IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 950 of 2009 With CRIMINAL APPEAL No. 1075 of 2009 For Approval and Signature:
HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE PARESH UPADHYAY ==================================================== 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 ?
Whether this case involves a substantial question of law as to 4 the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
==================================================== STATE OF GUJARAT - Appellant(s) Versus KHACHAR DIPU @ DILIPBHAI NAKUBHAI & 2 - Opponent(s) ==================================================== Appearance :
Criminal Appeal No.950 of 2009 MR.KL PANDYA APP for Appellant MR BHARGAV BHATT for Opponents Criminal Appeal No.1075 of 2009 MR BHARGAV BHATT for Appellant MR.KL PANDYA APP for Opponent ==================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 12/04/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY)
1. These two appeals are directed against the judgment and order passed by learned Additional Sessions Judge, (Fast Track Court No. 3), Bhavnagar, camp at Botad, in Sessions Case No. 166 of 1998, dated 5th March, 2009. Three accused were charged with offence punishable under Sections 302 and 201, read with Section 34, of the Indian Penal Code and on conclusion of the trial, learned Sessions Judge came to the conclusion that, only original Accused No.1, Khachar Dipu @ Dilipbhai Nakubhai, could be held to be guilty of offence punishable under section 304 Part-I of IPC and sentenced him to undergo Rigorous Imprisonment for 5 years, and imposed fine of Rs. 500/-, and ordered one month's Simple Imprisonment in default of payment of fine. Accused No:2 Khachar Vahtubhai Nakubhai and Accused No: 3 Devipujak Joni @ Jenti Shivabhai were acquitted of all the charges. It is against this judgment and order that the original A-1 has filed the conviction appeal being Criminal Appeal No. 1075 of 2009 and State is also in appeal, in Criminal Appeal No. 950 of 2009, challenging the acquittal of all the three accused from the charge of offence punishable under Section 302 of IPC.
2. As per the case of the prosecution, on 21.5.1998, on the basis of the complaint given by one Bhimji Shivabhai Koli, offence came to be registered vide CR-I No: 101 of 1998, with Gadhada Police Station, against three accused for offence punishable under Sec.302 read with Sec.34 of IPC, for murder of Shambhubhai Shivabhai Koli, the brother of the complainant. As per prosecution case, A-1 and A-2 had some quarrel with the deceased Shambhubhai Shivabhai on the question of throwing of garbage, and there was also hot exchange of words before three days of incident. As per prosecution case, on 20.5.1998, at about nine o'clock at night, after having dinner, when Shambhubhai Shivabhai, was on his way to his field on bicycle, accused riding in vehicle- matador Registration No: GJ-7-U-2385, followed him and dashed matador with the bicycle of Shambhubhai from behind and thereafter, they took Shambhubhai Shivabhai Koli in the matador and tied him with the rear side of the matador and dragged him for nearly 10 kilometers which resulted in death of Shambhbhai Shivabhai. On investigation accused were arrested and after collecting evidence charge-sheet was filed against them. The case being triable by the Court of Sessions, was committed to the Court of Sessions and the charge came to be framed against all the accused vide Exh. 12 to the effect that accused had committed offence under section 302 read with section 34 of IPC. The charge further stated that after killing Shambhubhai, accused had dumped the body of the deceased on the road and thereby tried to destroy the evidence and therefore they were charged for the offence under section 201 read with section 34 of IPC.
3. To prove the case, the prosecution examined 24 witnesses, the details of whom are recorded in para-5 of the judgment. The prosecution also brought on record 42 documentary evidence, the details of which are reflected in para-6 of the judgment. After leading of the evidence, further statements of all the accused under section 313 of Code of Criminal Procedure was recorded by the learned Sessions Judge. The arguments were heard of both the sides and ultimately, the learned Sessions Judge came to the conclusion that only original Accused No.1, Khachar Dipu @ Dilipbhai Nakubhai, could be held to be guilty of offence punishable under section 304 Part-I of IPC. Accused No:2 Khachar Vahtubhai Nakubhai and Accused No: 3 Devipujak Joni @ Jenti Shivabhai were acquitted of all the charges. As noted above, it is against this judgment and order that the original A-1 has filed the conviction appeal being Criminal Appeal No. 1075 of 2009 and State is also in appeal, in Criminal Appeal No. 950 of 2009, challenging the acquittal of all the three accused from the charge of offence punishable under Section 302 of IPC.
4. We have heard Mr. Bhargav Bhatt learned advocate for all the three accused and Mr. K.L. Pandya learned APP for the State. Both the learned advocates have taken us through the entire evidence on record.
5. In the submission of Mr. Bhatt learned advocate for the accused, the acquittal recorded by the learned Session Judge of all the accused for the offence under section 302 of IPC, is perfectly justified and in his submission no interference in that regard is called for. In his further submission, even the conviction recorded by the learned Sessions Judge qua A-1 to the extent of offence under section 304 Part-I is also erroneous and according to him, A-1 should have been given clean acquittal, atleast benefit of doubt, as is given to A-2 and A-3, and in any case, in his submission, the sentence of five years R/I is excessive and that, that should be in any case reduced to the sentence undergone, which by this time, is about three years.
6. Learned APP, on the other hand, vehemently submitted that, considering the totality of the facts and more particularly, considering the aspects of the distance of more then 10 kilometers between the place where the Matador and bicycle had dashed and soon thereafter, the body, crushed over all vital parts of the body, was found lying on the road, coupled with the fact that even the matador was found in abandoned condition near dead-body itself, this could by no stretch of imagination be termed as the case of accidental death and also not of negligence in driving by accused, and that after finding sufficient evidence to link A-1 with the commission of the offence, it could not have been termed as offence punishable under section 304 Part-I and could be only under section 302 IPC, as was charged originally. As per learned APP, even A-2 and A-3 ought not to have been acquitted, since their presence with A-1 is also proved and all the three accused were charged of the offence under section 302 read with section 34 IPC. The benefit of doubt in favour of A-2 and A-3, in the submission of learned APP, ought not to have been given by the trial court.
7. From the evidence which has come on record, we find that Bhimjibhai Jivabhai complainant, brother of the deceased, is examined as PW-1 at Exh. 30. In his evidence, he has deposed that deceased Shambhubhai was his elder brother. On 20.5.1998 at about nine o'clock at night, both the brothers, after having dinner, had started to go to their field. Both had walked together for some distance. Deceased Shambhubhai had bicycle in his hand. Thereafter, he rided bicycle and the complainant continued to go on foot. Accused passed by in, the vehicle matador, which was driven by A-1. After some time, he heard noise of vehicle being dashed . He walked speedy and saw the broken bicycle of his brother. The utensils for milk and battery, which his brother was carrying were lying there but his brother was not there. He tried to search for his brother. Thereafter, he returned to the village and informed his other brothers and others. While searching they reached Gadhada and on the other side of the river at Gadhada, they saw that a crowd had gathered there, and on inquiry they came to know that dead body of one person was found there and it was taken to the hospital. They then went to the hospital. The dead-body was of his brother Shambhubhai. The whole body was crushed. The dead-body could be identified only because of ear-rings. He further deposed that three days before the incident, the deceased had altercation with accused and scuffle and the accused had told the deceased that within three days even his body would not be available. This was told to the witness by Himmatbhai, son of the deceased. This witness was extensively cross-examined on behalf of the accused, but barring some minor contradictions, on the principal say, the witness has stood by his complaint.
8. The son of the deceased Himmatbhai is examined as PW-18 Exh. 89. In his deposition, he deposed that on the date of incident, his cousin brother came and informed that the bicycle, battery etc. of his father were lying near the cremation ground of the village. On hearing this, he went to the place and thereafter he and his uncle Samant had gone to Gadhada on motor-cycle. They tried to search there. He learnt that the body of the deceased was lying on the road near Gurukul and it was taken to the Government hospital at Gadhada. In his deposition, he deposed that the incident had taken place because of some hot exchange of words, with the accused, because for garbage dump. In his deposition he stated that he had learnt that his father was threatened by the accused that within five days, his father was to be killed. He learnt that his father was killed by being dragged with the matador. The said witness was also cross-examined. In his cross-examination, he deposed that the distance of Gadhada where the body of the deceased was found was 15 km and not 30 km. The dead-body was brought to the village by his uncle and other villagers. After the dead-body was cremated, it was decided to give police complaint in that regard. His uncle had gone to give police complaint.
9. One Shri Jayprakash Balmukund Kadel PW-22 is examined at Exh. 95. This witness was serving as PSI at Gadhada Police Station at the relevant point of time. He has deposed to the effect that on 20.5.1998 at eleven o'clock in the night, police received information on telephone that one dead- body was lying behind the Swaminarayan temple near river bank, at Gadhada. PSO had entered the same in the station diary. He went to the spot and drawn inquest panchnama at 23.15 hours. The entire body had sustained injuries to the bone level. Thereafter, he had prepared the yadi for performing the post mortem of the body. This witness has also deposed to the effect that on 21.5.1998 because of death of the deceased, he had given case papers pertaining this offence to PSO, which in turn, were given to PSI Gambhirsinh.
10. Dr. Kanjibhai Talasibhai, PW-16 is examined at Exh. 79.
In his deposition, he deposed that on 21.5.1998, he was on duty at Community Health Centre, Gadhada as Medical Officer and Police Constable Bharatbhai had brought one dead-body for post mortem. The entire body had serious injuries. The face was crushed and was appearing horrible. The private part of the body was completely crushed. The body had following injuries:
1. Destruction of brain and skull.
2. Destruction of face and its bone (crushing)
3. Crushing of all ribs on Rt. Side and some ribs on left side.
4. CLW over left leg just below knee, above ankle joint
5. Abrasion all over front part of chest, abdomen, leg and hand, liner mark with contaminated of road metal.
6. Fracture of all ribs with sternum
7. Fracture on Rt. Femur bone at lower end.
8. Fracture of numerous at it's upper part.
9. Abrasion over heel of Rt. Leg up to bone.
10. Abrasion over the finger of both hand.
11. Abrasion on front of abdomen at lateral side and back of abdomen. All part.
12. Abrasion all over thoracial part back side.
13. Abrasion over knee joint and middle side of Rt. Leg upto muscle deep
14. The skull was fractured and crushed and the portion of brain was hanging out. It was also crushed. The road metal was also found therefrom. Lungs, heart, brain, all vital parts were crushed.
The cause of death, in his opinion was, due to the serious injuries on the vital parts of the body. In his opinion, these injuries were possible in vehicular accident or if the vehicle is ran over the body. By making reference to the inquiries made by the police officer in writing as to whether it was possible if the deceased was strangulated initially and thereafter body was dragged on road, doctor had replied that he did not find any such strangulation marks. The cross- examination also proceeded to extract, that even after the death, if the dead-body was dragged or the vehicle runs over the body, the injuries could be caused. The cross- examination was also concentrated to extract the absence of marks on the wrist part of the deceased to negate prosecution theory to the extent that the deceased was tied behind the vehicle and was dragged on the road. The deposition of this witness explained how cruel death, the deceased has met with.
11. Bharatbhai Pratapbhai Barot, PW-17 is examined at Ex. 87, who deposed that after the post mortem, the body was handed over to the relatives of the deceased.
12. Bhikharam Dayaram Ramanuj PW-23 is examined at Ex.
96. In his deposition, he deposed to the effect that he was Circle Police Inspector at Botad Division under whose jurisdiction Gadhada comes. On 20.5.98, at Rampura village, a murder had taken place and on 21.5.1998 offence was registered. Initially, PSI Gambhirsinh Gohil had investigated the offence and subsequently he, as CPI had taken over the investigation. He had taken the police custody of the accused and after collecting the evidence, he had filed the charge-sheet in the Court. He identified the accused who were present in the court. He further deposed that the map of scene of offence/ place was also got prepared by him and was produced on record. He had sent wireless message to his higher authority for the offence. In the cross-examination, he deposed that in the matador vehicle blood stains were not found. Panchnama of the vehicle was drawn at Gadhada Police Station. He does not know how the matador reached the police station from the bank of river. He has also conceded to minor contradictions to the effect that the complainant had not initially stated in his complaint that he and his deceased brother were initially going on foot and thereafter his deceased brother rided the bicycle. He has also conceded to the effect that in the complaint it was not stated that three days prior to the incident, the deceased and the accused had altercation.
13. The FSL report is on record at Exh. 44 which broadly deals with the clothes of the deceased, his shoes etc. The skin recovered from the dumper of the matador had remained undecided because of insufficient blood contents on the skin. The scientific report of FSL confirms that the back side of the bicycle had a colour marks of the front side of the matador vehicle bearing registration No. GJ-7-U-2385. Thus, dashing of bicycle by the matador in question is established by this scientific evidence also.
14. One Shantibhai Lakhmanbhai PW-20 is examined at Exh.
91. IN his deposition, he deposed that on the date of the incident, he saw the matador being dashed with bicycle. The bicycle fallen down and from matador three persons came down and they took the body and dumped it in the matador. Those three persons were these three accused and thereafter he does not know anything. At this stage, this witness was declared hostile and he was cross-examined. In the cross- examination, he deposed that because he was afraid, he and his labourer Gobar did not go to the place of incident. After seeing the incident, both had gone back in their field. In the cross-examination by accused, this witness stated that he was giving water from his bore-well. Discrepancies with regard to the distance from the scene of offence to the place he was standing, whether it was 30 ft or 50 to 60 ft. was tried to be extracted from the cross-examination.
15. Gobarbhai Bavubhai, who was working with Shantibhai Lakhmanbhai, is examined as PW-21 at Exh. 92. In his deposition, he has deposed to the effect that at about 9.00 to 9.30pm in the night, the incident had taken place. When he and Shantibhai were going to the field, at that time, deceased Shambhubhai was going on bicycle and behind him Max Matador vehicle was going. Thereafter, the matador dashed the bicycle and from the matador vehicle three persons came down and Shambubhai was dumped in the vehicle. He does not know who were three persons, who had taken Shambhubhai in the vehicle. Thereafter, they, i.e. he and Shantibhai were giving water in the field at night. He went to his home and gone asleep. He has not identified these three accused in the court, and at this stage, this witness was declared hostile.
16. Collective evaluation of these evidences, including scientific evidence, led before the learned Sessions Judge, proved the fact that the bicycle which the deceased was riding was dashed by matador bearing registration no. GJ-7- U-2385, which was driven by A-1, the dead-body of the deceased is found behind Swaminarayan temple at Gadhada village about 15 km away from the village site where the Matador had collided with the bicycle. The injuries on the body of the deceased, crushing entire body right from private part to all ribs, heart, lungs and skull, is proved by medical evidence, and thus, A-1 is connected with the commission of the offence of unnatural death of deceased. However, in the opinion of the learned Sessions Judge, this was not murder but it was negligence in driving the vehicle by A-1. According to his judgment, the pre-meditated overt- act cannot be attributed and, therefore, the offence could not be read with section 34 of IPC and therefore, A-2 and A-3 though were present in that very matador could not be attributed with any guilt. In the judgment of the learned Sessions Judge, even the overt-act attributable to A-1, who was driving the matador vehicle was also only to the extent of unintentional negligent driving of vehicle which could lead to death of a person. Viewing the offence in question from this angle, learned Sessions Judge convicted A-1 only, and that too, for the offence under section 304 Part-I of IPC and sentenced him to five years R/I.
17. Learned advocate Mr. Bhargav Bhatt appearing for original accused has contended that PW-1 should not be believed inasmuch as in his submissions, the said witness is a hearsay so far as previous animosity is concerned and in his submission he has tendency to lie, since there is some contradictions as to, how and in whose company he reached Gadhada and that the dead-body of the deceased was handed over to whom after the post mortem and who brought the body from hospital to the village. In the submission of learned advocate for accused, the conduct of this witness is unnatural since he did not inform the police immediately and made complaint only after funeral of the deceased. In our view, this argument of learned advocate can not be accepted because, the priority of the family members at the late night would be to get the dead body home and to do the last rites, first and when the complaint is given to the police soon thereafer on the same date can not be termed as belated complaint or that thereby the conduct of the brother of the deceased becomes unnatural, so as to discard his testimony. Minor contradictions as to after post mortem, from amongst more than one brother and many villagers standing at the hospital, who signed the medical case papers in token of having received the dead body, in our view would not take the case of the accused any further.
18. Learned advocate Mr. Bhatt also contended that the deposition of PW-20 and PW-21 should also not be believed since there is material contradictions in their deposition. In this regard it needs to be recorded that there may appear to be some contradictions about the distance from which these witnesses saw the incident, being 30 ft or 50 to 60 ft, however the fact that the vehicle was driven by these persons i.e. accused and the bicycle of the deceased was hit by this vehicle and the deceased was taken and dumped in the said vehicle, and thereafter, the vehicle had gone away threfrom, is duly proved by the deposition of these witnesses. The argument of learned advocate for the original accused to the effect that these two witnesses, i.e. Shantibhai and Gobarbhai should not be believed at all since there is contradictions and in the submission of learned advocate appearing for the accused, there is material contradiction, since Shantibhai says that they were giving water in the field when the incident took place and as per the say of Gobarbhai they were going to the field to give water, when the incident took place, is sufficient enough to discard their depositions completely. We are of the view that the question that has fallen for adjudication is not wherefrom these two witnesses had seen the commission of the offence or that at that time what they were doing. The question is also not what was the distance, was it 30 ft or 50 to 60 ft from the scene of offence and the place where these two witnesses were standing and/or working. According to us, the material aspect is that both these witnesses have seen the vehicle in question dashing the bicycle of the deceased and deceased being lifted and being dumped in the vehicle by three persons. For this reason, even this argument of learned advocate needs to be rejected. Be it noted that solely on the deposition of these two witnesses, the guilt is not proved. There is independent scientific evidence connecting bicycle with the matador, the dead-body of the victim was found about 15 kms away, where from it was taken and it was completely crushed, right from private part of the body to lungs, heart and even the head. Matador vehicle is also found in abandoned condition near the dead-body and everything happened between 9.30 to 11.00 O'clock in the night on 20.5.1998.
19. Learned APP contended that based on over whelming evidence coming on record which is even accepted by learned Sessions Judge to connect A-1 with the commission of the offence, there was no reason not to connect A-2 and A-3 since they were also traveling with A-1 in that very matador, and since the offence is also charged under section 302 read with section 34 of IPC, all the three accused ought to have been convicted. In his submission, by no stretch of imagination, the offence could be termed as negligent driving leading to conviction under section 304 Part-I of IPC, and according to him, it ought to have been under section 302 of IPC, and that too, qua all the three accused. We are of the view that when the evidence on record connects the accused with the commission of offence, and as is rightly accepted by the learned Sessions Judge, there is no escape from recording the conviction. The error, in our view, which the learned Sessions Judge has committed is to the effect that, based on material which has come on record, in his judgement, offence under section 304 Part-I of IPC, and not 302 of IPC, was committed. Here it needs to be recorded that, had this been the case of mere negligence in driving, there was no occasion for the bicycle lying in broken condition at the village and the body of the deceased having been found some 10 to 15 kms away therefrom. The injury marks on the whole body, effectively crushing the entire body is not mere an accident of dashing the matador with bicycle from behind but is a full-fledged murder. Had it been the case of mere negligence in driving, the accused would not have lifted the body of the deceased after dashing, in the matador. Further, the muscle tissues found from the bumper of matador, coupled with the condition of the body of the deceased and the fact that it was left on the road with matador, at a distance of about 10 to 15 kms away from where it has dashed, makes the say of the complainant believable for causing death of the deceased by dragging/ crushing and not a case of mere dashing of matador with cycle. Hence, the conclusion recorded by learned Sessions Judge for absence of pre-meditation to cause death is against normal prudence. Hence, we find that finding recorded by the learned Sessions Judge is perverse and the intention to cause death was proved by material evidence oral as well as documentary. Considering the totality of the facts, in our view, learned Sessions Judge was in error to hold A-1 guilty of offence under section 304 Part-I of IPC, instead of 302 of IPC, and this needs to be considered by this court. While doing so, this Court is conscious of the fact that if two views are possible, the one which is beneficial to the accused has to be taken and when such benefit is already granted by the sessions court, the appellate court would be slow to reverse the acquittal. However, at the same time, it is also to be borne in mind that the paramount consideration of the court is to ensure that miscarriage of justice is prevented. The miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-
appreciate the evidence where the accused has been acquitted. Keeping in view these principles, if the facts of the present case are weighed, we find that case of A-2 and A-3 stand on different footing, which is discussed hereinafter, but so far as A-1 is concerned, learned Sessions Judge has found sufficient evidence on record to link the guilt but has ignored the material evidence for intension to commit murder of the deceased. Therefore by applying normal prudence for consideration of material evidence, it is not possible to hold that there was no intention to cause death of the deceased. Hence, the only view could be to hold A-1 guilty for the offence under Section 302 of IPC and not for the offence under Section 304 Part-I of IPC. Hence, to that extent the appeal filed by the State deserves to be allowed.
20. So far learned Sessions Judge has given benefit of doubt to A-2 and A-3 is concerned, it is well settled that, in an acquittal appeal, the appellate court would be slow to interfere. Though the presence of A-2 and A-3 with A-1, in our view is proved, but once the benefit of doubt in commission of offence is passed on to these two accused by the learned Sessions Judge, we are not inclined to reverse that finding. To this extent, acquittal appeal filed by the State is dismissed. However, the acquittal appeal of the State succeeds to the extent that A-1 ought to have been convicted for the offence under section 302 of IPC. We accept the appeal of the State to this extent.
21. So far as the appeal filed by A-1 challenging his conviction even under section 304 Part-I of IPC is concerned, the same is dismissed and the said conviction stands modified by accepting the acquittal appeal of the State as stated herein above, that it was an offence not under section 304 Part-I of IPC but was under section 302 of IPC.
22. For the reasons and findings recorded above, we hold that, Accused No.1, Khachar Dipu @ Dilipbhai Nakubhai, had committed offence punishable under section 302 of IPC, and learned Sessions Judge was in error in recording conviction under Sec.304 part-I of I.P.C., instead of Sec.302 of I.P.C. Consequently the order of learned Sessions Judge, recording conviction of A-1 for the offence under section 304 Part-I of I.P.C., is modified to the extent that A-1 is held guilty and convicted for the offence under Section 302 of IPC. Sentence awarded by learned Sessions Judge on Accused No.1, Khachar Dipu @ Dilipbhai Nakubhai, to undergo Rigorous Imprisonment for 5 years, and fine of Rs. 500/-, and one month's Simple Imprisonment in default of payment of fine, is modified to the extent that Accused No.1, Khachar Dipu @ Dilipbhai Nakubhai, shall undergo Rigorous Imprisonment for life. Other part of the judgement of learned Sessions Judge, by which Accused No:2 Khachar Vahtubhai Nakubhai and Accused No: 3 Devipujak Joni @ Jenti Shivabhai are acquitted of the offence punishable under Sections 302 and 201, read with Section 34, of the Indian Penal Code, is not interfered with. Criminal Appeal No. 1075 of 2009, in which conviction is challenged by A-1 is dismissed. Criminal Appeal No:950 of 2009, preferred by State is allowed qua A-1 and is dismissed qua A-2 and A-3.
[JAYANT PATEL, J.] mandora/ [PARESH UPADHYAY, J.]