CC/5/2005 1/46 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No. 5 of 2005 WITH CRIMINAL APPEAL No. 1814 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 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 ? ========================================================= STATE OF GUJARAT - Appellant Versus RAJUBHAI CHHAGANBHAI PATEL - Respondent ========================================================= Appearance : MR.PRACHCHAK, LEARNED ADDL. PUBLIC PROSECUTOR, FOR APPELLANT-STATE MS.BANNA DUTTA WITH MR.P.R.ABICHANDANI, LEARNED ADVOCATES, FOR RESPONDENT ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE CC/5/2005 2/46 JUDGMENT and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 31/07/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) The confirmation case and criminal appeal arise out of a judgment and order rendered by the learned Additional Sessions Judge, 2nd Fast Track Court, Navsari, on 31/8/2005, in Sessions Case No.51 of 2003. The accused-convict came to be tried by the learned Additional Sessions Judge, 2nd Fast Track Court, Navsari for the offences punishable under Sections 302, 323 and 451 of the Indian Penal Code and Section 135 of the Bombay Police Act. 1.1 The appellant is alleged to have committed triple murders and has been convicted therefor. The Sessions Court sentenced him with capital punishment. He is also directed to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for two years. For the offence punishable under Section 323 of the Indian Penal Code, he is sentenced to undergo rigorous imprisonment for one year and to pay a fine CC/5/2005 3/46 JUDGMENT of Rs.1,000/-, in default, to undergo rigorous imprisonment for six months. For the offence punishable under Section 451 of the Indian Penal Code, the accused-appellant came to be sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for six months. For the offence punishable under Section 135 of the Bombay Police Act, the accused-appellant came to be sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.100/-, in default, to undergo rigorous imprisonment for one month. The sentences are ordered to undergo concurrently with a benefit of set off under Section 428 of the Criminal Procedure Code. 2. Aggrieved by the said judgment and order, the accused-convict has preferred Criminal Appeal No.1814 of 2005, whereas, the Confirmation Case arises because of statutory requirements of confirmation of sentence of hanging. These two matters are heard together and are disposed of by this common judgment. For sake of convenience, the CC/5/2005 4/46 JUDGMENT accused-convict is addressed to as the appellant in this judgment. 3. As per the prosecution case, the incident occurred on 18th July, 2003 between 10:30 and 11:30 a.m. It is the case of the prosecution that the appellant suspected the fidelity of his wife and did not approve of his wife maintaining 'good' relations with relatives and acquaintances and, as a result there were disputes between the two. On the day of incident, around 10:30 a.m., the appellant was noticed beating his wife-Usha. This was noticed by Somabhai and on his intervention, the appellant is alleged to have beaten him with an umbrella. While that scuffle was going on, the appellant's wife-Usha escaped. This added to the fury of the appellant and he picked up an iron rod (crossbar) and started chasing his wife. As per the prosecution case, he gave one blow to Manga Bhana in the grass field, who succumbed to the injury. The appellant is alleged to have proceeded further and when he was questioned by Ranchhodbhai, he gave a blow with the crossbar on his head to which Ranchhodbhai succumbed. This incident CC/5/2005 5/46 JUDGMENT occurred in the rice field. It is further alleged that the appellant then came to the house of Karsan Soma where Premiben, wife of Karsan Soma was standing on the Ota of the house and the appellant without any rhyme or reason inflicted injuries on person of Premiben, to which she also succumbed. As per the prosecution case, the appellant for no reason caused injury to minor Ankur, who was going on his bicycle and then assaulted Bhupendra, who was on his motorcycle. Both these persons sustained injuries therefrom. 3.1 Thus, as per the prosecution case, the appellant has committed murder of three persons, Ranchhodbhai Ravjibhai Patel, Mangabhai Bhanabhai Patel and Premiben wife of Karshanbhai Somabhai for no reason, no motive and with no instigation from them. The appellant also caused injury to Somabhai Budhabhai, minor Ankur and Bhupendrabhai again for no fault on their part, except that Soma Budha intervened by asking him as to why he was beating his wife. The picture that is projected is as if the appellant was on a murder spree. This chain of CC/5/2005 6/46 JUDGMENT events is alleged to have occurred between 10:30 and 11:30 a.m. at village Khaparvada. The F.I.R. came to be lodged by Vijaybhai Ranchhodbhai and offence was registered. The F.I.R. is at Exh.10 which was given at about 14:00 hours on 18/7/2003 at Mangosi Hospital, which was sent to Bilimora Police Station at 14:30 hours and offence was registered over there at C.R.No.I-60 of 2003. On basis of the F.I.R. and consequent upon registration of the offence, the investigation started. The appellant came to be arrested on 19/7/2003. Police recorded statements of various persons and it emerged that Dhediben Ranchhodbhai and Laxmiben Ranchhodbhai claimed to be eye-witnesses to the incident relating to murder of Ranchhodbhai Somabhai, whereas, Karsan Soma claimed to be eye-witness to the incident of assault and murder of his wife Premiben. So far as incident relating to murder of Mangabhai Bhanabhai is concerned, it was found that the deceased made an oral dying declaration before his son-Jina Manga. There was discovery of weapon used in the incident. Statement of injured witnesses, Somabhai Budhabhai, minor Ankur and Bhupendrabhai were also recorded and CC/5/2005 7/46 JUDGMENT ultimately charge-sheet came to be filed against the appellant in the Court of learned J.M.F.C., Gandevi. Since the offences were triable exclusively by the Court of Sessions, learned J.M.F.C. committed the same to the Court of Sessions and Sessions Case No.51 of 2003 came to be registered. 3.2 Charge was framed against the appellant at Exh.1. He pleaded not guilty to the charge and claimed to be tried. The trial Court after considering the evidence led by the prosecution, came to a conclusion that the prosecution was successful in proving the charges levelled against the appellant and convicted and sentenced the appellant-accused as stated in the earlier part of this judgment and hence, this appeal and confirmation case. 4. We have heard learned Advocate, Ms.Banna Dutta with Mr.P.R.Abichandani on behalf of the convict-appellant. We have also heard learned A.P.P., Mr.H.M.Prachchak, who appears for the State. 5. Since the conviction itself is under CC/5/2005 8/46 JUDGMENT challenge and confirmation or non-confirmation of capital punishment would be dependent on the decision in appeal, we deem it proper to firstly deal with the appeal and then confirmation case. 6. We have heard learned Advocate for the appellant who has taken us through the record and proceedings and has raised following contentions. 6.1 It was submitted that although three persons have lost lives in this chain of events, complicity of the appellant cannot be said to have been properly established. It was submitted that the evidence of Dhediben and Laxmiben, who claimed to be eye- witnesses to the incident, relating to deceased- Ranchhodbhai Somabhai is not reliable. Both of them are daughters of the deceased-Ranchhodbhai Somabhai and are therefore interested witnesses. Their version is not in consonance with the medical evidence. It is also submitted that apart from that aspect, even, if the prosecution case is taken at face value, the appellant cannot be said to have any intention to cause murder of Ranchhodbhai. It was a CC/5/2005 9/46 JUDGMENT coincidence or an accident that Ranchhodbhai intervened and suffered injury with the crossbar which was in hand of the appellant. The appellant has inflicted only one blow on Ranchhodbhai. A few moments prior to the incident, the appellant had no grievance against Ranchhodbhai, nor can he be said to have any anticipation of Ranchhodbhai intervening. But, fury as he had against his wife, he became more furious upon intervention of Ranchhodbhai and inflicted a single blow with the iron rod which was handy. He is not alleged to have caused any further injury and, therefore, even if the prosecution case is taken at face value, it cannot be said that the appellant had intention to cause murder of Ranchhodbhai. It was argued that at the most, knowledge can be attributed to the appellant about likelihood of death of the deceased being caused with the injury caused by the appellant. The case, therefore, would fall at the most under definition of culpable homicidal not amounting to murder. 6.2 It was contended that the appellant was in an infuriated state of mind because of conduct of his CC/5/2005 10/46 JUDGMENT wife and the act can be said to be an impulsive act in a state of anger. 6.3 It was submitted that so far as the incident relating to Mangabhai Bhanabhai is concerned, his son, Jina claims that the deceased made an oral dying declaration before him implicating the appellant. Jina is not an eye-witness, but, he says that when the oral dying declaration was made, Vijay Ranchhod was present. This version of Jina gets no corroboration from Vijay Ranchhod. He does not speak to have gone to the place where Mangabhai was lying in company of Jina, nor does he speak of making of any oral dying declaration by deceased before Jina in his presence and, therefore, it was argued that conviction could not have been recorded only on basis of a weak piece of evidence like oral dying declaration not getting support from other independent, cogent and impartial evidence. 6.3.1 It was further contended that so far as incident relating to Premiben is concerned, her husband Karsanbhai is claimed to be eye-witness, but, CC/5/2005 11/46 JUDGMENT if conduct of the eye-witness seen, it is clear that he is not a reliable witness. It was contended that admittedly the incident occurred latest by 11:30 a.m. The witness flees from the place of incident early. He claims to have seen assault on his father at which point of time, he does not rescue his father. After the incident of Karsan, incident of Premiben occurred and thereafter witness Karsanbhai Somabhai does nothing, but flees from the place of incident. He claims to have arrived at the place of incident (which is his home incidentally) in the evening. In the evening, his son-Raju arrives from his job and notices his father sitting on the Ota where the incident of Premi had occurred. Raju at that point of time, does not notice the dead body of Premiben and claims that he was asked by his father Karsan to attend funeral of Ranchhod. Raju attends the funeral of Ranchhod and then reaches home and in the light of motorcycle notices dead body of his mother lying on ota. It was therefore, submitted that conduct of all these witnesses, i.e. Karsanbhai Somabhai and Rajubhai Somabhai are not natural and does not merit acceptance. CC/5/2005 12/46 JUDGMENT 6.4 It was contended on behalf of the appellant that the evidence in respect of three murders is therefore scanty, unreliable and untrustworthy. The trial Court has, therefore, committed an error in accepting the prosecution case alleging complicity of the appellant in all three murders. 6.5 It was also contended that the evidence in respect of injury to witness, Somabhai Budhabhai, Ankur Somabhai and Bhupendra Kantibhai is also scanty and conviction is, therefore, wrongly recorded. 6.6 By way of an alternative submission and opposing the confirmation case, it was contended that as per the settled proposition of law, capital punishment is to be awarded only in rarest of rare case. The judicial system has accepted and appreciated the reformative theory and therefore, conviction even if upheld would not show that the case falls in category of rarest of rare case. The appellant has no criminal antecedents. Even, as per the prosecution case, the incident has occurred in a peculiar circumstances where the appellant was in a CC/5/2005 13/46 JUDGMENT furious state of mind and may have acted impulsively, more so, when all three persons are alleged to have been assaulted upon by the appellant abruptly and without any preplanning. It was submitted that it was not a preplanned offence that can be said to have been committed by the appellant. Though feebly, it was contended that the appellant was not in fit state of mind and was suffering from psychic disorder. The trial Court has not properly appreciated the case of the appellant emerging from deposition of the appellant's father, who is examined as defence witness No.1. It was further submitted that in all three instances only one injury is alleged to have been caused by the appellant. There is no further attempt on part of the appellant to cause further injuries. It was contended that as a result of this, the appellant cannot be said to have caused any injury to the victim persons with any preplanning. There was no motive least any animosity between the appellant and the victim and, therefore, the appellant may not be convicted for the offence of murder. It would at the most be a case of culpable homicidal not amounting to murder and, therefore, CC/5/2005 14/46 JUDGMENT appropriate punishment in that regard may be awarded by altering the conviction. 6.7 Last but not the least, it was contended that although three persons have lost their lives, this is not a fit case for capital punishment. It cannot be said that the appellant would be a risk or menace to the society for all future times to come, that society cannot be protected without elimination of appellant by awarding punishment of hanging and, therefore, it was urged that the appeal may be allowed and confirmation case may be dismissed. 7. Learned A.P.P. on the other hand has contended that three persons have lost their lives within appellant's spree for murder. Two were old male members and one of them was a lady. Their death is caused for no reason, for no fault and for no provocation on their part. It was submitted that the injuries are caused on vital parts of the body with a deadly weapon like a crossbar. The injured witnesses have been examined. There are direct pieces of evidence to connect the appellant with the crime. The CC/5/2005 15/46 JUDGMENT injuries are caused on vital part of body with a weapon like crossbar which are certified to be sufficient in ordinary course of nature to cause death. The weapon has been identified and the accused is also identified by this witness. The trial Court has given due consideration to the evidence on record in light of the proposition of law as settled by various judgments and, has then awarded capital punishment. The complicity of the appellant is properly established. The appellant has done to death three persons for no fault on their part and, therefore, case would assume seriousness. 7.1 Regarding incident of Mangabhai, it was submitted that Jinabhai (Exh.30) is not an eye- witness but before him the deceased Manga had given an oral dying declaration implicating the appellant. This aspect has not been challenged during cross- examination of Jina. On the contrary, during cross- examination, it emerges that the witnesses asserts about his father being alive and being able to speak to him. The medical evidence indicates that there were as many as six external injuries and, therefore, CC/5/2005 16/46 JUDGMENT the appellant has caused multiple injuries to Manga and it is not a case of single blow. 7.2 As regards incident relating to Premiben, it was contended that Rajubhai Karsanbhai is not an eye- witness but Karsanbhai is and, in his presence the appellant has caused injury to Premiben with a crossbar for no reason apparent or remote. The injury has ultimately resulted into her death. The medical evidence indicates that the injuries were sufficient in ordinary course of nature to cause death and, therefore, the trial Court has rightly come to a conclusion that the appellant's involvement in murder of Premiben properly established. 7.3 It was contended further that so far as incident of Ranchhodbhai is concerned, incident has occurred in presence of Dhediben and Laxmiben and their depositions cannot be discarded only because they happened to be daughter of deceased. The postmortem notes also indicate that the deceased had multiple injury on his head and, therefore, the trial Court has rightly concluded that involvement of the CC/5/2005 17/46 JUDGMENT appellant in this incident is also properly established. 7.4 It was contended by learned A.P.P. that involvement of the appellant in incident relating to injured witnesses Ankur and Bhupendra is established through depositions of Doctors, as well as, deposition of injured-Ankur (Exh.55) and Bhupendra (Exh.88). The notification issued by the District Magistrate prohibiting carrying of weapon is placed on record at Exh.112. 8. Learned A.P.P. has submitted that here is a person who has hurt the minor boy without any reason besides witness-Bhupendra. He submitted that here is a person, who has murdered three persons for no reason. There was no provocation, nor was the interference of such a nature as would enrage anybody. The incidents have occurred over a period of one hour and time should have ordinarily cooled down the rage and therefore it cannot be said that the incidents occurred in a state of anger where a person may tend to act impulsively. The trial Court CC/5/2005 18/46 JUDGMENT has considered all these aspects and has come to a conclusion that here is a rarest of rare case where capital punishment would be justified. It was, therefore, submitted that the appeal may be dismissed and the sentence of hanging may be confirmed. 9. We have examined the record and proceedings from the angel suggested by both the sides. 10. Although the appellant is alleged to have committed three murders and caused simple hurt to two witnesses, it cannot be said that it is a case of single incident. It is a case of chain of incidents which have occurred in quick succession at different places. The evidence in respect of these events is also different and therefore, will have to be examined distinctly to examine whether complicity of the appellant is properly established by the prosecution in each of the event. Once that is done, question of confirmation or non-confirmation of sentence of hanging can be gone into. 11. Although there is no direct or specific CC/5/2005 19/46 JUDGMENT evidence to show the exact sequence in which the incidents have occurred, it transpires that firstly the incident of the appellant beating Somabhai with an umbrella occurred, thereafter incident of assault and murder of Mangabhai Bhanabhai appears to have occurred in the grass field of Jinabhai and thereafter, it appears that the appellant chased Ushaben to the rice field of deceased Ranchhodbhai and on Ranchhodbhai asking him as to why is he chasing his wife, the appellant inflicted head injuries on Ranchhodbhai with the crossbar resulting into his death. It appears that thereafter the appellant went to the house of Premiben wife of Karsanbhai Somabhai, who was standing on the ota of her house where the appellant is alleged to have straightway committed an assault on her with the crossbar in presence of Karsanbhai Somabhai. The appellant then is said to have travelled further and on Ankur coming across him on bicycle, he has inflicted a blow on side of Ankur and then on Bhupendra. 12. We propose to discuss the evidence in CC/5/2005 20/46 JUDGMENT respect of Mangabhai Bhanabhai, Ranchhodbhai Ravjibhai and Premiben Karsanbhai first. 12.1 So far as incident of Mangabhai Bhanabhai is concerned, it is clear that the incident is not witnessed by any one. However, the complicity of the appellant is sought to be established by examining witness-Jinabhai Mangabhai at Exh.89. This witness is the son of the deceased. He says that the incident occurred on 18/7/2003 and Raju had hit his father with a crossbar causing a hole in the chick of his father and an injury on the chest. He says that his father was assaulted by Raju in the grass field of Jina Chhana. The witness says that he and Vijay had gone together where his father told him that Raju Chhagan had caused injury to him with a crossbar on chick and chest. Witness says that he took his father in auto-rickshaw in Mangasi Hospital and doctor was not present and therefore they took his father to Gandevi but, his father expired on the way. He has deposed regarding other incident, but on basis of hearsay. During cross-examination, he says that he knows the accused very well as they belong to same CC/5/2005 21/46 JUDGMENT village. He denies the suggestion that the mind of the accused is disturbed. He says that he has the knowledge about the incident from what was told to him by his father and he asserts that when he went to his father, his father was lying and was able to speak. 12.1.1 Thus, from deposition of this witness, it is clear that according to this witness, deceased Mangabhai Bhanabhai had made an oral dying declaration before him in presence of witness-Vijay. Barring this oral dying declaration, there is no other evidence led by the prosecution to connect the appellant with this incident. It is an established proposition of law that oral dying declaration is a weak piece of evidence and the Court should look for some corroboration or some other supportive material contemporaneous in nature while accepting such weak piece of evidence. We, therefore, propose to examine the evidence of Vijay Ranchhod in whose presence this witness, Jina claims that deceased had made oral dying declaration. CC/5/2005 22/46 JUDGMENT 12.1.2 Witness-Vijay Ranchhod is examined at Exh.9 as Prosecution Witness No.1. He is the first informant. We have given a close scrutiny to his oral evidence and we find that Vijay does not speak of accompanying Jinabhai to the place where Mangabhai was lying, nor does he speak of any oral dying declaration made by Mangabhai to Jina Manga in his presence. Though, not a substantive piece of evidence, we have also examined F.I.R. at Exh.10. There also, there is total silence about oral dying declaration by deceased-Mangabhai before Jinabhai in presence of this witness. 12.1.3 What therefore emerges from depositions of Jina and Vijay is that the version of Jina regarding oral dying declaration made by Mangabhai to him in presence of Vijay does not get any support or corroboration from deposition of Vijaybhai. Jinabhai is the son of deceased-Mangabhai. There is no other independent or cogent evidence to support the say of Jina as to oral dying declaration, nor is there any other evidence to connect the appellant with the crime, except the so-called oral dying declaration. CC/5/2005 23/46 JUDGMENT 12.1.4 It is true that the say of Jina in his examination in chief about oral dying declaration is not specifically challenged during cross-examination. But, fact remains that Vijay Ranchhod was examined as Prosecution Witness No.1 at Exh.9, prior in point of time then Jinabhai Mangabhai, who is examined as Prosecution Witness No.13 at Exh.89 and when Vijay Ranchhod has not in his deposition stated anything about oral dying declaration and when it is found that Jina's version is not getting any corroboration, absence of specific denial or a challenge to the witness during cross-examination would be of little significance