CR.A/541/2000 1/23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 541 of 2000 With CRIMINAL APPEAL No. 551 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 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 ? ======================================================= MANGALBHAI MOHANBHAI CHAVDA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MS JC BHATT for Appellant No.1 in Cr.A.No.541/2000 MR JM PANCHAL for Appellant Nos.2,4,5 & 6 in Cr.A.No.551/2000, MR US BRAHMBHATT for Appellant Nos.1,3 & 7 in Cr.A.No.551/2000 MR HL JANI APP for Opponent(s) : 1 in both appeals, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 19/02/2008 CR.A/541/2000 2/23 JUDGMENT COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 Criminal Appeal No.541 of 2000 has been filed by the appellant-original accused No.5 – Mangalbhai Mohanbhai Chavada and Criminal Appeal No.551 of 2000 has been filed by the appellants-original accused no.1, 3, 4, 5, 6, 7 and 8 viz., Kanubhai Manibhai Chavada, Pratapbhai Manibhai Chavada, Rameshbhai Manibhai Chavada, Mangalbhai Mohanbhai Chavada (appellant of Criminal Appeal No.541/2000), Raisingbhai Ishwarbhai Parmar, Kashiben wife of Manibhai Bhavanbhai Chavada and Vinubhai Manibhai Chavada respectively, who have been charged and tried for the offences punishable under Sections 147, 148, 149, 302, 324 and 325 of the Indian Penal Code and under Section 135 of the Bombay Police Act, wherein the appellants-original accused nos.1, 4 and 8 were convicted to suffer R.I. for life for the offence punishable under Sections 147, 148, 149 and 302 of the Indian Penal Code and appellant-original accused nos.3, 5, 6 and 7 were convicted to suffer imprisonment for three years and to pay a fine of Rs.1,000/- each, in default, to suffer S.I. for 6 months vide judgment and order dated 29th April, 2000 passed by the Learned Addl. Sessions Judge camp at Anand in Sessions Case No.75 of 1998. CR.A/541/2000 3/23 JUDGMENT Since the original accused no.2 viz., Ishwarbhai Manibhai Chavada has expired during the course of trial, case was abated against him. 2.0 The case of the prosecution in short is that on 30.10.1997 at about 9:00 p.m., after having dinner, when the complainant along with her family members were sitting outside the house, son of elder brother of the deceased viz., Lalo @ Mahesh had come to meet them and after half an hour, he left the said place. 2.1 When Mahesh reached very near to the house of Manibhai Bhavanbhai Chavada, son of Manibhai i.e. the original accused no.4 viz., Rameshbhai gave him a stick blow. On raising screams, the complainant, her mother-in-law, Shantaben and her brother-in-law (Diyar), Natubhai reached there and saw that the accused no.1 armed with chisel (farashi), accused no.2 armed with dharia, accused no.3 armed with stick, accused no.4 armed with stick, accused no.5 armed with stick, accused no.6 armed with hockey, accused no.7 armed with iron rod and accused no.8 armed with pick-axe were stating there and shouting “maro-maro”. Thereafter, accused no.2 gave dharia blow and accused no.1 gave chisel blow on the head of the deceased and other accused persons also beat him. Hence, the mother-in- law of the complainant - Shantaben and the CR.A/541/2000 4/23 JUDGMENT brother-in-law - Natubhai intervened to save the deceased, however, they were also beaten by the accused persons. 2.2 When the complainant shouted for help, the accused no.2 touched dharia to her left hand and asked her to go away. However, again she shouted for help and, hence, her father-in-law and other surrounding persons assembled there and, thereafter, the accused persons fled away from the place of offence. 2.3 At that time, the victim was lying in a pool of blood in unconscious condition as he received severe injuries on different parts of the body. In the alleged incident, Natubhai received injuries by stick blow and her mother-in-law, Shantaben received injuries on forehead, back portion and last finger of left hand. Thereafter, the victim along with injured was taken to Anand Municipal Hospital, where on examination, the victim was declared dead. 3.0 Meanwhile, P.S.I., Dineshbhai Nanakchand Mishra, who was discharging his duty with Anand Town Police Station, received wireless message regarding the incident in question. In pursuance of that, first he went to scene of offence and made arrangements for bandobast and, thereafter, reached hospital and recorded the complaint as given by the complainant viz., Manguben Raysingbhai and sent the same CR.A/541/2000 5/23 JUDGMENT for registration of the offence. 3.1 He started further investigation and recorded statements of various persons. He also prepared inquest panchnama in presence of panchas and also made arrangements to send dead body of the deceased for postmortem. He also prepared panchnama of scene of offence, etc. During the course of investigation, muddamal was seized by drawing panchnama to that effect and sent the same to FSL. Meanwhile, as the Constable produced the clothe worn by the deceased at the time of incident, which were given to him by the doctor, same were seized after following necessary formality. 3.2 The accused nos.2, 3, 4, 5, 6 and 7 have voluntarily surrendered themselves before the Police Station and, hence, they were arrested after following necessary procedure. Except accused no.4, other accused have also produced the muddamal weapons used by them in the offence and same were also seized by preparing necessary panchnama. Accused no.4 showed willingness to produce the weapon farsi alleged to have been used in the commission of offence, two panchas were called and prepared primary panchnama at Police Station itself. The Investigating Officer along with the accused, panchas and other police personnel proceeded in a jeep as guided by the accused. CR.A/541/2000 6/23 JUDGMENT Thereafter, accused asked to stop the jeep at the residence of Ramanbhai and he found out and produced the muddamal farsi, which was having blood stain. Same was seized by preparing panchnama and sent to FSL. 3.3 On receiving the postmortem note, injury certificates and other reports, same were kept in investigation file. Upon completion of investigation, he submitted the charge sheet against the accused persons in the Court of Learned J.M.F.C., Anand. 4.0 As the offence alleged against the accused was exclusively triable by the Court of Sessions, the Learned J.M.F.C., Anand committed the case to the Court of Sessions at Nadiad where it was numbered as Sessions Case No.75 of 1998 and transferred to Learned Additional Sessions Judge, camp at Anand for trial. 4.1 On production of the accused, the learned Additional Sessions Judge framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 4.2 To prove the case against the accused, the prosecution examined 12 witnesses in all namely, P.W.No.1 Manguben Raysingbhai (Complainant) Exh.26, P.W.No.2 Dr.Vinay Prasanna Khanpura Exh.35, P.W.No.3 Dr.Jigisha Tribhovanbhai Patel Exh.37, P.W.No.4 Shantaben Budhabhai Exh.40, P.W.No.5 Natubhai Budhabhai Exh.42, P.W.No.6 Mahesh @ Lalo Maganbhai CR.A/541/2000 7/23 JUDGMENT Exh.43, P.W.No.7 Jagdishbhai Chhotabhai Patel Exh.44, P.W.No.8 Sureshbhai Maganbhai Gohel Exh.46, P.W.No.9 Kamleshbhai Dhanjibhai Thakkar Exh.48, P.W.No.10 Sanmukhbhai Ishwarbhai Exh.52, P.W.No.11 Kamanbhai Mansinhbhai Chavda Exh.56 and P.W.No.12 Dinesh Nanakchand Mishra Exh.58. 4.3 Prosecution also relied upon various documentary evidence such as inquest panchnama Exh.27, panchnama of scene of offence Exh.28, medical certificate of Maheshbhai Exh.30, medical certificate of Shantaben Budhabhai Exh.33, medical certificate of Natubhai Budhabhai Exh.34, P.M. Report Exh.36, recovery panchnamas Exhs.45, 47, 49 & 53, FSL Report Exh.60, serological report Exh.61 and complaint Exh.62, etc. 4.4 On submission of closing purshis by the prosecution, Learned Additional Sessions Judge, recorded the further statement of each accused under Sec.313 of Cr.P.C. qua the incriminating evidence wherein the accused came out with the case of total denial. The accused however did not examine any witness. Thereafter, upon hearing the learned counsel appearing for the respective parties, learned Additional Sessions Judge, camp at Anand, delivered the impugned judgment convicted the accused as stated above. 5.0 Being aggrieved and dissatisfied with the CR.A/541/2000 8/23 JUDGMENT conviction, the appellants-accused preferred Criminal Appeals against their conviction. 5.1 As both the appeals arose out of the same judgment and order dated 29th April, 2000 passed by the Learned Addl. Sessions Judge camp at Anand in Sessions Case No.75 of 1998, they were heard together and are being decided by this common judgment. 5.2 It is required to be noted that before proceedings further with the matter, learned counsel, Mr.Panchal drew out attention towards the age of the appellants-original accused no.5 and 7 and, therefore, we called for the report of the Probation Officer, Anand vide order dated 07.02.2008. In pursuance of that, the report dated 17.02.2008 is received and is taken on record. 6.0 Heard learned counsel, Ms.J.C. Bhatt for the appellant in Criminal Appeal No.541/2000, learned counsel, Mr.U.S. Brahmbhatt for the appellant-original accused Nos.1, 3 & 7, learned counsel and Mr.J.M. Panchal for the appellant-original accused Nos.2, 4, 5 & 6 in Criminal Appeal No.551/2000 and learned APP, Mr.H.L. Jani for the respondent-State in both matters. 6.1 It has been mainly argued by the learned counsel for the appellants that it is a case of free fight and, therefore, while evaluating the evidence and deciding the appeal, the CR.A/541/2000 9/23 JUDGMENT Court should keep in mind the fact that it is a case of free fight, wherein cross complaint has been filed and even different chargesheets have also been submitted in both the cases and, therefore, the Court should evaluate the same on that basis instead of evaluating the evidence of illegal assembly. 6.2 It has been argued that the present appellants are falsely involved into the crime in question as there was land dispute between the parties and civil litigations were going on in this connection. It is also argued that all the accused are from one family and they have been involved by way of showing weapons in their hands as such they were not present and had not taken part into the crime in question. 6.3 They have also taken us taken us through the evidence of independent witnesses along with the role described by the witnesses of individual accused and argued that except original accused no.4, other accused have not assaulted the deceased on the vital part of the body and the injury received by Shantaben, Mangubhai and Natubhai are not serious in nature as they were treated as outdoor patient and immediately discharged from the hospital and, therefore, the role played by others are not required to be evaluated on that basis only. 6.4 In this regard, they have also taken us CR.A/541/2000 10/23 JUDGMENT through the medical evidence and FSL report etc. qua accused no.1 and argued that as per the evidence on record, he was having farasi and was standing there, but as such there was no use of it because said farsi was snatched away by the accused no.4 and gave blow of it to deceased and evidence to that effect is also on record and, therefore, according to him, the accused no.4 was present only at the scene of offence along with the weapon. 6.5 They have also taken us through the evidence of injured eyewitness, Natubhai and argued that said witness also remained silent about the role of accused no.1. In short, according to them, the role of accused no.1 is only to that effect that he was there at the time of incident along with farasi, but he has not used the same and thus, he had not taken active part. 6.6 As far as original accused nos.2, 4, 5 and 7, who have been represented by the learned counsel, Mr.Panchal are concerned, it is argued that out of them, three have been convicted for the offence under Sections 324 of the I.P.C. for three years. He has taken us through the injury certificate as well as evidence of eyewitnesses and argued that the sentenced awarded by the Court below to the above referred accused is not just, legal and proper and it requires interference. CR.A/541/2000 11/23 JUDGMENT 6.7 It has been argued by the learned counsel, Mr.Panchal that at the time of incident, original accused no.7 viz., Kashiben was aged about 70 years and allegation against her is that she was having iron rod in her hand and she gave blow to the injured persons. According to him, at present, she is more than 80 years and, therefore, it is requested that the prosecution has failed to appreciate any role against her except bare allegations that she was having iron rod in her hand and, hence, she may be given benefit under Probation of Offenders Act. 7.0 Mr.H.L. Jani, Learned A.P.P. has submitted that it is a case, wherein the prosecution has proved the guilt against the accused and the Court below considered the said fact and convicted the appellants-accused as per their role and, therefore, the sentence awarded by the Court below is just, legal and proper. 7.1 In this regard, Mr.Jani has taken us through the oral evidence of four witnesses namely P.W.No.1 viz., Manguben Raysingbhai, Exh.26, P.W.No.2 viz., Shantaben Budhabhai at Exh.41, P.W.No.3 viz., Natubhai Budhabhai Chavda at Exh.42 and P.W.No.4 viz., Mahesh @ Lalo Maganbhai Chavda at Exh.43 and submitted that all are injured witnesses, they are residing very near to each other since last so many years, they are relatives and prior to the CR.A/541/2000 12/23 JUDGMENT alleged incident, altercation has taken place and, therefore, they were in a position to identify the appellants-accused along with their role. 7.2 According to him, they have given the account of the incident in detailed with the weapon and role played by each accused and, therefore, it is a fit case, wherein the Court should not interfere with. According to Mr.Jani, even motive was also proved by the prosecution. 7.3 As far as Kashiben is concerned, it is submitted by Mr.Jani that he is not disputing the age of Kashiben. Mr.Jani submitted that it has been mentioned in the prosecution case from the very beginning that at the time of incident, she was 70 years and, therefore, according to him, the report submitted by the Probation Officer qua her is just and proper and, hence, he has left to the Court. 8.0 We have also gone through the oral as well as documentary evidence shown to us by the learned counsel for the respective parties. 8.1 It is required to be noted that for the purpose of deciding this appeal, four witnesses namely P.W.No.1 viz., Manguben Raysingbhai, Exh.26 (this witness is the wife of the deceased, witness of incident and complainant), P.W.No.4 viz., Shantaben Budhabhai at Exh.41 (this witness is the CR.A/541/2000 13/23 JUDGMENT mother of deceased, injured witness of incident and prosecution has proved and produced her injury certificates, Exh.33 & 38), P.W.No.5 viz., Natubhai Budhabhai Chavda at Exh.42 (this witness is the brother of the deceased, injured witness of incident and prosecution has produced and proved injury his certificates, Exh.34 & 39) and P.W.No.6 viz., Mahesh @ Lalo Maganbhai Chavda at Exh.43 (this witness is the nephew of the deceased and claimed himself to be a witness of incident) are the important witnesses and upon which also, the Court below has relied upon. We have also gone through the oral evidence of above referred four witnesses. 8.2 It is required to be noted that above referred witnesses are injured witnesses and they were taken Municipal Hospital, where they were treated. However, except medical certificate of Mahesh, the prosecution has produced and proved the certificates of all three injured persons. 8.3 As far as Mahesh is concerned, the prosecution is not in a position to produce and prove his injury, however, Mahesh in his deposition before the Court has categorically stated regarding the injury and assault made by the accused upon him. It is required to be noted that from the injury certificate of above referred three witnesses, the prosecution has CR.A/541/2000 14/23 JUDGMENT proved their presence, which is natural one. It is required to be noted that they are the neighbour, staying very near to each other since so many years, they are relatives and way in which the incident has taken place, the witnesses are able to identify the accused along with their respective role and the weapons which they were holding in their hands at the time of incident. 8.4 On evaluation of evidence of above referred witnesses, it is evident that out of above referred four witnesses, Manguben Raysingbhai is the injured witness and she has given the complaint into the hospital at the earliest opportunity, wherein also, she has narrated all the name of the accused along with the weapons and role played by them in detailed and, hence, FIR, Exh.62 is having some more importance in this case and it cannot be said to be a concocted one or it has been given after giving thought of all concerned. 8.5 As far as Manguben, P.W.No.1, Exh.26, whose evidence is at page no.209 of the paper book is concerned, as stated above, she is the injured witness and also witness of incident and she has filed complaint at the earliest opportunity narrating all incident including name and weapons used by them and, therefore, as stated above, her evidence is got much value. In paragraph no.2 of her evidence, she CR.A/541/2000 15/23 JUDGMENT has categorically deposed that the incident in question has taken place prior to two years and it was night of Diwali and after having dinner, when this witness along with her family members were seating outside the house at about 9 p.m., son of the elder brother of her husband viz., Lalo @ Mahesh had come to there to meet them and after sitting there for half an hour, he left the said place at about 9:30 p.m. returning to his house. However, when he reached very near to the house of Maniya Chavda, who is son of accused no.4, the accused no.4 gave stick blow. She further deposed that after hearing the voice of Lalo, they reached there to save him. On that particular point of time, she saw that the accused no.1 armed with farasi, accused no.2 armed with dharia, accused no.3 armed with stick, accused no.4 armed with stick, accused no.5 armed with stick, accused no.6 armed with hockey, accused no.7 armed with iron rod and accused no.8 armed with axe were standing there. She has stuck to her evidence before the Court. 8.6 As far as P.W.No.4, Shantaben Budhabhai, mother of the deceased, Exh.41, whose evidence is at page no.267 of paper book is concerned, she deposed in her evidence that accused no.1 armed with farasi, accused no.1 armed with dharia, accused no.3 armed with stick, accused CR.A/541/2000 16/23 JUDGMENT no.4 armed with stick, accused no.5 armed with stick, accused no.6 armed with hockey, accused no.7 armed with iron rod and accused no.8 armed with axe were standing there. 8.7 As far as P.W.No.5, Natubhai, brother of the deceased, Exh.42, whose evidence is produced at Exh.271 of paper book is concerned, he has categorically deposed that the accused no.1 was having farasi, accused no.2 was having dhariya, accused no.3 was having stick, accused no.4 was having stick, accused no.5 was having stick, accused no.6 was having hockey, accused no.7 was having iron rod and accused no.8 was having axe. 8.8 As far as P.W.No.6, Maheshbhai who is nephew of the deceased is concerned, his deposition is at page no.275 of the paper book, which also support the say of other witnesses. 8.9 In short, the prosecution has proved the presence of all accused along with the weapons which they were having in their hands and there are no material contradictions to that effect in the evidence of above referred four witnesses including FIR and as we have stated above, FIR has been given at the earliest opportunity in the hospital itself by the complainant, Manguben. According to us, the presence of all the accused at the time of incident along with their weapons have been proved by the prosecution. Not only that, it CR.A/541/2000 17/23 JUDGMENT also got support from the cross complaint filed by the accused no.4-Ramesh, wherein also, chargesheet came to be filed before the Court below, however, at the end of trial, the present witnesses have been acquitted by the Court below. So the presence of the accused with deadly weapons at the time of incident has been established beyond reasonable doubt. 8.10 Over and above, it is required to be noted that the incident has taken place at 9:30 p.m. very near to their house and it was a night of Diwali and as there was a death in the family of the complainant, they were at home. It is also required to be noted that the time of incident is such, usually, the witnesses available would be family members of the victim and would be at home and the distance between the house of the complainant the place of incident is very short and, therefore, after hearing the shout for help, if witnesses would have reached the scene of offence, it is natural one and does not creat doubt in the mind of the Court. Over and above, presence of the above referred witnesses has been established as they received injuries in the alleged incident and were admitted and treated in the hospital, which is supported by the certificates issued, produced and proved by the prosecution. 9.0 Now the question comes that what role has been CR.A/541/2000 18/23 JUDGMENT played by each accused and because of which, who has received the injuries. In this regard, as argued by the learned counsel for the appellants-accused and it is also established from the evidence that it was a free fight resulted into cross complaint and cross cases and, therefore, Court is bound to evaluate the evidence on record on the basis of the individual act of the person and keeping in mind the above aspect of the matter, we are evaluating the evidence of above referred evidence and upon evaluating the same, it is established that in this incident, the deceased succumbed to the injuries while taking treatment in the hospital. Simultaneously, P.W.No.1, 5 and 6 have also received injuries. 9.1 As far as accused no.4, Rameshbhai is concerned, from the evidence on record and from the evidence of above referred five witnesses, it is established that he tried to assault Mahesh @ Lalo while he was passing through the house of the accused, however, he escaped from the place of offence and while doing so, he shouted for help and upon hearing, the above referred witnesses reached the scene of offence. 9.2 As far as accused nos.1, 4 and 8 are concerned, they were having farsi, stick and axe respectively. However, during the course CR.A/541/2000 19/23 JUDGMENT of free fight, the accused no.4 snatched away farsi from the hand of accused no.1 and gave farsi blow on the head of the deceased and also gave blow of it to Shantaben and Natubhai. Keeping in mind the above fact, the Court below convicted the accused no.4 for life and other accused were convicted for three years for the offence under Sections 324 and 325 of the Indian Penal Code. 9.3 As stated above, out of eight accused, the accused no.2, Ishwarbhai Manibhai Chavada has expired during trial. 9.4 In short, the presence of all accused along with their respective role has been established by the prosecution beyond reasonable doubt which also gets support from FIR, Exh.62, injury certificates of above referred witnesses, P.M. Note and injury certificate of deceased and, therefore, we are not repeating the same here. 10.0 As far as appellants,