CR.A/983/1993 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 983 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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 ? ========================================================= HAIDERKHAN M BABI & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR AY KOGJE for Appellant(s) : 1 - 2. MR HL JANI, ADDL PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 28/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) CR.A/983/1993 2/16 JUDGMENT 1.0 The present appellants were originally represented by Mr. Vivek Barot, learned advocate. However, since Mr. Barot expired in December, 1998, notice was issued on 27.02.08. As both the appellants were absconding, the endorsement shows that it is not served. In view of the matter being very old, in the interest of justice, this Court has requested Mr. A.Y. Kogje, learned advocate to represent the appellants as amicus curie to which he has consented. 1.1 Before proceeding with the hearing of the matter, Mr. H.L. Jani, learned APP has raised a contention that in view of the decision in the case of Daya Shankar Singh and another vs. State of Bihar reported in 2005 Cri.L.J 482, the matter is required to be dismissed since both the accused are absconding. Nevertheless, as Mr. Kogje is representing the appellants, this Court has thought it fit to decide the appeal on merits instead of deciding the same on technical grounds. 1.2. Heard Mr. A.Y Kogje, learned advocate appearing as Amicus Curie for the appellants and Mr. H.L. Jani, learned APP for the State. 2.0 By way of this appeal, the present appellants- original accused have challenged the judgement and order of conviction and sentence dated 25.08.93 passed by the Additional Sessions Judge, Mehsana in Sessions Case No. 213 of 1992 whereby the present CR.A/983/1993 3/16 JUDGMENT appellants-original accused are found guilty for the offence punishable under section 302 read with section 34 of Indian Penal Code and thereby sentenced to rigorous imprisonment for life. 2.1 The case of the prosecution is that the complainant and Shri Bhikhabhai Barot-the victim were jointly doing business of selling beetle leaves (hereinafter referred to as 'pan') and cigarettes in a shop owned by them as Royal Pan House. Similarly the father of the appellants and the appellants were doing the same business adjacent to the complainant's shop in the name of Rajkamal Pan House. 2.2 It is the prosecution case that there have been incidents of dispute in the past regarding the dumping of straw (dry grass which comes alongwith the beetle leaves in the basket) in front of the Royal Pan House-shop of the complainant and Shri Bhikhabhai Barot. On 06.06.92, it is stated that the appellants again dumped straw in front of the shop of the complainant. The victim objected to the same and an altercation took place. 2.3 Thereafter, on 07.06.92, in the evening at around 7.00 pm while the complainant and the victim were at their shop, the victim informed the complainant that he is going to Kaniya Cold Drinks, which is a hand cart, to have water. After the victim proceeded towards the said Kaniya cold drinks, it is the prosecution case that the complainant saw CR.A/983/1993 4/16 JUDGMENT the appellants going towards Kaniya Cold Drinks. Apprehending some sort of trouble, the complainant also headed towards the said cold drink cart. 2.4 Reaching there, the complainant finds a fight going on between the appellants-accused and his uncle-Shri Bhikhabhai Barot. The complainant saw that the appellants-accused attacked his uncle with weapons and inflicted blows on the vital parts of the body. The appellant no. 1 Haiderkhan Babi inflicted blows on the stomach, nose and chest of the victim with a knife whereas the appellant no.2 has inflicted blows with knife on the neck, chest and back of the victim. The appellants-accused then fled away from the scene of offence when people gathered at the scene of offence. The injured collapsed as a result of the said injuries and blood was oozing out from the injured parts and therefore the complainant took the injured to the Civil Hospital in an auto-rickshaw with the help of a tea stall owner one Bhimaji. However, after reaching the hospital, the injured was declared dead. 2.5 The Police Inspector, Mehsana city police station has immediately reported the said incident to the police station where an offence under section 302 and section 34 of the Indian Penal Code was registered against the appellants-accused. On receipt of the vardi from the police station, P.I Parmar has taken immediate precaution to see that no untoward incident happens because of the said CR.A/983/1993 5/16 JUDGMENT incident. He has also gone to the Civil Hospital and done inquest panchnama after calling the witnesses and after filling the marnotar form. The body was then sent for post mortem. The panchnama of the clothes of the victim was also prepared. Thereafter, he has recorded the statement of different witnesses namely Jitubhai Prajapati, Kishanlal and Dashrathbhai and others. 2.6 The accused were not traceable and therefore on the next day he has done panchnama of the scene of offence and collected the slippers, spectacles and the mud from the scene of offence for further investigation in the presence of different panchas. Even on that day the appellants-accused were not available at their house. However, the weapons used for the offence were seized in the presence of the panchas and the further statements of the witnesses namely Arvindbhai Somalal, Dinesh Munshilal, Bhikhaji Kaluji, Dipaji Kasaram, Pramodkumar Ratilal, Bhupendra Babulal, Himmatlal Sakadchand, Hasmukhbhai Jaha were recorded. 2.7 On 09.06.92, the P.I recorded statements of the shopkeepers near the scene of offence. P.S.I Shri Desai arrested the appellants at night and prepared arrest panchnama. The appellants were then produced at the police station. On 10.06.92, the appellant Haiderkhan showed his willingness to show the location of the weapons used at the time of offence. Therefore the P.I alongwith two panchas went to the CR.A/983/1993 6/16 JUDGMENT spot indicated by the appellant Haiderkhan. After preliminary panchnama was prepared, the P.I and the panchas were taken to the Pir Dargah near a lake and there a big and small knife were taken out from a heap of garbage. 2.8 The appellants were then produced before the court and seven days' remand was sought which was granted. During the period of remand, interrogation was done. After the expiry of the remand period, the appellants were sent to judicial custody and the weapons seized from the scene of offence, weapons collected at the behest of the appellants, the blood stained clothes of the victim were forwarded for FSL for further investigation. 3.0 Thereafter, on receipt of the post mortem note and FSL report, charge-sheet was filed on 17.07.93. Since the charge-sheet was filed before the Chief Judicial Magistrate and since the case was exclusively triable by Sessions Court, it was committed to Sessions Court, Mehsana and was allotted to Additional Sessions Court. Since the appellants- accused did not plead guilty, the charge was framed. 3.1 The prosecution has examined 14 witnesses namely Keshuji Saguji Vihol(PW1) Ex. 18-Maintenance Surveyor, Mehsana City Survey Office, Kaushikkumar alias Lalo Bhailal Barot(PW2) Ex.19- Eyewitness/complainant, Ambashankar Ramshankar Dave (PW3) Ex. 30 Panch witness, Arvindkumar Sonpal CR.A/983/1993 7/16 JUDGMENT Gupta(PW4) Ex.33-witness, Jitubhai Mithalal Prajapati(PW5) Ex. 34-Witness, Dr. Nimesh Ramanlal Shah(PW6) Ex. 36-Medical Officer, Rameshchandra Somnath Rawal(PW7) Ex. 38-Panch Witness of the scene of offence, Jayrajsinh Bhagwatsinh Rathod (PW8) Ex. 40-Panch witness of the clothes of the victim, Circle Inspector Rameshbhai Somabhai Patel (PW9) Ex. 44- who prepared map of scene of offence, Balsinh Diwansinh Jhala (PW10) Ex. 46-Panch witness, Dharmeshkumar Manharlal Patwa (PW11) Ex. 48-Panch witness, Gandalal Velabhai Desai (PW12) Ex. 50-PSI, Hasmukhbhai Anandprasad Jaha (PW13) Ex. 51-Lawyer, Shivnathsinh Anandsinh Parmar (PW14) Ex. 52-P.I. 3.2 The prosecution has relied upon certain documents namely complaint filed by the complainant Ex. 53, Inquest Panchnama Ex. 21, Post Mortem note Ex. 37, Panchnama of scene of offence Ex. 39, Panchnama of clothes of the victim Ex. 24, Panchnama of the body condition of the victim Ex. 47, Yadi of sending the accused to Civil Hospital to have their eye sight checked Ex. 25, Report of the eye sight check of the accused no.1 submitted by the medical officer Ex. 26, Report of the eye sight check of the accused no.2 submitted by the medical officer Ex. 27, Despatch receipt of sending the articles for FSL Ex. 28, Acknowledgment of receipt of the articles by FSL Ex. 29, FSL report Ex. 30, map of the scene of offence Ex. 45. 3.3 On filing of the closing pursis, the Sessions CR.A/983/1993 8/16 JUDGMENT Court has recorded the statements of the accused under section 313 for incriminating evidence against the accused and after hearing both the sides the Court below has convicted both the appellants by passing the order of conviction and sentence as stated hereinabove. 4.0 Mr. A.Y. Kogje, learned advocate appearing for the appellants-accused has broadly submitted that the case of the prosecution is mainly based on three witnesses namely medical evidence of the doctor, the P.S.I and investigating officer Mr. Parmar. He has submitted that both the accused have recorded their contentions that it not possible to see clearly from the shop of the complainant the place of Kaniya cold drinks and since he is the relative of the victim he has falsely involved the appellants. 4.1 It is also further contended that the rickshaw driver in whose rickshaw the victim was taken to the hospital is not examined. He has submitted that had the rickshaw driver been examined by the prosecution he would have surely thrown some light on the actual facts of the case. 4.2 Mr. Kogje, learned advocate submitted that the police has also created a false evidence to support the false case of the complainant. The weapons which are shown to be recovered under Section 27 is not done willingly and the injuries which are shown in the post mortem note are not possible with the CR.A/983/1993 9/16 JUDGMENT weapons. 4.3 It is further contended that the blood group of the victim and the accused are the same which came to light when they donated blood and that they are falsely involved in the present case because of business rivalry. 4.4 Mr Kogje has also taken us through the statement of Dr Nimesh Shah-PW6 Ex. 36 and also through the post mortem note. The cause of death of the victim is stated to be due to internal hemorrhage and the injuries received were stated as under: 1. A tansuerse 2x1/2 c.m.x. Teeth deep stab wound on middle of upper Lip. 2. 2x1/2xBove deep (c.m.s.) stab, Truserse on lt, side of Nose lt. Side of Face there. 3. 11/2x1/2x cavity deep stab wound on Rt. Upper chest in second Intercostal space at costal cartiage Lying Transuersety & extending towards Rt. Side. 4. 3x1x cavity deep stab on middle of epigastrium Truvisverse with clear cut margins & both Acute Angles extending abiguly towards Rt. Side. 5. 3x11/2 cm. X cavity deep stab wound with clear cut margins & both Acute Angles lying obigulty on just Rt. Side of umbilicus with protrusion of small Intestine loop through it. 6. 1x1/2 x 1 cm. Vertical stab on Lt. Groin in middle Anteriorty. 4.5 It is submitted that all the above injuries were anti mortem and sufficient to cause death by the above mentioned weapons. The prosecution has also CR.A/983/1993 10/16 JUDGMENT examined the police witnesses and has proved the panchnama of scene of offence including recovery of weapon and has proved that both the appellants are involved in the alleged offence. 4.6 Mr. Kogje has further submitted that the appellants are wrongly roped in in the offence. He has submitted that the business rivalry between the complainant and the appellants has led the complainant to wrongly involve the appellants in the present case. 4.7 Mr. Kogje has also submitted that there is no eye witness except the nephew of the victim. He has submitted that the statement of the eye witness being the relative of the victim cannot be taken at its face value as the same would be biased and prejudiced. He has submitted that apart from the complainant no other eyewitness, if any, has been examined and therefore this is a fit case for this Court to cause interference in the matter and thereby allow the appeal of the appellants. 4.8 He has submitted that the blood stains found on the body is of the accused himself as the accused and the victim shared the same blood group. He has further stated that the prosecution has not proved the case beyond doubt thereby leaving a room for causing interference by this Court. 5.0 Mr. H.L. Jani, learned APP has submitted that CR.A/983/1993 11/16 JUDGMENT both the accused are absconding and in view of the decision of the Apex Court in the case of Daya Shankar Singh (supra), this appeal deserves to be dismissed. 5.1 Mr. Jani has submitted that however, even if the court is inclined to proceed with the matter on merits, the prosecution has proved the case beyond doubt in view of the evidence of the eye witness, medical evidence and other witnesses and therefore no interference is called for in the present matter. 6.0 This Court has perused the papers and relevant documents on record. On a close scrutiny of the medical evidence and the post mortem note and the injuries found on the dead body, it is clear that all the injuries are anti mortem. Going by the details of the eye witness, other witnesses and the medical reports, it is borne out that the death of the victim is a homicidal one. The evidence of the witnesses is consistent all throughout the course of the proceedings and the same supports the medical evidence. 6.1 Learned advocate for the prosecution has examined the complainant Kaushik Kumar alias Lalo-PW2 Ex. 19. He has stated that the victim is his uncle and they have a 'pan' and tobacco shop known as Royal Pan House. He has stated that he and his uncle both run the shop by opening the shop at around 6.00 am till 11.00 pm. He has stated that he knows both the CR.A/983/1993 12/16 JUDGMENT accused and that their shop named Rajkamal Pan House is situated near the shop of the complainant and carrying out business of pan and cigarettes in addition to selling plain bettle leaves. It is stated in the complaint that the appellants-accused used to throw straw which came in the box containing green beetle leaves as a result of which there used to be frequent verbal fights between them. It is further stated that eight to ten months prior to the happening of the incident the complainant and the victim had purchased a shop behind their present shop and that created a feeling of jealousy amongst the appellants. 6.2 The complainant has stated that even on 06.06.92 such a verbal exchange of words took place between the victim and the appellants. The victim had asked the appellants to find another place to dump their waste material to which the appellants got furious and started abusing the victim. It is stated that the complainant then intervened in the fight and brought the situation back to normal. 6.3 It is also stated that the incident happened on 07.06.92 and that the victim and the complainant as a daily routine were present in the shop since morning. At around 6.45 pm, the victim told the complainant that he was going towards the Kaniya Cold Drink Cart which was stalled near water tank to have water. One Shri Arvindbhai Gupta was present there and therefore the victim and the said Arvindbhai sat on the bench CR.A/983/1993 13/16 JUDGMENT near the kaniya cold drink cart. The complainant stated that he saw the appellants going towards Kaniya Cold Drinks while his uncle and the said Arvindbhai were seated there. When the appellants reached there the situation tensed up and the nearby cart vendors also gathered there. Seeing this the complainant started to proceed towards Kaniya Cold Drinks. On the way at a distance of about 8-10 foot, the complainant has stated that he saw his uncle standing with his hands covering his mouth and blood dripping from his hands. He has stated that the appellants-Hamidkhan and Haiderkhan were attacking his uncle with big and small knives. Haiderkhan was armed with a small knife whereas Hamidkhan was armed with a big one. The complainant has stated that he saw Haiderkhan injuring his uncle on chest with a small knife whereas Hamidkhan injured the victim on the left side of his abdomen. Both the appellants were attacking his uncle simultaneously. Apart from this Haiderkhan also stabbed the victim on his stomach several times and thereafter fled from the spot with their weapons. It is stated that blood was oozing out from the injured part and the victim thereafter collapsed. The complainant then took his uncle in an autorickshaw accompanied by the tea stall owner Bhimaji to Civil Hospital where the doctor examined his uncle and proclaimed him to be dead. 6.4 As regards the involvement of the present appellants is concerned, the prosecution has successfully proved the same by way of eye witness. CR.A/983/1993 14/16 JUDGMENT The other witnesses corroborate the version of the complainant. We are of the opinion that the evidence and the concerned statements are trust-worthy. The complainant has stuck to his statements which he has made in the FIR and the one which he has narrated at the time of deposition. 6.5 In that view of the matter, it is clear that both the accused were present on the date of the incident at the place of incident. It is further supported by the version of Shri Jitubhai PW5-owner of Kaniya Cold Drinks Cart near whose cart the incident has happened and by his evidence the prosecution has proved the presence of both the appellants at the place of incident. 6.6 The evidence of Shri Jitubhai PW5, owner of the Kaniya Cold Drinks Cart is perused by this Court. He has stated that on 07.06.92, at around 6.45 pm, he was standing with his cold drink cart. There were lady customers at my cart and at that time the victim arrived and sat in the bench near the cart. He has stated that Shri Arvindbhai was also seated on the bench. After about 10 minutes, the appellants namely Haiderkhan and Hamidkhan arrived and stood near the victim. Verbal abuse took place between the appellants and the victim. Shri Jitubhai has stated that the appellant no.1-Haiderkhan was having a small knife whereas the appellant no.2-Hamidkhan was carrying a big knife. CR.A/983/1993 15/16 JUDGMENT 6.7 He has though stated that he could not see which of the appellants injured the victim in which way but he could see that the victim sustained injuries and collapsed and as a result of the shouts the appellants ran away. He has stated that he could see blood oozing out from the nose and thighs of the victim and that the complainant and tea stall owner Bhikhabhai took the victim to hospital. 6.8 The prosecution is therefore successful in proving the case beyond doubt regarding the involvement of the present appellants-accused in the present case. Over and above the recovery panchnama which was prepared by the police has been proved by the prosecution. The prosecution has also established the presence of both the accused at the time of incidence supported by the witnesses whose presence is also natural at the time of incidence. 6.9 Going by the medical evidence also, it becomes clear that the death of the victim is a homicidal one which is supported by the oral evidence of the witnesses including the eye witness. The particular use of weapons and the injuries sustained, the recovery of weapons and the FSL report corroborate the evidences of the witnesses and thereby support the case of the prosecution. 7.0 In view of the above, the prosecution has successfully proved the involvement of the present appellants in the present case with the weapons which CR.A/983/1993 16/16 JUDGMENT is also supported by the FSL report. In that view of the matter, we are of the opinion that no interference is called for in the present matter. We are in complete agreement with the reasonings adopted and findings arrived at by the trial court and the appeal therefore deserves to be dismissed. 16. Accordingly, this appeal is dismissed. The order of conviction and sentence recorded against the appellants is hereby upheld. [R.P.DHOLAKIA, J.][K.S. JHAVERI, J.] Divya//