CR.A/781/2006 1/36 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 781 of 2006 With CRIMINAL APPEAL No. 1610 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? ========================================================= RANABHAI RAJSHIBHAI & 4 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR JB PARDIWALA for Appellant(s) : 1 - 5. MR MA PATEL, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 15/12/2008 ORAL COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) CR.A/781/2006 2/36 JUDGMENT 1. Both these appeals arise out of a judgment and order rendered by the Ld. Addl. Sessions Judge, Rajkot [for short 'the Ld. Trial Judge'] on 5/4/2006 in Sessions Case No. 19 of 1991. Criminal Appeal No. 718 of 2006 has been preferred by the 5 appellants who were original 5 accused persons in the aforesaid Sessions Case. By impugned judgment and order dated 5/4/2006 rendered by the Ld. Trial Judge in the aforesaid Sessions Case, the Ld. Trial Judge recorded conviction of appellant accused no. 1 and appellant accused no. 2 for the offences punishable under section 304 Part-II read with section 34, section 325 and section 323 of the Indian Penal Code [for short 'IPC'], the appellant accused no. 3 came to be convicted for the offences punishable under section 304 Part- II read with section 34 and section 323 of the IPC and the appellant accused no. 4 and appellant accused no. 5 came to be convicted for the offences punishable under section 304 Part-II read with section 34 and section 325 of the IPC. 1.1. The appellant accused no. 1 was awarded sentence to undergo rigorous imprisonment [RI] for 3 years and fine of Rs.250/-, in default of payment of fine, RI for 2 months for the offence punishable under section 304 Part-II read with section 34 of the IPC and RI for 2 CR.A/781/2006 3/36 JUDGMENT years and fine of Rs.500/- and in default of payment of fine, RI for 3 months for the offence punishable under section 325 of the IPC and RI for 3 months for the offence punishable under section 323 of the IPC. The appellant accused no. 2 was awarded sentence to undergo RI for 5 years and fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for 6 months for the offence punishable under section 304 Part-II of the IPC and RI for 1 years and fine of Rs.250/- and in default of payment of fine, RI for 2 months for the offence punishable under section 325 of the IPC and RI for 3 months for the offence punishable under section 323 read with section 34 of the IPC. The appellant accused no. 3 was awarded sentence to undergo RI for 3 years and fine of Rs.250/-, in default of payment of fine, RI for 2 months for the offence punishable under section 304 Part-II read with section 34 of the IPC and RI for 3 months for the offence punishable under section 323 of the IPC. The appellant accused no. 4 was awarded sentence to undergo RI for 3 years and fine of Rs.250/-, in default of payment of fine, RI for 2 months for the offence punishable under section 304 Part-II read with section 34 of the IPC and RI for 2 years and fine of Rs.500/- and in default of payment of fine, RI for 3 months for the offence punishable under section 325 of the IPC. The appellant accused no. 5 was awarded sentence to undergo RI for 3 years and fine of Rs.250/-, in default of payment of fine, RI for 2 CR.A/781/2006 4/36 JUDGMENT months for the offence punishable under section 304 Part-II read with section 34 of the IPC and RI for 2 years and fine of Rs.500/- and in default of payment of fine, RI for 3 months for the offence punishable under section 325 of the IPC. All the sentences were directed to run concurrently. All the appellants accused came to be acquitted from the charge of the offences punishable under section 302 of the IPC and under section 135 of the Bombay Police Act. 2. Criminal Appeal No. 1610 of 2006 is preferred by the State of Gujarat under section 377 of the Criminal Procedure Code [Cr. P.C] for enhancement of sentence alleging that the sentence awarded by the Ld. Trial Judge for the offences punishable under sections 304 Part-II, 325 and 323 of the IPC is highly inadequate and disproportionate to the offences committed by the accused persons. 3. As both these Criminal Appeals arise out of a common judgment and order rendered by the Ld. Trial Judge in Sessions Case No. 19 of 1991, both these appeals were heard together and are hereby disposed of by the common judgment. 4. The prosecution case, in nut-shell, is as under :- CR.A/781/2006 5/36 JUDGMENT 4.1. The incident occurred on 23/10/1990 at about 5.00 a.m., in the early morning at Vaniya Vadi Street No. 6, opposite to Gatrada Nivas, in the city of Rajkot, wherein the first informant Bharatbhai Mansukhbhai and his father deceased Mnsukhbhai resided. It is the case of the prosecution that prosecution witness Navnitbhai Mansukhlal was going to attend his Pan shop from his house named Gatrada Nivas. That at that time appellant accused no. 1 – Ranabhai Rajshibhai was armed with spade, appellant accused no. 2 – Manubhai Rajshibhai was armed with iron pile, appellant accused no. 3 – Danabhai Rajshibhai was armed with Dismis [screw driver] and the appellant accused no. 4 – Kashiyo alias Karshanbhai Dudabhai and appellant accused no. 5 – Rameshbhai Dudabhai were armed with sticks. It is alleged that due to previous enmity, the appellant accused no. 1 – Ranabhai Rajshibhai inflicted two blows with spade on the hands and legs of witness Navnit Mansukhbhai. Navnit Mansukhbhai was crying and hearing the cry, his father deceased Mansukh Bhavanbhai, Bharat Mansukhbhai and Suresh Mansukhbhai, two brothers of Navnit Mansukhbhai came to the place where Navnit had sustained the injuries. It is alleged that thereupon, appellant accused no. 2 – Manubhai Rajshibhai inflicted the blows with pipe on the head of deceased Mansukhbhai Bhavanbhai and appellant accused no. 3 – Dana Rajshi inflicted a blow on the right forehead of the first informant Bharat CR.A/781/2006 6/36 JUDGMENT Mansukhbhai with the screw driver and the appellant accused no. 4 Karshan Dudabhai and appellant accused no. 5 Ramesh Dudabhai inflicted blows with their sticks on the hands and legs of Suresh Mansukhbhai. In the incident Mansukhbhai Bhavanbhai had sustained serious injuries on his head and, therefore, he was taken to Civil Hospital, Rajkot, where Mansukh Bhavanbhai was initially treated and the other injured persons were also treated. Mansukh Bhavanbhai subsequently shifted to Gondhiya Hospital, Rajkot for further and better treatment. However, he died on 31/10/1990. In connection with these offences, Bharatbhai Mansukhbhai lodged FIR before the police which came to be registered and the police investigation was commenced. 4.2. During the course of investigation, statements of material witnesses were recorded. Post mortem report of the deceased and injury certificates of injured witnesses were collected. All the 5 accused persons came to be arrested and the weapons were recovered. Necessary panchnamas were drawn in presence of panchas. After collecting material evidence, the police filed charge-sheet in the Court of the Ld. Judicial Magistrate First Class, Rajkot, for the offences punishable under sections 302, 325, 324, 323, 504, 506 (2) read with section 34 of the IPC and under section 135 of the Bombay Police Act. As the offence was CR.A/781/2006 7/36 JUDGMENT exclusively triable by the Court of Sessions, Ld. Magistrate committed the case to the Court of Sessions at Rajkot. 4.3. The Ld. Trial Judge framed charge against all the 5 accused persons for the offences punishable under sections 302, 325, 324, 323, 504, 506 (2) read with section 34 of the IPC and under section 135 of the Bombay Police Act, to which all the accused persons did not plead guilty and claimed to be tried. In the result, the prosecution adduced its oral and documentary evidence. After the prosecution concluded its evidence, the Ld. Trial Judge recorded further statements under section 313 of the Cr. P.C of all the accused persons, to which they denied generally all the allegations levelled against them. However, the appellant no. 1 – Rana Rajshi filed his written statement stating that he was falsely implicated in this case and at the time of the incident, while he was going for selling milk, at that time deceased Mansukh and his sons – witnesses Bharat, Suresh and Navnit armed with sticks and pipes, assaulted him and thereupon he snatched away one stick from the hand of one of the persons and with a view to defend himself, he wielded the stick and in doing so, he does not know who sustained the injuries. That thereafter, he went to Gandhidham where his sister Ramaben was residing and from Gandhidham on 24/10/1990 be came to Rajkot and he was arrested by CR.A/781/2006 8/36 JUDGMENT the police. He stated that he wielded the stick in exercise of his right to private defence, but police refused to record his complaint and on the contrary he came to be involved in a false case. The other accused persons filed their written statements almost on the same line and contended that they were falsely implicated in this case. 4.4. The Ld. Trial Judge, after appreciating the evidence on record and after considering the arguments advanced on behalf of both the sides, recorded the conviction of the appellants accused persons and imposed the sentence as hereinabove referred to. Being aggrieved and dissatisfied with the impugned judgment and order rendered by the Ld. Trial Judge, 5 appellants accused persons preferred Criminal Appeal No. 781 of 2006. 5. We have heard the submissions of learned advocate Mr. J B Pardiwala for the appellants – accused persons and Ld. APP Mr. M A Patel for the respondent – State and we have considered the record and proceedings of the trial Court in context of the submissions made on behalf of both the parties. 6. Learned advocate Mr. Pardiwala submitted that genesis of CR.A/781/2006 9/36 JUDGMENT the case is doubtful in the sense that the prosecution did not adduce any cogent and clear evidence showing that who initiated the offence. It is submitted that as a matter of fact the deceased and his sons attacked appellants – accused Rana Rajshi and caused injuries to him with lethal weapons. That with a view to save himself, accused Rana snatched away one of the sticks from the hands of one of the assailants and wielded it in air and while doing so, some of the assailants sustained injuries. That whatever act accused Rana Rajshi did was as a part of exercise of his right of private defence. That thus the prosecution suppressed true origin of the occurrence. 6.1. On behalf of the appellants, it is further submitted that the prosecution came forward with a story that the incident occurred because of some minor incident which had taken place about 5 years back from the date of the incident. Since 5 years, both, the accused and deceased and his sons resided almost in nearby vicinity and no untoward incident had happened. Thus, the evidence regarding the motive behind the incident is unnatural and doubtful. 6.2. Ld. Advocate Mr. Pardiwala further submitted that the Ld. Trial Judge though acquitted all the accused from the charge of commission of offence of murder punishable under section 302 of the CR.A/781/2006 10/36 JUDGMENT IPC, erred in convicting them for the offence of culpable homicide not amounting to murder punishable under section 304 Part-II of the IPC. It is submitted that the medical evidence clearly reveals that there was no nexus between the subsequent death of Mansukhbhai, the deceased and the injuries he sustained at the time of the incident. That the incident occurred on 23/10/1990 and the deceased died on 31/10/1990. Considering the evidence of Dr. Ajmera, who conducted the post mortem of the deceased, Dr. Ajmera categorically stated on oath that the cause of death was pyogenic meningitis. Dr. Ajmera further admitted that meningitis can be on non-medico legal ground and he opined that the possibility of cause of death of the deceased on non-medico legal ground cannot be ruled out. That thus there is no nexus between the death and the injuries sustained by the deceased. Therefore, it is submitted that the Ld. Trial Judge erred even in coming to the conclusion that the death of the deceased was homicidal. 6.3. Ld. Advocate Mr. Pardiwala further submitted that the Ld. Trial Judge erred in coming to the conclusion that the acts done by all the accused persons were in furtherance of common intention. It is submitted that even as per the case of the prosecution, the so called incident occurred abruptly at about 5.00 a m in the early morning. There is nothing on record that all the accused persons were knowing well in advance that CR.A/781/2006 11/36 JUDGMENT injured witness Navnit Mansukhbhai would go to his Pan shop at 5.00 a m early in the morning and that well in advance they made preparation for assaulting Navnit armed with weapons. It is not the case of the prosecution that it was the daily routine of Navnit to go to his Pan shop so early in the morning from his house i.e., around 5.00 a.m. It is further submitted that over and above this, considering the evidence adduced by the prosecution through the so called eye witnesses, it has come in evidence that initially accused nos. 1 and 2 came, then accused no. 3 came and the accused nos. 4 and 5 came after the entire incident was over. That thus all the 5 accused did not come together armed with weapons in their hands. Thus, the Ld. Trial Judge erred in convicting all the accused persons in connection with all the offences charged against them by taking resort to section 34 of the I P C. That thus the involvement of accused nos. 4 and 5 is even not at all established by the prosecution. The involvement of accused nos. 2 and 3 cannot be said to have been proved by the prosecution beyond any reasonable doubt. Appellant - accused no. 1 – Rana Rajshi admits his presence at the time of the incident and he has raised a reasonable defence that as a matter of fact he was attacked by the deceased and his sons and in exercise of his right of private defence, he snatched away one of the sticks from the hands of one of the assailants and wielded the same in air and some of the CR.A/781/2006 12/36 JUDGMENT assailants sustained injuries. That there was no reason whatsoever not to accept the defence of the accused no. 1 – Rana Rajshi. That thus as a matter of fact, the prosecution miserably failed to prove its case against all the accused persons. 6.4. It is submitted that the prosecution has come forward with such a story, which is highly improbable and unnatural. It is alleged that the accused no. 3 caused injury to first informant Bharat Mansukhbhai with Dismis [screw driver]. Even the medical opinion does not support the story of the prosecution. That as a matter of fact, the injured witnesses gave history of assault by stick before the Medical Officer, whereas as per the prosecution case different weapons were used in the incident by the accused. 6.5. Alternatively, Ld. Advocate Mr. Pardiwala submitted that if at all this Court comes to the conclusion that the involvement of the appellants accused nos. 1, 2 and 3 is proved by the prosecution, then their involvement may be for the individual act done by each of them in the incident. It is, therefore, submitted that the offence which can be said to have been constituted, may be the offence punishable under section 325 of the IPC qua the deceased person and the offence of simple hurt punishable under section 323 of the IPC qua the injured witnesses. CR.A/781/2006 13/36 JUDGMENT 7. Ld. APP Mr. MA Patel vehemently opposed this appeal and submitted that upon appreciation of the oral and documentary evidence on record, the Ld. Trial Judge rightly observed that the offence which can be said to have been constituted was culpable homicide not amounting to murder punishable under section 304 Part-II of the IPC. That soon after sustaining grievous injuries on the vital part of the body like head by deceased Mansukhbhai, he immediately became unconscious and he remained unconscious till he died on 31/10/1990 in the hospital while he was under treatment. Therefore, it is submitted that by cogent medical evidence the prosecution established that the death of the deceased was homicidal. That there is direct nexus between the injuries sustained by the deceased and his death. 7.1. It is further submitted that considering the evidence of eye witnesses, it is clear that all the accused persons did their acts in furtherance of common intention on account of enmity and rivalry with the deceased and his sons. That therefore, the Ld. Trial Judge did not err in convicting all the accused persons taking resort to section 34 of the IPC. Therefore, it is submitted that Criminal Appeal No. 781 of 2006 preferred by the appellants accused persons deserves to be dismissed. 8. However, so far as the Criminal Appeal No. 1610 of 2006 CR.A/781/2006 14/36 JUDGMENT preferred by the State under section 377 of the Cr. P.C is concerned, the Ld. APP Mr. Patel submitted that the punishment imposed by the trial Court is out-right inadequate, lenient and disproportionate to the offence committed by them. That in the incident, one person lost his life and 3 persons sustained injuries and out of them, 2 persons, namely Suresh and Navnit sustained grievous injuries like fractures. That the accused used lethal weapons in the incident. Therefore, it is submitted that the appeal preferred by the State for enhancement of sentence under section 377 of the Cr. P.C deserves to be allowed and maximum sentence provided for the offences committed by the accused persons be awarded to them. 9. Ld. Advocate Mr. Pardiwala for the appellants submitted that the Ld. Trial Judge erred in convicting the accused persons for the offence punishable under section 304 Part-II of the IPC. That the offence cannot be said to have been constituted even appreciating the evidence adduced by the prosecution is considered as it is. That therefore, the accused deserve acquittal even in connection with the offence punishable under section 304 Part-II of the IPC. That therefore, the question of enhancement of sentence would not arise. Therefore, it is submitted that the Criminal Appeal No. 1610 of 2006 preferred by the State under section 377 of the Cr. P.C deserves to be dismissed. CR.A/781/2006 15/36 JUDGMENT 10. Considering the evidence adduced by the prosecution, it transpires that the prosecution has come forward with a case that on 23/10/1990 at about 5.00 a m when injured witness Navnit Mansukhbhai was going from his house to open his Pan shop, at that time initially he was attacked and when he shouted for help, his father Mansukhbhai and his brothers Bharat and Suresh came there to rescue him and that his father and brothers also sustained serious bodily injuries and his father Mansukhbhai subsequently succumbed to the injuries. According to the prosecution case, Navnit has just left his house to attend his Pan shop, the incident occurred. That therefore, listening his shout for help, his father and brothers could reach immediately to the scene of offence. 11. Therefore, it can safely be said that witness Navnit Mansukhbhai was present at the scene of offence right from the very inception of the offence till the completion of the offence. Therefore, it would be necessary to consider the evidence of witness Navnit Mansukhbhai examined at exh. 91. According to his evidence, at about 5.00 a m in the morning, while he was going from his home to open his Pan shop, at that time accused nos. 1, 2 and 3 came near him and they abused him and he asked them as to why early in the morning they were CR.A/781/2006 16/36 JUDGMENT uttering abusive words and thereupon, accused no. 1 – Rana Rajshi inflicted blow of spade on his head and further blows on his hands, legs and back. Then he stated that accused no. 1 inflicted in-all 6 blows with spade. That hearing the noise of the quarrel, his father Mansukhbhai came to rescue him and appellant accused no. 2 Manubhai Rajshibhai inflicted blow with iron rod on the head of his father Mansukhbhai. That in-all accused no. 2 Manubhai Rajshibhai inflicted 3 blows on the head of his father. He stated that thereafter his brother Suresh came and the accused nos. 4 and 5 inflicted blows with sticks on the person of Suresh. He stated that then his brother Bharat [the first informant] came and the accused no. 3 Dhana Rajshi caused injury to Bharat near his right eye with Dismis. That upon hearing the shouting, so many persons gathered in the street and, therefore, all the accused persons ran away carrying their weapons. This witness Navnitbhai was cross-examined at length by the defence. However, in his cross-examination he stated that the accused nos. 1, 2 and 3 are real brothers. That accused nos. 4 and 5 are also real brothers, but the accused nos. 4 and 5 are not brothers of accused nos. 1, 2 and 3. That the accused nos. 4 and 5 came subsequently carrying sticks in their hands. He categorically admitted that before the accused nos. 4 and 5 came on the spot, all had sustained the injuries. Under such circumstances, we see considerable force in the submission made by CR.A/781/2006 17/36 JUDGMENT learned advocate Mr. Pardiwala that all the 5 accused persons did not come together on the spot, but at the first instance accused nos. 1 to 3 came and later on accused nos. 4 and 5 came. Over and above this, considering the evidence of Navnit, he categorically admitted that when accused nos. 4 and 5 came on the spot, all the injured persons had already sustained the injuries. Thus, the involvement of the accused nos. 4 and 5 in the incident can be said to be doubtful. 12. The evidence of first informant Bharat Mansukhbhai exh. 55 almost runs on the same line like the evidence of Navnit. He stated that his younger brother Navnit had left house round about 5.00 a m in the early morning to open his Pan shop and he heard the shout and thereupon his father and he himself went to the place and he saw that his brother Navnit was surrounded by accused nos. 1 and 2. Then he stated that when his father went to rescue Navnit, accused no. 1 inflicted pipe blow on his head. Navnit was also attacked by accused no. 1 Rana and accused no. 2 Manubhai. He stated that accused no. 3 caused injury with Dismis to Navnit. He further stated that accused no. 3 inflicted blow with Dismis even to his father Mansukhbhai. Suresh was attacked by accused nos. 4 and 5 with sticks. He stated that he was attacked with Dismis by accused no. 3 and sustained injuries near his right eye. Then he stated that all