Dineshbhai Premjibhai Dhandhalya vs The State of Gujarat

A.L. Dave, J.—An incident occurred at village Vavdi of Ghogha taluka of Bhavnagar district on 12.10.2003 at about 16-15 hours in the field of Dineshbhai Premjibhai. As per the prosecution case, Dineshbhai Premjibhai was married to Bharti and, on that day, Bharti''s brother Batuk Narbheram went in company of Chandubhai Bhanubhai Bhatt and Bhaishanker to invite his sister to the parental house. Dinesh Premjibhai and Himmatbhai Premjibhai got annoyed and refused to permit Bharti to go to her parental house. Batuk, therefore, did not press much for taking Bharti to the parental house and left the house. Batuk was walking in company of Premjibhai whereas Bhaishanker and Chandubhai were walking in company of each other ahead of them. They had hardly walked a distance of about 12 steps that Dinesh Premji and his brother Himmat Premji came from behind. They were both armed with deadly weapons like axe and dharia, respectively, and committed assault on Batuk. Batuk suffered multiple injuries and was taken first to Sir. T. Hospital and then to Dr. Dijesh Shah where he expired. An FIR was registered by Chandubhai Bhanubhai Bhatt PW-1 with Ghogha Police station, on the basis of which the offence was registered and investigated. Upon collecting the evidence, charge-sheet was filed in the Court of JMFC, Ghogha, who in turn, committed the case to the Court of Sessions, Bhavnagar and Sessions Case No. 18 of 2004 came to be registered.

The Sessions Court framed charges at Exh.7 against Dineshbhai Premjibhai and Himmatbhai Premjibhai for the offence punishable under Sections 302 and 34 of IPC and Section 135 of the Bombay Police Act. The accused persons pleaded not guilty to the charge and claimed to be tried.

2.1 The trial Court after considering the evidence came to the conclusion that the prosecution was successful in proving the charges against accused No. 1 - Dineshbhai Premjibhai for the offence of murder and recorded his conviction and sentenced him to undergo imprisonment for life with a fine of Rs. 5,000/-, in default, to undergo further imprisonment for a period of six months. The trial Court also concluded that the charges against accused No. 2 - Himmatbhai Premjibhai were not properly proved and recorded his acquittal.

Against conviction, accused No. 1 has preferred Criminal Appeal No. 2165 of 2004, and against acquittal of accused No. 2, original complainant - first informant has lodged Criminal Revision Application No. 882 of 2004. The State has not preferred any appeal against the acquittal.

Since both the matters arise out of the same judgment, they are heard together and are disposed of by this common judgment. For the sake of convenience, the appellant in the Criminal Appeal and the respondent in the Revision Application are referred to by their original accused numbers.

Learned advocate Ms Subhadra Patel for the appellant has raised the following contentions:

(i) FIR was lodged late by nine hours;

(ii) Inquest was drawn before the FIR came to be registered;

(iii) As per medical evidence, possibility of three weapons having been used cannot be ruled out whereas the eye-witness PW-1 speaks only about two types of weapons.

(iv) The panch witnesses to recoveries have not supported the prosecution case;

(v) Eye-witness Bhaishanker is also not examined by the prosecution. He is an independent witness and could have thrown some light on the incident. That witness has been deliberately kept away.

5.1 Ms Patel, therefore, submitted that the trial Court has failed to appreciate these aspects and has convicted A-1 erroneously. The appeal may, therefore, be allowed.

Learned advocate Mr. Limbachiya appearing for the revisionist submitted that A-2 has been wrongly acquitted. There is direct evidence of PW-1 implicating A-2. He submitted that history given to Dr. Dijesh Shah includes name of A-2. A-2''s plea of alibi is wrongly accepted as he has not examined any independent witness. That the plea of alibi even otherwise would not be available as distance between Bhavnagar and Vavdi is too short and one can reach from one place to another in about an hour and a half. The trial Court has, therefore, erred in rejecting the evidence of PW-1 vis-a-vis A-2 and, therefore, the revision may be allowed.

Learned APP Mr. Mengdey submitted that the trial Court has appreciated the evidence in its perspective so far as A-1 is concerned. Inquest was drawn on receiving an occurrence report and the FIR came to be lodged late for which the investigation or the prosecution cannot be faulted with and it will not have any adverse effect to the defence nor would it raise any suspicion about the investigation. Mr. Mengdey submitted that the medical evidence makes it clear that the nature of injuries were such that they could be caused either by axe or by dharia and certain injuries could be caused with hind portion of either of the weapon. He also submitted that the medical evidence during cross-examination cannot be read to mean that because the injuries were attributable to weapons of three different types, there were three weapons. All three types of injuries were possible with either of the weapon. He submitted that inquest was drawn after receiving occurrence report and there is a reference to it in the inquest Panchanama. No prejudice is caused to the interest of the accused and, therefore, the appeal may be dismissed.

7.1 So far Criminal revision is concerned, Mr. Mengdey has feebly tried to support the revisionist.

We have examined the record and proceedings in the context of rival submissions.

The prosecution has examined the first informant and the eye-witness Chandubhai Bhanubhai Bhatt at Exh.22. He says that he left with Batukbhai on his motor-cycle for Vavdi. They met Bhaishanker on the way, who invited them for a cup of tea, which they had. It transpired over there that Batukbhai was going to invite his sister to her parental house, which her in-laws were refusing. Bhaishanker responded that though they were neighbours they were not able to talk freely with Bhavnaben. He, however, volunteered to join them and, therefore, the trio went to the field of the accused. After initial formal talks, when Batukbhai proposed to take Bhavnaben with him, Dineshbhai and Premjibhai got annoyed and refused to let her go. Therefore, they got up. The witness says that he and Bhaishankerbhai were walking together whereas Batukbhai and Premjibhai were walking together behind them. They had hardly walked that A-1 and A-2 came from behind armed with axe and dharia, respectively, and assaulted Batukbhai. Upon receiving the blows, Batukbhai fell down. The witness says that he intervened and the assailants ran away. Batukbhai was hurt in the head and was bleeding therefrom and was not able to speak. He, therefore, talked to Bhaishanker that this was not proper and he should arrange for a vehicle so that he could take Batukbhai to hospital. They put Batukbhai in a bullock-cart and went to Sir. T. Hospital, Bhavnagar. On the way, they telephoned Babubhai and Bhaskerbhai, who came to Sir. T. Hospital. Bhaskerbhai expressed an opinion that because the deceased had injury on head, he may be taken to a private Doctor. Therefore, they went to Dr. Dijesh Shah''s hospital. The witness has identified the weapons of the accused in the Court. He has been cross-examined at length. What emerges from cross-examination is that he was not so well-conversant with the accused side and had met Himmatbhai 3 to 4 years prior to the incident. It emerges from the cross-examination that during the entire episode right from the moment they had reached the place and till they left the place, they did not notice presence of A-2. It also emerges from the cross-examination that the incident occurred after they walked hardly 10 to 12 paces. The medical evidence is at Exh.48 of Dr. Dijeshbhai Kiritbhai Shah. He says that the deceased was brought to his hospital and was treated by him. He describes the injury. He says that he had recorded history as given to him by Bhatt Chandulal PW-1 and that history involved both A-1 and A-2 with axe and dharia. However, the patient was not conscious and was in a critical state of health and succumbed to the injuries later.

Upon conjoint reading of these pieces of evidence, it is clear that the deceased died a homicidal death and the fatal injury was the injury on his head. It is also clear that the said injury is attributable to the hind portion of the axe, which again is attributable to be at the hands of A-2. There is nothing in the evidence which would either weaken or render the evidence doubtful and, therefore, we are of the view that the trial Court was justified in convicting A-1.

The contention that Inquest Panchnama was drawn before lodging of FIR will not be of any help to the appellant. Firstly, because it does not cause any prejudice to him and, secondly, because the Panchnama, if read, makes a reference to the occurrence report. If the first informant lodges the FIR late, no one can be faulted with. Whatever consequences it certainly would follow. It is nobody''s case that the FIR is lodged late after deliberations and, therefore, no prejudice can be said to have been caused to the appellant. Non-examination of Bhaishankerbhai is also of no help to the appellant. It is not a requirement that all available witnesses must be examined by the prosecution. Burdening of Court record can be avoided where the prosecution feels that it has been able to bring home its case by whatever evidence is led. No adverse inference can be drawn against the prosecution on account of non-examination of a witness. Repetition of evidence has to be avoided.

For the foregoing reasons, we are of the view that conviction of A-1 is rightly recorded and no interference is called for in the judgment and order dated 20.10.2004 rendered the Sessions Court, Bhavnagar in Sessions Case No. 18 of 2004.

So far as the revision is concerned, as discussed earlier, presence of A-2 during the entire episode is not shown, leave aside, established in the proximity of time and place of incident. It is difficult to believe that a man who is not seen in the house during the entire episode would suddenly emerge from somewhere within the time by which a distance of 10 to 12 steps being covered by the victim and his associates. Learned advocate for the revisionist has not been able to point out any compelling material strong enough to implicate A-2. It is true that history was given to Dr. Dijesh Shah, which implicated A-2. It is equally true that the information given by Dr. Dijesh Shah to the police, which is recorded by way of station diary entry, also refers to A-2. But PW-1, who is claimed to have given history to Doctor, does not say that he gave name of A-1 and A-2 to the Doctor as the assailants. No legal perversity or jurisdictional error is indicated to us by the revisionist which would persuade us to accept the revision by setting aside the order of acquittal of A-2. The revision application, therefore also, must fail.

The upshot of the foregoing discussion is that both Criminal Appeal No. 2165 of 2004 and Criminal Revision Application No. 882 of 2004 must fail and stand dismissed.