IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 940 of 1996 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 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? -------------------------------------------------------------- NARAN LAXMAN Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 940 of 1996 MRS SHILPA J UNWALLA for Appellant MR SUDHANSU S PATEL, ADDL.PUBLIC PROSECUTOR for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 14/07/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 378 of the Code of Criminal Procedure, 1973, ("the Code" for short) is directed against judgment dated August 13, 1996, rendered by the learned Additional Sessions Judge, Junagadh, in Sessions Case No.52 of 1994, by which the appellant is convicted of the offences punishable under Sections 302, 449, 450 & 452 of the Indian Penal Code and sentenced to suffer R.I. for life and fine of Rs.2000/-, in default, R.I.for six months, for having committed offence punishable under Section 302 I.P.C. as well as R.I. for ten years and fine of Rs.1000/-, in default, R.I. for three months, for commission of offence punishable under Section 449 I.P.C. and R.I. for seven years and fine of Rs.800/-, in default, R.I. for two months, for commission of offence punishable under Section 450 I.P.C. as well as R.I. for five years and fine of Rs.500/-, in default, R.I. for one month, for commission of offence punishable under Section 452 I.P.C. It may be stated that the learned Additional Sessions Judge has directed that the substantive sentences imposed on the appellant shall run concurrently and that he shall be entitled to benefit of set off as provided in Section 428 of the Code. 2. Complainant Bhavnanand Guru Narmadanand is staying in temple of Indreshwar Mahadev situated at village Dolatpara, Taluka & District : Junagadh, and was rendering service as well as doing worship in the temple. Along with him, deceased worshipper Manubhai, Kishangiri, Ratanben and 5 to 10 other persons were also staying in the temple and were rendering service and doing worship. The appellant was earlier asked to whitewash the temple. The incident in question had taken place on January 5, 1994. Four to five days prior thereof, the appellant was entrusted the work of grazing cows belonging to the temple and was staying in the temple. It was noticed by deceased Manu Maharaj and others that the behaviour of the appellant was objectionable and that he was uttering abuses. Under the circumstances, deceased Manu Maharaj had asked the appellant to leave the temple on January 5, 1994. The appellant had accordingly left the temple in the morning of January 5, 1994, but come back to the temple at about 2.30 P.M. At that time, the deceased was taking rest near seat of Guru; whereas Ratanben was busy with work in kitchen and Kishangiri Maharaj was sleeping in the garden located behind the temple. At that time, Ratanben had heard shouts of deceased Manu Maharaj asking her to save him. On hearing the shouts, Ratanben had gone to the place where the deceased was taking rest. She had noticed that the appellant was assaulting the deceased by means of a pestle. Ratanben had made an attempt to rescue deceased Manu Maharaj, but the appellant had given her a push, as a result of which she had fallen down on the ground. Thereupon, Ratanben had also raised shouts asking Bhavnanand to come and save deceased Manu Maharaj. On hearing the shouts, Bhavnanand had also rushed to the place where the deceased was being assaulted by the appellant and witnessed that two blows on chest of the deceased with pestle were given by the appellant. Bhavnanand had caught hold of the pestle which was in the hand of the appellant and tried to know from the appellant as to why he had assaulted the deceased. The appellant had not given any reply, but run away from the place of incident after uttering abuses. Meanwhile, Kishangiri, who was also in the temple, had come to the place where the deceased was assaulted. The deceased had informed Bhavnanand that he was given blow on chest by the appellant. At the time of incident, one Megha was also staying in the temple. He was asked to bring a rickshaw. In rickshaw the deceased was removed to the dispensary of Dr.Vallabhbhai. On examination of the deceased, Dr.Vallabhbhai had found that the deceased had sustained serious injuries and had advised Bhavnanand and others to remove the deceased to Government Hospital for treatment. Accordingly, the deceased was taken to Government Hospital, Junagadh. During the course of treatment the deceased expired at about 4.30 P.M. Thereupon, Bhavnanand had lodged complaint at Junagadh Taluka Police Station. After registering offences against the appellant, the Police Station Officer had handed over complaint to Mr.D.S.Bhatti, who was then discharging duties as Police Sub-Inspector, for investigation. The investigating officer had made arrangement for sending dead body of the deceased for postmortem examination and also drawn panchnama of place of occurrence from-where the pestle used by the appellant to assault the deceased was recovered. The investigating officer had recorded statements of persons who were found conversant with the facts of the case and arrested the appellant. On conclusion of investigation, the appellant was chargesheeted in the Court of learned Chief Judicial Magistrate, Junagadh of the offences punishable under Sections 302, 504, 323 I.P.C. as well as Section 135 of the Bombay Police Act. As the offence punishable under Section 302 I.P.C. is exclusively triable by a Court of Sessions, the case against the appellant was committed to Sessions Court, Junagadh for trial, where it was numbered as Sessions Case No.52 of 1994. The learned Additional Sessions Judge, Junagadh, to whom the case was made over for trial, had framed charge against the appellant at Exh.1 of the offences punishable under Sections 323, 302, 504, 449, 450 & 452 I.P.C. The charge was read over and explained to the appellant, who had pleaded not guilty to the same and claimed to be tried. The prosecution had, therefore, examined (i) Bhavnanand Guru Narmadanand as PW.1 at Exh.13, (ii) Dr.Bhagwatiprasad Sukhrambhai Nimavat as PW.2 at Exh.15, (iii) Ratanben Guru Bhavnanand as PW.3 at Exh.17, (iv) Dr.Vallabhbhai Tejabhai Sorathia as PW.4 at Exh.18, (v) Virjibhai Jivabhai as PW.5 at Exh.19, (vi) Mansukhlal Gaurishanker Joshi as PW.6 at Exh.21, (vii) Dr.Bhalchandra Narmadashanker Joshi as PW.7 at Exh.24, and Diwansing Sudhakarsing Bhatti as PW.8 at Exh.27, to prove its case against the appellant. The prosecution had also produced documentary evidence, such as inquest panchnma at Exh.10, map of place of incident at Exh.11, complaint lodged by Bhavnanand at Exh.14, postmortem notes of the deceased at Exh.16, panchnama of place of occurrence at Exh.20, entry from register maintained at the Police Station at Exh.22, outdoor medical papers relating to the deceased at Exh.25 etc. in support of its case against the appellant. 3. After recording of evidence of prosecution witnesses was over, the learned Judge had 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, defence of the appellant was that he was not present in the temple when the incident had taken place and was falsely involved in the case. However, he had neither examined himself nor examined any witness in support of the defence pleaded by him in his further statement. 4. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the deceased had died a homicidal death. According to the learned Judge, testimony of witness Bhavnanand and that of witness Ratanben was reliable as as well as trustworthy, which established that the appellant had caused death of the deceased by inflicting blow with pestle on his chest. It was held by the learned Judge that the appellant was irritated and had assaulted the deceased after committing house-trespass. According to the learned Judge, it could not be proved by the prosecution that the appellant had given a push to witness Ratanben and/or had also pushed the complainant and caused simply injuries to them. What was noticed by the learned Judge was that the appellant had committed house-trespass in order to commit offence punishable with death as well as with imprisonment for life and, therefore, he was liable to be convicted of the offences punishable under Sections 449 & 450 I.P.C. In view of the abovereferredto conclusions, the learned Judge has convicted the appellant of the offences punishable under Sections 302, 449, 450 & 452 I.P.C. and imposed sentences referredto earlier by judgment dated August 13, 1996, giving rise to instant appeal. 5. Ms.Shilpa J.Unwalla, learned counsel of the appellant, contended that the claim of witness Bhavnanand that he had witnessed assault on the deceased by the appellant is doubtful, inasmuch as his testimony shows that first of all Ratanba had gone to the rescue of the deceased, but was found lying, after which he had gone to the rescue of the deceased, but before that, assault on the deceased was over and, therefore, the learned Judge was not justified in acting upon the testimony of witness Bhavnanand. According to the learned counsel of the appellant, witness Bhavnanand had no opportunity to witness the incident at all, as causing of injury to the deceased was over before the witness had gone to the place of incident and, therefore, his claim that he had witnessed the incident should have been disbelieved by the trial Court. The learned counsel of the appellant referredto oral dying declaration made by the deceased before witness Bhavnanand and pleaded that if the witness had seen the incident, it was not necessary for the deceased to make so-called oral dying declaration before him and, therefore, evidence led by witness Bhavnanand regarding oral dying declaration of the deceased should be discarded. It was maintained by the learned counsel of the appellant that the oral dying declaration referredto in substantive evidence of witness Bhavnanand differs in material particulars from the averments made in the complaint; whereas witness Ratanben does not referto so-called oral dying declaration of the deceased made before witness Bhavnanand and, therefore, the learned Judge was not justified in placing reliance on the dying declaration of the deceased while convicting the appellant of major offences. It was argued that testimony of Bhavnanand does not get support from the medical evidence on record, inasmuch as according to him, the deceased had sustained injury on left side; whereas medical evidence on record shows that the deceased had sustained injuries on right side, and as this discrepancy is not explained by the prosecution, prosecution case against the appellant should have been disbelieved. After referringto the testimony of witness Ratanben, it was argued that PW.1-Bhavnanand has stated that blows were given to the deceased when he had reached the place of incident; whereas testimony of Ratanben shows that after she had fallen down, P.W.1 had come and thereafter blows were given to the deceased and as evidence of two eye witnesses contradicts each other, the learned Judge was not justified in convicting the appellant of serious offences. It was further argued that rigor mortis had set in, which would indicate that the incident must have taken place prior to six hours of autopsy of dead body of the deceased and, therefore, claim of the prosecution witnesses that the appellant had fatally wounded the deceased at about 2.30 P.M. should have been disbelieved by the trial Court. It was pointed out to the Court that though testimony of Dr.Vallabhbhai shows that the deceased had also made dying declaration before him involving the appellant in the crime, the same is not reliable at all because in so-called dying declaration it was mentioned by the deceased that he was given 3 to 4 blows with pestle by the appellant on his chest; whereas only one injury was found during the course of autopsy of dead body of the deceased. The learned counsel of the appellant drew the attention of the Court to the testimony of Dr.Bhalchandra and argued that though the deceased had mentioned history of assault to the doctor, it was never stated by the deceased that the appellant had caused injury to him and non-mentioning of name of the appellant as his assailant was fatal to the prosecution case. It was argued that the evidence on record has not been appreciated by the learned Judge of the trial Court in its true perspective and, therefore, the appeal should be accepted. In the alternative, it was pleaded that the evidence on record does not show that the appellant had brought pestle with him while entering the temple and that a scuffle had ensued between him and the deceased, as a result of which the appellant had inflicted one blow with pestle on the chest of the deceased and, therefore, the appellant would be liable to be convicted of the offence punishable under Section 304 Part-I of the Indian Penal Code. The learned counsel emphasised that by this time the appellant has undergone sentence of more than 10 years and, therefore, after altering conviction of the appellant from Section 302 to Section 304 Part-I I.P.C. punishment of imprisonment already undergone by the appellant should be imposed on him. 6. Mr.Sudhansu S.Patel, learned A.P.P., argued that testimony of witness Bhavnanand and witness Ratanben is not only reliable, but thoroughly consistent, which establishes beyond reasonable doubt that the appellant had inflicted pestle blow on the chest of the deceased, as a result of which, the deceased had died and, therefore, no error was committed by the learned Judge of the trial Court in acting upon the testimonies of two eye witnesses for convicting the appellant. The learned counsel of the State Government contended that minor discrepancies appearing in the testimonies of eye witnesses do not affect the substratum of prosecution case and is result of power of observation of the witnesses as well as lapse of time between the date of incident and recording their evidence and, therefore, it is wrong to contend that the Court should discard the evidence of two eye witnesses because of minor discrepancies appearing in their evidence. According to the learned A.P.P., the deceased had not noticed that the incident in question was witnessed by witness Bhavnanand and, therefore, naturally he had made oral dying declaration before the said witness, which cannot be regarded as unreliable. What was asserted by the learned counsel of the State Government was that the testimony of witness Bhavnanand regarding oral dying declaration made by the deceased to him stands corroborated by reliable testimony of witness Ratanben as well as medical evidence on record, which shows that the deceased was conscious till few minutes of his death and, therefore, no error was committed by the learned Judge in acting upon the oral dying declaration of the deceased for convicting the appellant of the offence punishable under Section 302 I.P.C. According to the learned A.P.P., there is no material discrepancy in the testimonies of two eye witnesses relating to blows given by the appellant with pestle on the chest of the deceased and, therefore, well-reasoned findings recorded by the trial Court should be upheld by this Court. The learned counsel of the State Government brought to the notice of this Court relevant fact that time of onset of rigor mortis varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop, but in India, it usually commences in one to two hours after death and, therefore, the fact that the doctor who had performed autopsy on dead body of the deceased had noticed that rigor mortis had seton at 6.15 P.M. would not make any dent in the prosecution case, inasmuch as the evidence on record establishes that the deceased had died at 4.30 P.M. on January 5,1994, whereas postmortem examination was begun at 6.15 P.M. While dealing with comment offered by the learned counsel of the appellant with reference to testimony of Dr.Vallabhbhai, it was argued by the learned counsel of the State Government that his assertion that the deceased had made oral dying declaration before him involving the appellant as his assailant inspires confidence and the same should be acted upon, more particularly when it could not be established by the defence that Dr.Vallabhbhai had a motive to implicate the appellant falsely in such a serious case. Dealing with comment of learned counsel of the appellant to the effect that the deceased had failed to name the appellant as his assailant while stating history of assault before Dr.Bhalchandra Joshi, it was urged by the learned A.P.P. that it was not customary for doctor to record name of the assailant and failure on the part of the deceased to mention name of the appellant as his assailant does not affect the reliable and trustworthy testimonies of two eye witnesses. The learned counsel emphatically pleaded that finding recorded by the learned Judge of the trial Court to the effect that the appellant was author of injury caused to the deceased is eminently just and should be upheld by this Court. In answer to alternative plea raised by the learned counsel of the appellant, it was argued that the appellant had given blow with pestle which was heavy in weight with a great force on vital part of the deceased viz. chest and in view of medical evidence which establishes that the injury was sufficient in ordinary course of nature to cause death of the deceased, the conclusion drawn by the learned Judge of the trial Court that the appellant had committed offence punishable under Section 302 I.P.C. should be upheld by this Court. It was also argued that having regard to the nature of evidence adduced by the prosecution witnesses, conviction of the appellant of the offences punishable under Sections 449 & 450 I.P.C. cannot be regarded as erroneous and, therefore, the appeal should be dismissed. 7. 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. The fact that the deceased had died a homicidal death is not in dispute. The two eye witnesses have maintained before the Court that the deceased had sustained injuries on his chest in an assault mounted by the appellant on the deceased. The injuries sustained by the deceased are also noted in inquest report. Dr.Bhagwatiprasad S.Nimavat, who had conducted autopsy on dead body of the deceased, has mentioned injuries noticed by him which were sustained by the deceased in his substantive evidence. Those injuries are also detailed in postmortem notes produced on record of the case at Exh.16. The doctor has opined that injuries sustained by the deceased were antemortem. According to the doctor, cause of death of the deceased was shock due to haemorrhage as a result of injury to lung. It is not the case of the appellant that the deceased had sustained suicidal injuries nor could it be proved by the appellant that the deceased had sustained injuries as noticed by the doctor in an accident, though a feeble attempt was made. On reappreciation of evidence, this Court finds that it is proved by the prosecution beyond reasonable doubt that the deceased had died a homicidal death. The finding recorded by the learned Judge of the trial Court on this point is eminently just and is hereby upheld. 8. This brings the Court to consider the question whether the appellant had caused injuries to the deceased. The testimony of witness Bhavnanand recorded at Exh.13 would indicate that on the date of incident he was present in the temple along with Ratanben and Kishangiri Maharaj. According to him, after taking meal, all were taking rest and the deceased was taking rest near seat of Guru; whereas he was taking rest under a tree. What is maintained by the witness in his examination-in-chief is that first of all he had heard shouts raised by the deceased to the effect that "Ratan Save, Ratan Save" and thereafter he had heard shouts raised by Ratanben for help. It is further stated by the witness that on hearing the shouts, he had gone to the place where the deceased was taking rest and found that the appellant had delivered two blows with pestle on the chest of the deceased. According to this witness, he had caught hold of pestle which was in the hands of the appellant and when he had tried to know from the appellant as to why he had assaulted the deceased, the appellant had uttered abuses and fled the temple. The witness has further asserted that the deceased had told him that the appellant had given blows on his chest. In his cross-examination, the witness stated that after he had gone to the place where the deceased was taking rest, the appellant had given one blow and that he had caught hold of the appellant. The suggestion made by the defence that he had not witnessed giving of blows by the appellant to the deceased was emphatically denied by him. In his cross-examination, the witness had maintained that the appellant had given 2 to 3 blows with pestle on the chest of the deceased when he had reached near the deceased. According to this witness, the injury sustained by the deceased was not bleeding one and that the deceased had some breathing problem. However, it was maintained by the witness that the deceased had orally told him that the appellant had given blows on his chest. It was also mentioned by the witness that the deceased had sustained injuries on the left side of his chest. On reappreciation of evidence of witness Bhavnanand, this Court finds that there are no major contradictions appearing in his evidence with reference to his complaint or police statement. His case that he had seen the appellant inflicting two blows with pestle on the chest of the deceased stands probablised in view of testimony of Dr.Nimavat examined at Exh.15, who has stated before the Court that according to his opinion the deceased must have been given two blows. The assertion made by this witness that the deceased had made oral dying declaration before him implicating the appellant also inspires confidence because the evidence of Dr.Bhalchandra clinchingly establishes beyond pale of doubt that the deceased was conscious when he was admitted in hospital and had narrated history of assault to him. The plea that the deceased would not have made dying declaration before this witness, as he had witnessed the incident in question is merely stated to be rejected. It could not be brought on record by the defence that the deceased was knowing that assault on him by the appellant was witnessed by witness Bhavnanand. Naturally, therefore, on finding Bhavnanand, who was his Guru, near him, the deceased had informed him that he was assaulted by the appellant. Thus, making of oral dying declaration is not, in any way, suspicious at all. It may be stated that it could not be brought on record by the defence that this witness had any enmity with the appellant. Under the circumstances, false implication of the appellant in such a serious case stands ruled