@)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 938 of 1995 with CRIMINAL APPEAL No 1011 of 1995 For Approval and Signature: HON'BLE MR.JUSTICE B.J.SHETHNA and HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MAHENDRA @ PUNAMBHAI BHOI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 938 of 1995 MR KB ANANDJIWALA for Appellant MR HM PRACHHAK, APP for Respondent 2. Criminal Appeal No. 1011 of 1995 MR YATIN SONI for Appellants MR HM PRACHHAK, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE B.J.SHETHNA and HON'BLE MR.JUSTICE J.R.VORA Date of decision: 17/01/2004 COMMON C.A.V. JUDGEMENT (Per: HON'BLE MR.JUSTICE J.R.VORA) 1. Both the appellants of these appeals were original accused of Session Case No.36/93 have preferred these appeals against the judgment and order delivered by Sessions Judge, Kheda at Nadiad on 11.9.1995, convicting accused No.1 Dinesh Chhaganbhai Bhoi for the charges proved against him under Section 302 of the IPC and sentencing him to life imprisonment. He has preferred Criminal Appeal No. 1011 of 1995, and convicting accused No.2 Bhailal Chhaganbhai Bhoi for the charges proved against him under Section 302 read with Section 34 of the Indian Penal Code. He has also preferred Criminal Appeal No. 1011 of 1995 along with appellant Dinesh Chhaganlal as appellant No.2 of the said Appeal. By the very judgment and order, learned Sessions Judge, Kheda at Nadiad, also convicted the accused No.3 Mahendra Bhupendra Punambhai, who has preferred Criminal Appeal No. 938 of 1995, and he is also sentenced to life imprisonment for the charges proved against him under Section 302 read with Section 34 of the IPC. For the charges under Section 135 of the Bombay Police Act, all the three accused were acquitted and though the charges against accused No.3 Mahendra @ Bhupendra Punambhai under Section 323 of IPC was proved, no separate sentence is awarded. 2. The facts leading to filing of prosecution against the present appellants in both the appeals are as under : The First Information Report, as per the prosecution case, was filed by one Kiranbhai Jayantilal, PW-1 on 6.10.1992 at about 2.00 hours. In all the FIR was filed against four accused. Out of this 4 accused, original accused No.2 Ramesh Chhaganlal Bhoi expired during trial and, therefore, appeal came to be abated against him. Accused Ramesh Chhaganlal Bhoi, Dinesh Chhaganbhai Bhoi and Bhailal Chhaganbhai Bhoi are real brothers, while accused No.4 Mahendra @ Bhupendra Punambhai is cousin brother of rest of the three accused. According to prosecution case, on 6.10.1992, at about 1.15 hours the incident occurred. PW-1 Kiran Jayantilal was residing near Darjiwad falia and they were in all 7 brothers and doing the business of electrical goods in the name of Gayatri Electricals. Deceased in the incident Rajendra was their brother. At the time of incident, deceased was serving at Bharuch in State Transport Depot. On the late night of 15.10.1992, there was a hawan of Goddess Verai Mata at Umreth. Deceased Rajendra visited Umreth with his family from Bharuch to attend the said Hawan of Goddess Verai Mata at Umreth. All the accused at the relevant time were staying near the residence of complainant. Before one and half month of the incident, the owner of the house, in which the accused were staying, had sold the said house to one T.A. Mani. The accused had suspicion and doubt in their mind that complainant and his brothers played part in the said transaction. At the time of the incident, complainant and his brother Ghanshyam PW-8 were sitting in their house and they heard commotion out side on the road. On hearing shouts, complainant Kiranbhai and PW-8 Ghanshyam Jayantilal came out of their residence and noticed that their brother Rajendra was returning from temple after having darshan of Hawan. They also noticed that accused No.1 Dinesh Chhaganbhai Bhoi was present with a sword in his hand, accused Ramesh (since died) was present with sword in his hand and other two accused Bhailal Chhaganbhai and Mahendra @ Bhupenra Punambhai present at the spot were abusing deceased Rajendra. Complainant attempted to persuade the accused not to utter abuses but all the accused excited and told that kill them today and accused No.1 Dineshbhai inflicted a blow of sword by pushing sword in the chest of deceased Rajendra causing piercing wound. Accused Ramesh (since deceased) also attempted a blow of sword on complainant but the same was parried by the complainant and the blow landed on a finger of left hand of the complainant. Accused No.4 Mahendra @ Bhupendra Punambhai is named in the FIR as cousin brother of the other accused and it is alleged that he inflicted a stick blow on the cheek of the complainant. At the time, Bhanubhai Patel came to the spot and the accused ran away from the scene of offence. The wound inflicted in the chest of deceased Rajendra was profusely bleeding and, therefore, the complainant called an autorickshaw from nearby of one Rameshbhai Darji. In the said rickshaw deceased was taken to Municipal Hospital of Umreth, but there, they found that the duty Medical Officer was not present. On returning from the hospital, deceased Rajendra died in the rickshaw and therefore the rickshaw was taken to Umreth Police Station where a complaint was lodged by complainant Kiranbhai before Police Sub-Inspector Jensinh Atusinh Thakor, who recorded the complaint Exh.57. The incident occurred on late hours of night of 5th of October, 1992 and on very early hours of 6th of October, 1992. The investigation thereafter was entrusted to PW-12 Jensinh Atusinh Thaker, PSI of Umreth Police Station, and after investigation was over, a charge sheet came to be filed for the offences punishable under Sections, 302, 323, 324, 504, 506 (2) read with Section 34 of the IPC and Section 135 of the Bombay Police Act against all the 4 accused in the court of learned Judicial Magistrate, First Class, at Umreth, who in turn vide order dated 21.1.1993 under Section 209 of the Criminal Procedure Code committed the case to the Court of Sessions which was registered as Session Case No. 36 of 1993 in the Court of Sessions Judge, Kheda at Nadiad. 3. On 27.7.94 charge for the offence punishable under Sections 504, 114, 506(2) 302, 34, 323, 324 of IPC was framed by learned Sessions Judge vide Exh. 4 against three accused i.e. present appellants only, because on 15.6.1994 original accused No.2 Rameshbhai Chhaganbhai Bhoi had died and vide order below Exh.2, the trial came to be abated against the accused Rameshbhai Chhaganbhai Bhoi. 4. The accused pleaded not guilty and, therefore, the prosecution examined as many as 13 witnesses to prove its case and also produced documentary evidence. 5. Learned Counsel Mr. Anandjiwala in Criminal Appeal No. 938 of 1995 on behalf of original accused No.3 and learned counsel Mr. Yatin Soni on behalf of appellants of Criminal Appeal No.1011 of 1995 filed by original accused No. 1 and 2 and learned APP Mr. H.M. Prachhak were heard in detail and at length. They also submitted their written submissions in detail. Therefore, before we deal with the contentions raised by both the sides, it is absolutely necessary to refer to the evidence of prosecution in detail and then to appreciate the same with reference to the contentions raised by both the sides. 6. PW-1 Kiranbhai Jayantilal is examined at Exh. 18. According to him, the incident occurred in early hours of 6th of October 1992. All the three accused were identified by him. The name of the mother of the accused was Dahiben and they were staying near the house of the complainant. According to PW-1 about one and half years before the present incident, the owner of the said house, in which the accused were staying, sold the said house to Mr. T.A. Mani and, therefore the accused had grievance against the PW-1 complainant and his brothers that they played part in the said transaction. PW-1 further stated that on account of this, the accused took frequent quarrels with them. PW-1 further deposed that at about 1.15 hours on 6.10.1992, he heard shouts and commotion out on the road while he was sitting in his house with his brother Ghanshyam and, therefore, both of them came out of their house and on the road they found that accused No.1 Dineshbhai and accused No.2 Rameshbhai (since deceased) had sword, accused Bhailalbhai had stick and cousin brother of the above said accused i.e. Mahendra had also stick in his hands and all the four accused were abusing deceased Rajendra. At that very juncture, his brother Ghanshyam and one Bhanubhai came to the scene of offence and all of them persuaded all the accused not to utter abuses. Accused Bhailal Chhaganbhai instigated other accused that complainant and his brother should be killed and, therefore, Dineshbhai - accused No.1 gave a blow with a sword on left side of the chest of Rajendra and deceased accused Rameshbhai also gave a blow of sword on the complainant which was parried by him but landed on the finger of left hand of PW-1. Accused No.4 according to PW-1 inflicted a blow of stick of his left cheek. The injury inflicted on Rajendra, according to PW-1, was serious and Rajendra was profusely bleeding and, therefore, he immediately called an autorickshaw from nearby which belonged to one Ramesh Darji. Thereafter, Ghanshyam PW-8 and Bhanubhai took Rajendra in Rickshaw at Government Hospital, but since the Doctor was not found in the hospital, they returned in the same rickshaw and while returning Rajendra died on way. Therefore, in the same rickshaw they turned towards Umreth Police Station and he offered the complaint in Umreth Police Station which was recorded and registered. In deposition - First Information Report, Mark 16/1 was shown to him, which he identified to be signed by him and he identified his signatures on the complaint. The complaint is on record at Exh. 57. In para-5 of his deposition PW-1 identified sword being mudammal article No. 9 which was in the hand of original accused No.1 Dineshbhai Chhaganbhai and the sword Article No.14 which was in the hand of deceased accused Ramesh Chhaganbhai. PW-1 also described swords in his deposition in detail. Sticks of the mudammal articles No.10 and 13 were also shown to this witness which was identified by him to be the sticks in the hands of accused No.3 Bhailalbhai and accused No.4 Mahendrabhai. In the said incident, PW-1 was also injured and, therefore, he was sent to Referral Hospital at Dakor where he received treatment of his injury. According to PW-1 the incident took place outside the dela (main door of the house) on road. According to PW-1 at the time of incident except him, PW-8 Ghanshyam, Bhanubhai and the four accused, nobody was present. He also stated that he witnessed the incident in the brightness of tube-light which was on pole nearby the place of the incident as public stree-light. He identified the clothes of deceased Rajendra, rings and watch worn by the deceased at the time of the incident. He also stated that before this incident, on 12.3.1990, between him and the accused a quarrel took place, in which he was beaten by the accused, for which he filed a complaint before Umreth Police Station and thereafter also on 12.2.1991 he was beaten by accused Dineshbhai, causing fracture on right leg and that incident was also recorded at Umreth Police Station and at that juncture when his deposition was recorded, according to PW-1 those cases were pending in the court at Umreth. According to this witness, after recording of the complaint, the dead body of deceased Rajendra was taken to the Police Station and inquest panchnama was drawn and thereafter dead body was sent to Dakor Hospital for postmortem. He has been cross-examined by the defence through separate lawyers i.e. for accused No.1 by one lawyer, and accused Nos.2 and 3 by other lawyer. In his cross-examination, he stated that his house is situated 1 km away from the temple of Goddess Verai Mata. Hawan started at midnight, which continued upto 7'O clock in the morning. At the place of Hawan, many persons remained present. Umreth Government Hospital was situated about 800 to 900 feet from his residence and in rickshaw it took about couple of minutes to reach to the hospital. The Police Station is situated at the distance of 2000 feet from hospital and in rickshaw it might take 5 minutes, according to PW-1, to reach Police Station from hospital. He denied that in local situation of scene of offence there was one outlet, in between, Pramod Soap Factory is situated near his house. He has been cross examined in detail about situation around the house belong to one Mr. T.A.Mani which is situated near the scene of offence. He admitted that PW-8 Ghanshyam was staying at Darjiwad at the relevant time. He also admitted that in his police statement he omitted to state that while he and PW-8 Ghanshyam were staying in the house and they heard shouts from outside. A contradiction is also sought to be made that PW-1 stated in complaint that the sword was thrashed in the chest of deceased Rajendra by accused No.1 Dineshbhai Chhaganbhai while in deposition PW-1 stated that such injury was caused on left side of the chest. He denied that there was darkness and there was no light. The incident took about four minutes. PW-8 Ghanshyam and Bhanubhai took up the deceased Rajendra and placed him in the rickshaw, but this fact according to PW-1 had not stated in the complaint. In cross-examination he further stated that at about 2.00 hours on the day of incident he reached to the Police Station. Thereafter, his complaint was recorded. It was alleged that he was maintaining good relationship with the police especially Investigating Officer PSI Thakor, but this allegation was denied by him. The fact that during inquest panchnama one key was not found from the clothes of the deceased which was found by the Doctor who performed postmortem is elaborately asked to this witness. Suggestions were also placed that the quarrel was picked up by the complainant's side and PW-1 pelted stones and the accused were beaten by sticks by the complainant's side. It was also denied that deceased accused Rameshbhai Chhaganbhai was attacked by the complainant side and had received injuries on elbow and cheek. He also received injury on the head. This fact was denied by PW-1. It was also asked in the cross-examination that the complainant side with sticks and iron pipes attacked the house of deceased - accused Rameshbhai Chhaganbhai but since the doors of the house of deceased - accused Rameshbhai Chhaganbhai could not be broken, deceased Rajendra went to the roof of their house and jumped on the roof of the house of the deceased accused and deceased Rajendra was noticed by Dahiben, Rajendra was confused and fell down in godown of Mr. T.A. Mani and some sharp iron objects was thrashed in the chest of the deceased Rajendra. PW-1 denied all these suggestions. It was asked about the discovery made by the Investigating Officer of the swords from the house of the accused in detail. His cross-examination runs into pages and attempt was also made that Sharmishthaben, wife of deceased Rajendra was accompanying him. Perhaps, these questions are asked because Sharmishthaben has not been examined by the prosecution in the trial and attempt has also been made in cross-examination that it was not possible for witness No.1 to identify the sword as has been described by him in the deposition to establish that the part of the swords from which the swords were taken in hand by the accused, but he denied the suggestions made to him by the defence. 7. PW-2 Baldevbhai Karsanbhai Prajapati is examined at Exh.21 by the prosecution, who was Deputy Mamlatdar at the time of the incident and from the scene of offence, he prepared the map of scene of offence, which is placed on record at Exh. 22. This witness has been examined by the prosecution only for this limited purpose. 8. PW-3 Exh. 24 Somabhai Mohanbhai is examined by the prosecution for the panch of panchnama Exh. 25 by which clothes of the deceased including a watch, two rings, jenoi etc. were seized by the Police. According to him, he was called by the Police on 6.10.1992 at about 12.30 hours at Police Station Umreth, and these clothes and other things were there in the Police Station, for which a panchnama was drawn and along with other panch he signed the panchnama. 9. PW-4 Atul Govindlal Shah is examined by the prosecution at Exh. 26 as a panch witness of panchnama Exh.27 being inquest panchnama. The witness has supported the inquest panchnama and has described the position of dead body according to panchnama. He has been cross-examined by the defence side. Allegations were levelled that he was all alone while the panchnama was drawn and the second panch was not present. It was also alleged that the complainant happened to be his friend and to oblige him he had signed the panchnama. 10. PW-5 Dr. Uday Sureshchandra Shah, is examined at Exh. 28 by the prosecution. According to him, on 6.10.1992, he was stationed as Medical Officer at Dakor Hospital, and on that day in the morning at 9.30 with a police yadi and inquest panchnama and other papers, dead body of the deceased Rajendra was brought to him. He started postmortem examination at 10'O clock in the morning and completed at 11.00'O clock. He described dead body in postmortem notes and his deposition he described the clothes which were on in the dead body. It was also stated that he found one key from the pocket of the pant which was on the dead body. On the shirt and pant there were stains of bloods and there were stains of bloods on the chest of the dead body. Generalized riggers mortis present all over body. On the back side of the body, PM liquidity was not found. He noticed the following external injuries. (1) Incised wound - sharp margin, no action & bleeding wound Inp++ slight oblique in fashion situated over lower 1/3 of sternum of about 2 1/2" x 1"* deep to sternum 4" on examination of wound following structure cut through (1) skin, subcutaneous tissue sternum lower 1/3 piece its 5th & 6th rib costal cartilage. (2) 5 mmt. lacerated wound superficial oblique over (LT) foot or based 2nd and 3rd great toe (3) 5mmt. lacerated with full thickness skin over (RT) great toe finger aspect. (4) Abrasion over (LT) shoulder jt. upper posterior aspect 2 x 1 c.m. superficial. As in column 17 injury No.1 (1) punctured incised wound cut high. However 1/3 of sternum of 5th & 6th ribs costal cartilage. Anti Mortem. From internal examination he found 1/3 of sternum, 5th & 6th rib costal cartilage. Both lungs collapsed and about 500 cc blood in Thoracic cavity. Pericardium torn due to punctured incised wound upto (RT) ventricle cavity. Puncture wound in (RT) ventricle of about 1.5 x 1 x 2 cm extending into (RT) ventricle cavity. Heart empty. Pericardium contain about 300 cc of blood. The stomach contain some solid food material with watery containing in it. According to the Doctor, the cause of death was instantaneous death due to shock & haemorrhage as a result of puncture penetrating incised wound of chest leads to injury to heart & cardia respiratory failure. According to Doctor, these injures were sufficient in ordinary course of nature to cause death and all the internal injuries were corresponding to external injury No.1. The injury was possible by sharp edged weapon and by the sword of muddamal article No.9. He has been asked about the possibility of causing injury Nos. 2 and 3 which were simple in the nature. PW-5 Dr. Uday Sureshchandra Shah also examined complainant Kiranbhai Jayantilal at about 11.00'O clock and he offered the history that at about 1'O clock he received injury by sword. He examined Kiranbhai on 6.10.92 and according to PW-5 Kiranbhai had following injuries: (1) Description of injuries (size, site, shape, nature of injuries etc.) O/I incised wound of 1 x 2 x 1/2 cm over hip of (Lt) middle finger 1 x 1/2 cm aspect. Abrasion superficial of 6 x 1 cm vertically over (RP) from exterior medlar aspect over middle 1/3 of (Rt) arm. In the opinion of PW-5, injuries inflicted to complainant Kiranbhai was possible by sharp blunt weapon and by sword of muddamal Article No. 14. According to him, while inflicting the injury by a wielded sword if the victim raises his hands then injuries which complainant received was possible. Dr.Uday Sureschandra Shah was extensively cross-examined by the defence side. He has been alleged that he had not performed any postmortem of the dead body in question, but he denied the allegation. He has been asked about the identification of the dead body, which was not done by the Police Constable, who brought the dead body, but he has replied that when inquest panchnama was provided with the dead body, the question of identification of the dead body by the Doctor would not arise. He has been asked that in inquest panchnama the key which was found by him was not referred, whether he asked anything to the Police Constable in this respect. The witness denied to have asked anything to the Police Constable. He has been asked that the edges of muddamal articles sword 9 and 14 were not sharp on both the sides and the swords were sharp edged from one side and while they were not sharp but blunt on the other side. Therefore, it was asked that the injury which deceased Rajendrabhai received could not have been received by him by the sword of muddamal article 9. PW-5 admitted that when injuries caused by the weapon like muddamal article No.9 sword, ordinarily, the injury would be sharp at one end while the injury would be irregular in shape on the other end, but he explained that it was not necessary that all the time in such circumstances injury caused would be sharp at one end and would be irregular at the other end. He was asked about the measurement of the injury caused to deceased Rajendra and was in this regard further asked that the said injury could not be possible by the sword of muddamal article No.9, but PW-5 denied this suggestion. He also stated in the cross-examination that he prepared the rough sketch of the injury caused to the deceased and he had shown that figure by drawing the same in the postmortem notes. According to him, since there was some semi digested food found in the stomach of the deceased, he might have taken food before about 4 hours from the death. According to him in view of the rigger mortis position on the dead body the death might have been caused during previous 8 to 12 hours from the time of the postmortem. He also in the cross-examination stated that the rigger mortis on the dead body was on the second stage and, therefore, death could have been caused during previous 20 to 24 hours of the postmortem. He denied that it was not possible to say for him about the weapon by which the injury was caused on account of omission to note angles of the injury, and last