IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1082 of 1996 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- AMBALAL NANDLAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PM VYAS for Appellant MR SUDHANSU S. PATEL, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE J.R.VORA Date of decision: 05/08/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.R.VORA) 1. This Appeal is preferred under the provisions of Section 374(2) of the Code of Criminal Procedure Code, 1973 is addressed against judgment and order delivered by learned Additional Sessions Judge, Mehsana, on 8th of November, 1996, convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to rigorous imprisonment for life and fine of Rs.500/-, in default, rigorous imprisonment for three months. The appellant was prosecuted but acquitted of the charge levelled against him for the offence punishable under Section 135 of the Bombay Police Act. However, this acquittal is not the subject matter of channge by the State Government. 2. Deceased and victim in this case is father while accused - appellant herein happens to be his son. Prosecution story discloses that the incident in question occurred on 14th of April, 1996 at about 3.00 p.m. at village Ambod, Taluka Mansa of Mehsana District. The appellant had some dispute against his father in respect of money, which deceased father had kept in Fixed Deposit Receipt, maintained with a Bank and on this account, present appellant was picking up quarrels with the deceased demanding money from his father. On the day of the incident, accused started beating deceased with a thick stick (dhoka i.e. club - like piece of wood) and inflicted many blows. Hearing his shouts, Amrutlal Manilal Darji, PW-14 conveyed to PW-13 Mahendrasinh Kanasinh Chavda that the appellant was beating his father. PW-13 Mahendrasinh Kanasinh Chavda in turn conveyed to PW-2 Chavda Bheruji Pathuji, PW-9 Mafaji Gobarji and others sitting in the temple of God Ramji that the accused was beating his father and that they should go to rescue him. Thereafter, immediately, Chavda Karansinh Bhikhaji, Mafaji Gobarji-PW-9, Bharatsinh Arjnaji and PW-2 Bheruji Pathuji Chavda went to the house of the accused. They saw that accused was beating his father with a thick stick of about 2 feet indiscriminately on his body and was inflicting blows one after the other. Deceased was rescued by PW-2 Chavda Bheruji Pathuji and others, whereas the appellant was made to sit in a corner. At that juncture of time, the deceased was conscious and said to PW-2 Chavda Bhreuji Pathuji and other persons that appellant had beaten him severely and had inflicted injuries on his head, stomach, and that it was not possible for him to survive. The deceased also said that appellant was demanding money from him and had taken away from him the bank passbook before a week. PW-2 Chavda Bheruji Pathuji and others asked deceased to keep quite and further consoled that a vehicle was being summoned for shifting him to the hospital. Govindsinh Rajusinh, who was present was sent to bring a vehicle and others remained at the house of appellant, but some time thereafter deceased died. PW-2 Chavda Bheruji Pathuji at about 18.30 hours informed Mansa Police Station on telephone that in village Ambod, Nandlal Jayshankar Pancholi was severely beaten by his son Ambalal and Nandlal Jayshankar had died. Village people were gathered at the scene of incident. On receiving this telephonic message, PW-11 Joitaji Motiji, who was at the relevant time In-charge of Mansa Police Station, made entry in this regard in Telephone Vardhi Register. Thereafter, simultaneously, an entry was also made in Station Diary vide Sr.No.10 at page No.63 about what was conveyed by PW-2 Chavda Bheruji Pathuji to PW-11 Joitaji Motiji Station. On receiving this information, Joitaji Motiji deputed Head Constable Dhiruji Varvaji of Mansa Police Station to visit village Ambod. Dhiruji Varvaji - PW-12 on reaching village Ambod, found that Nandlal (deceased) was lying on a cot with multiple injuries on head, both the hands, both the legs and chest. He also found that appellant was sitting there. PW-2 Chavda Bheruji Pathuji was present at the house of the appellant. PW-12 Dhiruji Varvaji recorded the complaint of Chavda Bheruji Pathuji about the incident. Thereafter, the investigation was entrusted to PW-15 Dhansinh Changiram Kadhayan at about 19.30 hours. During investigation he drew the inquest panchnama and panchnama of scene of offence. The dead body was sent to Mansa Hospital for postmortem and appellant came to be arrested by him. The appellant also presented stick with which, according to prosecution case, he had inflicted injuries to deceased. Jersey and pant put on by appellant were found blood stained and, therefore, by a panchnama, the same were seized by him. The clothes found on the dead body were also seized. Incriminating articles which were seized including blood stained earth found from the scene of offence were sent to Forensic Science Laboratory. The Investigating Officer, PW-15 Dhansinh Changiram Kadhayan had also recorded the statements of the relevant witnesses. 3. Having collected the evidence, a charge sheet came to be filed in the Court of Judicial Magistrate, First Class at Mansa against the appellant for the offence under Section 302 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. The case came to be committed by learned Judicial Magistrate, First Class, Mansa to the Sessions Court at Mehsana, as per Section 209 of the Criminal Procedure Code as the same was triable exclusively by the Court of Sessions. 4. Learned Additional Sessions Judge, Mehsana, framed charge against the appellant on 6th of September 1996 at Exh.3 for the offence punishable under Section 302 of the Indian Penal Code. It was explained to the appellant who pleaded not guilty to the same and requested for the trial. Therefore, The prosecution adduced evidence of as many as 15 witnesses and other documentary evidence as under : Dr. Manubhai Hirabhai Solanki was examined at Exh. 7 as PW-1, who performed autopsy at Civil Hospital at Mansa; Chavda Bheruji Pathuji is examined at Exh. 10 as PW-2 being eye witness and complainant in prosecution case; PW-3 Muktilal Maftlal Chauhan is examined at Exh.11 as PW-3 and being Revenue Circle, prepared a map of scene of offence and produced on record; Satidan Jawardan Gadhavi is examined at Exh.13 as PW-4 being panch of inquest panchnama, Kadarbhai Karimbhai is examined at Exh.15 as PW-5 being panch of arrest panchnama as well as recovery panchnama of stick and panchnama of seizure of clothes of the accused; Akbarbhai Bachubhai Vora is examined at Exh.19 as PW-6, second panch witness of panchnama of arrest etc of the accused, Dasharathbhai Baldevaji is examined at Exh.18 as PW-7 being panch of panchnama of scene of offence; Natwarlal Motilal Purani is examined at Exh.21 as PW-8 being panch of panchnama by which the dhoti from the body of the deceased as was recovered by Police Constable and presented before the Investigating Officer; Mafaji Gobarji Kaluji is examined at Exh. 24 as PW-9, being eye witness of the incident; Prahaladji Kaluji is examined at Exh.25, PW-10 being second panch of panchnama by which Police Constable of Mansa Police Station presented dhoti recovered from the dead body of the deceased; Joitaji Motiji is examined at Exh.26 as PW-11 who recorded telephone vardhi as conveyed by eye witness Chavda Bheruji Pathuji and made entry in the Police Station Diary of Mansa Police Station as he was PSO of Mansa Police Station; Dhiruji Varvaji is examined at Exh.30 as PW-12 being Ist Grade Constable of Mansa Police Station and was deputed first in point of time to visit scene of offence and he recorded the complaint of PW-2 Chavda Bheruji Pathuji; Mahendrasinh Kanasinh Chavda is examined at Exh.32 as PW-13 being eye witness of the incident and Amrutlal Manilal Darji is examined at Exh. 33 as PW-14 being supporting witness who had conveyed to PW-13 Mahendrasinh Kanasinh Chavda about the incident taken place; Dhansinh Changiram Kadhayan is examined at Exh. 35 as PW-15, who was Police Sub-Inspector of Mansa Police Station at relevant time, and investigated the complaint and submitted charge sheet against the appellant. 5. The prosecution also adduced documentary evidence over and above oral evidence as under : Postmortem Note at Exh.8, map of scene of offence at Exh.12, inquest panchnama at Exh.14, arrest panchnama of the accused at Exh.16, panchnama of recovery of stick from the accused appellant at Exh.17, panchnama of scene of offence at Exh.20, telephonic vardhi noted in the register of Mansa Police Station at Exh.27, Entry made in the Police Station Diary of Mansa Police Station about information given by Bheruji Pathuji Chavda at Exh.25; report of Forensic Science Laboratory along with the report of Seriological Department are placed at Exhibits 41 and 42 along with forwarding letters at Exh.36 and 37, and panchnama by which Police Constable Joitabhai Kushabhai presented dhoti of deceased before the Investigating Officer in the presence of panchas at Exh. 22. 6. After recording of the evidence, as above said, the learned Trial Judge put all the circumstances to the appellant appearing against him in the evidence and asked explanation from the appellant about each circumstance, as per Section 313 of the Criminal Procedure Code. The defence of the accused in his statement was of total denial, except that, he admitted that his father had died and when the complaint came to be recorded he was present. He admitted that police had arrested him and had recovered a stick from him. He refused to examine himself on oath or to tender any evidence in defence. In a question whether he wanted to say anything further, he tendered his written reply at Exh.42, wherein it was stated that since his childhood he was staying with his father and was doing labour work in carpentry and had served and nursed his father well. It was stated that his father was operated for hernia and during this period, he had attended his father sincerely and his father was also suffering from the other hernia, but surgery was dangerous as per the opinion of the Doctor and, therefore, the surgery was not performed. According to him, his father was aged about 95 years and did not know anything about the incident of 14th of April, 1996 as he had been to Vijapur on account of his carpentry work and on returning to his village at 7.00 p.m, he had found at his residence that village people had gathered and community of Chavda was doing something. He further stated that complainant i.e. prosecution witness Bheruji Chavda had borrowed Rs.30,000/- from his father which was being demanded back by his father as well as he himself which in turn had ensued in a quarrel between him and Bheruji Pathuji and, therefore, Bheruji Pathuji had harboured enmity against him. It was stated that about their agricultural land, Bheruji being a member of Executive Committee of Panchayat, had administered threats to him and he had not committed the act of murder of his father but Chavda Community, to eliminate him, had falsely involved him in this case. He further stated that had he committed murder of his father, he would have run away and would not have been found present at the scene of offence. According to him, he was aggrieved by the death of his father and was present with the dead body at the hospital where he was arrested by the Police. He further stated that all the witnesses belonged to Chavda Community and they were on inimical terms with him. According to him, he had a quarrel with the prosecution witness Darji Amrutbhai about stitching of clothes and denied to have killed his father. 7. After hearing learned counsels for the prosecution as well as the defence, the learned Trial Judge came to the conclusion that prosecution succeeded in proving beyond doubt that the appellant demanded money from the deceased, which deceased had deposited in the bank, and on denial by the deceased, the appellant inflicted many blows by means of thick stick on the body of the deceased with intention to cause death. The learned Trial Judge relied upon eye witnesses PW-2 Chavda Bheruji Pathuji and PW-9 Mafaji Gobarji and other corroborating evidence of prosecution to hold that charge against the appellant was established. Ultimately, vide judgment and order impugned in this Appeal, the appellant was convicted as above said and sentenced for the life imprisonment. He was given benefit of set off for the period he had already undergone in jail during trail and came to be acquitted for the charge under Section 135 of the Bombay Police Act. 9. Learned Counsel for the appellant Mr. P.M. Vyas who is appointed to assist him, vehemently attacked the prosecution case on the ground that in fact none of the witnesses examined was an eye witness. It was contended that PW-2 Bheruji Pathuji Chavda is a witness, on him no reliance can be placed because there was enmity between appellant and his father on one side and this witness on the other hand on account of Rs.30,000/- taken by the witness Bheruji Pathuji and were not returned even after frequent demands by the appellant and his father. It was contended that witnesses from Chavda Community only were selected by the Investigating Officer whereas PW-2 Bheruji Pathuji being a member of the Executive Committee of the Gram Panchayat and a person with power, influenced the investigation, which is evident from the fact that in most of the panchnamas, panchas were brought by the Police from other village because no person of village would have supported this investigation. It was contended that so far as the second eye witness PW-9 Mafaji Gobarji Exh. 24 is concerned, he also cannot be believed on account of contradiction in between the statements he offered before the Police and his examination in chief. According to learned Advocate for the Appellant, two main witnesses of the prosecution case i.e. PW-13 Mahendrasinh Kanasinh Chavda, though according to prosecution case was an eye witness, has not supported prosecution whereas PW-14 Amrutlal Manilal Darji a supporting witness also could not have been relied upon in view of contradictions in his evidence as well as in the evidence of other witnesses more particularly when the appellant had inimical terms with this witness also on account of stitching of clothes, for which suggestions were confronted to this witness in cross examination and therefore judgment challenged shall be set aside. It was contended that neither Mahendrasinh Kanasinh PW-13 who being core witness supported the prosecution case nor prosecution examined other material eye witnesses named in the FIR. It was contended that it was not safe to place reliance on the testimony of PW-2 Chavda Bheruji Pathuji and PW-9 Mafaji, and if their testimonies are discarded, then there is no single witness who can be termed as eye witness of the incident to prove the prosecution case. It was also contended that the material witnesses of the prosecution, namely, Bharatsinh and Karansinh, who, according to the prosecution case, witnessed the incident, were not examined by the prosecution and were dropped though they were material and important witnesses. It was also contended that there is no evidence on record that the appellant had a quarrel with his father about money which the father had deposited in bank and that appellant was demanding the said amount, which ensued in death of the father. Prosecution story becomes doubtful on this account according to learned counsel for the appellant. At this juncture, learned counsel for the appellant contended that the written reply at Exh.42 tendered by the appellant may be taken into account that he was not present at the scene of offence when the said incident took place, in which his father received injuries and died. It was contended that as per the reply of the accused under Section 313 of the Criminal Procedure Code, it becomes clear that the appellant was attending his father properly and was serving him sincerely. Deceased had undergone a surgery of hernia earlier and during this surgery also the appellant attended his father properly. Sum and substance of the contentions of the learned counsel for the appellant was, in all probabilities, it was impossible for the appellant, as a son, to cause death of his father by inflicting injuries with a stick. It was ultimately contended that the prosecution case, as developed through evidence recorded in the court, becomes doubtful, and benefit of the same must go to the appellant and Appeal therefore be allowed. 10. Learned APP Mr.Sudanshu S. Patel contended that in all prosecution examined three eye witnesses of the incident. i.e. PW-2 Chavda Bheruji Pathuji, PW-9 Mafaji Gobarji and PW-13 Mahendrasinh Kanasinh Chavda. It was contended that PW-14 Amrutlal Manilal Darji is supporting witness in corroboration of eye witnesses. It was contended that the evidence of PW-2 Chavda Bheruji Pathuji and PW-9 Mafaji Gobarji does not suffer from any infirmity so as to brush aside this creditworthy evidence. It was contended that though PW-13 Mahendrasinh Kanasinh Chavda did not support the prosecution wholeheartedly and he was required to be declared hostile to the prosecution, his evidence can be made use by the prosecution to the permissible limit as per established law to the extent that PW-13 Mahendrasinh has admitted in his examination-in-chief that he did inform PW-2 Chavda Bheruji and others near Ramji Temple about the incident, which he came to know from PW-14 Amrutlal Manilal Darji. It was contended that mere suggestion about inimical terms of a witness in respect of accused, would not constitute evidence to act upon, especially when those suggestions are denied by respective witness. It was contended that PW-2 Bheruji Pathuji as well as PW-9 Mafaji Gobarji denied all the suggestions made by the defence about, firstly, enmity between the parties, and secondly about the amount of Rs.30,000/- owed by appellant and his father from PW-2 Chavda Bheruji. Merely because, according to learned APP, appellant took the defence of alibi in written statement under Section 313 of the Criminal Procedure Code or pleaded inimical terms with the witnesses, would not discredit the evidence of prosecution, which otherwise appears absolutely creditworthy. Learned APP further stated that incident took place at about 3.00 to 3.30 p.m and witnesses present there attempted to shift the deceased to the hospital, for which arrangement of vehicle was being made, however, before the vehicle arrived, deceased died. It was, therefore, the duty of the citizen to inform the Police about the homicidal death, and accordingly PW-2 Chavda Bheruji Pathuji informed Mansa Police Station through a telephone message that the deceased was beaten by his son appellant and had died, and that residents of village were collected at the house of the appellant. According to learned APP, this information was relayed to the concerned authority earlier in point of time i.e. about 18.30 hours, and this is evident from the entries placed on record vide Exh.27 and Exh.28. In pursuance of these entries, Head Constable PW-12 Dhiruji Varvaji was deputed to visit the scene of offence for the investigation. It was also contended that in fact what is recorded by PW-11 Joitaji Motiji at Exhibits 27 and 28, must be treated as First Information Report because in pursuance of these entries, the Police machinery was set in motion, that is to say, the investigation had started, and further these entries disclosed explicitly the name of the accused, the name of the deceased and the nature of the incident which had taken place including the name of the informant. According to learned APP, vide these entries, the name of accused and commission of cognizable offence was disclosed and therefore these entries ought to have been treated as FIR. It was contended that the name of the accused was disclosed on record at the earliest at 18.30 hours and thereafter the investigation started and charge sheet was filed. According to learned APP the appellant could not prove his alibi or probablise his defence about inimical terms with the prosecution witnesses, and considering the quality of the evidence of the eye witnesses and absolutely independent corroborative evidence of other witnesses, the prosecution has succeeded in establishing the charge against the appellant. It was, therefore, contended that this is not a case wherein any interference is required by this Court in the impugned judgment and order in this Appeal and Appeal deserves to be dismissed. 11. Having heard learned counsels of both the sides and having gone through the record of the case entirely, it clearly transpires that the prosecution proposed to prove the charge against the appellant by direct evidence, that is to say, through eye witnesses as well as other corroborative and supporting evidence. The learned Trial Judge placed reliance on the evidence adduced by the prosecution and convicted the accused. Being first appellate court, it is necessary for us to undertake thorough exercise of appreciation of evidence afresh and come to an independent conclusion, considering also the contentions raised on behalf of the appellant as well as learned APP in this Appeal. 12. Turning to the evidence as adduced by the prosecution, it clearly appears that the prosecution proposed to prove its case, first by adducing direct evidence through eye witnesses PW-2 Chavda Bheruji Pathuji, PW-9 Mafaji Gobarji and PW-3 Mahandarsinh Karansinh Chavda. At this juncture, it is necessary to bear in mind that when prosecution proposes to establish the case through direct evidence of eye witnesses, it becomes duty of a court to appreciate such evidence carefully. The evidence of eye witnesses cannot be brushed aside lightly or on imaginary or flimsy ground. Ordinarily, an eye witness is worthy of credence unless it is established that the witness has reason to fabricate the case against the accused and that the facts from other evidence on record establish that it would not be just and proper to rely upon such witnesses. In cases of eye witnesses, such evidence is required to be tested by considering as to what was the proximity of the witnesses with the scene of offence, what was the opportunity available to them to have witnessed the incident, whether the particular eye witness was capable of observing of incident taking place and reproduce the same before the court, etc. Once it is established that the presence of the eye witness at the scene of offence was natural and that he had an opportunity to observe the incident, then unless it is shown that the evidence of an eye witness is tainted for the sound reasons, such evidence must be acted upon. Needless to say that, each case stands on its particular facts, but generally, while appreciating the evidence of an eye witness, the above cardinal rules should be taken into consideration by a court. It is, therefore, necessary first to go through carefully the evidence of three eye witnesses and consider the same about the reliability of evidence of each witness. 12. Here in this case, PW-2 Chavda Bheruji Pathuji stated that he knew the deceased and the appellant because they were from the same village. The appellant and deceased were son and father and were residing in the same house. He further stated that the incident took place on 14th of April, 1996. According to him, about 3.00 p.m. when he was at Ramji Temple of the village. Manhandarsinh Kanasinh of his village