IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 200 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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? -------------------------------------------------------------- KOLI BHOPA PREMJI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 200 of 1998 MR DD VYAS, for Appellant MR. PR ABICHANDANI, APP for Respondent - State of Gujarat -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA and MR.JUSTICE SHARAD D.DAVE Date of decision: 19/08/2003 C.A.V. JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) 1. The appellant has, by filing this Criminal Appeal under Section 374(2) of Criminal Procedure Code, 1973 (for short "Cr.P.C.") challenged the correctness, legality and validity of the judgment, Ex.64 dated 15.01.1998 rendered by the learned Additional Sessions Judge, Surendranagar (who will be referred to hereinafter as "the learned Judge of the trial Court") in Sessions Case No.4 of 1996, by which the appellant has been convicted under Section 235(2) of Cr.P.C. for offences punishable under Section 302 of the Indian Penal Code, 1860 (for shot the "I.P.C.) and under Section 135 of Bombay Police Act, 1951 and is sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.250/-- and in default of payment of fine, to undergo further rigorous imprisonment for three months for an offence punishable under Section 302 of I.P.C. and also to undergo simple imprisonment for one month and to pay a fine of Rs.250/-and in default of payment of fine, to undergo further simple imprisonment for one month for an offence punishable under Section 135 of the Bombay Police Act, 1951. 2. The case of the prosecution as unfolded by the evidence of the prosecution, can be summarized in a nutshell as follows. 2.1 The complainant P.W.1 Nathabhai Ramjibhai, resident of Navagam (Bamanbor) (Taluka Chotila) (District Surendranagar) is the eldest amongst, they five brothers, second is Laxman alias Lakho, with whose wife the appellant had illicit relations since four years before the date of the complaint, third is Vinu, fourth is Mansukh (victim and who has been killed, as alleged by the prosecution) and youngest fifth is Ramesh. The appellant is eldest son of Premji, Sura who is an uncle of the complainant. 2.2 From the evidence, it reveals that any time before 03.09.1995, the appellant and P.W.10 Lila w/o. Laxman Ramji had gone to enjoy the fair of Tarnetar and Than. Laxman Ramji and his brother had seen the appellant with Lila w/o. of Laxman Ramji moving in the fair and, therefore, at about 21.00 hours on 03.09.1995, a quarrel took place in between Laxman Ramji and Mansukh Ramji on one side and appellant on another side. From the evidence it further appears that, as per the case of the appellant, Laxman Ramji husband of Lila inflicted iron pipe - blow on the head of appellant and Mansukh Ramji (since deceased) inflicted iron pipe - blow on the left shoulder of the appellant. As a result of said incident which took place in the "chowk" of village Navagam (Bamanbor), the appellant lodged his police complaint against Laxman Ramji and Mansukh Ramji, in Chotila Police Station at about 23.00 hours on 03.09.1995 and that complaint came to be registered as C.R.No.I-111/95. As per the case of the prosecution, because of the aforesaid incident, the appellant was bearing malice against Mansukh (deceased). 2.3 In continuation of the aforesaid incident, at about 11.00 P.M. (at night) on 01.10.1995, the appellant had inflicted more than one knife blows on the person of Mansukh (deceased), who was sleeping in the "Chora" of temple known as "Thakar Mandir". It is the case of the prosecution that at that time, P.W.2 Virabhai Ukabhai and Rama Deva (not examined) were also sleeping in chora of the said temple near to the place where Mansukh (deceased) was sleeping. As per the case of the prosecution, P.W.2 Virabhai actually saw the appellant inflicting knife blows on the body of Mansukh (deceased). He raised cries, as a result of which, P.W.3 Ghoghabhai Ramjibhai, P.W.4 Premjibhai Sardulbhai, a Sarpanch of village Navagam (Bamanbor), and P.W.6 Panchabhai Surabhai, who were present in the "chok" in front of temple rushed to the place from where that cries were raised by P.W.2 Virabhai. It is the case of the prosecution that P.W.3 Ghoghabhai, P.W.4 Premjibhai, and P.W.6 Panchabhai, all the three had seen with their own eyes, the appellant armed with knife running away from the place of the scene of the offence and Mansukh (deceased) was found lying in injured and bleeding condition in the "chora" of temple (a part and parcel of premises of the temple). It is also the case of the prosecution that on hearing the shouts of P.W.2 Virabhai, Dhama Deva, P.W.3 Ghoghabhai, P.W.6 Panchabhai Surabhai had also rushed to the place of incident. Thereafter, P.W.4 Premjibhai, Sarpanch applied bandage by tying a handkerchief at the injured part of Mansukh. Thereafter, Sama Sura (uncle of Mansukh) and brothers Natha and Vinu had also come there. They took away Mansukh (deceased) to their residence and thereafter, they shifted Mansukh (deceased) by taking him in the matador of Rabari Ratna, to Rajkot. 2.4 As per the evidence on the record, injured Mansukh (deceased) was admitted in emergency ward of Civil Hospital at Rajkot at 00.30 hours (mid night) on 02.10.1995. He was examined by P.W.5 Dr.Rathod, who declared him as dead. Doctor, who was on duty in the Hospital informed the Police of Rajkot. The complainant P.W.1 Nathabhai lodged his complaint in the Hospital at Rajkot and that complaint came to be registered as C.R.No.0/95 in the Pra-Nagar Police Station at Rajkot at 02.30 hours on 02.10.1995. From the evidence, it appears that Police of Pra-Nagar Police Station, Rajkot had informed the police of Chotila Police Station and, therefore, one senior police head constable of Chotila went to Civil Hospital, Rajkot and held an inquest of deceased by drawing a panchnama during the period between 03.00 A.M. and 03.45 A.M. on 02.10.1995. Thereafter, that senior police head constable of Chotila, along with his Yadi, sent deadbody of Mansukh to P.W.5 Dr.Rathod for the purpose of autopsy. P.W.5 Dr.Rathod received that deadbody of Mansukh along with Yadi at about 5.00 A.M. on 02.10.1995. He performed postmortem of deadbody of Mansukh during the period from 7.30 A.M. to 8.45 A.M. on 02.10.1995. 2.5 P.W.13 Kesubha Natvarsinh Zala, who was on duty as P.S.O. of Chotila Police Station received at 7.15 A.M. on 02.10.1995, the complaint, which was registered as C.R.No.0/95 in Pra-Nagar Police Station, Rajkot brought by police man of Rajkot. He, immediately, made an Entry No.6 in Station Diary of Chotila Police Station and registered the said complaint in Chotila Police Station, as C.R.No.I-126/95 at 7.15 A.M. on 02.10.1995. 2.6 P.W.16 Dipakkumar Bhagvandas Shah, who was P.S.I. attached to Halvad Police Station received a vardhi at 3.00 A.M. on 02.10.1995 from the Deputy Superintendent of Police, Dhragandhra, who directed him to carry out the investigation of the case registered in Chotila Police Station. He immediately left Halvad and reached Chotila at about 6.00 A.M. on 02.10.1995. As complaint was registered in Chotila Police Station, he started to carry out the investigation. First, he went to the place of scene of offence where P.W.4 Premjibhai had shown the place of incident to P.W.16 P.S.I. Shah. P.W.16 P.S.I. Shah drew a panchnama of the scene of offence during the period between 7.45 A.M. and 8.30 A.M. on 02.10.1995. Thereafter, he recorded the police statements of witnesses, who were conversant with the facts of the case. Meanwhile, he had received an information that the accused had gone towards Rajkot side and, therefore, he sent two police officers to Rajkot. He also sent a wireless message to Civil Hospital, Rajkot. 2.7 It is the case of the prosecution that before committing an offence of murder the appellant had consumed poisonous drug and, therefore, the father of the appellant had taken him to P.W.11 R.M.P. Dr.Dhanjibhai Vasharambhai at Bedala where some primary treatment was given to the appellant and, thereafter, Dr.Rathod advised the father of the appellant to take him to some big Hospital. Thereafter, the relatives of appellant took him (Mansukh) to P.W.17 Dr.Jubeda Husenbhai Juneja and got him admitted in the Referral Hospital, Chotila. On the next day i.e. on 03.10.1995 in the morning at 9.00 A.M., the appellant was referred to Civil Hospital at Rajkot. As per the evidence on the record, the appellant was brought in the Civil Hospital at Rajkot at 2.45 P.M. (Noon) on 03.10.1995. P.W.14 Dr.Ashvinkumar Devrajbhai Tank gave medical treatment to the appellant. He discharged the appellant from the Hospital on 05.10.1995. 2.8 P.W.16 P.S.I. Shah, had received an information from Ratna Dhudha Rabari, Driver of Matador that the accused was there in the village Bedala and, therefore, he immediately, went to village Bedala and found that accused was lying in the dispensary of P.W.11 Dr.Rathod. Thereafter, P.W.16 P.S.I. Shah in company of accused and Doctor came to Chotila Hospital and got the accused admitted in the Chotila Hospital. He wrote a Yadi to the Executive Magistrate requesting him to record a dying declaration of the accused. P.W.15 Dhirajlal Ratilal Dave, Executive Magistrate of Chotila received that Yadi and, therefore, he went to the Referral Hospital, Chotila and recorded a dying declaration of the accused during the period between 18.40 hours and 18.58 hours on 02.10.1995. 2.9 On the next day i.e. on 03.10.1995, regular P.S.I. of Chotila P.W.18 Jesangbhai Jethabhai Dhranga resumed his duty, on expiry of his leave, and took over the further investigation from P.W.16 P.S.I. Shah. He wrote a Yadi to Mamlatdar requesting him to prepare a Map of the place of the scene of offence. P.W.18 Mr.Dhranga proceeded to Navagam for the investigation. As he was assaulted, he was admitted in the Hospital. Meanwhile he was transferred to Vadhavan Police Station and, therefore, he handed over the further investigation to P.W.19 P.S.I. Surajibhai Thavraji Kharadi. 2.10 As per the evidence of P.W.19 P.S.I. Kharadi, when he was on duty as P.S.I. of Chotila Police Station on 04.10.1995, he received papers of the investigation from P.W.16 P.S.I. Shah on 05.10.1995. He arrested accused under arrest panchnama at 11.00 A.M. on 06.10.1995. When the accused was in police custody, he had shown his willingness to show the knife which was used in the crime. Thereafter, by following the due procedure and by drawing the panchnama under Section 27 of the Indian Evidence Act, he attached and seized the muddamal knife. Thereafter, he sent incriminating articles and muddamal articles attached and seized by him under the panchnama to the Forensic Science Laboratory, Junagadh (for short "F.S.L."). On receipt of Report from the F.S.L., he filed a charge-sheet on 29.12.1995 against the accused in the Court of the learned J.M.F.C., Chotila. That charge-sheet came to be registered as Criminal Case No.1790 of 1995 for the offences punishable under Section 302 of I.P.C. and also under Section 135 of the Bombay Police Act. As an offence punishable under Section 302 of I.P.C. is exclusively triable the Court of Sessions, the learned J.M.F.C., by passing a committal order under Section 209 of Cr.P.C. on 01.01.1996, committed the said case to the Court of Sessions at Surendranagar. On receipt of the papers, that case came to be registered as Sessions Case No.4 of 1996 in the Court of Sessions at Surendranagr. 3. On the basis of material on record, the learned Judge of the trial Court framed a charge Ex.5 on 22.05.1997. That charge was read over and explained to the accused. On recording his plea, he pleaded not guilty to the charge and claimed to be tried. 4. In order to bring home the charge against the accused for which the charge Ex.5 was framed, the prosecution examined the following witnesses :- P.W.1 Nathabhai Ramjibhai, (complainant) Ex.11 P.W.2 Virabhai Ukabhai Ex.13 P.W.3 Ghoghabhai Ramjibhai Ex.14 P.W.4 Premjibhai Sardulbhai, (sarpanch) Ex.15 P.W.5 Dr.Mansukhlal Jivrajbhai Rathod, Ex.16 (Medical Officer of Rajkot Civil Hospital) P.W.6 Panchabhai Surabhai Ex.19 P.W.7 Rameshbhai Manubhai (panch witness Ex.24 No.1 for Mark 10/4) P.W.8 Ramesh Somabhai (panch witness No.1 Ex.25 for Mark 10/5 & 10/6) P.W.9 Dhirubhai Mohanbhai (panch witness Ex.26 No.2 for Mark 10/5 & 10/6) P.W.10 Lilaben Laxmanbhai Ex.27 P.W.11 Dr.Dhanjibhai Vasharambhai Ex.30 (Medical Practitioner in Bedala) P.W.12 Bhavubha Shivubha (P.S.O. of Pra- Ex.32 Nagar Police Station, Rajkot) P.W.13 Kesubha Natvarsinh Zala (P.S.O. of Ex.34 Chotila Police Station) P.W.14 Dr.Ashvinkumar Devrajbhai Tank Ex.38 (Medical Officer of Rajkot Government Hospital) P.W.15 Dhirajlal Ratilal Dave (Mamlatdar and Ex.42 Executive Magistrate, Chotila) P.W.16 Dipakkumar Bhagvandas Shah (P.S.I. of Ex.47 Hadavad Police Station) P.W.17 Dr.Jubeda Husenbhai Juneja Ex.50 (Medical Officer of Referral Hospital at Chotila) P.W.18 Jesangbhai Jethabhai Dhranga (P.S.I. of Ex.52 Chotila Police Station) P.W.19 Surajibhai Thavraji Kharadi (P.S.I. of Ex.54 Chotila Police Station) 5. In addition to the aforesaid oral evidence, the prosecution also produced and proved the following documents. 1. Complaint Ex.12 2. P.M. Notes Ex.18 3. Inquest panchnama Ex.20 4. Panchnama of the scene of offence Ex.21 5. Map of the scene of offence Ex.22 6. F.I.R. lodged by accused on 03.09.95 Ex.23 7. Panchnama of the clothes of the Ex.33 deceased 8. Medical certificate issued by Dr.Tank Ex.39 9. Carbon copy of dying declaration Ex.46 10. Bunch of case papers produced by Ex.51 Dr.Juneja 11. Discovery panchnama of the knife Ex.56 drawn u/s.27 of Indian Evidence Act 12. Report of F.S.L. Ex.59 13. Report of the Serologist Ex.60 in support of their case against the accused. 6. After recording the evidence of the prosecution witnesses was over, the incriminating circumstances appearing against the accused were brought to the notice of and explained to the accused and whatever replies he gave to the questions put under Section 313 of Cr.P.C., were recorded below his plea. The accused has, practically, denied the case of the prosecution and his defence is of a general denial. Still however, he has admitted certain facts. In reply to question No.5, he has replied that he had illicit relations with Lila w/o. Laxman Ramji and that he was beaten by Mansukh (deceased) for which a case was tried. In reply to question No.57, he has replied that Lila w/o. Laxman Ramji was not abandoning him and she was giving him threats that she would commit suicide, if she would not be taken away by him and, therefore, he consumed poisonous drug. He has also admitted that he had illicit relations with her since last four years. He has filed his written reply Ex.62. It is the defence pleaded in written reply Ex.62, that witness P.W.1 Nathabhai is a relative of the deceased Mansukh and that he (accused) had illicit relations with Lila, who is a wife of elder brother of the deceased Mansukh. It is further the defence of the accused that he wanted to abandon Lila, but she was not willing to leave him, as a result of which the whole village was against him and was keeping an inimical relation with him. It is also the defence of the accused that on the basis of the doubt and in collusion with each other, the witnesses have falsely implicated him in the case and that he has not committed a murder of Mansukh. He has denied the evidence of witnesses, witness wise. In para-13 of his written reply, Ex.62, the accused has stated that P.W.15 Dhirajlal Ratilal Dave (Executive Magistrate) has not recorded his any dying declaration and that he was not conscious in Chotila Hospital and that he has not signed any dying declaration. Alleged original dying declaration is lost and, therefore, Dhirajlal (Executive Magistrate) has produced carbon copy which has been concocted subsequently. In last para of the written reply Ex.62, the accused has advanced his case, that because of his illicit relations with Lila, the whole village was against him and was keeping inimical relation with him and that he has been falsely implicated in the case. He has further stated that on the date of the incident, he was present in his own house. Lila was not leaving him and she wanted to keep the relations continued with him, forcibly and, therefore, he felt that it was not good for him to survive and, therefore, at 8.00 P.M. he consumed a poisonous drug and, thereafter, he became complete unconscious. He has further stated that he became conscious on date 3rd or 4th and during that interregnum, he has been falsely implicated and roped in the case and further that he is an innocent. 7. Thereafter, after hearing the arguments of the learned advocates for both the parties and after making an examination, scrutiny and appreciation of the evidence on record, the learned Judge of the trial Court has come to the conclusions that the the prosecution proved beyond all reasonable doubt, that the accused committed a murder of Mansukh and that the accused has committed a breach of notification of the District Magistrate. On the basis of the said conclusions, he has given a clear finding that the accused has committed the offences punishable under Section 302 of I.P.C. and Section 135 of the Bombay Police Act, 1951. On the basis of this finding, the learned Judge of the trial Court, by rendering his detailed judgment Ex.64 dated 15.01.1998 in aforesaid Sessions Case No.4 of 1996, convicted the accused under Section 235(2) of Cr.P.C. for the offences punishable under Section 302 of I.P.C. and Section 135 of Bombay Police Act, 1951 and inflicted different sentences as stated in para-1 hereinabove. 8. Being aggrieved against and dissatisfied with the said judgment of conviction and sentence, the accused has, by preferring this present Criminal Appeal, challenged the said judgment, Ex.64. 9. We have heard Mr.D.D.Vyas, learned senior advocate for the appellant - accused and Mr.P.R.Abichandani, learned APP for the respondent - State of Gujarat, in detail, at length. Mr.Vyas and Mr.Abichandani have taken us through the entire evidence on record, oral as well as documentary. Mr.Abichandani has also taken us through the impugned judgment. 10. Mr.D.D.Vyas, learned senior advocate for the accused has assailed the impugned judgment on the following counts. [A] The learned Judge of the trial Court has not appreciated the evidence correctly in its proper perspective. [B] The evidence of alleged eye witness P.W.2 Virabhai is not trustworthy and reliable as there are so many infirmities and major contradictions in his evidence. His presence at the place of incident is very much doubtful and further his evidence is not probable because at the alleged time of the incident, there was no electricity light and, therefore, he had no opportunity to see the assailant in the darkness. His conduct is most unnatural and, therefore, the learned Judge of the trial Court has grossly erred in placing reliance on the evidence of P.W.2 Virabhai. He has argued that the evidence of P.W.2 Virabhai should be discarded by this Court for coming to its own conclusion. [C] For three other witnesses, P.W.3 Ghoghabhai P.W.4 Premjibhai, and P.W.6 Panchabhai, who had, as alleged by the prosecution, seen the accused armed with the knife running away from that place, he has argued that their evidence is full of major contradictions and in the absence of electricity light, they could not have seen anything and, therefore, their evidence being doubtful, should not be taken into consideration. [D] The aforesaid four witnesses as well as complainant are closely related to the deceased Mansukh and, therefore, they are highly interested witnesses and, therefore, their evidence should be discarded at the time of appreciation of the evidence on record. [E] He has argued that as per the evidence of P.W.2 Virabhai, before the incident took place, three persons were sleeping on the Chora of temple and amongst them one was Rama Deva, second was deceased Mansukh and third was he himself. Mr.Vyas has argued that the prosecution has purposely not examined Rama Deva whose house is shown towards the West leaving the road leading to Sarvaiya Fali, in the Map Ex.22. He has further argued that Rama Deva was an eye witness to the incident, as per the case of the prosecution and, therefore, he was most material important witness of the prosecution and as he has been dropped, an adverse inference should be drawn against the prosecution that had he deposed before the Court, perhaps quite contrary and different facts might have been deposed to by Rama Deva. [F] He has argued that the prosecution has put much stress on alleged dying declaration Ex.46 recorded by P.W.15 Dhirajlal (Executive Magistrate). He has argued that fortunately the accused has survived, after consuming poisonous drug and, therefore, in no case Ex.46 can be said to be a dying declaration relevant under Section 32 of the Indian Evidence Act. He has also argued that the said statement Ex.46, cannot be said to be a statement under Section 164 of Cr.P.C. because right from the dispensary of P.W.11 Dr.Dhanjibhai of Bedala to Chotila Hospital, the accused was under constant police surveillance and, therefore, the said statement Ex.46 is hit by Section 25 of the Indian Evidence Act. [G] He has argued that it is the case of the prosecution that the said statement Ex.46 as alleged by the prosecution was recorded during the period between 18.40 hours and 18.58 hours on 02.10.1995, when the accused was under medical treatment in Chotila Hospital, but as per the evidence of P.W.17 Dr.Juneja, the accused was admitted in the Referral Hospital of Chotila at 20.00 hours and, therefore, ex-facie said statement Ex.46 appears to be false and concocted, because he was admitted in Chotila Hospital at 20.00 hours. He has argued that in view of this evidence on record for Ex.46, said statement is inadmissible in evidence because original primary evidence is missing and the prosecution wants to place reliance on carbon copy which is a secondary evidence. [H] Mr.Vyas has argued that it is in evidence on record that before 03.09.1995, this accused had lodged one complaint being C.R.No.I-111/95 against Laxman Ramji and Mansukh Ramji in Chotila Police Station and that complaint is on record Ex.23. This complaint Ex.23 has been exhibited with the consent of defence lawyer. The learned defence lawyer put his consenting endorsement below list Ex.10 for the documents Mark 10/1 and 10/15 and wrote that he has no objection if said two documents are exhibited and be read as evidence and, therefore, it can be said that this Ex.23 is admitted document for the accused. Mr.Vyas has argued that as per this complaint Ex.23 any time before 03.09.1995, the accused and Lila w/o. Laxman Ramji had gone to enjoy the fair of Tarnetar and Than and they both were seen by Laxman and his brother and, therefore, by bearing malice the accused was beaten in Chowk of village Navagam (Bamanbor) at about 21.00 hours on 03.09.1995. As per this complaint Ex.23, Laxman Ramji and Mansukh Ramji both had abused present accused and in the course of verbal altercation, both Laxman Ramji and Mansukh Ramji got excited and inflicted iron pipe blows on person of Mansukh and Laxman inflicted iron pipe blow on the head of the accused and Mansukh inflicted iron pipe blow on left shoulder of the accused and in that incident, the present accused was seriously injured for which he lodged the said complaint for offences punishable under Sections 324, 323, 504, 114 of I.P.C. and also Section 135 of Bombay Police Act. Mr.Vyas has argued that because of this complaint Ex.23, which was lodged by the present accused, he has been falsely implicated in the