Ajitsinh
Andubha Parmal & Anr, Chandrasinh Vs. State of Gujarat [2002] Insc 406 (26 September 2002)
Doraiswamy
Raju & Shivaraj V. Patil. Shivaraj V. Patil J.
Appeal (crl.) 1207 of 2001
These
two appeals arise out of a common judgment, hence they are being disposed of
together. Briefly stated, the facts leading to filing of these appeals are that
on 14.5.1987 in the morning when Abhesinh, the younger brother of Gajubha (the
deceased), was cleaning the `Utara' (a place of tethering cattle), there was
altercation between him and accused No. 4 and the accused No. 4 dealt a knife
blow to him for which the F.I.R. (Exbt.55) was lodged by Abhesinh at Muli
police Station. Mayaba and Manubha are the mother and father of the deceased Gajubha
respectively. Sahdevsinh, Abhesinh and Ranubha are his brothers and Harshabha
is his sister. Accused No. 1 is the brother of accused No. 3 and accused No. 2
is the brother of accused No.4; and they are cousins among themselves.
The
prosecution case as emerged during the trial is that at about 10.00 A.M. when Gajubha
was rushing towards his mother Mayaba to rescue her, who was being assaulted
with sticks by accused Nos. 1 and 3 and his sister Harshabha was pushed when
she tried to intervene, the accused No. 2 emerged from the lane and inflicted
knife blows on the chest and abdomen of the deceased. When he started running,
accused No. 2 chased the deceased Gajubha and gave another knife blow. Even
thereafter, the three accused the accused Nos. 1 and 3 chased and gave blows
with sticks on his head. Deceased Gajubha succumbed to his injuries during
treatment on 18.5.1987. All the four accused were tried for offences under
Sections 452, 302 and 323 read with Section 34 IPC and also under Section 135
of the Bombay Police Act. The Additional Sessions Judge, after trial and on
consideration of evidence, acquitted accused Nos. 1, 3 and 4 giving benefit of
doubt and convicted the accused No. 2 alone for offence under Section 302 IPC
holding him guilty for the said offence. The accused No. 2 preferred Criminal
Appeal No. 652/90 to the High Court and the State challenged the order of
acquittal in respect of accused Nos. 1 and 3 in Criminal Appeal No. 790/90. No
appeal was preferred against the order of acquittal of accused No.4. On appeal,
the High Court by the impugned judgment and order confirmed the conviction of
the accused No. 2 dismissing the appeal filed by him and reversed the order of
acquittal of accused Nos. 1 and 3 in the appeal filed by the State and
convicted both of them for offence punishable under Section 302 read with
Section 34 IPC. Hence, the Criminal Appeal No.868/2001 by accused No. 1 and 3
and Criminal Appeal No.1207/2001 by the accused No. 2.
According
to the prosecution, on 14.5.1987 at 7.30 A.M. accused No. 4 quarreled with Abhesinh(younger
brother of the deceased) when he was cleaning Utara near his house; father of
the accused No. 2 caught Abhesinh's hands from the back and accused No. 2 dealt
knife blow to him, on that account F.I.R. (Exbt. 55) was lodged; on the same
day at about 10.00 A.M., accused Nos. 1, 3 and 4 barged into the house of Gajubha
and started beating his mother Mayaba with sticks and dragged her outside the
house towards back of Sulabha's house. At that time, Ranubha (PW-1), his sister
Harshabha (PW-6) were present at the spot.
Ronubha
rushed to Utara to call Gajubha (the deceased).
Gajubha
rushed towards his house 200 ft. from Utara.
When
he came near the spot behind Surabha's house, he saw his mother being beaten;
he shouted at the accused;
at
that time accused No. 2 emerged from lane adjoining Surabha's house; gave two
knife blows, one on chest and another on abdomen of Gajubha; Gajubha started
running back towards Utara; accused Nos. 1 and 3 left beating Mayaba (PW-5) and
started chasing Gajubha with lathis;
while Gajubha
was running, accused No. 2 gave another knife blow; the accused still continued
to chase Gajubha who fell near Utara where accused Nos. 1 and 3 gave him lathi
blows on head; Ranubha went for the help of Tejubha who witnessed the incident
from the distance of 50 ft. He got motor-cycle and they carried Gajubha to Civil Hospital, from there he was taken to hospital at Surendranagar. Gajubha
was examined by Dr. Vadehra at 10.40 A.M.; Gajubha's
statement was recorded by police at 1.30 P.M. which became dying declaration No.1; statement of Gajubha to Executive
Magistrate recorded between 3.10 P.M. and 3.35 P.M. on 14.5.1987 was dying declaration No.2, Gajubha
died on 18.5.1987.
The
trial court, looking to the evidence of Ranubha, Puriba, Harshabha and Mayaba
held that the incident at home at 10.A.M. on 14.5.1987 was not proved because
of material contradictions and omissions, which went to the root of the case.
However, the trial court did not believe that someone else assaulted deceased Gajubha
by knife and that accused No. 2 was falsely involved. The trial court noticed
that in cross-examination PW-1 Ranubha stated that they had no ill-feelings
with the accused party till the date he was examined in the court and he did
not know why accused Nos. 1 and 3 beat his mother. He has also not stated that
accused No. 1 and 3 came with sticks and assaulted his mother; the trial court
observed that the conduct of this witness does not inspire confidence inasmuch
as on the date of the incident, he was 16 years of age approximately and he did
not intervene when they were beating his mother;
if he
was really present at the time of incident, he would have certainly intervened;
PW-5 Mayaba, mother of the deceased stated that she was beaten by sticks on
shoulder, back and waist; she also admitted that she felt giddiness and had
fallen on the wall of Surabha's khadki; lost consciousness and gained
consciousness thereafter at Surendranagar hospital; she was silent about the
motive of the accused to beat her; she further admitted that her son Ranubha
(PW-1) and her daughter Harshabha (PW-6) did not resist the attack by accused 1
and 3; PW-2, Puriba does not speak about stick blows; she did not state before
the police that accused Nos. 1 and 3 assaulted the deceased with sticks; Parsanabha
(PW-7) deposed only against accused No. 2 (Chandrasinh) and did not say
anything against accused Nos. 1 and 3; when questioned under Section 162 Cr.P.C.
she deposed that she has not stated that accused Nos. 1 and 3 were beating Mayaba
and Gajubha came to save her; even in the dying declaration of Gajubha he is
silent about the incident at home and his brother Ranubha coming to call him
and his rushing towards his mother; Mayaba's version about stick blows on
chest, waist and back is not corroborated by the medical evidence; because Mayaba's
medical certificate (Exbt.32) does not show any injuries on waist, chest and
back and there was a contusion on either side of scalp; the defence version
that on seeing her son being beaten, she herself dashed her head on the wall,
could not be ruled out; thus looking to the evidence of these witnesses and
having regard to the material contradictions and admissions which went to the
root of the case, the trial court held that incident as alleged by the
prosecution at home at 10.00 A.M. on 14.5.1987 was not proved.
The
trial court also observed that the deceased Gajubha in his dying declaration
did not say anything about the incident at home and that his brother Ranubha
went to call him. Investigating Officer, Mavalsinh Shivubha in his evidence
admitted that Mayaba did not state that the accused 1 and 3 gave stick blows to
deceased Gajubha; Harshabha has not stated before him that Bharatsinh went home
and brought sticks; he also stated that accused Nos. 1 and 3 appeared before
police on their own account; he admitted that before the arrest of the accused,
their houses were searched but nothing was found; the trial court also observed
if the incident as claimed had taken place at 10.00 A.M. at the house of Mayaba
and beating her and dragging her, that could have certainly found place in the
dying declaration but it is silent on the point; PW-11, Dr. Devjibhai who
examined Gajubha at 10.00 A.M. on 14.5.1987 noticed four incised wounds; he
opined that chest injury (injury no. 1) was serious; injury nos. 1 to 4 could
be caused by knife; in the cross- examination, he stated that he examined the
whole body of Gajubha and gave treatment to him for two hours and he did not
find any injury caused with blunt object;
the
learned Sessions Judge rejected the case of the prosecution as to participation
of all the accused and to apply Section 34 IPC having regard to the evidence
placed on record while holding the accused No. 2 guilty of offence under
Section 302 IPC.
The learned
senior counsel for the appellants in Criminal Appeal No. 868/2001 urged that
the High Court committed grave jurisdictional error in reversing the order of
acquittal as regards the appellants; the learned Sessions Judge on a careful
and objective consideration of the entire evidence found that the prosecution
failed to prove the incident alleged to have taken place at the house of Mahubha
at 10.00 A.M.
on
14.5.1987 and that incident of beating Mayaba by the appellants was not
established; the High Court has devoted substantial portion of the judgment to
consider whether the court can look into the police statement of witnesses to
ascertain whether the contradiction or omission brought on record was really
there or not; in the light of evidence recorded during trial and in view of the
contradictions and omissions brought about, as is evident from the statement of
Investigating Officer, the High Court was not at all right and justified in
looking to the statements of witnesses made to police;
as to
the use of sticks by the appellants and their assaulting the deceased by
sticks, there were serious omissions as pointed by the trial court which the
High Court did not properly appreciate; the High Court seriously erred in
convicting the appellants applying Section 34 IPC; even if High Court could
take a different view that itself was not sufficient to reverse the order of
acquittal unless the finding recorded by the trial court was untenable or
unjust; it could not be said that the reasons recorded by the trial court were
either perverse or not based on proper appreciation of evidence. The learned
senior counsel for the appellant in Criminal Appeal No. 1207/2001 fairly
submitted that in view of the concurrent findings of conviction recorded
against the appellant (accused No. 2), he was not in a position to challenge
the same. However, he argued that the accused No. 2 could be held guilty only
for an offence under Section 304 Part II IPC.
Per
contra, the learned counsel for the State made submissions supporting the
impugned judgment and order of the High Court.
Having
carefully considered the submissions made by the learned counsel for the
parties, in the light of the evidence placed on record, we have no hesitation
in confirming the order of conviction and sentence passed against appellant
(accused No.2) in Criminal Appeal No.1207/2001. The case of the prosecution as
far as the accused No. 2 is concerned, has been consistent and fully supported
by the prosecution witnesses. The trial court and the High Court have concurrently
found him guilty for an offence under Section 302 IPC. The learned counsel for
the accused No. 2, in our opinion, was rightl in not challenging the order of
conviction.
We are
finding it difficult to accept his submission that the accused No. 2 could not
be held guilty for offence under Section 302 IPC in the light of specific and
clear evidence that he gave first two knife blows on the vital parts of the
body causing serious injuries and thereafter gave knife blow again after
chasing him.
We are
unable to accept that the offence committed by him could be one under Section
304 Part II. The High court was right and justified in confirming his
conviction under Section 302 IPC and we do not have any good reason to differ
with the same.
As
regards the appellants in Criminal Appeal No.868/2001 (accused Nos. 1 and 3),
the trial court on a detailed analysis and objective assessment of evidence of
eye-witnesses concluded that prosecution failed to establish the incident as
alleged to have taken place at 10.00 A.M. on 14.5.1987 at the house of the
deceased of beating Mayaba and dragging her and Ranubha and rushing to call the
deceased. There were material omissions and contradictions in the statements of
these eye-witnesses who are related to the deceased as to the assaulting of the
deceased by accused Nos. 1 and 3 with sticks and further medical evidence
belied the version of Mayaba of the accused Nos. 1 and 3 beating her with
sticks as noticed by the trial court. In our opinion, the trial court was also
right in not applying Section 34 IPC to convict the accused Nos. 1 and 3.
Firstly, it was not proved beyond reasonable doubt that the accused Nos. 1 and
3 assaulted the deceased with sticks; even otherwise there is no evidence to
show any pre-plan or common intention on the part of the accused Nos. 1 and 3
to commit the murder of the deceased. It is not the case that all the accused
went together or waiting together in a common place for the arrival of the
deceased, further it is also in the evidence that accused No. 2 emerged
suddenly from a lane and assaulted the deceased with knife. Under the
circumstances, we find it difficult to accept that the accused Nos. 1 and 3
could be held guilty for offence under Section 302 read with Section 34 IPC. In
our view, the High Court committed serious error in reversing the order of
acquittal merely because it could take a different view. It is not possible to
say having regard to the evidence on record that the reasons recorded and
findings arrived at by the trial court to acquit the accused Nos. 1 and 3 were
unjustified or untenable. The High Court also failed to dislodge all the
reasons given by the trial court for acquitting them.
Under
these circumstances, the impugned judgment and order of the High Court
convicting and sentencing the accused Nos. 1 and 3 reversing the order of
acquittal cannot be sustained. Hence, for the reasons stated hereinabove, the
Criminal Appeal No. 868/2001 is allowed. The impugned judgment and order of the
High Court convicting the appellants (accused No.1 and 3) in Criminal Appeal
No. 868/2001 is set aside and the order of acquittal recorded by the trial
court in their favour is restored. Their bail bonds shall stand discharged. The
Criminal Appeal No. 1207/2001 is dismissed confirming the impugned judgment and
order so far it relates to accused No. 2 (Chandrasinh).
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