CR.A/452/1999 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 452 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A. L. DAVE HONOURABLE MR.JUSTICE D. N. PATEL =============================================== 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 ? =============================================== BARKEBHAI FELE VARLI & Another. Versus STATE OF GUJARAT. =============================================== Appearance : Ms. SADHANA SAGAR for the Appellants. Mr. BHATE, APP, for the State. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR.JUSTICE D. N. PATEL Date : 18/06/2008 CR.A/452/1999 2/14 JUDGMENT ORAL JUDGMENT : (Per : A. L. DAVE, J.) 1. The appellants in this appeal challenge the judgment and order rendered by Sessions Court, Valsad, on 23rd April, 1999, in Sessions Case No.51 of 1997, convicting both the appellants for the offence of murder and sentencing them to undergo imprisonment for life and to pay a fine of Rs.1000/- and, in default, to undergo rigorous imprisonment for a further period of one year. 2. The appellants were tried by the Sessions Court along with seven other accused persons for the offences punishable under Sections 143, 147, 148, 149, 323, 337 and 302 of the Indian Penal Code. The alleged incident occurred on 4.7.1995 at about 4.00 P.M., at village Moti Korvad in Valsad District. As per the prosecution case, the appellants along with other accused persons constituted an unlawful assembly, the common object of which was to commit assault on the first informant and the witnesses. Before the Trial Court, appellant No.1 was arraigned as accused No.2 and appellant No.2 was arraigned as accused No.7. It was alleged that the accused other than the appellants instigated the present appellants and, in response thereto, the appellants inflicted stick blows on head of Mankiya Kashiram Varli, which resulted in his death. It was also alleged that the other accused persons caused injury to the witnesses with sticks and stones besides giving kick CR.A/452/1999 3/14 JUDGMENT and fist blows. It was also alleged that the appellants along with other accused persons used abusive language and insulted the witnesses. They also committed breach of a notification by the District Magistrate under the Bombay Police Act prohibiting carrying of weapons. 2.1 An F. I. R. was lodged in respect of the incident on 5th July, 1995 at 12.15 P.M. On the basis of the F. I. R., offence was registered and investigated upon. The police, upon investigation, found sufficient material involving the accused persons in the offence and, therefore, filed charge sheet against all nine of them. Since the offences charged were triable exclusively by a Court of Sessions, learned Judicial Magistrate, First Class committed the case to Sessions Court, Valsad, and Sessions Case No.51 of 1997 came to be registered. 2.2 Charge was framed against all the accused persons at Exhibit 1. All of them pleaded not guilty to the charge and claimed to be tried. 2.3 The prosecution led its evidence and examined several witnesses, who had witnessed the incident and also sustained injuries. On the basis of the evidence led by the prosecution, the Sessions Court came to a conclusion that the prosecution was CR.A/452/1999 4/14 JUDGMENT successful in establishing the charge of murder against original accused Nos.2 and 7, i.e. present appellants, and was not successful in establishing the charges against rest of the accused. The Sessions Court, therefore, acquitted original accused Nos.1, 3 to 6, 8 and 9 for the offence of murder and convicted the present appellants therefor. However, the Sessions Court convicted accused No.1 for the offence punishable under Section 323 of the I.P.C. and sentenced him to undergo imprisonment for one month and to pay a fine of Rs.200/- and, in default, to undergo further imprisonment for seven days. 2.4 Against the acquittal, there is no appeal by the State. Against conviction of original accused Nos.2 and 7, present appeal is preferred for the grounds stated in the memo of appeal, which can, broadly, be narrated thus : (i) That the evidence of witnesses relied upon by the Sessions Court is not consistent. The evidence shows that there was a quarrel and a fight and, therefore, the Sessions Court ought to have inferred a case of grave and sudden provocation; (ii) That the F. I. R. is lodged by the brother of the deceased, who is an interested person; CR.A/452/1999 5/14 JUDGMENT (iii) That there is no evidence to fix the identity of the weapon used for commission of the crime; (iv) That the F. I. R. is given late; and (v) That the evidence shows that the clothes of the witnesses were stained with blood, but there is no explanation as to how they were stained with blood. 3. We have heard learned Advocate, Ms. Sagar, for the appellants and learned Additional Public Prosecutor, Mr. Bhate, for the respondent-State. 4. Ms. Sagar has reiterated the grounds stated in the memo of appeal. She has taken us through the record and proceedings highlighting the aspects which she relies upon in support of the appeal. She has submitted that at least benefit of doubt ought to have been given by the Trial Court and this Court may also consider the appeal accordingly. 5. Learned Additional Public Prosecutor, Mr. Bhate, has opposed the appeal. According to him, the Trial Court has taken CR.A/452/1999 6/14 JUDGMENT into consideration all relevant aspects and has adopted all accepted norms of appreciation of evidence and has rightly recorded the conviction of the appellants. Mr. Bhate has taken us through the evidence of injured eye-witnesses as well as the doctor. He has also taken us through the F. S. L. report and the Inquest Panchnama to establish that the Trial Court was justified in recording conviction. He has submitted that the appeal may be dismissed. 6. Before we proceed to discuss the merits of the case, we may record that appellant No.1-original accused No.2-Barkebhai Fele Varli has already undergone the sentence imposed by the Trial Court and he has been released from prison on 2nd October, 2007 in light of Government Resolution No.JLK/842007/2474/2004 dated 27th September, 2007. 6.1 We also notice that appellant No.2-Kasam Sone Varli was released on furlough and has absconded since 5th October, 2001. 7. The prosecution has examined Dr. Amrut B. Gavli, at Exhibit 19 as P.W. 1. He is the doctor who had performed the postmortem of the dead body of Mankiya Kashiram. According to him, the clothes on the dead body were blood stained. The CR.A/452/1999 7/14 JUDGMENT degeneration had started, post-mortem lividity was absent. There were five external injuries and seven internal injuries. The major injuries were on head of the nature of C.L.Ws. going deep into the cavity of skull. These injuries were found to be ante-mortem and sufficient in ordinary course of nature to cause death. The doctor has opined that the injuries were possible with weapon like stick. The doctor has been cross-examined, but nothing turns on it. On the contrary, he has stuck to his version that the injuries on head of the deceased were not possible by a single blow. Postmortem notes are at Exhibit 20. The cause of death as emerging from the postmortem notes as well as the deposition of the doctor reveals that the deceased died of shock due to head injuries. There is no evidence nor even a suggestion suggesting possibility of the injuries being suicidal or accidental. Under the circumstances, the only conclusion that could have been arrived at by the Trial Court was that the deceased died of homicidal death. We also agree with the finding of the Trial Court and uphold the same. 8. Now, going to the evidence on incident for examining the question whether the appellants have been rightly convicted, the prosecution has examined Bhimji Kashiram Diva, at Exhibit 22. He happens to be the brother of the deceased-Mankiya Kashiram. He states that the community people had assembled on 4th to settle the dispute that arose on 3rd, but there was no settlement. He states that accused, Barke Fele, gave a stick blow on head of CR.A/452/1999 8/14 JUDGMENT Mankiya Kashiram whereas accused, Kasam, caused injury to the deceased on chest with the help of a stone. The witness identifies accused No.2 and 7 in the Court as assailants. The witness has been cross-examined at length. He admits that on infliction of a blow, they all started running helter skelter. He is not aware as to who else from the crowd pelted stones. He describes the stick as a stick with a diameter of 1 1/2” x 2”. This witness is the first informant as well and his F. I. R. dated 5.7.1995 is produced at Exhibit 23. In the F. I. R. he narrates the same story. Besides that, in the F. I. R., he explained the reason for delay in lodging the F.I.R. It is stated therein that the distance between the place of incident and the police station is far and there was difficulty of transport and, therefore, there was a delay. 8.1 The next witness is P.W.3-Ravji Gopji (Exhibit 24). He does not support the prosecution case and is treated as hostile witness. Similar is the situation so far as P.W.4-Jahiram Miliyabhai (Exhibit 25) and P.W.5-Bansu Navsu (Exhibit 26) are concerned. 8.2 Another eye-witness, Arjun Shukkarbhai, is examined at Exhibit 29. He says that there was a quarrel. He says that, firstly, Barke inflicted a stick blow to deceased-Mankiya on his head. Kasam also inflicted a stick blow on head of the deceased. The witness identifies the accused persons in the Court. He has been CR.A/452/1999 9/14 JUDGMENT cross-exmined and he admits that, on being informed by Bansiya, he along with 35 to 40 persons went to the place of incident. He also admits that the stick with which injury to the deceased was caused is not part of muddamal. According to him, the sticks used in causing death of the deceased were made of teak wood and were thick. He admits that he had not given any description of the stick to the police. He states in reply to the question by the Court that he did inform others about the incident after going home. 8.3 Witness Kasubhai Laxmanbhai is examined at Exhibit 30. He describes the incident of 3rd July, 1995. He also involves both the appellants of having given stick blows on the head of the deceased. He states that, besides him, other persons like Roopji Mangu, Kamal Shukkar, Arjun Shukkar, Bhimji Kashiram, Kisan Ramji, Ratan Navsu, Ramu Navsu and Soma Dharma had sustained injuries. He states that Kasam had caused injury on shoulder with the help of a heavy stick. This witness also identifies the appellants as the assailants. He has been cross-examined at length, but nothing helpful to the appellants emerges from the lengthy cross- examination. 8.4 Witness Devji Mangubhai is examined at Exhibit 31. He is also an eye-witness who says that he saw Barke inflicting stick blows on head of Mankiya, the deceased. He says that, thereafter, CR.A/452/1999 10/14 JUDGMENT he ran away. He describes the dimensions of the stick which was allegedly used for commission of the crime and states that the sticks forming part of the muddamal were not the sticks used for commission of the offence. The witness has been cross-examined again with no material coming to the help of the appellants. 8.5 Evidence of witness-Janiya Mangubhai is recorded with the help of an interpreter, Ishwarbhai Morarbhai, who knew Konkani and Gujarati languages and was capable of translating the same from one to another and vice-a-versa. This witness Janiya Mangubhai (Exhibit 33) also involves both the appellants. He specifically states that both the appellants attacked the deceased with stick, which is, of course, not forming part of the muddamal. He states that accused-Kasam also attacked and caused hurt to him. The witness has been cross-examined at length, but no material which may help the appellants has emerged from the cross-examination. It is true, as pointed out by learned Advocate for the appellant, that this witness does not specifically describe the part of the body on which the appellants had attacked the deceased or the witness. But that aspect loses significance in light of the evidence of other witnesses as well as medical evidence. 8.6 Witness-Janu Mavji (Exhibit 34) is also an eye-witness. He involves accused Kasam only of having attacked deceased- CR.A/452/1999 11/14 JUDGMENT Mankiya on head with a stick. He says that Rama Chima gave a stick blow to him on right shoulder and, therefore, he ran away. He has been cross-examined and during the cross-examination, he has admitted certain facts which run contrary to the examination-in- chief and, therefore, at that stage, the Public Prosecutor sought permission of the Court to contradict the witness, which was granted, and, during cross-examination to the Public Prosecutor, he has admitted to have stated before police that both the appellants inflicted stick blows on deceased-Mankiya Kashiram, as a result of which he became unconscious and fell down. He has also admitted to have stated before police that Rama Chima had caused injury with stick on right shoulder. 8.7 Witness-Dhavlubhai Shukkarbhai (Exhibit 36) involves appellant-Barke Fele. He states that upon Barke Fele assaulting Manakiya Kashiram by giving a stick blow on his head, Mankiya Kashiram fell down and he (the witness) ran away. He states that, in that incident, Roopji Mangu, Arjun Shukkar, etc. were also hurt. During cross-examination, he was confronted with his police statement and he has admitted that his deposition runs contrary to his statement before police to some extent, but denies the suggestion that he has given an incorrect deposition. Incidentally, we may record that the deposition was recorded on 6th March, 1998, i.e. nearly after 30 months of the incident. CR.A/452/1999 12/14 JUDGMENT 8.8 Witness-Ratanbhai Navsu (Exhibit 37) is also an eye- witness to the incident. He states that both the appellants hit deceased-Mankiya Kashiram with sticks and Mankiya died therefor. He says that he was also assaulted upon and two blows were given on his head. During cross-examination, he denies the suggestion that the appellants have not assaulted him. 8.9 Witness-Madhavsinh Prabhatsinh Rathod (Exhibit 38) is the Investigating Officer. He deposes as to how the F. I. R. was lodged, the case was investigated, what material was collected and what material was sent to F. S. L. for examination, and how the charge sheet came to be filed. He is cross-examined at length, but no material emerges to raise any doubt about the investigation. 9. On going through the above evidence, we find that the prosecution has examined witnesses who are consistent on involvement of both the appellants. There is evidence to show that both the appellants inflicted stick blows on head of the deceased. There is evidence to show that the injuries on head of the deceased were sufficient in ordinary course of nature to cause death. The witnesses, who claimed to have seen the incident, are supported by the fact that they themselves were injured, which establishes their presence. There is no reason to doubt their presence or their CR.A/452/1999 13/14 JUDGMENT depositions. The depositions have come in a natural way though there are some inconsistencies which cannot be termed as material inconsistencies. In our view, these inconsistencies go to show that the witnesses have deposed in a natural way and are not tutored witnesses. The fact that witnesses state that the stick used in commission of the offence is not forming part of the muddamal would not assume much significance once we find that the depositions of the eye-witnesses are truthful and reliable. Only on this count, the investigation cannot be doubted and the prosecution case cannot be discarded. On the contrary, the eye-witnesses are genuine and, therefore, do not tow in line with other prosecution witnesses, but go to tell the truth. 10. We are at a juncture in the case where, even if we ignore the evidence relating to discovery and recovery of weapon, we have sufficient reliable and quality material to connect the appellants with the offence which merits to be given due weightage. Involvement of both the appellants is established. They have given blow to the deceased with a heavy teak wood. The blow is on vital part of the body, namely, head. They were inflicted with such a force that the injuries went deep into the skull cavity. It can be inferred that they were aware about the consequence of their act, namely, the death of the deceased. There could not have any other intention than to cause death in such eventuality. We are, therefore, of the opinion that the Trial Court cannot be said to have CR.A/452/1999 14/14 JUDGMENT committed any error in recording conviction of the two appellants. 11. We have gone through the judgment of the Trial Court and are in agreement with the reasonings given and conclusions arrived at by the Trial Court in recording the conviction of the appellants. We do not find any merit in the appeal. The appeal must fail and stands dismissed. Judgment and order impugned in the appeal is hereby confirmed. [ A. L. DAVE, J. ] [ D. N. PATEL, J. ] gt