Gujarat High Court
State Of Gujarat vs Ashok Shaktidan Gadhvi & ... on 29 April, 2015
Bench: Akil Kureshi, Vipul M. Pancholi
R/CR.A/604/1992 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 604 of 1992
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
ASHOK SHAKTIDAN GADHVI & 3....Opponent(s)/Respondent(s)
=============================================
Appearance:
MR VIJAL P DESAI, ADVOCATE for the Appellant(s) No. 1
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 4
MR AD SHAH, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR MJ BUDDHBHATTI, ADVOCATE for the Opponent(s)/Respondent(s) No. 2
MR SUDHANSHU S PATEL, ADVOCATE for the Opponent(s)/Respondent(s) No.
3
=============================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 29/04/2015
Page 1 of 44
CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM
R/CR.A/604/1992 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. State has preferred this appeal against the judgment and order dated 13.02.1992 rendered by learned Sessions Judge, Ahmedabad City in Sessions Case No.418 of 1988, whereby, the learned Sessions Court has acquitted the respondents accused for the charges levelled against them, for the offences punishable under Sections 307 read with Section 34 and 120B of IPC, under Section 25(1)(c) of the Arms Act as well as under Section 37(1) read with Section 135 of the Bombay Police Act.
2. The prosecution case in brief is that the some amount of complainant Dilip Tolaram Revnani was due from accused No.1 - Ashok Shaktidan Gadhvi. However, accused No.1 was not inclined to give the money to the complainant and therefore accused No.1 along with the other accused hatched a conspiracy at the residence of accused No.2 and thereby decided to kill the complainant by crushing him with car and decided to use revolver and knife for the said purpose. It is alleged by the prosecution that with a view to achieve the said illdesign will of the accused, on 09.07.1987, during late night hours, the complainant was brought in a car bearing No.GBA657 from theater and accused No.1 dropped the complainant near Sahjanand Circle and proceeded towards Nehrunagar Cross Roads in his car. Thereafter, accused Nos. 3 and 4 came at the said place in uniform. The accused Nos. 3 and 4 caught hold the complainant after he got down from the car and Page 2 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT started beating him. When both the accused Nos. 3 and 4 were beating, accused No.1 drove his car in full speed with a view to crush him by colliding and at that time the complainant escaped from the custody of those two assailants and started running towards Nehrunagar Cross Roads. It is further alleged by the prosecution that accused No.1 stopped his car and shouted that he should be finished. Therefore, the complainant started running fast and he heard the noise of firing. Accused No.3 came near and gave a kick and accused No.4 overtook him and fired shots from revolver. Thereafter, accused No.3 inflicted blows with knife on different parts of the body of complainant. Thereafter, the complainant shouted for help. Thus, the accused have committed the offence punishable under Sections 307, 34, 120B of IPC and under Section 25(1)(c) of the Arms Act and under Sections 37(1) and 135 of the Bombay Police Act.
3. After the registration of the FIR, the Investigating Officer carried out the investigation and filed the chargesheet against total six accused. However, from the record, it appears that original accused No.5 - Altaf Husein Valimohmad Momin and accused No.6
- Hanubhai Samatbhai Gadhvi were discharged by the learned Additional City Sessions Judge, by an order dated 22.06.1989. Thereafter, trial was proceeded against the remaining four accused. During the course of the trial, the prosecution examined 21 witnesses and produced documentary evidence on record. At the end of the trial, learned trial Court acquitted the remaining four accused for the charges levelled against them. At this stage, it is to be noted that during the pendency of this appeal, accused No.4 -
Page 3 of 44CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT respondent No.4 herein i.e. Mansinh Dilipsinh Solanki died on 19.09.2007 and copy of the death certificate of the said accused was placed on record. Hence, the appeal is abetted qua respondent No.4 - original accused No.4.
4. During the course of trial, the prosecution has examined the following witnesses:
MEDICAL EVIDENCE :
5. Prosecution has examined P.W.2, Dr. Vashantkumar Hemchand Vaniya at Exh.31. The said witness deposed that he was working as tutor in anatomy branch of B.J.Medical College. On 09.07.1987 patient Dilipbhai was referred for examination and treatment. Doctor Dhruvbhai referred the said patient. During examination of the said witness, following injuries were found on the body of patient Dilipbhai.
"1. Incised wound 2x2 cm Lt. Axilla at 5th & 6th space
2. Incised wound 3x2 cm Rt. Inter scapular region
3. Stab wound 2x2 cm Epigastric region
4. Stab wound 2x1 cm Rt. inter scapular region
5. Stab wound 2x1 cm Lt. mid thigh & Lt. side of mid thigh
6. Stab wound 2x2 cm Lt. fossae"
5.1. The said witness deposed that when he was examining the patient, the patient was conscious and plural cavity of right lung Page 4 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT was full of blood. Necessary treatment was given to the patient. Patient was admitted in the hospital from 09.07.1987 to 31.07.1987 and he was discharged on 31.07.1987. He further deposed that injury Nos. 1, 2 and 3 could have been caused with sharp cutting weapon, whereas other injuries could have been caused with sharp edged weapon. Injury Nos. 1 and 2 could have been caused with Muddamal Article 12 knife and other injuries also could have been caused with Muddamal Article 12 knife. The said witness issued the injury certificate which is produced at Exh.32.
5.2. During his crossexamination, the said witness deposed that when he had examined the patient, bullet injuries were not found. Patient was referred to him with a view to examine the injuries sustained by the patient on his chest. No written instruction was given to him to examine the injuries which were sustained by the patient on the thigh. He had described three other injuries sustained by the patient on the other parts of the body except chest. He described all the injuries sustained by the patient on his body in the certificate Exh.32. He had stated about the length and width of the injuries in his certificate. However, he did not mention about the depth of the injuries. Injury Nos. 1, 2 and 3 were superficial in nature, whereas, the other injuries were deep. Except injury Nos. 1 and 2 all the other injuries could have been caused with Muddamal Article 12 knife. He has further stated in his crossexamination that during his examination he could not find injury on the vital part of the body of the patient. The said witness issued a medical certificate of injuries sustained by the complainant Dilip Tolaram Ravnani. The said certificate has been produced at Exh.32. In the Page 5 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT said certificate, the said witness has stated that "alleged history of bullet injury on abdomen and multiple stab injuries all over the body"
6. The prosecution examined P.W.7 - Dhruv Bhupendraprasad Vyas at Exh.40. This witness was working as Registrar with Surgical Unit 3 at V. S. Hospital. On 09.08.1987, he was on duty for 24 hours. On that day, at about 1:40 a.m., patient named Dilip Tolaram Ravnani was brought at emergency ward in V.S.Hospital without police yadi. He had examined the patient. The history given by the patient was that he had bullet injury on abdomen and multiple stab injuries all over the body. There was no history of unconsciousness, vomiting, convulsion and E.N.T. bleeding. Patient was admitted with hemorrhagic shock and respiratory distress. On examination of the said patient, the witness found following injuries:
(1) Entry wound over the epigastrium in midline of .25 c.m. x .25 c.m. in size with surrounding tattooing by carbon particles. There was no active bleeding from it. On clinical examination no air was coming out from the hole.
(2) stab wound over the epigastrium just lateral to midline on left side 1.5 c.m. x .5 c.m. insize extending deep through peritoneum. There was active bleeding from it.
(3) Stab wound in left groin above and lateral to anterior superior iliac spine by 1 x 1 x 3 c.m. There was profuse bleeding from that wound.
(4) Stab wound on left side thigh anteriorly of 1.5 c.m. x 1 c.m. x 1 c.m.Page 6 of 44
CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT (5) Stab wound over lateral side of left mid thigh of 1.5 c.m. x 1 c.m. x 1 c.m.
(6) Two stab wounds over back in inter scapular region.
(a) One on just right side of midline 2 c.m. x 1 c.m. x 1 c.m. at the level of interior angle of scapula on right side. There was bleeding from that wound.
(b) Another would below anelatoral to the above mentioned wound of 2.5 c.m. x 1.5 c.m. x 1 c.m. There was bleeding from that wound.
(7) Stab wound over left mid axillary line in 5th inter Costal space. 1 c.m. x ½ c.m. x ½ c.m. inside. There was bleeding from that.
6.1. The witness has further deposed that the patient was discharged with small healing wounds on the back. External injury No.1 is corresponding to internal injury Nos. 2, 3, 4 and 6. External injury No.2 is corresponding to internal injury No.5. As per the said witness, injury No.1 is possible by firearm, whereas, injury Nos. 2 to 7 are possible by sharp cutting instrument, like knife. As per the said witness, external injuries No. 2 to 7 are possible by the muddamal article no.12 knife. The said doctor had produced the certificate at Exh.41.
6.2. During the crossexamination, the witness deposed that he found only one external injury which can be caused by the bullet and there was no other external injuries found out on the body of the patient by the bullet.
EVIDENCE OF INJURED AS WELL AS EYEWITNESS Page 7 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT
7. The prosecution has mainly relied upon the depositions of the injured witness P.W.6 - Dilip Tolaram Revnani and eyewitness Arun Ramprasad Avasthi.
8. P.W.6 - Dilip Tolaram Revnani, the injured witness, Exh.39, in his deposition, stated that he was carrying on his business in the name of Dilip Construction. His father was serving as an Engineer in the Government. When he was residing with his father at Gandhinagar he used to come at M.G.Science Institute, Ahmedabad by S.T.Bus. During that time, he came in contact with one Ashok Gadhvi. He had identified accused No.1 - Ashok Gadhvi, who was present in the Court. At that time, Ashok Gadhvi was working as muster clerk in the office of P.W.D. Department situated at L.D. Engineering College. He was regularly visiting the office of Ashokbhai. Ashokbhai informed him that if he would invest some amount in the business, they would start business as Ashokbhai was having relation with one minister. Therefore, he invested some money and formed one cooperative society in the name of Navrangpura Majoor Kamdar Sahakari Mandli. There were other promoters of the said Mandli including Ashokbhai and the said witness. After some time of formation of the said Cooperative Society, he informed Ashokbhai to settle the account and to give him the amount of profit. The intention of Ashokbhai was not good and therefore he picked up quarrel. However, thereafter, the matter was settled. After the matter was settled with Ashokbhai, said witness separately started construction company. Thereafter, after a period of 3 to 4 years, he met Ashokbhai and asked him to settle the accounts. Ashokbhai was giving false promises that he will Page 8 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT settle the account. Thereafter, on 09.07.1987, at about 8:30 p.m. when he reached his home, his younger brother informed about the phone call of Ashok Gadhvi. Therefore, he made a phone call to Ashok Gadhvi and Ashok Gadhvi called him at his residence for the purpose of settlement of the account at 9:00 p.m. He reached at the residence of Ashokbhai. At that time, Ashokbhai informed him that he will settle the account and today he is in the mood of seeing a movie. Thereafter, he and Ashokbhai went to Prakash Talkies in his white colour Fiat car bearing No. GBA - 657. One Ghanshyambhai came out from one Ambassador car. Ashokbhai asked him about the tickets. Ghanshyambhai informed them that the tickets were with Hanubhai. Ghanshyambhai was serving in the shop of Ashok Gadhvi and therefore he knew him. Hanubhai gave two tickets of movie Heer Ranja. The movie was over at 12:30 night. Thereafter, both of them went near Times of India Press for taking tea. Thereafter, both of them came in the car near Sahjanand College. Ashokbhai stopped his car at a distance of more than one and half km. from the residence of said witness. Ashokbhai informed the witness that there is fault in the car and therefore he was dropped at the said place. Ashokbhai drove his car towards Nehrunagar Cross Roads. At that time, two persons in the uniform met him near Sahjanand Circle. One person caught his shirt and started beating. The said person was having beard. He had identified the said person as accused No.4 sitting in the Court room. Another person started beating him. He was thin and he had identified him as an accused No.3 sitting in the Court room. At that time, fiat car came with full speed. Ashokbhai was driving the said car. He had tried to crush him with the car. However, he escaped Page 9 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT and started running towards Nehrunagar Cross Roads. Ashokbhai stopped his car and instructed the other persons to kill him. At that time, he heard the noise of firing from his back. One person gave him kick blow upon which he fell down. One person fired two shots from the revolver. Another person gave him knife blows on his abdomen, left thigh and on back. Therefore, he shouted for help. On being heard the shouts of the said witness, so many people gathered at the spot and both the aforesaid accused Nos. 3 and 4 ran away from the place in the car of accused No.1. He was bleeding because of the injuries sustained by him. Thereafter, he was taken to V.S. Hospital. Police personnel came at the said hospital. His statement was recorded. Thereafter, his younger brother came in the hospital and asked him about the incident. He had given the details. Thereafter, one officer of the Court came at the hospital and asked certain questions. He had replied to the said questions. The signature was taken in the said statement recorded by the officer of the Court. He was taken to the operation theatre. Operation was performed. Thereafter, police personnel once again came and asked him about the number of the motor car. After third day of the operation, police asked him about the description about the two persons who caused injuries to him. On 31.07.1987 he was taken to the Court for Test Identification Parade. He had identified accused No.4. He had not identified another person. He had also identified Muddamal Article No.12 knife which was used in the commission of the offence.
8.1. During the crossexamination of the said witness, the learned advocate appearing for the defence was able to bring major Page 10 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT contradictions, improvements and omissions on record. The said witness had given different story in his examinationinchief than the story which he had given in his statement before the police. During crossexamination, this witness has admitted that he had not given the details about the incident in his dying declaration which was given before the concerned officer. He has further admitted that in the said dying declaration he had not stated about the dispute with regard to the cooperative society and the settlement with accused No.1. He has further stated that he along with accused No.1 had discussed to organize Bappy Lehri Night. However, such show was not organized. Therefore, there was no question of settlement of account with regard to the said show between him and accused Ashokbhai. About the car number, he had deposed that car No. GBF569 stated by him in his complaint is not correct number.
9. The prosecution has also relied upon the deposition given by eyewitness P.W.8 - Arun Ramprasad Avasthi at Exh.42. In his deposition, the said witness has stated that he was residing at 18/2 L Colony near Sahjanand College. His block is situated on the road at a distance of 20 to 25 feet from Sahjanand Cross Roads. The incident had taken place late at night at 1:30 hours. He was sleeping in veranda. He woke up on being heard the shouts. At that time, he had seen one Fiat car opposite to municipal school. Two persons were beating one person near milk parlour. One assailant was giving knife blow. Another assailant caught the collar of the shirt of the injured. When he reached near the place of incident, both the assailants ran away from the spot and sat in the car which Page 11 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT was parked near his house. He had identified accused No.1 as a person who was sitting in the car and worn white shirt. He had identified accused No.4 as a person who was having beard. He had also identified accused No.3 as another assailant who was present at the time of incident. When the persons gathered at the spot and asked about the name of the injured, he told that his name is Dilipbhai and residing at Pooja apartment, Vastrapur. The injured also informed that Ashokbhai Gadhvi and two unknown persons have caused injuries to him. When the assailants fled from the spot, one Muljibhai Rabari and Vijaybhai Desai were coming near the place of the incident. Vijaybhai Desai had gone to call the brother of the injured. On the next day of the incident, police recorded his statement. After 15 days, police called him at City Mamlatdar Court for the purpose of Test Identification Parade. He had identified accused No.1 during Test Identification Parade. He had also identified two other assailants during such parade.
9.1. In the crossexamination of the said witness, the defence was able to bring major contradictions, improvements and omissions on record. In the crossexamination, he stated that he had seen two assailants for 1 or 2 seconds. He had seen the face of the person who was sitting on the driver seat for 1 second. He further admitted that he had not given any description about the assailants to the Home Guard personnel who immediately came at the place of incident. He also admitted that he had not informed the Home Guard personnel or the police personnel or the people who gathered at the place of incident that he had seen the incident. On the next day evening his statement was recorded by the police.
Page 12 of 44CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT EVIDENCE OF SUPPORTING WITNESSES
10. P.W.3, Morardan Shaktidan Gadhvi, Exh.33 is brother of accused No.1 - Ashok Gadhvi. However, the said witness has not supported the case of the prosecution and therefore he was declared hostile.
11. P.W.4, Babubhai Chelabhai Patel, Exh34, was working as Joint Registrar in Cooperation Department, State of Gujarat, Gandhinagar. During the period between 19871988, he was working as Registrar of Cooperative Societies, Ahmedabad City. Navrangpura Majoor Kamdar Cooperative Society Ltd. was registered on 20.05.1988. As per the record, the main promoters of the said society were Ashok Shaktidan Gadhvi and Revnani Dilipkumar. The said witness produced the leaflet of Navrangpura Majoor Kamdar Cooperative Society Ltd. at Exh.35. The said witness was examined by the prosecution with a view to prove that the accused No.1 Ashok Gadhvi and the complainant Dilip Revnani were associated with said Navrangpura Majoor Kamdar Cooperative Society Ltd.
12. P.W.19, Kishor Tolaram Revnani, Exh.80 is the younger brother of injured Dilip Tolaram Revnani. The said witness has deposed that his brother Dilip did his B.S.C. from M.G. Science College and thereafter he had formed Navrangpura Majoor Kamdar Sahakari Mandli with Ashok Gadhvi. They were carrying on the construction work. He had identified accused No.1 Ashok Gadhvi who was present in the Court. He further deposed that after the Page 13 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT business was started by Ashok Gadhvi and Dilipbhai, certain disputes arose with regard to the accounts of the said business. Some amount of Dilipbhai was due from Ashokbhai and therefore Dilipbhai was repeatedly requesting Ashokbhai to give the said amount. However, Ashokbhai was not inclined to give the said amount and was giving false promises. Dilipbhai informed the said witness that he is going to organize one film night show with Ashok Gadhvi. For the said purpose, Ashokbhai was required to bring the money and he was also supposed to give the outstanding amount of Dilipbhai. On 09.07.1987, the incident had taken place. The said witness deposed that before that, on 08.07.1987 at about 8:30 p.m., when he was at his home, he received a telephone call from Ashok Gadhvi. Ashok Gadhvi was inquiring about Dilipbhai. At that time, Dilipbhai was not present in the house and therefore Ashokbhai informed him to make a call as and when Dilipbhai come. When Dilipbhai came home, he informed him about the said aspect. Dilipbhai, therefore, made a phone call to Ashokbhia. After some time, he and his brother Dilipbhai went out in a rickshaw. Near Polytechnic Cross Roads, Dilipbhai dropped him and informed that he will come after meeting Ashok Gadhvi. Thereafter, he reached to his house and waited for his brother Dilipbhai up to 11:00 p.m. However, Dilipbhai did not come by that time and therefore he went to sleep. At about 1:30 a.m., one unknown person came at his house and informed him that his brother received injuries near Sahjanand College. Therefore, he went at Sahjanand College with the said person. There he saw a mob and came to know that his brother Dilipbhai was taken to V.S.Hospital for treatment. One Police Officer was present at the spot. Along Page 14 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT with the said officer, he had gone to V.S. Hospital in a jeep. When he reached the hospital, he found his brother in bleeding condition in emergency ward. At that time, his brother was conscious and when he inquired about the incident, Dilipbhai informed him that he had gone with Ashokbhai at Prakash Talkies to watch a movie. After the movie was over, they returned in the car of Ashokbhai. Ashokbhai dropped him near Sahjanand College. At that time, two unknown persons came their and caught the shirt of Dilipbhai and started beating him. Ashokbhai tried to crush Dilipbhai with the car. However, he escaped and started running. Ashokbhai informed two other persons to kill him and therefore one person fired from his revolver and two bullets hit him. However, the third bullet did not hit him. Another unknown person gave knife blows on his thigh and back. The said witness further deposed that Dilipbhai was discharged from V.S. Hospital after three weeks. On 09.07.1987, his statement was recorded by the police.
12.1. During his crossexamination, this witness admitted that the dispute between Ashok Gadhvi and Dilip with regard to settlement of account was resolved. After the said settlement Dilip went Mumbai. He has further stated in his crossexamination that he did not remember whether Dilipbhai had given the number of the car when he had met him at the emergency ward.
PANCH WITNESS
13. P.W.5, Mafatsinh Bannesinh Chauhan, Exh.36 is a panch witness of panchnama of seizure of car bearing registration Page 15 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT No.GBA657. However, the said witness has not supported the case of the prosecution and therefore he was declared hostile.
14. Similarly, P.W.9, Ramesh Mulji, P.W.43, is a panchwitness of panchnama of scene of offence. However, the said witness has also not supported the case of the prosecution and therefore he was declared hostile.
15. P.W.11, Kanaiyalal Ratilal, Exh.57, is a panchwitness of panchnama of examination of car bearing registration No.GBA 657 lying at Ellisbridge Police Station in presence of officer of F.S.L. This witness deposed that police of Ellisbridge Police Station called him on 10.07.1987 at about 1:30 p.m. One car was lying in the police station. Officer of Forensic Science Laboratory was present. Blood stains were found on the headlight of left side and left backdoor of the car. Necessary procedure was followed by the officer of the Laboratory.
15.1. Since there were certain omissions in his deposition, learned APP requested the Court to ask certain questions which are in the nature of crossexamination. The Court, therefore, granted such permission. As per the said witness, the car which was lying in the Police Station was having white colour and bearing registration No.GBA657. The aforesaid panchnama is produced at Exh.59.
16. P.W.13, Ramchandra Chaturbhuj, Exh.63, is a panchwitness of panchnama of discovery of knife used by accused No.4 - Mansing Dilsing. As per the deposition of the said witness, Page 16 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT muddamal Rampuri knife was discovered at the instance of accused Mansing Dilsing. Blood stains were found on the said knife. This witness identified accused No.4, who was present in the Court. He has also stated that muddamal article No.12 - knife is the same knife which was discovered as per the panchnama.
16.1. In his crossexamination, the said witness has admitted that he was also panch earlier in another case and had given the deposition in the Court where Police Inspector Shri Ahuja was the Investigating Officer. He has further deposed that his brother was having foodcart near Ellisbridge Police Station and he is helping his brother in the said work.
17. P.W.14, Kamlesh Chimanlal Trivedi, Exh.66, is a panch witness of panchnama of seizure of muddamal clothes of complainant Dilip Tolaram Revnani and bullet.
EVIDENCE OF EXECUTIVE MAGISTRATES - TIP
18. P.W.12, Ramanlal Mathurdas Darji, Exh.60 deposed that he was working as Executive Magistrate. On 27.07.1987, he received Yadi from Ellisbridge Police Station for the purpose of Test Identification Parade in connection with the FIR being C.R.No.I355 of 1987. The parade was held at 6:00 p.m. The police made an arrangement for the said purpose. Witness and accused were called. Accused were produced before him at 17:45 hours. When he asked the name, accused Ashok Shaktidan Gadhvi gave his name. He called the panchas. 7 to 8 other persons similar to that of the Page 17 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT accused were called through peon of the office. Thereafter, he followed the procedure. Witness Arun Ramprasad Avasthi had identified Ashok Shaktidan Gadhvi during the Test Identification Parade. Thereafter, another witness Muljibhai Shankarbhai was called. He had also identified accused Ashok Shaktidan Gadhvi during such Test Identification Parade. However, witness Vijay Ratilal Desai could not identify accused Ashok Shaktidan Gadhvi. Panchnama of Test Identification Parade is produced at Exh.62.
18.1. During the crossexamination, he has admitted that there is no reference in the panchnama that he had informed his peon to call the person similar to the accused. He has further admitted that there is no reference in the panchnama that he informed his peon to call the persons from outside. He further admitted that in panchnama Exh.62 there is no reference with regard to the age of the accused.
19. P.W.20, Maganbhai Mulabhai Parmar, Exh.81, was working as Deputy Mamlatdar and Executive Magistrate in July 1987 in Court No.1, Ahmedabad. On 30.07.1987, he received yadi at 2:30 p.m. from Police Inspector of Ellisbridge Police Station for the purpose of holding test identification parade. Therefore, he decided to hold the Test Identification Parade at 31.07.1987 at 1:00 p.m. The accused were in the Central Jail. Therefore, yadi was sent to the jail authority for producing the accused for the purpose of such parade. Accused were produced before him. Arrangement was made to call the persons similar to that of the accused from the outside by giving instruction to his peon. 10 persons were called Page 18 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT from outside. Their names and addresses were mentioned in the panchnama. Witnesses and complainant arrived at 1:35 p.m. Necessary formalities for holding Test Identification Parade was performed. During such parade, the complainant identified accused Mansing Dilsing. Thereafter, witness Muljibhai Shankarbhai Rabari was called. He identified two persons viz. one Vitthalbhai Mohanbhai Patel and Mansing Dilsing as the accused. Thereafter, witness Arun Ramprasad was called. He identified Vitthalbhai Mohanbhai Patel and Mansing Dilsing. Thereafter, witness Vijay Ratilal Desai was called. However, he could not identify any of the accused. The said witness has produced the panchnama of Test Identification Parade at Exh.84.
19.1. During his crossexamination, question was put to him that during Test Identification Parade, he did not arrange the persons who were in uniform in a queue, to which he replied that when the accused were brought before him, he informed his peon to call the persons who worn similar dress to that of the accused. However, he did not remember as to which type of clothes the accused worn. During his crossexamination, a further question was put to him that during the parade he did not call the persons having beard, to which he replied that the persons similar to that of the accused were called and arranged in a queue. However, he did not remember whether the accused were having beard or not.
EVIDENCE OF FSL EXPERT
20. P.W.18 - Mukesh Nandkishor Joshi, Exh.73, was working as Assistant Chemical Analyzer at FSL. A sealed packet of muddamal Page 19 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT articles in connection with FIR being C.R.No.I355/1987 registered with Ellisbridge Police Station was received by him on 08.09.1987 along with forwarding letter of Police Inspector, Ellisbridge Police Station. The said forwarding letter is produced at Exh.74. He had issued the receipt thereof. He stated in the result of his examination Exh.G as under:
"The exhibit is a fired 0.22" long lead bullet. ExhG has been fired from 0.22" rifle firearm having six lands and six grooveswith right handed twist.
The submission spectra of ExhG and lead used in 0.22" KF long bullet were recovered and analyzed. The elemental composition of Exh.G and that of lead used in 0.22" KF long bullet were found similar."
20.1. In the F.S.L. Report submitted by the Senior Scientific Assistant, which is produced at Exh.77, it has been stated that blood was found from article No.14 - cotton. The blood stains which were found from the motor car bearing registration No.GBA 657 was collected in presence of the panch on the said cotton. As per the report, blood was found on article No.14. Article No.15 was bullet. Blood was also found from article No.15. Article No.16 is the knife, which was discovered at the instance of accused No.4.
EVIDENCE OF POLICE WITNESS
21. P.W.17, Raghunath Gambhirrao Patil, Exh.72, was working as Police SubInspector, Thaltej Chowkey, Satellite Police Station in Page 20 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT July 1987. This witness deposed that on 09.07.1987, he was on duty at Satellite Police Station. At about 1:15 a.m., Police Inspector of Satellite Police Station informed him that firing had taken place near Sahjanand College and therefore he should immediately reach to the said place. Therefore, he had gone in the mobile van at the place of incident near Sahjanand College. At that time, other police personnel were present at the said place. Thereafter, Police Inspector Shri Sarjani of Satellite Police Station also reached. When he had visited the place of incident one person was found bleeding and screaming and requesting that he should be taken to the hospital. The said person was taken to V.S. Hospital in the jeep and was admitted in the emergency ward. He informed the Constable on duty on the police table in the emergency ward that firing had taken place on this person and therefore he should inform the Ellisbridge Police Station about the said incident. The concerned Police Constable recorded the said information. However, the details about the person who caused the injury were not with the said witness and therefore the concerned Constable had gone in the emergency ward along with the witness. The Constable inquired about the incident from the injured. At that time, the injured informed him that Ashok Shaktidan Gadhvi and his two associates assaulted with knife and revolver and three round of firing was made from revolver. As per the deposition of this witness, the injured gave him full details about the incident and the reason behind the said attack by Ashok Gadhvi. He further deposed that the Police Inspector of Ellisbridge Police Station i.e. Shri Ahuja came at the hospital. The injured was conscious and therefore the FIR given by the injured was recorded by the P.I. of Ellisbridge Page 21 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT Police Station in the emergency ward of the hospital. At 7:30 a.m. the said witness had shown the place of incident to Police Inspector of Ellisbridge Police Station and therefore necessary panchnama of place of incident was prepared on 11.07.1987. The Investigating Officer had recorded his statement.
21.1. During the crossexamination of this witness, the defence was able to bring on record the contradictions and improvements. During his crossexamination he has stated that he had not given the name of the driver of auto rickshaw and the number of the auto rickshaw to the Police Inspector.
22. P.W.10, Vishnubhai Yashwantbhai, Exh.53, was working as Police Station Officer at Ellisbridge Police Station. Police Inspector Shri Ahuja sent one complaint to him. On the basis of such information he recorded the entry in the police station diary. The said complaint is registered as C.R.No.355 of 1987.
23. P.W.15, Deepak Jivabhai, Exh.68 was working as Constable at police table at V.S.Hospital. On 09.07.1987 at about 1:35 a.m., C.M.O. informed him that one medicolegal case has come without police yadi and therefore necessary information be collected and concerned police station be informed about the same. One Sub Inspector brought the injured. He asked the name of such Sub Inspector. He told his name as Patil working as P.S.I., Satellite Police Station. Thereafter he received further information from the injured. He recorded such information in his vardhy book. He produced the vardhi from vardhi register at Exh.69. In the cross Page 22 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT examination, he denied the suggestion that in entry made in the vardhi Exh.69, the words "when inquired from injured he informed that Ashok S. Gadhvi and two others caused injuries by revolver and knife" were added subsequently.
24. P.W.16 - Ramsing Laxmansing Chauhan was working as P.S.I., Ellisbridge Police Station in 1987. He received the order to investigate in connection with accused Gadhvi and the car which was used in connection with C.R.No.I355/1987 at the native of accused i.e. Bhrugupur. Therefore, he went to Bhrugupur and inquired about the accused Ashok Gadhvi. He was not found at that place. However, his brother Morardan Gadhvi was present. One car was lying outside the house with cover. He inquired about the accused Ashok Gadhvi. Thereafter two panch witnesses were called. Panchnama of car was prepared. Such car was having white colour bearing registration No.GBA - 657. During the inspection of the said car, blood stain was found on the headlight of left side and another blood stain was found on the left backside door of the said car. The said panchnama was produced at Exh.37.
24.1. During his crossexamination, he admitted that he did not call the F.S.L. experts at Bhrugupur village where he found blood stains on the car. Moreover, he did not inform Chuda Police Station for calling the F.S.L. experts. Photographer was also not called when he saw blood stains on the car.
25. P.W.21, Gyansagar Girdharji Ahuja, Exh.87, was working as Police Inspector at Ellisbridge Police Station. On 09.07.1987, when Page 23 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT he was in the night round, he received a message from City Control that one mobile is present near Sahjanand College. He, therefore, immediately rushed there. On the basis of such message received by him, he rushed near Sahjanand College where he saw a mob. When inquired, he came to know that firing had taken place and one Dilip was injured by revolver and knife and he was sent to V.S.Hospital for treatment. Therefore, he immediately rushed to V.S. Hospital. There he met P.S.I. Rathod and satellite P.S.I. Patil. The injured was admitted in emergency ward. His treatment was going on. Complaint given by the injured was recorded. His signature was obtained on such complaint. He also signed the said complaint. When the FIR was recorded, Medical Officer was present. The Medical Officer made an endorsement that the complainant is conscious. Date and time was also recorded. He has narrated in his deposition how he has carried out the investigation, statements of the witnesses were recorded, panchnamas were prepared, muddamal articles were sent to the F.S.L. and necessary reports were received.
26. Learned trial Court considered the aforesaid oral evidence as well as documentary evidence on record and held that the prosecution has failed to prove the case against the accused beyond reasonable doubt and therefore acquitted all the four accused for the charges levelled against them. Against the said order of acquittal, the State has preferred this appeal under Section 378 of the Code of Criminal Procedure.
27. Learned APP Ms. Jirga Jhaveri for the State mainly submitted Page 24 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT that the learned trial Court has not properly considered the evidence produced on record. The complainant is the injured himself and lodged the FIR immediately wherein he has given the name of accused No. 1 and 2 unknown persons. The complainant - Dilip Tolaram Revnani, P.W.6, Exh.39, has given the details about the incident. The version of the complainant is supported by the eyewitness Arun Ramprasad Avasthi, P.W.8, Exh.42. The version given by the complainant is also corroborated by the medical evidence. She further submitted that P.W.19, Kishor Tolaram Revnani, the brother of the complainant has also supported the versions given by the complainant. He has deposed that phone call was received from accused Ashok Gadhvi at 8:30 p.m. Dilipbhai was not present at that time. When Dilipbhai came, he made a phone call to Ashok Gadhvi. Dilipbhai had gone to meet Ashok Gadhvi. When the said witness reached V.S.Hospital, Dilipbhai informed him that Ashok Gadhvi and two unknown persons assaulted him. Learned APP further submitted that car which was used in commission of the crime was recovered at village Bhrugupur i.e. the native of the accused Ashok Gadhvi and when the said car was examined, blood stains were found. P.W.16, Ramsing Chauhan supports the prosecution version that the car was recovered from Bhrugupur. She further submitted that in the FIR all the details were given by the complainant about the incident. She has thereafter relied upon the deposition of the Executive Magistrate P.W.12 and P.W.20 and submitted that both these witnesses supported the case of the prosecution. Accused No.1, accused No.3 and accused No.4 were identified during Test Identification Parade. She further submitted that the learned trial Page 25 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT Court has wrongly discarded the deposition given by the panch witnesses. It is further submitted by learned APP that three round of firing had taken place and one bullet was also found from the body of the complainant. Muddamal knife was discovered at the instance of accused No.4 Mansing Dilsing. P.W.13, Ramchandra Chaturbhuj, has supported the panchnama of discovery of knife Exh.64. So far as charge of Section 120B of IPC is concerned, learned APP submitted that accused No.3 and accused No.4 ran away in the car of accused No.1 with him. On the basis of the evidence on record, the prosecution has proved the charge of conspiracy. Learned APP has also relied on the following decisions of the Hon'ble Supreme Court:
(1) Om Prakash Alias Raja v. State of Uttaranchal, (2003) 1 SCC 648.
(2) Yunis alias Kariya et. v. State of M.P., AIR 2003 SC
539
(3) Thaman Kumar v. State of Union Territory of
Chandigarh, AIR 2003 SC 3975
(4) Jai Karan & Ors. v. State of U.P., (2003) 12 SCC 655
(5) Gajoo v. State of Uttarakhand, (2012) 9 SCC 532
(6) Jeewan & Ors. v. State of Uttarakhand (2012) 13
SCC 598
(7) Mritunjoy Biswas v. Pranab alias Kuti Biswas & Anr.,
(2013) 12 SCC 796.
(8) S. Govind Raju v. State of Karnataka, (2013) 15 SCC
315
28. Learned advocate Mr. Vijal Desai appearing for the original Page 26 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT complainant has adopted the arguments canvassed on behalf of the learned APP. He further submitted that the eyewitness Arun Ramprasad Avasthi identified the accused during the Test Identification Parade. Knife was discovered at the instance of accused No.4 - Mansing Dilsing. Blood stains were found from muddamal knife. He has relied upon the FSL report. He further submitted that that bullet was found from the body of the complainant - injured. He further submitted that the version given by the injured is corroborated with the medical evidence. He further submitted that the incident was preplanned. The accused hatched the conspiracy and there was a motive for accused No.1 -
Ashok Gadhvi for commission of such crime since he was not inclined to give the money to the complainant and there was dispute with regard to settlement of accounts in connection with Navrangpura Majoor Kamdar Sahakari Mandli and organizing Bappy Lehri Night. Thus, he submitted that the prosecution has proved the charges against the accused beyond reasonable doubt. In spite of that, the learned trial Court has wrongly acquitted the accused.
29. Learned advocate Shri A.D.Shah appearing on behalf of the accused No.1 , Ashok Gadhvi, respondent No.1, submitted that as per the evidence of Kishor Tolaram Revnani, P.W.19, Exh.80, the brother of the complainant, the account of Navrangpura Majoor Kamdar Sahakari Mandli was settled. Therefore, there is no evidence that any amount of the complainant was due from accused No.1 with regard to transaction of said Mandli. Another motive for commission of the crime as projected by the prosecution Page 27 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT was that there was dispute pursuant to settlement of account with regard to organizing Bappy Lehri Night. However, from the record, it emerges that Bappy Lehri Night was not at all organized and the complainant and accused No.1 were merely planning to organize such event. Thus, when Bappy Lehri Night was not organized, there was no question of any dispute with regard to settling the said account. He further submitted that the prosecution has not examined Ashok Mangaji. The Investigating Officer has not made any inquiry about the car bearing registration No.GBF569 which was given by the complainant in the FIR. He further submitted that one small spot of blood was found between headlight and left side back door of the car. However, the said evidence is doubtful and not reliable. F.S.L. Officers were not called for taking samples from the said car nor photographer was called by the concerned police officer. Therefore, the said evidence is not helpful to the prosecution. He further submitted that there are major contradictions, improvements and omissions in the deposition of complainant Dilip Tolaram Revnani and therefore his version is rightly discarded by the learned trial Court. The deposition of eyewitness is also rightly discarded by the learned trial Court. His statement was recorded by the police on the next day evening of the incident. He, therefore, submitted that the judgment rendered by the learned trial Court cannot be said to be perverse and learned trial Court has rightly held that the prosecution has failed to prove the case beyond reasonable doubt against the accused No.1.
30. Learned advocate Shri Sudhansu S. Patel appearing for respondent No.3 accused No.3 has mainly submitted that Page 28 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT prosecution has failed to prove the charge under Section 120B of the IPC. He submitted that as per the case of the prosecution, in the charge framed against the accused, the role of the accused No.3 is to the extent of using a revolver and catching hold of injured while accused No.4 was giving blows. However, he referred to paragraph 22 of the deposition given by the complainant Dilip Tolaram Revnani, wherein, he has admitted in the crossexamination that in his police statement he has not stated that "the person who had caught the collar of the shirt was short and healthy man having beard." Thereafter, he referred to para 23 of his deposition wherein the complainant has stated that his dying declaration was recorded at 2:45 a.m. in the hospital by the concerned officer of the court wherein questions were asked to him and he replied. At that time, he was conscious. He has specifically admitted that the details, which he had given in his complaint and his statement might not be given by him in his dying declaration because at that time his physical and mental condition was not proper. In his dying declaration he has not stated about the dispute with regard to cooperative society or the settlement as his physical condition was not good. By referring to such statement, learned counsel submitted that the prosecution has not produced the dying declaration on record and the person, who had recorded the dying declaration, was not examined by the prosecution and thereby the prosecution has suppressed important fact from the Court. So far as the role played by the accused No.3 is concerned, he further submitted that in the examinationinchief, the injured complainant has, in para 10, specifically stated that when he was dropped at Sahjanand Circle, two persons in 'Khakhi' uniform were present.
Page 29 of 44CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT Out of them one person caught his collar and another person started beating him. The person, who caught his collar, was short, healthy and having beard and complainant identified accused No.4 as the same person. The name of the said accused is Mansing. Thereafter, the said witness further stated that the person who started beating him was long, thin and strong and he identified accused No.3 as the said person. The name of the said person is Vitthalbhai Patel. Thus, relying upon the said deposition, learned advocate submitted that allegation made in the charge which was framed against accused No.3 is totally different than the version given by the injured witness in his examinationinchief. Learned advocate Shri Patel further submitted that knife was not discovered at the instance of the accused No.3 but it was discovered at the instance of accused No.4. The blood group of the blood which was found from the knife was undetected. He further submitted that the injured complainant could not identify the accused No.3 during the Test Identification Parade. Learned advocate therefore submitted that the prosecution has failed to prove the case against the accused No.3 beyond reasonable doubt and therefore learned trial Court has rightly acquitted him.
31. Learned advocate Shri M. J. Buddhbhatti appearing for the respondent No.2 - original accused No.2 has submitted that there is no evidence on record against the accused No.2 that how he is involved in the commission of the crime. The only allegation is that he has hatched the conspiracy with the other accused but no evidence is produced with regard to such conspiracy on record. The only evidence which is against the accused No.2 is that he gave two Page 30 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT tickets of movie of Prakash talkies to accused No.1 - Ashok Gadhvi. Except the aforesaid role attributed to the accused No.2, no other material is produced by the prosecution against the said accused and therefore learned trial Court has rightly acquitted the accused No.2.
32. We have considered the submissions canvassed on behalf of the learned advocates appearing for the respective parties. We have also considered the documentary as well as oral evidence produced on record and the decisions cited by the learned advocates for the parties.
33. The present case is not a case of circumstantial evidence and therefore absence of motive may not affect the prosecution case. However, when the prosecution alleges conspiracy to commit murder of the complainant and also come forward with the aspect of motive which permitted accused No.1 to conspire with accused Nos. 2 to 4 to do certain acts in furtherance of such conspiracy, in that case, motive assumes importance. The prosecution has tried to bring on record about the dispute between the complainant and accused No.1 in respect to the accounts of the aforesaid Mandli. The accused No.1 - Ashok Gadhvi, was not inclined to give the money to the complainant and for settlement of the said account he called the complainant. However, from the record it is clear that the complainant had not taken any action from 1982 to 1987. Further, PW 19 Kishor Telaram, brother of complainant admitted that dispute between Ashok Gadhvi and Dilip with regard to settlement of account was settled. Further, the complainant has Page 31 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT stated that he discussed with accused No.1 - Ashok Gadhvi about organizing Bappi Lehri Night and there was an agreement with accused No.1 that the profit of the said show was to be shared equally. Thus, accused No.1 had thought that in future complainant may ask for his share from the income of the show and hence he had decided to kill him and with that intention he was assaulted through accused Nos. 3 and 4. Thus, the prosecution has tried to prove the motive of the accused No.1 to commit the offence. However, it is unnatural that even before organizing the show and collecting the amount of income of such show, the accused No.1 would think of not paying 50% share of the complainant and would then decide to carry out assault with the help of two other accused. The complainant has admitted that no show was finalized and it was only a talk with one Bhikhubhai. Thus, from the evidence on record, the motive suggested for the murderous assault is unnatural. From the record it is also clear that Bhikhubhai was not examined by the prosecution.
34. According to the complainant and the case of the prosecution, accused No.1 had hatched conspiracy with accused Nos. 3 and 4 to kill the complainant. However, from the evidence produced on record, prosecution has failed to prove about the meeting of the accused persons at any time or any close association between the accused No.1 and accused Nos. 3 and 4. Normally, when the assailants were hired to perform a particular job and when they were armed with the deadly weapons like revolver and knife and such assailants took charge of the complainant after he got down from the car and started assaulting the complainant, it is not Page 32 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT believable that the accused No.1, who had already left the place towards Nehrunagar Cross Roads, came back in the car with a view to run over the car on complainant for crushing him. Thus, it is unnatural and improbable to believe that the conspirator having planned the action would act differently and contrary to normal human conduct. Thus, the prosecution has failed to prove the motive and conspiracy between the accused.
35. As per the evidence of Kishor Tolaram Revnani, P.W.19, Exh.80, the account of Navrangpura Majoor Kamdar Sahakari Mandli was settled. Thus, as per the say of the complainant, when the account of the said Mandli was settled, there is no question of settling the accounts of the said Mandli after a period of five years. Moreover, as observed above, during the period of 1982 to 1987 the complainant had not initiated any action against the accused No.1 nor accused No.1 had given any threat to the complainant. Further, Bappi Lehri Night was also not organized as per the say of the prosecution witness and accused No.1 and complainant were merely planning to organize such event. Therefore, obviously, there was no question of any dispute with regard to settling the said account.
36. The deposition given by the complainant, P.W.6, Dilip Tolaram Revnani, Exh. 39, is required to be scrutinized carefully. The said witness is an injured witness. There are major contradictions, improvements and omissions in his deposition. He had given different story in his examinationinchief than the story which he had given in his police statement. He has specifically Page 33 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT admitted in his crossexamination that he had not given the details about the incident in his dying declaration which was given before the concerned officer of the Court. He further admitted that in the said dying declaration he had not stated about the dispute with regard to the accounts of the Mandli and settlement with accused No.1. The prosecution has not produced the dying declaration on record nor the officer who recorded such dying declaration was examined and thereby the prosecution has suppressed the material fact before the Court. Thus, adverse inference can be drawn against the prosecution. He deposed that accused No.1 dropped him near Sahjanand Circle and proceeded towards Nehrunagar Cross Roads in his car and thereafter two persons in Khakhi uniform came at the said place. They caught hold him and started beating. It is alleged that when both the assailants were beating, accused No.1 came driving his car in full speed with a view to crush him by colliding. At that time, he escaped from the custody of those two assailants and started running towards Nehrunagar Cross Roads. Accused No.1 stopped his car and shouted that he would be killed. Therefore, he started running fast and he heard noise of firing. Thereafter, accused no.3 came near and gave kick blow and accused No.4 overtook him and fired shots from the revolver and thereafter accused No.3 inflicted blows with knife on different parts of the body. It is difficult to believe such story because if the accused No.1 hatched the conspiracy with accused Nos. 3 and 4 to kill the complainant, there was no need for the accused No.1 to come again at the spot when he already proceeded towards Nehrunagar Cross Roads. However, it is also difficult to believe that accused No.1 again came towards Sahjanand Circle in his car with Page 34 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT full speed with a view to crush the complainant and then stopped the said car about 10 feet away from the complainant and then instructed the accused Nos. 3 and 4 to kill the complainant. Complainant further deposed that three bullets were fired from the revolver. However, from the medical evidence on record, it is clear that one bullet was found from the body of the complainant. Two other bullets were not found near the place of incident. There is no reference of recovery of bullets in the panchnama of the scene of the offence.
37. The complainant had not identified accused No.3 in Test Identification Parade though he was able to see the accused Nos. 3 and 4 for some time when the accused No.4 was inflicting the knife blows to him and accused No.3 caught his collar. However, it is surprising that the eyewitness Arun Ramprasad Avasthi, P.W.8, Exh.42, has identified accused Nos. 3 and 4 both though he had an opportunity to see accused Nos. 3 and 4 for one or two seconds. Further, his identification of accused No.1, who was sitting inside the car near Sahjanand Circle, during the Test Identification Parade, is also doubtful. The said car was parked near Sahjanand Circle which is on north side of his house. The shouts for help were coming from the side of the house of Dr.Maniyar, which is on south side of his house towards Nehrunagar Cross Road. The car which was parked near Sahjanand Circle was proceeding towards Panjrapole i.e. north side. Thus, the car must be facing north side and the driver being on the right side it would not be possible for the said witness to observe the driver of the car when he came out from the compound. The said witness was sleeping in the Page 35 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT compound and on hearing shouts for help he woke up and came out of the compound wall. Normally, a person would look at the direction of shouts and he had also done the same thing and had seen two persons assaulting the complainant. It is the case of this witness that when he was near the complainant those two persons passed from his side and ran towards the car and sat in the car. It is claimed by this witness that when the assailants were running towards Sahjanand College, he looked back and found the assailants sitting on the back seats of the car. Thus, contradictions brought in the evidence of this witness about the time when he had seen the car clearly establishes that he had seen the car for the first time when the assailants made their escape good from that place. Thus, the attempt on the part of this witness to identify accused No.1 is not found to be acceptable and reliable. He had no opportunity to recognize the driver of the car. However, he came forward with an explanation that the driver of the car was looking at the back and therefore he had seen the face for a second. Thus, in such circumstances, identification of accused No.1 by P.W.8, Arun Ramprasad Avasthi is not reliable.
38. The evidence of P.W.8, Arun Ramprasad Avasthi, Exh.42, is also not found reliable on the ground of delay in recording his police statement which came to be recorded in the evening on 10th July 1987. This witness was present at the time when Home Guards and Police Officers of Satellite Police Station came. However, he did not disclose about the incident to them. Similarly, Investigating Officer Ahuja and P.S.I. Patil also came to the place of incident. Before them also he had not disclosed this aspect. This witness also Page 36 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT admitted about reading of the news item in newspaper on 10th July 1987 morning. However, his statement came to be recorded in the evening. Thus, his statement came to be recorded after 40 hours. Thus, the version given by this witness is doubtful and therefore the same is required to be discarded.
39. Another eyewitness Vijay Ratilal Desai is not examined by the prosecution. However, from the deposition of P.W.12, Ramanlal Mathurdas Darji, Exh. 60, who had conducted the Test Identification Parade, it is clear that Vijay Ratilal Desai could not identify accused Ashok Shaktidan Gadhvi. Further, from the deposition of P.W.20, Maganbhai Mulabhai Parmar, Exh.81, another Executive Magistrate, who conducted Test Identification Parade of accused Nos. 3 and 4, it is clear that Vijay Ratilal Desai could not identify accused Nos. 3 and 4 .
40. The investigating officer has not made any inquiry about the car bearing registration no. GBF - 569, the number which was given by the complainant in the FIR. The police officer who had visited village Bhrugupur, native of accused No.1, though found one small spot of blood near headlight and left side backdoor of the car, did not call FSL officers for taking samples from the said car at Bhrugupur nor the photographer was called by the said officer and therefore the evidence given by the said officer is doubtful and not reliable. The said evidence is not helpful to the prosecution.
41. Now, so far as the accused No.3 is concerned, the case of the prosecution is that he caught hold of the complainant while accused No.4 was giving knife blows and the accused No.3 had Page 37 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT revolver and fired three round from his revolver as a result of which one bullet injury is received by the complainant. However, from the deposition of the complainant, P.W.6, Exh.39, it is clear that when he was dropped at Sahjanand Circle, two persons in 'Khakhi' uniform were present out of them one person caught his collar and another person started beating him. The person who caught his collar was short, healthy and having beard. However, the complainant identified accused No.4 as the said person. The name of the said accused is Mansing. The complainant further deposed that the person who started beating him was long, thin and strong and he identified accused No.3 as the said person. Name of the said person is Vitthal Patel. Thus, the complainant has identified accused No.3 as the person who had given knife blows to him, whereas, he has identified the accused No.4 as the person who used the revolver. From the evidence on record it is clear that knife was not discovered at the instance of the accused No.3 and revolver was not at all recovered or discovered from any of the accused. Thus, the accused No.3 is charged with possessing revolver and firing it, whereas the complainant has attributed knife blows to accused No.3 during trial. Further, he failed to identify accused No.3 during the Test Identification Parade. Thus, the prosecution has failed to establish the charge levelled against the accused No.3 that he caused injury to the complainant by the revolver.
42. From the evidence on record, the prosecution has also failed to establish the role played by the accused No.2. There is no evidence on record against the accused No.2 that how he was involved in the commission of the crime. The allegation against the Page 38 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT accused No.2 is that he hatched the conspiracy with the other accused but no such evidence either direct or indirect is produced with regard to such conspiracy. The only allegation is that he gave two movie tickets to accused No.1 - Ashok Shaktidan Gadhvi. Except this, there is no material on record against the accused No.2.
43. Learned APP has relied upon the decision of the Hon'ble Supreme Court in the case of Om Prakash Alias Raja (Supra), in which the Hon'ble Supreme Court observed and held that the Court is not concerned with the sufficiency or otherwise of the motive which would have prompted the appellant to commit the crime. The correctness of conviction cannot be tested on the touchstone of lack of sufficient motive, if the evidence establishes beyond reasonable doubt that the accused committed the crime.
44. The Hon'ble Supreme Court in the case of Yunis alias Kariya etc. (Supra), observed in para 7, as under:
"7. The prosecution in the present case has failed to prove motive. Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing in this case. The illegal acts of the accused persons have resulted in the death of a young boy of 18 years. It is settled law that establishment of motive is not a sine qua non for proving the prosecution case. For all these reasons, we find no merits in these appeals."
45. In another decision in case of Thaman Kumar (Supra), the Hon'ble Supreme Court, in para 18, observed as under:
"18. .............................There is no such principle or rule of law that where the prosecution fails to prove the motive for Page 39 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safety be recorded even if the motive for the commission of the crime has not been proved. In State of Himachal Pradesh v. Jeet Singh, 1999 (4) SCC 370, it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit, it as it is almost an impossibility for the prosecution to unreveal the full dimension of the mental disposition of an offender towards the person whom he offended.................... "
46. The reliance placed by the learned APP on the aforesaid decisions of the Hon'ble Supreme Court is misconceived in the facts and circumstances of the present case. In the present case, the prosecution has failed to establish the involvement of the accused beyond reasonable doubt and therefore the motive on the part of the accused No.1 to commit the offence assumes importance. The prosecution has come forward with two different stories with regard to motive. The first one is that there was a dispute with regard to settlement of accounts between the complainant and the accused No.1 in connection with Navrangpura Majoor Kamdar Sahakari Mandli. However, from the record, it is clear that the complainant has not taken any action for the socalled settlement of the accounts during the period between 1982 to 1987. In fact it is clear from the record from the evidence of the brother of the complainant that the said dispute was settled between the parties. The another motive which was suggested by the prosecution was that the accused No.1 has committed the aforesaid offence with a view to see that he may not have to pay 50% share of the profit which will be gained from organizing Bappi Lehri Night. However, Page 40 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT it is admitted by the witness that Bappi Lehri Night was not organized at all and complainant and accused No.1 were planning to organize such an event.
47. In support of the contentions that if there are minor contradictions, exaggerations or variations in the depositions of witnesses, the said contradictions and exaggerations, cannot be said to be fatal to the prosecution and even if there is inconsistency between the medical evidence and ocular evidence, the same cannot be fatal unless medical evidence completely rules out the version of eyewitnesses, learned APP relied upon the decisions of the Hon'ble Apex Court in the case of Jay Karan & Ors. (Supra), Gajoo (Supra), Jeewan & Ors. (Supra) and Mritunjoy Biswal (Supra). There is no dispute with regard to the ratio laid down by the Hon'ble Supreme Court in the aforesaid cases relied upon by the learned APP. However, in the present case, from the evidence on record, it is clear that there are major contradictions, exaggerations and omissions in the deposition of the complainant injured witness as well as the deposition given by the another eyewitness Arjun Ramprasad Avasthi. Such contradictions, exaggerations and variations cannot be said to be minor and therefore in the facts and circumstances of the present case, the aforesaid decisions are not applicable.
48. Learned APP has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of S. Govind Raju (Supra) with regard to the powers of the Appellate Court while dealing with acquittal appeal. The Hon'ble Supreme Court, in para 20, has observed as under:
"20. It is a settled legal proposition that in exceptional circumstances, the appellate court, for compelling reasons, Page 41 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT should not hesitate to reverse a judgment of acquittal passed by the Court below, if the findings so recorded by the court below are found to be perverse i.e. if the conclusions arrived at by the court below are contrary to the evidence on record, or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the Court below bolsters such presumption of innocence."
49. There is no dispute with regard to proposition of law laid down by the Hon'ble Supreme Court in the aforesaid decision. It is true that the Appellate Court for compelling reasons should not hesitate to reverse a judgment of acquittal if the findings recorded by the Court below are found to be perverse. However, in the present case, we are of the opinion that findings recorded by the learned trial Court cannot be said to be perverse. Learned trial Court, in well discussed judgment, has dealt with the evidence on record and concluded that the prosecution has failed to prove the case beyond reasonable doubt against the accused. The Hon'ble Supreme Court in the aforesaid decision further observed that the Appellate Court must bear in mind the presumption of innocence in favour of the accused and also that an acquittal by the Court below bolsters such presumption of innocence.
50. On the other hand, learned advocate for the respondents - accused relied upon the decision of Hon'ble Supreme Court in case of Chandrappa & Ors. v. State of Karnataka, reported in 2007 (4) SCC 415. In para 42 of the said decision, the Hon'ble Supreme Court observed as under:
Page 42 of 44CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT "42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
51. Applying the above principle to the case on hand, we are of the considered view that learned counsel for the accused are right in submitting that when the learned trial Court has passed an order of acquittal, the presumption of the innocence of the accused is Page 43 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM R/CR.A/604/1992 CAV JUDGMENT further reinforced, reaffirmed and strengthened and therefore this Court may not disturb the said order of acquittal while exercising powers under Section 378 read with Section 386 of the Code.
52. In view of the aforesaid discussion and in the facts and circumstances of the present case when the trial Court felt that the accused could get the benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law and therefore even though we are of the opinion that in an appeal against acquittal powers of the Appellate Court are as wide as that of the trial Court and it can review, reconsider and reappreciate the entire evidence brought on record by the parties and can come to its own conclusion on facts as well as law, in the facts and circumstances of the present case, we are of the opinion that the view taken by the learned trial Court for acquitting the accused was possible and plausible even assuming that the other view is equally possible. However, it is well settled that if two views are possible on the basis of the evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the Appellate Court while exercising powers under Section 378 read with Section 386 of the Code.
53. Thus, this appeal deserves to be dismissed and accordingly it is dismissed. R & P be transmitted back to the learned trial Court.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) Jani Page 44 of 44 CRIMINAL APPEAL/604/1992 01/05/2015 02:53:16 AM