Case: Ramanbhai Naranbhai Patel  Vs. State Of Gujarat

of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad day light. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them.21. But even that apart, there is direct eyewitness account deposed to by the witness Dhirubhai Mohanbhai (brother of the deceased), witness Dhirubhai Mohanbhai P.W.5, the tenant residing in the locality and Dilipbhai, the younger brother of the deceased. These witnesses have clearly deposed that they knew the accused. In fact, Dilipbhai was the person who was involved in the incident of the previous day wherein Accused No. 1 and his accomplices had a quarrel with him and his supporters. That part of the evidence of these eyewitnesses had remained well sustained on record. So far as witness Niruben was concerned, she is the wife of the deceased Ramanbhai Mohanbhai. The accused mounted an assault on her husband in her bedroom and even though she might not be knowing the accused earlier, the faces of the accused mounting such an assault and which caused fatal injuries to her husband can easily be treated to have been imprinted in her mind and when she could identify these accused in the Court even in the absence of identification parade, it could not be said that her deposition was unnatural or she was trying to falsely rope in the present accused by shielding the real assaulters on her husband.22. In this connection, we may also consider one grievance put forward by learned Counsel for the appellants. So far as the evidence of witness Dhirubhai Mohanbhai is concerned, he submitted that on a holiday like 25.12.1987, this witness who was aged 19 years, had no occasion to stand near the pan galla and witness the incident and that he was a chance witness. It is difficult to appreciate this contention. It is not unnatural for a younger boy like Dhirubhai Mohanbhai on a holiday to stand near the pan galla. It was he who detected Accused Nos. 3, 4 and 6, who came on motorcycle and who were followed by their other accomplices forming part and parcel of the unlawful assembly. They were all armed with deadly weapons. This witness cannot be said to be a chance witness as he was staying in the same house in which Ramanbhai Mohanbhai was staying. His presence was, therefore, most natural. As he was involved in quarrel with Accused No. 1 and his group on the earlier day, he could easily identify them and could visualise that they had come to mount an assault on them. Learned Counsel for the appellants then submitted that if that was so the accused would have first assaulted Dhirubhai Mohanbhai instead of assaulting the witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai or for that matter deceased Ramanbhai Mohanbhai. The High Court has given a cogent reason for repelling this contention. The accused, as the eyewitness account shows, first rushed in a group to the Press belonging to Nitinbhai, who was involved in the incident of earlier day, and there they assaulted Bhogilal Ranchhodbhai and in the process also Karsanbhai Vallabhbhai and then rushed into the house of Ramanbhai. Therefore, they might have failed to witness Dilipbhai but that does not mean that the eyewitness account of Dilipbhai should be treated to be a concocted one especially when he fully knew the accused and their intentions as he had a quarrel with them only on the earlier day.23. Similarly, the submission of learned Counsel for the appellants that witness Dhirubhai Premjibhai-P.W.5, was a chance witness, also cannot be countenanced as the evidence on record shows that he was a tenant of Shivkrupa building situated in the near vicinity and he was staying in the locality since number of years. He had no reason to falsely implicate the accused nor was he interested in any of the prosecution witnesses. He knew the accused as deposed to by him and that part of the evidence has stood the test of cross-examination. Consequently, this witness cannot be said to be a chance witness as contended by learned Counsel for the appellants. So far as the witness Dhirubhai, brother of the deceased is concerned, he was a practising advocate and he was staying in the nearly house. His version was quite natural that he rushed on spot and saw the assault by the accused on the victims and tried to help the injured Ramanbhai Mohanbhai being carried to the hospital. This witness also had deposed that he had known the accused since long. Consequently, even leaving aside the eyewitness account of Niruben and the injured witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai as there was no identification parade of the accused qua them, the eyewitness accounts of Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai clearly rope in the accused in the crime as they were well known to them. Both the Courts below have, therefore, rightly placed reliance on this evidence to bring home the charges to the accused. The net result of this discussion is that Accused Nos. 1 and 2 are clearly mentioned in the dying declaration Exhibit-75. They are said to have assaulted the deceased and inflicted severe injuries, which ultimately killed him. That part of the dying declaration is fully supported by the eyewitness account of witnesses Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai who had seen these accused in the company of Accused Nos. 3, 4 and 6 and who had, on the date of the incident, being armed with deadly weapons and having formed an unlawful assembly had committed the crime in question. It must, therefore, be held that the prosecution had fully established its case against Accused Nos. 1, 2, 3, 4 and 6. Their appeal was rightly dismissed by the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. We have also carefully considered the impugned judgment of the High Court and have found that the conclusions to which the High Court reached against the appellants is well sustained on evidence on record and calls for no interference. It could not be demonstrated by learned Counsel for the appellants that the concurrent findings of fact reached by the Sessions Court and the High Court on prosecution evidence suffered from any manifest illegality or perversity or had resulted into any grave failure of justice. Once this conclusion is reached, the appeal would be liable toNos. 1 and 2reason is obvious. According to the prosecution case and as supported by eyewitness account, a group of persons armed with deadly weapons came in by speeding vehicles like scooter and Bullet motorcycles in batches and mounted an assault in broad day light near the Press as well as in the house of deceased Ramanbhai Mohanbhai and also in the near vicinity thereof resulting in serious injures by sharp cutting instruments to eyewitnesses Bhogilal Ranchhodbhai, P.W. 2, Karsanbhai Vallabhbhai, P.W. 14, and Dhirubhai Mohanbhai (brother of deceased). The injures suffered by Bhogilal Ranchhodbhai were apparently of a very serious nature as his intestines had come out, as noted by the doctor who treated him, and a piece of his intestine was even found lying on the spot and there was blood shed all round. In such a situation the anxiety of PSI Shri Parmar to first remove the injured to the hospital to save their lives instead of going into the meticulous details by way of interrogating the persons standing nearby for finding out the cause of the assault, cannot be said to be unnatural or uncalled for. It is in the evidence of PSI Shri Parmar that the moment he got an opportunity in the hospital to record the statement of Ramanbhai Mohanbhai, he recorded the same at about 12.30 P.M. because prior thereto the doctor attending upon the injured had not permitted him to interrogate the injured and that the injured Bhogilal Ranchhodbhai was unconscious. While the injured Ramanbhai Mohanbhai was also being given preliminary treatment and only when he was removed to the ward that PSI Shri Parmar got an opportunity to interrogate him and immediately recorded his statement as an FIR which subsequently, as noted earlier, has become a dying declaration i.e.The evidence of Shri Parmar further shows that thereafter he started investigation, went on spot, made Panchnama of three places of offence i.e. the Press, the house of Ramanbhai Mohanbhai and also in the vicinity and when in the meantime the injured Ramanbhai Mohanbhai died at 4.00 P.M. in the hospital recording the case of order, the inquest Panchnama was made and thereafter in the evening statements of witnesses were recorded. Under these circumstances, it is difficult appreciate how it can be alleged that the police investigation was not a bona fide one. It is, of course, true that the High Court, as noted in the impugned judgment, has observed that PSI Shri Parmar had miserably failed to come up to an ideal standard of investigation. But, in our view, the said observation is not fully justified. It may be that Shri Parmar could have acted more promptly but that would not mean that he was guilty of any mala fide intentions. Learned Counsel for the appellants also heavily relied upon the observations of the High Court in para 30 of the judgment that theof the witnesses and more particularly of Dhirubhai Mohanbhai, as also theof the two police officers Shri Parmar and Shri Buch, bring out enough material to show that some efforts were being made to influence the investigation. These observations, however, cannot help the learned Counsel for the appellants for the simple reason that the High Court itself notes that theseefforts had failed. Once the injured eyewitnesses and other eyewitnesses have been found to be reliable and especially when the dying declarationclearly implicate Accused Nos. 1, 2 and other persons, it is not possible to countenance the submission of learned Counsel for the appellants that PSI Shri Parmar was waiting to rope in innocent accused and was in search of their names. The submissions in support of these two points, therefore, are not of any avail to the learned Counsel for the appellants.Point No. 3 :16. It is true that the FIR, based on dying declarationdoes not disclose the names of all the accused. However, a mere look at the said dying declaration shows that the deceased Ramanbhai Mohanbhai clearly stated that he was assaulted by deadly weapons by AccusedNos. 1 andamongst others, of course, he mentioned the names of Accused No.Ghanshyambhai Patel and one another Ghanshyambhai who assaulted him. But Accused No.Ghanshyambhai Patel was already acquitted while Ghanshyambhai was notHowever, in the same statement, he also mentioned that there was an assembly of 15 to 17 persons. Consequently, the dying declaration can certainly be held to have involved AccusedNos. 1 andin the fatal assault on deceased Ramanbhai Mohanbhai, amongst others. Thus it has to be kept in view that the said dying declaration had not only mentioned a limited number of persons who had attacked him but had also clearly involved other persons who were accomplices of the named accused, who all came in a group and mounted assault on him. Consequently,of names of remaining accused by Ramanbhai Mohanbhai in his dying declaration pales into insignificance. That disposes of Point No. 3.Point No. 4 :17. So far as the medical evidence is concerned, the High Court has observed in para 13 of the judgment that looking to the injuries received by the surviving victims as well as on the person of the deceased, the case of weapons asby the prosecution is certainly made out. No doubt, there is reference to presence of spear and dharia, which has not been ultimately spoken to by any of the witnesses as having been used, but when gupti is used, according to prosecution, stab wounds of a particular dimension can certainly be correlated with it as would be the case with the use of knife. Axe blows are also clearly made out from the point of view of medical evidence. These observations of the High Court, while considering the medical evidence, are fully borne out from the eyewitness account as seen in the light of the medical evidence. It has to be kept in view that this is a case in which assault was mounted by large number of persons forming an unlawful assembly and they were armed with different types of weapons even though injures suffered by the victims might have been caused by gupti or axe or hockey stick. It is easy to visaulise that other persons who were forming part of the same group might have been armed with spear or dharia but as they are acquitted, nothing more can be said about the same. However, it must be held that the injures, suffered by the eyewitnesses as noted by the medical evidence, could very well have been caused by sharp cutting instruments like axe and gupti. It, therefore, cannot be said that the medical evidence does not support the prosecution case. This point, therefore, also is not well sustained on evidence on record.Point No. 5In becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances, identification of such a named accused only in the Court when the accused was not known earlier to the witness had to be treated as valueless. The said decision, in turn, relied upon an earlier decision of this Court in the case of State (Delhi Admn.) v. V.C. Shukla and another etc., AIR 1980 SC 1382  wherein also Fazal Ali, J., speaking for a three Judge Bench made similar observations in this regard. In that case the evidence of the witness of the Court and his identifying the accused only in the Court without previous identification parade was found to be a valueless exercise. The observations made therein were confined to the nature of the evidence deposed o by the said eyewitnesses. It, therefore, cannot be held, as tried to be submitted by learned Counsel for the appellants, that in the absence of test identification parade, the evidence of eyewitness identifying the accused would become inadmissible or totally useless. Whether the evidence deserves any credence or not would always depend on the facts and circumstance of each case. It is, of course, true as submitted by learned Counsel for the appellants, that the later decisions of this Court in the case of Rajesh Govind Jagesha and others v. State of Maharashtra and State of Himachal Pradesh v. Lekh Raj and another (supra) had not considered the aforesaid three Judge Bench decisions of this Court. However, in our view, the ratio of the aforesaid later decisions of this Court cannot be said to be running counter to what is decided by the earlier three Judge Bench judgments on the facts and circumstances examined by the Court while rendering these decisions. But even assuming as submitted by learned Counsel for the appellants that the evidence of these two injured witness i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in the Court may be treated to be of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad day light. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them.21. But even that apart, there is direct eyewitness account deposed to by the witness Dhirubhai Mohanbhai (brother of the deceased), witness Dhirubhai Mohanbhai P.W.5, the tenant residing in the locality and Dilipbhai, the younger brother of the deceased. These witnesses have clearly deposed that they knew the accused. In fact, Dilipbhai was the person who was involved in the incident of the previous day wherein Accused No. 1 and his accomplices had a quarrel with him and his supporters. That part of the evidence of these eyewitnesses had remained well sustained on record. So far as witness Niruben was concerned, she is the wife of the deceased Ramanbhai Mohanbhai. The accused mounted an assault on her husband in her bedroom and even though she might not be knowing the accused earlier, the faces of the accused mounting such an assault and which caused fatal injuries to her husband can easily be treated to have been imprinted in her mind and when she could identify these accused in the Court even in the absence of identification parade, it could not be said that her deposition was unnatural or she was trying to falsely rope in the present accused by shielding the real assaulters on her husband.22. In this connection, we may also consider one grievance put forward by learned Counsel for the appellants. So far as the evidence of witness Dhirubhai Mohanbhai is concerned, he submitted that on a holiday like 25.12.1987, this witness who was aged 19 years, had no occasion to stand near the pan galla and witness the incident and that he was a chance witness. It is difficult to appreciate this contention. It is not unnatural for a younger boy like Dhirubhai Mohanbhai on a holiday to stand near the pan galla. It was he who detected Accused Nos. 3, 4 and 6, who came on motorcycle and who were followed by their other accomplices forming part and parcel of the unlawful assembly. They were all armed with deadly weapons. This witness cannot be said to be a chance witness as he was staying in the same house in which Ramanbhai Mohanbhai was staying. His presence was, therefore, most natural. As he was involved in quarrel with Accused No. 1 and his group on the earlier day, he could easily identify them and could visualise that they had come to mount an assault on them. Learned Counsel for the appellants then submitted that if that was so the accused would have first assaulted Dhirubhai Mohanbhai instead of assaulting the witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai or for that matter deceased Ramanbhai Mohanbhai. The High Court has given a cogent reason for repelling this contention. The accused, as the eyewitness account shows, first rushed in a group to the Press belonging to Nitinbhai, who was involved in the incident of earlier day, and there they assaulted Bhogilal Ranchhodbhai and in the process also Karsanbhai Vallabhbhai and then rushed into the house of Ramanbhai. Therefore, they might have failed to witness Dilipbhai but that does not mean that the eyewitness account of Dilipbhai should be treated to be a concocted one especially when he fully knew the accused and their intentions as he had a quarrel with them only on the earlier day.23. Similarly, the submission of learned Counsel for the appellants that witness Dhirubhaiwas a chance witness, also cannot be countenanced as the evidence on record shows that he was a tenant of Shivkrupa building situated in the near vicinity and he was staying in the locality since number of years. He had no reason to falsely implicate the accused nor was he interested in any of the prosecution witnesses. He knew the accused as deposed to by him and that part of the evidence has stood the test ofConsequently, this witness cannot be said to be a chance witness as contended by learned Counsel for the appellants. So far as the witness Dhirubhai, brother of the deceased is concerned, he was a practising advocate and he was staying in the nearly house. His version was quite natural that he rushed on spot and saw the assault by the accused on the victims and tried to help the injured Ramanbhai Mohanbhai being carried to the hospital. This witness also had deposed that he had known the accused since long. Consequently, even leaving aside the eyewitness account of Niruben and the injured witnesses Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai as there was no identification parade of the accused qua them, the eyewitness accounts of Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai clearly rope in the accused in the crime as they were well known to them. Both the Courts below have, therefore, rightly placed reliance on this evidence to bring home the charges to the accused. The net result of this discussion is that AccusedNos. 1 andare clearly mentioned in the dying declarationThey are said to have assaulted the deceased and inflicted severe injuries, which ultimately killed him. That part of the dying declaration is fully supported by the eyewitness account of witnesses Dhirubhai Mohanbhai, Dhirubhai Premjibhai and Dilipbhai who had seen these accused in the company of Accused Nos. 3, 4 and 6 and who had, on the date of the incident, being armed with deadly weapons and having formed an unlawful assembly had committed the crime in question. It must, therefore, be held that the prosecution had fully established its case against Accused Nos. 1, 2, 3, 4 and 6. Their appeal was rightly dismissed by the High Court.