IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 32 of 2000 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- GOMABHAI TERSINGBHAI DAMOR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR G RAMAKRISHNAN for Appellant MR U.R. BHATT, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE J.R.VORA Date of decision: 31/08/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) 1. Instant appeal filed under Section 374 (2) of the Code of Criminal Procedure, 1973 (" the Code" for short) is directed against judgment dated November 08, 1996 recorded by the learned Additional Sessions Judge, Panchmahals at Godhra, in Sessions Case No.107 of 1996 by which the appellant is convicted of the offences punishable under Section 302 read with 34 IPC as well as Section 323 read with 34 IPC and sentenced to suffer R.I. for life and fine of Rs.200/- in default R.I. for three months for commission of offence punishable under Section 302 read with 34 IPC as well as RI for 15 days and fine of Rs.100/- in default R.I. for 7 days for commission of offence punishable under Section 323 read with 34 IPC. It may be stated that the learned Additional Sessions Judge has directed that substantive sentences imposed on the appellant shall run concurrently and the appellant would be entitled to benefit of set off as postulated by Section 428 of the Code. 2. Complainant Nathabhai Galabhai Damor is resident of village Chitava, Taluka Santrampur, District Panchmahals. At the relevant time, he was serving as a Peon in a Bank. He was staying with his wife Ambaben Nathabhai, his cousin Virsinh, his son Rajeshbhai and one Balwantbhai. A machine installed in the house of complainant Nathabhai had become out of order. Therefore, in order to get it repaired, Virsinh, Rajesh and Balwant had called one Abhaysinh of village Taladara at the house of the complainant. Abhaysinh had tried his best to repair the machine, but could not succeed, and as it was getting late, Virsinh, Rajesh and Balwant had accompanied Abhay to ensure his safe passage to his house. After Abhaysinh had reached his village Taladara, all the three who had accompanied him i.e. Virsinh, Rajesh and Balwant were returning to their house situated in village Chitava. While returning to their house, they had to pass nearby field belonging to one Salubhai. It may be stated that the complainant and his relatives as well as Tersing Damor who is father of the appellant and his relatives belong to one family and had disputes with reference to right to cultivate agricultural lands since long before the incident. When Virsinh, Rajesh and Balwant were passing near the field of Salubhai, the appellant, his father Tersing Damor, his three brothers i.e., Ramesh, Shanabhai and Manilal had formed an unlawful assembly, common object of which was to cause death of Virsinh Akhambhai. In order to achieve this common object, Ramesh had armed himself with a stick whereas the appellant had armed himself with an axe. It is the case of the prosecution that in prosecution of common object, Tersing Narjibhai and Manilal Tersing had caught hold of deceased Virsinh Akhambhai and the appellant had inflicted axe blow on elbow of deceased whereas his brother Ramesh Tersing had hit the head of the deceased with a stick. Balwant and Rajesh who were with deceased Virsinh were threatened, as a result of which, they had started running towards their house. Rajesh had raised shouts that his uncle Virsinh was being assaulted by the appellant and others. On hearing the shouts, Ambaben, mother of Rajesh, had immediately come out of her house, followed by complainant Nathabhai, who is her husband. Ambaben had attempted to intervene in the incident, but Ramesh Tersing had inflicted stick blows on her back. On commotion being raised, several persons residing nearby had collected at the place of incident and, therefore, the accused had run away. As Virsinh had sustained serious injuries, Nathabhai had called two members of the panchayat at the place of incident. After their arrival at the place of incident, an arrangement was made to summon a jeep from Santrampur, and in the said jeep, Virsinh was removed to Government dispensary at Fathepura. Ambaben was also treated by Medical Officer of the said Hospital. Thereafter Nathabhai had gone to Fathepura Police Station and lodged his complaint, which was registered by Nanjibhai Kanabhai, who was then PSO of the Police Station. PSO of the Police Station had handed over investigation of the complaint of Nathabhai to Javsingbhai Ramjibhai Pargi, who was then Jamadar at the Khedapa Out Post of Fathepura Police Station. Mr.Pargi had visited the place of incident and drawn panchnama of place of incident. He had also recorded statements of Rajesh and Balwant. As injured Virsinh had sustained serious injuries and his condition was deteriorating, Medical Officer of Government Dispensary, Fathepura, had advised to remove him to Godhra Hospital for better treatment. Accordingly the injured was removed to Godhra General Hospital for treatment where he succumbed to his injuries on December 05, 1995. On necessary information being conveyed, offences punishable under Sections 302, 323, 143, 147, 148, 149, 504 IPC as well as Section 135 of the Bombay Police Act were registered against the appellant and others and investigation into FIR of Nathabhai was made by Pramodbhai Fatesinh Gohil who was then PSI of Fathepura Police Station. The Investigating Officer had drawn panchnama of place of occurrence and recorded statements of those persons who were found conversant with the facts of the case. He had made necessary arrangements for sending dead body of the deceased for postmortem examination. Autopsy on the dead body of the deceased was performed by Dr.Naryanbhai Punjabhai Patel. Three accused i.e. Tersing Narji, the appellant and Manilal Tersing were arrested on December 6, 1995 whereas Rameshbhai and Shanabhai could not be arrested as they were absconding. While in police custody, accused Gemabhai Tersing had made disclosure statement, pursuant to which, axe used by him in commission of crime was discovered. The clothes of the deceased were taken into custody by the Investigating Officer. Incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory for analysis. On completion of investigation, charge sheet was submitted by the Investigating Officer against three accused i.e. Tersing Narji, Gema Tersing i.e. the appellant and Manilal Tersing because Rameshbhai and his brother Shanabhai were absconding. The Charge sheet was filed in the court of learned Judicial Magistrate, First Class, Santrampur, for commission of offences punishable under Sections 302, 323, 504,143,147, 148, 149 IPC and Section-135 of the Bombay Police Act, 1951. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case against those three accused was committed to Sessions Court, Panchmahals at Godhra for trial, where it was numbered as Session Case No. 107 of 1996. 3. The learned Additional Sessions Judge, Panchmahals at Godhra to whom the case was made over for trial, framed charge against the appellant at Exh. 1, of the offences punishable under Sections 302, 323, 504, 143, 147, 148,149 IPC and Section 135 of the Bombay Police Act,1951. The charge was read over and explained to the appellant and others, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Dr. Narayanbhai Punjabhai Patel as PW-1 at Exh. 16; (2) Nathabhai Galabhai Damor as PW-2 at 18; (3) Rajeshbhai Nathabhai Damor as PW-3 at Exh.20; (4) Balwantbhai Rumalbhai Damor as PW-4 a Exh. 21; (5) Ambaben Nathabhai as PW-5 at Exh.22; (6) Sardarbhai Surmabhai Damor as PW-6 at Exh. 23; (7) Dr. Chimanbhai Bijiyabhai Charel as PW-7 at Exh.26; (8) Soma Akhma Damor as PW-8 at Exh.29; (9) Nanjibhai Dharjibhai as PW-9 at Exh. 31; (10) Javsinghbhai Ramjibhai Pargi as PW-10 at Exh.32 and (11) Pramodsinh Fatesinh Gohil as PW-11 at Exh.33, to prove its case against the appellant. The prosecution had also produced documentary evidence such as panchnama of place of incident prepared by Jamadar Javsingbhai at Exh.8, panchnama of seizure of clothes of the deceased at Exh.11, postmortem notes of deceased Virsinh at Exh.17; complaint of Nathabhai at Exh. 19, panchnama of place of incident prepared by the Investigating Officer at Exh. 24; injury certificate of Ambaben Nathabhai at Exh.28 in support of its case against the appellant. 4. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the appellant the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further statement as required under Section 313 of the Code. In his further statement, the case of the appellant was that he was innocent and a false case was filed against him. However, he had not examined himself on oath or any other witness in support of the defence pleaded by him in his further statement. 5. On evaluation of evidence led by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that deceased Virsinh had died a homicidal death. According to learned Judge, testimony of (i) Nathabhai Galabhai Damor, (2) Ambaben Nathabhai, (3) Damor Rajeshbhai Nathabhai, (4) Damor Balwantbhai Rumalbhai and (5) Sardarbhai Surmabhai, was reliable, trustworthy as well as cogent, which established that the appellant had delivered axe blow on elbow of the deceased whereas fatal blow on head of the deceased by means of a stick was delivered by Ramesh Tersing. The learned Judge noticed the medical evidence tendered by Narayanbhai Patel, which established that the injury sustained by the deceased on his head was sufficient in the ordinary course of nature to cause his death. What was deduced by the learned Judge was that it was not proved by the prosecution that the appellant with other accused had formed an unlawful assembly, common object of which was to cause death of deceased Virsinh or cause injury to Ambaben and, therefore, the appellant was not liable to be convicted of the offences punishable under Sections 143, 147, 148 and 149 IPC, but the appellant had shared common intention of other accused Ramesh to cause death of the deceased who had caused death by delivering fatal blow of stick on head of the deceased, as a result of which, he was liable to be convicted of the offence punishable under Section 302 read with 34 IPC. According to the learned Judge it was established by the prosecution that Ramesh had caused simple injuries by stick to witness Ambaben Nathabhai and, therefore, the appellant was liable to be convicted of the offence punishable under Section 323 read with 34 IPC. In view of above referredto conclusions, the learned Judge has convicted the appellant of the offence punishable under Section 302 read with 34 and Section 323 read with 34 IPC and imposed sentences referredto earlier by judgment dated November 08, 1996, giving rise to instant Appeal. 6. Mr.G. Ramakrishnan, learned Counsel of the appellant contended that evidence on record clearly establishes that attempt is made by the witnesses to rope in falsely, as many persons of family of the appellant, as possible, in the incident and therefore the appellant who was falsely involved in the case, should be acquitted. According to him, chronology of events of incident as narrated by so called eye witnesses differs from witness to witness and as case against the appellant is not satisfactorily established, the appeal should be allowed. What was emphasized was that eye witness Rajesh contradicts eye witness Ambaben regarding presence of eye witness Ambaben at the place of incident and,therefore, unreliable case of prosecution against the appellant should be disbelieved. In the alternative, it was argued that the evidence led by the prosecution does not establish that the appellant had inflicted injury on vital part of body of the deceased and therefore the finding that the appellant had shared common intention to cause death of the deceased is liable to be set aside and at best the appellant would be liable to be convicted under Section 324 IPC as fracture of ribs of deceased was not committed by the appellant and, therefore, also the appeal should be accepted in part. 7. Mr. Uday R. Bhatt, learned Additional Public Prosecutor, contended that the rustic village witnesses have tendered evidence before the court in a straight forward manner and, therefore, their evidence should not be viewed with any suspicion by the Court. According to learned counsel of the State Government, the eye witnesses, except Sardarbhai Surmabhai, were closely related to the deceased and as they would not allow the real culprits to go scot-free or involve the appellant in a serious case falsely, their evidence should be accepted by the Court. What was stressed was that sworn testimony of witness Sardarbhai Surmabhai shows that he is an independent person who is neither interested in the complainant or his relatives nor on inimical terms with the appellant and other accused and as commission of offence as claimed by the prosecution is fully established by his evidence, instant appeal should be dismissed. The learned Counsel pointed out that the so called contradictions and/or omissions brought on record are inconsequential and as they do not affect the substratum of the prosecution case, there is no reason to discard otherwise reliable evidence of eye witnesses. What was emphasized was that the presence of eye witness Ambaben at the place of incident can hardly be doubted as she herself was injured in the incident and therefore some minor contradictions in the evidence of eye witnesses regarding presence of Ambaben at the place of incident, which are sought to be blown out of proportion, should not weigh with the court. According to the learned counsel of the State Government, the circumstances that (1) the appellant had armed himself with a dangerous weapon like an axe, (2) he and others had intercepted the deceased who was returning home; (3) he had delivered blow with axe on elbow of the deceased who was unarmed; (4) accused Ramesh had delivered fatal blow on the head of the deceased, (5) eye witness Ambaben was prevented by accused Ramesh from intervening when an attempt was made by her to save the deceased and was injured; (6) the appellant had left the place of incident together with Ramesh, etc. would show that the appellant had shared common intention to cause death of the deceased and, therefore, the conviction of the appellant with aid of Section 34 cannot be regarded as erroneous. According to learned counsel of the State Government, weighty reasons have been assigned by the learned Judge of the Trial Court for convicting the appellant of the offence punishable under Sections 302 read with 34 and Section 323 read with 34 IPC and as the learned Counsel of the appellant has failed to dislodge them, the appeal should be dismissed. 8. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and a reasonable probabilities of the case. 9. It may be stated that accused Ramesh Tersing was arrested on November 07, 1996. While in custody, he had made disclosure statement, pursuant to which, stick used by him in commission of crime was discovered by Investigating Officer in presence of panch witnesses. On completion of investigation, charge sheet against him was submitted in the Court of learned Judicial Magistrate, First Class, Santrampur, for commission of offences punishable under Sections 302,323, 504, 143,147, 148, 149, 504 IPC and Section 135 of the Bombay Police Act. As offence punishable under Section 302 is exclusively triable by a Court of Sessions, the case against him was committed to the Sessions Court, Panchmahals at Godhra for trial, where it was numbered as Session Case No. 34 of 1997. Accused Ramesh pleaded not guilty to the charge framed against him and, therefore, prosecution had examined 14 witnesses to prove its case against him. The prosecution had also produced documentary evidence in support of its case against him. On appreciation of evidence led by the prosecution against him, accused Ramesh was convicted of the offences punishable under Section 302 read with 34 and 323 read with 34 IPC and sentenced to suffer RI for life and fine of Rs. 500/- in default RI for six months for commission of offence punishable under Section 302 read with 34 IPC as well as RI for six months and fine of Rs. 100 in default RI for one month for commission of offence punishable under Section 323 read with 34 IPC by judgment dated October 10, 1997 which was rendered in Session Case No. 34 of 1997. Feeling aggrieved by the above quoted judgment, accused Ramesh Tersing had preferred Criminal Appeal No. 1063 of 1997 before the High Court under Section 374 (2) of the Code of Criminal Procedure, 1973. The said Appeal has been heard and dismissed by this Division Bench vide judgment dated August 26, 2004. 10. The fact that deceased Virsinh died a homicidal death can hardly be disputed. It is not argued by the learned counsel of the appellant that prosecution could not establish that deceased had died a homicidal death. The testimony of eye witnesses clinchingly establishes that the deceased had received injuries on his head and other parts of body. The injuries sustained by the deceased are mentioned in inquest panchnama produced by the prosecution on record of the case at Exh.10. The testimony of Dr. Naryanbhai Patel, who was Medical Officer of General Hospital, Godhra, shows that he had received dead body of the deceased for postmortem examination on December 6 1995, and that he had performed autopsy on the dead body of the deceased. The Doctor has mentioned in detail the external and internal injuries sustained by the deceased, which were noticed by him while performing autopsy on the dead body of the deceased. They are to be found in paragraphs 1 and 2 of his deposition. The injury sustained by the deceased are also detailed in postmortem notes produced on the record of the case at Exh.17. The Medical Officer has specifically stated that all the injuries noticed by him on the dead body of the deceased were antemortem and were possible by stick and axe which were produced as muddamal articles before the court. On the facts and in the circumstances of the case, this Court is of the opinion that the finding recorded by the learned Judge of the Trial Court that deceased died a homicidal death is eminently just and is hereby upheld. 11. In order to prove charges levelled against the appellant, the prosecution has in all examined 5 eye witnesses. They are (1) Nathabhai Galabhai Damor, PW-2 Exh.18 (2) Rajeshbhai Nathabhai Damor, PW-3 Exh.20, (3) Balwantbhai Rumalbhai Damor, PW-4 Exh.21,(4) injured Ambaben Nathabhai, PW-5, Exh.22, and (5) Sardarbhai Surmabhai Damor, PW-6 Exh. 23. Nathabhai Galabhai Damor whose testimony is recorded at Exh.18 has narrated the whole incident in a simple and straight forward manner. According to him, the deceased was his cousin and was serving as a Peon in the High School situated at village Chitava. It is stated by him that the incident had happened on Saturday and on that day he had returned home at about 6.00 p.m. According to him, he had learnt that Abhaysinh Gemabhai had come to his house for repairing the machine. It is stated by him that Abhaysinh could not repair the machine and as it was getting late, deceased Virsinh and his two sons Rajesh and Balwant had accompanied Abhaysinh to ensure his safe passage to his house situated in village Taladara. According to this witness at about 8.00 p.m. or 8.30 p.m. his sons Rajesh and Balwant had come to his house shouting that their uncle Virsinh was being assaulted and therefore he and his wife Ambaben had gone running to the field of Salubhai, Driver, where deceased was being assaulted. It is stated by him that his wife Ambaben was ahead of him. It is mentioned by the witness that Virsinh was lying on ground and that accused Ramesh had given stick blow to his wife, as a result of which he had raised shouts and, therefore, Arjan, Surji, Raising, etc. had come to his rescue and he was able to save his wife. According to this witness, when his wife was assaulted, at that time, Jesing Tersing, Tersing Nagji, Manilal Tersing, Ramesh Tersing, Gema Tersing (i.e. appellant) and Shana Tersing were present, out of whom, Ramesh had a stick with him whereas Gema had an axe with him whereas others were not armed with any weapons at all. What is maintained by the witness before the court is that all the above referredto persons had left the place of incident after uttering abuses. According to this witness, Rajesh had informed him that the deceased was caught hold of by Manilal and Tersing, whereas Ramesh and Gema were beating him. It is stated by the witness that when they had gone near Virsinh, they had found that he was unconscious and had sustained injury on his head as well as ankle of his left hand. The witness has further stated before the Court that as Virsinh was alive at that time but was not able to speak, he had removed him to Fathepura Dispensary in a jeep where he was treated by Dr. Charel, and Dr.Charel had advised him that injured Virsinh should be removed to Godhra Hospital for better treatment. It is also mentioned by the witness that he had made arrangement to remove Virsinh to Godhra hospital along with other persons and he had lodged complaint at Fathepura Police Station. According to this witness, Virsinh had expired on December 05,1995. What is maintained by the witness before the Court is that accused and Virsinh had dispute relating to land and, therefore, he was assaulted. The witness has informed the court that when he had gone to Fathepura Police Station to lodge First Information Report, he was informed by Jamadar Nanjibhai that there was a rule that a complaint against five persons cannot be recorded, as a result of which he had argument with him for about two hours and after being frustrated, he had lodged First Information Report against four persons. According to this witness, he had also informed Dy.S.P. Mr.Dave and PSI Mr.Gohil about the stand which was taken by Jamadar Nanjibhai when he had gone to lodge First Information Report. In his cross-examination, it is stated by the witness that the Police had not recorded the statement as narrated by him and had recorded his complaint only after some argument. It is stated by the witness that when his son and others had gone to village Taladara, it was night time. According to this witness, village Taladara is at a distance of 3 to 4 kms from his village whereas field of Salubhai Driver is situated at a distance of one field from his house, and that it was possible to hear from the field of Salubhai Driver if shout was raised. In cross-examination, it is stated by the witness that before his son had come to his house, they had come out of house and that they had gone to the place of incident running with his son. The suggestion made by the defence that no one was present when he had reached the place of incident, was emphatically denied by him.