IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 734 of 1998 For Approval and Signature: HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES 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? -------------------------------------------------------------- KESHABHAI MAGANBHAI PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 734 of 1998 MR KB ANANDJIWALA, learned advocate for Appellant No. 1 MR KT DAVE, learned APP for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE J.R.VORA Date of decision: 19/09/2003 CAV JUDGEMENT (Per : HON'BLE MR.JUSTICE D.K.TRIVEDI) #. The present appeal is filed by the appellant accused challenging the order of conviction and sentence recorded by the learned Additional Sessions Judge, Sabarkantha, Camp at Modasa passed in Sessions Case No. 59 of 1994 dated 20th July, 1998, wherein, the learned Trial Judge has after considering the evidence led before him and considering the defence of the accused, has accepted the prosecution case and convicted the appellant accused for the offence under Section 302 of the Indian Penal Code and ordered to suffer R.I. for life and fine of Rs.1000=00 and in default, R.I. for 6 months. #. We have heard Mr. Anandjiwala, learned advocate, who appeared for the appellant accused and Mr. K.T. Dave, learned APP for the respondent State. During hearing, the counsel appearing in the matter has taken us through the paper book consisting of oral and documentary evidence as well as the judgement under challenge. During hearing, considering the contentions raised by Mr. Anandjiwala in light of the ballistic report and as the weapon used in the commission of offence is service rifle, we have by separate order, directed the trial Court to transmit the muddamal articles including service rifle, which were received by this Court by Special messenger and we have examined the said rifle by taking assistance of a police guard attached to the court about the working of the said rifle. It is the prosecution case that the offence in question has occurred on 9th April, 1994 and as per the prosecution case, the appellant accused was working as armed Police Constable, having his bakkal No. 1216 at Meghraj Police Station. At the relevant time, the accused was on duty as a Guard at Treasury office situated at opposite to Meghraj Police Station and on that day, i.e. on 9th April, 1994 between 14-00 hrs. to 16-00 hrs. and between 20-00 hrs. to 22-00 hrs., he was assigned duty as a Guard at Treasury. During duty hours between 21-15 hrs. leaving the duty as Guard at Treasury, illegally he proceeded towards the Police Station by murmuring that why he continued on duty as a Guard. At that time, near Police Station, writer Head Constable Dipsinh Laxmansinh was standing. The said Writer Head Constable Dipsinh had asked the accused that why he has left the duty as a Guard and asked him to go back and attend the duty and keeping this in mind, with an intention to commit murder of the said Dipsinh with 303 rifle provided to him brought from the guard room at Treasury and from the duty place at the Treasury guard, after aiming at Dipsinh, who was standing near godown situated opposite to Treasury room and after firing from the weapon, committed murder of Dipsinh Laxmansinh Rathod with the bullet and thereby, the accused has committed offence under Section 302 of the I.P.C. #. It is the prosecution case that at the relevant time, there were many police persons were present namely Ravjibhai, Ditajibhai, Chimanbhai and Rameshbhai Jethabhai. Due to injuries sustained by Dipsinh Laxmansinh from the bullet, he was immediately removed to Government hospital, where, he was declared dead. Ravjibhai was also on duty, who gave complaint immediately on the very day i.e. on 9.4.1994 at 10-15 hours and offence was registered at Meghraj Police Station. After registering the offence, the investigation was in process and as Dipsinh, Writer Head Constable was declared dead, the inquest panchnama of deadbody of Dipsinh was done in presence of panchas. The cloths from the dead body was also seized. The panchnama of the scene of offence was also done in presence of panchas. From the possession of the accused, empty box of cartridge was seized in presence of panchas and rifle which was used by the accused in the commission of offence was also seized and the personal search of the accused was also effected in presence of panchas. The Investigating Officer has also recorded the statement of witnesses. The muddamal seized were also sent to FSL for examination. The weapon used in the commission of offence by the accused was sent for opinion of the Ballistic export and after getting opinion and ballistic report, prima-facie case was found against the accused and accordingly, the chargesheet was filed before the Court of learned Judicial Magistrate First Class at Modasa and as the case is exclusively triable by the learned Sessions Judge, learned Judicial Magistrate First Class has committed the case to the court of Sessions for trial. #. During trial, the prosecution has examined 14 witnesses including the medical officer, who has performed the Postmortem on the dead body of the deceased Dipsinh and the evidence of Ballistic Export. The defence of the accused is of total denial. It is an admitted fact that deceased Dipsinh Laxmansinh was at the relevant point of time working as a Head Constable in Meghraj Police Station. As found from the panchnama of the scene of offence as well as from the map on the record, it transpires that in the compound of the Police Station, there are other offices namely office of the Mamlatdar and Treasury Office and at some distance, there is a Government Guest House and the same is also near to the office of the Mamlatdar. The strong room is also there, in which, armoury is being kept. Opposite to the Police Station in one corridor, the office of the Mamlatdar and Treasury office are situated and both have common lobby. As found from the map, the distance of scene of offence from the guest house is at about 35 ft. and there is one lamp post, which is at a distance of about 79 ft. from the place of offence. As regard to the motive to the offence, as suggested by the prosecution is that the appellant accused has grievance that he was asked to performed duty continuously and when he went to ventilate his grievance before Head Constable Dipsinh, Dipsinh has informed him to perform duty and accused himself has again went at the place, where, he was on duty as a Guard. As suggested by the prosecution that for doing duty as a Guard continuously, the accused had some altercation with deceased Dipsinhbhai and in hit of moment and to take revenge, the accused has with his service weapon, fired on Head Constable Dipsinh and committed murder of Dipsinh. As found from the evidence that appellant accused was posted as a Guard at Treasury office since 8th April, 1994 and he was on duty as a Guard upto 10.4.1994. Head Constable Dipsinh was Writer Head Constable, who was the person to assign duty to his subordinate constables on 9.4.1994. The accused was posted to discharge his duty as a Guard at Treasury between 8-00 to 10-00 p.m. and appellant accused has took charge from another Guard Ravjibhai Khimjibhai, who was also attached to Meghraj Police Station. The appellant accused has because of continuous duty as a Guard, made his grievance before Dipsinh, as to why his posting was not changed and he was kept continuously on duty on that post as Treasury Guard. It is further found from the evidence that deceased Dipsinh had informed the appellant that as there were no other police constable available, the accused has to work continuously on duty as a Guard till next day and it is also the case of the prosecution case that after he got satisfied reply from Dipsinh, the accused had return back to performed his duty as a Guard at Treasury office. Mr. Anandjiwala, learned advocate has vehemently urged that the learned Trial Judge has committed error in accepting the prosecution case, though the learned Trial Judge has in term held that there is no direct evidence to suggest that any of the witness has seen incident of firing by accused on the deceased Dipsinh. However, learned Trial Judge has convicted the accused by accepting some of the circumstances and by relying upon such circumstances, he has passed the order convicting the accused, which has resulted into miscarriage of justice. #. He next urged that even as per the evidence of Ballistic Export, it transpires that cartridge, which was found from the barrel was not fired from the seized muddamal rifle possessed by the accused and that important circumstantial evidence clearly destroy the case to be put forwarded by the witnesses before the Court that they have actually seen the accused, firing from his rifle on the deceased Dipsinh and prosecution has failed to prove the case against the accused. #. Mr. K.T. Dave, learned APP has supported the judgement and order under challenge. According to Mr. Dave that the witnesses examined by the prosecution were on duty and they have seen the incident and therefore, with the help of their evidence, the prosecution has proved that accused had while on duty at Treasury and motive as suggested above, had fired on deceased Dipsinh and thereby, committed offence of murder and the learned Trial Judge has rightly accepted the prosecution case by convicting the accused under Section 302 of the I.P.C.. According to Mr. Dave that the presence of eye witnesses at the scene of offence is natural and can not be doubted as they were also police personnel. According to Mr. Dave from the evidence of the witness, there is no material contradiction, omission or improvement is proved and further the defence has not brought anything from the evidence of eye witnesses that they are falsely involving the accused in the commission of offence. The medical evidences also support the case of the prosecution, which suggest that deceased died due to injuries, which were caused by firing arms. Mr. Dave, has accordingly urged that even the learned Trial Judge has considered the evidence led by the prosecution and all the witnesses have in term supported the prosecution case and further that, the conduct of the accused suggests guilty mind. According to Mr. Dave, the conduct of the accused also suggests that he was the person, who has used his fire arm and after using fire arm, he immediately ran away from the place and further that the prosecution has established that accused was hiding himself, when he was caught by other police persons, immediately after the incident. The accused has not offered any explanation how and when fire arm which was seized from the accused was used and the accused did not came out with any explanation immediately. When he was arrested, it was the defence of the accused that he was chasing someone and such defence was admittedly after thought. According to Mr. Dave that the evidence led by the prosecution in the form of ballistic report is highly suspicious, as according to Mr. Dave that (i) the report of the Ballistic was dogmatic in nature without any explanatory reasons supporting opinion. (ii) The recovery of empty cartridges itself is highly suspicious since the method of applying seal was defective and effective seal was not applied. (iii) The recovery of empty cartridges is not legally proved by the evidence of panchas and the same was proved only by the evidence of the Investigating Officer. (iv) Possibility of tempering with the Muddamal of empty cartridges cannot be ruled out, since the accused is Police Man. According to Mr. Dave, in light of the evidence led and considering the defence of the accused, the learned Trial Judge has rightly discarded the defence raised by the accused and accepted the prosecution case and prayed that the order of conviction and sentence awarded by the learned Trial Judge be confirmed and appeal filed by the appellant accused be dismissed. #. In light of the submissions made before us, it is necessary for us to discuss the evidence lead by the prosecution in brief. #. As found from the evidence of Doctor Rameshchandra K. Sheth, P.W.- 1, he was working as Medical officer at Group Health Centre at Meghraj. On 9.4.1994 at about 11-55 p.m., the dead body of deceased was brought at hospital under police yadi. The said dead body was identified by Devendrasinh and Dashrathsinh, sons of deceased Dipsinh Rathod. He has deposed that P.M. Examination on the dead body of deceased Dipsinh was done on 10.4.1994 at 2-00 a.m. and completed the same on 4-00 a.m. Prior to performing postmortem, he has taken X-ray of the dead body to find out that whether any foreign object was there inside the body. According to him that age of the deceased was about 52 years. The cloths were having blood stain. He found the 3 injuries, which he noted down in column No. 17 of the P.M. note. P.M. Note Ex. 16 is established by Dr. Sheth. The cause of death according to doctor was due to which is reflected in P.M. Note, which read as under :- "To the best of my knowledge and belief the death has occurred due to 'injury to vital organs Ex. 17, is a certificate issued by Dr. Seth, disclosing the cause of death of deceased Dipsinh. As per the opinion of Dr., the injury found on the deceased was antemortem and injury found was possible from firing of bullet from rifle. The doctor has further deposed that on seeing the X-ray plate, they were found with stain of Gun Powder and according to Dr. Seth that injuries found on Dipsinh were possible from 303 rifle. #. As found from the cross-examination of Dr. Seth that he has in term admitted that it was his first P.M. Examination, where, the person had died due to gun shot injury and further that in the normal circumstances, they did not carry out P.M. Examination at night. He has further admitted that it is correct that in the P.M. Examination nowhere, it has been stated that white shirt and white baniyan were found torned and he has admitted that it is true that before performing P.M. Examination on the dead body, the cloths found on the dead body and condition of the cloths were required to be written down. He has deposed that in their hospital, no radiologists doctor was there and accordingly, X-ray was taken by the technician in his presence under his supervision. He has admitted that from the dead body of the deceased, no bullets was found. He has further admitted that it is correct that in column No. 17 of the P.M., the injury No. 2, whether the injury is on the left side or right side was not mentioned. The injury No. 1 was found blackening. However, the same was not cheering. He has deposed that injury No. 1 was blackening not due to cheering but it is due to tissues, which were died and further admitted that reason for tissues blackening were not there in any injury. In injury No.1, there was necrosis and because of that, it was found blackening and injury No. 2, there was no necrosis and accordingly, there was no blackening. According to Dr. injuries were sustained on tissues and accordingly, necrosis was found and doctor has accordingly, considered that there is a blackening. He has considered that such blackening is due to gun powder. In cross examination, while giving description to the entry to the wound, the Dr. has deposed that the entry side of the wound to the exit side was below and external, there were 13 injuries and the same has nothing to do with gun shot injury. The Dr. has in term while referring the medical jurisprudence, deposed that the skin was found blackening due to gun powder and according to Dr. the distance from the person, who has fired and the person, who had sustained injury, must be less than 50 mt. and further, while referring to the medical jurisprudence of Dr. Bernard Night, 6th Edition at Pg.340 in para 3, where it was found that the firing has taken place within less than 5 mt. of range, then, there were no sign of blackening or any cheering and the doctor has in term admitted the said view and doctor has in term admitted that in the present case, firing has taken place above the range of 5 mt. and accordingly, as per the evidence of Dr. Seth, who has performed the PM Examination of deceased Dipsinh that the firing has taken place within a short range of 5 mt. distance. ##. The injuries which is noted down in the inquest panchnama Ex. 48, is drawn by the police in presence of panchas, suggest that injuries were found on the deceased Dipsinh on the chest and as per the medical evidence, the prosecution has established that the death of deceased Dipsinh was unnatural and the learned Trial Judge has accordingly, in term held that the prosecution has established that death of Dipsinh was unnatural. ##. Ravjibhai Kamjibhai Bodad, PW-2 has deposed that on 9.4.1994 he was on duty as Police Guard at Treasury office, situated near Meghraj Police Station. Mamlatdar office is situated very close to Treasury office. The sitting place, where they used to sit, was close the Treasury guard room. To protect the Treasury, three armed police constable and one head constable were posted and these persons were provided 303 rifles and these rifles were provided to them by names. The unarmed constables were provided 410 rifle and these rifles and muskets were kept in the Treasury guard room and all these rifles were kept on wooden stand. To protect Treasury as well as to to protect weapons, one plus three guards were provided and these guards were changing and commander was posting the change duty. The duty hours were noted down in the book known as "Santari book". The guard who has performed duty as a Treasury guard and head constable were being provided 10 live cartridges for their 303 rifles and these cartridges were kept by them in their pouch and these cartridges were kept by the guard in the respective weapons. One, who was performing duty as a Santari, he was being provided with 410 musket and said musket rifle, 10 buckshot cartridges were being provided and the person, who was on duty has to hand over his 410 musket and 10 buckshot cartridges to a person, who has to perform duty as Santari. He has deposed that if any other Superior Officer came there, then all the persons after getting alarm from Santari, get ready and salutes the Superior Officer and after that officer left the office, except Santari on duty, other police staff put their rifles and cartridges at guard room at the appropriate place. Thus, one Santari has to remain on duty. While referring to the incident, according to witness that on 9.4.1994 his duty hrs. started at 11-00 p.m. at Treasury and his duty was as a post guard commander and he has taken charge from guard commander Mangabhai. Alongwith him, other guard constables namely (i) Ramesh Jethabhai (ii) Dita Kanjibhai and (iii) Kesha Maganbhai were performing their duties since 8.4.1994. As he was guard commander, he has to assign duty to the police constable and he has to write down hours in the Santari book about the performing duties from what time to what time by the police constables. On that day, the duty hours of Ramesh Jetha was from 11-00 to 12-00, 16-00 hrs. to 18-00 hrs., 22-00 hrs. to 24-00 hrs. Rameshbhai's duty hours on 10.4.1994 were from 4-00 to 6-00 hrs. and duty hrs. of Police Constable Ditaji Kanaji from 12-00 to 14-00 hrs., 18-00 to 20-00 hrs. and on 10.4.1994 from 0-00 to 2-00 hrs., 6-00 to 8-00 hrs.. The duty hours of accused Keshabhai Maganbhai as a police constable was assigned on 9.4.1994 between 14-00 to 16-00 hrs., 20-00 to 22-00 hrs. and on 10.4.1994 from 2-00 to 4-00 hrs. and 8-00 to 10-00 hrs.. All the three constables were given duty hours as a Guard for two hours. On 9.4.1994 Police Constable Gitaji Kanaji, his duty hrs. were from 18-00 to 20-00 hrs. as a Guard was over and accused Police Constable Keshabhai has taken charge from him as a guard at 20-00 hrs. and accused Keshabhai when, he was on duty as a Treasury Guard, at that time, he and other Guards were present. At that time, accused at 20.30 hrs. had after completing his duty hours, had gone towards the police station and he was telling that why he continued on double duty and his voice was high. At that time, immediately, the witness has called him back. In the front of the police station, Writer Head Constable Dipsinh and one Chimanbhai, Head Constable of Undva out Police Station were standing. Dipsinh has told accused Keshabhai that at present, there were no police constables available and you continue your duty and after the person was available, he will see to relieve him and accused has again resumed to perform his duty as a guard. While performing duty as a guard, the accused Keshabhai was of and on used to go to the guard room and he was again performed his duties. According to the witness, at the relevant time, he alongwith other persons, were present at Treasury guard and constable Dipsinh, in charge of Meghraj Police Station and Head constable Chimanlal Mohanlal were present near Government godown, which was situated opposite to Treasury office. There were other persons, who were also present. There were also other persons in the police station were present. Dipsinh and Chimanbhai were talking while standing near godown and at about 21.15 hrs. the accused Keshabhai, who was performing his duty as a Guard at Treasury, has fired from his rifle towards Dipsinh and Chimanbhai and bullet had hit Head Constable Dipsinh and Dipsinh has immediately fallen down and Chimanbhai was standing with him, has came towards the police station by raising shout that Dipsinh has sustained bullet injury and he was to be removed to hospital. At that time, Keshabhai was on duty as a Guard, who with his rifle ran away towards Government Guest House. Witness Ravjibhai and other Guards and Jaydeepsinh and Police Constable Balbhadrasinh from the police station came and all went towards Government Guest House to chaise Keshabhai. Keshabhai was found behind guest house and Keshabhai was apprehended with rifle and brought at the police station. Prabhat Vaghji was at that time performing duty as a PSO and accused was handed over to him. The 303 rifle and Butt No. 369, which was issued in the name of Keshabhai, was with him and 410 basked was not found. The bolt of the rifle was closed and as other fire could not take place, the witness has opened the bolt of the chamber and he found one empty charger, which was called used cartridge box, was also handed over the PSO. The personal search of Keshabhai was done by PSO. He has worn uniform and from the pocket of the shirt, two chargers for getting the cartridges were found, which