IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 856 of 1995 For Approval and Signature: HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 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? -------------------------------------------------------------- MANGABHAI KAGDIYABHAI RATHVA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 856 of 1995 MRS SHILPA J UNWALLA for Petitioner No. 1 & 2 None present for for Petitioner No. 3-4 Mr K C Shah, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 22/01/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE D.P.BUCH) The appellants-original accused in Sessions Case No.21/94 have preferred this appeal under sub-section (2) of section 374 of the Criminal Procedure Code, 1973 (for short, 'the Code') in order to challenge the judgment and conviction order dated 21.7.1995 recorded by the learned Addl.Sessions Judge, Vadodara, Camp at Chhota Udepur, in the aforesaid sessions case convicting the present appellants for an offence punishable under section 302 of IPC and sentencing them to suffer imprisonment for life. 2. The appellants were also convicted for an offence punishable under section 326 read with section 34 of IPC and they have been sentenced to suffer R.I. for one year for the said offence. The appellants have been further convicted for an offence punishable under section 37 (1) read with section 135 of the Bombay Police Act and they have been sentenced to suffer S.I. for four months. However, no fine has been imposed on the appellants. The facts of the case of the prosecution against the appellants may be briefly stated as follows: 3. The present incident took place on 30.8.1993 at 17.00 hours at village Bhuriakuva. As per the case of the prosecution, the father of the complainant had purchased a piece of land from the predecessor-in-title of the appellants before about 20 years. On account of the said transaction of sale and purchase, there was some dispute between the family of the complainant and the family of the appellants regarding ownership and possession in respect of the said land. It has come on record that even Chapter cases were filed against both the groups. 4. So far as the present incident is concerned, as per the case of the prosecution, the informant-eye witness - injured and his brother - deceased Bachhubhai Karsanbhai Rathwa, both had gone to village Kwant for sale of their bullocks. It is not much in dispute that local markets are arranged on Mondays at village Kwant and people go there for sale and purchase of goods, materials etc. Accordingly, the deceased and the informant, both being real brothers, had gone to village Kwant on 30.8.1993. However, the bullocks could not be sold and, therefore, they were on their way back to their village Sedivasan. At the time when they reached Bhuriakuva village at about 5 p.m., according to the case of the prosecution, the present appellants were found hiding themselves in the surrounding area. When the two brothers were passing on the road, the appellants came out and started assaulting both of them. Out of them, the first appellant had axe with him, the second and the third appellant had dharia with them and the fourth appellant had a stick with iron ring with him at the relevant point of time. Incidentally, it may be noted that appellants no.1, 2 and 3 are the real brothers and appellant no.4 is their father. 5. The prosecution has also alleged that injured Khimlabhai Karsanbhai was beaten by the appellants and thereafter the appellants have committed assault on deceased Bachhubhai Rathwa being the brother of the informant and the deceased was done to death and he died on the spot. On hearing the shouts the persons in the neighbourhood had run to the spot. Even the brothers of the injured and the deceased also had arrived there and after those persons had arrived there, the injured was taken to Kwant Primary Health Centre which is situated at about 7 k.m. distance. According to the prosecution, the injured eye witness had given his FIR report to the Police Sub-Inspector in the Kwant Primary Health Centre. The injured was examined and treated at the Kwant Primary Health Centre. Thereafter, it was noticed that his injuries were serious and, therefore, he was referred to a Hospital at Vadodara. 6. Deceased Bachhubhai Rathwa had received serious injuries on his person and, therefore, he died on the spot on account of the injuries sustained by him. 7. On receiving the FIR, the PSI proceeded to go to the Village of the informant. He recorded statements of witnesses at late night hours and he had drawn panchnama of the scene of offence on the next morning. It seems that the appellants presented themselves before the police station and they were arrested by the concerned police station and were brought to Kwant police station. Houses of the appellants were searched and muddamal articles were seized from the said house. After recording statements of witnesses and drawing panchnama about the inquest and scene of offence, the muddamal was recovered and report from the FSL was obtained. When the investigation was over, charge sheet was submitted before the Court concerned. Since the offence punishable under section 302 of IPC was exclusively triable by the Court of Sessions, the learned Magistrate had committed the case to the Court of Sessions where it was registered as Sessions Case No.21/94. The learned Addl.Sessions Judge, camping at Chhota Udepur, provided copies of police investigation papers to the appellants. Charge was framed at Exh.3 which was read over and explained to the present appellants. The appellants pleaded not guilty to the said charge and, therefore, evidence was recorded. In support of the aforesaid case, the prosecution has examined the following witnesses: ----------------------------------------------------------- 1. PW 1 Himlabhai Karsanbhai Exh.9 2. PW 2 Vestabhai Bijalbhai Exh.12 3. PW 3 Bhimsinghbhai Karsan Exh.13 4. PW 4 Rimjibhai Gardibhai Exh.14 5. PW 5 Nasliben Bachhubhai Exh.15 6. PW 6 Kaliabhai Jagadbhai Exh.16 7. PW 7 Karsanbhai Exh.17 8. PW 8 Dr. Ranjit Chaudhary Exh.18 of Kwant Primary Health Centre 9. PW 9 Dr.Naranbhai Parmar Exh.22 of Vadodara Hospital 10. PW 10 Karsanbhai Motibhai Exh.24 11. PW 11 Karsanbhai Dalubhai Exh.33 12. PW 12 Panch Natubhai Jaimalbhai Exh.35 (hostile) 13. PW 13 Narsibhai Motibhai, co-panch Exh.37 (hostile) 14. PW 14 Panch, Chamadabhai (hostile) Exh.38 15. PW 15 Panch, Kanabhai Nayak " Exh.40 16. PW 16 Panch, Tersinghbhai " Exh.42 17. PW 17 PSI, Mansukhbhai Talpada, Inv.Police Officer Exh.44 ------------------------------------------------------ The prosecution have also relied upon certain documents which may be enlisted as follows: 1. Exh. 20 Injury certificate of injured Khimlabhai 2. Exh. 21 Postmortem note in respect of deceased 3. Exh. 23 Injury certificate of Khimlabhai issued by Vadodara Hospital 4. Exh.25 Inquest panchnama 5. Exh.26 Production of clothes of deceased 6. Exh.27 Letter to FSL 7. Exh.24 FSL to PSI - Report 8. Exh.30 Village Form No. 7 and 12 9. Exh.31 Village form No.6 - record of right 10.Exh.32 Map of scene of offence 11.Exh.34 Panchnama of scene of offence 12.Exh.36 Panchnama regarding search of house of appellants 13.Exh.39 Arrest panchnama of Jafaria and Mangabhai, clothes - blood stained, dharia 14.Exh.41 Arrest panchnama other two appellants 15.Exh.45 FIR 16.Exh.46 Police station dairy entry. On appreciation of the evidence as aforesaid, the trial court was pleased to find the present appellant guilty for offence punishable under section 302 and 326 read with section 34 of IPC and section 37 (1) read with section 135 of the Bombay Police Act. The trial court, therefore, imposed punishment on the appellants. The said judgment and conviction order has been challenged in this appeal by the appellants. 8. In view of the above position, it would be appropriate for us to consider evidence of PW 1 - Exh.9, Khimlabhai. Evidence of this witness is not only relevant but important and material in light of the fact that the other eye witness - Karsanbhai Karpabhai has not been believed by the trial court and, therefore, informant Khimlabhai is the only witness to the incident and, therefore, his evidence is required to be considered in its proper perspectives. 9. Before we go to the appreciation of evidence of this witness, it is required to be considered that as per the say of the informant and other witnesses, there was some dispute between the appellants and the family of the informant Khimlabhai. It seems that the father of the informant had purchased a land from the predecessor-in-title of the appellants before 20 to 30 years and since then the said dispute has been going on between the two groups. There is no serious dispute about the same. 10. It is also required to be considered that even the Investigating Police Officer, PSI Mansukhbhai Talpada has also stated during the course of his evidence that there was a dispute between two groups and chapter cases were filed against both the groups. This further shows that there was a dispute about the land between the two groups. 11. It is also required to be considered that the informant has deposed at Exh.9 that in respect of the land in question, there was some quarrel between the Sarpanch of the village and the police patel of the village on the one hand and the appellants on the other hand. He has also deposed in para 16 of his evidence that the Sarpanch and the police patel both had beaten the present appellants and that they were required to be hospitalised for 10 days and there was a police complaint with respect to the said event also. This shows that even before the occurrence of the present event there was active quarrel between the two groups and it has resulted in hospitalisation of the appellants for a period not less than 10 days. 12. It is also required to be considered that in the said event, the present informant and the deceased were not involved but the involvement was that of the Sarpanch and the police patel. This would clearly show that the sarpanch and the police patel both had some interest in the land in dispute or some interest in favour of the informant or they may have some interest against the present appellants. Any way, the evidence of the informant in para 16 clearly indicates that the Sarpanch and the police patel had quarrelled with the present appellants and the root cause of the said quarrel was the land which is also said to be the root cause of the occurrence of the present event in which the informant and the brother were allegedly beaten by the appellants. 13. In the above background, we may consider the evidence of informant Khimlabhai Exh.9. He has stated in his evidence that on the date of the incident, he and the deceased both had gone to village Kwant for then sale of their bullocks. That they could not sell them out and, therefore, they were on their way back to their village. That when they reached near Bhuriakuva village, it was about 5 p.m. That the appellants were hiding themselves and they were waiting for the informant and his brother to come there. That as soon as they reached the said spot, the appellants had assaulted both of them. It is also his case that the first appellant had axe with him. The second and third appellant had dharia with them and the fourth appellant had a stick with iron ring, at the time when the incident took place. The informant has further contended in his evidence that he had received injury on his left shoulder as well as on his back. That dharia was inflicted on his left shoulder and stick was inflicted on his back. He has further stated that after he received the injury even the deceased was beaten and he was done to death. 14. So far as the injuries of the deceased are concerned the witness has deposed that the deceased has suffered injuries on his leg as well as on his back and on chest. That these injuries were caused by means of stick. He has further deposed that his brother had sustained axe blow on his leg and he had also sustained dharia blow on his leg. He has further deposed that by and large the injuries were caused to them by means of stick by the present appellants. 15. Then he has further stated that after the aforesaid incident, he had filed FIR and was treated in Kwant Primary Health Centre. Then he was cross examined on behalf of the appellants. There he has admitted that there are fields of so many persons around the place of the incident. Description has also been given and the witness has clearly deposed in his evidence that there are fields of Kalia Jogi, Magan Lalu, Dhanji Chandu, Shankar Pathalia, Kalia Chema, Karsan and others. This means that so many houses and fields are situated around the scene of the offence. He has also deposed that shouts were raised and on hearing the shouts many persons had rushed to the spot. However, we find that the witnesses who had gathered together on hearing the shouts have not been examined. 16. We can take it that the witnesses at some distance may not have seen the occurrence. Therefore, they may not be in a position to say that they had seen the appellants causing injuries to the informant and his brother. However, they could have said something about the presence of two injured persons and the presence of the appellants. At least they would have been in a position to say that they had seen the appellants running away from the place after the incident was over. However, those witnesses having their houses and fields around the scene of the offence, have not been examined. 17. Then it is required to be considered that according to the evidence of this informant in para 11 after the incident was over and after the appellants had run away from the spot, he had gone to the village and had approached the sarpanch Ranglabhai at his house. He has also deposed that he had told Ranglabhai that he was beaten and even the deceased was also beaten. The witness has further deposed that after conveying the said facts to the Sarpanch, both of them had gone to police patel Jatdabhai. That the aforesaid event was conveyed to the police patel also by him and there he had also told the said police patel that he was beaten and deceased Bachhubhai was also beaten. He has clarified that he had conveyed only these facts to the said witness. 18. This would mean that the informant had an opportunity to convey to these two persons as to what was actually the incident and who was the person involved in the aforesaid offence. In that event, the witness could have conveyed to these two witnesses, that he was beaten by the appellants and that the deceased was actually killed by these appellants. Surprisingly, this witness has not disclosed names of the appellants to these two persons. It is required to be considered that as said earlier the Sarpanch and the police patel both had beaten the appellants in a quarrel arisen from the aforesaid land which is said to have been purchased by the father of the injured. That shows the interest of Ranglabhai and Jatadbhai in respect of the quarrel over the aforesaid land. In that event, it was quite natural that the informant would convey the names of the appellants to these two witnesses. However, though the witnesses had two opportunities to convey the names of the appellants to the sarpanch and the police patel, the informant has not disclosed the names of the appellants to these two witnesses. No explanation has been tendered by the prosecution showing this sort of conduct of the informant. When an incident takes place and when the informant is said to be an eye witness and when he is also an injured and when he has seen his brother being killed by some persons and if he has opportunity to disclose the names of the assailants and if he does not avail this opportunity, the said factor is required to be considered in light of the background of the fact that there was some dispute between the appellant on one side and informant Ranglabhai and police patel Jatadbhai on the other side. 19. It is also required to be considered that when the informant conveyed the aforesaid facts to the Sarpanch and the police patel, the Sarpanch and the police patel, according to the evidence of this witness, told him that they would enquire about the aforesaid quarrel. Now, if the informant had actually conveyed to these two persons that the appellants had beaten both the brothers, then the Sarpanch and the police patel were not required to enquire or investigate into the matter. This would go to suggest that there was something wrong in the narration of the event either to the police in the FIR or to these two persons to whom the informant had orally conveyed as to how the incident took place. 20. It is required to be noted that the informant had filed FIR on the same date at 8.15 p.m. at the aforesaid Primary Health Centre before PSI. However, the aforesaid fact is totally absent in the said FIR. The prosecution has not further examined or re-examined or cross-examined the informant on the aforesaid aspect of the case. It is true that the aforesaid fact has come on record for the first time during the cross examination of the informant. When new facts have come on record during the cross examination of the informant, it was open to the prosecution and to the learned P.P. incharge of the prosecution to clarify the position. If the prosecution did not agree with the said fact then some questions could have been placed to the witnesses by way of re-examination. This has not been done. Therefore, the aforesaid evidence of this witness that he had conveyed the aforesaid event to the Sarpanch and police patel remained on record uncontroverted or without challenge. There is no reason to discard the said evidence in toto. The reason is that the sarpanch and the police patel had some interest in favour of the informant and against the appellants. It also appears that these two persons have some interest in the land also and, therefore, it was quite natural that the informant would definitely convey that he and the deceased both were beaten by the appellants and yet the informant did not convey this fact to these two persons and this omission has not been explained either in the FIR or at any other place. Even by way of further examination or re-examination, the fact has not been clarified by the prosecution. This would make it clear that the informant had two earlier opportunities before filing the FIR to disclose the names of the appellants to the sarpanch and police patel who were the persons interested in his favour and yet the informant did not convey to them the names of the assailants. Therefore, when the names of the appellants as assailants have been disclosed for the first time in the FIR, then some sort of doubt will naturally be created in the credibility of this witness. 21. Then so far as police patel and Sarpanch are concerned, at the first point of time, the informant has deposed that they had not accompanied him to police station for filing FIR. Then he clarified that when the FIR was filed these two persons were present. Even the PSI has also deposed that he had seen the Sarpanch in the Primary Health Centre on 30.8.1993. This would further show that the Sarpanch was present when the informant was in the dispensary. Despite the said position, the statement of the Sarpanch has never been recorded by the PSI. It is also required to be considered that this Sarpanch was taken as panch in one of the panchnama by the PSI and he was not taken as a witness though the informant had conveyed something about the happening of the incident. It is further required to be considered that even houses of the appellants were searched by the PSI by keeping the Sarpanch present not as panch but as Sarpanch. On the one hand we have seen that the Sarpanch had some interest against the appellants and they were at criminal litigation also. In view of this, the PSI had no reason to keep the Sarpanch present when the house of the appellants were searched for finding out the weapons and clothes. Therefore, involvement of the Sarpanch during the course of investigation is also required to be considered in the above background. Even otherwise this Sarpanch was kept as a panch in one of the panchnama. That also shows the involvement of the Sarpanch in the investigation. 22. So far as the investigation is concerned, it is always expected from the Police Investigating Officer that the investigation is always honest and neutral. For having a neutral and honest investigation, the witnesses to be selected are also required to be honest and neutral. If there are interested eye witnesses, then I.O. cannot discard them but when some persons are required to be selected as panch witnesses, then the I.O. can take into consideration as to whether the person to be selected to be panch is really a neutral witness or not. In the present case we find that the Sarpanch was having adverse interest against the appellants. He was a criminal litigant therefore, it was not proper on the part of the PSI to take the Sarpanch as panch at one place and to keep the Sarpanch at the time when the search of the house of the appellants was taken. This involvement of the Sarpanch during the course of investigation at the instance of the PSI also shows doubt on credibility of the investigation in question. Even otherwise, there is a conflict between the evidence of the informant and his FIR. The informant has stated in his FIR that he was taken first to Kwant Primary Health Centre whereas during the course of his cross examination the informant has deposed before the trial court that he first went to the sarpanch and then to the police patel and thereafter he was taken to Kwant Primary Health Centre. This shows that there is material improvement during the course of evidence of this witness. If that is not a contradiction, then at least it may be said that this material aspect has been omitted from his FIR. The fact that the statement of the Sarpanch and the police patel have not been recorded also indicates that the PSI has chosen to keep the Sarpanch present at a couple of occasion in the course of investigation. On the other hand, the PSI has kept away the police patel and the Sarpanch from the sphere of investigation by not recording their statements. Any way, there is a material improvement in the evidence of the informant and the said improvement actually goes and runs contrary to the facts stated in the FIR. 23. It is also required to be considered that at the first stage, the informant disclosed that the FIR was filed at Kwant police station whereas it has come on record that