IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 420 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE S.M.SONI and MR.JUSTICE J.R.VORA ============================================================ 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? -------------------------------------------------------------- RAMESHBHAI AMTHABHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR AD SHAH for Petitioner MR SR DIVETIA, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE S.M.SONI and MR.JUSTICE J.R.VORA Date of decision: 20/03/98 ORAL JUDGEMENT Appellant-original-accused No.1 has filed this appeal against the judgment and order of conviction under section 302 of Penal Code in Sessions Case No.15/91 passed by the learned Principal City Sessions Judge, Ahmedabad on 22nd June, 1991, by which the appellant-accused has been sentenced to undergo rigorous imprisonment for life. Facts of the prosecution case, in short, are as under: One Natwarlal Amthabhai, ordinary resident of Meghaninagar area was a kerosene vendor. He was residing with his wife Gajiben and children. As he was not able to carry on well with Gajiben, she had gone away to her father's place. As Gajiben has left for her father's house, Shantaben mother of Natawrlal had come to stay and reside with him. In the evening of 20th September, 1990 at about 6 'O clock, both, Natwarlal and Shantaben had gone to purchase kerosene with their hand-lorry near Madrasi School in Meghaninagar area. On the way back, three brothers of Gajiben met him and told him to go to their place, which Natwarlal, at first, refused. All the brothers of Gajiben insisted Natwarlal to go with them telling him that they would return after taking Gajiben with them. Natwarlal, therefore, accompanied them. By about 9.30 to 10.00 p.m., Shantaben heard that a murder has taken place near Anil Starch. She, therefore, in company of her husband went to the house of Ramesh, accused No.1. She found pool of blood near lamp post opposite to the house of Ramesh. She having learnt that the injured was taken to Shardaben hospital went there and found that Natwarlal was admitted in the hospital in injured condition. Natwarlal was then transferred to VS hospital as his condition was serious. In Shardaben hospital her complaint was recorded and the offence was registered. She had named three brothers of Gajiben wife of Natwarlal who persuaded Natwarlal to accompany them. They were Ramesh, Jayanti and Somabhai, accused No.1, 2 & 3 respectively. PW 12, Satuji investigated into the matter and on completion of the same submitted chargesheet against the accused in the Court of Metropolitan Magistrate, Ahmedabad, who in his turn committed the case to the Ahmedabad City Sessions Court. The learned Additional City Sessions Judge framed charge against the accused under section 302 read with section 34 of Penal Code and also under section 35(1) of the Bombay Police Act. Accused pleaded not guilty and claimed to be tried. The prosecution led necessary evidence to prove the charge levelled against the accused. On completion of the prosecution witnesses, further statement of the accused was recorded where the accused disclosed that they wanted to lead evidence for defence. Accordingly, four witnesses were examined as defence witnesses. Thereafter, after hearing the learned advocates for both prosecution and defence, the learned Principal City Sessions Judge held the present appellant, accused No.1 guilty of offence punishable under section 302. However recorded acquittal against original accused Nos.2 & 3. State has not preferred appeal against the order of acquittal passed in respect of accused Nos.2 & 3. However, accused No.1 has preferred this appeal. Before we deal with other contentions raised by the learned advocate for the appellant ('accused' for short) we would like to first deal with the contention that at the relevant time accused was not in the town and had gone for purchase of vegetables with his brother Govindbhai at Vadodara, meaning thereby, the learned advocate has raised the defence of alibi. Whenever the defence raises the contention of alibi, it is the duty of the defence to prove the same with absolute certainty so as to completely exclude the possibility of presence of the person concerned at the place of occurrence. The Supreme Court in the case of State of Maharashtra v. Narsingrao, (AIR 1984 SC 63) has observed in para 18 as under: "It is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence." Keeping this principle in mind, we will now consider whether the defence has been able to establish that accused was not present at the place of occurrence. Defence has examined DW 1, Govindbhai Amthabhai to prove this plea. DW 1 has deposed that "Ramesh and I proceeded to go to Vadodara in a train of 6.10 in the evening of the day of incident. We reached Vadodara by about 8.30 at night. It was 12.30 night while purchasing vegetables. I alone returned to Ahmedabad from Vadodara in a tempo with vegetables. Those vegetables were sold by me next day in Jamalpur vegetable market ......... on the next day morning Police Inspector called me. Inspector told me that name of your brother is there in the incident and you call him. I went to call Ramesh. I had gone to call Ramesh in the morning of 22nd September, 1990 by 5 'O clock. I returned to Ahmedabad with Ramesh by about 10.30. I produced Ramesh before the Police." In the examination in chief, this witness has not specifically stated from whom they purchased vegetables, where they ordinarily stay in Vadodara, where Ramesh would have stayed in Vadodara on that night and with whom. The witness has not stated these details in examination in chief. The witness has also failed to disclose these facts in the cross-examination also. He has replied in the cross examination that "..... it is not certain from which businessman of Vadodara I purchase vegetables. We load vegetables between 12.30 to 1.00 midnight and start by tempo from Vadodara. After going to Vadodara, we start our tempo for Ahmedabad with vegetables. After going to Vadodara we contract for tempo to bring vegetables to Ahmedabad. I do not remember the tempo number and the name of owner of the tempo in which we brought vegetables to Ahmedabad on the day of incident. I always go in the train of 6.10 evening. I normally never miss that train. It would be by 3.00 to 3.30 a.m. while reaching Ahmedabad. After reaching Jamalpur market in the tempo, Ramesh would go to sleep for a hour or two in the market and after waking up at about 5.30, he will straightway go for his job in mill company. After finishing duty in Mill Company he would come at home and take rest and Ramesh will come back after two hours and come with me in train to Vadodara. I do not know where Ramesh used to take his lunch. It may happen that for some reason. Some day Ramesh may not come with me to Vadodara. On that day I alone would go to Vadodara. I have no information at whose place Ramesh stayed at Vadodara and where had he gone." He further stated that when he reached in the morning from vegetable market after coming from Vadodara, Jayantibhai and Somabhai were not in the hut of Lalibhai and that he did not inquiry about them. From this evidence, the learned advocate Mr Shah wants to convince us that in the evening of the incident, accused had gone to Vadodara in company of his brother Govindbhai to purchase vegetables and he was not in the town much less at the scene of offence. If one wants to have a plea of alibi accepted, then the defence has to lead evidence with such certainty so as to completely exclude the possibility of the presence of the person concerned [Narsingrao (supra)]. In the instant case DW 1 has said that accused has accompanied him to Vadodara. Except his word, there is no other evidence to support his say, though it would be available. DW 1 then stated that they purchased vegetables from the vegetables market of Vadodara. He was not able to tell the name of the vendors of vegetables from whom he purchased. When he is purchasing vegetables from Vadodara for sale at Ahmedabad and the same is carried in tempo, it may be that he must be purchasing vegetables from different vegetable vendors. He has not been able to name either one or more of vegetables vendors of Vadodara. He has not even stated the weight and value of the vegetables purchased. He is not able to tell as to what was the tempo number and who was the owner of the tempo in which he brought vegetables from Vadodara to Ahmedabad. From his evidence, it is clear that it is his routine business that he goes to Vadodara by train and comes back with vegetables loaded in tempo. He must be, therefore, in know of tempo owners whose tempoes he must be hiring. It may be that every day same tempo may not be hired. But it cannot be that every day there will be change of tempo and he would not know the name of tempo owner to whom he has to make necessary payment either at Vadodara or on reaching at Ahmedabad. Accused is the real brother of DW 1. DW 1 is taking him every day to Vadodara for purchase of vegetables. Accused is also serving in a Mill company. If accused is taken every day to Vadodara for purchase of vegetables and if he overstays at Vadodara, then it must be within the knowledge of DW 1 as to where he would be residing in the day time till he again reaches Vadodara in the evening. He also normally would know where his brother dines. Though the accused is real brother of this witness, he is not knowing where the accused is taking lunch when he is in Ahmedabad. A simple statement that accused accompanied him to Vadodara and they were at Vadodara in the evening of fateful day cannot be accepted as this does not completely exclude the possibility of presence of the accused. DW 1 has also admitted that it may be that accused may not accompany him some day. Thus the learned Principal City Sessions Judge has rightly not accepted this defence and we do not find any reason to interfere with the same. Defence has not seriously disputed the fact that deceased has died homicidal death. In the evening of 20th September, 1990, deceased was taken to Shardaben hospital where Dr. Chetan Shukla has found following two injuries: "1. Contused lacerated wound of 4 x 0.5 x aponeurosis deep over scalp, midline, posteriorly bleeding. 2. Contused lacerated wound of 2 x .04 x aponeurosis deep over left parietal region, bleeding." As the injured could not be treated for neurosurgery, he was removed to VS hospital. Doctor at VS hospital has also found the said injuries in addition to one more injury, namely, bruise just above the right eye-brow 4 cm x 3 cm. x 0.5 cm. On demise of the injured, in the post mortem examination also said two injuries along with other superficial injuries are found. Dr. PW 2 has deposed that the said internal injuries corresponding to external injuries were sufficient in the ordinary course of nature to cause death and the cause of death assigned is shock following extensive intracranial haemorrhage. Thus it is clear from the evidence of Dr. PW 2 that the deceased has died a homicidal death. It is contended by the learned advocate Mr Shah that learned Principal City Sessions Judge has erred in holding that the said injuries on the person of the deceased are caused by the accused. Mr Shah contended that the evidence led by the prosecution to prove that fact is not sufficient to lead to an inference that it is accused and only accused who has caused said injuries as a result of which the injured has died. Mr Shah contended that the injured was alcoholic and it appears that in a drunken condition, he must have fallen down which caused injuries on the skull resulting into subdural haemorrhage. Mr Shah contended that absence of any fracture on the skull makes more probable the defence case than that of the prosecution. Mr Shah contended that the prosecution witnesses cannot be believed as two of the eye witnesses, in his opinion, deposed to the effect which rules out their presence at the scene of offence or their having seen the occurrence of the incident. We will, therefore, first deal with the evidence of those two eye witnesses, namely, Champaben, PW 4, and Gitaben Govindbhai, PW 5. Prosecution has also examined one Badarji Babaji, PW 7 as an eye witness. The learned Sessions Judge has not accepted his evidence and in our opinion rightly and as we accept the reasoning of the learned Principal City Sessions Judge for rejection of his evidence, we do not repeat the same. Evidence of PW 7, Badarji Babaji appears to have been mainly introduced by the prosecution to prove the involvement of commission of offence by accused Nos.2 & 3. Accused No.2 & 3 are acquitted and the State has not preferred appeal against the same. Simply because the evidence of Badarji Babaji, PW 7 is not accepted, it does not adversely affect the evidence of PW 4 & 5. Before we discuss the evidence of these eye witnesses, it will be relevant to put on record where their huts are located qua the scene of offence. There is row of about 9 huts in north-south direction. They appear to be facing east and they also have exit on the west. Somewhere in the middle of those huts, there is a hut of one Hiraben from whose hut, it is alleged by the prosecution that an axe is found. On the north of that hut of Hiraben, there is a hut of one Govindbhai to the north of which there is a hut of the accused. On the south of hut of Hiraben, there is hut of PW 6 Champaben. To the south of that hut, there is hut of PW 5, Gitaben and to the south of that hut, there is hut of PW 4, Champaben. On the east at a distance of about 22 ft. the place of incident is located. On the east of the place of incident, there is an electric pole at a distance of about 7 ft. It is in evidence that light was on in that pole at the time of incident. Thus it can be said that scene of offence is located in north-east corner from the house of PW 4 and PW 5 and south-east corner of the hut of the accused. Keeping in mind the above topography as to the place of incident, we will now appreciate the evidence of PW 4, Champaben. PW 4 in her evidence has stated that "incident happened at about 10.00 in the night. At that time I have already slept in my house. On hearing shouts, I came out of my house. I saw that Ramesh was inflicting blows on Natwarbhai. Ramesh was inflicting blows of axe. I have seen that axe. I can identify that axe. Ramesh was inflicting blows on Natwarbhai with axe on the head portion. Natwar had fallen down there. Then Ramesh ran away." In the cross-examination, she pleaded ignorance that Natwarbhai was known as 'bulydada'. She denied to have stated before the Police that at about 10 'O clock in the night Natwarbhai Amthabhai brother in law of Ramesh Amthabhai, who is known as 'buli' had come on the road near the house of Ramesh and was speaking unsavourily and creating trouble. She had also admitted that when she came out, she first saw that there was grappling between Ramesh and Natvar. She stated that "thereafter Ramesh had gone to his house. Natwar did not chase Ramesh. Natwar stood there and then. Natwar was not speaking anything. He stood there quietly. Ramesh went in his house and at that time, Natwar was not bleeding from any part of his body. When Ramesh went to his house to take axe, persons who were standing near light pole have gone away. When Ramesh came back, Natwar did not make any attempt to run away. I do not know whether Natwar made any attempt to catch hold of axe. Ramesh inflicted two blows of axe from behind on the rear part of head of Natwarbhai. I have not seen by which part of axe, the blow was inflicted. On inflicting two blows of axe, Natwar fell down and Ramesh ran away". Thus, from the evidence of this witness, it is clear that on hearing shouts she came out of her house and saw that there was grappling between Ramesh and Natwar and then Ramesh went to his house, came back with axe and inflicted two blows of axe on rear part of the head of Natvar from behind. Natwar fell down and Ramesh ran away. This witness has denied that Natvar is known as 'buli'. However, it is proved that she has so stated before the Police that he is known as 'buli'. In our opinion, whether Natvar is known as buli or not whether this witness made such statement or not does not assume any significance in the facts of the present case. Learned advocate Mr Shah has suggested that if Natwar was known as buly and if he is buly, then he would not quietly invite blows of axe on him without any resistance or an attempt to run away. It is in the cross-examination that Natvar was not speaking anything and he was standing quietly. He has not made any attempt to run away nor has he made any attempt to catch hold of the axe to defend himself. Every person reacts differently and also respond differently. Simply because Natwar was not speaking anything and has stood quietly and made no attempt to run away suggests that there was no scuffle. If there was scuffle initially and Ramesh had gone and came with an axe, what made Natwar not to react when Ramesh came with an axe. This, in our opinion, suggests that before Natwar could react to anything, Ramesh has given blows from behind on the rear part of the head as a result of which Natwar has fallen down and blood was found at that place of incident. We do not find any reason not to accept this version of PW 4. The incident took place at 10.00 in the night. Presence of PW 4 in her house is not even disputed nor challenged by the defence. When a hubbub takes place near one's own house, one would surely wake up and peep out of the house and see what is going on. Thus we are not able to find any reason to reject the evidence of PW 4 and, in our opinion, the learned Principal Sessions Judge has rightly accepted the evidence of PW 4. The prosecution has relied on another eye-witness PW 5, Gitaben. Her house is located on the north of house of Champaben PW 4 and south of the house of Champaben Laxmanbhai, PW 6. Gitaben, PW 5, has deposed that "incident happened at 10 O' clock night. At that time story of Satyanarayan was being read in my house. Neighbouring hut dwellers had not come to my house. ..... there was scuffle between Ramesh and Natwar. When I saw Ramesh had an axe in his hand. Ramesh inflicted a blow of axe on the rear side of the head of Natwar which I saw. As I could not dare any further, I went in my house." In the cross-examination, she has stated that "I have not seen Natwar falling on the road. ..... Grappling was not with a view to snatch away the axe. Ramesh inflicted blow with edge portion." Though she has denied before the court, however, she has stated before the Police that story reading of Satyanarayan was going on in her house and on hearing the hubbub, her relatives had gone away feeling that the quarrel will exceed the limits. Whether Satyanarayan story reading was over or was going on and on hearing the hubbub, her relations have gone away or not are of of no significance so far as the facts of the present case are concerned. If story reading of Satyanarayan was going on and her relations were there they normally would go away if they come to know that something serious is happening outside the house because of fear of getting involved. If the story reading was over, then it is not that immediately after the story reading is over, people would go away. But they will certainly leave the place immediately if they feel that something serious is going on outside the house. This fact, in our opinion, has no impact on the say of PW 5. The important aspect so far as PW 5 is concerned is that she has stated that when she came out of the house on hearing the hubbub, she saw Natwar and Ramesh grappling and Ramesh had an axe in his hand. Every person reacts differently on hearing hubbub. Some may react instantly, some may react after some time is elapsed. Some reacts after some time because they may have the feeling that it may be over in a few minutes. If it is over, they will immediately try to look into the cause of hubbub. Some would rush to the place of incident, some would choose to sit in their house, some may jump to the scene and some may abstain from the place. PW 5 has stated that she has seen grappling with Natwar with an axe in the hand of Ramesh. Such grappling cannot be one sided. A reply is given to a specific question in the cross-examination that the grappling was not with a view to snatch away the axe. Thus it appears that PW 5 reacted to the noise of hubbub a little later than it was reacted by PW 4. PW 4 has seen the incident just from the beginning while PW 5 have seen the incident a little late in time than that of PW 4. Therefore, the stage is changed. Initially when PW 4 saw the incident, the accused had no axe with him. However accused had gone to his hut and came back with an axe. It appears that PW 5 had seen the incident at a point of time when the accused came back with an axe. Defence was not able to extract anything from the cross-examination of PW 5 on the basis on which the Court is required to reject her evidence. The contradiction to the effect that whether story reading of Satyanarayan was going on or not, in our opinion, is not that significant to reject her evidence on the ground that she has not seen the incident. Thus, we do not find any reason to reject her evidence and, in our opinion, the learned Principal City Sessions Judge has rightly accepted her evidence. Learned advocate Mr Shah contends that the evidence of PW 4 and PW 5 is conflicting on material aspect and therefore the evidence of both these witnesses should be rejected as it is not possible to reconcile their evidence. It is the principal of criminal jurisprudence that the evidence of each