Jayendrasinh Narubha Zala vs State of Gujarat and Others

K.S. Jhaveri, J.—The present appeal is filed against the judgment and order dated 12.3.2004 passed by learned Additional Sessions Judge, Fast Track Court No. 3, Surendranagar, in Sessions Case No. 13 of 1998. Learned trial Judge has convicted the accused No. 1 for the offence under Section 302 of the Indian Penal Code (for short, "IPC") and sentenced him to suffer imprisonment for life and fine of Rs. 5,000/-, in default of payment of fine, simple imprisonment for one year was imposed. Learned trial Judge has also convicted accused Nos. 2 to 4 for the offence under Section 302 read with Section 34 of IPC and sentenced them to suffer life imprisonment and fine of Rs. 5000/- each was also imposed and, in default of payment of fine, simple imprisonment for one year was awarded. All the accused have also been convicted for the offence punishable under Section 323 read with Section 34 of IPC and sentenced to undergo rigorous imprisonment for six months and fine of Rs. 100/- each was imposed and, in default of payment of fine, to undergo simple imprisonment for ten days.

This appeal was earlier heard by Division Bench of this Court and by judgment dated 7.9.2009, conviction and sentence imposed upon accused Nos. 2 to 4 was set aside while confirming the conviction of accused No. 1. Against such acquittal of accused Nos. 2 to 4, the State had preferred an appeal before the Hon''ble Supreme Court. By order dated 3.3.2014, Apex Court allowed such appeal being Criminal Appeal No. 551 of 2014 and remanded the matter back to this Court for adjudication of the appeal on merits after proper examination of entire evidence so far as accused Nos. 2 to 4 are concerned. Therefore, this appeal is taken up for hearing afresh.

The facts in brief giving rise to the filing of present appeal are as under:

"3.1 It is the case of the prosecution that on 19.10.1997 at about 1.30 p.m. when the deceased Mahmad Allarakha along with his family members had gone to fun fair, the deceased went to the shop of accused No. 1 and asked for bidi. At that time, accused No. 1 charged 50 ps. more, therefore, deceased had a quarrel with accused No. 1. At that time, accused No. 1 started abusing him, therefore, Yasin Allarakha intervened. Hence, accused No. 1 had given knife blows on the abdomen of deceased Mahmad Allarakha and Yasin Allarakha. It is also alleged that accused Nos. 2 to 4 had also given blow to both of them with stick and caused death. Therefore, the accused persons were charged with offence punishable under Section 302 read with Section 34 and 114 of IPC. Since the deceased persons were abused by the accused in public, the accused were also charged with offence punishable under Section 504 of IPC. Since some of the eye witnesses were also beaten by accused persons, the accused were also charged with offence punishable under Section 323 of IPC. Accordingly, complaint was registered against the accused persons.

3.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried.

3.3 During the trial, the prosecution had examined following witnesses:--

3.4 The prosecution had also produced and relied upon following documentary evidence:--

3.5 At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court."

Mr. Y.S. Lakhani, learned Senior Advocate appearing for the appellants-original accused Nos. 2 to 4 has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants-accused Nos. 2 to 4. He has taken us through the medical evidence and postmortem report of the deceased persons. He submitted from the injuries mentioned in the postmortem report, it is clear that the deceased persons died due to knife injuries and it cannot be said that they have died due to any stick injury, therefore, learned trial Judge has committed an error in convicting accused Nos. 2 to 4 as they were not armed with knife. He has also taken us through the evidence of PW-1, Sakinaben Allarakha, PW-8 Havaben Daubhai and PW-10, Halimaben Mahmadbhai, who are the eye-witnesses to the incident and submitted that from the evidence of these witnesses, it is clear that they were not knowing the accused persons and names of the accused persons were also not known to them prior to the incident. He also submitted that these witnesses had not given the names of the accused before the police and only for the first time names of the accused were identified before the Court. He also stated that the deceased had also stated that the accused were of a particular community and their names were not given. He also submitted that it has come on record that accused No. 3 was on duty and from there he was arrested, however, his presence was also mentioned in the presence register of his department, therefore, he submitted that these accused are roped in and they have not committed any offence. He also submitted that no test identification parade was held and the accused were identified in the Court. In view of above, he submitted that accused Nos. 2 to 4 are wrongly convicted by the trial Court. He, therefore, prays to allow this appeal by setting aside the conviction of accused Nos. 2 to 4.

On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused Nos. 2 to 4 is just and proper and she has supported the conviction recorded by impugned judgment. Learned APP has contended that taking into consideration the medical evidence, evidence of the complainant, and other witnesses, the view taken by the trial Court is just and proper and no interference is called for. She also submitted that considering the evidence of three eye witnesses, the prosecution has proved the presence of accused Nos. 2 to 4 at the scene of offence and they were also named in FIR, therefore, they are rightly convicted by the trial Court. She also submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused persons and, therefore, no interference is called for in the present appeals.

We have heard Mr. Y.S. Lakhani, learned Senior Advocate for the appellants-original accused Nos. 2 to 4, and Mr. C.M. Shah, learned APP for the State. We have also gone through the evidence on record. So far as accused No. 1 is concerned, his conviction is confirmed, therefore, we are not required to consider the role of accused No. 1 or the evidence connecting accused No. 1. However, it is clear that the offence in question is culpable homicide amounting to murder.

So far as accused Nos. 2 to 4 are concerned, we have perused the medical evidence. The cause of death shown in the report of both the deceased is internal hemorrhage due to injury to spleen and its vessels. From the injuries mentioned in column Nos. 17 and 20, it is also clear that such injuries were caused with knife and the deceased died due to knife injuries. From the evidence on record, it is also clear that accused Nos. 2 to 4 were not armed with knife. Therefore, we are of the opinion that the trial Court has committed an error in convicting accused Nos. 2 to 4 for the offence punishable under Section 302 of IPC. Now, we have to consider as to whether the prosecution has successfully established that accused Nos. 2 to 4 are guilty of offence under Section 323 of IPC. From the evidence of PW-1, PW-8 and PW-10, it is clear that no test identification parade of the accused persons was held and they were identified in the Court. One of the witness has also stated that she has trouble in watching, therefore, it creates doubt about her ability to see the incident from the distance of 15 to 20 ft. Moreover, no test identification parade was held and accused Nos. 2 to 4 were identified in the Court, therefore, it creates a serious doubt on the prosecution case. In view of this, it is difficult to convict accused Nos. 2 to 4 even for offence under Section 323 of IPC and benefit of doubt is required to be granted to them. Hence, we are of the opinion that this Criminal Appeal filed by accused Nos. 2 to 4 is required to be allowed.

For the foregoing reasons, this appeal is allowed so far as accused Nos. 2 to 4 of Sessions Case No. 13 of 1998 are concerned. The impugned judgment and order dated 12.3.2004 passed by learned Additional Sessions Judge, Fast Track Court No. 3, Surendranagar, in Sessions Case No. 13 of 1998 is quashed and set aside so far as accused Nos. 2 to 4 are concerned and they are acquitted of all the charges levelled against them. Bail bond, if any, of accused Nos. 2 to 4 stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.