CR.A/635/2000 1/21 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 635 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ======================================================= BECHARBHAI BHAGWANBHAI KAKADIA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MR BM MANGUKIYA for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, MR HARSHIT S TOLIA for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI CR.A/635/2000 2/21 JUDGMENT Date : 29/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1. This appeal under Section 374 of the Code of Criminal Procedure has been preferred by the present appellant-accused being aggrieved and dissatisfied by the judgment and order of conviction and sentence dated 09.06.2000 passed by the Learned Sessions Judge, Surat in Sessions Case No.322 of 1999 whereby he was sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default, to undergo three months R.I. for the charge under Section 302 of the Indian Penal Code. However, no separate sentence was imposed for the charge under Sections 324 and 326 of the Indian Penal Code. 2.0 The facts giving rise to this appeal move in a narrow compass. That, the appellant-accused is the brother-in-law of Shantilal and as the accused was not keeping properly his wife and mentally and physically harassing her, she left matrimonial home and started leaving in her parental home, which was not liked by the appellant-accused. Hence, on the day of incident i.e. on 17.08.1999 at about 7.30 p.m., when Shantilal was standing on Varachha CR.A/635/2000 3/21 JUDGMENT road, the appellant-accused came and sprinkled acid on the face of the victim from one jug, which caused grevious injuries and, thereafter, the accused ran away from the place of offence. Hence, Shantilal shouted for help saying 'bachao-bachao' and, hence, surrounding persons assembled there and took him to nearby hospital, wherein on examination, Shantilal (hereinafter referred to as “the victim) was declared dead by the doctor. 2.1 In the meantime, on the basis of the vardhi received by the Varachha Police Station, the P.S.O. went to Ashaktashram Hospital, recorded the complaint as given by the father of the victim and sent the same to Varachha Police Station for registration of the offence and on receiving the same, it has been registered as Varachha Police Station I- C.R.No.345/1999 for the offence under Sections 324 and 326 of the Indian Penal Code. However, since the victim succumbed to the injuries, Section 302 of the Indian Penal Code was added. 2.2 P.S.O. handed over the investigation to Investigating Officer, who kept report and FIR with investigation file. He called two panchas and prepared the inquest panchnama of the victim in the presence of panchas in the CR.A/635/2000 4/21 JUDGMENT hospital itself and, thereafter, filled Maranottar Form and also made arrangements to send the dead body for the purpose of postmortem. He also recorded the statements of various witnesses. 2.3 On 18.08.1999, he went to the scene of offence, drew panchnama of scene of offence in the presence of panchas, seized the muddmal as mentioned in the panchnama and sent the same to FSL. The appellant-accused was arrested on 20.08.1999 and arrest panchnama to that effect came to be drawn and sent him to judicial custody. On receiving the FSL report, injury certificate and postmortem report, same were kept with investigation file along with the postmortem report. 2.4 At the end of investigation, chargesheet came to be submitted before the Court of Learned C.J.M., Surat. As the offence alleged against the accused was exclusively triable by the Court of Sessions, same was committed to the Court of Sessions Court, Surat, which came to be numbered as Sessions Case No.322/1999 and transferred into the Court of Learned Sessions Judge, Surat for disposing of the same on merits. 3.0 On production of the accused, the learned Sessions Judge framed the charge against the CR.A/635/2000 5/21 JUDGMENT appellant-accused, wherein he pleaded not guilty and claimed to be tried. 3.1 To prove the charge against the appellant- accused, the prosecution examined in all 16 namely P.W.No.1 viz., Jayeshkumar Shantilal at Exh.8, P.W.No.2 viz., Dhansukhbhai Bhikhabhai at Exh.9, P.W.No.3 viz., Bhavnaben Becharbhai at Exh.10, P.W.No.4 viz., Dhanjibhai Meghjibhai at Exh.11, P.W.No.5 viz., Sharadbhai Panditrav at Exh.13, P.W.No.6 viz., Manjuben Dhansukhbhai at Exh.14, P.W.No.7 viz., Rameshchandra Jerambhai at Exh.16, P.W.No.8 viz., Bhikhabhai Kanjibhai at Exh.19, P.W.No.9 viz., Manjibhai Ghelahai at Exh.21, P.W.No.10 viz., Nileshkumar Shantilal at Exh.23, P.W.No.11 viz., Himmatbhai Dahyabhai at Exh.24, P.W.No.12 viz., Dr.Khimjibhai Vastabhai Savli at Exh.26, P.W.No.13 viz., Dr.Mahammad @ Ishak Mahammad Shekh at Exh.28, P.W.No.14 viz., Kanubhai Virjibhai at Exh.31, P.W.No.15 viz., Ranjitsinh Sadansinh at Exh.33 and P.W.No.16 viz., Madankumar Jayantilal at Exh.35. 3.2 The prosecution also placed reliance upon various documentary evidence, which was produced by the prosecution vide Exh.7 such as complaint at Exh.12, inquest panchnama at Exh.15, panchnama of scene of offence at CR.A/635/2000 6/21 JUDGMENT Exh.20, arrest panchnama of the accused at Exh.22, P.M. Note at Exh.29, cause of death certificate at Exh.30, FSL Report at Exh.32, report of the Investigating Officer at Exh.34. 3.3 On submission of the closing purshis by the Learned A.P.P. and after recording the further statements of the accused under Section 313 of the Criminal Procedure Code, the Learned Sessions Judge, Surat convicted the appellant-accused for having committed offence punishable under Sections 324, 326 and 302 of the Indian Penal Code and, therefore, he accordingly, passed the Judgment and Order of conviction and sentence as stated hereinabove. 4.0 Being aggrieved by the aforesaid Judgment and Order of conviction and sentence passed by the Learned Sessions Judge, the appellant- accused has preferred this appeal. 4.1 We have heard learned counsel, Mr.B.M. Mangukiya for the appellant-accused and learned Additional Public Prosecutor, Mr.H.L. Jani for the State. 4.2 It has been mainly argued by the learned counsel for the appellant, Mr.Mangukiya that the present appellant is innocent and has been falsely involved into the crime in question. CR.A/635/2000 7/21 JUDGMENT 4.3 It is also argued that the incident in question has taken place in a thickly populated area know as Varachha at 7:00 p.m. then also, the prosecution has not recorded the statements of any independent witnesses nor examined any independent witnesses and placed reliance upon the interested witnesses only. 4.4 It is also argued that even the witnesses, who have been examined by the prosecution, are not involved the accused with the crime in question. Even not a single witness has deposed that he or she has seen the appellant-accused throwing acid upon the victim. 4.5 It is argued that the alleged extra judicial confession and alleged oral dying declaration are not extra judicial confession and dying declaration, upon which, the Court can rely upon and convict the appellant-accused because it is not trustworthy. Even the presence of witnesses also creates doubt in the mind of all concerned. 4.6 It is argued that the prosecution has failed to establish the intention. In this regard, he has taken us through the injury received by the victim and the oral evidence of doctor, who has performed the postmortem and argued that the injuries are simple one, CR.A/635/2000 8/21 JUDGMENT which has caused while throwing acid, which reached into the ear of the victim and, therefore, the Court cannot come to a conclusion that it was the intention to kill the victim. 4.7 After taking us through the evidence of witnesses, it is argued that there are lot of contradictions, omission and improvement in the evidence of material witnesses and, therefore, benefit is required to be given to the appellant-accused. 5.0 Mr.H.L. Jani, learned Additional Public Prosecutor, who appears on behalf of the respondent-State has taken us through the oral evidence of the witnesses and the reasoning part of the impugned judgment and order delivered by the learned Sessions Judge and argued that the prosecution has able to prove the case against the appellant-accused beyond reasonable doubt. 5.1 It is also submitted that the witnesses, who have been examined by the prosecution, are natural one and their presence at the time of incident is also natural one as out of three witnesses, one is having residence as also shop infront of the scene of offence and other two witnesses are having their lawry of snacks and, therefore, it cannot be said that either they are chance witnesses or they were CR.A/635/2000 9/21 JUDGMENT not present at the time of incident or they have not seen the offence. 5.2 Mr.Jani has also taken us through the evidence of witnesses in detailed and submitted that witnesses are knowing the victim as well as the appellant-accused since long and the incident has taken place in broad day light at 7:00 p.m. and prior to that, discussion had taken place between the victim and the appellant-accused and Sharad (P.W.No.5, Exh.13), who was also standing very near to the victim along with one labour also noticed about the incident when the victim shouted for help and, therefore, obviously, he can be said to be a witness of incident. 5.3 It is further submitted that two witnesses, who were having their lawry of snacks and both these witnesses have drawn their attention towards the incident as the victim shouted for help and rushed towards the place of offence and, therefore, according to him, the evidence of above referred witnesses are trustworthy and free from all doubt. 5.4 He has also taken us through the evidence of doctor, who has performed the postmortem as well as doctor, who has treated the victim initially and argued that at the place of offence, the appellant-accused came along CR.A/635/2000 10/21 JUDGMENT with jug of acid in his hand, waited there and when the victim came there, initially altercation took place between them and, thereafter, accused threw acid on the face of the victim, which reached into the ear of the victim and caused death of the victim. Thus, the intention of the appellant-accused was established that the appellant-accused wanted to kill the victim. 5.5 Mr.Jani has also drawn our attention that when the appellant-accused was released on furlough, he also involved himself in the serious offence under Sections 307, 324 and 506(2) of the Indian Penal Code, which is pending before the Court of law. 5.6 According to Mr.Jani, the present appellant- accused is a habitual offender and the prosecution has proved the guilt against the appellant-accused beyond reasonable doubt. 5.7 Mr.Jani has, therefore, urged that the learned Sessions Judge was perfectly justified in coming to the conclusion that the appellant-accused has committed the crime. Raising the abovesaid contentions, Mr.Jani has urged that the present appeal deserves to be dismissed. 6.0 We have gone through the oral as well as documentary evidence and the reasoned judgment delivered by the Court below shown CR.A/635/2000 11/21 JUDGMENT to us by the learned counsel for the respective parties. 6.1 It is required to be noted that for the purpose of deciding the appeal, following witnesses are the important one namely P.W.No.1 viz., Jayeshkumar Shantilal at Exh.8, P.W.No.2 viz., Dhansukhbhai Bhikhabhai at Exh.9, P.W.No.5 viz., Sharadbhai Panditrav at Exh.13 and P.W.No.10 viz., Nileshkumar Shantilal at Exh.23. 6.2 Above referred witnesses are the witnesses of incident. Out of them, P.W.No.1 viz., Jayeshkumar Shantilal has not supported the say of the prosecution and has been declared hostile. However, during his cross- examination, he has admitted that he has narrated the oral dying declaration of the victim in his Police statement. He also identified the accused before the Court as also muddamal plastic jar (jug), which was in the hands of the accused at the time of incident. In his cross-examination, he has also admitted that he is running lawry of snacks at the place of scene of offence since 1996. He has also admitted that Dhansukhbhai is also having residence as well as business place very near to scene of offence. He has also admitted in his cross-examination that acid was lying on the road and, therefore, he CR.A/635/2000 12/21 JUDGMENT believed that it was acid. He has also admitted that when the victim shouted for help, he drew his attention towards him. He has also admitted that prior to incident, he has seen the victim as well as appellant- accused talking with each other. He has also denied the fact that at the time of incident, there was dark and also denied the suggestion that he has not seen the offence and he is falsely involved the accused in the crime in question and also denied that as the accused has been shown today, he is able to identify. 6.3 Another important witness is P.W.No.2 viz., Dhansukhbhai Bhikhabhai. According to prosecution, he is the star witness. He has categorically deposed before the Court that he knows the victim because prior to two years, he has given contract of his building to victim and one Mr.Sharadbhai. He has also deposed that at the time of incident at about 7 p.m., when the victim was passing through his shop for going to his house, the appellant-accused was standing and, thereafter, both were discussing and during that process, the appellant-accused threw acid upon the victim and, therefore, the victim shouted for help and rushed towards him. At that time, he has seen the accused running from the scene of offence. He has CR.A/635/2000 13/21 JUDGMENT further deposed that he took the victim to hospital and during that process, on inquiry being made from the victim, the victim replied that my brother-in-law threw acid upon me and escaped from the scene of offence. He has further deposed that first he took victim to nearby doctor, but doctor advised him to take victim to Ashaktashram hospital and, therefore, he took him there. He also informed the father-in-law of the victim regarding the incident in question. He has also deposed that after throwing acid upon the victim, the accused has escaped from the place of offence leaving jug there itself. This witness identified the accused as also the muddamal before the Court. 6.4 In his cross-examination, this witness deposed that he has given contract to the victim. However, he denied the suggestion that the victim was the relative of this witness and is from the same village of this witness. Certain questions were asked to this witness regarding the tree and tried to establish that because of said tree, he could not see the incident, however, he denied the same. He has also admitted that in this Police statement, he has not deposed that the distance between the place of offence and his shop is about 30-40 ft. He has also admitted CR.A/635/2000 14/21 JUDGMENT that the victim was having pain and, therefore, he was not in a position to speak properly. He was throughly cross-examined by the learned counsel for the appellant-accused before the Court below, but nothing contrary has come on record, which turtle his evidence. 6.5 Another witness is P.W.No.3 viz., Bhavnaben Becharbhai, who is wife of the appellant- accused and sister of the victim. This witness deposed in her deposition that the appellant-accused came and made extra judicial confession that he has killed the victim. However, said fact has not been stated by her in her Police statement. So, there is material contradictions. Except that, her evidence is not relevant for the purpose of deciding this appeal, but she is not the witness of incident but wife of the appellant-accused. 6.6 Simultaneously, P.W.No.6 viz., Manjuben Dhansukhbhai has deposed said fact as stated by Bhavnaben, but she has not stated said fact in her Police statement. Thus, both these witnesses are required to be excluded to consider their evidence of extra judicial confession. 6.7 P.W.No.4, Dhanjibhai Meghjibhai, who is father-in-law of the victim, has deposed that CR.A/635/2000 15/21 JUDGMENT he has not seen the incident, but he came to know about the incident when he was informed on telephone by P.W.No.2, Dhansukhbhai, wherein it was stated that Becharbhai threw acid upon Shantilal and said Dhansukhbhai has taken victim to Ashaktashram Hospital. In pursuance of that, this witness went to Ashaktashram Hospital, where he filed complaint, Exh.12. In short, he is not the witness of incident. 6.8 P.W.No.5 viz., Sharadbhai Panditrav, who is partner of the victim, has deposed that both were doing construction work in partnership. This witness stated that at the time of incident, he was standing near to victim and talking with labour, however, the appellant- accused and victim were talking with each other. In the meantime, he heard shout from victim that Dhanabhai, Dhanabhai save me and rushed towards this witness and told that my brother-in-law threw acid upon me and, thereafter, victim tried to remove his shirt and, thereafter, this witness took the victim to nearby hospital and, thereafter, to Ashaktrashram Hospital. In the meantime, on inquiry being made from the victim, the victim told that my brother-in-law has sprinkled kerosene upon me. In cross- examination of this witness, this witness CR.A/635/2000 16/21 JUDGMENT deposed that the victim was able to speak. He denied that after injury, the victim was not in a position to speak. He also narrated the incident in detailed, but nothing contrary has come on record, which turtle his evidence. 7.0 Thus, for the purpose of deciding the incident in question, more particularly, the presence and act of the appellant-accused, the prosecution has examined above referred witnesses and it is established from the above referred evidence in toto that the incident in question has taken place at about 7:30 p.m. just opposite to the shop of Dhanshukhbhai and at the time of incident, the victim was discussing with his brother- in-law (appellant-accused) and he was standing with witness, Sharad. At that time, the accused threw acid upon the face of the victim and as a result of that, he shouted for help and rushed towards Dhanabhai shouting 'bachao-bachao' and after hearing shout, Dhanabhai, Sharad and Nilesh noticed towards that direction. Except P.W.No.1, Jayeshkumar Shantilal, all have supported the say of the prosecution regarding the incident in question and thing which has taken place, prior to incident i.e. discussion and all have identified the accused at that time of CR.A/635/2000 17/21 JUDGMENT incident as also in the Court also. 7.1 Dhanabhai and Sharad have categorically deposed that they were knowing the appellant- accused as well as victim by name. They also deposed that after throwing acid, the victim was rushing towards them and accused was trying to escape from the scene of offence and even the witnesses have also seen the total incident and they have deposed in toto. Not only that, the witnesses have also denied that it was dark time and as all persons are knowing each other and prior to alleged incident, discussion had taken place and, therefore, question of misidentification may not be arisen at all. According to us, Dhanabhai, Jayesh and Nilesh are not chance witnesses, but they are doing their work at the place of offence since long and are also having shop and residence very near to scene of offence and, therefore, they cannot be said to be chances witnesses or it cannot be said that they are interested witnesses. As stated by Dhansukhbhai, they gathered there as he has given construction work of his building to victim and, hence, their presence at the place of offence is natural one. 7.2 Over and above, at the earliest opportunity, the complaint has been filed by the complainant into the hospital itself and, CR.A/635/2000 18/21 JUDGMENT therefore, the contention raised by the learned counsel for the appellant-accused that there was delay in filing the FIR is not required to be accepted because the prime duty was to provide treatment to the victim and, therefore, they took the victim to nearby hospital and, thereafter, to Ashaktashram Hospital, wherein the doctors gave treatment and, thereafter, the complaint has been filed and that too also, at about 12:00 p.m. i.e. 3 hours prior to the death of the victim, therefore, it cannot be said that there was delay in filing the FIR. 8.0 As far as homicidal death is concerned, the prosecution has examined two medical officers namely P.W.No.13 viz., Dr.Mahammad @ Ishak Mahammad Shaikh at Exh.28 and P.W.No.14, Kanubhai Virjibhai, Exh.14. 8.1 P.W.No.13 viz., Dr.Mahammad @ Ishak Mahammad Shekh at Exh.28, who has performed the postmortem of the victim along with other two doctors. This witness has categorically deposed that on 18.08.1999, he has performed the postmortem of the victim in panel along with Dr.Dutt and Dr.Agrawal. He has further deposed that he has noted the following external injuries on the body of the victim:- “Chemical burn injuries over left side of the fac, left ear, anterior posterior aspect of neck, medial CR.A/635/2000 19/21 JUDGMENT aspect of left arm and elbow, back of the left forearm, upper part of chest on anterior aspect anterior lateral aspect of right arm, posterior aspect of chest including upper part of back at places triculing present from above downwards, on arms and chest, blisters present at places on anterior and posterior aspects, containing fluids with reddening of margin.” 8.2 This witness also deposed that all the injuries are ante-mortem in nature. 8.3 So far as internal examination is concerned, he has stated that the brain was congested, lungs were congested. There was no contusion found and blue colour liquid 50 ml. was found in the stomach. All the organs were congested. Skin and viscera were sent for chemical investigation and heart, pieces of kidney, lungs etc. were sent for histo- pathological investigation. 8.4 This witness deposed that the cause of death was required to be kept pending as the report of histopathology and chemical analysis was required for the same. 8.5 P.W.No.14, Kanubhai Virjibhai, Exh.14 has proved report, Exh.32. This witness deposed that after the chemical analysation and physical, chemical and chromatographic examination, he found H Iron in some of the muddamals sent to FSL, and in some of the CR.A/635/2000 20/21 JUDGMENT muddamals, he found presence of Hydrochloric acid. 8.6 From the evidence of above referred witnesses, the Court below has come to a conclusion that the victim has died due to Hydrochloric acid poisoning. 8.7 Thus, from the above referred two witnesses, the prosecution has proved that the death of the victim is homicidal. Over and above, once it has been established that it is a case of homicidal, wherein the role of the present appellant-accused has been clearly established that he is the persons, who has thrown the acid upon the vital part of the body of the victim and as a result of that, he succumbed to the injuries and the prosecution has able to prove the role of the appellant-accused in toto along with the cause of death. 9.0 In view of the above discussion, we are of the opinion that the findings recorded by the Court below are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by the Court below. We are in complete agreement with the findings, ultimate conclusion and the resultant order recorded by the Court below and hence, find no reasons to interfere with the same. CR.A/635/2000 21/21 JUDGMENT 9.1 The appeal is dismissed. 9.2 Office is directed to send back the Records & Proceedings to the trial Court concerned forthwith. Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil