IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 678 of 1995 For Approval and Signature: HON'BLE MR.JUSTICE B.J.SHETHNA 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? : 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? -------------------------------------------------------------- BHEMABHAI S PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR JOSHI FOR M/S THAKKAR ASSOCIATES for Appellant MR HM PRACHHAK, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE B.J.SHETHNA and HON'BLE MR.JUSTICE J.R.VORA Date of decision: 03/12/2003 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.R.VORA) 1. This Appeal is preferred by the appellant original accused No.1 against an order and judgment delivered by learned Additional Sessions Judge, Godhra, on 6th of May, 1995 in Session Case No.136/94, convicting the present appellant under Sections 302, 323 and 504 IPC, wherein present appellant was awarded sentence of life imprisonment for the offence proved against him under Section 302 IPC and fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for two months, and no separate sentence was awarded for the offences proved against the appellant under Sections 323 and 504 of IPC. The appeal came to be admitted by this Court on 28th of December, 2001. 2. The facts leading to filing of the prosecution against the present appellant and other accused can briefly be stated that the incident in question occurred on 16.6.1994 at about 13.00 hours at village Antela. The complaint came to be filed by PW-3 Abhesing Gema before Devgadh Baria Police Station at 19.30 hours of the same day. Accordingly, complainant PW-3 Abhesing Gema and his brother Bachubhai Gema who is deceased in this incident, both were staying together. PW-3 Abhesing Gema was bachelor while deceased Bachubhai was staying as husband and wife with one Kakudiben, PW-4 though formal marriage ceremony had not taken place. The first incident took place on 15.6.1994 at night when according to the prosecution case PW-3 Abhesing and his brother were at their residence at about 8.00 p.m. present appellant original accused No.1 Bhemabhai Salubhai Patel and original accused No.2 (non-appellant) Gordhanbhai Salubhai Patel who were staying in the said falia, came and started giving abuses and threatened that PW-3 Abhesing Gema and deceased Bachubhai should not take part in any family gathering because they were declared out of the family. PW-3 Abhesing Gema and deceased Bachubhai told original accused No.1 not to abuse them, and this was followed by scuffle, and thereafter they were dispersed. On the next day i.e. on 16.6.1994, when PW-3 Abhesing Gema complainant and deceased Bachubhai were at their residence, at about 13.00 hours, appellant original accused No.1 Bhemabhai Salubhai started giving abuse to deceased Bachubhai, and Bachubhai persuaded him not to abuse him and this was followed by altercations between the parties. During this altercations, present appellant - Bhemabhai, original accused No.2 Gordhanbhai and original accused No.3 Amrabhai Ramjibhai Patel came running on the spot. This incident occurred between the houses of deceased and accused which are situated within the distance of 200 feet from each other. Though as per the prosecution story accused came to the house of deceased and dragged him out towards the house of the accused. Present appellant and accused No.2 Gordhanbhai Salubhai had small sticks with them and original accused No.3 Amrabhai had stone in his hand. The present appellant inflicted blow of stick on the head and on the neck of deceased. Due to which, blood started oozing. Bachubhai fallen down on the ground and when PW-3 Abhesing Gema tried to intervene, the present appellant original accused No.1 inflicted blow of stick on left knee of Abhesing Gema. Original accused No.2 Gordhanbhai Salubhai also inflicted a blow of stick on right leg of Abhesing Gema and accused No.3 Amrabhai Ramjibhai pelted stones. There was boomerang and therefore all the three accused ran away from the spot. PW-3 Abhesing Gema thereafter went to the house of Police Patel PW-5 Gemalsing Pratapsing Patel and conveyed what had happened. Sister of deceased Bachubhai, Kaliben Gemabhai PW-7 Exh.27 was summoned because she was staying at different village and thereafter Kaliben, Kakudiben and Sursing cousin brother of the deceased all the three took the body of Bachubhai near Bhular Dam on the road and brought him to Baria where he was sent to Baria Hospital, but since the injury was serious, deceased was transferred to Godhra Hospital, where during treatment, on 22.6.1994 Bachubhai died in Godhra Civil Hospital and postmortem was performed. On 16th of June, 1994 before PW-8 Exh.28 Maniben Manabhai, who was In-charge PSO, Devgadh Baria Police Station, PW-3 Abhesing, gave his complaint about the incident which is at Exh. 29, from which the offence came to be registered and investigation was handed over to one PSI Baria Police Station PW-10 Dilipsinh Laxmansinh Rathod, who filed charge sheet against three accused. Present appellant accused No.1 Bhemabhai Salubhai Patel, accused No.2 Gordhanbhai Salubhai and accused No.3 Amrabhai Ramjibhai for the offence punishable under Sections 302, 323, 504, 506 (2) and 114 of the IPC and under Section 135 of the Bombay Police Act. During trial, original accused N.3 Amrabhai Ramjibhai Patel died and trial abated against him and trial proceeded against two accused - present appellant Bhemabhai Salubhai Patel and accused No.2 Gordhanbhai Salubhai Patel. 3. It is pertinent to note here that according to prosecution case, Police Patel noted the complaint of PW-3 Abhesing Gema on the spot in the form of a chit at village Antela which was produced by PW-3 before Devgadh Baria Police Station, which is on record at Exh.11. 4. Prosecution examined 10 oral witnesses and produced documentary evidence. Before that, charge was framed against the accused by learned Addl. Sessions Judge, on 18th of March, 1995 for the above said offences to which both the accused pleaded not guilty and prosecution tendered the evidence. After recording further statement of the accused and after hearing both the sides, the learned Trial Judge came to the conclusion that present appellant - accused No.1 was liable to be punished under Sections 302, 323, and 504 of the IPC and he was sentenced to life imprisonment and as aforesaid while original accused No.2 Gordhanbhai Salubhai Patel acquitted of the offences charged against him under Section 302 of the Indian Penal Code and he was sentenced to 7 days simple imprisonment and fine of Rs.100/- in default to undergo simple imprisonment of three days. No separate sentence was awarded to accused No.2 for charge under Section 504 of the Indian Penal Code. Both the accused were given benefit of set off for the period they have remained under trial. This appeal therefore is preferred against the above said judgment and order by original accused No.1 Bhemabhai Salubhai Patel. 5. Learned Advocate Mr.Joshi for M/s Thakkar Associates for the appellant vehemently attacked the judgment and order on the ground that the case was resting only on one injured eye witness i.e.PW-3 Abhesing Gemabhai. It was argued that PW-3 Abhesing being brother of the deceased is related and highly interested witness and, therefore, without corroboration, his evidence cannot be accepted, especially when there are contradictions major in nature in the evidence of PW-3 Abhesing. The attention of the Court was drawn to Exh. 11 report written by the Police Patel Gemalsing Pratapsing Patel, PW-5, Exh. 25 and the complaint filed by PW3 - Exh. 29. It was stated that in Exh.11, it was nowhere stated that all the accused came running towards the house of the complainant and it is also nowhere stated that the deceased was beaten by stick by accused No.1 present appellant. It was therefore stated that it is not safe to rely upon a solitary eye witness who is related and interested and his evidence is found full of contradictions. It was also argued that in fact Exh.11 report prepared by the Police Patel, PW-5 ought to have been treated as an FIR by the trial court, instead Exh.29 which is nothing more than the statement under Section 162 of the Criminal Procedure Code is treated as an FIR by the Trial Court. It was argued that except PW-1 Abhesing Gema, there is no other witness of the incident and other witnesses examined are either not eye witnesses or though the prosecution tendered PW-4 Kakudiben as eye witness, she failed to support the version of the prosecution. It was therefore argued that the present appellant is required to be acquitted of the charges levelled against him. Alternatively, it was also argued that if at all the court comes to the conclusion that the prosecution was able to prove its case beyond reasonable doubt, then this is a case of one blow that too by one stick and having regard to the attending circumstances of the incident, this is not a case of murder punishable under Section 302 of the Indian Penal Code, but the facts are squarely covered under Section 304 Part II of the Indian Penal Code i.e. culpable homicide not amounting to murder. It was also argued that the present appellant is arrested on 19.6.1994 and since then till today he is in jail, which comes to about more than 9 years. 6. Learned APP Mr. H.M. Pracchak on behalf of the State vehemently supported the judgment and order of conviction under challenge on the ground that this is not the law of land that the solitary eye witness cannot be believed or all time the single eye witness requires corroboration. Drawing our attention to the evidence and the judgment under challenge, it was argued that the learned Trial Judge took all the circumstances into consideration and came to the right conclusion to convict the present appellant under Section 302 of the Indian Penal Code and no interference at all is required. 7. Heard the learned Advocates appearing for both sides. We have travelled through each corner of the evidence recorded in the trial court, documentary evidence as well as oral. To come to a conclusion and to evaluate the contentions raised, it is necessary first to go through the evidence as recorded by the Trial Judge. As above said to prove the prosecution case, the prosecution examined in all 10 witnesses. 8. Prosecution examined Dr. Chandrahas Keshavrao Shikenvish, PW-1, Exh.15. He is the Doctor who examined the injured Bachubhai first point in time at about 5.20 p.m. He found injured Bachubhai unconscious and Bachubhai had one injury as under : "C.L.W. 2" x 1/2" x 1/2" on left side scalp 4" above left eye. Patient in comma. He also examined PW-3 Abhesing Gema on next day i.e.on 17.6.1994 and Abhesing had one injury of C.L.W. 2" x 1/4" x 1/4" on left leg below the knee joint. He produced the certificates of deceased Bachubhai at Exh. 17 and in respect of PW-3 Abhesing at Exh.18. According to this Doctor, the injury received on left parietal region by Bachubhai was serious in nature and therefore he was transferred to Civil Hospital at Godhra. He also stated that the injury could be caused by stick of mudammal articles No. 1 and 2. In Cross-examination, he admitted that on clinical examination it could not be found that Bachubhai had fracture, but his injury was bone deep. He also admitted that deceased had only one injury on the head and except that he had no other injury. 9. PW-2 Dr. Subhashchandra Nathalal Sutharia, Exh. 19 is examined by prosecution to prove postmortem of deceased Bachubhai Gemabhai. According to this witness, he was serving as Medical Officer, Godhra Civil Hospital on 22.6.1994. On that day, the dead body of Bachubhai Gemabhai was forwarded to him with inquest panchnama for performing postmortem examination. He started postmortem at 13.05 hours and completed it at 15.5 hours. According to this Doctor, he found two injuries on his head and those injuries were as under : 1. One stitched wound over left parietal region of skull about 3 cms in size - length. 2. One CLW over occipital region of skull about 3 cms x 1 cms x bone deep in size. He deposed that those injuries were antemortem and corresponding following internal injuries were found on the body of the deceased . "Subdural hematoma over frontal and left parietal region of skull. 1. Depressed multiple fracture of left parietal bone of skull. 2. Fracture of frontal bone. 3. Fracture of right parietal bone. Subarachnoid and subdural haemorrhage present left parietal (to be) hemisphere, ruptured and crushed below external injury No.1." According to the Doctor, cause of death was shock and haemorrhage due to the head injury. He prepared the post mortem note which he produced at Exh.20. According to him, external injury No.1 was corresponding to internal injury Nos. 1 2 and 3 and haemorrhage was due to this injury. This injury, according to Doctor was sufficient in ordinary course of nature to cause death. In cross-examination he clarified that internal injury No.1 was on left parietal region while external injury No.2 was on occipital region, could have been caused by separate inflictions. 10. Complainant - Abhesing Gema solitary eye witness of the prosecution case is examined as PW-3 Exh. 23. According to him deceased Bachubhai was his brother. He had not married. He also was not married. Both the brothers were staying together. The incident took place at about 2.00 p.m. before one year of the deposition. Present appellant and the accused No.2 Gordhanbhai Salubhai came to their house giving abuses to his brother Bachubhai and saying that Bachubhai and Abhesing must not sit together in their family gathering. Appellant i.e. accused No.1 had small stick in his hand and he inflicted a blow on the head of Bachubhai. Accused No.2 Gordhanbhai Salubhai inflicted a stick blow on left hand of Abhesing and thereafter accused No.3 Amrabhai picked up stones and pelted against deceased Bachubhai which was hit in his back, that he explained to be the neck. Deceased Bachubhai had fallen down on the ground in the court yard of the house of the present appellant. He explained that all the accused seized Bachubhai and dragged him to their house and therefore Bachubhai fell on the ground in the court yard of the house of the appellant. Thereafter all the three accused ran away and he went to the house of Police Patel PW-5 Gemalsing Pratapsing Patel. Police Patel Gemabhai wrote a report and thereafter near Bhular Dam on the road, hired a jeep and Bachubhai was sent to Baria Police Station and from there to Baria Hospital. Bachubhai was transferred to Godhra Hospital from Baria Hospital and Bachubhai died in Godhra Hospital. The witness further stated that he gave complaint before Baria Police Station, which was shown to him and according to him that was the complaint which he offered. Mudammal articles No.1 and 2 sticks were shown to him and he identified the same. He stated that the husband of PW-4 Kakudiben had died and, therefore, Kakudiben was staying with his deceased brother Bachubhai as his wife but they had not married. In his cross-examination, he was confronted with Exh.11 a report written by Police Patel. Questions were asked about the situation and location around the scene of offence to show that the incident might have been seen by many others. He was confronted with his First Information Report that in his complaint he did not mention that deceased Bachubhai was dragged by the accused towards their house. He admitted that the incident took place near the house of Bhemabhai. In his cross-examination he further admitted that his brother had 4 to 5 injuries on his head and those injuries were injuries of stones which were pelted by the accused. 11. Kakudiben, PW-4 has been examined at Exh. 24 and according to the prosecution case, originally she was also an eye witness but she did not support the prosecution case. She stated that his earlier husband Galabhai died and thereafter she was staying with the deceased Bachubhai. When the incident occurred she was grazing her goats in the field. She ran towards the incident and noticed that accused Amrabhai pelted stones. She did not witness anything else. In cross-examination on being declared the witness to be hostile, learned APP confronted her with her statement recorded by Police under Section 162 of the Criminal Procedure Code. In cross-examination of defence, she stated that deceased Bachubhai and PW-3 Abhesing went to the house of the accused for abusing them. At that time deceased Bachubhai had a stick in his hand which she identified mudammal Articles No. 1 and 2. 12. PW-5 Gemalsing Pratapsing Patel, has been examined by the prosecution at Exh.25. He was Police Patel at the relevant time and when he was at the residence of Bhemabhai for a function, PW-3 Abhesing came there. There was injury on his leg. On inquiry, Abhesing stated that at about 12.00 p.m., they had a quarrel with the accused and stick was hit on his leg and a blow of stick also was inflicted on the head of Bachubhai. According to this witness, thereafter he went to the scene of offence with PW-3 Abhesing and noticed that deceased Bachubhai was lying on the ground towards the house of the appellant. He was not able to speak and blood was oozing from his head. He advised to summon Kaliben, sister of the deceased and he got a report written from some other boy and he signed it, which is at Exh.11. He then advised to take Bachubhai to Baria Police Station and thereafter to the hospital. In cross-examination, contradictions in respect of Exh. 11 report were attempted to be proved by the defence. His cross-examination is lengthy and some questions are asked about the panchnama of scene of offence. He denied the suggestion that PW-3 did not convey to him that who had beaten PW-3 and his brother Bachubhai. The witness is not an eye witness. 13. Prosecution examined PW-6 Gopsing Raylabhai at Exh. 6 being uncle of the deceased. He is only a supporting witness and he was informed by Kaliben about the incident. 14. PW-7 Kaliben Gamabhai is examined at Exh. 27 being the sister of the deceased. According to her, she was at her residence at village Bhular when she was summoned by Kakudiben at about 11.00 a.m. Kakudiben narrated the incident occurred that both her brothers were beaten by the appellant and other two accused. So the witness came to the scene of offence where she noticed Bachubhai lying on the ground. Abhesing was present. She accompanied Abhesing and others took Bachubhai to Baria. This witness is also not an eye witness but supporting witness. 15. PW-8 Maniben Manabhai is examined at Exh. 28 and she was In-charge PSO of Bariya Police Station on 16.6.1994 where at 19.30 hours PW-3 Abhesing Gemabhai came and declared his complaint which was written by her and a left hand thumb impression was obtained and thereafter she registered the offence and investigation was entrusted to PSI Dilipsinh Laxmansinh Rathod. The complaint was produced at Exh.29, even after objected by the defence. In cross-examination she was confronted with the report of Police Patel at Exh. 11 and she admitted that she felt that the report at Exh.11 discloses cognizable offence. 16. Dr.Prabhakar Ramubhai Bhatia is examined as prosecution witness at Exh.30, who treated Bachubhai at Godhra Hospital. According to him, on 17.6.1994 while he was serving as Medical Officer, Godhra Civil Hospital at about 3.00 p.m. with transfer chit Bachubhai Gemabhai was brought to his hospital. The transfer chit was produced at Exh.31. According to him, on examination, he found one injury on left parietal region and according to him it was punctured wound. Patient was unconscious. The patient died at 3.45 hours on 22.6.1994. He was transferred to surgical ward where he was treated by this witness and other Doctors. He produced indoor case papers at Exh. 32 and x-ray plate at Exh.33. In cross-examination, he admitted that except the head injury which he noted in the case papers, he did not notice any other injuries on the body of the deceased. 17. PW-10 Dilipsinh Laxmansinh Rathod, is examined as prosecution witness No.10 at Exh. 34 who investigated the offence being PSI of the Devgadh Baria Police Station. On entrustment of investigation, he draw the panchnama of scene of offence and other panchnamas. He recovered mudammal and recorded the statements of the witnesses. Prosecution attempted to prove whatever stated by PW-4 Kakudiben before the Investigating Officer. In his cross-examination, contradiction in respect of Exh.11 were asked by the defence. 18. In addition to the above oral evidence, prosecution also tendered the documentary evidence as under : Inquest Panchnama - Exh.8, Panchnama Exh.10, which is the panchnama of the seizure of clothes of the deceased, Exh.13 panchnama of scene of offence, Exh.14 result of analysis of Forensic Science Laboratory, Exh. 22 map of the scene of offence, Exh.35 arrest panchnama of the accused and panchnama of recovery of sticks from the accused. 19. On appreciating the evidence as a whole tendered by the prosecution, it clearly emerges that the case of the prosecution though hinges on only eye witness PW-3 Abhesing Gemabhai, in his support there is medical evidence of three doctors, namely, PW-1 Dr. Chandrahas Keshavrao Shikenvish, PW-2 Dr. Subashchandra Nathalal Sutharia and PW-9 Dr. Prabakar Ramubhai Bhatia, as above said. Other witnesses including PW-5 Gemalsing Pratapsing Patel - Exh.25 Police Patel, are not eye witnesses but they are also supporting witnesses. The prosecution is able to prove that the incident in question had occurred in which deceased Bachubhai received injuries on left parietal region which proved fatal and PW-3 Abhesing also received one injury by stick on his left leg. Police Patel PW-5 Gemalsing Pratapsing Patel reached at the place of scene of offence immediately after the incident and he saw Bachubhai lying on the ground. PW-4 Kakudiben also though after sometime reached at the scene of offence and found Bachubhai at the scene of offence. Therefore, in support of sole eye witness, there is ample medical evidence to corroborate the say of sole eye witness and other evidence which is supporting in nature is also available on record. It is amply proved that Bachubhai died due to injury which he received on left parietal region resulting in fracture and haemorrhage causing death. True it is, that when witness is related and interested his evidence must be scrutinised very carefully. We have dispassionately and carefully examined each corner of the evidence of sole eye witness but we do not find any reason to disbelieve the version given by PW-3 Abhesing before the Court. The Trial Court was correct in treating Exh.29 being FIR because Exh.11 report prepared by the Police Patel PW-5 Gemalsing Pratapsing Patel is nothing but the cryptic message written on a paper through an agency of literate boy of the village. When we examined Exh.11, we find no such contradiction as contended on behalf of the appellant to disbelieve PW-3 Abhesing. On the contrary, PW-3 Abhesing finds support and corroboration from Exh.11 to the extent that the incident occurred as narrated by him. It is not the rule of law that when the solitary eye witness is found related or interested, his testimony cannot be accepted without corroboration. Though some contradictions are attempted to be magnified on the part of the appellant, but these are not contractions affecting the core of the prosecution case. We do not find any major contradiction between the evidence before the court and the complaint filed by the PW-3 before the Police i.e. Exh. 29, except he exaggerated the