CR.A/699/2000 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 699 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE D.N.PATEL ========================================= 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 ? ========================================= NAGRISING @ NAGRIBHAI GUJLABHAI RATHWA & ANOTHER - Appellants Versus STATE OF GUJARAT - Opponent ========================================= Appearance : MR TS NANAVATI for the Appellants. MR HL JANI, APP for the Opponent. ========================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE D.N.PATEL Date : 03/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.N.PATEL) CR.A/699/2000 2/13 JUDGMENT 1. The present appeal has been preferred by the appellants against the judgement and order of conviction and sentence passed by learned Additional Sessions Judge, Vadodara, Camp at Chhota-udepur dated 19th May,2000 in Sessions Case No.53 of 1998, whereby the present appellants have been convicted mainly for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code for life imprisonment and to pay a fine of Rs.1,000/- each, in case of default, further rigorous imprisonment for one year has been awarded. The appellants have also been convicted for an offence punishable under Section 324 of the Indian Penal Code for three months rigorous imprisonment and to pay a fine of Rs.100/- each, in case of default, further imprisonment for seven days has been awarded. Against this sentence, the present appellants have preferred this appeal. 2. If the case of the prosecution is unfolded, the brief facts of the present case, are as under: It is a case of the prosecution that on 3rd July,1998 at about 3:30 p.m. at Village: Kwat, District: Vadodara, the present appellants along with accused Nos.3 and 4 were travelling in a jeep and deceased Devising, P.W.No.2 Dungarsingbhai Harsingbhai Rathwa as well as P.W.No.7 Mansing Fuljibhai were travelling on a scooter. Scooter was belonging to P.W.No.13 Nevsingbhai Chhaganbhai. It is a case of the prosecution that the accused CR.A/699/2000 3/13 JUDGMENT alighted from the jeep with deadly weapons. Appellant Nos.1 and 2 were having Dharia - sharp cutting instruments. They caused injuries to P.W.No.2 as well as to Devising, who expired on the sport. P.W.No.2 sustained several injuries. Both were taken to Hospital, where P.W.No.1 Dr.Pranaykumar examined P.W.No.2 and has issued Certificate of Injuries at Exh-16. The case history has also been recorded, wherein, it is also mentioned that the accused assaulted with Dharia. FIR was filed by P.W.No.2 namely Dungarsingbhai Harsingbhai on the very same day, within couple of hours, bearing C.R.No.-I-119 of 1998 at Kwat Police Station. Investigation was carried out and necessary panchnamas of scene of offence and jeep, etc. were reduced in writing. Statement of eye- witnesses were recorded and ultimately charge-sheet was filed against the present appellants and other two accused. Upon recording evidence, out of four accused, the present appellants were convicted for committing an offence of murder of Devising and other two accused have been acquitted. Against this order of conviction and sentence, the present appeal has been preferred by the present appellants. There is no acquittal appeal preferred by the State against acquittal of other two accused. 3. Learned counsel for the appellants mainly submitted that so called eye-witnesses namely P.W.Nos.3, 4 and 5 are got up witnesses and they were not present at the scene of offence and, therefore, their evidences ought to be discarded. Learned counsel CR.A/699/2000 4/13 JUDGMENT for the appellants submitted that prosecution has failed to establish any motive. The prosecution has not brought on record the correct incident. There are lot of omissions and contradictions in the depositions of the eye-witnesses. This aspect of the matter has not been properly appreciated by the Trial Court and, therefore, judgement and order of conviction and sentence deserves to be quashed and set aside. 4. Learned counsel for the appellants submitted that there are no blood stains in the jeep. In fact, the whole incident has taken place because of an accident caused by jeep. Thereafter, P.W.No.2 and the deceased assaulted and they ran away from the scene of offence. Panchas of recovery of weapons have also turned hostile. This aspect of the matter has not been properly appreciated by the Trial Court, and, therefore, the order of conviction and sentence deserves to be quashed and set aside. 5. Learned Additional Public Prosecutor for the respondent-State submitted that no error has been committed by the Trial Court, in convicting the present appellants. The offence has been proved by the prosecution beyond reasonable doubt. It is also submitted by Learned Additional Public Prosecutor that even if, P.W.Nos.3, 4 and 5 are not considered as eye-witnesses and even their depositions are not to be considered, then also, looking to the evidence of P.W.No.2 – Dungarsing Harsingbhai, who is examined at Exh-30, who is injured eye-witness, who has sustained four CR.A/699/2000 5/13 JUDGMENT injuries, who was examined by P.W.No.1 and injury Certificate of P.W.No.2 at Exh-16, there is no reason for disbelieving the evidence of this injured eye-witness and he has clearly stated that he was present at the scene of offence and he has correctly narrated the whole incident before the Court. His deposition has been corroborated by several other evidence. Likewise, P.W.No.7 is also eye-witness, who has also narrated the whole incident accurately. The deposition of this witness corroborative to deposition of P.W.No.2 and there is enough corroboration by other evidence. 6. Learned Additional Public Prosecutor also submitted that the weapons were recovered at the behest of the appellants, as per panchnama drawn at Exh-44. Blood stains were found on the weapon and looking to FSL report, which is at Exh-64, there was a human blood group of “B” and the blood group of the deceased was also “B” and, therefore, deposition of P.W.Nos. 2 and 7 are also corroborative to other evidence also. P.W.No.13 – Nevsingbhai Chhaganbhai is a supporting evidence given by this witness, who is examined at Exh-54, who is owner of the scooter, he has narrated that the deceased, P.W.Nos.2 and 7 had come and asked for his scooter as he wanted to purchase grocery from Village:Kwat and looking to deposition of P.W.No.1 -Dr.Pranaykumar, who has performed postmortem of the deceased as there were eight injuries and two fractures to the deceased. Weapons were shown to the Doctor and it has been stated by him that injuries could have been CR.A/699/2000 6/13 JUDGMENT caused by Article Nos.7 and 8 and injuries Nos.3, 4, 5 and 6 are sufficient to cause death of the deceased, in ordinary course of nature. This evidence has been correctly appreciated by the Trial Court and the appellants have been accurately convicted, as per the aforesaid evidence and, therefore, this Court may not interfere with the judgement and order of conviction and sentence passed by the Trial Court. 7. Having heard the learned counsel for both the sides and looking to the evidence on record, it appears that the incident had taken place on 3rd July,1998 at about 3:30 p.m. at Village: Kwat. Deceased Devising was assaulted by the appellants with Dharia – Sharp cutting instruments, as per deposition of injured eye-witness P.W.No.2 – Dungarsingbhai Harsingbhai, who is examined at Exh- 30. This injured eye-witness has also sustained injuries, looking to the injury Certificate at Exh-16. Looking to the deposition of P.W.No.2, he has narrated clearly that the appellants came in jeep and on seeing the deceased, P.W.Nos.2 and 7, they started causing injuries by Dharia. This witness P.W.No.2 has also sustained injuries and Devising expired on the spot. P.W.No.2 was examined by P.W.No.1-Dr.Pranaykumar of Kwat Health Center. This witness has identified the appellants in the Court. Thus, this witness has given name of the appellants, narrations of weapons have also been given and the role played by the appellants, have also been clearly stated by him and identification of appellants by this witness, looking to Exh-31, which is FIR given by this witness at Kwat Police CR.A/699/2000 7/13 JUDGMENT Station, bearing C.R.No.I-119 of 1998, it appears that this FIR was filed on the very same day i.e. on 3rd July,1998 at 16 hours i.e. immediately after the incident, has taken place. Looking to the cross-examination of this witness, nothing is brought out from examination-in-chief. There is no material omission and contradiction in his deposition. Looking to the deposition of this witness and looking to the fact that he is injured eye-witness, as per injury Certificate of P.W.No.2 at Exh-16, he was present at the scene of offence and has seen the whole incident and, therefore, is reliable and trustworthy eye-witness. He is also an original complainant. 8. Looking to the deposition of P.W.No.7 – Mansingbhai Fuljibhai, who is examined at Exh-39, he has narrated that when he was on the scooter with deceased Devising and P.W.No.2 at the scene of offence, one jeep came there, he took a scooter on one side, appellants alighted from the jeep with Dharia and they assaulted P.W.No.2, who sustained injuries by Dharia as well as injuries were sustained by Devising, who expired on the spot. Deposition of this witness is corroborative to the deposition of P.W.No.2. This witness was on scooter along with deceased and P.W.No.2. Deposition of this witness is also getting corroboration to other contemporary documentary evidences. P.W.No.13 - Nevsingbhai Chhaganbhai, who is an owner of the scooter, was also examined by the prosecution at Exh-54. He has clearly stated that P.W.Nos.2, 7 and the deceased came and asked for scooter as they CR.A/699/2000 8/13 JUDGMENT wanted to purchase grocery from Village: Kwat. Looking to the panchnama of scene of offence (Exh-41) and looking to the panchnama of recovery of weapons at Exh-44, there is enough corroboration to the deposition of this witness. In the cross- examination of this witness, nothing is coming out in favour of the appellants. Looking to the evidence, he was present at the scene of offence along with injured eye-witness. He is reliable and trustworthy witness and he was present at the scene of offence. 9. Looking to the depositions of these two eye-witnesses and looking to the deposition of P.W.No.13, three eye-witnesses i.e. P.W.Nos.3,4 and 5 examined by the prosecution and their cross- examination, rightly the Trial Court has not believed them as reliable and trustworthy witnesses, but, as stated hereinabove, evenif, these P.W.Nos.3, 4 and 5 are found unreliable and untrustworthy, then also, there are two eye-witnesses i.e. P.W.Nos.2 and 7. P.W.No.2 is injured eye-witness. P.W.No.13 is supporting evidence along with other panchnamas as they are corroborative to the depositions of P.W.Nos.2 and 7 and, therefore, even if, P.W.Nos.3, 4 and 5 are not believed, then also, the prosecution has proved the offence of committing murder of Devising. 10. Looking to the deposition of P.W.No.1- Dr.Pranaykumar, who is examined at Exh-12, who is medical Officer at Kwat Health Centre, who had performed postmortem of the deceased at Exh-14, CR.A/699/2000 9/13 JUDGMENT on 3rd July,1998, following injuries were found on the dead body of the deceased : “1. Incised wound extending from Rt.maxillo upto 5 cm below the Lt.maxillary process extending the chick. Size: 18 cm x 5 cm x 5 cm 2. Compound fracture of mandible on both the side of left maxillary bone. 3. Fracture of Temporal and part of Occipital bone (Rt.side) 4. Incised wound overlying frontal bone 5 cm x 1 cm x 1 cm. 5. Incised wound over parietal bond 10 cm x 1 cm x 1 cm 6. Incised wound on temporal bone of 10 cm x 3 cm x 2 cm of Rt.temporal bone part of Rt.Occipital 7. Incised wound at the level of thyroid cortilage extending from middle to Rt.side upto Rt.angle of mouth 7 cm x 1 cm x 1 cm. 8. Incised wound over intrascapular region 5 cm x 5 cm x 5 cm” Looking to the postmortem note and deposition of this witness, there were two fractures on the head. Injury Nos.3, 4, 5 and 6 independently were sufficient to cause death of the deceased, in ordinary course of nature. Weapons, which were recovered at the behest of the appellants, as per panchnama at Exh-44, article Nos.7 and 8 were shown to this Dr.Pranaykumar and he has given opinion that the injuries could have been caused by these articles. Thus, looking to these injuries, depositions of P.W.No.2 and 7, are getting sufficient corroboration. There are as many as eight injuries sustained by the deceased and four injuries were sustained by the injured eye-witness i.e. P.W.No.2. Injured eye-witness – P.W.No.2 is also examined by this witness and has issued Injury Certificate of P.W.No.2 at Exh-16. CR.A/699/2000 10/13 JUDGMENT 11. Looking to the scene of offence panchnama at Exh-41, which is proved by P.W.No.8 – Soorsinhbhai Rooplabhai, who is examined at Exh-40 as panch witness, as per this scene of offence panchnama, there were blood stains on the scene of offence. Likewise, clothes of the deceased were also recovered and were also having blood stains. On Dharia, which were recovered at the behest of the appellants, there were also blood stains on Dharia. 12. As per deposition of P.W.Nos.14 and 15, examined at Exh-56 and 62 respectively, they have stated that all these articles were sent with dispatch note and looking to FSL report at Exh-64, all these articles were having human blood and looking to Serologist Report, blood group on the clothes of the appellants was “B” and the same was blood group “B”, upon the Dharia, recovered at the behest of the appellants. Looking to the FSL Report and Serologist Report read with panchnama of recovery of weapons read with panchnama of scene of offence, there is enough corroboration to the deposition given by injured eye-witness - P.W.No.2 and to the deposition given by another eye-witness P.W.No.7. As a cumulative effect of this, the prosecution has proved the offence of committing murder of Devisingh, beyond reasonable doubt against the appellants. No error has been committed by the Trial Court in appreciating the evidence on record. CR.A/699/2000 11/13 JUDGMENT 13. Learned counsel for the appellants submitted that motive is not mathematically established by the prosecution. This contention is not helpful to the appellants. Looking to the deposition of injured eye-witness – P.W.No.2 and another eye- witness P.W.No.7, nonetheless, though it is not sine-qua-non for the prosecution to prove a motive for conviction. It has been mentioned by these two eye-witnesses that there was some dispute between the deceased by the victim side or by the appellants side and, therefore, they came with dharia- a sharp cutting instruments, upon the deceased and P.W.No.2. As stated hereinabove, depositions of P.W.Nos.2 and 7 are getting corroboration from other evidences also. Evidence before the Court is cogent, convincing, reliable and trustworthy in form of deposition of prosecution wetnesses and in the form of several panchnamas, FSL and Serologist Report. Learned Additional Public Prosecutor has rightly submitted that looking to the further statement recorded under Section 313 of the Code of Criminal Procedure,1973, the appellants-accused have accepted their presence at the scene of offence, jeep used was also admitted by these accused. In these circumstances, we find no justification seeking mathematical proof of motive by the prosecution. 14. Learned counsel for the appellants further submitted that prosecution has not brought on record the correct incident before the Court. This contention is not accepted by this Court CR.A/699/2000 12/13 JUDGMENT looking to the clear and cogent depositions given by P.W.Nos.2 and 7 and, this contention is not helpful to the appellants. Constantly, it has been argued by the learned counsel for the appellants that the appellants were travelling in the jeep and the victim had assaulted them. This is suggested during cross-examination, but, looking to the panchnama of scene of offence at Exh-41, and looking to the panchnama of Muddamal Jeep at Exh-43, which was found abandoned by the appellants. There is no marks of accident neither on the jeep nor at the scene of offence and, therefore, this contention is not helpful to the appellants. On the contrary, there is a panchnama at Exh-51, which proves that the appellant No.1 is absconding. This is a noticeable behaviour of appellant No.1 as per Exh-51. Even as on today, appellant No.1 is absconding accused. Learned Additional Public Prosecutor has also submitted that appellant No.1 was given temporary bail vide order dated 31st December,2000 for 10 days and he was to surrender on 11th January,2001, but, appellant No.1 is absconding since then. Likewise, it has also been brought on record that the jeep was found abandon. It appears that appellant No.2 left the jeep and ran away. The behaviour of appellant No.2, is also an important circumstance. Thus, the theory canvassed by appellants that there was an accident of the jeep and they were assaulted by the victim is not believed by this Court and it appears that there is no weapons on the hands of the victim. There was no weapons in the hands of the deceased, neither in the hands of P.W.No.2; neither in the CR.A/699/2000 13/13 JUDGMENT hands of P.W.No.7, whereas, appellants were having sharp cutting instruments i.e Dharia, as per deposition of injured eye-witness and also looking to the panchnamas. The appellants were carrying these weapons in the jeep car and also looking to the weapons, which were used in such a manner that the Devising expired on the spot and as per FSL and Serologist Report, there was human blood found on the weapon and which matched with the blood group of the deceased. 15. As a cumulative effect of the aforesaid evidences, Trial Court has rightly appreciated the evidence on record and convicted the appellant-accused. We have no reason to take any deviation from the conclusion arrived at by the Trial Court and the appellants have been rightly convicted for an offence of committing murder of Devising. The prosecution has proved the offence beyond reasonable doubt against the appellants. The judgement and order of conviction and sentence passed by learned Additional Sessions Judge, Vadodara, Camp at Chhota-udepur dated 19th May,2000 in Sessions Case No.53 of 1998 is hereby upheld. There is no substance in this appeal and, therefore, the same is hereby dismissed. [C.K.BUCH,J] [D.N.PATEL,J] *dipti