CR.A/519/2000 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 519 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 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 ? ======================================================= GEDIO @ GANI GULABBHAI & 4 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MR PRAVIN GONDALIYA for Appellant(s) : 1 - 5. MR HL JANI APP for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 06/02/2008 CR.A/519/2000 2/20 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This appeal under Section 374 of the Code of Criminal Procedure, 1973 has been preferred by the appellants-accused, who have been charged and tried for the offence punishable under Sections 302, 34, 143, 147, 148 and 149 of the Indian Penal Code, under Sections 37(1) and 135 of the Bombay Police Act and under Section 3(1)(10) of the Atrocity Act in Sessions Case No.179 of 1998, wherein they were convicted to undergo imprisonment for life and fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 302 read with Section 149 of the Indian Penal Code and were further convicted to suffer three months imprisonment and fine of Rs.200/-, in default, to undergo 15 days simple imprisonment for the offence under Section 135 of the Bombay Police Act. The appellants- accused were also found guilty for the offence under Sections 147 and 148 of the Indian Penal Code, however, no separate sentence was imposed. They were acquitted for the offence under Section 3(1)(10) of the Atrocity Act. 2.0 The short facts of the present case are as under :- 2.1 On 07.07.1998 at about 6:30 p.m., the CR.A/519/2000 3/20 JUDGMENT complainant (Premben wife of Meghabhai Jethabhai) along with her son viz., Mohan (the deceased) and one Manoj Ramjibhai had gone to Government Hospital to inquire about the health of the daughter of her son viz., Umi, who was admitted in the hospital and while returning at about 7 o'clock, when they reached near Keshari Hind Pool (bridge), the accused persons, who were sitting there, rushed towards the deceased and tried to catch hold of him, and, hence, to save himself, the deceased ran away towards Bedinaka. However, the accused chased him, caught hold of him and assaulted him by giving knife blows on various parts of the body. As a result of that, the deceased fell down in pool of blood very near to footpath and succumbed to the injuries and, thereafter, the accused persons fled away from the place of offence towards river. Meanwhile, sons of complainant viz., Girish and Suresh also reached the scene of offence. 2.1 Immediately thereafter, somebody informed the Traffic Police, who was discharging his duty at the end of Keshari Hind Pool (bridge). In pursuance of that, Traffic Police Constable informed the control room and, hence, Police reached the scene of offence and inquired into the matter and recorded the complaint given by the complainant against all five CR.A/519/2000 4/20 JUDGMENT persons and, thereafter, same has been sent to Rajkot 'B' Division Police Station for the purpose of registration and on receiving the same, it has been numbered as Rajkot City 'B' Division Police Station I-C.R.No.362/1998 for the offence under Sections 143, 147, 148, 149, 302 and 34 of the Indian Penal Code, under Section 3(1)(10) of the Atrocity Act and under Sections 37(1) and 135 of the Bombay Police Act. 2.2 Investigating Officer started further investigation. He prepared the inquest panchnama in the presence of panchas, filled up maranottar form and prepared yadi for sending dead body for the purpose of postmortem. 2.3 He also prepared panchnama of scene of offence in the presence of panchas and also seized muddamal under panchnama. He also recorded the statements of various witnesses. 2.4 On 08.07.1998, the accused nos.1 and 2 surrendered themselves before the Police Station and accused no.2 has voluntarily produced the muddamal knife alleged to have been used in the crime in question and same has been seized under panchnama. 2.5 He also tried to search the accused nos.3, 4 and 5. On 11.07.1998, the accused nos.3, 4 and 5 have voluntarily surrendered before the Police Station and they were arrested by CR.A/519/2000 5/20 JUDGMENT preparing arrest panchnama. The accused nos.3 and 4 have shown willingness to produce muddamal weapon and, therefore, same has been seized under 27 Panchnama. The blood and saliva samples of the accused were collected by the doctor and sent the same to FSL. On receiving the FSL as well as postmortem reports, same were kept along with the investigation file. Upon completion of investigation, he submitted the charge sheet against the accused persons before the Learned Judicial Magistrate, First Class, Rajkot. 2.6 As the offence alleged against the accused was exclusively triable by the Court of Sessions, the Learned Learned Judicial Magistrate, First Class, Rajkot committed the case to the Court of Sessions at Rajkot where it was numbered as Sessions Case No.179 of 1998 and transferred to the Court of learned Additional Sessions Judge, Rajkot for disposing the same on merits. The learned Judge framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.0 To prove the case against the accused, the prosecution examined 24 prosecution witnesses viz., P.W.No.1 viz., Dr.Manishbhai Ishwarlal at Exh.14, P.W.No.2 viz., Dr.Hashmukhbhai Vallabhbhai at Exh.16, P.W.No.3 viz., Gautam CR.A/519/2000 6/20 JUDGMENT Babulal at Exh.22, P.W.No.4 viz., Premiben Mepabhai at Exh.29, P.W.No.5 viz., Girishbhai Mepabhai Chauhan at Exh.30, P.W.No.6 viz., Rajkumar Savaldas Hinduja at Exh.37, P.W.No.7 viz., Bakulkumar Gokaldas Sheth at Exh.38, P.W.No.8 viz., Jayantibhai Manubhai at Exh.38, P.W.No.9 viz., Anvarbhai Bachubhai at Exh.40, P.W.No.10 viz., Suleman Osamanbhai at Exh.41, P.W.No.11 viz., Dipak Bachulal at Exh.42, P.W.No.12 viz., Dharamdas Jematram at Exh.43, P.W.No.13 viz., Bhikhubhai Tapubhai at Exh.44, P.W.No.14 viz., Ghanshyamsinh Jilubha at Exh.53, P.W.No.15 viz., Nirmalsinh Natubha Gohel at Exh.55, P.W.No.16 viz., Balvantsinh Merambhai at Exh.58, P.W.No.17 viz., Jitendra Dahyabhai at Exh.59, P.W.No.18 viz., Somaji Khengarji at Exh.60, P.W.No.19 viz., Devalji Muluji at Exh.64, P.W.No.20 viz., Kanuji Bhavanji at Exh.67, P.W.No.21 viz., Dr.Khimjibhai Dudabhai at Exh.72, P.W.No.22 viz., Dr.Bhartiben Upadhyay at Exh.75, P.W.No.23 viz., Asharafilal Babulal Yadav at Exh.85 and P.W.No.24 viz., Ramsinh Balusinh Chauhan at Exh.101. 3.1 The prosecution also relied on 37 documentary evidence such as inquest panchnama at Exh.47, Panchnama of scene of offence at Exh.50, arrest panchnama of Gani Gulab and Rahit Babulal at Exh.51, map of scene of offence at Exh.57, P.M. Note at Exh.78, complaint at CR.A/519/2000 7/20 JUDGMENT Exh.86, discovery panchnama at Exhs.90 & 92, arrest panchnama of Yusuf Gulabbhai at Exh.91, FSL Report at Exh.100 etc. 3.2 On submission of closing purshis by the prosecution, learned Additional Sessions Judge recorded further statements of the accused under Section 313 of Code of Criminal Procedure qua the incriminating evidence wherein the accused came out with the case of total denial. The accused did not examine any witness nor stepped into the witness box. Therefore, after hearing the learned counsel appearing for the respective parties, learned Additional Sessions Judge delivered the impugned judgment giving rise to file the present appeal. 4.0 Heard learned Counsel for the appellants, Mr.Pravin Gondaliya and learned APP, Mr.H.L. Jani for the State. 4.1 It has been mainly argued by the learned counsel for the appellants, Mr.Gondaliya that as there was enmity between the family members of the deceased and the appellants, the present appellants have been falsely implicated into crime in question. 4.2 Mr.Gondaliya has also argued that as the family members of the complainant were involved in bootlegging activities and as the appellants were informing the Police regarding their bootlegging activities, the CR.A/519/2000 8/20 JUDGMENT present appellants have been falsely implicated into the crime in question. 4.3 It is argued that here in this case, no independent witnesses have been examined by the prosecution, who support the say of the prosecution as the incident has taken place in a thickly populated area having shops situated very near to the scene of offence. However, the prosecution has relied upon only two interested witnesses, who are the nearest relatives of the deceased i.e. the mother and brother respectively of the deceased. 4.4 He has also raised doubt regarding the presence of both the witnesses at the time of incident. It is argued that out of five knives, only one knife seized from the place of offence bears blood stain, however, other four knives do not bear any blood stain. 4.5 Mr.Gondaliya has raised dispute regarding the discovery panchnama and submitted that even panchas have not supported the say of the prosecution. 4.6 Mr.Gondaliya has, therefore, urged that appeal deserves to be allowed and the judgment and order of conviction and sentence as pronounced by the learned trial Judge requires to be set aside. 5.0 Mr.H.L. Jani, learned Additional Public Prosecutor, who appears on behalf of the respondent-State has taken us through the CR.A/519/2000 9/20 JUDGMENT reasoning part of the impugned judgment and evidence of witnesses, upon which, reliance has been placed by the learned counsel for the appellants. 5.1 It is submitted by Mr.Jani that it is true that in this case, only two witnesses have been examined as independent witnesses and merely because of the fact that the witnesses, who are the shop keepers situated very near the scene of offence, have not supported the say of the prosecution, only on that ground, evidence of other witnesses cannot be discarded. 5.2 It is submitted that it is true that both the witnesses are the interested witnesses and they are the nearest relative of the deceased, but merely on that ground, their evidence cannot be discarded. What is required to be done is that their evidence is required to be scrutinized minutely and after minutely evaluation, if the Court finds that their evidence is trustworthy, free from all doubts and reliable then, the Court can certainly rely upon the same and convict the accused even on the basis of evidence of relative witnesses. 5.3 He has also further submitted that the complainant, deceased and one Manoj all were coming towards bridge, at that time, the present appellants were sitting very near to CR.A/519/2000 10/20 JUDGMENT the bridge and when they saw the deceased, they rushed towards him and, hence, to save himself, he tried to run away, but he could not succeed and accused caught hold of him and assaulted him with deadly weapons. 5.4 According to Mr.Jani, both the witnesses have seen the offence and have deposed the same before the Court also. Mr.Jani has also submitted that Girish and Suresh both were coming from the market and out of two, only Girish has been examined while Suresh has not been examined. According to him, on a particular aspect, two witnesses are not required to be examined as it is nothing but a repetition of the oral evidence and, therefore, according to him, the prosecution has rightly not examined the other witness. 5.5 It is submitted that there is no evidence on record to establish that there was enmity between the family members of the deceased and the appellants and the deceased was bootlegger. It is submitted that merely asking certain question in cross-examination does not sufficient, but there should be some evidence to establish the version of the accused. 5.6 In this case, one young boy aged about 21 years has been brutally killed in front of his mother and younger brother and nobody could do anything. After taking us through CR.A/519/2000 11/20 JUDGMENT the P.M. Note and the oral evidence of doctor, it is submitted that 11 injuries were found on the body of the deceased that too also on vital parts and, therefore, the intention of the appellants is very clear. They were waiting for the arrival of the deceased along with the deadly weapons in their hands and on arrival, they chased, caught hold of him and brutally assaulted him and, hence, Court should not show any sympathy towards any of the accused. 5.7 Lastly, Mr.Jani has drawn our attention that the accused were the members of an unlawful assembly from the very beginning till the end and, therefore, individual act of the particular accused is not required to be kept in mind. Learned APP, Mr.H.L. Jani, vehemently contended that the appeal does not merit any consideration and requires to be dismissed. 6.0 We have gone through the oral as well as documentary evidence and the reasoned judgment delivered by the Court below shown to us by the learned counsel for the respective parties. 6.1 Before we proceed further with the matter, it is required to be noted that the followings facts are undisputed and proved beyond reasonable doubt i.e. the accused, deceased and the eye witnesses (P.W.Nos.4 & 5) were CR.A/519/2000 12/20 JUDGMENT staying in same locality since their child hood, they are knowing each other from the very beginning and they had terms to visit the house of each other. 6.2 It is required to be noted that to prove the guilt against the accused, the prosecution examined in all 24 witnesses, out of which, following witnesses have not supported the case of the prosecution namely, P.W.No.3 viz., Gautambhai Babulal Rathod (Panch Witness of discovery panchnama of accused no.1) at Ex.22, P.W.No.6 viz., Rajkumar Savaldas Hinduja (Panch Witness of panchnama of scene of offence) at Exh.37, P.W.No.7 viz., Bakulkumar Gokaldas Sheth (Panch Witness of panchnama of scene of offence) at Exh.38, P.W.No.8 viz., Jayantibhai Manubhai (Panch Witness of arrest panchnama of accused nos.1 and 2) at Exh.39, P.W.No.9 viz., Anvarbhai Bachubhai (Panch Witness of arrest panchnama of accused nos.1 and 2) at Exh.40, P.W.No.10 viz., Suleman Osmanbhai (Panch Witness of arrest panchnama of accused nos.3, 4, and 5) at Exh.41, P.W.No.11 viz., Dipak Bachubhai (Panch Witness of discovery panchnama of accused nos.3, 4 and 5) at Exh.42, P.W.No.12 viz., Dharamdas Jametram (this witness having shop very near to the scene of offence) at Exh.43, P.W.No.13 viz., Bhikhubhai Tapubhai (this witness having shop CR.A/519/2000 13/20 JUDGMENT very near the scene of offence) at Exh.44 and P.W.No.16 viz., Balvantsinh Merambhai (Panch of discovery panchnama) at Exh.58. 6.3 Now, following witnesses support the say of the prosecution namely P.W.No.1 viz., Dr.Manishbhai Ishwarlal (this witness has done medical examination of accused no.1) at Exh.14, P.W.No.2 viz., Dr.Hashmukhbhai Vallabhbhai Hakhaja (this witness has done medical examination of accused nos.1 and 2) at Exh.16, P.W.No.4 viz., Premben Mepabhai (complainant) at Exh.29, P.W.No.5 viz., Girishbhai Mepabhai Chauhan (witness of incident and brother of the deceased and son of the complainant) at Exh.30, P.W.No.15 viz., Nirmalsinh Natubha Gohel (Circle Inspector, who prepared the map scene of offence on the basis of panchnama of scene of offence, P.W.No.17 viz., Jitendra Dahyabhai Sharma (Police Constable, who was discharging his duty at Keshar Hind Pool (bridge) and who went to the scene of offence and informed the control room) at Exh.59, P.W.No.18 viz., Somajibhai Khatarajibhai (P.S.O., who recorded the complaint given by the complainant) at Exh.60, P.W.No.19 viz., Devaljibhai Majibhai (Police Head Constable, who collected the clothes of the deceased) at Exh.64, P.W.No.20 viz., Kanuji Bhavanji (Unarmed Police Constable, who after CR.A/519/2000 14/20 JUDGMENT receiving the telephonic message from the control room, recorded Station Diary Entry No.17/1998) at Exh.67, P.W.No.21 viz., Dr.Khimjibhai Dudabhai Makvana (Medical Officer, who took saliva and blood sample of the accused) at Exh.72, P.W.No.22 viz., Dr.Bhartiben Navinbhai Upadhyay (Medical Officer, who performed the postmortem of the deceased) at Exh.75, P.W.No.23 viz., Asarafilal Babulal Yadav (Investigating Officer) at Exh.85 and P.W.No.24 viz., Ramsinh Balusinh Chauhan (Investigating Officer, who investigated the matter) at Exh.101. 6.4 It is required to be noted that as mentioned above, the prosecution has examined only two eye witnesses i.e. the P.W.Nos.4 and 5 viz., Premben and Girishbhai respectively. It is required to be noted that both the witnesses claimed themselves to be eye witnesses. They have categorically deposed before the Court and stated in the FIR that both these witnesses, the deceased and one Manoj had gone to Civil Hospital to inquire about the health of Umi (daughter of her son viz., Mohan) and while returning at about 7 o'clock, when they reached very near to Keshari Hind Pool (bridge), they saw that the accused were sitting there and after seeing the deceased, they rushed towards deceased CR.A/519/2000 15/20 JUDGMENT and, hence, the deceased tried to escape, but he could not do it and accused caught hold of him and assaulted him with deadly weapons and ultimately, he succumbed to the injuries. 6.5 Both these witnesses have categorically deposed that these witnesses and the appellants-accused are the neighbours and staying in the same vicinity since their child hood and are knowing each other and they have also terms to visit the house of each other. They have also deposed that it was 7:00 p.m. and the appellants-accused rushed towards the deceased, chased him, assaulted with deadly weapons and brutally killed the deceased and, thereafter, ray away towards Haji river. They have identified the appellants-accused with their names before the Court and in their evidence, they have categorically narrated the role played by each accused along with the knife in their hands and clothes worn by them. They have been throughly cross-examined by the other side before the Court below. 6.6 Main defence of the learned counsel for the appellants is that as the witnesses and the deceased were indulging in a bootlegging activities and as the appellants were informing the Police regarding the same, the accused have been falsely implicated into crime in question. They have also tried to CR.A/519/2000 16/20 JUDGMENT cross-examined these witnesses to the effect that they were not the witnesses of incident, but got up ones. Except that, there is no other aspect, which has been challenged by the other side. 6.7 It is required to be noted that both these witnesses are the mother and younger brother of the deceased and they are the nearest relatives of the deceased and, therefore, upto certain extent, they may be said to be interested witnesses. Law on this point of very clear that merely because they are interested witnesses being relation of the deceased, their evidence cannot be discarded. What is required to be done is to evaluate their evidence minutely and carefully and after doing so, if the Court come to a conclusion that their evidence is trustworthy, free from all doubts and reliable, conviction can be based on their evidence. 6.8 We have evaluated their evidence keeping in mind the above aspect of the matter and found that their evidence are trustworthy and reliable and their presence at the time of incident is also natural one. Aprt from that, other side could not point out any aspect of the matter, which turtle their evidence and their presence. Once it has been established that the time was 7 p.m. in the month of CR.A/519/2000 17/20 JUDGMENT July, they all were together at the time of incident and they identified the accused as they know each other since long, therefore, whatever they have deposed before the Court is required to be accepted. Over and above, in the cross-examination, nothing contrary has come on record so as to weaken their evidence. Premben herself has given the complaint on the spot to the officer concerned giving detailed account with name and role of each accused and, therefore, question of delay in filing the FIR or concoction of the same may not be arisen at all and said fact is also supported by way of evidence police officer, who recorded the complaint and deposed the same before the Court. 6.9 It is required to be noted that the appellants are the members of an unlawful assembly and facing charge under Sections 143, 147, 148 and 149 of the Indian Penal Code and, therefore, once it has been established that they are the members of an unlawful assembly and they have acted in such a manner and remained continued as members of unlawful assembly till the end then, their individual act is not required to be kept in mind. It is established from the above referred two witnesses that they were sitting there for the arrival of the deceased and his CR.A/519/2000 18/20 JUDGMENT family members along with deadly weapons and immediately on arrival, they rushed towards the deceased, caught hold of him, assaulted and killed him brutally and said fact is also established beyond reasonable doubt. 6.10 It is required to be noted that the muddamal knifes have been voluntarily produced by four accused by way of panchnama u/s. 27 of the Indian Evidence Act and same has been proved by the prosecution by way of oral evidence of Police Officer. It is true that the panchas have not supported the say of the prosecution, but the signatures are not disputed by the panch witnesses and same has been proved by the Police Officers. It is required to be noted that the Police Officers and Medical Officer, who deposed as witnesses in the Court came in contact with this incident as part of their duties and, therefore, they being independent witnesses, whatever they have deposed before the Court are required to be believed. It is required to be noted that the weapons seized by way of 27 panchnama do not bear any blood stain. However, it appears that same has been produced voluntarily by the accused with a particular intention to mislead the investigation at the initial stage and they were successfully able to do the same. Apart from the above, even motive in the commission CR.A/519/2000 19/20 JUDGMENT of offence has also been proved by the prosecution beyond doubt. 7.0 In view of the above, since there is no substance in any of the arguments advance by the learned counsel for the appellant- accused, this appeal is required to be dismissed. 7.1 As far as the aspect of homicidal death is concerned, same has been proved by the prosecution by way of inquest panchnama at Exh.47 and P.M.Note at Exh.78 and the oral evidence of Dr.Bhartiben Navinbhai (P.W.No.22, Exh.75), who has performed the postmortem on the dead body of the deceased. She has categorically deposed before the Court that the injuries received by the deceased on the vital parts of the body are anti-mortem injuries and are possible by way of muddamal knife and are sufficient to cause death of the deceased. However, since said fact has not been disputed by the learned counsel for the respective parties, we are not repeating the same and we do not find any error on part of the trial Court in coming to the conclusion that the death of deceased was homicidal. 7.2 We are in complete agreement with the reasoning given by and the conclusion arrived at by the Learned additional Sessions Judge. 8.0 The appeal is dismissed. CR.A/519/2000 20/20 JUDGMENT 8.1 Record & Proceedings are ordered to be sent back. Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil