IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 959 of 1990 with CRIMINAL APPEAL No 1075 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------- CRIMINAL APPEAL NO. 959 OF 1990 : DILIP AMRUTLAL PANDYA - Appellant (orig. Accused No.2) Versus STATE OF GUJARAT - Respondent CRIMINAL APPEAL NO. 1075 OF 1990 : STATE OF GUJARAT - Appellant versus NATU DEVJI NAT - Respondent (Orig. Accused No.1) -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 959 of 1990 MR BK DAVE FOR MR BR KYADA for Appellant MR KG SHETH, APP for Respondent - State 2. Criminal Appeal No. 1075 of 1990 MR KG SHETH, APP for Appellant - State MR MN JOSHI FOR MR PM THAKKAR for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE SHARAD D.DAVE Date of decision: 30/07/2001 ORAL JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI for the Court) 1. These two appeals arise from the judgement and order dated 29th September 1990 of the learned Additional Sessions Judge, Gondal in Sessions Case No. 1 of 1990, by which while acquitting the original accused No.1 Natu Devji, the Court convicted the original accused No.2 Dilip Amratlal for the offence under section 302 of the Indian Penal Code sentencing him to life imprisonment and to pay a fine of Rs.2,000=00, in default to undergo further rigorous imprisonment for three months. The accused No.2 was also convicted for the offence under section 135 of the Bombay Police Act and sentenced to pay a fine of Rs.500=00, in default to undergo simple imprisonment for fifteen days. Criminal Appeal No. 959 of 1990 has been preferred by the original accused No.2 Dilip Amratlal against the said decision, while the Criminal Appeal No. 1075 of 1990 has been preferred by the State against the acquittal of the original accused No.1 - Natu Devji. 2. The prosecution version was that, on 20th November 1989 in the evening around 8 o'clock, these two accused persons armed with sharp cutting instruments intentionally caused knife injuries to Vasumal Ramjibhai resulting in his death and thereby, committed an offence under section 302 of the Indian Penal Code. In the alternative, according to the prosecution, both the accused acted in aid of each other and in furtherance of their common intention to murder Vasu, they caused the knife injuries to him which resulted in his death and thereby, they were guilty of the offence under section 302 read with section 34 or section 114 of the Indian Penal Code. 2.1 According to the prosecution, there was a quarrel between these accused persons and the elder brother of the deceased Parshottam, who was repairing the watches about a week prior to this incident over the repairs of a watch given by the accused No.2. Vasu thereupon had a quarrel with both the accused persons. At the relevant time, Vasu and his friend Mohan were walking on the road and both the accused came in an auto-rickshaw driven by one of them and halted it near Vasu. According to the prosecution, both the accused attacked Vasu and caused knife injuries to him. 2.2 It is the prosecution case that, as per the First Information Report, Bhagvandas who was also the elder brother of Vasu, had seen the accused No.1 with a knife standing near the auto-rickshaw when Vasu was lying on the ground and after the assailants went away in that auto-rickshaw, he was told by Vasu that the accused No.1 had given him a knife blow. After Bhagvandas went to fetch an auto-rickshaw for taking Vasu to the hospital, Mohan and other witnesses had carried Vasu to his house which was nearby and at that time, Vasu had on being asked told witnesses Pappu and Hamir that the accused No.2 - Dilip had given him a knife blow. When Vasu was carried to the hospital, he was declared dead. 2.3 According to the prosecution, both the accused were apprehended together at the railway station on 21-11-1989. The clothes of the accused No.2 Dilip Amratlal which were discovered at his instance, had blood stains, which on analysis was found to be that of `A' positive group, which was the blood group of the deceased Vasu. According to the prosecution, the accused No.2 had also led the police party and panchas to the discovery of a knife which was blood stained, which blood was also of group `A' as per the report of the chemical analyser and the serologist at exh.45 colly. The prosecution case is that both the accused persons were identified at the test identification parade which was held within two days of the incident. Both the accused were serving as door-keepers in Chetna Cinema and on the day of the incident, they had taken half-day leave and at the time of the incident, they acted in a concerted manner for taking revenge against Vasu, who had tried to take the side of his brother Parshottam earlier when these accused persons had quarrelled with Parshottam over the repairs of a watch which Dilip had given to Parshottam. 3. The trial Court, on the basis of the material on record, found that there was no sufficient evidence to implicate the accused No.1 - Natu and that Bhagvandas who had in his FIR and deposition said that the deceased Vasu had told him that the accused No.1 had given him a knife blow, was not supported by any other evidence. It was held that the accused No.2 - Dilip had given the knife blow which resulted in the death of Vasu and that he was individually liable for the offence that he committed. According to the trial Court, there was no material on record to show that the accused No.1 had shared the intention of the accused No.2 of causing death of Vasu or that the blow was given by the accused No.2 in furtherance of the common intention of both of them. The Court found that there was no reliable evidence to show that the accused No.1 was acting in a concerted manner with the accused No.2. 4. The learned counsel appearing for the original accused No.2 - appellant submitted that the name of the accused No.2 - Dilip was not given in the FIR and as per the version therein and the deposition of Bhagvandas, the accused No.1 was having a knife and no overt act was attributed to the accused No.2 and therefore, the prosecution version regarding the involvement of the accused No.2 in the crime, was highly doubtful. It was submitted that merely because Natu and Dilip were door-keepers together, no inference can be drawn against the appellant - accused. The story of Bhagvandas regarding some other person being present whose name he did not know while naming the accused No.1 should alone be sufficient to acquit the accused No.2. It was also contended that Bhagvandas was an interested witness and it was unsafe to rely upon him so far as the accused No.2 was concerned. He had made material improvements in his version before the Court by implicating the accused No.2 - Dilip, because, in the FIR, he had said that Vasu had named the accused No.1 Natu as the person who had given him a knife blow and there was no mention of the accused No.2 or any other person sitting in the auto-rickshaw as having given him knife blow alongwith the accused No.1, which was the improved version before the court. As regards the eye-witness Mohanlal, the learned counsel submitted that his evidence cannot be relied upon, because, he had not known the accused persons earlier and they were, as admitted by him, shown to him a day prior to the test identification parade. Moreover, he was told by a lawyer as to in what manner he should give deposition. It was submitted that Mohanlal was, therefore, a tutored witness and he had not seen any blow actually being given to Vasu. It was further submitted that Hamir and Pappu were not the eye witness to the incident and therefore, there was no sufficient evidence to hold the accused No.2 guilty of the offence. It was also argued that the evidence shows that, after the incident, the lights had gone off and therefore, it was not possible for the witnesses who came later on to see the assailants going away in the auto-rickshaw. 4.1 In support of his contentions, the learned counsel relied upon the decision of the Supreme Court in Ram Nath Madhoprasad v. State of Madhya Pradesh, reported in AIR 1953 SC 420 for the proposition that unless one is certain about the exact words uttered by the deceased, no reliance can be placed on verbal statements of the witnesses and the oral declarations made by the deceased. It was held that it was not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration, because, such a statement is not made on oath and is not subject to cross-examination and because, the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. The decision of this Court in Patel Dashrathbhai Atmaram v. State of Gujarat, reported in 1998 (2) GLH 155 in which the above decision of the Supreme Court was followed, was also cited for the same proposition. 5. The learned Additional Public Prosecutor, arguing the acquittal appeal against the accused Natu and also replying to the contentions raised on behalf of the convicted accused Dilip, contended that there was sufficient evidence on record to establish the guilt of both the accused. He submitted that the manner in which they had come together and assaulted Vasu by giving him knife blows and thereafter, run away together in the auto-rickshaw of Dilip's brother which they had brought, was sufficient to establish that there was a prior meeting of minds between both the accused persons for forming their common intention of causing murder of Vasu. It was submitted that the evidence establishes that the accused No.2 Dilip had given a knife blow to Vasu which had resulted in his death, and that the injury was sufficient in the ordinary course of nature to cause death and therefore, the accused No.2 was individually liable for the offence under section 302 of the Indian Penal Code, while the accused No.2 was liable for the offence under section 302 read with section 34 of the Indian Penal Code. It was submitted that Mohanlal was an eye witness whose account clearly showed that the accused No.2 had given the knife blows to Vasu and the oral dying declaration of Vasu before Pappu and Hamir also showed that it was the accused No.2 - Dilip who had given the knife blows. It was submitted that the discovery of blood stained knife and his blood stained clothes by the accused No.2 were the circumstances which re-assured the prosecution version that the accused No.2 had given the knife blows to Vasu. The blood group which was found on these articles was that of the deceased and that could not have been a coincident, because, the blood group of the accused No.2 was different. It was submitted that there was sufficient motive for the accused persons to attack Vasu, because of the previous incident that had occurred about eight to ten days back and in which on Parshottam being manhandled by the accused persons, Vasu had quarrelled with them in support of his elder brother Parshottam. It was submitted that the oral and documentary evidence on record established beyond any shadow of doubt that both the accused were guilty of the offences with which they were charged. 6. The learned counsel appearing for the original accused No.1 who was acquitted by the trial Court argued that there was no evidence to implicate the accused No.1 apart from the oral dying declaration said to have been made by Vasu to Bhagvandas. It was submitted that no other witness has spoken about Vasu having declared the accused No.1 as the person who had given him a knife blow. According to the witnesses - Hamir and Pappu, Vasu had said that it was the accused No.2 Dilip who had given him a knife blow and had not at all named the accused No.1. Therefore, the version of Bhagvandas, who was an interested witness, that Vasu had declared in his oral dying declaration that the accused No.1 had given him a knife blow, cannot be trusted. On the aspect of vicarious liability of the accused No.1, the learned counsel contended that there was no material on record to show that the accused persons had known that the deceased would be passing through the place of the incident and if at all there were any prior concert, the accused would not commit the crime in a bazaar and would rather select a desolate place where they can execute their plan. The incident appears to have suddenly occurred without any prior meeting of mind and therefore, the accused No.1 cannot be attributed with the intention or knowledge of causing death of Vasu. The learned counsel submitted that the trial Court was perfectly justified in acquitting the original accused no.1 of the charges which were levelled against him. In support of his contention, the learned counsel relied upon the decision of the Supreme Court in Darshana Devi v. State of Punjab, reported in 1996 SCC (Cri.) 38, in which it was held that even though an oral dying declaration can form basis of conviction in a given case, such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. The reproduction of the exact words of the oral declaration in such cases is very important. The difference in the exact words in the declaration would detract materially from the value of the oral dying declaration. Reliance was also placed on Ramesh Babulal Doshi v. State of Gujarat, reported in 1996 SCC (Cri.) 972 in which it was held that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the entire evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless the Court comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. The decision of the Supreme Court in Hallu and others v. State of Madhya Pradesh, reported in AIR 1974 SC 1936 was also relied upon by the learned counsel for the same proposition. Reliance was also placed on the decision of the Supreme Court in Hari Ram v. State of Rajasthan, reported in 2000 SCC (Cri.) 1178, in which the Supreme Court, while holding that the power of the High Court while hearing acquittal appeals is wide and comprehensive, held that if, however, two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would, sitting as the trial Court, have taken the other view. 7. The fact that the death of Vasu was homicidal is amply proved by the evidence on record. The evidence also shows that the incident in which Vasu was given knife blows took place in the evening around 8 o'clock on 20th November 1989 on the road somewhere near his house. The map which is at exh.8 shows the house of Ramjimal Thavardas, the father of the deceased, where the deceased used to reside with his brothers Parshottam and Bhagvandas. There is a lane known as `Taba Sheri' which was on the road known as `Ladi Road'. The incident is said to have taken place opposite the house of Manga Kala, about 3 feet away from the spot where the electric lamp-post is shown in the map. There is documentary evidence in form of an abstract of register which is at exh.54 which shows that, in the muster roll, the names of the accused Nos. 1 and 2 appear at Srl. Nos. 10 and 11 and they were doing the work of door-keepers in Chetna Cinema and further that they had taken half-day leave on the day of the incident. 8. Dr. Chandulal in his deposition exh.24 has stated that he was a medical officer in the Jetpur Government Hospital on 20th November 1989 and that Vasu was brought to the hospital by his brother Bhagvandas at 8.35 p.m. and on examining him, he had declared that Vasumal was dead. He did the post mortem examination of the dead body on 21-11-1989 at 7.30 a.m. and noted the following internal injuries thereon : "[1] One skin injury on front of chest by sharp cutting instrument. It is superficial. Direction : Mid point of base of neck to right shoulder about 6" in oblique cut blood stain. (2) Stab wound on left mid axillary linear between left 7th & left 8th rib about 1" x 1/2" entrance. Depth & Direction : Slight oblique. Medial to backward in left lung. No rib fracture detected. About 7.1/2" in length. Gradually became smaller. Injury by wound : Skin subcutaneus tissues muscles, left pleura left lung cut, its vessels upto medial margin of left lung." He has stated that all these injuries were antemortem. Left lung had ruptured as noted in clause 20 of the post mortem notes. The cause of death was excessive haemorrhage due to injury on the left lung. This injury corresponded to the external injury No.2. According to the medical expert, the said injuries were possible by the muddamal knife article No.14. It was stated that a person would be able to live for about 10 to 15 minutes after receiving such injuries and would be in a position to speak for about 5 to 10 minutes after receiving them. In his cross-examination, he denied the suggestion that the injury No.2 can be caused only by a weapon which had a longer blade. He has explained how this injury could be caused by giving a forceful blow with the muddamal knife. 9. In his deposition exh.10, the informant Bhagvandas has stated that, around 7.30 p.m. on 20-11-1989, he was sitting at the shop of his friend which was about 30 to 35 feet away from the place where the incident took place. He was told by two or three young boys who came there that his brother Vasu was being beaten near the entrance of their lane. He, therefore, immediately started running towards that place and when he reached there, he saw that there was an auto-rickshaw halting there in which a person was sitting on a driver's seat, while the accused No.1 - Natu was standing with a knife near the auto-rickshaw, and that his brother Vasu was lying on the road. Witnesses Hamir and Mohan were also standing there. According to this witness, when he made his brother stand up, he was told that the accused No.1 - Natu and the other person who was in the rickshaw had given him the knife blows. At that time, the accused No.1 - Natu got into the rickshaw and both of them had gone away. This witness, Hamir, Mohan and Pappu had helped his brother and taken him near his house and made him lie down there and thereafter, this witness brought the rickshaw and in that rickshaw, they took Vasu to the hospital, where on examining Vasu, the doctor declared him dead. Thereafter, the doctor had phoned up the police station and the policeman who had come to the hospital had recorded his FIR. He has further stated that, about 8 to 10 days prior to the date of the incident, the accused No.2 - Dilip had given his watch for repairs at the shop of his brother Parshottam and in respect of that watch, both the accused persons had quarrelled with Parshottam. This witness and his brother Vasu had, therefore, gone there and at that time, there was an altercation between Vasu and the accused persons. According to this witness, the accused persons had attacked Vasu with knife blows taking revenge of that incident. He has stated that he knew the accused No.1 Natu since about a year prior to the incident and that he was working as a door-keeper in the theatre. He has stated that he had identified both the accused persons in the test identification parade which was held two days after the incident by the Mamlatdar in his office. In his cross-examination, he has stated that he did not try to catch the accused persons. He has admitted that he had not stated in the FIR that when he had come, he had seen Natu with a knife near the auto-rickshaw, but he had stated that there was something like a knife in his hand. He has also admitted that he has not stated in his FIR that Dilip had given a watch for repairs to his brother Parshottam and both the accused had a quarrel about it with him or that he had gone there. He has also admitted that, in his FIR, he had not given the description of the other person who was sitting in the rickshaw. He has denied the suggestion that he did not know the accused No.1. He has stated that when he reached the spot, Mohan and Hamir were already near Vasu. According to him, he asked them as to why Vasu was lying on the ground and they told him that he was injured with a knife. 9.1 Bhagvandas, obviously was not an eye-witness and it appears that he came to the spot after Vasu was injured and was lying on the ground. In his FIR recorded soon after the incident, he had stated that there was other person in the auto-rickshaw and did allege that both of them had assailed Vasu, but referring to the dying declaration said to have been made by Vasu to him, he had mentioned only the name of the accused No.1 Natu, door-keeper in Chetna Talkies as the assailant having been disclosed by Vasu. The fact that Natu was a door-keeper in Chetna Talkies is borne out from the muster roll exh.54 and also from the deposition of the Manager of the Cinema House. In the FIR, the previous incident of quarrel with Parshottam was attributed to the accused No.1 Natu. Bhagvandas had mentioned in the FIR that, because of that incident, the accused No.1 - Natu and the other person who was in the auto-rickshaw had caused the death of Vasu by giving him knife blows. 9.2 The deposition of Bhagvandas only establishes that the incident occurred after 7.30 in the evening on 20th November 1989, and that when he reached the spot, Vasu was lying on the ground injured and that he had seen the accused No.1 standing outside the rickshaw with a knife and thereafter, both the persons going away in the auto-rickshaw. He had also seen Mohan and Hamir near Vasu when he reached that place. On the aspect whether Vasu had disclosed to him the name of the assailant, we shall comment on his deposition after referring to the evidence of other witnesses, including the eye witness. 10. Mohanlal,