CR.A/856/2005 1/287 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 856 of 2005 With CRIMINAL APPEAL No. 1459 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= THE STATE OF GUJARAT - Appellant(s) Versus VIRENDRABHAI @ NIKULBHAI AMRUTBHAI PATEL & 1 - Opponent(s) ========================================================= Appearance in CRIMINAL APPEAL NO.856 of 2005: MR.KT DAVE, ADDL.PUBLIC PROSECUTOR for Appellant(s) : 1, MR ABHAYKUMAR P SHAH for Opponent(s) : 1, MR JM PANCHAL for Opponent(s) : 2, MR KJ PANCHAL for Opponent(s) : 2, Appearance in CRIMINAL APPEAL NO. 1459 of 2004 Mr.PM Thakkar, Ld. Senior Counsel for the appellant. Mr.KT Dave, Ld. APP for the respondent State. ========================================================= CR.A/856/2005 2/287 JUDGMENT CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE K.A.PUJ Date : 27/12/2006 CAV COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) 1. By this CAV common judgment, we are dealing with and disposing of two criminal appeals viz. Criminal Appeal No.1459/2004 and Criminal Appeal No. 856/2005, challenging the impugned judgment dated 09.07.2004 passed by the ld. Addl. Sessions Judge, Ahmedabad (Rural), Navrangpura, Ahmedabad in Sessions Case No.85/2000. Vide impugned judgment, the ld. Trial Judge convicted Shri Amrutbhai Bholidas Patel- Original Accused No.1 (Appellant of Cri.Appeal No.1459/2004) for the offences punishable under section 302 and 201 of Indian Penal Code as well as for the offence punishable under section 30 of the Arms Act and sentenced original accused No.1 Amrutbhai Patel to undergo R/I for life and to pay a fine of Rs.5000/, I/d to undergo S/I for 1 Year for the offence punishable under section 302 of IPC, to CR.A/856/2005 3/287 JUDGMENT undergo R/I for 3 years and to pay a fine of Rs.2000/, I/d to further undergo S/I for 6 months, to undergo S/I for 2 months and to pay a fine of Rs.500/, I/d to undergo S/I for 7 days respectively. Vide impugned judgment, the ld. Trial Judge acquitted the original accused Nos. 2 & 3 (Respondents of Criminal Appeal No.856/2005) from the offences punishable under section 302 R/w section 34 and 504 of the Indian Penal Code. Original Accused No.1 Amrutbhai Patel has preferred Criminal Appeal No.1459/2004 challenging the impugned order of conviction and sentence passed against him by the ld. Trial Judge, whereas the State has preferred Criminal Appeal No. 856/2005 challenging the impugned judgment whereby the ld. Trial Judge acquitted the original accused Nos.2 & 3. Since, both these criminal appeals arise out of common trial and evidence led is also common and arise out of one judgment, both these criminal appeals are heard together and are being disposed of by this common CAV Judgment. 2. All the three accused were charged as per the Charge Exh.21 and it would be convenient to reproduce CR.A/856/2005 4/287 JUDGMENT substantive charge framed against all the three accused persons (free translation from Gujarati vernacular):- “ That on 20.02.2000 on or at about 15.30 hours, you wanted to construct/erect a wall with the help of labourers on the land bearing survey No.433/1 known as Shantivan Farm situated in the sim of village Makaraba and at that time, on this issue, an altercation (hot exchange of words) took place with deceased Arvindbhai Amrubhai Patel and at that time, you accused Nos.2 & 3 instigated you accused No.1 stating that this Arvind is harassing us and on this occasion, the issue should be settled finally now. Thereafter, you accused No.1 fired from your licensed Revolver and by firing shot at the chest of the deceased, Arvindbhai, caused death of the deceased and by doing so, you accused No.1 committed murder of deceased Arvindbhai and thereby committed an offence punishable under section 302 of Indian Penal code and you accused Nos. 2 & 3, with an intention to fulfill your common object/intention, abetted each other for commission of the aforesaid offensive act and thereby you both the accused Nos. 2 & 3 have committed an offence punishable under section 302 R/w Section 34 & 114 of Indian Penal Code which are triable within the jurisdiction of this Court. CR.A/856/2005 5/287 JUDGMENT Further, on the same date, time and place, you accused Nos. 2 & 3, intentionally insulted by giving abuses and thereby given provocation to the deceased Arvindbhai intending or knowing it to be likely that such provocation will cause him to breach the public peace or to commit any other offence and thereby you accused Nos. 2 & 3 have committed an offence punishable under section 504 of Indian Penal Code which is triable within the jurisdiction of this Court. Further, on the same date, time and place, though you were knowing or having reason to believe that an offence punishable with death or life imprisonment has been committed, with an intention to screen (save) yourself from the legal punishment, you accused No.1 took away with you the Revolver used in the commission of the offence at your residence and cleaned the said weapon which has been used in the commission of the offence and caused to disappear the evidence (destroyed the evidence) by tampering with the firing pin of the said Revolver and thereby you accused No.1 has committed an offence punishable under section 201 of the Indian Penal Code which is triable within the jurisdiction of this Court. Further, on the same date, time and place, you accused No.1 fired from your licensed CR.A/856/2005 6/287 JUDGMENT Revolver in an illegal manner by committing breach of the terms and conditions of the License and thereby you accused No.1 has committed an offence punishable under section 30 of the Arms Act which is triable within the jurisdiction of this Court. “ 3. The above charge has been framed on the strength of the basic allegations made by the prosecution in the FIR as well as in the final report submitted at the conclusion of the investigation. The basic case of the prosecution is that on the date of incident, between 12.00 noon and 4.00 P.M., Police Officer Mr. Padubhai Thavrabhai Bodar was on his duty as PSI in the investigating squad of Ellisbridge Police Station of City of Ahmedabad. At that time, one person named Bharatbhai Natvarbhai Patel came to the police station and informed him that his son-in-law -deceased Arvindbhai had sustained injuries in firing and has been admitted in the Prerana Hospital and, therefore, he should come there. On receipt of this information, PSI Mr. Bodar went to Prerana Hospital and on making necessary discreet inquiry, he found that an offence occurred has been committed within the jurisdiction CR.A/856/2005 7/287 JUDGMENT of Sarkhej Police Station. Thereafter, Ellisbridge police intimated Sarkhej Police Station and Sarkhej police was asked to go to Shantivan Farm and thereafter, PSI of Sarkhej Police Station Mr. Purshottam Bhimjibhai Mer came to Prerana Hospital where the wife of the deceased Arvindbhai was sitting nearby the dead body in the hospital. There she gave details of sequence of events that had occurred. PSI Mr. Mer recorded her complaint and it is the say of the prosecution that the husband of the complainant Artiben namely Arvindbhai had left for Shantivan Farm situated in Makaraba village at about 9.00 A.M. in the morning. When she was at home, she received a telephone call from the maternal uncle of her husband namely Ambalal Jethidas Patel informing that her father-in-law i.e. accused No.1 Amrutbhai Patel is constructing a compound wall in Shantivan Farm. At that time, she had replied that her husband has already left and had gone to Shantivan Farm. At about 12.30 P.M., her husband had returned home and she was told that he has opposed construction of a compound wall and has instructed watchman Gulamnabi to inform him if they (accused persons) start constructing the CR.A/856/2005 8/287 JUDGMENT wall. Thereafter, when her husband was taking rest, at about 2.30 P.M., the deceased Arvindbhai received a telephone call from watchman Gulamnabi informing that Amrutbhai, Virendra and Dharmendra i.e. Accused Nos. 1 to 3 respectively have come to the farm house and have started construction of the wall. Hearing that, her husband Arvindbhai went to Shantivan Farm in his Contessa car. At about 3.30 P.M., driver Dashrathbhai telephoned that Amrutbhai, Virendra and Dharmendra had quarrelled with Arvindbhai in connection with the construction of the wall and that accused No.1 Amrutbhai had fired at Arvindbhai and Arvindbhai has been taken to the hospital. Thereafter, she informed her uncle-in-law Dashrathbhai Bholidas Patel and he told her that Arvindbhai has been taken to Doctor House and, therefore, she went to Doctor House. When she reached there, she saw her brother-in-law Virendra-accused No.2 and Dharmendra-accused No.3 getting down from Maruti car bringing out her husband from the car in a stretcher. At that time when she saw the body of her husband, she found that her husband has sustained bullet injury on the right side of chest of her CR.A/856/2005 9/287 JUDGMENT husband. Arvindbhai was taken inside the hospital where he was found dead. In the hospital, her father-in-law Amrutbhai Patel- accused No.1 was also there. He was admitted and it is the say of the prosecution that thereafter accused No.1 Amrutbhai Patel under police surveillance provided by the Ellisbridge Police Station arranged by PSI Mr. Bodar, was taken to Karnavati Hospital for treatment. On the complaint of the wife of the deceased Arvindbhai, PSO Mr. PK Vaghela registered the offence being I.CR No.38/2000 at Sarkhej Police Station at 18.30 hours. After investigation, the police chargesheeted all the three accused for different offences as per the charge Exh.21 and the ld. Trial Judge, at the conclusion of trial, vide impugned judgment dated 09.07.2994 convicted the original accused No.1 and sentenced him as stated above and acquitted original accused Nos. 2 & 3. 4. The State has challenged the impugned judgment recording acquittal of original accused Nos. 2 & 3 by filing Criminal Appeal No.856/2005. We have considered the nature of grievances raised by the CR.A/856/2005 10/287 JUDGMENT State against the judgment and order of acquittal recorded in favour of original accused Nos. 2 & 3, whereas the order of conviction and sentence has been challenged by the original accused No.1 by filing Criminal Appeal No.1459/2004. 5. Considering the nature of arguments advanced before us by the ld. Counsel appearing for all the three accused as well as ld. APP Mr. KT Dave for the State of Gujarat in both the appeals, we have to deal mainly with the appeal preferred by the original accused No.1 against the order of conviction and sentence passed against him viz. Criminal Appeal No.1459/2004 because while making oral submissions, ld. APP Mr. Dave has fairly accepted that it is not easy for the State to allege that the order of acquittal qua original accused Nos. 2 & 3 is perverse or can be said to have been based on palpably wrong appreciation of evidence. However, his submission is that the judgment under challenge should be evaluated in toto and if the Court finds that acquittal recorded against original accused Nos. 2 & 3 requires to be reversed, then both these CR.A/856/2005 11/287 JUDGMENT accused can also be held guilty for the offence punishable under section 302 R/w section 114 of the IPC. 6. Ld. Sr.Counsel Mr. PM Thakkar appearing for ld. Counsel Mr. YM Thakkar appearing for the original accused No.1 in Criminal Appeal No. 1459/2004, has taken us through the various grounds of challenge and while doing so, he has taken us through the entire judgment and all relevant oral as well as documentary evidence led during the course of trial. (i) It is submitted by ld. Sr. Counsel Mr. Thakkar that the finding of conviction recorded against the original accused No.1 is erroneous on various grounds mentioned in the memo of appeal and it is submitted that the same is based on number of surmises drawn and conjectures by the ld. Trial Judge and that too without any legal or logical base. The Court is competent to draw an inference but such inference can be drawn on the evidence either direct, indirect or circumstantial which can be said to be legal and admissible in evidence in the eyes of law. CR.A/856/2005 12/287 JUDGMENT In the present case, the prosecution has come with the theory that more than one person has witnessed the incident and one of them had sustained injuries in the scuffle that has allegedly taken place at Shantivan Farm, but at the trial, none of the eye witnesses had supported the case of the prosecution. So, according to Mr. Thakkar, there are no eye- witnesses to the incident inasmuch as three eye- witnesses on whom the prosecution intended to rely viz. (i) Employee-watchman of the deceased Arvindbhai namely Gulamnabi Mubarakkhan, (ii) Driver Dashrathbhai Shambhuji Thakor and (iii) Jashiben Chanduji Thakor, have been declared hostile. Complainant Artiben being a person concerned, had made all the arrangements to assist the Public Prosecutor appearing in the matter and she was able to get appointment of more than one Special Public Prosecutor. However, the evidence led by the prosecution is lame and infirm and the trial Court ought not to have held the accused No.1 guilty of all the aforesaid three offences on the basis of such a lame and infirm type of evidence. On the contrary, it was possible for the Court to infer that this is CR.A/856/2005 13/287 JUDGMENT a case wherein there is no legal and sufficient evidence to link the accused with the crime. (ii) According to Mr. Thakkar, three close relatives namely (1) complainant Artiben, (2) Bharatbhai and (3) Rahulbhai -real brother of the complainant, have given their evidence in a strange manner and they are undisputedly not the witnesses to the incident in any way. When they are undisputedly not present at the scene of offence, no reliance ought to have been placed on the evidence of these witnesses and the facts stated by PW Bharatbhai have no direct bearing on the commission of the crime and their evidence as to the place of alleged incident is of hear-say nature. The version of Artiben in her deposition is not able to carry the case of the prosecution any further and only thing she has deposed before the Court is that in the morning her deceased husband had left for Shantivan Farm and she received a telephone call from maternal uncle of her husband, inter alia, informing that the accused No.1 is putting up construction of a wall and she should inform her husband about the development. This relative Shri CR.A/856/2005 14/287 JUDGMENT Ambalal Jethidas Patel named by the prosecution, though was available and cited as witness, has not been examined. She has stated that witness Ambalal Jethidas Patel was responded and in turn was informed that her husband Arvindbhai has already left for Shantivan Farm. Thereafter, according to her, her husband returned at about 12.30 noon and on asking, she was informed by her husband that construction wall was being put up in the farm house and that he had instructed the Pagi i.e. watchman Gulamnabi that till everything is over, the wall should not be put/erected and that he had also instructed that in case wall is being constructed, he should inform him. Thereafter, she had received a telephonic message about the occurrence of some incident and the fact of injury sustained by deceased Arvindbhai and about shifting of Arvindbhai to Doctor House.According to Mr. Thakkar, the say of Artiben qua the conversation that has taken place between her and Ambalal Jethidas Patel is in-admissible in evidence and ld. Trial Judge ought to have excluded that part of evidence from consideration. In the same way, the conversation between Artiben and her husband Arvindbhai that has CR.A/856/2005 15/287 JUDGMENT taken place after her husband's return from Shantivan Farm is also not admissible in evidence being hit by section 32 of the Evidence Act nor it is protected by section 6 of the Act as observed by the Apex Court in the case of Manish Dixit v/s State of Rajasthan, 2000(7) SCC 64. Mr. Thakkar has taken us through relevant paras 11 & 12 of the cited decision. For ready reference, relevant observations made by the Apex Court in the aforesaid decision are reproduced herein below (para-12):- “ To obviate the said difficulty the Public Prosecutor in the trial Court made a futile attempt to render the statement made by Michel Hens to the inmates of Gulshan Makhija as evidence falling within the purview of Section 6 of the Evidence Act. That attempt gained success at the trial stage as the Sessions Judge approved the contention. But the Division Bench of the High Court has very rightly repudiated such a contention. As the counsel for the State did not make even an attempt to render such statement admissible in evidence, we are CR.A/856/2005 16/287 JUDGMENT relieved of the task to deal with that statement.” Mr. Thakkar has submitted that in the background of facts brought on record by the prosecution, it should be observed that none of the family members of the deceased who have been examined during the trial, have not led any evidence which help the prosecution in proving “who committed the crime in question, nor it implicate accused No.1 in the commission of the crime in question.” It is also submitted that even for the sake of arguments it is accepted the evidence qua conversation that has taken place between Artiben and her husband Arvindbhai, it is not in any way capable of explaining as to how the crime has been committed, who have committed the crime and how accused No.1 can be held responsible for the injury that was found on the body of the person deceased. One of the arguments advanced by ld. Sr.Counsel Mr. Thakkar is that Artiben has sated that there was a telephone call from watchman Gulamnabi at about 2.30 P.M., inter alia, informing her husband that the accused have CR.A/856/2005 17/287 JUDGMENT come to the farm and they are putting up the construction of a wall. This evidence of Artiben would not be admissible in evidence in view of the fact that Gulamanabi has not supported the case of the prosecution when examined. On the contrary, he has denied this fact. He has also not accepted that he has made such a telephone call. So, in light of the observations made by the Apex Court in the case of Vijender v/s State of Delhi, 1997 SC (Cri.) 365, the evidence of Artiben referred to above, could not have been accepted as an admissible evidence. Mr. Thakkar has taken us through relevant para-11 of the said decision. It would be convenient to reproduce relevant observations made by the Apex Court in para- 11 of the above-cited decision. Para-11 reads as under:- “11. The evidence of Prosecution Witness 5 that Raju gave him the number of the vehicle and the names of the three appellants as the miscreants was not legally admissible for Raju (Prosecution Witness 4) did not state that he had seen the three appellants CR.A/856/2005 18/287 JUDGMENT kidnapping Khurshid nor did he give the number of the vehicle in which Khurshid was taken away. In the absence of such direct evidence of Raju (Prosecution Witness 4), the testimony of Prosecution Witness 5 to that extent would be hit by Section 60 of the Evidence Act. The said section, so far as it is relevant for our present purpose lays down that oral evidence must, in all cases whatever, be direct; that is to say if it refers to a fact which could be seen it must be the evidence of a witness who says he saw it (emphasis supplied). In the instant case the facts which could be seen were that Khurshid was kidnapped, that the appellants kidnapped him and that he was kidnapped in Car No. DDB 5067 and therefore Prosecution Witness 4 was the only person (in absence of any other eye-witness) who was legally competent to testify about these facts. Since Prosecution Witness 4 did not testify to two of the above facts, namely the car number and the persons who kidnapped CR.A/856/2005 19/287 JUDGMENT him, the statement of Prosecution Witness 5 that he was also told about the above two facts would not be admissible being “hearsay”, but his testimony that Prosecution Witness 4 told him that Khurshid was kidnapped would be admissible as corroborative evidence under Section 157 of the Evidence Act. While on this point it need be mentioned that in the facts of the present case Section 6 of the Evidence Act also does not come in aid of the prosecution.” In view of above, according to Mr. Thakkar, evidence of PW Bharatbhai, PW Rahul and/or PW Artiben in no way helps the prosecution in establishing the crime in question. (iii) As per the evidence of P.W.5 Dr. Bhise who along with other doctors performed the post-mortem of the deceased Arvindbhai, the cause of death is the injury caused by a fire arm found on the right-side chest of the deceased. A bullet during the post- CR.A/856/2005 20/287 JUDGMENT mortem examination, was taken out by the panel of doctors and details of the post-mortem notes need appreciation in the background of the opinion evidence of other expert Mr. Modi, Forensic Scientist who examined the bullet mark-F and the muddamal Revolver mark-J along with muddamal cartridges referred to in the evidence as K-1, K-2 & K-3. Mr. Thakkar has pointed out that as per the panel of doctors performing the post-mortem, they measured and noted the description of the bullet taken out of the body of the deceased and these details found in the post-mortem notes with pictures stating diameters etc., reveal that as per Dr. Bhise who proved the post-mortem notes, bullet was of O.5 cm which measurements were taken by a scale. There is no ambiguity in oral evidence of Dr. Bhise and the post- mortem notes produced. The measurement of the bullet injury found on the right side chest was also measured and measurement of entry wound of the bullet is shown to be of 0.5 cm. A piece of skin was taken out with a view to send it to FSL expert and Dr. Bhise has said in his deposition that the entry wound hole was of 0.5 cm. Meaning thereby equal to CR.A/856/2005 21/287 JUDGMENT the diameter of the bullet found lying inside the body. Even as per the case of the prosecution, FSL expert had found one hit mark on the trunk of a tree at Shantivan Farm where the alleged crime has been committed and the diameter of the hit mark on the trunk of the tree was measured and it was found 2.00 cm x 0.5 cm. The evidence of Mr. Modi- Forensic Scientist, if considered, the bullet i.e. mark-F bullet received by him for examination allegedly taken out from the body of the person deceased was having a diameter of 0.775 cm. This conflict found in the evidence of two different sets of experts, has been relied on by the prosecution and the ld. Trial Judge, without recording any logical legal finding, has held that the prosecution has satisfactorily proved the case beyond reasonable doubt. On the contrary, it ought to have been held that the prosecution has made out two different stories. The FSL expert says that the deceased has been killed by a bullet having a diameter of 0.775 cm and the doctors who performed the post mortem say that the death was caused by a bullet of a diameter of 0.5 cm. According