CR.A/897/2000 1/48 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 897 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL HONOURABLE MR.JUSTICE J.R.VORA ============================================= 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 ? ============================================= KHAKHABHAI @ JITUBHAI ARJANBHAI Versus STATE OF GUJARAT ============================================= Appearance : MR YOGESH S LAKHANI for Appellant MR HM PRACHCHHAK APP for Respondent ============================================= CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE J.R.VORA Date : 20 & 21/03/2006 ORAL JUDGMENT : (Per : MR.JUSTICE J.R.VORA) 1 The instant Appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 and is directed against the judgment and CR.A/897/2000 2/48 JUDGMENT order dated 22nd of August, 2000, delivered by learned Additional Sessions Judge, Junagadh, in Session Cases No. 187 of 1997 and 135 of 1997, whereby the present appellant came to be convicted for the offence punishable under Section 302 and is sentenced to undergo life imprisonment and fine of Rs. 1,000/- in default to undergo RI for s ix months. 2 As per the facts leading to both the Sessions Cases deceased in the incident is one Vinay Ramniklal, Son of Ramnikbhai Desabhai. Ramanikbhai Desabhai had four sons, named as, Jagadish, Manish, Vinay (deceased) and Ketan. On 9th of May, 1997, deceased Vinay proceeded out of the house of his father situated in Vruj Society at Junagadh. Vinay was all alone. On the same day, youngest son of Ramniklal named as Ketan also had been out for doing labour work of painting and he departed at about 8.00 a.m. on cycle. He reached at Kalva Chowk, but he did not get labour work, so he was returning to his house on cycle. At about 9.30 a.m. he reached near Ramnivas where Royalty Naka is situated. Near Royalty Naka number of stalls and cabins are situated. Ketan noticed that his brother Vinay was standing near one stall of sugarcane juice. Ketan started going towards Vinay. At the same time, a rickshaw came there from Dhararnagar and halted near Royalty Naka. Out of the rickshaw, present appellant alighted with a piece of iron rod in his hand. The appellant gave a blow of iron rod on the head of Vinay and thereupon Vinay fell down on the ground. Ketan noticed that appellant thereafter took out a knife from his pant and inflicted two blows of knife on the body of Vinay. Ketan was frightened and anticipated CR.A/897/2000 3/48 JUDGMENT that he would also be beaten by the appellant and, therefore, he did not dare to intervene. The other accused Shantaben was sitting in rickshaw. Thereafter, appellant boarded the said rickshaw and the rickshaw was driven ahead of Royalty Naka. Ketan thereafter came to his house and conveyed to his father Ramanikbhai Desabhai that somebody had beaten Vinay and that his father should immediately go to that place i.e. at Ramnivas. Thereupon, Ramanikbhai Desabhai and his wife Jayaben came near Ramnivas chowk, but they did not find their son. They inquired from nearby shop owners and learnt that Vinay was taken to government hospital. Thereafter Ramanikbhai and Jayaben both went to government hospital and found that Vinay had already died. They noticed that Vinay had in all four blows on his body i.e. on chest, on sides and on head. Before the incident, deceased Vinay was staying with other accused Shantaben since long at Dhararnagar. Deceased Vinay had returned to his father's house only two/three days before the incident. Vinay was threatened by Shantaben and, therefore, he left the house of Shantaben. Vinay had applied for lone of Rs. 25,000/- for centering works from Bank of Baroda and a cheque from the bank was issued in the name of Vinay. Shantaben, the other accused, attempted to take away the said amount of Rs.25,000/- which Vinay refused and, therefore, Shantaben had threatened Vinay. 3 After the incident, one Constable Champraj Najbhai of Gandhigram Police Chowky of Junagadh, when he was going out for household work from his residential quarter situated near the incident, found a crowd gathered near the stall of sugarcane juice. At about 9.45 CR.A/897/2000 4/48 JUDGMENT a.m. Champraj noticed that one male person was lying on the ground and was flouncing and fluttering. The said person was not in a position to sit. Champraj recognised him to be Vinay Ramanikbhai, a resident of Junagadh. Champraj also noticed that Vinay was bleeding from the injuries he received on chest and abdomen. On inquiry at the spot, Champraj came to know that in one rickshaw accused Shantaben and one unknown person aged about 32/35 years had come and unknown person had iron rod as well as knife in his hand. With the help of Police Constable Vujlalbhai Hirabhai, Champraj Najbhai, in one rickshaw, took Vinay Ramaniklal to government hospital at Junagadh, where after examination, Doctors of the hospital declared him as brought dead. Champraj informed Junagadh Police Station Officer Mr. Sharma orally about this incident. In the meanwhile, Mr. R.G. Barot, duty Head Constable of Junagadh Hospital, vide D.O. Letter No. 1306/97 informed Junagadh City Police Station about the fact that the body of Vinay Ramaniklal had been brought to Junagadh Hospital and he had been declared dead. Parsotam Hiranand Sharma, Police Station Officer, received said DO letter at 10.45 a.m. and recorded the same in Police Station Diary. He informed In-charge P.I. Mr. Pandya about the incident and entrusted the investigation to him. On receiving this information, In- charge P.I. reached at Junagadh Hospital and visited OPD ward. He found that the dead body of Vinay was lying in the said ward and the father of the deceased i.e. Ramanikbhai Desabhai was present. Thereupon, P.I. Pandya recorded complaint of Ramanikbhai Desabhai at about 11.10 a.m. which was registered as Crime Register No. I - 156/97 at Junagadh City `A' Division Police Station for the offences punishable CR.A/897/2000 5/48 JUDGMENT under Sections 302 and 34 of the IPC and under Section 135 of the Bombay Police Act. In the complaint, Ramanikbhai narrated that he had been informed by his youngest son Ketan to reach at Ramnivas Chowk where Vinay was beaten and, therefore, he reached first at Ramnivas Chowk and thereafter in the hospital and found that Vinay was brought dead in the Hospital. Ramanikbhai named accused Shantaben in the complaint while appellant was described as unknown person. 4 On offences being registered, as aforesaid, P.I. Mr. Pandya undertook investigation and dead body was forwarded to Medical Officer for postmortem. He drew a panchnama of place of offence as shown by witness Jayesh Bhupatbhai in the presence of panchas and inquest panchnama had also been drawn. Thereafter, Investigating Officer Mr. Chandulal Popatlal Pandya recorded the statements of Jayesh Bhupatbhai and Bhupatbhai Bhimabhai, who had their stalls near the place of incident. On 10th of May, 1987, Mr. Pandya, recorded further statements of complainant Ramanikbhai Desabhai and other witnesses, who appeared to be acquainted with the facts of the incident. Since he was in-charge PI, he thereafter entrusted the investigation to regular P.I. of that Police Station Mr. Nirmalsinh Kalyansinh Gohil, on May 12, 1997, who seized the clothes of deceased, which the deceased was wearing at the time of incident. Thereafter, attempts were made to arrest the accused and on information being received, present appellant was arrested on May 22, 1997 at about 11.15 a.m. A panchnama of arrest was drawn by I.O. During investigation, present appellant volunteered to show the place where iron rod as well as knife were put and vide CR.A/897/2000 6/48 JUDGMENT panchnama one iron rod and a knife with sheath were recovered. Thereafter, on September 19, 1997, a raid under the Prevention of Gambling Act was arranged at Ambedkar Nagar at the house of Khima Desar Harijan and from there the other accused Shantaben was found and she was arrested in this crime. 5 Present appellant was arrested earlier and, therefore, a charge sheet was submitted against him in the court of learned Chief Judicial Magistrate, First Class, at Junagadh, which was numbered as Criminal Case No. 3725 of 1997. The said criminal case against the present appellant was committed to the Court of Sessions on August 19, 1997 and was numbered as Sessions Case No. 135 of 1997. Thereafter, on arrest of the other accused i.e. Shantaben, another charge sheet against her also was submitted in the court of learned Chief Judicial Magistrate, Junagadh, and said case was registered as Criminal Case No. 4644/97 and the said criminal case also came to be committed to the Court of Sessions as only the Court of Sessions was competent to try the case and said case was registered as Sessions Case No. 187 of 1997. 6 Thereafter, the learned Sessions Judge framed the charge against accused Shantaben, vide Exh. 2 on September 25 of 1998 and thereafter also framed charge against present appellant on July 06, 1999 for the offences punishable under Section 302 read with Section 34 of IPC and for the offences punishable under Section 135 of Bombay Police Act. Both the accused pleaded not guilty to the above said charges. In both the Sessions Cases, the State moved an application stating that CR.A/897/2000 7/48 JUDGMENT both the sessions cases had arisen from same crime register number and from same incident and, therefore, both the Sessions Cases shall be tried together. Learned Sessions Judge granted the request of the State and directed that both the Sessions Cases i.e. Sessions Case No. 135/97 as well as Sessions Case No. 187 of 1997 be tried together and common evidence be recorded in Sessions Case No. 135 of 1997. 7 The prosecution examined : (1) Dr. Suresh Dhirajlal Pandia, as PW-1 at Exh.17; (2) Ramnikbhai Desabhai, Complainant, as PW-2 at Exh. 19; (3) Jayaben Ramniklal, mother of the deceased as PW-3 at Exh. 22; (4) Manish Ramniklal, brother of the deceased, as PW-4 at Exh. 23; (5) Ketan Ramniklal, brother of deceased , as PW-5, at Exh. 25; (6) Bhupatbhai Bhikhabhai, as PW-6, at Exh. 26; (7) Osman Alibhai, as PW- 7, at Exh. 27; (8) Ruturaj Girdharlal, as PW-8, at Exh. 28; (9) Khima Naga, panch, as PW-9, at Exh. 29; (10) Dayalal Nathalal, as PW-10, at Exh. 31; (11) Dhiraj Ranjibhai, as PW-11, at Exh. 33; (12) Jayesh Bhupatbhai, as PW-12, at Exh. 36; (13) Amin Ajitbhai, as PW-13, at Exh. 37; (14) Parsotam Hiranand Sharma, as PW-14, at Exh. 38; (15) Champraj Najbhai, as PW-15, at Exh. 43; (16) Vrajlal Devsibhai, as PW- 16, at Exh. 50; (17) Chandulal Popatlal Pandya, as PW-17, at Exh.60 and (18) Nirmalsinh Kalyansinh Gohil, PI and second Investigating Officer, as PW-18, at Exh. 63, to prove its case against the appellant. 8 The prosecution also tendered documentary evidence to prove its case like Postmortem Report at Exh. 18, Complaint i.e. F.I.R. at Exh. 20, discovery panchnama of weapons in respect of present appellant CR.A/897/2000 8/48 JUDGMENT at Exh. 30, arrest panchnama in respect of appellant at Exh. 32, panchnama of place of offence at Exh. 34, inquest panchnama at Exh. 35, copy of entry made in Police Station Diary on 9th of May,1997 at Exh. 39, letter forwarded by duty Constable at hospital to police station at Exh. 40, seizure of blood of the deceased and the clothes, panchnama at Exh. 44 and report of the Forensic Science Laboratory at Exhibits 48 and 49. 9 Accused Shantaben, on evidence of prosecution being over, examined four defence witnesses to establish her plea of alibi, but that fact is not material for this Appeal. When the circumstances appearing against the present appellant were put to him while recording his further statement, he denied the evidence placed on record and filed the written explanation at Exh. 3 wherein he stated that he was physically handicapped to the extent of 45% disability and that he had not committed any offence. He further stated that there was no evidence in respect of his identification as the person who was involved in the crime. At Exhibit – 3/1 he submitted a xerox copy of the certificate of Doctors of Junagadh Hospital in support of his defence. 10 Both the learned Advocates of the accused as well as learned Public Prosecutor were heard at length by learned Sessions Judge and after appreciating the evidence on record, the learned Sessions Judge came to the conclusion that role played by Shantaben as disclosed during appreciation of evidence indicated that at the most she was sitting in the rickshaw and, therefore, learned Sessions Judge came to the conclusion that she was entitled to acquittal as prosecution failed to prove the case CR.A/897/2000 9/48 JUDGMENT beyond doubt against her. While considering the evidence against the present appellant and more particularly having appreciated the evidence of PW-5 Ketan Ramaniklal at Exh. 25, the learned Trial Judge came to the conclusion that there was no reason at all to disbelieve this witness of tender age, who acted in natural manner and depicted the incident correctly before the court, which inspired confidence. The learned Trial Judge in detail appreciated and scanned the evidence of the only eye witness and found that he was also corroborated by other evidence like recovery of weapons from the present appellant etc. Therefore learned Sessions Judge came to the conclusion that the case against present appellant was proved beyond reasonable doubt. 11 Thus, by common judgment delivered in two Sessions Cases, the learned Sessions Judge, Junagadh, acquitted accused Shantaben and convicted present appellant in Sessions Cases No. 187/97 and 135/97, as aforesaid. 12 The State Government has not preferred any Appeal against the acquittal of accused Shantaben while the present Appeal is preferred by accused - appellant against his conviction, as aforesaid. 13 Learned Counsel Mr. Y.S. Lakhani for the appellant submitted that Ketan Ramanikbhai is the only eye witness of the incident and he is a chance witness. According to him, Ketan is a related witness and was interested to implicate appellant. It was contended that it is improbable that Ketan, as per the prosecution case, he knew appellant but did not CR.A/897/2000 10/48 JUDGMENT disclose the name of appellant before his father Ramanikbhai Desabhai when on the say of Ketan, Ramanikbhai Desabhai went to the place of offence and thereafter to the hospital. It was contended that Ketan kept silent till the evening about the details of the incident and did not disclose the name of the appellant before anybody and suddenly he disclosed the name of appellant as accused No.2 as participant in the incident only on the next day before police. It was contended that the conduct of Ketan becomes doubtful and he being related, interested and chance witness, ought not to have been believed by the learned Sessions Judge. It was contended that the conduct of the witness Ketan is otherwise also doubtful that he did not intervene on witnessing his brother being beaten and ran away from the spot to his house. It was contended that the question of Ketan being afraid of appellant did not arise as Ketan himself deposed that there was no fear, once the appellant left the place of offence. It was vehemently, therefore, urged that Ketan is a got up witness and deposed only to falsely implicate present appellant in this crime, and no reliance can be placed on his evidence. It was contended that the whole prosecution case hinges on sole testimony of Ketan, as other witnesses, who were shop owners at the locality where the incident took place, did not support the prosecution case. 13.1Next it was contended that the appellant is physically handicapped and disabled to the extent of 45% as stated by the appellant in his further statement under Section 313 of the Code of Criminal Procedure and therefore he could not have assaulted the deceased. It was CR.A/897/2000 11/48 JUDGMENT contended that he produced copy of required certificate on record in his above said further statement. It was contended that the appellant has a big family of four minor children and without any cogent evidence, he has been falsely implicated in the present crime. It is contended that it is amply disclosed during the course of evidence that there was previous enmity between deceased Vinay and the present appellant. It was contended that admittedly deceased was staying with Shantaben for considerable long period. There was earlier quarrel between the deceased and appellant No.2 which is on record. It was, therefore, contended that this prior enmity prompted the related witnesses to falsely implicate appellant in this crime though he is totally innocent. 13.2 Next it was contended that as disclosed by the prosecution case, it appears that Shantaben was root cause of the incident, and at the instance of Shantaben, as alleged, appellant had given blow and caused fatal injuries to the deceased. It was alleged that Shantaben was accompanying appellant at the place of offence, but the learned Trial Judge considering the same evidence has not believed the presence of accused Shantaben at the scene of offence and ruled out common intention amongst two accused and, therefore, when case against accused Shantaben was not believed by the Trial Judge, placing reliance on the same evidence, appellant ought not to have been convicted by the Trial Court. CR.A/897/2000 12/48 JUDGMENT 13.3 It was next contended that medical evidence adduced by the prosecution including oral evidence of sole eye witness is at variance as the prosecution theory of giving iron rod blows to the victim by the appellant is not supported by the medical evidence because the deceased had in all five injuries and all were incised wounds and could not have been inflicted by the blows of iron rod. It was, therefore, contended that on this count also the presence of the eye witness at the place of incident becomes doubtful so as to destroy the prosecution case against the present appellant. 13.4 It was contended that identity of the accused could not be established beyond reasonable doubt. It was contended that star witness Ketan who already knew the appellant did not disclose his participation in crime till evening of the incident before his relatives and on next day before police. Learned Counsel for the appellant drew attention of this Court to the fact that other five witnesses who were alleged to be eye witnesses did not support the prosecution case. These witnesses are shop owners and one Clerk of Royalty Naka situated near the place of incident. It was contended by learned counsel for the appellant that learned APP was granted permission by the Trial Court to cross-examine these witnesses as they did not CR.A/897/2000 13/48 JUDGMENT support the prosecution case. Learned Counsel also drew the attention of this Court towards cross-examination of learned APP and stated that the original prosecution case as disclosed thereby wherein in the statements recorded on May 09, 1997, the names of appellant was not disclosed by these witnesses before police. It was contended that the appellant was referred to as an unknown person by the witnesses and only on the next day when a statement of Ketan was recorded by police, the further statement of above said witnesses came to be recorded by the police wherein these witnesses stated that the said unknown person was appellant herein. It was contended that in these circumstances when initially it was reported to the police by the eye witnesses that some unknown person participated in the crime, it was the duty of the Investigating Agency to hold test identification parade, which was not done. It was contended that though none of the said witnesses supported the prosecution case, but the fact be noted is that the name of the appellant was disclosed before the police only on the next day in further statements of the said witnesses recorded by police after the statement of Ketan was recorded. It was contended that therefore the prosecution case becomes doubtful on this point also. 13.5 It was next contended that discovery panchnama alleged to have been drawn by Investigating Officer could CR.A/897/2000 14/48 JUDGMENT not be proved beyond doubt as the panch examined did not support the prosecution case. It was submitted that as per the Forensic Science Laboratory, the group of the blood on iron rod as well as on knife, could not be determined. It was, therefore, contended that this Forensic Science opinion also is not corroborating the prosecution case. 13.6 Next it was contended that subsequent conduct of the present appellant indicates his innocence. It was submitted that it is not the prosecution case that the present appellant had fled after the incident and in fact the appellant was found from his house on May 22, 1997, but nothing incriminating was found from him while he was arrested on May 22, 1997 from his own house at Ambedkarnagar, and if the appellant had participated in the crime, he would not have been available to the police so easily from his own house. It was, therefore, contended that the circumstance of his arrest indicates his subsequent conduct which establishes to his innocence. It was then contended that as admitted by prosecution witness i.e. second Investigating Officer PW-18 Mr. N.K. Gohil that deceased was involved in criminal cases of inflicting injuries as well as in a murder case as well and was detained under PASA and therefore the deceased had many enemies, leading to the probability that due to enmity the deceased might have been done to death by his other enemies CR.A/897/2000 15/48 JUDGMENT but only through the testimony of witness Ketan, due to previous enmity the appellant is falsely implicated in this crime. 13.7 Attention of this Court was also drawn to certain contradictions in the deposition of the witnesses, especially in the deposition of Ramnikbhai, Jayaben and Manish. It was contended that after the incident, there are two versions about escaping of appellant. One version is, the appellant went away on foot while the other version which is narrated by Ketan is about escaping of appellant in rickshaw along with Shantaben. It was contended that these two versions are contradictory and affects adversely the prosecution case. It was also contended that there are contradictions in the evidence in respect of the loan applied for by the deceased for which there was quarrel between Shantaben and the deceased and these contradictions, which according to learned counsel for the appellant, are proved, destroy the motive of the prosecution case. In this regard attention of this Court was also drawn to the deposition of Investigating Officer. 13.8 It was also contended that an important witness i.e. rickshaw driver, in whose rickshaw, according to the prosecution case, appellant as well as Shantaben were brought to the place of incident, is not examined. This CR.A/897/2000 16/48 JUDGMENT rickshaw driver is material witness. Non-examination of such rickshaw driver adversely affects the prosecution case. 13.9 It is contended by learned Counsel for the appellant that in the First Information Report filed by Ramnikbhai, name of Shantaben appears as accused while in his deposition before the court, Ramanikbhai stated that Ketan conveyed to him that somebody had beaten Vinay. It was further contended that the source available to Ramanikbhai was Ketan, who had not disclosed the names of the accused, but it is not explained as to how the name of accused – Shantaben appeared in the First Information Report, as alleged by Ramanikbhai. It is contended that this fact is creating doubt about prosecution case and manipulation on the part of prosecution witnesses. 13.10 Learned Counsel for the appellant relied upon certain decisions of the Supreme Court and High Court.