CR.A/775/2002 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 775 of 2002 With CRIMINAL APPEAL No. 746 of 2002 With CRIMINAL APPEAL No. 858 of 2002 With CRIMINAL APPEAL No. 86 of 2003 with Criminal Misc. Application No. 12435 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= HARIJAN KANTIBHAI NANJIBHAI & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Criminal Appeal No. 775 of 2002 MR YOGESH S LAKHANI , ld. sr. advocate with Mr. Kedar G. Dave for Appellants : Ms. Mita Panchal, APP, for the respondent State. Criminal Appeal No. 858 of 2002 and 86 of 2003 Ms. Sadhana Sagar (appointed for appellants Ms. Mita Panchal, APP, for the respondent State CR.A/775/2002 2/9 JUDGMENT Criminal Appeal No. 746 of 2002 Mr. D.M. Thakkar for the appellants Ms. Mita Panchal, APP, for the respondent State ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 19/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeals are filed against the judgement and order dated 31.7.2002 passed by the learned Additional Sessions Judge, Surendranagar, in Sessions Case No. 15 of 1998. 2. The brief facts giving rise to the case of prosecution, as per the complaint filed by Amarshi Karshan, were that on the night of 11.10.1997 between 21.30 hours and 21.45 hours all 11 accused persons named in the FIR with different weapons in their hands, have come on their feet at Jakatnakha chawk of Chuda town. Both the deceased Nandlal Haribhai and Ishwarbhai Haribhai were standing there who happen to be the cousins of the complainant. All the accused have simultaneously assaulted both the deceased. It is alleged in the CR.A/775/2002 3/9 JUDGMENT complaint that all the accused persons with their weapons in their hands have started indiscriminately giving blows on the persons of both the deceased and on hearing shouts the real sister of the complainant Bhaniben came running to the spot and all the accused have run away from the place of incident with the weapons in their hands. It is stated in the complaint that the complainant and his sister have reached to both the injured. Nandlal Haribhai was murmuring that he may be hospitalized but Ishwarbhai was not in a position to speak as he died on the spot. The complainant stated in the complaint that as the complainant wanted to make a phone call to Limdi at the place of his brother-in-law, he came to the STD/PCO centre situated near Chuda Town, Jakhatnakha and that is how he had seen the incident. 3. On completion of investigation, chargesheet came to be filed and on the case having been committed to the Court of Sessions, the charge is framed against all 11 accused persons. Number of witnesses have been examined and various documentary evidences are produced on record by the prosecution. Accused, particularly accused Nos. 5 and 11 have produced witnesses in defence along with documentary evidences. On appreciation of evidence on record and having heard both the sides, the learned trial Judge proceeded to hold that original accused No. 1 Punabhai Jethabhai, accused No. 2 Jagdishbhai Punabhai and accused No. 4 Valjibhai Jethabhai have been found to have caused injuries with weapons in their hands like gupti, knife, sword and thus these 3 accused are found to have caused injuries on the persons of deceased Ishwar. Learned trial Judge also proceeded to record the findings against original accused No. 5 Kantibhai Nanjibhai as CR.A/775/2002 4/9 JUDGMENT the person having caused injury by gupti to another deceased Nandlal. Thus, learned trial Judge has found four accused responsible and authors of the injuries to both the deceased. However, learned trial Judge further proceeded to convict the other accused persons also as the members of the unlawful assembly with the aid of Section 149 of the Indian Penal Code. 4. This Court having perused the record of the case, depositions of the witnesses, documentary evidences and having heard learned counsel for the respective appellants and learned A.P.P. Ms. Mita Panchal in all appeals, find the case as regards accused not having caused injuries to either of the deceased to be doubtful for various reasons we give hereinafter. 5. Out of the witnesses examined, only three witnesses throw light on the incident being the claimed eye witnesses. As far as complainant Amarshi Karshan (PW 1 Exh. 50) is concerned, he named only three accused i.e. accused No. 1, 2 and 3 and did not name any other accused in his chief examination. It is surprising as to how he could miss to name the accused persons and attribute the weapons as he has categorically mentioned in the FIR. This becomes more significant when it has come on evidence that on the date of incident there was no street light and electricity connection of whole village was disconnected on account of fault occurred in Chuda Electricity Sub-station and there was no light in the whole village. The absence of even mention of the name of all the accused except three in the chief examination of the complainant really creates a doubt about the complicity of other accused persons. As far as Bhaniben (PW 3 Exh. 65), real CR.A/775/2002 5/9 JUDGMENT sister of the complainant, is concerned, she implicates many more persons as the persons having inflicted injuries to both the injured. However, the allegations made by her in her chief examination did not match with the allegations made by the complainant in his chief examination. Over and above that as admitted by her in her cross examination, her statement came to be recorded after a week by the Investigating Officer. Even there are material contradictions found in her deposition vis-a- vis the complainant and the police statement given by her. As far as third witness being PW 4 Exh. 66 Harish Vashram is concerned, he narrates the incident as if he is the eye witness. This witness happens to be a cousin of the complainant and at the time when the incident occurred he was studying in Arts College at Surendranagar. It is not explained as to how his presence was there at the place of incident and even his presence is also noted by the complainant at the time of incident. Surprisingly, three witnesses are close relatives and on closely scrutinising their evidence on record this Court finds the prosecution story fully doubtful about complicity of the accused persons other than those who are found by the trial Court to have inflicted injuries on the persons of the deceased. Though the incident occurs at a public place, the prosecution has chosen not to examine any independent witness. 6. As far as deceased Nandlal is concerned, the medical certificate Exh. 57 and the deposition of the Medical Officer who examined him at 11.10 p.m. Refers to only two injuries on the abdominal part. Both the injuries are incised wounds. As per the evidence believed by the trial Court these two injuries are attributed to Kanti Nanji – accused No. 5 which are alleged to have caused with gupti. Injured Nandlal after the CR.A/775/2002 6/9 JUDGMENT incident survived for about 15 days. Though he has received only two injuries on his person, in his dying declaration recorded by the Executive Magistrate he has implicated various accused including those who are not found to have inflicted any injury to either of the deceased as per the findings given by the trial Court. Thus, it appears that the deceased Nandlal in his dying declaration recorded on 14.10.1997 after a period of three days of the incident and the witnesses who are related, interested and inimical to the accused side have tried to implicate as many persons as possible from one family. 7. As far as deceased Ishwar is concerned, he seems to have received six injuries in the nature of stab wounds which are attributed to Punabhai Jethabhai – accused No. 1, Jagdishbhai Punabhai – accused No. 2 and Valjibhai Jethabhai – accused No. 4. If the story as narrated by the prosecution witnesses is believed that 11 persons holding different weapons in their hands have discriminately caused injuries to both the persons, both injured would have received many more injuries than found on their person as per the medical evidence. Thus, when the incident occurred in darkness at night hours and when no independent witnesses are examined, attempt to bring many more accused as members of one family would make the prosecution case doubtful at least qua those who have not caused any injuries to both the deceased persons. It is to be noted that there is positive evidence led in defence, oral as well as documentary, by accused No. 5 and 11 to point out that they were not present at the place of incident and were present at other place also supports the defence case that there is false and wrong implication of many persons other than those who have in fact caused the injuries. Overall facts CR.A/775/2002 7/9 JUDGMENT and circumstances and the evidence led before the trial Court make us to believe that only those accused i.e. accused Nos. 1 – Punabhai Jethabhai, accused No. 2 – Jagdishbhai Punabhai, accused No. 4 – Valjibhai Jethabhai and accused No. 5 – Kantibhai Nanjibhai who have caused injuries to both the deceased are responsible and no other accused persons have caused any injury on the persons of the deceased. In that background of the matter, the conviction of other accused persons i.e. accused Nos. 3 – Ramjibhai Valjibhai, accused No. 6 – Amrutbhai Valjibhai, accused No. 7 – Harijan Laljibhai Bhalabhai and accused No. 11 – Lakhmanbhai Nanjibhai with the aid of Section 149 of the IPC branding them as members of the unlawful assembly cannot be sustained. 8. All the Jail records of the appeals produced before this Court are ordered to be taken on record. 9. We therefore hold that accused Nos. 1 – Punabhai Jethabhai, accused No. 2 – Jagdishbhai Punabhai, accused No. 4 – Valjibhai Jethabhai and accused No. 5 – Kantibhai Nanjibhai guilty of having committed offence under Section 302/34 of the IPC and confirm the order of conviction with alteration that instead of Sections 302/149 of IPC, they are guilty of offence under Sections 302/34 of IPC and sentence passed by the trial Court against them in involving Section 34 of IPC instead of Section 149 of IPC. We do not see any prejudice to the accused. Out of these accused persons, we are told that accused No. 2 and accused No. 5 passed away and therefore appeals qua accused Nos. 2 and 5 abate. As far as accused No. 4 Valjibhai Jethabhai is concerned, we have perused the jail report and found that he has been pardoned on the eve of the CR.A/775/2002 8/9 JUDGMENT birthday of the then Prime Minister of India of his having already completed 70 years of age. He has been released on 25.12.2003. Therefore, the sole remaining accused No. 1 – Punabhai Jethabhai is ordered to serve out the remaining sentence as his conviction is confirmed. Conviction of accused i.e. accused No. 3 – Ramjibhai Valjibhai, accused No. 6 – Amrutbhai Valjibhai, accused No. 7 – Harijan Laljibhai Bhalabhai and accused No. 11 – Lakhmanbhai Nanjibhai is set aside. They are acquitted of the charges levelled against them. They are ordered to be released forthwith if not required in any other case. Fine paid by the accused who are acquitted be refunded back to them. 10. In the result, Criminal Appeal No. 858 of 2002 is dismissed qua accused No. 1 – Harijan Punabhai Jethabhai as his conviction is altered from Sections 302/149 to Sections 302/34 of IPC and appeal abates qua accused No. 2 – Harijan Jagdishbhai Punabhai. Appeal of accused No. 4 is also dismissed. His sentence having been commuted, nothing further is required to be done. Criminal Appeal No. 775 of 2002 is allowed qua accused No. 11 – Harijan Lakhmanbhai Nanjibhai and appeal abates qua accused No. 5 – Harijan Kantibhai Nanjibhai. Criminal Appeal No. 746 of 2002 is allowed. Appeal No. 86 of 2003 is allowed qua accused No. 3 Harijan Ramjibhai Valjibhai and accused No. 6 – Harijan Amrutbhai Valjibhai. Conviction of accused Nos. 3, 6, 7 and 11 is set aside. They are acquitted of the charges levelled against them. They are ordered to be released forthwith if not required in any other case. Fine paid by the accused who are acquitted of the charges be refunded back to them. CR.A/775/2002 9/9 JUDGMENT 11. No orders are passed in Criminal Miscellaneous Application No. 12435 of 2008 as the main appeal is disposed of today. Hence the application stands disposed of. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)