IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 706 of 1994 with CRIMINAL APPEAL No 936 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES 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? -------------------------------------------------------------- FARIDABHAI ISMAILBHAI MALEK Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 706 of 1994 MR DD VYAS for Appellant MR KP RAVAL, APP for Respondent - STATE 2. Criminal Appeal No. 936 of 1994 MR KP RAVAL, APP for Appellant -STATE MR SUNIL C PATEL for Respondent No. 1 NOTICE Served expired during the pendency of this appeal, Respondent No.2 -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE H.H.MEHTA Date of decision: 01/08/2003 C.A.V. JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) 1. These two appeals are arising from a common judgment, Ex.62 dated 30.06.1994 rendered by the learned Additional Sessions Judge, Valsad at Navsari ( who will be referred to hereinafter as the "learned Judge of the trial Court") in Sessions Case No.84 of 1992 and, therefore, with the consent of both the parties, these two appeals are heard together and decided by this common judgment. 2. The appellant, (who is an accused No.1 in Sessions Case No.84 of 1992) in Criminal Appeal No.706 of 1994 has, by filing his appeal under Section 374(2) of the Criminal Procedure Code, 1973 (for short "Cr.P.C.") challenged the correctness, legality and validity of the aforesaid judgment, Ex.62 dated 30.06.1994, by which the appellant has been convicted for an offence punishable under Section 302 of the Indian Penal Code, 1860 (for short "I.P.C.") and is sentenced to undergo life imprisonment. 3. By the aforesaid judgment, the learned Judge of the trial Court acquitted accused Nos.2 and 3 for an offence punishable under Section 302 read with Section 114 of I.P.C. and, therefore, the State Government has challenged the said judgment, Ex.62 of acquittal rendered by the learned Judge of the trial Court, in favour of accused Nos.2 and 3 by filing its appeal being Criminal Appeal No.936 of 1994 under Section 378 of Cr.P.C. 4. The facts of the present case which emerge from the evidence on record, can be summarized as follows :- 4.1 On or about 09.06.1992, P.W.5, Rameshbhai Bhikhubhai and his younger brother Prakashbhai Bhikhubhai (deceased), both were returning from the Talkies on foot, and when they were about to reach near the house of accused No.3 Babubhai Dayalbhai Patel, they saw accused No.1 Faridbhai Ismailbhai Malek and accused No.2 Salimbhai Rasidbhai Shaikh, standing on the Ota of the house of said accused No.3 (for the sake of convenience and brevity, the accused Nos.1, 2 and 3, will be referred to hereinafter as "A-1, A-2 and A-3," respectively). 4.2 P.W.5 Rameshbhai and Prakashbhai (deceased), while returning from the Talkies, were talking with each other. On seeing P.W.5 Rameshbhai and Prakashbhai (deceased) talking with each other, A-1 asked them as to for whom they were talking and meanwhile, A-3 had caught hold of Prakashbhai (deceased) and A-2 had caught hold of P.W.5 Rameshbhai and A-1 had inflicted two blows of knife on the body of the Prakashbhai (deceased). Out of two blows, one blow was landed on the abdominal part of Prakashbhai (deceased) and second blow was landed on his chest, as a result of which, Prakashbhai (deceased) under giddiness had fallen down on the road. At that time, P.W.5 Rameshbhai raised crises for the help, and the A-1 and A-2 ran away from that place. 4.3 It is the case of the prosecution that P.W.4 Chetanbhai Ashokbhai, who is a son of real sister of P.W.5 Rameshbhai and Prakashbhai (deceased), was passing from, nearby the house of the A-3. During the period in between 9.00 P.M. to 9.15 P.M., he saw that the accused No.3 had caught hold of his maternal uncle Prakashbhai (deceased) and the A-1 had inflicted one blow of knife on the body of his maternal uncle Prakashbhai (deceased). When, A-1 was about to inflict second blow of the knife, P.W.4 Chetanbhai went running to his mother's mother, P.W.1 Somiben Bhikhubhai. As per the say of P.W.4 Chetanbhai, his maternal uncle Prakashbhai (deceased) was not alone at the place of incident, but his another maternal uncle Ramesbhai was also with him and A-2 had caught hold of his maternal uncle P.W.5 Rameshbhai. 4.4 As per the evidence of P.W.1 Somiben Bhikhubhai, the incident took place before two years, on date 9th (Tuesday) at about 8.45 P.M. to 9.00 P.M. At that time, she was present in her house. P.W.4 Chetanbhai (son of Padmaben) came running to her and informed her "mother, Prakash Mama is being beaten". On hearing this news, she went running to the house of A-3, which is situated behind the third house from her house and on reaching the house of A-3, she saw that her son Prakash was lying near the door of the house of A-3. At that time, at about 5-6 persons had gathered there, but she could not identify them. She saw that abdominal part of Prakash (deceased) had sustained injury from which there was bleeding. She also saw that Prakash (deceased) was not speaking. According to her, Prakash (deceased) had gone to Talkies in company of her another son P.W.5 Ramesh. On reaching the place of incident, she also found that her son Ramesh was standing nearby Prakash (deceased) and, therefore, she asked him, as to who had beaten Prakash. P.W.5 Ramesh told his mother that Prakash was beaten by Farid (A-1) and Salim (A-2) and that A-3 had caught hold of Prakash and A-1 had inflicted blows of knife. She did not find presence of the A-1 and A-2, at the said place. According to her deposition, she straightway went to Bilimora Police Station. On or about 09.06.1992, P.W.8 Senior P.S.I. Dilipkumar Mohabbatsing Brahmbhatt was on duty in Bilimora Police Station and at night hours, police informed him that one Prakash Bhikhubhai had sustained injuries by knife in area known as "Khada" in Bilimora Town and, therefore, he went to Police Station and collected information from the P.S.O. As per the evidence of P.W.8 Sr. P.S.I., Brahmbhatt, when he was on duty, at that time, complainant Somiben was present in the Police Station and she lodged her complaint by giving names of assailants as Farid and Salim, without giving names of their fathers in her complaint. P.W.8 Sr. P.S.I, Brahmbhatt took down her complaint and sent that complaint to the P.S.O. of Bilimora Police Station for registration. P.S.O. registered that complaint, which came to be registered as C.R.No.I-86/92 for the offences punishable under Sections 307 and 305 of I.P.C. and also Section 135 of the Bombay Police Act, 1951. After the complaint of Somiben was registered, he undertook the police investigation of the said case. 4.5 From the evidence of P.W.5 Ramesh, it reveals that his sister and he took injured Prakash (deceased) in Rickshaw and brought him to Mangusi General Hospital, Bilimora at about 9.30 P.M. P.W.7 Dr.Prabhubhai Ramjibhai Tandel, who was a Chief Medical Officer of the said Mangusi General Hospital Bilimora has deposed that on or about 09.06.1992 at about 9.30 P.M., Prakash (deceased) was admitted in their Hospital for treatment. He, immediately, informed Bilimora Police Station by sending one Yadi. He had examined Prakash (deceased), and immediately started to give him medical treatment. He performed an operation of abdominal part of Prakash, and the portion of liver which sustained injury was sutured by him. That patient Prakash expired in the Hospital at about 01.35 A.M. [night] in between 09.06.1992 and 10.06.1992. As Prakash expired, he again sent one Yadi to Bilimora Police Station. 4.6 When P.W.8 P.S.I., Brahmbhatt came, after taking down the complaint of P.W.1 Somiben, he wrote one Yadi to Mangusi General Hospital, Bilimora for giving treatment to injured Prakash. He also sent one Yadi to the Executive Magistrate for recording a dying declaration of injured Prakash. He demanded a writing from the Doctor, as to whether injured Prakash was conscious and infit state of mind to give dying declaration. 4.7 Thereupon, Dr. Tandel gave one Yadi to P.W.8 P.S.I, Brahmbhatt, informed him that the patient was not conscious and that he was already taken in side operation theatre. As per the evidence of P.W.8 Sr. P.S.I. Brahmbhatt in the night in between 09.06.1992 and 10.06.1992, he inquired for the accused, but they could not be traced out. Meanwhile, he received one Yadi from Dr. Tandel of Mangusi General Hospital, Bilimora that injured Prakash had expired at 1.35 A.M. in night in between 09.06.1992 and 10.06.1992, while he was under medical treatment. On receipt of the said Yadi, he got that information registered in the station diary and he informed his superior officer and sent one Yadi to the learned J.M.F.C., Gandevi to substitute Section 302 of I.P.C. in place of Section 307 of I.P.C. in F.I.R. In the early morning on 10.06.1992, he held an inquest of deceased Prakash by drawing an inquest panchnama in the presence of two panch witnesses during the period between 7.30 A.M. and 8.30 A.M. on 10.06.1992. Thereafter, he sent the deadbody of the deceased Prakash, along with necessary documents to that very Dr.Tandel, who had treated injured Prakash for autopsy. Thereafter, he went to the place of scene of offence and drew a panchnama of the scene of offence in the presence of two panch witnesses during the period between 7.30 A.M. and 8.30 A.M. on 10.06.1992. He attached and seized control earth, blood stained earth and blood stained pair of sleepers from the place of the scene of offence. Thereafter, he recorded statements of witnesses conversant with the facts of the case. In the evening, the accused could be traced out and, therefore, by drawing an arrest panchnama, he arrested the A-1 and A-2. While, A-1 was in the police custody, he had shown his willingness to show a weapon used in the crime and, therefore, by drawing a preliminary panchnama, first he, by taking A-1 in company of two panch witnesses went to the place shown by A-1 and A-1 traced out the weapon, which was concealed by him for which a panchnama under Section 27 of the Indian Evidence Act was drawn below earlier preliminary panchnama. Thereafter, he arrested A-3 and recorded the statements of other witnesses. On or about 08.08.1992, the police had sent incriminating articles, which were attached and seized under the panchnama to the Forensic Science Laboratory at Surat (for short "F.S.L.") for the purpose of examination and analysis. On or about 16.11.1992, on Yadi being received from police, P.W.2 Dineshchandra Mulshankar Pandya, (Ex.36) who was serving as Maintenance Surveyor in the City Survey Office at Bilimora, had gone to the place of incident, by taking with him a copy of panchnama and, thereafter, P.W.4 witness Chetan had shown him the place of incident and, thereafter, he drew a map of the scene of offence. On completion of police investigation, P.W.8 Sr. P.S.I., Brahmbhatt, filed a charge-sheet against all the three accused in the Court of the learned J.M.F.C., Gandevi on 26.08.1992. That charge-sheet came to be registered as Criminal Case No.1091 of 1992 The learned J.M.F.C., Gandevi by passing a committal order dated 21.09.1992 under Section 209 of Cr.P.C. committed the said case to the Court of Sessions, Valsad at Navsari. On or about 27.09.1992, on receipt of the case papers, that case came to be registered as Sessions Case No.84 of 1992 in the Court of Sessions, Valsad at Navsari. 5. On the basis of material on record, the learned Judge of the trial Court framed the charge Ex.1 on 09.07.1993. That charge was read over and explained to the accused. On recording their pleas, they pleaded not guilty to the charge and claimed to be tried. 6. In order to bring home the charge against the accused for which the charge Ex.1 was framed, the prosecution examined the following witnesses :- P.W.1 Somiben Bhikhubhai (complainant) Ex.33 P.W.2 Dineshchandra Mulshankar Pandya Ex.36 (Maintenance Surveyor, who prepared a Map of scene of offence) P.W.3 Chetanbhai Babubhai (Panch witness Ex.38 No.1) P.W.4 Chetanbhai Ashokbhai Ex.39 P.W.5 Rameshbhai Bhikhubhai Ex.44 P.W.6 Prakashbhai Amratlal (Panch witness Ex.45 No.2) P.W.7 Dr.Prabhubhai Ramjibhai Tandel Ex.48 P.W.8 Dilipkumar Mahobbatsing Brahmbhatt Ex.56 (P.S.I. Bilimora Police Station) 7. The prosecution has also produced and proved certain documents such as - 1. Pursuant to Court's order Prosecution produced three statements with a list. Ex.31 2. Map of scene of offence. Ex.37 3. Inquest panchnama Ex.40 4. Panchnama of seizure of clothes put Ex.41 on by the deceased and which were produced by Police Constable Bhaidas Ramdhar, B.No.1376. 5. Report of F.S.L. Ex.43 6. Injury certificate of deceased Prakash Ex.49 7. P.M. Notes. Ex.52 8. Complaint in support of their case Ex.57 against the accused. 8. After recording the evidence of the prosecution witnesses was over, the incriminating circumstances appearing against the appellants were brought to the notice of and explained to the appellants and whatever they replied to the questions put under Section 313 of Cr.P.C. were recorded below their respective pleas. All the accused have, practically, denied the case of the prosecution and their defence is of a general denial. A-1 has, in reply to the question No.12, replied to the effect that the prosecution witnesses were under wrong belief and doubt, that he was serving with A-3 and, therefore, he has been implicated in this case. He has further stated that at the time of incident, he was not present at the place of scene of offence and that he has been wrongly roped in the alleged incident. A-2, has in reply to question No.12, replied that he knows nothing about the alleged incident and that he was not present at the place, when the incident took place. He has further stated that A-1 is his brother and that the prosecution witnesses were under wrong impression and doubt that his brother A-1 was serving with A-3 and, therefore, he has been implicated in this case. A-3 has stated in his further statement that he is doing a business of liquor and that the complainant - Somiben and her sons are also doing the same business of liquor. He has further stated that the complainant - Somiben, deceased - Prakash and Ramesh are doing a business of liquor and, therefore, he has been, wrongly, implicated in this case. It is his defence that on the date of incident, he, Ranchhod, Ishvar, Munna and other persons were talking with each other in his house and in the meanwhile, he heard the cries from behind his house and, therefore, all they had gone there at the place from where they heard the cries and they saw that Prakash was lying on the ground and he was injured on his abdominal portion, from which there was bleeding. He has further stated that thereafter, he called Rickshaw and the relatives of Prakash (deceased) came there and they took Prakash (deceased) in Rickshaw to the Hospital. Thereafter, he went to his house and on the next day, he had attended funeral ceremony of Prakash. None of the accused has led his evidence in his defence and none of the accused examined himself as witness in his defence. None has produced any documentary evidence to substantiate his defence. Still, however, from the record, it appears that, A-1 and A-2 got produced certain documents with the list Ex.34 on their behalf, in the cross-examination of complainant Somiben. From the record, it also appears that on 06.04.1994, A-1 and A-2 produced certain documents with the list Ex.46 in their defence. The learned Judge of the trial Court, thereafter, heard the arguments of the learned advocates for both the parties and, thereafter, on making examination, scrutiny and appreciation of the evidence, came to a conclusion that on 09.06.1992, Prakash Bhikhubhai died homicidal death and further that, he died as a direct result of infliction of blows of knife made by A-1 and, therefore, he has given a finding that A-1 has committed an offence of murder punishable under Section 302 of I.P.C. The learned Judge of the trial Court has further come to a conclusion that the prosecution failed to prove the case against the A-2 and A-3 beyond reasonable doubt that they abetted A-1 in committing the murder of Prakash and, therefore, the learned Judge of the trial Court gave finding on the point No.3 in the negative. He also gave a finding that the prosecution failed to prove beyond reasonable doubt the case against all the accused for committing an offence punishable under Section 135 of Bombay Police Act for contravention of notification issued under Section 37(2) of the Bombay Police Act. On the basis of the aforesaid findings, the learned Judge of the trial Court, by rendering his judgment Ex.62 dated 30.06.1994 in aforesaid Sessions Case No.84 of 1992 convicted the accused No.1 for an offence punishable under Section 302 of I.P.C. for which he sentenced the accused No.1 to undergo life imprisonment. By the said judgment, he acquitted accused Nos.2 and 3 for an offence punishable under Section 302 read with Section 114 of I.P.C. Though he gave a finding on the point No.4 in the negative, with regard to an offence punishable under Section 135 of the Bombay Police Act, he has not passed any order of acquittal for that offence in favour of the accused. 9. Being aggrieved against and dissatisfied with the said judgment of conviction and sentence, so far as it relates to accused No.1 is concerned, the appellant / accused No.1 has filed Criminal Appeal No.706 of 1994. The State Government has, by filing Criminal Appeal No.936 of 1994 challenged the judgment of acquittal rendered in favour of accused Nos.2 and 3. 10. We have heard Mr.D.D.Vyas, learned senior advocate for the accused No.1 (Appellant of Criminal Appeal No.706 of 1994) and Mr.Sunil C. Patel, learned advocate (respondent No.1 of Criminal Appeal No.936 of 1994). From the record, it appears that notice of this appeal, after it was admitted was served upon accused No.3 (respondent No.2 of Criminal Appeal No.936 of 1994) and when that notice was served on accused No.3, he had stated that he would engage his private advocate for his defence in acquittal appeal filed by the State Government. From the record, it appears that no advocate has filed any Vakalatnama for the said accused No.3. On 22.07.2003, Mr.K.P.Raval, learned APP for the State, under instructions, has made a statement at the Bar that accused No.3 i.e. respondent No.2 of Criminal Appeal No.936 of 1994, has already died of heart-attack on 27.12.1996. Mr.K.P.Raval has tendered a letter of Senior Police Inspector of Bilimora Police Station dated 22.07.1993. It is taken on record. In view of this fact that accused No.3 has already expired during the pendency of this appeal, Criminal Appeal No.936 of 1994, so far as it is filed against the accused No.3 stands abated under Section 394 of Cr.P.C. In view of this, now Criminal Appeal No.936 of 1994 remains to be decided for respondent No.1 / accused No.2, only. 11. Mr.D.D.Vyas, learned senior advocate for the accused No.1 (Appellant of Criminal Appeal No.706 of 1994) and Mr.Sunil C. Patel, learned advocate for accused No.2 (respondent No.1 of Criminal Appeal No.936 of 1994) have taken us through the evidence in its entirety. Mr.K.P.Raval, learned APP for the State has taken us through the impugned judgment, which is challenged in these two appeals. 12. Mr.D.D.Vyas, learned senior advocate for the accused No.1 (Appellant of Criminal Appeal No.706 of 1994) has assailed the judgment on the following counts. [A] The learned Judge of the trial Court has not correctly appreciated evidence in its proper prospective. [B] The evidence of complainant - Somiben is quite contradictory to the evidence of P.W.5 Ramesh and that both these witnesses have tried to make improvement in their evidence in contradiction with the complaint of Somiben and police statements. [C] P.W.1 complainant - Somiben, P.W.4 Chetan and P.W.5 Ramesh are highly interested witnesses because they are closely related to the deceased Prakash and, therefore, in absence of any evidence of independent witnesses, the evidence of such interested witnesses should be discarded and if not that evidence should be scrutinized with care and caution. [D] The complainant - Somiben and her sons were doing the illegal business of liquor and so many cases were filed against them in the Court and, therefore, these witnesses are not respectable witnesses and, therefore, their evidence should not be accepted blindly. [E] As per the evidence of P.W.7 Dr.Tandel, after admitting injured Prakash in the Mangusi General Hospital, Bilimora, he had, by sending a Yadi Ex.50, informed Bilimora Police Station about the incident and it was received by P.S.O. of Bilimora Police Station at 21.45 hours. Mr.Vyas has argued that this Yadi Ex.50 is a First Information Report and in no case alleged complaint Ex.57 can be said to be F.I.R. He has further argued that looking to the evidence of P.W.8 Sr. P.S.I. Brahmbhatt, police had informed him that one Prakash Bhikhubhai was injured in area known as "Khada" in Bilimora town and, therefore, first he went to Bilimora Police Station and collected information from P.S.O. and at that time, he took a complaint Ex.57 from the complainant - Somiben, who was present in the Police Station. Mr.D.D.Vyas has argued that the complaint Ex.57 is not an F.I.R., but it is simply a police statement recorded under Sections 161, 162 of Cr.P.C. [F] Mr.Vyas has argued that in the complaint Ex.57, Somiben, at the earliest point of time, informed the police that on the date of incident, her two sons Ramesh and Prakash had gone for a walk in the evening and after preparing meals, she was waiting for them and meanwhile, one boy residing in her neighbourhood, came to her and informed her that Prakash (deceased) had sustained injury by infliction of blows of knife in the quarrel and, therefore, she rushed, in company of that boy, to the place, shown by that boy and she saw that her son Prakash (deceased) was lying on the ground and that he had sustained injuries on chest and abdominal part from which there was a bleeding. Mr.Vyas has argued that she did not know the name of the boy, who had come to her, when she lodged the complaint but she has changed her version in deposition by saying that Chetan son of her daughter Padmavati came to her and informed her about the alleged incident. Mr.Vyas has argued that looking to this major contradiction in nature of improvement, the evidence of complainant Somiben should be discarded. He has further argued that from the evidence of complainant Somiben, it appears that P.W.4 Chetan is a chance witness and, therefore, the evidence of P.W.4 Chetan should also be discarded. [G] Mr.Vyas has argued that so called eye witness P.W.5 Rameshbhai elder brother of the deceased Prakash is also not trustworthy and reliable witness, because his evidence is full of major contradictions and embellishment, which go to the root of case. In examination-in-chief, he did not state that at the time of incident, P.W.4 Chetan was seen by him. [H] It is the case of the prosecution that some knife was used as a weapon in the crime, while I.O. has given his evidence that at the instance of accused No.1, a weapon was traced out and that weapon is a dagger, which is described in Item No.8 in report Ex.43 of F.S.L. and thus, there is a major contradiction in weapon