CR.A/1309/1999 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1309 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= GOPAL CHHAGANLAL BHIL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR AD SHAH for Appellant(s) : 1, MR LB DABHI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 11/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) CR.A/1309/1999 2/28 JUDGMENT 1. The instant appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure, 1973 (“the Code” for short) against the judgment and order delivered by the learned Additional Sessions Judge, Ahmedabad City, Court No.10 on 22.9.1999 in Sessions Case No.379 of 1998 whereby the present appellant being accused of the said Sessions Case came to be convicted by the trial Court for the offence punishable under Section 302 of IPC and has been sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.250/-, in default, to undergo rigorous imprisonment of 15 days. 2. The present appellant was charged for the offence punishable under Section 302 of IPC as well as Section 135(1) of the Bombay Police Act. Learned trial Judge was pleased to acquit the accused for the offence punishable under Section 135(1) of the Bombay Police Act. 3. According to the brief facts of the prosecution case, the incident took place on 11.8.1998 at about 1.25 a.m. after midnight at Bhilvas area, near Water Tank in the city of CR.A/1309/1999 3/28 JUDGMENT Ahmedabad. It is the case of the prosecution that PW Ganeshkumar Shantilal, PW Purshottambhai Arjanbhai, PW Murli Hotchand and other persons who belonged to Home Guard Squad were on duty of patrolling in that area. They were going towards Indira Bridge Circle. When they reached near Water Tank, Bhilvas, they noticed two persons grappling with each other near one Pan Galla. These two persons were deceased Mohanbhai @ Challi Sobhrajmal and the present appellant/accused. The accused had Gupti in his hand and he was inflicting Gupti blows on the body of the deceased, while deceased Mohanbhai was shouting for help. While all the three Home Guards noticed this incident, they approached these persons and apprehended the accused and asked his name etc. They came to know that the deceased was abusing the accused and, therefore, the accused inflicted the blows by Gupti on the person of the deceased. The deceased was in bleeding condition and had five injuries. The deceased was unconscious and in the meantime, the three other Home Guard personnels reached there. Ganeshkumar Shantilal, who is the complainant in the case, requested the other three Home Guards to inform Sardarnagar Police Station. The three Home Guards went to Sardarnagar CR.A/1309/1999 4/28 JUDGMENT Police Station and informed Vashrambhai Jethabhai, Head Constable. In the meantime, the Police Inspector, Sardarnagar Police Station reached at the spot and recorded the complaint of Ganeshkumar Shantilal. The arrangement was made to send injured Mohanlal to the hospital and when he reached at the hospital, he was declared dead. 4. The investigation was done after registering the crime by PW 11 Police Inspector Mr.Vachhani. In pursuance of the investigation, a chargesheet came to be filed in the abovesaid offence against the accused in the court of learned Metropolitan Magistrate under Section 209 of the Code. The case was then committed to the court of Sessions and made over to the trial Court. 5. The charge came to be framed by the trial Court at Exh.2 on 12.2.1999 to which the accused pleaded not guilty. The prosecution, therefore, tendered oral as well as documentary evidence to prove its case as under. Medical Evidence : CR.A/1309/1999 5/28 JUDGMENT PW10 Exh.29 Dr.Natvarbhai Prabhudas Patel, Medical Officer, Civil Hospital. Exh.30 P.M.Report Eye Witnesses : PW 5 Exh.16 Ganeshkumar Shantilal – Hostile Exh.17 FIR PW 6 Exh.18 Purshottambhai Arjanbhai – Hostile PW 7 Exh.19 Murli Hotchand PW 9 Exh.28 Sundardas Dhirumal, Home Guard – Hostile. Panch Witnesses : PW1 Exh.8 Kamlesh Choithram – Hostile Exh.9 Panchanama – Arrest of the accused with bloodstained clothes and Gupti. PW 2 Exh.10 Sureshkumar Choithram – Hostile. Exh.11 Panchanama – Scene of offence. PW 8 Exh.27 Rajesh Amarlal – Hostile. 2nd panch to Exhibit 9. Police witnesses : PW 3 Exh.12 Vashrambhai Jitabhai – Head Constable, Sardarnagar Police Station. PW 4 Exh.13 Mohabatsinh Govindinsh – Head Constable. Exh.14 Registration of the offence. Exh.15 Station Dairy Entry. PW 11 Exh.32 Jayantilal Ranmalbhai Vachhani, Police Officer. Exh.20 Inquest Report. Exh.21 Letter tot he Officer of FSL. CR.A/1309/1999 6/28 JUDGMENT PW 3 Exh.12 Vashrambhai Jitabhai – Head Constable, Sardarnagar Police Station. Exh.22 Panchanama – Seizure of bloodstained clothes of deceased along with sample bottle of blood. Exh.23 Map of the scene of offence. Exh.24 Notification under the Bombay Police Act. Exh.33 Forwarding letter to FSL. Exh.34 Receipt of muddammal articles by FSL. Exh.35 Forwarding letter with FSL Report, Serologist Report. 6. Having recorded the evidence of the prosecution, learned trial Judge brought incriminating circumstances to the notice of the accused and recorded his statement under Section 313 of the Code wherein the defence of the accused was of total denial. After hearing the prosecution as well as defence, the trial Court came to the above conclusion of convicting and sentencing the appellant and hence this appeal against conviction and sentence of the appellant. 7. In this appeal, learned Senior Counsel Mr.A.D.Shah was heard in detail. It was argued that the case rests upon the sole witness Home Guard Murli CR.A/1309/1999 7/28 JUDGMENT Hotchand and his evidence was not reliable to convict the accused under Section 302 of IPC. It is submitted that in the evidence, two versions are coming out; firstly the witness found that one person caught hold of another person from the collar and was having Gupti and was beating to the other person. At the same time, he also stated that, when they went near the place, they found two persons and told the assailant to leave and when the assailant freed the collar of the other person, the injured fell down and, therefore, the evidence appears not to be believable. Out of the three eye witnesses, other two eye witnesses i.e. Home Guards have turned hostile and have not supported the prosecution case. It is submitted that it was dark night and in fact, complainant Ganeshkumar Shantilal PW 5 – Exh.16 was handling the entire event and witness Murli Hotchand might not have first hand information. While Ganeshkumar Shantilal has not supported the First Information Report and has turned hostile. It is submitted that the other two witnesses failed to definitely identify the accused before the Court. It is submitted that no motive could be proved by the prosecution of the incident. The important witnesses have been dropped by the prosecution and not CR.A/1309/1999 8/28 JUDGMENT examined. It is the prosecution case that the accused was apprehended with Gupti immediately from the spot and the weapon was seized under the panchnama and was forwarded to the Forensic Science Laboratory. As per the opinion, blood marks could not be identified by the laboratory on this weapon. The slipper found also could not be opined by the laboratory to be stained with the blood of the deceased and, therefore, it is submitted that no case is made out by the prosecution against the accused and is required to be acquitted. 8. Alternatively, it is also argued that having regard to the manner of incident which is revealed from whatever evidence is on record, it is found that there was no motive for the fight and for inflicting vital injury by the accused to the deceased. Undoubtedly, consistent version is that the accused and the deceased were grappling to each other and in the FIR at Exh.17, it has been stated specifically by PW 5 Ganeshkumar Shantilal that both the persons were grappling with each other and when the accused was accosted by them, he had stated that the deceased was abusing him which caused the fight between them in which the deceased was injured. It is submitted that CR.A/1309/1999 9/28 JUDGMENT there is no enmity between the parties or at least not brought on record and therefore, even if it is proved that the injury caused to the deceased was sufficient in ordinary course of nature to cause the death, then even having regard to the circumstances of the incident, it is not the case of culpable homicide amounting to murder but clear case of culpable homicide not amounting to murder as the intention to inflict injury on the part of the accused could not be proved by the prosecution beyond doubt. 9. While on the other hand, learned APP Mr.Dabhi submitted that witness Murli Hotchand is an eye witness and he has been supported by the circumstances emerging from the evidence and hence the case against the accused is fully established by the prosecution. Even to some extent, two other eye witnesses who have turned hostile corroborated to PW Murli Hotchand. Murli Hotchand identified the accused before the Court in no uncertain terms. It is submitted that independent police witness i.e. Police Jamadar Vashrambhai Jethabhai and Investigating Officer Mr.Vachhani supported the incident because the accused was apprehended at the spot and was CR.A/1309/1999 10/28 JUDGMENT handed over to Mr.Vachhani. While Mr.Vashrambhai Jethabhai clearly stated that he was informed by the other Home Guards and when he went to the scene of offence, the accused was in the custody of the Home Guard personnels. It is submitted that this case of the prosecution is further supported by the Forensic Science Laboratory's report that clothes of the accused which were recovered from his body were found blood stains of “O” group which belonged to the deceased. This is corroborating circumstance. It is submitted that the medical evidence of Dr.Natwarbhai Prabhudas Patel at Exh.29 wholly supports the eye witness and the prosecution case. Only because the blood group could not be identified on the fatal weapon or on the slipper would not weaken the prosecution case. It is submitted that above all, one fact is established beyond doubt that the accused was apprehended from the spot and from the scene of offence and thereafter he was in constant custody and was arrested. It is, therefore, submitted that the appeal is required to be dismissed. 10. It is submitted in reply to the alternative argument of the appellant's side that as per the medical evidence, injuries caused to the deceased CR.A/1309/1999 11/28 JUDGMENT were grave in nature, ante mortem and were sufficient in ordinary course of nature to cause the death and in fact that was the cause of death of the deceased. It is, therefore, submitted that the prosecution established beyond doubt that the injuries which the accused inflicted which were sufficient in ordinary course of nature to cause the death were intentional and the accused was guilty of committing murder and not culpable homicide not amounting to murder. It is submitted that the judgment impugned is well reasoned judgment and requires no interference. It is, therefore, requested that the appeal be dismissed. 11. We have reappreciated the evidence and scrutinized the record and proceedings thoroughly. We have considered the reasonable probabilities arising out of the circumstances of the case as have been established. We have also taken into consideration the contentions raised by the learned counsel in this appeal. 12. Reappreciating the evidence, it is revealed that PW 1 Kamlesh Choithram is examined at Exh.8 and he is the panch witness of the panchanamas of arrest of the accused and the recovery of weapon from the CR.A/1309/1999 12/28 JUDGMENT accused. PW 1 is hostile witness. PW 2 - Exh.10 Sureshkumar Choithram is a panch of the panchanama of scene of offence who has not supported the prosecution case. PW 3 Vashrambhai Jethabhai is a Head Constable who is examined at Exh.12 and according to him, he was on duty in the investigating squad at the relevant point of time. When Sardarnagar Police Station was informed by the Home Guard personnels about the incident and in pursuance of which, he visited the scene of offence and apprehended the accused. PW 4 Mohabbatsinh Govindsinh examined at Exh.13 is also Head Constable and he proved the entry made in Sardarnagar Police Station in respect of the information received from the Home Guard personnel. He was police officer who registered the crime. PW 5 Ganeshkumar Shantilal examined at Exh.16 is a complainant in this case, Home Guard personnel and an eye witness. However, he did not support the prosecution case in toto. PW 6 Purshottambhai Arjanbhai examined at Exh.18 who is also Home Guard personnel was with Ganeshkumar Shantilal at the relevant time. He had seen the incident but has not supported the prosecution case. PW 7 Murli Hotchand examined at Exh.19 is the third Home Guard personnel and an eye witness and he CR.A/1309/1999 13/28 JUDGMENT supported the prosecution case fully about the incident. PW 8 - Exh.27 Rajesh Amarlal is the second panch of arrest panchanama of the accused which panchanama is at Exh.9. PW 9 Sundardas Dhirumal examined at Exh.28 is also fourth Home Guard personnel who has not supported the prosecution case. He was examined for the purpose that other three Home Guard personnels requested him and others to inform Sardarnagar Police Station about the incident. PW 10 Dr.Natwarbhai Prabhudas Patel, Medical Officer, Civil Hospital, Ahmedabad is examined at Exh.29. He conducted the postmortem of the dead body of deceased Mohanlal. While PW 11 Jayantilal Ranmalbhai Vachhani, Police Inspector and Investigating Officer is examined at Exh.32. This is all the evidence of the prosecution. 13. While considering the contentions raised and going through the record, though it is not much in dispute that the death of deceased Mohanlal was homicide, PW 10 Dr.Natwarbhai Prabhudas Patel stated that he performed the postmortem on 11.8.1998 on the dead body of Mohanlal. PW 10 Dr.Natwarbhai Prabhudas Patel in respect of external injuries to the dead body deposed as under : CR.A/1309/1999 14/28 JUDGMENT “1. Stab wound elliptical shape 2 cms. x 0.5 cms. X cavity deep size present over left side of back of chest in 8th inter costal space 5 cms. left lateral to midline margins of would are fine and well defined. Direction is oblique from right to left and going medially and forward. 2. Stab wound elliptical shape, 2 cms. x 1 cm. x cavity deep size present over postero lateral aspect of left lumbar region of abdomen 3 cms. Posturior to mid axillary line and 4 cms. above upper border of left iliac bone. Margins of wound are fine and well defined. Wound is going medially and forward. 3. Incised wound 1 cms. x 0.5 cms. x sub cutaneous tissue deep, transverse, over palmar surface of base of right thumb. 4. Incised wound transverse present over palmar surface of distal webs of left index left middle and left sting fingers size 1 CR.A/1309/1999 15/28 JUDGMENT cm. x 0.5 cm. x muscle deep over each fingers. 5. Incised wound transverse 1 cms. X 0.5 cms. X muscle deep over palmar surface of distal phalenx of left little finger.” 14. Witness Dr.Natwarbhai Prabhudas Patel further stated that the above injuries were ante- mortem. He further deposed about the internal injuries as under : “1. Sub cutaneous tissues inter costal muscle cut in left 8th intercostal space over back of chest corresponding to injury no.1. Left pleura cut 2 cms. corresponding to inj.no.1. Left thoracic cavity contains 250 cc to 300 cc of blood. 2 cms. x 1 cm. x 1 cm. cut present over posterior surface of lower lob of left lung corresponding to inj.no.1. Sub cutaneous tissue and muscle cut over postero lateral aspect of left lumber region CR.A/1309/1999 16/28 JUDGMENT of abdomen corresponding to inj.no.2. Peritonium cut 2 cms. corresponding to inj.no.2. Abdominal cavity contains about one litre of blood and multiple blood clots wt. about 250 grams. Semi digested food material present about 100 grams otherwise NAD. Musenteric artery cut with mysentery of small intestine (Jejunum part) cut 1.5 cms. corresponding to inj.no.2.” 15. The witness further stated that the above injuries were sufficient in ordinary course of nature to cause the death and that the cause of death was shock and hemorrhage following injuries. In examination-in-cross, defence asked only one question to this Doctor that injury nos.1 and 2 whether could be caused of free fight but the witness negatived the contention. 16. So, it is proved beyond doubt that the death of the deceased was homicidal. Now, reappreciating further evidence on record, it is amply proved through evidence of PW 7 - Exh.19 Murli Hotchand as CR.A/1309/1999 17/28 JUDGMENT well as PW 3 Vashrambhai Jethabhai – Head Constable at Exh.12 that the accused was arrested at the spot by the Home Guard personnels and they are independent witnesses. It is true that out of four Home Guard personnels examined, three turned hostile and PW 7 Murli Hotchand only gave true version of the incident. No doubt that, in express term PW 7 Murli Hotchand identified the accused in the Court as well as PW 3 Vashrambhai Jethabhai also identified the accused in the Court. In his deposition, witness Murli Hotchand stated that he was present at the time when the incident took place. Though to some extent, hostile witness PW 6 Purshottambhai Arjanbhai also identified the accused half-heartedly, but reliance can be placed upon the evidence of Murli Hotchand which is corroborated by the other Police Officer. It is proved beyond doubt that the accused was arrested and apprehended right from the scene of offence with weapon and blood stained clothes. Murli Hotchand in his deposition stated that while they were passing near Indira Bridge at the scene of offence, they witnessed two persons grappling with each other. One person had caught collar of the other and in the left hand, he had Gupti with him. He was inflicting injuries to the other person with CR.A/1309/1999 18/28 JUDGMENT Gupti and the other person was shouting for help. Seeing this, they accosted the accused and he left the shirt collar of the deceased. Due to that, the deceased fell down on the ground and the accused was apprehended by them. The other Home Guards were requested by them to inform the Police Station. Likewise, very important witness PW 3 Vashrambhai Jethabhai also stated in his deposition that Home Guard personnels informed him at 1.30 a.m. after midnight on 11.8.1998 that two persons were quarreling and one person inflicted Gupti blows on the other person. The witness also named as Home Guard personnel as Sunderdas. According to the witness, he immediately from the Police Station went to the scene of offence and found that Home Guard personnels had apprehended the person who had Gupti in his hand, while the other person had been lying on the ground. At that time, Inspector Mr.Vachhani reached there; arranged the injured person to send to the hospital; recorded the complaint of Ganeshbhai Shantilal and inquired from the accused. 17. From the evidence of these two witnesses, it became clear that the incident had occurred as stated by PW 7 Murli Hotchand. The evidence of Murli CR.A/1309/1999 19/28 JUDGMENT Hotchand and Jamadar Vashrambhai Jethabhai cannot be ignored only because one is police witness and the other is Home Guard personnel. On scrutiny of the evidence, the evidence of both the witnesses are found trustworthy as there is nothing on record to denote that both the witnesses intentionally implicated this accused in this serious case falsely. It also could not be denied that at the relevant juncture, these Home Guards were on duty. The incident, therefore, is established beyond doubt. The accused was apprehended with fatal weapon at the scene of offence and that witness Murli Hotchand had seen the accused inflicting Gupti blows on deceased Mohanbhai. We do not find any blot on the evidence of these two witnesses as to come to the conclusion that their evidence is not credit-worthy. The fact that the accused was apprehended from the spot is also supported by the documentary evidence from the panchnamas drawn by the Investigating Officer though those panchas have turned hostile, but the panchnamas are proved through the evidence of the Investigating Officer. Further, the prosecution case as has been established by the deposition of PW 7 Murli Hotchand and PW 3 Vashrambhai Jethabhai is corroborated by the evidence of PW 10 Dr.Natvarbhai Prabhudas Patel when CR.A/1309/1999 20/28 JUDGMENT he deposed the injuries on the dead body of the deceased. This fact has not been controverted by the prosecution. Still, one more factor which is corroborating the prosecution case is the finding of “O” blood group of the deceased on the clothes of the accused. Here also, the panchnamas of recovery of weapon and clothes are proved by the Investigating Officer and when the muddamal was sent to the Forensic Science Laboratory, this opinion was received though from the fatal weapon, no blood group could be found. Nonetheless, it is corroborating that the clothes recovered immediately after the incident from the accused had blood stains of “O” group. 18. From the above, we are unable to accept the contention of the learned Senior Counsel Mr.A.D.Shah that the prosecution failed to establish the incident as against the accused. We do not find any error on the part of the learned trial Judge to come to the conclusion that the deceased had injuries and the author of these injuries was the accused. Consequently, the deceased died of these injuries and, therefore, it is established beyond doubt that the accused appellant is guilty to inflict injuries CR.A/1309/1999 21/28 JUDGMENT upon the body of the deceased which proved to be fatal and the deceased died. The appeal to that extent cannot be accepted of the appellant. 19. Now the question is what offence is committed by the accused. Whether it is murder or culpable homicide not amounting to murder. Learned trial Judge discussed this aspect when the issue was argued. Learned trial Judge came to the conclusion that there were two fatal blows on the body of the deceased which resulted in death. Those blows were on vital parts of the body given by lethal weapon and the injuries caused by these blows were sufficient in ordinary course of nature to cause death of human being and, therefore, learned trial Judge came to the conclusion that the accused was guilty under Section 302 of IPC causing murder of the deceased. We have reappreciated the evidence in this respect. Undoubtedly, the injuries were caused on vital parts of the body and those injuries were fatal to the extent that these injuries were sufficient in ordinary course of nature to cause the death of the human being. The question is whether the accused had intention to cause such badly injuries which caused the death in ordinary course of nature. The CR.A/1309/1999 22/28 JUDGMENT intention could be gathered from the circumstance. When we scanned threadbare the prosecution evidence again, we constantly found that all the witnesses, even the hostile witnesses were Home Guards who stated that they noticed two persons grappling with each other and one of them was inflicting injuries. Unfortunately, in this case though the FIR is produced at Exh.17 and the witness Ganeshkumar Shantilal could not be confronted with this, but this FIR is proved by PW 11 Jayantilal Ranmalbhai Vachhani, Investigating Officer. If we have looked at, it is revealed that