CR.A/1163/1986 1/36 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1163 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================================= 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 ? ========================================================= CHHANALAL MOHANLAL BAROT – Appellant Versus STATE OF GUJARAT - Respondent ========================================================= Appearance : Ms. Sadhna Sagar, appointed by Legal Aid Committee for Appellant MR RC KODEKAR APP for Respondent ========================================================= CR.A/1163/1986 2/36 JUDGMENT CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 09-21/04/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Challenge in this appeal filed under Section 374 of the Code of Criminal Procedure ('the Code' for short) is to the correctness of the judgment and order dated 21.8.1986 rendered in Sessions Case No. 9 of 1986 by the learned Additional Sessions Judge, Sabarkantha at Himatnagar, by which the appellant ('the accused' for short) has been convicted for commission of the offence punishable under Section 302 of the Indian Penal Code ('IPC' for short) and sentenced to suffer imprisonment for life. 2. The prosecution case as disclosed from the telephone Vardhi received by P.W.11, Ayubmiya Mahmadmiya Malek, PSO, In charge of Ambaliyara CR.A/1163/1986 3/36 JUDGMENT Police Station, Taluka Modasa, from P.W.1, Kalabhai Mathurbhai Patel (informant) and unfolded during trial is as under: 2.1. The accused had asked the Talati, Shankerbhai Sonara, for a certificate about agriculture labourer on 16.10.1985 at 5 P.M. Shankerbhai Sonara refused to give the certificate. So, while the Talati, Shankerbhai Sonara, was returning home after Darshan at Mandavaliya, Jitpur village on 16.10.1985 between 8:30 P.M. and 9:00 P.M., the accused, keeping grudge against the Talati, inflicted blows on his head with a bamboo stick having bill-hook fixed on one end, when the Talati was near the gate of Gujarati School and as a result of the injuries, Shankerbhai died on the spot and thus the accused has committed the offence punishable under Section 302 IPC. 2.2. As per the case of the prosecution, on 16.10.1985 at about 9 O'clock at night, P.W.18, Ramjibhai Motiji came to the house of P.W.1, CR.A/1163/1986 4/36 JUDGMENT Kalabhai Mathurbhai and told him that when Talati Shankerbhai was going home after having Darshan at Mandavaliya, somebody had given blow on his head and he was lying there near the gate of Gujarati School and it appeared to him that he has dead. Kalabhai Mathurbhai, Balabhai Motibhai and Hargovindbhai Chunilal went towards Gujarati School and saw that Talati Shankerbhai Sonara was lying down near the gate of the school and he was bleeding from his head and he has died. So all the three persons went to the house of Dahyabhai Somabhai Patel and Kalabhai Mathurbhai complained about the incident on telephone to Ambaliyara Police Station. Thereafter P.W.1, Kalabhai Mathurbhai came to the place of the incident and inquired with the persons residing nearby. Kala Rumal Thakor and Amrutben, etc., informed him that the accused has killed the Talati and thereafter he ran away by jumping the compound fence of Manga. 2.3. On the basis of the aforesaid telephone Vardhi received by P.W.11, Ayubmiya, he recorded CR.A/1163/1986 5/36 JUDGMENT the complaint in the Vardhi Register. Original extract of the Vardhi is at Ex.40. On the basis of the aforesaid Vardhi, offence was registered against the accused. Thereafter Ayubmiya informed about the said Vardhi to his higher officer P.W.19, L.S. Rathod. Therefore L.S. Rathod also came to the police station and the investigation was put into motion. P.W.19 L.S. Rathod went to the place of offence and saw the Talati, Shankerbhai, dead. Therefore he held inquest on the dead-body of Shankerbhai and sent the dead- body for post-mortem examination to Ambaliyara Health Centre. He also drew a panchnama of the scene of offence, collected the earth stained blood and control earth, articles such as foot-wear, etc., lying at the scene of the offence were also collected by drawing panchnama in the presence of panchas and recorded the statements of the witnesses. He sent the articles collected from the place of offence to FSL for analysis. In the statements of the witnesses as name of the accused was revealed as the assailant, he was arrested on 18.10.1985 and CR.A/1163/1986 6/36 JUDGMENT thereafter drew the panchnama of his person. During the course of investigation the accused expressed his willingness to show the place where he had thrown the weapon (stick) used for commission of murder of Shankerbhai. L.S. Rathod drew a preliminary panchnama in the presence of the panchas and thereafter at the instance of the accused, two pieces of the stick, which was broken by the accused, were recovered at his instance. 2.4. On receipt of the post-mortem report, report from FSL and as sufficient incriminating evidence were collected against the accused, he filed charge-sheet against the accused for commission of the offence punishable under Section 302 IPC in the Court of learned JMFC, Modasa. 2.5. As the offence under Section 302 IPC is exclusively triable by a Court of Sessions, the learned JMFC, Modasa committed the case to the court of Sessions, Sabarkantha at Himatnagar CR.A/1163/1986 7/36 JUDGMENT where it was numbered as Sessions Case No.9 of 1986. 2.6. The learned Additional Sessions Judge, Sabarkantha at Himatnagar ('the trial court' for short) to whom the case was made over for trial, framed charge against the accused for commission of offence punishable under Section 302 IPC. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, he was put to trial by the learned Additional Sessions Judge, Sabarkantha at Himatnagar in Sessions Case No.9 of 1986. 2.7. In order to bring home the charge levelled against the accused, the prosecution has examined as may as 19 witnesses and relied upon their oral testimonies, the details of which are mentioned in para 8 of the impugned judgment and order which are as under: CR.A/1163/1986 8/36 JUDGMENT P.W. No Name of the witness Status of the witness Exh. No. Page No 1 Kalabhai Mathurbhai Patel Informant 17 35 2 Ramabhai Mashabhai Rabari Panch 22 45 3 Joitabhai Becharbhai Patel Panch 24 50 4 Kalaji Rumalji Thakor Eye witness 26 55 5 Dr. Jinabhai Amthabhai Yadav The doctor who performed post mortem 28 58 6 Devisinh Kishorsinh Kumpavat Circle Officer who prepared map 30 71 7 Pratapsinh Ghhaganji Thakor Panch 33 76 8 Bhulabhai Chhaganbhai Panch 35 79 9 Ramilaben Shankarlal Sonara Widow of deceased 37 86 10 Amrutben Manaji Eye witness 38 89 11 Ayubmiya Mahmadmiya Malek PSO 39 91 12 Chunilal Somabhai Patel Witness 42 93 13 Dahyabhai Somabhai Patel Eye witness 43 95 14 Amrutlal Kalidas Suthar Eye witness 44 99 15 Mangalbhai Revabhai Panchal Witness 45 103 16 Balabhai Chhaganbhai Patel Witness 46 106 17 Dalpatsinh Udesinh Chauhan Witness 47 108 CR.A/1163/1986 9/36 JUDGMENT P.W. No Name of the witness Status of the witness Exh. No. Page No 18 Ramaji Motiji Witness 51 110 19 Laxmansinh Shabhaisinh Rathod Investigat- ing Officer 56 117 2.8. To prove the culpability of the accused, the prosecution has also produced a number of documents and relied upon the contents of the same, the details of which are mentioned in para 9 of the impugned judgment and order. They shall be referred to hereinafter in this judgment as and when required. 2.9. After recording of the evidence of the witnesses was over, the trial court explained to the accused the circumstances appearing against him and recorded his further statement under Section 313 of the Code. In his further statement, he denied the case of the prosecution in its entirety and stated that false case has been filed against him. In his further statement he has produced documentary evidence with a list. He has further stated that the applications produced with the list were made by him against CR.A/1163/1986 10/36 JUDGMENT the panchayat. He was Chairman of a committee for social justice and he had to do social work. Deceased Talati was co-operating with him and hence the panchayat leaders, namely, Kalabhai Mathurbhai Patel, Balabhai Motibhai, Hargovindbhai Patel and a Congress leader Shamalbhai Kevalbhai Patel, were against him. He and Sonara both were doing public work like the work for solving the difficulties of Harijans, work of road and well. Therefore, the village people and panchayat leaders were against him and Sonara. He was making applications in this respect to higher officers but these panchayat leaders were not paying attention to him. He was making the applications in this respect to the DSP, Collector, Social Welfare Officer, Gandhinagar which were produced in evidence. His brother Ramanbhai Bababhai Patel had made a complaint against Dahyabhai Somabhai under Minority Act. Mangalbhai Somabhai is the brother of Dahyabhai Somabhai. His brother Ramanbhai filed a case under Untouchability Act against Balaji Murtiji Patel and Mangalbhai Somabhai CR.A/1163/1986 11/36 JUDGMENT Patel. His brother Ramanbhai is also known by the name Manilal. Kalabhai Rumal was working as an agriculture labourer at the place of Kalabhai Mathurbhai since thirty years. Therefore Kalabhai Rumalbhai had to remain under the Sarpanch. Patels, being in collusion with police, filed a false case against him. The cattle of Amrutben Manaji were being given food from the mid-day meals of primary school. When he went for inquiry he refused to do so. Amrutbhai and Mangalbai Revabhai were doing the panchayat work and so they believed whatever the Sarpanch told. Joitabhai Becharbhai was the Secretary of the society. As he committed misappropriation, a licence in his name was cancelled. Ramabhai Masabhai Rabari was testing the milk in the society. He was marking less fat in the milk supplied by Harijans. Hargovindbhai Chunibhai Patel got stopped taking the milk from Harijans in the society and so he made applications and started taking the milk under the observation of Police. The panchas of Dhansura were in relation with Patels of Jitpur and were the persons of CR.A/1163/1986 12/36 JUDGMENT Nanavati. Therefore they spoke against him. Dalpatsinh is the brother of Panchayat Member Shivsinh Kohyaji and a relative of MLA Ramsinh and so he spoke against him. Balabhai Chanbhai Patel, a person of MLA Ramsinh, was driving the bus from Amodra to Ahmedabad. As he has good relation with Ramsinh, he spoke against him. He has lodged a complaint of loot against the MLA Ramsinh and the said complaint was pending at that time. So Ramsinh took interest wrongly in this incident and created an evidence against him. The Patels of the village have demolished his fair price shop and so his son filed a case against each leader. He was wrongly involved in this case. Kalabhai Mathurbhai was elected as a Sarpanch and there was excessive dirt in his period and so he told to proceed on Satyagraha. He was proceeding on fast for the work of Harijans. Therefore the panchayat leaders were against him. Though the accused made allegations against many persons, he has neither produced any evidence nor did he examine any witness in support of his defence. CR.A/1163/1986 13/36 JUDGMENT 2.10. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court came to the conclusion that the prosecution has successfully established that the Talati, Shankerbhai Sonara, died a homicidal death; the accused is the author of injuries on the deceased Shankerbhai and because of the serious injuries sustained by Shankerbhai, he succumbed to the same and thus the complicity of the accused for committing murder of Talati, Shankerbhai Sonara, has been established by the prosecution. The trial court has also held that the offence established against the accused is punishable under section 302 IPC and consequentially the trial court convicted the accused for commission of the offence under Section 302 IPC and sentenced to suffer imprisonment for life, which has given rise to instant appeal at the instance of the accused. 3. Ms. Sadhna Sagar, learned advocate appointed by the Legal Aid Committee for the accused, has CR.A/1163/1986 14/36 JUDGMENT vehemently assailed the impugned judgment and order contending that in fact there is no eye witness who saw the accused inflicting blows on the deceased. However, the prosecution had tried to project P.W.4, Kalaji Rumalji Thakor, Ex.26, P.W.10, Amrutben Manaji, Ex.38 and P.W.13, Dahyabhai Somabhai Patel, Ex.43, as eye witnesses to the incident. According to her, on a close scrutiny of the evidence of the above referred to three witnesses, it cannot be said that they have witnessed the incident as it is clear that they reached at the place of offence after the death of Talati, Shankerbhai Sonara. Therefore, according to her, in the entire length and breadth of the prosecution case, complicity of the accused of committing murder of Shankerbhai Sonara has not been proved. However, the trial Court misread the evidence of the three witnesses and treated them as eye witnesses and recorded the conviction and sentence against the accused for the offence under section 302 IPC. She therefore submitted that the impugned judgment and order deserves to be quashed and set CR.A/1163/1986 15/36 JUDGMENT aside by allowing the appeal and thereby acquitting the accused of the offence with which he was charged. 3.1. Alternatively, it is submitted by Ms. Sadhna Sagar that if the prosecution case is to be accepted, having regard to the fact that this was a case of only a single blow and that too with a stick which proved to be fatal, the offence committed by the accused would be one of culpable homicide not amounting to murder. Therefore, if at all the conviction is to be upheld, the same should be converted to one under Section 304 Part II IPC. The accused has by now undergone imprisonment for a period of about seven years. Therefore, the custodial sentence may be treated as substantive sentence and he may be ordered to be released forthwith if his presence in connection with any other case is not required. She therefore urged to pass appropriate orders. 4. In response to the submissions made by Ms. CR.A/1163/1986 16/36 JUDGMENT Sadhna Sagar, learned advocate of the accused, Mr. RC Kodekar, learned APP, has supported the impugned judgment and order throughout. According to him, the prosecution has successfully established the charge levelled against the accused. According to him, P.W.4, Kalaji Rumalji Thakor, Ex.26, P.W.10, Amrutben Manaji, Ex. 38 and P.W.13, Dahyabhai Somabhai Patel, Ex.43, are star witnesses and they witnessed the entire episode as they were very much present at the time of infliction of three blows with a bamboo stick having bill hook fixed on one end, on the head of Shankerbhai, which is a vital part of the body. Their evidence is of sterling quality and no doubt is raised on the prosecution case. It is also highlighted by him that it is settled principle of law by catena of decisions of the Supreme Court that evidence even of a solitary eye witness is sufficient to prove the complicity of the accused if his/her evidence is of sterling quality and unimpeachable. He has also highlighted that the accused himself has expressed his willingness to show the place where CR.A/1163/1986 17/36 JUDGMENT he has thrown the bamboo stick, breaking it into two pieces, after the crime was committed and, therefore, discovery panchnama was drawn and two pieces of stick were discovered at his instance, which is a strong circumstance that goes against the accused and it establishes that he has committed the offence and after that he has broken the stick into two pieces and threw them away. It is also high-lighted by him that the fact that the accused himself has broken the stick into two pieces after commission of the crime is fortified by the evidence of P.W.17, Dalpatsinh Udesinh Chauhan, Ex.47, who saw the accused after the incident with the stick in his hand and in his presence the accused has broken the stick. Therefore, according to Mr. Kodekar, the impugned judgment and order of conviction and sentence recorded against the accused does not call for interference in this appeal. 4.1. Replying to the contention that the offence in question is one under Section 304 Part II IPC, he has submitted that in this regard the CR.A/1163/1986 18/36 JUDGMENT choice of weapon, the part of the body on which the blows are inflicted, number of blows inflicted and the intensity of the blows are all relevant considerations. He has submitted that the accused was armed with a bamboo stick with bill-hook at one end and with a view to take revenge against the Talati as the Talati refused to issue certificate as desired by the accused and also he had a quarrel with the Talati on the previous day, his intention was to commit murder of Talati and that is the reason why he inflicted three blows on the head of the Talati, which is a vital part, and the injuries inflicted on the head of the deceased resulted in three fractures on the skull of the Talati and the injuries resulted in his death on the spot. Therefore, the offence committed by the accused does not fall under Section 304 Part II of IPC. 4.2. In conclusion, he has submitted that the appeal being totally devoid of any merit, deserves to be dismissed and the order of conviction and sentence requires to be confirmed. CR.A/1163/1986 19/36 JUDGMENT He therefore urged to dismiss the appeal. 4.3. Mr. Kodekar has also drawn the attention of this Court that though the accused has undergone sentence of about seven years, at present he is absconding since 7.8.2004 as he did not return to jail after enjoying parole leave for 14 days from 24.7.2004 to 6.8.2004. He has also drawn the attention of this Court that while the accused was released on temporary bail, he absconded with effect from 20.3.1991 for 3902 days. Thereafter he was arrested on 23.11.2001 and sent to jail. Again he was released on furlough leave for 14 days with effect from 24.7.2004 to 6.8.2004, but he did not surrender to the jail authorities thereafter and from 7.8.2004 he is absconding. 5. This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features CR.A/1163/1986 20/36 JUDGMENT of the case and the entire evidence on record, which is read and re-read by the learned advocates of the parties with reference to broad and reasonable probabilities of the case. This Court has examined the entire evidence on record for itself independently of the learned Judge of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial court has rightly recorded the order of conviction and sentence. 6. So far as the death of the deceased being a homicidal one, the same has not been disputed by the learned advocate for the accused, hence, we need not discuss the same in detail. Suffice it to say that the prosecution has succeeded in establishing that the death of Shankerbhai Sonara was a homicidal one through the evidence of PW 5, Dr. Jinabhai Amthabhai Yadav, Ex.28, who has performed post-mortem examination on the dead- body of Shankerbhai Sonara and prepared the post- mortem note Ex.29 and also from the CR.A/1163/1986 21/36 JUDGMENT inquest panchnama Ex.25 drawn by the Investigating Officer. A conjoint reading of the evidence of P.W.5, Dr. Jinabhai Amthabhai Yadav, Ex.28, Post-mortem report at Ex.29 and the inquest panchnama Ex.25, it is seen that the deceased had received two external injuries and three internal injuries. 6.1. The deceased had the following two external injuries on his head: (i) a CLW 8.0 x 2.0 x 2.0 cms over the right side of frontal of scalp 5 cm above the right eye, (ii) a CLW 3 cm x 2 cm x 1 cm over the right side of parietal side 6 cm above the upper part of the ear. 6.2. The deceased had the following three internal injuries: (i) a compound fracture over the right side of frontal part of scalp above the right eye, (ii) a compound fracture over the right side of parietal bone 6 cm over the upper part of ear, and CR.A/1163/1986 22/36 JUDGMENT (iii) a compound fracture over the left side of lower jaw 6 cm away from right ear. Thus there were three fractures on the head of the deceased. As per the post mortem report, the deceased died because of shock and haemorrhage due to fatal head injuries. 6.3. In view of the aforesaid evidence, it has to be held that the deceased Talati, Shankerbhai Sonara, died a homicidal death and the trial court has rightly come to the conclusion that the deceased died a homicidal death and, therefore, we confirm the said finding and hold that the deceased died a homicidal death. 7. Now the next question which is required to be answered by us is whether the accused is the author of the injuries caused to the deceased. 8. In this connection, the prosecution has mainly relied upon the oral testimony of three eye witnesses i.e., P.W.4, Kalaji Rumalji Thakor, CR.A/1163/1986 23/36 JUDGMENT Ex.26, P.W.10, Amrutben Manaji, Ex.38 and P.W.13, Dahyabhai Somabhai Patel, Ex.43. 8.1. Adverting to the oral testimony of P.W.4, Kalaji Rumalji Thakor, Ex.26, he has inter alia testified that on the day of the incident he was sleeping near the door of his house. At that time as he heard the sound of inflicting three blows, he woke up from the cot and went towards Gujarati School. He saw the accused beating one person. Therefore he asked the accused what was he doing. In the meanwhile, as the neighbours assembled there, the accused flee from the place of offence by jumping the compound fence of Manga. At that time, Amrutben, wife of his brother, Mangabhai Panchal, Jesabhai and Amrutbhai Panchal came there. He did not know who was lying there. Thereafter Sarpanch and Deputy Sarpanch came there and they inquired as to what had happened. He informed that the accused committed murder of the Talati. 8.2. The prosecution has thereafter examined CR.A/1163/1986 24/36 JUDGMENT and relied upon the evidence of P.W.10, Amrutben Manaji, Ex.38. In her deposition she has testified that on the day of the incident she had gone for Darshan at Mandavaliya. She came to her house at 8 O' clock in the night. Her brother- in-law informed her that he heard the sound of giving blows and thereafter she saw the accused beating the Talati and after that he ran away from the scene of offence after jumping the compound wall of Manga. 8.3. The prosecution has thereafter examined and relied upon the evidence of P.W.13, Dahyabhai Somabhai Patel, Ex.43. In his deposition he has testified that on the day of the incident between 8:00 to 9:00 O' clock at night from the road of Mandavalia he went to call his driver Kalabhai Shivabhai. At that time he saw the accused, armed with stick, hurriedly going towards Mahudiwala Falia. Therefore, he chased him. He found the Talati near the Gujarati School. As the Talati turned, the accused inflicted a stick blow on his head. At that time the torch from the hand of the CR.A/1163/1986 25/36 JUDGMENT Talati fell down. Thereafter the accused inflicted other two blows on the head of the deceased. This witness is consistent in his evidence that the accused inflicted three blows on the head of the deceased. 8.4. It may be noted that the above mentioned three witnesses were cross-examined at