Balchandra Panchal Vs. State of Gujarat  INSC 400 (29 April 2010)
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal
No. 2215 OF 2009 Dilpesh Balchandra Panchal .......Appellant State of Gujarat
appeal by way of special leave arises out of the following facts:
2. On 16
August 1999 at about 8.30 p.m. Ravubha the complainant and his wife Lilaba
along with their son Indrasinh and his wife and children were at their
residential Flat No.28, Madhuben Apartments, village Aduput, District Kutch.
Indrasinh, however, left the house for purchasing a beedi from the adjoining
shop. Ravubha, however, called out to him to return to the house immediately
and a few seconds later Ravubha and Lilaba heard Indrasinh seeking help. They
rushed out of their apartment and saw that Indrasinh had been caught by the
first accused Balchandra Parmanand Panchal and his son Hitesh Balchandra
whereas the second son Dilpesh Balchandra, the appellant herein, was inflicting
3 knife blows on him. On seeing Ruvabha and Lilaba the three assailants ran
away after throwing the knife and its scabbard on the floor. A neighbour
Kishorebhai also reached the place immediately and helped the others in taking
Indrasinh to the hospital. Other relatives of Indrasinh and the police were
also informed on the phone as to what had happened. A police party reached the
place shortly thereafter and PSI Jala, who was on patrol duty was informed on
the wireless. The PSI then returned to the Police Station and thereafter
proceeded to the Rambagh hospital and recorded the statement of Ravubha
whereupon a case under Section 302 and 114 of the IPC and under Section 135 of
the Bombay Police Act was registered.
Jala also reached the place of incident, made the necessary enquiries and picked
up the knife and scabbard from the place where the assailants had thrown them.
The accused who were living in Flat No.26 in Madhuben Apartment were also
arrested from their residence. On the completion of the investigation, the
three accused were charged for the offences mentioned above.
prosecution in support of his case relied on the statement of 14 witnesses,
including the two eye witnesses, the parents of the deceased Ravubha and
Lilaba, and in addition to the medical evidence and the evidence of the 5
recovery witnesses. The accused in their statements under Section 313 of the
Cr.P.C. denied their involvement in the incident and pleaded that they have
been falsely roped in as their relations with the complainant party were
strained as the appellant herein had earlier been employed by them in their
factory but as he had allegedly misbehaved during his employment he had been
unceremoniously thrown out from his job.
trial court on a consideration of the evidence convicted all three accused on
the charge of murder and sentenced each of them to imprisonment for life and to
a fine of Rs.20,000/- and in default thereof to suffer rigorous 6 imprisonment
for six months. An appeal was thereafter taken to the High Court of Gujarat,
which by the impugned judgment, held that the evidence against Balchandra
Parmanand and Dilpesh, the present appellant, was conclusive as to their guilt
but insofar Hitesh Balchandra was concerned there was some doubt about his
participation in the incident and the possibility that he had been roped in
along with the other family members could not be ruled out.
appeal was accordingly allowed in part. The conviction and sentence of
Balchandra Parmanand and Dipesh Balchandra was thus maintained by the High
Court but the 7 appeal of Hitesh Balchandra was allowed and he was ordered to
5. At the
very outset, it has been brought to our notice by the learned counsel for the
parties that SLP No.9381 of 2008 filed by Balchandra Parmanand, one of the
accused whose conviction had been maintained by the High Court, has been
dismissed in limine on 19th December 2008.
Pt.Parmanad Katara, the learned senior counsel for the appellant has raised
several pleas during the course of hearing. He has first pointed out that the
sentence of rigorous imprisonment for life imposed by the trial court and
confirmed by the High Court was not justified nor maintainable in law.
8 We find
the plea of the learned counsel to be without any basis. From a bare perusal of
the two judgments it is clear that imprisonment for life has been awarded which
is permissible under Section 53 of the IPC and there is absolutely no reference
or direction that the aforesaid term of imprisonment would be treated as
rigorous or simple imprisonment. The argument, therefore, is purely academic
and calls for no comment.
with this situation, the learned counsel has fallen back on the merits of the
case. He has submitted that the prosecution story rested on the statement of
only two witnesses PW1 and PW2, the mother and father of the 9 deceased, and in
the light of the fact that the incident had happened on the 3rd floor whereas
the witnesses were residing on the 4th floor, it would not have been possible
for them to have seen the incident. It has also been submitted that as per the
ocular evidence only two injuries had been caused on the person of the deceased
but the Doctor had found six injuries during the post-mortem examination which
clearly falsified both the presence of the witnesses as well as the prosecution
story. It has been further highlighted that the witnesses had chosen to
implicate the appellant in a false case on account of the enmity as the
appellant who had been earlier employed by the complainant party had been
thrown out from service on 10 account of misbehaviour. It has finally been
pleaded that the recovery of the knife from the place of incident appeared to
be unnatural as an assailant would ordinarily not leave the weapon behind while
learned state counsel has, however, supported the judgment of the courts below.
have considered the arguments advanced by the learned counsel for the parties.
It is the conceded position that the families of the accused and that of the
complainant were close neighbours though living on different floors in small
sized flats. It is also the prosecution case that the attack was preceded by a
scuffle and shouting and cries for 11 help by the victim which immediately
attracted the two witnesses out of their apartment and it was then that they
saw the entire incident. It is also relevant that the incident happened between
8.30 - 9.00 p.m. at which time the presence of the witnesses at home would be
natural. It is true, as has been contended, that there were 28 flats in the locality
and no independent witness has been examined by the prosecution. It is,
however, now accepted without any hesitation, that independent witnesses are
never forthcoming and the prosecution must, therefore, rely on close associates
or relatives of the complainant party in order to support the prosecution
story. The mere fact, therefore that no 12 independent witness has been
examined, does not in any way cast a doubt on the evidence of the parents of
the deceased who would be the last persons to leave out the actual assailants
and involve some others instead. It must also be borne in mind that the
appellant herein was the person who had allegedly inflicted the knife blows on
the deceased. In this view of the matter, there is absolutely no doubt that he
was the primary assailant. It is also clear from the record including the
statements under Section 313 of the accused that it was the appellant herein
who had been thrown out from employment by PW 1. Ipso facto the motive for the
attack was to lie primarily on him.
plea that the medical evidence falsified the prosecution story and that the
number of injuries did not conform to the statements of the eye witnesses, must
also be rejected. The submission of the counsel for the appellants that though
only two injuries had been caused on the deceased as per the ocular evidence
but eight had been found by the doctor, is misplaced. The injuries found on the
deceased during post-mortem are reproduced below:
the outer corner of left eyebrow a 9 cm. above a conduce abrasion 2x2 cm size.
14 2. On
chest right nipple 5 cm. outward and 12 cm.
horizontal 3x 1.5 cm. deep thrust stab wound.
right of stomach from right iliac bone 4.5 cm.
auxiliary line horizontal thrust wound of 3x1.5 cm. deep.
right chest in 9th inter-costal space thrust wound going downward.
thrust wound going upward in the stomach wall.
right lobe of liver 3 x 1.2 cm. horizontal thrust wound which was near falsi
farum liquiment in the liver which pass across liver in inferior veena Cava 5
cm. liner cut.
4. A cut
in right kidney artery and vein.
stomach vacuum was 3.25 litre of blood mix fluid.
Hiren Kantilal Mehta, who conducted the post- mortem examination, had also
co-related the external with the 15 internal injuries in the course of his
evidence. It is significant that injury No.1 is only an abrasion and could easily
be caused during a scuffle or a fall that preceded or followed the actual
attack. In this view of the matter, there were only two effective injuries
(i.e. 2 and 3) and this fits in with the prosecution story that only two
injuries had been caused on the person of the deceased as the internal injuries
were a result of the two knife blows.
submission that an assailant would not leave the murder weapon behind while
running away must again be rejected. The accused herein were not hardened
criminals and therefore conscious that the recovery of the murder 16 weapon
would strengthen the prosecution story. It is also clear from the evidence that
on account of the cries made by the deceased, his parents and two others had
come out from the adjoining flats. It is, therefore, probable that appellant in
his anxiety to escape had dropped the knife at the place of incident. In the
light of the prosecution evidence the involvement of the appellant who is the
main accused has been spelt out beyond doubt. It bears repetition that the SLP
filed by Balchandra, the father of the appellant, had earlier been dismissed in
limine vide order dated 19th December 2008. We, therefore, find no merit in the
appeal. It is accordingly dismissed.
.................................. J. (HARJIT SINGH BEDI)