IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1104 of 1995 For Approval and Signature: HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 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? -------------------------------------------------------------- RAMESHBHAI RAMNALAL VIRCHAND Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 1104 of 1995 MR RG CHHARA for Appellant No. 1 MR PM VYAS for Appellant No. 1 MS MONA B RAVAL for Appellant No. 1 MR KC SHAH APP for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 05/02/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE D.K.TRIVEDI) #. The appellant original accused of Sessions Case No. 310 of 1994 has preferred this appeal and challenged the order of conviction and sentence recorded by learned Additional City Sessions Judge, Court No. 17, Ahmedabad dated 31st August, 1995, wherein, the learned trial Judge has convicted the accused for the offence under Section 302 of the IPC and order to suffer RI for life and fine of Rs.500=00 and in default, RI for 3 months. #. The appeal filed by the appellant accused was notified for admission on 22.3.1996 and while admitting the appeal, the Court had refused the bail, however, expedited the hearing of the appeal and accordingly, the appeal is reached for final hearing before us. #. Mr. Vyas, learned advocate for the appellant accused has while taking us through the evidence consisting of oral as well as documentary and the judgement under challenge, contended before us that in view of the fact and finding recorded by the learned trial Judge, according to him, he is not in a position to contend before us that the accused deserves clean acquittal in the matter. However, while pressing this appeal, his contention is that in light of the evidence led by the prosecution and more particularly, in light of the medical evidence in respect of the incident, the conviction recorded by the learned trial Judge for the offence under Section 302 of the IPC is not proper and the conviction is required to be altered, as according to him that the case will fall under the exceptions of Section 300 and at the most, the accused can be guilty for the offence under Section 304 Part II of the IPC. In light of the submissions made before us and Mr. Vyas is not in a position to pray for clean acquittal of the accused, we are examining the contentions raised by the counsel appearing for the appellant in respect of the fact that whether the order of conviction and sentence recorded by the learned trial Judge for the offence under Section 302 of the IPC is required to be altered or not and if it is required to be altered, for what offence, the accused can be held responsible. #. Mr. K.C. Shah, learned Addl. PP has supported the judgement under challenge and according to him, though as per prosecution case, the appellant accused has inflected one blow with the weapon on the deceased, however, as per medical evidence, such blow on the deceased has resulted into death of the deceased and the learned trial Judge has rightly convicted the accused for the offence of murder. While meeting with the contention of Mr. Vyas that if the Court arises that the accused cannot be held responsible for the offence of murder and in light of the evidence of the witnesses examined by the prosecution, if the conviction is found to be altered, then according to him, the accused can be held responsible for the offence under Section 304 Part I of the IPC and not for the offence under Section 304 Part II of the IPC as contended by Mr. Vyas. #. In light of the submissions made before us and the fact that the learned trial Judge has rightly accepted the case in respect of the incident, in which, deceased Yunus had died and Mr. Vyas as accordingly, though argued the appeal, he has rightly not urged for clean acquittal of the appellant accused and accordingly, we are considering the evidence in light of the evidence raised by the counsel in brief. Deceased Yunis @ Yunus hereinafter referred to as the deceased was doing labour work and the incident in question has occurred on the platform No. 2 and 3 at Kalupur Railway Station on 19th June, 1994 in the morning at 6-00 AM and deceased Yunis @ Yunus Maradibhai Ghanchi was murdered with knife by giving dagger blow on the left side of his chest, which has caused death. It is the case of the prosecution that the appellant accused had also assaulted deceased with knife and he has also committed breach of the Notification issued by the Authority and thereby committed offence under Section 135 of the Bombay Police Act. #. Farooq Mordibhai, PW-1 is examined by the prosecution. He was working as Coolie at railway station at Kalupur Railway Station, Ahmedabad and he was having licence for Coolie. As found from his evidence, on the day of incident i.e. on 19th June, 1994 at 6-00 AM as per routine, he came at platform No. 2-3 at the railway station for search of passenger to earn livelihood as a labourer and he was standing at the tea stall at platform. His brother Yunus and Ishak came to him and told him that they want to go at Valsad and requested him to make sitting arrangement for the travel. At that time, train had not arrived on the platform and all the three brothers were standing and talking. In the meanwhile, one Shri Chandmohmad, who was also doing porter work at the railway station, came there and he also joined with them and talking at platform. At that time, accused Ramesh, who was licenced coolie, came there. Accused Ramesh asked his brother about what he is doing and his brother told that he was doing labour work. Thereafter, Yunus asked the accused why he was quarreling with his brother Farooq. Thereupon, accused Ramesh got excited and started abusing and used filthy language. Farooq and his brother Yunus told accused not to use such language and accordingly, Ramesh got more excited and Ramesh caught hold of collar of Yunus and take out knife and gave blow on the left hand side of the body of Yunus. Injured Yunus, Ishak, Chandmohmad and Farooq had also ran towards the accused and while running, his brother Yunus fell down on the track between platform No. 1 and 2 and Yunus was found lying there. Thereafter, Yunus was brought on platform No. 1 by all the three persons and took him to Shardaben Hospital. The doctor inquired from him. Thereafter the doctor has called the police persons. Farooq has disclosed about the whole incident, which has taken place on the platform. The Doctor attached to Shardaben Hospital had told him that Yunus required further treatment and accordingly, ambulance was called and the witness Farooq, his brother Ishak and Chandmohmad had brought injured Yunus to V.S. Hospital in ambulance. Yunus was taken into emergency ward for treatment. Yunus was treated by doctor. Doctor has also called the police persons and witness Farooq has disclosed the incident to the police persons. According to Farooq, his brother Yunus was unconscious, when he was taken to Shardaben Hospital and from Shardaben Hospital to V.S. Hospital. PW-1 Farooq has also describe the weapon used in the commission of offence as according to him, the weapon was sharp cutting and was having brass handle and according to the witness, the article No. 4 was the same knife, which the accused had assaulted on his brother. His brother Yunus was declared died. The police has recorded his statement as well as statement of Ishakbhai and Chandmohmad. The inquest panchnama of the dead body of his brother was drawn and he has identified the dead body of his brother. After drawing panchnama, the dead body was sent to the Civil Hospital and he has also informed Shri Parmar, Police Inspector about the incident and he has also shown the place of incident, which was recorded under panchnama. PW-1 Farooq is the real brother of deceased Yunus and as transpires from his evidence that on the faithful day i.e. on 19th June, 1994, early in the morning at 6-00 AM, he along with his two brothers were waiting for train at platform no. 2-3 as his brothers Yunus and Ishak were to go in a train at Valsad for which he was required to make sitting arrangement. Chandmohmad was also working as a porter at the railway station and all the 4 persons were talking near the tea stall at the platform and waiting for arrival of the train. The appellant Ramesh is also working as a porter having licence and he arrived at the place where these four persons were standing. According to Farooq, appellant accused Ramesh had inquired from his brother about what he is doing and on getting reply that he is doing labour work, Yunus - injured had asked accused that why he is harassing his brother Farooq and thereupon appellant accused got excited and started abusing. When the accused was told not to abuse, according to Farooq, the appellant accused had got more excited and caught hold of the collar of the deceased Yunus and took out knife and gave one blow on the body of the deceased Yunus and accused had ran away. As found from the cross-examination of PW-1 Farooq that he is working as coolie for last 4 to 5 years and he knows Chandbhai since about one year. He used to come for labour as porter on platform No. 1 and 2. There are about 616 licenced coolie working at the railway station having no union. The witness has stated that he reside with his brother and his parents. His brother Ishak is working in a garage, which is situated opposite to Maneklal Harilal Mill and said garage is at a distance of 100 meter from his residence. His brother Yunus was not knowing all the coolies, who were not having licence. He had gone to the railway station on the previous night at about 10-00 PM and at that time, he met his brothers and other family members. The other passengers and coolies were also present on the railway station and his brother came at the railway station after 15 minutes or 20 minutes at the railway platform. It is further found from the cross examination that there was no scuffle. According to him that the accused took out knife from the pocket and gave blow. There are total three tracks between platform No. 1 and 2. One Local train was standing at platform No. 1 and one another train was also standing on the platform No. 2 and no body can see from platform No. 1 to platform No. 2 from train through tracks and the accused ran away just after giving blow of knife. His brother Yunus fell down on the middle of the platform and his brother was lifted by them, in which, Chandbhai caught Yunus from the hands, his brother caught Yunus from his legs and witness has caught the injured portion of Yunus. The witness had not lifted the injured and Yunus was taken in rickshaw. No cloths of any person have stained with blood or he could not say whether the blood was found in the rickshaw. He has not given name of the assailant to doctor at Shardaben Hospital nor he has informed about the incident to his parents. He has denied the suggestion that there were two groups in Coolie of Hindu and Muslim and he has denied the suggestion that it is not correct to say that accused Ramesh has assaulted his brother Yunus. In light of the evidence of PW-1 Farooq, who is real brother of Yunus, he is working as Coolie at the railway station. Before Yunus and his brother Ishaq came after about 15 to 20 minutes and before that, he has already arrived at the platform and his two brothers have requested him to make sitting arrangement in the train, as they intend to go at Valsad. Appellant Ramesh is also licenced coolie, who also came there and there was some conversation between Ramesh and Yunus and according to PW-1 Farooq that appellant Ramesh had inquired from deceased Yunus that what he is doing and thereafter, Yunus had told appellant accused that why he is quarreling with his brother Farooq and thereafter, he caught hold of the collar of deceased Yunus and started abusing and when all of them had requested the accused not to abuse, the appellant had caught hold of the deceased Yunus and gave blow on the left side of the chest of deceased Yunus and ran away. The presence of PW-1 Farooq at the railway station is but natural and the presence of appellant accused Ramesh is also natural, as both are doing the labour work at railway platform. #. PW-2 Chandmohmad Imamba has also deposed in the similar way and according to him, that on the day of incident, as a Coolie, he had gone in the morning at about 5-45 AM at the railway station and he also joined Farooq and his brother near platform No. 2 and 3 and they were talking. Chandmohmad is aged about 24 years and he is residing at G.N. Compound, Saraspur. There was heavy crowd at the platform. He was in search of passenger and was standing near platform. He saw Farooq and Yunus were standing at platform. Farooq has inquired that where he was going and the witness has answered that he was going in search of passenger. He was talking with them and in the meantime, the licenced coolie Ramesh came, whom he knows and he was standing there. Deceased Yunus has inquired from Ramesh that what he is doing and the appellant accused has told that he is doing labour work. Thereafter, Yunus had asked accused that why you are quarreling with his brother Farooq, at that time, Ramesh got excited and started abusing by using filthy words. Yunus has told accused not to use such words and therefore, the appellant accused got more excited and accused Ramesh caught hold of collar of Yunus. Thereafter, witness and all persons went for rescue and in the meantime, Ramesh has took out the knife and gave blow on Yunus on left side and accused Ramesh ran away. Thereafter, witness, Yunus, Farooq and Ishaq also ran towards the accused and accused ran towards local train at platform No. 2. Yunus fall down. Thereafter, all came near Yunus and brought Yunus at platform No. 3 and from there, Yunus was taken to Shardaben Hospital in rickshaw and the preliminary treatment was given by Doctor. The doctor has informed them that Yunus required more treatment and accordingly, doctor asked them to take Yunus to V.S. Hospital and accordingly, they have called ambulance van and witness, Farooq, Ishaq with injured had brought Yunus at V.S. Hospital and Yunus was brought in an emergency ward, where, doctor has informed that Yunus was died. His statement was recorded by the police. He has also identified the muddamal article No. 4 - knife having brass handle as the same weapon, which was used by accused by giving blow on deceased Yunus. From the evidence of Chandmohmad PW-2, it transpires that he is working as porter at the railway station. He arrived at the platform of railway station early in the morning for search of passenger and there was heavy crowd on the platform. He was standing with other porters at the platform. He saw Farooq, Ishaq and Yunus. It is important to note that according to PW-2 Chandmohmad, it is Yunus, who has inquired from accused Ramesh that what he is doing and it is Ramesh, who has told him that he is doing labour work. Thereafter, it is Yunus, who has asked accused Ramesh that why he is quarreling with his brother Farooq and at that time, accused Ramesh was excited and started abusing and uttered filthy language and when Yunus asked accused not to use such filthy language, the accused got more excited and caught hold of the collar of deceased Yunus and when witness and other brothers of Yunus went for rescue and separated, at that time, accused took out knife and gave blow on the left side of the chest of the deceased and ran away. As found from the cross-examination of Chandmohmad that he is doing work of labour - porter at railway station since last one year and he is not having any licence for doing such labour work. It is further found that even for doing labour work, he has not purchased any platform ticket. He is also doing work for providing seats in the train. He left his residence in the morning at about 5-30 AM to 5-45 AM. Farooq, Yunus and Ishaq were standing near the tea stall know as "J.G. Stall" situated at platform No. 2 and 3 at a distance of about 2 to 3 foot and accused Ramesh came after 2 to 3 minutes. He knows Ramesh since last one year as Ramesh was doing labour work and equally, he also knows Farooq since last one year. He knows all the family members of Farooqbhai. According to him that the incident in question has occurred near the tea stall on the platform and there are many persons present near the stall. Yunus has inquired from Ramesh that what he is doing and Ramesh has replied that he is doing labour work. Thereafter, again Yunus has inquired that why he is quarreling with his brother Farooq and therefore, accused Ramesh got excited and caught hold of collar of Yunus and at that time, they went for rescue and all three persons had separated Ramesh and Yunus. According to him, even after the separation, accused Ramesh has also caught hold of collar of Yunus and even thereafter, they have separated the accused and deceased. The witness was posed about the weapon that has been used and the sharpness of the knife. It is further found from the cross-examination, he could not say whether blood come out from the body or not as they ran behind the accused to catch the accused. He could not say that whether the cloths of other persons were blood stained or not. Police persons was also there on platform No. 2 and 3 and Yunus was taken to Shardaben Hospital in a rickshaw from Kalupur. It took about 10 to 15 minutes. He could not say that there are two groups in collie of Hindu and Muslim. He has denied the suggestion that name of the accused is wrongly involved. He has denied the suggestion that at the time of incident, he was not present at the railway station as well as the time of incident, witness, Ishaq and Farooq were also not present. He has denied the suggestion that Farooq and Ishaq are of the same community and to help them, he is deposing falsely. On close scrutiny of evidence of PW-2 Chandmohmad, he is working as porter at the railway platform. He is not having any licence from the railway authority and further that he knows Farooq PW-1. According to him, witness, Farooq and his two brothers were standing near the tea stall at platform No. 3, at that time accused came. It is Yunus, who had asked the appellant accused that what he is doing and the accused has replied that he is doing labour work. Thereafter, it is Yunus, who has asked accused that why he is quarreling with his brother Farooq and at that time, accused got excited and started abusing and used filthy language. It is Yunus, who has stopped the accused from using such filthy language and therefore, accused got more exited and caught hold of the collar of the deceased Yunus. PW-1 and 2 i.e. Farooq and Chandbhai had also separated the accused Ramesh and Yunus and it is only thereafter, Ramesh had given one blow on the deceased on the left hand side chest and ran away. It is further found from the evidence of PW-2 Chandbhai that the incident in question has occurred near the J.G. Tea Stall on platform No. 2 and 3, where, there was heavy crowd. Chandbhai also knows accused Ramesh as Chandmohmad is working as porter without licence since last one year. He has denied the suggestion about two groups of Hindu and Muslim in collie at the railway station. According to evidence of PW-1 and PW-2, the accused has abused deceased Yunus by using filthy language and Ramesh has caught hold of deceased Yunus and thereafter, even after separating them by these witnesses, Yunus was assaulted by accused with knife by giving one blow. #. From the evidence of these two witnesses namely PW-1 Farooq and PW-2 Chandmohmad examined by the prosecution, it clearly show that they were present at the platform No. 2 and 3 at Ahmedabad Railway Station and deceased Yusuf after having been assaulted by the appellant Ramesh was shifted in a rickshaw first at Shardaben Hospital and from there, he was shifted to V.S. Hospital, where doctor has declared him as dead. As observed earlier in the evidence of PW-1 Farooq and PW-2 Chandbhai, when Yunus was taken in rickshaw to Shardaben Hospital, Farooq has not informed the name of assailant to the doctor and further that as per the advise of the Medical Officer attached to Shardaben Hospital, the injured Yunus was shifted for better treatment at V.S. Hospital and accordingly, injured Yunus was shifted from Shardaben Hospital in ambulance van to V.S. Hospital, where Yunus was declared dead. It also transpires from the evidence of Farooq that police has made inquiry and he has narrated the facts about the incident, which has occurred in the morning at platform No. 2 and 3 at Ahmedabad Railway Station on 19th June, 1994. #. At this juncture, we will refer and discuss the evidence of PW-12 Dr. Jivesh Divyakant, who was at the relevant time working as Medical Officer at Shardaben Hospital and at 6-35 AM on 19th June, 1994. He has examined Yunus. As found from his evidence that when Yunus was brought before him in the hospital, his condition was serious and relative of the patient has informed him that some body has assaulted with knife. The wound was discovered on the left side of injured bosom near the sixth rib bone. The patient was in a condition of shock and his physical condition was critical. He has started giving alstramin. He has deposed that there was an injury on the lungs too and on first level, the clotted blood was removed. A drainage tube was inserted in the inflicted wound. He has deposed that on seeing the seriousness of the injury, the patient was referred to the V.S. Hospital because all the facilities were available there. The patient has lost almost three liters of blood. The patient was also referred to V.S. Hospital, as there was no cardiac Surgeon available in the hospital. The medical case papers of the patient was prepared by him, which he has brought in the court and these medical case papers are on the record of the case, which are at Ex. 33. He has also issued medical certificate about the injury under his signature on the