CR.A/1722/2005 1/35 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1722 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 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 ? ====================================== HASMUKH NANJI RABARI & ORS Versus STATE OF GUJARAT ====================================== Appearance : MR YOGESH S LAKHANI for Appellants MS ARCHANA RAVAL APP for Respondent ====================================== CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 16 /09/2008 CR.A/1722/2005 2/35 JUDGMENT CAV JUDGMENT : (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1. Instant Appeal is preferred by the appellants under Section 374 of the Code of Criminal Procedure, 1973, against the judgment and order delivered by Presiding Officer, Fast Track Court No. 4, District – Rajkot at Morbi, on 11th of August, 2005, in Sessions Case No. 2 of 2003, whereby the present appellants came to be convicted for the offences punishable under Sections 143, 147, 148, 323, 324, 504 and 307 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. Each of the appellants was sentenced to undergo six months imprisonment and to pay fine of Rs. 500/-, in default to undergo one month imprisonment for the offence punishable under Section 143 of the Indian Penal Code; to undergo two years imprisonment and to pay fine of Rs. 1,000/- in default to undergo one month imprisonment for the offence punishable under Section 147 of the Indian Penal Code; to undergo imprisonment of three years and to pay fine of Rs. 3,000/- in default to undergo imprisonment of six months for the offence punishable under Section 148 of the Indian Penal Code; to undergo imprisonment of one year and to pay fine of Rs. 1,000/- in default to undergo imprisonment of one month for the offence punishable under Section 323 of the Indian Penal Code; to undergo imprisonment of three years and to pay fine of Rs. 3,000/- in default to undergo imprisonment CR.A/1722/2005 3/35 JUDGMENT of six months for the offence punishable under Section 324 of the Indian Penal Code; to undergo imprisonment of two years and to pay fine of Rs. 1,000/-, in default to undergo imprisonment of three months for the offence punishable under Section 504 of the Indian Penal Code and to undergo imprisonment of 10 years and to pay fine of Rs. 10,000/- in default to undergo imprisonment of one year, for the offence punishable under Section 307 of the Indian Penal Code. Each of the appellants came to be convicted and sentenced for the offence punishable under Section 135 of the Bombay Police Act and was sentenced to undergo imprisonment of one month. The learned Trial Judge also directed that all the sentences awarded to each of the appellants shall run concurrently and set off also be given to each of the appellants. 2 According to prosecution case, the incident took place at Morbi, on 21.4.2002 during 20.00 to 20.30 hours near old Octroi Office. According to the further prosecution case, complainant - PW-3 Ravubha Banubha Jhala had been to one Jagabhai Satwara, who was doing catering services and wedding of complainant was to take place in near future, he wanted to talk to said Jagabhai Satwara. When complainant Ravubha was standing near the shop of Jagabhai Satwara, accused No.2 Hirabhai Parbatbhai Rabari was also standing there and accidentally leg of Ravubhai had struck upon accused Hirabhai CR.A/1722/2005 4/35 JUDGMENT Parbatbhai Rabari and, therefore, accused Hirabhai Parbatbhai got excited and started giving abuses to Ravubha. Thereafter, Ravubha came to the shop of his cousin brother Bhavansinh Agubha Jhala and the shop was situated near Octroi Office. Half an hour thereafter, all the six accused – appellants and other four persons came there and started giving abuses to Ravubha and he was told that why complainant was giving abuses near the shop of Jagabhai Satwara to accused No.2. Brother of accused No.1 Hasmukh Nanji inflicted a blow with stick on the head of the complainant and thereafter accused No.2 Hirabhai Parbatbhai also inflicted a blow with stick on the head of the complainant. All the accused and other persons started beating complainant with sticks. Complainant Ravubha thereupon started shouting for help and in the meantime his other cousin Raghubha Agubha Jhala - PW-4 came there to rescue complainant Ravubha Banubha. At that time, accused No.1 Hasmukh Nanji gave a stab wound with knife on the side of the body of Raghubha Agubha. In the meantime, other cousin brothers of the complainant, Bhavansinh Agubha and Nirubha Sabalsinh also reached there and complainant was set free from the accused. All the accused persons ran away from the spot. Raghubha Agubha was taken to hospital by Bhavansinh and Gajubha Sabalsinh and complaint came to be recorded by the Police Sub-Inspector, Morbi City Police Station, on 25th of April, 2002 at about CR.A/1722/2005 5/35 JUDGMENT 23.00 hours in the hospital, which is at Exhibit-27. On that day, injured Raghubha was examined by PW-2 Dr. Mahendrakumar Amrutlal Sanghvi at Civil Hospital Morbi at 21.00 hours, he was referred to Rajkot for further treatment. However, injured Raghubha preferred to take treatment from private Doctor, PW-12 Dr. Ranchhodbhai Mavjibhai Bhut and according to him, a knife wound to the injured was on the back and near spinal cord. Other three injured i.e. PW-3 Rabubha Banubha Jhala for his simple injury, took treatment from PW-12 Dr. Ranchhodbhai Mavjibhai Bhut while PW-5 Bhavnsinh Agubha Jhala and PW-6 Nirubha Sabalsinh Jhala, both took treatment from Dr. Narendrasinh Natubha Jhala for their simple injury at Civil Hospital, Morbi, on the next day of the incident. 3 On crime being registered, the same was investigated by Kailashnath Shyamsundar Shukla, PI of Morbi Police Station and charge sheet was submitted in all against eight persons and two being juvenile offenders, were sent to appropriate court. The case being committed to the Court of Sessions, the learned Trial Judge framed charges against six accused on 18th of August, 2004, vide Exhibit-1, for the offences punishable under Sections 143, 147, 148, 504, 149, 324, 323 and 307 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. CR.A/1722/2005 6/35 JUDGMENT 4 All the accused – appellants pleaded not guilty and, therefore, prosecution examined as many as 15 witnesses : PW-1 Dr. Narendrasinh Natubha Jhala Exh. 12 PW-2 Dr. Mahendrakumar Amrutlal Sanghvi Exh. 18 PW-3 Ravubha Banubha Jhala Exh. 26 PW-4 Raghubha Agubha Jhala Exh. 29 PW-5 Bhavansinh Agubha Jhala Exh. 30 PW-6 Nirubha Sabalsinh Jhala Exh. 31 PW-7 Ranjitsinh Dilubha Jadeja Exh. 32 PW-8 Karshanbhai Ramjibhai Dabhi Exh. 34 PW-9 Kalubhai Menandbhai Gajiya Exh. 35 PW-10 Kishorsinh Juvansinh Jadeja Exh. 37 PW-11 Rajendrasinh Hathisinh Jadeja Exh. 39 PW-12 Dr. Ranchhodbhai Mavjibhai Bhut Exh. 40 PW-13 Amrutlal Thakarshibhai Kasundra Exh. 44 PW-14 Balvantrav Bhikhajiraj Mohite Exh. 45 PW-15 Kailashnath Shaymsundar Shukla Exh. 49 5 In addition to this, prosecution also placed on record the following documentary evidence : CR.A/1722/2005 7/35 JUDGMENT 1. Medical Certificate Exh. 13 2. O.P.D. Case Papers Exh. 14 3. Medical Certificate Exh. 15 4. O.P.D. Case Papers Exh. 16 5. Police Yadi Exh. 17 6. Medical Certificate Exh. 19 7. O.P.D. Case Papers Exh. 20 8. In-door Case Papers Exh. 21 9. Police Yadi Exh. 22 10. Complaint Exh. 27 11. Inquest Panchnama Exh. 33 12. Panchnama of scene of offence Exh. 36 13. Arrest Panchnama Exh. 38 14. Medical Certificate Exhts – 41, 42, 43 15. Written Complaint Exh. 46 16. Order of Inquiry Exh. 47 17. Notification for Hathiyar Bandhi Exh. 50 18. F.S.L. Report Exh.51 19. Mudammal Receipt Exh. 52 20. Letter with Serological Report Exh. 53 to 55 21 F.S.L. Report Exh. 56 CR.A/1722/2005 8/35 JUDGMENT 6 The Trial Judge thereafter recorded the statement of each of the appellants under Section 313 of the Code of Criminal Procedure wherein denying the evidence of prosecution, submitted that, in fact, complainant party was aggressor and they had attacked the accused. It is revealed during the prosecution case that for the same incident, a cross complaint came to be filed and some of the accused were injured in the same incident. 7 The learned Trial Judge thereafter heard the prosecution as well as defence and came to the conclusion as stated above and each of the appellants was convicted for the above stated offences and was sentenced and, hence, this Appeal. 8 Learned Advocate Mr. Y.S. Lakhani, submitted on behalf of the appellants that first and foremost issue which requires consideration is that the witnesses have suppressed the genesis and the origin of the incident and have failed to explain the injuries on the body of the accused and, therefore, the version of the witnesses should not be believed. It is submitted that though independent witnesses were available as the incident took place at public place and though the statements of independent witnesses were recorded, according to the deposition of Investigating Officer, no independent witnesses were CR.A/1722/2005 9/35 JUDGMENT examined by the prosecution. On the contrary, the witnesses have denied in toto the fact of accused having received injuries in the same incident. It is also suppressed that a cross complaint came to be filed for the same incident, for which a cross case was conducted, in which weapons also were recovered from the present witnesses. It is submitted that injured witness Bhavansinh Agubha Jhala - PW-5 though took injured Raghubha PW-4 to the Civil Hospital for treatment but did not take treatment to his injury which he took on the next day. Before the Doctor, in the history, names of any of the accused was not mentioned by any of the injured, even who caused injuries to PW-4 Raghubha has also not been disclosed at that juncture when injured were taken to hospital for treatment. Even when two other injured witnesses – PW-5 Bhavansinh and PW-6 Niruba took treatment on the next day, at that point of time also, no names of any of the assailants were disclosed before the Doctor by these injured witnesses. Nature of injuries to PW-4 Raghubha and PW-5 Bhavansinh were simple in nature and even injury caused to Raghubha was also not serious. Though Dr. Mahendrakumar Amrutlal Sanghvi PW-2 stated that injury was on vital part and was serious, but this fact was not noted by him in the certificate issued by him while it differs from the deposition of Dr. Ranchhodbhai Mavjibhai Bhut, PW-12, who treated injured Raghubha thereafter. Dr. Ranchhodbhai Mavjibhai Bhut – PW-12 in examination- CR.A/1722/2005 10/35 JUDGMENT in-cross in clear terms stated that no internal organ was damaged and when internal organ were not damaged, no death could have been caused by the injuries caused to Raghubha. Incident which occurred first in point of time near the shop of Jagabhai Satwara has not been supported by any of the prosecution witnesses and Jagabhai Satwara was material witness, could not be examined by the prosecution. Injured Raghubha PW-4 admits in his deposition that he has many relatives in the Police Department and, therefore, it clearly appears that the prosecution witnesses were aggressor and they launched attack upon the accused and subsequently the false case was framed against the present appellants. Learned Advocate Mr. Y.S. Lakhani further submits that thus prosecution witnesses do not inspire confidence and the case is not proved beyond doubt. It is alternatively submitted that even if the prosecution case is taken as it is as per the evidence of the Investigating Officer, who admitted that in the same incident, accused also got injuries, it was a case of free fight and when there is a free fight, accused cannot be charged for the offences punishable under Sections 143, 147, 148 and 149 of the Indian Penal Code for unlawful assembly. It is also submitted that therefore at the most individual act of each of the appellants is required to be viewed for the culpability. It is submitted that according to the prosecution case, accused No.1 Hasmukh Nanji gave knife blow to PW-4 Raghubha Agubha and other accused CR.A/1722/2005 11/35 JUDGMENT gave only stick blows, causing simple injuries to PW-3 Ravubha Banubha, PW-5 Bhavansinh Agubha and PW-6 Nirubha Sabalsinh. Therefore, while assessing the medical evidence where Dr. Ranchhodbhai Mavjibhai Bhut – PW-12 specifically stated that no vital organ of the injured was damaged and when it was a case of free fight, no intention of killing Raghubha can be imputed upon accused No.1 Hasmukh Nanji and to other accused with the aid of Section 149 of the Indian Penal Code. It is submitted therefore that at the most accused No.1 Hasmukh Nanji could be held liable for the offence punishable under Section 324 of the Indian Penal Code and other accused appellants for the offences punishable under Section 323 of the Indian Penal Code for their individual act. It is submitted that accused No.1 Hasmukh Nanji was under custody for one month during trial and after conviction accused No.1 is undergoing sentence for about three years and, hence, the imprisonment of three years would be sufficient for the offence punishable under Section 324 for appellant No.1. It is submitted that each of the appellants were under custody during trial for one month and after conviction also they were undergoing sentence for at least nine months and, therefore, that is sufficient imprisonment for each of the accused Nos. 2 to 6, for the offences punishable under Sections 323 of the Indian Penal Code. Accused Nos. 2 to 6 are on bail in pursuance of the order passed by this Court on 12th of April, 2006 CR.A/1722/2005 12/35 JUDGMENT while accused No.1 is still convicted prisoner. All the accused are required to be set free even if they are found guilty as per the prosecution case. 9 On the other hand, learned APP Mr. Archana Raval, on behalf of the State, submitted that, according to the deposition of Dr. Ranchhodbhai Mavjibhai Bhut and Dr. Mahendrakumar Amrutlal Sanghvi, the wound which was caused by the knife was extended till 6th rib of injured Raghubha and, therefore, the same was grievous in nature and having regard to intensity of wound and since the wound was on vital part of the body, it cannot said that there was no intention on the part of accused No.1 to kill Raghubha. All the eye witnesses PW-3 Ravubha, PW-4 Raghubha, PW-5 Bhavansinh and PW-6 Nirubha narrated the story which was started from the shop of one Jagabhai till the end of the quarrel in which all the four witnesses got injuries. All witnesses are consistent in their say and, therefore, there is no reason to disbelieve these eye witnesses. The witnesses are injured and assumes more importance than ordinary witnesses as there was no reason for them to implicate the accused falsely in the alleged offences. The witnesses examined are natural witnesses and inspires confidence. It is submitted that it cannot be said that genesis of the incident is suppressed by the witnesses because they are so reliable in deposing CR.A/1722/2005 13/35 JUDGMENT before the court and they are consistent as well. Superfluous injuries on the accused requires no explanation by the prosecution witnesses and that merely there was cross complaint, it could not be said that accused Nos. 2 to 6 did not share any common object with accused No.1 to kill injured witness Raghubha. When the witnesses are consistent and reliable in their evidence, the fact that they do not mention the names of the accused before the Doctor in the history, assumes no importance at all. Discrepancies as pointed out by learned Advocate for the appellants in the deposition of two Doctors i.e. Dr. Mahendrakumar Amrutlal Sanghvi and Dr. Ranchhodbhai Mavjibhai Bhut, is on account of the fact that when Dr. Bhut examined the injured Raghubha, the wound was stitched wound and not opened wound. The FIR is filed promptly because the incident took place at 8.30 p.m. and FIR came to be recorded at 11.30 p.m. and, therefore, the question of booking the accused with premeditation would not arise at all. There was no attempt of concoction of case at all against the accused because Raghubha was seriously injured and he was taking treatment. It is submitted that therefore the Appeal is required to be dismissed. 10 Both the learned Advocates submitted some decisions which will be referred later on. CR.A/1722/2005 14/35 JUDGMENT 11. We have undertaken a complete and comprehensive appreciation of all vital features of the case. We have re-appreciated the entire evidence on record with reference to the broad and reasonable probabilities of the case. We have taken into consideration the contentions raised by both the sides. We have gone through the record and proceedings of the Trail Court in great detail. 12. Prosecution has examined PW-3 Ravubha, PW-4 Raghubha, PW-5 Bhavansinh and PW-6 Nirubha as eye witnesses and injured witnesses. Out of these witnesses, PW-4 Raghubha got injuries by knife blow while others received simple injuries. All these witnesses stated before the court that incident occurred near the shop of Bhavansih, complainant Ravubha narrates the previous incident at the shop of Jagabhai Satwara, wherein his leg was dropped on the leg of accused No.2 and some hot exchanges took place there. He also stated that while he was sitting at the shop of Bhavansinh, accused came there and started giving abuses to him and started beating him. PW-4 Raghubha intervened and, therefore, accused No.1 Hasmukh Nanji inflicted a blow on the side of his waist. Injured Raghubha stated that he was sitting at one pan shop, named as “Bajrang Pan House”. At that time, accused came and started beating PW-3 Ravubha, his brother. He was watching this from opposite direction. Accused No.1 had a knife in his CR.A/1722/2005 15/35 JUDGMENT hand. He tried to intervene. At that time, accused No.1 Hasmukh Nanji inflicted a knife blow on the side of his waist and his other relatives Bhavansinh and Nirubha also intervened and accused also inflicted stick blows to them. Likewise, Bhavansinh Agubha Jhala, examined at Exhibit-30, PW-5 also stated the same story and the story is corroborated by PW-6 Nirubha Salabsinh Jhala, examined at Exhibit- 31. All the four witnesses are cross-examined but nothing contradictory could be brought about in their evidence so far as the incident and the injuries are concerned. When the evidence of these four witnesses is appreciated with the standard of a prudent person, they appear to be natural and truthful witnesses. The quality of their evidence and the manner in which they have deposed before the court undoubtedly inspires confidence. There may be lapses and slips here and there, but the tenor of the evidence appears to be trustworthy and truthful. Through dispassionate judicial scrutiny, no infirmity or such variations or contradictions appear from the evidence of these four witnesses which could undermine the substratum of the whole prosecution case. Otherwise also, the corroboration of evidence with mathematical nicety cannot be expected in criminal cases. What is required to be seen is whether the evidence of the witnesses, appreciating as a whole, is contradicted with the ring of truth or not. CR.A/1722/2005 16/35 JUDGMENT 13. Having seen the evidence of injured eye witnesses, it is required to be seen the evidence of medical experts, supporting the eye witnesses. PW-1 Dr. Narendrasinh Natubha Jhala, examined at Exhibit- 12, stated that on 22nd of April, 2002, PW-5 Bhavansinh and PW-6 Nirubha were brought before him at 6.40 p.m. with police yadi. Bhavansinh had abrasion on right middle finger while PW-6 Narendrasinh @ Nirubha had tenderness on left occipital region and tenderness on shoulder. Injuries were simple in nature. PW-2 Dr. Mahendrakumar Amrutlal Sanghvi, examined at Exhibit-18, stated that injured Raghubha was brought before him at 21.05 hours on 21st of April, 2002 when he was on duty at Morbi Civil Hospital. In history, the patient stated that when the patient intervened in a quarrel and somebody gave a blow to him over back side lower part. When the patient was examined by the witness, it was found that Raghubha had stab injuries over back higher side lower part at the level of last ribs near central line of about 3 cms on right side and size was about 5 cms x 1 cm. Depth could not be measured. The injury was bleeding and could be caused by knife. The injury was on vital part of the body and could cause death. He was referred to Rajkot Civil Hospital for further treatment. He produced on record a certificate to that extent. Though he admitted in cross-examination that in medical certificate it was not mentioned that injury was serious one. Third Doctor examined is PW- CR.A/1722/2005 17/35 JUDGMENT 12 Dr. Ranchhodbhai Mavjibhai Bhut, at Exhibit-40 and injured Raghubha– PW-4 obtained treatment from him instead of going to Rajkot Civil Hospital. Dr. Bhut stated that he has his private Nursing Home and on 21st of April, 2002, at 11.30 p.m., patient Raghubha Agubha Jhala was brought by his relatives and was admitted to his hospital. According to him, he had a stab wound on right side below 12th rib on waist. The wound was 2” x 2” length x 5” deep till retro peritoneal space and near spinal cord the wound was fresh and was stitched. The patient had also one abrasion near 6th rib. He was admitted in hospital on 21st of April, 2002 and was discharged on 30th of April, 2002. He produced on record the medical certificate. He stated that injury No.1 was serious and could be caused by muddamal knife. He also stated that the injury was on vital part of the body and could have caused death. This witness also examined PW-3 Ravubha – complainant of the case and Ravubha had CLW of 1.0 cm x 0.5 cm on left parietal region. The injury was simple and could have been caused by hard and blunt substance. He was treated in OP. The witness submitted on record the medical certificate of this injured at Exhibit-42. The Doctor was cross-examined in detail. In cross-examination, Dr. Bhut admitted that injury No.1 caused to PW-4 Raghubha was opened by him through a surgery. He found that no internal organ was damaged by the injury and only muscles were cut. The Doctor also CR.A/1722/2005 18/35 JUDGMENT admitted in cross-examination that by merely cutting muscles by an injury, ordinarily, no death could be caused. He also admitted that the injury was such that its depth could be measured. 14. Thus, so far as the incident is concerned, which is proved by PW-3 Ravubha, PW-4 Raghubha, PW-5 Bhavansinh and PW-6 Nirubha, which is fully supported by three Doctors. In addition to this, it is required to be noted that prosecution produced on record the panchnama at Exhibit-38. This is the panchnama of arrest of the accused by which accused No.1 at the time of arrest, produced a knife before the police in the presence of two panchas. However, two panchas i.e. PW-10 Kishorsinh Juvansinh Jadeja, examined at Exhibit-37 and Rajendrasinh Hathisinh Jadeja, examined at Exhibit-39, did not support the panchnama, but this panchnama is proved by the Investigating Officer PW-15 Kailashnath Shaymsundar Shukla and according to Forensic Science Laboratory report, Exhibit-54, blood group of `B' belonged to the injured was found on muddamal article knife. In this view of the matter, the submission that suppression of genesis and origin of incident would not assume any importance with the contention that accused had also got injuries. It is true that there was free fight and accused side also filed a complaint. At the same time, it is to be noted that