CR.A/93/1999 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 93 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ======================================================= 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 ? ======================================================= VASHRAMBHAI RAMBHAI & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MR AD SHAH for Appellant(s) : 1 - 2. MR HL JANI APP for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 04/02/2008 CR.A/93/1999 2/25 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1. This appeal under Sec.374 of the Code of Criminal Procedure has been preferred by the appellants-original accused nos.1 and 3 who have been charged and tried for the offence punishable under Sections 302, 323, 324, 506(2) r/w 114 of Indian Penal Code in Sessions Case No.41 of 1995 wherein they were convicted to undergo imprisonment for life and fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for one year by the learned Sessions Judge, Bhavnagar vide judgment and order dated 19.01.1999. Since the original accused no.2 viz., Manabhai Punabhai has expired during the course of trial on 18.07.1996, case was abated against him. 2. The case of the prosecution in short is as under :- 2.1 On 06.09.1994 at about 8 o'clock in the morning, the complainant and his nephew viz., Jivrajbhai had gone to their place of work. While returning between 7:45 and 8:00 in the evening, when they reached near Crematorium on Adpur Road, they saw Dulabhai Raghavbhai (deceased), who was working as diamond cutter at Palitana in the factory of Keshubhai Raghavbhai and doing up-down from Adpur to Palitana on bicycle, was standing there and CR.A/93/1999 3/25 JUDGMENT the accused person viz., Bharvad Vasharam Rambhai @ Vashyo (accused no.1), who along with other two persons armed with stick was also standing there in front of him had abused him for disturbing their cow while grazing. 2.2 Since the accused persons were abusing him, the deceased asked for pardon and, hence, the accused persons got excited and accused no.1 slapped the complainant on his left cheek. Thereafter, the accused no.1 told the other accused to catch hold of the deceased and, hence, both caught hold of the deceased, at that time, the accused no.1 also told that he will be finished on that day. After saying this, the accused no.1 took out knife from his Nefo (inside pant) and inflicted two knife blows on thigh and one blow on the back side (hip). 2.3 Since, the complainant shouted for help, other two accused persons also caught hold of him and accused no.1 also inflicted two knife blows to him. During that incident, nephew of the complainant viz., Jivram was afraid and, hence, he hid himself nearby. Thereafter, the accused persons ran away from the place of offence towards Barpara. 2.4 During the incident and even while running, the complainant recognized the accused no.1 and other persons due to street light CR.A/93/1999 4/25 JUDGMENT available near scene of offence as they used the said road for doing up-down. Thereafter, said Jivram went for calling someone and the complainant stayed there near the deceased. 2.5 After some time, the brothers of the complainant viz., Keshubhai and Dayabhai reached the scene of offence and saw that the injured (Dulabhai) succumbed to the injuries. Therefore, Keshubhai stayed there and Dayabhai took the complainant to Palitana Government Hospital for treatment. 2.6 At that time, the complainant was conscious. Accordingly, offence came to be registered with Palitana Town Police Station as I- C.R.No.158/1994 for the offence under Sections 302, 324, 323, 506(2), 504 and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 3.1 Thereafter, the P.S.O. handed over the investigation along with the yadi, FIR and report to Police Sub-Inspector, Shri Ramdevsinh Bharatsinh Gohil (P.W.No.8, Exh.43). In pursuance of that, he started further investigation. He drew the inquest panchnama in the presence of panchas, filled up Maranottar Form and also made arrangements to send the dead body for postmortem along with the Maranottar Form, inquest panchnama and yadi and also drew the panchnama of scene of offence in the presence of panchas. CR.A/93/1999 5/25 JUDGMENT 3.2 He also recorded the statements of various witnesses and arrested the accused persons by preparing arrest panchnama. Since, the accused no.1 showed willingness to produce the weapon alleged to have been used in the commission of offence, two panchas were called and prepared primary panchnama at Palitana Police Station. Thereafter, the Investigating Officer along with the accused, panchas and other police personnel proceeded in a jeep as guided by the accused. Thereafter, accused asked to stop the jeep at a particular place and he found out and produced the muddamal gupti. Same was seized by preparing panchnama. 3.3 He also sent muddamal to FSL along with forwarding letter and also collected the postmortem report, injury certificate etc. and on receiving the FSL report, same was kept along with the investigation file. Upon completion of investigation, he submitted the charge sheet against the accused persons before the Learned Learned Judicial Magistrate, First Class, Palitana on 05.12.1994. 4.1 As the offence alleged against the accused was exclusively triable by the Court of Sessions, same was committed to the Court of Sessions at Bhavnagar on 30.01.1995 by the Learned Learned Judicial Magistrate, First CR.A/93/1999 6/25 JUDGMENT Class, Palitana, where it was numbered as Sessions Case No.41 of 1995. 4.2 Thereafter, the case was transferred and placed for trial before the learned Sessions Court, Bhavnagar for disposing the same on merits and on production of the accused, the Learned Sessions Judge framed charge vide Exh.9 against all accused persons on 21.04.1998. All the accused pleaded not guilty to the charge and claimed to be tried. 5.1 To prove the charge against the accused, prosecution examined, in all, 8 witnesses viz., P.W.No.1 viz., Dr.Vijaybhai Shankarbhai (Medical Officer), Exh.29, P.W.No.2 viz., Khimjibhai Odhabhai (Panch of inquest panchnama, who turned hostile), Exh.32, P.W.No.3 viz., Ghanshyambhai Tejabhai (Panch of inquest panchnama, who turned hostile), Exh.34, P.W.No.4 viz., Bijabhai Tapubhai (Panch of scene of offence), Exh.35, P.W.No.5 viz., Vallabhbhai Shamjibhai (Panch of recovery of knife and stick), Exh.37, P.W.No.6 viz., Maganbhai Ramsinhbhai (eye witness), Exh.40, P.W.No.7 viz., Jivrajbhai Dahyabhai (eye witness), Exh.41 and P.W.No.8 viz., Ramdevsinh Bharatsinh Gohil (P.S.I. - Investigating Officer), Exh.43. The prosecution also placed reliance upon documentary evidence numbering 21. 5.2 On submission of closing purshis by the CR.A/93/1999 7/25 JUDGMENT prosecution, learned Judge recorded further statement of the accused under Sec.313 of Cr.P.C. qua the incriminating evidence wherein the accused came out with the case of total denial. The accused did not examine any witness nor stepped into the witness box. Therefore, after hearing the learned counsel appearing for the respective parties, learned Sessions Judge delivered the impugned judgment giving rise to file the present appeal. 6.1 We have heard learned counsel for the appellants, Mr.A.D. Shah and learned Additional Public Prosecutor, Mr.H.L. Jani for the respondent-State. 6.2 Learned counsel for the appellants, Mr.A.D. Shah has taken us through the medical evidence, evidence of P.W.No.1 viz., Dr.Vijaybhai Shankarbhai (Exh.29), P.W.No.6 viz., Maganbhai Ramsinhbhai (Exh.40) and P.W.No.7 viz., Jivrajbhai Dahyabhai (Exh.41) and impugned judgment delivered by the Court below. 6.3 After taking us through the medical evidence, it is contended by him that the injured Maganbhai Ramsinh has received two injuries on left side thigh and both injuries were muscle deep and the injured was discharged from the hospital within four days. 6.4 It is contended that as regards the injuries CR.A/93/1999 8/25 JUDGMENT to the deceased, the postmortem report disclosed three external injuries, out of which, two injuries were found on left thigh having depth of 2.5 cm; third injury was found on right buttock region which was muscle deep. The internal injuries were not noticed corresponding to external injuries. However, spleen was found ruptured and its shape and size were not normal. 6.5 It is also contended that the Medical Officer (P.W.No.1, Exh.29) in his deposition stated that the injury nos.1 to 3 of Column No.17 were not sufficient in ordinary course of nature to cause death. He has also opined that there was collection of blood in Peritoneum Cavity and it was sufficient to cause shock. He also admitted that the external injuries were not sufficient to produce shock causing death. He also admitted that spleen rupture can be caused due to many reasons and it is not essential to have external force and thus, absence of injuries on any vital part of the body completely rule out the intention to cause death. The place of injury also improbabilize the role attributed to accused no.2 and the original accused no.3. Both these accused were attributed the role of catching hold of the deceased and, thereafter, the accused no.1 taking out knife and inflicting blows on CR.A/93/1999 9/25 JUDGMENT thigh region. 6.6 It is submitted that the medical evidence does not conclusively establish the cause of death viz., rupture of Spleen associated with infliction of injuries. This also rules out the offence of culpable homicide amounting to murder. Further-more, the infliction of injuries on thigh, both to the deceased and the complainant rules out intention to kill and suggest the possibility of grappling between the victim and assailants. 6.7 It is submitted that the finding given by the Court below at paragraph no.41 is absolutely perverse. The Court below in its Judgment has observed that the medical evidence clearly discloses that there was collection of blood in abdominal cavity due to injury to Spleen and that was sufficient to produce shock. The Court below also took the view that there was quarrel and injuries were inflicted by knife, so it cannot be said that no separate injuries were caused to Spleen. Thus, the Court below drew the conclusion that the accused inflicted injuries by knife to deceased due to which this occurred. 6.8 After taking us through the evidence of Mangalbhai Ramsinhbhai (P.W.No.6, Exh.40) and Jivrajbhai Dahyabhai (P.W.No.7, Exh.41), it is submitted that both these witnesses do not appear to be natural as their conduct at the CR.A/93/1999 10/25 JUDGMENT time of incident and after the incident is also unnatural. Accused no.1 is shown to be armed with stick-knife and though there were exchange of words by the accused no.1 with the complainant, which resulted into giving slap to the complainant, the complainant remained silent and, therefore, according to him, the conduct of the witness is unnatural one. It is also contended that even the deceased and Jivrajbhai have also not reacted. So, according to him, both the above referred witnesses are not natural one and their presence at the time of incident create doubt in the mind of all concerned and they are concocted and got up witnesses. 6.9 It is also contended that when the accused no.1 had got enraged on the complainant and instructed the accused nos.2 and 3 to catch hold of with an intention to finish him off and then took out knife, then also, the deceased had not intervened at all. 6.10It is further contended that thereafter, the deceased and the complainant started raising shouts for help, at that time, the accused nos.2 and 3 pressed his neck and accused no.1 inflicted injuries on his left thigh. It is the case of the complainant that thereafter, the accused fled away from the place of offence. Thus, the manner of incident clearly improbabilize the so-called attack by accused CR.A/93/1999 11/25 JUDGMENT no.1 on the deceased when there was no provocation given by the deceased. Similarly, there is no motive which would prompt all the accused to entertain a common intention to kill the deceased. 6.11It is further submitted by him that the Court below has ignored the fact regarding the distance between the lamp-post and the scene of offence. It is also argued that as per the evidence of the panchas of the scene of offence and evidence of the witnesses, it is established that no person can identify the assailant as the lamp-post was at such a distance. In this regard, he has taken us through the evidence of the Investigating Officer (P.W.No.8, Ramdevsinh Bharatsinh Gohil, Exh43) and argued that as per his evidence, the lamp-post was at a distance of 127 ft. from the scene of offence. It is also argued that the Investigating Officer has admitted in his cross-examination that the street light was not sufficient for preparing the panchnama and, hence, they had to use light of jeep and petromax as well as battery. After showing the evidence of aforesaid witness, it is argued that the say of the complainant that he could identify the assailant-accused is absolutely unnatural. Simultaneously, he has also read over the evidence of Jivrajbhai Dahyabhai and argued CR.A/93/1999 12/25 JUDGMENT that the evidence of Jivrajbhai is not found to be trustworthy as he has not tried to intervene at all. It has also been contended that the conduct of the complainant is also not good, just and proper. 6.12It is submitted that the Court below ought to have seen that according to prosecution, the deceased was on his cycle where the incident had taken place. It transpires that one Bharat Savji was with the deceased at the time of incident. Both the eye witnesses pleaded ignorance about removal of the cycle of the deceased from the scene of offence, but Jivrajbhai admits that though the cycle was not noticed by him when he went to the scene of offence at midnight and even in early morning at the time of preparing the panchnama of scene of offence, some one had returned the cycle to residence, two days after the incident. Thus, the evidence of Bharat Savji would have been essential to unfold the prosecution story and he has not been examined by the prosecution. 6.13It is also submitted that the injuries received by the deceased, which resulted into the death of the deceased are not fatal injuries. It was only a knife blow and they have no knowledge about the injury, which resulted into the death of the deceased. It is contended that the original accused nos.2 CR.A/93/1999 13/25 JUDGMENT and 3 have caught hold of the deceased and the accused no.1 gave knife blow. It is further contended that it is a case of sudden provocation and the prosecution has not been able to prove motive and the evidence of Jivram is not inspiring confidence. 6.14Learned counsel, Mr.Shah has also placed reliance upon the medical jurisprudence by Modi to show the causes on account of which a spleen rupture may take place, wherein it is mentioned that “it is, however, possible that occasionally, in certain individuals and at certain phases, a healthy normal spleen may rupture from minimal trauma”. If the capsule is intact in such a case, the symptoms may be delayed for hours or days, and when eventually the patient collapses, he would have forgotten the original and causative injury so that the spleen appears to have ruptured spontaneously. 6.15Learned counsel for the appellants has also placed reliance upon the judgments reported in AIR 2007 SC 432 and 1986(2) Vol.27 GLR 1426. It is also submitted that there is no case made out against the accused nos.1 and 2 and, hence, the case is fallen under Section 304 Part II of the Indian Penal Code. Mr.Shah has, therefore, urged that the present appeal deserves to be allowed and the judgment of conviction and sentence as pronounced by the CR.A/93/1999 14/25 JUDGMENT learned trial Judge requires to be set aside. 6.16He has drawn our attention towards 1986(2) Vol.27 GLR 1426, more particularly, head note, which reads as under :- “Indian Penal Code (XLV of 1860) – Secs. 300, 302, 304 Part I and Part II – Distinction between the three offences – A stab wound on the thigh muscle cutting the femoral artery and vein resulting into the death of the victim – The offence is one punishable under sec. 304 Part II only.” 7.1 Learned A.P.P., Mr.H.L. Jani, has also taken us through the above referred evidence, upon which, reliance has been placed by the learned counsel for the appellants. Mr.Jani has mainly taken us through the evidence of doctor, who has performed the postmortem and gave P.M.Note, Exh.31, more particularly, Col.No.17 & 20 and argued that the injuries which have been received by the deceased are serious in nature and accused had an intention to cause said serious injuries. Even prior to the alleged incident, the accused has uttered that they are going to finish him that day and, therefore, according to him, the intention of the accused has been established from the above referred evidence and the Court below has rightly convicted the accused under Section 302 of the Indian Penal CR.A/93/1999 15/25 JUDGMENT Code. 7.2 According to him, the motive is also established that the deceased was disturbing the grazing of cow of the accused and, therefore, to teach him a lesson, they have gathered and killed the deceased. It has been argued by him that it is not a case of sudden provocation because the accused no.1 had knife in his pocket and they were waiting for the deceased along with deadly weapons in a remote area so that he can finish the accused without any interference or resistance of others. 7.3 It has been argued that there are sufficient evidence on record to connect the accused with the crime in question. According to him, all are from same village. Even prior to the incident, altercation has taken place between them and the assailants can be identified without light as they are villagers and they are accustomed to this type of environment. Thus, they identified the accused and also get support to identify them in a shade of light of lamp. 7.4 According to him, the witnesses had sufficient time to identify the assailants and, therefore, merely because of the distance of lamp shade and light from the place of incident, the accused may not be given any benefit of doubt. Therefore, the CR.A/93/1999 16/25 JUDGMENT judgment delivered by the Court below being reasoned one does not require any interference. 8.1 We have gone through the oral as well as documentary evidence and the reasoned judgment delivered by the Court below shown to us by the learned counsel for the respective parties. 8.2 For the purpose of deciding this appeal following witnesses are the important witnesses. 8.3 P.W.No.1 viz., Dr.Vijaybhai Shankarbhai at Exh.29, who has performed the postmortem upon the dead body of the deceased and also treated injured – Maganbhai (complainant) and also proved injury certificate of complainant at Exh.30 and P.M. Note at Exh.31, P.W.No.7 viz., Jivrambhai Dahyabhai at Exh.41, who claimed to be an eyewitness and according to him, he has seen the alleged incident as he hid himself very near the scene of offence and P.W. No.8 viz., Ramdevsinh Bharatsinh Gohil at Exh.43. Along with that, inquest panchnama, injury certificate of complainant- Maganbhai and P.M.Note of deceased, panchnama of scene of offence, discovery panchnama at Exh.38 and FSL Report etc. 8.4 It is established from the evidence of the complainant and the complaint at Exh.44 that the complainant is the injured person, who CR.A/93/1999 17/25 JUDGMENT has categorically narrated that when he and Jivrajbhai were coming from Palitana on motorcycle and reached very near to the scene of offence, his cousin brother viz., Dula was standing there and one Vashrambhai Bharvad armed with stick in his hand along with two other persons were also standing in front of him and said Vashrambhai was abusing the deceased stating that why he is disturbing his cattle. At that time, the Dula asked for pardon and, hence, said Vashram got excited and slapped on the cheek of the deceased and, thereafter, he told other two accused, who was with him, to catch hold of him that day and he is going to kill him and, hence, other two accused caught hold of the deceased and Vashram took out knife from his pants and gave blow of it to the deceased. 8.5 The complainant in the complaint stated that if opportunity will be given to him, he can identify two known persons. The complainant has been examined by the prosecution as P.W.No.6, Exh.40 and he stuck to his versions as narrated in the FIR. In short, according to him, he has seen Vashram while assaulting his cousin brother, but two other persons were there, but he could not identify them. It is not his case that prior to that also, he has seen two other persons. 8.6 Over and above, the evidence of P.I., Shri CR.A/93/1999 18/25 JUDGMENT Gohil is also required to be taken into consideration along with the panchnama of scene of offence. Before drawing the same, the measurement has been shown by the panchas to the effect that the distance between the scene of offence and two lamp posts is about 127 ft. and same has been admitted by the Investigating Officer in his oral evidence. Not only that, the Investigating Officer further admitted that the two lamp posts were at such a distance that nobody can identify the person with the help of it. Not only that, it reflects from the evidence of Investigating Officer, Shri Gohil that the panchnama of scene of offence has been prepared with the help of the head light of the jeep. It is also admitted that the alleged incident took place at about 8:30 hours in a sim (out skirt) very near to crematorium. 8.7 As far as far as evidence of the complainant qua the appellant no.1-Vashram is concerned, he has specifically stated that Vashrambhai was abusing and assaulting the deceased and prior to that, Vashram told to other persons to catch hold of the deceased. Hence, we accept the evidence in toto qua the appellant-accused no.1. In view of the above, we are unable to accept the evidence of the complainant qua appellant-accused no.2 as the CR.A/93/1999 19/25 JUDGMENT complainant has categorically deposed before the Court as well as narrated in the FIR that if the opportunity will be given, he can identify other two accused persons. Therefore, the evidence of the complainant creates doubt in the mind of the Court qua appellant-accused no.2. 8.8 As far as other eye witness i.e. the P.W.No.7 viz., Jivrajbhai Dahyabhai, Exh.41 is concerned, we have gone through the evidence along with the cross-examination and we are of the opinion that his evidence creates doubt as he has deposed in his deposition that he hid himself and saw the incident from that hidden place. It is required to be noted that when the complainant, who himself is the injured witness and was present on the spot and he could not identify the other two accused then, the question of identification by Jivraj at a reasonable distance and that too also, at the place, where he hid himself creates doubt and, hence, we believe that he might be a chance witness and we are unable to believe the evidence of Jivraj except the complainant. In view of the above, we accept the arguments qua the appellant no.2 and, therefore, the appellant no.2 is required to be given benefit of doubt. 8.9 From the evidence of the above referred witness, it has been established that the CR.A/93/1999 20/25 JUDGMENT death of the deceased was not natural one. Over and above, the doctor opined that “the cause of death is due to shock and hemorrhage due to multiple injury and injuries to