Mulubhai Markhibhai Nandaniya vs State Of ... on 9 May, 2014

[Cites 17, Cited by 0]

Gujarat High Court

Mulubhai Markhibhai Nandaniya vs State Of ... on 9 May, 2014

Bench: Jayant Patel, Z.K.Saiyed

        R/CR.A/405/2010                                     CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          CRIMINAL APPEAL NO. 405 of 2010
                                       With
                          CRIMINAL APPEAL NO. 459 of 2010
                                       With
              CRIMINAL MISC.APPLICATION NO. 20560 of 2013
                                        In
                          CRIMINAL APPEAL NO. 405 of 2010


FOR APPROVAL AND SIGNATURE:



HONOURABLE MR.JUSTICE JAYANT PATEL


and
HONOURABLE MR.JUSTICE Z.K.SAIYED

================================================================

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 ?

================================================================ MULUBHAI MARKHIBHAI NANDANIYA....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance:

MR RN SINGH WITH MR RATILAL V SAKARIA & MS NISHA PARIKH, Page 1 of 69 R/CR.A/405/2010 CAV JUDGMENT ADVOCATE for the Appellant(s) No. 1 (in CRI. APPEAL 405 OF 2010) MR SANDEEP N BHATT FOR Applicant (in Cr.MA 20560/13) MR HL JANI, APP for the Opponent(s)/Respondent(s) No. 1 & (IN CRI. APPEAL NO. 459 of 2010) MR ND NANAVATI, SR.ADV. with MR ASHISH DAGLI for Appellant No.1 MR PM THAKKAR , SR ADV with MR. ASHISH DAGLI for Appellant No.2 MR HL JANI, APP for the Opponent/Respondents ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 09/05/2014 CAV COMMON JUDGMENT (PER : HONOURABLE MR.JUSTICE Z.K.SAIYED)

1. Both the above Appeals are arising out of the one and same Judgment and since the oral as well as the documentary evidence in both the appeal is the same, both the appeals are heard and considered together.

2. Criminal Appeal No. 405 of 2010 has been filed by the appellant - original accused No.2 while Criminal Appeal No. 459 of 2010 has been filed by the appellants -

original accused Nos.1 & 3 respectively. For the sake of brevity and convenience the appellants in above Appeals will be hereinafter referred to as "accused Nos.1, 2 & 3". Both the Appeals are filed under Section 374(2) of the Code of Criminal Procedure Code, challenging the Page 2 of 69 R/CR.A/405/2010 CAV JUDGMENT Judgment and the order dated 16.1.2010 passed by the learned Additional Sessions Judge, Junagadh in Sessions Case No.14 of 2007, whereby the learned Sessions Judge has held (i) the accused No.1 - Vajasi Ramshi Kachhot guilty of the offence punishable under Section 302 read with Section 34 of I.P. Code and sentence him to undergo life imprisonment and to pay a fine of Rs.10,000/- and in default, to undergo simple imprisonment for 12 months, the learned Sessions Judge has also held the accused No.1 guilty for the offence punishable under Section 324 of I.P. Code and sentenced to pay a fine of Rs.3,000/- and in default, to undergo simple imprisonment for six months; the learned Sessions Judge has also held the accused No.1 guilty for the offence punishable under Section 135(1) of the Bombay Police Act and sentenced him to undergo simple imprisonment for four (4) months and to pay a fine of Rs.100/- and in default, to undergo simple imprisonment for 10 days; (ii) the learned Sessions Judge has held the accused No.2 - Mulu Markhi Nandaniya, guilty of the offence punishable under Section 302 read with Section 34 of I.P. Code and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- and in default, to undergo sentence of 12 months' simple imprisonment; the learned Sessions Judge has also held the accused No.2 guilty of the offence punishable under Section 135(1) of the Bombay Police Act and awarded sentence of 4 months' simple imprisonment and to pay a fine of Rs.100/- and in default, to undergo simple imprisonment for 10 days;

(iii) the learned Sessions Judge has also held the accused No.3 - Kalabhai Hamirbhai Kachhot guilty of the offence Page 3 of 69 R/CR.A/405/2010 CAV JUDGMENT punishable under Section 302 read with Section 34 of I.P. Code and to undergo sentence of life imprisonment and to pay a fine of Rs.10,000/- and in default, to undergo simple imprisonment for 12 months, the learned Sessions Judge has also held the accused No.3 guilty for the offence under Section 135(1) of the Bombay Police Act and ordered to undergo simple imprisonment for four (4) months and to pay a fine of Rs.100/- and in default, to undergo simple imprisonment for 10 days. However, the learned Sessions Judge has acquitted the original accused Nos.2 & 3 for the offences punishable under Section 326 & 324 read with Section 34 of I.P. Code. Against the judgment and the order of conviction and sentence, original accused Nos.1 & 3 filed Criminal Appeal No.459 of 2010, whereas original accused No.2 filed Criminal Appeal No.405 of 2010.

3. Brief facts of the prosecution case are that on 10.11.2010 at about 05 O'clock in the evening the complainant Rajshibhai Maldebhai Karangiya along with Mitesh Hardasbhai and Gokalbhai Karshanbhai had gone to Keshod on motor Cycle for some work and after completing the work while they were returning back, at about 7.15 O'clock in the evening, near Kalabhai Policewala Ni Vadi, on the way (i) Vajsibhai Ramsibhai (accused No.1) armed with knife (chhari), (ii) Mulubhai Malkhibhai (accused No.2) armed with Axe and (iii) Kalabhai Hamirbhai Kachhot (accused No.3) armed with knife (chhari), were standing on the road and they assaulted the victims. It is alleged that all the accused attacked Gokalbhai and inflicted the blows and Page 4 of 69 R/CR.A/405/2010 CAV JUDGMENT thereupon Rajshibhai Maldebhai Karangia and Mitesh Hardasbhai intervened and, therefore, accused No.1 gave knife blow on the back side of head of Rajshibhai and Mitesh received injury on the back side of shoulder. Gokalbhai received serious injuries and therefore he became unconscious. Thereafter, all the accused proceeded towards Okha on the motor cycle. Thereafter, relatives were called and injured were shifted to the Government Hospital where Gokalbhai Karsanbhai Ahir was declared as dead. Rajshi Maldebhai Karangia and Mitesh were given medical treatment. It is alleged in the complaint that about 6 months, prior to this incident, a quarrel took place between Vajshibhai and Mulubhai (accused Nos. 1 & 2) with deceased Gokalbhai. Thereafter, a complaint was lodged by Rajshibhai Maldebhai Karangiya before the Probationary Police Sub Inspector "B" Division, against the accused.

4. Necessary investigation was carried out by the Police. After completion of investigation, the charge-sheet against the accused came to be submitted before the Court of learned J.M.F.C., Keshod. As the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Thereafter, the learned Sessions Judge framed the charge (Exh.9) against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

5. To prove the case against the accused, the prosecution has examined in all 32 witnesses and have relied upon in all 61 documentary evidence and at the end of the trial, Page 5 of 69 R/CR.A/405/2010 CAV JUDGMENT after recording the statement of the accused under Section 313 Cr.P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Additional Sessions Judge held the appellants - accused guilty of the offences and awarded sentence as narrated herein above.

6. Being aggrieved by and dissatisfied with the aforesaid Judgment and the order of conviction and sentence the appellants - original accused Nos. 1 & 3 have preferred Criminal Appeal No.459 of 2010 and the original accused No.2 has preferred Criminal Appeal No.405 of 2010.

7. We have heard learned Senior Advocate Shri N.D. Nanavati with Shri Ashish Dagali for accused No.1 and learned Senior Advocate Shri P.M. Thakkar for accused No.3 (in Criminal Appeal No.459 of 2010) and shri R.N. Singh with Ms. Nisha Parikh and Shri R.V. Sakaria for accused No.2 (in Criminal Appeal No.405 of 2010), and Shri Sandip Bhatt, appearing on behalf of the applicant Vajshibhai Karshanbhai Karangiya, who has filed Criminal Misc. Application No. 20560 of 2013 for cancellation of bail granted by this Court in Criminal Misc. Application No.10479 of 2012, releasing the applicant - opponent No.2 (original accused No.2) on bail. We have also heard learned A.P.P. Mr. H.L. Jani and have also considered the documents produced on the record of the case.

8. In support of the case, the prosecution has examined Dr. Page 6 of 69 R/CR.A/405/2010 CAV JUDGMENT Nikhilkumar Buch (P.W.1) (Exh.14). He has deposed that he was on duty in Civil Hospital, Junagadh on 10/11/06. On that day at about 10.40 hours in the night injured Rajsi Malde, aged 35 years was brought to him by his nephew Hitesh Hardas for treatment with a complaint that Vajsi Ramshi attacked him and gave knife blow. On examining him, the following injuries were found :

There was one wound at lower part in parietal region at the left side of head found which was about 2.5 x 0.5 c.m.x muscle deep. The wound was cut sharply on both the ends. Dried red blood was seen on the wound and there was complaint of pain.

The patient was admitted in trauma ward and X-rays were taken and no fracture was found. After treatment, upon the instruction from the Surgeon, the patient was discharged on 11/11/06 at 11-30 a.m. As per the opinion of Doctor the said injury can be caused by sharp edged weapon. The injury can be cured within 7 to 10 days. The injury certificate was issued by the Doctor, which is at Exh.15. In the opinion of the doctor the injury received by the injured can be said as on vital part of body and the same can be caused by a sharp cutting weapon like knife. The Doctor has deposed that the injured himself has given the history of incident and he has written down in the case paper.

Page 7 of 69 R/CR.A/405/2010 CAV JUDGMENT

This witness has further deposed that on the same day at about 12.35 hours injured Mitesh Hardas, aged 26 years, was brought before him for treatment. The injured had stated before him that Vajsi Ramshi attacked him and gave knife blows. On examination, the following injury was found on the person of injured :

There was one cut wound at the back part on left shoulder which was about 1.00 x ¼ c.m.x skin deep. Both of its ends were cut sharply. There was dried red colored blood on the wound and there was complaint of pain. As the patient denied to get admitted, he was given O.P.D. Treatment. His signature was also obtained for this. In the opinion of Doctor, the injury was such that can be caused by pointed sharp weapon and if any other complication does not arise, the same can be cured within 5 to 7 day.

This witness - Doctor had issued injury certificate, which is produced vide Exh.18. The witness has deposed that the patient himself gave the history of incident. The witness has produced the O.P.D.- M.L.C. Case papers in that regard in which there is a signature that he does not want to get admitted, which is at Ex. 19. The muddamal knife was shown Page 8 of 69 R/CR.A/405/2010 CAV JUDGMENT to this witness and he has admitted that the injury can be caused by muddamal knife.

There was one wound at lower part in parietal region at the left side of head found which was about 2.5 x 0.5 c.m.x muscle deep. The wound was cut sharply on both the ends. Dried red blood was seen on the wound and there was complaint of pain.

This witness has further deposed that on the same day at about 12.35 hours injured Mitesh Hardas, aged 26 years, was brought before him for treatment. The injured had stated before him that Page 9 of 69 R/CR.A/405/2010 CAV JUDGMENT Vajsi Ramshi attacked him and gave knife blows. On examination, the following injury was found on the person of injured :

There was one cut wound at the back part on left shoulder which was about 1.00 x ¼ c.m.x skin deep. Both of its ends were cut sharply. There was dried red colored blood on the wound and there was complaint of pain. As the patient denied to get admitted, he was given O.P.D. Treatment. His signature was also obtained for this. In the opinion of Doctor, the injury was such that can be caused by pointed sharp weapon and if any other complication does not arise, the same can be cured within 5 to 7 day.

This witness - Doctor had issued injury certificate, which is produced vide Exh.18. The witness has deposed that the patient himself gave the history of incident. The witness has produced the O.P.D.- M.L.C. Case papers in that regard in which there is a signature that he does not want to get admitted, which is at Ex. 19. The muddamal knife was shown to this witness and he has admitted that the injury can be caused by muddamal knife.

9. The prosecution has examined witness Dr. Prafulaben Mohanlal Dhabariya, P.W. 2 (Exh.20).

Page 10 of 69 R/CR.A/405/2010 CAV JUDGMENT

This witness has performed the Post Mortem of the deceased. The witness has deposed that on external examination the witness found that the dead body was of a male and it was 30 years of age. He had put on white shirt of long sleeve having design of blue and white checks and put on gray colour pant. There was one handkerchief. The shirt was torn at many places and the shirt and the handkerchief were stained with much blood and the pant was blood stained at some places. The identification mark of the dead body revealed that it had one mole on the upper part of the elbow. The body was well built. It was cold. The process of rigor mortis was completely developed on the entire body. P.M. Lividity was not found except on supporting parts of the dead body, it was found afterwards. Mouth was closed and eyes were semi opened, teeth into mouth were closed. Any type of liquid was not coming out of mouth and tongue was inside. In column No.17 of the P.M. Report, the witness has found following injuries on the person of deceased :

i) There was one cut, incised wound which was transverse, in mid way of left thigh. It was upto skin and muscle. It was elliptical in shape and 5 inch long, 1 and ½ inch wide and ¾ inch deep.

ii) There was cut incised wound over left chest, left 6 th Page 11 of 69 R/CR.A/405/2010 CAV JUDGMENT inter-coastal space starting from mid clavicular line and was going downwards and laterlly. It is 2 and ½ inch long, ¾ inch wide and penetrates the cavity.

The wound track is tapering and infiltrated with blood . There is no exit wound. It penetrates the rear and left ventricular wall.

iii) There was incised wound at the level of the hair line over the neck posteriorly measuring 3 inch long starting from ½ inch from the midline on the left and extending transversely to the right. The wound is ½ inch wide, cuts through skin, muscles and grazes the cervical vertebra. Bleeding noted.

iv)There was was incised wound over right side of neck below above injury laterally measuring 1 x ½ x ½ inch long x wide x deep.

v) There was incised wound parallel to above ½ "

below it measuring 1" x ½ " x ½ ".

vi)There was incised wound just above right scapula at base of neck starting 1" lateral to the vertebral margin and extending laterally and transversely and upwards. It is 2 " long, 1" wide and penetrates the chest cavity. The wound is tapering upwards . It penetrates the right upper lung lobe.

Page 12 of 69 R/CR.A/405/2010 CAV JUDGMENT

vii) There was incised wound over right scapula region medially measuring 1"x 1/2" x 1/2" cutting through skin and muscle, next to vertebral margin, transverse.

viii) There was incised wound over right scapula region about centrally and transversely measuring 1½ " x 1" x ½ ".

ix)There was incised wound over right chest just below right scapula vertically and at border of scapular measuring 1 ½ " x 1" x ½ " cutting through skin and muscle.

x) There was incised wound lateral to above wound, also parallel to above wound, 2 " distant from it and measuring 1 ½ "x 1" x ½ " cutting through skin and muscle.

xi)There was incised wound and lateral and parallel to above, 2" distant from it, measuring 1 ½ "x 1"x 1/2" cutting through skin and muscle.

xii) There was incised wound over right back, 10th intercostal space transverse, measuring 2"x1" x ½ ".

xiii) There was incised wound over left scapula, at the base, vertical wound measuring 2" x 1" x ½ "

Page 13 of 69 R/CR.A/405/2010 CAV JUDGMENT

deep cutting through skin and muscle.

xiv) Incised wound at level of T12, transverse wound measuring 3 ½ "x 1" and cutting through skin, muscles and grazing bone.

xv) Incised wound at level of L2, transverse wound measuring 1 ½ "x 1" x ½" cutting through skin and muscle.

xvi) Incised wound at level of L5-S1 transverse wound measuring 3" x ½ " and cutting through skin, muscles and grazing bone.

xvii) Incised wound over sacral region, vertical, midline measuring 1" x1/2 " x ½ ", muscle deep.

xviii) Incised wound over sacral region, vertical, midline measuring 1"x ½ " x ½ ", 2 " below above wound muscle deep.

xix) Incised incised wound about 1" below injury no 16, lateral to it measuring 1" x ½ "x 1/2".

The witness has deposed that the injury No.1 in Column No.17 is noted on one paper and the remaining injury nos. 2 to 19 are noted in separate paper and her signature was made and stamp was Page 14 of 69 R/CR.A/405/2010 CAV JUDGMENT affixed below the place where the writing of injury no. 19 was over. The said noted injuries have been enclosed in P.M. Note. In the opinion of this witness all these injuries are ante-mortem.

10. The Doctor has also deposed that that no injury was found on the head. On examining chest, there was ¾ " long wound in right side over pleura of right upper lobe. Right lung was collapsed and blood was clotted over it. There was also ¾ " wound over right upper lobe. This injury was related to injury no.

6. There was 1.5 c.m. wound over inferior surface of heart. It was corresponding to injury No. 2. Looking to pericardium, an incised wound was found in it and the above injury was also found in this way in lower part of heart. There was blood in left chest part. (Flural cavity) there was about 200 ml. food inside stomach. No type of smell was felt. Except that, other notable injury was not found in any parts. Other organs had become pale. He has further deposed that he had seized the clothes - shirt, pant and handkerchief from the dead body and handed over the same to the police. He has also taken blood sample and handed over the same to the police in sealed condition. In the opinion of Doctor, the reason for the death of above person is due to shock and injury on the heart and lungs which are vital organs of the body. The P.M. Note is produced in this regard Page 15 of 69 R/CR.A/405/2010 CAV JUDGMENT vide mark 6/19, which is at Exh. 24. The report of cause of death was given at that time vide mark 6/20, which was given Exh. 25. The zerox of the original letter by which the muddamal has been received by the police personnel of Keshod Police Station along with specimen of seal which is produced vide mark 6/23. The witness has produced from the record the aforesaid office copy along with specimen of seal along with the note of handing over the police along with original signature. It is the office copy of mark 6/23, which was exhibited as Exh.26. The doctor has deposed that some of the external injuries mentioned in column no. 17 are serious in nature which can be caused by sharp edged weapon. The witness has deposed that the injuries can be caused by sharp edged weapons like axe and knife. In her opinion the injury nos. 2 and 6 are sufficient to cause death. As the injury nos. 2 and 6 are deep, they can be caused by weapon like knife.

11. The prosecution has examined Jagdishbhai Sarmanbhai Kamaliya, (P.W.5) (Exh.34), who was panch of the panchnama of the dead body. He deposed that another Panch Hareshbhai Nathabhai was with him and the Mamlatdar was also there. He deposed that the dead body was lying there in dressing ward in Civil Hospital. It was of the Page 16 of 69 R/CR.A/405/2010 CAV JUDGMENT deceased Gokalbhai Karsanbhai of Bamnasa. The dead body was identified by the brother of the deceased. He deposed that there was one wound on the left side and one wound was on neck and 16 injuries were found on the back of deceased. Body had blue colored shirt and cherry colored pant. The panchnama was drawn and his signature, along with the signature Mamlatdar and the Police were obtained. The police took the said dead body into custody for the purpose of P.M. The writing was made in that regard in their presence. The said panchanama is produced vide Exh. 21. In the cross examination the witness has deposed that the police and the Mamlatdar were present at the time when the panchanama was drawn. This witness has categorically deposed that he knew that the panchanama of dead body was to be drawn. The witness has deposed that he did not know as to whether the person whose dead body was there is alive or dead. The witness has denied that he is relative of Gokalbhai. The witness has deposed that he had seen the persons there who came with the dead body and they were present there till the panchanama Ex. 21 was completed. He did not know whether the persons who came with the dead body were injured or in bleeding condition or not. This witness has categorically denied that the panchanama has been got up subsequently with the Page 17 of 69 R/CR.A/405/2010 CAV JUDGMENT help of the police.

12. The prosecution has examined Hardasbhai Bhikhabhai Bhetariya, P.W.6 (Exh.35), who was called as Panch of the panchnama of scene of offence. The witness has deposed that he was called as Panch witness near the farm of Kalabhai Hamirbhai on the road going from Bamnasa to village Akha. At that time, the second panch Nathabhai Dudabhai was with him. They were called at eight o'clock in the morning and were there till half past nine. The police and the officer were there.

The place of incident has been shown by Lakhmanbhai Naranbhai Karangiya. The said place was on asphalt road going to village Akha near the farm of Kalabhai Hamirbhai at a distance of about 3 kilo meters from village Bamnasa. On examining the said road, blood stains were found on it. This witness has deposed that after taking blood stained soil from that stain and after putting it in a plastic bag and placing it in metal tin, it was placed in a cloth bag. Accordingly, the blood stained soil was taken and the soil without blood was also taken from little distance of that place. This road was about thirteen feet broad and he does not know as to what else has been found from the road. Clay and cover of one knife were lying on road side which was also seized. The farm of Kalabhai is about at a distance Page 18 of 69 R/CR.A/405/2010 CAV JUDGMENT of sixty feet from the blood stains lying on road. He has also deposed that there is one lamp on the tree in the farm of Kalabhai for getting light and the same was in working condition. The detailed panchanama in this regard was drawn in his presence and in presence of Nathabhai and they put their signature on back side of first page and at the place where it was completed, which is produced at Exh.36. He has also deposed that tin of blood stained small stones of muddamal article No. 1 was in cloth bag and their signatures were also taken on it. The rexine scabbard of knife of muddamal article no. 3 found from the road was seized in their presence. He has admitted in his cross examination that the the place which was shown is a public road and there was a traffic at that time.

13. The prosecution has examined Keshurbhai Karsanbhai Varu (Ahir) (P.W.7) (Exh.37), panchas of discovery panchnama, in whose presence and in presence of another witness Parbat Mulubhai Ahir, the police had seized the clothes of injured Rajsibhai.

14. The prosecution has examined Rajshibhai Maldebhai Karangia, (P.W. 18) Exh.52, who was with the deceased at the time of incident. In his deposition he stated that the incident took place at Page 19 of 69 R/CR.A/405/2010 CAV JUDGMENT about 7-30 in the evening on Bamnasa-Akha road on 10/11/06. He, along with Hitesh Hardas and Gokalbhai Karsanbhai (deceased) went to Keshod on Hero Honda motor cycle at about five o'clock in the evening on the day of the incident. Gokalbhai was driving this motor cycle. Thereafter, at about 6.45 p.m. Gokalbhai's brother Vajsibhai made a phone call to Gokalbhai that he wants motor cycle to go for work and if his work is completed he should come back. Therefore, they proceeded from Keshod to village Bamnasa and when they reached near the farm of Kalabhai - a policeman, Vajshibhai Ramshibhai armed with knife, Mulubhai Markhibhai armed with axe and Kalabhai Hamirbhai armed with knife were standing across the road to stop them. When Gokalbhai slowed down the vehicle, Mulubhai Markhibhai gave axe blow on the head of Gokalbhai and, therefore, they all fell down from the motor cycle and thereupon they started giving blows with axe and knife to Gokalbhai haphazardly. He deposed that he and Mitesh when tried to intervene, Vajshibhai gave knife blow to him on the back side of head above the ear and also gave a blow to Mitesh on the back side of shoulder and during that time his golden chain also fell down. The golden chain of Mitesh also fell down. Thereafter, the assailants went away towards Akha on Kalabhai's motor cycle. Gokalbhai was seriously injured and he was in Page 20 of 69 R/CR.A/405/2010 CAV JUDGMENT unconscious condition. Thereafter, he made a phone call to Masaribhai at Bamnasa from his mobile and informed him to come at the place of incident with vehicle. Therefore, after sometime, Rajubapu Bavaji came with Maruti Van and Samat Govind and Vajsi Karsan were with this Rajubapu. Masaribhai came with motor cycle. Lakhman Naran and Kana Naran came with motor cycle. Mashari Govind, Kana Naran, Vajashi Karsan, Samat Govind and Raju Bapu took them to Junagadh Government Hospital in Maruti Van. The doctor declared Gokalbhai dead and he and Miteshbhai were admitted in the hospital for treatment. As per say of this witness the reason for this incident is that about 6 months prior to the incident there was some altercation between Gokalbhai and Vajashibhai and Mulubhai with regard to the rent of Rs.15,000/-and he had given complaint in this regard in Junagadh Police Station. The said complaint is at Exh.53. He has deposed that Kalabhai Hamirbhai is working as a policeman and Mulubhai Marakhi is working as a Talati-cum-Mantri and all the three accused persons are present in the court and he had identified them. He has also identified the muddamal weapons. Thereafter, he and Mitesh were discharged from the government hospital on 11/11/06. The reason for the incident is also that the clay was loaded in the tractor of Gokalbhai in the farm of Vajshibhai Ramshibhai and Page 21 of 69 R/CR.A/405/2010 CAV JUDGMENT the amount of rent was Rs. 15,000/-. However, an altercation took place between Vajshibhai and Gokalbhai with regard to the aforesaid amount of rent and the present incident took place due to said altercation. He has deposed that earlier also on 22.10.2007 and 3.11.2007, the father of Vajshibhai, namely, Ramshibhai attacked on him on the way near the school near the outskirt in Bamnasa Ghed by saying, " you are the witness in the case of my son Vajshi." In this regard the complaint was filed on the same day. The police had also investigated in the matter and also arrested Ramshibhai.

15. The prosecution has also examined Mitesh Hardas Kachhot, P.W. 19, Exh. 59. This witness, along with Rajshibhai Maldebhai, had also accompanied the deceased Gokalbhai and they went to Keshod on Hero Honda motor cycle. As the petrol was to be filled and the tyre was to be changed in Hero Honda, they went there, but did not get the tyre changed because Vajshibhai, brother of Gokalbhai, informed them on phone at about 6.30 p.m. that they should come immediately as he required motor cycle and, therefore, after filling the petrol, they proceeded on Hero Honda Motor Cycle. Gokalbhai was driving the said Motor Cycle and he was sitting behind Gokalbhai and Rajshibhai was sitting behind him and on reaching near the farm of Page 22 of 69 R/CR.A/405/2010 CAV JUDGMENT Karabhai Hameerbhai, who is policeman, at about 07 : 15 o'clock in the evening, they saw in the light motorcycle, three persons were standing on the road near the farm of Karabhai. Vajashi Ramshi was armed with naked knife, Kalabhai Hameerbhai was also armed with the naked knife and Mulubhai Markhibhai Nandaniya was armed with an axe and they tried to stop them and Gokalbhai slowed down the vehicle. Thereupon, Mulubhai Markhibhai inflicted the blow of axe on the head of Gokalbhai and, therefore, they fell down with motorcycle. Thereafter, they started giving blows of axe and knives to Gokalbhai haphazardly. Therefore, he and Rajshibhai stood up and when they tried to interven Vajashi Ramshi gave one blow of knife on the back side of his left shoulder and Vajashibhai also gave the blow of knife on the head of Rajashi and during that scuffle his golden chain as well as the golden chain of Rajshibhai were lost. Thereafter, they ran away towards Aakha Village on the motorcycle of Kalabhai. Thereafter he called Masharibhai, cousin of Gokalbhai on mobile phone and informed about the incident and also called them with vehicle for shifting Gokalbhai to the Hospital. Thereafter, Masharibhai Govindbhai Karangiya, Rajubapu Bavaji came with Maruti Van after about half to quarter to one hour and Vajashi Karshan and Samat Govind were also with them therein and Lakhamanbhai Page 23 of 69 R/CR.A/405/2010 CAV JUDGMENT Naranbhai and Kanabhai Naranbhai also came there. Thereafter, Masharibhai Govindbhai, Samatbhai Govindbhai, Kana Naran and Vajashibhai Karshanbhai and Rajubapu took him, Rajashibhai and Govindbhai to Junagadh Government Hospital in Maruti Van and they were admitted for treatment. After examining Gokalbhai, the doctor declared him dead and both the injured were admitted for the treatment and were discharged on the next day i.e. 11.11.06, at 11 : 30 o'clock in the morning.

16. The prosecution has also examined Masharibhai, Govindbhai Karangiya, P.W.20 (Exh.61). He has deposed that the incident took place before about 15 months. As per his say, at that time, when he was at his field, he received a phone call of Rajashi Malde at about 07 : 30 - 08 : 00 o'clock in the evening informing him that while he, Gokal Karshan and Mitesh Hardas were coming from Keshod, when they reached near the field of Karabhai - the policeman, Vajashi Ramshi, Mulubhai Markhi and Kala Hameer have assaulted and Gokalbhai has received the blows of knives and an axe and, therefore, he informed him to come with Maruti Van of Rajubapu. Thereafter, this witness had gone to village on his motorcycle, but Rajubapu did not meet him and, therefore he contacted Rajubapu on phone and told him to come with his maruti van Page 24 of 69 R/CR.A/405/2010 CAV JUDGMENT at the field of Karabhai immediately, which is situated on the road of Aakha. Thereafter, he went near the field of Karabhai. Blood was oozing out from the shoulder of Mitesh and from the head of Rajashi Malde and Gokalbhai was lying there in bleeding condition and blood was oozing out from the back of his body. He has deposed that there was lamp in the field of Kalabhai and through the said lamp the light was falling on the road. While he was coming near the field of Karabhai, on the way, he called his cousin Kanabhai Naran to come to the scene of incident. When he reached there, both the brothers - Kana Naran and Lakhaman Naran came on Motor Cycle and thereafter, Samatbhai Govind and Vajashi Karashan came there and then Raju Bapu came with his Maruti Van. Thereafter, the injured persons Gokal Karshan, Rajshi and Mitesh were shifted to Junagadh Government Hospital in Maruti Van. On the way, Rajashibhai narrated the fact that, "While Rajashi Malde, Mitesh and Gokal Karshan were coming to home on motor cycle, Mulu Markhi, Vajashi Ramshi, Kala Hameer were standing on the road near the field of Karabhai. Mulubhai Markhi was armed with an axe and two other were armed with knives and they got the vehicle stopped and they slowed down the vehicle and at that time Mulu Markhi gave the blow of an axe on the head of Gokal Karshan. Therefore, they fell down with the Page 25 of 69 R/CR.A/405/2010 CAV JUDGMENT motor cycle on road. Thereafter, Kala Hameer and Vajashi have inflicted the blows of knives to Gokal. He deposed that when he and Mitesh intervened, Vajashi gave the blow of knife to him (Rajashi) and also inflicted the blow of knife on the shoulder of Mitesh. Thereafter, they reached Junagadh Government Hospital at about 10 : 00 o'clock. After examining Gokalbhai, he was declared dead. Mitesh and Rajashi were admitted in the Hospital for treatment. He came to village in the morning on the next day. Gokal was telling that the amount of Rs.15,000/- was due from Vajshibhai Ramshibhai for unloading Soil in the field of Vajashibhai Ramshi through his tractor and on insisting recovery thereof, the present incident has occurred. He has deposed that accused Mulubhai Markhibhai is the son of his uncle. Vajashibhai Ramshibhai and Karabhai Hameerbhai are of his village and, therefore, he knows them. These three persons are present in the court today. The police took his statement in this regard.

17. The prosecution has examined Vajshibhai Karsanbhai Karangia (P.W.21) (Exh.66). This witness has deposed that he had gone to Bamnasa Village at about 05 : 00 o'clock in the evening on the day of incident and as he was in need of the vehicle, he informed to Rajashi Malde Karangiya on phone for Page 26 of 69 R/CR.A/405/2010 CAV JUDGMENT the vehicle. Both of his brothers have Hero Honda Motor Cycle No.G.J.11.A.A.3789. Gokalbhai, Rajashibhai and Miteshbhai went to Keshod on Hero Honda Motor Cycle. As he was required to go out of station on Motor Cycle, he made phone call to Rajashi @ Hariya on his mobile no.9825921960 through the coin drop box phone from the shop of Nathubhai in the village. In reply, he told that, "he is just coming." Thereafter, he went to the village. As per the say of this witness, the reason of the incident is that, Gokalbhai unloaded the dust/soil in the field of Vajashibhai Ramshi through his tractor and the amount of Rs.15,000/- towards rent thereof was outstanding from him. As there was discord in that regard, the incident had occurred which has resulted into the murder of Gokalbhai. Three accused persons are present in the court and they are of his village. The police took his statement in this regard. The deceased is his brother.

18. The prosecution has examined Kanabhai Naranbhai Karangia (P.W.22) (Exh.67). He has deposed that the incident had occurred on 10.11.2006 and on that day he was present at his house. He has deposed that at about 7.45 p.m. Mashribhai had informed him on mobile phone that when he, Gokalbhai Karsanbhai and Mitesh Hardas were coming at the village at that time, Vajashi Page 27 of 69 R/CR.A/405/2010 CAV JUDGMENT Ramshi Kachhot, Muru Markhi Mantri and Kalabhai Hamir Policeman have assaulted with deadly weapons like axe and knives and Gokalbhai Karsanbhai has received serious injuries and, therefore, he should come with Maruti Van near the Vadi of Kalabhai. The incident has occurred near the Vadi of Kalabhai Policevala. Thereafter he had proceeded on his motor-cycle and on the way Lakhman Naran met him and he has narrated about the incident to him. Thereafter he (the witness) and his brother Lakhman had gone to the Vadi of Karabhai on motor-cycle. Mashribhai was also there and on the way near the house of Kalabhai Hamirbhai there was light. Gokalbhai was lying unconscious there on the road in bleeding condition and Rajashi and Mitesh were standing there. The blood was oozing from the head of Rajshi and from the shoulder of Mitesh. At that time Rajashi and Mitesh have informed that they were coming from Keshod on motor cycle, Gokalbhai was driving the motor cycle and when they reached near the Vadi of Kalabhai Hamirbghai there on the road Vajashi Ramshi with open knife, Mulu Markhi with Axe and Kala Hamir with knife were standing and they tried to stop the vehicle and Gokalbhai slowed down the motor-cycle and Mulu Markhi inflicted the axe blow on the head of Gokalbhai and, therefore, they fell down with motor-cycle on earth. Thereafter, all the Page 28 of 69 R/CR.A/405/2010 CAV JUDGMENT three have inflicted the blows knifes and Axe on Gokalbhai. Mitesh and Rajashi have tried to intervened and, therefore, Vajashi Ramshi had inflicted the blow of knife on the head of Mitesh and also inflicted the blow of knife on the shoulder of Rajashi. Thereafter, they all the three ran away towards the road of Aakha. During that time, Raju Bapu came with Maruti Van and, therefore, he along with Samatbhai, Vajashibhai and Mashribhai have shifted the inured persons to Junagadh Government Hospital in Maruti Van, where Gokalbhai was declared as dead.

19. The prosecution has examined un-armed Police Constable Rajabhai Deshabhai Chudasma (P.W.24) (Exh.75). This witness is un-armed Police Constable at Junagadh Police Head-quarter and on 10.11.2006 he was serving as Assistant Store Keeper in closing Branch and from 31.7.2006 he was given additional charge of muster clerk. Police has taken his statement on 21.11.2006. He has also produced the muster register in which at Sr.No.63 the details regarding presence of Armed Police Constable Kalabhai Hamirbhai (original accused No.3) is mentioned. As per said register, said Kalabhai was present on his duty till 9.11.2006 and from 10.11.2006 he was shown as absent. As per the deposition of this witness, as Kalabhai was absent on Page 29 of 69 R/CR.A/405/2010 CAV JUDGMENT 10.11.2006, duty was not assigned to him on that day. As per his say, the duty is assigned to those persons who are present on duty. As there was no sick report or the report of any other leave of Kalabhai Hameer, the entry thereof has not been made. The same is produced vide exhibit 78.

20. The prosecution has examined Yogendrakumar Durlabhji Purohit (P.W.26) (EXH. 84). As per his deposition, on 10.11.2006 he was serving as A.S.I., and from 20.00 to 24.00 hours he was in-charge of P.S.O., and on the next day i.e. on 11.11.2006 from 00.00 to 08.00 hours he was in-charge P.S.O., and in the early morning, complaint registered by P.S.O., which was registered at Junagadh "B" Division Police Station and which has been sent through P.C. Gopalbhai Jashmatbhai, Buckle No. 350, addressed to P.S.I., Keshod, was received. Said complaint was registered as CR No. I - 215 of 2006 for the offences under Sections 302, 326, 324 of I.P. Code and under Section 135 of the Bombay Police Act. The said complaint was lodged by the complainant Rajashi Malde Karangia against Vajashibhai Ramshibhai, Mulubhai Markhibhai and Kalabhai Hamirbhai. He has made the entry thereof in Station Diary vide entry no.3/06 at 04 : 15 o'clock. He has prepared the special report of the offence and made arrangements to send the report u/s.157 of Cr.P.C. After registering Page 30 of 69 R/CR.A/405/2010 CAV JUDGMENT the offence, the entry in respect of handing over the further investigation in this regard to the Police Inspector Shri R.J.Parmar was made. He was shown mark 6/4. It is the report with regard to registration of the offence, addressed to P.S.I. The original complaint vide mark 0-06, inquest panchnama etc. total 1 to 10 papers were received along with it. He has produced it vide mark 6/4, which is given exhibit No. 85. He had also received the copy of the complaint registered at Junagadh B - Division mark 0-06 of mark 6/3 with it. He has produced it vide mark 6/3. He has deposed that "I received the same with the original complaint. I am shown the original complaint vide exhibit 53, it is the same as was received to register the offence. After registering the offence, he has handed over the same for further investigation to P.S.I. Parmar by written order vide mark 6/5. It bears his signature, which is produced at Exh. 86. 'B' Division Police Station received the complaint vide 0-06 with exhibit 53, which is at Exh

- 87."

21. The prosecution has examined Sarjak Nileshbhai Barot (P.W.28), (EXH.105). At the relevant point of time, this witness was serving as P.S.I., "B" Division Police station, Junagadh. This witness has deposed that on receipt of D.O. No. 0462 of 2006 about the incident, he had gone to the Civil Hospital, Junagadh Page 31 of 69 R/CR.A/405/2010 CAV JUDGMENT and met Rajshibhai Maldebhai Karangia in the Hospital. He has narrated the incident and as per his say, he had written down the complaint and also read over to him and thereafter he obtained the signature of Rajshi Malde and he had also signed the same. Thereafter, the complaint along with the report was sent to "B" Division Police Station for registering the offence under Sections 302, 324, 326, 34 of I.P. Code and under Section 135 of the Bombay Police Act. He was shown Exh.85 and he identified his signature. Thereafter, with reference to the aforesaid D.O., as the dead body of the deceased Gokalbhai Karshanbhai was received on 10/11/06 from ASI of hospital on duty, Dr. Buch declared him dead. On the D.O. No.4628/06 being received by the PSO 'B' Division Police station to carry out the further investigation in that regard, PSO Mr. P.S.Solanki registered the entry No.27/06 in his station diary and sent the D.O. in his name with an endorsement for further investigation. He had received the same after taking the complaint and the ASI on duty in hospital made a yadi to the Executive Magistrate for inquest panchnama mark 6/6. As per the same, he was present in the emergency treatment ward in government hospital and as the Executive Magistrate Mr. B.P.Chauhan arrived, the panchnama of the dead body was drawn in presence of two panchas - Jagdishbhai Sarmanbhai and Page 32 of 69 R/CR.A/405/2010 CAV JUDGMENT Harishbhai Nathabhai from 0-10 to 1-10 O'clock on 11/11/06. The dead body was identified by Vajshibhai Karshanbhai as the dead body of his brother. The entry of clothes and the injuries found on the dead body of a male person was made as per the particulars of the inquest panchnama and the dead body had been taken into custody to ascertain the reason of his death. He is shown the panchnama of Exh-21, in which his signature, along with two panchas and the Executive Magistrate are there. He received the yadi Mark 6/10, which is produced vide Exh-107. He had filled 'marnottar form' vide Mark 6/8 at the time of inquest, which is produced by him. The original is produced in this case vide Exh-22. Thereafter, he made a yadi Exh-23 and sent the dead body of deceased Gokal Karshan Karangiya to the medical officer Junagadh along with the inquest panchnama and inquest form (marnottar form) Exh- 21 and 22 respectively to perform the postmortem and the police constable was sent to get his clothes and blood sample and the dead body was sent for the postmortem. There is his signature in Exh-23, which is identified by him. Except this, he has not done any other thing and as he received a yadi of the hospital of Gokal Karshan, the same yadi was forwardede to PSO to conduct the investigation, which is produced vide Exh-108.

Page 33 of 69 R/CR.A/405/2010 CAV JUDGMENT

22. The prosecution has examined Punjabhai Somabhai Solanki (P.W.29) (Exh.110). This witness was in- charge of Police Station from 10.11.2006 at 20.00 hours till 08.00 hours on 11.11.2006. At that time, Shri S.N.Barot who was performing the duty as P.S.I. of 'B' Division Police Station, Junagadh received the information from the constable on Hospital duty that the complainant Rajashi Malde has been admitted in the Government Hospital for treatment. On receipt of the information, he went to the Government Hospital and took the complaint of the complainant Rajashi Malde. He had given the report with the original complaint for registering the offence u/s.302, 506 (2) etc. against the accused persons as per the complaint with the yadi of P.S.O. 'B' Division Police Station (Exhibit 85). As per the same, he registered the offence vide 'B' Division Police Station CR No. I - 0/06 against the accused Vajashi Ramshi, Mulubhai Markhi and Kalabhai Hameer Kachhot, Resident of Bamnasa Ghed at 01 : 45 o'clock at night on 11.11.06. He registered the original complaint vide exhibit 53 on 11.11.06 at 01 : 45 hrs and he put his signature therein. He has brought the complaint book today. As per the same, the copy of 0/06 is produced vide exhibit 87 in this case. The date and time of admitting the same are there and he had put his signature as P.S.O. As the offence being under the jurisdiction of Keshod Police Station, he made Page 34 of 69 R/CR.A/405/2010 CAV JUDGMENT the endorsement and signature for forwarding the same. He had made the endorsement for sending Exh. 85 with the authorized policeman Gopalbhai Jashamatbhai, Buckle No.350. The Police Inspector, Keshod has received the same. There is his signature in exhibit - 85. He had identified it. He had made the entry in station diary vide entry no.3 at 01 : 45 o'clock for registering the offence therein. It is in his handwriting. He had brought the original station diary. He produced the same. After making true copy, it is produced and given as Exh. 111. The papers which were attached with Exh 85, were sent to P.I. Keshod. As D.O. 4628/06, dtd.10.11.06 of the constable on hospital duty was received in his police station informing about receipt of dead body of Gokalbhai Karshan, he has made the station diary entry No.27/06, at 22:45 hrs. on back side thereof. He has made the endorsement to PSI of 'B' Division Police station Mr. Barot to conduct necessary procedure. His signature is there. It has been produced in this case vide exhibit 108. He had made the said entry in his handwriting. He has brought the said station diary. The entry is made on 10.11.06. He had produced the true copy thereof. It is produced vide exhibit 112. The papers at Sr. Nos.1 to 10 attached with exhibit 85 - the original complaint and the report to register the complaint of 0/06 thereof, a yadi for inquest, Inquest Panchnama, Page 35 of 69 R/CR.A/405/2010 CAV JUDGMENT Inquest Form, a yadi to perform the postmortem etc. papers were of Keshod Police Station, they have been sent with the policeman Gopalbhai. He has not undertaken any other procedure except as aforesaid.

23. The prosecution has examined Bharatbhai Babubhai Bhesdadiya (P.W. 30) (Exh.113). At the relevant point of time, this witness was serving as Deputy Mamlatdar, in Home Branch, Collector Office, Junagadh. He had brought the file of notification of Section 37(1) of Mumbai Police Act for Prohibition to Keep Arms, issued by the Additional District Magistrate, Junagadh. The Additional District Magistrate, Junagadh issued the notification dated 1.11.2006 for Prohibition to Keep Arms for the entire area of Junagadh District from 02.11.06 to 30.11.06. The signature of the Additional District Magistrate is there. The said notification which is shown at serial no.7, was sent to all the areas like Keshod, Veraval etc. falling under territorial limits of Junagadh District for publication and it has also been sent to Information Department for publication. It has also been sent to all the Mamlatdars and the Divisional Police Officers of Keshod, Mangrol and Veraval and also to Sub Divisional Magistrate. He has brought the said record and as per the same, the notification as per the section 37 (1) of Mumbai Police Act prohibiting to keep arms in the area including Page 36 of 69 R/CR.A/405/2010 CAV JUDGMENT Keshod City and Rural area of Taluka from 02.11.06 to 30.11.06 was issued and the xerox copy thereof is placed vide marked 6/36. He had produced the true copy thereof after doing xerox from the original. There is signature of Deputy Chitnis. He identified the same. It is produced vide exhibit 114. Thus, the notification of Prohibition to Keep Arms in the area of Keshod was in force from 02.11.06 to 30.11.06.

24. The prosecution has examined Rajeshbhai Jethabhai Parmar, (P.W.31)(Exh.118), who was the Investigating Officer in the case. He has deposed that while he was performing his duty as P.S.I. in Keshod Police Station on 11.11.06, the complaint vide Keshod Police Station C.R.No. I - 115/06 against Vajashi Bhairambhai, Mulubhai Markhibhai and Kalabhai Hameerbhai, Res. at :- Bamnala Ghed was registered at 04 : 15 o'clock in the early morning. The P.S.O., with yadi (Exh.86), has handed over further investigation, he took over the charge of the investigation. After taking the charge of investigation, he went to scene of offence at 08 : 00 o'clock in the morning on 11.11.06 and reached near the field of Kalabhai Hameer on the road leading to Aakha Village from Bamnasa. The panchnama was drawn in presence of the panchas Hardas Bheekha and Nathabhai Duda. He took the blood stained soil from the place where there were blood spots and the Page 37 of 69 R/CR.A/405/2010 CAV JUDGMENT controlled soil without blood from some distance in a tin box and affixed the slip bearing signatures of the panchas, after sealing it, the same was seized. That a scabbard of raxine of a knife was lying at some distance from the said place and he took it and placed the same in a cloth bag as per the particular of panchnama and it was seized after obtaining the signature of Panchas on the slip. Thereafter, while going to the field of Kalabhai Hameerbhai at the South leading towards Aakha Village from the scene of incident, the house is situated at the distance of about 61 feet from the blood spot and there is one tree and an electric lamp is hanging, which is found in working condition and the detailed panchnama in this regard had been drawn vide Exh 36 in presence of both the panchas. The panchas put their signatures on the first page and on the second page where it is completed and he put the signature as 'before me' and the said panchnama was completed at 09 : 30 o'clock and the F.S.L. officer was also with him, and he filled the inquest report vide mark 6/10 and the signature of F.S.L. Officer Mr. Bapodara as well as his signature is also there. It is produced vide Exh 119 respectively. Thereafter, on the same day, further statement of the complainant Rajashi @ Hariyo Malde Karangiya was recorded at the outskirt of village Bamnasa Ghed. The statement of the witness Mitesh Hardas was also recorded.

Page 38 of 69 R/CR.A/405/2010 CAV JUDGMENT

Rajashi @ Hariyo Malde had worn the shirt of light pink colour and it was blood stained. It was seized as per the particular of panchnama. Mitesh Hardas had worn the open shirt of gray colour and it was also blood stained and it was having the pocket. The said shirt was seized. There were blood stains on the left side and on the shoulder side of the said shirt. Both the shirts of muddamal article no.4 have been shown, they are the same. The panchnama vide exhibit 38 was drawn in presence of the panchas Keshav Karshan and Parbat Mulu. Thereafter, their signatures were obtained and he put the signature as 'before me'. He identified the same. He is shown the scabbard of knife vide muddamal article no.3 and the blood stained soil and the soil without blood vide muddamal article Nos. 1 to 3 and he has deposed that the said articles are the same which were seized.

25. Learned Counsel Mr. Nanavati with Mr. Dagli for the accused No.1 has vehemently contended that the accused No.1 is wrongly involved in the case. He has contended that looking to the evidence of P.W.18 - Rajshibhai Karangia (EXH. 52) and P.W. 19 - Mitesh Hardas Kachhot (EXH.59), it appears that they are the chance witnesses. He has contended that the alleged incident has occurred on 10.11.2006 at about 7.15 p.m. in the evening. He has contended that usually sun sets at about 6.00 O'clock in the month of November, and Page 39 of 69 R/CR.A/405/2010 CAV JUDGMENT therefore to identify the accused was not even possible. He has read the evidence of witnesses and contended that the motor cycle was driven by the deceased and both the injured persons were the pillion rider. He has contended that the story of the prosecution about the injury received by the deceased is not believable. He has read the evidence of witness Rajshibhai (P.W.18) and contended that in Para-41 this witness has deposed in cross-examination that after the incident they immediately informed Masribhai on phone. He has contended that the presence of Masribhai at the scene of offence creates doubt. He has also contended that looking to the evidence on the record the story of phone call also creates doubt. He has also read the evidence of Doctor who has examined the injured witnesses P.W.18 & 19 and contended that the injuries are self implicated. Learned Counsel Mr. Nanavati, has also vehemently contended that the accused No.1 is wrongly involved in this serious offence of murder. He has read the oral evidence of Rajashibhai Maldebhai (P.W.18) (Exh.52) and the oral evidence of Mitesh Hardas Kachhot (P.W.19)(Exh.59) and contended that looking to their evidence, it clearly appears that they are the chance witnesses. He has drawn the attention about the time of offence and contended that as per the say of the prosecution the alleged incident had occurred at about 7.15 P.M. on 10.11.2006. It was the month of November and in November the sun- sets at about 6.00 P.M., which means that during the Page 40 of 69 R/CR.A/405/2010 CAV JUDGMENT time of alleged incident there was totally darkness and the identity of the appellant - accused No.1 was not even possible. He has contended that the story of the prosecution case that the deceased was driving the motor cycle and both the injured persons were the pillion rider and the accused have attacked on them is not believable. He has contended that presence of Rajashibhai (P.W.18) at the scene of offence creates doubt. He has contended that the story of phone call creates doubt. He is got-up and tutored witness. He has read the evidence regarding the direction of the motor-cycle and contended that said situation is also creating doubt regarding trust- worthiness of the evidence of injured witness. He has read the medical evidence and contended that looking to the injuries received by P.W.18 and P.W.19, they are self inflicted. He has contended that the case of the prosecution is based upon the evidence of complainant Rajshibhai and in-fact if his evidence, coupled with the evidence of Mitesh Hardas, is perused, it is apparently clear that there are contradictions with regard to involvement of the accused, use of weapons by the accused as also the role played by the accused. He has contended that looking to the record, it clearly appears that at the time of incident, Rajshibhai and Miteshbhai were not even present. The injury alleged to have been received by Rajshibhai and Miteshbhai are Page 41 of 69 R/CR.A/405/2010 CAV JUDGMENT absolutely super fluous in nature and the same can be caused by self implication. He has contended that the story of snatching of golden chain is also not proved by leading the evidence. He has contended that from the place of offence golden chain was not recovered. He has contended that as per the say of prosecution witnesses, the blow of axe was given on the back side of head of deceased Gokalbhai. However, no injury was found on the head of deceased Gokalbhai. He has contended that two witnesses Rajshibhai and Miteshbhai, stated to be the eye witnesses and injured witnesses but in fact, are created, concocted and got-up witnesses. He has contended that even the medical evidence does not support the say of witnesses Rajshibhai and Miteshbhai. He has contended that the case of the prosecution is that three accused stated to have used their weapons and inflicted number of blows, however, before the Doctor, names of two accused were not shown and subsequently they were sought to be implicated. It was also put to the doctor that whether any names were disclosed when the history was given and it has been specifically stated by the Doctor that except one, no names were disclosed. Therefore, it is clearly established that the names of two accused were subsequently implicated. He has contended that the the place of incident is also changed. He has contended that witness Rajshibhai Page 42 of 69 R/CR.A/405/2010 CAV JUDGMENT has stated that the incident took place near the Vadi of Karabha Policewala and Mulubhai had inflicted one blow of axe on the head of deceased Gokalbhai and thereafter all have given one after the other blow. He has contended that at the place of incident, as alleged by the witnesses, the motorcycle was not found and even no wheel marks were found near the place of incident as alleged by the witnesses and, therefore, the entire case is got up and concocted one so far as the place of incident as alleged by the witnesses is concerned. He has contended that the Panchnama was also not drawn and that motorcycle is also not recovered. He has contended that as per oral evidence of P.W.18, before 6 months from the date of alleged incident, some quarrel took place between Vajshi Mulu and Gokalbhai and complaint was also lodged. He has contended that Vashibhai has hired the tractor of Gokalbhai for the purpose of filling the earth and for the said work the amount of Rs.15,000/- was agreed to be paid to Gokalbhai and for that purpose some quarrel took place between Vashibhai and Gokalbhai and in that connection due to interse dispute, the present appellant - accused No.1 is wrongly booked in the present case. Even from the evidence it is clearly established that there was no friendship between the injured persons and the deceased. He has further contended that no witnesses are examined who carried the deceased to Page 43 of 69 R/CR.A/405/2010 CAV JUDGMENT the Hospital from the place of offence. He has contended that if the evidence produced before the Court is appreciated, it clearly appears that no head injury on the head of Gokalbhai is noticed. The medical certificate does not even support the theory of the prosecution. In the Post Mortem Note also no injury was shown which can be caused by weapon like axe and, therefore, the story that after giving first blow of axe, the other accused joined and the story of prosecution afterwards does not get support and corroboration from the evidence of the prosecution to the effect that that one after another, other blows were inflicted by knife and axe on the deceased. On the contrary, it has falsified the entire version about the manner and method in which the incident is said to have occurred. He has contended that, in the facts and circumstances, when the very base of the case of the prosecution is found to be created and concocted and not getting support from any other witnesses, the learned Judge ought not to have passed the impugned order of conviction. He has contended that even the prosecution could not collect any material to substantiate that whether the Vadi belongs to Karabhai Policewala or not and whether his Vadi is situated near the place of incident as stated by the witnesses. He has contended that at every stage the witnesses have tried to improve the version and tried to substantiate Page 44 of 69 R/CR.A/405/2010 CAV JUDGMENT the version by submitting the facts which are not there. He has contended that at every stage the witnesses have tried to give different version by submitting a story which is favourable to them and also moulded the story as required by the prosecution. If the entire story is examined, it appears that the prosecution has miserably failed to prove the charge leveled against the accused. He has, therefore, contended that the Judgment and order passed by the learned Judge in convicting and sentencing the accused as aforesaid is illegal and unjust and, therefore, the same requires to be quashed and set aside and the accused requires to be acquitted in the interest of justice.

26. Learned Counsel Mr. Singh, appearing with Ms. Nisha Parikh, for the appellant - original accused No.2 in Criminal Appeal No.405 of 2010 has contended that as per the deposition of P.W.18, in Para-2, he has clearly deposed that the reasons of the alleged incident was that before 6 months some quarrel took place between deceased Gokalbhai and Vajshibhai, which clearly reveals that there was dispute between the accused No.1 and deceased Gokalbhai and it has no connection in any way with the present accused No.2. Therefore, it clearly appears that the present appellant - accused has been wrongly involved in the alleged incident. He Page 45 of 69 R/CR.A/405/2010 CAV JUDGMENT has contended that looking to the prosecution story the witnesses are highly interested witnesses and they have exaggerated the story. From the record, it clearly appears that they have not seen the incident and even the so called injured eye-witnesses have not given the name of other two accused before the Doctor. He has contended that the injuries on the body of injured eye witnesses were found to be self inflicted. He has contended that there are number of contradictions, exaggeration and omissions in the depositions of the witnesses. The statement of the witnesses have been recorded at a belated stage. The medical evidence does not support the case of the prosecution. The prosecution case is that the accused had inflicted the blow by axe on the head of the deceased and due to that the deceased and the injured witnesses fell down, but, looking to the medical certificate no injury is found on the head of the deceased. He has contended that the motorcycle was also not found from the place of alleged incident. He has contended that the Panchas have also not supported the case of the prosecution. He has contended that not a single independent witness has supported the case of the prosecution. He has contended that at every stage, the witnesses have tried to give different version by submitting a story which is favourable to them and also moulded the story as required by the prosecution. He has Page 46 of 69 R/CR.A/405/2010 CAV JUDGMENT contended that as per the deposition of P.W.18, it appears that he had called Masribhai on mobile. The other persons Raju Bapu came with Maruti Van, Amit Govind and Vajsi Karsan, Laxman Narang and Kana Narang were the persons who came to the place of incident were either relatives of P.W.18 or were from the group of P.W.18, but, they were not the family members of the deceased. He has contended that even the information was not given to the family members of the deceased about the incident before taking Gokalbhai to Junagadh Hospital with the help of aforesaid persons and even no family members of the deceased had accompanied the injured to the Hospital. The natural conduct of the witnesses would be to inform the family members and after family members of the deceased arrive, the injured could be taken to the Hospital. He has contended that as per the say of injured the motorcycle of Gokalbhai was there, but either of the two witnesses did not go by motorcycle to call the family members of the deceased. He has contended that P.W.18 and P.W.19 have stated that Vajsi Ramsi had caused injury to them by knife, but the name of appellant - accused Mulubhai was never disclosed by both the witnesses before the doctor who treated them. He has contended that P.W.2 - Dr. Prafulaben who had carried out the postmortem of the deceased, has clearly deposed in Para - 5 (Page Page 47 of 69 R/CR.A/405/2010 CAV JUDGMENT

49) that there was no injury found on the head of the deceased and at Page - 51 she has further deposed that the injuries on the deceased were possible by any sharp edged weapon. She has admitted in her deposition that she could not say with confidence that the injuries were caused only by the weapons which were shown to her in the court. Learned Counsel has contended that there was political rivalry between the group of P.W.18 and Masribhai on one side and the accused on the other side and as the accused had supported the Congress Party's candidate in the panchayat election, he has been falsely involved in the present case. Thus, the false implication of accused No.2 (appellant) clearly becomes evident because of political rivalry. He has further contended that there is no recovery or discovery from the present appellant - accused No.2. He has contended that the two pairs of bloodstained cloths have been recovered from the carrier of motorbike which were belonging to the accused No.1 and only in the Panchnama, the accused No.2 was alleged to have been shown present along with accused No.1 after 5 days of the incident. He has contended that the alleged incident had taken place on 10.11.2006, while the alleged recovery of cloths were made on 16.11.2006 and, therefore, it is not probable that accused No.1 would carry bloodstained clothes in the carrier of his motorcycle.

Page 48 of 69 R/CR.A/405/2010 CAV JUDGMENT

He has contended that so far as discovery is concerned, the axe has been discovered at the instance of accused No.1 alone and not at the instance of accused No.2 which creates serious doubt of false implication of accused No.2. He has contended that even from the FSL Report the prosecution has failed to prove the case against accused No.2. He has contended that the prosecution had seized the cloths from the accused by seizure panchnama dated 16.11.2006 and similarly the axe/knife is seized from accused No.1 on 18.11.2006, whereas the aforesaid seized articles were sent to FSL on 16.12.2006 which can be seen at Page - 594. Due to long delay, spilling of blood through injection of the deceased blood group cannot be ruled out. He has, therefore, contended that if the entire story is perused, it appears that the prosecution has miserably failed to prove the charge leveled against the accused. He has, therefore, contended that the view taken by the learned trial Judge in passing the order of conviction and sentence is illegal and unjust and, therefore, the same requires to be quashed and set aside in the interest of justice.

27. Learned Senior Counsel Mr. Thakkar, appearing for the appellant - original accused No.3 has contended that looking to the evidence of the complainant - eye Page 49 of 69 R/CR.A/405/2010 CAV JUDGMENT witness (P.W.18) Rajshi it clearly appears that the accused No.3 was never seen with the other accused and even according to the prosecution case the dispute was between the deceased and Vajshibhai (Accused No.1). Thus, the accused No.3 had no motive to commit the alleged crime. Even in the medical history, names of accused No. 1 and accused No.2 were given by Rajshi (P.W.18). It is interesting to note that medical history of deceased and the complaint is given by the same person (P.W.18) Rajshi, but he did not give the name of accused No.3 to Dr. Buch (P.W.1) at 10.15 P.M. On 10.11.2006, but he mentioned the name of accused No.3 in the complaint at 11.50 P.M. on the same day. He has contended that the evidence of both P.W.18 & 19, who are stated to be injured eye-witnesses, are not trustworthy and they are not reliable. Mr. Thakkar has read the medical Certificate (Exh.15)(Page-485) of injured Rajshi Malde and the medical certificate (Exh.18) (Page-493) of injured Mitesh Hardas and contended that in the said Certificates name of accused No.3 is not mentioned. He has contended that looking to the dispatch note (Page - 591) and the FSL Report (Page - 601) no blood stains on the alleged weapon and clothes were found. He has contended that no specific role is attributed to the accused No.3. He has contended that due to political rivalry the accused has been falsely implicated in the Page 50 of 69 R/CR.A/405/2010 CAV JUDGMENT commission of offence. He has contended that after the alleged incident, Masaribhai (P.W.20), Samat Govindbhai (brother of Masaribhai), Kana Naran (P.W.22), Lakhaman Naran and Rajabapu Bavaji (P.W.23) came to the place of incident. They belong to one political party and they have animosity with the accused. He has contended that all the witnesses are either relatives of witness having enmity with the accused or have direct enmity with the accused. He has contended that both the eye witnesses have never informed the real brother Vajshibhai (P.W.18) and he came to know about the alleged incident from village talk. He has contended that no specific time is given and there are contradictions regarding the time. The time of death of deceased is not coming out from any evidence on record including the postmortem report. He has, therefore, contended that looking to the overall evidence as well as medical evidence, it clearly appears that the accused No.3 is wrongly booked by the prosecution in the commission of alleged offence. He has, therefore, contended that if the entire story is appreciated, it appears that the prosecution has miserably failed to prove the charge leveled against the accused. He has, therefore, contended that the view taken by the learned trial Judge in passing the order of conviction and sentence is illegal and unjust and, therefore, the same requires to be quashed and Page 51 of 69 R/CR.A/405/2010 CAV JUDGMENT set aside in the interest of justice.

28. Learned APP Mr. Jani for the State in both the Appeals has drawn the attention of this Court to Exh.53 and contended that it is a cryptic and police has reported to the Court of learned JMFC, Keshod. He has contended that the first information was recorded and it was transferred to the concerned Police station. He has gone through Page - 519 and read the time of registration of offence and contended that in light of evidence produced on the record it cannot be said that there were 2 F.I.Rs, and that first FIR was not brought on the record. He has contended that the learned trial Judge has considered the evidence produced by the prosecution very minutely and sufficient and sound reasons are given in the Judgment to believe the same. He has read the oral evidence of P.W.18 and 19 and contended that both the witnesses are injured witnesses. Their presence at the scene of offence is natural and looking to the medical evidence also, the injuries are proved beyond reasonable doubt. He has contended that looking to the oral evidence as well as medical evidence, it clearly appears that the injuries received by the injured witnesses are not self inflicted and, therefore, it cannot be said that the injured witnesses are unreliable and not trustworthy. He has Page 52 of 69 R/CR.A/405/2010 CAV JUDGMENT contended that at the place of offence, the presence of the accused is prima-facie established beyond reasonable doubt and the role and conduct is also proved beyond reasonable doubt. He has also read the cross examination of the witnesses and contended that accused could not established their defence properly. He has read the evidence of the witnesses and contended that the accused No.3 has not proved the defence of alibi and that aspect cannot require consideration qua the role of the accused No.3. He has read the evidence of P.W.24 (Ex.75) and contended that on the date of incident, the accused No.3 was not present on duty. He has read over the contents of discovery panchnama of cloths and also read over the FSL report and contended that even in the statement under Section 313 Cr.P.C., which are recorded before the learned trial Judge, the accused have never explained in their further statement under Section 313 Cr.P.C. about their false implication in the commission of offence and, therefore, the presumption is required to be drawn against the accused persons. He has further contended that the evidence of both the injured witnesses gets sufficient corroboration from the medical evidence and, therefore, injuries received by the injured persons are proved beyond reasonable doubt. He has contended that though the blood could not be found from the muddamal knife Page 53 of 69 R/CR.A/405/2010 CAV JUDGMENT used by the accused No.3, even then, his presence at the place of offence is proved beyond reasonable doubt. He has contended that presence of all the accused is proved through the oral version of injured witnesses and even in cross examination also when the defence could not be able to establish its case then the Judgment and the order of conviction passed by the trial Court cannot be discarded. He has, therefore, contended that looking to the facts and the evidence on the record, the prosecution has established its case beyond reasonable doubt and the the learned Judge has not committed any error in holding the accused guilty for the offences alleged against them and, therefore, no interference is required to be called for.

29. We have heard the learned Counsel for the parties at length. We have also considered the oral as well as documentary evidence adduced by the prosecution. We have also gone through the Judgment and order of the trial Court.

30. We have gone through the evidence of injured witnesses PW 18 & PW 19. Looking to the evidence, it clearly appears that both the injured witnesses were present with the deceased at the place of incident. As per their evidence, the motor cycle was driven by the deceased, it was in motion. The head Page 54 of 69 R/CR.A/405/2010 CAV JUDGMENT light of the motor cycle was also on. It is also evident from the record and the panchnama of place of offence that in a light of bulb which was there on the Vadi, they have seen the accused. Looking to the time of incident, it appears that darkness was not such that much enough so that the accused could not be identified. The accused as well as the witnesses are of the same village. It appears that the village is a small village and usually the persons residing in the village meet frequently and, therefore, even if it is presumed that there was some darkness, the accused could be identified. Therefore, there were all possibilities for the witnesses to identify the assailants. It also appears from the record that so far as the role attributed to the accused No.1 and 2 and presence of accused No.3 is concerned, it is fully supported by the injured witnesses as well as by the Investigating Officer. Therefore, the arguments advance by the learned Counsel for the appellant - accused can not create doubt regarding the identification of appellants - accused and the role attributed to them. The injuries on the person of the deceased as well as the injuries received by the injured persons have been fully supported by the medical evidence. The medical officers are public servants and they are independent witness and they have no reason to falsely implicate the present appellants in Page 55 of 69 R/CR.A/405/2010 CAV JUDGMENT commission of offence. Looking to the evidence of witnesses, it clearly appears that the witnesses are not concocted or the chance witnesses. We have also minutely examined the oral version of P.W.20 Masribhai, whose evidence is fully supported by P.W.18, 19 and 21 and even in their cross examination, they have fully supported the version of the prosecution. Therefore, considering the evidence as a whole, the presence of Accused No. 1, accused No.2 and accused No.3 is established which is also supported by the oral evidence of medical experts. From the evidence on the record, it clearly transpires that there was common intention of accused Nos. 1, 2 & 3 to commit alleged offences. The prosecution has established that there was common intention to commit offences. Even the injuries sustained by P.W.18 & 19, as per the opinion of medical expert, are not self inflicted. We have minutely examined the case history of both the witnesses through which prosecution has proved specific role of Accused Nos.1 & 2. We have compared the external and internal injuries received by the deceased and as per evidence of Dr. Dhabariya, (Exh. 20) who has disclosed injuries in the postmortem note (Exh.24), the cause of death and the same is fully corroborated by the oral as well as documentary evidence of medical officer and the eye witnesses. As per the opinion of medical Page 56 of 69 R/CR.A/405/2010 CAV JUDGMENT officer all the injuries were possible by muddamal knife and Axe. We have also perused the panchnama of weapons and looking to the size of the blade of knife and the injury found on the body of the deceased, it can be said that the deceased must have received the injury from the muddamal weapon and the axe which were used by the accused No.1 & 2. We have also gone through the serological report from which the blood group was found on the clothes of the deceased and that of accused Nos. 1 &

2. We have compared external as well as internal injuries and the opinion of medical expert regarding cause of death, the same is fully corroborated by oral and documentary evidence of Doctor and the eye witnesses, and both the injuries were possible by the weapon like knife and axe.

31. So far as role and involvement of the accused No.3 is concerned, it appears from the record and from the deposition of the witnesses, more particularly P.W.18 & 19, that the role and presence of accused No.3 is established. Even from the weapon alleged to have been used by this accused and also the clothes of accused, the prosecution has established incriminating evidence against the accused No.3. The prosecution has established circumstantial evidence to prove the role and the involvement of accused No.3. Looking to the overall oral as well as Page 57 of 69 R/CR.A/405/2010 CAV JUDGMENT documentary evidence, the presence of accused No.3 on the spot with co-accused is proved beyond reasonable doubt.

32. Looking to the facts and circumstances of the case it clearly appears that there was common intention of accused No.1, 2 & 3 which is proved beyond reasonable doubt.

33. Though the discovery made from the accused No.1, through Exh.124 discovery panchnama of muddamal Axe and knife in which human blood of the deceased has been found from the weapon.

34. Recently, the present Division Bench of this Court has decided Criminal Appeals No.27 of 2010 with Criminal Appeal No.267 of 2010, in which this Court in Paragraphs 22, 23, 24 & 25 has observed as under :

"PARA - 22 -

At this stage, we may make useful reference to the observations made by he Apex Court in its decision in the case of Jagroop Singh v. State of Punjab, reported in AIR 2012 SC 2600, which was also a case based on circumstantial evidence. In the said Page 58 of 69 R/CR.A/405/2010 CAV JUDGMENT decision at paragraphs 28, 29 and 30, the Apex Court observed, thus:-

"28. In the case at hand, the accused persons were arrested after 18 days and recovery was made at that time. The blood stain found on the weapon has been found in the serological report as human blood. In the case of Sattatiya (supra), the recovery was doubted and additionally, non-

matching of blood group was treated to be a lacuna. It is worth noting that the clothes and the weapon were sent immediately for chemical examination. Here the weapon was sent after 18 days as the recovery was made after that period. The accused have not given explanation how human blood could be found on the spade used for agriculture which was recovered at their instance. In this context, we may profitably reproduce a passage from John Pandian v. State Represented by Inspector of Police, Tamil Nadu [22] :-

"The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case."

29. Thus viewed, we do not find any substantial reason to disbelieve the disclosure statement and the recovery of the weapon used. It is apt to mention here that the doctor, who has conducted the post mortem, has clearly opined that the injuries on the person of the deceased could be caused by the weapon (blade of such spade) and the said opinion has gone unrebutted.

30. Another aspect is to be taken note of. Though the incriminating circumstances which point to the guilt of the accused had been put to the accused, yet he could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial. In State of Maharashtra v. Suresh[23], it has been held that when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the Page 59 of 69 R/CR.A/405/2010 CAV JUDGMENT accused has not given any explanation whatsoever as regards the circumstances put to him under Section 313 of the Code of Criminal Procedure."

PARA - 23 We may also make useful reference to the decision of the Apex Court in the case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, reported in (2005) 11 SCC 600 on the aspect of scope and ambit of Section 27 of the Evidence Act.

In the said decision, the Apex Court after considering its earlier decisions observed at paragraphs 142, 143, and 144 as under:-

"142. There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section

27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant-accused to the spot, it will have no bearing on the Page 60 of 69 R/CR.A/405/2010 CAV JUDGMENT point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.

143. How the clause "as relates distinctly to the fact thereby discovered" has to be understood is the next point that deserves consideration. The interpretation of this clause is not in doubt. Apart from Kotayya's case, various decisions of this Court have elucidated and clarified the scope and meaning of the said portion of Section 27. The law has been succinctly stated in Inayatullah's case (supra). Sarkaria, J. analyzed the ingredients of the Section and explained the ambit and nuances of this particular clause in the following words: (SCC p.832, para 12) "The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word 'distinctly' means 'directly', 'indubitably', 'strictly', 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly relates to the fact thereby discovered' is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered." (emphasis in original) In the light of the legal position thus clarified, this Court excluded a part of the disclosure statement to which we have already adverted.

144. In Bodhraj Vs. State of J & K [(2002) 8 SCC 45] this Court after referring to the decisions on the subject observed thus: (SCC p. 58, para 18) "The words "so much of such information", as relates distinctly to the fact thereby discovered are Page 61 of 69 R/CR.A/405/2010 CAV JUDGMENT very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate"

PARA - 24 We may further make useful reference to the decision of this Court in the case of Vinugiri Motigiri v. State of Gujarat, reported in 2002(1) GLR, 702, wherein this Court had an occasion to consider the question that if the panchas have turned hostile, whether the fact disclosed and the incriminating material could be considered with the aid of the testimony of the police officer or not. This Court, at paragraph 24.2, observed thus:-

"24.2 It was submitted that since the panch witnesses have turned hostile, the Court cannot rely on the evidence of discovery. This submission is erroneous, because, as held by the Supreme Court in Modan Singh v. State of Rajasthan, reported in AIR 1978 SC 1511, if the evidence of the 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. In a recent decision of the Supreme Court in State, Government of NCT of Delhi v. Sunil, reported in (2001) 1 SCC 652, while considering the provisions of section 27 of the Evidence Act, and section 114 Ill.(e) thereof, the Supreme Court has held that there is no requirement either under section 27 of the Evidence Act or under section 161 of the Criminal Procedure Code to obtain signature of independent witnesses on the record in which statement of an accused is written. The obligation to call independent and Page 62 of 69 R/CR.A/405/2010 CAV JUDGMENT respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. It was held that it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused, the document prepared by the investigating officer contemporaneous with such recovery must necessarily be arrested by the independent witnesses. It was held that if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. The Court observed that, it is an archaic notion that actions of the police officer should be approached with initial distrust and that it is not a legally approvable procedure to presume the police action as unreliable to start with, and to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. It was held that when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. In the present case also, we find that the version given by the police officer about the discovery of the weapons at the instance of the accused persons is reliable and re-assures the evidence of the prosecution witnesses who have deposed as to the participation of the accused persons in the crime. Even without these discovery panchnamas, as noted by us hereinabove, there is reliable evidence to connect all these accused with the crime, and, their evidence is sufficient to hold that these accused persons had formed an unlawful assembly and with a view to achieve their common object of intentionally causing death of deceased Hareshbhai they had on 15-9-1992 around 9.30 in the morning, attacked him with knives and a gupti and caused eighteen incised wounds which resulted in his death."

Page 63 of 69 R/CR.A/405/2010 CAV JUDGMENT

PARA - 25 The aforesaid shows that the recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. Further, the Court has to consider the evidence of the Investigating Officer, who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. It is an archaic notion that actions of the police officer should be approached with initial distrust and that it is not a legally approvable procedure to presume the police action is unreliable to start with, and to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. The aforesaid further shows that if a police officer gives evidence in the Court that certain articles were recovered by him on the strength of the statement made, it is upon the Court to believe the information to be correct, if it is otherwise shown not to be unreliable.

35. We have carefully perused the evidence of Investigating Officer (P.W.32) (Exh.122) as well as the contents of discovery panchnama of weapons Axe and knife (Exh.125) and also the recovery panchnama (Exh.123 and 124) through which Page 64 of 69 R/CR.A/405/2010 CAV JUDGMENT muddamal articles are discovered/recovered as well as the Serological Report from F.S.L. (Exh.135) from which it is, prima-facie, established that muddamal weapons are used by accused. The same is also identified by the witnesses, P.W.18, P.W.19 and P.W.32 and also through the evidence of injured, which clearly suggest the role of each accused and the muddamal used by them. The same is also supported by the Medical Officer (P.W.1) (Exh.14) and (P.W.2) (Exh.20) who have found the injuries from the body of deceased and the injured witnesses. In the opinion of these witnesses the injuries found on the person of deceased as well as injured, are possible by the weapons recovered under the discovery/recovery panchnama.

36. Considering the oral as well as documentary evidence in its entirety and legal position discussed above, in our opinion, the prosecution has successfully brought home the charges leveled against Accused Nos. 1, 2 & 3. The motive is also proved by the prosecution so far as accused Nos. 1, 2 & 3 are concerned. Their overt act is supported by depositions of prosecution witnesses as well as by medical evidence. The story of the prosecution is established by the conduct of Accused Nos. 1, 2 & 3, the time and place chosen by them to commit offence. Thus, accused Nos. 1 & 2 were having common intention to commit murder of deceased Page 65 of 69 R/CR.A/405/2010 CAV JUDGMENT and in furtherance of their common object and intention, they intercepted the motorcycle and inflicted injuries on the deceased and injured witnesses. Number of injuries caused to deceased and the weapon used by accused Nos.1, 2 clearly reveals their intention to kill the deceased. Under the circumstances, the Judgment and the order of conviction and sentence passed by the learned trial Judge so far as accused Nos.1 & 2 are concerned, is absolutely just, legal and proper and supported by oral as well as documentary evidence. We are fully in agreement with the view taken, reasons given and conclusions arrived at by the learned trial Judge for convicting and sentencing the accused Nos.1, 2 as aforesaid and, therefore, no interference is called for and the same requires to be upheld.

37. So far as accused Nos.3 is concerned, from the deposition of prosecution witnesses and more particularly P.W.18 and 19 (injured witnesses), it clearly reveals that the prosecution has proved beyond reasonable doubt the presence of accused No.3 at the scene of offence. It is brought on record that at first instance, the role and presence of accused No.3 is disclosed by the complainant - injured eye witness and the same is also reflected in medical papers. The deposition of prosecution witnesses is also clear on the specific act attributed to accused No.3 and incriminating material is Page 66 of 69 R/CR.A/405/2010 CAV JUDGMENT brought against accused No.3. As discussed earlier, there was quarrel between the deceased and one of the accused regarding payment of rent of tractor. It is further brought on record that there was animosity between them due to panchayat election. In this background and when presence of accused No.3 is also established beyond doubt, it can be said that any of the accused are not falsely implicated in the offence. The prosecution has established beyond doubt that all the accused were involved in the commission of offence and have participated in furtherance of common intention of the accused Nos. 1, 2 & 3 to complete the criminal conspiracy hatched by all of them.

38. In view of above, in our view, the learned trial Judge has not committed any error in law and facts in passing the impugned Judgment and order of conviction and sentence against all accused and hence, the same requires to be upheld. Hence upheld. However, the learned Judge has not recorded specific reasons for not extending the benefit of Section 428 Cr.P.C. Considering the facts and circumstances of no past record for crime by any of the accused, we find that all sentences can be ordered to be undergone concurrently and the period undergone as under-trial prisoner be given set of. Hence, we direct that all the sentences imposed upon each of the accused shall be Page 67 of 69 R/CR.A/405/2010 CAV JUDGMENT undergone and run concurrently and will be entitled to benefit of Section 428 Cr.P.C.

39. In the result, Criminal Appeal No.405 of 2010 preferred by accused No.2 - Mulubhai Markhibhai Nandaniya, challenging the Judgment and the order dated 16.1.2010 passed by the learned Additional Sessions Judge, Junagadh in Sessions Case No.14 of 2007 is partly allowed to the aforesaid extent only. The accused No.2 is on bail and, therefore, his bail shall stands cancelled. He is directed to surrender before the Jail Authority within a period of 8 weeks from today, failing which non-bailable warrant shall be issued against him.

40. Criminal Appeal No. 459 of 2010 preferred by Vajshibhai Ramshibhai Kachhot and Kalabhai Hamirbhai Kachhot, original accused Nos. 1 & 3 respectively, against the Judgment and the order dated 16.1.2010 passed by the learned Additional Sessions Judge, Junagadh in Sessions Case No. 14 of 2007, is partly allowed to the aforesaid extent only.

41. Bail bonds, if any, shall stand cancelled.

42. In view of the Judgment and the order passed in above mentioned Criminal Appeals, Criminal Misc. Application No.20560 of 2013 in Criminal Appeal No.405 of 2010 would not survive. Disposed of accordingly.

(JAYANT PATEL, J.) Page 68 of 69 R/CR.A/405/2010 CAV JUDGMENT (Z.K.SAIYED, J.) SAS Page 69 of 69

Legal Document View

Unlock Advanced Research with PRISMAI

Gujarat High Court

Mulubhai Markhibhai Nandaniya vs State Of ... on 9 May, 2014

Bench: Jayant Patel, Z.K.Saiyed