IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1088 of 1994 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 : YES 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? -------------------------------------------------------------- SHRAVANBHAI MONGHIYABHAI PADVI Versus THE STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 1088 of 1994 MR BHARGAV N BHATT for Appellant MS HANSA B PUNANI APP for Respondent - STATE OF GUJARAT -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE H.H.MEHTA Date of decision: 19/07/2003 C.A.V. JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) 1. The appellant, who was an accused before the trial Court has, by preferring this Criminal Appeal under Section 374(2) of the Criminal Procedure Code, 1973 [hereinafter be referred to as the "Cr.P.C."] challenged the correctness, legality and validity of the judgment, Ex.44 dated 11.10.94 of conviction and sentence rendered by the learned Additional Sessions Judge, Valsad at Navsari [ who will be referred to hereinafter as the "learned Judge of the trial Court"] in Sessions Case No.76 of 1993, by which the appellant has been convicted for an offence punishable under Section 302 of the Indian Penal Code, 1860 [for short "I.P.C."] and is sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-- and in default of payment of fine, to undergo further simple imprisonment for two months. 2. The facts leading to this present appeal in a nutshell can be summarized as follows :- 2.1 P.W.6 complainant - Karmabhai Tukaram Thakare, resident of village Nizar (District Surat), was at relevant point of time a "mukkadam" (leader) of the labourers, who were doing the manual labour work of cutting the crop of sugarcane and under his leadership about 22 persons were working. Since six months before the date of incident, the complainant and labourers of his party were working that work of cutting the crop of sugarcane for Gandevi Sugar Factory and since one and half month before the date of incident, he and his party members were working in the field of members of "Sahakari Khand Udhyog Mandali Limited" of Gandevi. Since two days before the date of incident, they were working in the field of one Natubhai Chhibabhai Patel of Duvada. 2.2 On the date of incident i.e. on 03.05.93, in the morning at about 8.00 A.M., the complainant and members of his party had gone to the field of Natubhai Chhibabhai Patel of Duvada for doing the manual labour work of cutting the crop of sugarcane. The victim Mohanbhai Fatubhai Padvi (deceased) and his wife P.W.11 - Rainaben, appellant Shravanbhai Monghiyabhai Padvi and his wife Poholi were the members of a party of the complainant and on that day, the deceased Mohanbhai Fatubhai Padvi had not gone for work of cutting the crop of sugarcane as he was suffering from illness of fever, but his wife P.W.11 Rainaben had gone to the field for the said work. The appellant and his wife Poholi had also gone to the field at about 8.00 A.M., but rest of the members of the party of the complainant had objected that the appellant and his wife had not come for the work on previous day and, therefore, they were not permitted to do the work in the field. In these circumstances, the appellant and his wife both had gone back to the place of encampment for their temporary residence. From the record, it appears that most of the members had their temporary residence in the camp where they had encamped in the open land earmarked for grazing for cows, just on the side of Wadi Falia on the outskirts of village Endhal (Taluka Gandevi of District Valsad). Accordingly, the deceased, his wife Rainaben and their two daughters P.W.10 Vaishali, Mangala and one another minor daughter of sister of Rainaben were residing in this type of camp. 2.3 As per the evidence of P.W.10 Vaishali Mohanbhai Padvi, she was knowing the appellant and on the date of the incident, she and her sister Mangala and her father were present in their temporary residence in the camp. As per her deposition, her mother had gone for doing the manual labour work of cutting the crop of sugarcane and on that day, the appellant was present in his residence in the said camp. The wife of the appellant had also gone for the manual labour work. According to the say of Vaishali, her father was sleeping inside the hut in the camp and at that time, she and her sister Mangala were playing behind that hut. According to the say of Vaishali, on the date of incident, the appellant had inflicted blows of "Koita" (special type of sickle which is used for cutting the crop of sugarcane) on neck, face and hand of her father and at the time of incident, she was very much present near the hut. According to her say, the appellant had beaten her father and, thereafter, the appellant fled away by taking with him "Koita". Immediately after the aforesaid incident, she went running to her mother Rainaben. According to say of Rainaben, Vaishali and Mangala both had come to her at about 2.00 P.M. and Vaishali told her that Shravan (appellant) had killed her father by "Koita". On hearing this news, Rainaben immediately went to the complainant Karma Tukaram and informed him about the message conveyed to her by her daughter - Vaishali. 2.4 As per the say of Karma Tukaram, complainant, when work of cutting the crop of sugarcane was going on, Mangala and Vaishali both had come to him. First, out of that two girls, Vaishali informed her mother that Shravan (appellant) had killed her father. Thereafter, the complainant Karma Tukaram, Rainaben and two daughters and other labourers started to proceed towards the temporary residence of the labourers in the camp. When they were going towards that camp, Shravan (appellant) met them in Pad Falia on the way and at that time, the weapon "Koita" was with him, in his hand. Thereafter, they caught hold of the appellant and took him to P.W.7 Dinubhai Naranbhai Patel, who, at that time, was a Sarpanch of village Endhal. 2.5 As per the say of P.W.7 Dinubhai Naranbhai Patel, P.W.7, on the date of incident at about 3.30 P.M., when he was present in his house, mukkadam Karma Tukaram, in company of other 7 to 8 labourers, came to his house. They informed Dinubhai Naranbhai Patel that Shravan (appellant) had beaten Mohanbhai Fatubhai Padvi on his head, portion below head and hand. Thereafter, he made that person to sit on Ota of his house. As per his say, Shravan (appellant) had a blood stained "Koita" with him. Thereafter, he made a phone to Police Chowki of Gandevi from the house of his neighbour - one Doctor. As per his say, after informing the Police on phone, he kept two labourers present near the appellant on Ota for his watch. He went to the temporary residence of labourers in the camp and he had seen that deceased had sustained injuries on his head and hand and the blood was coagulated and that Mohanbhai Fatubhai Padvi had died. Thereafter, he returned to his house and within short time, the police came to his house. 2.6 As per the evidence on record, P.W.13 - Shri Rajabhai Govabhai Desai, who was performing his duty as P.S.I. in Gandevi Police Station, came to know through the P.S.O. P.W.12 Bhanuben Somabhai that one offence of murder has been committed in the village Endhal. Immediately, thereafter, he rushed to the village Endhal and as per the record, the complainant Karma Tukaram lodged his complaint to P.W.13 P.S.I. Shri Desai at 16.30 hours, at the very place of incident. Thereafter, P.S.I. Shri Desai sent that complaint of Karma Tukaram to P.S.O., Gandevi Police Station, Gandevi for its registration. 2.7 As per the evidence of P.W.12 Bhanuben Somabhai, she received that complaint and on the basis of that complaint, crime was registered at 17.00 hours on 03.05.93 in the Gandevi Police Station. That complaint came to be registered as C.R.No.I-34/93 for the offence punishable under Section 302 of I.P.C. Thereafter, P.W.12 Bhanuben Somabhai, by putting her endorsement below that very Yadi which was sent by P.S.I., entrusted the police investigation of the crime to P.W.13 P.S.I. Shri Desai. As per the say of Mr.Desai, on receiving back the complaint with an endorsement below his Yadi, he started to conduct a police investigation. 2.8 First, he went to the place of temporary residence of labourers in the camp situated in the land earmarked for grazing by the cows on the side of Wadi Falia, on the outskirts of village Endhal. By keeping two independent persons as panch witnesses, he held an inquest panchnama of the dead-body and drew an inquest panchnama during the period between 17.15 hours and 18.00 hours on 03.05.93. He recorded the statements of the witnesses conversant with the facts of the case. Thereafter, he drew a panchnama of the scene of offence by keeping present those very two panch witnesses, during the period between 18.15 hours and 19.00 hours on 03.05.93. Thereafter, he sent dead-body for autopsy to the Medical Officer of Primary Health Centre of Dhanori (Taluka Gandevi) with Police Constable Shri Kashinath Arjun. He seized the samples of control clay and blood stained clay under a panchnama from the place of scene of offence. Accused was very much available in the house of Sarpanch, and at that time, the clothes of the accused were found stained with blood and accused had with him a blood stained "Koita". Thereafter, he sent accused with one Police Constable to Gandevi Police Station. After reaching Gandevi Police Station, he drew a panchnama of physical condition of accused in the presence of two panch witnesses in Gandevi Police Station, during the period between 23.00 hours and 23.30 hours on 03.05.93. Thereafter, he performed necessary formalities with regard to recording of the statement of accused and preparing a muddamal pavti. Thereafter, on the next day, he produced accused in the Court of the learned Judicial Magistrate [F.C.], Gandevi [who will be referred to hereinafter as the "learned J.M.F.C."] for taking him in the judicial custody. Thereafter, on 13.05.93, he handed over the police investigation to P.S.I. Shri G.S.Raval. Thereafter, on 10.06.93, P.W.14, P.S.I. Shri Kantilal Meghjibhai Khirsariya, (Ex.36) received police papers for further investigation from P.S.I. Shri G.S. Raval. Thereafter, P.W.14 Shri Kantilal Meghjibhai Khirsariya sent incriminating articles, weapon and clothes of the accused, etc. for examination and analysis to the Forensic Science Laboratory, Surat [for short the "F.S.L.]. Thereafter, he received a report of F.S.L. and on 22.07.1993, he handed over the police investigation to P.S.I Shri N.V.Desai. P.S.I. Shri N.V.Desai completed the police investigation and, on 26.07.1993 and filed a charge-sheet against the accused for an offence punishable under Section 302 of the Indian Penal Code in the Court of the learned J.M.F.C., Gandevi. That charge-sheet came to be registered as Criminal Case No.1820 of 1993. The learned J.M.F.C, Gandevi, by passing a committal order under Section 209 of Cr.P.C. on 18.08.1993, committed the said case to the Sessions Court, Valsad at Navsari. On receipt of papers of that case from the Court of the learned J.M.F.C., Gandevi, that case came to be registered as Sessions Case No.76 of 1993 in the Court of Sessions, Valsad at Navsari. 3. The appellant had engaged his private advocate in the Sessions Court, Valsad at Navsari. On the basis of material on record, the learned Judge of the trial Court framed the charge Ex.1 on 26.04.1994. On recording plea of the appellant, he pleaded not guilty to the charge and claimed to be tried. 4. In order to bring home the charge against the accused for which the charge Ex.1 was framed, the prosecution examined the following witnesses :- P.W.1 Natubhai Kuthabhai Patel Ex.7 (Circle Inspector, who prepared a Map of scene of offence) P.W.2 Dr.Pravinbhai Durllabhbhai Patel, Ex.10 (who performed postmortem on the dead-body of deceased Mohan Fatu Padvi). P.W.3 Govindbhai Bhagabhai Patel, Ex.12 One of the panch witnesses of inquest panchnama and panchnama of scene of offence). P.W.4 Dahyabhai Ranchhodbhai, Ex.15 (One of the panch witnesses of pachnama of physical condition of appellant and recovery panchnama of "Koita"). P.W.5 Shaileshbhai Govindbhai Patel, EX.19 (Second panch witness of panchnama of physical condition of appellant and recovery panchanama of "Koita"). P.W.6 Karmabhai Tukaram, Ex.21 (original complainant) P.W.7 Dinubhai Naranbhai Patel, Ex.22 (Sarpanch of village Endhal). P.W.8 Bhimsing Samsing, Ex.23 (One of the labourers working with the wife of the deceased Mohanbhai Fatubhai Padvi). P.W.9 Bhagvansinh Subhkaransinh, Ex.24 (Interpreter appointed by the Court for recording evidence of daughter and wife of the deceased Mohan Fatu Padvi). P.W.10 Vaishali Mohanbhai, (Eye witness to Ex.25 incident). P.W.11 Rainaben Mohanbhai, (Wife of the Ex.26 deceased Mohanbhai Fatubhai Padvi). P.W.12 Bhanuben Somabhai, Police Jamadar, Ex.27 (P.S.O. of Gandevi Police Station). P.W.13 P.S.I. Rajabhai Govabhai Desai, Ex.32 (First I.O.) P.W.14 P.S.I. Kantibhai Meghjibhai Kirsariya, Ex.36 (Second I.O.). 5. The prosecution also produced and proved certain documents in support of their case against the accused/ present appellant. Out of those documents, the prosecution has placed heavy reliance on the following documents. 1. Panchnama of clothes recovered from the Ex.6 deadbody of deceased Mohanbhai Fatubhai Padvi. 2. A Map of scene of offence. Ex.8 3. Postmortem Notes. Ex.11 4. Inquest Panchnama. Ex.13 5. A panchnama of scene of offence. Ex.14 6. A panchnama of physical condition of Ex.16 the appellant as well as recovery - panchnama of "Koita". 7. Complaint Ex.33 8. Report of F.S.L. Ex.38 6. After recording evidence of the prosecution witnesses was over, the incriminating circumstances appearing in the evidence were brought to the notice of and explained to the appellant and whatever replies were given by him were noted down below his plea Ex.2. The defence of the appellant is of general denial. Practically he has denied, to all questions by replying "it is not true". He has stated in his reply in last question that he has got a young daughter and an old mother in his family and that he is innocent. He has neither examined any witness or himself as defence witness nor produced any documentary evidence in his defence. Thereafter, the learned Judge of the trial Court, after hearing the arguments of the learned advocates of both the parties and after examining and appreciating the evidence on record, held the appellant guilty for an offence punishable under Section 302 of I.P.C. He has come to a conclusion that the deceased Mohanbhai Fatubhai Padvi died a homicidal death. He has also come to a conclusion that the appellant committed an offence of murder punishable under Section 302 of I.P.C., by inflicting blows of "Koita" on the neck, head and other parts of the body of the deceased. He has accepted a case of prosecution with regard to motive stating that 7 to 8 months before, the appellant had demanded liquor from the deceased and as deceased did not give liquor to him, he committed murder of the said Mohanbhai Fatubhai. On the basis of these conclusions, the learned judge of the trial Court has, by rendering the judgment Ex.44 dated 11.10.1994, convicted and sentenced the appellant as stated in para-1 hereinabove. 7. Being aggrieved against and dissatisfied with the said judgment of conviction and sentence, the appellant has filed this present appeal. 8. We have heard Mr.Bhargav N. Bhatt, learned advocate for the appellant and Ms.Hansa B. Punani, learned APP for the respondent - State of Gujarat, in detail at length. Mr.Bhatt has taken us through the entire evidence on the record and Ms.Punani has taken us through the impugned judgment. 9. Mr.Bhatt has assailed the judgment impugned in this appeal mainly on the following grounds :- [A] The entire case of the prosecution rest on deposition of a child witness - Vaishali Mohanbhai Padvi, Ex.25, because as per the case of the prosecution, she saw the incident and after seeing the incident, she rushed to her mother in the field where she was doing the manual labour work of cutting the crop of sugarcane and informed her about the incident and her mother in turn informed the complainant about the incident. Thereafter, complainant in turn informed about the incident, to P.W.7 Dinubhai Naranbhai Patel, Sarpanch of village Endhal. The complainant Karma Tukaram had lodged his complaint on the basis of what was conveyed by Rainaben, wife of deceased Mohan Fatu Pandvi to him and Rainaben had informed the complainant on the basis of message given by her daughter Vaishali. Thus, Vaishali is an important key witness in the present case. Mr.Bhatt has argued that this witness is not an eye witness to the incident and that from her evidence, it appears that, she is a tutored witness and, therefore, no reliance can be placed on such tutored sole child witness. [B] The First Information Report is ante-timed and looking to the facts and circumstances of the case, it can safely be said that somebody had killed the father of Vaishali and real offender was not traceable but, subsequently, the appellant has been roped in falsely with a concocted story of the alleged incident. [C] The prosecution has suppressed the genesis of the case, by not producing the documentary evidence relating to the message given on phone to P.S.O. of Gandevi Police Station, by Shri Dinubhai Naranbhai Patel, Sarpanch of village Endhal, at the earliest point of time. [D] The motive which is sought to be believed, is so remote and weak, that for such motive, no person can take step of killing a person for a quarrel which took place in between deceased and the appellant before seven months. That quarrel was of a trifle matter that appellant had demanded a bottle of liquor from the deceased and the deceased did not give bottle of liquor to the appellant. The case advanced by the prosecution is highly improbable, looking to post conduct of the appellant, after the commission of alleged offence. It is not believable that accused after committing an offence ran in that direction in which labourers of team of Karma were working in the field. On the contrary, he had a chance to run away in opposite direction. [E] The investigation is not only incomplete and illegal, but it is a dishonest with a view to see that any how a case can be made out for murder of deceased Mohanbhai Fatubhai Padvi Padvi. Looking to the medical evidence, the incident of murder of Mohanbhai Fatubhai Padvi must have taken place before fifteen to sixteen hours as rigor mortis was found present, when Dr.Pravinbhai Durllabhbhai Patel performed postmortem at about 12.30 P.M. on 04.05.1993. Mr.Bhatt has argued that looking to the evidence of Dr.Pravinbhai Durllabhbhai Patel, the alleged offence of murder must have been committed at about 20.30 or 21.30 hours on 03.05.1993 and not at 14.00 hours. This is quite possible in view of the fact that the appellant was arrested at 23.30 hours on 03.05.1993. [F] Mr.Bhatt has argued that looking to the evidence on record and submission made by him, this is a case in which the prosecution has not proved the case beyond the reasonable doubt. Lastly, he has argued that appellant be acquitted by allowing this appeal. 10. Ms.Hansa B. Punani, learned APP for the respondent - State of Gujarat has supported the judgment of conviction and sentence, through out. She has argued that P.W.10 Vaishali Mohanbai Padvi is a natural eye witness and there is no reason to disbelieve her. She has further argued that there is nothing on record to show that Vaishali Mohanbhai Padvi is a tutored witness. She has further argued that the learned Judge of the trial Court has given cogent and convincing reasons for believing this child witness. She has also argued that the testimony of child witness gets corroboration from the oral evidence of her mother, complainant and other witnesses also. During the course of arguments, she has further argued that evidence of Vaishali is cogent consistent, trustworthy and acceptable and in view of this, the learned Judge of the trial Court has, by placing reliance on her evidence, rightly convicted the appellant. Lastly, she has argued that this appeal is devoid of merits and hence, same is required to be dismissed. 11. We have dispassionately considered the submissions of the learned advocates for both the parties. We have carefully and minutely examined the evidence on record. We have made thorough examination scrutiny and re-appreciation of the evidence on record to come to our own conclusions to decide this appeal. We have perused the impugned judgment, which is challenged in this appeal. We have also gone through the record and proceedings of the case, which have been called for from the trial Court. 12. There is no dispute from the appellant side that the deceased Mohanbhai Fatubhai Padvi died homicidal death. Mr.Bhatt has not argued on this point with regard to homicidal death of the deceased Mohanbhai Fatubhai Padvi. Still, however, we have carefully examined an inquest panchnama Ex.13 and postmortem notes Ex.11. The postmortem notes Ex.11 is proved by P.W.2 Dr.Pravinbhai Durllabhbhai Patel, Ex.15. According to his evidence, on 04.05.1993, he (P.W.2 Dr.Pravinbhai Durllabhbhai Patel, Ex.15) was serving as Medical Officer in Primary Health Centre at Dhanori and on that day at about 12.00 noon, one Police Constable Kashinath Arjun, B.No.1657 had brought a deadbody of Mohanbhai Fatubhai Padvi for the purpose of autopsy. He has further deposed that, that deadbody was identified by Rainaben w/o. deceased Mohanbhai Fatubhai Padvi. He started to perform postmortem at 12.30 P.M. (Noon) on 04.5.1993 and completed it at 2.30 P.M. on the very same day. According to his deposition, he had seen following external injuries :- 1. An incised wound from left ear lobular to left side of chine oblique in direction about 8" flength 2 ft. wide 2 ft. deep. 2. Incised wound on left side of neck transverse in direction 4" x 3" x 3" which cut chaotic artery, jugular vein and right radial artery and trachea. 3. Incised wound just above the right wrist joint deep to cut the right left radial artery 2.5" x 2" x 1.5". 4. Incised wound of left side arm deep to muscle 1' x 1' x 1/2", size below elbow 3' x 2' x 1/2". 5. Incised wound on left side of the head on left side parital temporary on frontal region 4 x 1.5 x 1.5 deep to parital occipital wound bone in direction. 6. One incised wound on head ageing to back wound in direction deeply parital bone which 4' X 1/2' x 1/2'. 7 Incised wound of right side solider joined / in directions 1/2 each x 1/2 each x 1/2 each. He noticed following internal injuries. [A] (1) Incised wound left side of skull. (2) Brain : Normal and congested. [B] (a) Trachea incised on Neck Blood clotting into the neck. (b) Lungs : Congested. (c) Heart : Congested. (d) Jugular vein cut on left side of neck and left Colon artery also cut incised. Peritoreum : (Coagulated. (Pale. Jaw, Teeth Oesophagus incised at left side neck Tongue : Congested. Stomach : Congested and contained, Semi digested food. Small - Congested and contained, Intenstine : Semi congested food. Big Intenstine: Congested and contained fecule matter & Liver & Gall- goods. Bladder : Congested. Congested. Sleen : Congested. Kidney : Congested. Bladder : Congested and Lower Belly : Congested. This person has died 4-6 hours after having a meal. P.W.2 Dr.Pravinbhai Durllabhbhai