CR.A/611/2001 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 611 of 2001 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 ? ========================================================= MER JIVA RANMAL KESHWALA & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR ND NANAVATI WITH MR ND BUCH FOR NANAVATY ADVOCATES for Appellant(s) : 1 - 2. MR HL JANI, ADDL PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI CR.A/611/2001 2/12 JUDGMENT Date : 27/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1. The present appellants who are the original accused nos. 1 & 2 have been tried by the learned Sessions Judge alongwith two other accused in Sessions Case No. 20 of 1999 and at the end of the trial both the appellants were convicted under section 302, 323 and 506(2) of the Indian Penal Code. The original accused no.3 was acquitted and as far as original accused no.4 is concerned, he died on 28.07.99 during the pendency of the trial and therefore qua original accused no.4 the case was abated. Being aggrieved and dissatisfied with the same, the present appellants have preferred this appeal. 2. The factual details of the prosecution case are under: 2.1 On 02.09.98, Police Head Constable Shri Sevadas Prabhudas PW5 of Sheel Police Station was discharging his duty as PSO. At that time, at around 2215 hrs six residents of Antroli village namely Koli Manabhai Bodhabhai, Balubhai Bodhabhai, Khimabhai Bodhabhai, Govindbhai Ranabhai, Parbat Ranabhai and Bhurabhai Savdasbhai informed him that some persons namely CR.A/611/2001 3/12 JUDGMENT Rabari Dhaiya Bhara, Nebho, Mando, Bodha, Aata are in a drunken state and are creating ruckus in public. 2.2 Thereafter, after registering the same in the police diary and after handing over the charge of the police station to Police Constable Nalinkant Chimanlal, he headed towards Antroli on a motorcycle with Police Constable Aniruddhsinh Navalsinh. The persons who had come to the police station to inform about the ruckus followed them in a rickshaw. On the way they met Police Constable Bhakabhai Karsanbhai and after informing him, Bhakabhai was also taken on the motorcycle towards Antroli railway crossing and further from there towards Antroli village. 2.3 Reaching there he saw Mer Jivabhai Ranmalbhai Keshvala standing with big stone in both his hands. On hearing the police Constable Sevadas's shout, he threw the stone there on the person lying on the ground and ran away. On inquiring with the person lying on the ground, it was found that he was not in a position to speak anything as he had received various injuries on various parts of his body. The injured person was then carried towards the rickshaw stationed behind with the help of other persons and it was then that police constable Bhakabhai Karsanbhai identified the injured person as Mer Lakhman Giga Odedara, 35 years old and residing in Mitrala and that he was working as Assistant Teacher in Kadach. CR.A/611/2001 4/12 JUDGMENT 2.4 The injured person was thereafter taken to General Hospital, Mangrol. The Medical Officer present at the hospital gave first aid to the injured persons and advised to take him to Junagadh for further treatment. Accordingly, the injured person was taken in Mangrol hospital ambulance to Junagadh accompanied by Constable Bhakabhai. Thereafter, Constable Sevadas returned to Sheel police station and resumed his duty as PSO. 2.5 He filed a complaint against the present appellant no.1 Mer Jiva Ranmal Keshvala under section 307 of the Indian Penal Code and section 135 of the Bombay Police Act and the same was registered as C.R. No. I-48/98 with Sheel Police Station. 2.6 Meanwhile, as the victim succumbed to injuries and message to that effect was received by 'B' division police station, Junagadh and therefore he prepared Yadi of the same. He then went to the Civil hospital, Junagadh, called the panchas and prepared inquest panchnama in presence of the panchas and filled up the marnottar form and sent Yadi to the doctor to perform post-mortem upon the dead body of the deceased. 2.7 In the Meantime, PSI Gohil, Sheel Police Station also received information regarding C.R. I-48 of 1998 of Sheel Police Station and thereafter he went to the scene of offence along with Head Constable Sevadas and prepared panchnama in the presence of panchas and CR.A/611/2001 5/12 JUDGMENT he has also seized muddamal from the scene of offence and kept the same as investigation muddamal. Thereafter he has also recorded statements of various witnesses and amidst the same he came to know that the injured has been declared dead and that the inquest panchnama and post-mortem has been done by the 'A' Division police station. 2.8 He therefore sent yadi to JMFC, Mangrol for adding section 302 of the Indian Penal Code into the offence. On the next date also he has recorded statements of various witnesses and searched for the accused. They were then arrested and interrogated and thereafter sent to judicial custody. After receiving the report from the FSL he kept the same in file. He then submitted charge-sheet into the court of learned JMFC, Mangrol against four persons. 2.9 As the charge levelled against the present appellants and the original two other accused was exclusively triable by the Sessions Court, it was committed to the Court of Sessions, Junagadh and registered vide Sessions Case No. 20/1999. 3. On production of the accused into the Court of the Sessions, the Sessions Judge has framed charge against the accused as they have pleaded not guilty to the charges against them. To prove the charge against the accused, the Sessions Court has examined in all 25 witnesses as oral witnesses and also produced and placed reliance upon certain documentary CR.A/611/2001 6/12 JUDGMENT evidences vide Exhibit 16. 3.1 Thereafter, on submission of the closing pursis by the learned APP, the learned Sessions Court has recorded further statement under section 313 of the Indian Penal Code qua incriminating evidence. After giving opportunity to both the sides, the Sessions Court convicted the present appellants. Therefore the present appeal. 4. Heard Mr. N.D. Nanavati, learned counsel appearing with Mr. N.D. Buch for the appellants and Mr. H.L. Jani, learned APP appearing for the respondent State and perused the documentary evidence placed on record. 4.1 Learned advocate appearing for the appellants has submitted that the present appellants have been falsely involved in the crime in question by the prosecution as there is no evidence on record to connect them with the crime in question. Taking this Court through the FIR and other oral and documentary evidence, learned advocate has submitted that initially complaint has been registered only against one person that too under section 307 of the Indian Penal Code but thereafter as the injured has succumbed to injury section 302 has been added and three other persons have been involved in the crime in question. 4.2 It has been argued that there is no evidence to CR.A/611/2001 7/12 JUDGMENT prove the involvement of the accused in the crime in question. The incident has taken place in a remote area near a railway crossing. He has submitted that it was around 2230/2300 hours in the night and therefore nobody has seen the incident. He has further submitted that there is serious doubt about the involvement of the accused in the crime in question as there was no other person who has claimed to see the incident and thereby prove the involvement of the accused. He has submitted that in the present case it is the constable who has filed the complaint and that even he himself is not an eye-witness. 4.3 It is also argued by learned advocate that even the role of the present appellant no.2 is not established by the prosecution. He has argued that at the most if the say of the prosecution is believed in toto then also only the presence of the appellant no. 1 is established and except that there is no role which connects the appellants with the crime in question. He has also submitted that the role of the present appellant no.2 is not clearly established and therefore benefit of doubt is required to be given to the appellant no.2. He has submitted that at the most his role can be considered independently and if considered the same it can be said to be considered under section 304-I or II. 5. Mr. H.L. Jani, learned APP has also taken this Court to the relevant evidence and oral as well as documentary evidence and argued that the prosecution CR.A/611/2001 8/12 JUDGMENT is able to prove the guilt against both the appellants beyond reasonable doubt. 5.1 He has submitted that the presence of the accused has been established by independent witnesses and they are not interested witnesses and therefore their evidence has got much more value than the other interested witnesses. 5.2 He has also argued that there are number of injuries which have been found from the body of the deceased and it is not possible to inflict such injuries by a single person which shows the involvement of more than one person in the incident. He has submitted that looking to all these aspects, this is a fit case wherein this Court is not required to interfere. 6. Before proceeding further with the matter, it is required to be noted that during the course of the argument, learned counsel for the appellants has not disputed the death of the deceased as a homicidal one and even the Court below has also dealt with the same in detail and has come to the conclusion that the death of the deceased is a homicidal one. In view of the same we are not discussing the homicidal death aspect. We are in complete agreement with the reasonings adopted and findings arrived at by the Sessions Court qua this point. 6.1 Even then this Court has taken into consideration CR.A/611/2001 9/12 JUDGMENT the oral evidence of Dr. Masribhai Satrodiya PW1 Ex. 17 discharging his duties at Mangrol Community Health Centre who is the first person to examine the injured in the hospital. Thereafter he has advised that the victim be taken to Junagadh Civil Hospital. The oral evidence of Dr. Girishkumar Kunadiya PW3 Ex. 24 is also considered by this Court. He is the doctor who has performed post-mortem upon the dead body of the deceased and proved the injuries. Over and above he has also proved the post-mortem note Ex. 26 and also categorically opined that all injuries which have been received by the injured are possible by way of stone and he has further opined that all injuries were ante-mortem. The inquest panchnama also gives a clear picture of the case of the prosecution. 7. As far as the present appeal is concerned, even the Court below has taken into consideration the individual role of each accused and on that basis the present appellants are convicted. The original accused no.3 has been acquitted. This Court has gone through the evidence on record. 8. Firstly what is required to be kept in mind is the FIR Ex. 33 which has been filed by the Constable Sevadas against the appellant no. 1 Mer Jiva under section 307 of the Indian Penal Code. Not only that even in column no. 6 it has not been mentioned that other accused were present. Except that the prosecution has also placed reliance upon two other eye witnesses i.e. Polabhai Gangabhai PW 9 Ex. 39 and CR.A/611/2001 10/12 JUDGMENT Pratap Devabhai PW10 Ex. 40. 8.1 We have gone through the oral evidence along with the cross examination and according to them the witnesses namely PW9 & PW10 were also with the accused and victim and they all were gambling. But according to them, during the game the accused has demanded money from the injured victim to play further but the victim denied the same. This resulted into a scuffle. It has been established in the cross examination that at that time of the incident they were not there at the place of incident but they had hidden in the nearby field. But according to them they have seen the incident. The Court below has believed the same. 8.2 It is also required to be noted that both the persons are also claiming that they received injury due to this incident. They claim that they have seen the causing of injuries from a long distance. However, it is established that out of the two so called eye witnesses, one witness is the relative of the victim and the other is his friend. 9. In that view of the matter, the witness who has remained independent for the purpose of taking evidence is PSO Sevadas PW5. As per his further statement and deposition, he has categorically stated that he was incharge of Sheel Police Station on that particular day when he received such message. In pursuance of that he handed over the charge to CR.A/611/2001 11/12 JUDGMENT another Constable and went to the concerned place on a motorcycle. He has stated that when he reached the scene of offence which is near Antroli railway crossing he saw the accused no.1 standing with a stone in one hand and on realizing that someone is coming the accused no.1 has thrown the stone and ran away from the scene of incident. He has identified the appellant no.1 and informed that in the past also i.e. in May 1997, the appellant no.1 was arrested by the then PSI J.U Rana and therefore on the day of the incident due to the light of the headlight of the motorcycle Constable Sevadas could identify the appellant no.1. In that view of the matter, the offence in question is established only against the appellant no.1. 9.1 Also the stone used for the offence, the muddamal articles, the FSL report etc also help in connecting the offence with the appellant no.1. Keeping in mind the number of injuries inflicted upon the victim by the appellant no.1 it cannot be said that it was not his intention to kill the victim. He has given a number of stone blows to the victim which has actually proved to be fatal. In that view of the matter, the role of the appellant no.1 is fully established in the offence without reasonable doubt. 10. As far as appellant no.2 is concerned, the prosecution is not able to establish his presence and role in the entire offence. In that view of the matter, this Court is of the view that in the event CR.A/611/2001 12/12 JUDGMENT of failure on the part of the prosecution to establish the role and presence of the appellant no.2 beyond doubt, he is entitled to benefit of doubt and therefore the appeal deserves to be allowed qua him. 11. In the premises aforesaid, the appeal is partly allowed. The judgement and order of conviction and sentence dated 31.05.2001 passed by the Sessions Judge, Junagadh in Sessions Case No. 20/1999 is confirmed qua appellant no. 1 viz., Mer Jiva Ranmal Keshwala. However, the order of conviction and sentence dated 31.05.2001 passed by the Sessions Judge, Junagadh in Sessions Case No. 20/1999 is quashed and set aside qua the appellant no.2 viz., Mer Keshu Laxman Keshwala. He shall be set at liberty forthwith if not required in connection with any other case. (R.P.DHOLAKIA, J.) (K.S. JHAVERI, J.) Divya//