IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 860 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- VAJSI DEVANAND AHER Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 860 of 1994 MR PM THAKKAR for Petitioners MR IM PANDYA, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 28/01/2003 ORAL JUDGEMENT (Per : MR.JUSTICE AKSHAY H.MEHTA) 1. This appeal has been filed by the original accused nos. 1 to 5 and 8 and 9 of Sessions Case No. 166 of 1993 of Sessions Court, Jamnagar challenging the judgment and order of conviction and sentence passed by the Ld. Addl. Sessions Judge dated 4th July, 1994. The appellants have been convicted for offences under sections 143, 147, 148 and 302 read with section 149 of the Indian Penal Code (for short 'IPC'). For committing offence u/S. 143 of the IPC they have been sentenced to suffer SI for one month and to pay fine of Rs.100/-, for committing offence u/S. 147 they have been sentenced to suffer SI for two months and to pay fine of Rs.200/-, for committing offence u/S. 148 of the IPC they have been sentenced to suffer SI for three months and to pay fine of Rs.300/- and for committing offence u/S. 302 read with section 149 of the IPC they have been sentenced to suffer imprisonment for life and to pay fine of Rs.400/-, in default SI for one month. Original accused nos. 6 and 7 have been acquitted by the learned trial Judge. 2. The facts relevant for deciding this appeal can be stated as follows :- 2.1. The incident in question took place on 21st June, 1993 at about 7.15 p.m. in the outskirts of village Kalyanpur. According to the prosecution, on that day deceased Parbat had been to the hotel of his brother Rayde, which is situated near the sign board of village Modpar in the afternoon and he stayed at the hotel till the evening. In the evening at about 7.00 p.m. he and his brother Rayde closed the hotel and started returning home on a motor cycle. When they reached near the field of one Pala Lakha, Devanand i.e. appellant no. 1 rolled down a cart from the field of Pala Lakha on the road on which the deceased and his brother Rayde were going. As a result of sudden obstruction caused by the cart, the motor cycle dashed against the cart and had fell down on the ground. The deceased and his brother Rayde also fell down on the ground. At that time appellant nos. 1, 2, 5 and 7 came there with sticks and appellants nos. 3, 4 and 6 with iron pipes. They came there shouting to kill the deceased and his brother. It is the case of the prosecution that appellant no. 6 gave a blow with iron pipe on the back side of the head of the deceased and as a result of that, he started bleeding and he ultimately fell down on the ground. Immediately thereater appellant no. 7 gave a stick blow on the left leg of the deceased and appellant no. 2 gave a stick blow on the back of the deceased. He was also assaulted by appellant no. 5, who gave a stick blow on the left leg; whereas appellant no. 4 gave a blow with iron pipe again on the left leg of the deceased. Appellant no. 3 gave a blow with iron pipe on the right leg of the deceased and again appellant no. 6 gave a blow with iron pipe on the left hand of the deceased. Original accused nos. 6 and 7 during this assault had caught hold of Rayde. When the deceased and his brother were assaulted they started raising shouts for help and on hearing their shouts prosecution witnesses Vira Lakhman and Naran Vira came there. On their arrival the assailants left the deceased and his brother and escaped from the scene. Appellant no. 7 went away on motor bike, whereas some appellants ran away and some went away in the cart of original accused Devanand Raja. 2.2. The brother of the deceased Rayde requested Naran Vira to go to his residence and inform his brother Abhabhai Ramabhai at village Kalyanpur about the incident. Kalyanpur is hardly at a distance of one and half K.M. from the place of the incident. Accordingly Naran Vira went to the house of Abhabhai and told him about the incident. Abhabhai, therefore, immediately in company of his brother Hamir Meraman went to the place of incident in the six seater rickshaw of Meraman. Naran Vira also went with them. When they reached the scene of offence, they saw Parbat i.e. the deceased lying in unconscious condition. His other brother Rayde and Vira Lakhman were standing. Immediately the injured was made to lie in a rickshaw and all the four brothers went to Bhanvad Government dispensary for treatment of the injured. On way to Bhanvad, Abhabhai asked Rayde as to what had happened and Rayde narrated the incident to him in detail. It is the case of the prosecution that after receiving initial treatment, they were advised to take deceased at Irvin Hospital at Jamnagar and, therefore, ambulance was called and brother of the deceased Abhabhai took him to the Irvin Hospital. Rayde and others i.e. Vira Lakhman and Naran Vira came back to village Kalyanpur. At the Irvin hospital the Medical Officer on duty after examining Parbat declared him dead. Thereafter, the inquest Panchnama was drawn and the FIR was lodged at about 2.15 hours on 22nd June, 1993. The FIR was recorded by P.S.I. Rameshchandra Bhikhamdas Nimavat then serving with Jamnagar City "B" Division Police Station, which was forwarded to Bhanvad Police Station since the offence was committed within its jurisdiction. 2.3. On receiving the information the usual investigation commenced and in the course of the same, present appellants and other original accused were arrested. The investigating agency also recorded statements of various persons who were connected with this incident and drew various panchnamas including that of scene of offence, dead body was sent for post mortem examination and after receiving the post mortem notes they were placed in the record of the investigation. On conclusion of the investigation, charge-sheet was filed in the court of the Ld. Judicial Magistrate First Class at Bhanvad Court and the Ld. Magistrate after complying with the formalities committed the case to the Court of Sessions as the offence u/Ss. 302 and 149, etc. of the IPC are exclusive triable by the Court of Sessions. 3. At the trial, the Ld. Addl. Sessions Judge, Jamnagar framed the charge against the present appellants and original accused nos. 6 and 7 at Exh. 4, in which they were charged for having committing offences which have been already described above. All the appellants and the original accused denied the guilt and claimed to be tried. 4. At the trial, prosecution relied on oral as well as documentary evidence. In support of its case, the prosecution examined P.W. 1 Dr. Satish Dinkar Kalele at Exh. 18, P.W. 2 Abha Rama at Exh. 24, P.W. 3 - Rayde rama at Exh. 25, P.W. 4 - Naran Vira at Exh. 27, P.W. 5 - Vira Lakhman at Exh. 28, P.W. 6 - Nathu Karsan at Exh. 29, P.W. 7 - Prakash Bhagvanji at Exh. 31, P.W. 8 - Rama Karsan at Exh. 31, P.W. 9 - Lakhman Mera at Exh. 32, P.W. 10 - Naran Jesabhai at Exh. 34, P.W. 11 Arjan Nathu at Exh. 35, P.W. 12 - Samant Sajan at Exh. 36, P.W. 13 - Pala Vira at Exh. 37, P.W. 14 - Devshi Khima at Exh. 38, P.W. 15 - Arjan Khima at Exh. 39, P.W. 16 - Natha Devanand at Exh. 40, P.W. 17 Mahendra Jalamsinh Parmar at Exh. 42, P.W. 18 - Ranjitsinh Nagbha Rana at Exh. 72 and P.W. 19 - Rameshchandra Bhimadas Nimavat at Exh. 77. The prosecution also relied on documentary evidence such as complaint at Exh. 87, the post mortem report at Exh. 90, the panchnama of the scene of offence Exh. 43, the arrest panchnama at Exh. 46, etc. At the end of recording of the evidence by the prosecution, the appellants and other original accused were put all the circumstances appearing against them in the evidence in the statement u/S. 313 of the Criminal Procedure Code. However, except for denying the case of prosecution, they do not seem to have raised any specific defence. In short their defence appears to be that of a general denial. 5. At the end of the trial, the learned Judge, as stated above, came to the conclusion that the guilt of the appellants was established beyond any reasonable doubt and he convicted them for various offences and sentenced them to suffer various terms of the imprisonment. Original accused nos. 6 and 7 were acquitted as benefit of doubt was given to them. In these circumstances, the present appeal is filed. 6. Mr. P.M. Thakkar, Ld. senior counsel appearing for the appellants has submitted that the judgment and order of conviction and sentence passed by the learned trial Judge are contrary to the evidence on record and no conviction can be based in this case, as the prosecution has hopelessly failed to establish the guilt of the present appellants. He has further submitted that the evidence adduced by the prosecution in support of its case is totally unreliable and on the strength of such evidence the appellants cannot be convicted for serious offence u/S. 302 read with section 149 of the IPC. According to him, the prosecution has cooked up a false case against the appellants because the complainant and his brothers were entertaining a serious grudge against the appellants. In support of this contention, he has also submitted that considering the fact that despite several opportunities the complaint was not lodged at the first available opportunity, but it was lodged at a very belated stage which go to show that it was lodged after due deliberations and having full knowledge of the injuries suffered by the deceased as, by then the inquest panchnama was already drawn. In other words, according to Mr. Thakkar, the present appellants alongwith the original accused have been falsely roped in and they have been falsely assigned the weapons and the roles in light of the contents of the inquest panchnama which clearly reveals the injuries suffered by the deceased. He has further submitted that though according to the prosecution apart from Rayde, Via and Naran were also eye witnesses of the incident. However, from the evidence it clearly transpires that Naran and Vira had never seen this incident and they had been posed as eye witnesses only with a view to support the prosecution case and and to lend more credibility to the evidence of brother of deceased, namely Rayde. He has also submitted that the trial Court has not believed the evidence of Naran and Vira and hence Rayde is the sole eye witness, on whose evidence extensive reliance has been placed by the trial Court. According to Mr. Thakkar, his evidence also does not inspire any confidence. Considering the other circumstances on record, no conviction can be based on the evidence of such solitary eye witness. It is his submission that the theory of old enmity cannot be accepted because so far the panchayat election is concerned, it was the complainant who had lost the election and not appellant no. 6 and, therefore, any grudge that would be there, it would be on the part of the complainant and not the appellants. He has further submitted that so far the fair price shop is concerned, the brother of appellant Laxman did not get the permit. As against that, the same was given to the deceased Parbat. However, that was much prior to the present incident and the person concerned, namely Laxman had expired about six years back and, therefore, there was no reason for the appellants to pick up any quarrel against the deceased and his brother on that count. Lastly, he has submitted that considering the fact that the medical evidence on record clearly shows that not a single injury out of 16 injuries suffered by the deceased was a fatal injury and except for injuries nos. 1, 2, 15 and 16 the other injuries were of simple nature and therefore, it cannot be said, even if it is believed that the appellants were the real assailants, they had any intention to commit murder of the deceased. In that event it would be a case for committing offence u/S. 324 or section 325 of the IPC and nothing more that that. Lastly he has submitted that the present appeal be allowed and the judgment and order of conviction and sentence be set aside. 6.1. As against that, Mr. I.M. Pandya, Ld. APP has submitted that the prosecution, by leading cogent and reliable evidence, has amply proved that the appellants had committed the offences with which they have been charged and the finding given by the trial Court on this count is absolutely just and proper and this Court should not disturb it. He has further submitted that though Rayde is the sole eye witness, his evidence is trust worthy and it inspires confidence and, therefore, there is no reason for not believing and relying on the evidence of this witness. He has further submitted that the evidence of Rayde has been fully corroborated by the medical evidence on record and especially the post mortem notes. Lastly he has submitted that when the evidence is found to be totally reliable and the conviction absolutely legal, this Court may not interfere and disturb the judgment of the trial Court and appeal may be dismissed. 7. With a view to reappreciate the entire evidence on record and the contentions raised on behalf of the appellants as well as the respondent - State, we have carefully gone through the entire record of this case. The medical evidence in this case comprises the deposition of Dr. Satish Dinkar Kalele P.W. 1 Exh. 18. He has carried out the post mortem of the deceased on 22nd June, 1993 at about 9.40 a.m. On examination he has found 16 external injuries suffered by the deceased and the same have been adequately described in his evidence as well as in the notes of post mortem examination, which have been brought on record at Exh. 19. According to the witness, injury nos. 1, 2, 15 and 16 were of serious nature. The others were simple injuries. In the opinion of this witness, the death was caused due to shock and haemorrhage on account of multiple injuries to the body. The evidence of this witness, therefore, clearly establishes that the deceased had died on account of the injuries suffered by him in the incident, which took place on 21st June, 1993. We are, therefore, in agrement with the finding given by the trial Court that the deceased had died homicidal death. 8. To appreciate whether the appellants were guilty of committing this offence, we would first turn our attention to the evidence of complainant - Abhabhai Ramabhai, who has lodged complaint with the police at Irvin Hospital at Jamnagar. This witness is not an eye witness and whatever he has stated in the complaint/FIR is totally based on the information that was given to him by his brother Rayde, who is an eye witness to the incident. This witness has, however, narrated the incident in detail before the police officer, who recorded his complaint in which it has been stated in what manner the incident took place and for what reason. In the complaint he has implicated all the present appellants and has described their respective roles. Since we have already stated the respective roles in the foregoing paragraphs, it is not desirable to repeat the same here. Suffice it to say that the complainant has stuck to the said version in his examination-in-chief. In the cross-examination the defence has tried to bring on record that he has deliberately not given complaint at Bhanvad Police Station though the police station is situated at a very short distance from the Government dispensary where deceased was initially taken by the complainant and his brothers. When he was asked why he did not go to Bhanvad Police Station for lodging complaint, this witness has replied that in his opinion the police of Bhanvad Police Station were likely to favour the appellants and, therefore, he thought it fit not to approach them but to file complaint at Jamnagar. The defence has also made an attempt to bring out on record that he had criminal antecedents and with that reason it was put to him that he was arrested by the police in the year 1990 in connection with the prohibition case and that he i.e. the witness entertained a suspicion that it was appellant no. 7 who had played the role in getting him arrested. He was also asked by the defence that against his brother, chapter cases were filed and again the same were filed by appellant no. 7 and, therefore, the witness was falsely implicating the appellant no. 7 and other appellants in this case. These suggestions have been denied by the witness. Though this witness has been extensively cross-examined by the defence, nothing much of any importance from the point of view of the appellants has been brought out in his evidence. 9. The next witness is Rayde Ramabhai P.W. 3 Exh. 25, who is the eye witness to this incident. It is his say that on the day of incident his brother Parbat had been to his hotel with a tiffin carrying food for him and he had stayed there till the evening at about 7.00 p.m. Around 7.30 p.m. they closed the hotel and were returning to Kalyanpur on the motor cycle. When they reached near the field of Babu Lakha, appellant no. 1 pushed a cart from the field of Babu Lakha on the road on which this witness and his brother were proceeding on motor cycle. The cart all of a sudden obstructed their way. As a result of this, the witness, who was driving the motor cycle immediately applied brake but the motor cycle dashed with that cart and they fell down and in the meanwhile the appellants and other accused came there shouting to kill the witness and his brother. The witness has also stated that appellant no. 6 gave a blow with iron pipe on the back side of head of deceased and appellant no. 9 gave a blow with stick on the left leg of the deceased. Appellant no. 2 gave a blow on the back of the deceased with stick, whereas appellant no. 5 gave a blow with stick on the leg of the deceased. Appellant no. 3 also gave a blow with pipe on the leg of the deceased, whereas appellant no. 4 gave a blow with pipe, also on the left leg of the deceased. According to this witness, at the time of assault he was caught hold by original accused nos. 6 and 7. At this time they raised shouts and on hearing their shouts Vira Lakhman and his son Naran Vira arrived there. He has further stated that on seeing them the appellants ran away from the place of offence. He has also stated that since he was not in a position to drive motor cycle, he asked Naran to go to his place and inform his brother about the incident. When is brothers came there, he went alongwith them in the six seater rickshaw. First they went to Bhanvad Government dispensary for taking treatment for injured Parbat and thereafter he returned to Kalyanpur and his elder brother Abhabhai had gone to Jamnagar taking injured to Irvin Hospital for further treatment. In the cross-examination of this witness the defence has tried to challenge this version and has tried to establish that he was never at the scene of offence and that he was not an eye witness. He has been extensively cross-examined by different counsels for the defence. He has, by and large, withstood the cross-examination. In answer to the question as to why he did not go to Bhanvad Police Station for lodging complaint, he has replied that he was not in the proper state of mind at that time and that was the reason he did not go to Bhanvad Police Station for lodging complaint nor he did accompany his elder brother to Jamnagar, since according to him, he is illiterate, whereas his brother was in a better position to inform the police about the incident. This witness has been confronted with certain contradictions and omissions vis-a-vis his police statement and especially with regard to the fact that he had never stated before the police that accused nos. 6 and 7 had caught hold of him at the time when the assault was going on on the deceased. Though he has insisted that this fact has been stated, the evidence of investigating officer shows that he had not stated so before the police. An attempt has also been made to bring out his criminal antecedents and several questions have been put to him on that count. This witness has stated that the cases against him have been falsely filed. However, so far the main story of prosecution is concerned, the defence has not been able to dislodge this witness and his evidence by and large seems to be reliable. 10. The other two witnesses, namely Naran Vira and Vira Lakhman P.Ws. 4 and 5 are concerned, from their evidence it clearly appears that they have arrived at the scene of offence after the assault is over. Inspite of that, they have made an attempt to show that they had witnesses the entire incident and had seen the appellants delivering blows on the deceased. The trial Court had not found their evidence trustworthy. On going through the evidence of these witnesses, we are also of the opinion their evidence does not deserve much confidence and the finding given by the trial Court is proper. 11. The other evidence comprises witnesses who have acted as panchas while drawing various panchnamas. They have turned hostile and their evidence need not be dealt with in this judgment. 12. This brings us to the evidence of police witnesses. P.W. 17 - Mahendra Jalamsinh Parmar, who at the relevant time, was discharging duty at Bhanvad Police Station as Police Sub Inspector. He has stated that on 22nd June, 1993 he had received a written complaint from the Jamnagar City Police Station through Police Constable Lalubha Gelubha, which was recorded by the Police Sub Inspector Mr. R.B. Nimavat at about 10.00 p.m. previous night. On receipt of the complaint, he registered the offence at C.R. No. 47 of 1993 for offences under sections 147, 148, 302 of the IPC and took over the investigation. In the course of investigation, he recorded statements of the witnesses, namely Rayde Rama, Vira Lakhman, etc. He also arrested the appellants and other original accused and seized the weapons produced by the appellants and other original accused. He drew the panchnama of the scene of offence, collected blood stained earth, broken glasses of mirror of motor bike, etc. By drawing