IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 466 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE C.K.BUCH and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 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 Civil Judge? : NO -------------------------------------------------------------- BHACHU DEVJI SOLANKI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR AD SHAH for Petitioners MR KC SHAH, APP for Respondent No. 1 MR NITIN AMIN for the complainant. -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.BUCH and MR.JUSTICE H.H.MEHTA Date of decision: 22/01/2001 ORAL JUDGEMENT (Per : MR.JUSTICE C.K.BUCH) 1. The appellants original accused of Sessions Case No. 42 of 1989 tried and decided by the Ld. Additional Sessions Judge, Kutch at Bhuj, have filed this appeal u/S. 374 of the Code of Criminal Procedure. The accused no.1 held guilty for the offence punishable u/S. 302, 34 of the Indian Penal Code (for short 'the IPC') and is ordered to undergo rigorous imprisonment (R.I.) for life and to pay a fine of Rs.500/- and in default to undergo simple imprisonment for one month. The accused no. 1 is also held guilty for the offence punishable u/S. 307 of the IPC and is directed to undergo R.I. for 10 years and also to pay a fine of Rs.1,000/- and in default to undergo S.I. for 3 months. Accused nos. 2 to 4 are also held guilty of the offence punisahble u/S. 326 read with sec. 34 of the IPC and are directed to undergo R.I. for 3 years and to pay a fine of Rs.500/- each and in default to undergo S.I. for one month. However, the accused are directed to undergo the sentence concurrently. 2. The appellants nos. 1 to 4 are original accused and for the sake of convenience we have referred all the appellants as the accused indicating the numbers in the judgment. The accused no. 1 is the son of accused nos. 2 and 3 Devji Rasang Solanki and Badhiben Devji and real brother of accused no. 4 Shantaben Devji. Thus all the 4 accused are members of one family headed by accused no. 2 - Devji Rasang Solanki. Deceased Pravin Arjan was brother-in-law of the accused no. 1 - Bachu Devji Solanki and the injured victim Narsinh Kachraji is maternal uncle of deceased Pravin, ofcourse not real maternal uncle but distant cousin of mother of deceased Pravin. 3.(i) According to the prosecution wife of accused no. 1 - Lilaben was ill-treated. She had a son and a daughter out of wedlock with the accused no.1 and that at about one and half months prior to the date of incidient Lilaben, real sister of the deceased Pravin, had returned to her parental house with the female child because of ill-treatment. However, the son Lala was in the custody of the accused no. 1 and his family. On the date of incident i.e. 28/2/1989 deceased Pravin Arjan, brother-in-law of accused no. 1, had gone to the house of the accused with a view to bring Lala with him as he was to be taken for some religious ceremony, popularly known as "Manta" with his maternal uncle Narsinh Kachraji. On seeing Pravin Arjan, accused no. 3 Badhiben asked him as to why he had come and immediately thereafter accused nos. 1 and 2 armed with sword and Dhariya respectively rushed towards deceased and assaulted. Narsinh Kachraji who had accompanied Pravin tried to intervene had resisted and sustained a head injury i.e. a sword blow by accused no.1. It is the case that during the assault accused no. 2 gave a Dhariya blow to the deceased Pravin, but it landed on the roof of Dhaliya and thereafter accused no. 2 gave another blow with Dhariya to deceased Pravin and as a result of which Pravin had fallen down. According to prosecution, at that point of time the accused nos. 3 and 4 who were sharing the intention with accused nos. 1 and 2 caught hold of the deceased Pravin Arjan, and accused no. 1 gave sword blows to Pravin causing serious injuries. (ii) After receipt of the sword blow on the head from accused no.1 Narsinh Kachraji came out of the house of the accused persons and started running for help. Number of persons including prosecution witnesses, namely Pravinsinh Keshubha and Rajendra Luvana Bhagvanbhai, Ramanbhai and Shamjibhai met him on the way and he immediately informed them about the incident and told that Pravin was lying in the house of the accused in an injured condition. (iii) Rajendra Luhana and Pravinsinh Keshubha and others, on the information, as they were very near, entered into the house of the accused persons and at that time all the four accused were there and they were trying to run away from the back door of the house and ultimately they left the house from the back door. These persons arranged for a hand cart and took the injured Pravin to the hospital where he was, on examination, declared dead. (iv) In the meanwhile the injured Narsinh Kachraji reached to the police station and informed the police. He lodged formal complaint and on the basis of the said complaint police started investigation and charge-sheeted all the four accused for the offence punishable u/Ss. 302, 307, 326 read with sec. 34 of the IPC. At the end of the trial the Ld. Addl. Sessions Judge, Kutch at Bhuj by his judgment and order dated 25/4/1990 held the accused guilty for the aforesaid offences and sentenced them as referred to hereinabove. This appeal is filed challenging the said conviction and sentence. 4. Ld. Senior Counsel Mr. A.D. Shah has taken us through the evidence of P.W. 1 Dr. Chandrakant Mavjibhai, exh.9 and the relevant portion of P.M. note exh. 10. On referring to some part of the deposition of P.W. 6 Narsinh Kachraji exh.22 Mr. shah has submitted that the version of the complainant Narsinh Kachraji does not get corroboration from the medical evidence. He has also tried to point out that injured Narsinh Kachraji himself is not even consistent qua the injuries sustained by him. In the complaint i.e. FIR exh. 36 he has said that he was given a sword blow by accused no. 1 but the version of P.W. 3 Pravinsinh Keshubha is that this very Narsinh Kachraji has told him that he was given Dhariya blow on the head by accused no.2 Devji. According to Mr. Shah this material conflict has not been appreciated properly by the Ld. trial Judge. According to Mr. Shah the case of the prosecution rests with only one witness i.e. Narsinh Kachraji. Even if the Court feels that his presence at the place of incident is genuinely proved, then also uncorroborated testimony of this witness ought not to have been accepted as a Gospel truth. The learned trial Judge has not tried to seek any corroboration and has ignored the conflicting part of the evidence available on record. Eye witness who is not corroborated by medical evidence normally should not be believed and as a rule of prudence Court must seek reasonable corroboration in such a eventuality. Mr. Shah has argued that Pravinsinh Keshubha and Rajendra Bhagvanji has tried to help the prosecution by falsely implicating accused nos. 3 and 4, female members of the family of accused nos. 1 and 2 as if they have seen some overt act of these female accused. Certain suggestions made to P.W.3 Pravinsinh Keshubha and complainant Narsinh Kachraji were also brought to the notice of this Court and it has been submitted that these two witnesses, namely Pravinsinh Keshubha P.W. 3 and Rajendra Bhagvanbhai P.W. 4 ought to have been held as persons interested in the prosecution and their evidence cannot be relied upon as reliable piece of evidence which can corroborate the version of complainant Narsinh Kachraji. 5. The other main submission of Mr. Shah is that prosecution has tried to suppress genesis of the crime and when Narsinh Kachraji is the only witness, he could have unfolded the true story before the Court. The initiation of the exchange of words between deceased Pravin and accused no. 3 is prima-facie found improbable and on bare exchange of words uttered before the Court during deposition, would not have given cause to accused nos. 1 and 2 to assault deceased Pravin with deadly weapons like sword and Dhariya. There was ample probability of other conversation resulting into scuffle. It is also probable that deceased Pravin might have tried to snatch the minor child aged about one year. The condition of the clothes of the accused recovered, during the course of investigation under a Panchnama exh. 30, gives clear intention of some scuffle, otherwise these clothes would not have been stained with blood on the back portion and these clothes would not have found damaged or torn off. A witness who suppresses the genesis of the crime or who fails in unfolding the correct story before the Court should be termed as unrreliable witness and it would not be safe to accept such version according to the accepted principles of our criminal jurisprudence of this country. Undisputedly, according to Mr. Shah, P.W. 3 and 4 Pravinsinh Keshubha and Rajendra respectively are not eye witness to the incident, the scope of their arrival at the house of accused persons at any later point of time i.e. after leaving the house by the accused person is more probable. So in view of this the Ld. trial Judge ought not to have held the accused nos. 3 and 4 guilty of any offence. He has also tried to point out that there is evidence to the effect that P.W. 3 Pravinsinh has some experience of Court and its proceedings and he might have helped the prosecution in moulding the story. In a nutshell the act of putting burden of the substantial part by prosecution goes to the root of the result and, therefore, the accused should be acquitted. During the course of enlargement of the argument Mr. Shah has tried to submit that sword is a weapon which is normally used to inflict a through blow with force or the same is whrilled and normally it is not used to inflict a stab injury. Nature of injury on the body of deceased Pravin is not prima-facie look like a sword blow and the fatal injury found on the body is a stab wound on the chest. Though, the doctor who has performed post mortem, narrated that the body was found with 4 external injuries. The column 17 of the P.M. note says about only 3 and all the 3 injuries narrated in column 17 of P.M. note exh. 10 are of the type, or any of it could not have been caused with blow of Dhariya. This is a case wherein Dhariya must not have been used by the accused no.2. Even then, during the course of investigation the police has recovered a blood standed Dhariya. This fact is suggestive of some exaggeration made by the prosecution witnesses and the investigating agency with a view to implicate all the family members in the crime. Mr. Shah by pointing out some improvements made by the prosecution witnesses in the contradictions found in their version, has ultimately submitted that the appeal of the appellant accused persons should be allowed and all of them should be acquitted from the charges levelled against them. 6. It is alternatively argued by Mr. Shah that so far as the injuries sustained by Narsinh Kachraji is concerned and if the Court holds that crime qua accused no. 1 is substantially proved beyond doubt, even then the conviction u/S. 307 of the IPC is bad. Considering the visit of the house of the accused by Narsinh Kachraji, without prior intimation and the scope of sudden scuffle, accused no. 1 could not have been attributed with intention of killing P.W. 6 Narsinh Kachraji. Though the injury is on the vital part i.e. head, the same cannot be said to be grievous hurt. It is simple in nature. Accused no. 1 has not tried to inflict second blow to Narsinh Kachraji. Other 3 injuries narrated by Narsinh Kachraji in his examination-in-chief were not noticed by the doctor who examined Narsinh Kachraji. Thus, the learned trial Judge ought not to have convicted accused no. 1 for the offence punishable u/S. 307 of the IPC. According to Mr. Shah if it is held that any offence qua Narsinh Kachraji has been committed by accused no.1, the same cannot be said to be more serious offence than one under section than u/S. 324 of the IPC. 7. After hearing the detailed arguments of Mr. A.D. Shah, Ld. Senior Counsel, Mr. K.C. Shah, Ld. APP for the State made a direct request to the Ld. counsel appearing for the appellants to assist the Court on the point of nature of alleged offence committed by the accused nos. 1 and 2, if the Court believes that the incident, substantially in the manner in which narrated by the prosecution, has occurred on the date of incident. In response thereof, without prejudice to his earlier contentions, Mr. A.D. Shah has submitted that in the light of the decision in the case of Surinder Kumar v. Union Territory, Chandigarh reported in AIR 1989 S.C. 1094 it should be held that the accused is not guilty of the offence punishable u/S. 302 of the IPC, but responsible for lesser offence punishable u/S. 304 Part-I read with sec. 34 or sec. 114 of the IPC. He has taken us through the relevant portion of the cited judgment wherein six injuries were inflicted on the body, one of them on chest of the deceased, which was found fatal. We shall try to deal with this aspect in the later part of our judgment. 8. Ld. APP Mr. K.C. Shah has submitted that the judgment of the learned trial Judge is absolutely in accordance with law and has rightly appreciated the facts available on record. According to Ld. APP complainant Narsinh Kachraji is an injured eye witness whose presence at the place of incident, being a relative of deceased Pravin Arjan and Lilaben, wife of accused no.1 was natural. The story of the prosecution is consistent qua the cause of the visit of deceased Pravin and Narsinh Kachraji at the house of accused persons. By pointing out the birth date of the son of accused no. 1 and Lilaben available from certificate on record, he submitted that it is very likely that because of the completion of one year of birth of minor son Lala, Pravin Arjan might have visited house of the accused with a request to permit them to carry Lala at the place of "Manta". Age of Pravin Arjan, according to Mr. Shah, is relevant. Comparatively young in age, he might have taken assistance of his maternal uncle native of village Bhachav itself. There was no reason for P.W. 6 Narsinh to say no to Pravin when he was to go to his sister's place for a reasonable cause. Injury on the head of Narsinh Kachraji, when he was coming out of the house of the accused seen by two prosecution witnesses examined by the prosecution, namely Pravinsinh Keshubha and Rajendra Bhagvanji and the act of lodging FIR in couple of minutes in the police station naming the accused persons are relevant aspects of the case of the prosecution which could not have been ignored by the trial Court. The stab injuries caused to the deceased Pravin Arjan are inflicted after he fell down. So such injuries could not have been inflicted by sword as the same is pierced in the body. Two unarmed persons were assaulted inside the house by accused nos. 1 and 2. Undisputedly the blood of the deceased was found on the earth in the open space i.e. Falia, - land abutting the house and within the compound of accused persons. Accused no. 1 had no reason to give sword blows stabing it into the body of the deceased when he had already fallen down. The nature of injuries inflicted and number of blows found are sufficient to gather the intention of the assailant accused. There is no scope even to think of a case of private defence. Weapons recovered at the instance of accused and the clothes of the accused were found blood stained with human blood and the clothes of accused nos. 1 and 2 were found stained with the blood of the group which was found on the clothes of deceased during forensic science laboratory examination. Undisputedly the blood group of deceased was of group 'AB' and the blood of this very group was found on the clothes of accused nos. 1 and 2. How and why the back portion of the shirt of the accused was found stained with such blood is not a matter required to be explained by the prosecution. It may be accidiental. Looking to the sketch of the place of incident drawn by the Revenue Circle Inspector at exh. 13, Mr. Shah, Ld. APP has submitted that undisputedly deceased Pravin Arjan and injured Narsinh Kachraji had entered into from the gate of Falia and a pair of sleeper was found in the open part abutting to a roof top (Dhaliya) used for keeping the cattle. This indicates that after leaving the sleepers outside the house, Pravin must have tried to talk to accused Badhiben so that he can conveniently take minor Lala with him. Mr. Shah, Ld. APP has submitted that even for the sake of argument it is expected that some hot exchange of words might have taken place, non-disclosure of such hot exchange of words by Narsinh Kachraji in his complaint cannot be said to be non-disclosure of genesis of crime. No material improvements is made by any of the prosecution witnesses and the version of Narsinh Kachraji is amply corroborated by surrounding circumstances and the version of P.W. 3 Pravinsinh Keshubha and P.W. 4 Rajendra Bhagvanji. The learned trial Judge, according to Mr. Shah, has considered all relevant aspects of the matter. FIR naming all the accused persons in couple of minutes discloses the basic story of the case of the prosecution. The version of the complainant Narsinh Kachraji before the Court is consistent to the FIR. This FIR can be used for the purpose of corroboration and, therefore, he has submitted that this is not a case of uncorroborated testimony of a sole or only of interested witnesses. 9. Mr. Shah also pointed out that there is no direct conflict between oral version of the complainant and the medical evidence. Some error if committed by PW 3 Pravinsinh Keshubha qua the weapon by which complainant sustained head injury and the accused responsible for the injury. But the same would not go to the merit as complainant himself has remained consistent. He is an injured eye witness and there are no material contradictions in his version or in the deposition of other important witness i.e. Rajendra Bhagvanji. Therefore, it would not be proper to hold that the trial Court has committed error in holding accused no. 1 guilty of the offence punishable u/S. 307 of the IPC. In response to the query raised by the Court, Mr. Shah has submitted that the nature of evidence available on record, comparatively, can be said to be a weak piece of evidence so far as accused nos. 3 and 4 are concerned. Their presence at the place of incident is natural and the likelihood of their false involvement in the crime is highly probable. The conduct of both these accused of leaving the house in couple of minutes with accused nos. 1 and 2 also cannot be ignored. But as the clothes of these two lady accused were not found stained with the blood of the deceased, the trial Court could have taken the another view. As per Mr. Shah, looking to the genesis of the crime i.e. wish of taking of Lala by deceased Pravin Arjan was such a social eventuality, that these two female members of the family might have involved themselves in the crime. However, this is a case wherein two possibilities exist. According to Mr. Shah, Ld. APP the conviction qua accused nos. 1 and 2 is absolutely legal and appeal of atleast two appellants deserves dismissal. While replying the arguments for altering the conviction u/S. 307 into section 324 of the IPC qua accused no. 1 for causing injuries to Narsinh Kachraji is concerned Mr. Shah has submitted that head being vital part of the body, the Court should not interfere with the findings. 10. To appreciate the contentions raised by Mr. A.D. Shah, Ld. Counsel for the appellants and Ld. APP Mr. K.C. Shah, we have gone through the entire oral as well as documentary evidence and the authorities cited before us. There is no dispute that the death of Pravin Arjan is a homicidal death and he succumbed to the injuries inflicted on his chest. Whether accused nos. 1 and 2 both have tried to inflict blows on the deceased and whether both have caused injuries on the body of the person deceased is the question to be decided. For this oral version of Narsinh Kachraji, P.M. note of deceased Pravin and the deposition of Dr. Chandrakant Mavjibhai, exh. 9 are important pieces of evidence. Recovery of blood stained Dhariya from accused no. 1 and the clothes of accused no. 1 being found with the stains of blood of the group of the deceased are other two circumstances which can be taken into consideration. The conduct of both the accused immediately after the incidient noticed by P.W. 3 and 4 is a circumstance which can be used against both the accused. Custody of Lala at the relevant point of time with accused no. 1 and his family and the fact that the deceased Pravin had gone to the house of the accused to fetch Lala as he was to complete one year of his birth and the existence of matrimonial disputes between the accused no. 1 and the sister of deceased Pravin are three other relevant aspects which needs consideration. 11. We are not inclined to accept the say of Mr. A.D. Shah that the ratio of the judgment in the case of Mool Chand v. Jagdish Singh Bedi reported in 1992 Criminal Law Journal p. 1539 can be applied to the facts of this case. In the case before the Apex Court, it has been held that the independent eye witness was highly artificial and his version did not fit with human probabilities. It was also found that the genesis of incident was shrouded in mystery and it was also held that this highly artificial version and the genesis shrouded in mystery was sufficient to give rise to doubt. Even for the sake of argument it is expected that Narsinh Kachraji has not narrated the exchange of words resulting into some scuffle or provocation in the FIR, but the same cannot be equated with non-disclosure of the genesis of the crime. He had rushed to the police station in couple of minutes in an injured condition. His head was bleeding. If he narrates the cause of injury inflicted on him and on deceased Pravin Arjan, disclosing the cause of their visit at the house of the accused can be said to be sufficient. It is likely that on asking he might have tried to tell the police that their visit at the house of the accused was innocent and with a particular view or purpose and the exchange of