CR.A/234/1990 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 234 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE DN PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NAGJI ODHAVJI KUMBHAR & 1 - Appellants Versus STATE OF GUJARAT - Opponent ========================================================= Appearance : MR KJ SHETHNA for the Appellants. PUBLIC PROSECUTOR for the Opponent. ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE DN PATEL Date :24.10.2008 CR.A/234/1990 2/12 JUDGMENT CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE D.N.PATEL) The present Appeal has been preferred by the appellants (original accused nos. 1 and 2) against the judgment and order of conviction dated 3rd February, 1990 in Sessions Case No. 98 of 1987 passed by the learned Additional Sessions Judge, Junagadh, whereby the appellants have been convicted for the offences punishable under sections 302 and 324 of the Indian Penal Code for causing death of (i) Bhura Govind and (ii) Lakha Arjan. Accused are ordered to undergo imprisonment for life. No separate sentence is awarded under section 324 of the Indian Penal Code. 2. Brief and relevant facts of the prosecution case are as under: The incident in question took place on 1st July, 1987 at 24.00 hours at village Prempara-Rampara. It is the prosecution case that the present appellants had caused injuries to Bhura Govind and Lakha Arjan by means of spears and the injuries were so severe and grievous that both the persons had expired on the spot. The accused had made their escape good thereafter. The incident had taken place because the appellants were not giving right of way to the deceased. The complainant had filed Civil Suit No. 56 of 1987 and an injunction was granted below injunction application exh. 5. There is also a cross case filed by the appellants-accused which is Sessions case no. 97 of 1987. Thus, presence of the present appellants at the scene of offence was established with weapons and there was no weapon in the hands of the deceased, even as per the complaint, filed CR.A/234/1990 3/12 JUDGMENT by the present appellants which is at exh. 23. Injuries were so severe and grievous that both the persons namely Bhura Govin and Lakha Arjan died instantaneously. Thereafter, investigation was carried out, upon arrest of both the appellants on 17th July, 1987 at 20.30 hours. The incident had taken place on 1st July, 1987. Sessions case no. 98 of 1987 was registered and upon recording evidence, the appellants were convicted and sentenced as stated above, for the murder of Bhura Govind and Lakha Arjan. Against this judgment and order of conviction and sentence, the present appellants (original accused nos. 1 and 2) have preferred this Appeal before this Court. 3. We have heard the learned advocate for the appellants at length, who has mainly submitted that the trial court has not appreciated the self defence. False version has been given by P.W. no.3 who is an eye witness. The incident had taken place at dark night hours and therefore, there is no question of identify of the present appellants. The evidence of PW no. 4, who is an injured eye witness, is full of omissions and contradictions. Exh. 21 scene of offence panchnama is in favour of the appellants-accused and the trial court has constantly compared the acquittal in Sessions case no. 97 of 1987 with the facts of the present case i.e. Sessions case no. 98 of 1987 which is not permissible and therefore, the order of conviction deserves to be quashed and set aside as the prosecution has failed to prove beyond reasonable doubt, the case against the present appellants. CR.A/234/1990 4/12 JUDGMENT 4. We have heard the learned Additional Public Prosecutor on behalf of the respondent State who has mainly submitted that FIR is filed on 2nd July, 1987 at 7.00 a.m. The incident had taken place on 1st July, 1987 at 24.00 hours. Thereafter, both the deceased were taken to Hospital at Junagadh and therefore, some time was consumed. The present appellants were named in the FIR. It is also submitted by the learned Additional Public Prosecutor that there are eye witnesses to the present incident, namely PW 3 and PW 4. PW 3, namely Ramabhai Rajan has filed FIR and PW 4 is Govindbhai Punabhai is an injured eye witness whose injury certificates are at exhs. 14 and 38 which are proved by PW 2 Dr. Govindbhai Lakhmanbhai. It is also submitted by the learned Additional Public Prosecutor that PW 5 Mohanbhai Velabhai at exh. 18 is supporting the witnesses. PW 3 had gone at the house of PW 5 and had asked for a bullock cart so that both the deceased and injured eye witness can be shifted to hospital. Thus, PW 5 has corroborated the deposition of eye witnesses i.e. PW 3 and 4. It is also submitted by the learned Additional Public Prosecutor that the presence of the accused has been established by cross FIR and lastly it is submitted by the learned Additional Public Prosecutor that there were no weapons in the hands of both the deceased, even as per cross FIR filed by the present appellants and therefore, rightly the trial court has not given benefit of self defence to the present appellants. Otherwise also, benefit of self defence cannot be given to the accused. Looking to the nature of injuries caused by both the accused to both the deceased, it is proved that the appellants were the aggressors. There is no error committed by the trial court in appreciating the evidence of the prosecution witnesses and with the help of eye witnesses and medical CR.A/234/1990 5/12 JUDGMENT evidence, the offence has been proved beyond reasonable doubt against the present appellants and therefore, the judgment and order of conviction and sentence passed by the trial court is just and proper and may not be interfered with by this Court. 5. We have heard the learned counsel for respective parties at length and perused the evidence on record. It appears that the incident had taken place on 1st July, 1987 at 24.00 hours at village Prempara- Rampara. There was a dispute as to the right of way and therefore, as per Prosecution Witness no. 3 who is an eye witness namely Rambhai Rajanbhai, when they had gone to their field, they saw that the appellants had caused hindrances in their right of way and therefore, they asked the appellants as to why they had stopped their right of way. This witness has narrated in detail as to how the whole incident had taken place and the present appellants told the deceased that they will not be allowed to pass through that way and ultimately they caused injuries by spears and the injuries were caused to both Bhurabhai Govindbhai and Lakhabhai Arjanbhi. The injuries were so grievous and severe that both these persons died on the spot. Godadbhai Punabhai had tried to intervene and he was also assaulted by both these appellants and injuries were caused to Godadbhai Punabhai. (PW 4). Thus, looking to the evidence given by this eye witness PW 3, it appears that he is a natural witness. He has narrated the whole incident very accurately. There is no material omission or contradictions in his deposition. From his cross-examination, nothing is coming out in favour of the present appellants. On the contrary, in the cross- examination, he has fortified his examination-in-chief. Both the appellants had run away thereafter. They were CR.A/234/1990 6/12 JUDGMENT having torch also and therefore, they could identify the appellants. Otherwise also, the appellants were known to the deceased and other persons on the side of the deceased. This witness has given FIR immediately. Incident took place on 1st July, 1987 at 24.00 hours and FIR is filed on 2nd July, 1987 at 7.00 a.m. (Exh. 16). Accused are named in FIR. The role played by them with weapons has been narrated in FIR. This FIR (Exh. 16) corroborates the deposition of eye witnesses. Therefore, there is no question of mid-identification whatsoever. There is also a cross FIR filed by the appellants. Therefore also, their presence has been established at the scene of offence. Looking to the deposition of this witness, it appears that he is a trustworthy witness. There is no exaggeration in his deposition nor there is any material omission or contradiction. On the contrary, his deposition has got enough corroboration through other evidence like evidence of PW 4, PW 5 and by medical evidence PW 1. 6. Looking to the evidence given by another eye witness namely PW 4 at exh. 17, Godadbhai Punabhai, it appears that he is an injured eye witness. The injury certificates at at exhs. 14 and 38. This witness has tried to intervene and save life of both the deceased. But appellants have also caused injuries to this witness. Looking to the deposition of this injured eye witness, he has also narrated the whole incident in detail. He has also given the names of the present appellants. Nature of weapons have also been narrated by this witness. His presence at the scene of offence has been established by exhs. 14 and 38 which are injury certificates proved by PW 2 Dr. Govindbhai Lakhmanbhai. He has supported the deposition given by eye witness PW 3. The incident has CR.A/234/1990 7/12 JUDGMENT taken place because the appellants have caused hindrance in their right of way. From the the cross-examination of this witness, nothing is coming out in favour of the present appellants. He is a natural eye witness. His presence is also established by other evidence. There are no material omissions or contradictions in his deposition nor there is any exaggeration in his deposition. He is a trustworthy injured witness. Looking to other evidences on record like post mortem notes of both the deceased, evidence of PW 3 and PW 5, evidence of PW 7, and other panchnamas, the prosecution has proved the case against the present appellants beyond reasonable doubt. 7. Looking to the deposition given by PW 5 at exh. 18, who is Mohanbhai Velabhai, it appears that PW 3 had gone to him and asked for bullock cart for removing the deceased and other injured witnesses to Junagadh hospital. This witness had given his bullock cart. Though he is not an eye witness, he is supporting the witness who supports the material facts stated by eye witness PW 3 and by injured eye witness, PW 4. 8. Looking to the evidence given by PW 7 at exh. 20 Nathabhai Haribhai who is a panch witness of the scene of offence panchnama, scene of offence panchnama has been proved by this witness at exh. 21. There were blood stains on the weapons. The weapons were also lying at the scene of offence. It is stated by the learned advocate for the appellants that this scene of offence panchnama is in favour of the present appellants. We are unable to agree with this argument of the learned advocate for the appellants mainly for the reason that the scene of offence panchnama proves the fact that the offence had CR.A/234/1990 8/12 JUDGMENT taken place in the fields of village Rampara on southern western side of the field of the present appellant no. 1. Blood stains were also found at the scene of offence. Weapons were also found at the scene of offence. Even as per cross FIR, at this scene of offence, the present appellants were present. On the contrary, this scene of offence panchnama corroborates the depositions given by PW 3, PW 4 and PW 5. 9. Looking to the evidence given by Bhimabhai Jethabhai at exh. 22 who is PW 8, he has proved various panchnamas. It is also stated by him that cross FIR bearing Cr. No. I-92 of 1987 has been filed by the present appellant no. 1 for the offences punishable under sections 326, 325, 326, 147, 148 and 149 of the Indian Penal Code. There is acquittal in this case but Sessions case no. 97 of 1987 was registered. 10. Looking to the deposition of PW 1 Dr. Gopalbhai Kadvabhai (Exh.7) who has performed post mortem of both the deceased at exhs. 9 and 10, it appears that there are stab injuries to the deceased on the vital parts of their bodies. Lung of deceased Bhura Govind was also pierced by stab injuries. Likewise, there were also stab injuries on another deceased namely Lakha Arjan and his left lung was also pierced due to stab injuries. It has been deposed by this witness that injuries caused to the deceased were sufficient in ordinary course of nature to cause death of the deceased. These injuries can be caused by a spear. The deposition of this witness supports the deposition given by eye witnesses PW 3 and PW 4. 11. Looking to depositions of other witnesses, like PW 11 Kanaksinh Manji who is Circle Inspector at exh. 40 CR.A/234/1990 9/12 JUDGMENT deposition of PW 12 who is a panch witness of discovery of weapons, evidence of PW 13 namely Murlidhar Chhatrabhuj Vasu who is Investigating Officer to be read with FSL and Serologist's report, there is enough corroboration to the depositions of PW Nos. 3 and 4. 12. Defence witnesses Valjiben and Chhaganbhai have been examined as defence witness nos. 1 and 2 at exhs. 54 and 56 by the present appellants. Looking to their depositions, it appears that they have stated that injuries were caused to the appellants. Injury certificates of the appellants are at exhs. 80 and 81 as well as at exhs. 128 and 129. They were examined by PW 10 Dr. Nikhilkumar P Buch. 13. Looking to evidence, it appears that the present appellants have caused injuries to Bhura Govind and Lakha Arjan by spear. This incident has been seen by PW 3 and PW 4. Their presence at the scene of offence is natural one. PW 4 is an injured eye witness. There are no material omissions or contradictions in their depositions nor there is any exaggerated version in their depositions. On the contrary, there is enough corroboration to the depositions of these witnesses. PW 5 is a supporting witness who has stated that PW 3 come to his house and had asked for bullock cart to remove Bhura Govind and Lakha Arjan to hospital. Looking to the deposition of PW 1 Dr. Gopalbhai Kadvabhai at exh. 7 he has performed post mortem of Bhura Govind and Lakha Arjan and their post mortem notes are at exhs. 9 and 10 respectively. Looking to the deposition of this witness, it is clear that stab injuries were caused to the deceased. These injuries can be caused by a spear. Injuries caused to the deceased were sufficient in the CR.A/234/1990 10/12 JUDGMENT ordinary course of nature by the weapons shown to him, to cause the death of the deceased. By stab injuries, lungs of the deceased were also penetrated. Thus, there is corroboration by this evidence at exhs. 7 (deposition of Doctor) and Exhs. 9 and 10 (Post mortem Notes) to the deposition of PW 3 and the deposition of injured eye witness PW 4. The scene of offence panchnama at exh. 20 is also proved by police witness as well as by panch witnesses (PW 7) and they also corroborate the depositions of PW 3 and PW 4. Otherwise also, presence of the present appellants has been established by their own cross FIR. PW 4, an injured eye witness. His injury certificates are at exhs. 14 and 38. PW 5 is a supporting witness who is examined at exh. 18 who has also given corroboration to the deposition of eye witnesses. Looking to the evidence of PW 12 who is a panch witness of discovery of weapons panchnama, deposition of PW 13 who is a police witness and other evidence like FSL report and Serelogist's report, evidence of eye witnesses to be read with medical evidence, in our opinion, the prosecution has proved the case against the present appellants beyond reasonable doubts. 14. It is vehemently submitted by the learned advocate for the appellants that self defence has not been properly appreciated by the trial court. This argument is not accepted by this Court mainly for the reason that looking to the nature of injuries caused by the present appellants to the deceased, there are stab injuries to both the deceased. Considering the medical evidence given by PW 1 Dr. Gopalbhai Kadvabhai at exh. 7, post mortem notes at exhs. 9 and 10 of both the deceased and injury certificates of the present appellants, it appears that the present appellants were the aggressors. CR.A/234/1990 11/12 JUDGMENT They had used their weapons unreasonably and excessively. Even looking to the cross FIR filed by the appellants at exh. 23, there was no weapon in the hands of both the deceased. On the contrary, by cross FIR, presence of the accused is established at the scene of offence and therefore, rightly the trial court has not given any benefit of self defence to the appellants. The appellants have caused injuries to both the deceased so grievously and severely that they died instantaneously. It is also submitted by the learned advocate for the appellants that at dark night hours, the incident had taken place and therefore, eye witness could not identify the appellants- accused. This contention is also not accepted by this Court mainly for the reason that looking to the deposition of PW 3, it appears that he has clearly narrated that they were having torch in their hands. They had seen in the light of torch the present appellants with weapons. This fact has also been narrated by PW 4, an injured eye witness. Even looking to their cross-examination, they have maintained this version which they have given in the examination-in-chief. On the contrary, it is also stated emphatically by this witness that they have clearly seen the appellants with the help of torch that the appellants were causing injuries by means of spears to both the deceased and thereafter, they had made their escape good. Even looking to the FIR filed by PW 3, he has narrated these facts immediately before the police on 2nd July, 1987 at 7.00 a.m. The incident had taken place on 1st July, 1987 at 24.00 hours. It is also submitted by the learned counsel for the appellants that false version has been given by PW 3 and PW 4. This contention is also not accepted by this Court mainly for the reason that looking their depositions, they were present at the scene of offence. PW 4 is an injured eye CR.A/234/1990 12/12 JUDGMENT witness. Even as per cross FIR, PW 3 and PW 4 were present at the scene of offence. There is enough corroboration to the depositions of PW 3 and PW 4 by other evidence as stated hereinabove and therefore, they are trustworthy witnesses. 15. As a cumulative effect of the aforesaid facts and reasons, the evidence recorded, depositions of prosecution witnesses, in our opinion, no error has been committed by the trial court in appreciating evidence and convicting the present appellants for the murder of Bhura Govind as well l as Lakha Arjan. There is no perversity in the order passed by the trial court. The prosecution has proved the offence against the appellants beyond reasonable doubt. Present appellants have committed double murder. There is therefore, no substance in this appeal. The same is hereby dismissed. The appellants are on bail. Their bail bonds are cancelled forthwith. They are ordered to surrender to jail authority within eight weeks from today. (R.P.Dholakia,J) (D.N.Patel,J) ***darji