CR.A/1099/1998 1/36 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1099 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================= 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 ? ========================================= MANKUBHAI BHAYABHAI & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================= Appearance : M/S THAKKAR ASSOC. for the appellants. MR HM PRACHCHHAK, APP, for the respondent. ========================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 03/08/2006 CR.A/1099/1998 2/36 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This Criminal Appeal arises out of a judgment and order rendered by learned Additional Sessions Judge, Amreli, on 14th October, 1998, in Sessions Case No.8 of 1994, convicting the appellants for offences punishable under Sections 302 and 34 of the Indian Penal Code in respect of the murder of Vallabhbhai Lavabhai Patel, allegedly, committed on 28th September, 1993, at about 2.15 P.M. on Bagasara – Manekvada Road, at a place located at a distance of about 3 kms. from Bagasara. The Trial Court, after recording conviction, sentenced the appellants to undergo life imprisonment and to pay a fine of Rs.5000/- each, in default, to undergo rigorous imprisonment for one year. 2. The prosecution case, in brief, is that appellant No.1 had lodged a Criminal Case against deceased-Vallabhbhai Lavabhai Patel, in which the deceased came to be acquitted by the Trial Court a few days prior to the date of the incident. On the day of the incident, deceased-Vallabhbhai Lavabhai Patel was travelling on CR.A/1099/1998 3/36 JUDGMENT the motorcycle of Jaskubhai Kathadbhai (P.W.3) and was going from Bagasara to Galath. They were followed by Parshottambhai Ghusabhai (P.W.1) and Vithalbhai Ranchhodbhai (P.W.2) on another motorcycle. When they were about to reach the place of incident, the appellants came from behind on a motorcycle, overtook the motorcycle of Parshottambhai Ghusabhai and Vithalbhai Ranchhodbhai and when they reached parallel to the motorcycle of Jaskubhai Kathadbhai, the pillion seat of which was occupied by deceased-Vallabhbhai Lavabhai, appellant No.2- Dilubhai Hadabhai, who was armed with a stick, inflicted a blow on the deceased. As a result, the deceased fell down. The appellants stopped their motorcycle. However, the deceased, who tried to run away from the place, was chased by the appellants and appellant No.2 inflicted stick blows on him. On receiving the stick blows, the deceased fell down. Then appellant No.1 started inflicting knife/dagger blows on the deceased. Appellant No.2 also inflicted further stick blows. As a result of the assault, the deceased started bleeding and died on-the-spot. 2.1 P.W.1-Parshottambhai Ghusabhai, therefore, went to CR.A/1099/1998 4/36 JUDGMENT Bagasara and lodged an F. I. R. at the Bagasara Police Station, on the basis of which, an offence was registered and investigation started. The police recorded statements of witnesses, prepared Panhnamas, got postmortem performed, obtained certificate as to cause of death, sent the muddamal to Forensic Science Laboratory for chemical analysis and, ultimately, having found sufficient material against the accused persons, filed charge sheet against them in the Court of learned Judicial Magistrate, First Class, at Bagasara. The learned Judicial Magistrate, in turn, committed the case to the Court of Sessions, at Amreli, as the offences charged against the appellants were triable exclusively by the Court of Sessions. Sessions Case No.8 of 1994, therefore, came to be registered. 2.2 The Sessions Court framed charge at Exhibit 1, to which the accused persons pleaded not guilty and claimed to be tried. The prosecution has examined three eye-witnesses, one medical witness, one Executive Magistrate, who conducted the test identification parade and other police witnesses to prove the case against the accused. On appreciation of evidence led by the CR.A/1099/1998 5/36 JUDGMENT prosecution, the Trial Court came to a conclusion that the prosecution was successful in establishing the charges against the accused and recorded conviction and awarded sentence, as stated in the earlier part of this judgment. Aggrieved by the said judgment and order, present appeal is preferred by the convicts. 3. Learned Advocate, Mr. Haresh N. Joshi, appearing for M/s Thakkar Associates, has taken us through the record and proceedings. Mr. Joshi submitted that, though the case is dependent on three eye-witnesses, their depositions do not inspire confidence. Mr. Joshi submitted that the prosecution case suffers from a number of defects and, therefore, the Trial Court was at error in recording conviction. 3.1 Mr. Joshi submitted that all the three eye-witnesses are chance witnesses. Their presence at the time and place of the incident is unnatural. P.W. 3 and the deceased were formerly closely associated. They were partners in a travel business. He submitted that P.W. 1 and P.W. 2 are caste fellows of the deceased and, therefore, their evidence, before being accepted, would call for CR.A/1099/1998 6/36 JUDGMENT a close scrutiny. It was submitted by Mr. Joshi that identity of accused-appellant No.2 is not properly established by the prosecution. Holding of test identification parade was only an empty formality. The witnesses have not given any description of the second assailant other than accused No.1 while their statements were recorded. In the TI parade, the dummies arraigned besides the accused did not bear features similar to that of the accused. There was a chance that the accused, when brought to TI parade, could have been noticed by the witnesses because he was brought by police personnel without any mask over his face and identification of accused No.2 by the eye-witnesses, therefore, may be defective. The benefit must go to the accused as requisite procedure has not been strictly followed by the Executive Magistrate. 3.2 It was contended that the prosecution did not examine the Panch witnesses to the test identification parade Panchnama and, therefore also, the TI parade does not inspire any confidence. 3.3 Mr. Joshi contended that the relationship between the CR.A/1099/1998 7/36 JUDGMENT witnesses and the accused was strained, if not enmical, and, therefore, the Court may not accept the version of the eye- witnesses in absence of a reliable test identification. Mr. Joshi, therefore, submitted that the appeal may be accepted. 4. Learned Additional Public Prosecutor, Mr. Prachchhak, has opposed this appeal. He submitted that presence of the eye- witnesses has been established through their evidence and it is also established to be natural. P.W. 1 and P.W. 2 had gone to Bagasara for shopping and while they were returning, they saw the deceased and P.W. 3 going ahead of them. P. W.3 was on that very motorcycle on which the deceased was a pillion rider and, therefore, it cannot be said that their presence at the time and place of the incident is not natural. Mr. Prachchhak submitted that the witnesses stay in a small village and it is common in that region that people go to town for shopping. 4.1 Mr. Prachchhak submitted that P. W. 3, in fact, is a caste fellow of the accused-appellants and he was a Panch witness in the earlier prosecution lodged by accused No.1 against the CR.A/1099/1998 8/36 JUDGMENT deceased. It, therefore, cannot be said that he is an interested witness against the appellants. 4.2 So far as test identification parade is concerned, Mr. Prachchhak submitted that the Executive Magistrate, who conducted the TI parade is an independent person and will not be interested either in the case of the prosecution or in the case of the defence. His deposition shows that, he had taken all possible precautions and followed all the requisite formalities for conducting the TI parade. There is no reason to doubt the conduct of TI parade on account of non-examination of Panch witnesses. Mr. Prachchhak submitted that, in light of the recent pronouncements by the Apex Court, even if Panch witnesses turn hostile, the drawing of Panchnama can be proved through deposition of the Investigating Officer. The present case is placed on a far better footing as, here, the parade was held and the Panchnama was drawn in presence of the Executive Magistrate. Mr. Prachchhak submitted that the object of TI parade is to lend assurance to the Investigation Officer about the truthfulness of the eye-witnesses and their capacity and ability to identify the CR.A/1099/1998 9/36 JUDGMENT assailants. Mr. Prachchhak submitted that, even if the TI parade procedure is found to be not so reliable and the corroboration that it was to lend to the evidence of eye-witnesses would stand withdrawn, then also, if the prosecution case is dependent on deposition of eye-witnesses, which is otherwise found to be reliable, the defect in TI parade would not affect the prosecution case fatally. Mr. Prachchhak has placed reliance on certain decisions in this regard, which would be examined by us in the paragraphs to follows. 5. The case against the appellants is founded on depositions of three eye-witnesses, namely, Parshottambhai Ghusabhai (Exhibit 59), Vithalbhai Ranchhodbhai (Exhibit 65) and Jaskubhai Kathadbhai (Exhibit 90). The medical evidence is in the form of deposition of Dr. Prahladbhai Manilal Patel (Exhibit 96) and Postmortem Notes (Exhibit 97). The F. I. R. at Exhibit 60, which is given by Parshottambhai Ghusabhai, does not disclose the exact identity of accused-appellant No.2 and, for that purpose, a TI parade was conducted in presence of the Executive Magistrate, Jayantilal Shivlal Gandhi, who has been examined at Exhibit 93. CR.A/1099/1998 10/36 JUDGMENT 6. The factum of death of deceased Vallabhbhai Lavabhai Patel, being unnatural, is not in dispute. In fact, the death being homicidal is also not seriously disputed on behalf of the appellants and, rightly so, in our considered opinion. The deposition of Dr. Patel (Exhibit 96) indicates that there were multiple injuries in the form of stab wounds, CLWs and incise wounds. There were in all 18 external injuries. There were six internal injuries corresponding to external injuries. External injuries No.1 to 5, 15 and 16 were, opined by the doctor, to be sufficient in ordinary course of nature to cause death. Injuries No.1 to 8 were possible with sharp edged and pointed weapon. Injuries No.9, 17 and 18 were possible with sharp edged weapon and injuries No.10 to 16 were possible with hard and blunt substance. According to the doctor, the injuries were possible with muddamal weapons knife/dagger and/or the stick. The doctor has opined that the cause of death was hypovolemic shock due haemorrhage resulting from injury to liver, right carotid and head injury, especially, external injuries No.15 and 16. It emerges that there were as many as 8 punctured woulds or stab wounds. There were 2 incise wounds and 7 CLWs. The tip CR.A/1099/1998 11/36 JUDGMENT of right ring finger was chopped off. The stab wounds or punctured wounds were on vital parts of body like chest and neck. The CLWs. were also on vital part of the body like head. The brain substance was damaged, the liver was cut and the right carotid was cut. All these factors indicate that these injuries could not be either accidental or suicidal. The injuries have resulted into death of the deceased and, therefore, the injuries were homicidal and the deceased met with a homicidal death. 7. Now, if the evidence of eye-witnesses is seen, Parshottam Ghusabhai is at Exhibit 59. He is the first informant and, according to him, while he and P.W. 2-Vithalbhai Ranchhodbhai were going on their motorcycle from Bagasara to Galath, they noticed that the deceased and P.W. 3-Jaskubai were going on their motorcycle ahead of them. When they were about to reach the place of incident, the accused persons overtook them on their motorcycle. The motorcycle was being driven by accused No.1 and accused No.2 was on the pillion seat with a stick in his hand. The accused persons, after overtaking the witness, went further and when they came parallel to the motorcycle of P.W. 3 CR.A/1099/1998 12/36 JUDGMENT and the deceased, accused No.2 inflicted a stick blow on the deceased. This witness describes accused No.2 as the nephew of accused No.1 from village Rafaliya. The blow with stick was given by accused No.2 on head of the deceased. The witness identified accused No.2 in the Court as the assailant with stick. The witness says that he did not know name of the assailant at the time of the incident, but later on, he learnt his name. The witness identifies accused No.1 as the person who was riding the motorcycle. The witness then goes to say that, on accused No.2 inflicting stick blow, deceased-Vallabhbhai fell down. Then he got up and started running. At that time, accused No.2 started beating him with stick. At that time, accused No.1-Mankubhai drew out a dagger and started causing injuries to deceased-Vallabhai Lavabhai. Both of them attacked the deceased indiscriminately. The injuries were being caused in chest and neck. The witness says that Vallabhbhai was in company of Jaskubhai on the motorcycle. The witness says that they saw the incident. Jaskubhai also came back and stood with them and saw the incident. Thereafter, Jaskubhai left for Bagasara and accused No.1 told the witnesses also to go ahead. The witness says that they went towards Mujiyasar and then CR.A/1099/1998 13/36 JUDGMENT stopped. After some time, they returned towards Bagasara and when they reached the place of incident, they saw that Vallabhbhai Lavabhai was dead and was bleeding from head, neck and chest. None of the accused was present. They, therefore, went to Bagasara Police Station and lodged the F. I. R. ( the F. I. R. seems to have been lodged at 14.50 hours, i.e. a few minutes after the incident). The witness says that, after the incident, he had seen accused No.2 in the office of Mamlatdar during the TI parade and he had identified him before the Magistrate, at that time, when the accused was standing in a row with 7 – 8 young persons. The witness identifies knife/dagger as similar to the one which was with accused No.1 at the time of the incident. The witness has been cross-examined at length on all available aspects, but his deposition has remained unshaken. Learned advocate for the appellants could not point out anything from his deposition which would render his deposition doubtful. 7.1 Deposition of P.W.2-Vithalbhai Ranchhodbhai is at Exhibit 65. He says that he had gone with Parshottambhai Ghusabhai to Bagasara for shopping. On the way, the had a talk CR.A/1099/1998 14/36 JUDGMENT interse that Jaskubhai and Vallabhbhai had gone to Amreli. The witness says that, at 2.00 P.M., they were free from their work at Bagasara and started for Galath on the motorcycle, which was ridden by him. When they came out of Bagasara, they noticed that Jaskubhai and Vallabhbhai were going in a motorcycle and Jaskubhai was riding the motorcycle and the deceased was sitting behind. The witness goes on to say that the accused persons came from behind. Accused No.1 was riding the motorcycle and his nephew from Rafaliya was the pillion rider, who had a stick in his hand. The witness identified the two assailants. He says that, he knew accused No.2 from a time prior to the incident as Rafaliya is nearer to the village of the witness. The witness says that, he had seen accused No.2 at the time of the incident, but did not know his name. The witness describes the actual occurrence in the same manner as it was described by Parshottambhai Ghusabhai, namely, that when the motorcycle of the accused persons reached parallel to the motorcycle of the deceased, accused No.2 inflicted a stick blow on head of Vallabhbhai and, as a result, he fell down and when the deceased started running away, accused No.1 stopped the motorcycle. Accused No.2 ran after Vallabhbhai and inflicted stick CR.A/1099/1998 15/36 JUDGMENT blows on head of deceased-Vallabhbhai. Accused No.1-Mankubhai inflicted knife blows on various parts of the body like chest, hip, neck, etc. Jaskubhai, therefore, raised shouts to prevent further assault, but accused No.1 turned on him. Therefore, Jaskubhai left on motorcycle towards Bagasara. He noticed that accused No.2 was again giving stick blows on Vallabhbhai, during this time, indiscriminately. The witness says that they were asked to leave. The witness says that then they went towards Manekvada and stopped and, subsequently, came back after some time and noticed that Vallabhbhai was lying dead over there and the assailants had left. The deceased was bleeding from head, neck and chest injuries. The witness says that he and Parshottam went to police and lodged the F. I. R. 7.1.1 The witness says that accused No.1 had lodged a criminal case against deceased-Vallabhbhai in respect of an incident that took place about a year back and, in that case, deceased- Vallabhbhai came to be acquitted on 24th September, 1993, which is the cause for the incident. The witness says that he was called for TI parade by the Mamlatdar, Dhari. He and Parshottam went CR.A/1099/1998 16/36 JUDGMENT together. Jaskubhai had also come. TI parade was arranged and they identified accused No.2. The witness says that he learnt about the name of accused No.2 later on. This witness is also cross-examined at length on various aspects to test his veracity, memory, etc., but nothing turns which would render the deposition incredible. 7.2 The third eye-wtiness is Jaskubhai Kathadbhai Basiya. He is examined at Exhibit 90. He says that he was partner with Vallabhbhai in Uday Travels. 7.2.1 On the incident, he says that the incident occurred on 28th September, 1993. Vallabhbhai Lavabhai came to him and asked him whether he would like to go to Amreli, which he refused. Then the deceased told him to drop him at the outskirts on the motorcycle and they went to the outskirts on the motorcycle. Ultimately, they went together to Amreli. The witness says that, after the work was over, when they were returning, they halted at Bagasara and started from there at about 2.00 P.M. He was riding the motorcycle and the deceased was on the pillion. He CR.A/1099/1998 17/36 JUDGMENT says that when they reached near the place of incident, a motorcycle approached from behind, came parallel to their motorcycle and Vallabhbhai fell down and shouted. The motorcycle travelled further, but he slightly lost control. He says that Vallabhbhai fell down. He also says that one person was hitting Vallabhbhai with a stick. He then tried to take a turn on the motorcycle and saw that accused No.1 and his nephew were committing assaults on the deceased. Accused No.2 had stick in his hand and he inflicted stick blows whereas accused No.1 chased the deceased and inflicted blows with a big dagger. The witness says that, he raised shouts to prevent further assault. The assault was indiscriminate and he could not exactly note as to where the injuries were caused. He tried to contact police on phone, but there was no reply. He, therefore, went to Police Station on the motorcycle and found Parshottambhai and Vithalbhai over there and were dictating the F. I. R. The witness says that the person with accused No.1 was his nephew from village Rafaliya. He knew accused No.2 as they all belong to same caste and were otherwise also acquainted with each other. He identifies accused No.2 as the assailant. He says that, he had identified him in the TI parade as CR.A/1099/1998 18/36 JUDGMENT well. This witness also is tested on the touchstone of cross- examination, but has been able to pass the test. In a lengthy cross- examination, he has given reply which do not help the defence in any manner. The witness has remained unshaken. 7.2.2 Learned Advocate for the appellant also could not point out any material from the deposition of this witness, which would render the deposition of the witness unbelievable or doubtful. 8. The only ground on which deposition of these three eye-witnesses is sought to be assailed is that their presence at the time and place of the incident is unnatural or improbable. Despite a close scrutiny, we are unable to identify any part of the deposition which would show likelihood of the witnesses not being present at the place of incident. On the contrary, what they have said in examination-in-chief explains their presence at the time and place of the incident and they have stuck to their version during cross-examination. It is not unknown that people from villages plan their household shopping and go to towns. Similarly, it is also not unknown that village people, while they go to town or city CR.A/1099/1998 19/36 JUDGMENT for some work, they work out in advance for going in a company and that is how the presence of the three eye-witnesses gets established through their trustworthy depositions. 8.1 It is also contended that eye-witness, Jaskubhai, is on enmical terms with the accused persons. We do not find any material to infer this aspect. On the contrary, accused No.1 and Jaskubhai (P.W. 3) are caste fellows. It also transpires that P. W. 3 was a Panch witness in an earlier prosecution launched by accused No.1 against the deceased and, therefore, in absence of any other material animosity between the accused and P. W. 3 cannot be inferred. 8.2 It was also contended that P.W.1-Parshottambhai Ghusabhai and P.W. 2-Vithalbhai Ranchhodbhai are caste fellows of the deceased and, therefore, their version also would be tainted, they being interested in the deceased. In our opinion, deposition of a witness interested in the deceased will not be rendered vulnerable to doubt unless it is shown that the witness has some bias against the accused and some bias in favour of the deceased. CR.A/1099/1998 20/36 JUDGMENT The appellants have not been able to show any material from the evidence that P. W. 1 and/or P. W. 2 had any grievance against the appellants. 8.3 From the foregoing discussion, it is clear that presence of eye-witnesses is properly established, their presence is natural and their depositions come in a natural way. The last but not the least, all the three eye-witnesses implicate accused No.1 by name and accused No.2 as nephew of accused No.1 from village Rafaliya and, later on, identify him as Dilubha, accused No.2. They all have identified him before the Court. They have also identified accused No.2 before the Executive Magistrate in the TI Parade. However, the TI parade is subjected to criticism, that the witnesses do not give detailed description of appearance of the assailant with stick prior to TI parade and, therefore, the identification of accused No.2 and the TI parade would be subjected to doubt. It is also contended that Panch witnesses to the TI parade have not been examined by the prosecution and, therefore, when the witnesses have not given description of the assailant and name of the assailant, and when the procedure followed at the TI parade was CR.A/1099/1998 21/36 JUDGMENT not strictly in accordance with law, involvement of accused No.2 on the basis of evidence of the eye-witnesses by the Trial Court may not be upheld by this Court, as it would be vulnerable to doubt. 9. In order to appreciate the contentions raised by the appellant, it would be appropriate firstly to examine the law on TI parade. In this regard, reference may be had to the following decisions :- (1) Chander Singh v. State of U. P., AIR 1973 SC 1200. (2) Abbas Hasam Ghanchi v. State of Gujarat, 1993 (1) GLH 33. (3) State of Gujarat v. Mahmad @ Munno Usmanbhai Chauhan, 1996 (2) GLR 821. (4) State of Maharashtra v. Suresh, 2000 SCC (Cri.) 263. (5) State of Rajasthan v. Darbara Singh, 2000 Cri. L.J. 2906. (6) Simon and Ors. v. State of Karnataka, 2004 SCC (Cri.) 646. (7) Abdul Waheed Khan alias Waheed & Ors. v. State of A. P., 2005 SCC (Cri.) 1301.