1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 478 OF 2003 Shankar Jivan Patel, ] Age 50 years, residing at Dabhal Ghelwad, Falia, ] Somnath Road, Dhakati Daman, Union Territory ] ...Appellant (Ori. Accused No.1) Versus 1. Union Territory (Daman) ] 2. The State of Maharashtra ] ...Respondents WITH CRIMINAL APPEAL NO. 858 OF 2003 Administration of Daman & Diu, ] through Asstt. Inspector General of Police, ] Daman & Diu, Daman ] ...Appellant Versus 1. Shankar Jivan Patel ] 2. Kanti Biku Patel ] 3. Govind Babu Patel ] 4. Babu Jivan Patel ] 5. Kiku Jivan Patel ] 6. Chiman Bhana Patel ] 7. Amrat Bhana Patel ] 8. (deleted) ] All residing at Dabhal Ghelwadi, Faliya, ] Somnath Road, Dhakati, Daman ] 9. State of Maharashtra ] ...Respondents 2 WITH CRIMINAL APPEAL NO. 1320 OF 2003 Administration of Daman & Diu, ] through Asstt. Inspector General of Police, ] Daman & Diu, Daman ] ...Appellant Versus 1. Ramesh Bhagu Patel, ] residing at Dabhal, Ghelwadi, Faliya, ] Somnath Road, Dhakati, Daman ] 2. State of Maharashtra ] ...Respondents Mr. H.H. Ponda for the Appellant in Criminal Appeal No. 478 of 2003 Mr. Sandeep Karnik for the Respondents in Criminal Appeals No. 858 and 1320 of 2003 Mr. D.A. Nalawade for Union of India in Criminal Appeal No. 478 of 2003 and the Appellant in Criminal Appeal No. 858 and 1320 of 2003. CORAM: B ILAL NAZKI and F.M. REIS, JJ. DATE: MARCH 31, 2009 ORAL JUDGMENT (Per Bilal Nazki, J.):- Twenty persons were sent for trial for offences under Sections 302, 323, 324, 325, 451, 452, 504, 506 and 508 read with Sections 143, 3 145, 147, 148 and 149 of the Indian Penal Code. Accused No. 1 was convicted under Section 302, and sentenced to imprisonment for life. He was also convicted under Sections 323, 324, 452 and 506, and sentenced to rigorous imprisonment for 6 months. All other accused have been acquitted under Section 302. Accused Nos. 3, 4, 5, 6, 8, 9 and 14 were convicted for offences under Sections 323, 324, 452 and 506 and sentenced to 6 months' rigorous imprisonment on each count and to pay a fine of Rs.200/- each. Accused No. 5 died during the pendency of the appeal. 2. Accused No. 1 has filed Criminal Appeal No. 478 of 2003 against conviction. The Administration of Daman & Diu has filed two appeals. One appeal is filed against acquittal of accused No. 10 under Section 302, being Criminal Appeal No. 1320 of 2003, which is not on Board. By consent, it is taken on Board. Another appeal, No. 858 of 2003, has been filed by the Administration of Daman & Diu, seeking enhancement of the sentence of those who were convicted for offences other than under Section 302. All the appeals were heard together. 4 3. The brief facts which led to filing of the charge-sheet against the persons were that on 23rd May, 1990 at about 20.00 hours at Gelwad Falia, Dabhel, Nani Daman, all the accused persons formed into an unlawful assembly. They were armed with deadly weapons like Vidnoo, sticks, knives and stones, and with common intention to trespass into the verandah of the house of one Ramesh Ranchod Patel, and with common intention, assaulted the said Ramesh, his brother Chotu and his father and others using Vidnoo, sticks, knives and stones. This caused injuries to some of the witnesses, and resulted in death of Chauto. On this complaint, charge was framed under Sections 302, 323, 324, 427, 452, 504 and 508 read with Sections 143, 145, 147, 198 and 149. The accused pleaded not guilty and claimed to be tried. The prosecution examined 17 witnesses in all, and exhibited material objects and also documents. The defence did not lead any evidence. 4. Before scrutiny of the material evidence, it may be pertinent to mention that the learned senior counsel appearing for the appellant- accused No.1, who has been convicted under Section 302, submits that since the trial Court had not found any person other than accused No. 1 5 guilty of an offence, and as a matter of fact, they were all acquitted of the charge under Section 302 read with Section 145, therefore, the prosecution had to establish a case against accused No. 1 that he exclusively was responsible for causing injury to the deceased, which was responsible for his death. Learned senior counsel submits that the prosecution itself directed the whole of its prosecution towards establishment of an unlawful assembly and also of a common intention. Since, in both these efforts, the prosecution has failed, it is obvious that they failed also in establishing an exclusive charge under Section 302 against accused No. 1, because it was not the effort of the prosecution at all during investigation to see that accused No. 1 was responsible for an offence under Section 302. 5. The learned Additional Public Prosecutor, on the other hand, submits that some of the accused persons have been found guilty even under Sections 149, 323, 324, 452 and 504. The Court was not correct in holding that there was not an unlawful assembly, and if the unlawful assembly was there for a common intention of causing injuries, the Court could not say that there was no common object to commit murder. This contention of the learned Additional Public Prosecutor is misplaced, 6 in view of the fact that no appeal has been filed by the State against the acquittal of the accused persons other than accused No. 1 under Section 302 of the Indian Penal Code. 6. Now, in the light of these contentions, it will be necessary to discuss the evidence. We will analyze the testimony of only some of the witnesses, as other witnesses are merely formal witnesses. 7. P.Ws. 1, 2, 3 and 4 were projected as eye-witnesses. P.W. 11 is the doctor, who conducted the post-mortem. P.W. 14 is another doctor, who examined the injured witnesses. P.W. 7 is the witness to the recovery of Vidnoo. 8. P.W. 1, Ramesh Ranchod Patel, is the brother of the deceased. He stated that in year 1990, he was residing with his parents, brother Chotu (deceased), his wife Sushila and two sisters, Neeru and Lakshmi. His house was situate at Gelwada Falia. His brother was a teacher in the Government School at Moti Daman. The wife of the witness was also a teacher, working at Wadoli in Gujarat. In panchayat elections, his relations with Shankar Jivan, Chiman and Amrat, all accused, got 7 strained. He identified the accused, who were present in the Court on that day, and submitted that they were their neighbours. 9. On 23rd May, 1990 at about 8 p.m., the witness was coming towards his house on a bicycle. At that time, he saw accused No. 8 Chiman and accused No. 14 Amrat. They were standing on the road, and each of them had a stick in his hand. They started abusing him and then assaulted him. He was assaulted when he was at a distance of 30 feet from his house. When he was being assaulted, his mother Ladu (who was not examined as a witness) and sister Neeru came there to take him home. At that time, accused No. 1 Shankar came there on a motor-cycle. Accused Babu Jivan Patel, Kiku Jivan and Govindbabu also came there. His brother was sitting on the verandah of the house. Babu, Kiku and Govind caught him and dragged him in front of the house. Shankar Jivan then went to his house. He brought a Vidnoo from his house and started assaulting his brother. He gave blows of Vidnoo to his brother on his chest, below the neck on the right side, back side of head and on right shoulder at right side of the chest. His brother sustained bleeding injuries. He became unconscious. Kiku had a stick in his hand. Kiku gave blows of stick to his brother and to him also. Other accused 8 beat them. He, his sister and mother intervened when his brother was being assaulted. At that time, the witness sustained injury on his hand by Vidnoo at the hands of Shankar. Kiku had given stick blows on his head and back. His mother also sustained injury on her elbow. His father came there. All of them then assaulted his father. His father also became unconscious. There were injuries on his face and leg. There was a fracture on his leg. When his father was being assaulted, they were carrying his brother to the house. After going inside the house, they bolted the door from inside. His two sisters then went to inform one Dayabhai (P.W. 6), so that he could inform the police. The accused started pelting stones on tube light and scooter of his brother. The stones were also pelted on their house due to which the roof tiles were broken. This witness, in his examination-in-chief, has not only stated that accused No. 1 also got injured in the occurrence, but in cross-examination, he stated:- “I might be in the hospital for about half an hour when we had taken Chotu to the hospital. I do not know whether Shankar had received 3 blows of vidnoo and his injuries were bleeding. It is not true to say that his cloths were drenched by blood. It is true that Shankar was taken to the hospital on a motor cycle before Chotu was taken to hospital. It is true that Ramesh Bhagu had taken him to the hospital.” 9 He, however, denied that Shankar was the first to have received three blows of Vidnoo. He also stated: “It is rue that Shankar was in hospital and was being treated when we reached there for the first time.” Then, again, he stated: “There was no fixed time of returning of accused No. 1. He had also come by chance at that time on motorcycle. Shankar went to his house and then secretly came out and assaulted suddenly.” 10. P.W. 2, Sushilaben Chotubhai Patel, is another projected eye-witness, who almost said the same thing with respect to the occurrence as was said by P.W. 1 that there was a fight. She is the wife of the deceased. Shankar was not at the place of occurrence. He came on motor-cycle, then went inside his house, came back with a weapon and attacked. She stated as follows:- “Shankar Jivan started assaulting my husband by Vidnoo. He gave frequent blows to my husband on his head, neck, chest, etc. The blows were also given on his hand and back. Kiku Jivan gave blows of stick to my husband. Thereafter Gulab 10 Bhagu, Raju Bhagu, Raman Mithal, Ramesh Bhagu, Mangi Gulab, Jheli Gulab, Dailee Jeevan, Gulab Ranchod also came there, they caught hold of us so as to prevent us from intervening.” This witness also did not say that the accused also got injured. 11. It is further contended by the learned senior counsel appearing for the appellant that though P.W. 1 attributed injuries inflicted by accused No. 1, which were received by the deceased on his chest, below the neck on the right side, back side of the head, right shoulder and at the right side of the chest, this witness attributed injuries to the head, neck and hand as well. Therefore, even these two witnesses were not unanimous as to which parts of the body of the deceased got injured by attack by accused No.1; and also he submits that admittedly, the accused got injured, which was mentioned by accused No. 1, and accused No.1 was admitted in hospital, but this witness did not even mention any injuries having been received by accused No. 1. 12. P.W. 3, Neeru Narottam Patel, is another sister of the deceased. She knew all the accused. On 23rd May, 1990 at about 5 p.m., she had gone to her agricultural land to collect firewood. When she 11 returned home at 5.15 p.m., she saw Kiku Jivan and Chiman Bhana in the field of Kanku Manilal drinking toddy. She heard them talking that on that day, they would finish one person from the family of the witness. Obviously, evidence to this effect is unimportant, as accused No. 1 has been convicted only of charge under Section 302. With respect to the occurrence in which the deceased died, she repeated what P.Ws. 1 and 2 had stated. She introduced an attack by accused No.10 also. She stated that Shankar Jivan gave blows of Vidnoo, and Kiku gave blows of stick. Ramesh Bhaggu gave blows of knife. 13. P.W. 4, Laxmiben Ranchod Patel, is another sister of the deceased. She stated that she was at the place of occurrence when Shankar came, went into his house, came back with a weapon, Vidnoo, and then assaulted the deceased. She stated as follows:- “All of them dragged Chottu outside the house. Shankar Jivan then started giving blows of vidnoo to Chottu. Raman Mithal, Dhiru Lalloo, Gandia Kesav, Dailee Jivan, Mangi Gulab, Jheli Gulab, Dheli Ranchod were also with Shankar and others. Ramesh gave a blow of knife to my brother Chottu. Kiku gave a stick blow to Chottu. Chiman Bhana gave me a stick blow.” 14. P.W. 11, Dr. Charudatta A. Jog, is the surgeon who conducted 12 the post mortem, and found following external injuries:- “1. C.L.W. tailing upwards towards the shoulder 12 cms. in size right upper arm anterior aspect caused by sharp weapon and the wound was ante mortem. 2. Stab wound 1 x 1 x 14 cms. right mid supraclavicular region penetrating the right lung and vessels in right side of neck, caused by sharp object and wound was ante mortem. 3. Stab wound 1 x 1 cm. in depth on right scapula directed towards apex of right lung caused by sharp object and it was ante mortem. 4. Stab wound 2 x 1 cm. X 10 cms. depth, 10 cms. medial to wound No. 3 on right scapula and it was sharp and ante mortem. 5. Stab wound 2 x 1 cm. X 5 cms. It was 2 cms. away from midline at level of C/7 on right side sharp ante mortem. On internal examination I found massive haemothorax on the right side.” He stated that injury No. 2 may have caused the death in ordinary course. This means that it may not have caused the death in ordinary course. He also stated in his statement that injuries No. 1 to 5 may not have individually caused the death. Injury No.1 is a simple injury. Injury No.4 is also a simple injury. Injury No. 5 is also a simple injury. Injury No.3 is also simple in nature. 13 15. In the light of the testimony of the alleged eye-witnesses and the doctor, it is submitted by the learned senior counsel for the appellant-accused No.1 that at best, it could be stated that injury No. 2 was fatal which, according to the doctor, could cause death in ordinary course, and there is no evidence that this injury was caused by accused No. 1. One of the eye-witnesses has introduced another accused having a knife and having attacked the deceased. It is also submitted that some of the injuries which allegedly were caused by accused No.1 to the deceased were not even found by the doctor. Therefore, it is submitted that believing the evidence of P.Ws. 1 to 4, who are otherwise closely related to the deceased, upholding the conviction would not be just. 16. Before coming to the conclusion with respect to the culpability of accused No.1, it may also be necessary to consider that the prosecution has also tried to establish that the weapon, which was used for inflicting injuries on the deceased, as used by the assailant, was recovered at his disclosure. P.W. 7, Chiman Bhudia Patel, was the witness who stated that on 1st May, 1990, he was called to the police station, where accused No. 1 made a disclosure and led them to the 14 house of Babu, where Vidnoo was recovered by him. This weapon was sent for chemical analysis, and chemical analyst found blood-stains on the same. But the learned senior counsel for the appellant-accused No.1 has drawn our attention to the statement of P.W. 7, in which he stated that this weapon was not sealed in his presence. Although the forensic expert stated that when he received the weapon, it was sealed, but still, it cannot be explained as to at what point of time, it was sealed. Was it sealed at the time of seizure or subsequently? Obviously, P.W. 7 stated that it was not sealed in his presence. Then, it was sealed some time thereafter. Therefore, it cannot be said that it reached the forensic expert in the same status in which it was seized. 17. The learned senior counsel for the appellant-accused No.1 has cited the following authorities:- (1) Abdul Salam v. State (A.I.R. 1954 J. AND K. 1), (2) The State v. Motia & Ors. (A.I.R. 1955 RAJASTHAN 82) (3) Baul & Anr. v. The State of U.P. (1968 Cri. L.J. 872) (4) Piara Singh v. State of Punjab [1970 Supreme Court Cases (Cr.) 404] 15 (5) Deoraj Deju Suvarna & etc. v. State of Maharashtra (1994 CRI. L.J. 3602) (6) Gurdial Singh v. State of Punjab (1995 Supreme Court Cases (Cri) 947], and (7) Ashraf Hussain Shah v. State of Maharashtra (1996 CRI. L.J. 3147). 18. The learned senior counsel for the appellant-accused No. 1 raised doubts about the seizure itself, in view of P.W. 1 categorically stating that accused No.1 had gone from the place of occurrence to the hospital directly immediately after the occurrence, and accused No. 1 had reached the hospital even before the deceased could reach there. While he was in hospital, undergoing treatment, he was arrested, and as such, there is nothing on record to show that accused No.1 went to his house before going to the hospital to hide the weapon he allegedly had. 19. On 23rd May, 1990, P.W. 14, Dr. Sunil Amonkar, had examined Shankar, and he found four injuries on his body. Therefore, it is established that during the course of occurrence, the witnesses got injured, but none of the witnesses even referred to these injuries. Therefore, it appears that the correct sequence of events and correct facts 16 relating to the occurrence were not brought to the notice of the Court by the prosecution. 20. For all these reasons, we find that the benefit of doubt should go to accused No. 1. Therefore, we allow Criminal Appeal No. 478 of 2003, set aside the order of conviction and sentence, and direct that accused No. 1, Shankar Jivan Patel, be set at liberty forthwith, if not needed in any other case. Fine, if any, be refunded. 21. Coming to the appeal filed against acquittal of accused No. 10, Ramesh Bhagu Patel, viz., Criminal Appeal No. 1320 of 2003, we have seen that two witnesses have stated that he was holding a knife and inflicted injuries. For the reasons given for acquittal of accused No.1 and for the reasons given by the learned Additional Sessions Judge for acquitting him, we do not find that this Court should interfere and reverse the order of acquittal to order of sentence, and dismiss Criminal Appeal No. 1320 of 2003. 22. Coming to the third appeal filed for enhancement of sentence of the accused other than accused No.1, viz., Criminal Appeal No. 858 of 17 2003, we have seen that all the injuries are minor injuries, as some of the injuries were having tenderness and others abrasions and bruises, and, therefore, the punishment of imprisonment of 6 months was not too lenient. We do not find any necessity to enhance the punishment. Criminal Appeal No. 858 of 2003 is dismissed. BILAL NAZKI, J. F.M. REIS, J.