IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 345 of 1985 WITH CRIMINAL APPEAL NO.346 of 1985 AND CRIMINAL APPEAL NO. 29 OF 1985 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE R.R.JAIN ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- STATE OF GUJARAT Versus IQBAL ALTAFHUESEIN G MALEK -------------------------------------------------------------- Appearance: CRIMINAL APPEAL NO. 345/85 MR S.R. DIVETIA, ADDL. PUBLIC PROSECUTOR FOR THE APPELLANT MR KJ SHETHNA for Respondent No. 1 Appeal abate against respondent No.2 MR JM PANCHAL for Respondent No. 3 to 5 CRIMINAL APPEAL NO. 346/85 MR S.R. DIVETIA, ADDL. PUBLIC PROSECUTOR FOR THE APPELLANT. Appeal abates against respondent No.1 MR J.M. PANCHAL, Advocate for the respondent No.2 CRIMINAL APPEAL NO.29/85 MR K.J. SHETHNA, Advocate for the appellants. MR S.R. DIVETIA, ADDL. PUBLIC PROSECUTOR FOR RESPONDENT -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE R.R.JAIN Date of decision: 07/11/96 ORAL JUDGEMENT (Per R.K.Abichandani,J.) All these appeals arise from the same decision of the Additional Sessions Judge, Kheda at Nadiad in Sessions Case No. 122 of 1984 and have been heard together and are being disposed of by this common judgement. 2. Criminal Appeal No. 345/85 filed by the State is directed against the acquittal of all the four accused persons for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The other State Appeal No. 346/85 is filed against the acquittal of the accused Nos. 2 and 4 for the offence under Section 326 of the IPC. Criminal Appeal No. 29/85 is filed by the accused No.1 and accused No.3 who were convicted for the offence punishable under Section 326 of the IPC. 3. The prosecution case was that there was a tenancy litigation between the accused No.2 - Fatemiya Yasinmiya Pathan and the deceased Nanumiya Dasotmiya and therefore, the relations between the two sides were strained. Nanumiya Dasotmiya and his brothers were staying in the outskirts of village Finav while the accused persons were residents of the nearby village Mahudha. According to the prosecution, on 17.5.1984 around 3.30 P.M, the accused Nos. 1, 2 and 3 each armed with Dharia and the accused No.4 with a stick were waiting for Nanumiya Dasotmiya to pass from the place of the offence, which is near the `Chotra' located in the outskirts of Finav, and, when Nanumiya Dasotmiya came there on his horse, all these accused forced him to get down and attacked him with their weapons inflicting serious injuries on him as a result of which he died on the same day around 8.15 PM. According to the the prosecution, all these accused persons fled away from the scene of the offence after injuring Nanumiya Dasotmiya, but Nanumiya who had fallen down due to the assault was in his senses and he immediately disclosed the names of all these four persons as the assailants. The prosecution case is that Nabimiya the eldest brother of Nanumiya and their other brother Hasammiya had witnessed the incident. Kasammiya who is also their brother had arrived just after the incident and he had asked from Nanumiya about the assailants. On coming to know their names, he filed the complaint after reaching Mahudha. The injured Nanumiya was taken by his brothers to Mahudha in a hand-cart, which was brought from the village to the scene of the offence. For going to Mahudha, they had to pass through their own residence in the outskirts of Finav and on reaching Mahudha, the injured was admitted in the hopsital under a Police yadi. In Mahudha itself there is a Police Station where the FIR was lodged by Kasammiya. The Investigating Officer, after the FIR was lodged, proceeded to the hospital and recorded the statement of Nanumiya who, according to the medical evidence, was concious and in his senses. The statement of Nanumiya was recorded in which he disclosed the names of all these four assailants. Initially the offence was registered under Section 307 of the IPC, but later on when Mahudha dispensary could not treat the injured Nanumiya because of his multiple injuries and he was sent to the Civil Hospital at Ahmedabad, he passed away within a few minutes after reaching the Civil Hospital, the offence under Section 302 read with Section 34 of the IPC was registered against all these accused persons. 4. All the accused were charged and tried for the offence punishable under Section 302, read with Section 34 of the IPC. The accused Nos. 1, 2 and 3 were also individually charged for the offence punishable under Section 326 of the IPC and the accused No.4 for the offence under Section 323 of the IPC. 5. The accused pleaded not guilty to the charges. They gave a written defence Ex.59 in which it was alleged that the accused No.2 - Fatemiya Yasinmiya Pathan had succeeded in the Revenue Tribunal in the appeal filed by him against Nanumiya Dasotmiya and his brothers in respect of the land bearing survey No. 781/1-B of village Bhumat, as a result of which the complainant, the deceased and their brothers had falsely implicated them. The defence version further says that the accused No.1 was falsely implicated because his name is Altafhusein Gulam Mohammed Malek and not Iqbal. It was stated that the accused No.1 has two brothers namely - Mustufa and Iqbal and that Iqbal was an agriculturist residing in Mahudha and that the accused was producing necessary documents in that regard. It may be noted that when the list of original documents was produced no original document was placed on record for showing that there was some other person named Iqbal who is brother of the accused No.1. The prosecution version is that accused No.1 Iqbal and Altafhusein Gulamhusein Malek are one and the same person and that though in his service record his name was shown as Altaf, he is widely known as Iqbal. The defence version further is that the accused No.4 was also falsely implicated and that his real name was Gulamnabi Mohammed and not Gulam Husein. Though this defence is raised in the written defence Ex.59, not a single prosecution witness was confronted with this aspect and there is no suggestion made to any of them in the cross-examination on behalf of the accused No.4 that he was a different person having a different name. The further defence version was that the accused No.3 was related to the accused No.2 on his `in-laws' side and therefore, he was falsely implicated. The accused No.2 Fatemiya Yasinmiya Pathan also put up an alibi as his defence, contending that on the date of incident he was working as a driver in the Mahudha S.T. Depot and that he did not know anything about the incident. 6. At the outset it may be noted that as pointed out by the learned Counsel appearing for the accused No.2 Fatemiya Yasinmiya Pathan, Fatemiya has unfortunately passed away during the pendency of these appeals on 21st September, 1994. A death certificate is produced on the record of these appeals, which shows that Fatemiya, son of Yashimkhan Pathan of village Mahudha, passed away on 21st September, 1994. The learned Additional Public Prosecutor was asked to verify this fact and he also states that the accused No.2 - Fatemiya has passed away. The State appeals which are filed against the said accused No.2 Fatemiya therefore, abate. 7. The trial Court held that the death of Nanumiya was homicidal. It was however, held that the prosecution failed to prove that the accused had a common intention of murdering Nanumiya and in furtherance of that common intention the accused had given fatal blows with Dharias and stick with the intention of causing his death or such bodily injury as was sufficient in the ordinary course of nature to cause death. He therefore, acquitted all of them for the offence under Section 302 read with Section 34 of the IPC. The learned Addl. Sessions Judge found that the prosecution had proved that the accused Nos. 1 and 3 had caused grievous hurt to Nanumiya and had individually committed the offence punishable under Section 326 of the IPC. It was held that the charge of the offence under Section 326 of the IPC was not proved against accused Nos. 2 and 4. It was also held that the prosecution did not prove beyond reasonable doubt that the accused No.4 committed an offence punishable under Section 323 of the IPC. In the process of his reasoning, the learned Additional Sessions Judge observed that none of the injuries which were inflicted by Dharia on Nanumiya was on a vital organ and therefore, the accused cannot be attributed any intention to inflict injury which may in the ordinary course of nature, cause death. As regards the assault by stick, the learned Additional Sessions Judge observed that Nanumiya did not disclose assault by a stick while giving history to the doctor. The learned Additional Sessions Judge further observed that the injuries were not sufficient in the ordinary course of nature to cause death because the doctor had not noticed any damage to the arteries. It was observed that the evidence of Dr.Shah who had examined the patient when he was admitted in the Civil Hospital at Ahmedabad leads to an inference that murder or culpable homicide not amounting to murder was beyond consideration of the case looking to the injuries which were inflicted on Nanumiya. Injuries Nos. 1 and 4 enumerated in the Post-mortem notes which were noticed by the doctor who had carried out the Post-mortem examination were ignored by the learned Additional Sessions Judge on the ground that they were not noticed by the previous two doctors. It was held on the basis of the medical evidence that the death of Nanumiya may be homicidal one, but, the offence that was committed, was only one under Section 326 of the IPC. As regards the aspect of common intention, the trial Court held that there was no evidence of prior concert between the accused and mere presence of the accused at the scene of the offence with arms did not necessarily mean that they were entertaining the same intention. It was also held that the dispute regarding land was between accused No.2 - Fatemiya and the deceased Nanumiya and therefore, there was no question of the other accused persons sharing any common intention with Fatemiya. As regards the accused No.2 - Fatemiya, it was stated that on the day of the incident, he was reported to be on duty and the alibi plea of the accused No.2 was supported by witness Abdulmiya, who was a Traffic Inspector in the S.T Depot, Mahudha. It was held that in view of this plea of alibi coupled with the circumstances that the relations between the accused No.2 - Fatemiya and deceased Nanumiya alone were estranged, the other accused persons should be given benefit of doubt. As regards the accused No.4, it was stated that the stick injury which was caused to Nanumiya, which was attributed to the accused No.4 was not supported by medical evidence and therefore the guilt of the accused No.4 was not established. 8. As regards the plea of the accused No.1 that there was some other person named Iqbal, who was his brother and who was named by the prosecution witnesses and that he himself was not involved, the trial Court after scrutiny of the evidence on record found that there was no substance in this plea and that Iqbal was the name of the accused No.1. The trial Court noted that even in his own bail application the accused No.1 had given his name as Iqbal alias Altaf and no contention was taken up during the hearing of that application that the accused No.1 was not Iqbal. Even in the bail bond his name was mentioned by him as Iqbal Altafhusein. It was also noted that the prosecution witnesses had identified the accused No.1 and had stated that he was widely known as Iqbal. The trial Court came to the conclusion that the accused Nos. 1 and 3 had inflicted Dharia blows on Nanumiya and accepting the testimony of the eye witnesses as also the other evidence on record including the dying declaration, the trial Court convicted the accused Nos. 1 and 3 for the offence under Section 326 of the IPC sentencing each of them to undergo rigorous imprisonment for a period of 3 years and to pay fine of Rs. 1,000/-. 9. The learned Additional Public Prosecutor contended that the trial Court has erroneously acquitted all these persons for the offence under Section 302, read with Section 34 of the Indian Penal Code. He submitted that the account given by the eye witnesses - Nabimiya and Hasammiya of the incident clearly proved that all the four accused who were known to the witnesses had assaulted Nanumiya around 3.30P.M on 17.4.1985 with Dharias and stick. It was submitted that the part played by the accused Nos. 1, 2 and 3 with their Dharias and by the accused No.4 with the stick was reflected at the earliest point of time by the oral dying declarations of Nanumiya made to his brother Kasammiya and his other brother Mir Saba and also to his wife Saidabibi and in his dying declaration recorded in presence of the doctor as also made to the panchas in the panchnama which was drawn of his condition, while he was in the hospital at Mahudha. The learned Public Prosecutor further submitted that the alibi of accused No.2 Fatemiya was not at all proved. It was established from the duty sheet Ex.50, as also from the oral evidence that the accused No.2 had not worked after 12.35 noon when he was relieved from his duty after having done the trip from 6.00AM. It was submitted that the duty sheet shows that the total number of hours of duty were mentioned for each day and whenever the accused had put in duty for longer hours, it was so mentioned against those dates. On the date of the incident he had remained on duty only between 6.00 A.M to 12.35 P.M. Therefore, at the time of the incident around 3.30 P.M, there was no question of the accused No.2 having remained on duty. It was submitted that the trial Court has over-looked this aspect of the matter and wrongly held that the accused No.2 was not there. He submitted that the fact that the accused No.2 was present at the relevant time and took part in the crime, is required to be taken into account as it would have a bearing on the aspect of common intention of all the accused persons. It was further contended that the reasoning of the trial Court that there was no injury corresponding to the stick blow noted by the previous two doctors and therefore, the participation of the accused No.4 in the crime was doubtful, is an erroneous reasoning since in the panchnama Ex.44 of the condition of the injured Nanumiya drawn at Mahudha hospital, all the six injuries were noted and they included a contusion which could have been caused by a stick blow. The learned Public Prosecutor submitted that all the accused came together at the scene of the offence armed with weapons, they forced Nanumiya to get down from the horse and inflicted severe injuries by sharp cutting weapons namely Dharias as a result of which he died later in the hospital. It was submitted that because the Dharia blows were given on the arms and legs, it cannot be said that there was no intention to cause injuries which were likely to cause death. It was submitted that the cuts which were caused because of Dharia were bone deep and severe cuts on both arms and leg which nearly amputated the leg were sufficient in the ordinary course of nature to cause death as was opined by Dr. Modi who carried out the post mortem examination. The learned Public Prosecutor also submitted that all the accused persons having completed that task, had gone away from the scene of the offence. 10. It was also submitted that there was a suggestion by the defence to one of the witnesses that earlier on the day of the incident there was a quarrel between Nanumiya and brother of the accused No.1 in respect of theft of mangoes from the field. He therefore, submitted that the offence under Section 302 read with Section 34 of the IPC was clearly made out against these accused persons. 11. The learned Counsel Mr. Panchal, appeared for all the accused persons in the State acquittal appeal. Mr. K.J. Shethna, who also appeared in the appeal filed by the accused Nos. 1 and 3, on their behalf supported the contentions raised by Mr. Panchal and also made further submissions. 12. It was contended on behalf of the accused persons that the complainant Kasammiya was not a reliable witness. It was submitted that all the main witnesses were close relations. Kasammiya, Nabimiya and Hasammiya were all brothers. Therefore in absence of corroboration from independent source, no reliance could be pleased on their evidence. It was also submitted that Kasammiya and Nabimiya were chance witnesses and there were material contradiction in the deposition of all the three brothers. It was further submitted that the investigation was not fair and honest and the dying declaration Ex.52 could not be relied upon, inasmuch as, it was recorded by the Police Officer after he had commenced the investigation and was only intended to be a statement during investigation, which was in fact under the law, not required to be signed by Nanumiya. It was submitted that the dying declaration was not in question - answer form, nor was the time mentioned therein. Moreover, the brothers of Nanumiya were present at that time and there was possibility of it being a tutored dying declaration. It was also contended that the dying declaration was bearing a thumb impression which was not identified. It was also argued that Nanumiya with serious injuries on his hands could not have himself put this thumb mark on the dying declaration. It was also submitted that in the dying declaration Ex.52 it was stated by Nanumiya that all the accused were having Dharias and later on it was stated that the accused No.4 had given a stick blow to him. It was further submitted that the dying declaration before the panchas in the panchnama Ex.44 was hit by the provisions of Section 162 of the Criminal Procedure Code and cannot be read in evidence. It was also contended that there was no mention of the eye witnesses in the FIR and the Bheel lady referred to in the FIR was not examined. It was submitted that the prosecution has deliberately not examined the Bheel woman and her husband, who admittedly were near the scene of the offence. It was also submitted that there was no evidence regarding prior concert and that there was nothing to show that the accused knew that the deceased was to come at the place of the incident. It was also argued that the manner of assault deposed by the witnesses was doubtful because the assailant would not have allowed Nanumiya to get down from the horse and they would have attacked him and torn him to pieces while he was on the horse. It was also submited that there was no motive on the part of the accused persons to assault Nanumiya because the accused No.2 had already succeeded in the tenancy appeal. 13. The fact that Nanumiya was assaulted on 17.5.1984 at the place of the incident near the outskirts of village Finav around 3.30 P.M is clearly borne out from the record and cannot be disputed. After the incident, Nanumiya was taken to the Mahudha Primary Health Centre and there, he was examined by Dr. Ashok Babulal Sharma P.W 2 at about 4.30 P.M. Dr.Sharma issued certificate of injuries Ex.17 in which he had noted the following injuries:- 1. An incised wound on middle of lateral surface of rt. fore arm - 3" x 1" x bone deep. Fracture of right humerus present. 2. An incised wound on upper part of antero medial surface of left forearm 1" below medial epicondyle of left humerus - 2" x 1/2" x 1'4" vertical. 3. An incised wound on middle of ant. surface of left forearm - 7" x 4" x 1" obliquely downward to medial. 4. An incised wound on ant. surface of right knee joint - 6" x 3" x bone deep, transverse. He had noted that the injuries Nos. 1, 2 and 4 were grievous and the injury No.3 was simple. It was also mentioned that these injuries could have been caused by sharp cutting instrument. He noted that period of recovery cannot be predicted and he referred the patient to the Civil Hospital, Ahmedabad. Dr. Sharma has in his deposition Ex.16 stated that the patient was brought in a hand-cart to the hospital by his relatives and that he was in a fit condition to give statement. He has stated that the statement of Nanumiya which was shown to him, was recorded in his presence and that he had endorsed the same in his own hand. That statement is Ex.52 which contains the dying declaration of Nanumiya. After being referred to the Civil Hospital, Ahmedabad, Nanumiya was taken there at about 7.35P.M and treated by Dr. D.A.Patel. However, Nanumiya passed away at 8.50 P.M. 14. Dr. Kamlesh Shantilal Shah from the Civil Hospital, Ahmedabad refers to the injuries which were noticed by him while he was working under Dr. D.A.Patel, after the patient was admitted in the hospital at 8.00PM. The certificate of injuries given by him is at Ex.19. He had examined Nanumiya for about 3 to 4 minutes. He had stated that patient was able to speak at the time of admission and while giving history, he had stated that he was wound by Dharia blows. According to him, looking to the dimension of the injuries, the weapon used must have been heavy and if the weapon was not heavy, it must have been used with great force. He cannot say that the injuries were curable or whether they were or not in the ordinary course of nature sufficient to cause death. 15. The Post-mortem examination of Nanumiya was done by Dr. Rajnikant Modi, who has deposed at Ex.14 about the injuries which he found both externally and internally on Nanumiya. He has proved the Post-mortem report at Ex.15. The external injuries which were noticed by him are stated against column No. 17 of the Post-mortem notes and they read as under:- 1. Bruise present in front of left shoulder 3" x 1/2" vertical. 2. Cut wound over anterior lateral aspect of left forearm on upper 1/2 level 8" x 4" size, bone deep forming; flap and muscles were clean cut and sectional tissues are retraded, wound extending upwards 7cm, laterally deeper at its upper end. 3. Cut wound in front of right knee dividing both condyle of right femur bone vertically in coronal plain. The plain is directing upwards slightly backwards medial size 3" x 5". 4. CLW 2" x 1/2" size bone deep on outer aspect middle of right arm transverse. The internal injuries which were noted were: 1. Fracture of ulna and radius on left side upper 1/3 level; 2. Fracture upper end of tibia and fibula; 3. Fracture shaft of humerus on middle 1/3 level on rt. side It is noted that all these injuries were ante-mortem