Gujarat High Court
Pruthvirajsinh @ Bantu @ Darbar ... vs State Of ... on 15 March, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
R/CR.A/676/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 676 of 2012
With
CRIMINAL APPEAL NO. 693 of 2012
With
CRIMINAL APPEAL NO. 975 of 2012
With
CRIMINAL APPEAL NO. 774 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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 or any order made thereunder ?
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PRUTHVIRAJSINH @ BANTU @ DARBAR BHARATSINH
GOHIL....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
Appearance:
MR KB ANANDJIWALA WITH PR ABICHANDANI, MR ASHISH DAGLI, MR
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YOGENDRA THAKORE, MR DEVDEEP BHATT, ADVOCATE for the accused.
MR MITESH AMIN, PUBLIC PROSECUTOR for the STATE.
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 14,15/03/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These appeals arise out of a common judgment of the learned Additional Sessions Judge, Ahmedabad (Rural) dated 29.3.2012 in Sessions case No.40/2010.
2. Briefly stated, the prosecution version was that on the date of the incident i.e. 4.12.2009, one Urvish Bharwad had a friction with accused no. 1 to 3. Accused No.4 Shantilal Marwadi called up deceased Ajitbhai Kanjibhai, brother of Urvish to inform him about the same. Ajitbhai Kanjibhai was at a place nearby attending the marriage reception ceremony along with his family members. Upon hearing the news, he came to the place of the incident along with his cousin brother Bharatbhai Rambhai and his brother Hirabhai Kanjibhai. Soon the incident flared up and a fight between the four accused and Ajitbhai and his brothers Page 2 of 29 HC-NIC Page 2 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT started. When this was going on, accused No.1 Pruthvirajsinh Bharatsinh Gohil took out a knife and started wildly wielding it. Complainant and others stepped back to escape the blows. However, Ajitbhai Kanjibhai was caught. Accused no.2 Rushirajsinh Raghuvirsinh and accused no.4 Shantilal Marwadi held him while accused no.1 Pruthvirajsinh gave three knife blows to Ajitbhai seriously injuring him. Before these knife blows were given, accused no.3 Lakdhir Chhaganbhai Rabari had given fist and kick blows to Ajitbhai. Soon one Hitesh Thakore came there. The other people from the surrounding area had also gathered. All the four accused thereupon ran away from the place. A charge was framed against all the four accused under exh.62 alleging commission of offences punishable under sections 302 and 323 read with section 114 of the Indian Penal Code. Accused No.1 was also charged with offence punishable under section 135 of the Bombay Police Act.
3. Learned Additional Sessions Judge convicted the accused no.1, 2 and 4 for the offences punishable under sections 302, 323 read with section 114 of the IPC. Accused no.1 was also convicted for offence punishable under section 135 of the Bombay Police Act. All these three accused were sentenced to life imprisonment. Lesser sentences and fines for other offences were also imposed. Accused no.3 was Page 3 of 29 HC-NIC Page 3 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT acquitted for offence under section 302 but convicted for offence under section 323 and sentenced to rigorous imprisonment for six months.
4. Accused no.1 has filed Criminal Appeal No.676/2012, accused no.2 has filed Criminal Appeal No.693/2012, accused no.3 has filed Criminal Appeal No.774/2012 and the State has filed Criminal Appeal No.975/2012 challenging the acquittal of accused no.3 for offence under section 302 of the IPC.
5. We may record the gist of the evidence. Bharatbhai Rambhai Bharwad, PW2, exh.80, was the eyewitness and also the first informant. He deposed that on 4.12.2009, when he was attending the marriage reception function at Kalhar Exotica, Sola Science city area, along with his brothers Hirabhai Kanjibhai PW6 and Ajitbhai (deceased), Ajitbhai received a phone call. After the conversation was over, he said that his brother Urvish was having a quarrel with Pruthvirajsinh, Lakdhir, Rushirajsinh and Shantilal Marwadi (i.e. the four accused) at Hirakunj flat. The witness Hirabhai and deceased Ajitbhai therefore, went to the said place in their Santro car and reached there between 9 and 9:15 at night. When they reached there, he saw that all the four accused were giving kick and fist blows to Urvish. All the three got down from the Santro car Page 4 of 29 HC-NIC Page 4 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT and tried to save Urvish. The accused thereupon started fighting with them also. Shantilal Marwadi accused no.4 and Rushirajsinh accused no.2 caught Ajitbhai. At that time Lakdhir Rabari was giving fist blows. Pruthvirajsinh accused no.1 took out a knife from the waist of his trousers and started wielding it. Ajitbhai was caught by Rushirajsinh and Shantilal Marwadi to whom accused no.1 Pruthvirajsinh gave one knife blow on the left side, another blow was given on the right side of the neck and the third blow was given on the chest. At that time Hitesh Thakore PW4 and other people arrived and a crowd gathered there. All the four accused then ran away with the knife. Ajitbhai had fallen down on the ground. He was shifted to SAL hospital in Santro car by him and Hirabhai. The doctor declared him dead. His FIR was registered by the police at the hospital itself which was produced at exh.81. This witness identified all the four accused before the Court as well as the clothes worn by Ajitbhai at the time of the incident and the murder weapon knife.
In the cross examination, he agreed that after reaching the incident, he participated in the free fight. He also agreed that at that time the accused were also fighting with their hands. During this period the accused no.1 had not taken out the knife. He agreed that neither Urvish nor Hirabhai nor he had taken any treatment for injuries Page 5 of 29 HC-NIC Page 5 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT received during the fight. They had taken about 30 minutes to reach the scene of the incident after receiving the phone call from Shantilal Marwadi. He agreed that a police chowky is located barely 30 to 40 feet away from the scene of the incident. They had taken Ajitbhai to SAL hospital at about 9:20 at night. He had not given the names of the assailants to the doctor at SAL hospital. Ajitbhai was taken to the hospital in the Santro car. He agreed that Hitesh Thakore is a friend of his brother Urvish. He agreed that during the scuffle the shirt buttons of Ajitbhai had broken. He however, denied the suggestion that more than one person had given knife blows to Ajitbhai. In the FIR exh.81, this witness had given substantially similar version of him and his brothers being at the party plot attending the marriage reception when Ajitbhai received a phone call upon which they all came to Hirakunj flat area where the quarrel was going on and during the fight accused no.1 stabbing Ajitbhai three times while accused no.2 and 4 had caught him.
6. Urvish Rambhai Bharwad, PW5, exh.87, deposed that on 4.12.2009, he was at the cross road at Ghatlodia village when the four accused met him and picked up a quarrel saying that he had become a headstrong person of that area. He tried to reason with them. In the meantime, Shantilal Marwadi called his cousin brother Ajitbhai on the Page 6 of 29 HC-NIC Page 6 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT mobile and informed him about the on going quarrel. Thereupon, Ajitbhai, Bharatbhai and Hirabhai came to Hirakunj Shopping Centre in a Santro car. At that time the four accused were quarreling with him and beating him. His brothers who came there tried to intervene, upon which, all the four persons on both sides had a fight. At that time, Pruthvirajsinh accused no.1 took out a knife from his waist and started wielding the knife. They all stepped back to avoid getting hurt. At that time, all the four of them caught Ajitbhai. Accused No.2 Rushirajsinh and accused no.4 Shantilal Marwadi caught Ajitbhai. Lakdhir accused no.3 gave him kick blows, thereupon, Pruthvirajsinh who had a knife in his hand gave blows on left side of the chest, on the neck and again on the chest. During this time, his friend Hitesh Thakore arrived. A large crowd of people had also gathered upon which all the four accused ran away. Ajitbhai was carried to SAL hospital in the Santro car by Hirabhai and Bharatbhai where he was declared dead. He identified the knife as the murder weapon.
In the cross examination, he stated that he knew the accused since about five to six years and had acquaintance with them. He had not taken the medical treatment for his injuries nor the police had made any panchnama of such injuries. He agreed that in the area, there were several Page 7 of 29 HC-NIC Page 7 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT shops which belonged to his family and which were given on rent. He however, was not aware whether any of the shopkeepers had rushed to the scene of the incident.
7. Hirabhai Kanjibhai Bharwad, PW6, exh.91, was also an eyewitness. He also gave a similar version of being present at the reception at the night on 4.12.2009 when Ajitbhai got a phone call upon which they reached the scene of the incident in a Santro car. When they reached there between 9 to 9:15, they saw that the four accused were quarreling with the brother Urvishbhai and were beating him. They had tried to save Urvish. The accused therefore, started fighting with them also. At that time, Pruthvirajsinh accused no.1 took out a knife and started wielding it. They all stepped back in self defence. At that time, his brother Ajitbhai fell in the hands of the four accused. Accused no.2 and 4 caught him. Lakdhir gave him kick blows and Pruthvirajsinh gave three blows with a knife. Upon Hitesh Thakore and other people arriving, the accused ran away. He had also went to the SAL hospital taking Ajitbhai in a Santro car.
This witness agreed that he was familiar with the area of Hirakunj flat and Hirakunj Shopping Centre. He and his family members had many shops in the area.
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8. Hitesh Shankarbhai Thakore, PW4, exh.85, was the person who was referred by the said three witnesses and whose name also appeared in the FIR. He deposed that he was working as an office boy in the office of Bababhai Kanjibhai Krishna Corporation. On the date of the incident, he was at the office till about 8 O' clock at night. His boss was not at the office, he therefore, locked the office and was looking for his brother Ajitbhai to handover the keys. He had gone to the house of Ajitbhai when he learned that Ajitbhai was near Hirakunj Shopping Centre. He went there and saw that the four accused were fighting with Ajitbhai and his brothers Hirabhai, Bharatbhai and Urvishbhai. Fist fight was going on between all of them. At that time, Pruthvirajsinh accused no.1 took out a knife from his waist of the trousers and started wielding the knife against all the four persons. Rushirajsinh and Shantilal Marwadi caught Ajitbhai. Lakdhir was giving kick blows and soon Pruthvirajsinh gave three blows to Ajitbhai with his knife. He ran to the spot. The other people had also gathered. Accused thereupon ran away. He also identified the knife used in commission of the offence. In the cross examination this witness was confronted with his relations with the family of the deceased since he was an employee of the brother of the deceased. He was also questioned on his presence at the scene of the Page 9 of 29 HC-NIC Page 9 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT incident under the pretext of handing over the key to the office he was looking for Ajitbhai.
9. Dr. Pragji Bababhai Rathod, PW1, exh.67, was the medical officer at Sola Civil hospital who had carried out the postmortem. He had recorded the following anti mortem external injuries in the postmortem note exh.68 :
"1) 15cm x 1cm incised would into subcutaneous present over Rt upper aspect of chest 11cm above Rt nipple. 10 cm below tip of shoulder 8 cm away and Rt to midline oblique in direction.
2) Stab wound of size 4cm x 2.5 cm cavity deep present over 0.5cm left to midline, 16cm below sternal notch 8.5cm Rt to nipple. Transverse, lt side angle is acute. Lt side midline angle is blunt, upper margin is blunt, lower margin is sharp.
3) 3 cm x 1 cm transverse stab wound into cavity deep present over Rt lower and outer aspect of Rt side neck 4.5 cm above medial end of Rt clavicle 4 cm away from midline 9.5 cm below Rt angle of mandible. Both margins are sharp and both angles are acute."
Corresponding to such injuries, he had recorded the following internal damages :
"neck wound → Corresponding to neck wound going downwards and leftwards towards the midline into mid structure which is piercing cutting underlying subcutaneous tissues and muscles. Underlying muscles show contusion and extravasation of blood.
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→ Left 6th 27th ribs fractured, 0.5 away from midline extending over body of sternum. Extravasation of blood on post side of body of sternum.
Left lower lobe is contused injury no.2 of column no.17 corresponding to stab wound goes downwards and Rt words and forwards piercing underlying subcutaneous tissues, muscles cut fracture of 4 cm over lower part of body of sternum which is piercing. Lt lower lobe of lung going towards right piercing pericardium and Rt ventricle. Stab wound of size 3 cm x 0.5 cm into cavity deep present over Rt Ventricle."
In his opinion the cause of death was shock and hemorrhage due to stab injuries sustained over the body. In his opinion the external injuries and the internal damage to the heart would be sufficient in the ordinary course of nature to cause death. He was shown muddamal article no.15 the knife and agreed that the said weapon could cause such injuries.
In the cross examination, he denied the suggestion that the rib fracture could be caused while a person accidentally falling down or being thrown on the ground. Detailed cross examination was carried out in connection with the use of the knife muddamal article no.15. It was pointed out that one side of the knife was jagged and the injuries on the dead body did not show any corresponding marks. The attempt obviously on part of the defense was to Page 11 of 29 HC-NIC Page 11 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT establish that the injuries were not caused with such knife and at any rate not all injuries could have been caused with such weapon. The witness however, explained that the marks left by such a knife would depend on the manner in which the blow is given and the instrument is withdrawn after giving the blow.
10. Exh.83 is the inquest panchnama. Only points of significance of the inquest panchnama are that the deceased did not have the shirt on and that the inquest panchnama was concluded at 23:30 hours.
11. The scene of the incident panchnama exh.96 duly supported by panch witness Yogendrabhai Bhikhabhai Parekh, PW7, exh.93, would show that the incident had happened on the road opposite Hirakunj Shopping Centre. The FSL team had collected the bloodstained soil from the scene of the incident. The panchnama also records three vehicles, a Pulsar motorcycle, a Royal Enfield motorcycle and a motor car. The two motorcycles were damaged and the car burnt.
12. Under the panchnama exh.104 duly supported by panch witness Jitendra Amrutji Thakore, PW10, exh.103, the prosecution recovered the murder weapon knife at the instance of accused no.1. According to this panchnama Page 12 of 29 HC-NIC Page 12 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT and the panch witness, the said accused led the police party and the panch witnesses to an open plot and took out a knife which was hidden in the bushes.
13. Mithabhai Kalidas Parmar, PW13, exh.117 was the investigating officer who gave the account of the detailed steps taken by him during such investigation. In the cross examination, he agreed that if while drawing the inquest panchnama, the FIR is already registered, CR number should be written. If the CR number is not available, the inquest would indicate the source of information. He agreed that the information sent by the hospital about arrival of the dead body to the police control room was communicated to him by the PSO. This information was received when he was drawing the inquest panchnama. He agreed that he received the information from the PSO that CMO Kalpnaben Shah of SAL hospital had sent a Vardhi at 10 O' clock that Bharwad Ajitbhai was brought to SAL hospital at 9:20 with serious injuries and he was declared dead at 21:42 hours. He received such Vardhi after he reached the hospital.
14. Various articles collected during the course of investigation were sent for forensic analysis. FSL report read with serological report exh.115 would show that the clothes of the deceased and the bloodstained soil collected Page 13 of 29 HC-NIC Page 13 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT from the scene of the incident had presence of human blood of group 'O'. This in the nutshell is the evidence on record.
15. Learned advocates for the accused vehemently contended that there were several defects in the prosecution version. The witnesses were not reliable. PW2 Bharatbhai, PW5 Urvish and PW6 Hirabhai were all related to the deceased and therefore, interested witnesses. PW4 Hitesh Thakore was working in the office of the brother of the deceased. Even otherwise, he was a chance witness. His presence at the scene of the incident was not properly explained. It is submitted that none of the eyewitnesses had taken any medical treatment which would show that they had not received any injury during the incident. Muddamal article no.15 the knife had one end jagged. There were no corresponding injuries on the dead body. The possibility of more than one assailants and more than one murder weapon used therefore, cannot be eliminated. It was pointed out that inquest panchnama did not refer to the FIR number though the FIR was recorded before the inquest. It was also contended that the three vehicles were found in badly damaged or burnt condition at the scene of the incident. Investigating Officer agreed that these three vehicles belonged to the accused clearly indicating that the complainant's side was the aggressor.
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None of the witnesses referred to the damage to the vehicles. Their version therefore, cannot be believed. No independent eyewitnesses though available were examined. It was pointed out that accused no.1 had not made any statement which with the aid of section 27 of the Evidence Act would be admissible. It was pointed out that the knife did not carry blood stains. At any rate accused no.2 and 4 did not give the knife blows. They did not share common intention with the accused no.1.
16. On the other hand learned Public Prosecutor Shri Amin opposed the appeals contending that as many as four eyewitnesses have given consistent version. The presence of the four accused as well as the presence of these witnesses at the scene of the incident is not even disputed by the defence. There was no previous animosity between the accused and the witnesses so as to make false accusations. FIR was lodged at the first available opportunity. The version given in the FIR matched with the depositions of the witnesses. There were no contradictions or improvements in the depositions of any of the witnesses. He submitted that even though accused no.2 and 4 may not have given fatal blows, the manner in which the incident took place, would clearly establish that they had aided and abetted accused no.1 in committing the offence. He submitted that at the time of recording the inquest Page 15 of 29 HC-NIC Page 15 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT panchnama, the CR number of the FIR would not be available since the inquest panchnama was drawn immediately after recording of the FIR. This would explain not mentioning of CR number in the inquest panchnama. He submitted that the possibility of the vehicles being damaged or burnt by the crowd which had gathered at the scene of the incident after the witnesses left the scene to take injured Ajitbhai to the SAL hospital cannot be ruled out. The witnesses had therefore, not referred to any such incident.
17. With respect to the State appeal, learned Public Prosecutor submitted that accused no.3 Lakdhir Chhaganbhai Rabari was also present at the scene of the incident and played an active role.
18. We may appreciate the evidence. We may recall that as per the prosecution initially only Urvish and the four accused were present at the cross road near Hirakunj Shopping Centre. Urvish's three brothers were called by Shantilal Marwadi accused no.4. These three people were at marriage reception function and they rushed to the scene of the incident where further fight and actual assault on Ajitbhai with knife took place. The evidence of Urvish Bharwad, PW5, therefore, is of great importance since he was present at the scene of the incident from the beginning Page 16 of 29 HC-NIC Page 16 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT till the end. According to him at the night when he was at the cross road, the four accused met him and took up a quarrel saying that Urvish had become headstrong person (Dada of the area). He tried to pacify them but these people took up the quarrel and started assaulting him. In the meantime, Shantilal Marwadi called his brother Ajitbhai on the mobile. Soon his three brothers arrived in the Santro car and a fight broke out between the four persons on either side. At that time Pruthvirajsinh accused no.1 took out a knife and started first wielding it. They had tried to back down to avoid getting hurt when Ajitbhai was caught. He was held by Rushirajsinh accused no.2 and Shantilal Marwadi accused no.4 and Pruthvirajsinh gave three knife blows. All the four accused ran away when Hitesh Thakore and other people gathered there.
19. Similar version was given by Bharatbhai Rambhai Bharwad, PW2, who was also the first informant. He was with Ajitbhai and another witness Hirabhai at a party plot attending the marriage reception. At that time Ajitbhai got a call from Shantilal Marwadi, upon which, the three of them rushed to the scene of the incident in the Santro car. He also referred to a brief quarrel, a free fist fight during which Pruthvirajsinh took out a knife and started wielding it. Accused No.2 and 4 caught Ajitbhai and Pruthvirajsinh gave three blows to Ajitbhai. His deposition was Page 17 of 29 HC-NIC Page 17 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT substantially consistent with the declaration made by him in the FIR at exh.81.
20. Broadly, this was also the version given by Hirabhai Kanjibhai Bharwad, PW6. He was also at the party plot along with Ajitbhai and Bharatbhai and rushed to the scene of the incident upon learning that some quarrel is going on with their brother Urvish.
21. In the FIR as well as the depositions of all these three witnesses, a reference was made to Hitesh Thakore arriving at the scene of the incident and other people in the crowd gathering, upon which, all the four accused ran away.
22. Hitesh Shankarbhai Thakore, PW4, as noted, was an employee of brother of Ajitbhai. On the night of the incident, he had locked the office and was looking for Ajitbhai to handover the key. He learned that Ajitbhai was at the cross roads. When he reached there, he saw the fight. He also claimed to have seen Ajitbhai having been caught by Rushirajsinh accused no.2 and Shantilal Marwadi accused no.4 and Pruthvirajsinh accused no.1 giving three blows with the knife. We have no reason to discard the consistent and uniform version of the four eyewitnesses. To begin with, the presence of the witnesses and the accused is not even seriously questioned by the Page 18 of 29 HC-NIC Page 18 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT defence. If one peruses the defence cross examination minutely, the suggestion made was that a free fight had broken out between the two sides. In fact, the witnesses agreed that before Ajitbhai was assaulted with the knife, all the four people on both the sides were quarrelling. Thus, the defence is also not seriously challenging either the presence of the accused or the three witnesses, PW2 Bharatbhai, PW5 Urvish and PW6 Hirabhai along with Ajitbhai. All these three witnesses in their depositions had referred to Hitesh Thakore arriving at the scene of the incident when the fight was going on. Reference was made to arrival of Hitesh Thakore by the complainant Bharatbhai Bharwad in his FIR exh.81 itself. This FIR was recorded without any delay upon the Police Sub Inspector, Gathlodia police station, arriving at the hospital on receiving a Vardhi from SAL hospital that Ajitbhai in seriously injured condition was brought to the hospital at about 9:20 and later on he was declared dead. This prompt recording of the FIR would eliminate the possibility of manipulation and false involvement of the accused. The fact that this FIR itself referred to arrival of Hitesh Thakore gives further credence to his presence. In addition to mentioning the presence of Hitesh Thakore in the FIR, all the three brothers had referred to his presence in their depositions. The defence did not challenge this version on the ground that the witnesses had made any improvement on this Page 19 of 29 HC-NIC Page 19 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT score as compared to their police statements. Thus from the outset the case of the prosecution was that not only the abovenoted witnesses, but Hitesh Thakore PW4, had also arrived when the incident was going on.
23. Even otherwise, Hitesh Thakore had explained his reason to be at the scene of the incident. He was the employee of the brother of the deceased. After locking the office, he wanted to return the keys for which he was looking for Ajitbhai. He was told that Ajitbhai was at the cross roads and he therefore, arrived there.
24. As noted, presence of the three witnesses PW2 Bharatbhai, PW5 Urvish and PW6 Hirabhai was not even seriously challenged by the defence. We now have the fourth witness Hitesh Thakore PW4. Testimonies of these witnesses on all crucial aspects of the matter are consistent. Neither there are any major contradictions in their depositions as compared to the police statements nor are there any improvements brought on record by the defence which would go to the root of the matter. Interse also the versions given by these four witnesses is largely consistent. We have no reason to discard the testimonies of as many as four eyewitnesses. The identification of the accused was never a major challenge. All the prosecution witnesses knew the accused since they resided in the same Page 20 of 29 HC-NIC Page 20 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT locality and were in fact, familiar with each other since long. The manner in which the incident is stated to have taken place would have consumed some time. In fact, Urvish was roughed up before his three brothers arrived about half an hour later.
25. The fact that none of the eyewitnesses referred to the damaged vehicles of the accused would not destroy the veracity of their depositions. We find the suggestion of learned Public Prosecutor that such vehicles could have been damaged by the crowd which gathered after the incident took place, quite probable and in fact, acceptable. Had it been a case where the accused had been the aggressor for most part of the fight and caused extensive damage to the two motorcycles and burnt down the car, there would have been atleast some injuries to the accused side. More importantly, none of the eyewitnesses were confronted with this theory. This was brought up by the defence only in the cross examination of the investigating officer. If the case of the defence was that the witnesses had been aggressors and that is how the damage to the vehicles was caused, it ought to have put such a suggestion to the witnesses. Without even developing such a theory in the cross examination, without giving a chance to the witnesses to explain this factor, we do not think the defence can merely argue on the basis of conjectures that Page 21 of 29 HC-NIC Page 21 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT vehicles were damaged by the witnesses themselves, a factor which they failed to explain in their depositions.
26. The contention that no independent eyewitnesses, though available, were examined may be considered here. It is undoubtedly true that the incident took place at about 9 O' clock at night in a thickly populated area of city of Ahmedabad and on the side of the main road. There were flats, complexes and shops around. There would be vehicular traffic and also passers by. Unquestionably, therefore, there would be other witnesses present at the time of commission of offence. However, it is well known and judicially recognised phenomena that when a quarrel between two groups develops into a serious fight, an ordinary citizen or passers by is most unlikely to come forward or get involved even as a witness. Merely because therefore, such independent witnesses were not examined by the prosecution would not be enough to discard the version of the present eyewitnesses.
27. The contention that the inquest panchnama though recorded subsequent to filing of the FIR, did not contain CR number which would indicate that the FIR was anti time cannot be accepted. According to the evidence, injured Ajitbhai was shifted to SAL hospital by his relatives immediately. Upon therefore, reaching the SAL hospital, Page 22 of 29 HC-NIC Page 22 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT the doctor on duty sent a telephonic Vardhi to the nearby police station that a person in seriously injured condition has been brought to the hospital and who was later declared dead. It was pursuant to this Vardhi that D.B. Solanki, police subinspector, went to the hospital and immediately recorded the FIR. On the other hand, the inquest panchnama was recorded by Police Inspector, Ghatlodia police station and the recording was completed at 23:30 hours. This recording of the FIR and the drawing of the inquest panchnama happened in quick succession, both at the hospital itself. Thus by the time inquest was drawn, as pointed out by the learned Public Prosecutor, it was entirely possible that the FIR registration number was not given since the same would be done at the police station.
28. The contention that the discovery panchnama exh.104 did not contain any disclosure statement by accused no.1 which can be admitted in the evidence with the aid of section 27 of the Evidence Act, is well founded. We may therefore, treat this panchnama as one of mere recovery of the murder weapon. However, since we have not based our assessment on this socalled discovery, in the ultimate analysis, this would make no difference.
29. If we therefore, accept the version of these four Page 23 of 29 HC-NIC Page 23 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT eyewitnesses, the consistent version that emerges is that Urvish was at Gathlodia cross roads. The four accused took up a quarrel blaming him to have become too headstrong. Ajitbhai and his two brothers arrived at the scene about half an hour later when Ajitbhai received a call from Shantilal Marwadi informing him about the trouble at Hirakunj Shopping Centre. As soon as these three people arrived in the Santro car, the two sides got into a quarrel. Pruthvirajsinh accused no.1 took out a knife and first started wielding. The witnesses backed off. Ajitbhai fell in the hands of the accused. Accused no.2 and 4 particularly, held him, upon which, Pruthvirajsinh gave three blows with his knife on the vital part of his body. Involvement of these three accused therefore, is duly established. It may be that the actual blows were given by only one of them. Had the other two accused not aided accused no.1 in giving the blows, the act would not have been completed. Apparently, as soon as accused no.1 took out the knife, the complainant's side realised that the situation had gone out of control. They were unarmed and, therefore, started taking defensive action. It was during such time that accused succeeded in catching Ajitbhai. If Ajitbhai was not caught by accused no.2 and 4, perhaps accused no.1 could not have carried out his intention of giving knife blows. It is true that the incident took a very sudden ugly turn. We are prepared to accept the defence Page 24 of 29 HC-NIC Page 24 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT version that neither accused no.2 nor accused no.4 had prior knowledge that accused no.1 was carrying a knife. However, the proof of sharing common intention does not necessarily come in the time consumed in concurring with the common intention. If it can be established as in the present case that other accused were sharing the same intention as the principal offender, such accused would also be convicted for the same offence with the aid of section 34 of the IPC.
30. In this context, if we peruse the sequence of events minutely, it would emerge that for the initial period when Urvish was alone facing the four accused, the situation had not really gone out of hand. In fact, the initial communication was that some quarrel (mathakoot) is going on. It does not necessarily mean a fight and certainly not a physical fight. Only when Ajitbhai arrived with the other two brothers, the situation seems to have flared up. During the fight soon the assault with the knife took place. According to the witnesses when Pruthvirajsinh accused no.1 took out the knife and started wielding in the air, all the four of them backed off trying to save themselves from getting hurt. In the process, Ajitbhai was caught by the accused. Accused no.2 and 4 caught him and accused no.1 gave the knife blows.
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31. Two things can be culled out from such sequence of events. First is no real fist fight or free for all physical fight appears to have taken place before or even after arriving of the persons in the Santro car. Reference of the witnesses to accused giving kick and fist blows to Urvish when they arrived is at best an exaggeration. However, this exaggeration would not shake the very foundation of their depositions which we find reliable for various reasons cited above. The second and very important aspect is that when the other two accused saw Pruthvirajsinh accused no.1 taking out the knife and wielding it, they had every opportunity to back off themselves. Even if they did not know that Pruthvirajsinh was carrying a knife, when they realised that he was not only carrying the knife but had taken out the knife and was actually in a mood to use it, there was no further reason for them to side with him or to continue to participate in the fight. Instead of backing off, their action was to the contrary. They ensured that one of the persons i.e Ajitbhai was caught. The two accused thus pinned down Ajitbhai only upon which accused no.1 could have given blows. If Ajitbhai was not thus caught, like others, he also would have escaped. We therefore, have no hesitation in holding that even accused no.2 and 4 had abetted the commission of the offence and shared the common intention of committing murder of Ajitbhai with accused no.1.
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32. On behalf of accused no.1 and 2, an attempt was made to argue that they did not share the common intention with accused no.1 and even if it is believed that they held deceased Ajitbhai while the accused no.1 gave him the knife blows, they cannot be punished for the offence under section 302 since they were not aware that accused no.1 was carrying the knife. In this context, reference was made to the decisions of the Supreme Court in case of Ramesh Singh v. State of A.P. reported in (2004) 11 Supreme Court Cases 305 and in case of Kashmira Singh V. State of Punjab and Haryana reported in 1995 (Supp) 4 SCC 558. Whether an accused who plays the supporting or a secondary role, had shared common intention with the principal perpetrator of the crime is essentially a question of fact and needs to be decided on the basis of evidence on record. We have given detail reasons pointing to the primary facts and attending circumstances suggesting that the sequence of events as unfolded would leave no manner of doubt that accused no.2 and 4 both actively aided and abetted accused no.1 in committing the crime and shared his common intention. Reference of the witnesses that accused no.1 took out the knife and started wielding wildly in the air, upon which, all of them stepped back and it was only Ajitbhai who got Page 27 of 29 HC-NIC Page 27 of 29 Created On Mon Aug 14 10:01:24 IST 2017 R/CR.A/676/2012 JUDGMENT caught and was therefore, assaulted would show that even though accused no.2 and 4 may not have prior information about accused no.1 carrying the knife, they did have sufficient time and opportunity to comprehend that the accused no.1 not only had a knife, he meant to use it. Even thereafter, their action of catching Ajitbhai and holding him up when the accused no.1 gave three knife blows, would put the issue beyond any doubt.
33. Coming to the acquittal of accused no.3 for offence under section 302 of the IPC, the same is possible of summary rejection. At the very best, even according to the prosecution, he had only participated in the fight by giving kick and fist blows. He had not caught deceased Ajitbhai nor in any other manner directly or indirectly helped or encouraged Pruthvirajsinh accused no.1 in giving the blows. His involvement was thus limited to the fist fight.
34. Under the circumstances, we find no infirmity in the judgment of the trial Court. All appeals are therefore, dismissed.
R&P may be transmitted back to the concerned trial Court.
(AKIL KURESHI, J.)
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(BIREN VAISHNAV, J.)
raghu
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