CR.A/831/1999 1/49 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 831 of 1999 With CRIMINAL APPEAL No. 1125 of 1999 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 ? ========================================================= NARAYANBHAI BABULAL BHOSLE & 3 - Appellants Versus STATE OF GUJARAT - Opponent ========================================================= Appearance : MR YATIN SONI and MR HITESH B PATEL for the Appellants. Mr. H.L.Jani, Addl.PUBLIC PROSECUTOR for the Opponent. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE D.N.PATEL Date : 19/11/2008 CR.A/831/1999 2/49 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) Both these appeals are against the judgment and order dated 24th July, 1999 passed by the learned Additional City Sessions Judge, (Court no. 19), Ahmedabad in Sessions case no. 270 of 1998. 2. The appellants of Criminal Appeal No. 831 of 1999 are convicts who have been held guilty of the charge of offence punishable under section 302 read with section 34 of the Indian Penal Code and Second Appeal i.e. Criminal Appeal No. 1125 of 1999 is by the State of Gujarat challenging acquittal of original accused no. 5 Shardaben Naranbhai Bhosle and also against the order of acquittal of all the accused from the charge of offence punishable under sections 143, 147, 148, 149 of the Indian Penal Code as well as under section 135(1) of the Bombay Police Act. The appellants of Criminal Appeal no. 831 of 1999 are original accused nos. 1 to 4. Accused no.1 is the father and accused nos. 2,3 and 4 are sons of accused no.1. All the four have been held guilty for the offence punishable under section 302 of the Indian Penal Code read with section 34 and also under section 324 of the Indian Penal Code and they have been inflicted life imprisonment and ordered to pay fine of Rs. 2000/- each, in default, punishment imposed is simple imprisonment for two months. 3. We have heard learned advocate Mr. Yatin Soni for the convicts and learned Additional Public Prosecutor Mr. H.L.Jani for the State. Learned counsel appearing for the appellants in both these appeals and have taken us through the evidence, oral as well as documentary, recorded during the course of the trial of sessions case, CR.A/831/1999 3/49 JUDGMENT registered after investigation of the crime bearing Cr. No. I 261 of 1998 with Amraiwadi police station of city Ahmedabad. 4. The prosecution case, in nutshell is reflected in charge exh. 1. Of the five accused, four have been held guilty and one original accused no.5 Shardaben has been acquitted by the learned trial Judge. Accused were put to trial on the allegation that on 12th April,1998 at about 10.30 p.m. the accused formed an unlawful assembly, with common object and intention to kill Rajendra Amrutlal Modi and Balkrishna Modi, both real brothers. Accused nos. 1 to 4 were armed with deadly weapons like knife, gupti and iron pipe and inflicted various blows to both these brothers and ultimately both these brothers succumbed to the injuries. It is alleged that all these accused, in the meantime also inflicted certain blows to Gautam Modi ( P.W. 2), one another brother, as he attempted to intervene to save lives of these two brothers. Thus, Gautambhai was given blows of knife, gupti and pipe. This Gautambhai was seriously injured and was removed to hospital but he escaped death after surgical treatment. When these three brothers were being assaulted, complainant Dakshaben was present, she had rushed at the spot of quarrel and she had also sustained injuries between middle and rib finger with gupti. This injured Dakshaben lodged the complaint against all the five accused with Police Inspector of Amraiwadi police station when she was being treated by Doctors at L.G.Hospital. The police registered offence. According to prosecution, during investigation, a cross complaint came to be filed by original accused no.1 against both the deceased and injured witness Gautambhai Amrutlal Modi and Amraiwadi police station registered the offence vide C.R.No.I-266 of 1998. On completion of the investigation, CR.A/831/1999 4/49 JUDGMENT police found sufficient evidence against accused of both the sides. The learned trial Judge, on conclusion of the trial, held four accused as mentioned earlier, guilty, and decided to acquit alleged accused Shardaben, wife of accused no.1 and mother of accused nos. 2 to 4. We are informed that the accused of cross case and witness in the case against convicts have been acquitted. However, there is no appeal against the order of acquittal by the State or any Criminal Revision Application on behalf of the original complainant. FIR of cross case has not been produced during the course of the trial in the case tried against convicts. Of course, the prosecution produced injury certificates issued by Civil Hospital, Ahmedabad, of all the four convicts. Here, it will be relevant to note that as Doctor who examined and treated all the four convicts has not been examined by the prosecution and therefore, these four injury certificates have not been exhibited. Mr. Yatin Soni had, at the initial stage of his arguments, submitted that appellants have no objection if these injury certificates are considered. As none of the appellants disputes the fact that they had sustained injuries during the incident, they can be looked into. Blood stained clothes of all the five accused recovered during investigation of present case, were also sent for Forensic examination. 5. It is submitted by Mr. Soni that the order of conviction and sentence passed by the learned trial Judge is erroneous and is not sustainable in the eye of law and the conviction recorded by the learned trial Judge requires to be quashed and set aside. The learned trial Judge ought to have acquitted all the five accused observing that the prosecution has attempted to suppress the genesis of the crime. The accused, actually, were victims of planned assault of all the three brothers i.e. CR.A/831/1999 5/49 JUDGMENT two deceased brothers and Gautambhai Modi (P.W. no.2.). But ultimately they suffered on account of strong retaliation from the other side. The entire incident, so far as appellants are concerned, was a sudden and result of provocation made by the conduct and act of assault by both the deceased as well as Gautambhai. The learned trial Judge has grossly erred in appreciating the evidence. Certain basic principles of appreciation of evidence have been ignored by the learned trial Judge. The learned trial Judge has also attempted to read a piece of evidence which, according to Mr. Soni, is inadmissible. By pointing out certain interim orders passed by the learned trial Judge and the notes made by the learned trial Judge while recording the evidence of prosecution witnesses- P.W. No.1 and P.W. no.2, it is submitted that it appears that the trial has been conducted and concluded under a tense situation because on one day during the trial, the advocate had left the court room and had not even cared to appear in the Court in the rest of the part of the day. Of course, Mr. Soni has not submitted positively that the finding recorded by the learned trial Judge is prejudicial. But Mr. Soni, submitted that this Court being the Court dealing with criminal appeal under section 374 read with section 386 of the Code of Criminal Procedure, may give a fresh look on the entire set of evidence led during the course of trial. Certain errors committed by the learned trial Judge in appreciating evidence have resulted into the conviction. While pointing out various aspects, Mr. Soni has drawn our attention on certain aspects that the trial Court has wrongly considered the complaint i.e. exh. 65 given by Dakshaben as FIR within the meaning of section 154 of Criminal Procedure Code and has considered certain contents of the complaint as substantive piece of evidence of this document exh. 65. The absence of CR.A/831/1999 6/49 JUDGMENT fairness on the part of the investigating officer and to an extent by the prosecuting agency also has been ignored by the learned trial Judge. Non-production of FIR of cross case or copy of the station diary entry of Amraiwadi police station, after receipt of vardhi from LG Hospital are relevant documents that could have been produced for substantive justice. It is emerging from the evidence that original accused no.1 had been to Amraiwadi police station personally, immediately after the incident and after recording his version, all the accused persons were referred to LG Hospital by Amraiwadi police station with police yadi. These documents were crucial and important in the fact finding mission of trial and these documents could have established that FIR is not an FIR in the eye of law, but the same is a statement recorded during the course of investigation and therefore, inadmissible. Without assigning good, sound, legal and logical reasons, the learned trial Judge has ignored two crucial documents, one i.e. Vardhi recorded by the police official on duty at the LG Hospital given on the strength of the information provided by Dr. Firoz who was treating the injured witnesses including PW. 2 Gautambhai and PW. No. 1 Dakshaben, in which detailed description as to the occurrence is found mentioned. This very vardhi proved by competent witness clearly indicates that all the details recorded in the register maintained by police at LG Hospital were given to the police officer in charge of Amraiwadi police station telephonically and document at exh. 64 is a document of Amraiwadi police station, wherein the details of the occurrence is sufficiently reflected. If the document exh. 65 is not an FIR, the same could not have been considered while evaluating the strength of the evidence of Dakshaben. Only FIR can be looked into by the Court, for limited purpose of corroboration and contradiction while CR.A/831/1999 7/49 JUDGMENT examining and evaluating the evidence of the complainant person who lodged the FIR, and evaluating the evidence in reference of substratum of the story of the prosecution. According to Mr. Soni, name of one of the accused i.e. accused no. 4 Rajeshbhai is not reflected in any of the Vardhi, one written at L.G.Hospital and other at Amraiwadi police station and the same is found in the complaint exh. 65 recorded by police at belated stage. Time gap between 10.30 p.m. and 1.00 a.m. (after midnight) does not look to be a long gap but when it is in evidence that parties were enemical to each other, accused persons had also reached with their blood stained clothes at LG Hospital to get treatment when prosecution witnesses including Gautambhai and Dakshaben were in the hospital. Recording of complaint thereafter ought to have been considered as belated FIR. There was enough scope for the complainant to make deliberations with relatives and family members who were there in the Civil Hospital while giving the complaint. There is nothing in the evidence nor in the case of the prosecution that on 12th April, 1999, something had happened between the parties more particularly immediately prior to the incident that had taken place. This element of sudden quarrel which is being reflected in the evidence led by the prosecution has not been appropriately considered by the trial court. The trial court has not correctly appreciated the crucial aspect that there was enough blood near the entry door of the bungalow no. 54 i.e. the bungalow occupied by accused side. Samples were taken of the blood by the investigating officer. A thread was also collected of the blood lying at the bungalow of the accused side and these samples were also sent for Forensic examination and this indicates that the quarrel had started at the bungalow of the accused side. When the learned trial Judge has observed that the prosecution has not produced a detailed CR.A/831/1999 8/49 JUDGMENT map of the society and its internal road, in this situation, the learned trial Judge ought not to have impliedly observed that the accused side was the assailant or deceased as well as injured Gautambhai P.W. 2 or Dakshaben were the victims. On the contrary, close reading of evidence of Dakshaben indicates that injured brothers who ultimately succumbed to injuries, were taken at the bungalow no.75 before the mobile van had reached on the strength of the telephone call by somebody. So, blood found at the bungalow no. 75 was because all the three injured brothers were taken there at the bungalow no. 75 prior to the time when mobile van reached at the spot of incident i.e. Avnish society and took the injured persons to LG Hospital. Injuries on the body of the persons accused, if are considered, one wound is incised wound on the body of the accused person Jitendra. More than one accused i.e. Narayan as well as Jitendra had sustained injuries which have been described as contused lacerated wound. Injury on the leg of accused no.1 Narayanbhai Bhosle was of enough length and that is reflected in the arrest panchnama of the accused tendered in the evidence of Investigating Officer. Contused lacerated wound on the body of the person accused no. 2 Jitendra was on parietal region. This accused no.2 had sustained three injuries. Accused Rajesh had sustained two injuries and one of such injuries was on interscapular region. The accused Rajesh had sustained three injuries. Clothes of the accused were sent for forensic science examination and none of these clothes is found stained with blood of the victim side. Blood of accused persons was also sent for analysis and it is clear that all the accused persons were having the same group i.e. group "O" and their clothes also having sufficient blood stains. But blood on the clothes of the accused, on analysis, is found of group "O", meaning CR.A/831/1999 9/49 JUDGMENT thereby that their clothes were stained with their own blood. Even clothes of accused no. 5 Shardaben were also found with blood of group "O". It is very likely that she may have actively participated in shifting her injured husband and bleeding sons. No extraordinary injury or marks of violence was found on the body of this accused no. 5. Absence of blood of deceased or injured Gautambhai on the clothes of the accused is a circumstance that the author of the blows given to both the deceased or Gautambhai may be some other person and not the accused as alleged. There is reference of a mob in the evidence. It is alleged that the persons from the mob are responsible for the injuries found on the persons deceased as well as Gautambhai. As the accused were beaten suddenly by the deceased Balkrishna and his two brothers, furious society members ultimately may have fished them. The complainant herself has accepted certain crucial aspects as to the nature and character of deceased Balkrishna in her deposition and his political activity. So, accused could have been given benefit of doubt. All these aspects have not been appropriately considered by the learned trial Judge. It is further argued that investigating agency has decided to take a "U" turn and to create a case against the accused. There is clear reference of use of one bat. There is no reference of use of cricket bat. If a word "bat" simpliciter is used, therefore, according to Mr. Soni, should not be considered as bat used for playing base ball. The length of the bat has been described by police in the forwarding letter addressed to the Forensic Science Laboratory. It was more than 2.1/2 ft in length and according to police, this bat was stained with blood. In the same way, one stick was also recovered. It was also found stained with blood. But the prosecution has not attempted to explain that who was actually holding CR.A/831/1999 10/49 JUDGMENT these two articles at the time of occurrence. There is no reference in the report of Forensic Science Laboratory that what happened to the blood stained bat sent for analysis. In the same way, iron pipe also has been recovered during investigation by police, but there is no reference in the report of Forensic Science Laboratory as to whether the same was received for examination or what is the result of the same. Though there is incised wound on the body of the accused no. 2 Jitendra, it appears that no weapon has been sent for analysis by police, recovered from the accused of the cross case. At least one sharp cutting weapon has been used while inflicting incised injury to accused Jitendra. When police charge- sheets two groups of accused for one incident and both these groups are required to be tried as accused of cross case, then all such documents are required to be produced in both the cases simultaneously. Otherwise it may result into some serious prejudice. It is submitted by Mr. Soni that in the present case, the accused have suffered such prejudice for want of certain such documents by investigating agency. This is unfair. 6. One more submission by Mr. Soni is that the learned trial Judge ought to have acquitted persons only on the ground that both the eye witnesses, that too, injured eye witnesses have failed to explain visible injury that could have been inflicted by a weapon found on the body of the persons accused. There are number of decisions, especially when an eye witness is interested in the result of the case and is a close relative of the victim, then non-explanation of the injury on the body of the person accused remains unexplained, then version of such witness should not be accepted. The Apex Court has observed that this fact is nothing but an attempt to suppress genesis of the crime and the idea may be to CR.A/831/1999 11/49 JUDGMENT implicate the accused falsely for the reason best known to such witnesses. In the present case, enemical terms were there between the parties. It also emerges that some political rivalry is also there and therefore, brutal act done by the members of the mob has been there under the shelter of the accused by the family members of both the deceased and injured Gautambhai. Only Dakshaben has supported, to an extent, the case of the prosecution. Version of Gautambhai PW. 2 ought not to have been accepted as trustworthy. In the examination-in-chief, he has supported the case of the prosecution to material extent. During the cross-examination, he has given a complete go by to the facts stated by him on oath in examination-in-chief. The learned trial Judge has decided to issue notice for purgery. When the trial Judge has decided that the witness Gautambhai P.W. 2 is lying before the Court then any part of his version ought not to have been used as sound piece of evidence either direct or corroborative, to link the accused with the crime. Another witness including P.W. 8 Hansaben, wife of Gautambhai Mody has turned hostile. The prosecution was mainly relying on the evidence of Dakshaben, Gautambhai and Hansaben. Gautam and Hansaben have been treated hostile by prosecution. Hansaben has been posed as an eye witness. She was capable of explaining injuries on the body of the persons accused. But she has not supported the case of the prosecution. On the contrary it is on record that this Hansaben had made a telephonic call to police control room with a view to seek help from police and for necessary protection. On receipt of such call, police mobile van had moved towards place of incident and ultimately had reached in a couple of minutes at the place of incident. Prosecution witness Hansaben has denied in her deposition that she had ever made such telephonic call. But this fact, has emerged CR.A/831/1999 12/49 JUDGMENT from the record that first caller was Hansaben who informed the police about the incident. In such a situation, non-explanation of the injury on the body of the persons accused by the prosecution ought to have been treated vital and the learned Judge has grossly erred in appreciating the evidence of prosecution in this background. 7. The material panch witnesses have turned hostile and the learned trial Judge has placed reliance on the version of police officer who has drawn the panchnama. Panchnama has been tendered in evidence and has been exhibited. True it is that the Court can place reliance on the evidence of Investigating Officer or police officer who has drawn panchnama, but such police witness is supposed to prove the contents of the panchnama to the satisfaction of the court. The approach of two police witnesses who have been examined to prove panchnama and slips allegedly found by panchas are found casual. No serious weightage ought to have been given by the learned trial Judge and this material error goes to the root of ultimate finding. 8. There is conflicting evidence of Dakshaben as well as police officer who had taken the injured persons to the hospital for treatment including two deceased i.e. Balkrishnabhai and Rajendrabhai. Dakshaben claims that she was also taken in police mobile van to LG Hospital for treatment with Gautambhai,Balkrishna and Rajendrabhai where Balkrishna and Rajendra were declared dead by the doctor. But police officer who has been examined to prove this aspect has stated that he had taken only three who CR.A/831/1999 13/49 JUDGMENT had sustained grave injuries in the mobile van. It is in evidence that family members had rushed to LG hospital and they were there in the hospital, when Police Inspector reached LG Hospital on receipt of intimation from his Amraiwadi police station. The injury between two fingers of Dakshaben appears to be superfluous. It is very likely that she may have sustained these injuries while managing the weapon that may have been there in the hands of either any of the two deceased or Gautambhai because there is incised wound on the body of the person accused Jitendra. This probability has not been even considered. It appears that as medical certificates were not there on record being documents exhibited, the Court may not have dealt with this aspect so minutely, but this Court at least, can appreciate the matter as these injury certificates are very well there on the record with list exh. 11. Surprisingly objection raised by defence counsel when these medical certificates were tendered in evidence was overruled by the learned Presiding Judge, but the learned Presiding Judge decided not to exhibit these documents on the ground that Doctor has not been examined by the prosecution. These documents are material documents. They were produced with list with specific purpose. The Public Prosecutor did not act fairly, otherwise, the Doctor could have been called as a witness to prove these injury certificates showing the nature and number of injuries on the body of the persons accused. 9. In the present case, the trial of the accused has not been proceeded in a fair manner and that has also resulted into serious prejudice. It is settled that cross case should be tried simultaneously and by the same Judge. We had insisted that the learned Additional Public Prosecutor appearing for the State should obtain a copy of the judgment of acquittal in the cross case alongwith CR.A/831/1999 14/49 JUDGMENT the copy of the charge and the proceedings drawn. The hearing prolonged for some time and our idea was to provide an opportunity to the learned Additional Public Prosecutor so that these documents can come before the Court. In absence of copies of these documents, we have to accept the word of the learned counsel appearing for the parties being a responsible officer of the Court and we