IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 184 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE K.R.VYAS ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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 -------------------------------------------------------------- STATE OF GUJARAT Versus CHAVDA MANAJI CHELAJI -------------------------------------------------------------- Appearance: MS AMEE YAGNIK ADDL. PUBLIC PROSECUTOR for Petitioner MR KB ANANDJIWALA for Respondent No. 1, 2, 3, 4, 5, 6, 7 -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE K.R.VYAS Date of decision: 20/07/1999 ORAL JUDGEMENT (Per R.K.Abichandani,J.) This acquittal appeal has been preferred against the judgement and order dated 12.12.1991 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case No. 186 of 1990, acquitting all the seven respondents - accused persons, for the offences punishable under Sections 302, 504 read with Section 149 and/or Section 34 and Sections 147, 148 and 447 of the Indian Penal Code and Sec. 135 of the Bombay Police Act. 2. All these accused persons were alleged to have formed an unlawful assembly with a view to commit murder of Hariji Mongaji Chavda and in pursuance of such common object, they are said to have attacked Hariji with lethal weapons like dharias and sticks and caused his death by inflicting multiple injuries on him, around 4.45 P.M on 28th May, 1990 in the field of Hariji, bearing Survey No. 1720 in village Kada, which is in Tal. Visnagar of Mehsana District. The prosecution version is that on 27th May, 1990, there was a quarrel over removing a part of the hedge lengthwise on the side of the field of the accused No.3 - Jivanji Chelaji bearing survey No. 1719, which was adjoining the field of Hariji. According to the prosecution, when a part of the hedge was broken by cultivating it lengthwise, Hariji had objected in the evening on 27th May, 1990. That quarrel had taken place between the deceased Hariji and the accused No.3 Jivanji Chelaji, accused No.7 Ranjitsinh Jivanji and the accused No.1 Manaji Chelaji. Thereafter, on coming to know about this quarrel, Manuji Madhaji , brother of the deceased, went to Hariji's field and questioned him about the quarrel. Hariji told him that he should go and see the damage caused to the hedge and then he would know who was at fault. Therefore, the informant Manuji Madhaji saw the hedge and noticed that the hedge of his brother's field was broken. Manuji however advised Hariji not to make an issue of it. Thereafter, on 28th May, 1990, when Manuji went in the afternoon to his field for tethering buffaloes, and his son Ranjit Manuji had followed after some time, according to the prosecution, Hariji Mongaji and his son Ganpatsinh were present at the tubewell which belonged to Hariji. At about 4'O Clock in the afternoon, Manuji heard some commotion from near the tube-well of Hariji and therefore, he and his son Ranjit went in that direction and at that time they saw that these seven accused persons armed with dharias and sticks were abusing Hariji and the accused No. 3 - Jivanji Chelaji and accused No.4 - Pratapji Chelaji shouted to finish him off, and all of them started giving blows with their weapons to Hariji. The accused No.3 Jivanji Chelaji gave a dharia blow on the head of Hariji, who was wearing a turban (fenta). Hariji therefore started running shouting for help. The other accused persons rounded him up and gave blows as a result of which Hariji fell down. Ganpatsinh, son of Hariji was also present at the scene of offence. According to the prosecution, the accused Nos. 2, 3, 6 and 7 were having dharias, while the accused Nos. 1, 4 and 5 were having sticks. All of them had given blows to Hariji and had thereafter gone away. The informant and his son Ranjit and Ganpatsinh who had seen the incident did not intervene when Hariji was assaulted because they were unarmed and were outnumbered. After these assailants went away, the informant Manuji and his son Ranjit went nearer Hariji and saw that he was dead. At that time Ganpatsinh was also present. The informant Manuji then proceeded to Visnagar for filing the complaint, leaving Ganpatsinh and Ranjit near the dead body. The FIR Ex.52 was filed in the Police Station around 5.45 P.M on the same day. Thereafter, at about 6.15 P.M, PSI Kishorsinh Vaghela and PSI Prakash Bhalia and other police persons proceeded to the place of the offence, alongwith the informer and inquest of the dead body of Hariji Mongaji was drawn. Thereafter, the dead-body was sent to the Civil Hospital, Visnagar, where it was received at about 9.00 P.M. The postmortem was done on the next day morning i.e. on 29.5.1990 between 6.15 A.M and 8.15 A.M. The accused Nos. 1 to 5 were arrested on 28.5.1990 itself and on 29.5.1990 at about 4.45 P.M, the accused Nos. 6 and 7 appeared before the Police with two dharias. According to the prosecution, even the accused Nos. 1 to 5 had produced muddamal weapons. The accused Nos. 1 to 4 are brothers and the accused No.5 Hemtaji Pratapji is son of the accused No.4 Pratapji Chelaji, the accused No.6 Pravinji Manaji is son of the accused No.1 Manaji Chelaji and the accused No.7 Ranjitsinh Jivanji is son of the accused No.3 Jivanji Chelaji. As per the postmortem report, there were as many as nine injuries found on the body of Hariji, which were all ante-mortem. The cause of death was extensive haemorrhage due to injuries to right upper limb. The medical officer opined that the death might have taken place 5 to 6 hours after taking of the last meal. 3. All the accused persons pleaded not guilty to the charges. The defence was of total denial. The defence of the original accused No.7 - i.e. the respondent No.7 herein Ranjitsinh Jivanji, was that on the relevant day he was serving as a watchman at Hajipura. The defence is put up in the cross-examination of the investigating officer. The accused persons also examined defence witness Mafabhai Lallubhai at Ex.77, to show that on 28.5.1990, the accused No.7 had attended a dinner party in Hajipura at about 2.00 P.M. The muster-roll in respect of the accused No.7 was got produced at Mark 50/1, to show that on 28.5.1990 he was on duty as a daily wager watchman. That muster-roll did not indicate whether he was on day-time duty or night duty. The defence version also is that Hariji had disputes with several persons and that he might have been killed by one of his enemies and his body might have been thrown in his field. 4. The trial Court held that the eye-witnesses Manuji Mongaji, Ganpatsinh Hariji and Ranjit Manuji were all closely related to the deceased and they were partisan witnesses, whose evidences were required to be tested with care and caution. It was held that since the stomach of the deceased was found to be empty and nothing was found from the intestine, the medical officer had committed some mistake in calculating the time of death, when he opined that the death might have occurred around 5 to 6 hours after the last meal was consumed. From the fact that the stomach was found empty and faecal matter was not found in the large intestine and the state of rigor mortis appeared partially in the upper limbs and in the lower limbs, the trial Judge concluded that more than 24 hours must have elapsed after the death of Hariji when the postmortem was performed and that the doctor had committed an error even when he reiterated in the cross-examination that the death had occurred about 14 to 16 hours before he started the post-mortem examination at 6.15 A.M on 29.5.1999. On the basis of this reasoning, the trial Court held that all the three eye witnesses who were relatives of the deceased stood falsified. The trial Court did not even find it necessary to discuss the evidence of the eye-witnesses and simply brushed it aside by referring to the medical evidence on the question of time of death and on the ground that they were closely related to the deceased and therefore interested witnesses. Observing that it was unlikely that the complainant Manuji who was brother of the deceased would be unaware of the litigation that Hariji had filed in the past claiming a right of pre-emption in respect of survey No. 1719, the trial Court observed that he was not a witness of truth and implicit trust cannot be reposed in him. For the other two eye witnesses, the trial Court simply observed that "similarly the other two eye-witnesses are pliable witnesses and no wonder if they come forward to falsely implicate the accused at the instance of the complainant because of this land dispute". All the accused were therefore, acquitted. 5. When the hearing of this appeal commenced, it was brought to our notice that the accused No.1 Manaji Chelaji died on 2.1.1994 while the accused No.2 - Gajaji Chelaji died on 20.1.1996. True copies of their death certificates have been produced on the record of this appeal by the learned Counsel appearing for the respondent accused persons. The learned Additional Public Prosecutor also submitted that these two accused persons - Chavda Manaji Chelaji and Chavda Gajaji Chelaji are dead as per the death certificates placed on record. Therefore, the acquittal appeal stood finally abated so far as these two accused persons are concerned, on their death. The hearing of the appeal has therefore, proceeded against the remaining accused Nos. 3 to 7 i.e. respondents Nos. 3 to 7. 6. The learned Additional Public Prosecutor contended that the trial Court had, without any justifiable reason, ignored the positive evidence of three eye-witnesses, which clearly showed that all these accused persons had on 28th May, 1990, at about 4.45 P.M, inflicted severe injuries on Hariji by dharias and stick which resulted in his death. It was argued that all these accused persons bore a grudge against Hariji, who had requested the accused No.3 Jivanji Chelaji and others in the previous evening for having broken the hedge belonging to Hariji's field by cultivating it lengthwise on the side of Jivanji's field. It was submitted that prosecution has positively established that the accused Nos. 2, 3, 6 and 7 were armed with dharias and the accused Nos. 1, 4 and 5 were armed with sticks and that all of them had come together to the field of Hariji near his tube-well, started abusing him and taking revenge of the previous day's quarrel pounced on him with lethal weapons, resulting in his death on the spot. After the incident, all these accused persons went away together. It was submitted that the facts clearly indicated existence of a common object to kill Hariji among all these seven accused persons. They therefore had constituted an unlawful assembly with the common object of its members to kill Hariji. It was also submitted that having regard to the number of assailants and the types of weapons, as also to the nature of injuries caused, it was clear that the common object of the members of this unlawful assembly was to commit murder of Hariji. It was further submitted that the medical evidence fully supported the version of the three eye-witnesses and merely because they were related to the deceased Hariji, they cannot be brushed aside as partisan or interested witnesses. It was further argued that the medical opinion on the time of death was positive and the doctor had in the postmortem notes and also on oath, clearly opined that the death of Hariji had occurred in about 5 to 6 hours after the deceased had taken his last meal. This opinion was based on the fact that his stomach was empty and also keeping in view the facts which were mentioned in the postmortem notes including the state of rigor mortis and presence of gas in the intestines. It was contended that the doctor had no axe to grind against these accused persons. Moreover, certain material from the medical text books, which was referred to by the trial Court, was not even put to the doctor. The learned Additional Public Prosecutor further argued that the accused No.7 had not discharged the burden of proving his alibi and that it did not stand discharged merely because a muster-roll was summoned for showing that he was on duty on 28.5.1990. It was submitted that in view of the direct medical evidence and particularly when the doctor had no reason to give a false opinion, the trial Court was not justified in observing that the death might have occurred 24 hours before the postmortem examination was done. 7. The learned Counsel appearing for the respondent accused persons contended that the origin of the incident was shrouded in mistery and there was no motive for commission of the crime. He submitted that the alleged motive of the quarrel over breaking of the hedge (Shedha) was a sheer concoction because there was no mention of the state of hedge in the panchnama of the scene of offence. It was submitted that Hariji had several enemies and anyone of them could have caused his death. It was also submitted that the incident must have taken place elsewhere because the body was found stained with blood and mud. The Counsel further argued that all the three alleged eye-witnesses were interested witnesses because they were closely related to the deceased Hariji. Manuji was the brother of the deceased and Ganpatsinh, his son, while Ranjit was the nephew of the deceased. The Counsel further argued that the fact that the stomach was empty and nothing was found from the intestines and that there was no faecal matter in the large intestine, showed that the deceased did not have any meals after he had passed stools and this indicated that his death must have occurred in the morning of 28th May, 1990 after he passed stools. It was submitted that if the deceased Hariji had taken his meals at noon time on 28.5.1990, as deposed to by one of the eye-witnesses, Ganpatsinh, there would have been found semi-digested food and faecal matter and the stomach would not have been empty. The Counsel further argued that the accused No.7 Ranjitsinh Jivanji was on duty on the day of the incident as a watchman in Hajipura and there was no possibility of his having been present at the scene of the offence at the time of the alleged occurrence. It was submitted that since these three eye-witnesses were falsely implicating the accused No.7 Ranjitsinh, they were wholly unreliable and could not be trusted even as regards their version against the other accused persons. It was also argued that the story of assault on Hariji was inherently improbable because most of the injuries were caused on the left side of his body, which would not have been the case if all the accused persons, who were said to have been rounded him, had given blows which would have in that event resulted in injuries on different parts of the body and not mainly on the left side. The Counsel contended that the conduct of the eye-witnesses was highly unnatural because soon after the incident they did not proceed to inform the other relatives. It was also argued that the investigation was not fair because while, according to the investigating officer, he had noticed blood stains on one dharia, blood stains of the deceased's blood group was noticed, as per the FSL report, on other weapons also. The Counsel contended that if his contentions for confirming the acquittal are not accepted, then in the alternative, he was contending that the case would fall in exception 4 of Section 300 of the Indian Penal Code and that the offence would be that of culpable homicide not amounting to murder. It was also contended during the course of the judgement, that the trial Court had not put each and every circumstance which was against the accused to them while recording their statement under Section 313 of the Code of Criminal Procedure. 7.1 The learned Counsel for the accused relied upon the decision of the Supreme Court in Kanbi Purshottam Vs. State of Gujarat, reported in AIR 1979 S.C 1758, in support of his contention that the High Court should not reverse the order of acquittal in appeal because another view was also possible. He also relied upon the decision of the Supreme Court in B.N. Singh and ors. Vs. State of Gujarat and ors., reported in 1990 (1) GLH 256, in which it was held that the evidence of interested witnesses should be subjected to a close scrutiny. The Supreme Court had found in that case that one of the accused was falsely implicated which rendered the evidence of the interested witnesses highly suspicious. He also relied upon the decision of the Supreme Court in Raghunandan Vs. State of U.P, reported in AIR 1974 S.C 463, in which it is laid down that it is the duty of the Court to see that essential questions are not so far as reasonably possible, left unanswered. In that case, the post-mortem examination took place at 2.40 P.M on 13.12.1969, and the intestines were found distended with gas and the Court observed that it did not know whether this could be their condition at 1.00 P.M on 12.2.1979 or its effect. 8. The fact that death of Hariji was homicidal, is clearly borne out from the medical evidence. There were nine external injuries found on his body, which are narrated in paragraph 17 of the post-mortem notes. These injuries were of the following nature:- (1) Incised wound, 2" proximal to (Lt.) Wrist jt. - obliquely placed - skin deep 3" x 1" size. (2) Incised wound, 3" x 2" bone deep - through middle of (Lt.) forearm - forearm is attached to proximal part C tag of 2" skin on palmar and lateral aspect. (3) 4" x 2" part of skin is avulsed through sharp cut on antero-lateral aspect of lower part of (Lt.) upper arm - upto antero-lateral aspect of (Lt.) elbow joint. (4) Incised wound, - cutting through upper part - head of Lt. humerus - below greater taberosity - cutting through lateral surface of upper arm - skin, muscles, bones, artery and vein (axillary). The part below the cut is hanging through lateral fold of (Lt.) axillary fossa through a tag of skin of 3" long. (5) Incised wound on back of scalp - occipital region 1" x 1/2" scalp deep. (6) Contusive lacerated wound 1 1/2" x 1/2" on (Lt.) parietal region transverse - scalp deep. (7) Weal mark - reddish - lateral wall of abdomen (11) - 3" x 1". (8) Weal mark - back of Rt. chest across scapula 6" x 1" - reddish. (9) Weal mark on (Lt.) buttock verticle - 4" x 1" reddish. Left axillary artery and vein were cut off and the death was caused due to shock as a result of extensive haemorrhage caused by these injuries. 8.1 Dr. Kantilal M. Parmar who had performed the post-mortem examination, in his deposition Ex.26, referring to these injuries, has stated that all of them were ante-mortem and that the humerus, radius and ulna bones of left hand had broken. In paragraph 5 of his deposition he has stated that the stomach of the deceased was found empty and his bladder was also empty. The death, according to him, had occurred 5 to 6 hours after the taking of the last meal. In paragraph 6 of his deposition, he stated that the injuries Nos. 1 to 5 were possible by a weapon like muddamal dharias, while injuries Nos. 6 to 9 were possible by a hard and blunt substance like muddamal sticks. According to him, the injuries numbers 1, 2 and 3 were grievous injuries and injury No.4 itself was sufficient in ordinary course of nature to cause death. Even injury No.2 would cause death if proper treatment was not given. In his cross-examination he reiterated paragraph 14 of his deposition that the death could have been caused about 14 to 16 hours before he performed the post-mortem examination. In his cross-examination, he had stated that after the death, the muscles relaxation continued for one or two hours. He was at that point of time confronted with the opinion in Modi's Medical Jurisprudence & Toxicology, Twenty-Second Edition, in which it was opined that: this stage lasts from 3 to 6 hours, but the average was two or three hours. One hour fiftyone minutes was the average period of duration as found by Mackenze. No other opinion was put to the doctor either from Modi's or from Parikh's book, which were referred to by the trial Court, despite the fact that he had referred to the state of stomach being empty, intestines having gas, and the state of rigor mortis on the body and despite his asserting in the cross-examination that the death may have occurred about 14 to 16 hours prior to his doing the post-mortem examination between 6.15 A.M and 8 A.M. on the morning of 29th May, 1990. The medical evidence on the time of death both oral and documentary indicates that death of Hariji had occurred after 5 to 6 hours after consuming his last meals. The trial Court has brushed aside the evidence of three eye-witnesses merely on the ground that because the stomach of the deceased was found empty and there was gas in the intestines, the death must have occurred about 24 hours prior to the making of the post-mortem examination i.e. somewhere in the morning of 24th May, 1990, after the deceased passed his stools. 8.2 The food passes from the mouth down the oesophagus to the stomach, from the stomach it proceeds to the duodenum, jejunum and ileum (small intestine); and the unabsorbed residue passes via the caecum, ascending, traverse, descending and sigmoid colons (large intestine) to the rectum and anal canal. The emptying of stomach depends on various factors such as consistency of food, motility of the stomach, osmotic pressure of the stomach contents, quantity of food in the duodenum, surroundings in which food is taken, emotional factors and residual variations. A meal containing carbohydrates generally leaves the stomach early and the one containing protein, later. The emptying of stomach thus, takes place anywhere between 3 to 6 hours. When the doctor found Hariji's stomach empty, he opined that the meals must have been taken 5 to 6 hours before Hariji died. The contention on behalf of the accused was that from intestines nothing was found. The postmortem note indicates that there was gas in the small and the large intestines. In the cross-examination, the doctor has stated that there was no faecal matter in the large intestine. According to the doctor's opinion, after passing from the stomach the food remains in the small intestine for about 4 to 5 hours and thereafter in the large intestines for 3 to 4 hours. The faecal matter and waste are dealt with in the large intestines. The doctor, keeping in view all his observations on the examination of the dead-body of Hariji, had categorically opined that his death has occurred 5 to 6 hours after he had consumed his last meal. This expert opinion on the basis of the data which he was having, cannot be doubted on the basis that faecal matter has not found in the large intestines and the stomach was