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CR.A/1755/2004 19/ 21 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1755 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PANA
HARA BHATI & 3
Versus
THE
STATE OF GUJARAT
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Appellants.
MR KL PANDYA, ADDL.PUBLIC PROSECUTOR for
Opponent-State
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 11/01/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellants were accused before the City Sessions Court No.5,
Ahmedabad, in Sessions Case No.41/2003. They came to be tried for the
offences punishable under Section 302 r.w.section 34 or 114 of the
Indian Penal Code [ IPC for short] and Section 135 of the Bombay
Police Act [ BP Act for short]. The trial Court, after
considering the evidence led by the prosecution, found that the
charges were proved against the appellants-accused and recorded
conviction by judgment and order dated 21st
September, 2004.
2. The
prosecution case, in brief, is that the incident took place during
the night falling between 27.9.2002 and 28.9.2002 at Gulbai Tekra in
Ahmedabad, where four accused persons collectively assaulted deceased
Virabhai Savabhai Rathod with weapons like dharia, pipe, gupti and
axe. The deceased was sitting with his sister Premiben near a small
temple located in the area, which is near the house of Premiben.
There was a dispute between the accused side and the victim side on
account of teasing of Goviben, daughter of victim Virabhai Savabhai
and, therefore, upon seeing the victim and Premiben, the four accused
persons rushed towards them with weapons in their hands. Premiben
asked the victim to run away and she also tried to escape. The victim
was chased by the accused persons and was attacked near the house of
Amarabhai Ramabhai. Upon seeing the incident, Premiben raised shouts,
but, in vain. She was scared and, therefore, she ran away from the
place and reached Panjarapole area. Thereafter, she reached to the
house of her sister Daluben in a rickshaw, who stays at a place
nearby the place of the incident called Bhudarpura. There Premiben
narrated the incident to her sister Daluben and thereafter they also
told their sister Hariben about the incident and then all the three
went to Navrangpura Police Chowky and informed the police. Therefore,
the police accompanied them to the place of the incident, where from
they took the deceased to V.S.Hospital and there FIR of Premiben was
recorded. On the basis of that FIR, offence was registered and
investigated. During the course of investigation, the
appellants-accused came to be arrested on 1.10.2002. The charge sheet
was filed against them in the Court of learned Metropolitan
Magistrate, who in turn, committed the case to the City Sessions
Court, Ahmedabad, where Sessions Case No.41/2003 came to be
registered.
3. Charge
was framed against the accused persons at Exh.1. All the accused
persons pleaded not guilty to the charge and claimed to be tried.
3.1 The
trial Court, after considering the evidence led by the prosecution,
came to the conclusion that the prosecution was successful in
establishing the charges levelled against the accused persons and,
therefore, convicted them for the offences punishable under Section
302 read with Section 34 IPC and Section 135 of the BP Act.
3.2 After
hearing the accused persons on the question of quantum of punishment,
the trial Court sentenced all the four accused persons-appellants to
undergo imprisonment for life and to pay a fine of Rs.500/- each, in
default, to undergo one month’s R.I, for the offence punishable under
Section 302 read with Section 34 IPC; whereas for the offence
punishable under Section 135 of the BP Act, they were sentenced to
undergo imprisonment for seven days. Both the sentences were ordered
to run concurrently and the benefit of set off was ordered to be
given to the accused persons.
4. We
have heard learned advocate Mr.Dagli for the appellants and, learned
A.P.P. Mr.Pandya for the State.
5. Learned
advocate Mr.Dagli submitted that the prosecution case depends mainly
on the evidence of Premiben. If her evidence is seen, it is full of
improvements. The story narrated by her in respect of the incident is
improbable. He submitted that although independent witnesses were
available, they have not been examined as witnesses. The
investigation is not properly carried out. Although it has come in
evidence that there were bloodstains on the otta of temple, no
samples were drawn there-from. He submitted that the conduct of eye
witness Premiben is not natural. In the first instance, Mr.Dagli
submitted that she could not have been sitting at the place in the
wee hours of night with her brother all alone, as she has claimed. He
submitted that at that point of time, there were many residents
around and Premiben says that nobody came to their rescue. This is
not a probable situation. Mr.Dagli submitted further that Premiben
instead of going to police for help, goes to her sister’s house.
Mr.Dagli submitted that it has come in her evidence that the FIR was
recorded at about 3.00 A.M, which is much prior to the FIR which is
brought on record. As such, the FIR recorded at 6.00 A.M is
subsequent and would cease to be an FIR and has, therefore, been
erroneously exhibited on record. The FIR, allegedly recorded at 3.00
A.M, has not been brought on record.
5.1 Similarly,
Mr.Dagli submitted that the weapons were seized on 28.9.2002, but,
they were sent to F.S.L on 18.10.2002. Mr.Dagli submitted that the
prosecution has not led any evidence to show whether these weapons
were lying there from 28.9.2002 to 18.10.2002 before being sent to
FSI and whether they remained there untempered. The witness does not
describe or attribute any specific injury to any of the assailants.
If she had been really present, she could have done that also.
Mr.Dagli, therefore, submitted that the trial Court solely relied on
the evidence of Premiben and another witness Daluben, without looking
for independent corroboration. In support of his submission, Mr.Dagli
relied upon the decision of the Apex Court in the case of Joseph
vs. State of Kerala, 2003(1) SCC 465, particularly
paragraphs 12 & 13.
5.2
Mr.Dagli submitted that arrest panchnama of the accused persons has
not been brought on record by the prosecution, which shows lacuna in
the evidence of prosecution. He submitted that the appeal may,
therefore, be allowed.
6. Learned
A.P.P. Mr.Pandya has opposed this appeal. According to him, evidence
of Premiben is natural. Her conduct is natural and she was scared
and, therefore, a natural conduct cannot be expected from her, but,
her version gets corroboration from the medical evidence, so also the
evidence of Daluben and, therefore, the trial Court was justified in
recording conviction of the appellants. Mr.Pandya submitted that
absence of certain evidence would be significant only if there is
material to abrogate the evidence which is not on record. In the
instant case, no such material is shown by the defence to abrogate
the evidence of Premiben and the medical evidence. The trial Court
was, therefore, justified in recording the conviction and this Court
may not interfere with the judgment impugned in the appeal, in
exercise of appellate jurisdiction. He, therefore, submitted that the
appeal may be dismissed.
7. We
have examined the record and proceedings of the case in the context
of the rival side submissions.
8. Learned
advocate Mr.Dagli is right on his say that the prosecution case
depends mainly on the evidence of Premiben. Premiben is the sister of
the victim, who has deposed at Exh.14. In her evidence, she states
that there was an altercation between his brother deceased Virabhai
and accused Ganesh and Kishan when the deceased inquired of the two
as to why had they teased the daughter of the deceased. The
neighbours somehow intervened and they were separated and both the
parties went home. On that very day, the witness says, she and her
brother victim Virabhai were sitting on the otta of temple near her
house. At that time, accused No.1 Pana came with a dharia, accused
No.2 Ganesh had a gupti, accused No.3 Kishan had an axe and accused
No.4 Deva had a pipe. They all came running towards them. She,
therefore, asked her brother to run away or they may kill him. She
also tried to escape along with her brother. By the time they reached
near the house of Amarabhai Ramabhai, a dharia blow was given by
accused No.1 on the occipital region of the head of deceased
Virabhai. Rest of the accused also joined accused No.1 and
collectively assaulted the deceased indiscriminately. She, therefore,
raised cries. She then went to Panjarapole and from there she went to
Bhudarpura at her sister’s place. From there, she along with her two
sisters went to Navrangpura Police Chowky and informed the police
that her brother is killed. The police joined them and went to the
place of incident, where they found the deceased lying dead.
Thereafter the deceased was taken to V.S.Hospital. At the
V.S.Hospital, her FIR was recorded. She identified the dharia, axe,
gupti and pipe. She also identified the clothes of the deceased which
he was wearing at the time of the incident. The witness also
identified the accused persons by name before the Court. The witness
was subjected to cross-examination where she admits that there were
some police cases registered against the deceased.
8.1 During
the cross-examination, it appears that, she has made certain
statements as to the time of occurrence as well as other incidents.
It emerges from her cross-examination that despite her raising cries
for help, no one came and, therefore, she ran away. The questions are
put as to when her brother victim came to her house and at what
time they left. Whether she had any occasion in past to leave the
house at such odd hours at night and, she has replied those questions
appropriately. A question had also been put to her regarding the
relationship between the victim and his wife, whether they were
staying together or the victim had divorced her, because in her FIR
she has stated that the deceased had divorced his wife. The questions
are put to know if her clothes were stained with blood or not and she
replied that in the Police Van her brother’s head was not placed in
her lap. She was sitting near to him. She says that there was blood
spread in the Van where the dead body was kept. Then she says that as
she was sitting beside her brother, her clothes were also stained
with blood. She admits to have not stated certain aspects about the
incident, in detail, in the FIR. She denies a suggestion that she
gave a false complaint in consultation with her sister to settle the
account with the accused persons on account of earlier quarrel.
9. The
next important witness is Daluben Virabhai Marvadi examined at
Exh.24. She is the sister of first informant staying at Bhudarpura.
About the incident, she says that Premiben came to her house at
Bhudarpura at about 2.00 to 2.30 in the night and told her that their
brother Virabhai has been done to death with dharia and gupti. The
witness says that she also got scared and informed her sister Hariben
and all of them went to Navrangpura Police Chowky and informed the
police that their brother has been done to death and the three
sisters may also be murdered and may be protected. Thereafter,
Premiben sat in police-van and witness Daluben and her sister Hariben
went by rickshaw to the place of the incident and found the deceased
lying dead near the osari of house of Amarabhai Ramabhai. The
deceased was lying with his face down and was bleeding profusely. The
witness then says that while the daughter of the deceased was going
to purchase milk, Ganesh had caught her hand, which had resulted
into an altercation/quarrel. In her cross-examination, the witness
denies that she has stated in her police statement that her brother
had divorced his wife Nathiben. She admits during her
cross-examination that none-else than Premiben told them as to who
had murdered the victim. She admits not to have stated in her police
statement that Premiben told her that Virabhai has been done to death
with dharia and gupti and they got frightened therefor and told
Hariben about the same. She denies that her case is concocted after
deliberation.
10. As
regards the medical evidence,we may note that Dr. Rohit Chimanlal
Zaverivala, who had performed the post-mortem and is examined at
Exh.16, says that the deceased had as may as 18 external injuries and
8 internal injuries. According to the Doctor, injuries found on the
person of the deceased were sufficient in the ordinary course of
nature to cause death. The Doctor has been cross-examined, but
nothing special emerges from his cross-examination except that injury
No.1 was possible with any hard and blunt substance. He denies the
suggestion that injury No.1 mentioned in column No. 17 in the
post-mortem note was possible by fall.
10.1 The
injuries are mainly chop wounds, contused lacerated wounds, multiple
abrasions and stab wounds.
11. From
these important pieces of evidence, what emerges is that, according
to the eye witness, assailants-appellants came to the victim and,
therefore, he started running from the place and was hit for the
first time near the house of Amarabhai by dharia and then he was
assaulted upon indiscriminately by the accused persons with their
respective weapons. The incident occurred at odd late night hours
when there would be no person around. Even cry for help by first
informant Premiben did not yield any result. It is true that in the
FIR, details of assault by different accused persons are not given,
but, it would not be proper to expect a solitary lady eye witness to
closely watch and remember the sequence of events, time, place and
manner in which the incident had occurred. It has come in the
evidence of the first informant in terms that she cried for help and
when no one turned up, she got scared and ran away towards
Panjarapole and from there, she caught a rickshaw and went to
Bhudarpura to her sister’s place. It is equally true that she has not
given full details in the FIR about the sequence of events, but, that
by itself would not discredit her version because the FIR is meant
mainly to initiate investigation and all details are not required to
be stated in the FIR. Having examined the FIR, it cannot be said that
it is a cryptic FIR. There is no conflicting version emerging from
the FIR as well as deposition which would render both or either of
them unreasonable. The injuries found on the person of the deceased
were multiple in nature which would speak volumes about the manner in
which the incident must have occurred and it is natural that a lady
would get scared when no one responds to her cry for help, more so
when she belongs to that strata of society where there is less
education and more poverty. What the eye witness has stated gets
corroborated by the medical evidence. The injuries on the person of
the deceased are certified to be ante-mortem and attributable to the
weapons allegedly used in the commission of crime by the accused
persons. Therefore, in our view, the version of the eye witness gets
corroborative support from the medical evidence.
11.1 Apart
from the above aspects, it is also worth a note that eye witness
Premiben had soon after the incident, run to her sister and told her
as to what had happened. That version is on the same line with her
deposition which inculpates the four accused persons. The version
which is given by eye witness Premiben to her sister Daluben is soon
after the incident and while she was under shock or mental agony of
the incident, she has given this version within a few minutes of the
incident and had no time to fabricate and concoct the story against
the accused persons. The principles of res gestae can be applied,
which is incorporated in Section 6 of the Indian Evidence Act, which
runs as under :-
6. Relevancy
of facts forming part of same transaction.- Facts which, though
not in issue, are so connected with a fact in issue as to form part
of the same transaction, are relevant, whether they occurred at the
same time and place or at different times and places.
Illustration
(a) to that Section is very apt, which also runs as under :
(a) A
is accused of the murder of B by beating him. Whatever was said or
done by A or B or the by-standers at the beating, or so shortly
before or after it as to form part of the transaction, is a relevant
fact.
12. The
version of the eye witness, therefore, gets support from the evidence
of Daluben as well.
13. A
strong contention was raised about the fact that the real FIR is not
coming on record because as per the first informant it was recorded
at 3.00 A.M, whereas the FIR on record indicates that it was recorded
at 6.00 A.M. This, in our view, cannot be considered as a case where
earlier FIR is suppressed by the prosecution. Consistently it has
come on record that only one FIR is recorded. The confusion is
because of time aspect. In this context, if the evidence of eye
witness is seen as a whole, an impression is created that she has no
sense of proportion as to time. At one stage she says that the
incident occurred at about 2.00 A.M. and at the another stage she
says that the incident occurred at 10.30 to 11.00 P.M. Similarly, the
eye witness has stated that the temple is located at a distance of
about half-an-hour walk from her house. We can take judicial notice
of the fact that that cannot be true, as the area itself is not that
big. Half-an-hour journey is sufficient to cover several kilometers,
which is not the case here.
13.1 It
is also contended that the weapons were seized on 28.9.2002 and were
sent to FSL on 18.10.2002 and no evidence is led to indicate that
where the weapons were lying and whether they were safe and
untampered. In this context, it may be recorded that the weapons were
seized under a panchnama and a seal was put. The weapons have been
sent to FSL for investigation and FSL has not found that slips were
broken or tampered. Therefore, there is no likelihood of any
prejudice being caused to the accused because of the lack of evidence
on custody of weapons between the date of seizure and sending them to
the FSL.
14. It
was also contended that as per the prosecution case, bloodstains were
found on the otta of the temple, but, sample of that blood had not
been drawn by the investigating agency. It is also contended that as
per the evidence of eye witness, the deceased was assaulted for the
first time near the house of Amarabhai and no attack was made near
the temple. Therefore, it was contended by the defence that the
evidence of eye witness will be of no benefit to the prosecution. The
evidence, if considered as a whole, would go to show that the
possibility of there being no blood at the temple cannot be ruled
out. Even a suggestion is put by the defence, though denied by the
witness, that red marks on the otta of the temple were because of
kumkum offered to the Deity. Apart from that, this slip or
mistake on the part of the Investigating Officer would not, in any
manner, abrogate the effect of reliable evidence in the form of
evidence of eye witness Premiben, her sister Daluben or Doctor.
Similar would be the situation when it is contended that the
bloodstained bedsheets and the bloodstained clothes of Premiben were
not seized by the police. It would have been better if the I.O had
remained vigilant and collected these pieces of evidence, which would
have lend more credence to the prosecution case.
15. It
was contended that Premiben does not disclose anything to any one
while going from the house of her sister at Bhudarpura to Navrangpura
Police Chowky, which is not a natural conduct. This argument can be
made only for recording that, as per the prosecution case, the first
informant had already informed her sister Daluben immediately about
the incident in detail, which implicates all the four accused
persons. Then there was no need for her to go on repeating as to how
this incident had occurred.
16. Keeping
all these aspects in the mind, if the evidence as a whole is seen,
though it is in the form of evidence of a solitary eye witness
supported by her sister and other evidence, the Court is of the view
that the trial Court was justified in relying upon and accepting the
evidence of Premiben as truthful and in recording conviction.
16.1 Mr.Dagli
has relied upon the decision of the Apex Court in the case of Joseph
vs. State of Kerala, (2003)1 SCC 465, particularly paragraphs 12
& 13. That was the case where acquittal appeal was allowed by the
High Court and conviction was recorded and while appreciating that
aspect, it was observed that in the facts of that case, it was found
that there ought to have been blood at the place of the incident if
version of the witness was accepted. But, there was none and in such
eventuality, non-seizure of bloodstained clothes was considered as a
factor in favour of the accused, who came to be acquitted by the
trial Court and convicted by the first appellate Court. The decision,
therefore, cannot help the appellants, as no prejudice is shown to
have been caused because of non-seizure of bloodstained bedsheets or
bloodstained clothes of Premiben. If they were seized, it would have
lent greater credence to the evidence of Premiben. But, non-seizure
of it would not reduce the credibility of the witness once it is
found that she is a truthful witness and her version is supported by
other evidence.
17. For
the foregoing reasons, we are of the view that no interference is
called for in the view taken by the trial Court. The appeal must fail
and stands dismissed. The judgment and order of conviction and
sentence rendered by the City Sessions Court No.5, Ahmedabad, on
21.09.2004, in Sessions Case No. 41/2003, is hereby confirmed.
[A.L.Dave,J.]
[Harsha
Devani,J.]
(patel)
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