Gujarat High Court
Gova Ala Ahir & vs State Of on 27 August, 2013
Bench: Ks Jhaveri, K.J.Thaker
GOVA ALI AHIRV/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/1232/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1232 of 2004 With CRIMINAL APPEAL NO. 1234 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ GOVA ALA AHIR & 3....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) Appearance In Criminal Appeal No. 1232 of 2004: ABATED for the Appellant(s) No. 3 MR PM THAKKAR ,SENIOR COUNSEL WITH MR HRIDAY BUCH, ADVOCATE for the Appellant(s) No. 1 - 2 , 4 MS CM SHAH, ADDL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 Appearance In Criminal Appeal No. 1234 of 2004: MR BHARAT DAVE, ADVOCATE for the Appellant(s) MS CM SHAH, ADDL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER Date : 27/08/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) Criminal Appeal No. 1232 of 2004 has been filed by original accused nos. 1, 4, 5 & 6 of Sessions Case No. 54 of 1996 being Gova Ala Ahir, Jiva Gova, Rama Gova and Kara Gova respectively. However, during pendency of appeal before this Court appellant no. 3 original accused no. 5 Rama Gova expired and the appeal was abated as recorded by this Court vide order dated 06.08.2013. Therefore, Criminal Appeal No. 1232 of 2004 is heard qua original accused nos. 1, 4 & 6.
1.1 Criminal Appeal No. 1234 of 2004 has been filed by original accused no. 2 of Sessions Case No. 54 of 1996 being Malde Kanabhai Nandaniya.
1.2 The appellants have preferred the present appeals challenging the judgement and order dated 15.06.2004 passed in Sessions Case No. 54 of 1996. The appellants original accused were convicted for the offences punishable under sections 302, 324, 147, 148 & 307 read with section 149 of Indian Penal Code.
1.3 The appellants were ordered to undergo the following sentence :
Life imprisonment and fine of Rs. 500/- each for offence under section 302 r/w 149 of Indian Penal Code;
Simple imprisonment for three months and fine of Rs. 100/- each for offence under sections 147, 148 r/w 149 of Indian Penal Code;
Imprisonment for three months and fine of Rs. 250/- each for offence under section 324 r/w 149 of Indian Penal Code;
Rigorous imprisonment for seven years and fine of Rs. 500/- each for offence under section 307 r/w 149 of Indian Penal Code;
All the sentences were ordered to run concurrently.
2. The facts of the case in brief as per the prosecution is that on 04.1.1996, at about 05.30 pm when the complainant was returning from his brother s house and when he reached the shop of one Bharat Lohana he found the original accused no. 1 -Gova Ala, original accused no. 5 Rama Gova, original accused no. 6 Kara Gova and other three persons inflicting blows on his brother Dharmendra and his relative Lakhdhir with weapons like pipe, knife and stick. The complainant therefore shouted for help and tried to save his brother and relative but original accused no. 1 inflicted two pipe blows on the forehead of the complainant and therefore the complainant fell down on the ground. Thereafter, all the accused started beating Dharmendra and Lakhdhir. It is the prosecution case that original accused no. 6 was armed with a knife, original accused no. 1 was armed with pipe and original accused no. 5 was armed with stick whereas other three persons were having sticks and pipes in their hands. The accused left the place of offence and then another brother of Dharmendra- Meraman and one Rashmin came to the place of incident and took the injured persons to Irvin Hospital, Jamnagar where the doctor declared Dharmendra brought dead. Lakhdhir was admitted and treated in the hospital. It is the prosecution case that the motive of the incident was that the nephew of the complainant i.e. Dhanabhai and original accused no. 4 Jiva Gova had contested election to the Taluka Panchayat wherein accused no. 4 lost to Dhanabhai and therefore in retaliation the accused persons assaulted the complainant and his brother as well as relative.
2.1 The appellants - accused came to be arraigned for committing murder of Dharmendra and injuring Lakhdhir. The investigation being complete, charge-sheet was laid against the present appellants. The case being exclusively triable by the Court of Sessions was committed to the Court of Sessions, which was given number as Sessions Case No. 54/1996.
2.2 It is pertinent to be noted here that an FIR was lodged by original accused no. 1 as well alleging that present complainant Ram Devsi, Lakhdhir Ramsi, Rashmin @ Hako & Meraman Desai had mercilessly beaten up the son of Jiva Gova and the said information was given to him by 3 to 4 boys who came running while the complainant and his another son Kara Gova were at their house. It is stated in the said complaint that therefore Jiva Gova as well as Kara Gova rushed to the scene of offence and found both his sons and another Malde lying in a pool of blood with serious injuries inflicted by the accused persons
- Ram Devsi, Lakhdhir Ramsi, Rashmin @ Hako & Meraman Desai. Therefore, Sessions Case No. 82 of 1996 came to be registered against the present complainant and others. Both the cases were tried together.
2.3 Thereafter, the Sessions Court framed the charge against the appellants for commission of the offence charged against them. The appellants-accused pleaded not guilty and claimed to be tried.
2.4 To prove the case against the present appellants, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocates for both the sides :
P.W. 1 Dr. Rameshchandra Vachhani Ex. 27 P.W. 2 Dr. Satish Kalele Ex. 46 P.W. 3 Deva Dhana Ex. 50 P.W. 4 Mulji Lakhubhai Ex. 52 P.W. 5 Navin Bhikhubhai Ex. 54 P.W. 6 Vijay Solanki Ex. 55 P.W. 7 Lalubha Parmar Ex. 57 P.W. 8 Ukabhai Kanabhai Ex. 58 P.W. 9 Ramsi Ala Ex. 60 P.W. 10 Kishoresimh Joja Ex. 61 P.W. 11 Parbat Arjan Ex. 63 P.W. 12 Dadhu Ukabhai Ex. 64 P.W. 13 Jesa Arjan Ex. 66 P.W. 14 Samatbhai Sadabhai Ex. 67 P.W. 15 Kanaksinh Gohil Ex. 69 P.W. 16 Jayesh Jerambhai Ex. 70 P.W. 17 Naga Rajshi Ex. 72 P.W. 18 Rama Kanara Ex. 73 P.W. 19 Chaku Pala Ex. 76 P.W. 20 Ramabhai Devshibhai Ex. 78 P.W. 21 Lakhdhir Ramsinh Ex. 90 P.W. 22 Rameshbhai Parmar Ex. 92 P.W. 23 Dr. Navinchandra Hariya Ex. 100 P.W. 24 Meraman Devshibhai Ex. 138 P.W. 25 Hitesh Bhatt Ex. 148 P.W. 26 Hariram Shankardas Ex. 150 P.W. 27 Pravinchandra Shah Ex. 152 P.W. 28 Mayabhai Devabhai Ex. 156 P.W. 29 Navalsinh Ashaji Ex. 161 P.W. 30 Narendrasinh Jadeja Ex. 163 P.W. 31 Bhikhubha Jadeja Ex. 31 2.5 The prosecution has also relied upon the following documentary evidences:
Yadi for collecting blood samples Ex.28 OPD Case papers of accused Malde Kana Ex. 29 Approval form of taking blood sample Ex. 30 Yadi for collecting blood samples Ex.31 OPD Case papers of accused Raja Raysi Ex.32 Approval form of taking blood sample Ex. 33 Yadi for collecting blood samples Ex.34 OPD Case papers of accused Kara Gova Ex. 35 Approval form of taking blood sample Ex. 36 Yadi for collecting blood samples Ex.37 OPD Case papers of accused Jiva Gova Ex. 38 Approval form of taking blood sample Ex. 39 Yadi for collecting blood samples Ex.40 OPD Case papers of accused Rama Gova Ex. 41 Approval form of taking blood sample Ex. 42 Yadi for collecting blood samples Ex.43 OPD Case papers of accused Gova Ala Ex. 44 Approval form of taking blood sample Ex. 45 P.M Report Ex. 47 Office copy of police report Ex. 49 Yadi for carrying out post mortem Ex. 58 Panchnama of local place Ex. 51 Inquest panchnama Ex. 53 Panchnama of arrest, clothes and body condition of Gova Ala Ex.56
Discovery panchnama of Gova Ala Ex. 59 Panchnama of arrest, clothes and body condition of Malde Kana Ex.62
Arrest panchnama of Raja Rayshi Ex. 65 Panchnama of arrest, clothes and body condition of Jiva Gova Ex.68
Arrest Panchnama of Rama Gova Ex. 71 Panchnama of arrest, clothes and body condition of Kara Gova Ex.74
Discovery panchnama Ex. 75 Copy of deposition of Rambai Devsi Ex. 87 Injury certificate of Rambhai Devsi Ex. 101 Indoor case papers of Rambhai Devsi Ex. 102 Yadi for collecting case papers Ex. 103 Indoor case papers of Lakhdhir Ex. 104 Injury certificate of Lakhdhir Ex. 105 Injury certificate of Lakhdhir Ex. 106 Treatment paper of Jiva Gova Ex. 107 Injury certificate of Jiva Gova Ex. 108 Yadi for collecting case papers Ex. 109 Indoor case papers of Malde Kana Ex. 110 Injury certificate of Malde Kana Ex. 111 Injury certificate of Gova Ala Ex. 112 Indoor case papers of Kara Gova Ex. 113 Injury certificate of Kara Gova Ex. 114 Sale deed Ex. 139 Notification of weapon prohibition Ex. 149 Panchnama of arrest, clothes and body condition of Ram Devshi Ex.151
Yadi for preparing map of local place Ex. 153 Forwarding letter with map Ex. 154 Map of local place Ex. 155 Yadi Ex.157
Copy of MLC Register, Irwin Hospital Ex. 158 copy of station diary entry Ex. 159 Copy of Sr. No. 46-47-48 of MLC Register Ex. 160 Yadi of sending papers Ex. 162 copy of station diary entry Ex. 164 Forwarding letter of sending muddamal Ex. 165 Office copy of muddamal dispatch note Ex. 166 Office copy of authority certificate Ex. 167 FSL receipt of receiving muddamal Ex. 168 Letter of sending sealed samples Ex. 169 Forwarding letter by FSL Ex. 170 Muddamal analysis report Ex. 171 Serological analysis report Ex. 172 Report of registering offence Ex. 173 Yadi Ex.175
Complaint Ex.
177
Yadi
on receipt of dead body of DharmendraEx. 178 2.6 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C. and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellants as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellants have preferred the present appeals.
3. Mr. P.M. Thakkar, learned Senior Counsel appears with Mr. Hriday Buch, learned advocate for original accused nos. 1, 4 & 6 and Mr. Bharat Dave, learned advocate appears for original accused no. 2.
The respondent-State is represented by Ms. CM Shah, learned APP.
3.1 Mr. PM Thakkar has strongly contended that the prosecution failed to prove the case against the accused beyond reasonable doubt. He contended that the trial court erred in appreciating the fact that the injuries sustained by the appellants have not been explained by the prosecution. It has come on record that the appellants have received injuries which were inflicted by the complainant and others but how such injuries came to be inflicted is not explained and under the circumstances a strong inference of suppressing the genesis of the incident has to be drawn looking to the conduct of the prosecution. He submitted that the trial court overlooked the said aspect and hence the impugned judgment and order requires to be quashed and set aside on this ground.
3.2 Mr. Thakkar submitted that the prosecution case against the appellants suffers from a glaring infirmity as the prosecution has not examined any other independent eye witness to support its case and that only the injured witnesses are examined though the alleged incident occurred at 05.30 pm on 04.01.1996 in the market place of Modpar village. He submitted that learned Prosecutor before the trial court admitted that no other independent witnesses have accepted to support the case of the prosecution and such a lacunae has been pardoned by the trial court.
3.3 Mr. Thakkar submitted that admittedly there is no evidence to show that the complainant Ram Devsi or his brothers were having any land or property in Modpar Village where the incident occurred. No documentary evidence is produced to corroborate the version that the complainant and other injured persons had come to the village for constructing the house of Meramanbhai.
3.4 Mr. Thakkar further submitted that the entire issue took place due to a free fight which took place between both the sides. He submitted that infact looking to the totality of circumstances, it appears that the complainant and other persons were the aggressors.
3.5 Mr. Thakkar submitted that in fact section 149 shall not be attracted in the present case and that the role of each of the accused is required to be taken into consideration individually.
3.6 Mr. Thakkar submitted that as far as accused no. 6 is concerned, his name was not disclosed to the on duty head constable or in the dying declaration. He submitted that the reason for his false implication at belated stage is because he was seriously injured at the hands of the complainant side. He submitted that in fact the doctor s evidence shows that he had serious injuries on vital part and he had undergone treatment in three different hospitals. He also submitted that the witness Lakhdhir admits that he did not attribute fatal blow to deceased Dharmendra as admitted by I.O in para 4 and that he did not give name of the accused who gave knife blows before the police.
3.7 Mr. Thakkar submitted that the injuries sustained by the deceased allegedly given by appellant no. 4 with the help of knife is not possible as opined by the Medical Officer in his deposition below Ex.
56. He submitted that in fact the injuries sustained by the appellants is proved by the evidence of Dr. Navin Haria Ex. 100.
4. Mr. Bharat Dave, learned advocate appearing for original accused no. 2 submitted that when the first information report was lodged by Rambhai Devshibhai P.W. 20, name of accused no. 2 was not disclosed. He submitted that assuming for a moment that for any reason the first informant was unable to disclose the name of the accused persons then even while his dying declaration was recorded by the Executive Magistrate in the hospital the name of the present accused does not figure and the dying declaration was ultimately used by the prosecution as a former statement of the witness under Section 157 of the Evidence Act for the purpose of corroboration.
4.1 Mr. Dave submitted that none of the witnesses examined by the prosecution have attributed a specific overt act namely that Malde Kama inflicted a blow with a stick or any other weapon on any part of the body of any of the witnesses, injured witnesses or the deceased. He submitted that all that has been tried to be highlighted is the presence of the accused no. 2 as one of the members of unlawful assembly. He submitted that it is true that mere presence of an accused in the unlawful assembly would be sufficient to convict him for the offence under section 149 but if the surrounding circumstances suggest that his name has been falsely given later on only with a view to falsely implicate him then though his name may be figuring as a member of unlawful assembly, that by itself would not be sufficient to hold an accused guilty of being member of the said unlawful assembly.
4.2 Mr. Dave submitted that P.W. 24- Meraman Devishibhai is a got up witness and that he has not witnesses anything. He submitted that the evidence of this witness does not inspire confidence for many reasons. He submitted that this witness has not explained the role of accused no. 2.
5. Mr. Thakkar and Mr. Dave have jointly submitted that in the alternative, if this court is inclined to accept the case of the prosecution, considering the fact that the offence was committed in the spur of moment way back in the year 1996 and that the situation thereafter has remained peaceful till date inspite of the appellants being enlarged on bail, this Court may consider the case of appellants for payment of compensation to the deceased in lieu of serving the sentence. Reliance has been placed upon a decision of the Apex Court in the case of Ankush Shivaji Gaikwad vs. State of Maharashtra, reported in 2013(6) Scale 778 and submitted that this Court may increase the amount of fine or compensation in lieu of the sentence awarded considering the provisions of Section 37 of Cr.P.C.
6. In support of their submissions, learned counsel have relied upon the following decisions:
Mohd.
Khalil Chisti vs. State of Rajasthan & Others reported in (2013) 2 SCC 541;
Pundalik Mahadu Bhane & Ors. vs. State of Maharashtra reported in (1997) 11 SCC 567;
Ananta Kathod Pawar & Ors. vs. State of Maharashtra reported in (1997) 11 SCC 564;
State of Haryana vs. Chandvir & Ors. reported in (1996) 8 SCC 678;
State of U.P vs. Jodh Singh & Ors reported in (1989) 3 SCC 465;
Surinder kumar Vs. Union Territory of Chandigarh reported in 1989 (2) SCC
217.
7. Ms. CM Shah, learned APP appearing for respondent State has supported the order of the trial court and has submitted that the trial court has gone into the evidence in detail and has come to the conclusion that the appellants are guilty of the offence so convicted of. She submitted that going by the contents in the dying declaration it is amply clear that the accused-appellant are guilty of the offence charged against them. She further submitted that the dying declaration recorded by the Executive Magistrate is in accordance with law.
7.1 Ms. Shah has submitted that the FIR was registered before the dying declaration. In this regard she has drawn the attention of this Court to the evidence of P.W. 29 where it is clearly established that the FIR is recorded prior in time. She has also drawn the attention of this Court to the panchnamas on record and submitted that the case against the appellants is proved beyond reasonable doubt.
7.2 Ms. Shah submitted that as the accused were members of unlawful assembly all are liable to the acts done by any of the accused and therefore the trial court has rightly convicted the appellants of section 149 of Indian Penal Code. She submitted that there was a strong motive to commit the crime as Dhanabhai who happens to be the nephew of the complainant contested the elections against original accused no. 4 and emerged the winner. She submitted that most of the witnesses have supported the prosecution case.
7.3 In support of her submissions, Ms. Shah has relied upon the following decisions :
Mano Dutt and Another vs. State of Uttar Pradesh reported in (2012) 4 SCC 79;
State of U.P vs. Naresh & Ors reported in 2011 Cri.L.J. 2162;
Vahaji Ravaji Thakore & Anr. vs. State of Gujarat reported in 2004 (1) GLR 777;
Kartik Malhar vs. State of Bihar reported in 1995(4) CRIMES 516;
Shyamal Ghosh vs. State of West Bengal reported in (2012) 7 SCC 646.
8. The first and foremost thing which has been borne in mind by this Court is that the incident is of the year 1996 and that almost 17 years have passed. The appellants are on bail for a long time and a peaceful situation has been prevailing since long. Nevertheless, this court is required to decide the appeals preferred by the parties.
9. As a result of hearing and perusal of the records, it is clear that there was a free fight between the accused and the complainant side. It is borne out that the complainant as well as injured witness Lakhdhir were not residents of the village Modpar but had come to attend an after death ritual of some person. It is also borne out that there was an ongoing dispute between the parties as the nephew of the complainant i.e. Dhanabhai and original accused no. 4 Jiva Gova had contested election to the Taluka Panchayat wherein accused no. 4 lost to Dhanabhai. In the said assault, one Dharmendra was seriously injured and he succumbed to his injuries during treatment. The appellants also received injuries on the fight and accused no. 6 was also extensively treated in the hospital.
9.1 P.W. 20- Rambhai Devsibhai is the complainant who in his complaint Ex. 177 has stated that as the construction work of his brother Meraman was going on, he had come to Meraman s house. Thereafter, on 04.1.1996, at about 05.30 pm when the complainant was returning from his brother s house and when he reached the shop of one Bharat Lohana he saw that the original accused no. 1 -Gova Ala, original accused no. 5 Rama Gova, original accused no. 6 Kara Gova and other three persons inflicting blows on his brother Dharmendra and his relative Lakhdhir with weapons like pipe, knife and stick. The complainant therefore shouted for help and tried to save his brother and relative but original accused no. 1 inflicted two pipe blows on the forehead of the complainant and therefore the complainant fell down on the ground. Thereafter, all the accused started beating Dharmendra and Lakhdhir. It is further stated in the complaint that original accused no. 6 was armed with a knife, original accused no. 1 was armed with pipe and original accused no. 5 was armed with stick whereas other three persons were having sticks and pipes in their hands. The accused left the place of offence thinking that Dharmendra was dead and then another brother of Dharmendra- Meraman and one Rashmin came to the place of incident and took the injured persons to Irvin Hospital, Jamnagar where the doctor declared Dharmendra brought dead. Lakhdhir was admitted and treated in the hospital. He has identified the victims who were present in the court.
9.2 P.W. 21, Lakhdhir Ramsi who is the injured witness vide his deposition at Ex. 90 has stated that he along with Rambhai, Dharmendrabhai, Hakko and Meramanbhai had gone to a pan-shop to have tobacco. He has stated that the accused persons armed with weapons came from the opposite side and inflicted blows upon them. As per his deposition Kara Gova inflicted knife blow on the shoulder of this witness and immediately thereafter inflicted two knife blows on the deceased. Rest of the accused were randomly beating with pipe and stick as a result of which he sustained injuries on his right hand, head and leg. At that time, Rambhai and Meramanbhai intervened in order to save this witness. Rambhai was inflicted two blows on the forehead by Gova Ala whereas Karo tried to inflict knife blow on Meramanbhai. Thereafter the accused ran away from there. He has further deposed that the complainant and injured persons were taken to Irwin Hospital for treatment. He was discharged from the hospital the next day.
9.3 On the other hand, P.W. 24- Meraman Devsi who was also a witness to the alleged incident has deposed vide Ex. 138 that while he along with Rambhai, Dharambhai, Lakhdhirbhai and Hakko were having beetel leaf (paan) at a pan-shop, the assailants being Kara Gova, Jiva Gova, Rama Gova, Gova Ala, Malde Kana and Raja Raishi were rushing towards them with weapons in their hands. He deposed that Kara Gova had knife in his hands, Gova Ala had iron pipe in his hands and other accused had sticks with them. He has deposed that Kara Gova inflicted knife blow on Lakhdhir and Dharambhai and as knife blow was given on the shoulder by Kara Gova, Lakhdhir fell down. When this witness and Rambhai intervened in the assault, Gova Ala hit Rambhai on his head by way of iron pipe as a result of which he fell down but soon got up. This witness also deposed that Kara Gova also tried to give knife blow to him but he obstructed the same and a scuffle ensued. At this time, the other accused were assaulting by way of sticks and that this fight went on for around 10 to 15 minutes and thereafter as the accused found that Dharambhai had expired they went away from there. He has also deposed that the deceased Dharambhai had sustained injuries on his chest, back and neck whereas Lakhdhir had sustained injuries on his left shoulder and blood was oozing out of his head. On the other hand, Rambhai was assaulted on the head part and blood was oozing out from his head. The injured and deceased were taken to Irwin Hospital in an autorickshaw. He has identified the victims who were present in the court.
10. The injuries sustained by the deceased -Dharmendra as well as injured witnesses Lakhdhir and Rambhai are as under:
Dharmendra Devshi (Deceased) :
Stab wound 7 cm x 3 cm broad, elliptical shaped is present on front, left, upper outer part of chest below left shoulder joint 4 cms above left axilla. Its margins are sharp and angles are pointed. It is entering into left chest cavity in backward, downward and inward direction. Its edfes & surrounding skin are blood stained.
Stab wound 3 cm x 1 cm broad, elliptical shaped, vertically oblique is present on upper part of back 2 cm to right of midline 12.5 cm below external occipital protuberance of skull. Its margins are sharp and angles are pointed. Its edges and surrounding skin are blood stained. Its direction is forward, downward and to left.2
cm x 1 cm broad elliptical shaped stab wound obliquely situated on outer side of right thigh directed forward, downward and inward. Its margins are sharp and angles pointed. Its edges and surrounding skin are blood stained.
Transverse 3 cm long reddish brown abrasion present on medial surface of lower 1/3 of right thigh.
Inverted V-shaped, reddish brown 1.5 cm x 1.5 cm abrasion present on right side of chest in right anterior axillary line 10 cm below right axilla and 17 cm to right of midline of chest.
Parallely arranged three pairs of reddish brown depressed abrasions 0.5 apart from each other, each abrasion 2 cm x 2mm (broad) in size as shown in the diagram below are present transversely on right hypogastric region, 4 cms to right of midline of abdomen.
10.1 The following internal injuries were also found on the body of deceased Dharmendra:
Corresponding to Ext. inj. No. 1, left chest wall soft itssues show 3 cm long oblique sharp cut, outer surface of upper lobe of left lung is showing oblique 2 cm long x 8 cm deep stab injury. Left lung is collapsed and pale except in the track of the wound where it is haemorrhagic. Left chest cavity contains about 500 cc of red semifluid blood. Total depth of ext. inj. 1 is about 20 cms.
Ext.
inj. no. 2 is about 7 cms deep and note penetrating in the chest cavity but goes obliquely in forward, downward and in left direction into muscles on left of vertbral column. Track of the wound is haemorrhagic.
Ext.
Inj. No. 3 is about 2.5 cm deep, going into muscles of the thigh. Track of the wound is haemorrhagic.
Ext.
Inj. No. 4, 5 & 6 are superficial injuries without any deep injuries.
All injuries are antemortem in nature.
N.B. Ext. Injury no. 3 & 4 not mentioned in police inquest.
Rambhai Devshi (Injured witness & Complainant) :
Between head and forehead CLW 1.5 x 1 - (bone deep) On Right hand Scalp CLW 1 x 1/4 x 1/2 .
Lakhdhir Ramshi (Injured witness) :
Cut wound left shoulder 1.5 x 2/3 Bone Deep (Clinically Fracture).
Swelling of 2 x 2 on front right side of head.
CLW of 1 x 0.5 x 1/4 on right side of head.
Pain and abrasion on right hand.
11. It shall be pertinent to consider the role of the each of the accused in the alleged offence one after the other. Accordingly, we take up the case of the original accused no. 1. As per the prosecution case, original accused no. 1 is Gova Ala Ahir appellant no. 1 of Criminal Appeal No. 1232 of 2004. As per the complaint, original accused no. 1 was carrying a pipe whereas as per the dying declaration, original accused no. 1 was carrying a knife. The complainant P.W. 20 - Rambhai Devsibhai Chavda vide his deposition at Ex. 78 has stated that accused no. 1 had inflicted pipe blows on his forehead. The injured witness P.W. 21 Lakhdhir Ramsi vide his deposition at Ex. 90 has not attributed any particular role to this accused and instead has stated that other accused were beating randomly. Similarly, P.W. 24 Meramanbhai Devsi has also not attributed any role to the accused and stated that other accused were beating randomly. Therefore, there seems to be a discrepancy about the weapon accused no. 1 was carrying. Other than that, there is discrepancy in the role played by this accused as well as per the evidence of the complainant and injured witnesses.
11.1 Now we take up the case of original accused no. 2 Malde Kana - appellant of Criminal Appeal No. 1234 of 2004. As per the complaint, original accused no. 2 was carrying a stick . No particular role has been attributed to this accused by complainant -P.W. 20, injured witnesses P.W. 21 & P.W. 24.
11.2 Similar is the case with original accused no. 4 Kiva Gova Ahir. The prosecution has not been able to prove any overt act committed by this accused in the alleged offence so as to the exact role played by him and injuries inflicted by him. No particular role has been attributed to this accused by complainant -P.W. 20, injured witnesses P.W. 21 & P.W. 24.
11.3 As far as the case of original accused no. 6 Kara Gova Ahir is concerned, the complainant P.W. 20 has deposed that accused no. 6 had inflicted knife blow to deceased Dharmendra and another blow on flank of Dharmendra. He has deposed that accused no. 6 inflicted knife blow to Meraman and that Meraman tried to obstruct the blow and thereby caught the knife by his left hand which was followed by a scuffle and ultimately the knife broke in the hand of the Meraman. P.W. 21- Lakhdhir Ramsi has deposed that accused no. 6 inflicted two knife blows to Dharmendra and also inflicted a knife blow on P.W. 21 himself on the left shoulder. As far as P.W. 24 Meraman Devsi is concerned, he has deposed that accused no. 6 had inflicted a knife blow to Lakhdhir, also inflicted knife blows on Dharmendra on the chest and flank and also tried to inflict knife blow on this witness but the knife was caught by this witness by his left hand and there was a scuffle.
12. It shall also be relevant to peruse the decisions cited by learned advocates for both the sides. In the case of Mohd. Khalil Chisti (supra), the Apex Court has observed as under:
42. The analysis of the materials clearly show that two versions of the incident adduced by the prosecution are discrepant with each other.
In such a situation where the prosecution leads two sets of evidence each one which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the Court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Though the accused would have the benefit of such situation and the counsel appearing for the appellants prayed for acquittal of the appellants of all the charges, in view of the principles which we have already discussed, we are of the view that each accused can be fastened with individual liability taking into consideration the specific role or part attributed to each of the accused. In other words, both sides can be convicted for their individual acts and normally no right of private defence is available to either party and they will be guilty of their respective acts.
xxx xxx xxx 47. In
the light of the facts that have been enumerated above, particularly, from the evidence of PWs 4 & 5 police constables attached to the Tripolia Police Chowki, P.S. Ganj, and the materials abundantly show that the deceased and the complainant s party were also armed with sword and hockey sticks. In the absence of evidence of fire shot from the revolvers of A-1 and A-3 and in view of the statement of PWs 3, 6, 13 & 18 alleging against the present appellants, in order to bring the matter within a free fight both sides have to come armed and prepared to do battle must be applied in the present case with the result that each accused would be liable for his individual act alone.
12.1 In the case of Pundalik Mahadu Bhane (supra), the Apex Court has held as under:
6. After having gone through the entire record we are of the opinion that the above concurrent findings of the learned Courts below are substantially correct and are based upon reasonable appreciation of the evidence. But then, having recorded such findings the learned Courts below were not justified in convicting the appellants for rioting, for the law is now well-settled that in the case of a sudden and free fight each of the persons involved therein can be held liable for his individual act and not vicariously liable for the acts of others. [Lalji and Ors. Vs. The State of U.P. AIR 1973 S.C. 2505, Ishwar Singh Vs. The State of U.P. AIR 1976 S.C. 2423 ]. The convictions of the two surviving appellants under Section 148 IPC cannot, therefore, be sustained.
12.2 In the case of Ananta Kathod Pawar (supra), it is observed by the Apex Court as under:
4. On consideration of the evidence adduced during trial, the trial Court held that the incident did not take place in the manner alleged by the prosecution witnesses. The trial Court further held that having regard to the injuries found on the persons of the accused and the fact that one of them, namely, Haribhau succumbed to the injuries, it was clear that there was a free fight between the two groups, each one coming armed with weapons. The trial Court observed that every prosecution witness tried to feign ignorance about the injuries sustained by some of the appellants and about the cause of death of Haribhau. It then referred to the judgment of this Court in Lakshmi Singh Vs. State of Bihar [AIR 1976 Supreme Court 2263] and concluded as under: "If these principles are applied to the facts of the present case, it can be said that the prosecution has suppressed he genesis and origin of the occurrence and has not presented the true version as to how the incident started. It can equally be said that the prosecution witnesses are telling lies on material points."
5.
In our considered view, with the above observations and findings, the trial Court was not at all justified in convicting the appellants for rioting or for the other offences with the aid of Section 149 I.P.C. Equally untenable is the High Court's affirmation of the above convictions for the evidence on record clearly establishes the findings recorded by the trial Court. Once the trial Court found that there was a sudden and free fight between the two groups in which members of both the groups sustained injuries, the trial Court should have held that there was no scope for convicting members of one of those groups under Sections 147 or 1481 I.P.C. and for that matter for substantive offences with the aid of Section 149 I.P.C. In such a case, the accused persons would be liable for their individual acts and would not be liable vicariously. In the instant case, we are unable to convict the appellants for their individual acts also as no specific evidence was led by the prosecution in that regard.
12.3 In the case of State of Haryana (supra), the Apex Court has observed the following :
3. Having gone through the evidence and the reasoning given by the High Court we do not think that the case warrants interference. It is seen that the prosecution has deliberately separated two incidents which occurred at 5.45 p.m and 6 p.m. on that date. A reading of the evidence clearly goes to show that after the first incident of quarrel between the ladies had taken place, when the deceased-Rajpal was passing through the road and had come near the house of the accused there appears to have arisen a quarrel between the accused party and the prosecution party. Both the incident had taken place during the course of the same transaction. The question then is:
whether it is possible to believe the evidence of the injured witnesses implicitly to base the conviction of the respondents? It would appear from the evidence adduced that there is no common object or intention to kill deceased. It would appear that it is a case of free fight between the accused party and the prosecution party on account of the quarrels between the two families. There is evidence that some of the accused suffered injuries in the same transaction and the prosecution has not explained injuries on them. In those circumstance the liability of each of the accused has to be considered independently, In that attempt, we have scanned the evidence of injured witness carefully vis-a-vis the reasoning given by the High Court, It would appear that all the witnesses have improved upon their version stated in the statement recorded under Section 161, Cr.P.C. In fact, the Sessions Court itself has noted that some of the witnesses have spoken falsely in their evidence with regard to some of the accused. Under those circumstances, would it be possible to place implicit reliance on the evidence of these injured witnesses, though their presence stands confirmed? We have given our anxious consideration to the facts it this case. We Find that it is absolutely difficult to place implicit reliance on their evidence. It is true that falsus in uno, falsus in imnibus has no application in criminal trial. Court has to endeavour to separate the grain from the chaff and accept that part of the evidence which is found to be truthful and consistent. Having made that attempt. we find that on the facts of this case, it is very difficult to separate the grain from the chaff. It is seen that the participation of five of the accused is totally disbelieved by the Sessions Court as well as the High Court. As regard the participation of the eight accused in the commission of the crime, it is seen that witnesses fabricated and improved their version from stage to stage. Therefore, it would be very difficult to place implicit reliance on each of their evidence or cumulatively to convict accused 1 and 2. The two accused are alleged to have attacked the deceased. Each of the injuries is not independently sufficient to cause death. Moreover, in a case of free fight, Section 149 cannot be applied. It is difficult to accept the prosecution case to hold that A1 and A2 alone had attacked the deceased in the melee. It might be that some other had attacked the deceased. PW.9, father of the deceased is found to have given false evidence. On the facts and circumstances, neither Section 32 nor Section 149 can be applied to any of the accused.
12.4 In the case of State of U.P (supra), the Apex Court has held as under:
19.
We are now left to determine the nature of the offence committed by the accused. The evidence on record, as found by the Sessions Court and the High Court also, establishes beyond doubt that an occurrence had taken place at the 'pair' at about 2 p.m. on 19.11.1972 and it had resulted in Jairam Singh and Nathu Singh receiving fatal injuries and PW-1 also sustaining several injuries, one of them being grievous. Likewise A-2 and A-3 had also sustained simple injuries on their person. According to both sides a wordy quarrel had taken place and the quarrel had lead to the use of weapons by both the parties against each other. It is not therefore a case where the accused had deliberately attacked the decased and PW-1 with an intention to kill them. On the other hand it is a case which would fall under Exception 4 to Section 300 I.P.C. The High Court has failed to notice this position because of its obsession over minor details in the case.
20. On the question whether all the accused or only some of them should be convicted for the injuries caused to the deceased and PW-1, we must, say even at the outset that the accused cannot be convicted for the offence of rioting because the attack on the victims had taken place in the course of a sudden quarrel. The accused had not formed themselves into an unlawful assembly in order to commit the offence of rioting. Hence none of the accused can be convicted under Sections 147 or 148 I.P.C. In so far as the injuries caused to the deceased and PW-1 are concerned, we find that though A-1 was armed with a lathi and A-7 was armed with a tamancha, they had not made use of them on the deceased or PW-1. Therefore, A-1 and A-7 cannot be convicted for the injuries caused to the deceased and PW-1 and their acquittal has to be sustained, though for different reasons. As regards A-2 to A-4 and A-6, they were armed with tamanchas and they had caused injuries to PW-1 besides causing fatal injuries to the deceased. A-5 was armed with a lathi and he had used the same against the victims. The evidence does not establishes to who among the assailants caused the fatal injuries to the two deceased, Consequently A-2 to A-6 merit conviction under Section 302 Part II I.P.C. read with Section 34 I.P.C. As regards the attack on PW-1 it cannot be said that A-2 to A-6 had attempted to murder him because the injuries had been caused in the course of a sudden quarrel. They can therefore be convicted only under Section 326 read with Section 34 I.P.C. and not under Section 307 read with Section 34 I.P.C, Accordingly we convict A-2 to A-6 under Section 304 Part II I.P.C. read with Section 34 I.P.C. (two counts) and under Section 326 read with Section 34 I.P.C.
13. On the other hand as far as the decisions relied upon by learned APP is concerned, in the case of Mano Dutt (supra), the Apex Court has held that onus lies on a person who claims right of private defence to show that there were circumstances and occasions for exercising such a right and same was exercised directly in proportion to extent of aggression and that just because one circumstance exists amongst various factors, which appears to favour person claiming right of self defence, does not mean that he gets the right to cause death of other person.
13.1 In the case of State of U.P. vs. Naresh (supra), the Apex Court has observed in paras 23, 25 & 26 as under:
23.
The High Court has disbelieved Balak Ram (PW.5), who had suffered the gun shot injuries. His evidence could not have been brushed aside by the High Court without assigning cogent reasons. Mere contradictions on trivial matters could not render his deposition untrustworthy.
The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayed v. State of Madhya Pradesh, (2010) 10 SCC 259].
25. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide:
State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta &
Ors. v. State of Maharashtra, JT 2010 (12) SC 287].
26. 26.
The High Court has also fallen into error in giving significance to a trivial issue, namely, that in respect of the morning incident all the accused had not been named in the complaint/NCR. It is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has falsely been implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from this. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. [Vide:
Rohtash v. State of Rajasthan, (2006) 12 SCC 64; and Ranjit Singh & Ors. v. State of Madhya Pradesh, JT 2010 12 SC 167].
13.2 In the case of Vahaji Thakore (supra), the Apex Court has held as under:
33.
From record, it appears that accused No. 2 and accused No. 4 were arrested at 11-00 a.m. immediately on the next day i.e. on 1st October, 1993. It also appears that on the same day, accused No. 1 was arrested at 11-35 a.m. and accused No. 3 also was arrested in the evening at 18-15 hrs. on the very same day. Thereafter, at the instance of accused Nos. 2 and accused No. 4, an axe which was concealed by accused No. 2 was traced out at the instance of accused No. 2 himself and a stick which was concealed by accused No. 4 was traced out at the instance of accused No. 4. For these two articles viz. Axe and Stick, discovery panchnama Ex.32 was drawn under Sec.27 of the Indian Evidence Act. To prove this discovery panchnama Ex.32, the prosecution examined P.W.10 Jivanji Vasaji Thakor at Ex.31 and P.W.11 Dehalaji Valji Thakor at Ex.34. In the same manner, muddamal Dharia which was concealed by Accused No. 1 was discovered at the instance of accused No. 1 and it was seized under discovery panchnama at Ex.33. To prove the panchnama Ex.33, the prosecution examined the same two panch witnesses at Ex.31 and Ex.34. It is true that these two panch witnesses turned hostile and did not support the case of the prosecution with regard to discovery panchnamas at Exs.32 and 33. But the fact remains that the fact with regard to discovery panchnamas at Exs.32 and 33 is proved by the Investigating Officer, P.S.I. Mr. Dalaji Arajanbhai Desai at Ex.41. In his evidence on oath, Mr. Desai has proved the requirements of Sec.27 of the Indian Evidence Act with regard to such type of discovery panchnama. It is now well settled that the discovery of fact referred to in Sec.27 is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it, and therefore, this is relevant piece of evidence connecting the accused with the crime. Of course, panch witnesses are turned hostile but merely because they are turned hostile, the evidence of Police Officer should not be discarded. In case of Modan Singh Vs. State of Rajasthan reported in AIR 1978 SC 1511, the Hon'ble Supreme Court has held as follows:
"If the evidence of investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version."
34. Same type of view has been taken by the Supreme Court in case of Mohd. Aslam Vs. State of Maharashtra reported in (2001)9 SCC 362. It is held that "evidence of police officer effecting recovery could not stand vitiated by reason of panch witnesses supporting the evidence turning hostile".
35. In view of aforesaid legal position, we are of considered view that merely because the panch witnesses do not support the case of the prosecution, the case of the prosecution need not be thrown over board as unreliable. It must be realised that the phenomenon of panch witnesses turning hostile to the prosecution is not unknown and is ever on the increase. It needs hardly to be emphasised that the decision of a case does not depend solely on the question whether the panch witnesses support the prosecution or turn their back on it. If the decision of the case were to depend solely on the testimony of panch witnesses regardless of the evidence of independent witnesses, in theory, it would be giving a right of veto to the panchas so far as the question of culpability of an accused is concerned. If the evidence of police officer is otherwise found to be true and dependable, judicial pragmatism requires that merely because the panchas do not support, it should not be made a ground to discard his evidence.
13.3 In the case of Kartik Malhar (supra), the Apex Court has held as under:
...
The Privy Council decision was considered by this Court in Vadivelu Tlievar v. Tire State of Madras in which it was observed as under : -
On a consideration of the relevant authorities and the provisions of the Evidence Act. the following propositions may be safely stated as firmly established:(1)
As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness out ways the testimony of a number of other witnesses of indifferent character.(2)
Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon for example, in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogues character.(3)
Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this a much depends upon the judicial discretion of the Judge before whom the case comes.
In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that no particular number of witnesses shall, in any case, be required for the proof of any fact. The Legislature determined, as long ago as 1872 presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses.
This Court further observed as under:
It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilty depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each cases and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused may be proved by the testimony of a single witness, the innocence of the accused person may be established on the testimony of the single witness, even though a considerable number of witnesses may be forth coming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact, Generally speaking, oral testimony in this context may be classified into three categories.
namely:(1)
wholly reliable:(2)
wholly unreliable:(3)
neither wholly reliable nor wholly unreliable.
In the first category of proof, the Court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above approach of suspicion of interestedness, incompetence of subordination. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subordination of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is Faceable and free from all taints which tend to render oral testimony open to the suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution.
The above decision has since been followed in Ramratan and Ors. v. The State of Rajasthan ; Guli Chand and Ors. v. State of Rajasthan ; Badri v. State of Rajasthan;
Vanula Bhushan @ Venuna Krishnan v. State of Tamil Nadu and in Jagdish Prasad v. State of M.P. Some other cases of this Court in which the question of sole witness constituting the basis of conviction or otherwise has been considered are State of Haryana v. Manoj Kumar ; Brij Basi Lal v. State of M.P. [1991] Suppl. 1 SCC 200; Jai Prakash v. State, Delhi Administration ; Peadireddi Subbareddi v. State of Andhra Pradesh ; Java Ram Shiva Tagore v. State of Maharashtra ; Anil Pukhan v. State of Assam and Ram Kumar v. State of U.P. .
4. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelyu Thevar's case (supra) and, therefore, conviction can be recorded on the basis of the statement of single eye witness provided his credibility is not shaken by any adverse circumstances appearing on the record against him and the Court, at the same time, is convinced that he is a truthful witness. The Court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present. Indeed, the Courts insist on the quality, and, not on the quantity of evidence.
14. As far as the contention that the test identification parade was not conducted is concerned, it is required to be borne in mind that the witnesses have identified the accused in the court. Moreover, the names of the witnesses have been specifically mentioned in the complaint and the dying declaration. The issue in this regard is also decided by the Apex Court in the case of Shyamal Ghosh (supra), where it is held as under:
80.
It is equally correct that the CrPC does not oblige the investigating agency to necessarily hold the Test Identification Parade. Failure to hold the test identification parade while in police custody, does not by itself render the evidence of identification in court inadmissible or unacceptable. There have been numerous cases where the accused is identified by the witnesses in the court for the first time. One of the views taken is that identification in court for the first time alone may not form the basis of conviction, but this is not an absolute rule. The purpose of the Test Identification Parade is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence is, however subjected to exceptions. Reference can be made to Munshi Singh Gautam v. State of M.P.[(2005) 9 SCC 631], Sheo Shankar Singh v State of Jharkhand and Anr. [(2011) 3 SCC 654].
81. Identification Parade is a tool of investigation and is used primarily to strengthen the case of the prosecution on the one hand and to make doubly sure that persons named accused in the case are actually the culprits. The Identification Parade primarily belongs to the stage of investigation by the police. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court. Thus, it is only a relevant consideration which may be examined by the court in view of other attendant circumstances and corroborative evidence with reference to the facts of a given case.
82. In the present case, certainly Shyamal Ghosh, accused was not identified at the time of Test Identification Parade held on 28th November, 2003. However, Sadhu @ Satyajit Das was identified. PW-14 is the learned Judicial Magistrate who had recorded the statement of Manik Das under Section 164 CrPC as well as held the Identification Parade on 28th November, 2003. Other accused were neither subjected to Identification Parade nor could the question of identifying them arise. The mere fact that Shyamal Ghosh accused was not identified by Manik Das is not of great relevancy in the present case. Firstly, for the reason that Manik Das was never examined as a witness in the court and even his statement under Section 164 CrPC has not been relied upon by any court while convicting the accused. Secondly, not only one, but all the witnesses i.e. PW-7, PW-8, PW-9, PW-11, PW-17 and PW-19, duly identified the accused in Court and they did so without any demur or hesitation. Manik Das was a person who himself was under a threat and was asked to take the gunny bags for their disposal near the Barrackpore Dum Dum Highway. Thus, we are of the considered view that non-identification of Shyamal Ghosh by Manik Das is inconsequential in the present case.
15. It is required to be noted that the name of accused no. 6 was not disclosed to doctor or in dying declaration. A perusal of the evidence of P.W. 2, Dr. Satish Kalele, the Medical Officer who performed post mortem on the deceased shows that the injury no. 1 sustained by the deceased, which is alleged to have been caused by accused no. 6 by way of muddamal knife could not have been possible by that knife. Even P.W. 21 - injured witness Lakhdhir in his evidence has admitted that he did not give name of the accused who gave knife blows before the police. Even accused no. 6 had sustained serious injuries on his vital parts as is clear from the records. It is also clear that the assault by accused no. 6 was at the spur of moment when his relative was attacked. It appears that the assault was made in order to defend his family members. However, the fact remains that the offence is said to have been committed and the appellant appears to have been driven by the grave and sudden provocation after the confrontation with the complainant and his family members which resulted into a free fight where members of both the sides were injured.
16. In the case of Surinder Kumar (supra), the Apex Court has observed as under:
5. Exception 4 to Section 300 reads as under: "Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation:
It is immaterial in such cases which party offers the provocation or commits the first assault."
6. To invoke this exception four requirements must be satisfied, namely,
(i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to handover possession of the kitchen, PW 2 quarreled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other. In the course of this heated argument it is the appellant's case that PW 2 took out a knife from his pant pocket. This part of the appellant's case seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 was convicted at Narnaul on two occasions under Section 411, IPC and his name was registered as a bad character at the local police station. It was presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the 5th rib about 2"
below the nipple. It may incidentally be mentioned that the Trial Court came to the conclusion that the injury found on the neck of PW 2 was a self inflicted wound and had therefore acquitted the appellant of the charge under Section 307, IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck. It would be reasonable to inter that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304, Part I, IPC and direct him to suffer rigorous imprisonment for 7 years.
17. Therefore, while we are inclined to hold that the offence had taken place as alleged by the prosecution we have a reason to say that the nature of offence would fall under exception to section 300. We are therefore inclined to alter the charge and the sentence from one under section 302 to section 304 (Part I) and convict accused no. 6 for the offence under section 304 (Part I) and sentence him to imprisonment for a period of ten years.
18. As far as the case of other accused are concerned, keeping in mind that the role attributed to them by the witnesses is not specific coupled with the fact that no serious injuries were inflicted by them upon the injured and the fact that the entire episode took place as a result of free fight between the parties, we find that it shall be in the interest of justice if the conviction of accused no. 1, 2 & 4 under section 302 of the Indian Penal Code is converted to conviction under section 326 of Indian Penal Code.
19. However, this Court has not lost sight of the fact that the incident is of the year 1996. On going through the judgment of the Hon ble Apex Court in the case of Ankush Shivaji Gaikwad vs. State of Maharashtra, reported in 2013(6) Scale 778, wherein, it is held that the principle of sub-section (3) of section 357 of CrPC is empowering the Court to award compensation and Hon ble Apex Court has referred to catena of decisions and on going through the entire record, it is found that the incident relates to a free fight which happened between both the sides due to some election related issue. Moreover, the appellants have been on bail for a considerable period of time and nothing adverse has been reported against them during the said period.
20. It shall be relevant to note that the members of both the sides sustained injuries out of which one was dead and one was grievously injured whereas others sustained normal injuries. Therefore, considering a long passage of time and the fact that the appellants being on bail for these many years have not involved themselves in any other untoward incident it shall be in the interest of justice if the appellants are directed to pay compensation to the legal heirs of the deceased in lieu of the sentence.
21. In the result, appeals are partly allowed. The impugned judgment and order of conviction and sentence dated 15.06.2004 passed by the Additional Sessions Judge, Jamnagar in Sessions Case No. 54 of 1996 is modified as under:
The conviction of appellant of Criminal Appeal No. 1234 of 2004 - original accused no. 2 Malde Kanabhai Nandaniya under section 302 of the Indian Penal Code is converted to conviction under section 326 of Indian Penal Code.
Similarly, the conviction of appellants no. 1 & 2 of Criminal Appeal No. 1232 of 2004 - original accused no. 1 & 4 Gova Ala Ahir and Jiva Gova Ahir respectively under section 302 of the Indian Penal Code is converted to conviction under section 326 of Indian Penal Code.
Accordingly, the accused nos. 1, 2 & 4 are sentenced to undergo 1 year rigorous imprisonment under section 326 but the same is suspended on condition that original accused nos. 1, 2 & 4 shall pay an amount Rs. 5,000/- each by way of compensation under sec. 357 of Cr.P.C. over and above the amount of fine imposed by the trial court. The appellants no. 1, 2 & 4 are acquitted of the offences punishable under sections 147, 148, 324 & 307 read with section 149 of Indian Penal Code.
The conviction of appellant no. 4 of Criminal Appeal No. 1232 of 2004 original accused no. 6 under Section 302 of the Indian Penal Code is converted to that under section 304(I) of Indian Penal Code and he is accordingly ordered to undergo rigorous imprisonment for ten years but the same is suspended on condition that the original accused no. 6 pays an amount of Rs. 25,000/- by way of compensation under sec. 357 of CrPC over and above the amount of fine imposed by the trial court. Original accused no. 6 is acquitted of the offences punishable under sections 147, 148, 324 & 307 read with section 149 of Indian Penal Code.
The amount of compensation/fine shall be paid within a period of eight weeks from today. As the accused are on bail, their bail bonds shall stand cancelled on payment of the aforesaid amount of compensation/fine.
If any of the accused does not pay the amount as ordered hereinabove in time, the sentences awarded hereinabove shall stand revived. The amount of Rs. 40000/- paid by the accused nos. 1, 2, 4 & 6 shall be paid to the legal heirs of the deceased Dharmendra Devsi by way of compensation under sec. 357 of Code of Criminal Procedure. The amount paid as fine as ordered by the trial court, if paid, shall remain with respondent State and if not paid shall be paid within a period of eight weeks from today.
R & P to be sent back to the trial Court forthwith.
(K.S.JHAVERI, J.) (K.J.THAKER, J) divya Page 43 of 43