IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 43 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE A.N.DIVECHA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes 2. To be referred to the Reporter or not? No J 3. Whether Their Lordships wish to see the fair copy of the judgement? No 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? No 5. Whether it is to be circulated to the Civil Judge? No -------------------------------------------------------------- MALEK MANUBHAI PIRKHAN Versus STATE OF GUJARAT --------------------------------------------------- Appearance: Shri K.B.Anandjiwala, Advocate, for the Appellants - accused. Shri S.T.Mehta, Additional Public Prosecutor, for the Respondent - State. -------------------------------------------------------------- CORAM : MR.JUSTICE A.N.DIVECHA Date of decision: 05/10/96 ORAL JUDGEMENT The judgment and order of conviction qua the appellants - accused passed by the learned Additional Sessions Judge of Banaskantha at Palanpur on 28th November 1994 in Sessions Case No.47 of 1993 is under challenge in this appeal under Section 374 of the Code of Criminal Procedure, 1973 (the Cr.PC for brief). By his impugned judgment and order, the learned trial Judge convicted appellants Nos.1 and 3 herein (original accused Nos.2 and 4 in the trial court) of the offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code, 1860 (the IPC for brief) and appellant No.2 herein (original accused No.3 in the trial court) of the offence punishable under Section 324 thereof. Appellants Nos. 1 and 3 herein have been sentenced by the learned Sessions Judge for the aforesaid offence to rigorous imprisonment for seven years and fine of Rs.5000 in default simple imprisonment for one year for each accused. So far as appellant No.2 herein is concerned, the learned trial Judge has released him on probation on surety of Rs.10000 and bound him for two years not to indulge in such criminal activities. The learned trial Judge has acquitted the appellants herein of the offences punishable under Sections 147, 148, 149, 302, 307, 324 and 504 of the IPC and Section 135 of the Bombay Police Act, 1951 (the BP Act for brief). 2. The facts giving rise to this appeal move in a narrow compass. The incident is stated to have occurred on the New Year day according to the Vikram calendar, that is, on 26th October 1992. It is the case of the prosecution that one Mehboobkhan Sahebkhan had a pan -galla in village Bamroli near Rabari Vas. Some theft had taken place in his pan- galla about a fortnight prior to occurrence of the incident giving rise to the present proceeding. He suspected involvement of one Ambha Pirkhan Malek (original accused No.5 in the trial court) and Ajamkhan Driyavkhan (original accused No.14 in the trial court). According to the prosecution, appellant No.1 herein was indulging in bursting of crackers on 26th October 1992 near or in front of the pan -galla of said Mehboobkhan Sahebkhan. The latter appears to have scolded the former on that account. Thereupon, appellant No.1 herein went away and brought with him his aides and allies and started beating said Mehboobkhan Sahebkhan. He thereupon shouted for help. On hearing his shouts, one Alikhan Hayatkhan together with Rahematkhan Sahebkhan and Ayubkhan Sahebkhan arrived on the scene. They tried to intervene but in the process they were also beaten by appellant No.1 and his companions. According to the prosecution, certain other people on the side of said Mehboobkhan Sahebkhan also arrived on the scene. They included Sahebkhan Kalukhan and Waghaji Kalukhan. They also were beaten in their attempt to intervene in the matter. In the process, Ayubkhan Sahebkhan, Mehboobkhan Sahebkhan, Rahematkhan Sahebkhan, Asrafkhan Muradkhan, Sahebkhan Kalukhan and Waghaji Kalukhan sustained injuries. They were by turn carried in a handcart to the highway and to Radhanpur in one tempo known as Ram-Rahim Tempo for treatment. In the meantime, appellants Nos.1 and 3 herein and one Pirkhan Alukhan (original accused No.1 in the trial court) also sustained injuries. They went to the Police Station at Varahi at about 6.30 p.m. at a distance of about 12 kms. from village Bamroli. A complaint was lodged by Pirkhan Alukhan in the Police Station at Varahi with respect to the incident in question. Since appellants Nos. 1 and 3 and said Pirkhan Alukhan had sustained injuries, they were sent to the Primary Health Centre at Radhanpur for treatment with a police yadi. In the meantime, Mehboobkhan and other injured persons appear to have reached at the Primary Health Centre at Radhanpur at about 6.30 p.m. They were examined by Dr. Jivalani at Exh.55 on the record of the trial court. He found injuries on the persons of Ayubkhan Sahebkhan, Mehboobkhan Sahebkhan and Asrafkhan Muradkhan to be serious. He therefore referred them to the Civil Hospital at Ahmedabad. The other injured persons from that group were given treatment and were admitted as indoor patients. Appellants Nos.1 and 3 herein and Pirkhan Alukhan were also examined by Dr. Jivalani at Exh.55 at about 8.30 p.m. They were given some primary treatment and were discharged on that very day. According to the prosecution version, Dr. Jivalani found the case to be a medicolegal case. He is therefore stated to have reported the matter to the Police Station at Radhanpur. It is the case of the prosecution that thereafter Alikhan Hayatkhan went to the Police Station at Varahi and lodged his complaint of the incident at about 10.25 p.m. According to the prosecution case, the complaint lodged by Pirkhan Alukhan came to be registered as C.R. No.87 of 1992. Thereupon, the Police Sub Inspector of the Police Station at Varahi had gone to village Bamroli for investigation. The complaint given by Alikhan Hayatkhan was registered as Crime Register No.88 of 1992. That was also sent to the very same Police Sub Inspector for investigation. It appears to have reached him in the course of his investigation of the earlier case at Bamroli. In the meantime, the injured persons referred to the Civil Hospital at Ahmedabad were carried to Ahmedabad and were taken to the Civil Hospital thereat. They reached there at about 11.25 p.m. One injured, named, Ayubkhan Sahebkhan, is stated to have succumbed to his injuries about two hours later at 1.45 a.m. on 27th October 1992. On completion of investigation, the necessary chargesheet was submitted in the court of the Judicial Magistrate (First Class) at Radhanpur on 2nd February 1993 charging the present appellants along with 12 more persons of the offences punishable under Sections 302, 324, 323, 504, 147, 148 and 149 of the IPC and Section 135 of the BP Act. It came to be registered as Criminal Case No.82 of 1993. Since certain offences were triable by the Court of Sessions, by his order passed on 22nd February 1993 under Section 209 of the Cr.PC, the learned trial Magistrate committed the case to the Sessions Court of Banaskantha at Palanpur. It came to be registered as Sessions Case No.47 of 1993. It appears to have been assigned to the learned Additional Sessions Judge at Palanpur for trial and disposal. The charge against the accused was framed on 21st June 1994 at Exh.7 on the record of the trial Court. No accused pleaded guilty to the charge. They were thereupon tried. After recording the prosecution evidence and after recording the further statement of each accused under Section 313 of the Cr.PC and after hearing arguments, by his judgment and order passed on 28th November 1994 in Sessions Case No.47 of 1993, the learned Additional Sessions Judge acquitted all the accused except accused Nos.2, 3 and 4 (the appellants herein) of the charge levelled against them. So far as appellants Nos.1 and 3 herein (original accused Nos.2 and 4 in the trial court) are concerned, they were found guilty of the offence punishable under Section 304 Part II read with Section 34 of the IPC and they were therefore sentenced to rigorous imprisonment for seven years and fine of Rs.5000 in default simple imprisonment for one year for each accused. So far as appellant No.2 herein (original accused No.3 in the trial court) is concerned, the learned trial Judge found him guilty of the offence punishable under Section 324 of the IPC but instead of sentencing him he was released on probation on the surety of Rs.10000 and was bound for two years not to indulge in such criminal activities. That aggrieved accused Nos.2, 3 and 4. They have therefore invoked the appellate jurisdiction of the this Court by means of this appeal under Section 374 of the Cr.PC. 3. It may be mentioned that, against the judgment and order of the learned trial Judge acquitting the remaining accused of the charge levelled against them and the appellants herein of the offences punishable under Sections 147, 148, 149, 302, 307, 324 and 504 of the IPC and Section 135 of the BP Act, the State Government preferred an appeal in this court under Section 378 of the Cr.PC. It came to be registered as Criminal Appeal No.880 of 1995. By the order passed by the Division Bench of this court on 2nd April 1996 in the aforesaid appeal, it came to be summarily dismissed. It appears that the State Government felt that appellants Nos.1 and 3 herein were leniently dealt with by the learned trial Judge qua the sentence imposed on them for the offence punishable under Section 304 Part II of the IPC. It therefore preferred an appeal for enhancement in this court under section 377 of the Cr.PC. It came to be registered as Criminal Appeal No.879 of 1995. By the order passed by the Division Bench of this Court on 2nd April 1996 in the aforesaid appeal, it came to be summarily dismissed. It appears that the State Government was also aggrieved by the order granting probation to appellant No.2 herein with respect to his conviction of the offence punishable under Section 324 of the IPC. It approached this court by way of appeal under Section 11 of the Probation of Offenders Act, 1958 for questioning the correctness of the order of granting probation. It came to be registered as Criminal Appeal No.881 of 1995. By the order passed by the Division Bench of this court on 2nd April 1996 in the aforesaid appeal, it came to be summarily dismissed. 4. Both learned Advocate Shri Anandjiwala for the appellants and learned Additional Public Prosecutor Shri Mehta for the respondent - State have taken me through the evidence on record in support of their respective submissions. Learned Advocate Shri Anandjiwala for the appellants has submitted that the approach of the learned trial Judge in appreciating the evidence on record is not sustainable in law and it has vitiated his conclusions with respect to the finding of guilt qua the present appellants. It has been urged by learned Advocate Shri Anandjiwala for the appellants that it ought to have been held that the prosecution failed to bring the guilt home even to the present appellants beyond any reasonable doubt. As against this, learned Additional Public Prosecutor Shri Mehta for the respondent - State has submitted that the learned trial Judge has carefully scanned and scrutinized the evidence on record and has recorded the finding of guilt against the present appellants qua the respective offences of which they have been convicted and the impugned judgment and order of conviction and sentence calls for no interference by this court in this appeal at the instance of the present appellants. 5. It transpires from the evidence on record that the origin of the incident giving rise to the present proceeding is shrouded in mystery. The motive behind assault on the group to which the complainant belongs by the group of the present appellants was stated to be involvement of original accused Nos.5 and 14 in the alleged theft from the pan -galla of Mehboobkhan Sahebkhan. It is the prosecution case that the aforesaid incident of theft occurred about a fortnight prior to the occurrence of the present incident. As rightly submitted by learned Additional Public Prosecutor Shri Mehta for the respondent - State, if the case is based on direct evidence, the motive behind the incident becomes irrelevant. However, since the prosecution has tried to bring on record the motive behind the incident in question, it has become necessary to examine it. Prosecution witness No.15 at Exh.86 has stated that appellant No.1 herein was bursting crackers near or in front of the former's pan-galla as if to celebrate the theft in his pan- galla. If that be so, the necessary inference would be that animosity or hostility was present between the two groups. That was nobody's case at trial. If there were no past enmity and hostility between the two groups, it passes comprehension as to why appellant No.1 should burst crackers near or in front of the pan-galla of Mehboobkhan Sahebkhan on the new year day according to the Vikram calendar to celebrate the theft therein. It is a matter of common sense that an incident of theft calls for no celebration. Besides, appellant No.1 herein is a Muslim. It is everyone's common knowledge that Muslims ordinarily do not celebrate the religious festival of Diwali. Even if it is accepted that people in village Bamroli believed and lived in communal harmony, it is difficult to comprehend that appellant No.1 would indulge in bursting crackers near or in front of the pan-galla of Mehboobkhan Sahebkhan with a view to provoking him for no good reasons. It thus becomes clear that the motive behind the incident in question appears to be different from what has been brought on record by and on behalf of the prosecution at trial. 6. As rightly submitted by learned Advocate Shri Anandjiwala for the appellants, the place of the incident in question or what is popularly known as the scene of offence is also not established by or on behalf of the prosecution beyond reasonable doubt. If we go by the prosecution version, the incident is stated to have started from the place in front of the pan-galla of Mehboobkhan Sahebkhan and it practically reached its zenith near the primary school at a distance of about 200 ft. therefrom. The complainant examined as prosecution witness No.10 at Exh.51 has clearly stated in his evidence that the appellants herein were armed with deadly weapons. According to him, appellants Nos.1 and 3 herein were armed with a dharia each and appellant No.2 herein with an axe. According to the complainant, Mehboobkhan Sahebkhan was beaten by the appellants herein in front of his pan-galla with deadly weapons. It is the case of the complainant that, at that stage, Ayubkhan Sahebkhan, Rahematkhan Sahebkhan, Sahebkhan Kalukhan and the complainant reached on the scene and tried to intervene and, at that stage, Ayubkhan Sahebkhan (the deceased for convenience) received injuries at the hands of the present appellants by giving blows to him with the deadly weapons. The Medical Officer at Exh.15 found the injuries on the person of the deceased, Mehboobkhan Sahebkhan and Asrafkhan Muradkhan to be serious in nature. They had bleeding injuries. It needs no telling that injuries received by use of deadly weapons would result in bloodshedding. If the incident occurred in front of the pan-galla of Mehboobkhan Sahebkhan and if the deceased and Mehboobkhan Sahebkhan and Asrafkhan Muradkhan received bleeding injuries at the hands of the appellants herein by use of the deadly weapons in their hands, it would be obvious that certain bloodstains, if not a pool of blood, would be found in front of or in the vicinity of the pan-galla. The panchnama of the scene of offence at Exh.26 records non-finding of any blood marks in front of or in the vicinity of the pan -galla in question. The panchnama at Exh.26 records finding of bloodstains near the primary school at a distance of about 200 ft. from the pan-galla. The ground for not finding blood in front of or in the vicinity of the pan-galla is explained in the panchnama itself by saying that a tar road was in front of the pan galla and, in view of pedestrian traffic of both people and cattle, bloodstains might not have been found thereat in the midst of cow-dungs. 7. At this stage, it would be quite proper to look at the map at Exh.79 prepared by the Circle Inspector, named, Karsanbhai Shyambhai Patel, prosecution witness No.13 at Exh.76 on the record of the trial court. It transpires therefrom that the tar road in front of the said pan- galla was leading to village Bamroli and the road near the primary school and near the electric pole was also leading to the very same village. The road near the primary school and the electric pole does not appear to be a tar road. If we use our commonsense, bloodstains and marks would appear more prominently on a tar road than on a road full of dust and earth. Drops of blood, if fall on dust and earth, would not easily be visible as such blood-drops would be absorbed therein. In the case of a tar road, absorption of blood-drops would not be so much and so soon. It therefore passes comprehension as to why bloodstains were not found in front of the pan -galla of Mehboobkhan Sahebkhan where the incident in question is stated to have started and beatings with deadly weapons were stated to have been received by the injured people belonging to the group of the complainant. In view of this evidence on record, the starting point of the scene of the incident in question is certainly shrouded in mystery. It is difficult to believe that the incident started near or in front of the pan-galla in question. 8. So far as the presence of the complainant at Exh.51 is concerned, the evidence as to at what time he arrived on the scene is not free from doubt. In his oral testimony at Exh.51, he has stated that he was in Rabari Vas and on hearing shouts from Mehboobkhan Sahebkhan he rushed to the spot at the very same time when Ayubkhan Sahebkhan and Rahematkhan Sahebkhan reached the spot to rescue the victim of the assault by the group of the appellants herein. It is the say of the complainant at Exh.51 that along with Ayubkhan Sahebkhan and Rahematkhan Sahebkhan he also tried to intervene and to rescue Mehboobkhan Sahebkhan from the assault in question. Surprisingly enough, Ayubkhan Sahebkhan and Rahematkhan Sahebkhan received injuries in an attempt to intervene and to rescue Mehboobkhan Sahebkhan whereas the complainant did not receive any injury whatsoever. It is not the case of the complainant that he had covered himself in such a manner that he would receive no injury whatsoever even if he tried to intervene and to rescue the victim of the assault in question. It is not the case of the complainant that he could dodge thrashing from everyone in the process. In that view of the matter, his escaping any injury of whatever kind in the scuffle would leave anyone wondering as to how it could happen. The only possible explanation could be that he did not reach the scuffle when it started or it reached its zenith. Besides, contradictions from the evidence of injured witnesses Mehboobkhan Sahebkhan at Exh.86, Rahematkhan Sahebkhan at Exh.87 and Asrafkhan Muradkhan at Exh.90 would also raise a doubt about his reaching the scene of offence near Mehboobkhan Sahebkhan's pan -galla soon after starting of the incident in question. 9. Apart from the aforesaid evidence on record, the prosecution does not appear to have taken care to explain certain material facts clearly emanating from the record. It is an admitted position on record that appellants Nos.1 and 3 herein and one Pirkhan Alukhan sustained injuries. They also through Pirkhan Alukhan lodged their complaint in the Police Station at Varahi at about 6.30 p.m. with respect to the incident in question. They were sent to the Primary Health Centre at Radhanpur for treatment with a police yadi. The prosecution has not tried to explain the injuries on their persons. It is the case of the complainant and witnesses on his side that they had no arms whatsoever with them. Not even a stick was found with them according to the case of the prosecution. In that case, the only inference could be that the injured persons on the side of the appellants herein received injuries at the hands of some invisible person or persons. That is again not the case of the prosecution that the complainant and his group were rescued by some invisible hands. The injuries found on the persons of the appellants have thus remained unexplained. 10. In this connection, a reference deserves to be made to the binding ruling of the Supreme Court in the case of LAKSHMI SINGH v. STATE OF BIHAR reported in AIR 1976 Supreme Court at page 2263. It has been held therein: "In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. xxx xxx xxx The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. xxx xxx xxx There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries." 11. Learned Additional Public Prosecutor Shri Mehta for the respondent- State has submitted that it was not necessary for the prosecution to explain injuries on the person of appellants Nos.1 and 3 herein and Pirkhan Alukhan (original accused No.1 in the trial court) in view of the aforesaid ruling of the Supreme Court as such injuries were minor and superficial. It cannot be gainsaid that non-explanation of minor and superficial injuries found on the person of the accused would not assume much importance. The question is whether or not injuries found on the persons of appellants Nos.1 and 3 herein and said Pirkhan Alukhan can be said to be minor and superficial. We have to look to the evidence on record for the purpose. 12. It is an admitted position on record that Dr.Jivalani at Exh. 55 had examined inter alia appellants Nos.1 and 3 herein and said Pirkhan Alukhan at about 8.30 p.m. on the day of the incident, that is, on 26th October 1992. Injuries found on their persons were recorded by him in his certificates. They are at Exh.70, 71 and 72. They are stated in his oral evidence at Exh.55. Injuries found on the person of appellant No.1 herein was cutting down of his left nostril. It was found to be a sharp cut. In fact, it would somewhat result in disfiguring of his face. The Medical Officer at Exh.55