CR.A/120/1999 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 120 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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? ========================================================= BABULAL PASHABHAI @ PARSOTTAM BHAI NAI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR PB GOSWAMI for Appellant(s) : 1,3,4,6 – 8. MR VIJAY PATEL for HL PATEL ADVOCATES for Appellant(s) : 5. MS CHETNA SHAH [Amicus Curie] for Appellant(s) : 2 & 9. MR HL JANI APP for Opponent(s) : 1. ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI CR.A/120/1999 2/38 JUDGMENT Date : 13/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This Appeal is directed against the judgment and order dated 30 th January, 1999 passed by the learned Addl. Sessions Judge, Mehsana in Sessions Case No. 242 of 1997 whereby, the appellants, original accused nos. 1 to 9, were convicted for the offences punishable u/s. 143, 147, 148, 149, 452, 302, 323, 324, 504 & 506(2) of the Indian Penal Code [for short, “the I.P.C.”]. For conviction u/s. 302 r/w. Section 149 of the I.P.C., the appellants were sentenced to undergo imprisonment for life with fine of Rs.5,000/- each and in default of payment of fine, they were ordered to undergo simple imprisonment for a further period of one year. No separate sentences were awarded for offences punishable u/s. 143, 147, 148, 452, 323, 324, 504 & 506(2) of the I.P.C,. CR.A/120/1999 3/38 JUDGMENT 2.0 Before proceeding with the matter, we would like to high-light certain events that have taken place until the matter was finally heard today. At the time of filing this Appeal, the appellants had preferred an application being Criminal Misc. Application No. 966 of 1999 for their release on bail during the pendency of the Appeal. The said application came to be disposed of by this Court vide order dated 23.03.1999 whereby, the prayer for the release on bail was rejected qua appellant nos. 1, 6, 7 & 8 and was granted only qua appellant nos. 2, 3, 4, 5 & 9. Subsequently, appellant no. 7 was also released from the custody on 01.10.2007 on the basis of a special Notification published by the State Government. Thus, out of nine accused persons, appellant nos. 1, 6 & 8 are in custody, appellant nos. 2, 3, 4, 5 & 9 are on bail pending Appeal while appellant no. 7 has been set at liberty on the basis of the special Notification published by the State Government. CR.A/120/1999 4/38 JUDGMENT 2.1 Notice of this Court was duly served upon appellant nos. 2 & 9. However, no appearance has been filed on their behalf till today. Therefore, we had requested learned Advocate Ms. Chetna Shah to render her services in the matter as Amicus Curie, which was voluntarily accepted by her and, accordingly, we heard learned Advocate Ms. Chetna Shah on behalf of appellant nos. 2 & 9. 3.0 The facts in brief, as emerging from the record, are as under; 3.1 The alleged incident in question took place in Village Bhatasan, Taluka Kadi, District Mehsana. All the persons, viz. the appellants, deceased – Chimanlal Chaganlal Patel, complainant – Rajeshkumar Chimanlal Patel and the witnesses are residents of the same Village having a population of about 2000 members. CR.A/120/1999 5/38 JUDGMENT 3.2 On 23.05.1997, at around 1500 hrs., the complainant, son of deceased – Chimanlal Chaganlal Patel, opened their shop after enjoying recess in the afternoon. At around 1600 hrs., deceased – Chimanlal Chaganlal Patel came to the shop. At around 1630 hrs., the appellants herein, original accused nos. 1 to 9, came to their shop armed with deadly weapons and started to quarrel with the deceased on the aspect of supply of water to the villagers. Thereafter, they started to use abusive language at the deceased and when the deceased informed them not to use such language, the appellants got enraged and started to inflict blows with their respective weapons. 3.3 On noticing the said incident, the son of the deceased, the complainant in this case, who was also present in the shop at that time, tried to rescue the deceased. However, at that time, the appellants also inflicted weapon blows on the complainant. On hearing the shouts of CR.A/120/1999 6/38 JUDGMENT the deceased and the complainant, their family members, who were present in their respective houses, situated adjacent to the said shop, came to the scene of offence. Therefore, the appellants fled the scene of offence with their respective weapons. 3.4 As the physical condition of both the deceased as well as the complainant had started to deteriorate, they were taken to Community Health Centre, Jasalpur. The Doctor, who was on duty at the relevant point of time, provided necessary preliminary treatment to both the deceased and the complainant. However, as the condition of the deceased was deteriorating, he was advised to be taken to Civil Hospital, Kadi. Therefore, the deceased was taken to Civil Hospital, Kadi. At the said Hospital, both were given necessary treatment and the deceased was also operated upon. CR.A/120/1999 7/38 JUDGMENT 3.5 In the meanwhile, the Doctor who had operated upon the deceased, telephonically informed about the said incident to Kadi Police Station. The P.S.O., who was on duty at the relevant point of time, made an entry to that effect in the Station Register and on that basis, a 'wardhi' was given to the Investigating Officer for the purpose of carrying out necessary preliminary investigation. The Investigating Officer went to the Civil Hospital and made necessary inquiry. A 'yaadi' was also sent to the concerned Executive Magistrate for the purpose of recording the dying declaration of the deceased. A complaint with respect to the aforesaid incident was recorded, which was, ultimately, registered as I – C. R. No. 156 of 1997 for offence punishable u/s. 143, 147, 148, 149, 452, 323, 324, 504 & 506(2) of the I.P.C,. 3.6 As the deceased was in a condition to give statement after he was operated upon, the Investigating Officer recorded his statement. Thereafter, as the condition CR.A/120/1999 8/38 JUDGMENT of the deceased had started to deteriorate, the Doctor advised that the deceased be taken to Civil Hospital at Ahmedabad for further treatment. Therefore, the deceased was taken to Civil Hospital at Ahmedabad. However, during the course of treatment at Civil Hospital, Ahmedabad, the deceased succumbed to the injuries on 26.05.1997. Therefore, a Report was sent to the learned J.M.F.C., Kadi for adding Section 302 of the I.P.C. in the complaint. In the meanwhile, inquest 'panchnama' was done. 'Marnottar' form was filled up and the dead body was sent for performing post-mortem. 3.7 The Investigating Officer went to the scene of offence and prepared a 'panchnama' in the presence of 'panchas'. Necessary 'muddamal' articles were also collected. Statements of several witnesses were recorded. The clothes worn by the deceased at the relevant point of time were also seized by way of a separate 'panchnama' in the presence of CR.A/120/1999 9/38 JUDGMENT 'panchas'. The ‘muddamal’ articles so collected were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM note and other Reports, they were kept in the investigation file. 3.8 Further investigation was carried out and statements of several witnesses were recorded. As cogent evidence was found against the appellants, they were arrested. Appellant nos. 1 & 2 were arrested on 23.05.1997, appellant no. 3 was arrested on 24.05.1997 while appellant nos. 4, 5, 6, 7, 8 & 9 were arrested on 31.05.1997. Arrest 'panchnamas' were prepared and after completing necessary formalities, they were sent to judicial custody. The clothes worn by the appellants, at the time of the alleged incident in question, were also seized by way of separate 'panchnamas' in the presence of 'panchas'. During the course of interrogation, as the appellants showed willingness to produce the 'weapons' used in the commission of the alleged CR.A/120/1999 10/38 JUDGMENT offence in question, the same were recovered by way of separate 'panchnamas' in the presence of 'panchas'. 3.9 On completion of investigation, charge-sheet was filed against the appellants in the Court of learned Judicial Magistrate, First Class, Kadi. As the case was exclusively triable by the Court of Sessions, the learned J.M.F.C., Kadi committed the case to the District Court, Mehsana and the same was numbered as Sessions Case No. 242 of 1997. On production of the appellants, the learned trial Judge framed the charge and as the accused persons pleaded not guilty to the said charges, trial was conducted against them. 4.0 The prove the guilt against the accused persons, the prosecution has examined twenty four witnesses, namely, PW – 1 Rajeshkumar Chimanlal Patel at Exhibit – 35, PW – 2 Nainaben Vishnubhai Patel at Exhibit – 36, PW – 3 Jayantilal Madhavlal Patel at Exhibit – 37, PW – 4 CR.A/120/1999 11/38 JUDGMENT Bhagwatiben Bharatbhai Patel at Exhibit – 39, PW – 5 Manilal Somabhai Patel at Exhibit – 40, PW – 6 Dahyabhai Somdas Patel at Exhibit – 41, PW – 7 Shankarbhai Manilal Patel at Exhibit – 43, PW – 8 Narsinhbhai Dhulabhai Luhar at Exhibit – 45, PW – 9 Bharatbhai Mafatlal Patel at Exhibit – 46, PW – 10 Govindbhai Manilal Patel at Exhibit – 49, PW – 11 Ismailbhai Yakubbhai Ghanchi at Exhibit – 51, PW – 12 Rameshji Karnaji at Exhibit – 53, PW – 13 Dr. Tarlikaben Rajeshkumar at Exhibit – 57, PW – 14 Dr. Ketan Gayatriprasad at Exhibit – 60, PW – 15 Kanabhai Madhabhai Bajaniya at Exhibit – 62, PW – 16 Dr. Jayentra Ratilal Modi at Exhibit – 65, PW – 17 Maherambhai Maganbhai Vaghela at Exhibit – 68, PW – 18 Bababhai Punjabhai Nadiya at Exhibit – 71, PW – 19 Chandubhai Jivabhai Patel at Exhibit – 73, PW – 20 Yunusmiya Hussainmiya Saiyed at Exhibit – 75, PW – 21 Sabbirhussainmiya Sabamali Saiyed at Exhibit – 77, PW – 22 Gordhanbhai Revabhai Upadhyaya at Exhibit – 79, PW – CR.A/120/1999 12/38 JUDGMENT 23 Moghjibhai Keshavlal at Exhibit – 86 and PW – 24 at Exhibit – 38. 4.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 87, the discovery 'panchnamas' of 'muddamal' weapons at Exhibits – 44, 48, 50, 52, 54, 76 and 78, the Medical Certificates of deceased at Exhibit – 58 & 61, the Medical Certificate of the complainant at Exhibit – 59, the Medical Certificate of PW – 5 at Exhibit – 63, the PM Note at Exhibit – 66, the 'panchnama' of the scene of offence at Exhibit – 72, the Inquest 'panchnama' at Exhibit – 42 and the F.S.L. Report at Exhibit – 96 to 101. 4.2 On submission of the closing ‘purshis’, the further statement of the accused persons were recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned CR.A/120/1999 13/38 JUDGMENT counsel for the respective parties, the learned trial Judge passed the impugned judgment, which is under challenge before this Court by way of this Appeal. 5.0 Learned Advocate for the appellants have jointly contented that the appellants have been falsely implicated in the alleged offence in question as there was some rivalry between the deceased and the appellants in the Panchayat elections of the Village. They have contented that there is no eye-witness to the alleged incident in question and that they have been involved in the alleged offence only on account of the aforesaid rivalry. They have taken us through the statements of the appellants recorded u/s. 313 of the Cr.P.C. and have submitted that the defense of alibi taken by the appellants ought to have been believed by the Court below looking to the evidence available on record. 5.1 Learned Advocates have contented that the CR.A/120/1999 14/38 JUDGMENT prosecution has failed to establish that the appellants were members of an “illegal assembly” and that their common object was to kill the deceased. They have submitted that at the relevant point of time a majority of the appellants were only a witness to the alleged incident and that the alleged act was executed only by some of the appellants. Therefore, at the most, the appellants could be convicted for their individual act and not for being a member of an illegal assembly. Hence, the impugned judgment passed by the Court below deserves to be quashed and set aside and the appellants deserve to be acquitted from the alleged offence. 5.2 Learned Advocates have lastly submitted that the alleged incident in question took place about ten years ago and that at present peace is prevailing in the Village and therefore, by taking a lenient view of the matter, the Court may release the appellants from the custody as no disturbance would be caused by them on the peace CR.A/120/1999 15/38 JUDGMENT situation prevailing in the village, if they are released. 6.0 Mr. H. L. Jani learned APP has submitted that from the oral evidence on record in the form of depositions of PW – 1 Rajeshkumar Chimanlal Patel at Exhibit – 35, PW – 2 Nainaben Vishnubhai Patel at Exhibit – 36, PW – 4 Bhagwatiben Bharatbhai Patel at Exhibit – 39, PW – 5 Manilal Somabhai Patel at Exhibit – 40, PW – 13 Dr. Tarlikaben Rajeshkumar at Exhibit – 57, PW – 14 Dr. Ketan Gayatriprasad at Exhibit – 60 and PW – 16 Jayendra Ratilal Modi at Exhibit – 64, the guilt of the appellants is established beyond doubt. 6.1 Learned APP has submitted that the documentary evidence on record in the form of complaint at Exhibit – 87, the discovery 'panchnamas' of 'muddamal' weapons at Exhibits – 44, 48, 50, 52, 54, 76 and 78, the Medical Certificates of deceased at Exhibit – 58 & 61, the Medical CR.A/120/1999 16/38 JUDGMENT Certificate of the complainant at Exhibit – 59, the Medical Certificate of PW – 5 at Exhibit – 63, the PM Note at Exhibit – 66, the 'panchnama' of the scene of offence at Exhibit – 72, the Inquest 'panchnama' at Exhibit – 42 and the F.S.L. Report at Exhibit – 96 to 101 also support the case of the prosecution. He has submitted that from the aforesaid evidence on record, it is established beyond doubt that the appellants were the members of an illegal assembly having the common object to kill the deceased. Therefore, the Court below was completely justified in convicting the appellants for the alleged offence in question. Hence, no interference is required from this Court in this Appeal. 7.0 Heard Mr. P. B. Goswami learned Advocate for appellant nos. 1, 3, 4, 6, 7 & 8, Mr. Vijay Patel learned Advocate for appellant no. 5, Ms. Chetna Shah learned Advocate for appellant nos. 2 & 9 and Mr. H. L. Jani learned APP for the respondent – State. We have also perused the CR.A/120/1999 17/38 JUDGMENT entire oral as well as documentary evidence available on record. Before proceeding with the matter, we would like to high-light certain facts which are undisputed and which shall have considerable bearing on the final outcome of this Appeal. The alleged incident in question took place on 23.05.1997, at around 1630 hrs., in front of the grocery shop of the deceased. The said shop of the deceased is situated adjacent to the house of one of the three sons of the deceased namely, Vishnubhai Chimanlal Patel. The deceased was residing along with his wife, the complainant – Rajeshkumar Chimanlal Patel and the family of his elder son namely, Bharatbhai Chimanlal Patel, in another house, situated near to the house of said Vishnubhai Chimanlal Patel and the shop in question. Near the said shop of the deceased, several other shops are also situated. 8.0 From the record, it appears that the prosecution case mainly rests upon the oral evidence of the complainant CR.A/120/1999 18/38 JUDGMENT – Rajeshkumar Chimanlal Patel, who has been examined as PW – 1 at Exhibit – 35, the younger daughter-in-law of the deceased – Nainaben Vishnubhai Patel as PW – 2 at Exhibit – 36, the elder daughter-in-law of the deceased – Bhagwatiben Bharatbhai Patel as PW – 4 at Exhibit – 39 and an independent witness - Manilal Somabhai Patel as PW – 5 at Exhibit – 40, apart from other documentary evidence on record. The prosecution claims the aforesaid four witnesses to be eye-witness to the alleged incident in question. We shall closely scrutinize the evidence led by each of the aforesaid witness, so as to ascertain the veracity of the claim made by the prosecution. 9.0 The complainant – Rajeshkumar Chimanlal Patel in his deposition as PW – 1 at Exhibit – 35 has stated that at the time when the alleged in question took place, he and his deceased father were sitting in the shop in question. During that time, the appellants came there. He has further CR.A/120/1999 19/38 JUDGMENT deposed that at that time, appellant nos. 1, 5, 7 & 9 were having 'dharias', appellant nos. 2, 3 & 4 were having sticks while appellant nos. 6 & 8 were having 'bhalas' [ A stick with a sharp-edged metal on one of its side ] with them and they began to quarrel with the deceased on the aspect of non- release of water to the villagers. Being dissatisfied by the reply of the deceased, appellant no. 5 instructed the other appellants to kill the deceased. This witness has further categorically deposed that thereafter, appellant no. 6 inflicted a 'bhala' blow while appellant no. 7 inflicted a 'dharia' blow, both on the stomach portion of the body of the deceased, on account of which the intestine came out of the body. Thereafter, appellant no. 8 inflicted a 'dharia' blow on the right thigh of the deceased. When he tried to rescue the deceased, the aforesaid appellants inflicted 'dharia' and 'bhala' blows on him also and he made shouts of help. This witness has further deposed that on hearing his shouts, Vishnubhai, Nainaben Vishnubhai Patel [PW – 2], CR.A/120/1999 20/38 JUDGMENT Bhagwatiben Bharatbhai Patel [PW – 4] and Manilal Somabhai Patel [PW – 5] reached the scene of offence and tried to rescue them. Subsequently, the appellants fled the scene of offence with the weapons in question. 9.1 This witness has been cross-examined at length before the Court below. From his cross-examination, it has come out that the deceased had never fought the elections for the post of 'Sarpanch' / Deputy 'Sarpanch' of the Village Panchayat and that Bhagwatiben Bharatbhai Patel [PW – 4] was the 'Sarpanch' at the relevant point of time. It has also come out that at the relevant point of time appellant no. 1 had inflicted a 'dharia' blow, appellant no. 4 a stick blow and appellant no. 8 a 'bhala' blow on the right thigh of the complainant. This witness has identified the appellants as also the 'muddamal' weapons before the Court below. Nothing incriminating has come out from his cross- examination which may lead us to believe his evidence to be CR.A/120/1999 21/38 JUDGMENT untrue or unreliable. 9.2 The say of the complainant that he had sustained injuries at the relevant point of time is also established from the Medical Certificate issued to him at Exhibit – 59. The said fact is also proved by the prosecution from the evidence of the Medical Officer – Dr. Tarlikaben Rajeshkumar Mehta [PW – 13 at Exhibit – 57], who had given necessary treatment to the complainant on the date of the alleged incident in question. Thus, the factum of the complainant having sustained injuries in the alleged incident in question gets support from the medical evidence on record in the form of Certificate at Exhibit – 59 and the deposition of the Medical Officer as PW – 13 at Exhibit – 57. 10.0 The younger daughter-in-law of the deceased, Nainaben Vishnubhai Patel, has been examined as PW – 2 at Exhibit – 36. In her deposition, she has stated that on the CR.A/120/1999 22/38 JUDGMENT date of the alleged incident in question, the deceased and the complainant were in the shop situated in the front of her house while she and her husband – Vishnubhai were in their house. She has deposed that at around 1600 hrs. while she was fetching water, she heard shouts from the area where the shop in question was situated. Therefore, she along with her husband – Vishnubhai and Bhagwatiben Bharatbhai Patel [PW – 4] rushed towards the shop in question. On reaching the said place, she noticed that the appellants were present there and armed with weapons like 'bhalas', 'dharias' and sticks. She has further deposed that the appellants were using filthy language at the deceased and that the deceased was trying to persuade them. At that time, appellant no. 5 instructed the other appellants to kill the deceased. Thereafter, appellant no. 6 inflicted a 'bhala' blow while appellant no. 7 inflicted a 'dharia' blow both in the stomach portion of the deceased on account of which the intestine came out of the body. This witness has also CR.A/120/1999 23/38 JUDGMENT categorically deposed that appellant nos. 1 & 8 had inflicted 'dharia' and 'bhala' blows respectively on the right thigh of the complainant while appellant no. 4 had inflicted a stick blow on the right-hand side of the abdomen. This witness has further deposed that when they tried to rescue the deceased and the complainant, the appellants fled the scene of offence with their respective weapons. 10.1 This witness has also been cross-examined at length before the Court below. From her cross-examination, it has come out that at the relevant point of time, when Manilal Somabhai Patel [PW – 5] tried to rescue the deceased and the complainant from the hands of the appellants, said Manilal got injured. Nothing incriminating has come out from her cross-examination which may lead us to believe her evidence to be untrue or unreliable. 11.0 The prosecution has examined said Manilal CR.A/120/1999 24/38 JUDGMENT Somabhai Patel as PW – 5 at Exhibit – 40. In his deposition, he has stated that on the date of the alleged incident in question while he was sitting in a salon, he heard shouts from the direction where the shop of the deceased was situated. Therefore, he went to the said place. On reaching there, he noticed that the appellants were hurling abuses at the deceased and were armed with weapons like 'dharia', 'bhala' and stick. This witness has also narrated the same facts as has been deposed by PW – 1 at Exhibit – 35 and PW – 2 at Exhibit – 36. This witness has further categorically deposed that at the time when the aforesaid alleged incident had taken place, PW – 1, PW – 2 and PW – 4 were present at the scene of offence. 11.1 This witness has also been cross-examined by the other side. Nothing incriminating has come out from the cross-examination of this witness, which may lead us to believe his evidence to be untrue or unreliable. It may be CR.A/120/1999 25/38 JUDGMENT noted that this witness had also sustained injuries while he had tried to rescue the deceased and the complainant from the assaults of the appellants, which is evident from the Certificate issued to him at Exhibit – 63. The said fact is established from the evidence led by the Medical Officer – Dr. Kanabhai Madhabhai Bajaniya [PW – 15 at Exhibit – 62], who had given necessary medical treatment to PW