IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 721 of 1997 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- JASVANTRAI HARGOVINDRAI RAVAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 721 of 1997 MS BANNA S DUTTA for Appellant MR UR BHATT, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE J.R.VORA Date of decision: 19/08/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 ("the Code" for short) is directed against judgment dated July 1, 1997 rendered by the learned Additional Sessions Judge, Surendranagar, in Sessions Case No.63 of 1995 by which the appellant is convicted of the offences punishable under Section 302 of Indian Penal Code ("IPC" for short) as well as Section 135 of the Bombay Police Act, 1951, and sentenced to suffer R.I. for life and fine of Rs.100=00, in default of R.I. for one month. The learned Judge has not imposed any punishment on the appellant for commission of offence punishable under Section 135 of the Bombay Police Act. 2. Deceased, Bhupatbhai Hargovindbhai Raval, was residing near Old Post Office of village Kondh, Taluka Dhrangadhra, District Surendranagar. Name of his wife is Neelamben. During the subsistence of marriage with deceased, Neelamben had given birth to three children. The eldest was Himalay @ Hemang and was aged about nine years at the time when the incident had taken place. The deceased was doing business of officiating at the performance of ceremonies at a Patron's house and was maintaining his family from the alms and gifts received from the patron's house. The appellant is the real brother of the deceased. It may be stated that the appellant was eldest amongst three brothers and was being addressed as "Dada" by Himalay @ Hemang, who was son of the deceased. The appellant was also doing business of officiating at the performance of ceremonies at a patron's house. The deceased had also another brother named Chandubhai whereas his parents, who were aged, were residing separately. The appellant had dispute with the deceased regarding business of officiating at the performance of ceremonies at a patron's house. The grievance of the appellant was that the deceased was doing business of officiating at the performance of ceremonies at his patron's house whereas the grievance of the deceased was that the appellant was doing business of officiating at the performance of ceremonies at his patron's house. The incident in question had taken place on June 30, 1995. The deceased had left his house at abut 9.00 a.m. for doing his business and at that time, his wife was in his house whereas his son Himalay was playing outside the house. At about 11.00 a.m., Himalay had come rushing to his house and informed Neelamben by shouting that dada was beating his father. On hearing shouts of her son, Neelamben immediately went to the place situated near telephone office and found that the deceased had fallen down on the ground and that the appellant was causing injuries on his head by means of a spade. Therefore, Neelamben had raised shouts and hearing the same, one Lakhubha had come on site. On seeing Neelamben, the appellant had run away from the place of incident with spade. Injuries sustained by the deceased were so serious that there was profuse bleeding and he had died on the spot. Parakramsinh Vijaysinh, who was then Sarpanch of Kondh Gram Panchayat, had also come at the place of the incident and he had informed Dhrangadhra Taluka Police Station on telephone that the deceased was murdered. The message was received by Ranchhodbhai Parmar, who was then PSO of Dhrangadhra Taluka Police Station. Mr.Parmar had made necessary entry in Police Station Diary and flashed message on wireless to Mr.H.V.Shrimali, who was then PSI of Dhrangadhra Taluka Police Station that the deceased was murdered. It may be stated that at that time PSI Mr.Shrimali was on patrolling duty and on receipt of wireless message, had immediately returned to Police Station. After verifying the entry, PSI Mr.Shrimali had gone to Kondh village and found that the dead body of deceased Bhupatbhai was lying on road near telephone office. Neelamben, who is wife of the deceased, was found present at the place of incident. Therefore, First Information Report as narrated by her was taken down by PSI Mr.Shrimali. PSI Mr.Shrimali had made necessary arrangements for sending First Information Report to Police Station for registration of the offences, etc. He had also held inquest on the dead body of the deceased in the presence of panch witnesses and drawn panchnama of place of incident. He had recorded statement of Himalay @ Hemang and other persons who were found to be conversant with the facts of the case. Mr.Shrimali had made inquiry about the appellant, but the appellant was not found at his house. Necessary arrangement was made for sending the dead body of the deceased to Dhrangadhra Government Hospital for postmortem examination. At the hospital, autopsy on the dead body of the deceased was conducted by Dr.Pragnaben Vadodariya, who was then Medical Officer of the Hospital. The clothes of the deceased were produced by PSO of the Police Station before the Investigating Officer, which were taken into custody under a panchnama. The appellant had surrendered to the police on July 3, 1995, and at that time, panchnama of his person was prepared. White open shirt put on by the appellant was found to be bloodstained and, therefore, the same was seized during the course of investigation. While in police custody, the appellant had made disclosure statement pursuant to which, spade used in commission of crime was discovered by the Investigating Officer in presence of panch witnesses. Incriminating articles which were seized during the course of investigation were sent to Forensic Science Laboratory for analysis. On completion of investigation, the appellant was chargesheeted in the Court of learned Judicial Magistrate First Class at Dhrangadhra of the offences punishable under Section 302 IPC and Section 135 of the Bombay Police Act, 1951. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case against the appellant was committed to the Sessions Court, Surendranagar, for trial where it was numbered as Sessions Case No.63 of 1995. 3. The learned Additional Sessions Judge to whom the case was made over for trial, framed charge against the appellant at Exh.3 of the offences punishable under Section 302 IPC and Section 135 of the Bombay Police Act, 1951. The charge was read over and explained to the appellant, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined: (1) Dr.Pragnaben Harin Vadodariya as P.W.-1 at Exh.12; (2) Neelamben Bhupatray as P.W.-2 at Exh.16; (3) Hemang Bhupatray as P.W.-3 at Exh.18; (4) Lakhubha Ramubha as P.W.-4 at Exh.19; (5) Ushaben Chandubhai as P.W.-5 at Exh.20; (6) Hasmukhray Girdharlal Bhatt as P.W.-6 at Exh.22; (7) Dajibhai Hemubhai as P.W.-7 at Exh.27; (8) Shaktisinh Natubha as P.W.-8 at Exh.28; (9) Baldev Chandubhai as P.W.-9 at Exh.29; (10) Natubha Takhubha as P.W.-10 at Exh.30; (11) Adam Abdulbhai as P.W.-11 at Exh.31; (12) Parakramsinh Vijaysinh as P.W.-12 at Exh.37; and, (13) Haribhai Vasrambhai Shrimali as P.W.-13 at Exh.38 to prove its case against the appellant. The prosecution also produced documentary evidence such as postmortem notes of the deceased at Exh.15; complaint lodged by Neelamben Bhupatbhai at Exh.17; map of place of incident at Exh.24; inquest panchnama at Exh.25; panchnama of person of the appellant prepared at the time of his arrest at Exh.26; Notification issued by the competent authority under Section 37(1) of the Bombay Police Act at Exh.32; copy of the gazette in which the said Notification was published at Exh.33; panhnama of place of incident at Exh.39; panchnama relating to seizure of clothes of the deceased at Exh.40; panchnama indicating discovery of iron spade pursuant to disclosure statement made by the appellant at Exh.42; report of analysis issued by the competent authority of Forensic Science Laboratory at Exh.44, etc. in support of its case against the appellant. 4. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the appellant the circumstances appearing against him in the evidence of prosecution witnesses, and recorded his further statement as required by Section 313 of the Code. In his further statement, it was claimed by the appellant that he was staying separate whereas his parents, the deceased and his brother Chandubhai were staying together. It was also mentioned by the appellant in his statement that Himalay was knowing him and addressing him as "Bhaiji". The last question which was put by the learned Judge of the trial Court to the appellant was whether the appellant was inclined to examine any defence witness and in reply to the said question, the appellant stated that the competent person from Dhrangadhra Taluka Police Station should be called upon to produce copy of First Information Report lodged by him against the deceased, which was numbered as C.R.No.166 of 1994. At that time, the learned Additional Public Prosecutor declared before the Court that the prosecution was inclined to produce the same before the Court. Accordingly, a copy of C.R.No.166 of 1994 registered at the instance of the appellant against the deceased was produced at Exh.50 whereas medical papers indicating that the appellant had taken treatment in view of injuries sustained by him in the incident which had taken place on August 8, 1994, were produced at Exh.52. When further explanation of the appellant was sought by the learned Judge of the trial Court while recording his statement under Section 313 of the Code, it was claimed by the appellant that he had been on pilgrimage of Goddess and was not knowing about the incident at all. It may be stated that the appellant had neither examined himself on oath nor any witness in support of the defence pleaded by him in his further statement. 5. On evaluation of the evidence adduced by the prosecution, it was held by the learned Judge that it was proved beyond reasonable doubt that the deceased had died a homicidal death. It was found by the learned Judge that the sworn testimony of witness Neelamben as well as that of child witness Himalay @ Hemang was trustworthy as well as cogent and ample corroboration to their evidence was available from the record of the case and after placing reliance on their evidence, it was held by the learned Judge that the appellant was the person who had caused fatal injuries to the deceased. After noticing the evidence of Dr.Vadodariya, which indicated that the injuries sustained by the deceased were sufficient in ordinary course of nature to cause his death, the learned Judge concluded that the appellant was guilty of the offence punishable under Section 302 IPC. It was further found that the appellant had also committed breach of Notification issued under Section 37 of the Bombay Police Act and was, therefore, liable to be convicted of the offence punishable under Section 135 of the Bombay Police Act. In view of abovereferredto conclusions, the learned Judge has convicted the appellant under Sections 302 IPC and Section 135 of the Bombay Police Act and imposed sentences referred to above by judgment dated July 1, 1997 giving rise to instant appeal. 6. Ms.Banna Dutta, learned counsel of the appellant, contended that witness, Neelamben Bhupatray, who is wife of the deceased had, in fact, not seen the blows of spade being inflicted by the appellant on the deceased at all and, therefore, the learned Judge of the trial Court was not justified in placing reliance on the testimony of Neelamben while deciding the guilt or otherwise of the appellant. It was argued that testimony of Neelamben would show that she had come to the place of incident after the incident was over and, therefore, her testimony was of no assistance to the prosecution in proving charge levelled against the appellant. According to the learned counsel of the appellant, testimony of child witness, Hemang Bhupatray, was also not reliable because his testimony was not recorded on oath as he was not able to understand sanctity of the same and, therefore, the same should have been discarded while determining the question whether the appellant had caused murder of the deceased or not. What was maintained by the learned counsel of the appellant was that the testimony of child witness also shows that it was tutored one and, therefore, should have been discarded from the consideration. The learned counsel of the appellant emphasised that find of blood having same blood group as that of the deceased on white open shirt of the appellant should not have been relied upon by the learned Judge of the trial Court more particularly when requirements of Section 27 of the Indian Evidence Act were not satisfied. According to the learned counsel of the appellant, the prosecution has failed to establish its case against the appellant beyond reasonable doubt and, therefore, the appeal should be accepted. 7. Mr.U.R.Bhatt, learned Additional Public Prosecutor, contended that testimony of Neelamben clinchingly establishes that she had, in fact, seen that the appellant had caused injuries on the head of the deceased and, therefore, the learned Judge of trial Court, who had advantage of observing demeanour of witnesses, was justified in relying upon her testimony while considering the question whether charge against the appellant was proved or not. It was argued that testimony of Neelamben stands completely corroborated by her complaint and also by reliable testimony of child witness, Hemang Bhupatray, as well as that of Ushaben Chandubhai and, therefore, conviction of the appellant under section 302 IPC should not be regarded as erroneous. What was maintained before the Court was that the testimony of child witness Hemang does not show that he was either tutored or was not able to understand seriousness of the offence and/or consequences of his deposition before the Court and, therefore, the plea that evidence of child witness, Hemang, should be discarded from the consideration, should not be accepted by this Court. It was argued that find of blood having same group as that of the deceased on white open shirt put on by the appellant establishes that the appellant was in close proximity of the deceased when the deceased was fatally wounded and as this circumstance corroborates the testimony of two eye witnesses, well founded conviction of the appellant under Section 302 IPC should be upheld by this Court. According to the learned Additional Public Prosecutor, no effort was made by the appellant to even probablise his defence of alibi which was pleaded in his further statement, which is a circumstance against the appellant and having regard to the facts of the case, the appeal, which lacks merits, should be dismissed. 8. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 9. The fact that the deceased had died a homicidal death is hardly in dispute. According to Neelamben, who is wife of the deceased, and Hemang, who is son of the deceased, the deceased had received injuries by means of a spade and those injuries were inflicted by the appellant. Injuries sustained by the deceased are also mentioned in inquest panchnama which is produced on record of the case at Exh.25. The testimony of Dr.Pragnaben Vadodariya, recorded at Exh.12, would show that she was Medical Officer of Dhrangadhra Government Hospital and had received dead body of the deceased on June 30, 1995 for postmortem examination. The external injuries as well as the internal injuries, which were noticed by her while performing autopsy on the dead body of the deceased, have been enumerated by her in her substantive evidence before the Court. Those injuries are also mentioned in detail in Column Nos.17, 19 and 20 of the postmortem notes produced on record of the case at Exh.15. It is nobody's case that the deceased had received those injuries in an accident or that those injuries were self-inflicted. Under the circumstances, the finding recorded by the learned Judge of the trial Court that the prosecution has proved beyond reasonable doubt that the deceased had died a homicidal death, is eminently just, and is hereby upheld. 10. In order to prove the charge levelled against the appellant, the prosecution has examined two witnesses. They are (1) Neelamben, who is wife of the deceased, and (2) Himalay @ Hemang, who is son of the deceased. 11. The testimony of Neelamben, which is recorded at Exh.16, would show that she was residing with the deceased and her three children near the old Post Office situated in village Kondh. According to her, house of the younger brother of her husband was situated near her house. What is mentioned by the witness is that at about 9.00 a.m. on the day of the incident, the deceased had gone to do the business of officiating at the performance of ceremony at his patron's house and she was present in her house. It is assertively stated by the witness that at about 11.00 a.m. on the day of the incident, her son Himalay had come to her house and shouted loudly that dada was beating his father. What is mentioned by this witness is that thereupon, she had immediately gone to the place of the incident and found that her husband had fallen down on the ground and that the appellant was inflicting blows with the spade on the head of the deceased. It was also maintained by the witness before the Court that she had raised shouts as a result of which, Lakhubha had come at the place of the incident. According to her, on seeing her, the appellant had run away from the place of the incident with the spade. It is also mentioned by her that blood was oozing out from ear of her husband and her husband had died on the spot. While mentioning the motive, which had prompted the appellant to assault the deceased, it was stated by her that dispute as to who was entitled to do the business of officiating at the performance of ceremony at the house of a particular patron was going on between the appellant and the deceased and due to that dispute, the appellant had assaulted the deceased. According to her, she had lodged First Information Report at the place of the incident itself. In her cross-examination, it was mentioned by the witness that in her family no body was pursuing profession of agriculture. It was also mentioned by the witness that her father-in-law and mother-in-law were staying separate and that all brothers were also staying separate, but in the same mohalla. The cross-examiner had tried to know from the witness as to whether she was knowing that the deceased had injured the appellant with iron shod stick, but the witness had pleaded ignorance. The suggestion put to the witness that because of assault mounted by the deceased earlier on the appellant, the appellant had sustained fracture on hand as a result of which the appellant was not able to pick up anything in his hand because a plate was inserted in his hand, was emphatically denied by her. According to this witness, her son Hemang was studying in the school situated in village Malvan before the incident had taken place, but he was present in her house as he was ill at that time. It was admitted by her that houses of several persons were situated near the place of the incident, but it was maintained by her that no one else had informed her about the incident. According to her, his deceased husband was assaulted near the telephone office. It was explained by the witness that on hearing shouts of her son Hemang, she alone had gone to the place of incident and had not taken any one else with her. In cross-examination also, it was maintained by the witness that when she had gone at the place of incident, there was no one else except her husband and the appellant. According to her, as soon as she had realised that her husband had died, she had gone to the Police chawki to lodge the complaint, but as no policeman was present at the police chawki, no complaint was lodged at police chawki. Further, it was stated by her in cross-examination that Parakramsinh had informed the police on phone and, therefore, the police had come at the place of the incident. It was also stated by her that at the time of the incident, wife of younger brother of her deceased husband as well as her father-in-law and mother-in-law were present and that she had informed her father-in-law that father of Hemang was murdered. It was also admitted by her that when her complaint was being reduced into writing, Sarpanch of the village was present. It was mentioned by the witness that the appellant had run away in another direction, but she had not informed any one that the appellant had run away in the said direction. The suggestion put by the defence that her father-in-law and three brothers were having 375 vighas of land was denied by her. According to her, the appellant was also doing the business of officiating at the performance of ceremony at a patron's house and was father of four daughters and three sons. What was stated by the witness in her cross-examination was that earlier, the appellant had caused injuries to her husband, but her husband had not filed any complaint against the appellant because the dispute was resolved through Parakramsinh. It was further clarified by her that when Hemang had informed her that the appellant was beating his father, at that time, she was washing clothes in fali of her house. It was also mentioned by the witness that she had not asked any one to chase the appellant who had run away, to apprehend him. What was maintained by the witness before the Court was that when she had gone to the Police Chawki to lodge First Information Report, she was not accompanied by any one. It was also stated by her that she was not knowing as to from where Parakramsinh had made telephone call and informed the police about murder of the deceased. The witness had informed the Court that panchnama of place of occurrence was prepared at about 12.30 noon. In answer to the question as to at what time police statement of her son Hemang was recorded, it was replied by the witness that she was not remembering the time. This is all what transpires from the testimony of Neelamben. A bare perusal of her testimony makes it evident that she had seen the incident in question and had not learnt about the same after it was over. Her testimony shows that when she had gone at the place of incident, her husband was lying on the ground whereas the appellant was inflicting blows on the head of the deceased. It is well to remember that she is wife of the deceased. Under the circumstances, she would never allow the real culprit to go scot-free and involve the appellant, who is real elder brother of her husband falsely in such a serious case. No major contradictions or omissions