CC/6/2004 1/75 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CONFIRMATION CASE No.6 of 2004 With CRIMINAL APPEAL No.1497 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B. ANTANI ============================================================== 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? ============================================================== STATE OF GUJARAT - Appellant Versus BAHADURBHAI LAKHABHAI VANK & ANR. - Respondents ============================================================== Appearance : MR ND GOHIL APP for Appellant-State. MR ND NANAVATI, Sr.Advocate with MR Hriday C BUCH, for Respondents- Convicts. ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 29th,30th Sept. & 3rd Oct.,2005 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Confirmation Case No.6 of 2004 arises pursuant to submission of the proceedings of Sessions Case No.7 of 2002 made under Section 366(1) of the Code of Criminal CC/6/2004 2/75 JUDGMENT Procedure, 1973 [`Code' for short] by the learned Sessions Judge, Amreli, who by his judgment dated July 27, 2004 has sentenced respondent No.1 i.e. Bahadurbhai Lakhabhai Vank and respondent No.2 i.e. Dilubhai Hadabhai Vank to death for commission of offence punishable under Section 302 r.w.Section 120B of the Indian Penal Code [`I.P.C.' for short], whereas Criminal Appeal No.1497 of 2004 filed under Section 374(2) of the Code is also directed against the same judgment by which out of three appellants, appellant Nos.1 & 3 are sentenced to death, for commission of offence punishable under Section 302 r.w.section 120B I.P.C., whereas appellant No.2 is sentenced to R.I. for life, for commission of offence punishable under Section 302 r.w.section 120B I.P.C., and the appellant No.3 is convicted under Sections 324 and 332 I.P.C., whereas the appellant Nos.1 & 2 are convicted under Sections 324 & 332 r.w. Section 120B I.P.C. and all appellants are convicted under Section 135 of the Bombay Police Act, 1951 and each sentenced to R.I. for one year and fine of Rs.10,000/-, in default, S.I. for one month, for commission of offence punishable under Section 324 r.w.Section 120B I.P.C. as well as R.I. for one year and fine of Rs. 10,000/-, in default, S.I. for two months, for commission of offence punishable under Section 332 CC/6/2004 3/75 JUDGMENT r.w. Section 120B I.P.C. No separate sentence is imposed on any of the appellants for commission of offence punishable under Section 135 of the Bombay Police Act. The learned Judge has further directed that each of appellant Nos.1 & 3 shall make payment of Rs.3 lakhs, whereas appellant No.2 shall make payment of Rs.2 lakhs as compensation to the wife of deceased Taiyabbhai under Section 357 of the Code. 2. The facts emerging from the record of the case are as under : Deceased Taiyabbhai Umarbhai was resident of village Vadiya. He was married to Liliben @ Hamina. During the course of subsistence of her marriage, Liliben gave birth to five children. Deceased Taiyabbhai was involved in case of murder of one Bhupatbhai Virabhai and was required to be produced before the learned Judicial Magistrate, First Class, Vadiya as required by Section 167 of the Code. The incident in question took place on September 13, 2001. On the day of incident, the deceased was produced in the Court of learned J.M.F.C., Vadiya from Amreli Jail by two constables i.e. Husenbhai Abdullabhai and Bhupatbhai Ratilal. It may be stated CC/6/2004 4/75 JUDGMENT that Liliben, who is wife of the deceased, was earlier residing at village Vadiya, but, after her husband was removed to Amreli Jail, she was residing at Junagadh. When deceased Taiyabbhai was in Amreli Jail, his mother had gone to Amreli Jail to see him and mother of deceased Taiyabbhai had informed her daughter-in-law Liliben that the deceased was going to be produced in the Court of learned J.M.F.C.Vadiya on September 13, 2001. Therefore, in order to meet her husband, Ms.Liliben had come form Junagadh to Vadiya. So also, father of deceased Taiyabbhai and his uncle had also gone to Vadiya Court to meet the deceased. After production of the deceased in the Court, he was being taken back to Amreli Jail by two police constables, whereas his relatives i.e. his wife, father etc. were following him. When the police officials reached near Bus-Stand along with the deceased, appellant No.1-Bahadurbhai Lakha and appellant No.3-Dilubhai Hadabhai came from lane of Guest House. They threw chilli powder in the eyes of police officials and the deceased. Thereafter appellant No.1 inflicted knife blows on different parts of body of the deceased, whereas appellant No.3 caused injury to the deceased by means of a knife. An attempt was made by two police constables as well as Liliben, who is wife of the deceased, Umarbhai, CC/6/2004 5/75 JUDGMENT who is father of the deceased and Lakhabhai, who is uncle of the deceased to rescue the deceased. In the attempt to save the deceased, they also received injuries. It may be stated that at the time of incident, appellant No.2 was driving rickshaw and had kept machine of the rickshaw on, and after causing fatal injuries to the deceased, appellant Nos.1 & 3 fled in the rickshaw which was driven by appellant No.2. The injured was removed to hospital, where the Medical Officer on duty declared him as `brought dead'. Thereupon, Ms.Liliben, who is wife of the deceased, lodged complaint with Police Sub Inspector, Vadiya Police Station. The complaint of Ms.Liliben was investigated by P.S.I. Mr.M.P.Bhojani. The investigating officer held inquest on the dead body of the deceased and seized incriminating articles, such as chilli power, plastic chappals etc. He made arrangement for sending the dead body of the deceased to hospital for post-mortem examination. Autopsy on the dead body of the deceased was performed by Dr.Iftehar Haroon Hasan. The investigating officer also recorded statements of those persons, who were found to be conversant with the facts of the case. The appellant Nos.1 & 2 were arrested on September 28, 2001, whereas the appellant No.3 was arrested on October 16, 2001. After arrest of the appellants, a yadi was CC/6/2004 6/75 JUDGMENT forwarded by investigating officer to the Executive Magistrate to hold identification parade. Accordingly, identification parade was held on November 20, 2001. At the identification parade, the appellants were identified by Ms.Liliben, Umarbhai, who is father of the deceased, two police constables etc. While in custody, the appellant Nos.1 & 3 made disclosure statements, pursuant to which weapons used by them in commission of the offences were discovered. Incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory [`F.S.L.' for short] for analysis. On completion of investigation, the appellants were chargesheeted in the court of learned J.M.F.C. Vadiya, for commission of offences punishable under Sections 302, 324, 332 r.w. Section 120B I.P.C. and Section 135 of the Bombay Police Act. 3. As offence punishable under Section 302 I.P.C. is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Amreli, for trial, where it was number as Sessions Case No.7 of 2002. The learned Additional Sessions Judge, Amreli, to whom the case was made over for trial, framed charge against the appellants at Exh.1 for commission of offences punishable under CC/6/2004 7/75 JUDGMENT Sections 120B, 332 r.w. Section 114, 324 r.w. Section 114, 302 r.w. Section 114 I.P.C. and Section 135 of the Bombay Police Act. The accused No.3 was also charged for commission of offence punishable under Section 303 I.P.C., as it transpired during the course of investigation that earlier he was sentenced to R.I. for 20 years and had committed murder of deceased Taiyabbhai while on furlough leave. The charge was read over and explained to them. They pleaded not guilty to the same and claimed to be tried. At the beginning of the trial, the original accused No.2, i.e. Umedbhai Vala, submitted an application on January 1, 2003 claiming that he was juvenile and after producing his birth certificate, prayed the Court to refer his case to Juvenile Board constituted under the Juvenile Justice (Care & Protection of Children) Act, 2000. The learned Judge directed an inquiry to be made. The inquiry revealed that certificate produced by the accused No.2 indicating that his date of birth was December 31, 1985 purportedly issued by Gram Panchyat Vadiya was bogus. Therefore, the learned Additional Public Prosecutor submitted an application at Exh.21 on March 5, 2003 to prosecute officers of Gram Panchayat, who had issued bogus birth certificate of the accused No.2. The learned Judge CC/6/2004 8/75 JUDGMENT allowed the said application vide order dated March 5, 2003 and thereafter, plea that he was juvenile was never raised by the accused No.2. The original accused No.3, i.e. Dilu Hada, submitted an application at Exh.19 stating that Section 303 IPC has been declared to be unconstitutional by the Supreme Court in Mithu vs. State of Punjab, (1983) 2 SCC 277 and prayed the Court to delete charge under Section 303 IPC framed against him. That application was probably allowed by the learned Judge. In order to delay trial against them, the accused also submitted an application at Exh.28 on May 3, 2003 stating that it was proposed by them to move the High Court to transfer trial to another Sessions Court as they were apprehending danger to their lives. No order could be obtained by them from the High Court and, therefore, trial against them proceeded further. 4. The prosecution, thereafter, examined (1) Ms.Liliben @ Hamina Taiyabbhai as PW.1 at Exh.37, (2) Head Constable Husenbhai Abdulabhai as PW.2 at Exh.42, (3) Head Constable Bhupatbhai Ratilal as PW.3 at Exh.44, (4) Lakhabhai Gigabhai at PW.4 at Exh.49, (5) Umarbhai Gigabhai as PW.5 at Exh.50, (6) panch Jivanbhai Bachubhai as PW.6 at Exh.51, (7) panch Maheshbhai Ranchhodbhai as CC/6/2004 9/75 JUDGMENT PW.7 at Exh.53, (8) panch Bhupatbhai Karshanbhai as PW.8 at Exh.54, (9) panch Mahebubbhai Salambhai as PW.9 at Exh.56, (10) panch Harunbhai Alarakhabhai as PW.10 at Exh.57, (11) panch Rajesh Valakubhai as PW.11 at Exh.60, (12) Dr.Iftehar Haroonbhai Hasan as PW.12 at Exh.61, (13)panch Bharatbhai Haribhai Parikh as PW.13 at Exh.76, (14)panch Vilas Chhaganbhai as PW.14 at Exh.78, (15) panch Dilipbhai Prabhudas as PW.15 at Exh.80, (16) panch Dhirubhai Savabhai as PW.16 at Exh.82, (17) panch Rajeshbhai Batukbhai as PW.17 at Exh.85, (18) panch Bachubhai Naranbhai as PW.18 at Exh.87, (19) panch Baghabhai Gobarbhai as PW.19 at Exh.89, (20) panch Dineshbhai Ranchhodbhai as PW.20 at Exh.90, (21) panch Ravjibhai Bhalabhai as PW.21 at Exh.92, (22) panch Maganlal Kalyanji as PW.22 at Exh.94, (23)eye witness Salimbhai Husainbhai as PW.23 at Exh.95; (24) panch Pathubhai Devabhai as PW.24 at Exh.98, (25) panch Ratibhai Devabhai Chauhan as PW.25 at Exh.99, (26) panch Husenbhai Daudbhai Gadhai as PW.26 at Exh.100, (27) Executive Magistrate Ms.Kalpanaben Kantilal Padiya as PW.27 at Exh.103, (28) Head Constable Mukeshbhai Balvantrai Jani as PW.28 at Exh.107, (29) police constable Rajdevsinh Maisursinh as PW.29 at Exh.109, (30) Shaileshbhai Premjibhai as PW.30 at Exh.110, (31) CC/6/2004 10/75 JUDGMENT Nileshbhai Jesingbhai Parmar as PW.31 at Exh.111, (32) Shashikantbhai Vajubhai as PW.32 at Exh.112, (33) Rahematben Umarbhai as PW.33 at Exh.113, (34) Bhursing Dalpatsing as PW.34 at Exh.114, (35) Rameshbhai Pidiyabhai Patel as PW.35 at Exh.116 (36) Ramniklal Meghjibhai Vanja as PW.36 at Exh.119, (37) Jailor Harishchandra Trikamrav Patil as PW.37 at Exh.121, (38) A.S.I. Karshanbhai Alabhai Dayat as PW.38 at Exh.112, (39) Head Constable Rameshbhai Chhaganbhai Solanki as PW.39 at Exh.125, (40) P.S.I. Mr.N.B.Chudasma as PW.40 at Exh.126, (41) P.S.I. Mr.B.G.Bharwad as PW.41 at Exh.129, (42) P.I. Mr.C.R.Vandravala as PW.42 at Exh.131, and (43) P.S.I. Mr.M.P.Bhojani as PW.43 at Exh.134, to prove its case against the appellants. The prosecution also produced documentary evidence, such as inquest report at Exh.52, panchnama of place of incident at Exh.55, panchnama indicating seizure of articles from place of incident by Mr.G.B.Vaghela, Scientific Officer, Amreli, for analysis at Exh.56, panchnama indicating seizure of clothes of the deceased at Exh.59, medical certificate issued by Dr.Hasan indicating injuries sustained by witness Lakhabhai Gigabhai at Exh.62, medical certificate issued by Dr.Hasan indicating injuries sustained by witness Husenbhai Abdullabhai at Exh.63, medical CC/6/2004 11/75 JUDGMENT certificate indicating injuries sustained b Bhupatbhai Ratilal at Exh.64, medical certificate indicating injuries sustained by Umarbhai Gigabhai at Exh.65, post mortem notes of deceased Taiyabbhai at Exh.69, OPD papers relating to witness Husenbhai at Exh.72, OPD papers relating to witness Bhupatbhai at Exh.73, OPD papers relating to witness Umarbhai at Exh.74, OPD papers relating to witness Lakhabhai at Exh.75, panchnama indicating collection of blood of the accused at Exh.77, arrest panchnama of accused no.1 i.e. Bahadurbhai Lakhabhai Vank and seizure of his bloodstained shirt as well as arrest panchnama of accused Umedbhai at Exh.79, panchnama regarding examination of rickshaw bearing registration No.GJ-10T-5384 conducted by Mr.G.B.Vaghela, Scientific Officer, Amreli, at Exh.81, panchnama indicating discovery of knife pursuant to disclosure statement made by accused No.1 i.e. Bahadurbhai at Exh.83, panchnama indicating collection of sample of blood of accused No.3 at Exh.84, panchnama indicating seizure of rickshaw bearing registration No.GJ-10T-5483, which was found in abandoned condition, at Exh.88, arrest panchnama of accused No.3 i.e. Dilubha Hadabhai Kathi and discovery of knife as well as bloodstained scabbard(sheath) at Exh.91, panchnama prepared during CC/6/2004 12/75 JUDGMENT identification of accused by witness Liliben at Exh.93, yadi received by the Executive Magistrate from PSI for holding T.I.Parade at Exh.104, intimation by the Executive Magistrate to PSI that T.I.Parade would be held on November 20, 2001, at Exh.105, panchnama indicating as to what transpired during the T.I.Parade at Exh.106, map of place of incident at Exh.118, notification issued by competent authority under the provisions of Section 37(1) of the Bombay Police Act, 1951 at Exh.120, Call Form filled up by A.S.I. Mr.Dayatar to requisition help of dog-squad at Exh.123, order releasing accused No.3 i.e. Dilubhai on furlough at Exh.127, intimation to D.S.P., Junagadh stating that accused No.3 was absconding at Exh.128, list of articles sent to F.S.L. for analysis at Exh.133, complaint of Liliben @ Amina at Exh.135, report of Mr.Vaghela, Member of Mobile F.S.L., at Exh.138, another report submitted by Mr.Vaghela, Member of Mobile F.S.L., at Exh.139, receipt issued by F.S.L. for having received muddamala for analysis at Exh.141, report of analysis at Exh.142, report of Physiology Department at Exh.143 etc. in support of its case against the appellants. CC/6/2004 13/75 JUDGMENT 5. After recording of evidence of prosecution witnesses was over, the learned Judge of the trial Court explained to the appellants the circumstances 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 his further statement, accused No.1 i.e. Bahadurbhai stated that he had no information about the claim made by Liliben in her testimony that the incident had taken place at about 12.15 noon. It was put to him that all the three accused were identified by witness Liliben and in answer to the said incriminating circumstance, it was stated by him that Liliben was known to them and, therefore, they were falsely identified. Similar statement was made by the accused No.1 with reference to identification of the three appellants by witness Lakhabhai. In his further statement, accused No.1 specifically contended that all the three accused were relatives of deceased Bhupat Vira and, therefore, on suspicion they were falsely implicated in the case. The claim advanced by the accused No.1 in his further statement was adopted by accused Nos.2 & 3 in their further statements and, therefore, detailed reference to the same is avoided. However, no defence evidence was CC/6/2004 14/75 JUDGMENT adduced by any of the appellants. On behalf of the original complainant i.e. Liliben, written arguments were submitted for consideration of the Court at Exh.148, whereas accused filed their written arguments running into 90 pages on July 13, 2004, for consideration of the Court. 6. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that deceased Taiyabbhai died a homicidal death. After referring to principle that burden to prove its case is on the prosecution and also principle relating to appreciation of evidence, the learned Judge held that it was proved that when the deceased was being taken back to Amreli, the appellants came in a rickshaw which was driven by original accused No.2, and appellant Nos.1 & 3 after throwing chilli powder in the eyes of the constables and the deceased, inflicted knife blows on him and thereafter fled in the rickshaw driven by original accused No.2. The learned Judge noticed that panch witnesses had turned hostile, but, held that discovery of weapons, used in commission of the offence, made by the accused pursuant to disclosure statements made by them, was proved in view of reliable testimony of police CC/6/2004 15/75 JUDGMENT officers. The learned Judge also noticed the conduct of original accused Nos.1 & 2 in absconding for a long time after they fled from the place of incident. The learned Judge found that articles belonging to the accused were bloodstained. In ultimate analysis, the learned Judge enumerated facts proved in Para-65 of the impugned judgment and convicted the appellants under Sections 302, 324, 332 r.w. Section 120B I.P.C. Thereafter the appellants were heard on the question of sentences to be imposed on them for commission of abovereferredto offences. The learned Judge has convicted the original accused No.3 under Sections 302, 324, 332 r.w. section 120B I.P.C. as well as Section 135 of the Bombay Police Act, and imposed sentences referred to earlier by judgment dated July 27, 2004 giving rise to above- numbered Confirmation Case and the appeal filed by the accused. 7. Mr.N.D.Nanavati, learned Senior Advocate of the appellants, contended that none of the appellants was related to deceased Bhupatbhai Virabhai with reference to whose murder, deceased Taiyabbhai was arrested, but, due to animosity, the appellants, who belonged to Kathi community, have been falsely implicated in the case and, CC/6/2004 16/75 JUDGMENT therefore, the judgment impugned should be set aside. After referring to the testimony of complainant Liliben, it was argued that she is an interested witness being wife of the deceased and as her claim that she had gone to Court with her daughter Asthana becomes doubtful, her testimony could not have been believed for fastening criminal liability on the appellants. According to the learned counsel of the appellants, the fact that Liliben was accompanied by her daughter Asthana is not stated in her complaint, nor police statement of Asthana was recorded, whereas the investigating officer has accepted the position that the incident had taken place on a thorough-fare where shops are also situated and as no independent witnesses have been examined, interested version of witness Liliben should be disbelieved by the Court. It was argued that neither the statements of shop- keepers, whose shops are situated near the place of incident were recorded, nor were they examined and, therefore, it would not be prudent to accept interested version of witness Liliben, who is wife of the deceased. The learned counsel maintained that according to Liliben, accused No.1 tried to assault the deceased at Bagasara Court also, but, she had to admit that she had not lodged complaint about the same and as the witness has tendency CC/6/2004 17/75 JUDGMENT to make material improvement, her testimony should be disbelieved. It was pointed out to the Court that according to her testimony, her father-in-law and brother of her father-in-law were also present at the police station and were dictating complaint, as she had mentally broken down, which means that tutored version of incident was narrated in the complaint and, therefore, her testimony should be disbelieved. The learned counsel argued that witness Liliben has stated in her testimony that no attempt was made by any one to apprehend the accused by chasing them, whereas the evidence tendered by other witnesses indicates that the accused were, in fact, chased and as her testimony does not get corroboration in material particulars, her testimony should be disbelieved. While commenting on the testimony tendered by witness Husenbhai Abdullabhai, it was argued that according to him, assailants had run away towards small lane leading to Circuit-House, but, his evidence indicates that he and constable Bhupatbhai Ratilal had chased assailants in a different direction and, therefore, his testimony should not be taken into consideration while considering the case of the prosecution against the appellants. According to the learned counsel of the appellants, testimony of witness CC/6/2004 18/75 JUDGMENT Husenbhai makes it very evident that assailants were unknown to him and he was declared hostile by the prosecution, as a result of which his testimony is of little assistance to the prosecution. The learned counsel also pointed out that though it was claimed by this witness that he was escorting the deceased to Bus-Stand and at that time, the deceased was assaulted by the appellants, clothes of this witness had not become bloodstained, whereas his claim was that the stick used by him to ward off the blows on the deceased had become bloodstained, but, it is an admitted position that the said stick was not seized and, therefore, witness Husenbhai should be disbelieved by the Court. The learned counsel argued that the testimony of witness Bhupatbhai Ratilal shows that both the accused had assaulted the deceased and he says that clothes of police constable Husenbhai were bloodstained, which is quite contrary to the claim advanced by Husenbhai in his testimony recorded before the Court and, therefore, his testimony is also unreliable. According to the learned counsel of the appellants, medical evidence on record clinchingly establishes that the deceased had sustained 7 injuries on his person, but, witness Bhupatbhai Ratilal has stated in her evidence that 20 injuries were caused to the deceased CC/6/2004 19/75 JUDGMENT and in view of tendency on the part of this witness to make exaggerations, his testimony should be discarded from consideration. What was pointed out to the Court was that according to witness Bhupatbhai, he in the company of police constable Husenbhai and relatives of the deceased had chased the accused, but, witness Liliben has stated that none had chased the accused, and as testimony of witness Bhupatbhai does not get corroboration from other evidence on record, he should not have been relied upon by the learned Judge of the trial Court. As far as evidence tendered by Lakhabhai Gigabhai, who is uncle of the deceased, is concerned, it was argued that according to him, 20 successive blows were given by the assailants to the deceased, which is nothing-else, but, sheer exaggeration in view of medical evidence on record, and as this witness is not supported by independent or medical evidence, he could not have been believed by the learned Judge of the trial Court. Mr. N.D.Nanavati, learned counsel pointed out to the Court that according to this witness, assailants had fled in the rickshaw which means that they were not chased at all and in view of conflicting evidence led by the prosecution, the appellant should be granted benefit of doubt arising from the facts of the case. Referring to the testimony of CC/6/2004 20/75 JUDGMENT witness Umarbhai, it was argued that according to this witness, accused No.1- Bahadurbhai was with a person, who was unknown to him, but, his presence at the place of incident becomes doubtful in view of testimony of witness Salim, who has stated that he had informed Umarbhai about the incident and, therefore, witness Umarbhai, who is father of the deceased, should be disbelieved by the Court. It was argued that facts have been exaggerated by witness Salim and as he is not corroborated by other independent evidence on record, it would be hazardous to place reliance on his testimony. The learned counsel pointed out to the Court that after the incident, which