IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 649 of 1994 with CRIMINAL APPEAL No 824 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 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 Civil Judge? : @ BALWANT @ BALLU BABUSINH KAHAR & OTHERS Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 649 of 1994 Mr. K.J. Shethna, with MR JAYESH A DAVE for the appellant No.1 Mr. U.M. Panchal for the appellant No.2 MR Jadhav for the appellant No.3 Mr. A.J. Desai, APP for Respondent No. 1 2. Criminal Appeal No. 824 of 1994 Mr.A.J. Desai, APP for the appellant Mr. K.J. Shethna, with MR JAYESH A DAVE for the respondent No.1 Mr. U.M. Panchal for the respondent No.2 MR Jadhav for the respondent No.3 -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE SHARAD D.DAVE Date of decision: 15/07/2002 COMMON ORAL JUDGEMENT (Per : MR.JUSTICE M.H.KADRI) 1. The appellant No.1, Balwant @ Ballu Babusinh Kahar (original accused No.4), the appellant No.2, Navnit @ Navo Gulabbhai Daruwala (original accused No.6) and the appellant No.3, Kamlesh Jamnadas Chhola (Kahar) (original accused No.17), by filing Criminal Appeal No.649 of 1994, have challenged the conviction and sentence imposed on them by the learned Additional Sessions Judge, Surat, by his judgment and order dated June 6, 1994, in Sessions Case No. 215 of 1992. By the impugned judgment and order dated June 6, 1994, the learned Additional Sessions Judge convicted the accused No.4, appellant No.1 herein, for the offence punishable under Section 302 and sentenced him to R.I. for life and fine of Rs.1500 in default S.I. for three moths. The appellant No.2, original accused No.6, and the appellant No.3, original accused No.17 were each convicted for the offence under Section 324 of the Indian Penal Code for two years and fine of Rs.500 in default S.I. for one month. 2. Criminal Appeal No.824 of 1994 is filed by the State of Gujarat challenging the judgment and order dated June 6, 1994 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No. 215 of 1992, acquitting the original accused Nos. 1 to 8, 10 to 13 and 17 and 18 of the charges under Sections 302, 147, 148, 324, 326, 427, 452, 120B of the Indian Penal Code and Section 135 of the Bombay Police Act. As common question of facts and law arise for our consideration, we propose to dispose of both these appeals by this common judgment and order. 3. The prosecution case is summarized hereinbelow. On October 13, 1991, at about 12.30 p.m. P.W.1, Prashantkumar Amrutlal, (complainant), along with five boys of his locality, i.e. Kharwawad, were playing cricket on the road near Mona Apartment. At that time, some unknown boys from Machhiwad came there in an auto-rickshaw. The cricket ball struck the auto-rickshaw and, therefore, the persons occupying the auto-rickshaw picked up a quarrel with the complainant and the boys playing with him. There was a heated exchange of words between P.W.1 and the unknown persons occupying the auto-rickshaw and at the end the persons occupying the auto-rickshaw challenged the P.W.1 by saying that he should remain there and they would return soon. After ten minutes, in another auto-rickshaw, some ten persons came and encircled the complainant (P.W.1) but, due to the intervention of one Rajesh Ishwar and Sashikant Jamnadas of Kharwawad, the dispute was amicably settled and the persons, who came in the auto-rickshaw, returned to their locality. 4. It is the prosecution case that on October 14, 1991, at about 12 hrs. accused No.6 informed the complainant that one Bhagwan, Harish,etc were making plan to beat him. The complainant did not pay any attention to it as he was sure that nothing of that kind would happen as those persons were his co-students. 5. On October 16, 1991, at about 11.00 p.m., when the complainant was standing near Mona Apartment, in his locality known as Kharwawad, along with his friends, Rajesh Bachu, Arvind Mulchand and Munna Dahyabhai and they were preparing to go to see garba which was held due to Navratri festival, the appellant No.1, rickshaw driver, with whom he had previously a quarrel and one another person came to him on a scooter. The appellant No.1 asked the complainant that why he had quarreled with the rickshaw driver. The complainant informed him that the matter was already compromised. The appellant No.1 and his companions have tried to take him away forcibly on the scooter and, therefore, the complainant offered that the dispute be settled through Pravin Kahar. The appellant No.1 got annoyed by hearing the name of Pravin Kahar, and threatened him saying that he would soon be coming back. The complainant conveyed this incident to one Rajeshbhai who made arrangement to call the police in the locality. At about 11.30 p.m. the appellants Nos. 1 and 2, Mahesh Raman, Bhagawant Tal, Pravin Kali, Harish Mavji and other 20-25 boys from the locality of Machhiwad armed with lethal weapons like swords, knives, guptis, etc. came running at the said place where the complainant and his friends were standing. They were shouting and abusing. The mob rushed to the complainant and he being afraid of beating ran here and there in the mohalla and did not come in the hands of the mob. The mob became furious and started committing mischief with the stationary vehicles parked in the mohalla and damaged the said vehicles and terrorized the residents of the locality. The mob also entered the house of the complainant and enquired about his whereabouts from his wife, P.W.25 Hansaben. The mob remained in the mohalla for about 15-20 minutes and was continuously committing mischief by stone pelting and breaking the glass of the auto-rickshaws, cars, etc. The complainant subsequently came to know that the mob had caused injuries to P.W.3 Nilesh Ratilal, Prakash Kanji, Shantilal Bhavanji, etc. who were the residents of his locality. The condition of Prakash Kanji and Nilesh Ratilal was serious and, therefore, they were taken to the Civil Hospital, Surat. On arrival of the police, the complainant lodged a First Information Report at 1 hrs. on October 17, 1991, before the Police Inspector, Athwalines Police Station, which came to be registered as CR No.I-464/91. P.W.33 P.I. Chowdhary of Athwalines Police Station, on coming to know that injured Pankaj Kanji succumbed to injuries, went to Civil Hospital and held inquest panchanama, and the body was sent for post-mortem. P.I. Chowdhary recorded statements of witnesses, prepared panchanama of place of incident and collected incriminating articles during the investigation. On October 21, 1991, P.I. Chowdhary arrested three accused who had presented themselves at the police station along with the weapons used by them. P.I. Chowdhary collected injury certificates of injured Ashok Purshottam and Nilesh Ratilal. On completion of investigation, P.I. Chowdhary submitted chargesheet against the appellants and other accused persons in the Court of learned Judicial Magistrate, First Class, Surat, wherein, it came to be registered as Criminal Case No.593 of 1992. As the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions, the learned JMFC has committed the case to the Sessions Court, Surat, where, it came to be numbered as Sessions Case No.215 of 1992. 6. Charge Exh.9 was framed against the accused persons for the offences punishable under Sections 147, 148, 149, read with Sections 120B,302 read with Sections 149, 326, 324, read with Sections 149, 452, 427 of the Indian Penal Code and under Section 135 of the Bombay Police Act. The charge was read over and explained to the accused persons wherein they pleaded not guilty and claimed to be tried. 7. In order to prove the charge, the prosecution examined (1) P.W.1, Prashantkumar Amrutlal, Exh.35 (complainant), (2) PW.2 Bipinchandra Dahyabhai Sukhani, Exh.36, (3) PW.3 Ninesh Amrutlal Patel, Exh.37, (4) PW.4, Nilesh Ratilal Sarang, Exh.39, (injured witness), (5) PW.5, Rasikbhai Bhanabhai Sarang, Exh.40, (6) PW 6, Ashokbhai Purshottam Talati, Exh.41 (injured witness), (7) PW.7, Jitendrakumar Balubhai Tolawala, Exh.42, (8) PW.8, Jitendra Shantilal Sukani, EXh.43, (9), PW. 9, Dharmesh Kishorbhai Mehta, Exh.44, (10) PW. 10, Deepak Govindbhai Patel, Exh.46, (11) PW.11, Ranjitbhai Ishwarbhai Khalasi, Exh,47, (12) PW 12, Bharatkuamr Vishrambhai Khalasi, Exh.48, (13) PW 13, Dr. Induben Nareshbhai Arora, Exh.49, (14) PW 14, Dr. Vijaykumar Ishwarlal Umarvanshi, Exh.51 (15) PW 15, Tarunbhai Navinchandra Pachhigar, Exh.53, (16) PW 16, Jayesh Karsishandas Modi, Exh.55, (17) PW 17, Ferozkhan Usufkhan Pathan, Exh.56, (18) PW 18, Dharmeshbhai Dahyabhai Sarang, Exh.57, (19) PW 19, Rameshbhai Naginbhai Rana, Exh.59, (20) PW 20, Navinchandra Maganlal Rana, Exh.60, (21) PW 21, Rameshchandra Babubhai Rana, Exh.61, (22) PW 22, Dr. B.V. Subramaniam, Exh.66, (23) PW 23, Abdul Rehman Aziz Shaikh, Exh.69, (24) PW 24, Asadulla Inamdar, Exh.70, (25) PW 25, Hansaben Prashantkumar, Exh.71, (wife of PW.1), (26) PW 26, Ashokbhai Chimanbhai Sukhani, Exh.72, (27) PW 27, Abdul Kadar Umar Garani, Exh.73, (28) PW 28, Tulsibhai Chhaganbhai Bhagat, Exh.74, (29) PW 29, Naginbhai Rana, Exh.75, (30) PW 30, Mohmad Arif Shaikh, Exh.76. (31) PW 31, Mohmad Hanif Rasulkhan, Exh. 77, (32) Police Jamadar R.K. Patil, Exh.83, and (33), Exh.33, P.I. K.M. Chowdhary, Exh.89. The prosecution produced documentary evidence such as post-mortem notes, injury certificates, panchanama of place of incident, First Information Report lodged by P.W 1, discovery and recovery panchanamas of muddamal weapons though not proved by the evidence of panch witness, report of FSL, arrest panchanama of accused persons, entries of police station diary at Exh.84, 85, 86, 87, and the complaint lodged by one Shardaben wife of Karsanbhai Ganchibhai at Exh.88. 8. After recording of the evidence of the prosecution, the learned Additional Sessions Judge, Surat, questioned the accused persons with regard to incriminating evidence found against them, and their statements came to be recorded under Section 313 of the Code of Criminal Procedure. The accused No.14 pleaded alibi that he was not present at the time of the incident at Surat and had gone to Mahabaleshwar. The learned Additional Sessions Judge did not record further statement of the accused no.14 as there was no evidence found against him involving him with the incident. Similarly, no evidence was found against the accused No.15. Hence, his further statement was also not recorded. The learned Additional Sessions Judge, on appreciation of oral as well as documentary evidence and after hearing the arguments advanced by the learned Additional Public Prosecutor and the learned advocate for the accused persons, held that the prosecution has failed to prove that the accused persons had formed an unlawful assembly and were armed with deadly weapons with common object of causing murder of the complainant and other witnesses. The learned Additional Sessions Judge has further held that the prosecution had failed to prove that the object of unlawful assembly formed by the accused persons was to cause murder of deceased Pankaj and to cause injuries to other witnesses. The learned Additional Sessions Judge has held that the accused No.4 i.e. the present appellant No.1, had caused murder by inflicting blows with sword on the right chest of deceased Pankaj alias Prakash. The learned Additional Sessions Judge has further held that the prosecution had proved beyond doubt that the appellant No.2, Navnit Navo Gulabbhai Daruwala (original accused No.6), had caused grievous hurt to witness Ashok Purshottamdas Talati, by inflicting injury with sword and had also caused simple injuries to witness, Bipinchandra Dahyalal Sukhani. 9. The learned Additional Sessions Judge has further held that the appellant No.3, Kamlesh Jamnadas Chhola (Kahar) (original accused No.17) had caused grievous hurt to witness Neelesh Ratilal Sarang by inflicting blows with sword on his head, right hand as well as on right cheek. It was held by the learned Additional Sessions Judge that the prosecution has failed to prove that the members of unlawful assembly had committed trespass in the house of the complainant and had damaged the vehicles, namely, rickshaws, scooters, car, etc. to the tune of Rs.10,210/-. It was further held by the learned Additional Sessions Judge that no offence was proved to have been committed by the members of unlawful assembly under Section 135 of the Act. On the basis of above-referred to conclusion, the learned Additional Sessions Judge convicted the accused No.4, appellant No.1 herein, for the offence punishable under Section 302 and sentenced him to R.I. for life and fine of Rs.1500 in default S.I. for three months. The appellant No.2, original accused No.6, and the appellant No.3, original accused No.17 were each convicted for the offence under Section 324 of the Indian Penal Code for two years and fine of Rs.500 in default S.I. for one month. The accused nos. 4,6 and 17 have challenged their conviction and sentence imposed by the learned Additional Sessions Judge, by filing Criminal Appeal No.649 of 1994. 10. None of the accused persons was convicted for the offence under Sections 147, 149 read with Section 120B and also under Section 302 read with Section 149 and also under Section 324, 326, read with Section 149 of the Indian Penal Code. Therefore, the State of Gujarat has challenged the order of acquittal recorded against the original accused Nos. 1 to 8, 10 to 12, 17 and 18 by filing Criminal Appeal No.824 of 1994. 11. Learned advocate, Mr. K.J. Shethna, for appellant No.1 and learned advocate Mr. U.M. Panchal, for appellant No.2 and learned advocate Mr. Jadhav for the appellant No.3, and learned APP,Mr. A.J. Desai, have taken us through the entire record and proceedings of the appeals. 12. Learned advocate, Mr. K.J. Shethna, for the appellant No.1, has submitted that no charge under Section 302 of the Indian Penal Code simpliciter was framed against the appellant No.1 and, therefore, he could not have been convicted under Section 302 of the Indian Penal Code simpliciter and, therefore, his conviction is liable to be set aside. He has further submitted that the complainant, P.W.1, is not an eye-witness and he came to know through other witnesses that deceased Prakash alias Pankaj, Niles Ratilal, and Ashok Purshottam and Shantilal had sustained injuries by the sword blows given by the accused Nos.4, 6 and 17, i.e. the present appellants. It is submitted that the evidence of the complainant is hearsay and not admissible in the eye of law. It is submitted that the complaint was lodged after the panchanama of the place of incident was drawn and, therefore, no reliance could have been placed on the complaint lodged by the P.W.1, which was filed after long deliberation between the persons belonging to the locality of Kharwawad. The learned advocate for the appellant No.1 has submitted that nearly 400 to 500 persons had gathered near the place of the incident but no independent witnesses were examined and the witnesses examined were highly interested and their evidence was self-contradictory and totally inconsistent with the medical evidence and, therefore, the learned Additional Sessions Judge has erred in placing reliance on the uncorroborated testimony of the so-called eye-witnesses. The learned advocate for the appellant No.1 has further submitted that the story of the prosecution about the incident of 13.10.1991 and the accused persons having entered into the house of the P.W.1, is highly improbable as no persons, who had taken part in the incident of 13.10.1991 and who had entered into the house of P.W.1., were identified. It is submitted that even P.W.25, who is the wife of P.W.1, had failed to identify any of the accused who had entered into the house enquiring whereabouts of P.W.1. The learned advocate for the appellant No.1 has submitted that the evidence of the so-called eye-witnesses is highly improbable and very weak and did not get any corroboration from circumstantial or medical evidence. The learned advocate for the appellant No.1 has further submitted that, though the accused no. 14 was not present at the place of the incident on 16.10.1991 and was falsely involved in the present case, recovery of gupti was shown from the accused No.14, which itself suggested that the whole case of the prosecution was got up and concocted. It is submitted that the medical evidence and also the report of the FSL do not support the evidence of the prosecution that the accused Nos. 4, 6 and 17 caused injuries to the deceased as well as the injured witnesses. It is submitted that no blood stain was found from the scene of offence and, therefore, it was highly doubtful whether such an incident occurred at the place as suggested by the witnesses and the complainant. The learned advocate for the appellant No.1 has submitted that the First Information Report was recorded late between 7 and 8 a.m. on 17.10.1991 and not at 1.20 a.m. as deposed by the witnesses. It is contended that the report sent to the Magistrate under Section 157 of the Code was late by more than 36 hours and the delay was not explained by the prosecution. The learned advocate has submitted that the Investigating Officer had recorded statement of Shantilal Bhagwan, who was injured in the incident, but the prosecution had not examined him at the trial. It is, therefore, submitted that benefit of doubt should be given to the appellant No.1, and his conviction and sentence recorded by the learned Additional Sessions Judge be quashed and set aside. 13. Learned advocate, Mr.U.M. Panchal, for the appellant No.2, has submitted that, according to the case of the prosecution, the appellant No.2 had caused injuries with sword on P.W.6, Ashok Purshottam Talati, whereas the said injured witness had deposed that he had sustained injuries with blows given by knife. It is submitted that, though the knife was alleged to have been recovered from the appellant No.2, no blood-stain was found on the recovered muddamal knife. Learned advocate, Mr.U.M. Panchal, for the appellant No.2 has further submitted that, as per the evidence of p.W.13, Dr. Induben Arora, who had examined injured P.W.6, Ashok, deposed that she cannot say positively whether the injuries noted by her on the body of P.W.6 can be caused by inflicting blows with sword. Learned advocate, Mr.U.M. Panchal, for the appellant No.2 has further submitted that, as per the oral testimony of P.W.32, R.K. Patil, he had received a phone call prior to registering the First Information Report of the present case that there was a free fight (mara-mari) in Kharwawad-Nanpura. He has deposed that the said information was conveyed by police Jamadar, Shankerbhai Budhabhai, from the Civil Hospital. The said entry was produced by the witness which was admitted in evidence at Exh.87. According to the entry Exh.87, P.W.6, Ashok Purshottam of Kharwawad, was admitted in the Mission Hospital for the injuries sustained by him in the mara-mari and the said injury was sustained due to inflicting of blows with the knife. It is, therefore, submitted by Mr. Panchal that there was conflicting evidence with regard to weapons used for inflicting the injuries on P.W.6, Ashok Purshottam Talati, and, therefore, benefit of doubt should be given to the appellant No.2, and his conviction and sentence recorded by the learned Additional Sessions Judge be quashed and set aside. 14. Learned advocate, Mr. Jadhav, for the appellant No.3, has submitted that the evidence against the appellant No.3, original accused No.17, was very vague and no eye-witness has named him as assailant who had caused injuries on P.W.4, Nilesh Ratilal Sarang. It is submitted that, even according to the evidence of P.W.14, Dr. Umarvanshi, the injuries found on the person of P.W.4, Nilesh Ratilal, were not possible by inflicting blows with sword. It is submitted that, even in the First Information Report, no name of appellant No.3, original accused No.17, was mentioned and no witness had deposed that Nilesh had sustained injuries by blows of sword inflicted by the original accused No.17. Learned advocate, Mr. Jadhav, for the appellant No.3, has further submitted that the evidence of injured and other eye-witnesses was self-contradictory and, therefore, there were serious infirmities in the prosecution evidence. It is, therefore, submitted that the benefit of doubt should be given to the appellant No.3, and the conviction recorded of the appellant No.3 by the learned Additional Sessions Judge for the offence under Section 324 of the Indian Penal Code, be quashed and set aside. 15. Learned APP, Mr. A.J. Desai, has submitted that because of the incident which had taken place on October 13, 1991, the residents of the locality, Machhiwad, were eagerly waiting to take revenge on the complainant and his friends who were residing in the locality of Kharwawad. It is submitted that the residents of locality Machhiwad had formed an unlawful assembly and were armed with lethal weapons and their common object was to cause injuries to the complainant and other witnesses of the locality of Kharwawad. Learned APP has further submitted that there was ample evidence produced by the prosecution to sustain the conviction of the appellants and, therefore, the conviction appeal filed by the appellants be dismissed. 16. The evidence of the complainant, P.W.1, Prashantkumar Amrutlal, is full of contradiction and omission. His uncorroborated testimony with regard to the incident which had taken place on October 13, 1991, is highly improbable and does not inspire any confidence. No names of the persons who had come to quarrel with the complainant on October 13, 1991 were disclosed by the complainant. No witnesses, due to whose intervention the dispute of 13.10.1991 was resolved, were examined. In view of these infirmities in the evidence, we are not inclined to believe the prosecution case that there was previous enmity between the complainant and the persons of locality of Machhiwad. With regard to the incident of 16.10.1991, the evidence of the complainant also suffers from serious infirmities. According to him, the accused No.4 had come to him and had threatened to kill him. Thereafter, he had conveyed the said incident to one Rajesh, who in turn had called the police. No such message conveyed to the police was produced by the prosecution nor the said Rajesh who called the police by conveying the message through telephone was examined. The evidence of the complainant is of highly doubtful and improbable. Even though he posed to be an eye-witness, in fact, he had not witnessed the incident and had run away and hidden himself near the compound of Saishav Hospital. The complainant had enmity and grudge against the appellant No.1 and, just to take revenge, he had falsely involved the original accused No.14 and the brothers of the appellant No.1 as the accused in the case even though he was not present at the time of the incident. The complainant, in cross examination, had admitted that, after collecting information from the persons gathered at the place of the incident, he had lodged the First Information Report. He also admitted that the police had already started preparing panchanama of the place of incident and, thereafter, he had lodged his complaint. From the evidence of P.W.1, the complainant, it becomes clear that even though he was not present and he had not witnessed the incident, he had tried to pose himself as eye-witness by collecting information from other sources. As per the case of the prosecution, the complainant had lodged the First Information Report before P.I. Chowdhary at 1.20 hrs. on October 17, 1991. In this connection, it is worthwhile to refer to the oral testimony of P.W.7, Jitendrakumar Balubhai Tolawala. This witness, in cross examination, deposed that he had declared before the P.W.1 that at the time of the incident he was present. This declaration was made by him on the next day of the incident. He has deposed that, after he