IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 334 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE AKSHAY 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 Civil Judge? : NO @ HARIJAN KANJIBHAI MADHABHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 334 of 1993 MR DF AMIN for Petitioner No. 1-2 MR KG SHETH, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 24/09/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) 1. By filing this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, the appellants have challenged legality of judgment dated 25/1/1993 rendered by the Ld. Addl. Sessions Judge, Mehsana in Sessions Case No. 34/1988 by which they are convicted of the offences punishable under Sections 302 and 307 read with sections 114 and 34 of the Indian Penal Code as well as section 135 (1) of the Bombay Police Act, 1951 and punished with rigorous imprisonment for life for the offences punishable under sections 302 and 307 read with section 114 and 34 of the Indian Penal Code and fine of Rs.200/-, in default simple imprisonment for seven days as well as imprisonment till rising of the Court and fine of Rs.200/-, in default SI for seven days for the offence punishable under Section 135(1) of the Bombay Police Act, 1951. 2. Briefly stated the prosecution case is as under. Deceased Vashrambhai Nathabhai Chamar was resident of village Vaghrol, Taluka Sidhdhpur, District Mehsana . He had an agricultural field known as Dhedhvada situated in the sim of village Vaghrol and the field was admeasuring about one and half Vigha and he was pursuing agricultural operations. He had four sons, namely (1) Kalubhai Vashrambhai, (2) Valabhai Vashrambhai, (3) Govabhai Vashrambhai and (4) Galalbhai Vashrambhai. Govabhai had died before the incident in question took place, whereas Galalbhai had left house of the deceased long back. The appellant no. 1 i.e. Kanajibhai Madhabhai is nephew of the deceased, whereas the appellant no. 2 is the son of the appellant no.1 and original accused no. 3 Amariben is wife of nephew of the appellant no.1. The field of the appellant no. 1 is situated near the field of the deceased. The incident in question took place on November 22, 1987 at about 8.45 a.m. The deceased had divided the field amongst his sons and himself. A sloping water course for watering crops grown in the field of Kalubhai who is son of the deceased was made and was passing near the boundary of the field of the appellant no.1. The appellant no. 1 had breached the said sloping water course and, therefore, the deceased and his sons had made another sloping water course from the field of one Husenbhai and were watering crops grown in their fields. From the said sloping water course, the appellants were also deriving water for the crops grown in their fields. On the date of incident original accused no. 3 Amariben breached the sloping water course made from the field of Husenbhai and had diverted water towards the fields of the appellants. Therefore, Dharmaben, who is wife of Kalubhai, told the original accused no.3 that the water was needed for the crops grown in the field of deceased and the water should not have been diverted by the accused no.3 towards the fields of the appellants. So saying Dharmaben had attempted to plug the breach and at that time original accused no. 3 Amariben had given blow with a shovel on waist of Dharmaben. Original accused no. 3 had tried to inflict another blow with shovel on Dharmaben and when Dharmaben tried to ward off the same, she received injuries on fingers of left hand. On assault being mounted by original accused no.3 Amariben, Dharmaben had started running towards the field of Valabhai and had raised shouts. On shouts being heard Valabhai had come to her rescue and found that the appellants were also chasing Dharmaben and at that time the appellant no. 1 had an axe with him, whereas the appellant no. 2 had a stick with him and juvenile offender Rameshbhai has also a stick with him. As Valabhai tried to rescue Dharmaben, the appellant no. 1 caused an injury on head of Valabhai by means of axe, whereas the appellant no. 2 caused an injury on right hand of Valabhai by means of his stick and juvenile accused Rameshbhai caused injury on left hand of Valabhai by means of his stick. As Valabhai was assaulted by the appellants and juvenile accused, his father deceased Vashrambhai Nathaji tried to rescue his son. Therefore, the appellant no. 1 gave a blow with blunt portion of axe on head of deceased Vashrambhai Nathabhai, whereas the appellant no. 2 gave a stick blow on the head of the deceased Vashrambhai Nathaji. Because of the injuries sustained, deceased Vashrambhai died on the spot. Thereafter, Babubhai, who is son of Kalubhai informed Kalubhai who was then working in the field of one Daud Jalad about the incident in question. On learning about the incident, Kalubhai reached the field of the deceased and found that several persons had collected there. On examination he found that his father had expired, whereas his wife Dharmaben, his brother Valabhai and his nephew Pravinbhai were injured. Valabhai Vashrambhai was removed to Government Dispensary, Kakoshi in a tractor, but doctor had refused to treat Valabhai as the police was not informed about the incident. Kalubhai had therefore lodged complaint at Kakoshi Police Station against the appellants which was registered by Police Officer incharge of the police station. Dharmaben who is wife of Kalubhai as well as Pravinbhai, who is nephew of Kalubhai and Valabhai Vashrambhai were initially treated at the Government dispensary Kakoshi, wherefrom they were referred to Sidhdhpur Municipal Hospital for further treatment. At Sidhdhpur Municipal Hospital it was found that Valabhai Vashrambhai had sustained serious injuries and, therefore, he was removed to Ahmedabad Civil Hospital for better treatment by experts. At Ahmedabad Civil Hospital Valabhai Vashrambhai was initially treated by Dr. Satish Madhusudan Pandya and Dr. Pandya had referred Valabhai for further treatment to Orthopaedic ward. After initial treatment at Orthopaedic ward, Valabhai Vashrambhai was referred to Neuro Surgery Department of the hospital and was treated there by Dr. Dipakkumar D. Patel. Valabhai Vashrambhai was discharged from hospital on December 5, 1987. Meanwhile the complaint which was lodged by Kalubhai was initially investigated by Second Police Sub Inspector Mr. G.V. Gohil of Kakoshi Police Station and thereafter by Mr. P.J. Choudhari, who was Senior P.S.I. of Kakoshi Police Station. The Investigating Officer had held inquest on the dead body and made arrangement for sending the dead body for post mortem examination. The post mortem examination was made by Dr. Rajesh Vrajlal Shah, who was then Medical Officer of Sidhdhpur Municipal Hospital. During the course of investigation the appellants and other accused were arrested and weapons used in the commission of crime as well as other incriminating articles were discovered pursuant to voluntary disclosure made by the accused and seized under different panchnamas which were prepared in the presence of independent witnesses. On conclusion of investigation the case against juvenile offender was separated, whereas the appellants and original accused no. 3 were charge-sheeted in the Court of Ld. Judicial Magistrate First Class, Sidhdhpur of the offences punishable under sections 302, 307, 114 and 34 of the Indian Penal Code as well as section 135 (1) of the Bombay Police Act, 1951. As the offences punishable under sections 302 and 307 are exclusive triable by Court of Sessions, the case was committed to the Sessions Court, Mehsana for trial, where it was numbered as Sessions Case No. 34/1988. 3. The charge at Exh.3 was framed by the Ld. Addl. Sessions Judge, Mehsana against the appellants and original accused no. 3 Amariben of the offences punishable under sections 302 and 307 read with sections 114 and 34 of the Indian Penal Code as well as section 135 (1) of the Bombay Police Act. Further the charge under section 323 of the Indian Penal Code was also framed against original accused no.3 Amariben. The charge was read over and explained to the appellants as well as original accused no. 3 Amariben, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore examined (1) complainant Kalubhai Vashrambhai P.W.1 Exh.16, (2) injured Valabhai Vashrambhai P.W.2 Exh. 20, (3) injured Dharmaben Kalubhai P.W.3 Exh.22, (4) Dr. Rajesh Vrajlal Shah P.W.4 Exh.23, (5) injured Pravinkumar Valabhai Parmar P.W.5 Exh.34, (6) Ismail Suleman P.W.6 Exh.35, (7) Dr. Satish Madhusudan Pandya P.W.7 Exh. 38 (8) Dosanbhai Suleman P.W.8 Exh.44 (9) Rasulbhai Gulambhai Choudhari P.W.9 Exh.53, (10) Dr. Dipakkumar Devkaran Patel P.W.10 Exh. 58 and (11) Investigating Officer Parthibhai J. Choudhari P.W.11 Exh. 61 to prove its case against the appellants and original accused no. 3. The prosecution also produced documentary evidence such as complaint filed by Kalubhai Vashrambhai , post mortem notes of the deceased prepared by Dr. Rajesh Shah, injury certificates of witnesses Pravinbhai Valabhai, Dharmaben Kalubhai and Valabhai Vashrambhai, panchnamas of discovery of weapons, medical papers prepared by Dr. Satish Pandya as well as by Dr. Dipakkumar Patel, etc. in support of its case against appellants. After recording of the evidence of the prosecution witnesses was over, the Ld. Judge explained to the appellants as well as original accused no. 3 Amariben the circumstances which were appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by section 313 of the Code of Criminal Procedure, 1973. In their further statements the appellants denied the case of the prosecution and claimed that they were falsely implicated in the case because of dispute relating to the field, however, neither the appellants nor original accused no. 3 Amariben examined any witness in support of their defence. 4. On appreciation of evidence adduced by the prosecution, the Ld. Judge held that it was proved by the prosecution beyond reasonable doubt that deceased Vashrambhai Nathabhai Chamar had died a homicidal death, whereas injured Valabhai Vashrambhai had sustained serious injuries on his head which were likely to cause his death and had also sustained fractures on both the hands. The Ld. Judge further held that it was proved that injured Dharmaben and injured Pravinbhai Valabhai had also sustained injuries as stated in the medical certificates. The Ld. Judge referred to and relied upon the evidence of injured Dharmaben, injured Valabhai as well as injured Pravin Valabhai and held that the original accused no. 3 Amariben had caused simple injury to Dharmaben and had committed offence punishable under section 323 of the Indian Penal Code, whereas the appellant no. 1 had caused injury on the head of Valabhai Vashrambhai by means of an axe and appellant no. 2 had caused an injury on the right hand of Valabhai Vashrambhai which had resulted into fracture and, therefore, the appellants were liable to be convicted of the offence punishable under section 307 read with sections 114 and 34 of the Indian Penal Code. The Ld. Judge after placing reliance on the testimony of the injured witnesses, held that it was proved by the prosecution beyond reasonable doubt that the appellant no. 1 had caused injury on the head of the deceased Vashrambhai by means of an axe, whereas the appellant no. 2 had caused an injury on the head of the deceased by means of a stick and that the appellants were liable to be convicted of the offences punishable under section 302 read with sections 114 and 34 of the Indian Penal Code. The Ld. Judge further deduced that the appellants and original accused no. 3 Amariben had committed breach of notification issued u/S. 37 of the Bombay Police Act and, therefore, liable to be convicted u/S. 135 (1) of the Bombay Police Act. In view of the above referred to conclusions, the Ld. Judge has convicted the appellants of the offence punishable under sections 302 and 307 read with sections 114 and 34 of the Indian Penal Code as well as section 135(1) of the Bombay Police Act and imposed sentence, which is referred to earlier, by judgment dated January 25, 1993, giving rise to the present appeal. 5. Mr. D.F. Amin, the learned counsel for the appellants after taking us through the entire evidence on record submitted that complainant Kalubhai had not witnessed the incident in question at all and had learnt about the incident from his son Babubhai and, therefore, his testimony is of no assistance to the prosecution. The learned counsel for the appellants pleaded that the claim of Dharmaben that she had gone to her field at about 8.00 a.m. in the morning on the date of incident is not corroborated by evidence of other witnesses and as she is not a reliable witness and has suppressed the real incident, the Court should not rely upon her evidence for the purpose of convicting the appellants of the offences with which they were charged. According to the learned counsel, witness Dharmaben was not present at the time of the incident and as cause of the incident which is stated by her is found to be false, her evidence should be discarded while evaluating the evidence of prosecution witnesses against the appellants. Further it was pointed out that her evidence regarding she having been chased and injury to the deceased is not reliable because according to her she had become unconscious on receipt of injuries at the hands of original accused no. 3 Amariben and therefore, her evidence should be excluded while considering the case against the appellants. After referring to the testimony of injured Valabhai Vashrambhai , the learned counsel urged that his evidence establishes that he has suppressed the real incident which had taken place and as his evidence is inconsistent with that of Dharmaben, his evidence should also not be relied upon by the Court. According to the learned counsel, Dharmaben in her evidence has stated that all the accused were following her, whereas injured witness Valabhai has stated that accused nos. 1 and 2 i.e. the present appellants were coming towards him and, therefore, his untrustworthy evidence should be rejected by the Court as not inspiring confidence. The learned counsel further submitted that it is evident from the deposition of injured witness Valabhai Vashrambhai that he has exaggerated the blows given to him as well as to the deceased and, therefore, it is not safe to rely upon his deposition for the purpose of convicting the appellants. After detailed reference to the testimony of child witness Pravinbhhai Valabhai, the learned counsel claimed that the child witness was tutored by his father and as his evidence is contradictory to the evidence of Dharmaben, his evidence should not be acted upon by the Court. The learned counsel contended that the medical evidence on record does not establish that injured Valabhai Vashrambhai had sustained fracture on his right hand and, therefore, even if it is held that evidence of Valabhai Vashrambhai can be acted upon for the injuries sustained by him, the appellant no. 2 could not have been convicted under section 307 of the Indian Penal Code with the aid of section 34 of Indian Penal Code and his conviction should be altered to one under Section 324 of the Indian Penal Code. The learned counsel pleaded that the medical evidence on record shows that the injuries sustained by the deceased were possible by two blows given with same weapon and, therefore, the appellant no. 2 could not have been convicted of the offence punishable under Section 302 read with sections 114 and 34 of the Indian Penal Code. What was claimed was that the appellant no. 1 had neither the intention to cause the death of the deceased nor the intention of causing such bodily injury which was sufficient in the ordinary course of nature to cause death nor had the knowledge that it was so eminently dangerous that the injury caused would in all probability cause the death of the deceased and, therefore, his conviction under Section 302 should be altered to one under Section 326 of the Indian Penal Code and the punishment imposed on him should be suitably modified. The learned counsel emphasized that the evidence on record has been misappreciated by the Ld. Judge and that the appeal should be allowed by reversing the impugned judgment. 6. Mr. K.G. Sheth, Ld. APP submitted that the presence of injured witnesses at the time of incident is hardly in doubt and, therefore, it is safe to act upon their depositions for the purpose of convicting the appellants of the offences with which they were charged. The Ld. APP for the State submitted that injured Dharmaben Kalubhai is not only supported by medical evidence on record regarding her injury, but is also corroborated by testimony of injured witness Valabhai Vashrambhai as well as injured Pravinkumar Valabhai Parmar and therefore, the Ld. Judge did not commit any error in placing reliance on her deposition for the purpose of believing the prosecution case. According to the learned counsel injured Dharmaben, injured Valabhai and injured Pravinkumar Valabhai being close relatives of deceased Vashrambhai would not allow the real culprits to go scot-free and would not involve the appellants in such a serious offence falsely when no enmity is established on the record of the case and, therefore, their testimony should be acted upon by the Court. What was stressed was that the injured witnesses have given the account of incident as they had seen and observed and even if some minor contradictions or exaggerations are found in their evidence, the same should be ignored, but the whole prosecution case should not be doubted by the Court. It was urged on behalf of the State that the evidence of injured eye witnesses establishes beyond reasonable doubt that the appellant no. 1 had inflicted blow with back portion of an axe on the head of the deceased, whereas the appellant no. 2 had inflicted stick blow on the head of the deceased and as the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause his death, the conviction of the appellants of the offences punishable u/S. 302 read with sec. 34 of the Indian Penal Code should be upheld. The learned counsel pleaded that the evidence on record and more particularly the evidence of injured Valabhai establishes that the appellant no. 1 had caused injury on head of Valabhai by means of an axe, whereas the appellant no. 2 had caused injury on the right hand of Valabhai, which had resulted into fracture and, therefore, the conviction of the appellants u/S. 307 read with section 34 of the Indian Penal Code being eminently just, should be confirmed by this Court. The learned counsel further pointed out that the evidence adduced by the prosecution is not only reliable but consistent as well as cogent and, therefore, the just conviction of the appellants recorded by the Ld. Judge of the trial Court should be upheld and the appeal filed by the appellants should be dismissed. 7. We have taken into consideration the submissions advanced at the bar and reappreciated the whole evidence on the record of the case. 8. The fact that deceased Vashrambhai Nathabhai Chamar died a homicidal death is not in dispute and is amply proved by the evidence on record. Dr. Rajesh Vrajlal Shah P.W.4 Exh.23, who had performed autopsy on the dead body of deceased, has stated in his evidence that on examination of dead body he had noticed C.L.W. on left frontal region having size of 1" as well as another C.L.W. on left parital region having size of 1". The doctor has further stated in his deposition that on internal examination he had found haematoma both on frontal as well a parital region and noticed depressed fracture of left frontal bone as well as multiple cracks. According to the doctor there was fracture of left parietal bone and fracture of roof plates of both eyes as well as fracture at the base of the skull. According to the medical officer the cause of death of the deceased was head injury. The injuries which were noticed by the doctor while performing post mortem examination of the dead body of the deceased, are also stated in post mortem notes produced on the record of the case at Exh.24. Further the injuries which were sustained by the deceased are also mentioned in detail in inquest report Exh. 47 which was prepared in presence of independent witnesses. There is no manner of doubt that the deceased had neither sustained accidental or suicidal injuries and had died because of the head injuries. Under the circumstances, the finding recorded by the Ld. Judge to the effect that it is proved beyond reasonable doubt that the deceased had died a homicidal death being borne out from the record of the case is hereby confirmed. 9. Dr. Rajesh Vrajlal Shah had also examined injured witness Valabhai on November 22, 1987 and had found C.L.W. on right parietal region of the size 2" x 1.1/2" and C.L.W. over right fora having the size of 0.5 cm. Further haematoma over left arm near elbow joint was found and according to the doctor, the injuries sustained by injured witness Valabhai were possible by hard and blunt substance. This witness has further stated that the injuries noticed by him on witness Valabhai were mentioned by him in certificate Exh. 27 and he had taken X-ray of the left hand right shoulder and skull of injured Valabhai. The witness has informed the Court that he had noticed crack on ulna near elbow joint. He admitted that the crack on the skull and on the ulna of right hand was not visible in X-ray plate and that injured Valabhai Vashrambhai was transferred to Civil Hospital, Ahmedabad for further treatment. The witness further stated that when Valabhai Vashrambhai was brought before him for treatment, he was conscious and had informed him that he was assaulted by means of a stick. Regarding injuries of the deceased Dr. Shah in cross-examination stated that one blow with the same weapon could not have caused two different injuries on the head of the deceased, but two injuries by two blows with the same weapon were possible. The evidence of Dr. Satish Madhusudan Pandya P.W.7 Exh.38 shows that Valabhai Vashrambhai was brought before him with transfer note of Medical officer, Municipal Hospital, Sidhdhpur and that he had treated Valabhai on November 22, 1987. The doctor has stated in his deposition that he had found sutured wound on right side parietal region of 2.5 cm. length and X-ray showed fracture of medial epicondyle left side humorous as well as fracture of ulna right side. According to Dr. pandya the above referred to injuries were noticed when X-rays of injured Valabhai were taken in Orthopaedic Ward of the hospital. This doctor has further stated that Valabhai Vashrambhai was admitted in the hospital on November 22, 1987 and was discharged from the hospital on December 5, 1987 and that his superior officer had issued the certificate. The doctor further stated that all the three fractures sustained by Valabhai Vashrambhai were serious and the injury on head could have resulted into death if complications had arisen. During the cross-examination by the defence, Dr. Pandya stated that Dr. Radhani had issued certificate Exh.39 after looking to the OPD medical papers of