IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 916 of 1995 with CRIMINAL APPEAL No 722 of 1995 with CRIMINAL APPEAL No 773 of 1995 with CRIMINAL APPEAL No 840 of 1995 with CRIMINAL APPEAL NO.852 OF 1995 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- AMRIKSING Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 916 of 1995 MR AD SHAH for the appellant Mr.A.J. Desai, APP, for Respondent No. 1 2. Criminal Appeal No. 722 of 1995 MR AD SHAH for the appellant Mr. A.J. Desai, APP, for Respondent No. 1 3. Criminal Appeal No. 773 of 1995 MR JM PANCHAL for the appellant Mr. A.J. Desai, APP, for Respondent No. 1 4. Criminal Appeal No. 840 of 1995 Mr.B.C. Dave, with MR YN OZA for the appellant Mr. A.J. Desai, APP, for Respondent No. 1 5. Criminal Appeal No.852 of 1995 Mr.H.N. Zhala for the appellant Mr. A.J. Desai, APP, for the respondent -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE H.H.MEHTA Date of decision: __/07/2003 C.A.V. [COMMON] JUDGEMENT (Per : MR.JUSTICE M.H.KADRI) 1. Five Criminal Appeals, details of which are listed hereinbelow, are filed by the original accused Nos. 1 to 6 challenging their conviction under Sections 143, 147, 148, 149 and 302 of the Indian Penal Code ("IPC" for short) and the sentence imposed on each of them of R.I. for life and fine of Rs.1000 each in default R.I. for three months, recorded by the learned Additional City Sessions Judge, Court No.17, City Civil Court, Ahmedabad, by judgment and order dated July 20, 1995, in Sessions Case No.322 of 1994. -------------------------------------------------------- Sr. Appeal Number Name of the Appellants No. --------------------------------------------------------- 1. Criminal Appeal Dharmendrasing No.722 of 1995 Harbhajansing [Accused No.4] 2. Criminal Appeal Avdheshsing Alias No.773 of 1995 Raju Devendrasing No.773 of 1995 Raju Diwansing Rajusing Alias Rajendra Raghuvirsing Bhadoriya (Accused No.6] 3. Criminal Appeal Jitendrasing Alias No.840 of 1995 Jitu Markendesing [Accused No.2] 4. Criminal Appeal No. Dilipkumar Nihalchand 852 of 1995 [Accused No.5] 5. Criminal Appeal Amriksing Alias No.916 of 1995 Bittu Harbhajansing Sikh [Accused No.1] ------------------------------------------------------- 2. Briefly stated, the prosecution case is as under: P.W.1, Mukeshkumar Kruparam, [hereinafter referred to as 'the complainant' for the sake of brevity], was residing in Bungalow No.39, Shiv Narayan Society, Meghaninagar, Ahmedabad. The complainant was residing in the said house along with his parents, wife, sister and younger brother, Dineshkumar Kruparam. At the time of the incident, which took lace on June 6, 1994, the complainant was studying in S.Y.B.Com. and was also serving in a firm called J.D. Electronics. The younger brother, Dineshkumar Kruparam, was serving in a private security company and was posted at the Ahmedabad Airport. The duty hours of Dineshkumar were from 11 p.m. to 8 a.m. The duty hours of the complainant were from 10 a.m. to 9 p.m. On June 6, 1994, the complainant had returned from his job and, after taking his dinner, he was relaxing on the otla of his house. Around 10.45 p.m. Dineshkumar was preparing to leave to attend his duty at the Airport. Dineshkumar after getting ready was about to leave the house, and, at that time, the complainant had gone inside the house to take a glass of water. When the complainant had gone inside the house to drink water, he had heard shouts "Bachao, Bachao " [save - save]. On hearing the shouts, the complainant had come out from the house and had seen that the accused No.1, who was armed with a sword, the accused No.2, who was armed with a knife, one Sardarji who was carrying a hockey stick, the accused No.5, who was armed with a dharia, and accused No.6, Rajendra Raghuvirsing Bhadoriya, who was armed with a knife, were inflicting blows with their respective weapons on various parts of the body of Dineshkumar. The complainant had also raised shouts and, on hearing the shouts, his mother, wife, one Murarilal Gupta, who was residing in the neighbourhood, Nileshsinh and other five to six persons had rushed to the place of the incident. The appellants had, after beating Dineshkumar, fled away on a Hero Honda Motor-cycle and a scooter towards Meghaninagar carrying with them their respective weapons. Dineshkumar was seriously injured and was bleeding profusely. An auto-rickshaw was called and Dineshkumar was taken in the auto-rickshaw to the Civil Hospital. In the said auto-rickshaw, the complainant, his wife, and one Bhimjibhai Panchal had accompanied Dineshkumar to the hospital. The Doctor on duty at the Civil Hospital, on examination of Dineshkumar, had declared him dead. The record indicates that wardhi was sent by the duty Constable present at the Civil Hospital to Meghaninagar Police Station. On receiving the wardhi at 0.30 hrs on June 7, 1994, PSI, B.J. Sadavrat of Meghaninagar Police Station had gone to the Civil Hospital and recorded the complaint of the complainant. The said complaint was sent to Meghaninagar Police Station for registering offence against the appellants. The complaint was registered at CR. No.I-124 of 1994 of Meghaninagar Police Station against the appellants for the offences punishable under Sections 143, 147, 148, 149, 302 read with Section 34 of the IPC. The appellant, original accused No.1, Amriksing, had sustained injury on his left palm. P.W.7, Dr. Dinesh Thakkar, Casulty Medical Officer at Civil Hospital, Ahmedabad, had examined the accused No.1 at 11.45 p.m. on June 6, 1994. The medico-legal certificate with regard to the injuries sustained by the accused No.1, Amriksing, was produced by the prosecution on the record of the case at Exh.36. Investigation of the above crime was handed over to P.I. P.S. Pande. P.I. Pande had held inquest of the dead body of the deceased Dineshkumar. After holding the inquest, the dead body of the deceased Dineshkumar was sent for post-mortem. P.W.4, Dr. V.V.Patil, of B.J. Medical College, Ahmedabad, had performed post-mortem of the dead body of the deceased Dineshkumar. P.I.Pande had recorded statements of Bhimjibhai Panchal at the Civil Hospital in the early morning hours of June 7, 1994. P.I. Pande, had drawn a panchanama of scene of offence between 7 a.m. and 8 a.m. and had thereafter recorded statements of the witnesses residing in the neighbourhood of the complainant. The appellant of Criminal Appeal No.916 of 1995, Amriksing, original accused No.1, was arrested on June 7, 1994 under an arrest panchanama and a panchanama of his physical condition was also drawn. The clothes put on by the appellant Amriksing were seized under a panchanama. The clothes of the deceased Dineshkumar, after the autopsy was completed, were seized under a panchanama. On June 10, 1994, the appellant of Criminal Appeal No.840 of 1995, Jitendrasing, original accused No.2 and the appellant No.1 of Criminal Appeal No.773 of 1995, Avadheshsing, original accused No.3, were arrested. The accused Nos. 1, 2 and 3 while in custody had shown their willingness to show the place where they had hidden the weapons used by them for inflicting the injuries on the deceased. A discovery panchanama was drawn and, in the presence of the panchas, muddamal sword, iron-pipe and knife were recovered under a joint panchanama. On July 15, 1994, the appellant of Criminal Appeal No.722 of 1995, Dharmendrasing Harbhajansing, original accused No.4, had presented himself with the muddamal hockey stick before the Investigating officer and the said accused was arrested and a panchanama of seizure of hockey stick was drawn. On July 24, 1994, appellant of Criminal Appeal No.852 of 1995, Dilipkumar Nihalchand, original accused No.5, was arrested. During custody, the accused No.5 had shown his willingness to produce muddamal dharia used by him in the commission of the crime which was discovered under a panchanama. On August 25, 1994, the appellant No.2 of Criminal Appeal No.773 of 1995, Rajendra Reghuvirsing Bhadoriya, original accused No.6, was arrested and from his possession, muddamal knife was recovered under a panchanama. All the incriminating articles and the clothes of the deceased as well as accused persons were sent to the Forensic Science Laboratory ('FSL' for short) for analysis. On receipt of the report from the FSL, and after collecting the post-mortem notes, chargesheet for the offences punishable under Sections 143, 147, 148, 149, 302 read with 34 of the IPC and under Section 135(1) of the Bombay Police Act was submitted by P.I. Pande in the Court of the learned Metropolitan Magistrate, Court No.11, Ahmedabad, on August 31, 1994, which came to be registered as Criminal Case No.1363 of 1994. As the offence under Section 302 of the IPC is exclusively triable by Court of Sessions, the learned Metropolitan Magistrate, Court No.11, Ahmedabad, by order dated October 12, 1994, had committed the case to the Court of Sessions, Ahmedabad City, where it came to be numbered as Sessions Case No.322 of 1994. 3. Charge Exh.1 was framed against the appellants for the offences punishable under Sections 143, 147, 148, 302 read with 149 of the IPC and under Section 135(1) of the Bombay Police Act. The charge was read over and explained to the appellants wherein they pleaded not guilty and claimed to be tried. The prosecution, in order to prove the charge framed against the appellants, had examined: (1) P.W.1, Mukeshkumar Kruparam, complainant, at Exh.16; (2) P.W.2, Morarilal Ramlal Gupta, eye-witness, at Exh.17; (3) P.W.3, Jagjivandas Harilal Harivar, eye-witness, at Exh.20; (4) P.W.4, Dr. Vinayakrao Vasudevrao Patil, Medical Officer, B.J. Medical College, Ahmedabad, at Exh.22; (5) P.W.5, Nileshsinh Ranvirsinh, eye-witness, at Exh.24; (6) P.W.6, Sunil Vishnurao, panch, at Exh.33; (7) P.W.7, Dr. Dinesh Natvarlal Thakkar, Medical Officer, Civil Hospital, Ahmedabad, at Exh.35; (8) P.W.8, Hareshbhai Babulal Shah, panch, at Exh.37; (9) P.W.9, PSI, Bhanjibhai Jivanbhai Sadavrat, at Exh.39; (10) P.W.10, Ashokkumar Vikramsinh, panch, at Exh.44; and (11) P.W.11, PI, Parmeshwarprasad Sarvejit Pande, at Exh.46. The prosecution had also produced documentary evidence such as post-mortem notes at Exh.23, inquest panchanama at Exh.26, panchanama of seizure of scooter No.GVA 9372 at Exh.27, panchanama of seizure of Hero Honda Motor-cycler No.GJ-1-E-7282 at Exh.28, forwarding letter sent along with incriminating articles to the FSL at Exh.29, receipt of the FSL at Exh.30, forwarding letter sent to the FSL along with muddamal clothes of the deceased and the appellants at Exh.31, report of the FSL at Exh.32, joint discovery panchanama of discovery of knife, iron pipe and sword at Exh.34; panchanama of place of incident at Exh.38, wardhi sent from the Civil Hospital to Meghaninagar Police Station at Exh.40, First Information Report lodged by the complainant at Exh.41, discovery panchanama of dharia at the instance of the accused No.5 at Exh.45, panchanama of seizure of clothes of the appellant, Amriksing, at Exh.47, etc. to prove the case against the appellants. 4. After the evidence of the prosecution was over, the appellants were questioned generally and their statements came to be recorded under Section 313 of the Code of Criminal Procedure. The appellant of Criminal Appeal No.916 of 1995, Amriksing, original accused No.1, in his further statement, had admitted that he had sustained injury on his hand, but, he had stated that he was beaten up in the evening of June 6, 1994. That, the witnesses were deposing falsely and a concocted case was filed against them. However, no witness in defence was examined by the appellants. The defence of the appellants was of general denial. 5. The learned Additional City Sessions Judge, Court No.17, City Civil Court, Ahmedabad, on appreciation of oral as well as documentary evidence and the arguments advanced by the learned Additional Public Prosecutor and the learned advocates for the appellants, written submissions, and the written memorandum of arguments submitted by the learned counsel for the appellant, Amriksing, original accused No.1, held that: (i) The prosecution had proved beyond doubt that on June 6, 1994, near Vidyanagar Society and Shiv Narayan Society, situated within the local limits of Meghaninagar Police Station, Ahmedabad City, at about 22.45 hrs., all the appellants-accused had formed an unlawful assembly with a common object of committing murder of deceased Dinesh Kruparam. (ii) The prosecution had proved beyond doubt that on the aforesaid date, time and place, all the appellants-accused were armed with deadly weapons and had committed the offence of rioting to fulfil their common object of committing the murder of deceased Dinesh Kruparam. (iii) The prosecution had proved beyond doubt that on the aforesaid date, time and place, all the appellants-accused had committed the murder of deceased Dinesh Kruparam. (iv) The prosecution had failed to prove that the appellants by keeping with them deadly weapons in their possession, had committed breach of the Notification issued under Section 37(1) of the Bombay Police Act. (iv) The learned Additional Sessions Judge, ultimately, held that the prosecution had proved beyond doubt that all the appellants-accused had committed offences punishable under Sections 143, 147, 148, 149 and 302 of the IPC. On the basis of the abovereferred to conclusions, the learned Additional Sessions Judge has convicted the appellants under Section 302 read with Section 149 of the IPC and sentenced each of them to undergo R.I. for life and fine of Rs.1000 each, in default R.I. for three months, which has given rise to filing of the Five Appeals by the appellants. 6. Learned advocates M/s. A.D.Shah, J.M. Panchal, B.C.Dave, H.N. Zala, and the learned Additional Public Prosecutor, Mr. A.J. Desai, have taken us through the entire record and proceedings of the Sessions case. We have minutely gone through the entire oral as well as documentary evidence with a view to reappreciate it. 7. Learned advocate Mr. A.D. Shah appearing for accused Nos. 1 and 4, has submitted that: (i) The witnesses, who had posed as eye-witnesses, were highly interested and their presence at the place of the incident was doubtful. (ii) Though the statements of the auto-rickshaw driver who had carried injured Dineshkumar to the Civil Hospital, and Bhimjibhai Panchal who had accompanied the injured Dineshkumar as well as the complainant, P.W.1, Mukeshkumar Kruparam, and other persons to the Civil Hospital, were recorded immediately, but they were not examined by the prosecution at the trial and, therefore, an adverse inference is required to be drawn against the prosecution. (iii) As per the panchanama of the place of the incident, the incident had taken place 35 feet away from the residence of the complainant where no light was there and it was a complete dark night and the eye-witnesses could not have witnessed the entire incident wherein six persons armed with deadly weapons had caused as many as 15 injuries on the deceased, Dineshkumar. Admittedly, the witnesses had also deposed that there was no street light in Shivnarayan Society and, therefore, it was not possible for them to have witnessed the incident. (iv) The registration numbers of the two vehicles, namely, Hero Honda motor-cycle and Scooter, were not mentioned in the First Information Report, which indicated that there was no sufficient light at the place of the incident wherein the complainant and other witnesses could have seen the registration numbers of the two vehicles on which the assailants had fled along with their respective weapons from the scene of the offence. (v) None of the witnesses examined by the prosecution had referred to overt act of any of the accused, but only an omnibus statement was made by the witnesses that all the accused persons with deadly weapons carried by them had inflicted blows on various parts of the body of the deceased, Dineshkumar. (vi) The presence of the original accused No.2, Jitendrasing, and the original accused No.4, Dharmendrasing, was highly doubtful at the place of the incident and no injuries were noticed in the post-mortem notes, which could have been caused by the hard and blunt substances, namely, iron pipe and hockey stick, which weapons were attributed to the original accused No.2, Jitendrasing, and the original accused No.4, Dharmendrasing. It is, therefore, submitted that the medical evidence had ruled out the participation of the original accused No.2, Jitendrasing, and the original accused No.4, Dharmendrasing, in the commission of the crime; (vii) In wardhi at Exh.40, which was treated as First Information Report sent by the Police Constable, Udaysing, from the Civil Hospital to Meghaninagar Police Station, the name of only Amriksing was mentioned and it was mentioned that Amriksing along with other five to six persons had launched attack with sword, hockey stick, dharia, pipe and knives on the deceased, Dineshkumar. The complaint, which was lodged by the complainant, at 1.30 a.m. on June 7, 1994, was filed after deliberation wherein the names of accused No.1, Amriksing, accused No.5, Dilipkumar, and accused No.3, Avdheshsing were only mentioned, whereas the accused No.4 was only described as 'Sardarji' carrying a hockey stick and another unknown person, aged about 22 years, who was carrying a knife, were mentioned. The accused No.4, who was described as Sardarji, is the real brother of the accused No.1, Amriksing, which was very well known to the complainant, Mukeshkumar and, therefore, non-mentioning of his name in the complaint at Exh.41 also raises a serious doubt about the presence of the accused No.4 at the time of the commission of the crime. (viii) There was no motive on the part of the appellants to commit the murder of the deceased Dineshkumar. At the most, it can be said that there was an enmity between the accused No.1, Amriksing,and the complainant, Mukeshkumar and, therefore, there was no question of attributing any motive on the part of the appellants to commit the murder of deceased Dineshkumar. 8. Learned advocate, Mr.J.M. Panchal, appearing for the original accused Nos. 3 and 6, has submitted: (i) That, the evidence of the so-called eye-witnesses was inconsistent and there were serious infirmities in their evidence and all the eye-witnesses were friends of the complainant and, therefore, their evidence is required to be closely scrutinized. (ii) That, one Dhama Sindhi was a friend of accused No.1, Amriksing, whereas one Dinesh Sharma was a friend of the complainant, Mukeshkumar, who had taken the side of one Bharat Tekchand Sindhi, where the deceased Dineshkumar had never figured and, therefore, there was no reason to kill or launch an attack on the deceased Dineshkumar, because, at the most, the appellants had a grudge against the complainant, Mukeshkumar, and Dinesh Sharma or Bharat Tekchand Sindhi. (iii) That, this was a case of blind murder wherein nobody had witnessed the occurrence as it was a dark night and it was the Monday of Vaishakh Vad Baras which was equivalent to June 6, 1994, when it was a near Amavas ('new moon') (iv) That, as per the report of the FSL, at Exh.32, on the clothes of the deceased, the blood of 'AB' group was detected and, therefore, the blood-group of the deceased was 'AB'. That, the blood group of the accused No.1, Amriksing, was, admittedly, 'O". That, finger, which was found from the place of the incident, which was said to be chopped finger of the deceased, was having blood group 'A'. That, the blood group detected on the broken hockey stick which was found from the place of the incident and which was sent for analysis to the FSL, was of 'A' group which was also not of the deceased or the accused No.1. That, the report of the FSL, at Exh.32, raises serious doubt about the occurrence of the incident as deposed by the witnesses. That, as per the report of the FSL, at Exh.32, from the place of the incident, blood of group "A" was found which was not of the deceased. That, on the chappals which were of the deceased found from the place of the incident, blood of group "A" was detected which was not of the od deceased. Thus, the report of the FSL, at Exh.32, which was relied upon by the prosecution as a corroborative piece of evidence, completely belies the version of the witnesses examined by the prosecution with regard to the incident which had taken place near the house of the complainant, Mukeshkumar. (v) That, the complainant and other eye-witnesses were suppressing the genesis of the incident and it was highly doubtful whether the incident had taken place as deposed by the complainant and other witnesses. (vi) That, the joint discovery panchanama at the instance of the accused Nos, 1, 2 and 3, with regard to discovery of pipe, knife, and sword, was inadmissible, because it was a joint discovery panchanama, wherein, it was not stated which of the three accused had made what statement before the panchas and the Investigating Officer. It is further submitted that as per the decision of the Supreme Court in the case of Mohd. Abdul Hafeez vs. State of Andhra Pradesh, reported in AIR 1983 Supreme Court 367, a joint discovery panchanama of weapons without recording the words used by the accused and which of the accused had made what statement before the panchas, was illegal which had ultimately made the said panchanama inadmissible in evidence. (vii) That, the prosecution had utterly failed to explain the injuries of accused No.1. Amriksing, and a false attempt was made to explain the injuries by deposing that the accused No.1, Amriksing, had stated to other assailants that the victim was Dineshkumar and not Mukeshkumar, and, therefore, they should not inflict more blows on the victim and, saying so, he had put his hand to ward off the victim, Dineshkumar, and, while protecting the deceased, a blow of a weapon had fallen on his hand. That, if the blow was fallen on the hand, there could not have been injury on his palm and, therefore, the witnesses had deposed falsely in order to explain the injury sustained by Amriksing. (viii) That, the names of the accused were not mentioned in the wardhi at Exh.40 and the First Information Report lodged by the complainant. That, no descriptions of the unidentified assailants were also mentioned in the First Information Report and physical structure of the assailants and, in the absence of a test identification parade during the investigation, the identification of the accused for the first time in the Court was not admissible and permissible. The names of other accused persons were falsely mentioned at the belated stage after recording of the evidence of other witnesses and, therefore, the involvement of the accused No.2, Jitendrasing, accused No.4, Dharmendrasing, and accused No.6, Rajendrasing, was highly doubtful. (ix) That, the name of the accused No.6, Rajendrasing, though known to the complainant, was disclosed on June 8, 1994 and, therefore, the presence of the accused No.6, Rajendrasing, was also not proved beyond doubt. It is further submitted by the learned advocate for the appellants that the name of the accused No.6, Rajendrasing, was only disclosed after the statements of P.W.2, Morarilal Ramlal Gupta, and P.W.3, Jagjivandas Harilal Harivar, were recorded. It is further submitted by the learned advocate for the appellants that the accused No.6, Rajendrasing, was known to the complainant and both of them were serving together and, in spite of that fact, the complainant had not mentioned the name of the accused No.6 in the wardhi nor in the First Information Report lodged by him before P.W.9, PSI, Sadavrat. (x) That the conduct and behaviour of the witnesses examined by the prosecution was doubtful and it belied their presence at the scene of offence at the odd hour of 11 p.m. (xi) That, if the presence of the accused No.2, Jitendrasing, accused No.4, Dharmendrasing, and accused No.6, Rajendrasing, was doubtful at the place of the incident, no question of forming an unlawful assembly had arisen. Therefore, the conviction of the appellants under Section