CR.A/9819/1998 1/29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 98 of 1998 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 ? ========================================= JAMNAPRASAD GOVINDPRASAD PASI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MS SADHANA SAGAR for Appellant(s) : 1 - 5, 7,MR JB DASTOOR for Appellant(s) : 6, MS DS PANDIT, LD.ADDL.PUBLIC PROSECUTOR for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE D.N.PATEL Date : 30/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.N.PATEL) 1. The present appeal has been preferred against the judgment and order of conviction and CR.A/9819/1998 2/29 JUDGMENT sentence dated 07th January 1998 passed by the learned Additional City Sessions Judge, Court No.8, Ahmedabad City, in Sessions Case No.180 of 1996, whereby the appellants-orig. convicts (hereinafter referred to as 'the appellants') have been convicted for the offence punishable under Sections 143, 147, 148, 302 read with Section 149 and also under Section 307 read with Section 149 of the Indian Penal Code. So far as the offence punishable under Section 143 of the Indian Penal Code is concerned, the appellants have been sentenced to undergo rigorous imprisonment for 06 months; for the offence punishable under Section 147 of the Indian Penal Code, they have been sentenced to undergo rigorous imprisonment for one year; for the offence punishable under Section 148 of the Indian Penal Code, they have been sentenced to undergo rigorous imprisonment for one year; for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code, the appellants have been sentenced to undergo Life Imprisonment and a fine of Rs.1000/- and in default to undergo rigorous imprisonment for 06 CR.A/9819/1998 3/29 JUDGMENT months; and for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code, they have been sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs.1000/- and in default to undergo rigorous imprisonment for 06 months. 2. If the case of prosecution is unfolded, the brief facts in nutshell are as under : 2.1 It is the case of prosecution that the incident has taken place on 05th March 1996 at 01-00 p.m. at Ghodasar, City of Ahmedabad. It is further the case of prosecution that the appellants had some dispute with the victims and previously a complaint was also filed by Lallubhai (deceased), against Ramsharan-father of appellant no.3 herein and, therefore, the appellants on 05th March 1996 (next day of holy) assaulted Lallubhai Bhagvandin Pasi (deceased) with deadly weapons. Several injuries were caused on head of Lallubhai, including fractures on head. CR.A/9819/1998 4/29 JUDGMENT 2.2 It is also the case of the prosecution that those who have intervened in the said assault i.e.PW-2 and PW-4, were also assaulted by the appellants and a number of injuries have been caused even to the said injured eye-witnesses. PW-2-Brijlal @ Gullu Ramlakhan Pasi has received fractures and he was hospitalized from 05th March 1996 to 29th March 1996. Another injured eye-witness PW-4-Bhagwandin Barsati Pasi has received head injuries. 2.3 The FIR bearing C.R. No.I-93 of 1996 was reduced into writing on 05th March 1996 at 14-25 hours at Vatva Police Station for the offence which took place at 13-00 hours on that day. Thus, immediate is the FIR, wherein the appellants have been referred, with weapons and the role played by them is also narrated. The investigation was carried out. The chargesheet was filed and Sessions Case No.180 of 1996 was registered against them and upon recording the evidence, the trial Court has convicted and sentenced the appellants mainly for the offence punishable under Section 302 read with Section CR.A/9819/1998 5/29 JUDGMENT 149 of the Indian Penal Code and hence, present appeal. 3. We have heard the learned counsel appearing for the appellants. It is submitted by the learned counsel appearing for the appellants that there are a number of omissions, contradictions and improvements in the evidence of the prosecution witnesses. This aspect of the matter has not been appreciated by the trial Court. Hence, the judgment and order of conviction and sentence passed by the trial Court deserves to be quashed and set aside. 3.1 It is also vehemently submitted by the learned counsel appearing for the appellants that the scene of offence has been changed frequently by the prosecution witnesses and, therefore, the so-called eye-witnesses are not the eye- witnesses, but they are got up witnesses. It is also submitted by the learned counsel appearing for the appellants that the injured eye- witnesses are otherwise also highly interested and partisan witnesses. It is also submitted that the dying declaration of one of the CR.A/9819/1998 6/29 JUDGMENT injured eye-witnesses was recorded, but he has not given the names of the appellants. 3.2 It is also submitted that there are neither blood stains on the weapon scythe, which is popularly known as 'Dhariya', as submitted by the learned counsel appearing for the appellants; nor there is any injury noticed by this weapon. There is no incise wound upon the body of the deceased and, thus, orig. accused no.6 has not used the weapon at all. This aspect of the matter has not been appreciated by the trial Court. 3.3 It is also submitted by the learned counsel appearing for the appellants that the Yadi which is presented by the prosecution at Ex.26, does not reveal the names of the appellants and therefore also, the benefit should be given to the appellants and the judgment and order of conviction and sentence passed by the trial Court deserves to be quashed and set aside. 3.4 It is further submitted that there is absence of common object and in fact the prosecution CR.A/9819/1998 7/29 JUDGMENT has failed to prove the common object of the appellants to commit murder of Lallubhai Pasi and, therefore, the judgment and order of conviction and sentence passed for the offence punishable under Sections 143, 147, 148 and 149 of the Indian Penal Code deserves to be quashed and set aside. 4. We have heard Ms.D.S. Pandit, learned Additional Public Prosecutor, appearing on behalf of the respondent-State, who has mainly submitted that the prosecution has proved the offence committed by the appellants beyond reasonable doubt. There are eye-witnesses who have given clear depositions before the trial Court. These witnesses are natural witnesses and they are reliable as well as trustworthy witnesses. Two of them i.e. PW-2 and PW-4 are injured eye-witnesses. PW-2-Brijlal @ Gullu Ramlakhan Pasi- has sustained fracture on his leg. He was hospitalized from 05th March 1996 to 29th March 1996. The other eye-witness Bhagwandin Barsati Pasi-PW-4 has received several injuries on head-at parietal region and CR.A/9819/1998 8/29 JUDGMENT occipital region. Looking to their depositions, no error has been committed by the trial Court in convicting the appellants. 4.1 It is submitted by the learned Additional Public Prosecutor that the victims had no weapons in their hands, whereas the accused came with weapons, chased Lallubhai Pasi, assaulted him so severely that Lallubhai Pasi expired near the spot. This as a cumulative effect, is proving their common object of committing murder of Lallubhai Pasi. 4.2 It is also submitted by the learned Additional Public Prosecutor that the appellants were having iron pipes, sticks and scythe in their hands. A number of injuries have been inflicted to the witnesses. Even those who have interfered to save the life of Lallubhai Pasi (deceased) were also severely be beaten up by the appellants and they have also sustained head injuries and fractures. The doctors who have given Injury Certificates have also been examined by the prosecution. CR.A/9819/1998 9/29 JUDGMENT 4.3 It is also submitted by the learned Additional Public Prosecutor that looking to the report of the Forensic Science Laboratory, the blood group of the deceased is found present on the clothes and weapons recovered by the prosecution at the behest of the appellants. No error has been committed by the trial Court in appreciating the evidence in convicting the appellants mainly for the offence of committing murder of Lallubhai Bhagwandin Pasi under Section 302 read with Section 149 of the Indian Penal Code. 5. Having heard the learned counsel appearing for the both the sides and looking to the evidence on record, it appears that the whole incident has taken place on 05th March 1996 at about 13- 00 hours. Looking to the deposition of PW-1- Digpal Pasi, who is the complainant, he has clearly stated that it was the festival day of 'Dhuleti' (the next day of 'Holy' festival). Lallubhai Pasi (deceased) had invited him for lunch. He has also stated that previously Lallubhai and Ramsharan-father of orig.accused CR.A/9819/1998 10/29 JUDGMENT no.3 had a dispute in last 'Diwali' festival and a complaint was also filed by Lallubhai (deceased) against the said Ramsharan. The matter was going on at Mirzapur Court, District Ahmedabad (Rural). Looking to the deposition of this witness at Ex.12, it appears that he has seen the incident. He has stated that Lallubhai (deceased) was running and the appellants were chasing. He has given the names of all the appellants and also weapons in their hands and he has also stated that they are appellant nos.1, 2 and 6, who had inflicted head injuries to Lallubhai Pasi. Likewise, orig. accused no.4 had also inflicted injuries on hand and orig. accused no.5 had also inflicted iron pipe blow and, therefore, thereafter he had fallen down and he was taken to L.G. Hospital at Ahmedabad. PW-2-Brijlal Ramlakhan intervened and he was also assaulted by orig. accused nos.1 and 7, and injuries on head and left leg were also inflicted by these accused to PW-2, whose deposition is at Ex.16. Looking to the deposition of this witness and looking to his cross-examination, we find that CR.A/9819/1998 11/29 JUDGMENT he is a trustworthy and natural witness. He has also informed the Police. FIR bearing C.R.No.93 of 1996 registered with Vatva Police Station is filed by him immediately on 05th March 1996 at 14-25 hrs. after the incident has taken place. Thus, within a period of 01 hour and 25 minutes, the FIR (Ex.83) was lodged by this witness, wherein he has also given the names of the appellants along with the weapons and the role played by them. 6. Looking to the deposition of PW-2-Brijlal Ramlakhan at Ex.16, it appears that he is an injured eye-witness. He has sustained the following injuries : (1) CLW 6 x 1 cms. on forehead. (2) CLW 1 x 1 cm. on left leg. (3) Fracture on fibia and tibula at left leg. This witness had tried to intervene to save the life of Lallubhai Pasi and he has also clearly given the names of appellants along with the weapons and the role played by them. He has also stated that he was also CR.A/9819/1998 12/29 JUDGMENT assaulted by orig.accused nos.1 and 7, who had inflicted injuries by iron pipe on his left leg and head. He had received fracture on his left leg. He had also fallen down and was also taken at L.G. Hospital, Maninagar at Ahmedabad, who was examined by PW-8-Dr.Satishbabu Dindayal (Ex.24) and issued Injury Certificate at Ex.25. He was hospitalized from 05th March 1996 to 29th March 1996. Looking to the deposition of this witness, it appears that he had become unconscious because of the injuries and even after he was discharge from the hospital, he could resume his duty with Cadila Laboratories only from 25th December 1996. Looking to his deposition i.e. Examination-in-Chief as well as Cross-Examination, they are the appellants who have caused head injuries to Lallubhai (deceased) by deadly weapons and they have not spared, even the interveners i.e. PW-2 and PW- 4. The fracture was caused to PW-2 and head injuries were inflicted to PW-4, which reveal the common object and mens rea of the accused. Looking to the deposition of PW-2, it is also clear that the appellants had also made up in CR.A/9819/1998 13/29 JUDGMENT their mind that those who would try to save the life of Lallubhai (deceased), do not reach to Lallubhai and they would see that they are at least injured and, therefore, PW-2 and PW-4 were severely beaten up by the appellants. The cumulative effect of this reveals the common object which the appellants were having. Looking to his deposition, he is a trustworthy and natural witness. 7. Looking to the deposition of PW-4-Bhagwandin Barsati Pasi-father of the deceased Lallubhai, he is also an injured eye-witness, who is examined at Ex.18. Looking to his deposition also, he has also given a detailed narration about the appellants with their weapons and the role played by them. He has also stated that the orig.accused nos.1, 2, 3, 4 and 6 had inflicted injuries to Lallubhai (deceased), whereas orig. accused nos.1 and 7 had inflicted injuries to PW-2; and orig. accused nos.3,4 and 5 had inflicted injuries to PW-4. There is no inconsistency in his narration as to the weapon CR.A/9819/1998 14/29 JUDGMENT and role played by each accused. PW-4 had sustained the following injuries : (1) CLW Extent of 3 x 1 cm. in size over scalp (parietal). (2) CLW Extent of 3 x 1 cm. in size over scalp (parietal). (3) CLW Extent of 4 x 1 cm. in size over occipital. (4) Minor abrasion over left (5) Minor abrasion over back elbow. Looking to the deposition of PW-4, it appears that he has been examined by PW-22- Dr.Firozbhai B. Munshi, who has been examined at Ex.48, who has issued Medical Certificate at Ex.49 to PW-4. Looking to the aforesaid injuries, it appears that he had also sustained vital injuries on palatal region and occipital region. Looking to the deposition of PW-4, his presence is natural at the scene of offence and he is a trustworthy and reliable witness. If the cumulative effect of evidence of PW-1, PW-2 and PW-4 is read with other evidence, no error has been committed by the trial Court in CR.A/9819/1998 15/29 JUDGMENT appreciating the depositions of eye-witness PW- 1 and depositions of injured eye-witness PW-2 and PW-4 and thereby, convicting the present appellants. The appellants have assaulted Lallubhai (deceased) by deadly weapons. They chased Lallubhai (deceased) and those who had tried to intervene to save the life of Lallubhai (deceased), there were also not spared by the appellants. This aspect of the matter has been properly appreciated by the trial Court. 8. Looking to the deposition of PW-8-Dr.Satishbabu Dindayal, whose deposition is at Ex.24, who examined PW-2 and gave injury certificate of PW-2 at Ex.25 and looking to the deposition of PW-22-Dr.Firozbhai Munshi, whose deposition is at Ex.48, who examined PW-4 and gave Injury Certificate of PW-4 at Ex.49, it appears that the injured eye-witnesses have received serious injuries, including the fracture and head injuries. PW-1 was hospitalized for considerable longer period from 05th March 1996 to 30th March 1996. Looking to the Injury CR.A/9819/1998 16/29 JUDGMENT Certificates of these injured witnesses and looking to their depositions, it appears that orig. accused nos.1 and 7 inflicted injuries to PW-2 on left leg and head, which exactly match with the Injury Certificate of PW-2 (Ex.25). Likewise, looking to the deposition of PW-4 and looking to his narration of sustaining injuries at the hands of appellants and looking to the injury certificate of PW-4 (Ex.49), he has correctly narrated the whole incident. Thus, there is enough corroboration from Exs.25 and 49 to their depositions. It is submitted by learned counsel appearing for the appellants that these witnesses are got up witnesses. They are highly interested and partisan witnesses and, therefore, very little is the evidentiary value of these witnesses. This contention is not accepted by this Court mainly for the reason that these two witnesses have sustained severe and serious injuries. Their presence at the scene of offence is natural one. PW-2- brother-in-law of deceased was invited for lunch on the festival day of 'Dhuleti' and PW- 4 is father of the deceased. PW-2 has remained CR.A/9819/1998 17/29 JUDGMENT in hospital as an injured patient for much longer period looking to the depositions given by the doctors at PW-8 and PW-22, who have given injury certificates. The narration given by these two witnesses is corroborated by the FIR lodged by PW-1. Even looking to the scene of offence panchnama and looking to the report of the Forensic Science Laboratory, which will be narrated hereinafter, there is enough corroboration to the depositions of these two injured eye-witnesses. The date of incident was the day of ‘Dhuleti’ Festival (i.e. next day of festival of ‘Holi’). PW-4 is the father of Lallubhai (deceased). PW-2 was invited by Lallubhai (deceased) for lunch on the day of ‘Dhuleti’. Their presence at the scene of offence was absolutely natural one and without any exaggerations, these two witnesses have narrated the incident. Though they are rustic witnesses, there is no omission or contradiction in their statements. Immediate is the FIR and even looking to the hospital register entry at Ex.26, it has been mentioned therein that 4 to 5 persons have assaulted PW- CR.A/9819/1998 18/29 JUDGMENT 2-Brijlal Ramlakhan and PW-4-Bhagvandin Pasi and PW-1 was admitted in the Trauma Ward. Thus, right from Hospital Registration Entry at Ex.26 which was followed by FIR on the same day at 14-25 hours. Looking to Ex.26, which is the Hospital Register Yadi and looking to the FIR at Ex.83, it appears that the FIR is earlier in point of time. The FIR registered with Vatva Police Station is filed by PW-1 and was reduced into writing vide C.R. No.I-93 of 1996 on 05th March 1996 at 14-25 hours, whereas Ex.26 is recorded on 05th March 1996 at 15-20 hours. Thus, Ex.26 is subsequent in point of time and it is only for the injured eye-witnesses and not for the entire incident and, therefore, the contention raised by the learned counsel appearing for the appellants that no names of the accused were given in Ex.26 Yadi, is of no help to the appellants because already an FIR was registered on 05th March 1996 at 14-25 hours, which reveals the names of appellants, along with the weapons in their hands and the role played by them and the FIR also reveals the motive on the part of appellants. CR.A/9819/1998 19/29 JUDGMENT 9. Looking to the Injury Certificates of these two injured eye-witnesses and also looking to other contemporary evidence like scene of offence panchnama, report of the Forensic Science Laboratory and recovery panchnama, which corroborate the evidence of these two injured eye-witnesses, the depositions of these two witnesses cannot be disbelieved or cannot be brushed aside merely because they are interested or partisan witnesses. As a Rule of prudence, their depositions are required to be viewed with all circumspections. As stated hereinabove, even if their depositions are perused closely, they get enough corroboration from other evidence. Therefore, the judgment and order of conviction and sentence passed by the trial Court that the prosecution has proved its case beyond reasonable doubt against the appellants, is absolutely just and proper. 10. Looking to the depositions of PW-24-Dr.Jayendra Ratilal Modi, whose deposition is at Ex.51 and who has carried out postmortem of Lallubhai on 05th March 1996 at 05-05 p.m., it appears that CR.A/9819/1998 20/29 JUDGMENT the death of Lallubhai has been caused due to head injury mentioned in Column No.23 of the Postmortem note, which is at Ex.52. The following are the injuries sustained by Lallubhai (deceased) : 1. A deep CLW 3 cm. long on (R) parietal region above (R) ear. 2. A CLW on (L) frontal region 2 cm. long. 3. A CLW on (L) side forehead oblique 3 cm. Long. 4. A CLW mind parietal region 6 cm. long near midline posteriorly. 5. Hematoma corresponding to (1) and (2) superficial injuries 3 cm. x 5 cm., 8 cm. x 6 cm. in scalp. 6. # # (R) temporal bone. 7. Separation of (R) temporal and parietal bone from jt. out line. 8. A transverse ## of frontal bone of the skull 15 cm. long extending to base of the skull between both ears. CR.A/9819/1998 21/29 JUDGMENT 9. Congestion and hematoma on whole area of the brain frontal, parietal, occipital, base of the brain including bones, hudula, etc. 11. Looking to the deposition of PW-24 and looking to the aforesaid injuries, it appears that Lallubhai (deceased) had received serious injuries on head. He had also received two fractures at skull. There was a separation of right temporal bone and parietal bone from joint out line. Lallubhai (deceased) had expired near the spot. Looking to these injuries which are referred to in Column No.19 of the postmortem note and looking to the deposition of PW-22, it provides enough corroboration to PW-1, PW-2 and PW-4. 12. Looking to the deposition of PW-26-Hussainminya Saiyed (Ex.56), who is a Police Witness and who has drawn the scene of offence panchnama, arrest memo, and even the clothes of the accused and weapons of accused were also recovered by this witness, that he has given CR.A/9819/1998 22/29 JUDGMENT clear deposition without any exaggeration. The scene of offence panchnama has also been proved by this witness. Likewise, the weapons were also recovered at the behest of appellants. He has also narrated in his deposition, especially in paragraph no.2 of his deposition, that there is no change of scene of offence. What is narrated in the FIR at Ex.83 has also been stated by this witness in paragraph no.2 of his deposition. Much has been emphasized by the learned counsel appearing for the appellants that there is change of scene of offence. The whole incident has not taken place where the prosecution is alleging, but looking to the FIR at Ex.83 and looking to the depositions of eye- witness and injured eye-witnesses and looking to the deposition of PW-26, it appears that the whole incident has taken place near Rajaji Bharvad’s Chawl, Opposite Cadila Laboratories, Ghodasar, Ahmedabad. The distance between the railway track and huts and Bhagyalaxmi Society has also been mentioned by this witness. There is no discrepancy in narration of incident by the eye-witnesses and even looking to the scene CR.A/9819/1998 23/29 JUDGMENT of offence panchnama, it is getting corroborated. Accused were chasing Lallubhai with weapons. 13. Looking to the report of the Forensic Science Laboratory at Ex.70, the clothes of the accused were blood stained. They were having human blood stains of blood group ‘O’. Looking to this report, the blood group upon the clothes of the deceased was also ‘O’. Thus, upon the clothes of the accused, there were blood stains of the same blood group of the deceased. Even the weapons which have been recovered at the behest of appellants as per PW-26 were also having human blood stains. Thus, this report of the Forensic Science Laboratory at Ex.70 provides enough corroboration to the deposition of PW-1, PW-2 and PW-4. As a cumulative effect of these depositions and other evidence, it appears that the appellants came with deadly weapons in their hands, chased Lallubhai (deceased) who had previously filed a complaint against Ramsharan-father of orig. accused no.3 and a Court case was also going on in Mirzapur CR.A/9819/1998 24/29 JUDGMENT Court at Ahmedabad. This reveals their common object. Even those who had tried to intervene to save the life of Lallubhai (deceased), have also not been spared by the appellants. The head injuries and fractures have also been inflicted to them. The injured eye-witnesses were taken to hospital and the doctors have also given injury certificates. Immediate is the FIR. There is no omission