IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 663 of 1991 with CRIMINAL APPEAL No 1147 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE K.R.VYAS and MR.JUSTICE A.M.KAPADIA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- KOLI GOBAR NANNA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 663 of 1991 MR AD SHAH for appellant. MR MA BUKHARI APP for Respondent No. 1 2. Criminal AppealNo 1147 of 1991 MR MA BUKHARI for appellant MR AD SHAH for Respondents -------------------------------------------------------------- CORAM : MR.JUSTICE K.R.VYAS and MR.JUSTICE A.M.KAPADIA Date of decision: 29/01/99 COMMON ORAL JUDGEMENT (Per A.M. Kapadia, J.) 1. Criminal Appeal No. 663 of 1991 is filed by appellant, Koli Gobar Nanna, original accused No.1 in Sessions Case No. 1 of 1986, under Section 374 of the Criminal Procedure Code, 1973 ('the Code' for short hereinafter), challenging the judgment and order dated 4.9.1991 rendered by learned Additional Sessions Judge, Bhavnagar, Camp at Mahuva, whereby the appellant was held guilty and has been convicted for the offence punishable under Section 304 Part II of the Indian Penal Code ('IPC' for short) and sentenced him to suffer simple imprisonment for three years and to pay fine of Rs.1,000/- and, in default of payment of fine, to undergo simple imprisonment for further period of one month and also held him guilty and has been convicted for the offence punishable under Section 135 of the Bombay Police Act and sentenced him to suffer simple imprisonment for a period of 15 days and to pay a fine of Rs.100/- and in default, to undergo simple imprisonment for a further period of five days. 1.1 Criminal Appeal No. 1147 of 1991 is filed by State of Gujarat against the respondents, who were the accused Nos.1 and 3, challenging the same judgment and order whereby the learned Additional Sessions Judge was pleased to acquit both the accused of the offence punishable under Section 302 of IPC. 1.2 As both the appeals arise out of a common judgment and order passed by the learned Additional Sessions Judge in Sessions Case No. 1 of 1986, both the appeals are heard together and they are being disposed of by this common judgment. 2. For the purpose of disposal of these appeals, the prosecution case, in nut shell, may be stated as under: 2.1 It was alleged by the prosecution against both the accused Nos.1 and 3 and deceased accused No.2, Koli Dhiru Lakha, who died during the course of trial, that on the day of the alleged incident, 28.9.1985, at about 3.15 P.M., while complainant Husainmiya Akbarali was returning after answering the call of nature, accused No.1 Koli Gobar Nanna met him on the way and abused him using filthy language. Thereafter accused No.1 left the place and complainant also went to his house where he informed his cousin Mohmed Husain who came to his house, about the incident. Thereafter, the complainant in company of Mohmed Husain went to the shop of Mansukhbhai for eating pan where accused was standing. The complainant scolded accused No.1 for abusing him and inquired as to why did he abuse him. Immediately, accused No.1 got excited. Meanwhile, accused No.2, deceased Dhiru Lakha and accused No.3, Madhu Laxman came there and caught hold of complainant. Thereafter accused No.1 caught hold the deceased Mohmed Husain by neck and took out a knife from his waist and inflicted a blow on the left side of the chest of deceased Mohmed Husain as a result of which he fell down. Thereafter again accused No.1 gave 3-4 blows with the knife on the back of Mohmed Husain. During that time, the complainant tried to snatch away knife from accused No.1 and at that time he also received injury on his palm. At that time, mother of complainant Kulsambibi, sister Banubha and Zehrabanu came there. Thereafter all the accused ran away towards the shop of Velabhai. After some time, a crowd assembled near the shop of Mansukhbhai. In the complaint, motive ascribed was that eight months prior to the incident, his maternal uncle Vilayathusain had a quarrel with accused No.1 and deceased Dhiru Lakha with respect to a house and on the day of the alleged incident, all the three accused persons inflicted injuries to deceased Mohmed Husain with knife and thereby committed the offence of murder. 2.2 On the basis of the aforesaid complaint, offence was registered at Mahuva Police Station and investigation was commenced. During investigation, statement of various witnesses was recorded, inquest panchnama and panchnama of the scene of offence and recovery of the weapon was drawn. Dead body of the deceased was sent for post-mortem examination and muddamal knife and blood stained clothes were sent to Forensic Science Laboratory for examination and report. After receipt of post-mortem report and report from the Forensic Science Laboratory, both the accused Nos.1 and 3 and deceased accused No.2 were charge-sheeted for commission of the alleged offence, as mentioned hereinabove. 2.3 On committal, charge was framed against the accused. As accused No.2 Dhiru Lakha died during the course of trial, case against him was abated. Both the accused Nos.1 and 3 pleaded not guilty to the charge levelled against them and stated that they are innocent and the case filed against them was false. Hence, they were put on trial. 2.4 In order to bring home the charge levelled against the accused, prosecution has placed reliance on the evidence of 19 witnesses so also on the documentary evidence produced by them. 2.5 The learned trial Judge, after recording the evidence of the witnesses and considering the documentary evidence such as, post-mortem report and report of Forensic Science Laboratory and after appreciating and evaluating the same, came to the conclusion that homicidal death of Mohmed Husain was proved but it was a case of culpable homicide not amounting to murder and, therefore, he held the accused No.1 guilty for the commission of the said offence and acquitted the accused No.3 holding that he has not played any role in the said crime. The learned trial Judge further found accused No.1 having committed offence punishable under Section 135 of the Bombay Police Act for possessing arm in violation of the notification of the District Magistrate and held him guilty for the commission of the said offence. Thus, the learned trial Judge came to the conclusion that accused No.1 has committed both the above mentioned offences and accordingly he was sentenced as aforesaid. Against the said judgment and order, the appellant/accused No.1 has filed Criminal Appeal No. 663 of 1991 challenging his conviction and sentence as mentioned above while State of Gujarat has filed Criminal Appeal No. 1147 of 1991 challenging the judgment and order recording of acquittal of the offence under Section 302 of IPC qua both the accused Nos.1 and 3. 3. Mr. A.D. Shah, learned advocate for the appellant/ accused No.1 canvassed theory of self-defence and by putting a theory of grappling between the accused and deceased, submitted that the complainant has not given the true version of the incident. According to the complainant, all the witnesses came after the incident was over. According to him, there was no reason for the complainant and the deceased to come to the pan shop where the accused No.1 was standing. The complainant and deceased both came to quarrel with the accused No.1 and at that time deceased was having knife with him and while trying to assault the accused No.1, he snatched away the knife from the deceased and gave knife blow to the deceased in self-defence. Therefore, learned trial Judge has wrongly disbelieved the story of self-defence and recorded conviction for the offence punishable under Section 304 Part II, which requires to be quashed and set aside by acquitting accused No.1. He further submitted that all the so-called eye witnesses came after the incident and, therefore, no reliance whatsoever can be placed upon their oral testimony. According to him, the judgment and order of conviction of accused No.1 cannot be sustained in view of the settled position of law as the accused has exercised right of private defence and, therefore, he prayed that by allowing the appeal the appellant/ accused No.1 may be acquitted. 4. As against this, Mr. M.A. Bukhari, learned A.P.P., tried to convince us that the judgment and order recording conviction against original accused No.1 for the offence under Section 304 Part II is bad in law and it cannot be sustained in view of the clear evidence of the complainant and other eye witnesses who were very much present at the place of occurrence. He submitted that as per the story propounded by the prosecution, the accused picked up quarrel with the complainant and deceased Mohmed Husain and the accused were having common intention to kill deceased Mohmed Husain as there was previous enmity between the two groups. He further submitted that the accused came at the scene of offence pre-planned to commit murder of deceased Mohmed Husain and the accused No.3 shared the common intention with accused No.1 to kill deceased Mohmed Husain, by catching hold the complainant so that accused No.1 could inflict blows on the deceased with knife without any obstruction. He further submitted that accused No.1 took the panchas and police party to the place where he had hidden the knife and showed them the knife and it was discovered by drawing panchnama which is also an important circumstance showing the culpability of accused No.1. Under these circumstances, by allowing the appeal filed by the State of Gujarat i.e., Criminal Appeal No. 1147 of 1991, both the respondents/ original accused Nos.1 and 3 may be convicted for commission of the offence of murder under Section 302 read with Section 34 of IPC. 5. In view of the aforesaid submissions of learned advocates for both the sides, let us examine as to whether the trial Court has correctly appreciated the evidence on record and recorded the finding of conviction for the offence punishable under Section 304 Part II of IPC qua accused No.1 only and acquitted accused No.3 or the learned trial Judge has committed error in law and facts both in not recording conviction for the offence under Section 302 of IPC against both accused. 6. So far as homicidal death of Mohmed Husain is concerned, same cannot be disputed even by the defence in view of the clear evidence of P.W.18, Dr. Kishore Kumar, whose evidence was recorded at Ex.63. He was medical officer at the relevant time at Municipal Hospital, Mahuva who performed the autopsy. He has stated in his evidence that on 28.9.1985 at 5.45 P.M. dead body of Mohmed was brought by constable with police yadi and during the course of performing autopsy he found following external injuries on the dead body of Mohmed: (1) An oblique stab wound on left fifth intercostal space just lateral to sternum and medial to mind clavicular line anteriorly cutting the 5th left rib at lower margin - spindle shaped - size 3 1/2" x 1/2" (tissue deep) Penetrating left lung and heart. Directed below upwards. (2) 2nd oblique stab would posteriorly on left side in the 11th intracoastal space in scapular line. Spindle shaped size 3" x 1/2" (tissue deep). Penetrated - stomach posteriorly. Directed below upwards. (3) 3rd an oblique incised spindle shaped wound on back (posteriorly) in scapular line below 12th rib - size 2" x 1/2" (tissue deep). (4) 4th a horizontal incised wound spindle shaped on the back of neck size 3 1/2" x 1/2" (tissue deep) Probable age of all wounds at a time, 2 to 3 hours before the body was received for post mortem and antemortem. He also found following internal injuries: Lt. lung stabbed and collapsed lower lobe - stab wound size 1" x 1/2" on anteriorly. Penetrated anteriorly. The heart stabbed anteriorly both ventricles- size 1/2" x 1/2cm and both chambers empty and collapsed. Stab wound on Lt. side posteriorly. Pierced posteriorly on Lt. side. Stomach is stabbed posteriorly and semi digested food debars was coming out through the stab wound size 1/2" x 1/2 cms. in posterior walls. 7. According to him, external as well as internal injuries were antemortem and all the external injuries were corresponding with the internal injuries. According to doctor, cause of death was shock and haemorrhage following penetrating injury to vital organs (left lung and heart). He has prepared post mortem note which is produced on record at Ex.64. On the basis of the aforesaid oral evidence of the medical officer and the post mortem note, we are of the opinion that the learned trial Judge has very rightly concluded that deceased died a homicidal death. 8. We will now deal with the contention raised by Mr. A.D. Shah, learned advocate for the original accused that the evidence of complainant does not inspire any confidence as it does not get corroboration from the circumstantial evidence and in support of his aforesaid contention, he showed us following circumstances: (a) The absence of cut mark on the bush-shirt of the deceased suggests grappling. (b) Direction of wounds on the deceased was from downward to upward; (c) Scattered blood marks in the area of 5 ft. on the ground and also in the area of 4 ft. on the wooden pillar. (d) The complainant, after the first incidence of abusing was over, went to his house and informed the deceased about the same. Thereafter both of them went to the Pan galla and picked up quarrel with the accused No.1 and at that time deceased was having knife in his hand. 9. On the above circumstantial evidence, Mr. Shah tried to convince us that there was grappling between accused No.1 and the deceased and in that process, accused No.1 snatched away knife from the deceased and gave him blows and caused injuries which were proved fatal. Therefore, according to him, accused is entitled to the benefit of right of self-defence. 10. In this connection, let us examine the evidence on record. Adverting to the evidence of P.W.4, Husainmiya, whose testimony was recorded at Ex.17, he has, inter alia, testified that on the day of the incident, while returning after answering the call of nature, accused No.1 met him on the way and abused him using filthy language. Thereafter the complainant went to his house where he met his maternal cousin Mohmed. The complainant informed him that accused No.1 abused him. Thereafter both of them - the complainant and deceased Mohmed - went to the shop of Mansukhbhai for eating pan. At that time accused No.1 was standing there. The complainant asked accused No.1 as to why did he abuse him. Accused No.1 told him that he did not abuse him and thereafter immediately he got excited. Meanwhile, accused No.2, deceased Dhiru Lakha, and accused No.3 Madhu Laxman came there from the shop of Velabhai and both of them caught hold of the complainant. Accused No.1 caught hold of the neck of the deceased and took out knife from his waist and inflicted a blow on his chest. As the deceased fell down, accused No.1 again inflicted 3-4 blows on the back portion of the deceased. Thereafter accused No.1 also inflicted knife blow on the complainant. As the complainant raised his right hand to ward off from assault, injury was caused on his palm. Thereafter as people gathered and lady members from the family of the complainant came there, the accused fled away. Thereafter the injured was removed to hospital in a rickshaw where he was declared dead. So far as the motive is concerned, he has testified that there was a previous enmity between the father of deceased Vilayatkhan and accused with respect to a house. 11. In cross-examination, he has admitted that when accused No.1, Gobar Nanna abused him for the first time there was no one except both of them. He has admitted that there was enmity between them for the last eight years. He has also stated that the said enmity was because of the enmity with his uncle. He has unequivocally admitted that all the witnesses came at the scene of offence after Mohmed fell down. Even his relatives came there after Mohmed fell down and prior to the lady members of his family reaching there, infliction of injuries on Mohmed was over and thereafter accused fled away. He has admitted that when the accused caught hold of neck of Mohmed, button of his shirt got open but it was not broken. 12. On perusal of the complaint, Ex.18, he has stated similar version as testified by him before the Court. On overall appreciation of the aforesaid oral evidence of the complainant, Husainmiya, coupled with the complaint, it is seen that the incident of abusing had taken place prior to the incidence of inflicting injuries on deceased Mohmed with knife. Thereafter the complainant and accused No.1 both went to their respective houses and when accused No.1 was standing near the Pan Galla of Mansukhbhai, the complainant alongwith Mohmed came there and scolded him for the abuse which he had given to him before some time. Accused No.1 clarified that he had not abused him and he got angry. In the meantime, accused Nos.2 and 3 came there and caught hold of complainant while accused No.1 after taking out knife from his waist inflicted injuries to deceased. It is also seen that when the incident has taken place, as per the complaint, no-one was there except the complainant, deceased and accused, and all the witnesses came there after the incident was over and thereafter the family members of complainant also came there. Therefore, we have to appreciate the evidence of the sole eye witness Husainmiya. The prosecution has examined P.W.8, Kantibhai Arjan, at Ex.39, P.W.9, Ahmedhusain Bhikhumiya, at Ex.40, P.W.10, Banuben Bhikhumiya, at Ex.41, P.W.12, Vilayathusain Bhikhumiya, at Ex.44 and P.W.13, Bhagwan Lakhman, at Ex.45 as eye witnesses to the occurrence. However, in view of the evidence of the complainant they can never be said to be eye witnesses to the incident because all of them came after the incident was over. Moreover, P.W.8, Kantibhai Arjanbhai and P.W.13, Bhagwan Lakhman, have not supported the prosecution case and, therefore, they were declared hostile. In these circumstances, no reliance whatsoever can be placed on the oral testimony of the aforesaid witnesses who came to be examined as eye witnesses. Therefore, we do not deem it expedient much less imperative to discuss their evidence with a view not to burden the judgment. 13. Mr. A.D. Shah, learned advocate for the original accused submitted that in the said incident accused also received injuries and in that connection he had lodged a complaint before the concerned police station. The said complaint was lodged for the commission of offence under Section 323 of IPC and it being N. C. case it was not further investigated. The prosecution has produced the said complaint at Ex.47 and placed reliance on the said complaint. 14. On perusal of complaint Ex.47, it is divulged that the said complaint was lodged by accused No.1 on the same day, i.e., 28.9.1985 at about 9.45 P.M. wherein, inter alia, it was stated that at about 3 P.M. when he was standing near the shop of Mansukhbhai for eating pan, the complainant Husainmiya also came by that side. The complainant Husainmiya abused him and he also abused the complainant Husainmiya. Thereafter he went from that place. After some time, Husainmiya came with Mohmed and both of them started abusing him and he told them not to abuse him. On this, both of them excited and tried to give him knife blow. At that time accused No.3 and deceased accused No.2 who were also there, caught hold of the complainant. Accused No.1 snatched away the knife from the deceased as a result of which he also received injury on his index finger and little finger. Thereafter also as deceased Mohmed abused him, he got excited and gave him blow with the said knife. Meanwhile, on seeing that uncle's son of the deceased coming towards him, accused No.1 again inflicted 3-4 injuries with the knife on the back of the deceased and thereafter he ran away. In the said complaint he had also ascribed the motive and in that he stated that they had quarrel in past in respect of a house. 15. It may be appreciated that in this connection, prosecution has examined one witness P.W.14, Vijaysinh Mulsinh Parmar, whose evidence was recorded at Ex. 46. He was a Police Head Constable at the relevant time, thorough whom, the said complaint was produced on record. 16. Referring to the said complaint, learned advocate Mr. A.D. Shah for the original accused, with all vehemence at his command, tried to convince us that complaint at Ex.47 unequivocally shows the theory of grappling between both of them and in absence of the circumstances which he has canvassed, theory of self-defence appears to be more probable. 17. We are not at all convinced and impressed by the aforesaid submission of Mr. Shah. It is true that as per evidence there was no cut mark on the bush-shirt of the deceased. But that factor alone is not decisive for the purpose of propounding theory of grappling. The complainant has unequivocally testified that when the accused No.1 caught hold of deceased Mohmed by his neck, the button of his shirt was open and thereafter he inflicted injury and in that circumstances there cannot be any cut mark on the bush-shirt of the deceased. Therefore, the submission canvassed by learned advocate Mr. A.D. Shah cannot be accepted. 18. The second contention of Mr. A.D. Shah, learned advocate for the original accused, that the circumstance that the direction of the wound was from downward to upward is also ruled out because it must have happened that after receiving first blow deceased might have fallen down and thereafter accused No.1 must have inflicted blows on the back side and the injury which was from downward to upward suggests the fact that injury must have been inflicted from lower part to upper part and this may be the situation under which, blood marks were seen in the area of 5 ft. on the ground and 4 ft. on the wooden pillar is also ruled out as in view of the evidence after receiving first injury deceased must have run with a view to save himself and the accused must have chased him and when the injured fell down on account of the injury, he must have inflicted injuries on the back portion of deceased. 19. After the incident of abusing, both accused No.1 and complainant went to their respective houses and thereafter the complainant alongwith deceased Mohmed went to the pan shop and picked up quarrel is the only circumstance which appeals to us in view of the clear cut evidence of complainant himself. But the theory of grappling cannot be swallowed and is not gulpable in view of the evidence of the complainant himself. So far as the complaint at Ex.47 is concerned, it may be appreciated that it was lodged belatedly at about 9.45 P.M., i.e., 6 hours after the incident. Therefore, probability cannot be ruled out that just with a view to fabricate evidence and to put a theory self-defence this complaint must have been lodged. Therefore, we are not prepared to place any reliance on this complaint. 20. Another important aspect of the case is that the theory of self-defence propounded by the defence is canvassed for the first time in this Court only. It was never stated