IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 375 of 2006 For Approval and Signature:
HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE A.J. DESAI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial 4 question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= SANJAYBHAI JIBAWABHAI RANA Versus STATE OF GUJARAT ========================================= Appearance :
MR J.M. PANCHAL with MR.K.J. PANCHAL for Appellant MR NEERAJ B SONI, APP for Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE A.J. DESAI Date : 07 /09/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE A.J. DESAI)
1 Challenged in this Appeal is the judgment and order dated 13.1.2006, passed by learned Presiding Officer, Fast Track Court No.10, Nadiad, in Sessions Case No. 250 of 2004, by which the appellant, who is original accused No.1, has been convicted for the offences under Section-302 of the Indian Penal Code and under Section 27(1) of the Arms Act and sentenced him for rigorous imprisonment for life and fine of Rs.3,000/- and in default to undergo rigorous imprisonment for three months.
2 The brief facts that emerge in the present appeal are as under:
That one Chandubaben Pravinsinh Rana, widow of Pravinsinh Abhesinh Rana, lodged a complaint on 31.7.2004 with Tarapur Police Station, Taluka Khambhat, District- Nadiad and alleged that her husband had expired prior to four years and she was residing with her two sons and four daughters. Out of two sons, one was married and out of four daughters, two were married and were residing at their matrimonial home. She had her agricultural land, which was being cultivated by her sons. Her agricultural land was situated in the sim of village Khanpur. Adjacent to her land, the land of her brother-in-law Jibawabhai Abhesinh Rana is situated.
2.2 On 31.7.2004, her son, who was unmarried, namely, Jaydipsinh, had gone to her field for agricultural purposes. He returned to home at about 6.30 in the evening and at that time she along with her unmarried daughters was present at her residence. Jaydipsinh informed her that his uncle Jibawabhai Abhesinh Rana and his son Sanjaybhai Jibawabhai Rana had broken the water channel (palla), which was situated between the two fields. Pursuant to the mischief committed by Jibawabhai and his son Sanjaybhai, altercation took place at the field. Thereafter, when her son Jaydipsinh came out of his house, she heard some altercation, which was going on out side of the house and, therefore, along with her two daughters, she came out of her house and found that her brother-in-law along with her son were quarreling with Jaydipsinh and Sanjaybhai had a gun in his hand. Her son Jaydipsinh asked Sanjay that he can do whatever he wants to. Because of the quarrel, Sanjay got excited and fired a gun shot on the chest of her son Jaydipsinh. Pursuant to which, he immediately fell down and within few moments, he died on the spot. After this incident, her brother-in-law Jibawabhai and his son Sanjaybhai went back to their home. Pursuant to this First Information Report, the police personnel started investigation and after having found sufficient material against the accused persons, filed a charge sheet in the court of learned Judicial Magistrate, First Class, at Khambhat, who, in turn, committed the case in the court of Sessions, Kheda at Nadiad. The learned Sessions Judge framed charges against Sanjaybhai Jibawabhai Rana and Jibawabhai Abhesinh Rana for the offences under Section 302 read with Section 114 of the IPC as well as framed charge under Section 27(1) of the Arms Act against accused accused No.1. The prosecution was successful in establishing the case only against original accused No.1 i.e. Sanjaybhai Jibawabhai Rana, but failed in establishing the case, qua, original accused No.2–Jibawabhai Abhesinh Rana, who was charged under Section 302 read with Section 114 of the IPC. As stated here-in-above, the learned Sessions Judge after considering the evidence led by the prosecution in the form of oral testimony as well as documentary evidence, came to the conclusion that the original accused No.1 Sanjaybhai Jibawabhai Rana had committed the offence under Section 302 as well as under Section 27(1) of the Arms Act and convicted for the same and sentenced him, as stated above. We are informed by learned APP Mr. Neeraj B Soni that the State has not preferred any appeal against the acquittal order of original accused No.2 - Jibawabhai Abhesinh Rana.
3 Mr. J.M. Panchal, learned Advocate for the appellant has assailed the judgment of the Trial Court on various grounds. The first contention raised by Mr. Panchal is with regard to the reasons assigned by the Trial Court in accepting three witnesses, namely, Chandubaben Pravinsinh Rana, PW-13, Exhibit-34 – complainant, Mumtaz Pravin Rana, PW-14, Exhibit-36,the daughter of the complainant and Taheraben Pravinsinh Rana, PW-15, Exhibit- 37, another daughter of the complainant, as eye witnesses to the incident. He has submitted that except these three so called eye witnesses, the prosecution has not examined any independent witnesses, though, it was the case of the prosecution that the incident took place where number of houses are situated. He has submitted that if the depositions of these witnesses are closely and carefully scrutinized, it emerges that they have not witnessed the incident since there are omissions and contradictions in their depositions. He has submitted that the genesis of the occurrence of the offence is missing in the case since neither of these three witnesses is clear about the exact place and manner in which the incident took place. He has submitted that the dispute which took place in the field was over prior to two hours, and as per the prosecution case, the accused persons have played mischief in the fields, which are adjacent to each other. The `palla’ which was prepared by the deceased was broken by the accused persons and, therefore, the deceased had grievance for the same and, therefore, the motive which the prosecution has tried to establish cannot be accepted. It was further argued by Mr. Panchal that the prosecution has tried to involve the head of the family i.e. Jibawabhai Abhesinh Rana in the incident, which was not accepted by the Trial Court and acquitted the accused No.2 and, therefore, the Trial Court has erred in accepting these three witnesses as eye witnesses to the incident and convicting the appellant- accused. He has submitted that the circumstantial evidence in the nature of a discovery of arms at the instance of the present appellant is not proved since the panch witness to the discovery has not supported the case of the prosecution. He has also submitted that the ballistic report does not clearly indicate that the weapon which was discovered at the instance of the appellant–accused was used in the said incident. Mr. Panchal has further submitted that there are discrepancies in describing the weapon which was discovered. As per the deposition of the Investigating Officer Mahendrakumar Muljibhai Makwana, PW-17, Exhibit-58, the appellant-accused had discovered a shot gun of 12 bore, however, the FSL report shows that the shot gun is of 20 bore and, therefore, it becomes doubtful whether the discovered weapon was sent for the Ballistic report to the laboratory or not. He has submitted that if the evidence of the witnesses, who posed themselves as eye witnesses are discarded, there is no other circumstances, which would involve the present accused and, therefore, the judgment and order convicting and sentencing the appellant is required to be set aside and the appellant be acquitted from the charges leveled against him.
4 On the other hand, learned APP Mr. Neeraj B Soni, has supported the reasons assigned by the Trial Court convicting the appellant–accused. He has submitted that there are no contradictions in the depositions of the eye witnesses. Looking to the time and place of the incident, their presence at the home in a small village, was natural. He has submitted that looking to the situation of the house of the complainant and the house of her brother-in-law i.e. the house of the accused, the same are situated in a very close proximity. In support of his contention, he has taken us through the Scene of Panchnama, Exhibit-19 and scene of Map, Exhibit-47 prepared by In-charge Circle Inspector of Tarapur Taluka Panchayat. He has submitted that the complaint was lodged by Chandubaben Pravinsinh Rana immediately after the incident, in which she has categorically stated that the present appellant- accused, who had used the weapon by firing the same towards the deceased, committed the offence of murder. He has submitted that all the witnesses have described the offence of firing in the same manner, though, there might be some discrepancies about the peripheral conduct of each witnesses regarding when the accused persons came near their house and when the deceased went out of the house. He has submitted that just about six meters from the house of the deceased the incident took place, which is described by each of the eye witnesses. He has submitted that, as deposed by all three witnesses in their cross-examination, there are no disputes between the two families, except, the quarrel which took place on the day of the incident in the field prior to two hours of the main incident.
5 Mr. Soni, learned APP has further submitted that as far as the Ballistic report of Forensic Science Laboratory at Exhibit-63 is concerned, the prosecution was successful establishing that the fire arm which was discovered at the instance of the appellant- accused was used in the incident. He has submitted that the discovery panchnama of the weapon mentions the number and the same number is reflected in the Ballistic report. He has submitted that pallets, which were discovered from the body of the deceased, were sent for the opinion along with the weapon and the opinion with regard to the same clearly establishes that the same gun was used in the offence. Mr. Soni submitted further that the Investigating Officer has deposed the 12 bore shotgun was discovered, but if the discovery panchnama is seen, the number of the weapon matches with the Ballistic report and, therefore, it can be treated as a mistake of the Investigating Officer in deposing about the description of the gun. Therefore, he submitted that, no interference is called for in the judgment and order of conviction and sentence passed by the Trial Court and the appeal may be dismissed.
6 Having heard Mr. J.M. Panchal, learned Advocate for the appellant and Mr. Neeraj B Soni, learned APP for the respondent–State, we have examined the record and proceedings.
7 In our opinion, the most important witnesses in the present case are Chandubaben Pravinsinh Rana, PW-13, Exhibit-34 - complainant; her two daughters i.e. Mumtaz Pravin Rana, PW-14, Exhibit-36 and Taheraben Pravinsinh Rana, PW-15, Exhibit-37; Dr. Harshadkumar Mafatbhai Patel, W-16, Exhibit-40 and Investigating Officer Mahendrakumar Muljibhai Makwana, PW-17, Exhibit-58 .
8 To deal with the first contention raised by Mr. Panchal about the eye witnesses, it appears that, the fields of the complainant side as well as accused side are adjacent to each other. Deceased Jaydipsinh returned to his home at about 6.30 in the evening from his field and informed his mother, who was sitting with her daughters Mumtaz and Taheraben, that the accused persons had broken the water channel because of which, a quarrel had taken place. As per the deposition of Chandubaben, at about 6.45 p.m. when she was talking with her deceased son Jaydipsinh, both the accused Sanjaybhai and Jibawabhai came along with guns in their hands. When her son Jaydipsinh went out of the house, Jibawabhai instigated his son Sanjay and, therefore, Sanjay fired the gun. She deposed before the court that there was no altercation. This witness was exhaustively cross-examined by the defence. In her cross-examination,she has stated that, both the accused persons had come from the back side of their house. Both of them had come together at the time when she was talking with her son. When her son Jaydipsinh saw the accused, he came out of the house. No altercation took place at that time and the distance between the accused and her son Jaydipsinh was about 3 feet. She has stated that, she along with her daughters, came out of their house with the deceased. She has stated that her son had made no attempt to take the gun lying in their house, her deceased son went outside the house. She has stated that when her son came out of the house, there was firing and on hearing the same, she along with her daughters came out of their house. If her cross- examination is carefully scrutinized and if it is closely read in its entirety, it cannot be accepted as argued by Mr. Panchal that all witnesses were inside the house when the firing took place and therefore they had no occasion to witness the incident, in which it was alleged that accused No.1 had fired towards the deceased. Evidence of a witness is to be assessed as a whole and not by picking up one sentence from the deposition. Deposition of an aged lady from a village, having six grown up children cannot be discarded on such picked out sentences. The present appellant- accused cannot get the benefit of minor discrepancies in evidence since this witness has categorically described the entire incident, in which the appellant-accused killed the deceased by using the fire arm in his hand. There is confidence inspiring ring of truth in her evidence.
9 Mumtaz Pravin Rana, PW-14, who is aged about 22 years, is the sister of the deceased and daughter of the complainant, has made some improvements, qua, the role played by the original accused No.2-Jibawabhai, however, she is consistent in her deposition about the main incident of firing and the role played by the present appellant–accused. She has also stated that along with her mother and sister, came out of the house with the deceased. She has also stated about the information received from Jaydipsinh about the incident which took place in the field.
10 Similar is the deposition of Taheraben Pravin Rana, PW- 15, who is aged about 21 years, is the sister of the deceased and daughter of the complainant. She has also categorically stated that along wither her mother and sister they came out of the house with the deceased and at that time the appellant–accused had fired from the gun. Pursuant to which, her brother sustained serious injuries and died on the spot. She has deposed in her cross-examination that the relations with the accused persons who are close relatives were good and there were no disputes prior to the incident.
11 In the context of the depositions of these three witnesses, it appears from the scene of panchnama as well as scene of map that the incident took place at the back side of the house of the complainant where there is a door. The houses of the complainant as well as the accused are having approach way to an open chowk in a very close proximity. The accused persons came from the back side of their house through the open chowk towards the back side of the complaint’s side. The back side door of the house of the complainant opens to the said chowk. When the incident at the field was over prior to two hours of the main incident, there was no reason for the accused persons to go near to the house of the deceased with deadly weapons. In our opinion, they were the attackers in the incident. It has come on record that the deceased had no weapon in his hand and he was a helpless person having no idea that the accused would kill him. In our view, the incident took place in the evening at about 6.45 p.m. when women in a village would ordinarily be available at their homes. Minor discrepancies are bound to creep into the evidence of witnesses, more when they are rustic villagers and depose after a lapse of time. It also depends on observation capacity and description ability of an individual. Witnesses at times add embroidery to their truthful version only to make sure that they are not branded as untruthful witness.
12 In our view, the evidence of three eye witnesses does not suffer from any major discrepancy, inconsistency or defect. They support each other in main. When an incident occurs suddenly, different persons react differently. But in a village where there is a commotion, people have a tendency to go there to see and know reason therefor. The say of three eye witnesses that they went out of house therefor deserves acceptance. If they came out, they naturally be the witnesses to what happened there. It is only the sequence of event which they are unable to recapitulate accurately. That cannot render their deposition untrustworthy. We are therefore inclined to accept the three eye witnesses as truthful and trustworthy.
13 In the case of State of U.P. vs. Anil Singh, as reported in AIR 1988 SC 1998, the Apex Court has expressed about the say of witnesses who were closely related while deposing before the court that such witnesses would add embroidery to prosecution story, perhaps for the fear of being disbelieved. The relevant observations in para-15 of the said judgment reads as under:
“ It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.”
14 Though, we find some improvements in the say of these witnesses by which they have tried to involve original accused No.1 in the offence, their say about the involvement of present appellant- accused No.1 cannot be discarded. We therefore accept the reasons assigned by the Trial Court that these three witnesses are the eye witnesses to the incident.
15 Though, we have accepted the version of these three eye witnesses involving the present appellant-accused, we would like to discuss the other circumstantial evidence in the nature of medical evidence as well as the ballistic report received from the Forensic Science Laboratory. Prosecution examined Dr. Harshadkumar Pravinsinh Rana, as PW-16 at Exhibit-40, who described the injuries sustained on the chest of the deceased and the articles found from the chest. The same are reproduced as under:
- Eclymosis– haemorrhaegic spot beneath skin – small pellets inside the wound.
- Ribs -3rd, 4th, 5th - lower end of stanum on (Lt) side.
- Blood seen in both pleural–speci. blood clots seen and multiple small pellet found from pleural space.
- Small pieces of bones (ribs & stanum) found from chest cavity.
- Both lungs, injured and haemaeric collection seen – multiple pellets found from (Rt) side lung.
- About 2.5” wound over heart.
- Artillery – opening all four chambers
- Huge blood clots are seen in pericardium
- Pericardium has wound ant. about 2.5” and pale.
- Heart is empty without blood.
- Few small pellets are found from heart
- Major blood vessels are empty.
16 The muddamal Article No.9, which was discovered at the instance of the appellant–accused, was shown to the Doctor and he has categorically stated that the injuries found on the dead body, were possible by the said weapon. He has also stated that, the injuries found on the dead body were also possible by the weapon, which was recovered by the police is registered in the name of the accused No.2.
At this juncture, we would like to observe that, the said gun was also of 20 bore, however, the Make and Number of both these articles are different and the article which was discovered at the instance of the appellant -accused was compared by the Forensic Science Laboratory and the Article No.5 recovered by the police was not sent to FSL for its report.
17 Now, the two weapons, which were either recovered or discovered, are undisputedly licensed weapons. One licensed gun belongs to the appellant–accused No.1 and another licensed gun belongs to the original accused No.2. The licence issued to the appellant-accused by the appropriate authority was produced and proved by the prosecution at Exhibit-54. It reflects that he was permitted to use 20 bore shotgun and was permitted to keep 25 cartridges. It also reflects the Make of the weapon, described as, Double-barrel-breech-load-shotgun, having No.97720, Made in England, Buckingham, London. It is also pertinent to note that both the accused persons after committing the offence, fled away, and in their absence, the house belongs to them, was inspected and a panchnama at Exhibit-16 was prepared and during that inspection, a weapon, having description of Indian Made, Breech-load, Double- barrel gun, having No.37156 was recovered, and the same number is reflected in the licence issued by the appropriate authority in the name of the original accused No.2, which was proved by the prosecution at Exhibit-53. The accused were arrested after four days from the date of incident and the present appellant–accused discovered the weapon, having the same number, which was sent to Forensic Science Laboratory for Ballistic Report.
18 Now considering the Ballistic report issued by the Forensic Science Laboratory at Exhibit-65, described the weapon having No. 97720, empty cartridges of 20 bore gun. The size of the hole on the clothes of the deceased are of 20 bore shotgun cartridges, discovered at the instance of the appellant- accused and 25 pellets were discovered from the body of the deceased. After scientific examination of these articles, particularly, the weapon, cartridges and pellets, the Scientific Officer opined that the gun which was sent for report was found to be used prior to the test firing, which was carried out by the laboratory. It was found that the cartridges which were produced by the accused were test fired from the gun and the experiment was found successful. The range of the gun was about 300 feet. The empty cartridges, which was examined by the Officer and compared under microscopic examination, it was found that the empty cartridges was of the gun which was sent for the report. The size of the holes found on the clothes of the deceased were also found to be by the cartridges, which were of the gun belongs to the appellant – accused. It was also opined by the Officer that the gun must have been used at a distance of 4 feet and the holes which were found the clothes of the deceased were possible by the pellets, which were discovered at the instance of the accused. The cartridges were live and the experiment of firing was successful.
19 As far as the pellets discovered from body of the deceased are concerned, it has been opined by the Officer that, the weight and diameter of the pellets are equivalent to the pellet which was shot from the weapon by the Officers of the laboratory. It has also been opined that the pellets which were discovered from the body of the deceased suggest that the same are fired from the like gun which was sent for the Ballistic report.
20 Now considering the panchnama of discovered weapon, having a particular number, which reflects in the licence issued to the appellant – accused as well as sent to the FSL for its Ballistic report and, therefore, the submission made by learned Advocate for the appellant–accused that as per the deposition of Investigating Officer, 12 bore gun was discovered, does not have any importance. Therefore, in our view, the weapon in question was used by the appellant–accused, which is in his name. In the statement under Section 313 of the Code of Criminal Procedure, the appellant–accused has not explained that how his licensed weapon has been used in the crime. A licensed weapon is not supposed to be used by any other person than the registered owner. It is not the case of the appellant accused that the gun was stolen or sold or transferred or attached for execution of some order or decree or any complaint was lodged with regard to the same and, therefore, considering the deposition of the eye witnesses and the important piece of evidence in the nature of Ballistic report, it cannot be said that the reasons assigned by the Sessions Court in convicting the appellant-accused, requires no interference.
21 Summarizing the case on hand, we would like to observe certain judicial pronouncements by the Apex Court which would be relevant in the case and the principles laid down thereto with regard to appreciation of evidence, qua, eye witnesses which are as under:
In the case of Leela Ram (Dead) Through Duli Chand vs. State of Haryana and Anr., as reported in (1999) 9 SCC 525, the Apex Court while dealing with the conviction order of the High Court, held that minor embellishments and trivial discrepancies, do not by themselves render the evidence of eye witnesses unbelievable. In that case, though, there were discrepancies in the depositions of the eye witnesses and Medical Officer about the entries of the bullets in the body, it was held that, the Court should instead of hair-splitting on this minor discrepancies, the totality of the situation is required to be seen. It was also held that reaction of eye witnesses would be different in each of them and there would be any set pattern of or a rule of human reaction at the time of offence. As discussed here-in-above, the testimony of the eye witnesses in the present case, who are the very closely related, inspire confidence that though there are minor discrepancies in their say about the firing, the entire evidence proves that the appellant- accused had used the gun which was a licensed one.
In the case of Amrita Alias Amritlal vs. State of M.P., as reported in (2004) 12 SCC 224, the Apex Court has discussed the principle of `Falsus in uno, falsus in omnibus' and held that the said principle is not applicable in India. As discussed here-in-above, the eye witnesses, who are closely related to the deceased, have made some exaggerations about the role played by the original accused No. 2 but that itself would not become totally false one.
In the case of Brijpal Singh vs. State of M.P., as reported in (2003) 11 SCC 291, the Apex Court has held that while appreciating the evidence of eye witnesses, if the court found that it is acceptable, then minor contradictions, inconsistencies, exaggerations or embellishments would not defeat the case of the prosecution. It is also held that even if there are some contradictions in the medical or ballistic reports which would not defeat the case of th prosecution. In the present case also there are minor discrepancies or inconsistencies in the depositions of three eye witnesses which would not totally discard their evidence.
22 In view of the above, we are of the opinion that the Trial Court has not committed any error which would call for our interference. The Appeal stands dismissed accordingly. The judgment and order dated 13.1.2006, passed by the learned Presiding Officer, Fast Track Court No.10, Nadiad, in Sessions Case No. 250 of 2004, is confirmed.
pnnair (A.L. DAVE, J.) (A.J. DESAI,)