Bharatsinh Nathusinh Chauhan vs State of Gujarat and Another

A.L. Dave, J.—An incident occurred around 11 a.m. on 19.1.2001 in Bapunagar area of Ahmedabad, where one Bharatsinh Nathusinh Chauhan, Chetankumar Babubhai Panchal, Bharatsinh Chandansinh Chauhan and Deepak Yadav committed assault on one Maksudkhan Kasimkham Pathan and his companion Sadik Kalubhai Sheikh with deadly weapons like pistol, sword, hockey etc. In that incident, Maksudkhan Kasimkhan Pathan suffered multiple bullet injuries and succumbed to the same, whereas Sadik Kalubhai Sheikh suffered several injuries of sword and other weapons. In respect of the incident, an FIR was lodged by Mohammad Yasin Abu Bakr Memon with Bapunagar police station, on basis of which, the offence was registered and investigation started. Maksudkhan Kasimkhan Pathan was taken to hospital, where he was found dead. Sadik Kalubhai Sheikh was also taken to hospital and treated.

1.1 Out of the assailants, Bharatsinh Nathusinh Chauhan, Chetankumar Babubhai Panchal and Bharatsinh Chandansinh Chauhan only could be arrested, and the other two absconded. The police, therefore, filed chargesheet only against them in the Court of learned Metropolitan Magistrate, who in turn committed the case to the Court of Sessions and Sessions Case No. 81 of 2001 came to be registered.

Charge was framed at Exh.8 against the accused persons. They pleaded not guilty to the charge and claimed to be tried. At a later point of time, after the evidence and the arguments of the prosecution was over, and the arguments of the defence had commenced, that an application was preferred by the prosecution for altering the charge. That was objected to by the defence, and the trial Court, after considering the objections, passed an order below Exh.134, granting the alteration and altered the charge, accordingly. Opportunity was provided to both the sides, to adduce the evidence or to recall the witness, for further examination or cross-examination. The prosecution did not opt for the opportunity. The defence challenged the order, altering the charge before this Court by preferring the Criminal Revision Application, which came to be rejected ultimately, and thereafter, the defence passed a purshis before the trial Court, Exh.150, whereby the defence also opted not to avail of the opportunity of recalling the witness or adducing any further evidence.

2.1 The trial Court, after considering the evidence led by the prosecution and considering the arguments, came to the conclusion that the prosecution was not successful in proving charges against Chetankumar Babubhai Panchal and Bharatsinh Chandansinh Chauhan, original accused Nos. 2 and 3 respectively, and recorded their acquittal. The trial Court, however, found that the prosecution succeeded in proving charges against original accused No. 1 Bharatsinh Nathusinh Chauhan, the present appellant and recorded his conviction u/s 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 10000/-, in default directed the same to be recovered in accordance with law. The trial Court also convicted the appellant - original accused No. 1 u/s 25(1B)(a) of the Arms Act and sentenced him to undergo S.I for one year and to pay a fine of Rs. 1000/-, in default S.I for three months. The appellant also came to be convicted for offence punishable u/s 27 of the Arms Act and was sentenced to undergo R.I for seven years and to pay a fine of Rs. 5000/-, in default S.I for six months. All the sentences were ordered to be run concurrently. Benefit of set-off was also ordered to be given to the convict - appellant.

It would be appropriate to record that against acquittal of original accused Nos. 2 and 3, the State has chosen not to prefer any appeal.

We have heard learned senior advocate Mr. Maganbhai Barot appearing with learned advocate Mr. Hriday Buch and learned APP Mr. Mengdey. We are taken through the record and proceedings. The paper-book runs into 1645 pages with 144 exhibits, which includes the judgment.

Learned senior advocate Mr. Barot submitted that in the instant case, no independent witness has supported the prosecution case. Neither the first informant nor the victim nor the panch witness have supported the prosecution. The only substantive evidence, supporting the prosecution, is in form of depositions of the witnesses who are government servants or police personnels. Mr. Barot submitted that the trial Court has erred in placing reliance on evidence of the first informant and has not supported the prosecution case. The trial Court has also accepted the evidence in form of dying declaration given by victim Sadik Kalubhai Sheikh, although the said witness has survived and deposed before the Court, and has not supported the prosecution case, about recording of dying declaration. Mr. Barot submitted that the incident has occurred in broad daylight, in a thickly populated area. Statements of several persons have been recorded by the Investigating Officer, as admitted by him, and no such witness supports the case of the prosecution, and therefore, they are not even cited as witnesses. Mr. Barot submitted that if there were multiple fire from a pistol, people certainly would have heard the sound, and their attention would have been attracted. And absence of any such witness, supporting the prosecution case, would raise a doubt, about the occurrence. This would be more so, according to Mr. Barot, when the evidence, as to scene of offence, is shaky. There is no direct evidence and there is defence witness, who speaks about the place of incident being different than what is claimed to be the place of incident by the prosecution. The evidence about arrest, seizure of weapons etc., is also shaky.

5.1 Mr. Barot submitted that a dying declaration recorded u/s 32 of the Evidence Act by an Executive Magistrate, would assume the shape of only a previous statement made by the victim, if the victim survives the injury and the statement would not be admissible in evidence under the cover of Section 32 of the Evidence Act. In the instant case, the Court has relied on such statement and has recorded the conviction. Mr. Barot, therefore, submitted that this appeal may be allowed.

Learned APP has opposed this appeal. According to him, the trial Court has appropriately appreciated the evidence and recorded conviction. He, however, does not dispute the fact that no independent witness, supports the prosecution story and have turned hostile to the prosecution. Even the injured witness has not supported the prosecution case, against the accused.

6.1 Learned APP has drawn our attention to the fact that the appellant is absconding since 6.2.2008. He then pressed into service, decision of this Court in case of Mahendra Bhogilal Tadvi Vs. State of Gujarat, , and submitted that unless the convict is available before the Court or in custody, which is a sine qua non, the appeal may not be decided on merits and may be dismissed only on ground of non-availability of the convict - appellant.

In rejoinder, learned Sr. advocate Mr. Barot appearing with Mr. Buch tried to convince us that in a Criminal Appeal presence of a convict is not necessary, and the appeal may be decided in his absence, on merits, and the law will take its own course, if ultimately the appeal is dismissed, and the law may take its own course for abscondence, even if the appeal is allowed on merits.

We have considered rival side submissions. We do not propose to enter into merits of the appeal, in view of the decision in case of Mahendra Bhogilal Tadvi v. State of Gujarat relied upon by learned APP Mr. Mengdey, wherein a coordinated Bench of this Court took a view that:

sine qua non for hearing of Criminal Appeal or pre-condition of hearing of the appeal, against order of conviction, on merits, for final disposal, is that the accused is not absconding and the accused must be available, either before the Court or before the jail.

We are bound by this judgment, and therefore, we dismiss this appeal, on ground of non-availability of sole appellant. Even today, we have verified through learned APP, and we found that the convict - appellant is still absconding and has not even as on today, surrendered himself to custody.

The appeal, therefore, stands dismissed, without expressing any opinion, on merits. It would be open for the appellant - convict to apply for restoration of appeal, subject to his surrendering to custody or him being restored to custody by police, after arrest.