r)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 423 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE M.S.PARIKH and MR.JUSTICE H.R.SHELAT ============================================================ 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 -------------------------------------------------------------- RAJUJI SOMAJI THAKOR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PM VYAS for Petitioner MR KP RAVAL, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.PARIKH and MR.JUSTICE H.R.SHELAT Date of decision: 27/10/1999 ORAL JUDGEMENT 1. The appellant herein has brought under challenge in this conviction appeal, judgment and order dated 16/4/1992 rendered by the learned Additional Sessions Judge Ahmedabad (Rural) at Mirzapur in Sessions Case No. 146/1991, whereby the appellant had been convicted for the offence punishable under section 302 of the Indian Penal Code (for short 'IPC') and sentenced to undergo rigorous imprisonment for life and pay fine of Rs.10,000/-, in default to undergo simple imprisonment for two years and rigorous imprisonment for a period of two years for the offence punishable under section 325 of the IPC and fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of 3 months. The appellant is referred to as the accused in this judgment. He faced charge for the offences punishable under sections 323, 326, 307, 302 and 504 of the IPC and sections 177, 183 and 184 of the Motor Vehicles Act on the basis of following brief facts alleged against him. 2. At about 1.00 O'clock in the mid night between 20/5/1991 and 21/5/1991 prosecution witnesses nos. 17 to 25 and 36 namely, Kanji Lavji, Vasantben, Savajibhai Govindbhai, Raghubhai, Chandubhai, Savitaben, Kankuben, Ranchhodbhai and deceased Lakhmanji, Thobhanji and Javanji as also Dhirubhai and others were waiting on the side of the road described as Dahegam - Naroda Highway. They were standing on the side of the road near Pardhol Patia (Bus stand-Bus stop) in the sim of Raipur village. At that time the accused driving ambassador car bearing No. GRG 1975 was proceeding on Dahegam-Naroda Highway towards Ahmedabad (Naroda being the outskirt of Ahmedabad). The labourers made the car to stop (with a view to request for a lift). The accused stopped the car and got enraged. He gave such abuses to witness Dhirubhai Jerambhai Patel as would result into breach of peace and also gave a slap to him. He pushed witness Chandubhai Bhagubhai and slapped him. Deceased Lakhmanji Dhiraji Thakor, who reached there, scolded the accused and counteracted by giving slap to him. The accused, therefore, got highly enraged, returned with his car towards Dahegam side and once again drove the car intentionally at a great speed and ran over deceased Lakhmanji Dhiraji, Thobhanji Dhanjibhai and Javanji Babaji as well as witnesses Dhirubhai Jerambhai and others with knowledge that such an act on his part would result into hurt, grievous hurt and even death of the persons so run over by the accused. This resulted into death of Lakhmanji Dhiraji Thakor after he was shifted to Civil Hospital, Ahmedabad and Thobhanji and Javanji on the spot, whereas grievous hurt to Dhirubhai Jerambhai. 3. It would appear that some information was received during the midnight between 20th May 1991 and 21st May, 1991 from the Civil Hospital, Ahmedabad, where the injured were admitted and some information was received at the Dabhoda Police Station through the concerned police Patel. We will deal with this part of the facts which have been revealed in the proceedings at the relevant point of time. Suffice it to say here that the incident was investigated and upon conclusion of the investigation charge-sheet was filed against the accused. He was directed to the Ld. Additional Sessions Judge for his trial, upon conclusion of which the accused faced conviction and sentence as aforesaid. That is how he is before us in this appeal. 4. The prosecution has examined following witnesses :- i. Dr. Punjabhai Chhaganbhai Patel. exh. 6, the Medical Officer, who performed post mortem in the Civil Hospital, Gandhinagar. ii. Jalamsing Becharsing Zala, exh. 27, Panch witness with regard to scene of offence. iii. Gugabhai Maganbhai, exh. 29, described as a complainant. iv. Badarji Dhiraji Thakor, exh. 30, described as the eye witness. v. Dhirubhai Jayrambhai, exh. 31, described as the injured eye witness vi. Chandubhai Gagubhai, exh. 32, described as the injured eye witness vii. Dilipkumar Natvarlal Sharma, exh. 33, Panch witness regarding Panchnama of the Car in question. viii. Dr. Bela Tribhovandas Patel, exh. 35, Medical officer, Civil Hospital, Ahmedabad ix. Dr. Vikrambhai Kalidas Parghi, exh. 41, Medical Officer, Primary Health Centre, Dabhoda x. Dr. Haresh Palekar, exh. 45, Medical Officer, Ahmedabad Civil Hospital xi. Mahmadraheman Ansari, exh. 47, Panch witness for the spare part such as head light, ring and sealed beam of the car in question seized from the garage xii. Mahmadnasib Abdul Rab, exh. 49, owner of the garage in the name and style of 'New Sahyog Automobiles' xiii. Ramanbhai Mangaldas Patel, exh. 50, Police Patel of Raipur village xiv. Bhalaji Babaji Thakor, exh. 52, brother of deceased Javanji Babaji xv. Govindbhai Jethabhai Patel, exh. 53, Sarpanch of Raipur village xvi. Ravjibhai Dahyabhai Patel, exh. 54, farmer requisitioning services of the labourers in his field xvii. Bhavansinh Shivsinh Bihola, exh. 56, Panch witness with regard to the earthern portion scrapped out from the mudguard of the car in question for the same being examined by the expert of Forensic Science Laboratory xviii. Kishorsinh Babusinh Rana, exh. 60, owner of the car in question xix. Manikant Labhshankar Shukla, exh. 61, head constable, Shahibaug Police Station xx. Dahyaji Mohanji, exh. 63, Head Constable. xxi. Mohanbhai Dahyabhai Solanki, exh. 64, Police Constable, Dabhoda Police Station xxii. Dahyabhai Jivanbhai Patel, exh. 66, Panch witness for the Panchnama of physical condition of the accused xxiii. Pravinsinh Gopalsinh, Head Constable, Dabhoda Police Station xxiv. Bhagvanbhai Kohyabhai Ahir, exh. 72, Police Sub-Inspector and Investigating Officer, Dabhoda Police Station. 5. The prosecution has also placed reliance upon the following documents :- i. Inquest Panchnama with regard to deceased Thobhanji and Javanji, exh. 10 ii. Panchnama with regard to injured witness Dhirubhai, exh. 11 iii. Panchnama with regard to clothes of deceased Thobhanji and Javanji, exh. 12 iv. Inquest Panchnama of deceased Lakhmanji, exh. 15 v. Receipts of the dead bodies of Javanji, Thobhanji and Lakhmanji respectively at exhs. 13, 14, and 16 vi. Panchnama of the car in question, exh. 34 & its spare parts exh. 48 vii. Panchnama of the car investigation by the expert from Forensic Science Laboratory, exh. 57 viii. Despatch note of Forensic Science Laboratory, exh. 17 ix. Despatch note of P.S.I. Dabhoda to F.S.L. exh.18 x. Receipt by F.S.L. exh. 19 xi. Another such receipt exh. 20 xii. Medical certificate of injured witness Dhirubhai Jerambhai, exh. 38 xiii. Post mortem note of Javanji, Thobhanji and Lakhmanji respectively exhs. 9, 8 and 46. xiv. Medical certificate with regard to Chandubhai Gagabhai, exh. 39 xv. Covering letter with F.S.L. report, exh. 21, xvi. Receipt of F.S.L. exh. 22 xvii. Report of F.S.L. exh. 23 xviii. Letter of F.S.L., exh. 24 xix. Biological report, exh. 25 and xx. Motor driving licence of the accused, exh. 26. We will refer to the entries from the relevant police register at the appropriate point of time. The prosecution, however, placing reliance on the aforesaid pieces of evidence, canvassed before the Ld.Additional Sessions Judge sabout the commission of offence charged against the accused having been established beyond reasonable doubt. The defence consisted of denial of the prosecution case while asserting that the accused was not driving the car in question at the relevant point of time and since he was not in terms with his patents-in-law and his wife, he was falsely implicated as a result of collusion between his patents-in-law and wife on one side and the complainant and others on the other side. The Ld.Addl. Sessions Judge has placed reliance upon the eye witnesses including injured eye witnesses, who were found to have been corroborated by other pieces of evidence and circumstances. The Ld. counsel who defended the accused submitted at the threshold before the Ld. Addl. Sessions Judge that entry no. 57/91 exh. 73 should have been treated as the F.I.R. and not the complaint exh. 74. That complaint ought to have been treated as statement under section 162 of the Code of Criminal Procedure, 1973. Dealing with the decisions which were referred to by the learned counsel the Ld. Additional Sessions Judge observed from the information exh. 73 that it was merely a message received from Ahmedabad City Control by the concerned police person of Dabhoda Police Station. That consisted of information with regard to vehicular accident. That entry was received at 7.10 O'clock in the morning of 21/5/1991; whereas the complaint which was recorded at C.R. No. 105/1991 disclosed the offence punishable u/S. 302 of the IPC. Dealing with this part of the prosecution evidence the Ld. Addl. Sessions Judge has observed that Investigating Officer Mr. Ahir reached the scene of offence at 7.40 hours in the morning of 21/5/1991 and there complainant Guga Maganbhai gave his aforesaid F.I.R. bearing exh. 74. The said Investigating Officer accordingly sent the complaint for registering the offence. The complaint was received and registered at 9.15 O'clock in the morning. Thus, the Ld. Additional Sessions Judge has come to the conclusion that the exh. 73 is merely an information (Wardhy) and not the first information report; whereas the exh. 74 is the information with regard to commission of offence (congizable). He, therefore, came to the conclusion that exh. 74 was not hit by section 162 of the Criminal Procedure Code. Discarding the submissions of the learned counsel accordingly, the LD. Addl. Sessions Judge has proceeded to appreciate the evidence. 6. It was submitted on behalf of the accused that even the report u/S. 157 of the Criminal Procedure Code (for short 'Cr.P.C.') was received by the learned Judicial Magistrate First Class two days after the date of incident and, therefore, on account of such delay no reliance could be placed upon exh. 74 treating the same as first information report. Reference was made to a couple of decisions of the Hon'ble Supreme Court in the case of Bir Singh v. State of U.P. reported in AIR 1978 S.C. 59 and Ishvarsing v. State of U.P. reported in AIR 1976 S.C. 2423. The Ld. Addl. Sessions Judge has considered both the decisions while visualising facts before the Hon'ble Supreme Court and the facts before him. He came to the conclusion that in the facts of the case, it could not be found that the facts of the complaint were after-thought. He has observed that most of the witnesses were labourers and incapable of concocting facts. He, therefore, accepted the explanation of the prosecution that there was a delay of two days in sending report u/S. 157 of Cr.P.C. through oversight. The Ld.A.S.J.has also considered the decision in the case of Apran Joseph @ Currentu Kunjukunju and ors. v/s. State of Kerala reported in AIR 1973 S.C. page 1 and observed that question of delay and its effect on the prosecution case would depend upon facts of each case. In the light of the submissions so made on behalf of the defence the Ld.Addl. Sessions Judge has discussed the evidence of the aforesaid witnesses and has come to the conclusion that the prosecution has established its case beyond reasonable doubt. He has dealt with the medical evidence as well as evidence of post mortem examination of the three deceased at length and has observed that the said evidence would corroborate the prosecution story stated by the eye witnesses and the injured eye witnesses. He has accordingly held the accussed guilty of the offence as aforesaid. 7. We may note at this stage that the State preferred enhancement Appeal bearing Criminal Appeal No. 593 of 1992. However, that was dismissed on 19/10/1992. The Bench said at the threshold that upon going through the judgment, record and proceedings no case for enhancement was likely to have been made out. Before the reasoned order could be dictated, Mr. Trivedi, the then learned Public Prosecutor stated that he would not invite reasoned order and, therefore, leave was refused and appeal was dismissed. 8. Under the aforesaid circumstances, we are now required to deal with this appeal. We have heard Mr. P.M. Vyas, learned advocate for the appellant - accused and Mr. K.P. Raval, Ld. A.P.P. for the State. As in the trial Court here also the main attack against the conviction and sentence received by the accused is against the First Information Report exh. 74. The submission is that the information which was received at the threshold both at the Shahibaug Police Station through the police personnel of the said police station as well as at Dabhoda Police Station through the police personnel of that police station were merely the information with regard to occurrence of vehicular accident resulting in the deaths of Thobhanji and Javanji and injuries to Lakhmanji, Dhirubhai J. Patel and Chandubhai Gagubhai. The said information does not indicate commission of any offence by the accused. It has, therefore, been submitted that the recording of complaint through witness Gugabhai Maganbhai P.W. 3, exh. 29 is an improvisation so as to implicate the accused. Mr. Vyas therefore read the evidence of said witness as also the connecting evidence revolving round what should be treated as First Information Report. In reply, Mr. K.P. Raval, Ld. A.P.P. read before us the evidence of P.W. 19 Manikant Shukla, exh.61, P.W. 8 Dr. Belaben exh.35 and P.W. 4 Badarji Dhiraji Thakor exh. 30. According to his submission the facts which have come to light at the earliest point of time have also emanated from the evidence of Badarji and Manikant. We propose to deal with both these sets of evidence which relate to the controversy as to the first information regarding commission of the offence attributable to the accused. We might first deal with the prosecution evidence which has presented exh. 74 as the F.I.R. That has arisen from the statement of Gugabhai Maganbhai P.W.3, exh.29 read with evidence of the Investigating Officer Bhagwanbhai K. Ahir P.W. 24 exh. 72. This is what the Investigating Officer Mr. Ahir has stated with regard to the F.I.R./complaint exh. 74: He has testified that when he was present in the Dabhoda Police Station head quarter on 21/5/1991 he received information entry from P.S.O. Dabhoda at 7.15 in the morning. That entry is exh. 73 and would indicate that a wireless message was received from Gandhinagar Control to the effect that Ahmedabad City Control had been informed through police head constable Manikant that at 1.30 O'clock in the midnight between 20/5/1991 and 21/5/1991 one person driving ambassador car had struck his car injuring three persons and two persons died on the spot at the place of the incident, that the names of the dead persons had not been received and that immediate action might be taken. We might note at once that this information is as per the information exh. 62 (Wardhy) recorded by the police head constable Manikant at the relevant point of time at Ahmedabad. Having received such message the Investigating Officer reached the scene of offence at 7.40 hours in the morning and recorded complaint of Shri Gugabhai Maganbhai, which then appeared at mark 5/1. That document was presented to the witness who identified the thumb impression of the complainant. At this very stage there was an objection from the defence for exhibiting the said document by treating it as the F.I.R. Keeping the question open, the Ld. Addl. Sessions Judge received the document at exh. 74. The witness further testified that he sent exh. 74 for the same being recorded in Dabhoda Police Station. That complaint was recorded at 8.15 hours in the morning. Witness then inquired about the Crime Register number at which exh. 74 was recorded and he was informed that it was C.R. No. 105/91. He, therefore, arranged for making inquest report and in anticipation of the permission from the concerned Executive Magistrate he made the inquest report with regard to the dead body of Thobhanji Fhanaji and Javanji Babaji during the period between 8.30 and 9.30 hours in the morning. The dead bodies were thereafter sent for post mortem with necessary Yadi. He also came to know about Lakhmanji having died during his treatment in Civil Hospital, Ahmedabad. He recorded the statements of witnesses Kanjibhai Lavjibhai, Vasantben Dhanajibhai, Savajibhai Mohanbhai, Govindbhai Maganbhai, Chandubhai Gagubhai, Savitaben Mulajibhai, Kankuben Ranchhodbhai and others. He then returned to Dabhoda Police Station and arranged for sending Muddamal to the Forensic Science Laboratory 9F.S.L.). He also recorded statement of Dhirubhai Jayrambhai, injured witness, on 22/5/1991. He was cross-examined at length in respect of his action right from the inception. Upon making reference to the station diary he admitted that he started from police station at 7.15 O'clock in the morning of 21/5/1991 and returned at 10.00 O'clock at night on 22/5/1991. He also admitted that a note was made for going for making investigation regarding C.R.No. 105/91 at 10.55 O'clock in the morning of 23/5/1991. He denied the suggestion that the complainant gave his complaint after 5.00 O'clock in the evening of 21/5/1991 and not in the morning at around 8.30. 9. We, therefore, proceed to examine whether any timings have been stated in exh. 74 itself. Having gone through the original exh. 74 we find that only the date 21/5/1991 appears at the top of this document. It contains thumb impression of the witness Gugabhai Maganbhai, who is stated to have given the complaint. At the bottom of this document there is an endorsement of S.D.P.O. (Sub-Divisional Police Officer) and the date marked by the side of this endorsement is 22/5. We have to bear in mind this circumstances while appreciating the evidence of the I.O. and witness Gugabhai Maganbhai for detailed submissions have been made from both these pieces of evidence by the learned advocate for the appellant as well as the Ld. A.P.P. for the State. 10. We would at once switch over to the evidence of Gugabhai Maganbhai P.W. 3 exh. 29 who has deposed that he accompanied with his co-workers Thobhan, Govind, Jeram, Chandu, Lalu, Savaji and 5 to 6 female workers went to village Raipur for labour work on 21/5/1991. There is no dispute with regard to the date 21/5/1991 as having been noted with reference to the midnight between 20/5/1991 and 21/5/1991. There has been no dispute with regard to the witness and other workers having had gone to village Raipur for labour work earlier to 21/5/1991. They were working in the field of one Ravjibhai at Raipur. They had started for going back home during night time on 20/5/1991. It was at around 1.30 O'clock at night when they were waiting for a vehicle from the side of the main road. Seeing vehicle lights on the road, the witness felt that it was a heavy vehicle. He, therefore, signalled the vehicle to stop (with a view to request for giving lift). When the vehicle stopped it was noticed that it was a small taxi. Dhirubhai, a co-worker had requested the vehicle to stop. The driver of the taxi (car) became angry and asked why the car was stopped. Saying so the driver slapped Dhirubhai. The witness then identified the driver being the accused present in the Court. Chandubhai who had been at the place, apologised and requested him (accused) to let go. In the meantime Javanji and Lakhmanji who were staying in the houses located nearby the road, reached the place. They asked the accused why he was beating the labourers. Saying so Javanji slapped the accused addressing him that he was knowing him and that he was son-in-law of village Pardhol (of a person belonging to village Pardhol). To that the accused challenged to be ready and that he was returning. He then drove the car back to Dahegam side. On account of the threat which the accused gave, the witness asked Javanji and Lakhmanji to wait there since the witness and his co-workers were afraid. Javanji and Lakhmanji, therefore, waited there. Some time thereafter the accused rushed to the site driving the car with full speed. At that time all the aforesaid persons were standing on the side of the road. Lakhmanji, Javanji and Thobhanji were in one line. Keeping the lights of the car on, the accused ran it over the persons so standing there. This caused Javanji and Thobhanji dying on the spot. Lakhmanji was taken to Ahmedabad Civil Hospital where he died. Chandubhai and Dhirubhai were injured and admitted to the Civil Hospital by village Sarpanch Govindbhai, who had taken them in a tempo. Witness was then shown the aforesaid complaint and he identified his thumb impression. In his cross-examination the witness has admitted that there were no light poles at the scene of offence and that the full light of the car affected their vision. Upon being asked about what was the description of the accused, who was present in the Court, the witness replied that since the accused had quarrelled at the site they knew him. He was around 5 ft. in height and thin in stretcher and that after having seen him at the time of incident he was seeing him first time in the Court. Badarji reached the place of incident after Thobhanji died. Badarji's house was also located nearby the road. He had gone to call the Sarpanch. 2 to 3 persons also accompanied police Patel from Raipur. Badarji accompanied Dhirubhai and Chandubhai, the injured persons who were taken to Ahmedabad. Sarpanch was informed that since there was a quarrel with the accused, he deliberately killed the aforesaid persons. Badarji was also knowing about it. He explained that Badarji had gone back from the place of the incident when accused had returned towards Dahegam side with the car, since Badarji's house was nearby the road. He explained that under such circumstances, Badarji came back to the place of incident after the accused had caused the accident. The witness admitted that he did not state in his complaint about Javanji having given a slap to the accused saying that he was knowing him as he was son-in-law of village Pardhol. He admitted that he did not go to the police station for giving his complaint, but when the police reached the place of incident he had given his complaint. He then admitted that the police recorded his complaint at 5.00 O'clock in the evening of the next day. He has deposed that he had gone to Civil Hospital after the incident and reached there at about 3 to 4 O'clock in the early hours (of 21/5/1991). Since there were his co-workers waiting at the place of incident he returned there. He has admitted that when he returned at the place of incidient at 5.00 O'clock in the evening, the dead body of Thobhanji was lying nearby the place of incident (Patia). After he so returned to the place of incident, the dead body of Thobhanji was taken to Gandhinagar Civil Hospital. He admitted that statements of other persons were recorded after his complaint was taken. He has deposed that they had remained present near the place of incident till upto 9.00 O'clock at night. When he reached the place of incident at 5.00 O'clock in the evening Police was interrogating Savajibhai and others. He has described the incident by saying that the bumper of the car struck the aforesaid persons who were thrown off on the side. He