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Judgment
K.J. Thaker, J.—The appellant of Criminal Appeal No. 1163 of 2007 had preferred Misc. Criminal Application being Misc. Criminal Application No. 10484 of 2013 with a prayer that his appeal was not being heard and it should be heard immediately, and therefore, yesterday, this Bench has fixed all these appeals for final hearing. These appeals are fixed at the behest of one of the appellant though learned Advocate Mr. D.J. Chauhan was absent. A request was made to the Legal Services Authority to appoint somebody else and learned Advocate Mr. Pratik M. Barot appeared for the appellant of Criminal Appeal No. 835 of 2007 at the request of this Court, and that is how, all these appeals are taken up for final hearing today. The present appellants-original accused have preferred these appeals under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 5-4-2007 passed by the learned Addl. Sessions Judge, Fast Track Court No. 1, Ahmedabad in Sessions Case Nos. 155 and 156 of 2006, whereby, the learned trial Judge has convicted all the appellants-accused under Sec. 302 read with Sec. 149 of I.P.C. and sentenced to undergo R.I. for life and to pay a fine of Rs. 1,000/- each, in default, to undergo further S.I. for 15 days. For the offence under Sec. 143 of I.P.C., appellants-accused are imposed only fine of Rs. 500/- each, in default to undergo S.I. for ten days and no separate sentence is awarded for this offence. For the offence under Secs. 147 and 148 of I.P.C., appellants-accused are imposed only fine of Rs. 500/- each, in default to undergo S.I. for ten days and no separate sentence is awarded for this offence. For the offence under Sec. 323 of I.P.C for the injury caused to witness Jashiben appellants-accused are imposed only fine of Rs. 500/- each, in default to undergo S.I. for ten days and no separate sentence is awarded for this offence. For the offence under Sec. 506(1) of I.P.C., appellants-accused are imposed only fine of Rs. 500/- each, in default to undergo S.I. for ten days and no separate sentence is awarded for this offence.
1.1. Criminal Appeal No. 803 of 2007 has been preferred by the appellant-ori. Accused No. 2, Criminal Appeal No. 818 of 2007 has been preferred by appellants-ori. Accused Nos. 3 and 4, Criminal Appeal No. 835 of 2007 has been preferred by appellant-ori. Accused No. 1 of Sessions Case No. 155 of 2006, and Criminal Appeal No. 1163 of 2007 has been preferred by the appellant-ori. Accused of Sessions Case No. 156 of 2006. It is to be noted that when the charge-sheet was filed in Sessions Case No. 155 of 2006, at that time accused Lalji @ Laliyo was absconding, and subsequently, he was arrested, and therefore, supplementary charge-sheet was filed against him which was given Sessions Case No. 156 of 2006. Therefore, both the sessions cases were consolidated and tried together.
1.2. The brief facts of the prosecution case as per the complainant is that on 21-11-2004, at about 1-25 p.m., Near Jahuma in Chali, Ramapir no Tekro, Nava Vadaj, Ahmedabad, all the accused have formed unlawful assembly and armed with deadly weapons, i.e. Babubhai armed with knife (Chharo), Naresh Somabhai armed with knife, Rakesh Somabhai armed with pipe, Lalji armed with sword and assaulted the deceased Manubhai, Accused Naresh had given knife blow on the hand and head, accused Lalji had given sword blow on the head, accused Babubhai had given knife (Chharo) blow on the head and accused Rakesh had given pipe blow and committed the murder of deceased Manubhai. They have also caused injury to witness Jashiben, wife of deceased Manubhai, when she came to save her husband, deceased Manubhai. Therefore, complaint was came to be filed.
1.3. The accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was laid against the present appellants-accused. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case Nos. 155 and 156 of 2006.
1.4. Thereafter, the Sessions Court framed the charge below Exh. 4 against the accused for commission of the offence under Secs. 302, 143, 147, 148, 149, 188, 323, 506(1) read with Sec. 34 of I.P.C. and under Sec. 135(1) of the Bombay Police Act. The accused have pleaded not guilty and claimed to be tried.
1.5. To prove the case against the accused, the prosecution has examined the following witnesses:
Ghanshyambhai Khemchand Bhojwala. Exh. 11
Girishbhai Amrabhai Rathod Exh. 12
Vrujlal Muljibhai Vaghela Exh. 13
Raman Somabhai Exh. 14
Kamlesh Jamnadas Exh. 15
Mukesh Shamjibhai Exh. 19
Ashokbhai Savkeram Exh. 20
Bharatkumar Rasiklal Exh. 21
Dr. Saumil Merchant Exh. 22
Shankarrao Pundlik Rao Exh. 26
Laxmanbhai Shankarbhai Exh. 27
Rajeshbhai Danabhai Exh. 28
Mahendra Babubhai Thakor Exh. 29
Rajendra Joitaram Exh. 30
Jashiben Manubhai Exh. 31
Dr. Chandrakant Bachubhai Patel Exh. 32
Champaben Rajabhai Exh. 35
Govindlal Babuji Exh. 36
Amitbhai Ganpatbhai Exh. 37
Girishbhai Khimjibhai Exh. 38
Vindobhai Bhikhabhai Exh. 39
Vikramsinh Arjunsinh Exh. 40
Vashrambhai Jethabhai Parmar Exh. 43
Chandrakant C. Raval, P.I. Exh. 47
Maheshbhai B. Nayak Exh. 66
1.6. The prosecution also relied upon the following documentary evidences so as to bring home the charges against the accused:
Yadi for post-mortem Exh. 24
Death Form Exh. 25
Post-mortem note Exh. 26
Medical case papers of Jashiben Exh. 17
Complaint Exh. 44
Report Exh. 45
Vardhi Exh. 55
Inquest panchnama Exh. 46
Panchnama of scene of offence Exh. 48
Panchnama of clothes of deceased Exh. 53
Arrest panchnama of Naresh Exh. 49
Arrest panchnama of Babu and Somabhai Exh. 50
Panchnama of blood sample of Babu @ Bajania Exh. 54
Discovery panchnama Exh. 51
Discovery panchnama Exh. 52
Arrest panchnama of Rakesh Somabhai Exh. 67
Discovery panchnama Exh. 68
Arrest panchnama of Lalji Exh. 56
Discovery panchnama Exh. 57
Injury certificate Exh. 33
Injury certificate of Jashiben Exh. 18
Yadi for map Exh. 64
Map of scene of offence Exh. 65
Yadi and report of F.S.L. Exh. 63
Notification Exh. 74
F.S.L. report and papers Exh. 69
Despatch nondh Exh. 58
1.7 Thereafter, after examining the witnesses, further statement of the accused under Sec. 313 of Cr.P.C. was recorded in which the accused have denied the case of the prosecution.
After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 14-8-2006 has convicted the present appellants original accused as stated above.
2.1. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the present appellants have preferred the present appeal.
2.2. We have heard learned Advocate Mr. J.M. Buddhbhatti for the appellant in Criminal Appeal No. 803 of 2007, Mr. R.R. Dholakia for Mr. Mitesh Amin learned Advocate for the appellants in Criminal Appeal No. 818 of 2007, Mr. Pratik Barot learned Advocate for the appellant in Criminal Appeal No. 835 of 2007 and Ms. Rekha Kapadia learned Advocate for the appellant in Criminal Appeal No. 1163 of 2007 and Ms. C.M. Shah learned A.P.P. for the respondent-State in all the appeals.
The learned Advocate Mr. J.M. Buddhbhatti for the present appellant has mainly relied on the medical evidence of P.W. 5-Dr. Kamlesh Jamnadas Exh. 15 and has tried to convince this Court that the P.W. 15 Jashiben Manubhai Exh. 31 has not received any fatal injury. He has further relied on the ocular version of P.W. 9-Dr. Saumil Marchant, who had performed the post-mortem, examined at Exh. 22, and contended that in examination-in-chief, he has opined that the injuries which are found on the dead-body rather the deceased, could not have been inflicted by knife. This submission is adopted by learned Advocate Mr. R.R. Dholakia also that the accused to whom he represents, had also not inflicted any blow which cause the death, and therefore, even if their presence is considered, they cannot be held guilty under Sec. 302 of I.P.C. Learned Advocate Ms. Kapadia has also relied on the ocular version of doctor so as to contend that there is variance in the ocular version of the doctor and the ocular version of the injured eye-witness. The injured witness has stated that the accused were armed with the sharp-edged sword, whereas, the doctor states that by the hind portion i.e. non-edged part of the sword, if the injury is caused, then such injury is possible. She further submitted that there is variance in the ocular version of P.W. 15 complainant Jashiben Exh. 31 and P.W. 25-Maheshbhai B. Nayak, I.O. Exh. 66. The injured witness P.W. 15 has stated that she gave complaint in the hospital, whereas, P.W. 25-Maheshbhai B. Nayak, I.O. Exh. 66, in his cross-examination, admitted that the complaint was given in the Police Station.
In light of this and as submitted by the learned Advocate Mr. Pratik Barot for the appellant that medical evidence compared to the ocular version is directly opposite and not in consonance with the medical evidence. He has further submitted that motive is double-edged sword and the accused to whom he is representing is falsely implicated in the offence. He has further contended that one of the accused is 18 years of age and he had only hold the deceased and overt-act was committed by him. Learned Advocate Mr. Dholakia appearing for Mr. Mitesh Amin has contended that the evidence is based on the solitary eye-witness and it has been submitted that the Apex Court has held that if the conviction has to be passed, it must be of a sterling quality. He has further taken us through the F.I.R., wherein, he has contended that the graphic role is attributed to each of the accused, however, the doctor when examined, has mentioned that certain injuries could not be caused by the weapons which are found and there is improvement in the ocular version of P.W. 15-Jashiben Exh. 31 and when there is contradictions between the two, the benefit of doubt should be given to the accused. He has relied on the decision of the Apex Court in the case of Babu v. State of Uttar Pradesh, reported in 2010 (15) SCC 387. He has further submitted that benefit of doubt ought to be given to the accused as no injuries corresponding to the weapon which he was attributed to have used. He has lastly submitted that one of the accused is attributed to have iron rod and none of the injuries are caused by the iron rod as per the say of the doctor, and therefore, reliance is placed on the aforesaid decision and he ought to be given benefit of doubt. This judgment is even pressed by the learned Advocate Mr. Buddhbhatti and Ms. Kapadia to substantiate their submissions that no injuries corresponded to the weapon which was used by then.
On the other hand, learned A.P.P. Ms. Shah has strongly opposed the contentions raised by the learned Advocate for the present appellants and has submitted that the trial Court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed. Learned A.P.P. has once again taken us through the F.I.R. and ocular version of the eye-witness. She has relied on the decisions of the Apex Court in the cases of (i) State of U.P. Vs. Naresh and Others, (ii) Kartik Malhar Vs. State of Bihar, (iii) Vahaji Ravaji Thakore v. State of Gujarat, reported in 2004 (1) GLR 777 , (iv) Darbara Singh Vs. State of Punjab, , to contend that the evidence of sole eye-witness can be the basis of conviction. She has further contended that even if there is any inconsistencies between the medical and ocular version, the ocular version will prevail. Looking to the F.S.L report also, the judgment under challenge may not be upturn by this Court and benefit of doubt cannot be given to any of the accused as the names are given by the injured witness. The injured witness has also been examined by the doctor, and therefore, her presence at the place of offence is proved. The discovery panchnama are well discussed by the learned trial Judge in Para. 7 and the later reasonings.
P.W. 15-Jashiben Exh. 31 in her ocular version has fully supported her F.I.R. which she has lodged. Even if there is any discrepancy in the place of incident that would not weigh so as to give benefit of doubt. In the Vardhi, though the names of the accused are not mentioned but the place of offence and the weapons used are mentioned. The perusal of F.I.R. with the ocular version will not persuade us to take a different view then the one taken by the learned trial Judge. The discovery panchnama as per the provisions of Sec. 27 of the Evidence Act is duly proved. It would be appropriate to rely on the decision of the Privy Council in the case of AIR 1947 67 (Privy Council) , and the recent decision of the Apex Court in the case of Rajendra Singh Vs. State of Uttaranchal, , as far as Sec. 27 of the Evidence Act is concerned. In this case, the injured witness herself was present at the place of occurrence is beyond doubt and in catena of decisions, it has been held that an injured witness-will not spare the real culprit and/or falsely implicate some one else. Even before the trial Court, even from cross-examination of the witness, nothing is proved, so as to show that the accused have been falsely implicated. The presence of accused Babu @ Babu Bajaniya is well established. He has sustained minor injuries, and therefore, presence of all the accused is duly proved. So far as the second point is concerned, it would be relevant to refer to the medical evidence read with the ocular version of the P.W. 15-Jashiben Manubhai Exh. 31. In the medical evidence, there were 11 injuries as seen from the post-mortem note, which reads as under:
Contuse lacerated wound present on the right parieto-occipital region which is going anteroposteriorly 12 c.m. long x 1 c.m. bone deep.
Contuse lacerated wound present 2 c.m. lateral to midline on the right parieto-occipital region going anteroposteriorly size 9 c.m. x 1 c.m. bone deep.
Contuse lacerated wound present on the mid of frontal region going obliquely size 3.5 c.m. x 1 c.m. bone deep.
Contuse lacerated wound present on just right to occipital protuberance size 4.5 c.m. x 1 c.m. bone deep going obliquely.
Contuse lacerated wound present on the 2 c.m. above and left side to occipital protuberance going obliquely perieto-occipital region. Size 6.5 c.m. x 1 c.m. bone deep.
Contuse lacerated wound present on the back of the right forearm with middle pan going obliquely 3 c.m. x 0.5 c.m. muscle deep.
Contuse lacerated wound present on the base of the index finger all the palmer aspect size 2 c.m. x 0.5 c.m. bone deep.
Multiple incise wound present on the wrist joint on the front side size total 2.5 c.m. x 2 c.m. area in which (2 c.m. x 0.25 c.m. each size) going parallel to each other horizontally.
Incise wound present on the back of the mid of (right) the shoulder region at tip side size 4.5 c.m. x 1 c.m. going obliquely.
Abrasion present on the back of left shoulder size 75 c.m. x 2 c.m., going obliquely.
Abrasion present on the back of the left ear going obliquely size 4 c.m. x 0.5 c.m.
Where there is direct ocular version will assume importance even if motive is not proved. Here both are proved by substantial evidence. In this case, to show that all the accused were present at the place of offence is proved by cogent evidence. There was earlier altercation and the deceased had filed the complaint against some of the accused, which the accused were pressurizing to withdraw. Hence, when there is direct evidence just because the doctor has opined that the use of certain part of weapon could not have caused the injury becomes insignificance. Section 149 of I.P.C reads as follows:
Evey member of unlawful assembly guilty of offence committed in prosecution of common object:- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
The accused cannot claim benefit on the trivial discrepancy which might have crept in at the time of trial. The ratio laid down by this Court in the case of Vahaji Ravaji Thakore v. State of Gujarat, reported in 2004 (1) GLR 777 , will also apply in full force to the facts of this case. In this case, the prosecution case cannot be doubted. All the factors and the incident having occurred cannot be said to be such which would permit us to take a different view than that taken by the learned trial Judge. The learned trial Judge has given elaborate reasonings on the facts of the case and it would not be appropriate for us to take a different view than that taken by the learned trial Judge, more particularly, his finding on facts in Para. 39 till end, requires no interference by this Court. The latest decision of the Apex Court in the case of Kuria and Another Vs. State of Rajasthan, will apply in full force as the facts in that case are similar to the facts of the present case and the P.W. 15 has seen the assault on the deceased by all the five accused. The description was given properly and all found to be there who had constituted unlawful assembly as has been time and again decided that common object and common intention have to be viewed in light of the facts of each case. In this case, the learned trial Judge has rightly come to the conclusion that the common object of unlawful assembly was there and they are likely to commit the said offence, and therefore, member of the unlawful assembly would be guilty of the said offence. Even if the submissions made by learned Advocates Mr. Dholakia and Buddhbhatti are accepted, the weapon found from them itself is a clinching evidence which will persuade us to take the same view which has been taken by the learned trial Judge. Our view is further fortified by the latest decision of the Apex Court in the case of Avtar Singh Vs. State of Haryana, . Here also, all the accused had assembled, one of them had seen that the deceased fell down on the ground, and thereafter, other assaulted him. The injuries which deceased has sustained, even in the opinion of doctor, were sufficient to cause death, and thus, we cannot persuade ourselves to take a different view than that taken by the learned trial Judge. As far as homicidal death is concerned and that the death was caused by the common object of all the five accused.
We are in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court, and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case, as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence.
In the result, all these appeals are dismissed. The impugned judgment and order of conviction and sentence dated 5-4-2007 passed by the learned Addl. Sessions Judge, Fast Track Court No. 1, Ahmedabad in Sessions Case Nos. 155 and 156 of 2006, is confirmed. R. & P. to be sent back to the trial Court, forthwith. Bail-bonds of Babubhai @ Babu Bajaniya Kalubhai Motibhai Parmar-Original accused No. 2 and Rakesh Somabhai Parmar-Original accused No. 4 stand cancelled. However, life would not be till last breath and their case may be considered by the appropriate authority after 14 years. The Appellant-Original accused No. 2 of Criminal Appeal No. 803 of 2007 Babubhai @ Babu Bajaniya Kalubhai Motibhai Parmar and Appellant No. 2-Original accused No. 4 of Criminal Appeal No. 818 of 2007 Rakesh Somabhai Parmar are directed to surrender before the Jail Authority within a period of eight weeks from the date of this order, failing which, the concerned Sessions Court shall issue non-bailable warrant to effect the arrest of the appellants-Original accused No. 2 and 4.