CR.A/523/1997 1/97 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 523 of 1997 With CRIMINAL APPEAL No. 532 of 1997 With CRIMINAL APPEAL No. 539 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH sd/-. HONOURABLE MR.JUSTICE H.B.ANTANI sd/-. ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= THAKOR JINA VERSHI & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Criminal Appeal No.523 of 1997. MR BP MUNSHI for Appellants-ORIG. ACCUSED NOS.8 AND 14. MS DS PANDIT, LD.ADDL.PUBLIC PROSECUTOR for Respondent. ===================================================================== Criminal Appeal No.532 of 1997. MR EKANT AHUJA for Appellants-ORIG.ACCUSED NOS.5 AND 10. MS DS PANDIT, LD.ADDL.PUBLIC PROSECUTOR for Respondent. ===================================================================== Criminal Appeal No.539 of 1997. MR HARNISH DARJI for Appellant-ORIG.ACCUSED NO.3. MS DS PANDIT, LD.ADDL.PUBLIC PROSECUTOR for Respondent. ========================================================= CR.A/523/1997 2/97 JUDGMENT CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 23/10/2008 COMMON CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) 1. Criminal Appeal No.523 of 1997 is preferred by the appellants-orig. accused no.8-Jina Vershi and orig. accused no.14-Khoda Vershi (hereinafter referred to as 'accused no.8 and accused no.14' respectively) challenging the judgment and order of conviction and sentence dated 31st March 1997, passed by learned Sessions Judge, Surendranagar, in Sessions Case No.39 of 1995, whereby the learned trial Judge at the end of trial has convicted accused no.8 for the offence punishable under Section 302 of the Indian Penal Code and convicted accused no.14 for the offence punishable under Sections 302 and 326 of the Indian Penal Code. The learned trial Judge has sentenced each accused no.8-Jina Vershi and accused no.14-Khoda Vershi to undergo imprisonment for life and each of them to pay CR.A/523/1997 3/97 JUDGMENT a fine of Rs.1000/- and in default of payment of fine, further to undergo rigorous imprisonment for three months for the offence punishable under Section 302 of the Indian Penal Code. Accused no.8-Jina Vershi is further sentenced to undergo rigorous imprisonment for three years and fine of Rs.250/- and in default of payment of fine to undergo further rigorous imprisonment for one month, so far as offence punishable under Section 326 of the Indian Penal Code is concerned. 2. Criminal Appeal No.532 of 1997 is preferred by the appellants-orig.accused no.5-Dashrath Okha and orig. accused no.10-Chatur Harji (hereinafter referred to as 'accused no.5 and accused no.10' respectively) challenging the judgment and order of conviction and sentence dated 31st March 1997, passed by learned Sessions Judge, Surendranagar, in Sessions Case No.39 of 1995, whereby the learned trial Judge at the end of trial has convicted accused nos.5 and 10 for the offence punishable under Section 302 of the Indian CR.A/523/1997 4/97 JUDGMENT Penal Code and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs.1000/- and in default of payment of fine, further to undergo rigorous imprisonment for three months for the offence punishable under Section 302 of the Indian Penal Code. Both the accused nos.5 and 10 are further sentenced to undergo rigorous imprisonment for three years and each to them to pay a fine of Rs.250/- and in default of payment of fine each of them is sentenced to undergo further rigorous imprisonment for one month, so far as offence punishable under Section 326 of the Indian Penal Code is concerned. 3. Criminal Appeal No.539 of 1997 is preferred by the appellant-orig.accused no.3-Dharamshi Harji (hereinafter referred to as 'accused no.3') challenging the judgment and order of conviction and sentence dated 31st March 1997, passed by learned Sessions Judge, Surendranagar, in Sessions Case No.39 of 1995, whereby the learned trial Judge at the end of trial has convicted accused no.3 for the offence punishable under Section 302 of the CR.A/523/1997 5/97 JUDGMENT Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1000/- and in default of payment of fine, further to undergo rigorous imprisonment for three months for the offence punishable under Section 302 of the Indian Penal Code. 4. Total 15 persons have been prosecuted for various offences for the incident occurred on 28th February 1995 at 07-00 p.m. in village Odu, Tal. Patdi, Dist. Surandranagar. All these accused were arrested for the offences punishable under Sections 147, 148, 149 read with Sections 302 and 326 of the Indian Penal Code and also under Section 135 of the Bombay Police Act. As per the case of the prosecution, all the 14 accused persons were the members of the unlawful assembly and most of them were holding deadly weapons in their hands and they had cornered and assaulted Dharamshi Bhikha. On account of the blows inflicted upon him, Dharamshi Bhikha-brother of the complainant-Kaliben Bhikhabhai, had died on the site, more particularly on account of the blows inflicted on his head-the most CR.A/523/1997 6/97 JUDGMENT vital part of the body. The accused simultaneously caused injuries to the complainant-Kaliben who rushed to rescue her brother and also PW-3 Gomtiben, mother of Dharamshi. According to prosecution, thereby, the accused committed offences punishable under Sections 302 and 326 of the Indian Penal Code along with the offences of rioting punishable under Sections 147, 148 and 149 of the Indian Penal Code and also the offence punishable under Section 135 of the Bombay Police Act. 5. The brief facts of the prosecution case are reflected in the charge at Ex.3 framed by the learned trial Judge and initially it would be appropriate to state the facts of the prosecution case which in nutshell are that on the date of incident i.e. on 27th January 1997, the complainant-Kaliben had been to her parental home at Patdi as her mother-Gomtiben was sick to see her mother. The complainant had three brothers and Karamshi is the younger to deceased Dharmashi and Amarshi is the youngest one. Amarshi is doing labour work at CR.A/523/1997 7/97 JUDGMENT village Khara Ghoda and Karamshi is at Jamnagar. Dharamshi was serving with Hindustan Salt Company located at Small Runn of Kachchh by staying at village Odu. On the date of incident, Dharamshi had been to village Odu on his bicycle as he was to purchase baskets made of bamboos, popularly known as 'Topla' and also to arrange for daily labourers. He was standing with his bicycle near the shop of one Narottambhai at the corner of the road and he told the complainant-Kaliben to fetch flour lying at flour mill. At that time, PW-3 Gomtiben-mother of complainant was also there. When she was returning from the flour mill, at about 07-00 p.m., the accused no.14-Khoda with spear along with accused no.9-Gordhan with axe; accused no.1-Shakta Vershi with Dhariya, accused no.7-Labhu with Dhariya and accused no.10-Chatur with Dhariya; accused no.15- Sonaji Rupaji with 'Kodali' (pick-axe); accused no.3-Dharamshi Harji with axe, accused no.2-Noorbhai with Dhariya, accused no.5- Dashrath with axe, accused no.6-Bana with Dhariya, accused no.4-Kalu-brother in law of Chatur Harji with Dhariya, , had rushed CR.A/523/1997 8/97 JUDGMENT there.. All these accused assaulted victim Dharamshi (deceased), brother of the complainant-Kaliben, on his head and Dharamshi had fallen down. At that time, accused no.10- Chatur Harji had given Dhariya blow on the head of Dharamshi and accused no.3-Dharamshi (Dhama) gave axe blow on head; accused no.15- Sonaji Rupaji had given blows with pick-axe and the rest of the accused were also giving blows to Dharamshi. Accused no.8-Jina Vershi had inflicted 3 to 4 blows. Her mother was also given blow on her right leg and her leg on account of the said blow got fractured. Accused no.10-Chatur had given Dhariya blow and accused no.3-Dhama had given axe blow on the elbow joint and leg of complainant-Kaliben and thereby, she had sustained injury on left hand finger. During the incident, the lady accused no.12-Bhuri Kalu-wife of accused no.4- Kalu and sister of accused no.10-Chatur; accused no.11-Hiraben wife of Charur; accused no.13-Puriben daughter of Okha Meru, had caught hold of the complainant. Accused no.14- Khoda Vershi had given blow with reverse side of spear on her back which had resulted into CR.A/523/1997 9/97 JUDGMENT bruise. At that time PW-Kamal Khan, who was engaged to look after the outskirts and fields of village Odu, was passing through the said area and therefore, the complainant informed PW-Kamal Khan and ultimately informed the Jhinjhuwada Police Station on telephone and called the police. According to the complainant, prior to about two years, Pama Okha-real brother of accused no.5-Dashrath and Madhu-daughter of real sister of the complainant had eloped and till the date of complaint, they were not traced, So the accused were feeling inimical and assaulted Dharamshi. 6. The offence is registered at Jhinjhuwada Police Station vide C.R.No.I-8 of 1995 on 29th January 2008 at about 01-30 a.m. According to the complainant-Kaliben, she gave the complaint at Jhinjhuwada Police Station and the same was reduced into writing. On the other hand, the case of the prosecution is that the complaint was registered at Odu only as stated by the police officer who recorded the complaint, but the fact remains that the CR.A/523/1997 10/97 JUDGMENT Jhinjhuwada Police Station registered the offence in couple of hours though the distance between the said Police Station and the village Odu is of about 24 kms. Here it is relevant to note that initially there was some error in disclosing the name of one of the accused as orig. accused no.4-Lahu Vershi was named as person involved in the incident. However, vide application dated 04th March 1995, the complainant requested and informed the District Superintendent of Police that Labhu Vershi is not the real brother of accused no.1-Shakta Vershi, accused no.9- Gordhan Vershi or accused no.14-Khoda Vershi nor he is related to these accused persons. Labhu Vershi had no inimical feelings against either family and he was not carrying any motive. The person involved in the incident was Dinu alias Dilu alias Dinesh Vershi. He had played a substantial role in the incident and, therefore, this Dinesh is required to be treated as accused instead of Labhu Vershi. After investigation, the police chargesheeted Dinu alias Dilu alias Dinesh Vershi as one of the accused. There is no formal report under CR.A/523/1997 11/97 JUDGMENT Section 169 of the Cr.P.C. available on record dropping Labhu as accused. The prosecution has tried to clarify the contingency by placing the relevant record namely the application written by the complainant to the District Superintendent of Police, Surendranagar District at Ex.38 and the deposition of the Investigating Officer. 7. After investigation the Police chargesheeted 15 persons. Out of which 11 accused as alleged were armed with different types of weapons namely axes and Dhariyas. After evaluating the evidence, oral as well as documentary evidence, the learned trial Judge acquitted 10 accused from the charges levelled against them and convicted present appellants. Total 16 witnesses have been examined, including two medical officers and panch witnesses. Shri Ekant Ahuja, learned counsel appearing for the accused nos.5 and 10; Shri B.P. Munshi, learned counsel appearing for the accused nos.8 and 14; Shri Harnish Darji, learned counsel appearing for accused no.3 and Ms.D.S. Pandit, learned Additional Public Prosecutor, CR.A/523/1997 12/97 JUDGMENT have taken us through the evidence led by the prosecution and the reasons assigned by the learned trial Judge for recording the finding under challenge in these appeals. 8. There is no serious dispute as to the time and place of incident. We are told that village Odu is a small and the complainant as well as local resident know one another, including the accused persons by name. The date of incident is 28th January 1995. So it must not be total dark and it is possible to identify the known person in the evening. According to prosecution, the motive is specifically pleaded by the prosecution of taking away the sister of the complainant by Pama Okha, brother of accused no.5. It is pointed out to us that out of 15 accused arrested by the police as they are named in the FIR belong to the family of Pama Okha, who was not traced with the girl till the date of incident, accused no.5-Dashrath Okha, accused no.6-Bana, accused no.7-Labhu, accused no.13-Puriben, four of them are from the family of Vershi i.e. accused no.1-Shakta Vershi, accused no.8- CR.A/523/1997 13/97 JUDGMENT Jina Vershi, accused no.9-Gordhan Vershi and accused no.14-Khoda Vershi. Three accused belong to the family of one Harji i.e. accused no.3-Dhama Harji, accused no.10-Chatur Harji and accused no.11-Hiraben Chatur (wife of Chatur Harji). Accused no.12-Bhuri is the wife of Kalu Ratu and accused no.4-Kalu is brother- in-law of accused no.11-Hiraben Chatur i.e. husband of sister of Hiraben Chatur. Out of total accused, 11 accused persons alleged to have been armed as mentioned in the FIR, if are classified, six accused were holding Dhariya, four accused were holding axe and one was holding spear. The Investigating Agency has not recovered all the weapons mainly the axe allegedly used in the offence. Two blood- stained axes, allegedly recovered from accused no.3-Dhama Harji and accused no.5-Dashrath Okha, were sent for analysis to the Forensic Science Laboratory. In the same way, one Dhariya allegedly recovered from accused no.10-Chatur Harji was also sent for analysis to the Forensic Science Laboratory along with eight other articles, including the clothes of the deceased. CR.A/523/1997 14/97 JUDGMENT 9. It is submitted by learned counsel appearing for the appellants that the finding recorded by the learned trial Judge is mainly based on conjectures and if the judgment and order of conviction and sentence is read closely, the conclusions have been drawn in last three to four paragraphs of the judgment and order of conviction and sentence after discussing the evidence and, therefore, such an order of conviction is not sustainable in the eye of law. The learned trial Judge has discussed the evidence of prosecution elaborately and has referred to the improvements made by prosecution witnesses and the contradictions emerging from the oral evidence led by crucial witnesses examined by the prosecution posed as eye-witnesses to the incident, but ultimately the effect of this infirmity has not been appreciated correctly. If the submissions of the learned counsel appearing for the appellants are mentioned in nutshell, they are as under : 9.1 The learned trial Judge has ignored the over all evidence led by the eye-witnesses with the CR.A/523/1997 15/97 JUDGMENT medical evidence materially, which has resulted into serious prejudice to the appellants. As per the rule of the best evidence, the medical evidence qua the injury found on the body of the eye-witnesses, PW-3 Gomtiben-mother of complainant and deceased, was required to be led. The tendency to implicate maximum number of family members of a family by the complainant and her mother PW-3 Gomtiben ought to have been condemned by the learned trial Judge and all the accused were required to be acquitted. There is reference in the documents produced by the prosecution, including police Yadi at Ex.31 page no.291 of the paper-book as “Maramari” (scuffle). So only one side appears to have been prosecuted by keeping curtain on the entire incident which might have occurred at village Odu. 9.2 Three different persons have investigated the offence and all the three have left material lacuna while investigating the offence which has resulted into serious prejudice to the CR.A/523/1997 16/97 JUDGMENT accused and thus, the investigation has not been fair to the accused. 9.3 Somebody educated or literate was behind curtain of the entire case placed by the prosecution, otherwise a scholarly application to the District Superintendent of Police could not have been preferred by a rustic illiterate lady complainant-Kaliben using the legal words to see that one of the accused in the FIR is dropped and another person is implicated vice the accused dropped. One of the submissions is that complainant-Kaliben was born and brought up at village Odu. She was able to identify all the accused, even then the said confusion had cropped up qua the identity of one of the accused. So this is a complaint which ought to have been planned as arranged complaint at the instance of persons inimical to the accused and there was no reason for the Police to chargesheet all the accused persons, more particularly in the background of number of injuries and nature of injuries found on the body of the person deceased as well as two injured eye-witnesses. CR.A/523/1997 17/97 JUDGMENT 9.4 From record it is possible to infer that cataract in both the eyes of PW-3 Gomtiben- mother of complainant, who is posed to be an eye-witness. Her conduct in the Court and certain admissions made by her in her deposition itself make this witness unreliable qua involvement of all 15 accused in the complaint or the accused named by her. At the most, she can depose qua the persons who were allegedly nearer to her and allegedly inflicted the blows. So this witness Gomtiben could not have been considered as an important witness corroborating the version of complainant-Kaliben, another injured eye- witness. 9.5 The independent witnesses, except PW-Kamal Khan has not been examined by the prosecution. When it is the say of the prosecution that complainant-Kaliben had rushed to the house of a person resident of village Odu, running the Post Office in his house, so that she could make a telephone call and that man who had helped her and PW-Kamal Khan in making a CR.A/523/1997 18/97 JUDGMENT telephone call to the Police Station, has not been examined. 9.6 In the same way, Narottam-shopkeeper near whose shop or at the corner of whose shop, Dharamshi was killed by a mob of 15 persons, is supposed to know the number of persons being the resident of village, has not been examined. It was not late night. So there was scope of collection of group of persons within no time. True it is that a mob may not gather in a small village but at least four to five persons must have seen the incident, but the Police has not investigated at all in that direction. So no such witnesses have been examined and the case of the prosecution rests on the evidence of complainant-Kaliben, PW-3 Gomtiben-mother of complainant, PW-Kamal Khan and the medical evidence led by the prosecution. 9.7 The prosecution also relies on the report of the Forensic Science Laboratory. The Serological examination report shows that both the axes as well as Dhariya, recovered during investigation, were stained with blood and CR.A/523/1997 19/97 JUDGMENT blood group found on these three weapons is similar to the blood group found on the clothes of the deceased. 9.8 According to the learned counsel appearing for the appellants, the prosecution is supposed to lead convincing evidence qua the mode of recovery of these weapons and the evidence to the satisfaction of the Court that a particular article was in the hand of a particular accused named in the FIR and the complaint. If the evidence as to recovery of weapon is found hazy or not trustworthy, it would not be appropriate to link the accused with the crime when as per the case of the prosecution total four accused were holding axe at the time of incident. When it is the case of the prosecution that all had given blows with their respective weapons which they were holding, the learned trial Judge was supposed to give convincing reasons as to how two accused have been segregated from other two axe holders for inflicting blows either on the deceased or on any of the injured witnesses. CR.A/523/1997 20/97 JUDGMENT 9.9 The accused holding spear has been wrongly convicted as such there is no injury on the body of any of the persons injured, including the deceased as injury which can be caused by spear. These persons were holding Dhariya and when only one Dhariya has been recovered, the accused no.10-Chatur could not have been linked with the crime for giving fatal blow to the deceased. 9.10 The medical evidence if is read along with the evidence of injured eye-witness Kaliben, it is clear that the case of prosecution is in clear conflict with the opinion evidence. In number of cases, this Court as well as the Apex Court have given advantage to the accused where the opinion evidence is not in conformity with the evidence given by the eye-witness. True it is that the evidence of an eye-witness whose version is found trustworthy and is able to stand all the test including the test of cross-examination, then undue weightage ought not to have been given to the opinion evidence and the Court can even ignore the opinion evidence to link the accused with the crime. CR.A/523/1997 21/97 JUDGMENT But when the evidence of eye-witness is found full of infirmities, contradictions and omissions and when there is infirmity as to identity and authorship of real fatal blow found on the body of the deceased, the medical opinion expressed by the learned trial Judge was required to be given due weightage by the learned trial Judge. In this fact situation, the appellants may be acquitted observing that the nature of evidence available on record is not either cogent or convincing. 9.11 A number of decisions have been cited by Shri Ekant Ahuja, learned counsel appearing for the appellants, in this regard and he has taken us through the relevant observations made by the Apex Court from the following decisions in the case of Rajaram v. State of M.P. and other allied appeals, reported in 1994 Supp(2) SCC 153, and in the case of Balakrushna Swain v. The State of Orissa, reported in AIR 1971 SC 804. 9.12 It is submitted by Shri Ekant Ahuja that the observations made by the Apex Court in the CR.A/523/1997 22/97 JUDGMENT case of Rajaram (supra) squarely helps the accused persons. In this cited decision, there was only one injury on the deceased which was found to be fatal. There were a number of injuries on the body of the person deceased but they are contusions on the legs, arms and palms. The accused were chargesheeted accordingly and convicted by the learned trial Judge for the charge of offence punishable under Section 302 read with other Sections of the Indian Penal Code, as there were injuries also on the body of the persons claiming to be eye-witnesses. Shri Ekant Ahuja has taken up through paragraph nos.5 and 6 of the cited decision which read as under : “5. We have perused the evidence of PWs 1 and 2. Each one of the witnesses have named number of accused persons, and out of them, according to these witnesses, about 19 persons including the appellants are alleged to have inflicted blows on the deceased. However to start with, it were Phoolsingh and Bhaiyaram who felled down the deceased and attacked him with axe and lethal weapons. CR.A/523/1997 23/97 JUDGMENT But by way of omnibus allegation the witnesses deposed that all the other accused about 19 in number also inflicted injuries. The medical evidence does not support such an omnibus allegation. On this aspect we do not see any reasons given by the High Court as to how those appellants alone could be convicted by separating them from the rest. The High Court, however, pointed out by way of a passing reference that all of them formed into an unlawful assembly. We do not see any firm basis for the conclusion. The High Court also held that Kiratsingh came and joined the unlawful assembly a little later and therefore, he was not held responsible for the offence under Section 302 read with Section 149 IPC. In that view of the matter, the High Court convicted him only under Section 326 read with