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Arvind Lakhmanbhai vs State Of Gujarat on 29 April, 2006

Gujarat High Court
Arvind Lakhmanbhai vs State Of Gujarat on 29 April, 2006
Author: A Dave
Bench: A Dave, S Brahmbhatt


JUDGMENT

A.L. Dave, J.

1. The appellant came to be charged for the offence of murder of Natubhai Kashiram by inflecting knife blows on the deceased Natubhai Kashiram on 5.9.1991 at about 15-00 hrs at village Tharad. The appellant was also charged of having committed offences punishable under Section 3(2)(v) of the Scheduled Caste and Schedule Tribe (Prevention of Atrocity) Act, 1989 and Section 135 of the Bombay Police Act, by learned Special Judge and Additional Sessions Judge, Banaskantha at Palanpur in Special Case No. 211 of 1995. The appellant came to be convicted for the offences punishable under Section 302 of the Indian Penal Code, 135 of the Bombay Police Act and Section 3(2)(v) of the Schedule Caste and Schedule Tribe (Prevention of Atrocity) Act, 1989 (hereinafter referred to as ‘the Atrocity Act’ for short) and was sentenced to undergo life imprisonment for the offences punishable under Section 302 of the IPC and Section 3(2)(v) of the Atrocity Act. He was also imposed with a fine of Rs. 500/- for all these offences and in default, was ordered to undergo RI for one year. The appellant also came to be convicted for an offence punishable under Section 135 of the Bombay Police Act and came to be sentenced to undergo RI for 4 months and to pay fine of Rs. 200/-,in default, to undergo Rigorous Imprisonment for 1 month. The sentences were ordered to run concurrently. Benefit of set off was ordered to be given to the accused/appellant. Aggrieved by the said judgment and order, present appeal is preferred.

2. The prosecution case against the appellant was that the appellant suspected that deceased Natubhai Kashiram Pandya, a registered Medical practitioner, had developed illicit relations with the wife of the appellant. In this regard, they had some disputes also in past and therefore, deceased Natubhai had shifted his dispensary from village Ganatal to village Sui.

2.1 On 5th September, 1995, deceased Natubhai and his brother Manharbhai had left Sui village for going to Ambaji. They reached Tharad in a private Jeep and got down near Octroi office. Both of them had a cup of tea together and went to the bus stop for taking bus to Ambaji. At that time, the appellant approached them and told deceased Natubhai as to why he is keeping illicit relations with his wife. Deceased Natubhai denied to have any relations. The appellant, therefore, inflicted knife blows in chest and abdomen on deceased Natubhai. After he inflicted two-three blows, Natubhai started running; at that time, the appellant inflicted knife blow in back of the deceased also. Brother of the deceased Manharbhai, who was with Natubhai, raised shouts. The appellant, therefore, rushed towards him with knife and Manharbhai, therefore, escaped from the place. He went to Sui village, told his relatives about the incident and came back to Tharad in a Jeep. They found that the deceased had expired and police had arrived. Manharbhai, therefore, lodged an FIR with police. Offence came to be registered and investigation started.

2.2 The incident was witnessed from a little distance by one Jethabhai and Amrabhai, who are independent witnesses. They rushed to the spot. It is alleged that the appellant tried to escape but was caught by these two witnesses and upon police arriving, the appellant was handed over to the police.

2.3 At the end of the investigation, it was found by the Investigating Agency that there was sufficient material implicating the appellant and therefore, a chargesheet was filed against him before the JMFC, Tharad. Since the offences were triable exclusively by the court of Sessions and Special Court, case was committed to the Special Court. Charge was framed by the Special Court at Ex. 2. The accused/appellant pleaded not guilty to the charge and came to be tried.

3. After considering the evidence led by the prosecution, the Special Court came to the conclusion that the prosecution was successful in establishing all the charges against the appellant and recorded conviction. The appellant came to be sentenced as stated above.

4. Mr. Brahmbhatt, learned advocate for appellant submitted that the trial Court has committed an error in appreciating the evidence led by the prosecution. Mr. Brahmbhatt, submitted that although, prosecution witnesses Manharbhai, Jethabhai and Amrabhai are projected as eye-witnesses to the incident, their presence at the place of incident is doubtful. Their conduct is unnatural and their version is self contradictory. These aspects have not been considered by the learned Special Judge. Mr. Brahmbhatt submitted that Manharbhai, who is brother of the deceased and who claims to have seen the incident, escaped from the place of incident, rather than, rescuing the victim. Even after escaping from the place, he does not seek anybody’s help nor does he go to the police but goes to his village and thereafter, comes back with his relatives. The conduct is so un-natural that his presence is doubtful. Mr. Brahmbhatt submitted that other two persons, who are also eye-witnesses, do not speak of presence of Manharbhai at the place of incident and therefore, his deposition could not have been accepted by the trial court.

4.1 Mr. Brahmbhatt submitted further that eye-witness, Jethabhai and Amrabhai, claim to have not only seen the incident but also claim to have apprehended the appellant, but that story is also unbelievable. There is no corroboration to this say of these witnesses. Mr. Brahmbhatt submitted that, these two eye-witnesses have given description of the appellant as a fat person and the description of the deceased as a thin person. Barring this, no description is given. No name is disclosed. There was no identification parade. The identity is, therefore, not established. Mr. Brahmbhatt submitted that the witnesses have given exaggerated version about the incident and therefore, their evidences could not have been accepted by the trial Court.

4.2 Commenting on investigation, Mr. Brahmbhatt submitted that blood group of the appellant was not taken by the Investigating Officer. The appellant was injured and therefore the blood, which is found on his cloths, could be his own blood by way of possibility and therefore, the benefit of doubt ought to have been given by the trial Court in this regard. Mr. Brahmbhatt submitted that the collective effect of these defects in the prosecution case ought to result in acquittal of the accused, that having not happened at the trial Court level, this appeal may be accepted. The judgment and order impugned may be set aside and the appellant may be acquitted of the charges levelled against him.

5. Learned Addl.P.P. Mr. H.M. Prachchhak has opposed this appeal. According to him, the incident has occurred in broad day light, in presence of three eye-witnesses. He submitted that the deposition of Manharbhai cannot be discarded only because he happens to be the brother of the deceased or he has reacted in a particular manner. He submitted that different persons react in different manner depending upon his/her personality. Mr. Prachchhak submitted that Manharbhai is a natural eye-witness and he implicates the appellant from the beginning. The appellant is apprehended by Jethabhai and Amrabhai, who are independent witnesses and have no axe to grind against the appellant. They did not know either the appellant or the deceased prior to the incident. Before these witnesses, the appellant has made a confession when apprehended by them. Even the appellant has accepted in his statement under Section 313 of the Code of Criminal Procedure that prior to the incident, he and the deceased had a quarrel on question of illicit relations between the deceased and appellant’s wife. The appellant, therefore, had a motive. Mr. Prachchhak submitted that a large number of injuries are caused with knife by the appellant. He has been apprehended on the spot and handed over to the police and therefore, there is no question of holding any test identification parade. The witnesses have identified the appellant in the court during trial and nexus is therefore, established. Mr. Prachchhak submitted that the contradictions, which are sought to be established, are minor in nature and have no significant effect on the prosecution case against the appellant. The contradictions do not abrogate the sound testimony of eye witnesses. Mr. Prachchhak submitted that FIR may not contain every minute details, which may come in deposition and therefore, every such detail is not an improvement, which would adversely affect the prosecution case or deposition of the first informant. Mr. Prachchhak submitted that the trial Court has therefore, rightly recorded conviction upon appreciation of evidence and the appeal may be dismissed.

6. We have given thoughtful consideration to the contentions raised before us. We have been taken through the R&P.

7. The first question that requires consideration is whether the trial Court was justified in recording conviction for the offence punishable under Section 302 of the IPC.

8. In this regard, if the medical evidence is seen, it is clear that deceased suffered as many as 11 stab injuries all over the body, which included vital parts of body like, chest, neck, back etc. The size and depth of the injuries are also significant. The doctor has opined that the cause of death is hypovolamic shock due to multiple stab injuries. Nature of injuries is such that they cannot be self inflicted. The injuries cannot be accidental either. The doctor has opined that the injuries were sufficient in ordinary course of nature to cause death and therefore, it is clear that the deceased met with a homicidal death.

9. It will now be necessary to examine, whether the prosecution was able to establish the nexus between death of the deceased and the appellant.

9.1 From perusal of the record and proceedings, we find that PW-1 Manharbhai Kashiram Pandya, PW-3 Jethabhai Vaghabhai and PW-4 Amrabhai Ramsinh are eye-witnesses to the incident.

9.2 PW-1 Manharbhai Kashiram is the real brother of the deceased. According to him, he and the deceased had started together for going to Ambaji on the date of the incident from village Sui, where the deceased was running his dispensary. The witness says that the incident has occurred on 5.9.1995 at about 3-00 PM near Octroi Naka of village Tharad. After taking a cup of tea, when they were about to board a bus at the bus stand, accused approached them and told deceased as to why does he keep illicit relations with his (appellant’s) wife. The deceased denied the allegation and therefore, the appellant assaulted him with a knife and caused injuries in chest and abdomen. Deceased therefore, started escaping. The appellant chased him and caused injuries on his back as well. The witness says that he started raising shouts and the appellant, therefore, turned to him with the knife. The witness, therefore, was scared and ran away. He says that he went to Sui and told his relatives about the incident and returned to Tharad in a jeep car with his father Kashiram. They went to the place of incident and found that people had gathered over there; police was also present and dead body of the deceased Natubhai was lying on the ground. His cloths were blood stained. He says that then he went to the police station and lodged the FIR, mark 4/2. He says that he had identified the dead body before the police. He had shown the place of incident to the police and panchnama was prepared. The witness says that he will not be able to identify the knife as only the blade was visible at the time of incident. The witness identified the appellant in the court as well.

9.3 The witness has been cross-examined at length. Questions are put to bring on record that there were many persons around when the incident occurred. It is also brought on record that the witness did not tell anybody about the incident nor he did approach the police first but went to his village and after deliberations, went on to lodge the FIR. The witness explained that because of fear, he had escaped to Sui village. The witness also admits that he has not stated earlier before the police about the dispute between the deceased and the appellant on account of some monetary transaction and that he has stated about this for the first time before the Court. Some questions have been put regarding houses of Harijans in the town. The witness is also cross-examined on question as to whether the FIR was lodged at the place of incident or at the police station and the witness answered that the FIR was lodged at the police station. The theory of self defence has also been put to the witness, which he has firmly denied.

9.4 So far as deposition of PW-3 Jethabhai Vaghabhai is concerned, it is recorded at Ex. 17. He says that he and Amrabhai Ganeshbhai were sitting on a bench and noticed that two persons were quarreling near the hand cart of one Bhikhabhai. He says that there was scuffle between the two persons and other persons were watching the same. He also says that one of them was a fat person and other was a thin person. He says that they reached to the place to catch hold of the fat man, who ran and jumped into a jeep car. He had knife at that point of time, which he had put into his pocket. He says that he and Amrabhai caught hold of that fat man.(Whom he identified as the accused/appellant at the later point of time in his deposition) He says that members of public, who had assembled started pelting stones at the appellant, in the meantime, police arrived and therefore, he and other witness Amrabhai handed over the accused/appellant to the police. The witness says that after appellant was apprehended, he inquired about the cause for the incident and was told by the appellant that the deceased had raped the appellant’s wife about two months back and therefore, he had inflicted the knife blows. The witness says that he had asked the name of that fat person (appellant), which he had disclosed but he does not remember. He says that later on, he came to know that said assailant was the appellant of Gela village. This witness has been cross-examined on topography of the place of incident to know whether the witness was actually present at the time of place of incident and to know whether he has really seen the incident. It transpires from the cross-examination that the witness has been able to answer all the questions on topography of the place of incident. He admits to have stated before the police that there was a hubbub near Tharad Octroi naka, near tea stall of Bhikhabhai Tejsibhai. They noticed that two persons were quarreling and one fat person inflicted knife blows on the other person in chest and abdomen area. The thin person was bleeding. He says that he had not noticed any injury on person of the appellant. He says that he does not know the reason why the appellant and deceased had entered into the scuffle.

9.5 The third witness Amrabhai, has been examined at Ex. 18. His deposition is on the same lines as witness Jethabhai. His cross-examination is also on the same lines and no further details emerge from the cross-examination, which may help the defence.

10. A close reading of the depositions of these three eye witnesses, make it clear that the version, that is given by the three eye witnesses is consistent with each other. They all appear to have witnessed the incident and the cross-examination does not indicate anything, which would render their depositions unbelievable. It is true that Manharbhai is real brother of the deceased, but that by itself, cannot be considered as a ground to disbelieve his deposition. This would be so particularly when we find corroboration to his version from the depositions of independent witnesses Jethabhai and Amrabhai. The conduct of these witnesses cannot be considered as so unnatural or unbelievable. The reaction to an incident would vary from person to person. If an incident occurs, there may be a person, who may get scared and may try to run away; there may be a person who would try to rescue the victim; there still may be a person, who would raise shouts and seek help. Simply because, the person has not reacted in a particular manner, it cannot be said that his conduct is unnatural or unreliable for this reason. In this regard, we may refer to the decision in case of Rana Pratap and Ors. v. State of Haryana, .

10.1 Here witness Manharbhai’s presence is natural. On seeing the appellant assaulting his brother, he raises shouts and on hearing this, the appellant turns to him with a knife, in such a situation, one would need special courage and physical strength to oppose the assailant, which courage and physical strength Manharbhai may or may not have. Naturally, the reaction would be to save himself by running away from the place.

10.2. The conduct of not informing others or not informing the police is also not so unnatural. When a person gets scared or panics, it is natural that he runs to a safe place and what could be the safer place than one’s own home or home-town?. After reaching home, the witness has immediately informed the relatives and almost immediately thereafter, they have come back to the place of incident in a jeep car, even before the dead body could be lifted by the police. It is therefore, not a situation, where, the witness ran away from the place and did nothing for a long time. He informed the relatives and came back to the place with relatives immediately.

10.3 For the foregoing reasons, we are unable to accept the contention of Mr. Brahmbhatt that Manharbhai is an interested witness, his conduct is unnatural and therefore no reliance can be placed on his testimony. The witness is natural, his conduct is natural and is found to be honest by as when he clearly states that he cannot identify the knife used in the assault and then proceeds to explain the reason therefore by stating that he could see only the blade of the knife at the time of assault. There is no reason whatsoever to doubt his testimony.

11. So far as other two witnesses, Jethabhai and Amrabhai are concerned, they are independent witnesses and they have no axe to grind against the appellant. It emerges that they witnessed the incident and they caught hold of the appellant on the spot and on police arriving, handed over the appellant to the police. This version of these witnesses is supported by the Investigating Officer also. Witnesses have not given detailed description of the appellant and the victim but they caught hold of the assailant and handed him over to the police. They have identified the appellant/accused in Court as such. There is no dispute so far as identity of the victim is concerned. The incident occurred in a public place near Bus Stand. Persons in vicinity of such place would be ordinarily persons who may not have reason to be there always, but may have valid reasons to be there at the relevant time. These witnesses cannot be disbelieved by lebelling them as chance witnesses unless some factors are found to doubt their depositions. There is total absence of any such factors. Under the circumstances, we do not find any reason to doubt the evidence of these two witnesses.

11.1. As a result of the foregoing discussion, what emerges is that the prosecution has established the nexus between the appellant and the death of the deceased, which is homicidal.

12. Learned advocate Mr. Brahmbhatt had raised a contention that the investigation is not beyond doubt, because independent witness Manharbhai says that he had gone to the police station to lodge the FIR, whereas, it emerges from the evidence of Investigating Officer that the FIR was recorded at the place of the incident and therefore, either Manharbhai is not telling full truth or the Investigating Officer is not telling full truth and therefore, benefit of doubt should be given to the accused/appellant.

12.1 We are unable to accept this contention also. There is consistency in the evidence taken as a whole that the FIR was lodged at the place of the incident. Though witness Manharbhai has deposed that he had gone to the police station to lodge the FIR, question as to where the FIR was recorded, whether at the place of incident or at the police Station, would not go to the root of the case, when other evidence is clinching. We cannot over look the fact that witnesses have tendency to add embroidery to truthful facts out of the fear of being labeled as an untruthful witness. A layman would always feel that the FIR could be lodged at police station and only to bring home his case that he has lodged the FIR, he would try to add embroidery by saying that he had gone to the police station for lodging the FIR. This variation cannot be considered fatal to the prosecution case when there is strong reliable and trustworthy evidence of eye-witnesses. In these regard, we may also refer to the decision in case of State of U.P. v. Anil Singh .

13. Our attention is drawn to the fact that eye-witness Manharbhai speaks of initial injuries on chest and abdomen and on then the back of the deceased but the P.M. note indicates as many as 11 stab injuries. Thus, Manharbhai does not account for remaining injuries. Manharbhai, therefore, cannot be considered as an eye-witness. We are not able to accept this contention either for the reason that Manharbhai has escaped from the place when the accused/appellant turned to him with a knife, upon his raising shouts. Manharbhai raised shouts after initial attack by the appellant and then, escaped. He, therefore, naturally accounts for injuries relatable to initial assault. May be he is not a witness to the subsequent injuries, which are caused by the appellant after chasing deceased.

14. Having examined and assessed the evidence, even from the view point suggested by learned advocate Mr. Brahmbhatt during his arguments, we are of the view that the trial Court cannot be said to have committed any error in coming to the conclusion that the deceased was murdered by the appellant and conviction, so far, it relates to one under Section 302 of IPC is concerned, is rightly recorded.

15. However, we notice that the appellant is also convicted for an offence punishable under Section 3(2)(v) of the Atrocity Act. Section 3(2)(v) runs as under:

Section 3(2)(v) : commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.

Despite a close scrutiny, we are unable to find any material to show that the offence was committed by the appellant on the ground that the deceased was a member of Scheduled Caste or Scheduled Tribe. It emerges that the appellant did have a knowledge that the deceased belonged to a Scheduled Caste but there is nothing in the evidence to suggest that the offence was committed by the appellant on the ground that the deceased was a member of Scheduled Caste. On the contrary, the motive that is indicated, is that the deceased allegedly had illicit relations with wife of the appellant and that was the reason lastly indicated by the appellant, as can be seen from the evidence of eye-witness Manharbhai that led to the ultimate assault resulting into death of the deceased. We are, therefore, of the opinion that trial Court ran into an error in recording conviction under Section 3(2)(v) of the Atrocity Act. Appeal, therefore, will have to be allowed so far as it relates to conviction under the said provision.

16. In the result, the appeal stands partly allowed. The conviction of the appellant under Section 3(2)(v) of the Atrocity Act is hereby set aside. So far as other convictions and sentences are concerned, they stand confirmed. Appeal stands disposed off accordingly.

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