CR.A/244/1999 1/35 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 244 OF 1999 WITH CRIMINAL APPEAL NO.577 OF 1999 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================= = 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 ? ========================================= = PAGI SOMAJI DHIRAJI Versus STATE OF GUJARAT ========================================= = Appearance : MR BS SUPEHIA for Appellant MR LB DABHI APP for Respondent ========================================= = CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED CR.A/244/1999 2/35 JUDGMENT Date : 23/09/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) [1] In all six accused came to be tried by learned Additional Sessions Judge, Sabarkantha, Camp at Modasa in Atrocity Case No.43 of 1996 for the offences punishable under Sections 302, 307, 324, 34, 147, 148 and 149 of the Indian Penal Code as well as under Section 3(10) of the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989 and under Section 135 of the Bombay Police Act, 1951. [2] Vide judgment and order dated 08.01.1999 impugned in both these appeals, accused No.1 Somaji Dhiraji Pagi came to be convicted by the trial Court for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment of life and to pay fine of Rs.500/-, in default, to undergo imprisonment of six months. Accused No.1 Somaji Dhiraji Pagi also came to be convicted for the offence punishable under Section 324 of the Indian Penal Code for causing injury to Hirabhai Virabhai and was sentenced to undergo six months imprisonment and to pay fine of Rs.200/-, in default, to undergo imprisonment of fifteen days. Accused No.2 Balaji Dhiraji Pagi came to be convicted for the offence punishable under Section 324 of the Indian Penal Code and was sentenced to undergo six months imprisonment and to pay fine of Rs.200/-, in default, to undergo imprisonment of fifteen days. Accused No.3 Pratapji Somaji Pagi, CR.A/244/1999 3/35 JUDGMENT accused No.4 Galaji alias Amrutji Balaji, accused No.5 Bhuraji Khatuji Pagi and accused No.6 Babubhai Khatubhai Parmar came to be acquitted by the trial Court for the charges levelled against them. Accused No.1 Somaji Dhiraji Pagi and accused No.2 Balaji Dhiraji Pagi also came to be acquitted by the trial Court for the offences punishable under Sections 307, 34, 147, 148 and 149 of the Indian Penal Code as well as under the charges levelled against them, under the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989 and under Bombay Police Act. [3] Being aggrieved by the abovesaid judgment and order, original accused No.1 Somaji Dhiraji Pagi preferred Criminal Appeal No.244 of 1999 before this Court under Section 374 of the Code of Criminal Procedure against his conviction and sentence as aforesaid. [4] The State also aggrieved by the order of acquittal passed by the trial Court in the impugned judgment, preferred Criminal Appeal No.577 of 1999 against the acquittal of accused No.3 Pratapji Somaji Pagi, accused No.4 Galaji alias Amrutji Balaji, accused No.5 Bhuraji Khatuji Pagi and accused No.6 Babubhai Khatubhai Parmar under Section 378(1)(3) of the Code of Criminal Procedure. [5] However, accused No.2 Balaji Dhiraji Pagi has not CR.A/244/1999 4/35 JUDGMENT preferred any appeal against his conviction under Section 324 of the Indian Penal Code nor the State has preferred any appeal against the accused No.2 Balaji Dhiraji Pagi for his acquittal by the trial Court, as aforesaid. [6] Both the appeals are admitted and appellant in Criminal Appeal No.244 of 1999 i.e. accused No.1 Somaji Dhiraji Pagi is released on bail by this Court vide order dated 29.03.2004 in Criminal Misc. Application No.2290 of 2004. On that day, he had already undergone about five years sentence. [7] Since both the appeals have arisen from the same judgment and order, were tagged together and heard together. [8] As per the prosecution case, the incident took place on 08.03.1996 at about 17.00 hours and complaint of which was offered by P.W. Ramaji Chhaganji Pagi before Sub Police Inspector of Malpur Police Station at about 22.00 hours, which was registered before Malpur Police Station at 23.30 hours. According to the case of the prosecution, on the day of the incident at Village : Choriwad, the village persons were celebrating festival of Holi and according to the custom and rituals, the persons of Village : Choriwad and other persons from nearby villages came to celebrate and prepare statue of scare-crow which was to be hanged and was to be lower down at about 5.00 p.m. and was to be dedicated and to CR.A/244/1999 5/35 JUDGMENT be immersed in water of pond of the village. Accordingly on that day, at about 6.00 p.m, the statue of scare-crow was devoted and dedicated in the water of the pond and while all the persons were returning and dispersing, at that time, Somaji Dhiraji, Balaji Dhiraji, Pratapji Somaji, Galaji alias Amrutji Balaji Pagi, Bhuraji Khatuji Pagi, Govind Hira Chamar etc. came and were standing at the place where statue was hanged and were talking amongst themselves. At that juncture, accused No.1 Somaji Dhiraji accosted Kohyaji Nathaji that why was he intervening when statue was getting down. Deceased Jagtaji Chhaganji thereupon, stated that they should keep peace and not to quarrel. Jagtaji started to come towards the accused No.1, in that process, accused No.2 Balaji Dhiraji caught hold of the deceased Jagtaji and accused No.1 inflicted a knife blow on the abdomen of Jagtaji. Therefore, Jagtaji had fallen down on the ground and he was seriously injured and was died on the spot. Kohyaji Nathaji attempted to intervene, was caught hold of by accused No.3 Pratapji Somaji and accused No.1 Somaji Dhiraji also caught hold of Kohyaji Nathaji and accused No.4 Galaji Balaji inflicted the stick blow on him. Accused No.2 Balaji Dhiraji inflicted a knife blow on the right lower side of Kohyaji Nathaji and Kohyaji Nathaji had also fallen down on the ground. While, complainant injured Ramaji Chhaganji was standing there, accused No.1 attacked him but P.W. Hirabhai Virabhai intervened and accused No.1 Somaji Dhiraji inflicted a knife blow on the forehead of Hirabhai Virabhai. Thereafter, all of them went CR.A/244/1999 6/35 JUDGMENT to Malpur Police Station and the complainant Ramaji Chhaganji offered his complaint, which was registered. Dr.Punambhai Kantilal Parmar, Medical Officer, C.H.C conducted postmortem of the deceased on the next day. On crime being registered, was investigated by P.W.3 – Mahavirsinh Sajubha Rana, the then P.S.I, who submitted the charge-sheet in the trial Court. The case was committed to Special Judge in Sessions Court and was made over to the trial Court. The charge was framed by the trial Court for the above said offences against all the accused on 20.12.1996 and all the accused pleaded not guilty. [9] Prosecution examined as many as thirteen witnesses. P.W.1 Ramaji Chhaganji Pagi Ex.52 P.W.2 Kohyabhai Nathabhai Pagi Ex.58 P.W.3 Bhemabhai Jagtabhai Pagi Ex.60 P.W.4 Chaturben Jagtaji Pagi Ex.61 P.W.5 Dr.Dineshbhai Babulal Patel Ex.62 P.W.6 Dr.Punambhai Kantilal Parmar Ex.66 P.W.7 Hirabhai Virabhai Chamar Ex.71 P.W.8 Ruvabhai Nagabhai Ex.72 P.W.9 Manubhai Dhulabhai Khant Ex.75 P.W.1 0 Keshaji Motiji Ex.77 P.W.1 1 Mashrubhai Bhemabhai Ex.80 P.W.1 2 Pradipsinh Madhusinh Ex.84 P.W.1 3 Mahavirsinh Sajubha Rana Ex.85 CR.A/244/1999 7/35 JUDGMENT [10] Prosecution also submitted on record documentary evidence to prove its case. On evidence being over, the accused were made aware of the evidence of the prosecution appearing against them and statement was recorded of each of the accused under Section 313 of the Code of Criminal Procedure. However, the defence of the accused was of total denial and it was stated by the accused that on account of enmity about the land which was cultivated by father of accused No.6 Babubhai Khatubhai Chamar, they were involved falsely in the case. While other accused took defence that for various enmities with the prosecution party, each of the accused was involved in a false case. [11] After hearing both the parties i.e. prosecution and defence, the learned trial Judge came to the abovesaid conclusion and hence, both these appeals. [12] Learned advocate Mr.Mr.B.S.Supehia for the appellant in Criminal Appeal No.244 of 1999 and for the respondents in Criminal Appeal No.577 of 1999 vehemently urged that there are contradictions in the evidence of the prosecution which lead to create doubt and, therefore, accused No.1 cannot be held liable for the offence punishable under Section 302 of the Indian Penal Code. It has been stated that all the witnesses are interested witnesses, though independent witnesses were available, no such witnesses were examined by the prosecution. It has been submitted that the CR.A/244/1999 8/35 JUDGMENT eye witnesses examined to prove the incident narrated the different story about the occurrence and, therefore, no case against the accused No.1 also could be believed. Learned advocate for the appellant extensively took us through the evidence recorded during the trial, thoroughly. Alternatively, it has also been submitted by the learned advocate for the appellant that what is revealed through the evidence indicates a sudden fight, various persons of village were present and according to the prosecution, the evidence of sudden fight erupted in which a knife blow on the stomach of the deceased might have been landed at the hands of the accused No.1, appellant herein. It is submitted that appellant cannot be attributed intention to inflict injuries penetrating and extending till the liver of the deceased in abdomen and there is no evidence that the accused No.1 had intended to cause such injury and, therefore, according to the learned advocate Mr.Supehia for the appellant, this is a clear case under exception 4 of Section 300 of the Indian Penal Code in respect of accused No.1, appellant herein and hence, no charge beyond reasonable doubt is proved under Section 302 of the Indian Penal Code against the accused No.1. [13] Learned APP Mr.L.B.Dabhi replying in Criminal Appeal No.244 of 1999 for the respondent – State and being appellant – State in Criminal Appeal No.577 of 1999 submitted that there are injured eye witnesses and the case against the accused No.1 is proved beyond doubt. It has been submitted that nothing could be CR.A/244/1999 9/35 JUDGMENT brought out in the evidence of the prosecution to disbelieve the prosecution witnesses at least to the extent that accused No.1 did not inflict a serious blow by knife on the abdomen of deceased Jagtaji which caused serious injuries to internal organs of the deceased and the liver was cut across. Our attention was drawn to the postmortem notes which is placed on record at Ex.68. It has been submitted that author of the blow is proved beyond doubt and the injury was in vital part which is proved by P.W.6 – Dr. Punambhai Kantilal Parmar and hence, by no stretch of reasoning, it could be said that accused No.1 had no intention to kill Jagtaji. No error has been committed by the trial Court in coming to the conclusion that the accused No.1 inflicted a knife blow on the abdomen of the deceased, intentionally and cause murder of Jagtaji. Learned APP submitted that only because of one blow, it could not be said that the act of the accused falls within the purview of Section 304 of the Indian Penal Code. The nature of the injuries and the circumstances in which the injury was caused, leads only conclusion that accused No.1 had inflicted the said injury which was sufficient in ordinary course of nature to cause death and, therefore, accused No.1 cannot be held liable for lessor offence as has been argued by the learned advocate for the appellant. In appeal against the acquittal, learned APP vehemently argued that the clear evidence indicates that the deceased was caught hold by accused Nos.3 to 6 and accused No.1 inflicted injury by knife. It has been vehemently submitted that conduct of all the accused was CR.A/244/1999 10/35 JUDGMENT such as to facilitate accused No.1 to inflict injury and, therefore, it was a clear case of common object between all the accused to kill Jagtaji and to inflict injuries to other injured persons. It has also been argued that alternatively, common intention also could be gathered from the conduct of the accused, as witnesses have stated to the extent that two accused caught hold of the deceased by two hands and injury was inflicted on the deceased. All the accused had gathered together, cornered the deceased and injured and inflicted injury which suggests common intention on the part of the accused Nos.2 to 6. If no common object learned APP had relied upon three decisions namely; [1] in the case of Hari Om Vs. State of U.P., reported in 1993 AIR S.C.W 666 and [2] in the case of Kishore Eknath Nikam Vs. State of Maharashtra, reported in AIR 2006 S.C.W. 6477. It has also been argued that if it is a sudden fight erupted on the spot, the common intention could have been formed at the time of the incident. It has been submitted that it could not be said that merely because of a sudden fight had erupted, no common intention can be attributed to the accused. Common intention can be formed at the spot of the incident. It has been submitted that the trial Judge has erred in this respect and come to the conclusion that there was no common intention on the part of the accused or no common object could be established by the prosecution. While in fact, common object alternatively common intention has been established by the evidence of eye witnesses. Therefore, it is, ultimately, submitted that after dismissing CR.A/244/1999 11/35 JUDGMENT Criminal Appeal No.244 of 1999, Criminal Appeal No.577 of 1999 filed by the State against the acquittal of accused Nos.3 to 6 be allowed and respondents therein i.e. accused Nos.3 to 6 be convicted for the offences punishable under Sections 302 and 324 r/w. Sections 148 and 149 in the alternative under Section 34 of the Indian Penal Code. [14] We have undertaken threadbare scrutiny of the evidence recorded during the trial and have gone through each corner of the record and proceedings. Complete and comprehensive appreciation and re-appreciation of all vital features of the case has been taken into consideration with reference to the broad and reasonable probabilities of the case. We have also considered the contentions raised by both the sides. [15] Re-appreciation of the evidence on record reveals that there are four eye witnesses of the incident and out of them, Kohyabhai Nathabhai and Hirabhai Virabhai, P.W.3 and P.W.7 are injured witnesses. Though for the injury caused to Kohyabhai Nathabhai, P.W.3, accused No.2 – Balaji Dhiraji was convicted for the offence punishable under Section 324 of the Indian Penal Code by the trial Court and was sentenced, but that conviction and sentence and his acquittal is not subject matter of any of these two appeals. However, Kohyabhai Nathabhai is an injured witness. CR.A/244/1999 12/35 JUDGMENT [16] P.W.1 – Ramaji Chhaganji Pagi, Ex.52, who is complainant and brother of the deceased stated that they were celebrating the festival of Holi, a statue of scare-crow was prepared and was taken down in the evening at about 5.00 p.m. and, thereafter, according to the custom and rituals, the said statue of scare-crow was to be devoted in the water for immersion in the nearby pond. That rituals already over, at that time Soma Dhira accused No.1, Balu Dhira accused No.2 and Bhuraji Khatuji accused No.5 stated that why was Kohya Natha, P.W.2 intervening, at the time statue was being taken down earlier and Bala Dhira accused No.2 inflicted a stick blow on the hand of Kohya Natha, at that time his brother deceased Jagtaji came running and stated that why were they quarreling. At that time accused No.2 – Balaji Dhiraji and accused No.3 – Pratapji Somaji caught hold of Jagtaji and accused No.1 – Somaji Dhiraji inflicted a serious knife blow in the abdomen of the deceased and his brother Jagtaji died on the spot. At that time, Kohyaji also came running and tried to intervene and he was caught hold by accused No.3 – Pratapji Somaji and accused No.1 – Somaji Dhiraji and accused No.2 Balaji Dhiraji inflicted a knife blow on the left lower side of the body of the Kohyaji. Thereafter also, Somaji Dhiraji, accused No.1 again attempted to attack this witness, at that time Hirabhai Virabhai intervened and, therefore, Somaji Dhiraji, accused No.1 inflicted a blow on the forehead of Hirabhai Virabhai. CR.A/244/1999 13/35 JUDGMENT P.W.2 – Kohyabhai Nathabhai stated that when accused and the complainant party were standing in Chowk after the ritual of dedication of statue was over, Somaji Dhiraji stated to Kohyabhai, the present witness that why was Kohyaji Nathaji was intervening. When the statue was being lower down? At that time, Pratapji Somaji inflicted a blow with stick upon this witness and seeing this, deceased Jagtaji uncle of this witness came, running at the spot and asked that why they were quarreling. According to this witness, at that time, Baluji Dhiraji, Pratapji Somaji, Amratji Balajim and Bhuraji Khatuji all the four caught hold of Jagtaji and then Somaji Dhimaji inflicted a knife blow on the deceased in the abdomen which caused fatal. According to this witness, he was away at a distance of 15 feet at that time and when he reached near Jagtaji, Balaji Dhiraji inflicted a knife blow on lower side of this witness. P.W.3 - Bhemabhai Jagtabhai Pagi, eye witness and son of deceased deposed that after all the ritual of the festival was over, accused No.1 accosted Kohyaji Nathaji and stated that why Kohyaji Nathaji was intervening when the statue was being lower down. Thereafter, when his father deceased Jagtaji was going to his house, accused No.5 – Bhuraji beckoned him and requested him to take pan. At that time, deceased asked Somaji Dhiraji that why were they quarreling. Upon that accused No.2 Balaji, accused No.3 Pratapji Somaji, accused No.4 Amratji Baluji and accused No.5 CR.A/244/1999 14/35 JUDGMENT Bhuraji Khatuji all of them caught hold of his father and Somaji Dhiraji, accused No.1 gave a blow of knife in the abdomen of his father and his father Jagtaji died on the spot. According to this witness, Kohyaji Nathaji tried to intervene and he was caught hold of by other five accused and Balaji Dhiraji inflicted a blow on the body of Kohyaji on left lower side of the abdomen. Thereafter, all the accused tried to attack this witness and when P.W. Hirabhai Virabhai tried to intervene, accused No.6 Babubhai Khatubhai caught hold of Hirabhai Virabhai and accused No.1 inflicted a blow by knife on his forehead. P.W.4 - Chaturben wife of deceased Jagtaji Chhaganji Pagi though herself to be an eye witness. But in her cross- examination, it has been brought out that she was not an eye witness, but came to know thereafter. P.W.7 Hirabhai Virabhai, Ex.71, an injured eye witness stated that after the festival was over everybody came back to the Chowk and the quarrel ensued between the accused and others. They grappled to each other and accused No.1 inflicted a knife blow on the body of deceased Jagtaji and he had fallen down. Accused Balaji inflicted a blow of knife on Kohyaji on left side of the body. Thereafter, everybody dispersed. Accused No.1 attempted to run away from the spot and, therefore, he (this witness) caught hold of accused No.1, at that time accused No.1 inflicted a knife CR.A/244/1999 15/35 JUDGMENT blow on his forehead and he had fallen down. [17] In support of these eye witnesses, prosecution examined Dr.Dineshbhai Babulal Patel, P.W.5 at Ex.62 who examined Kohyaji and proved his injury in respect of accused No.2 – Balaji Dhiraji. [18] The prosecution also examined Dr.Punambhai Kantilal Parmar, P.W.6 at Ex.66. According to him on 08.03.1996 at 8.00 p.m., while he was serving as Additional Officer, Primary Health Centre, he examined Hira Vira and he gave the history of injury inflicted by knife. On examination, it was found that Hira Vira had reddish colour small puncture wound on forehead middle point of 0.5 cm x 0.5 cm muscle deep. This witness also conducted the postmortem of deceased Jagtaji and according to him, deceased had anti-mortem injuries as under: “A clean sharp cut reddish colour stab wound present on epigastric region Lt. Side 7 cm – above to umbilicus 2 cm lateral to mid line edge of wound slight curved to each other (elliptical) upper extreme of wound slight tear off and raggedness. Lower extreme of sharp cut stab wound 4 cm x 1 cm stab wound was divide upper backward to right side piercing through stomach and piercing small lobe of liver.” CR.A/244/1999 16/35 JUDGMENT According to Dr.Punambhai Kantilal Parmar, P.W.6 at Ex.66, the cause of death was hemorrhagic shock resulting / due to injuries to vital organs due to stab wound caused by pointed sharp cutting instrument. According to Dr. Punambhai, there were internal injuries and injuries were sufficient in the ordinary course of nature to cause death. [19] Though the prosecution has examined other witnesses i.e. discovery panchas, arrest panchas, panchas of scene of offence and panchas of inquest panchnama. Those witnesses are P.W.8 - Ruvabhai Nathabhai, Ex.72, P.W.9 - Manubhai Dhulabhai Khant, Ex.75, P.W.10 - Keshaji Motiji, Ex.77, P.W.11 - Mashrubhai Bhemabhai, Ex.80 and P.W.12 - Pradipsinh Madhusinh, Ex.84. [20] The prosecution has also examined P.W.13 - Mahavirsinh Sajubha Rana, Ex.85, Investigating Officer and the then P.S.I. of Malpur Police Station. [21] When we are appreciating the evidence, we find that all the three witnesses, except eye witness Chaturben, withstand gruelling cross-examination. Out of them two are injured witnesses. Needless it is to say that the evidence of injured witnesses, it must be borne in mind that the presence of such witnesses at the time at place of occurrence, cannot be doubted. The evidence of injured witnesses, is of great value to the prosecution and it cannot be CR.A/244/1999 17/35 JUDGMENT doubted merely on some natural conduct of a person during the incident or after the incident, if there be any exaggeration in the evidence of injured eye witnesses, such exaggeration may be discarded but not their entire evidence. In appreciating of evidence of injured eye witnesses, broad spectrum of the prosecution version must be discerned after discarding discrepancies which are not fatal. It must not be forgotten that there is tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. The best course for the Court should be to discard exaggerated version or falsehood but not to discard entire version. [22] Now adopting the mode of appreciation as abovestated, what is established beyond doubt by the prosecution is that accused No.1 – Somaji Dhiraji inflicted a severe knife blow on the vital part of the deceased Jagtaji, on account of which Jagtaji died on the spot. It is also proved that accused No.1 inflicted knife blow on injured Hirabhai Virabhai which is supported by the medical evidence. We find the evidence of these three witnesses credible, natural, trustworthy and believable to this extent which is supported by medical evidence as well and, therefore, from the evidence of P.W.1, 2 and 3, it is, undoubtedly, established that accused No.1 did cause death of Jagtaji and caused injuries to P.W.7 – Hirabhai Virabhai. Learned advocate for the appellant could not dislodge this weighty evidence of eye witnesses. To this CR.A/244/1999 18/35 JUDGMENT extent, it cannot be said that there is no reason of these witnesses to implicate the accused No.1 falsely in murder of deceased Jagtaji. [23] While dealing with alternative arguments of learned