CR.A/948/1998 1/27 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 948 of 1998 WITH CRIMINAL APPEAL NO. 1020 OF 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================= 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 ? ========================================= RASIKBHAI GOPALBHAI PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================= Appearance : Criminal Appeal No.948 of 1998 MR JM PANCHAL for the Appellant. MR DABHI, APP, for the Respondent-State. Criminal Appeal No.1020 of 1998 MR JOSHI FOR M/S THAKKAR ASSOC. for the Appellant. MR DABHI, APP, for the Respondent-State. ========================================= CR.A/948/1998 2/27 JUDGMENT CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 11/07/2007 ORAL JUDGMENT:- (Per : A. L. DAVE, J. ) 1. Present set of appeals arises out of a judgment and order rendered by the Sessions Court, Ahmedabad (Rural), Ahmedabad, on 19th August, 1998, in Sessions case No.22 of 1996. 1.1 The two appellants came to be tried by the Trial Court along with two other accused persons, namely, Nainaben, wife of Rasikbhai Gopalbbai Patel and Vinod alias Bako Ramubhai Patel. They all were tried for the offence of murder, attempt to commit murder, unlawful assembly, criminal intimidation, causing insult intended to provoke breach of peace and rioting while armed with deadly weapons, punishable under the Indian Penal Code (“IPC”). They were also tried for the offence punishable under Section 135 of the Bombay Police Act and the offences punishable under Sections 3(1)(x) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [“Atrocities Act” for short]. The Trial Court convicted Rasikbhai Gopalbhai Patel (original accused No.1) and Kishor alias Tijori Kunjbihari Sharma (original accused No.4) while acquitting original accused CR.A/948/1998 3/27 JUDGMENT No.2-Nainaben, wife of Rasikbhai Gopalbhai and Vinod alias Bako Shambhubhai Patel. 1.2 Both the convicts (original accused Nos.1 and 4) came to be convicted for the offence of murder under Section 302 read with Section 34 of IPC and were sentenced to imprisonment for life and a fine of Rs.500/-, in default, to undergo further imprisonment for a period of 30 days. They were also convicted for the offence of attempt to murder punishable under Section 307 read with Section 34 of IPC and sentenced to imprisonment for life. So far as original accused No.1-Rasikbhai Gopalbhai Patel is concerned, he was convicted for offence punishable under Section 504 of IPC and sentenced to undergo rigorous imprisonment for three months. For the offence under Section 506(2), he was convicted and sentenced to undergo rigorous imprisonment for one year and for the offence punishable under Section 135 of the Bombay Police Act, he was convicted and sentenced to undergo rigorous imprisonment for four months and a fine of Rs.100/-, in default, to undergo simple imprisonment for a period of 7 days. Original accused No.1- Rasikbhai Gopalbhai Patel and original accused No.4-Kishor alias Tijori Kunjbihari Sharma also came to be convicted for the offence punishable under Section 3(2)(v) of the Atrocities Act, but no separate sentence came to be awarded therefor by the Trial Court. Both of them were acquitted of the charges under Section 3(1)(x) of the Atrocities Act and Sections 3 and 7 of the Protection of Civil Rights Act. 1.3 Aggrieved by the said judgment and order, original CR.A/948/1998 4/27 JUDGMENT accused No.1-Rasikbhai Gopalbhai Patel has preferred Criminal Appeal No.948 of 1998, whereas original accused No.4-Kishor alias Tijori Kunjbihari Sharma has preferred Criminal Appeal No.1020 of 1998. No appeal is preferred by the State against the acquittal of original accused Nos.2 and 3. 2. Original accused No.1-Rasikbhai Gopalbhai Patel is represented by learned Advocate, Mr. J. M. Panchal, whereas original accused No.4-Kishor alias Tijori Kunjbihari Sharma is represented by learned Advocate, Mr. Haresh Joshi, appearing for M/s Thakkar Associates. 3. The prosecution case, as emerging from the record, is that the incident in question occurred on 8th September, 1995, around 21.30 hours, near Saraswati Society, located in Chandkheda area of Ahmedabad. It is the case of the prosecution that the four accused arraigned before the Trial Court along with an unidentified person formed an unlawful assembly with a common object to cause murder of deceased-Piyush Kantilal Makwana and also to murder Ashok Kantilal Makwana and, in furtherance of their common object, they committed assault while being armed with deadly weapon. It is the case of the prosecution that in furtherance of the common object, they picked up a quarrel with injured witness-Ashok Kantilal on the ground of his having gone to a particular Hair Dresser's shop for a hair cut. While this altercation was in progress, Ashok's brother, Piyush, intervened and there was, initially, a scuffle and then the attack, wherein it is alleged that both the appellants while being armed with knives committed CR.A/948/1998 5/27 JUDGMENT assault on Piyush Kantilal as well as Ashok Kantilal. The injuries caused on Piyush Kantilal were of serious nature which, ultimately, resulted into his death. The injuries caused on Ashok Kantilal were also of serious nature, which would have endangered his life but for timely treatment. It was alleged that these acts were committed by the assailants with knowledge that the victims belonged to Scheduled Caste/Scheduled Tribe. The Trial Court accepted the prosecution evidence against original accused No.1-Rasikbhai Gopalbhai Patel and original accused No.4-Kishor alias Tijori Kunjbihari Sharma and convicted them, as stated above. 3.1 The Trial Court, however, found that the evidence against original accused Nos.2 and 3 was not good enough to record conviction. 4. In order to prove the case, the prosecution has examined Kantibhai Manabhai, Ashok Kantilal and Parvatiben Ashokbhai as eye-witnesses. The prosecution has also relied on circumstantial evidence in the form of medical evidence, discovery of knife, dying declaration of Ashok, his deposition and Forensic Science Laboratory (FSL) report. 5. For the sake of convenience, original accused No.1- Rasikbhai Gopalbhai Patel, who is appellant in Criminal Appeal No.948 of 1998, is addressed to as Accused No.1 (A1) and original accused No.4-Kishor alias Tijori Kunjbihari Sharma, who is appellant in Criminal Appeal No.1020 of 1998, is addressed to as Accused No.4 (A4) in this judgment. CR.A/948/1998 6/27 JUDGMENT 6. Learned Advocate, Mr. Panchal, contended that the origin and/or genesis of the incident is not disclosed by the prosecution and is, thus, suppressed by the prosecution. It was also contended by Mr. Panchal that the prosecution has not been able to show any motive, which would have prompted the appellants to commit the crime. It was also contended that the witnesses are family members and, therefore, they are interested witnesses. The evidence led by the prosecution through witnesses is suffering from basic infirmities. It was also contended that the version of the eye- witnesses, taken as a whole, would indicate that the eye-witnesses have a tendency to implicate more and more persons. 6.1 It was also contended that the Trial Court has believed the evidence of eye-witnesses, so far as their depositions in relation to original accused Nos.2 and 3 are concerned. It was contended that the incident is not separable nor is the evidence separable and has to be accepted as a single transaction and, if the version of the eye-witnesses is found to be unreliable in the same incident in respect of other accused persons, the same could not have been accepted by the Trial Court against the appellants. The evidence led by the prosecution rules out the possibility of presence of eye- witnesses relied upon by the prosecution. The version of the eye- witnesses does not get support from medical evidence. The medical evidence and the version of the eye-witnesses are inconsistent with each other. It was also contended that a test identification parade was held during the course of investigation where the eye-witnesses have identified the assailants. Two of them have not even been CR.A/948/1998 7/27 JUDGMENT arraigned as accused or prosecuted by the prosecuting agency. It was, therefore, contended by learned Advocate, Mr. Panchal, that the Trial Court committed an error in relying on the evidence of eye-witnesses and the medical evidence for recording conviction. He submitted that the appeal may, therefore, be allowed and the conviction may be set aside. 7. Learned Advocate, Mr. Joshi, submitted that the prosecution has changed its version from time to time. Initially, it was the case of the prosecution that the assault was committed by only two persons, then by three and then by four plus one. He submitted that, though two persons other than the accused arraigned before the Trial Court were identified by the witnesses to the incident as assailants, no further investigation in that direction is carried out nor have they been arraigned as accused. It was also contended that the prosecution has not acted in an honest and fair manner but has withheld the evidence as to T. I. parade. No independent witness is examined, though they were available. It was contended that independent witnesses, though available, have not been examined by the prosecution. The witnesses ought to have been examined by the prosecution to prove its case as there was no allegation of any collusion and such witness being not likely to support the prosecution. Witness-Kantilal Manabhai is the first informant. He has improved upon his F.I.R. while deposing before the Court. It was, therefore, contended that the investigation has not been fairly conducted nor is the prosecution fairly conducted and complete facts are not placed before the Trial Court. It was also contended that the evidence of two so called eye- CR.A/948/1998 8/27 JUDGMENT witnesses is conflicting inter se. The dying declaration of Ashok Kantilal was recorded, where he has not mentioned that present appellant-Accused No.4 had caused any injury to the deceased with knife. The said statement may not be treated as a dying declaration as, fortunately, Ashok has survived. The prosecution witnesses have deviated from their original version, so as to suit the requirement of the prosecution and, therefore, their evidence may not be relied upon. The foundation of the prosecution case so far as motive is concerned is a quarrel between Ashok Kantilal Makwana and the accused persons, but no investigation in that direction is carried out. It was also contended that no offence under Section 302 is said to have been proved against the said appellant-original accused No.4. The prosecution has failed to lead any evidence to show that A4 was also known by alias name Tijori. It was submitted that, if the Trial Court could not accept the evidence of eye-witnesses against A2 and A3, the Trial Court could not have accepted the evidence against A1 and A4. He, therefore, contended that the appeal may be allowed. 8. Learned Additional Public Prosecutor, Mr. Dabhi, has opposed this appeal. Mr. Dabhi submitted that the prosecution has established the identity of A4 as Kishor alias Tijori Kunjbihari Sharma through deposition of Ashokkumar Kantilal Makwana, who knew A4 as he did have a quarrel with him in past and he identified A4 as Tijori and, therefore, the contention that identity of A4 as Kishor alias Tijori is not properly established may not be accepted. It was also contended that the contention that independent witnesses are not examined also may not be accepted CR.A/948/1998 9/27 JUDGMENT for the reason that there are no other eye-witnesses to the incident, as can be seen from evidence Kantilal Manabhai Makwana, who said in his deposition that, after the incident was over, they raised shouts and, therefore, people from the society arrived. Therefore, those independent persons could not have been eye-witnesses to the incident and could not have carried the case of the prosecution any further. It was also submitted that Parvatiben implicates A4 as Kishor alias Tijori. 8.1 It was contended by learned Additional Public Prosecutor, Mr. Dabhi, that the Trial Court has considered the evidence threadbare and has not accepted that part of the evidence which was found by the Trial Court to be not reliable but has accepted that part of the evidence which it found to be reliable. Mr. Dabhi submitted that this is not impermissible. In fact, it is the duty of the Court to sift the evidence and find out the truth. Mr. Dabhi submitted that falsus in uno and falsus in omnibus is not the principle adopted by Indian Criminal Justice system and, therefore, the contention that because some of the witnesses' version is not accepted by the Trial Court against original A2 and A3, the Trial Court ought not to have accepted the evidence against A1 and A4 may not be accepted. It was contended that absence of motive will not be of any significance when there is direct evidence on occurrence. It was also contended that the trial Court has not awarded any separate sentence for the offence under the Atrocities Act. It was also contended that the discrepancies found in the evidence of eye-witnesses have to be accepted as natural lapses and may not be treated as an attempt to improve upon their own case to CR.A/948/1998 10/27 JUDGMENT suit to the requirement of the prosecution. It may be considered that one of the eye-witnesses is the father of the deceased and he has, in terms, stated in his deposition that he was disturbed because of the incident. Obviously, some discrepancies may have crept in his version that may have been given by him in the F.I.R. and the version that he may have given in the court, which is after lapse of a reasonable time, which would enable him to correct himself. The evidence in the form of FSL report supports the prosecution case where it is opined that the injuries were possible with the knife, although, during cross-examination, the doctor says that he cannot say for certain that they were caused with the knife. Mr. Dabhi submitted that in view of this, the Trial Court has rightly recorded conviction by sifting the evidence and this Court may not interfere with the said finding. He, therefore, submitted that the appeal may be dismissed. 9. We have examined the record and proceedings in light of the contentions raised by rival sides. 10. The prosecution has examined P.W.1-Kantilal Manabhai, P.W.4-Ashok Kantilal and P.W.17-Parvatiben Ashokbhai as eye-witnesses. They are at Exhibits 32, 40 and 82, respectively. 10.1 P.W.1-Kantilal Manabhai Makwana is the father of victim late Piyush Kantilal Makwana and injured witness Ashok Kantilal Makwana. He says that the incident occurred on 8th September, 1995 around 9.30 P.M. when he was at the house of his elder son, Ashok. The witness says that his house is in CR.A/948/1998 11/27 JUDGMENT Saraswati Society, located on Chandkheda I.O.C. Road whereas his elder son is staying in Block No.E-337 of Saraswati Society. He says that he and his younger son are staying together in Block No.B-111. He says that he went to the house of Ashok from his own house. He had learnt from members of the public that Ashok had a quarrel and, therefore, he went to the house of Ashok. There he was informed by wife of Ashok that Ashok had gone for a hair cut and, there, he had a quarrel with Rasik Patel and, therefore, he went to Police Chowky. The witness says that he then stayed back at the house of Ashok. 10.1.1 Thereafter, they heard a hubbub outside. Therefore, the witness, his son-Piyush and wife of Ashok came out of the house and saw that Ashok was caught hold of by Baka Patel (A3). Ashok had suffered knife blows on left side. In the meantime, Piyush arrived and original A2-Naina Patel said that this is his brother and he also should not be spared. This was told by Naina to original A4. A4, therefore, inflicted blows on Piyush on right side. They, therefore, raised shouts on seeing the occurrence. Thereafter, the people from the society came and the assailants-accused ran away. While leaving, they intimidated that they would be done to death. The witness says that he went to Police Station for lodging F.I.R. after making arrangements for taking the injured persons to Panchsheel Hospital in a jeep car. He did not go to the hospital. He gave F.I.R. in the Police Station and put his signature. The witness says that when he reached Vadilal Sarabhai Hospital, he learnt that his younger son-Piyush had died and Ashok was under treatment in the Casuality Ward. He was not permitted to go into CR.A/948/1998 12/27 JUDGMENT the room as the surgery was in progress. He says that he stayed in the hospital overnight and went home on the next day along with the P. S. I. He says that he showed the place of incident and the Panchnama was drawn in his presence. The witness has been cross- examined at length. A number of questions have been put to the witness during cross-examination on topographical aspect. During cross-examination, he sticks to his version that Piyush was caught hold of by Baka Patel (A3) and Tijori (A4) inflicted knife blows. He, however, states that only Tijori had inflicted knife blows on Piyush in the stomach. He admits that, in the F.I.R., he had not made any reference to presence of Baka or Vinod Shambhubhai Patel. During cross-examination, he states that he is aware about the T.I. parade having conducted. He says that he had gone along with Ashok and Budhabhai. The witness, during cross-examination, states that he had shown the place of incident to the police. He says that he did not remember if the police had shown the place which is seven feet away from the gate. He admits that there was blood on the gate. He says that he reached V. S. Hospital around 10.00 P.M. By that time, Ashok was already taken for surgery. He says that Ashok regained consciousness around 12.00 midnight. He does not remember whether Executive Magistrate had come to record dying declaration of Ashok. He admits that he saw Tijori for the first time on the day of the incident and he learnt through Naina that he is known as Tijori. He denies the suggestion that at the time of the incident, Naina had not referred to these names. He says that because of instigation being given by A2, repetitive knife blows were given by Tijori to Piyush on right side. He admits during cross-examination that he is disclosing, for the first time, CR.A/948/1998 13/27 JUDGMENT that Baka had caught hold of Piyush and Tijori had inflicted knife blows. He admits that Piyush had only one external injury. He says that he had noticed injury on chest. He is unable to state exact number of injuries suffered by Ashok. He admits that while giving F.I.R., he had not disclosed name of any of the witnesses. 10.2 Injured eye-witness, Ahsok Kantilal Makwana, is examined at Exhibit 40. He says that the incident occurred on 08.09.1995 around 8.00 P.M., but he is not able to give the exact time. He says that, after returning from job, around 5.30 to 6.00 P.M., he relaxed for a while and then went to his father's place and then returned and then he took his sons to a stall in the society to buy some biscuits. At that time, Rasikbhai Patel, Vinodkumar Patel, Tijori and Nainaben were sitting on a bench along with an unknown person. On seeing him, Rasikbhai Patel gave him abuses and called him, but he tried to avoid them. In the meantime, Tijori also abused him. At that time, he asked them as to why were they giving him abuses and what fault had he committed. At that time, Rasikbhai again abused him and asked him why did he come to that shop for a hair cut, to which he replied that he had never come to that shop and that he went to a shop in the opposite row. At that time, Nainaben said that she will not give any amount for the work of grill. He was warned by Rasikbhai to live quietly. Tijori told him to leave the business and be careful. The witness says that while he was about to park his scooter in front of his house, two unknown persons came and caught hold of him and Rasikbhai, Tijori and Nainaben rushed towards him. He says that he could not identify the unknown persons, but he says that he was caught hold of by CR.A/948/1998 14/27 JUDGMENT Vinodbhai. Initially, he was given kick and fist blows and then Rasikbhai Patel caused injury to him on chest on the left side. He says that, thereafter, Rasikbhai gave on more blow in the armpit. He says that Tijori also inflicted knife blows on Piyush. He identifies the weapons, which were allegedly used in commission of the crime. The witness has been cross-examined at length. He says that, after the first episode, i.e. of being abused by the accused side while he was going to buy biscuit for his sons, he went to Chandkheda Police and informed about the incident. Being informed, Constable, Bhagubhai, went to the place on the scooter of the witness and came back and advised the witness to inform the police in case of difficulty. He admits that when he saw the accused persons rushing, he had not noticed any knife. The witness denies the suggestion that while he was being caught hold of, he was given kick and fist blows. During cross-examination, he admits that several things which he had stated in the examination-in-chief were not disclosed by him before the police. Differently put, it is not established by the prosecution that he has not improved his original version. During cross-examination, he further admits that, after receiving the second blow, he raised shouts, hearing which, his father, brother and wife arrived at the spot. 10.2.1 He says that on 25th September, 1995, he was summoned at Dr. Jivraj Mehta Bhavan for T. I. parade. He says that he identified two persons from the persons arraigned. He says that he identified those two persons because he was asked by the Magistrate to identify the persons who were involved in the incident. He admits that those two persons are not arraigned as CR.A/948/1998 15/27 JUDGMENT accused. 10.2.2 He admits that, after receiving injury, he went alone to his father's house and, at that time, he came across Bhanukant Savjibhai. He does not remember if he told Bhanukant Savjibhai about the incient. He admits that till his statement was recorded on 9.9.1995, he did not know name and address of Tijori. He admits that wherever he referred to A4, he referred to him as Kishor Kunjbihari Sharma alias Tijori, in his police statement. He states that he does not know if name of A4 is Kishor Kunjbihari Sharma. 10.2.3 He admits during cross-examination further that, while his dying declaration was recorded, he did not know the details of injuries sustained by Piyush. He learnt about the injuries on Piyush only after he was discharged. He does not remember as to whether he had known or not about Tijori having knife in his hand while his dying declaration was being recorded. He denies that he was not aware about the details of weapon of Rasikbhai at the time of recording of his dying declaration. 10.3 The third eye-witness-Parvatiben Ashokbhai is examined at Exhibit 82. She says that the incident occurred about two years prior to the date of her deposing before the Court. The incident occurred during night. Her husband returned from service at around 5.00 P.M. Then he went to her in-laws' house and came back within half an hour and then took their young sons for buying biscuits. There