IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.839 of 1999 WITH CRIMINAL APPEAL No.697 of 1999 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- VINUBHAI BATUKBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 839 of 1999 MR US BRAHMBHATT for Appellant MR KP RAVAL, APP for Respondent 2. Criminal Appeal No. 697 of 1999 MR KP RAVAL APP for Appellant MR URVISH MALKAN for MR JITENDRA MALKAN for Respondents -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.C.PATEL Date of decision: 12/10/2004 COMMON ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Criminal Appeal No.839 of 1999 is filed by Vinubhai Batukbhai Patel (Savaliya), i.e. original accused No.1, under Section 374(2) of the Code of Criminal Procedure, 1973 ("the Code" for short) challenging judgment dated June 10, 1999 rendered by the learned Sessions Judge, Junagadh, in Sessions Case No.77 of 1997 by which he is convicted under Section 302 of Indian Penal Code ("IPC" for short) as well as Section 135 of the Bombay Police Act, 1951 ("the Act" for short), and sentenced to suffer R.I. for life and fine of Rs.1,000=00, in default, imprisonment for three months for commission of offence punishable under Section 302 IPC. No separate sentence is passed for commission of offence punishable under Section 135 of the Act. Criminal Appeal No.697 of 1999 is filed by State of Gujarat under Section 378 of the Code challenging judgment dated June 10, 1999 rendered by the learned Sessions Judge, Junagadh, in Sessions Case No.77 of 1997 by which the respondents have been acquitted of the offences punishable under Sections 302, 201 read with 34 IPC and Section 135 of the Act. As both the appeals are directed against common judgment dated June 10, 1999 rendered by the learned Sessions Judge, Junagadh, in Sessions Case No.77 of 1997, this Court proposes to dispose of them by this common judgment. 2. The facts emerging from the record of the trial Court are as under: 2.1 Samjubhai Ranchhodbhai Gadhiya is residing at village Moti Monpari, Taluka Visavadar, District Junagadh, and is cultivating his land. He has three sons and two daughters. At the time of incident, he was residing with his eldest son Limbabhai at village Moti Monpari. His daughter Liliben was married to deceased Hemrajbhai Kanjibhai Savaliya who was also residing at village Moti Monpari. His two other sons, Madhubhai and Babubhai, were residing at Junagadh. 2.2 On December 8, 1996, Madhubhai Samjubhai Gadhiya received a call from the deceased asking him to come to village Moti Monpari for the purpose of participating in compromise talks initiated by Batukbhai, who was original accused No.2, and his two sons, namely; the appellant and Prafulbhai, who was original accused No.3, regarding dispute relating to boundary of field. On receipt of telephonic message, Madhubhai had gone to village Moti Monpari with his brother Babubhai and stayed at the house of his brother-in-law, i.e. Hemrajbhai. Madhubhai in the company of his brother Babubhai and deceased Hemrajbhai had visited vadi and found that a portion of land belonging to his brother-in-law was encroached upon by Batukbhai. After inspecting the site, all had returned to the house of deceased Hemrajbhai. Babubhai had some work at Junagadh and, therefore, he had left for Junagadh asking Madhubhai to come to Junagadh after dispute was settled between deceased Hemrajbhai and Batukbhai. Accordingly, Madhubhai had stayed at the house of deceased Hemrajbhai. At about 8.00 p.m. on December 9, 1996, Madhubhai in the company of deceased Hemrajbhai and Ghelabhai Madhabhai Savaliya as well as Parsottambhai Madhabhai had started going to the house of Batukbhai for the purpose of arriving at a settlement regarding dispute of boundary of the field. On way, all four had found that Batukbhai Hirjibhai, i.e. original accused No.2 as well as the appellant and his brother Prafulbhai, i.e. original accused No.3, were coming from opposite direction. It was noticed by Madhubhai that the appellant had a knife in his hand whereas original accused Nos.2 and 3 had sticks with them. The case of the prosecution is that the appellant had inflicted a knife blow on the chest of the deceased and, therefore, the deceased, who was lame, had started running to save his life, but was chased by the appellant and original accused Nos.2 and 3. According to the prosecution, the deceased was overtaken and the appellant had inflicted further two to three blows of knife on him and injured him seriously whereas original accused Nos.2 and 3 had inflicted stick-blows on him asking the appellant to kill him. Meanwhile, Madhubhai, who was accompanying the injured, had gone to his rescue and caught the appellant from behind so as to prevent him from inflicting further blows and in that process, had sustained an injury on palm of left hand. Ghelabhai and Parsottambhai, who were also with the deceased, had come to the place where Hemrajbhai was assaulted. Jaisukhbhai Dhirubhai, who is relative of the appellant, and Madhubhai had also come at the place of incident and caught hold of the appellant. As Hemrajbhai had sustained serious injuries, Jaisukhbhai had attended him and, during this time, the appellant, who was caught on the spot, as well as his father and brother had made good their escape from the place of the incident. Injured Hemrajbhai was removed to Visavadar Hospital in a jeep of one Sudhirbhai. On arrival at the hospital, Doctor on duty had declared him `dead'. During night hours, PSO had sent a D.O. letter to Mr.P.O.Bhatt, who was then PSI of Visavadar Police Station, mentioning that dead body of deceased Hemrajbhai was brought to Government Dispensary with injuries and, therefore, necessary action should be taken. On receipt of message, PSI had gone to Visavadar Hospital and recorded complaint of Madhubhai Samjubhai. The complaint was forwarded to PSO of the Police Station for registration of offences. After registration of offences, the complaint lodged by Madhubhai was handed over to PSI Mr.Bhatt for investigation. The Investigating Officer had held inquest on the dead body of the deceased and made arrangements to send the dead body for postmortem examination. On December 10, 1996, the Investigating Officer had drawn panchnama of place of incident and seized certain incriminating articles as well as recorded statements of those persons who were found to be conversant with the facts of the case. The appellant, his father and brother were arrested from the house of Batukbhai, i.e. original accused No.2. While in custody, the appellant had made disclosure statement pursuant to which the knife used in commission of crime by the appellant was discovered from tube like part of petticoat put on by Bhavnaben, i.e. sister of the appellant, who was travelling at that time on motorcycle driven by one Hareshbhai, i.e. original accused No.5. The knife was found to be bloodstained and, therefore, seized under a panchnama. According to the prosecution, the appellant and original accused Nos.4 & 5 had caused disappearance of the knife which was used in commission of offence, and had, therefore, committed offence punishable under Section 201 read with Section 34 IPC. The incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory for analysis. On completion of investigation, charge-sheet was submitted by the Investigating Officer against the accused in the Court of learned Judicial Magistrate First Class, Visavadar, for commission of offences punishable under Sections 201, 302 & 34 IPC and Section 135 of the Act. As offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to the Court of Sessions at Junagadh for trial where it was numbered as Sessions Case No.77 of 1997. 3. Exhaustive and self-explanatory charge was framed by the learned Sessions Judge, Junagadh, against the accused at Exh.5 for commission of offences punishable under Sections 302, 201 read with Section 34 IPC. Original accused Nos.1 to 3 were also charged for commission of offence punishable under Section 302 read with Section 34 IPC and Section 135 of the Act whereas original accused Nos.1, 4, and 5 were charged for commission of the offence punishable under Sections 201 read with 34 IPC. The charge was read over and explained to the accused, who pleaded not guilty to the same, and claimed to be tried. The prosecution, therefore, examined; (1) Dr.Gopalbhai Kadvabhai as P.W.-1, Exh.17; (2) Maksood Ahmed Ibrahim as P.W.-2, Exh.24; (3) Madhubhai Samjubhai as P.W.-3, Exh.29; (4) Jaisukhbhai Dhirubhai as P.W.-4, Exh.33; (5) Ghelabhai Madhabhai as P.W.-5, Exh.34; (6) Lilaben Samjubhai as P.W.-6, Exh.35; (7) Babubhai Samjubhai as P.W.-7, Exh.36; (8) Santokdas Tulsidas as P.W.-8, Exh.37; (9) Dhirubhai Samabhai as P.W.-9, Exh.39; (10) Dhanjibhai Savjibhai as P.W.-10, Exh.41; (11) Mansukhbhai Devrajbhai as P.W.-11, Exh.43; (12) Balubhai Savjibhai as P.W.-12, Exh.44; (13) Madhubhai Desurbhai as P.W.-13, Exh.65; (14) Pradeepbhai Odhavji Bhatt as P.W.-14, Exh.67; (15) Jethabhai Pujabhai as P.W.-15, Exh.70; and, (16) Gunvantray Nandlal Vyas as P.W.-16, Exh.77, to prove its case against the accused. Documentary evidence such as postmortem notes of the deceased at Exh.19; certificate of injuries of Madhubhai at Exh.21; panchnama of deceased of clothes of the deceased at Exh.22; map of place of incident at Exh.27; First Information Report at Exh.32; panchnama indicating holding of inquest on dead body of deceased Hemrajbhai at Exh.38; panchnama of place of incident at Exh.40; panchnama indicating discovery of knife pursuant to disclosure statement made by the appellant at Exh.42; panchnama indicating discovery of sticks pursuant to disclosure statements made by original accused Nos.2 and 3 at Exh.45; report of Serologist at Ex.62; Notification issued by the competent authority under Section 37 of the Bombay Police Act, 1951 at Exh.63, entries from station diary at Exhs.71 & 76 etc. was also produced in support of the prosecution case against the accused. 4. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the accused the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by Section 313 of the Code. In their further statements, the case of the accused was that of denial, but no evidence was led by any of them to substantiate their claim that they were innocent. 5. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that deceased Hemrajbhai died a homicidal death. According to the learned Judge, it was established by the prosecution that the appellant had caused death of the deceased by inflicting knife blows on the deceased and was, therefore, liable to be convicted under Section 302 IPC, but it was not proved by the prosecution that original accused Nos.2 & 3 had shared common intention of the appellant to cause murder of the deceased and, therefore, they were not liable to be convicted under Section 302 read with Section 34 IPC. What was deduced by the learned Judge was that no satisfactory evidence was led to establish that original accused Nos.1, 4 & 5 had committed offence punishable under Section 201 read with Section 34 IPC nor satisfactory evidence was led to prove the charge that the original accused Nos.2 & 3 had committed offence punishable under Section 135 of the Act, but satisfactory evidence was adduced by the prosecution to prove its case that the appellant had committed offence punishable under Section 135 of the Act. In view of abovereffrerredto conclusions, the learned Judge has convicted the appellant under Section 302 IPC as well as Section 135 of the Act and imposed sentence referred to earlier, but acquitted the original accused Nos.2 to 5 by judgment dated June 10, 1999, which has given rise to these two appeals. 6. Mr.U.S.Brahmbhatt, learned counsel of the convicted appellant, contended that Madhubhai had sustained simple injuries which could have been caused by himself and as the prosecution has failed to prove that he had sustained injuries in the incident, his presence at the time and place of the incident becomes highly doubtful. It was argued that though the Police had given yadi to Madhubhai on December 9, 1996 itself so as to enable him to take treatment for his injuries, the record shows that he had, in fact, taken delayed treatment on December 10, 1996 for which he has not given any explanation and this makes the claim of the prosecution doubtful that the incident in question was witnessed by Madhubhai. According to the learned counsel of the convicted appellant, the investigation of the case was unfair which is quite evident from the fact that though 10 ml. of blood of the deceased was taken as sample, Forensic Science Laboratory had received 4 ml. of blood for analysis regarding which no explanation is offered by the Investigating Officer and, therefore, reasonable benefit of doubt to which the convicted appellant is entitled to, should be given to him. It was contended that the evidence regarding discovery of knife is highly doubtful because the evidence on record shows that the knife, which was discovered pursuant to disclosure statement made by the convicted accused is available in market and, therefore, the evidence regarding discovery of knife should not have been relied upon by the trial Court. What was maintained by the learned counsel of the convicted appellant was that witness Jaisukhbhai had, in fact, not witnessed the incident nor caught the convicted appellant and, therefore, the case which largely depends on the testimony of Madhubhai should have been disbelieved by the learned Judge of the trial Court more particularly when the conduct of Madhubhai was unnatural. According to the learned counsel of the appellant, the learned Judge of the trial Court has failed to appreciate the evidence on record in its true perspective and, therefore, the appeal filed by the convicted appellant should be accepted. 7. Mr.K.P.Raval, learned counsel of the State Government, contended that the testimony of eye witness, Madhubhai, gets complete supports from the testimony of witness Jaisukhbhai as well as testimony of witness Ghelabhai and, therefore, the learned Judge of the trial Court did not commit any error in placing reliance on his testimony for convicting the appellant under Section 302 IPC. According to the learned Additional Public Prosecutor, the testimony of Madhubhai also gets full corroboration from the medical evidence on record regarding injuries sustained by the deceased and, therefore, the trial Court was justified in acting upon his testimony more particularly when he himself was injured in the incident. What was maintained by the learned counsel of the State Government was that the testimony of witness Dhanjibhai Savjibhai read with that of the Investigating Officer would indicate that pursuant to disclosure statement made by the convicted appellant, knife used by him in commission of crime was discovered and the evidence of discovery of weapon also lends corroboration to the testimony of Madhubhai and other witnesses. It was asserted that neither Madhubhai nor for that purpose witness Jaisukhbhai or witness Ghelabhai was on inimical terms with the convicted appellant and, therefore, false implication of the convicted appellant in the incident stands totally ruled out. It was argued that Madhubhai had received simple injuries whereas the deceased was declared dead on arrival at the hospital and, as Madhubhai was busy attending the dead body of the deceased, he was not able to take treatment regarding his injuries during the night time of December 9, 1996, but that by itself would not affect the veracity of the evidence tendered by him. According to the learned Additional Public Prosecutor, the record of the case does not indicate that the conduct of Madhubhai was unnatural in any manner and, therefore, the grounds urged by the learned counsel of the convicted appellant should not be accepted while considering the reliability or otherwise of evidence of witness Madhubhai. It was further argued by the learned Additional Public Prosecutor that the evidence tendered by the prosecution regarding discovery of knife at the instance of the convicted appellant is reliable, which is a circumstance against him, and is rightly taken into consideration by the learned Judge of the trial Court while determining the guilt or otherwise of the appellant. It was argued that the learned counsel of the convicted appellant has failed to dislodge the reasons recorded by the learned Judge of the trial Court for convicting the appellant under Section 302 IPC read with 135 of the Act and, therefore, the appeal should be dismissed. 8. So far as acquittal appeal is concerned, it was argued by Mr.K.P.Raval, learned counsel of the State Government, that the testimony of witness Madhubhai read with that of witness Jaisukhbhai and witness Ghelabhai establishes beyond doubt that original accused Nos.2 and 3 had also delivered stick-blows on the deceased after he had made an attempt to run away to save his life and, therefore, original accused Nos.2 and 3 should have been convicted under Section 302 read with Section 34 IPC. The reasons recorded by the learned Judge of the trial Court in paragraphs 39, 40 & 41 of the impugned judgment for acquitting original accused Nos.2 and 3 of the offence punishable under Section 302 read with Section 34 IPC were read over to the Court to emphasise that those reasons are contrary to the evidence on record and, therefore, the acquittal appeal should be accepted. It was also argued that the convicted appellant as well as original accused Nos.4 and 5 had caused disappearance of knife which was used in commission of crime and, therefore, the learned Judge of the trial Court was not justified in acquitting those accused of the offence punishable under Sections 201 read with 34 IPC. According to the learned Additional Public Prosecutor, the reasons assigned by the learned Judge for acquitting the respondents of the acquittal appeal are perverse and, therefore, the acquittal appeal should be accepted. 9. Mr.Urvish Malkan, learned counsel of the acquitted accused, contended that no reliable evidence has been adduced by the prosecution to establish that original accused Nos.2 and 3 had shared common intention of the convicted appellant to commit murder of the deceased and, therefore, acquittal of the respondents under Section 302 read with Section 34 IPC should not be regarded as erroneous. It was argued that complainant Madhubhai was not able to state as to how many blows with stick were inflicted either by original accused No.2 or accused No.3 on the deceased whereas witness Jaisukhbhai has stated that he had not seen actual infliction of blows by original accused Nos.2 and 3 on the deceased and witness Ghelabhai says that he had also not seen the blows being inflicted by original accused Nos.2 and 3 and, therefore, well founded acquittal of those respondents should not be interfered with by the Court in acquittal appeal. The learned counsel emphasised that the case of the prosecution that original accused Nos.2 and 3 had assaulted the deceased with sticks does not get support from the medical evidence on record and, therefore, the acquittal appeal filed against them should be dismissed. It was emphasised that no reliable evidence could be adduced by the prosecution to prove that the original accused No.1, i.e. the convicted appellant and accused Nos.4 & 5 had caused disappearance of the knife which was allegedly used in commission of crime and, therefore, acquittal of the convicted appellant as well as original accused Nos.4 & 5 of the offence punishable under Sections 201 read with 34 IPC should be upheld by this Court. What was argued by the learned counsel of the respondents in acquittal appeal was that the learned Judge of the trial Court, who had advantage of observing demeanour of witnesses, has recorded cogent reasons for acquitting them of the offence punishable under Sections 302 read with 34 IPC and/or Sections 201 read with 34 IPC and as the learned Additional Public Prosecutor has failed to dislodge those reasons, the acquittal appeal should be dismissed. 10. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 11. The fact that deceased Hemrajbhai died a homicidal death is not in dispute before this Court. Madhubhai Samjubhai, who is complainant and one of the eye witnesses, has stated in his substantive evidence before the Court that deceased Hemrajbhai had received knife injuries. The injuries sustained by deceased are also enumerated in inquest panchnama which is produced on record of the case at Exh.38. The testimony of Dr.Gopalbhai Kadvabhai, P.W.-1 Exh.17, shows that he had received dead body of deceased Hemrajbhai on December 10, 1996 for postmortem examination and that he had commenced postmortem examination at 7.30 a.m. which was completed by 9.30 a.m. In his substantive evidence before the Court, the Medical Officer has enumerated external as well internal injuries which were noticed by him while performing autopsy on the dead of the deceased. Those injuries are also mentioned in postmortem notes produced at Exh.19. Having regard to the nature of the evidence led by the prosecution, there is no manner of doubt that the prosecution has established that deceased Hemrajbhai died a homicidal death. The finding recorded by the learned Judge of the trial Court on this count being eminently just, is hereby upheld. 12. This brings the Court to consider the question whether the case against the convicted appellant is made out or not. In order to ascertain whether the charge of murder of deceased Hemrajbhai levelled against the appellant is proved or not, it would be relevant to refer to testimony of three witnesses. They are: (1) Madhubhai Samjubhai, P.W.-3, Exh.29; (2) Jaisukhbhai Dhirubhai, P.W.-4, Exh.33; and, (3) Ghelabhai Madhabhai, P.W.-5, Exh.34. 12.1 Witness Madhubhai Samjubhai, examined as P.W.-3 at Exh.29, has stated in his substantive evidence before the Court that there was a dispute regarding boundary of the field between Batukbhai, who is original accused No.2, and his deceased brother-in-law Hemrajbhai and, therefore, the deceased had called him on December 8, 1996 to participate in compromise talks which were scheduled to take place at the house of Batukbhai. It is mentioned by the witness that accordingly, he had gone to village Moti Monpari where the deceased was residing. This witness has mentioned before the Court that on December 9, 1996, he in the company of the deceased and two others namely; Ghelabhai Madhabhai and Parsottambhai Madhabhai had proceeded to the house of accused Batukbhai at about 8.00 p.m. and that when they had reached the market of the village at about 9.00 p.m., original accused No.2 was coming from the opposite direction with the convicted appellant and his another son Prafulbhai, i.e. original accused No.3. The witness had asserted before the Court that the convicted appellant was armed with knife and that without uttering anything he had inflicted knife blow on the chest of the deceased and, therefore, the deceased, who was lame, had started running to save his life. What is mentioned by this witness is that thereupon, the convicted appellant and original accused Nos.2 & 3 had chased him and overtaken him at a short distance after which the convicted appellant had inflicted further blows of knife on him whereas original accused Nos.2 and 3 had given stick-blows to him. The witness has further stated before the Court that thereupon he had gone to the rescue of the deceased and caught the convicted appellant from behind so as to prevent him from inflicting further knife