to undergo Rigorous Imprisonment for Two Years with fine of Rs.150/- and in default of payment of fine, Rigorous Imprisonment for a further period of Ten Days. All the sentences were ordered to run concurrently. The appellant – accused was also given the benefit of set-off. 1.2 So far as Criminal Appeal No. 171 of 1999 is concerned, it has been preferred by the State of Gujarat praying for enhancement of the sentence as against what has been awarded by the Court below. 1.3 As both the Appeals arise from the same judgment and order passed by the Court below, CR.A/99/1999 4/36 JUDGMENT they were heard together and are disposed of by this common judgment. 2.0 The brief facts of the prosecution case are as under; 2.1 On 08.09.1993 the deceased persons and other members of the family were at their home situated in Jam-khambhaliya Town of Jamnagar District. At around 0800 hrs., the appellant came at their home and enquired from the complainant about deceased – Halimaben, the mother of the complainant herein, as she was awoke at that time and the other members of the family i.e. deceased – Halimaben, deceased – Hasinaben and deceased – Mehmood were asleep and the other brother of the complainant – Ashrafkhan had gone for attending tuition classes. In reply, the complainant informed that deceased – Halimaben was asleep. 2.2 On hearing the talk between the appellant and the complainant, deceased – Halimaben woke up and left for the field so as to attend the CR.A/99/1999 5/36 JUDGMENT natural call. During that time, the appellant sat in the veranda of the house and the complainant went to the kitchen for preparing tea. At that time, the appellant caught hold of the complainant by her hair and dragged her inside the room. Thereafter, the appellant poured petrol on the complainant from a Can which he had brought along with him. As a result thereof, the complainant started shouting for help. 2.3 On hearing the shouts of the complainant, both deceased – Hasinaben as well as Mehmood woke up and they tried to rescue the complainant. At that time, the appellant also poured petrol on both deceased – Hasinaben as well as Mehmood and then tried to set them ablaze. However, he failed to do so as the match-stick didn't light-up at the relevant point of time. Immediately, thereafter, the appellant took an iron-pipe which was lying in the veranda of the house and with it started giving blows to deceased – Hasinaben. CR.A/99/1999 6/36 JUDGMENT 2.4 When deceased – Mehmood tried to rescue deceased – Hasinaben from the assault, the appellant also started inflicting iron-pipe blows on deceased – Mehmood. Therefore, the complainant and deceased – Mehmood ran out of the house. However, the appellant followed them with the iron-pipe in his hands and continued to inflict blows on them with the said iron-pipe. By that time, the mother of the complainant – Halimaben returned from her natural call and at that time, the appellant also gave an iron-pipe blow on the head of the mother of the complainant – Halimaben. Thus, on account of the aforesaid incident, all the family members who were present in the house at the relevant point of time sustained severe bodily injuries and both deceased – Halimaben and Hasinaben succumbed to their injuries. During this time, a huge crowd gathered at the said place but, none of them dared to catch hold of the appellant, after having viewed the blood-cuddling act with their eyes. CR.A/99/1999 7/36 JUDGMENT 2.5 Thereafter, the appellant fled the scene of offence with the said iron-pipe. As the condition of deceased – Mehmood became serious, the complainant took him to the Civil Hospital in an Auto-rickshaw for necessary medical treatment. A telephonic message about the said incident was given by the Hospital to the police authority of Khambaliya Police Station. On the basis of the said message, the P.S.O. of Khambaliya Police Station gave a 'vardhi' to P.S.I. one – Hareshkumar Ghanshyamsinh Parmar for carrying out necessary investigation. 2.6 The said P.S.I. went to the Hospital and carried out necessary preliminary investigation. A complaint was filed against the appellant for the said alleged offence, which came to be registered as I – C. R. No. 172 of 1993 with Khambaliya Police Station for offences punishable u/s. 302, 307 and 452 of the I.P.C. and Section 135 of the Bombay Police Act. CR.A/99/1999 8/36 JUDGMENT 2.7 Thereafter, the Investigating Officer went to the scene of offence. Inquest 'panchnama' of both the dead bodies was performed. 'Marnottar' forms were filled-up and necessary arrangements were made for sending the dead bodies of both the deceased for performing post- mortem. Necessary 'muddamal' articles were also collected from the scene of offence. The clothes worn by the deceased persons as well as the complainant at the relevant point of time were also seized. 'Panchnama' of the scene of offence was also done in the presence of 'panchas'. 2.8 In the meanwhile, as the condition of deceased – Mehmood had started deteriorating, he was shifted to Civil Hospital, Rajkot and later, to V. S. Hospital at Ahmedabad where, during the course of treatment, he succumbed to the injuries. 2.9 Further investigation was carried out and CR.A/99/1999 9/36 JUDGMENT statements of several witnesses were also recorded. As cogent material was found against the appellant, the appellant – accused came to be arrested on 12.09.1993. During the course of interrogation, as the appellant showed his willingness to produce the weapons, alleged to have been used by him in the commission of the offence in question, a primary 'panchnama' to that effect was drawn in the presence of 'panchas'. Therefore, on 14.09.1993 the Investigating Officer, 'panchas' and appellant went to the said place, at the instance of the appellant, in a police vehicle. After reaching the said place, the weapon – iron-pipe was seized by way of a separate 'panchnama' at Exhibit – 121. 2.10 On 15.09.1993 the appellant showed his willingness to produce the clothes which he had worn at the time of the commission of the alleged incident in question. For that also, a primary 'panchnama' to that effect was drawn in the CR.A/99/1999 10/36 JUDGMENT presence of 'panchas'. Thereafter, the Investigating Officer, 'panchas' and appellant went to the said place, at the instance of the appellant, in a police vehicle. After reaching the said place, the clothes were also seized by way of 'panchnama' at Exhibit – 122. 2.11 Thereafter, necessary arrangements were made for sending the 'muddamal' articles to the F.S.L. for examination. On receipt of the F.S.L. report, medical reports and PM notes of the deceased and the injury certificate of the complainant, they were kept in the investigation file. 2.12 On completion of the investigation, charge-sheet was filed against the appellant in the Court of learned Judicial Magistrate, First Class, Khambaliya. As the case was exclusively triable by the Court of Sessions, the learned J.M.F.C., Khambaliya committed the case to the District & Sessions Court, Jamnagar which came to CR.A/99/1999 11/36 JUDGMENT be numbered as Sessions Case No. 7 of 1994. The case was then handed over to the learned Addl. Sessions Judge for disposal on merits. On production of the appellant, the learned Addl. Sessions Judge framed the charge against the appellant and as the appellant pleaded not guilty to the said charge, trial was conducted against him. 3.0 The prosecution has examined in all thirty five witnesses in order to prove the guilt against the appellant – accused namely, PW – 1 Dr. Gani Saalemamad Malvani at Exhibit – 23, PW – 2 Fatmaben Isabhai at Exhibit – 45, PW – 3 Aadam Sadik Khoro at Exhibit – 46, PW – 4 Karsanbhai Pethabhai Gadhvi at Exhibt – 47, PW – 5 Abbas Mahamad Husain at Exhibit – 279, PW – 6 Vasudevsinh Bahadursinh Jhala at Exhibit – 49, PW – 7 Mansinh Chunabhai Rathod at Exhibit – 50, PW – 8 Haroon Haji at Exhibit – 54, PW – 9 Budha Samat at Exhibit – 55, PW – 10 Umarsinh Karsansinh at Exhibit – 56, PW – 11 Surubha CR.A/99/1999 12/36 JUDGMENT Bhimsinh Jadeja at Exhibit – 57, PW – 12 Alashah Jhadulshah at Exhibit – 58, PW – 13 Amrutlal Karsandas at Exhibit – 59, PW – 14 Bhavsinh Balubha Sodha at Exhibit – 60, PW – 15 Mukund Damodar at Exhibit – 61, PW – 16 Nirmalsinh Jatubha Jhala at Exhibit – 62, PW – 17 Shailesh Gopaldas at Exhibit – 63, PW – 18 Rama Bhaya at Exhibit – 64, PW – 19 Rameshchandra Harilal Davda at Exhibit – 65, PW – 20 Digvijaysinh Balvantsinh Jadega at Exhibit – 66, PW – 21 Karsanbhai Govindbhai at Exhibit – 67, PW – 22 Manikant Labhshankar Shukla at Exhibit – 68, PW – 23 Haribhai Shrimali at Exhibit – 73, PW – 24 Hasmukh Bhagwanji Jethwa at Exhibit – 75, PW – 25 Ramesh Laljibhai at Exhibit – 76, PW – 26 Vajubha Rasubhai Jadega at Exhibit – 77, PW – 27 Mumtaz Jumabhai Makrani at Exhibit – 82, PW – 28 Lakhman Malde at Exhibit – 84, PW – 29 Dr. Vinayakrao Vasudevrai Patil at Exhibit – 85, PW – 30 Yunus Osman Baloch at Exhibit – 87, PW – 31 Ravjibhai Badjibhai at Exhibit – 88, PW – 32 Mohan Jivanbhai at Exhibit – Mohan Jivanbhai at Exhibit CR.A/99/1999 13/36 JUDGMENT – 97, PW – 33 Rahimbhai Dawoodbhai at Exhibit – 98, PW – 34 Mahesh Meraman at Exhibit – 106 and PW – 35 Hareshkumar Ghanshyamsin Parmar at Exhibit – 111. 3.1 The prosecution has also relied upon several documentary evidence, and more particularly, the evidence in the form of complaint at Exhibit – 133, 'Panchnama' of the scene of offence at Exhibit – 116, discovery 'Panchnama' of the weapon – iron-pipe at Exhibit – 121 and of the clothes of the appellant at Exhibit – 122, the post-mortem notes of all the deceased persons at Exhibits – 26, 27 & 86 and Inquest 'Panchnama' at Exhibit – 69. 3.2 On submission of the closing ‘purshis’, the further statement of the appellant was recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment and CR.A/99/1999 14/36 JUDGMENT order and convicted the appellant for the offence, as narrated in the earlier part of this judgment. Hence, the present appeals. 4.0 Mr. Chirag Pawar learned Advocate for the appellant – accused has submitted that except the evidence led by the complainant in the form of complaint at Exhibit – 133 and deposition as PW – 27 at Exhibit – 82, there is no other evidence on record to connect the appellant – accused with the crime in question. 4.1 Learned Advocate has contented that though the neighbours of the deceased persons have been examined as prosecution witnesses, neither of them have supported the case of the prosecution to any extent, except PW – 4 at Exhibit – 47 and PW – 5 at Exhibit – 48. He has further contented that so far as the evidence led by these two witnesses is concerned, they could not be relied upon for recording conviction inasmuch as PW – 4 is not an eye-witness to the CR.A/99/1999 15/36 JUDGMENT alleged incident in question and PW – 5 has been declared as 'hostile' by the trial Court. Thus, the prosecution case entirely rests upon the evidence led by the complainant only. 4.2 Learned Advocate has next contented that the complainant herein is the daughter of deceased – Halimaben and sister of both deceased – Hasinaben as well as Mehmood and, therefore, she is an interested witness. Hence, the evidence led by her as PW – 27 at Exhibit – 82 requires corroboration. He has submitted that even if the evidence led by the complainant is believed to be true, then also it could not be relied upon since the prosecution has failed to establish that the appellant was the assailant and that he was the person who had killed three members of the same family and had caused the injuries in question to the complainant. 4.3 Learned Advocate has further contented that the appellant – accused has been falsely CR.A/99/1999 16/36 JUDGMENT involved in the alleged offence on the basis of a past enmity and that there was no reason for the appellant for committing the said alleged offence. He has, therefore, submitted that the trial Court has committed serious error in not properly appreciating the evidence on record and in convicting the appellant – accused for the alleged offences in question. 4.4 Learned Advocate for the appellant – accused has lastly submitted that if this Court is not inclined to entertain the appeal preferred by the appellant - accused, then the Court may, by taking a lenient view of the matter, reduce the sentence as awarded by the trial Court to a one already undergone by him since the appellant - accused has already undergone more than 13 years of imprisonment. 5.0 Mr. K. P. Raval learned APP has vehemently objected to the grant of the appeal preferred by the appellant – accused. He has CR.A/99/1999 17/36 JUDGMENT contented that so far as the contention raised by learned Advocate for the appellant – accused that the evidence led by the complainant cannot be relied upon is concerned, it may be noted that the presence of the complainant, at the scene of offence, at the relevant point of time, was a natural one, as she is the daughter / sister of the deceased persons and that the incident in question took place at her own home. He has further contented that merely because the eye- witness of the incident in question is a relative of the deceased persons, her evidence cannot be discarded. He has submitted that, in such case, the Court is required to carefully scruitinize the evidence led by such witness, and if, after proper scrutiny, such evidence is found to be truthful and reliable, then conviction can be based on it. 5.1 Learned APP has further submitted that the appellant – accused has committed the alleged offence in question on account of a past enmity CR.A/99/1999 18/36 JUDGMENT with the family of the deceased persons since a complaint being I – C. R. No. 358 of 1990 for offences punishable u/s. 376, 506(2) and 504 of the I.P.C. was filed against him & one more accused person by the mother of the complainant herein, i.e. deceased – Halimaben alleging that the appellant & the other accused person named in the said complaint had committed rape on her daughter, i.e. deceased – Hasinaben. He has further submitted that for the said alleged offence, the appellant – accused was charge- sheeted and was also suspended from the service. 5.2 Learned APP has submitted that on account of the aforesaid action of deceased – Halimaben of filing complaint against him, the appellant – accused had grudge against the family of the deceased persons and keeping this enmity in mind, the appellant – accused had committed the offence in question. Thus, the motive behind the commission of the said offence is also clearly established. CR.A/99/1999 19/36 JUDGMENT 5.3 Learned APP has further submitted that at the time when the incident in question took place, the appellant – accused was serving as a Police Constable in Okha Police Station, Jamnagar District and that on the day when the alleged offence is said to have taken place, the appellant was on official leave. He has submitted that the place where the alleged incident is said to have taken place is situated at a far distance from the place where the appellant was discharging his duties. Learned APP has contented that from the evidence led by PW – 24 at Exhibit – 75 and PW – 25 at Exhibit – 76, who are independent witnesses, the presence of the appellant – accused at Jam-khambaliya Town is clearly established. 5.4 Learned APP has further contented that the 'muddamal' article - clothes which have been produced by the appellant – accused himself and which have been recovered by way of 'panchnama' CR.A/99/1999 20/36 JUDGMENT at Exhibit – 122, contained human blood stains and that the said 'muddamal' article – clothes have been identified by the aforesaid two independent witnesses to be the one worn by the appellant – accused on the date of the incident, i.e. when both these witnesses met the appellant – accused at two different places. 5.5 Learned APP has, therefore, submitted that looking to the manner in which the offence in question was committed and the entire evidence on record, this is a fit case wherein the sentence imposed by the trial Court is required to be enhanced and the appeal preferred by the appellant – accused is required to be rejected. 6.0 Before proceeding with the matter on merits, we would like to highlight certain facts which are not disputed by either side. At the time when the alleged incident in question took place, the appellant - accused was serving as a Police Constable at Okha Police Station, CR.A/99/1999 21/36 JUDGMENT Jamnagar. The document at Exhibit – 80 is the reply to the communication sent by the P.S.I. of Khambaliya Police Station to P.S.I. of Okha Police Station enquiring as to whether on 08.09.1993, i.e. the date on which the alleged incident took place, the appellant – accused was present on duty or not. From the said reply, it is established that on the said date, i.e. on 08.09.1993, the appellant – accused was on official leave. Thus, it is established that on the date of the alleged incident, the appellant – accused was not “On Duty” at Okha Police Station, Jamnagar and that he was on official leave. 7.0 The prosecution has examined one – Hasmukh Bhagwanji Jethwa as PW – 24 at Exhibit – 75. This witness was working in the Home Guards and was residing along with his family in Okha Town, at the relevant point of time. As this witness was also working in a Department similar to that of the appellant – accused and was also residing in the same Town viz. Okha, both the CR.A/99/1999 22/36 JUDGMENT appellant and this witness were known to each other. 7.1 In his deposition, PW – 24 has stated that on the date of incident, i.e. on 08.09.1993 while he was on duty in the Main Market of Okha Town, he had met the appellant – accused at around 0500 hrs. and that, at that time, the appellant – accused was about to board a Bus. However, since this witness has declined to identify the appellant – accused before the Court below, he has been declared as 'hostile'. Therefore, the evidence led by this witness shall not be of much relevance to the prosecution case. 8.0 The prosecution has examined one – Ramesh Laljibhai as PW – 25 at Exhibit – 76. This witness was working as a Wireless Operator with Khambaliya Police Station at the time when the incident in question took place. 8.1 In his deposition, this witness has CR.A/99/1999 23/36 JUDGMENT stated that on 08.09.1993, while he was on duty at Khambaliya S.T. Bus-stand, he had met the appellant – accused at around 0730 hrs. near a Tea-stall outside the S.T. Bus-stand. He has further deposed that at that time he had enquired from the appellant – accused as to where he was posted for duty and in reply, the appellant – accused had informed him that he was posted at Okha Police Station. He has further categorically deposed that at the time when he had met the appellant – accused on 08.09.1993 at Khambaliya S.T. Bus-stand, the appellant - accused had worn a pink colored shirt and a white colored trouser. 8.2 Thus, from the evidence led by PW – 25 at Exhibit – 76, it is established that on 08.09.1993, i.e. the date on which the alleged incident is said to have taken place, the appellant – accused was present at Khambaliya Town in the early morning hours and that on that day, the appellant – accused had worn a pink colored shirt and a white colored trouser. CR.A/99/1999 24/36 JUDGMENT 8.3 This witness is an independent witness and his presence at Khambaliya S.T. Bus-stand, at the relevant point of time, was a natural one. Moreover, there shall not be any question of mis- identification also since this witness was also working in the Police Department, in the same District, at that point of time. 8.4 Therefore, the evidence led by this witness as PW – 25 at Exhibit – 76 can be said to be trustworthy and believable. Nothing contrary has come out from the cross-examination of this witness which may lead us to believe the evidence led by him to be untrue or unreliable. 8.5 Thus, though PW – 24 has been declared as 'hostile' by the Court below, the prosecution has been able to prove beyond doubt, through the evidence of PW – 25 at Exhibit – 76, who is an independent witness, the presence of the appellant, on the date of the incident, at CR.A/99/1999 25/36 JUDGMENT Khambaliya Town, though his place of employment at the relevant point of time, was at Okha Town. 9.0 The complainant herein is the daughter of deceased – Halimaben and sister of both deceased – Hasinaben as well as Mehmood. On a bare perusal of the impugned complaint at Exhibit - 133, it appears that on the date of incident, the appellant – accused had reached the house of the deceased – persons at around 0830 hrs. along with a Can containing petrol. At that time, only the three deceased persons who were sleeping and the