CR.A/891/1993 1/120 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 891 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? ========================================================= LILABHAI KHODABHAI BHARWAD & 3 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR YF MEHTA for Appellants MR PD BHATE, ADDL. PUBLIC PROSECUTOR for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date:28/12/2007 CAV JUDGMENT 1. This appeal is filed under Section 374[2] read with Section 386 of the Code of Criminal Procedure, challenging the legality and validity of CR.A/891/1993 2/120 JUDGMENT the order of conviction and sentence dated 7th August, 1993 passed by the learned Additional Sessions Judge, Ahmadabad[Rural] on conclusion of the trial of Sessions Case No. 101/88. Total 9 accused persons were tried for charge of offences punishable under Sections 143, 147, 148, 149, 34, 323, 324, 332, 353, 506[2], 426, 504 and 307 of I.P.C. and also under Section 135[1] of the Bombay Police Act. Pending the trial, the original accused no.2 Bhura Bhikha died his natural death and therefore, the trial against the said accused was treated as abated vide order dated 26th June, 1992 [Appellant no.2 Jivan Bhoja Bharwad died pending the appeal, so the appeal by the accused Jivan Bhoja shall have to be treated abated]. Learned trial Judge, by above judgment and order decided to acquit the accused nos. 6 to 9 from all charges levelled against them. The appellants, that is, the original accused nos. 1,3, 4 and 5 are the convicts, who have been held guilty for all the charges levelled against them except for the charge of offence punishable under Section 504 of I.P.C. and Section 135[1] of the Bombay Police Act. All the accused persons have been sentenced to undergo CR.A/891/1993 3/120 JUDGMENT rigorous imprisonment for 3 years for the charge of offences punishable under Sections 143, 147, 148 and 149 read with Section 307 of I.P.C., and to pay fine of Rs. 500/- each. In default of payment of fine, they have been sentenced to undergo simple imprisonment for 3 months. For the charge of offences punishable under Sections 143, 147, 148 read with Section 149 of I.P.C., they have been sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs.800/- each and in default of payment of fine, they have been sentenced to simple imprisonment for 15 days. For the charge of offences punishable under Sections 147, 148, 149 read with Section 332 of I.P.C., they have also been sentenced to undergo rigorous imprisonment for 1 year and to pay fine of Rs. 200/- each and in default of payment of fine, they have been sentenced to undergo simple imprisonment for 15 days. For the charge of offences punishable under Section 149 of I.P.C., the above accused have been sentenced to undergo rigorous imprisonment for 3 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to simple imprisonment for 15 CR.A/891/1993 4/120 JUDGMENT days. For the charge of offences punishable under Sections 147, 148, 149 read with Section 323 of I.P.C., the above accused have been sentenced to undergo rigorous imprisonment for 3 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to undergo simple imprisonment for 15 days. For the charge of offences punishable under Sections 147, 148 and 149 read with Section 324 of I.P.C., the above accused have been sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to simple imprisonment of 15 days. For the charge of offences punishable under Sections 147 and 149 read with Section 506[2] of I.P.C. they have also been sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to undergo simple imprisonment for 15 days. Similarly, they have been sentenced to undergo rigorous imprisonment for 3 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to undergo simple CR.A/891/1993 5/120 JUDGMENT imprisonment for 15 days for the charge of offences punishable under Sections, 147, 148 and 149 read with Section 426 of I.P.C. The learned trial Judge has not awarded separate sentence for charge of offence punishable under Section 353 of I.P.C. All the sentences are ordered to run concurrently with benefit under Section 428, that is, of set off. 2. Legality and validity of the order of conviction and sentence has been assailed on various grounds mentioned in the memo of the appeal. I have heard Mr. Y.F. Mehta, learned counsel for the appellants and Mr. P.D.Bhate, learned APP in detail. Both of them have taken me through the relevant part of the judgment under challenge as well as oral and documentary evidence led during the course of the trial including the opinion evidence of the doctors examined by the prosecution. 3. At the outset, Mr. Mehta, learned counsel for the appellants informed the Court that in the incident in question, S.R.P. Constable Shivramsinh Malkansinh had opened fire from his 303 service CR.A/891/1993 6/120 JUDGMENT rifle, as a result of which, seven persons from the side of the accused had sustained injuries. Two persons, namely, Bharwad Chaku Bechar and Bharwad Ghela Bechar [two real brothers] had died on the spot. The accused no. 2 Jivan Bhojabhai had also sustained injuries along with original accused no.6, that is, acquitted accused Karman Khoda Bharwad. Similarly, original accused no.7 Laliben Matambhai, Maniben wife of appellant no.3 Rukhad Khoda [original accused no.4], original accused no.9 - Rangiben daughter of Becharbhai Karman and one minor boy, namely, Satish aged about 2 years son of Jivan Bhoja – accused no.2, had also received injuries in firing. However, it would be beneficial firstly to state the basic case that was placed by the prosecution against the persons who came to be charged. 4. It is alleged that the complainant, along with some prosecution witnesses were attacked with deadly weapons such as Dhariyas and sticks by Chaku Bechar, Ghela Bechar, Rukhad Khoda, Lila Khoda, Jivan Bhoja, Kanti Bechar, Bhura Jutha, Karman Khoda, CR.A/891/1993 7/120 JUDGMENT Laliben Matanbhai, Naniben Rukhadbhai, Rangiben Bhurabhai along with other 50 to 60 persons including males and females belonging to Bharwad community with their respective children. The incident had taken place at 8.30 a.m. on 23rd May, 1986 in Bharwad Vas of Piplaj village. According to the prosecution, about two years before, a quarrel had taken place between the two families of Bharwad community; one family was of original accused no.2 Bhura Jutha Bharwad and another family involved was of the complainant Karman Bhikha. That quarrel took ugly turn and one Vana Bhaga, close relative of the accused died. The appellant no.3 Rukhad Khoda had lodged FIR against the accused of that offence, that is, Bhikha Sava, father and two brothers of the complainant. The accused persons were tried for offences punishable under Section 302 I.P.C. read with other relevant sections and ultimately, the father and the two brothers of the complainant came to be convicted for the charge of offences punishable under Section 304 Part-I of I.P.C. The Court sentenced them to undergo rigorous imprisonment for 7 years. The convicts, that is, father and brothers of CR.A/891/1993 8/120 JUDGMENT the complainant of the present case filed an appeal in the High Court, but during the course of oral arguments, the parties arrived at compromise on some intervention and ultimately, the High Court maintained the conviction, however, reduced the substantive sentence to one and half year by imposing enhanced amount of fine. The High Court ordered to pay fine of Rs. 1,20,000/- directing that the amount be paid to the widow and children of the deceased Vana Bhaga, who succumbed to the injuries sustained by him in the said incident of 7.6.1984. According to the prosecution, even thereafter father and brothers of the present complainant who had paid the amount of Rs. 1,20,000/- on account of intervention, were insisting for return of the said amount from the widow and children of the deceased Vana Bhaga. Initially, ill-feeling had started and thereafter, it took a shape of dispute between the two families. According to the prosecution, as the complainant was apprehending assault, he had requested for police protection. Some physical quarrel had taken place earlier and accordingly, accepting the request of the complainant, family of the complainant was granted CR.A/891/1993 9/120 JUDGMENT protection and one S.R.P. Point was provided at village Piplaj to protect the complainant and his family. According to the prosecution, on the date of the incident in question. As per the prosecution, on all occasions, when any member of the family of the complainant was going out or to agricultural field, S.R.P. Constable was accompanying such member. On the date of the incident in question, at about 8.30 a.m., complainant Karsan Bhikha and his uncle Deva Sava were going to their agricultural field and S.R.P. Constable as accompanying them. It is alleged that the complainant's sister Paniben and Aunt Jiviben were following them. When the said four persons, that is, the complainant, his uncle, Paniben and Aunt Jiviben were passing on the road along with S.R.P. Constable and when they reached near the residence of the accused, the deceased Chaku Bechar and the deceased Ghela Bechar along with the appellants and other Bharwads armed with deadly weapons like Dhariyas and sticks, had arrived there, intercepted them and attacked the complainant and his uncle Deva Sava. According to the prosecution, the deceased Chaku Bechar and the deceased Ghela Bechar were CR.A/891/1993 10/120 JUDGMENT holding Dhariyas. Accused Lila Khoda and accused Bhura Jutha were holding sticks. Similarly, accused Kanti Bechar and accused Rukhad Khoda were also armed with sticks. The deceased Chaku Bechar gave a blow with Dhariya on the right shoulder and Ghela Bechar gave a blow with his Dhariya on the left hand of Deva Sava. They also assaulted S.R.P. Constable. He was given one blow with Dhariya on the butt of the rifle which was in the hand of S.R.P. Constable and also gave a blow which fell on the helmet of S.R.P. Constable Shivramsinh. According to prosecution, to protect the complainant and himself, the S.R.P. Constable opened fire, wherein, total three persons sustained grievous bullet injuries. Two of them died on the spot and the third, as submitted by Mr. Mehta died after some months as he was not able to recover from the effect and impact of the bullet injuries sustained by him. It is not disputed that other seven persons, including family and children had also sustained some other injuries or damage on account of the firing opened by the S.R.P. Constable Shivramsinh. It is the say of the prosecution that there was a mob of about 50 to 60 CR.A/891/1993 11/120 JUDGMENT persons and therefore, the S.R.P. Constable Shivramsinh was compelled to intervene by opening fire. Initially, he fired one round in the air to get control over the mob. Thereafter, he was given Dhariya blow by deceased Chaku Bechar on his helmet as a result of which, his helmet was broken. Thereafter, the original accused nos. 4 and 5 started giving stick blows to the complainant and his uncle Deva Sava. Because of the bullet injuries, deceased Chaku Bechar and Ghela Bechar had fallen on the ground and had died on the spot. It is alleged that the other accused persons and members of the mob fled from the scene of offence. The nearest Vatva Police Station was informed and on arrival of the police jeep, S.R.P. Constable, the complainant, his uncle etc. were taken in the said jeep. Third person who had sustained bullet injuries was lying on the spot. Police Inspector Shri Kadri then immediately reached L.G.Hospital and took complaint of complainant Karsan Bhikha. He thereafter came to the spot of the incident and drew panchnama of the scene of offence. After the investigation, the police found that 9 persons along with 2 deceased were heading the mob of CR.A/891/1993 12/120 JUDGMENT about 50 to 60 persons and all of the said persons had committed the above said offences. The complainant, his uncle, S.R.P. Constable Shivramsinh, etc. were the victims of the assault made on them. Of course, the police charge sheeted only 9 persons and all of them were charged as aforesaid. 5. To bring home the charge, the prosecution has examined 30 witnesses along with 4 doctors, that is, Dr. Pradip exh.65, Dr.Dinesh exh.69, Dr. Pankaj exh.91 and Dr.Ramnik Singh exh.54. Report of the Forensic Science Laboratory [hereafter to be referred to as “FSL”] including the opinion given by the ballistic expert, Chemical Analyzer, and the serological opinion given by the officer who examined the muddamal articles, have been received in evidence during the deposition by the investigating officer – Police Inspector Shri Kadri [PW 30 exh.94]. 6. Mr. Y.F. Mehta, learned counsel for the appellants has argued at length. The said arguments can be divided into six parts. Firstly, it is submitted that the prosecution has failed to prove CR.A/891/1993 13/120 JUDGMENT the genesis of the crime. According to him, the time of offence, i.e. 8.30 a.m. has not been correctly stated by the complainant. Similarly, the place of offence has also been wrongly described. It is submitted that merely because dead bodies of two persons were lying near Bharwad Vas who were shot at by S.R.P. Constable Shivramsinh, the prosecution has developed the theory that the incident had occurred in the vicinity where these bodies were lying and blood was found on the earth. There is no consistency in the evidence as to the names and number of the participants from the side of the accused, so also as to the role played by them. It is clear from the evidence that as such, no Dhariya was there at the scene of offence nor was it used. Use of this weapon being more dangerous, has been introduced by way of an afterthought. When it is possible to infer that Dhariya may have been introduced by the prosecution witnesses after some deliberations made interse, the prosecution theory ought not to have been accepted at all. The prosecution has also failed in leading evidence as to the motive, inimical terms between the two groups of Bharwad community. As such, even as CR.A/891/1993 14/120 JUDGMENT per the case of the prosecution, the accused side was being pressurized for refund of amount of Rs. 1,20,000/- and therefore, the quarrel was picked up by the complainant side. There is no evidence on the record to show that the accused persons were aggressors. On the contrary, the incident has occurred in the area where the accused persons reside. Even blood was found during the investigation in some of the residential houses of the accused persons. While drawing the panchnama of scene of offence, there was no reasonably good distance seen between the dead bodies that were lying on the road or in open space abutting the houses of the accused side and the respective residential houses of the persons named as accused at the time of charge sheeting them. It is also argued that there is conflict in the evidence as to the role attributed to the accused who have been held guilty. When prosecution admits that there was a big crowd of about 50 to 60 persons, then, the prosecution, at least, ought to have proved that how many persons were there in the family and how many friends were there on the side of the accused who resided in the CR.A/891/1993 15/120 JUDGMENT area where the incident had occurred. The prosecution witnesses, namely, complainant and his uncle were supposed to know practically all the persons of the other group, that is, the accused side. At the time when the statements were recorded by the investigating officer the above prosecution witnesses, at least, ought to have named the persons who were present in the crowd and at the earliest before the police. It is submitted that this infirmity rules out the theory of persons of big crowd armed with weapons like Lathis and Dhariyas. Undisputedly, there is no recovery of any Dhariya during the investigation either from the spot of the incident or from the accused. When it is the say of the prosecution that both the deceased persons were holding Dhariya and had used the same, then, normally, Dhariyas could have been found from near the bodies of the deceased accused, or the investigating officer would have recovered the same during the interrogation of the accused persons after their arrest. As such, there was no Dhariya before the Court. Obviously therefore, no Dhariya was sent for analysis to the FSL and the investigating CR.A/891/1993 16/120 JUDGMENT officer, at least, ought to have given reasonable explanation as to why he could not recover the muddamal Dhariyas that were actually used by both the deceased accused in assaulting the complainant, his uncle Deva Sava and the S.R.P. Constable Shivramsinh. The prosecution ought to have led the evidence as to at what time the S.R.P. Constable found it imminent to use the firm-arm given to him. It appears that more than one fire-arms were used, but the prosecution has tried to put the curtain on this aspect and in this situation, the prosecution was under obligation to place the chain of happenings of each event. On the contrary, the sequence of events placed by the prosecution is contradictory to some documents produced during the course of trial and all these aspects go to the root of the case put up by the prosecution. 7. The second fold of argument of Mr. Mehta is that it is well settled that the prosecution is supposed to examine independent witnesses if available. Similarly, the persons who have either knowledge or information as to the incident and are CR.A/891/1993 17/120 JUDGMENT capable to throw light on the material part of the incident/crime are also required to be examined. Even then, the prosecution has not examined one important witness Kaliben, who was a by-stander and who was eye witness to the incident. It is has come in the evidence that the cloth put on by Kaliben was recovered during the course of the investigation. Her presence at the spot of incident is undisputed. Her petticoat, popularly known as Chaniya, was found with one hole therein, which was possibly only by the hitting of bullet and despite the above fact, the prosecution has not examined her. She has not been attributed any role in the entire incident nor was she named as accused even during the course of the investigation. There was no reason for the prosecution for dropping this witness. Dropping of this witness Kaliben by the prosecution has resulted in serious prejudice to the defence of the accused. Similarly, it has come in evidence that one Police Sub Inspector Shri Khokhar had reached the scene of incident on receipt of the information about the incident. It has also come in evidence that once he had taken over the charge of S.R.P. Constable CR.A/891/1993 18/120 JUDGMENT Shivramsinh, he had recovered four used/fired cartridges from the said S.R.P. Constable. Therefore, it appears that before the complainant and the S.R.P. Constable Shivramsinh left the spot and reached Vatva Police Station in the police jeep, Police Sub Inspector Shri Khokhar had reached the spot of the incident. Thus, it is possible to infer that he must have seen the two dead bodies and one person lying on the spot of the incident with bullet injury. This police officer Shri Khokhar was material witness, because, true story about the incident must have been unfolded to him only, may be orally by the complainant and/or by the S.R.P. Constable Shivramsinh. However, this material witness has not been examined by the prosecution. Similarly, two other police officers, that is, P.S.I. Shri Solanki and P.S.I. Shri Patel, who had played important role during the investigation have not been examined by the prosecution. It is submitted that according to the prosecution, one S.R.P. Point was created so as to provide security to the complainant. This Point was created on the demand made by the side of the complainant. Therefore, there must be some other CR.A/891/1993 19/120 JUDGMENT S.R.P. Personnel. It has come in evidence that from the S.R.P. Personnel, one S.R.P. Constable was also always posted on that S.R.P. Point at village Piplaj and was always kept on duty. However, no other S.R.P. Constable has been examined. The evidence shows that L.G. Hospital had received the first injured at about 9.00 a.m. The distance between the village Piplaj and L.G. Hospital is reasonably more and somebody must have arranged for a vehicle for shifting the injured and taking them to the L.G. Hospital for their admission and treatment. When the first injured person had reached the L.G. Hospital at 9.00 a.m., then, the incident perhaps must have occurred between 7.30 a.m. and 8.00 a.m. Or around that time. This fact would have been brought on record in appropriate way to establish at least one fact that the investigation was fair and transparent. The Resident Medical Officer [R.M.O.] who had received the injured in the L.G. Hospital at about 9.00 a.m., was therefore required to be examined. Who was that injured, has remained a question mark. In all probability, that injured must be from the side of the accused. Therefore, the person who was taken to CR.A/891/1993 20/120 JUDGMENT the L.G. Hospital at about 9.00 a.m. must have been asked the history as to the injury sustained by the injured. Therefore, the case papers of the injured persons examined initially by the doctors at L.G. Hospital were important and relevant part of the evidence. Therefore, it is submitted that the R.M.O. who received the injured has not been examined nor the case papers of the treatment of the injured have been brought on the record. No reasonable investigation was even carried out by the investigating officer. Similarly, it has come in evidence that one police constable who was on duty at the L.G. Hospital had informed the police mobile. The evidence shows that the police constable on duty in the L.G. Hospital was anxious to have some more police force at the L.G. Hospital so that quarrel can be avoided in the L.G. Hospital as two rival groups were to reach L.G. Hospital for treatment on account of the injuries sustained by them. It appears that big mob must have rushed to the L.G. Hospital considering the number of the injured persons from the accused side. It is the case of the prosecution that from the side of the accused, two persons had CR.A/891/1993 21/120 JUDGMENT died and seven persons sustained injuries and most of the bullet injuries were caused by a fire-arm. Therefore, this police constable who was on Hospital duty was material witness who has not been examined. The evidence shows that Sarpanch of village Piplaj also has not been examined though he has also played some role and this witness had no reason to favour either of the group of the Bharwad community. Similarly, the doctors who treated the injured accused persons and other injured persons including the lady accused were important witnesses, because, it was the duty of each such doctor to ask the history as to the injuries sustained by the injured accused persons.