IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 849 of 1989 with CRIMINAL APPEAL NO. 77 OF 1990. For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA and Sd/- MISS JUSTICE R.M.DOSHIT Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes @@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 2. To be referred to the Reporter or not? Yes 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 No Judge? -------------------------------------------------------------- NATUBHAI BHUDARBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 849 of 1989 MR KR RAVAL for appellants(accused) Mr. P.G.Desai, PP, Ms. Amy Yagnik,APP and Mr. PB Bhatt,APP for the State of Gujarat. 2. Criminal Appeal No. 77 of 1990 Mr. PB Bhatt, APP for the State of Gujarjat. Mr. KR Raval for the respondents-accused. -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA and MISS JUSTICE R.M.DOSHIT Date of decision: 23/03/98 COMMON ORAL JUDGEMENT :(Per M.R.Calla,J.) These two criminal appeals are directed against the judgment and order dated 22nd November, 1989 passed by the learned Additional Sessions Judge, Surendranagar in Sessions Case No. 61 of 1988 whereby the learned Additional Sessions Judge has convicted accused No. 3 Natubhai Bhudarbhai for the offence under section 302 of the Indian Penal Code as also under section 25(1)(c) of the Arms Act and section 135 of the Bombay Police Act and he has been sentenced to undergo life imprisonment and fine of Rs. 10,000/- and in default, to undergo further imprisonment for a period of three years. Out of this amount of Rs.10,000/-, a sum of Rs.5,000/- is ordered to be paid to the widow or the eldest child of the deceased Talsi Gangaram. The appellant Natubhai Bhudarbhai has been sentenced to undergo rigorous imprisonment for a period of three months for the offence under section 25(1)(c) of the Arms Act and section 135 of the Bombay Police Act. All the sentences have been ordered to run concurrent. The learned Sessions Judge has also convicted the accused Bhudarbhai Mohanbhai under section 25(1)(c) of the Arms Act and section 135 of the Bombay Police Act and he has been sentenced to undergo one month's rigorous imprisonment. It has also been ordered that the accused who were in jail since 19th May, 1988 shall be given benefit of the period for which they have remained in jail during the course of the trial. By the very same order dated 22nd November, 1989, other accused persons namely Bhupat, Ishwar, Raghunath and Raghu Manu have been acquitted. 2. The appeal against conviction has been preferred by Natubhai Bhudarbhai i.e. Criminal Appeal No. 849 of 1989 and the State of Gujarat has preferred appeal against the order of conviction of Bhudarbhai Mohanbhai for the offence under section 302 read with section 34 and section 114 if the Indian Penal Code i.e. criminal appeal No. 77 of 1990. There is no appeal against the acquittal of the other accused persons. Whereas both these criminal appeals arise from the same incident and the same impugned judgment and order passed by the learned Additional Sessions Judge in Sessions Case No. 61 of 1988, both these appeals are decided by this common judgment and order. It may also be pointed out that a criminal revision application no. 7 of 1990 had also been preferred by the complainant Mahadevbhai Laljibhai against the accused Bhudarbhai Mohanbhai,Bhupat Bhudarbhai and Ishwar Raghunath and Laghu Manu and on 29th January, 1995, it was ordered by the Division Bench of this Court that this Criminal Revision Application No. 7 of 1990 may be placed on Board for final hearing alongwith these two criminal appeals but, from the record, we find that on criminal revision application No. 7 of 1990, the Division Bench had already passed an order on 25th April, 1990 that No order in view of the order passed in the appeal filed by the State and, therefore, nothing more is required to be done on this revision application. Although, Mr. H.D.Vasavada had appeared on behalf of the original complainant and in view of this Court's order dated 25th April, 1990, revision application is treated as disposed of. 3. The case arises out of an incident dated 17th May, 1988 which took place near village Devcharadi of Dhrangadhra Taluka, District Surendranagar Police Station Dhrangadhra. With regard to this incident which took place at 6.30 p.m. on 17th May, 1988, the complainant Mahadev Valjibhai filed FIR at Police Station, Dhrangadhra on the same day at about 10.00 p.m. alleging that he was coming from his farm on that day and Talshi Gangaram had gone to receive his son who had gone with the cattle at the cattle camp to Prangadh. At that time, Natubhai Bhudarbhai and Bhupat Bhudar of village Devcharadi came from the road side and Bhudar Mohan and Ishwar Raghunath came from the side of the village tank. Bhupatbhai Mohanbhai was having gun which he passed on to Natubhai Bhudarbhai who fired the gun in the chest of Talsi Gangaram and he fell down. It was further alleged that this complainant Mahadevbhai Valajibhai then came to his house and told his father Valjibhai and, thereafer, Mahadev and his father both came to the spot and found that Talsi Gangaram had already died and above named four accused persons had fled away. Thereupon, they went to Sitapur to file the complaint and, thereafter, to Dhrangadhra Police Station where the complaint was filed in which it was alleged that the reason for committing the murder of his Dada (uncle) Talshi Gangaram was that the accused Natubhai Bhudarbhai had some quarrel with the son of the deceased before about 8 months back in Navratri about which no police complaint had been filed. It was also alleged that at the time of incident, Talsi Gangaram's son Narsi Talsi and one Bhikha Lala were present. On the basis of this complaint, criminal case was registered at the Police Station, Dhrangadhra. The Investigating Officer went to village Devcharadi on the spot where the dead body of deceased Talsi Gangaram was lying. Inquest report was prepared. Dead body of the deceased Talsi Gangaram was identified by his son Khodabhai and the pellets found on the body of the deceased were taken in possession and the dead body was sent for post mortum examination at Dhrangadhra Hospital. In the morning of 18th May, 1988 between 7.00 and 8.00 a.m., panchanama of the scene of offence was prepared and the sample of blood socked soil was taken and the respective panchanamas were prepared. It was found that there was distance of about 25 to 30 ft. between two places where the blood socked soil was there and the spot is on the way between Devcharadi and Prangadh near the village tank wherefrom the village is about half a furlong or a furlong. After preparing the panchanama of the scene of occurrence, statements of Narsi Talsi, Shankar Pala, Bhikha Lalji, Valji Gangaram were recorded. Narottam alias Narsi's blood stained clothes were taken into custody and its panchanama was prepared on 19th May, 1988. The statement of Khodabhai Talsi was recorded and Bhudar Mohan was arrested. On the same day, on information being received that rest of the accused persons were near Umai River, the IO went to the place near Umai River wherefrom Natubhai Bhudarbhai, Bhupatbhai Bhudarbhai were arrested in presence of the panchas and at that time, Natubhai Bhudarbhai was having the gun which was also recovered and the panchanama was prepared. This place is about 3.00 km away from village Devcharadi. The gun was wraped in cloth cover and it was sealed and the licence was demanded from the accused persons but they were not having the licence. On 20th May, 1988, Ishwarbhai Raghunathbhai was arrested. Remand in respect of the accused persons till 24th May, 1988 was granted and after inquiring from them, Laghu was arrested and he too had no licenced gun. On 23rd May, 1988, the house of the accused No. 1, 2 and 3 was searched in presence of the panchas. Natubhai Bhudarbhai gave pellets which were taken in the possession and the accused persons were produced before the Court on 24th May, 1988. The clothes of the accused persons and the other articles were sent to the Forensic Science Laboratory at Junagadh and after completing the investigation, chargesheet was filed on 1.8.1988. Thereupon, charge was framed against the accused persons BhudarbhaiMohanbhai, Bhupatbhai Bhudarbhai, Natubhai Bhudarbhai, Ishwarbhai Raghunath and Ladhu Manu under section 302 of the Indian Penal Code. Accused No.1 Bhudarbhai Mohanbhai was also charged for the offence under section 109 of the Indian Penal Code and acused No. 1 and 3 were also charged for the offence under section 25(1)(c) of the Arms Act and section 135 of the Bombay Police Act. 4. After the trial, the learned Additional Sessions Judge has convicted, sentenced and acquitted the accused persons as stated above. Natubhai Mohanbhai has preferred criminal appeal no. 849 of 1989 against the conviction and sentence recorded by the learned Sessions Judge, Surendranagar on 22nd November, 1989 and the State of Gujarat has preferred criminal appeal no. 77 of 1990 against the order of acquittal of Bhudarbhai Mohanbhai. The complainant Mahadevbhai Valjibhai is the nephew of the deceased Talsi Gangaram. Narottam alias Narsi is the son of the victim Talsi Gangaram and the accused Natubhai Bhudarbhai and Bhudarbhai Mohanbhai are son and father. 5. Mr. Raval, the learned counsel for the appellant-accused has referred to the statements of four eye witnesses namely PW-1 Mahadevbhai Valjibhai, PW-2 Narottambhai alias Narsibhai Talsi; PW-3 Shankarbhai Palabhai and PW-4 Bhikhabhai Laljibhai. He has submitted that the version of these witnesses is not at all trustworthy. It does not inspire confidence and their conduct after the incident is not at all natural. While referring to the statement of PW-1 Exh. 11, Mahadevbhai Valjibhai at page 61 of the Paper Book and while referring to the contents of the FIR Exh. 25 at page 123, it has been pointed out that the name of Shankar Pala had not been mentioned by Mahadevbhai Valjibhai in the FIR. According to the learned counsel, this witness was at the distance of 62 ft. and the version given by the other eye witness has also been questioned by the learned counsel by saying that their conduct is not natural and their version cannot be believed. He has also assailed the recovery of the gun and stated that the story of the prosecution cannot be believed. He has referred to the statement of two defence witnesses who were examined in support of the plea of alibi on behalf of Natubhai Bhudarbhai and it has been submitted that on the date of incident, he was not present on the spot but was present in the Court at Dhrangadhra for trial in a criminal case against him under the Prohibition Act and he came back to his village Devcharadi only at about 12.00 o'clock on the night of 17th May, 1988 and after being free from the Court, he had no means to reach the village Devcharadi. The Court Clerk of the criminal court has been examined as Defence witness No.1 and the Traffic Controller has also been examined. 6. On behalf of the prosecution, it has been argued that all the four eye witnesses have categorically stated that Bhudar Mohan had passed on the gun to Natubhai who fired on the deceased in the chest from the closed range which resulted into death of Talsi Gandaram. The offence is proved by oral evidence as well as the medical evidence and the recovery of the gun. It has also been submitted that the offence has also been committed under the Arms Act and the Bombay Police Act and that there was no basis to believe the plea of alibi because the accused could have made good his reach at the scene of offence even after attending the Court. 7. We have considered the submissions made by the learned counsel for the accused and the prosecution. There is no dispute about the factual back ground that in May, 1988, the State of Gujarat was facing a drought and the villagers used to take their cattle at the cattle camp and at that time, agricultural activities could not be there. It is the story of the prosecution that on the date of incident, Narsi Talsi i.e. son of the deceased Talsi Gangaram who had gone go Prangadh with his cattle at the cattle camp did not return in time and, therefore, his father deceased Talsi Gangaram left his place towards Prangadh to see as to why his son had not come back with the cattle. Shankar Pala accompanied deceased Talsi Gangaram. The deceased met his son near the village tank and they were returning towards his village Devcharadi. The witness Mahadev was behind them. At that time, Natubhai and Bhupat came from the east and Bhudarbhai and Ishwar Raghunath came from the side of the vilage tank.Bhudar was carrying a gun and passed it on to Natubhai who fired it on the chest of Talsi Gangaram from the distance of about 5 to 7 ft. and Talsi Gangaram fell down and four accused persons fled away towards the east. The deceased sustained injuries on his chest, face, neck and the throat. At that time, Bhikha Lalji had also come. 8. There is no dispute that there was no immediate cause with any of the accused to commit the offence and all that has been suggested with regard to the motive is the quarrel which had taken place between Natubhai present appellant and Narsi Talsi, son of the deceased Talsi Gangaram about eight months back in Navratri. Thus, there is no immediate cause and the motive which has been suggested is quite remote and cannot be said to be sufficient in the normal course so as to take upon the commission of the offence of murder after a period of about eight months. Absence of immediate cause or any strong motive may not be decisive and in a given case, if there is clinching evidence or wholesome evidence to support the commission of the offence, mere absence of immediate cause or strong motive may not be sufficient to discard the prosecution story and, therefore, we have examined the oral evidence in detail with regard to the commission of offence. No doubt, all the four eye witnesses have stated that the four accused persons were present on the spot, Bhudar had given gun to Natubhai who fired the gun on the chest of the deceased resulting into his death. PW-2 Mahadev had more than one opportunities at different stages to disclose the names of the assailants before filing the complaint at Dhrangadhra. From the scene of offence, leaving behind Narsi with the deceased, he went to his father Valjibhai who was at his farm which is at the outskirts of Sitapur but in the complaint, he nowhere says that he had gone to the house of the deceased to inform the wife of the deceased and to give names of the assailants. He has improved his version in his statement made before the Court that he had gone to the house of the deceased and had disclosed the names of the assailants. Thus, it is doubtful from the statement of this witness Mahadev PW 2 as to whether the names of the assailants were disclosed to the family members of the deceased or to any other person at the earliest possible opportunity while he was on way to his father after the incident had taken place and even the name of Shankar Pala as a witness to the incident who is alleged to be present at the time of commission of offence was not mentioned in the FIR and his name has been given out in the statements made before the Court. He, PW 1 has stated that he had gone to his farm and was on the way to his village from the farm when he witnessed the incident. He says that he has about 8 to 9 farms but the particulars of the farm was not given in the FIR. He also did not disclose in the FIR that he had gone to the house of the deceased to inform Pravin Khoda and the wife of the deceased with regard to the incident before going to his father at Vadi, although he admits that his house is at the back of the house of the deceased. He has also said that at the time when he left the spot, Talsi Gangaram was alive. Then, he has stated that he had gone to his farm, he also says that at that time, there was no agricultural activities and there was no work at the field. He has also disclosed that he did not raise any alarm or cry at the time when the gun was fired on Talsi Gangaram and has also stated that no such alarm was raised by Shankar Pala and he has stated that whether Shankar Pala has raised alarm or not is also not known to him. He has stated that the scene of offence is about l/2 km away from the village and his house is at the other end of the village and while going from the scene of offence to the village, he did not disclose the incident to anybody. Although there were about 50 houses in the way. Before entering the village, there is a place of Magha Maharaj which is at the distance of l/2 furlong from the spot. Magha Maharaj is 60 to 70 years old and he has sons aged about 30 to 35 years and no one was called. He then says that he didnot tell about the incident to anybody other than the persons of his house. He also says that when he came back with his father, then also, he did not talk about the incident and nobody asked him about the incident at the spot and there was no talk between him on one side and Pravin and Khoda on the other side. 9. From the statements of PW 2 Narottam alias Narsi Talsi, it is found that for some time, he was left alone near the body of his father and the other witnesses had left the spot. This witness was aged about 14 years at the time of incident. He then states that in the night, he went to his home and had gone to sleep and thereafter, he got up only at about 7 am on the next morning. He has stated that he left for Devcharadi from the cattle camp after the time of cattle camp was over and about l5 to 20 persons were going ahead, while he was on his way back to the village from the cattle camp. He has stated that he does not know as to how many persons were coming behind him but some persons of his village had bypassed him from behind whom he used to see in the village. While his injured father had fell down, persons coming from behind had passed from the way but he did not talk anything about it to them and they had seen his injured father but nobody had stopped nor did anybody ask him about the incident. There was no darkness by the time he left the spot for his house. He says that he went to his house at about 6.45 p.m. The villagers came after Pravin had come and he did not talk about the incident to anyone except Pravinbhai. His mother Kuvarben had come after he had left Whether the villagers who were going ahead had come back on hearing the firing is not known to him and it is also not known to him as to whether the persons who were coming behind had come or not after the firing. He thensays that he did not tell Mahadevbhai to inform about the incident to his brother at the house although he was knowing that his father had died immediately after he fell down. He says that he had kept the head of his father on his leg and, therefore, his clothes got blood stained. Mahadev stayed there for about five minutes. He says that his father did not run away and Shankar Pala did not intervene. He had seen the accused coming from a distance of about 20 ft. and at the time when he heard firing, Natubhai was at the distance of about 6 to 7 ft. He has denied the suggestion that he was not on the spot and has also denied the suggestion that the accused Natubhai Bhudarbhai was not present on the spot. P.W.3 Shankar Pala who was in the company of the deceased when the deceased had left his house to fetch his son has also stated that after the incident, he left for his home. He had no personal work to go towards Prangadh on the date of incident. He says that he had not asked Bhikha Lalji to stay on the spot. He did not think of living with the deceased and did not consider it necessary to stay there till Mahadev returns. He did not tell Narshi that he may go to the village and that he would be standing there. He has stated that the deceased Talsi Gangaram was ahead of the cattle and he was at the side and Narsi was on his side. He has also admitted that the place of Magha Maharaj was on the way, there is temple of Mataji but nobody came after hearing the gun fire. He did not talk to any of the persons who were coming from the village side although he says that about 10 to 15 persons were coming from the side of the village. He says that he could not say anything to any of these persons although there was nothing to prevent him from saying that Natubhai Bhudarbhai had fired the gun. Bhikha Lalji PW 4 is yet another villager who had said that Shankar Pala and Mahadev were present on the spot. Shankar Pala was following him and he has said that he did not narrate the incident. He did not inform about the incident either at the house of the Valjibhai or at the house of the deceased. He did not talk anything about the incident to anybody even after going to his home. 10. Thus, the version of these four eye witnesses after the incident does not appear to be natural and it is unbelievable that in a small village like this, when a person has been killed to death by use of fire arm at the outskirts of the village and which is witnessed by as many as four eye witnesses remains undisclosed to the persons who were passing by the scene of occurrence and is also not noticed by the persons at the nearby place, nobody comes from the nearby place of Magha Maharaj where there is said to be a temple of Mataji and these witnesses did not disclose to the others in the village, and the witnesses choose simply to go home. The witnesses such as Shankar Pala and Bhikha Lalji PW 3 and PW 4 go home as if nothing had happened. Boy of l3 to l4 years of age namely Narottam alias Narsi also goes to home to sleep for the whole night. The witnesses had left the body of the deceased Talsi Gangaram who had been fired in the custody of minor child. The PW 1 does not inform even the wife of the deceased immediately after the incident while the house of the deceased and the house of the witness