CR.A/601/2001 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 601 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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 ? ========================================================= GULAMBHAI RASULBHAI MOGHUL & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR G RAMAKRISHNAN for Appellant(s) : 1 - 3. MR HL JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 01/04/2008 ORAL JUDGMENT CR.A/601/2001 2/18 JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against the judgment and order dated 18th July, 2001 passed by the learned Addl. Sessions Judge, Bharuch in Sessions Case No. 218 of 1993 whereby, the appellants, original accused nos. 1, 2 & 3, were convicted for the offences punishable u/s. 302, 323, 324, 504 & 114 of the Indian Penal Code [for short, “the IPC”] and Section 135 of the Bombay Police Act [for short, “the BP Act”]. 1.1 For conviction u/s. 302 r/w. Section 114 IPC, the appellants were sentenced to undergo imprisonment for life with fine of Rs.3000/- each and in default of payment of fine, simple imprisonment for a further period of three months. 1.2 For conviction u/s. 323, 324 & 504 r/w. Section 114 IPC, the appellants were sentenced to undergo imprisonment for six months, one year and six months respectively. CR.A/601/2001 3/18 JUDGMENT 1.3 All the sentences were ordered to run concurrently. The appellants were also given the benefit of set-off. 2.0 The facts in brief, as emerging from the record, are as under; 2.1 On 12.06.1993, at around 0800 hrs., while complainant – Khushalbhai Chimanbhai Maachhi Patel and his brother – Jagdishbhai Chimanbhai Maachhi Patel, both residents of Village Nava Mandva, Taluka Jhagadia, District Bharuch were going to their agricultural field, the appellants stopped them in the way near a Mosque situated in the Village and thereafter, began to quarrel with them by alleging as to why they were having a wrong misconception against them regarding their relationship with Tinuben [i.e. sister of the complainant and the victim] and started to hurl abuses at them. Immediately thereafter, the appellants attacked them with deadly weapons like spear, stick and 'dharia'. On hearing the shouts of the complainant and his CR.A/601/2001 4/18 JUDGMENT brother, two persons of their Village, who were passing through the said route, reached the scene of offence and rescued them from further assaults of the appellants. However, during that period, the appellants fled the scene of offence with their respective weapons. 2.2 Thereafter, the complainant and his injured brother went to Jhagadia Police Station for the purpose of lodging a complaint against the appellants. The P.S.O., who was on duty at the relevant point of time, noted down the same in the Station Diary. A complaint vide I – C. R. No. 143 of 1993 for offences punishable u/s. 326, 324 & 504 IPC and Section 135 of the B.P. Act was registered against the accused persons. A 'yaadi' was also given to them for taking necessary treatment from the Civil Hospital. A 'wardhi' was handed over to Head Constable – Durjansinh Natwarsinh for carrying out necessary investigation into the matter. 2.3 Subsequently, the complainant and his injured brother went to Community Health Centre, Jhagadia for taking necessary medical treatment. As the condition of CR.A/601/2001 5/18 JUDGMENT injured – Jagdish Chiman Maachhi Patel was deteriorating, he was advised to be taken to Civil Hospital, Bharuch. In the meanwhile, the Head Constable went to the scene of offence and prepared 'panchnama' to that effect in the presence of 'panchas'. Necessary 'muddamal' articles were also collected. Thereafter, investigation into the said offence was taken over by P.S.I. - V. K. Rana. 2.4 On 13.06.1993, injured – Jagdish Chiman Maachhi Patel was taken to Civil Hospital, Bharuch for necessary treatment. On examining the condition of the injured, the Medical Officer who was on duty at the relevant point of time at Civil Hospital, Bharuch advised that the injured be taken to S.S.G. Hospital, Vadodara. Consequently, the injured was taken to S.S.G. Hospital, Vadodara. 2.5 However, during the course of treatment, the victim succumbed to the injuries at around 1330 hrs., on the same day, i.e. on 13.06.1993. Inquest ‘panchnama’ was done. ‘Marnottar’ form was filled up and necessary CR.A/601/2001 6/18 JUDGMENT arrangements were made for sending the dead body for performing post-mortem. A note was sent to learned J.M.F.C., Jhagadia for the purpose of adding offence u/s. 302 IPC in the complaint. The clothes worn by the deceased, at the relevant point of time, were also seized by way of a separate ‘panchnama’. The ‘muddamal’ articles so collected were sent to F.S.L. for examination along with a forwarding letter. On receipt of the F.S.L. Report, Post-mortem Report and other reports, they were kept in the investigation file. 2.6 Further investigation was carried out and statements of several witnesses were recorded. As cogent evidence was found against the appellants, they were arrested. Arrest ‘panchnama’ was prepared in the presence of ‘panchas’. During the course of interrogation, as the appellants showed willingness to produce the 'weapons' used by them in the commission of the alleged offence in question, the same were recovered by way of a separate 'panchnama' in the presence of 'panchas'. Thereafter, the appellants were sent to judicial custody. CR.A/601/2001 7/18 JUDGMENT 2.7 On completion of investigation, charge-sheet was filed before the Court of learned J.M.F.C., Jhagadia. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Bharuch and it was numbered as Sessions Case No. 218 of 1993. The case was then transferred to the learned Addl. Sessions Judge for disposal on merits. On production of the appellants, the learned Addl. Sessions Judge framed the charge and as the appellants pleaded not guilty to the charges leveled against them, trial was initiated. 3.0 In order to prove the guilt of the appellants, the prosecution has examined thirteen witnesses, namely, PW – 1 Somabhai Vitthalbhai Maachhi Patel at Exhibit – 10 is a 'panch' witness of the 'panchnama' of the scene of offence, PW – 2 Ambalal Mohanbhai at Exhibit – 12 is a 'panch' witness of the discovery 'panchnama' of 'muddamal' weapons, PW – 3 Ishwarbhai Prabhubhai Patel at Exhibit – 17 is also a 'panch' witness of the recovery 'panchnama', PW – 4 Khushalbhai Chimanbhai Maachhi Patel at Exhibit – 21 is the complainant, PW – 5 Chotubhai Jethabhai Patel at CR.A/601/2001 8/18 JUDGMENT Exhibit – 53 is a relative of the victim, PW – 6 Mehukamben Kalubhai at Exhibit – 24 is also a resident of the same Village, PW – 7 Ukkabbhai Chittabhai at Exhibit – 25 claims to be an eye-witness, PW – 8 Tinuben Chimanbhai Patel at Exhibit – 26 is the sister of the victim, PW – 9 Dr. Kishorbhai Pramodrai Desai at Exhibit – 27 is the Medical Officer who performed the post-mortem of the deceased, PW – 10 Jitendra Jinabhai Rathod at Exhibit – 29 is the Medical Officer who gave necessary treatment to the complainant, PW – 11 Nagjibhai Narsinhbhai at Exhibit – 34 is the P.S.O., PW – 12 Durjansinh Natwarsinh is the Head Constable who carried out preliminary investigation into the alleged offence and PW – 13 Sundarbhai Ambalal Desai at Exhibit – 36 is the Investigating Officer. 3.1 The prosecution also relied upon several documentary evidence, more particularly, the complaint at Exhibit – 22, the ‘panchnama’ of the place of incident at Exhibit – 11, the inquest ‘panchnama’ at Exhibit – 8, the discovery ‘panchnama’ of 'muddamal' weapon qua appellant no. 3 at Exhibit – 13, the discovery ‘panchnama’ of CR.A/601/2001 9/18 JUDGMENT 'muddamal' weapon qua appellant no. 1 at Exhibit – 14, the discovery ‘panchnama’ of 'muddamal' weapon qua appellant no. 2 at Exhibit – 15, the 'panchnama' regarding seizure of clothes of deceased at Exhibit – 9, the F.S.L. Report at Exhibit – 38, the Medical Certificate of the complainant at Exhibit – 31, the Serological Report at Exhibit – 39, the Notification of the District Magistrate at Exhibit – 37 and the Post-mortem Report at Exhibit – 58. 3.2 On submission of the closing purshis, the further statement of the appellants u/s. 313 of the Cr.P.C. were recorded qua incriminating evidence. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment convicting the appellants for the alleged offence in question. Hence, the present Appeal. 4.0 Mr.G. Ramakrishnan, learned Advocate appearing on behalf of the appellants, has submitted that the prosecution case mainly rests upon the evidence of PW – 4 Khushalbhai Chimanbhai Maachhi Patel at Exhibit – 21. CR.A/601/2001 10/18 JUDGMENT However, the evidence led by this witness could not be fully relied upon inasmuch as there are several contradictions in it. He has contented that from the cross-examination of this witness, it is established that the scene of offence is not the same place which has been narrated by the complainant and that the weapons, alleged to have been used in the commission of the offence in question, could not cause the injuries sustained by the deceased. Thus, the say of this witness does not get any support from the medical evidence on record. 4.1 Learned Advocate has taken us through the evidence led by PW – 7 Ukkadbhai Chitabhai at Exhibit – 25 and PW – 8 Tinuben Chimanbhai Patel at Exhibit – 26 and has submitted that the evidence led by both these witnesses do not support the say of the complainant. He has, therefore, submitted that the Court below has committed serious error in convicting the appellants on the basis of the oral testimony of the aforesaid witnesses. 4.2 Learned Advocate has further submitted that the CR.A/601/2001 11/18 JUDGMENT prosecution has failed to establish the applicability of Section 114 IPC in the case on hand. He has contented that from the evidence on record, it is clear that both appellant nos. 1 & 2 had not inflicted any blow on the deceased at the relevant point of time. Therefore, at the most, both appellant nos. 1 & 2 could be convicted for their individual act only and not u/s. 302 r/w. Section 114 IPC. 5.0 Mr. H.L. Jani, learned APP appearing on behalf of the respondent – State, has submitted that from the evidence on record, the role played by each of the accused persons in the alleged offence is established beyond doubt. 5.1 Learned APP has further submitted that since the appellants were having a bad-eye against the sister of the victim, a fact which was known to both the victim and the complainant and for which tension also prevailed between both the sides, the appellants attacked the victim and the complainant to settle the score, which clearly establish the motive behind the same. Hence, the Court below was completely justified in convicting the appellants for the CR.A/601/2001 12/18 JUDGMENT alleged offence in question. 6.0 We have heard learned counsel for the respective parties and have perused the entire oral as well as documentary evidence available on record. On appreciating the medical evidence on record in the form of deposition of PW – 9 at Exhibit – 27 [Dr. Kishorbhai Pramodrai Desai] and the Post-mortem Report at Exhibit – 28, it is evident that the victim died a homicidal death. The Court below has discussed the said aspect in detail in the impugned judgment and hence, we are not discussing the same again in this judgment. We are in complete agreement with the findings recorded by the Court below qua the same. Thus, the fact that the victim died a homicidal death is established beyond doubt. 7.0 So far as the presence of the appellants at the scene of offence at the relevant point of time is concerned, the same is established from the evidence of the complainant – Khushalbhai Chimanbhai Maachhi Patel as PW – 4 at Exhibit – 21and Ukkadbhai Chitabhai as PW – 7 CR.A/601/2001 13/18 JUDGMENT at Exhibit – 25. It is true that there certain contradictions in the evidence led by these two witnesses. However, on all material aspects, viz. regarding the presence of the appellants at the scene of offence, the role played by each one of them along with their armoury, etc., the evidence led by them support the case of the prosecution. Hence, we find the evidence led by the said two witnesses to be reliable and trustworthy and accordingly, hold that the prosecution has been able to prove beyond doubt the role played by each of the appellants in the alleged offence in question. 8.0 However, as regards the contention raised by the learned Advocate for the appellant qua the applicability of Section 114 IPC in the case on hand is concerned, we find the same to have merit. The complainant – Khushalbhai Chimanbhai Maachhi Patel, in his deposition as PW – 4 at Exhibit – 21, has stated that at the relevant point of time when they reached near the Mosque, the appellants, who were armed with spear, stick and 'dharia' respectively, stopped them on the way and thereafter, used abusive language at them. He has further deposed that when they CR.A/601/2001 14/18 JUDGMENT instructed the appellants not to use such language, appellant no. 1 inflicted a stick blow on his left hand elbow and appellant no. 2 inflicted a spear blow on his head. On noticing the same, his brother [i.e. the victim] tried to rescue him from further assaults of appellant nos. 1 & 2. However, at that time, appellant no. 3, who was having a 'dharia' with him, inflicted a blow on the upper region of the right ear of the victim. Thus, so far as the role played by each of the appellants is concerned, this witness has narrated the same in detail in unequivocal terms. The presence of this witness, at the relevant point of time, is natural. Even otherwise, the said aspect is not disputed by the other side. 9.0 As discussed herein above, the evidence led by the complainant gets support from the evidence of PW – 7 Ukkadbhai Chitabhai at Exhibit – 25 on all material aspects. This witness has categorically narrated about the role played by each of the appellants in the entire episode along with the 'weapons' possessed by them at the relevant point of time. Both these witnesses have been cross-examined at length before the Court below. However, nothing CR.A/601/2001 15/18 JUDGMENT incriminating has come on record which may lead us to believe their evidence to be untrue or unreliable. 10.0 From the evidence of the aforesaid two witnesses, it could be safely concluded that the victim expired as a result of the 'dharia' blow inflicted by appellant no. 3. There is no evidence on record, oral or documentary, to establish that appellant no. 1 or appellant no. 2 had inflicted any blow, with the 'weapons' possessed by them at the relevant point of time, on the victim. Evidently, the victim expired as a result of the 'dharia' blow inflicted by appellant no. 3. 10.1 The said aspect also gets support from the medical evidence on record wherein, the Medical Officer who performed the post-mortem of the deceased, has categorically opined that the cause of death was due to the injuries sustained on the head and the brain and both Khushalbhai Chimanbhai Maachhi Patel [PW – 4 at Exhibit – 21] and Ukkadbhai Chitabhai [PW – 7 at Exhibit – 25] have categorically deposed about the role played by appellant no. 3 on the victim at the relevant point of time. CR.A/601/2001 16/18 JUDGMENT 10.2 The said aspect also gets support from the evidence led by the Medical Officer - Dr. Jitendra Jinabhai Rathod [PW – 10 at Exhibit – 29] who gave necessary treatment to both the complainant as well as the victim when they were brought to Community Health Centre, Jhagadia, at the first place, on the date of the alleged incident in question for necessary treatment and the Medical Certificate issued to the complainant at Exhibit – 31. 11.0 In view of the above discussion, we are of the opinion that the Court below has committed serious error in convicting all the appellants u/s. 302 r/w. Section 114 IPC and other offences as no specific role has been played by appellant nos. 1 & 2 so as to make them liable u/s. 302 r/w. Section 114 IPC. In our opinion, appellant nos. 1 & 2 would be liable for the offences punishable u/s. 323, 324 & 504 IPC and 135 of the B.P. Act only since it is established that the complainant had sustained the injuries in question at the hands of appellant nos. 1 & 2 at the relevant point of CR.A/601/2001 17/18 JUDGMENT time. No evidence has been led by the prosecution to show that appellant nos. 1 & 2 had played any active role so as to make them liable u/s. 114 IPC. Hence, both appellant nos. 1 & 2 deserve to be acquitted from the offence punishable u/s. 302 r/w. Section 114 IPC. 12.0 For the foregoing reasons, the Appeal is partly allowed. (i) The impugned judgment and order dated 18.07.2001 passed by the learned Addl. Sessions Judge, Bharuch in Sessions Case No. 218 of 1993 is confirmed only qua Appellant No. 3 and is modified qua Appellant Nos. 1 & 2 as under; (ii) The conviction of Appellant Nos. 1 & 2 qua offence punishable u/s. 302 & 114 IPC is quashed and set aside and both Appellant Nos. 1 & 2 are acquitted from the said offences; while the conviction qua offence punishable u/s. 324, 323, 504 IPC and 135 of the Bombay Police Act is confirmed. CR.A/601/2001 18/18 JUDGMENT (iii) As Appellant Nos. 1 & 2 have already undergone the period of sentence imposed on them qua conviction u/s. 324, 323, 504 IPC and 135 of the Bombay Police Act, they are ordered to be set at liberty forthwith, if not required in connection with any other offence. 12.1 Office is directed to send the Records & Proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*