IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 880 of 2005 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= ========================================================= KARANJI BECHARJI THAKORE AND OTHERS Versus THE STATE OF GUJARAT ========================================================= Appearance :
MR AB MUNSHI for Appellant(s) : 1 - 3 MR RC KODEKAR ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 11/05/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) The present appeal under section 378(2) of Code of Criminal Procedure, 1973 is directed against the judgment and order dated 29th March 2005 delivered by learned Additional Sessions Judge, Fast Track Court No.3, Gandhingar in Sessions Case No.132 of 2004. By that judgment, the trial court convicted the three accused (A1, A2 and A3)the appellants herein in that order, for the offences punishable under section 302 read with section 34 of Indian Penal Code, 1860, sentencing them to life imprisonment. They were convicted for offence under section 504 read with section 34 IPC and sentenced to rigorous imprisonment for two months. Accused No.1 was convicted also for offence under section 323 IPC and sentenced to rigorous imprisonment for two months. Accursed No.1 and Accused No.2 were convicted for the offence under section 135 of Bombay Police Act, 1951 and sentenced to rigorous imprisonment for four months. All the sentences were directed to run concurrently.
2. The prosecution case as was revealed from the complaint (Exh.11) filed by Shamuben (PW1), mother of the deceased, was that on 01.09.2004 at around 8.00 p.m. in the night Karanji Becharji Thakore (A1), Vijayji Becharji Thakore (A2) and Becharji Buptaji Thakore (A3) being the two sons and the father respectively, were abusing her son Balwantji from their house which was situated on the opposite of the house of the complainant. Therefore, Balwantji went there to tell them not to abuse. A3 had been shouting that 'let Balwant be killed today'. A1 was armed with a trident and A2 armed with a wooden log. The accused A1 and A2 started beating Balwantji on his head. The complainant and Ambaben, wife of Balwantji as well as Chandrikaben, wife of Vikramji being the other son of the complainant, rushed there. Other people from the street also converged. The accused persons ran away with the weapons. It was stated that while the accused persons were running away, the daughter of complainant Shamuben tried to catch A1, and in the process she fell down as she was hit by A1 on the waist. The victim Balwantji by the time had died.
2.1 According to the complainant, the reason for the assault was that on the previous evening, Kantibhai Bhulabhai, who was the Patel (leader) of the village had come to their house. When he was sitting on the cot, at that time, A1 arrived and he too sat down on the cot. In that regard, the deceased and A1 had some altercation and in retaliation the accused persons assaulted on the next day.
3. The complaint was registered at Pethapur police station and the offence was investigated. The inquest panchnama (Exh.17) was drawn and Panchnama of the place (Exh.20) was carried out. Under the Panchnama (Exh.13), clothes and other belongings of the deceased were recovered. The crime weapon was recovered under the Panchnama (Exh.14). The postmortem report (Exh.28) and FSL report (Exh.38) were received.
3.1 The chargesheet came to be filed before the court of learned Judicial Magistrate, who in turn committed the case to the court of Sessions under section 209 of Cr. P. C. as the offences were exclusively triable by Sessions Court. The accused were charged (Exh.2) and pleaded not guilty. In course of trial, the prosecution examined 14 witnesses and led documentary evidence. The trial culminated into the impugned judgment and the accused appellants were convicted for the offences for which they were charged and sentenced as mentioned above.
4. Learned advocate Mr. Munshi appearing for the appellant assailed the impugned judgment. He contended that the evidence of eyewitnesses was not trustworthy. While all of them claimed to have seen the occurrence of incident, their say was not trustworthy. It was submitted that in the facts of the case and in light of the evidence on record, all the accused could not have been held liable for offence punishable under Section 302 of IPC, and, there was no evidence that they wanted to kill the victim by sharing a common intention. It was further submitted that one of the accused was not even armed with any weapon. Therefore, the trial Court was not justified in convicting them for murder. It was next submitted that the medical evidences did not correspond to the use of crime weapons, one of which was trident.
4.1 This Court was taken through the evidence on record of the trial Court. The evidence on record was required to be appreciated in light of charge for the offences which were punishable under Sections 302, 323, 504 and 506 all read with Section 34, IPC. It was the prosecution case that all the three accused intended to commit the crime of murder and by sharing such intention assaulted the victim. The assault was shown to have been committed at around 8:00 p.m. in the month of November in the middle of a Chowk surrounded by residential houses of the accused persons as well as the house of the complainant.
4.2 According to the prosecution case, two of the three accused were armed with weapons. A1 had a trident with him, whereas A2 was having a wooden log. The complaint (Exh.11) and testimonies of eye witnesses Shamuben Somaji Thakore [PW1, Exh.10] and Ambaben [PW14, Exh.33 ] indicated that both A1 and A2 were beating the deceased with the weapons they were wielding. The role attributed to A3 was that he spoke the words that Balawantji may be killed. It was the case that as a result of offence committed by the three accused acting in consult and inflicting injuires committed murder. The eye witnesses who were accounted from the occurrence of evidence were the complainant Shamuben [PW1, Exh.10] who was the mother of the deceased, Ambaben [PW14, Exh.33] wife of the deceased and Shobhnaben [PW7, Exh.21] being the sister of the deceased.
4.3 The medical evidence in the form of Doctor Jayesh Rupala [PW10, Exh.27], who conducted postmortem, mentioned in his PM report [Exh.28] the injuries which were inflicted by A1 and A2 on the deceased. He described those injuries in his evidence [Exh.27]. It showed that there were five external injuries. All those were CLW of the width of 1.5 inches near right eyebrow, also at front parietal region and 3 cm posterior second wound and an oblique CLW and two other oblique CLW injuries of the same width of 1.5 inches. The internal injuries were due to external injuries and both corresponded. PW10 in his evidence opined that the wounds of the width of 1.5 inches were not possible by the trident. All injuries being CLW injuries of the size which was not probable and possible by use of trident.
4.4 In above view, A1 who was stated to be armed with trident could not have inflicted any of the injuries found on the person of the deceased. He, therefore, could not have been implicated in the offence, necessary inference being that he had not actually participated in the attack and had not caused any injury. As the medical evidence was clear, no injury could have been attributed to A1, his role in the assault and possibility of he having used his weapon and infliction of injury thereby stood eliminated. Therefore, the conviction of A1 for any of the offences charged against him could not be grounded.
4.5 Taking case of A3 and his role in the incident, indisputably, what was attributed to him in the entire episode was that he uttered the words “Balwantji Ne Aaje Maari Naankhavano (Today Balwantji may be killed)”.
4.6 Considering the other evidence, which included the testimonies of complainant Shamuben, who was the mother of the deceased, Ambabenwife of the deceased and Shobhnaben, the sister of the deceased, those eyewitnesses claimed to have seen the occurrence of the incident. They were examined as eye witnesses by the prosecution. All the three gave account of the occurrence of incident and deposed on the role played by all the three accused. PW1 deposed about the altercation that had taken place on the previous day. She stated that at the time of incident she was sitting on her Otta. As the accused persons were abusing her son, she had gone towards her house. According to her, A2 was armed with wooden log and A1 with trident and both assaulted her son, inflicted blows on the head of her son with the weapons they had.
4.7 On the role of A3, she stated that he uttered that Balawantji may be killed. Balwantji died instantaneously. She stated that when she reached the place of incident, Balawantji was struggling to survive. She along with Balawantji's wife, Ambaben and Vikram's wife Chandrikaben went there running at that place. Other people had gathered there. She stated that the accused persons ran away. While running away, A2 pushed her daughter Shobhnaben to the ground by giving slap while she tried to catch A1.
4.8 Ambaben [PW14, Exh.33] deposed in similar veins as her motherinlaw did, and stated that upon seeing the commotion, she came out to the courtyard and saw A1 with a trident and A2 with a wooden log in their hands, they attacked the deceased with those weapons, she stated, about the role of A3. She deposed that he spoke about killing Balwantji. According to her, she reached the place with her motherinlaw Shamuben [PW1] and saw that accused persons were running away. Her husband was injured and was lying restless struggling for life. The third eye witness Shobhnaben [PW7, Exh.21] in her evidence stated that she saw her son Balwantji to have fallen on the ground and her sisterinlaw Ambaben [PW14] and Chandrikaben were standing. PW7, however, admitted that she had not seen the accused attacking Balwantji but had seen them running away. She stated that A2 had wooden log and A1 had trident.
4.9 A closer look at the evidence of PW1, PW14 and PW7 indicated that even as they were projected by the prosecution as eyewitnesses, they had not fully seen the occurrence of incident. This position was clear when PW1 and PW14 stated that the deceased was in seriously injured condition and was struggling to survive when they reached the place of offence. In that it was implicit that neither of the two saw the occurrence of incident. PW 7, as per her own admission, had not seen the accused persons attacking but seen them only running away.
4.10 The Panchnama of the place of offence (Exh.20) read with evidence of one of the Panch witness Ramanji (PW6, Exh.19), brought out the description of the locations of houses and geography around the place of offence. According to the said evidence, the distance between the house of complainant and place of offence was about 67 Ft. read with Panchnama Exh.20, the evidence of Dhiraj Patel (PW15, Exh.34), who was the investigating officer, indicated that there was no electricity pole between the house of accused and house of the deceased. Even as the panchnama showed the possibility of place of offence being visible from house of the deceased, the time when the incident took place was 8.00 p.m. in the month of September when it was supposed to be sufficiently dark to impede clear visibility in absence of any other light. In absence of evidence on record that there was a light at the actual place of commission of crime, the claim of the eye witnesses that they saw the whole incident from the beginning before they actually reached there from their own place, remained highly undependable and was not believable.
4.11 When the medical evidence in terms showed serious discrepancies on the nature of injuries suffered by the deceased vis àvis the use of trident and the injuries having been found not caused by use of trident, the role of A1 could not have been attributed to those injuries, a reasonable inference could be drawn that the eye witnesses had exaggerated in giving account of the incident. The possibility could not be ruled out that they deposed in order to falsely implicate A1. The role of A3 being very limited as mentioned in the complaint and in the evidence of mother Shakuben and wife of the deceased Ambaben, and no other witness having mentioned about A3 uttering the words that ‘Balwant may be killed’, there was reasonable doubts were entertainable that he was also sought to be implicated. In any case, the evidence of eye witnesses visàvis the medical evidence rendered the evidence of the eye witnesses fragile. They contained improvisations and embellishments. The eye witnesses were not speaking the whole truth on the occurrence of incident, even if their claim to have seen the accused persons and the injured deceased at the end time after occurrence of incident is accepted. Their evidence could be banked on for the limited purpose and certainly A1 and A3 could not have been implicated on the basis of their version.
4.12 The Supreme Court in Abdul Sayeed vs. State of M.P.
[(2010) 10 SCC 259] made the following observations:
“though the ocular testimony of witness has greater evidentiary value visavis medical evidence but when medical makes the ocular testimony improbable, that becomes a relevant factor in the process of evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. (emphasis supplied)
5. The accused No.3 was found to have neither participated in any manner in the offence, nor was armed with any weapon, nor shown to have committed any other overt act except uttering those words. Once such is the position flowing from the evidence on record, the charge under section 34 of IPC would not sustain against him as he could not be posted with any intention in common with other remaining accused No.2 Vijayji. Section 34 IPC provides that when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in same manner as if it were done by him alone. While it is true that a person sharing common intention would be liable for the same offence committed by the others by virtue of section 34 IPC, but in the present case, on the facts and evidence when it could not be said that A3 participated in the offence, as also A1 was found entitled to an acquittal from the charge having not participated and having not used the weapon or caused the injury, the rigor of section 34 IPC is eliminated. The inference that would arise would be against sharing of any common intention on part of the accused persons for which they were collectively charged. In this view, it could be reasonably concluded that A3 did not act in any manner in furtherance of the common intention to kill. Such common intention on his part was absent as stated above.
5.1 In view of the situation brought about by the above evidence and its resultant effect, only A2 was left as an offender. As he was the only one remained to be the offender, he was alone who could have been said to have acted with intention to do the criminal act. Neither A1 nor A3 could be said to have shared intention to commit the crime with A2, inasmuch as the role and participation of both A1 and A3 got separated and taken out of the commission of the offence as per the effect of the evidence discussed above. In the above premise, while the charge under section 34 IPC could not sustain against A1 and A3, their involvement was not proved for other offences for which they were charged.
6. In light of the foregoing discussion and reasons, the prosecution could prove the offence only against A2. The conviction can not be upheld against other two accused being A1 and A3, as the offences charged against them could not be said to have been proved from the evidence on record.
6.1 As a result, the impugned judgment and order dated 29th March 2005 delivered by learned Additional Sessions Judge, Fast Track Court No.3, Gandhingar in Sessions Case No.132 of 2004 is set aside insofar as it convicted accused No.1 and accused No.3 being appellant No.1 and appellant No.3 herein. The conviction and sentence of accused No.1 Karanji Becharji Thakore and accused No.3 Becharji Bupatji Thakore is hereby set aside. They are acquitted of charges levelled against them.
6.2 Appellant No.1 Karanji Becharji Thakore who is in jail shall be set at liberty forthwith, unless he is required to be retained for any other offence. Appellant No.3 Becharji Bupatji is on bail. His bail bond shall stand cancelled. The fine paid, if any, by either of appellant No.1 or appellant No.3 shall be refunded.
6.3 The conviction recorded against A2 Vijayji Becharji Thakore under Section 302 read with Section 34, IPC is set aside, and it is altered and he is convicted for the offence punishable under Section 302, IPC.
7. Accordingly, the appeal in respect of A1 Karanji Becharaji Thakore and A3 Buptaji Becharaji Thakore is allowed, whereas it is allowed in part in respect of A2 Vijayji Becharaji Thakore to the extent that his conviction is altered to be one under Section 302, IPC from under Section 302 IPC read with Section 34, IPC. The appeal is allowed in the aforesaid terms.
[A. L. DAVE, J. ] [N. V. ANJARIA, J.] Amit