IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 739 of 1993 with CRIMINAL APPEAL No 1067 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 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 Civil Judge? : NO -------------------------------------------------------------- GAUTAMBHAI DEVJIBHAI RATHOD Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 739 of 1993 MR KJ SHETHNA for Petitioners Ms.Harsha Devani, for Respondent No. 1 2. Criminal AppealNo 1067 of 1993 Ms.Harsha Devani for Petitioners NOTICE SERVED for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE SHARAD D.DAVE Date of decision: 23/04/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) 1. For causing the murder of (1) Gordhanbhai Keshubhai and (2) injuries to (a) Hirabhai Keshubhai, (b) Kanubhai Maganbhai, (c) Amratbhai Dahyabhai, (d) Hansaben w/o deceased Gordhanbhai Keshubhai, (e) Gangaben w/o Hirabhai Keshubhai and (f) Baluben w/o Manubhai Hirabhai, the appellants of Criminal Appeal No. 739 of 1993 were tried by the learned Addl.Sessions Judge, Ahmedabad, of the offences punishable under Sec. 302 read with Sec. 34, Sec. 324 read with 34 of Indian Penal Code and Sec. 135(1) of Bombay Police Act in Sessions Case no. 127 of 1989. The learned Addl. Sessions Judge has convicted the appellant no. 1 under Sec. 302 of I.P.C. as well as under Sec. 324 read with Sec. 34 of I.P.C. and sentenced him to suffer R.I. for life for the offence punishable under Sec. 302 of I.P.C. and R.I. for 2 years and pay fine of Rs.2,000/-, in default R.I. for six months for the offence punishable under Sec. 324 read with Sec. 34 of I.P.C. whereas the appellant nos. 2 to 4 are convicted under Sec. 324 of I.P.C. and sentenced to R.I. for 2 years and fine of Rs. 2,000/-, in default R.I. for six months vide judgment dated 30th June, 1993. Criminal Appeal no. 739 of 1993 which is filed by the appellants is directed against their conviction, whereas Criminal Appeal no. 1067 of 1993 is filed by the State Government questioning acquittal of appellant nos. 2 to 4, of the offences punishable under Sec. 302 read with Sec. 34 of I.P.C. As common questions of facts and law arise for our determination in these two appeals, we propose to dispose them of by this common judgment. 2. The complainant Hiralal Keshubhai was residing with his deceased brother Gordhanbhai and other family members at Vikramnagar Society, behind Hirabag, Ahmedabad. The complainant is a Labour Contractor by profession whereas the deceased was running a pan shop in the name and style of "Savan Pan Parlour" on Mahenatpura road, Nr. Amubhai chawl. All the convicted appellants are residing at Sukhipura Society and are brothers. The appellants entertained a suspicion that the complainant Hiralal was instrumental in initiation of extradition proceedings against them and therefore they were on inimical terms with the complainant and had threatened the complainant with his life six months before filing of the complaint in the present case which was filed on 23rd October, 1987. On threats being administered by the convicted appellants, the complainant had lodged First Information Report with Ellisbridge police station also. The incident in question is alleged to have taken place on 23rd October, 1987. October 22, 1987 was Diwali day and because of the festival, the complainant along with his other members of the family was sitting in his house till late night. At about 1.00 a.m. on October 23, 1987, the complainant heard shouts of his brother Gordhanbhai for help from his pan shop and therefore the complainant immediately rushed towards the pan shop and found the appellant no. 1 with a Gupti in his hands and rest of the appellants with iron pipes in their hands. According to the complainant, the appellants were abusing the deceased in foul language and mounted assault on him. The complainant claims that appellant no. 1 gave a Gupti blow below the right armpit of Gordhanbhai as a result of which Gordhanbhai started running from pan shop towards his car which was parked just opposite his residential house and when the complainant tried to save the deceased, the appellant nos. 2 to 4 assaulted him by means of pipes. The prosecution has claimed that all the four appellants were speaking foul language and were assaulting Gordhanbhai by uttering words "beat beat". According to the prosecution, Amratbhai Dahyabhai, Kanubhai Maganbhai, Hansaben Gordhanbhai, Gangaben Hirabhai and Baluben also tried to save Gordhanbhai from the assault of these persons but they were also assaulted by appellants nos. 2 to 4 with pipes. As per the case of the prosecution, when the deceased reached near his car, he was assaulted by the appellants nos. 2 to 4 with pipes as a result of which the deceased fell down near his car. The case of the prosecution is that after assaulting Gordhabhai and others, the appellants ran away from the scene of offence with their weapons. Gordhanbhai was bleeding from his injury and had fallen down unconscious. The complainant had also, according to the prosecution, fallen down because of the assault on him with pipes. Amratbhai Dahyabhai and Kanubhai Maganbhai removed Gordhanbhai and complainant Hirabhai to V.S.hospital, Ahmedabad for treatment. At about 1.50 a.m., the doctor declared Gordhanbhai dead at the hospital. Dharmaji Bhimaji who was P.S.O. of Ellisbridge police station received Wardhi from V.S.Hospital on 23rd October, 1987 at 3.10 hrs. which was communicated to him on telephone by Jamadar Govindbhai who was on duty at V.S.Hospital. The Wardhi indicated that one Gordhanbhai had died and that his assailants were Gautam Devjibhai etc. and that Govindbhai was declared dead at 1.50 a.m. whereas Hirabhai Keshubhai and Amratbhai Dahyabhai had sustained injuries. A copy of the wardhi was handed over to P.S.I.Mr.Goswami of Ellisbridge police station. P.S.I.Mr.Goswami, therefore went to V.S.hospital and recorded the complaint of Hirabhai, after which the crime was registered in the station dairy of Ellisbridge police station as C.R.No. 567/87. Thereafter, a report was made as required under Sec. 157 of the Code of Criminal Procedure and the papers were forwarded to the Police Inspector Mr. Ahuja for further investigation. It is also the case of the prosecution that on October 23, 1987, when P.S.I. Mr.N.H.Goswani was on duty in Investigation Squad of Ellisbridge police station, one Chandu Devji Rathod (appellant no. 3) had given N.C.Complaint at 2.40 hrs. which was recorded in the N.C.register and was forwarded to the P.S.I. for making entry in the station dairy which was registered in N.C.register as N.C.no. 468/87 and a yadi was given to Chandu Devji for treatment at V.S. hospital. According to the prosecution, when P.S.I. Mr.Goswami was at the hospital, he had held inquest on the dead body. Mr.Ahuja, P.I., Ellisbridge police station, after taking over the investigation of the crime from P.S.I. Mr.Goswami, recorded statements of witnesses and sent the dead body of deceased Gordhanbhai for post-mortem examination. At the conclusion of investigation, the appellants were chargesheeted for the offences punishable under secs. 302, 324 read with sec. 34 of I.P.C. As the offence punishable under sec. 302 of I.P.C. is exclusively triable by the Court of Sessions, the case was committed to Sessions Court, Ahmedabad for trial where it was numbered as Sessions Case no. 127 of 1989. The charge at exh. 2 under sec. 302 and 324 read with 34 of I.P.C. was framed by the learned Addl. Sessions Judge, Ahmedabad against the appellants. The charge was read over and explained to the appellants who pleaded not guilty to the same and claimed to be tried. Therefore, in all 19 witnesses were examined by the prosecution to prove its case against the appellants. They were 1) Complainant Hirabhai Keshubhai Vanol p.w.1 at exh. 16, 2) Dr.Chimanbhai B Charel p.w.2 at exh. 19, 3) Kanubhai Maganbhai Vanod p.w.3 at exh. 35, 4) Hansaben Gordhanbhai p.w.4 at exh.38, 5) Gangaben Hirabhai p.w.5 at exh.40, 6) Amratbhai Dahyabhai p.w.6 at exh.52, 7) Manubhai Tulsibhai p.w. 7 at exh.54, 8)Vastabhai Chhanabhai Gohil p.w.8 at exh.56, 9) Ashok Harshadrai Acharya p.w. 9 at exh.60, 10) Ramesh Bhalaji p.w.10 at exh.61, 11) Hirabhai Gandabhai p.w.11 at exh.64, 12)Dharmaji Bhikhaji p.w.12 at exh.69, 13) Dr.Ravindra S Bhinse p.w.13 at exh.78, 14) Ramchandra Chatrabhuj p.w. 14 at exh. 81, 15) Govindlal Somchandbhai p.w.15 at exh. 83, 16)Mohd.Salim Maqbulkhan p.w.16 at exh.87, 17) Narendrapuri H Goswami p.w.17 at exh.88, 18)Gyansagar Girdharji Ahuja p.w. 18 at exh.91, 19) Ratilal Bechardas Soni p.w.19 at exh.99. The prosecution also produced documentary evidence such as complaint filed by Hirabhai at exh. 17, certificate of injuries of 1) Gangaben, 2) Kanubhai Maganbhai, 3) Amratbhai Dahyabhai, 4) Hirabhai Keshubhai, 5) Hansaben Gordhanbhai etc., wardhi given by Constable Govind Somchand to P.S.O. Dharmaji Bhimaji of Ellisbridge police station, post-mortem notes of the deceased etc. to prove its case against the appellants. On appreciation of the evidence adduced by the prosecution, the learned Addl.Sessions Judge, by judgment dated June 30, 1993 has held that it was proved beyond reasonable doubt by the prosecution that the deceased Gordhanbhai died a homicidal death. The learned Judge deduced that on October, 23, 1987 at 01.00 hrs., the appellants were equipped with weapons like gupti and pipes on Mahenatpura road, near Chinubhai chawl in Ambawadi area of city of Ahmedabad and the appellant no. 1 had caused death of Gordhanbhai by inflicting injury with gupti whereas the appellants no. 2 to 4 had caused injuries to witnesses who had tried to save Gordhanbhai from assault. According to the learned Judge, the appellant no. 1 had inflicted gupti blow with an intention to cause death of the deceased and therefore he had committed the offence punishable under Sec. 302 of I.P.C. and was also guilty of the offence punishable under Sec. 324 read with Sec. 34 of I.P.C., whereas the appellants no. 2, 3 & 4 had intentionally caused injuries to witnesses Hirabhai Keshubhai, Kanubhai Maganbhai, Amratbhai Dahyabhai, Hansaben and Baluben with iron pipes and they had committed offence punishable under Sec. 324 read with Sec. 34 of I.P.C. The learned Judge was of the view that the appellants no. 2 to 4 had not shared common intention of appellant no. 1 to kill deceased Gordhanbhai and therefore they were not liable to be convicted under Sec. 302 of I.P.C. read with Sec. 34 of I.P.C. The learned Judge, thereafter, heard the appellants regarding sentence to be imposed on them and after hearing them, has sentenced the appellant no. 1 to suffer R.I. for life under Sec. 302 of I.P.C. as well as R.I. for 2 years and fine of Rs.2,000, in default R.I. for six months under Sec. 324 of I.P.C. read with Sec. 34 of I.P.C. The appellants no. 2 to 4 are sentenced by the learned Judge to R.I. for 2 years and fine of Rs. 2,000/each, in default R.I. for six months by the impugned judgment, which has given rise to Criminal Appeal no. 739 of 1993. According to the State, the appellants no. 2 to 4 ought to have been convicted under Sec. 302 of I.P.C. with the help of Sec. 34 of I.P.C. as they had shared common intention of the appellant no. 1 to kill Gordhanbhai and therefore the State Government has preferred Criminal Appeal no. 1067 of 1993 under sec. 378 of the Code of Criminal Procedure. 3. Mr.K.J.Sethna, learned Counsel for the convicted appellants, after taking us through the entire evidence on record, submitted that the evidence of complainant Hirabhai is not only unnatural but full of material contradictions as well as omissions and therefore his evidence should not have been believed by the learned Judge for convicting the appellants. According to the learned Counsel for the appellants, the evidence led by the prosecution does not establish satisfactorily that the incident had taken place at pan shop of the deceased and therefore the genesis of the incident having been suppressed by the prosecution, the whole prosecution case ought to have been disbelieved by the learned Judge. It was urged that giving latitude to the prosecution witnesses on the ground that they were deposing before the court after a lapse of about 5 years from the date of incident is not justified at all and as the prosecution witnesses had not seen the incident in question at all but were got up subsequently, the appeal should be accepted. The learned Counsel for the appellants pointed out contradictions and discrepancies appearing in the deposition of prosecution witnesses and submitted that the prosecution witnesses were lying before the court and should not have been believed by the learned Judge at all. According to the learned Counsel, at the place of incident, several persons had gathered and therefore in the absence of any corroboration by independent witnesses to the testimony of witness Kanubhai, the prosecution case against the appellants should be disbelieved. The learned Counsel emphasized that before the doctor, three witnesses had stated that the incident had taken place at 11 p.m. whereas before the court, the prosecution witnesses maintained that the incident had taken place at about 1 a.m. which means that the prosecution has suppressed the material facts and therefore the prosecution case against the appellants ought to have been rejected by the learned Judge. What was claimed was that there was unexplained delay in the disclosure of the names of the assailants and as the the complaint was prepared after holding of inquest on the dead body, the appellants deserve to be acquitted. After referring to the evidence of the complainant and P.S.I. Mr.Goswami, the learned Counsel contended that the first information report is a dubious document and therefore could not have been relied upon by the learned Judge for seeking corroboration to the testimony of the complainant. The learned counsel for the appellants pointed out interpolation of the words in wardhi exh. 84 and submitted that case against the appellant no. 1 was cooked up by the prosecution later on which does not inspire confidence at all. The learned Counsel criticized the approach of the learned Addl. Sessions Judge in evaluating the interpolation of the words in exh. 84 in the light of contemporary record and submitted that the got up case against the appellants should not have been believed by the learned Judge. What was pleaded was that even if it was assumed that the offence was committed at 1.25 a.m., the distance between the place of incident and the V.S.hospital is short one, and as record was manipulated and concocted to implicate more persons than one, the appeal deserves to be allowed. According to the learned Counsel, the N.C. complaint of appellant no. 3 Chandubhai Devjibhai should not have been taken into consideration while deciding the question as to at what time the incident had taken place and finding regarding time of the incident being erroneous should be set aside. The learned Counsel, lastly stressed that the learned Addl.Sessions Judge has totally misread the evidence on record and the appellants should be acquitted. With reference to the acquittal appeal filed by the State Government, the learned Counsel for the appellants claimed that no reliable evidence worth named is adduced by the prosecution to establish that the appellants no. 2 to 4 had shared the intention of the appellant no. 1 to kill deceased Gordhanbhai and the acquittal appeal being substance less, should be dismissed. 4. Ms. Harsha Devani, learned A.P.P. contended that the fact that witnesses were injured in the incident is amply proved by their testimonies which is supported by medical evidence and therefore the presence of injured witnesses at the place of incident can hardly be doubted. According to the learned Counsel for the State, the incident in question was witnessed not only by injured complainant Hirabhai but also by injured Kanubhai as well as Hansaben, Gangaben etc. and therefore the learned Judge did not commit any error in convicting the appellant no. 1 under Sec. 302 as well Sec. 324 read with Sec. 34 of I.P.C. and appellants no. 2 to 4 under Sec. 324 I.P.C. The learned Counsel emphasized that the contradictions and omissions appearing in the evidence of complainant Hirabhai are not material so as to discredit his whole testimony and therefore that part of his evidence which is corroborated by the evidence of other independent witnesses on record should be accepted by the court. After reading the evidence of witness Kanubhai, learned Counsel claimed that prosecution case against appellant no. 1 that he inflicted blow on the deceased with gupti and that appellants no. 2 to 4 caused injuries to witnesses is amply proved and therefore the conviction of the appellants should be upheld. The learned Counsel referred to the inquest report in detail and pointed out that before holding inquest, the complaint was already reduced in writing and sent for registration to the Ellisbridge police station and therefore it was not correct to contend that the complaint was recorded after holding the inquest on dead body. According to the learned Public Prosecutor, the case against the convicted appellants is proved by reliable and trustworthy evidence of injured witnesses and therefore non-examination of so called independent witnesses does not affect the prosecution case at all. The learned Counsel referred to wardhi exh. 84 as well as other relevant documents on record and pleaded that the correction made in exh. 84 does not indicate in any manner that any case was cooked up against any of the appellants by the prosecution. What was maintained by the learned Counsel for the State was that the prosecution has satisfactorily proved that the appellant no. 1 had caused death of deceased Gordhanbhai by inflicting blow with gupti whereas rest of the appellants had injured others who are examined by the prosecution and as the appellants no. 2 to 4 had also shared common intention of appellant no. 1 to kill Gordhanbhai, the conviction appeal filed by the appellants should be dismissed and acquittal appeal filed by the State Government should be accepted. 5. We have taken into consideration the submissions advanced at the bar and re-appreciated the whole evidence on record. 6. Before considering the prosecution evidence and its effect, it would be instructive to notice salutary principles of law governing appreciation of evidence in a criminal case. In State of U.P. V/S Anil Singh AIR 1988 S.C. 1998, the Supreme Court has observed as under : "In the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The indifferent attitude of the public in the investigation of crimes could also be pointed. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on ground that all witnesses to occurrence have not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform." Again in State of H.P. V/S Lekh Raj and another (2000)1 S.C.C. 247, the Supreme Court has made following pertinent observation : "The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hypertechnicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind." 7. Having noticed the principles relating to appreciation of evidence as laid down by the Supreme court, we will now consider the evidence on record and its effect. The fact that deceased Gordhanbhai died a homicidal death is not in dispute. This fact is amply proved by the evidence of Dr.Ravindra S Bhinse, p.w.no. 13 exh. 78 who has produced the P.M. notes prepared by Dr.Zhala after performing autopsy on the dead body. According to Dr.Bhinse, the cause of death of deceased was shock and haemorrhage following injury on vital organs like liver. The p.m. notes indicate that there was a tear in liver 1cm x 0.5cm. Further, 1cm cut over right anterosuperior surface and blood clots were also found present over liver. It also indicates that an abrasion of 3cm x 2cm over left cheek bone which was dark brown in colour was also noticed and a transverse linear abrasion 9 cm in length over lower left abdomical wall, 6 cm left anterior superior iliac was found. Further, bruise of 3cm x 2cm over inner aspect of the right thigh was also noticed. The injuries sustained by the deceased are also mentioned in detail in the inquest report which stands proved through the evidence of P.S.I.Mr.Goswami, Complainant Hirabhai, eye witness Kanubhai and others have also stated that deceased was assaulted by means of gupti. On over all view of the matter, we are satisfied that the learned Addl.Sessions Judge was justified in concluding that deceased died a homicidal death. The said finding being just and borne out from evidence on record, is hereby upheld. 8. Coming to the incident in