CR.A/926/1993 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 926 of 1993 With CRIMINAL APPEAL No. 355 of 1994 With CRIMINAL APPEAL No. 358 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================= 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 ? ========================================= JAGDISHKUMAR SANKARLAL PANCHAL & 3 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================= Appearance : Criminal Appeal No. 926 of 1993 MR YV BRAHMBHATT for Appellant(s) : 1 - 4. MR R.C. KODEKAR, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, Criminal Appeal Nos. 355 & 358 of 1994 MR R.C. KODEKAR, APP, for Appellant(s) MR YV BRAHMBHATT for Opponents : (4) ========================================= CR.A/926/1993 2/34 JUDGMENT CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 01/05/2008 & 15/05/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.H. SHUKLA) Criminal Appeal No. 926/93 is directed against the judgment and order dated 31.7.1993 in Sessions Case No. 190/90 passed by the learned Addl. Sessions Judge, Banaskantha, Palanpur recording the conviction of the appellants-original accused Nos. 1,3 4 & 6 for offence under Sec. 302 r/w Sec. 34 of the Indian Penal Code imposing sentence of life imprisonment and fine of Rs. 5,000/- each and in default simple imprisonment for 3 months. However, accused Nos. 1, 3, 4 and 6 have been acquitted of the charges for the offence under Sec. 147, 148, 149 of the IPC as well as Sec. 135 of the Bombay Police Act. Original accused Nos. 2 & 5 have been acquitted of all the charges. 2. Criminal Appeal No. 358/94 has been filed by the State against the acquittal of accused Nos. 1, 3, 4 & 6 qua offence under Sec. 147, 148, 149 r/w Sec.34 of IPC and Sec. 135 of the Bombay Police Act and Criminal Appeal No. 355/94 has also been filed by the State against acquittal of accused Nos. 2 & 5 qua all the charges. 3. Short facts of the case, briefly summarized, are that the CR.A/926/1993 3/34 JUDGMENT appellants, the original accused are charged with having committed offence under Sec. 302 r/w sec.34 of the IPC as well as for offence under sec. 147, 148 and 149 of the IPC as well as for offence under Sec. 135 of the Bombay Police Act as stated in detail in the charge- sheet framed by the Sessions Court. 3.1 It is alleged that the accused Nos. 1, 3, 4 and 6 had visited the house of deceased Ambaram Lalchand who was the father-in- law of the deceased Hansaben, sister of the the appellants-accused. The sister of the appellants-accused was married to Kalidas, son of Ambaram Lalchand, who had committed suicide by consuming pills as a result of which some complaint was also filed as regards harassment against her in-laws. The appellants-accused, who are the brothers-in-law of Kalidas, son of the deceased Ambaram, had visited the house of Ambaram, where the incident took place for which a complaint at Ex. 19 has been lodged by the complainant, one Bhikhabhai Karsandas Panchal. It is alleged that the complainant Bhikhabhai is having his native place at Village Vaghna and as his aunt Ramaben was ill, he had started from Ahmedabad to see her. He had stayed at Laxmanpura at Ambaji on the previous night and thereafter he started form Laxmanpura and reached the village Vaghna at 2'o clock in the afternoon. It is stated that when he was sitting at the house of the aunt, the elder brother Madhabhai and cousin brother Jayantibhai Revabhai and Ajubhai Jivabhai Rabari were also sitting there and the uncle CR.A/926/1993 4/34 JUDGMENT Ambaram was sitting on a cot in the court-yard in front of the house of the aunt where he was sitting. At that time accused No.1- Jagdishkumar Sankarlal Panchal, accused No.3-Ishwarlal Sankarlal Panchal, accused No. 4-Chamanlal Sankarlal Panchal and accused No. 6-Amratlal Sankarlal Panchal, all residents of Gadalwala came there. The accused No. 1-Jagdishkumar and accused No. 3- Ishwarlal sat on the cot of Ambaram and accused No. 4-Chamanlal and accused No.-6 Amratlal were standing nearby. They were talking something with Ambaram when the complainant told his brother and other persons who were sitting with him that as some guests appears to have come to Ambaramkaka they should also join them and when they were about to go there, when he looked at Ambaram, Ambaram screamed and they rushed immediately to Ambaram and saw that Jagdishkumar and Ishwarlal were having knives in their hands stained with blood and Ambaram was bleeding from the abdomen. Thereafter, all the 4 accused persons started running away. The complainant and others also rushed after them and the injured Ambaram also ran after the accused persons. However, at the outskirts of the village a Jeep bearing Regn. No. 9963 was parked and all the accused persons sat in the jeep and fled away. Uncle Ambaram, who also, after having the injury, ran after the accused persons fell down near the pipal tree and when the complainant reached to him, he found him unconscious and he died there. Therefore, the complaint at Exh. 19 came to be lodged by the complainant-Bhikhabhai Panchal about CR.A/926/1993 5/34 JUDGMENT the incident that the 4 persons of Gadalwada have killed the uncle Ambaram. 3.2 The history or the motive behind the said incident is stated to be the fact that Hansaben, who was the sister of the appellants- accused, was married to Kalidas, son of the deceased Ambaram, had died consuming poisonous drug for which it was alleged that the uncle Ambaram and Kalidas were harassing her as a result of which she consumed poisonous drug and died. It is because of such incident, the accused persons had visited Ambaram and Kalidas for talk, who is the brother-in-law of the accused persons, and the incident took place. 3.3 On the basis of the complaint Exh. 19 the investigation was carried out. As sufficient incriminating evidence was found against the accused persons for commission of the alleged offences punishable under sec. 302 r/w sec.34 as well as sec. 147, 148, 149 of IPC as well as sec. 135 of the Bombay Police Act, the charge- sheet came to be filed in the court of learned Judicial Magistrate. However, as the offence under sec. 302 etc. of IPC is exclusively triable by the Court of Sessions, the learned Judicial Magistrate committed the case to the Court of Sessions, Banaskantha at Palanpur. 3.4 The charge was framed which was read over and explained to CR.A/926/1993 6/34 JUDGMENT the accused persons. The accused persons pleaded not guilty to the charge and came to be tried. Therefore, the accused persons were tried by the learned Addl. Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 190/90. 3.5 In order to bring home the charges levelled against the accused,the prosecution has examined the following witnesses: (1)Dr. Rekhaben Maheshwari, who had performed post-mortem, PW No.1, Exh. 14 (2)Bhikhabhai Karsanbhai Panchal, (complainant), PW No. 2, Exh. 18 (3)Karsanbhai Valubhai , PW No. 3, Exh. 21 (4)Bhupatbhai Moghabhai, PW No. 4, Exh. 23 (5)Jayantibhai Revabhai, PW No. 5, Exh. 26 (6)Vinod Kalidas, PW No. 6, Exh. 29 (7)Ajubhai Jivabhai, PW No. 7, Exh. 30 (8)Chandrikaben Bhikhabhai, PW No. 8, Exh. 31 (9)M.G. Parmar, PW No. 9, Exh. 36 (10)Abhiji Nathuji, PW No. 10, Exh. 38 (11)Bhikhaji Hariji, PW No. 11, Exh. 43 (12)Mafaji Madhuji, PW No. 12, Exh. 47 (13)Ramesh Prakash Ramprasad, PW No. 13, Exh. 48 The prosecution has also produced the documentary evidence with CR.A/926/1993 7/34 JUDGMENT the list Exhs. 13 & 63. 3.6 After recording the evidence of the prosecution witnesses, further statement of the accused persons under sec. 313 of Cr.P.C. was recorded. The accused persons have stated that they have been falsely implicated and they have denied the incident and some of the accused have given written statement also contending that they have been falsely implicated. 3.7 The learned Addl. Sessions Judge, Banaskantha at Palanpur, on appreciation and evaluation of the evidence, and after hearing the learned advocates for the accused persons as well as the learned Public Prosecutor, passed the impugned judgment and order recording the conviction as stated hereinabove and sentenced the accused Nos. 1, 3, 4 & 6 under Sec. 302 r/w sec. 34 of the IPC. However, they were acquitted of the charges levelled under sec. 147, 148 and 149 of IPC. Accused Nos. 2 & 5 have been acquitted of all the charges. 4. It is this judgment which has been challenged by the appellants-accused on the ground mainly emphasized by learned advocate Mr. Brahmbhatt that the judgment recording the conviction of the accused persons is erroneous as it has not considered the material evidence on record and has failed to appreciate the evidence of the complainant and the eye witnesses. CR.A/926/1993 8/34 JUDGMENT 5. Learned advocate Mr. Brahmbhatt has referred to the deposition of the complainant Bhikhabhai Karsandas Panchal at Exh. 18 and, referring to his cross-examination, emphasized that it has been admitted by the complainant Bhikhabhai in his cross- examination that when they rushed on hearing the scream of deceased Ambaram he had seen only one person with knife though in his complaint he has stated that he had seen two persons i.e. Jagdishkumar and Ishwarlal with knives in hand stained with blood. He has specifically admitted that he has stated so as he was frightened and feared. Learned advocate Mr. Brahmbhatt also referred to the complaint given by the complainant at Exh. 19 and submitted that though in the complaint he has referred to this aspect that both accused Jagdishkumar and Ishwarlal were having knives stained with blood, his deposition at Exh. 18 states something contrary which he has clarified that he has stated the same under fear at the relevant time when the complaint was recorded. 6. Learned advocate Mr. Brahmbhatt has also referred to the post-mortem note Exh. 15 and submitted that column 17 as regards the injuries referred to only one stab wound on the left side between 4th and 5th ribs. Therefore, there is only a single blow given by one of the accused i.e. Jagdishkumar and the theory of the prosecution is not supported by this evidence. Learned advocate CR.A/926/1993 9/34 JUDGMENT Mr. Brahmbhatt, therefore, submitted that as there is only one injury and one blow given by accused No. 1, the other accused persons i.e. accused Nos. 3, 4 & 6 have been wrongly convicted for the offence under sec. 302 r/w sec. 34 of the IPC. The learned advocate has also submitted that as it is evident from the record, the sister Hansaben was married to Kalidas, son of deceased Ambaram. The original accused are the brothers-in-law of Kalidas and brothers of Hansaben, who had died consuming the poisonous drug due to the harassment caused to her. It is in this background when the appellants- original accused persons visited the house of the brother-in-law Kalidas, they met his father deceased Ambaram for the talk and in the process the incident took place as a result of which Ambaram died. Learned advocate Mr. Brahmbhatt submitted that there was no intention and it cannot be imputed that the accused persons had visited the deceased Ambaram with an intention to kill him. He also submitted that there is no evidence that there was any shouts or any quarrel. They were talking and all of a sudden this incident has taken place in a spur of the moment and therefore even the conviction for the offence under sec. 302 of IPC is not well-founded inasmuch as there is no intention established for commission of the offence under sec. 302 of killing deceased Ambaram. 7. The learned advocate submitted that the case would fall under exception and the conviction could have been for offence CR.A/926/1993 10/34 JUDGMENT under sec. 304, Part I of IPC. He also submitted that the trial court has not convicted the accused for charges of unlawful assembly under sec. 147, 148 and 149 of IPC and as the offence under sec. 147, 148 and 149 are not held to be established, the same finding is not required to be disturbed though the appeals have been preferred by the State against acquittal of the accused of these charges as well as for acquittal of accused Nos. 2 & 5 of all charges. 8. Learned advocate Mr. Brahmbhatt submitted that the role of accused Nos. 2 & 5, as per the prosecution case, is that they were waiting outside in a jeep at the outskirts of the village and when the accused persons, i.e., accused Nos. 1, 3, 4 & 6 rushed after causing injury to deceased Ambaram, they were waiting with the jeep and all of them fled away. However, the learned Addl. Sessions Judge, on appreciation of evidence, gave the benefit of doubt and they have been acquitted against which the State has preferred the appeal against their acquittal, which is also not well-founded. 9. On the aforesaid premises, learned advocate Mr. Brahmbhatt for the appellants-accused submitted that Criminal Appeal No. 926/93 filed by the accused may be allowed and Criminal Appeal Nos. 355/94 & 358/94 filed by the State may be dismissed. 10. Mr. R.C. Kodekar, learned APP, has submitted that the CR.A/926/1993 11/34 JUDGMENT incident has taken place in presence of the eye witnesses including the complainant, who is also a relative and sitting near the house of the deceased Ambaram where the deceased was sitting on a cot in his court-yard talking to the accused persons. The complainant was to join the deceased as the guests had come and when he heard the scream of the deceased Ambaram, he along with 2 other persons, rushed to the scene of incident and also ran after the accused persons who had started running after inflicting the blow to the deceased Ambaram. The complainant-Bhikabhai has given the complaint who is also related to the deceased specifically stating that the two accused, namely, Jagdishkumar and Ishwarlal, were having knives stained with blood and the deceased Ambaram was bleeding from his abdomen. The complainant had also chased the accused persons who fled away from the scene and thereafter he lodged the complaint. 11. Learned APP Mr. Kodekar submitted that though it has been admitted in the cross-examination that there was only one accused, Jagdishkumar, having a knife with him in his hand, it has been stated in the complaint that Jagdishkumar as well as Ishwarlal had knives stained with blood, which was stated by him at the relevant time under fear. The learned APP has fairly conceded that as it transpires from the post-mortem report of the deceased Ambaram, there is only one injury suggesting that only one person has given a single blow. However, learned APP Mr. Kodekar submitted that it CR.A/926/1993 12/34 JUDGMENT is required to be appreciated that the accused persons had visited the house of the deceased Ambaram, who was father-in-law of deceased Hansaben, who was the sister of the accused persons and who had died after consuming poisonous drug due to harassment. Therefore the motive was that the sister had died due to the alleged harassment by the in-laws and the deceased Ambaram was the father-in-law of Hansaben, his son Kalidas is brother-in-law of the accused persons and they had visited for discussion on this aspect when the incident has taken place. 12. Learned APP Mr. Kodekar submitted that though submissions have been made that it was on spur of the moment that the incident had taken place, it is required to be noted that at least 2 accused persons, Jagdishkumar and Ishwarlal, carried with them a weapon i.e. knife which clearly indicates about their intention. Otherwise, they would not have been equipped with a knife when they visited the house of the in-laws or the brother-in-law of the deceased sister. There was no reason for them to take the knife along with them. They have gone only for talk or some discussion about the death of their deceased sister. Therefore, learned APP Mr. Kodekar strenuously submitted that the fact that they had gone armed with knife clearly indicated about their intention and it was very clear that when the deceased Ambaram was sitting on the cot, two persons, Jagdishkumar and Ishwarlal, sat there on the cot and two other brothers i.e. Chamanlal and Amratlal, accused Nos. 4 & 6, CR.A/926/1993 13/34 JUDGMENT were standing beside them. The blow was given by the accused and thereafter they started running away and the other accused Nos. 2 & 5 with the driver were waiting with the jeep at the outskirts of the village so that they can flee away quickly. 13. Learned APP Mr. Kodekar has therefore submitted that though the charges for offence under sec. 147, 148 and 149 qua the appellants-accused Nos. 1, 3, 4 & 6 have not been established and have not been accepted to have been proved, the State has preferred the appeals against their acquittal for these charges. Similarly, learned APP Mr. Kodekar submitted that the accused Nos. 2 & 5 who were waiting outside in the jeep at the outskirts of the village, have also shared the common intention and they had abetted in commission of the crime by the accused Nos. 1, 3, 4 & 6 and, therefore, they ought not to have been acquitted. Mr. Kodekar, learned APP, submitted that the State has preferred Criminal Appeal No. 355/94 challenging their acquittal also. He submitted that the court is required to examine and appreciate the evidence of not only the complainant, but the other eye witnesses like Chandrikaben, who was also present at the relevant time and she has stated in her deposition Exh.31 that the accused Nos. 1, 3, 4 & 6 had visited the house of the deceased and accused No. 1- Jagdishkumar and accused No.2-Ishwarlal sat on the cot beside the deceased Ambaram and accused No.1-Jagdishkumar gave a knife blow to Ambaram on his chest as a result of which deceased CR.A/926/1993 14/34 JUDGMENT Ambaram screamed and the accused started running away. She has also stated that at the time of incident she was also sitting at the 'osri', i.e., the court-yard of her house and she had seen the incident. Though in the cross-examination it was suggested that she is not an eye witness, she has denied the suggestion and specifically stated that she had seen the incident. She has stated that after giving water to her mother-in-law she was sitting there in the court-yard and had seen the incident. She has denied the suggestion that the deceased Ambaram had committed suicide as the young children of deceased Hansaben were suffering and as a result thereof the deceased Ambaram was sad. 14. Vinod Kalidas, PW No. 6, who is a child witness, was examined at Exh. 29. Mr. Kodekar, learned APP, specifically stated that though he is a child witnesses, he was able to understand and therefore has his evidence has been recorded by the learned Addl. Sessions Judge. This child witnesses, Vinod Kalidas, was playing nearby the courtyard and he has specifically narrated about the incident to which he pointedly has drawn the attention. Mr. Kodekar submitted that he has stated in his deposition that when he and his sister were playing near the cot of the deceased Ambaram (grandfather), maternal uncles i.e. accused persons had arrived there and the two maternal uncles Jagamama and Ishwarmama sat on the coat and other two were standing beside them. He has also stated that Jagamama was having knife and the CR.A/926/1993 15/34 JUDGMENT accused No. 1-Jagamama is said to have given a blow to the deceased on his chest and thereafter they ran away. He has also stated that as a result thereof the grandfather (deceased Ambaram) was bleeding and still he also ran after the accused persons. Though in the cross-examination suggestions have been put that he was not present and he was playing somewhere else, he has denied the same. 15. Learned APP has also referred to the evidence of Ajubhai Jivabhai, PW No. 7, Exh. 30 who was sitting beside the complainant Bhikhabhai at the relevant time and he is also an eye witness. He has stated that he was sitting beside the complainant along with Jayantibhai and at that time the accused persons had visited the deceased Ambaram and Jagdishkumar, accused No. 1, and Ishwarlal, accused No. 2, sat on the cot and at that time the complainant Bhikhabhai has also said to have stated that guests appear to have come and the complainant Bhikhabhai in fact had suggested to go to the deceased Ambaram and when he looked towards deceased Ambaram he found the deceased Ambaram screaming and therefore all of them rushed there and found that he was bleeding and accused No.1 Jagdishkumar was having a knife stained with blood. He has also stated that accused No. 3, Ishwarlal, was also having a knife in his hand. 16. Learned APP Mr. Kodekar tried to submit, referring to this CR.A/926/1993 16/34 JUDGMENT evidence on record, including the evidence of the eye witnesses, that the intention is clearly established that when the accused Jagdishkumar and Ishwarlal had visited the house of deceased Ambaram, they were with knives. Normally, when a person visits his relatives socially, would not come armed with knife. Further, accused Nos. 2 & 5 were waiting outside at the outskirts of the village with the jeep to see that when the other 4 accused, who had gone to the house of the deceased Ambaram comes after inflicting injuries, they can flee away quickly. Therefore, learned APP Mr. Kodekar submitted that the offence under sec. 147, 148 & 149 regarding unlawful assembly with the common intention r/w sec. 34 of IPC is required to be appreciated and the learned Addl. Sessions judge has failed to appreciate this aspect and the judgment and order recording acquittal of the accused Nos. 1, 3 , 4 & 6 qua offence under sec. 147, 148 and 149 is erroneous. Similarly, the judgment and order recording the acquittal of accused Nos. 2 & 5 of the charges is also erroneous and therefore both the aforesaid appeals have been filed by the State, which may be allowed. 17. Mr. Kodekar, learned APP, therefore, submitted that Criminal Appeal No. 926/93 filed by the accused may be dismissed, whereas Criminal Appeal Nos. 355/94 & 358/94 filed by the State may be allowed. 18. In light of the rival submissions, it is required to be CR.A/926/1993 17/34 JUDGMENT considered whether the impugned judgment and order of the trial court recording the conviction of the accused Nos. 1, 3, 4 & 6 for offence under sec. 302 r/w sec. 34 of the IPC and also the acquittal of the said accused for offence under sec. 147, 148 and 149 of IPC r/w sec.135 of the Bombay Police Act as well as the acquittal of accused Nos. 2 & 5 for all the offences calls for any interference by this Court. 19. On overall appreciation and scrutiny of the evidence, few facts which are not in dispute, are required to be borne in mind and in light of the facts and circumstances and undisputed facts, rival submissions and the evidence relied upon by both the sides are required to be considered. 20. It is not in dispute that the son Kalidas of deceased Ambaram had married Hansaben, sister of the accused, who had committed suicide for which a complaint has been registered as C.R. No. I- 155/90 at Palanpur Police Station. Thus, the accused persons are the brothers-in-law of Kalidas, who is