CR.A/62420/2002 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 624 of 2002 With CRIMINAL APPEAL No. 787 of 2002 With CRIMINAL REVISION APPLICATION No. 283 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ===================================================== ==== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 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 ? No. 5 Whether it is to be circulated to the civil judge ? No. ===================================================== PRAVINKUMAR ISHVARLAL RAVAL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : Criminal Appeal No. 624 of 2002 Mr.M.C.Barot for the appellant. Ms.Mita S. Panchal, A.P.P. for the State Respondent Mr. Y.S. Lakhani, Sr. Advocate for Pravin G. CR.A/62420/2002 2/16 JUDGMENT Gondaliya for ori. Complainant. Criminal Appeal No. 787 of 2002 1.Ms. Mita S. Panchal for respondent – Appellant. Respondents No.1 and 3 served. Mr. K.B. Pancholi and Mr. T.N. Kachchhi for respondent No.2 Mr. Subhash G. Barot for respondents No.4 and 5. Criminal Revision Application No. 283 of 2002 Mr. Y.S. Lakhani Sr. Advocate for Mr. Pravin G. Gondaliya for original complainant. Ms. Mita S. Panchal, A.P.P. for respondent – State. ===================================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 03/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. Appellant – convict Pravinkumar Ishvarlal Raval has preferred Criminal Appeal No. 624 of 2002 against his conviction and sentence recorded by the judgment and order rendered on 26-6-2002 by learned Additional Sessions Judge, Fast Track Court, Banaskantha at Palanpur in Sessions Case No.108 of 2001 sentencing him to undergo life imprisonment CR.A/62420/2002 3/16 JUDGMENT and to pay fine of Rs.5000/-, in default thereof, to undergo simple imprisonment for six months for the offence punishable u/s 302 of the I.P. Code and also to undergo simple imprisonment for two months and to pay fine of Rs.500/-, in default thereof, to undergo simple imprisonment for one week for the offence punishable under section 135 of the Bombay Police Act. 2. State has also preferred Criminal Appeal No.787 of 2002 against acquittal of other accused recorded by the trial court in the aforesaid Sessions Case. 3. The original complainant has also filed Criminal Revision Application No. 283 of 2002 against the acquittal recorded in the aforesaid Sessions case. 4. As both the appeals and Criminal Revision Application No. 283 of 2002 arise out of the same judgment, all these matters are heard and decided by the common judgment. 5. According to prosecution case, complainant Sureshkumar Somabhai Rana lodged First Information Report before Palanpur Police CR.A/62420/2002 4/16 JUDGMENT Station on 1-4-2001 that one Ashokbhai Mittal of Bharat Ice-cream and one another person were installing candy plant at Baradpura and he was doing electric fitting work in the plant; that on 31-1-2001 at about 11-00 p.m. while he was doing electric fitting work, there was a blast in the plant on account of fault and therefore Ashokbhai Mittal and his partner gave abuses to him and hit him with copper welding rod; that on account of shouts, one Piyushbhai Raval with pipe, his nephew with 'gupti' and Pravinbhai Raval with knife came there; that Paresh Babulal Thakkar and Popat Mohanlal Barot were also present and on inquiry by Paresh Babulal Thakkar as to what had happened, Pravinbhai Raval attacked him with knife and hit three knife blows on his abdomen; that Piyushbhai Raval also attacked him with pipe and partner of Ashokbhai Mittal attacked Popat Mohanlal; that Paresh Babulal was taken to the hospital where he succumbed to the injuries. 6. On the basis of the complaint, offence was registered and investigation was started. At the end of investigation, charge sheet came to be filed for the offence punishable u/ss 147, CR.A/62420/2002 5/16 JUDGMENT 148, 149, 302, 323, 324 and 504 of the I.P. Code and u/s 135 of the Bombay Police Act against the accused. As the offence was triable by Sessions Court, the case was committed to the Sessions Court, Banaskantha at Palanpur and it was registered as Sessions Case No.108 of 2001. Learned trial Judge framed charge Exh. 13 against the accused for the aforesaid offence. The accused denied having committed the offence and claimed to be tried. Therefore the prosecution adduced evidence. 7. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused in their further statement recorded u/s 313 of the Code of Criminal Procedure stated that they are innocent and false case is foisted upon them. 8. After hearing the learned A.P.P. for the State and learned advocate for the accused, the trial Court convicted Pravinkumar Ishvarlal Raval, but acquitted other accused. Being aggrieved by said judgment, two CR.A/62420/2002 6/16 JUDGMENT criminal appeals and one criminal revision application as mentioned hereinabove have been preferred. 9. We have heard learned advocate Mr. M.C. Barot for appellant of Criminal Appeal No. 624 of 2002, learned advocate Mr.K.B. Pancholi for Mr. T.N. Kachhia learned advocate for respondent No. 2 and learned advocate Mr. Subhash G. Barot for respondents Nos. 4 and 5 of Criminal Appeal No. 787 of 2002 and learned advocate Mr. Pravin G. Gondaliya for learned Sr. Advocate Y.S. Lakhani for the original complainant of Criminal Revision Application No.283 of 2002 and learned A.P.P. Ms. Mita S. Panchal for the State in all three matters. 10. Leaned advocate Mr. M.C. Barot submitted that there is no consistent and convincing evidence to indicate involvement of appellant in the offence as there is conflict in the version of Police Inspector Kotad and first informant Sureshkumar Rana. It is also submitted that the signature of first informant was obtained on blank paper and no copy of the F.I.R. was given to him. Therefore, the first information report given CR.A/62420/2002 7/16 JUDGMENT by the informant raises suspicion and the presence of the first informant Sureshkumar at the place of the incident becomes doubtful. It is also submitted that the eye witnesses examined by the prosecution are chance witnesses and the prosecution has failed to prove that the deceased was assaulted at the place and time as alleged in the F.I.R. and there are discrepancies in the prosecution case and therefore benefit is required to be given to the convict. 11. Learned A.P.P. Ms. Panchal submitted that the first information report was lodged immediately after the incident and therefore there is no question of false implication. It is also submitted that the evidence of the eye witnesses is consistent and convincing and there is nothing to indicate that the signature of the first informant was obtained on blank paper and a copy thereof was not given to the appellant – convict. It is also submitted that the manner in which the incident has occurred, the learned trial Judge was justified in convicting accused Pravinkumar Raval. But looking to the evidence, the learned trial Judge committed CR.A/62420/2002 8/16 JUDGMENT error in acquitting the other accused as their involvement in the offence is clearly established. 12. Learned advocate Mr. Pravin G. Gondalia for Mr.Y.S.Lakhani learned Sr. Advocate submitted that there is reliable and convincing evidence to indicate that the acquitted accused were involved in the offence. Therefore, the learned trial Judge was not justified in acquitting the accused. 13. It appears that P.W. 6 Sureshkumar was engaged in electric fitting work in the plant and while he was doing electric fitting work, there was a blast. Therefore, accused Ashokbhai Mittal and his partner gave abuses and hit him with copper welding rod. It also appears that on hearing shouts accused Piyushbhai with pipe, accused Pravinbhai Raval with knife and nephew of Piyushbhai with 'gupti' came there and on inquiry by Paresh Babulal who had come with P.W. 10 Popatlal to meet him accused Pravinbhai assaulted him with knife and inflicted three knife blows on his abdomen and accused Piyushbhai assaulted Sureshkumar with pipe and the partner of CR.A/62420/2002 9/16 JUDGMENT accused Ashokbhai assaulted Popat Mohanlal. 14. It appears from the evidence that P.W.6 Sureshkumar and P.W. 10 Popatlal were the eye witnesses to the incident and Paresh made statements with regard to his injuries before P.W. 7 Mukeshkumar and P.W. 9 Arvindbhai. 15. The evidence of P.W. 2 Dr. Rekha Bansidhar Maheswari Exh. 31 indicates that after the incident Paresh was taken to the hospital for treatment. According to the witness, Paresh was fully conscious and was oriented. According to her, external injuries were recorded in Certificate Exh.34 and Injuries Nos. 1, 2 and 3 were possible by sharp cutting weapon and injury No. 4 was possible by hard and blunt substance. The evidence of the witness also indicates that despite treatment Paresh succumbed to his injuries and she performed postmortem of the dead body. According to Postmortem Report Exh. 36, the cause of death was shock due to cardio respiratory failure due to intra-abdominal injury. It also indicates that the external injuries found on the dead body were caused on the vital parts of the body and were CR.A/62420/2002 10/16 JUDGMENT sufficient in the ordinary course of nature to cause death. Therefore, death was homicidal in nature. 16. The evidence of eye witness P.W. 6 Sureshkumar Somabhai Rana Exh. 74 indicates that while he was doing electric fitting work in the plant, there was a blast. Thereupon, accused Ashokbhai gave him abuses and also assaulted him with copper welding rod. The evidence also indicates that accused Piyushbhai with pipe, accused Pravinbhai with knife, accused Kamlesh with 'gupti' and accused Harshadbhai came at the place of the incident and as deceased Paresh made enquiry as to what had happened, accused Pravinbhai assaulted Paresh with knife and gave three knife blows on his back. This evidence clearly indicates that the deceased was attacked only because he made inquiry. Therefore, the assault was made without any provocation. 17. The evidence of P.W. 10 Popatlal Mohanlal Barot Exh. 85 indicates that he along with deceased Paresh went to meet P.W. 6 Sureshkumar and accused Pravinbhai, accused Piyush, accused Kamlesh and accused CR.A/62420/2002 11/16 JUDGMENT Harshadbhai had quarrel with P.W. 6 Sureshkumar. It also indicates that on inquiry by Paresh accused Pravinbhai assaulted him with knife and inflicted knife blows on his back. This evidence also indicates that deceased Paresh was attacked without any provocation and three knife blows were inflicted on the vital parts of his body. 18. In view of above, the evidence of these eye witnesses is consistent and no discrepancy is pointed out. There was no provocation from Paresh. Accused Pravinbhai was armed with knife and had assaulted Paresh without any reason. Therefore, it becomes clear that accused Pravinbhai assaulted the deceased with intention to cause his death. 19. As observed earlier Paresh had made statements before P.W. 7 and P.W. 9 with regard to his injury. Paresh died after making these statements. Therefore, these statements would be oral dying declarations. The evidence of P.W. 7 Mukeshkumar Keshavlal Oza Exh. 81 indicates that after assault, Paresh asked him to bring rickshaw. Therefore, he brought rickshaw and took Paresh to CR.A/62420/2002 12/16 JUDGMENT hospital and while taking him to hospital in rickshaw, Paresh informed him that accused Pravinbhai had inflicted him knife blows. The witness has been cross-examined extensively but the defence has not been able to bring out that the testimony is not reliable. 20. The evidence of P.W. 9 Arvindbhai Exh. 84 also indicates that auto-rickshaw driver who took Paresh to hospital informed him about the injury to Paresh and therefore he went to the hospital where Paresh informed him that Paresh had caused fatal injuries. 21. In view of this evidence, it appears that deceased Paresh gave dying declaration with regard to fatal injuries sustained by him and he implicated accused Pravinbhai in the offence. Therefore, there is no reason to discard this evidence. 22. Therefore, it clearly emerges that deceased Paresh was attacked with deadly weapon by accused Pravinbhai and fatal injuries were caused to him. The injuries were inflicted without any provocation. Therefore attack was made with pre-determined mind. CR.A/62420/2002 13/16 JUDGMENT 23. The evidence of P.W. 15 Chandubhai Rupaji Kotad Exh. 116 indicates that he recorded first information report at 00-40 hours in the Civil Hospital and sent it to Police Station for registration of offence. The first information report was lodged by P.W. 6 Sureshkumar. The incident occurred around 11-15 p.m. and thereafter immediately the first information report was lodged. In view of the fact that the assailants were named in the first information report and it was lodged immediately after the incident, it is difficult to believe that accused Pravin has been falsely implicated in the offence. 24. As regards the contention of Mr. Barot that the signature of the first informant was obtained on blank paper and no copy of the first information report was given to him, the evidence of P.W. 6 Sureshkumar Exh. 74 indicates that P.W. 15 recorded the First Information Report and he had put his signature on the first information report. The evidence of P.W. 15 also indicates that he had recorded first information report Exh.140 and P.W. 6 had put his signature below the first information report CR.A/62420/2002 14/16 JUDGMENT and a copy thereof was also given. The first information report Exh. 140 bears signature and an endorsement of receipt of copy thereof by P.W. 6. Therefore, this contention cannot be accepted. 25. As regards his contention that the eye witnesses were chance witnesses and the prosecution has failed to prove the place of incident, it appears that the presence of the eye witnesses at the place of incident is natural and therefore they cannot be said to be chance witnesses. As regards place of incident, there is no discrepancy. Therefore, this submission cannot be accepted. 26. In view of above, the learned advocate for the appellant has failed to point out any infirmity in the impugned judgment. Even there is no inconsistency in the version given by P.W. 6 Sureshkumar and P.W.15 Chandubhai. Therefore, the learned trial Judge was justified in relying upon the evidence of P.W.6. P.W. 7, P.W. 9 and P.W. 10 to convict accused Pravinkumar for the offence of murder. Therefore, no interference is warranted in the impugned judgment. 27. As regards acquittal appeal, the evidence of P.W. 6 and P.W. 10 is not consistent with regard to CR.A/62420/2002 15/16 JUDGMENT role attributed to the acquitted accused. The learned trial Judge has assigned reasons for recording their acquittal. Learned A.P.P. has failed to point out any infirmity in the impugned judgment in that regard. Therefore acquittal appeal filed by the State is also required to be dismissed. 28. In the result Criminal Appeal No. 624 of 2002 and Criminal Appeal 787 of 2002 fail and are dismissed. The judgment and order of conviction and sentence rendered on 26-06-2002 by learned Additional Sessions Judge, Fast Track Court, Banaskantha at Palanpur in Sessions Case No.108 of 2001 convicting Pravinkumar Ishwarlal Raval for the offence punishable u/s 302 of the I.P. Code and u/s l35 of the Bombay Police Act and acquitting other accused, is confirmed. So far as Criminal Revision Application No.283 of 2002 is concerned, in view of the judgment rendered in acquittal appeal being Criminal Appeal No. 787 of 2002 preferred by State, it stands disposed of. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) CR.A/62420/2002 16/16 JUDGMENT /JVSatwara/