IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 967 of 1993 WITH CRIMINAL APPEAL No 984 of 1993 WITH CRIMINAL APPEAL NO. 985 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL 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 Civil Judge? : NO -------------------------------------------------------------- ZAKIRBHAI NURMOHMAD VORA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 967 of 1993 MRS SHILPA J UNWALLA for Petitioners MR. DF AMIN for Appellant no. 3 in Criminal Appeal No. 985 of 1993. MR DP JOSHI, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 05/11/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) 1. On a trial held by the Ld. Addl. Sessions Judge, Nadiad in Sessions Case No. 48 of 1992 the sole appellant in Criminal Appeal No. 967/1993 as well as two appellants in Criminal Appeal No. 984/1993 and three appellants in Criminal Appeal No. 985/1993 have been convicted by the judgment dated July 3, 1993, of the offences punishable under Sections 147, 148, 302 read with section 149 of the Indian Penal Code and Section 135 of the Bombay Police Act and punished with RI for life and fine of Rs.1,000/- in default RI for six months for the offence punishable u/S. 302 read with section 149 of the Indian Penal Code as well as RI for twelve months and fine of Rs.200/-, in default RI for one month for the offence punishable u/S. 148 of the Indian Penal Code and RI for four months and fine of Rs.100/-, in default RI for 15 days for the offence punishable u/S. 135 of the Bombay Police Act. As all the three above numbered appeals are directed against common judgment dated July 3, 1993 rendered by the Ld. Addl. Sessions Judge, Nadiad, in Sessions Case No. 48/1992 and as common questions of facts and law arise for our determination in these appeals, we propose to dispose them of by this common judgment. 2. Witness Jayantibhai Ambalal Patel, who is complainant in this case is resident of Shekhadi, which is situated in Navapura area of Petlad town. The name of his elder brother was Hasmukhbhai Ambalal, whereas name of his another brother was Navinbhai. Hasmukhbhai was married to Ramaben, who was before her marriage, residing in Arjanpara of Petlad town and name of brother of Ramaben was Hasmukhbhai Bhaijibhai, who was residing in Arjanpara of Petlad town. Hasmukhbhai was serving in Shyam Prakash mill and was going to mill on cycle for the purpose of discharging duties in Shyam Prakash mill. The incident in question had taken place on June 15, 1991. On that day polling for Parliamentary election was scheduled to take place in Petlad town. According to complainant Jayantibhai, his brother Hasmukhbhai while leaving for mill had informed him that he would come back to the house at about 3-00 to 3-30 p.m. after casting vote. What was claimed by Jayantibhai was that Hasmukhbhai did not return home by 3-00 to 3-15 p.m. and, therefore, he in the company of his nephew Rameshbhai had gone on a scooter to make a search about Hasmukhbhai. The case pleaded by Jayantibhai is that the scooter was being driven by Rameshbhai, whereas he was pillion rider. According to the complainant, when he in the company of Rameshbhai had come near Taiwada, six persons belonging to Muslim community had stopped the scooter and that he was knowing all those six Muslims. What is claimed by the complainant is that six Muslims who had stopped the scooter were (1) Shahbuddin Zahruddin Shaikh, (2) Najimuddin Zahiruddin Kazi, (3) Iminmiya Zahruddin Kazi, (4) Zakirbhai Nurmohmed Vora, (5)Jamirullakhan Mujfarullakhan Pathan and (6) Isubmiya Ahmedmiya Shaikh. According to the complainant Shahbuddin Zahruddin had a stick with him, whereas Najimuddin Zahiruddin had a Dhariya with him and Iminmiya was armed with a sword, whereas Zakirbhai Nurmohmed was armed with a razor and Jamirullakhan alias Nijammiya Mujfarullakhan was armed with a stick. The case of the complainant is that the scooter driven by his nephew Rameshbhai was stopped by the six convicted appellants on belief that he and his nephew were members of Bharatiya Janata Party. The claim made by the complainant is that after getting the scooter halted, the appellants had mounted an attack on his nephew with Dhariya, sword, pipe and sticks, whereas after alighting from the scooter he was standing at a distance. According to Jayantibhai, his nephew as well as he had raised shouts to save and had started running towards Arjanpara and Babubhai Ambalal, Ravjibhai Javerbhai, Somabhai Ashabhai, Nagarbhai Ranchhodbhai and Girdharbhai who were standing near the entrance of Arjanpara had come to their rescue on hearing shouts. According to the complainant, on seeing Babubhai Ambalal and others coming to their rescue, the convicted appellants had run away with their respective weapons from the place of incident. It is the case of the complainant that thereafter he had gone near Rameshbhai, who had fallen down and found that Rameshbhai had sustained sword blow and Dhariya blow on his head as well as razor blow on right leg and had also sustained razor blow on right hand. According to this witness, he had found that his nephew had also sustained blow given by razor on right side of the neck and that he had noticed that his nephew had died on the spot. Meanwhile a police van had arrived at the place of incident and deceased Rameshbhai was removed to S.S. Hospital, Petlad in the said van. Thereafter, the complainant had gone to Petlad Police Station where complaint lodged by him was registered by Mr. R.A. Solanki, who was then Police Inspector of Petlad Police Station. The information about commission of cognizable offence lodged by complainant Jayantibhai was registered as C.R. No. 102/1991 and offences punishable under Sections 147, 148, 302 read with sec. 149 of the Indian Penal Code and section 135 of the Bombay Police Act were registered against the convicted appellants. After registering the offences, necessary investigation into the case was made by P.I. Mr. Solanki. He had recorded statements of those persons who were found conversant with the facts of the case and had also prepared panchnama of place of occurrence in presence of independent witnesses. Further, during the course of investigation the convicted appellants were arrested and different weapons which were used in commission of crime were discovered pursuant to voluntary disclosure made by them. The Investigating Officer had made necessary arrangement for sending the dead body of deceased Rameshbhai for post mortem examination and incriminating articles which were seized during the course of investigation were sent to Forensic Science Laboratory for analysis. After ascertaining the cause of death of the deceased and obtaining the report of the Serologist and on completion of investigation, the convicted appellants were chargesheeted of the offences punishable u/Ss. 147, 148, 302 read with section 149 of the Indian Penal Code and section 135 of the Bombay Police Act in the court of the Ld. Judicial Magistrate First Class, Petlad. As the offence punishable u/S. 302 of the Indian Penal Code is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Nadiad for trial where it was numbered as Sessions Case No. 48/1992. 3. The charge at Exh. 2 was framed against the convicted appellants of the offences punishable u/Ss. 147, 148, 302 read with 149 of the Indian Penal Code and section 135 of the Bombay Police Act. The charge was read over and explained to the appellants who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Jayantibhai Ambalal Patel P.W.1 Exh. 16 (2) Dr. Dattatrey Radhakrushna Khadayate P.W.2 Exh. 17 (3) Babubhai Ambalal P.W.3 Exh. 19, (4) Ravjibhai Javerbhai P.W. 4 Exh. 21, (5) Mangalbhai Desaibhai P.W. 5 Exh. 22, (6) Arunbhai Jatubhai P.W.6 Exh. 30, (7) Janakbhai Desaibhai P.W.7 Exh. 37, (8) Mohanbhai Desaibhai P.W. 8 Exh. 39, (9) Dineshkumar Chaturbhai P.W. 9 Exh. 9, (10) Dominet Pomasbhai Vaghela P.W. 10 Exh. 48, (11) Madhuben Kantilal P.W. 11 Exh. 52, (12) Vijaysinh Laxmansinh Chauhan P.W. 12 Exh. 55, (13) Ranjitsinh Amarsinh Solanki P.W. 13 Exh.57, to prove its case against the appellants. The prosecution also produced documentary evidence such as post mortem notes of the deceased prepared by doctor Khadayate at Exh. 18, panchnama of place of occurrence at Exh.23, inquest panchnama at Exh. 31, report of the Serologist at Exh. 33, notification issued by the competent authority u/S. 37(1) of the Bombay Police Act at Exh. 34, different discovery panchnamas prepared u/S. 27 of the Indian Evidence Act, complaint lodged by Jayantibhai at Exh. 54, etc. in support of its case against the appellants. The defence of the appellants was that they were falsely impleaded in the case and in support of their defence, they examined (1) Jerambhai Bhaijibhai Makwana D.W. 1 at Exh. 63 and (2) Tumadu Jinas Patil as D.W. 2 at Exh. 64. After recording of evidence of prosecution witnesses was over, the Ld. Addl. Sessions Judge explained to the appellants the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by section 313 of the Code of Criminal Procedure. In their further statements, the appellants denied the case of the prosecution. 4. On appreciation of evidence adduced by the parties, the Ld. Judge held that it was proved by the prosecution that the deceased had died a homicidal death. According to the learned Judge, the evidence of complainant Jayantibhai Patel as well as that of witness Babubhai and witness Ravjibhai was cogent, consistent as well as trustworthy. The Ld. Judge found that the evidence of complainant Jayantibhai was not only corroborated by evidence of witness Babubhai and witness Ravjibhai, but was also corroborated by the medical evidence on record. Placing reliance on the evidence of complainant Jayantibhai and that of witness Babubhai as well as witness Ravjibhai, the Ld. Judge deduced that it was proved by the prosecution that on the date of the incident, the complainant in the company of his nephew deceased Rameshbhai was going towards Keshav mill in search of his brother Hasmukhbhai and that on the way, the scooter which was being driven by deceased Ramesh was stopped by the convicted appellants and that the appellants had inflicted blows with different weapons as narrated by the witnesses. The Ld. Judge disbelieved the evidence of defence witnesses and held that the case against the appellants was fully established beyond reasonable doubt by evidence of complainant and other witnesses. In view of the above referred to conclusions, the Ld. Judge has convicted the appellants by judgment dated July 3, 1993 and imposed different sentences which are referred to earlier, giving rise to the three appeals. 5. Ms. Shilpa J. Unwala, learned counsel for the original accused nos. 1 to 5 and Mr. D.F. Amin, learned counsel for the original accused no.6 submitted that the evidence of complainant Jayantibhai Patel is not trustworthy at all and his evidence does not indicate that he had accompanied his nephew on scooter while launching search for his brother Hasmukhbhai or that he had witnessed the incident in question and, therefore, his evidence should not have been relied upon by the Ld. Judge for believing the prosecution case. According to the learned counsel for the convicted appellants, if he had accompanied deceased Rameshbhai on scooter, then in all probability he would not have been spared by the assailants and, therefore, his claim that he was standing near the place of incident and that he had witnessed the whole incident is highly doubtful. What was asserted on behalf of the appellants was that deceased Hasmukhbhai had left home for Keshav mill in the early morning and was to return home after casting vote and, therefore, there was no reason for complainant to go in search of his brother Hasmukhbhai at about 3.00 or 3.30 p.m. on the date of incident as the deceased was stopped to render services for 12 hours beginning from seven o'clock in the morning. The learned counsel after referring to the evidence of complainant Jayantibhai, submitted that his evidence does not indicate that he was knowing that his brother Hasmukhbhai was to return home at about 3.30 p.m. because it is not so stated by him in his complaint lodged before the police and, therefore, his claim that he had gone out in search of his brother Hasmukhbhai at about 3.30 p.m. in the company of his nephew deserves to be disbelieved. The learned counsel for the convicted appellants urged that the evidence of witness Babubhai and witness Ravjibhai Ravjibhai does not show that they in the company of Somabhai and Nagarbhai were standing near the entrance of Arjan Faliya and, therefore, the claim made by the complainant Jayantibhai that on hearing shouts raised by him and deceased Rameshbhai, those who were standing at the entrance of Arjan Faliya had rushed to their rescue should be disbelieved. It was pointed out that as per the testimony of witness Jayantibhai soon after the incident, a police van had arrived at the place of incident, but the evidence of complainant Jayantibhai does not indicate that he had given any information about the incident to the police personnel who were in the van and this unnatural conduct on his part establishes that he in fact had not witnessed the incident at all. The learned counsel further emphasized that this witness had not gone to hospital with dead body of deceased Rameshbhai and has given false explanation as to why he had not gone to hospital though he had learnt that his brother Hasmukhbhai was also killed in the incident and, therefore, his evidence being of doubtful nature should be rejected by the Court. What was stressed by the learned counsel for the appellants was that the complainant has not attributed specific role to all the accused in his complaint which was filed within two hours of happening of the incident, but has attributed specific role to each appellant in his deposition before the Court which was recorded after a period of about two years and, therefore, there being material improvements in his deposition, his evidence should not be regarded as trustworthy. While pointing out highly unnatural conduct of the complainant, it was stressed that some residents of Arjan Faliya were sitting near the office of agricultural produce market committee, which is near another entrance to Arajan Falia, but complainant Jayantibhai had not made any inquiry about the deceased Hasmukhbhai with them and his claim that other family members had learnt about the death of his brother Hasmukhbhai from him when he had returned his home at about 6 to 6.15 p.m. is also highly doubtful, because the evidence on record indicates that his brother Hasmukhbhai was fatally assaulted at about 3.00 to 3.30 p.m. and Hasmukhbhai Bhaijibhai, who is brother-in-law of deceased Hasmukhbhai and who is resident of Arjanpura must have informed family members of the complainant about the death of deceased Hasmukhbhai within no time. It was further urged that the evidence of witness Babubhai Ambalal shows that he in the company of Ravjibhai was standing near the house of one Babubhai Chhotabhai and were talking inter-se about the election, whereas Somabhai Ashabhai Patel and Nagarbhai Ranchhodbhai Patel were standing opposite the entrance of Arjan Faliya, but the evidence of complainant Jayantibhai does not show that he had made any inquiries either with Babubhai Ambalal or with Ravjibhai or with Somabhai Ashabhai or with Nagarbhai Ranchhodbhai Patel about his brother Hasmukhbhai and thus the conduct of complainant being most unnatural, his claim that he was in the company of deceased Rameshbhai and had witnessed the incident should be disbelieved. After scrutinising the evidence of witness Babubhai and witness Ravjibhai critically, the learned counsel for the appellants submitted that it was not probable that Babubhai and others who were not armed at all would rush towards the direction where according to the complainant, all the appellants were standing with deadly weapons and, therefore, the claim advanced by these witnesses that they had rushed to the rescue of the deceased and complainant and that they had seen the convicted appellants inflicting blows on the deceased becomes highly improbable. The learned counsel further pleaded that the evidence of witness Babubhai is not fully corroborated by medical evidence on record and as the complainant has narrated the incident in a manner different than narrated by witness Babubhai his testimony should be discarded as untrustworthy. What was highlighted was that just before assault on deceased Rameshbhai, Hasmukhbhai who was real brother of the complainant Jayantibhai was fatally assaulted near Arjan Faliya and, therefore, if witness Babubhai and witness Ravjibhai had spotted the complainant and his nephew going towards Keshav mill, in all probability they would have stopped them and would not have permitted them to go towards Taiwada where deceased Rameshbhai was fatally wounded and, therefore, the whole case of the prosecution becomes doubtful. Further it was claimed that the evidence of witness Babubhai does not show that he had gone either to hospital or to police station nor his evidence shows that he had informed any one in the locality of Arjan Faliya about the fatal assault mounted either on Hasmukhbhai who is brother of complainant Jayantibhai or on the deceased Rameshbhai and, therefore, the learned Judge committed error in placing reliance on the deposition of witness Babubhai for believing the prosecution case against the appellants. The learned counsel further pointed out that witness Ravjibhai had stated in his police statement that 5 to 6 blows with sticks were given to deceased Rameshbhai whereas he has not referred to such blows having been given on the deceased at all in his substantive evidence before the Court and, therefore, in view of major contradictions appearing in his evidence, his evidence should not have been acted upon for convicting the appellants of major offences. While offering comments on the evidence of witness Ravjibhai it was argued that he had not accompanied the complainant either to police station or hospital and as his evidence is not materially corroborated by medical evidence on record, his evidence should also be disbelieved. The learned counsel contended that it is not uncommon in cases of communal nature to find witnesses coming forward to depose falsely about an attack by person who is believed to be guilty and, therefore, having regard to the nature of evidence adduced by the prosecution, a reasonable benefit of doubt deserves to be given to the convicted appellants and the appeals should be accepted. 6. Mr. D.P. Joshi, Ld. APP for the prosecution contended that the evidence of complainant Jayantibhai is corroborated by evidence of witness Babubhai as well as witness Ravjibhai in material particulars and, therefore, it cannot be said that any error is committed by the Ld. Judge in placing reliance on the sworn testimony of complainant for the purpose of believing prosecution case against the appellants. The learned counsel for the State pleaded that the evidence of witness Jayantibhai, witness Babubhai and witness Ravjibhai is also corroborated in material particulars by the medical evidence on record and, therefore, it is safe to rely upon their evidence for the purpose of upholding case of the prosecution against the appellants. What was claimed was that there are minor contradictions in the evidence of prosecution witnesses, but they are neither material nor do they go to the root of the prosecution case and, therefore, the minor contradictions appearing in the evidence of prosecution witnesses should not be blown out of proportion upon for the purpose of disbelieving them. According to the Ld. APP the witnesses themselves must be in a state of shock on seeing attack being mounted on deceased Rameshbhai and, therefore, discrepancies which have appeared in their evidence should not be viewed seriously more particularly when power of observation differs from person to person. The Ld. APP for the State highlighted that cogent reasons have been assigned by the Ld. Judge of the trial Court who had advantage of observing demeanor of the witnesses for convicting the appellants and the evidence which has inspired confidence of the Ld. Judge before whom the trial was conducted should be believed while upholding the conviction of the appellants. It was urged that no case is made out by the learned counsel for the appellants to interfere with well reasoned judgment convicting the appellants under different offences and, therefore, the appeal should be dismissed. 7. We have considered the submissions advanced at the bar and reappreciated the whole evidence on record. 8. The fact that deceased Rameshbhai had died a homicidal death is not in dispute. The evidence of Dr. Dattatrey Khadayate P.W. 2 Exh.17 shows that on June 15, 1991 he was discharging duties as Medical Officer, S.S. Hospital, Petlad and that he had received the dead body of deceased Rameshbhai Patel at about 8-15 p.m. for post mortem examination. The Medical Officer in his evidence has stated that alongwith the dead body a Yadi was brought by Police Constable Kodarbhai of Petlad Town Police Station and Yadi was accompanied with inquest panchnama. According to the Medical Officer, as it was too late on June 15, 1991, he had performed autopsy on the dead body on June 16, 1991 at about 9-45 a.m. and completed the same at about 11.00 a.m. The Medical Officer has stated that on post mortem examination he had found elevan external injuries and four internal injuries. According to him, internal injuries were corresponding to external injuries nos. 1, 2, 4, 5 and 6 and that external injuries nos. 1 to 4 were possible by sharp cutting instrument, whereas other injuries were possible by hard and blunt substance. The Medical Officer was shown the razor which was produced on the record of the case as Muddamal article no. 13 and after seeing the razor the Medical Officer opined that external injury no. 3 was possible by the said razor, whereas external injuries nos. 1, 2 and 4 were possible by Dhariya and sword which were produced as Muddamal articles nos. 12 and 14 respectively on the record of the case. According to the doctor, external injuries nos. 5, 6 and 7 to 11 were possible by Muddamal article no. 16 which was an iron pipe as well as Muddamal article no. 17 which was a stick. The Medical Officer has clearly stated that external injuries nos. 1, 2, 4, 5 and 6 were sufficient in the ordinary course of nature to cause the death of the deceased. The evidence of the doctor stands corroborated by contemporary record prepared by him, namely post mortem notes which are produced on the record of the case at Exh. 18. In the post mortem notes also the injuries which were found on the deceased while performing the post mortem examination are enumerated in detail. Further from the evidence of Medical Officer and post mortem notes, it is evident that the cause of the death of the deceased was head injury. The injuries which were sustained by the deceased are also enumerated in detail in inquest panchnama Exh. 31, which stands proved through the evidence of witness Arunbhai Janubhai P.W.6 Exh.30. The evidence of witness Arunbhai stands amply corroborated by the evidence of Investigating Officer. It is not the case of any of the appellants that the death of the deceased was either accidental or suicidal. Having regard to the facts of the case,