IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1066 of 2006 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== BHIMSINGBHAI VARJUBHAI RATHWA & ANR.
Versus STATE OF GUJARAT ========================================== =============== Appearance :
MR NASIR SAIYED FOR MR VM PANCHOLI for Appellants. MR KP RAWAL, ADDL. PUBLIC PROSECUTOR for Opponent.
========================================== =============== Date :25/07/2012
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of two convicted persons and is directed against an order of conviction and consequent sentence dated 1st April 2006 passed by the learned Additional Sessions Judge, Fast Track Court No.2 at Chhotaudepur, Dist. Vadodara in Sessions Case No. 54 of 2004. By the said order, the learned Sessions Judge convicted the appellant No.1 under section 302 read with section 114 of the Indian Penal Code and sentenced him to imprisonment for life and a fine of Rs.100/-; in default of payment of fine, the appellant No.1 was directed to undergo further imprisonment for one month. So far as the charge under section 135 (1) of the Bombay Police Act is concerned, the appellant No.1 was directed to undergo rigorous imprisonment for 4 months and a fine of Rs.50/- with a stipulation that in default of payment of fine, the appellant No.1 would undergo further rigorous imprisonment for 3 months.
1.1 So far as the appellant No.2 is concerned, he was charged for the offence punishable under section 302 read with section 114 of the Indian Penal Code, 135 (1) of the Bombay Police Act and under section 504 and 323 of the Indian Penal Code. By the aforesaid order, the appellant No.2 was sentenced to rigorous imprisonment for life with a fine of Rs.100/- for charge under section 302 of the Indian Penal Code read with section 114 of the Indian Penal Code. In default of payment of fine, the appellant No.2 was directed to undergo further imprisonment for one month. So far as the charge under section 135 (1) of the Bombay Police Act is concerned, the appellant No.2 was directed to undergo rigorous imprisonment for 4 months and a fine of Rs.50/- with a condition that in default of payment of fine, he would undergo rigorous imprisonment for 3 months. The appellant No.2 was, however, acquitted of the charges punishable under section 504 and 323 of the Indian Penal Code.
2. The case made out by the prosecution may be summarized thus:
2.1 The complainant, viz. one Sangudiben, widow of the victim, viz. Nanubhai Varjubhai Rathwa, was residing with her husband and two sons at village Vejapur.
2.2 At about 7.00 PM on 22nd April 2004, Sangudiben and her husband [the victim], Kamlesh and Mahesh [her sons], after taking their dinner sat in the courtyard near their house. At that time, when the deceased had gone to sit in the open ground to answer the nature's call, Bhimsingbhai Varjubhai Rathwa [accused No.1], his son Nareshbhai Bhimsingbhai Rathwa [accused No.2] and Ramjudiben [accused No.3] [wife of accused No.1 and mother of accused No.2] being armed with bamboo sticks and stick rushed towards the victim with abusing words and Bhimsinghbhai [accused No.1] gave a blow on the back part of the victim, as a result of which, the victim had fallen down. At that time, the accused No.2, the son of the accused No.1 was shouting saying “you want share in land and in palm tree” and started giving blows with the bamboo stick on the back part of the victim. At that time Ramjudiben, the wife of the accused No.1 and the mother of the accused No.2, being armed with a stick in her hands had given stick blows twice or thrice on the victim.
2.3 Sangudiben, the complainant, felt that they would further beat her husband and as such, she went to rescue her husband from their clutches. At that time, the accused No.2 had given kick blows twice or thrice on her abdomen.
2.4 Hearing the cries of Sangudiben, Mahesh, her son, and Gohtabhai Devlabhai Rathwa, son of an uncle, had arrived.
2.5 Sangudiben immediately came back to her house and took a cot and thereafter, she and Gohtabhai lifted up the victim in the cot and brought him near her house. At that time, they discovered that the victim had already died.
2.6 Thereafter, Gohtabhai and one Ramsinhbhai informed Kandlabhai, the leader of the village, about the incident. Kandalbhai informed the police. Police came to the house of Sangudiben and thereafter, a complaint was lodged at her instance.
3. On completion of investigation, the police submitted the charge sheet before the Judicial Magistrate, First Class, Chhotaudepur and the case being exclusively triable by Court of Sessions, the learned Magistrate committed the cases to the Court of Sessions.
4. Learned Additional Public Prosecutor preferred an application being Criminal Application No. 4722 of 2005 before the Sessions Court to consolidate the hearing of Sessions Case No. 54 of 2004 and 61 of 2005 as both the cases arose out of the same complaint and by order dated 21st December 2005, both the cases were ordered to be consolidated and heard together.
5. The Prosecution has examined the following witnesses in support of its case.
5.1 The Prosecution has relied upon following pieces documentary evidence.
6. After completion of evidence of the prosecution, the statements of the accused persons were recorded under section 313 of the the Code of Criminal Procedure and the accused persons denied all the allegations levelled against them, and stated that Sangudiben and Kamlesh had given false evidence on oath and as the accused were related, they had falsely identified them before the Court. The accused persons did not lead any evidence on their behalf. According to the accused persons as stated while examination under Section 313 of the Code, they were falsely indicted in the offence and they did not know anything regarding the evidence and claimed to be tried.
7. The learned Sessions Judge, on consideration of the materials on record, came to the conclusion that the allegations levelled against the accused No.3, the wife of the accused No.1 and the mother of the accused No.2, were not proved, and accordingly, acquitted her.
8. As indicated earlier, the learned trial Judge, on consideration of the evidence on record, held that the accused No.1 and 2 were guilty of the offences punishable under section 302 read with section 114 of the Indian Penal Code as also under section 135 of the Bombay Police Act and consequently inflicted punishment upon them as indicated earlier. The learned trial Judge, however, acquitted the accused No.2 of the offences punishable under section 504 and 323 of the Indian Penal Code.
9. Being dissatisfied the accused No.1 and 2 have preferred this joint appeal.
10. Mr. Rawal, the learned Additional Public Prosecutor appearing on behalf of the respondent, has taken a preliminary objection as to the maintainability of the present appeal at the instance of the appellant No.2 by contending that during the pendency of the appeal, the accused No.2 got released on temporary bail but having violated the condition, he has not surrendered after the expiry of the period and is still absconding. According to Mr. Rawal, in view of the decision of a Division Bench of this Court in the case of MAHENDRA BHOGILAL TADVI vs. STATE OF GUJARAT reported in 2009 CRI.L.J. 1486, the appeal preferred by the accused No.2 should be dismissed with liberty to apply for restoration in the event he surrenders or is re-arrested. Mr. Rawal submits that the case being inter-linked, this Court also should not hear out the appeal of the appellant No.1.
10.1 After hearing Mr. Rawal, the learned Additional Public Prosecutor and after going through the decision referred to above, we find that in that case, the Division Bench of this Court had relied upon an earlier decision of the said Division Bench in Criminal Appeal No. 1131 of 1997, which reads thus:
“8.(vi). Thus, deliberate action or positive action reveals the intention of the appellant which shows that he has no respect to the Constitution of India and he has committed breach of the fundamental duty enshrined under Sub-article (a) or Article 51-A of the Constitution of India or it also reveals intention of the appellant that he has no faith in justice delivery system. ..... ..... Those, who are expecting their criminal appeals against conviction, to be heart on merits, cannot remain absconding . ....
(vii). ..... This appeal is hereby dismissed only on the ground that the appellant-accused is absconding and is not available to the Court, nor is present in the Court. As and when he surrenders or is arrested by the police, he may prefer an application for restoration of the appeal. We do not want to encourage the absconding accused for remaining absconding by hearing his criminal appeal on merits. It also encourages, who are in jail to jump the bail or furlough. Leniency shown towards criminals is a threat to innocent persons.”
10.2 After going through the aforesaid order of the Division Bench, with great respect to Their Lordships, we are unable to agree with the view taken by Their Lordships. Under the Code of Criminal Procedure, once an appeal is admitted, there is no scope of dismissing the appeal on other grounds than merits or on abatement. In the Code of Criminal Procedure, no power has been given to the appellate Court to dismiss the appeal merely on the ground that the appellant had, by violating the conditions of temporary bail, failed to surrender or absconded. Once an appeal has been admitted, it has to be heard on merits if the learned advocate for the appellant is prepared to argue the matter. We are unable to agree with the view taken by Their Lordships in the above decision that unless the convicted person has faith in the Constitution of India, his appeal cannot be heard. Even if a foreigner, who may not have faith in the Constitution of India, takes the benefit of the provisions of appeal and prefers an appeal, such appeal cannot be dismissed on the ground that such appellant has no faith in the Constitution of India.
10.3 The Supreme Court in the case of DILIP S DAHANUKAR vs. KOTAK MAHINDRA CO. LTD & ANR. reported in AIR 2007 SC [Supp] 1345 has held that an appeal is indisputably a statutory right and an offender who has been convicted is entitled to avail the right of appeal which is provided under section 374 of the Code of Criminal Procedure. According to the Supreme Court in the said decision, right of appeal from a judgment of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a fundamental right. According to the said decision, right of appeal, thus, can neither be interfered with or impaired, nor can it be subjected to any condition.
10.4 In the said case, the High Court imposed a condition of depositing some amount as a condition of admitting the appeal. Such view of the High Court was not accepted by the Supreme Court. It appears that the aforesaid view of the Supreme Court was not brought to the notice of the Division Bench of this Court in the aforesaid matter.
10.5 The following observations of the Supreme Court are relevant for the purpose of deciding the aforesaid preliminary objection raised by Mr. Raval:
“12. An appeal is indisputably a statutory right and an offender who has been convicted is entitled to avail the right of appeal which is provided for under Section 374 of the Code. Right of Appeal from a judgment of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a Fundamental Right. Right of Appeal, thus, can neither be interfered with or impaired, nor it can be subjected to any condition.
13. We may take notice of some of the decisions operating in the field in this behalf.
14. In Garikapati Veeraya vs. N. Subbiah Choudhry and Ors. [AIR 1957 SC 540], this Court opined:
"(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."”
(Emphasis supplied by us).
10.6 In view of the aforesaid decision of the Supreme Court, we are unable to accept the view taken by the Division Bench of this Court that an appeal can be dismissed if the appellant is absconding.
10.7 We are conscious of the position of law that a Division Bench, if it wants to disagree with the view earlier taken by another Division Bench, should refer the matter to a larger Bench. However, the law is equally settled that if the earlier Division Bench, in ignorance of a valid, binding precedent passes any order, the later Division Bench, by relying upon the binding precedent of the superior Court, can take a different view and in such a case, there is no necessity of referring the matter to a larger Bench. The position, however, would have been different if the earlier Division Bench took note of the superior Court's decision and interpreted the same in a different way. In such a situation, the later Division Bench should refer the matter to a larger Bench if it is unable to agree with the view of the earlier Division Bench interpreting the judgment of the superior Court.
10.8 In the case before us, the earlier Division Bench not having even taken note of the decision of the Apex Court, there is no question of referring the matter to a larger Bench.
10.9 We, however, make it clear that even if the appeal of the appellant no. 2, in such circumstances, is allowed and he is acquitted of the charges in the long run, he will not be absolved of the consequences for not surrendering before the jail authority after the expiry of the period of temporary bail by violating the conditions of the bail.
11. We, therefore, propose to consider the appeal on merits.
12. It appears from the order passed by the learned Sessions Judge that the said Court, for convicting the appellants, relied upon the oral evidence given by two alleged eyewitnesses, viz. PW.1 Sangudiben, the widow of the deceased and PW.9 Kamlesh, the son of the deceased. We, therefore, propose to consider the evidence adduced by these two witnesses.
13. In her examination-in-chief, PW.1 Sangudiben stated that the incident took place at 6.00 PM to 6.30 PM. She stated that at the time of the incident, she and her two sons were present. According to this witness, when the incident had taken place, the deceased went to answer nature's call in the courtyard [aangan] in front of her house and she and her sons were sitting on a cot in the veranda of the house. According to her, at that time, the three accused persons came and had beaten her husband with bamboo sticks. The accused No.3, Ramjudiben, had beaten with a stick on the chest. She has further stated in her examination-in-chief that at the time of the incident she went inside the house to put a basket-cover over the hens and at that time her son raised an alarm saying that his father was being beaten. She, therefore, went to save her husband and in the process, she was assaulted but Gohta saved her. She has identified the accused persons, who were the elder brother of the victim, his son and wife of the elder brother respectively. She has further stated that information in respect of the incident was given at the Kwant police Station by way of lodging complaint and she put her thumb impression in the complaint. After she gave the complaint, the police personnel came to her house and she had shown everything to the police personnel.
13.1 In her cross-examination, she has stated that the front portion of the house is called courtyard [aangan] and the back side is called backyard [vado]. She has further stated that there is a walkable distance of 30 minutes from her village to Kwant and she went to lodge the complaint in the Kwant Police Station at that night. She has further stated that they reached Kwant Police Station at 9 O'clock in the night and after getting the complaint registered, her thumb impression was put on the complaint. The Head Constable of Kwant Police Station came to the village with them in a vehicle and after preparing the necessary write-ups, the dead body of her husband was taken to Kwant for conducting post mortem.
13.2 She has further stated in her cross-examination that on the day when the incident took place, she and her husband were sitting after taking dinner. On that day, they had taken Rotla and Dal. After taking dinner, her husband went to answer the nature's call and the incident took place after 5 minutes of his leaving for answering the nature's call. She has further stated that she shouted at the time of the incident and hearing her shouts, Mahesh, Kamlo and Ghato came running there.
13.3 She has denied the suggestion that some unknown persons had killed her husband at 12 O'clock in the night and she came to know about such fact at 6 O'clock in the morning on the next day. She has also denied the suggestion that thereafter the dead- body of her husband was brought from the place where her husband was lying and thereafter, she went to Kwant Police Station where a false complaint was lodged against the accused persons.
14. It, however, appears from the complaint lodged by the PW.1, Sangudiben, that the same was lodged on the next day of incident, i.e. 23rd April 2004 and the time of lodging the FIR is 8.15 in the morning, and not on the same night of the incident as stated by the PW.1. It further appears from the evidence given by the Investigating Officer PW.10, Akamabhai Bhathubhai Damor, that on 23rd April 2004 Kandubhai of village Vajepur came before him and stated that a murder had been committed in Keva Faliya in village Vajeur. This witness, therefore, reached the place of occurrence in a government vehicle, and as Sangudiben, wife of the deceased wanted to give a complaint, he wrote down the complaint and the complainant put her thumb impression. He has denied that the complaint was not lodged at 9.00 PM at the night of the incident or that the complainant and Kundalbhai came to the police station for giving the complaint. He has also denied that the police came at the night of the occurrence of the incident. He has further stated that the place of occurrence was situated at a distance of 120 ft. from the complainant's house.
15. From the aforesaid facts, it is very clear that the PW.1, Sangudiben, made deliberate false statements in her evidence that on the same night of the occurrence of the incident she went to the police station, that the complaint was lodged and that the police came in the night whereas it appears from the evidence on record that the complaint was lodged on the next morning, the police came thereafter in the morning and recovered the dead-body. Thus, a false case has been made out that at about 7.00 PM in the evening on 22nd April 2004 the deceased was killed by the accused persons. We are, therefore, unable to place any reliance upon the evidence of PW.1 which has been falsified by the documentary evidence on record.
16. P.W.9, Kamlesh is another alleged eyewitness. He, in his examination-in-chief has almost repeated the same story of his mother.
16.1 In paragraph 8 of the cross-examination, he however has stated that it was true that after taking meal, he was sleeping in the house and thereafter, there the were hue and cry and hearing the shouts, Babo Gohta rushed there, and thereafter he and his brother went there running.
16.2 From the evidence of PW.9 Kamlesh, it is clear that he was not sitting with his mother and brother at the time of occurrence as alleged by his mother. His statement that body of his father was taken to the hospital at night is absolutely a false statement as mentioned earlier. It appears that the police took the body on the next day in the morning.
17. Thus, it is apparent that these two alleged eyewitnesses have given false evidence on oath that the incident had taken place at 7.00 PM in the evening on 22nd April 2004 in front of their house and that on the same night, they lodged the complaint and the police came to their house on the same night.
18. PW.4, Dr. Gyanchand Michyumal Ravtani, is the Doctor who performed the post mortem. In the cross-examination he has admitted that the stomach of the deceased was empty and presence of food was not seen in the stomach and in both the intestines. He has further admitted that if a person eats Rotla and dal, his stomach may be empty within one and a half to two hours. He has further stated that it would take three to six hours for getting the small intestines empty. He has further stated that if a person eats rotla and dal, then it would take four to six hours for getting the stomach and small intestine empty. He has further stated that it is true that he has not mentioned about presence of any food in the small intestine.
19. From the aforesaid evidence, it clearly appears that the story of the PW.1 that the incident occurred immediately after taking the dinner is absolutely false as the stomach and intestine of the deceased was totally empty. It suggests that at least 4 to 6 six hours before the time of his death, the deceased did not take any food.
20. In view of the above materials on record, we are left with no alternative but to conclude that the case made out by the complainant that the accident occurred in her presence and in the presence of her sons at 7.00 PM in the evening of 22nd April 2004 is absolutely a false and fabricated one. It is impossible to rely upon such witnesses to convict the accused persons.
21. It appears from the record that the learned Sessions Judge did not notice the aforesaid vital aspects while holding that the prosecution had proved the actual assault by the appellants-accused No.1 and No.2.
22. We have already indicated that the learned Sessions Judge acquitted Ramjudiben, accused No.3, [wife of accused No.1 and mother of accused No.2] and the State has not preferred any appeal.
23. On consideration of the entire materials on record, we allow the appeal and set aside order of conviction and consequent sentence dated 1st April 2006 passed by the learned Additional Sessions Judge, Fast Track Court No.2 at Chhotaudepur, Dist. Vadodara in Sessions Case No. 54 of 2004. The appellants are acquitted of the charges levelled against them. It appears that the accused No.1 is in jail. He should be set at liberty forthwith, if not required in any other case. The bail bonds of accused No.2 be discharged. Fine, if paid, is ordered to be refunded to the appellants.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]