Gujarat High Court
Bhopabhai Ratnabhai Aalgotar & 2 vs State Of ... on 5 March, 2015
Author: Anant S.Dave
Bench: Anant S. Dave, Sonia Gokani
R/CR.A/1000/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1000 of 2010
With
CRIMINAL APPEAL NO. 1050 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MS JUSTICE SONIA GOKANI
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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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BHOPABHAI RATNABHAI AALGOTAR & 2....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
Criminal Appeal No. 1000/2010
MR P P MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 - 3
MS MOXA THAKKAR ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
Criminal Appeal No. 1050/2010
MR P P MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 - 2
MR AD SHAH, ADVOCATE for the Appellant No. 3.
MS MOXA THAKKAR ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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Page 1 of 54
R/CR.A/1000/2010 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 05/03/2015
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. Both these appeals arise from the common judgement and order of conviction and sentence passed by the learned Additional Sessions Judge and they are being considered simultaneously.
2. For the sake of convenience, parties shall be referred to as per their status before the learned Sessions Judge as A-1 (Ramabhai Paanchabhai Aalgotar, A-2 (Devabhai Paanchabhai Aalgotar, A-3 (Laakhabhai Nathabhai Aalgotar, A-4 (Bhopabhai Ratnabhai Aalgotar, A-5 (Munnabhai Sarabhai Aalgotar and A-6 (Nathabhai Valabhai Aalgotar).
3. Both these appeals are directed against the judgement and order passed by the learned Additional Sessions Judge in Sessions Case No.5 of 2009, whereby the learned Judge has convicted all for the offence punishable under Sections 302 and 149 of Indian Penal Code with life-imprisonment and imposed a fine of Rs. 500/- each and in default to further undergo imprisonment for 1 year. The learned Judge has not imposed any separate sentence for the offence under Sections 143, Page 2 of 54 R/CR.A/1000/2010 CAV JUDGMENT 147, 148, 324 of Indian Penal Code and under Section 135 of Bombay Police Act and all the sentences run concurrently .
4. The short facts of the case are that on 20.9.2008 between 11:30 to 11:45 hours, the original accused persons armed with weapons were waiting near Shop No.7, 8 and 9 at L.D. Municipal Complex near S.T. Bus Stand of Shihor village, District: Bhavnagar and they allegedly assaulted the deceased Ramabhai Gobarbhai. It is alleged that original accused-Lakhabhai Nathabhai and Rama Pancha both gave a blow with a knife on neck and abdomen and other appellants allegedly hit the deceased with sticks. Even the original informant-Samantbhai was given some blows by knife. Thereafter, a complaint was lodged in Shihor Police Station.
5. The aforesaid complaint was investigated by the police and after investigation, charge-sheet was filed before the competent Court. The case thereafter was committed to the Sessions Court being Sessions Case No. 5 of 2009.
6. The learned Sessions Judge, thereafter, heard the prosecution and the defence and ultimately, the learned Sessions Judge found that the prosecution has been able to prove the case against all the accused for the charged offences and hence, the learned Sessions Judge convicted Page 3 of 54 R/CR.A/1000/2010 CAV JUDGMENT all the accused for the offence punishable under Section 302, 149 of IPC and offence under Sections 143, 147, 148, 324 of IPC and under Section 135 of Bombay Police Act.
Exh.6 CHARGE Page - 63 of the paper book
Date of Offence : 20th September,2008 at
about 11.30 to 11.45 a.m.
Place of Offence : Near Shop No.789, L.D.
Muni.Complex, Near S.T. Bus `
Stand, Shihor.
Name of complainant : Samantbhai Nathabhai Rathod
(Injured Eye witnesses) and
cousin of the deceased
Date of complaint : 20th September, 2008.
Name of deceased : Ramabhai Gobarbhai Rathod
Motive for the crime : Two days prior to the date of
incident, exchange of words took
place between Rama Pancha and
deceased Rama Gobar on
account of intercepting
motorcycle of Rama Pancha by
Page 4 of 54
R/CR.A/1000/2010 CAV JUDGMENT
deceased Rama Gobar with his
rickshaw and Rama Pancha as
well as Lakha Natha had given
slap to deceased Rama Gobar.
I. Medical Evidence: Page
PW.5 /Exh.23 Dr.Kalpeshkumar Trikamdas Gadhvi 101 Medical Officer CHC, Shihor Exh.25 P.M.Report 789 Exh.26 Injury Certificate of Samantbhai Nathabhai 805 Exh.26:
1) CLW over the back of Thigh.
7cm x 1cm x skin deep.
2) Contusion with abrasion over right fore-
Arm.
3) Swelling over right fore-arm and
Shoulder.
PW.9 /Exh.31 Dr.Sanjaybhai Shyama Chaudhary 129
Exh.25 Panel Doctor for P.M.Report.
PW.17/Exh.38 Dr. Brijesh Narendrabhai Sisodia 187
Exh.39 Certificate of Injury to Samantbhai Nathabhai (Complainant).
Page 5 of 54 R/CR.A/1000/2010 CAV JUDGMENT 827 Exh.39 1) Blunt injury on right fore-arm 2) 2 cm x 1cm laceration on left Knee joint 3) 4 cm stitched wound on Dorsal side on Left thigh. 4) 4 cm x 2 cm pink red contusion on right Side of Chest. 5) 4 cm x 3 cm pink red contusion on left Side of Dorsum. 6) 5 cm linear abrasion on right arm.
External Injuries - Column 17: Exh.25: (P.M. Report of the deceased Ramabhai Gobarbhai)
(i) Incise wound in left side of Neck region, 5 cm.
above the left Sterno-clevicular joint extending from medial to lateral side, size 10 cm x 4 cm broad x cavity deep. Margin is sharp with destruction of Neck vessels, tissue and degroving of skin on lateral side.
(ii) Stab wound over the Abdomen just above and right of the Umbilicus, 8 cm long x 4 cm broad x 7 cm muscle deep, margin is sharp with cutting of underlying abdominal muscle cavity not reached upto Peritoneum.
Page 6 of 54 R/CR.A/1000/2010 CAV JUDGMENTColumn 18 clinically no any palpable fracture.
Cause of death - Death occurs due to hemorrhagic shock, cardio respiratory arrest due to injury of major Neck vessel.
II) Eye-Witnesses:
PW. 2/ Exh. 16 Samantbhai Nathabhai Rathod 77- Injured/complainant Exh. 17 F.I.R. 773 PW. 6/ Exh. 27 Zalabhai Vashram Rathod.113 PW.10/ Exh. 32 Balabhai Hamabhai Rathod 135
PW.12/ Exh. 34A Manthanbhai Rajeshbhai Shah 159
- Hostile.
PW.14/ Exh. 36 Rajeshbhai Amrutlal Shah -Hostile 171 PW.15/ Exh. 36A Khimjibhai Ukabhai - Hostile 177 PW.16/ Exh. 37 Ghelabhai Ratnabhai - Hostile 181 Page 7 of 54 R/CR.A/1000/2010 CAV JUDGMENT III) Panch Witnesses :
PW. 1/ Exh. 15 Sajanbhai Bhalabhai 69 Exh. 16 Panchnama -scene of offence. 71 PW. 3/ Exh. 18 Premjibhai Chhaganbhai Chauhan 93 Exh. 19 Inquest Panchnama. 777 PW. 4/ Exh.20 Khimabhai Kanabhai Vaghela -Hostile 97
Exh. 21 Panchnama -Cloths of the deceased 781 PW. 7/ Exh.28 Rajubhai Bhagwanbhai Chavda 121 Exh.29 Panchnama - Arrest of the Accd. 807 PW. 8/ Exh.30 Rambhai Devabhai -Hostile 125
- 2nd Panch to Exh.29.
PW.11/ Exh.33 Dilipbhai Mansukhbhai -Hostile 151 Page 8 of 54 R/CR.A/1000/2010 CAV JUDGMENT Exh.34 Panchnama -Discovery of weapon And seizure of motorcycle.
815PW.13/ Exh.35 Kishorbhai Jayantilal Parmar -Hostile 165
- 2nd Panch to Exh.34.
PW.19/ Exh.48 Harshadbhai Bhanushankar -Hostile 199 Exh.49 Panchnama -Seizure of cloths of the complainant.
PW.20/ Exh.50 Bhikhabhai Bhayabhai -Hostile 201
- 2nd Panch to Exh.49.
IV) Police Witnesses:
PW.18/ Exh. 43 Jaswantsinh Ramdayal Yadav 195- P.S.O. Shihor Police Station Exh. 44 Station Diary Entry 849 Exh. 45 Yadi to hand-over investigation to PSI. 855 Exh. 46 Yadi to hand-over investigation 857 Exh. 47 Fax message.
Page 9 of 54 R/CR.A/1000/2010 CAV JUDGMENT 861 PW.21/ Exh. 51 Hitendrabhai Jagannathbhai -PSI 203 Exh. 53 Forwarding letter to FSL. 871 Exh. 54 Receipt of FSL. 885 Exh. 55 Letter of FSL. 887 Exh. 56 FSL Report. 889 Exh. 57 Forwarding letter of FSL of Serological report. 901 Exh. 58 Serological Report. 903 Judgment : 31st May, 2010. Order of Conviction
All accused are convicted under Section 302 read with 149 IPC and sentenced to suffer R.I. for life and to pay fine of Rs.500/- in default to suffer R.I. for one year. No separate sentence is awarded for the offences punishable under Section 143, 147, 148, 324 of IPC and Section 135 of Bombay Police Act. Accused No.4, 5 and 6 taken into custody by cancelling their bail bonds.
7. Shri A.D. Shah, learned counsel for the appellants would contend that according to complainant Samantbhai Page 10 of 54 R/CR.A/1000/2010 CAV JUDGMENT Nathabhai, while he was proceeding with is rickshaw near shop of Rajubhai, he saw accused persons assaulting on Ramabhai Gobarbhai and he stopped his rickshaw. All the six accused were assaulting Ramabhai Gobarbhai. He stopped his rickshaw and intervened and at that time accused Deva Pancha caught hold of his hair and accused no.3 Lakha Natha inflicted knife blow on Neck of Ramabhai Gobarbhai. Accd.no.1 Rama Pancha inflicted knife blow on abdomen. He got his hairs released and at that time accused no.4 Bhopa Ratna; accused no.6 Natha Vala; and accused no.5 Munna inflicted stick blows on his person and Rama Gobar who died. Similarly, accused no.2 Deva Pancha inflicted knife blow on back of his Thigh as well as knife blow on his right upper-arm.
8. Learned counsel further submitted that according to medical evidence, injury sustained on neck of Ramabhai Gobarbhai was fatal. As regards injury on abdomen, it was simple injury and no vital organs were affected. Thus, except these 2 injuries, there are no other injuries on person of the deceased possible by hard and blunt substance. The claim of the complainant witnessing both these injuries being inflicted by respective accused Lakhabhai and Ramabhai after he stopped his rickshaw and intervened cannot be the correct version of the incident. According to complainant, when he was proceeding in his rickshaw, he had seen assault being carried out near shop of Rajubhai Vania on Ramabhai Page 11 of 54 R/CR.A/1000/2010 CAV JUDGMENT Gobarbhai due to which he had stopped his rickshaw.
Thus, prosecution evidence about assault by six accused is not substantiated at all by medical evidence.
9. As regards assault on complainant Samantbhai Nathabhai, the injuries are simple in nature and neither accused no.1 Ramabhai Panchabhai nor accused no.3 Lakhabhai Nathabhai is involved in causing of the said injuries. The claim of complainant as to infliction of knife blows by accused no.2 Devabhai Panchabhai on his left thigh and right forearm is concerned, the Investigating Officer Hitendrabhai J. Chaudhari (PSI) clearly reveals that the pant put-on by the complainant was attached during investigation and it did not reveal any corresponding cut mark on thigh region. Furthermore, admission on part of Investigating Officer about not obtaining FSL report as to corresponding cut marks on the pant clearly rule-out the injured Samantbhai receiving injury by knife.
10. Further more, medical evidence of Dr. Brijesh Narendrabhai (PW.17/Exh.38) clearly establishes that the injuries found on person of the complainant were possible by hard and blunt substance and it cannot be said that the injury No.3 on left thigh was possible by knife. Even medical certificate (Exh.39) does not reflect about the injury possible by knife. Cross-examination of this Medical Officer further reveals that the injured did not give history of assault by knife and even the referred note from Page 12 of 54 R/CR.A/1000/2010 CAV JUDGMENT Medical Officer, Shihor did not reflect the history of injury by knife. Thus, the evidence of injured Samantbhai Nathabhai is not supported by the Medical evidence.
11. The evidence of injured Samantbhai Nathabhai does not refer to any statement purporting to have been made by the deceased Ramabhai Gobarbhai when he was being removed from the place of offence to the Hospital in a rickshaw. Thus, there is no oral dying declaration emerging from the evidence of the complainant and even complaint does not refer to any such statements of the deceased as to the assault by knife on his neck by accused Lakha Natha and by knife on abdomen by accused Ramabhai Panchabhai.
12. The evidence of Zalabhai Vashrambhai (PW.6/Exh.27) does not reveal that he has witnessed the incident, however, according to his evidence he had seen 6 accused going-on two motorcycles with open arms like knife and sticks and thereafter he went when his rickshaw to L.D.Muni complex near shop of Rajubhai Vania and he found his uncle Ramabhai Gobarbhai near the otta of the shop. He also noticed the complainant Samantbhai Nathabhai in bleeding condition.
13. It is claimed by this witness that Balabhai Hamabhai and this witness had placed Ramabhai in rickshaw and started for going to dispensary at Shihor. It is further Page 13 of 54 R/CR.A/1000/2010 CAV JUDGMENT claimed that he inquired from Ramabhai as to what had happened and Ramabhai told that "Lakhabhai Nathabhai had on neck and Ramabhai Panchabhai had on abdomen caused injuries by knife". It is further claimed that Samantbhai told that he had intervened to rescue Ramabhai and at that time Bhopa Ratna, Muna Sara and Natha Vala had inflicted stick blows and thereafter Deva Pancha had inflicted one knife blow on back region. Thus, the evidence of this witness and his conduct of not informing the police makes his evidence highly unnatural.
14. Similarly, the evidence of Balabhai Hamabhai is again introducing new version about Deva Pancha, catching hold of hair of Samant Natha and thereafter Samant Natha trying to save Rama Gobar. It is claimed by this witness that at that time Devabhai inflicted knife blow on thigh after catching hold of hairs of Samant Natha and one blow on right side. Similarly, accused Nos.4 to 6 inflicting indiscriminately stick blows on Samantbhai Nathabhai and thereafter the accused going away on their bike. It is claimed by this witness that thereafter they had taken Rama Gobar in rickshaw to Shihor Government Hospital. It is also claimed by this witness that Zalabhai had inquired from Rama Gobar as to what had happened and at that time Rama Gobar informed "Lakha Natha had given knife blow on neck and Rama Pancha had inflicted knife blow on abdomen and at that time Samant Natha told that Deva Pancha had given one knife blow on left thigh and one Page 14 of 54 R/CR.A/1000/2010 CAV JUDGMENT knife blow on right upper arm. The cross examination of this witness clearly reveals that he had no cause to be near the place of incident and his explanation as to his presence at that place is not believable. This witness had occasions to meet Police Officers at the Hospital and had not given his statement to the Police Officers. The contradictions from his earlier statement clearly revealed that he had improved upon his version to support the case of the prosecution. It is claimed by this witness that he was driving the rickshaw of Zalabhai and Zalabhai had inquired from the deceased and Samantbhai. The contradiction from the police statement of this witness as to Samant informing about Deva Pancha inflicting knife blow on left thigh and another knife blow on right upper arm creates serious doubt about his evidence. This witness's presence at the scene is absolutely unnatural and they being close relatives have come forward to support the prosecution case.
15. As regards the alleged motive of quarrel before two days of the incident between Rama Gobar and Rama Panchabhai is also not believable. It is alleged by the prosecution that there was exchange of words between Ramabhai Gobarbhaiiii and accused Ramabhai Panchabhai and Lakhabhai Nathabhai. It is also claimed that Lakha Natha had given a slap to Ramabhai Gobarbhai and due to that the present incident took place.
Page 15 of 54 R/CR.A/1000/2010 CAV JUDGMENT16. The place of offence is otta near four shops of L.D.Muni Complex. The place was situated near the shop of Rajeshbhai Amrutlal Shah and there were blood stains on otta near the shop. It is also clearly emerging from the evidence of Manthanbhai Rajeshbhai and other witnesses that the accused Deva Pancha is having his shop in L.D. Muni Complex and on day of incident at about 11 a.m. Devabhai Panchabhai had come on his motorcycle and parked the same opposite his shop and after parking his motorcycle had gone towards his shop. It also transpired that at about same time Rama Pancha had also come to this shop of his brother. Thus, the presence of these two accused at about 11 a.m. on 20/6/2008 is natural and there is no evidence that there were other accused in company of Rama Pancha and Deva Pancha.
17. The Medical evidence as to the alleged role played by accused nos.4, 5 and 6 about assaulting the deceased and complainant with sticks is not substantiated by nature of injuries. There were no injuries on the person of deceased Rama Gobar, which could have been inflicted by sticks. The Medical Officer who performed postmortem clearly noticed only two injuries, one on neck and another on abdomen of the deceased Ramabhai Gobarbhai and except these injuries, there were no other injuries. Thus, the presence and participation by accused nos.4 to 6 is not probablize from the facts and circumstances of the Page 16 of 54 R/CR.A/1000/2010 CAV JUDGMENT case.
18. Similarly participation of accused no.2 Deva Pancha as to the infliction of blows by knife on complainant Samantbhai Nathabhai, the same is not probablize inasmuch as there is no cut mark found on thigh region probable by the knife as alleged by the prosecution and the nature of injuries indicating the same being probable by hard and blunt substance. Thus, the prosecution version as to role attributed to accused nos.2 and 4 to 6 is highly unnatural and unreliable. Thus, there is no reliable evidence about unlawful assembly by 6 persons.
19. The Panchnama of the scene of offence and the existence of shop of the accused Deva Pancha in L.D. Muni Complex and find of blood on otta near shop of Rajeshbhai Amrutbhai clearly reflect the suppression of the origin of the incident. How the incident took place an why the deceased Ramabhai Gobarbhai had gone near the place of offence is not clearly emerging from the evidence of prosecution witnesses. Furthermore, accused no.1 Ramabhai Panchabhai is alleged to have inflicted one blow by knife on abdomen and the said injury according to medical evidence was simple injury inasmuch as it had not caused any internal damage. Similarly, accused no.3 Lakhabhai Nathabhai is alleged to have inflicted one blow which has landed on neck but under what circumstances the incident started being not available from the Page 17 of 54 R/CR.A/1000/2010 CAV JUDGMENT prosecution evidence, the intention to cause death is prima facie not emerging from the prosecution evidence.
Thus, there is no reliable evidence to fasten liability of particular accused and when there is no sufficient evidence to establish unlawful assembly and participation of accused as member of unlawful assembly the charge and conviction of accused under Sec. 302 r/w. sec. 149 of IPC is not justifiable.
20. That though almost witnesses of panchnamas, scene of offence, discovery etc, have turned hostile but all important witnesses including injured eye witnesses and experts namely, medical officer have remained unshaken during their testimonial rigor. The following decisions are relied on by learned counsel by the petitioner.
1. Jarnail Singh v. State of Punjab [2009 AIR SCW 659] - In support of his arguments about alteration of conviction to higher offence under Section 304, Part I when many inconsistency in the evidence of eye witnesses found.
2. Hari Singh v. State (NCT) of Delhi [AIR 2012 SC 3157] that qualities of sterling witness under Section of Evidence Act that witness should be of high quality and caliber and his version should be unassailable and acceptable on its face value and;
3. Sunil Kundu and Anr. v. State of Jharkhand [2013 AIR SCW 2278] in a case under Section 300 of Indian Penal Code murder evidence of eye Page 18 of 54 R/CR.A/1000/2010 CAV JUDGMENT witnesses are to be scrutinized meticulously and even evidence of eye witnesses as to weapon used by each accused is found inconsistent conviction recorded based on inconsistency in evidence of witnesses cannot be termed as minor and disregarded and benefit of doubt is to be given to accused.
21. Ms. Moxa Thakkar, learned APP has vehemently submitted that in absence of any error in appreciating evidence namely, oral as well as documentary by learned trial Judge, no interference is called for.
22. That deposition of injured eye witnesses and other witnesses together with medical evidence reveal involvement of all the accused in the charged offence and therefore, conviction and sentence ordered to undergo life imprisonment need to be sustained by this Court.
23. Learned APP for the respondent-State has relied on the following decisions:
1. Subal Ghorai and Ors. v. State of West Bengal [2013 (4) SCC 607]- In support of her arguments that in case of an offence under Section 302 read with Section 149 common object can be inferred and overt act is no answer for imposition of liability with aid of Section 149.Page 19 of 54 R/CR.A/1000/2010 CAV JUDGMENT
2. Pudhu Raja and Anr. v. State [(2012) 11 SCC 196- In support of her arguments that minor inconsistency in the case is immaterial and all evidence are to be gathered and circumstances to be considered by the Court. That contradictions, inconsistency, exaggerations and embellishments if they are of minor nature or any relationship but trivial, case which do not affect core of prosecution case must not be made a ground for rejection of evidence in its entirety;
3. Shyam Banu v. State of U.P. AIR 2012 SC 3311-
In support of her argument that testimony of related eye witness is not be discarded greatly on account of relationship and that in case of injured eye witness testimony of such injured eye witness stand on higher pedestal that other witnesses.
24. That a view to appreciate depositions of injured eye witnesses and other eye witnesses and nature of injuries and depositions of medical officers treating the deceased and accused and performing autopsy upon the deceased it is profitable to reproduce important facets of such depositions.
Name :: Samantbhai Nathabhai Rathod-PW-2
1. I am doing work of rickshaw driving. I keep my rickshaw near the S.T. Bus Stand. On 20/9/2008 I had dropped the passengers and coming from Page 20 of 54 R/CR.A/1000/2010 CAV JUDGMENT Shihor village. I was coming towards Shihor Bus stand. I was coming in my rickshaw on the slope. At that time it was about eleven thirty. I was coming down the slope at that time at the shop of Rajubhai Vaniya my uncle's son Ramabhai Gobabhai was being assaulted, on looking at the same I had stopped the rickshaw. Our community persons were assaulting. (1) in which Ramabhai Panchabhai (2) Lakhabhai Nathabhai (3) Devabhai Panchabhai (4) Natha Valabhai (5) Bhopabhai Ratnabhai (6) Munnabhai Sarabhai all of them were assaulting. These persons are present in the court. I know them. I had stopped the rickshaw and had intervened. Deva Panchabhai had held my hair. Lakha Natha had dealt knife blow on the neck of Ramabhai Gobarbhai. Rama had dealt knife blow on the abdomen. I had freed my hair and thereafter Bhopa Ratna, Natha Vala and Munna had sticked, they started to assault me and the deceased using stick. Deva Pancha was dealt knife blows on his left leg on the thigh at the back side. And on the right hand shoulder Deva Pancha had dealt knife blows. By dealing blows on me I was injured on my right hand and had injury on my left knee. Due to this assault Ramabhai Gobarbhai had fallen down. These persons had assaulted and fled. Within a few minutes my cousin Jhalabhai Vashrambhai came in his rickshaw. Balabhai was Page 21 of 54 R/CR.A/1000/2010 CAV JUDGMENT with him. Balabhai was standing. Thereafter I took Ramabhai Gobarbhai with Jhalabhai to Shihor Civil Hospital. I was kept outside. And Ramabhai Gobarbhai was taken inside. Compounder gave me treatment, and doctor had treated Rama Gobar. Doctor said that Ramabhai has expired. This incident had taken place in the day between eleven thirty to quarter to twelve. The cause of this incident is that two days before the incident with regard to rickshaw and motor cycle where the rickshaw was of Rama Gobar and motor cycle was of Ramana, there were altercations regarding plying the same. At that time Rama Pancha was slapped by Lakha Natha and he had fled. Due to hostility in this regard myself and Rama Gobar were caused injuries. Thus Rama Gobar had died. In this regard I had lodged complaint at the Civil Hospital. On the complaint I have impressed my left hand thumb impression. I know to read and write but there was injury on the right hand thumb therefore I had impressed left hand thumb. The police had recorded the complaint as narrated by me. This complaint is produced below Mark 14/4, it is shown to me, the facts recorded therein are correct. It bears my left hand thumb impression, it is given Exh. 17.
2. I am shown muddamal knife and stick, it is the Page 22 of 54 R/CR.A/1000/2010 CAV JUDGMENT same muddamal. Using these myself and Rama Gobar were caused injuries. I identify them. For further treatment I was admitted in the Sir T. Hospital. I was kept as indoor patient for two days.
Cross examination on behalf of the accused by
learned advocate M. U.R. Dave.
In the absence of MLC, Shihor, CHC Shihor the
defense advocate Mr. U.R.Dave is not in this matter and there is no such certificate received therefore not capable to cross examine. Thus the cross examination cannot be done. In the circumstances DGP to obtain copy of medical certificate [complainant] and give copy to accused. Such orders are passed and the matter is adjourned for cross examination.
3. I have studied upto standard seven. I had studied in School No. 3 in Shihor. I know to read and write. When the occasion to sign arises then I put my signature. It is true that, the deceased Ramabhai is the son of my uncle, the name of his father is Gobarbhai. Gobarbhai and my father are two brothers. All Gobarbhai is residing near me in Shihor. We all live in neighbourhood since many years. My uncle Gobarbhai never lived in Ahmedabad. From the time I matured Gobarbhai is living in my neighbourhood. Gobarbhai was in jail Page 23 of 54 R/CR.A/1000/2010 CAV JUDGMENT everyone talked about it, my father was also in jail with Gobarbhai. I am not aware of the fact that why were they in jail. I have seen my father from 15 to 20 years. When I had matured then my father was in Sabarmati jail. It is not true that they were in Sabarmati jail. It is true that I am not aware that they were in which jail. I am not aware if the fact that my father and uncle had murdered two persons near Shihor court. I am not aware of the fact that my father and my uncle and six others were sentenced to life imprisonment by the Bhavnagar Sessions Court. I am not aware of the fact that, the Hon. High Court had confirmed this sentence. I have never asked my father that why were you in jail. I had come to know that my father was sentenced to life imprisonment in murder case. It is true that Gobarbhai was also sentenced in this case. There is no reason to suppress the sentence of my father. It is not true that, due to this conviction of Gobarbhai in murder case there were disputes going on. The deceased Ramabhai had minor and major disputes for this reason, this is not true.
4. It is true that Sajanbhai Bhalabhai Bamba is Bharwad by caste. He is driving rickshaw. It is not true that, he was the friend of the deceased Ramabhai. I say that both of them were rickshaw drivers therefore they were acquainted. The deceased Ramabhai came into rickshaw driving line about two years Page 24 of 54 R/CR.A/1000/2010 CAV JUDGMENT ago. Sajanbhai Bhalabhai and Ramabhai Gobarbhai were senior junior at school and so they know each other. I know Sajanbhai Bhalabhai as community fellow. I know Boghabhai Bhikhabhai Bodiya. Their caste is Bharwad. In the social events we went together that is how I know him. When I had matured I know since then. I do not know Chhaganbhai Kodi. Where I live is Kansara Bazar, Kalica Mata lane. I do not know Surabbhai Bhikhabhai. I do not know Valji Naran, Vasant Bhanushanker, Bhikhabhai Bhayabhai, Raju Bhagwan, Rambhai Devabhai, Dilipbhai Mansukhbhai, Kishor Jayantilal, Dhiru Pakabhai, Karshan Kalabhai. I know Jhalabhai Vashrambhai Rathod. I know him since the time I matured. He is my cousin. Ratanben Ramabhai is my sister-in-law. Devuben Gobarbhai is my aunt. Balabhai Hamabhai is my cousi. Sureshbhai Danabhai is my cousin. I do not know Ghelabhai Ratnabhai. Gobarbhai is my uncle. Surabhai Nathabhai is my real elder brother. Munnabhai Gokulbhai is of my caste. Jhalabhai Bhankabhai is my uncle.
5. I am plying rickshaw since four-five years. I am plying auto rickshaw. I am plying three seat rickshaw. I am plying three passenger rickshaw. For plying rickshaw we need badge, but I do not have badge. I was keeping my rickshaw at the Page 25 of 54 R/CR.A/1000/2010 CAV JUDGMENT Shihor S.T. Stand. On that day in the morning I came at that time my rickshaw was kept in the S.T. Stand. It is true that this rickshaw stand is adjacent to the Bhavnagar-Rajkot highway. In this rickshaw stand there are six to seven rickshaw. It is true that persons of all castes are carrying on the rickshaw business. It is true that whenever the bus comes then we get passengers, otherwise we have to keep waiting. It is true that near the rickshaw stand there are cabins. On that day I had passengers of our village. It was of about fifteen to twenty rupees. Taking the said fare I had to go to old Shihor. The passenger was of old Shihor. There were three passengers. I had returned back without passengers. And in the return I had gone back to the S.T. Stand. Thereafter I had kept the rickshaw at the S.T. Stand.
6. From the Shihor bus stand in the village there is slope, it takes about one minute to climb. If there is traffic then it takes about two minutes time. While ascending and descending if there is traffic then it takes about two minutes. How much time it takes to descend I do not know. It is true that from Shihor village on descending the bus stand slope there is heavy traffic. From the rickshaw stand to walk upto the Muni complex it takes one minute. It Page 26 of 54 R/CR.A/1000/2010 CAV JUDGMENT is not true t hat from the bus stand on going to the Rajkot road there is no turning. It is true that from the Bhavnagar Rajkot road there is no straight road one has to turn. It is true that surrounding the Muni Complex there are several shops. If there is any passengers of Muni Complex then we go. Otherwise there is no occasion for going. On the day of the incident there was no passengers of Muni Complex. It is true that Rama Pancha and Deva Pancha both are real brothers. They are my cousins. These persons have shop. Their shops are situated in the Muni Complex. His shop is on the second floor. He has ready made garment shop. It is true that the incident of the deceased Ramabhai had taken place on the Muni Complex otla. From there the stairs is at a distance of about seven to eight steps. It is true that, from the Muni Complex the stairs is circular. There is slope in the Muni Complex therefore the steps are big. Without work I do not go to the compled. I had not gone there.
7. First I had gone to the Shihor Civil Hospital. I was given treatment by doctor. Doctor had not asked that who has assaulted. I had said to him that I was injured in scuffle at Shihor. Now I say that I had said that I was assaulted. I had not given the names of assailants to the doctor. I had not said to Page 27 of 54 R/CR.A/1000/2010 CAV JUDGMENT the doctor that I was assaulted, but other persons were talking I had heard and said. I had shown injuries on right hand, right thigh, left knee, doctor had examined my injuries. Doctor had given me treatment. I had not informed the Shihor doctor that I was injured by which weapon. It is not true that I had not said that I was injured with Ramabhai. We had stopped at Shihor hospital upto about 1/10. Thereafter I was brought to Bhavnagar. We had reached Bhavnagar at about one thirty.
8. I was brought to Bhavnagar Sir T. Hospital, we were about four-five persons. Amongst us were two-four persons of our caste. The police did not come with me to Bhavnagar hospital. I am not aware of the fact that whether the Shihor doctor had made a note to the doctor at Sir T.Hospital Bhavnagar or not? In the Bhavnagar hospital with regard to my treatment there was no note by the police. The Shihor doctor had said that I will have to take treatment at the Bhavnaga Sir T. Hospital. In the Bhavngar Sir T. Hospital I was first taken to a room and thereafter the doctor came. Bhavnagar Sir T. Hospital doctor had not asked me that, who has assaulted and using which weapon. I had not said that, who had assaulted me and using which weapon. It is true that in the Bhavnagar Sir T. Hospital I had informed that six persons had dealt Page 28 of 54 R/CR.A/1000/2010 CAV JUDGMENT me knife and stick blows. It is true that, in the Bhavnagar Sir T. Hospital I had not given the names of the assailants to the doctor. I am not aware of the fact that in then Bhavnagar hospital Ramabhai Gobarbhai was injured with me or not whether I had said this or not I do not remember. I had stayed at the Bhavnagar Sir T. Hospital for two days. When I was at the Bhavnagar hospital at that time Shihor police came to me. On the day when the incident took place on that day in the evening at about three to four the police came to me. The police that came from Shihor on the date of the incident they had not interrogated me. I am not aware that on that day the police had taken my signature or not. I do not remember that in the evening on that day Shihor police had taken my thumb impression or not. It is not true that I was not injured on my fingers. There was no bandage over my fingers. There was also no tape on my fingers. It is true that on the date of incident the Shihor police came in the evening to Bhavnagar Sir T.Hospital and taken my thumb impression.
9. When I saw for the first time then no assailants carrying sticks were assaulting my deceased brother. When I saw for the second time then there was no one causing injury using stick. It is Page 29 of 54 R/CR.A/1000/2010 CAV JUDGMENT true that during the entire incident my brother was not caused injuries using sticks, it is true that Deva Pancha had not caused any injury using knife. It is true that Rama Panha and Deva Pancha are my community brothers, therefore I had identified them. It is true that, Lada Natha, Bhopa Ratna, and Munnabhai Sarabhai are of my community therefore I had identified them. It is true that of all the accused no accused is named Bhakabhai Nathabhai. It is not true that my brother Ramabhai Gobarbhai was caused injuries by Bhankabhai Nathabhai using knife.
10. I was assaulted by Natha Vala, Bhjopa Ratna and Munna Sarabhai indiscriminately. And Natha Vala had caused how many injuries I cannot say. It is true that, I cannot state definitely that, the assailants carrying sticks and knife had caused me which definite blow on which part of my body. Bhopa Ratna had caused injury on which part of my body I cannot say. How much definite injuries were caused by Munna Sarabhai I cannot say. It is not true that in this incident I did not sustain any injury.
11. Xxx
12. xxx
13. It is not true that the deceased Rama Gobar had gone to the shop of Rama Pancha and Deva Page 30 of 54 R/CR.A/1000/2010 CAV JUDGMENT Pancha to assault him. It is not true that, thereafter he came down and Bhanka Natha had dealt knife blows. It is true that the incident of rickshaw and motor cycle colliding incident in the said incident I was not present. Ramabhai had talked about this incident. He had told me on 19 th date. On 19th at the time of meals he informed. I had not said that, the complainant was lodged in the police station. The family elders informed. In this incident Ramabhai Gobarbhai was innocent. It is not true that, therefore I and my brother had grudge against Pancha Devabhai. It is not true that due to this grudge in this incident they are wrongly implicated. It is not true that no such incident had taken place. The first incident had taken place in Kansara market. There is movement of public there.
14. It is not true that, I have not eye-witnessed the incident. It is not true that in this incident I was not injured. It is not true that in this incident I was not injured by any weapons. It is not true that, in the complaint I do not know any facts other than the thumb impression. It is not true that in this incident Rama Gobarbhai was not caused any injury. The deceased was my cousin therefore I am making false statement. It is not true that I am tutored the deposition. And I have deposed Page 31 of 54 R/CR.A/1000/2010 CAV JUDGMENT accordingly.
No re-examination.
DEPOSITION OF PROSECUTION WITNESS NO, 5 EXH. 23 Name :: Kalpeshkumar Father's name :: Trikamdan Gadhvi Occupation :: Medical Officer
1. In September 2008 I was working as Government Medical Officer at Shihor. ...
2. xx
3. As per the examination by me the injuries mentioned in the column No. 17 ::
(1) On the left side of the neck left between the sterno vacular joint towards the outside on the left 10cm long 12 cm wide, cavity deep injury, the margin was sharp. And the artery in the neck and the veins were injured, and the skin was peeled. (2) Above the navel on the right side stab injury 9 cm long 4 cm wide and 7cm deep. Margin was sharp. And due to this injury the muscles were cut , but it was not cut right upto the stomach. That certain injuries noticed by PW-5 are briefly mentioned in column 17 of autopsy report and are as under:Page 32 of 54 R/CR.A/1000/2010 CAV JUDGMENT
Injury No.1 as mark on left side of neck, in between left sternokevicular joint on outer part of left side measuring 10 cm length x 10 cm width and deep to cavity with sharp margin and veins and there are cuts.
Injury No.2 is about stab wound on upper left measuring 9 cm x4 x7 with sharp instrument. However no contradictory is seen externally or internally but contractions of lungs was noticed and both the lungs and breathing pipes were damaged. That main catrotide arteries were also cut and on the left side of the neck and left peletis ternovulus and other veins of neck were also found new cut. Both the injuries would cause death and knifes shown to above PW were found sufficient to cause such injuries.
Dr. Brijesh PW-17 Exh-78 Bhavnagar who treated Samantbhai Nathabhai injured complainant and noticed and recorded 6 injuries on a person of injured in addition to 3 injuries recorded in injury certificate . Exh.26 of Dr. Kalpesh PW-5 of CHC Government Hospital at Shihor. Dr. Brijesh PW-17 in terms deposed that such injuries could be possible upon injured due to inflicting or yielding sticks.
4] Externally there was no fracture seen. In the interna examination as shown in the column No. 19 fracture or other injuries were not seen. In column 20 muscle or Page 33 of 54 R/CR.A/1000/2010 CAV JUDGMENT bone injury was not found. The lungs wall had collapsed. The windpipe was shrunk. The right and left lung were deflated. The heart was pale. The heart chambers were empty. And the left side charotid artery was cut. It was cut from the middle.
5] on the left side of the neck lact platis ternoquola mystoid, below this area the neck region nerves and muscles were found cut.
6] Injury No. 1 mentioned in the column No. 17corresponding injury in the internal examination on the left side of the neck internal regular vein and left side charotid artery were found cut in the middle and left side patis muscles left side anokulometro and below the same nerves ands muscles were cut. Column No. 17 injury No. 2 did not have any corresponding internal injury.
7] due to the injury mentioned in the column No. 17(1) death is probable, due to the 17(2) injury also the death is probable, column No. 20, in the internal examination inside the abdomen and softness were pale. Buccal cavity, teeth, tongue and neck pipe were as shown in the column No. 13. the food pipe was shrunk. Inside the stomach there was semi digested liquid food. Small and large intestine were empty and became pale, kidney, spleen, liver and bladder had become pale and Page 34 of 54 R/CR.A/1000/2010 CAV JUDGMENT the bladder was empty. On the genitals there were no external injuries. The death had taken place 2 to 4 hours from the time of meals taken before death. On the spine and spinal column there were no injuries seen.
8] I am shown muddamal No. T black fiber handle fitted stainless steel knife. On looking at the same I say that, the injury No. 1 mentioned in the postmortem report is probable. I am shown muddamal article No. R knife, and muddamal article No. T knife and muddamal article No. S/2 knives, on looking at the same I say that the injuries mentioned in the postmortem report are probable using these knives.
9] In the postmortem report the injuries mentioned were ante mortem. As per the findings and opinion note in the postmortem report column No. 23 the death had taken place.
The hemorrhage and excessive bleeding and lungs collapsed and the main veins in the neck were cut and due to shock ad injuries this death had taken place. Original postmortem report is produced below Mark 14/14. It is recorded in my handwriting and below the same I have impressed my designation stamp and signed. Also the stamp of designation of other doctor is impressed and signed. It is given Exh. 25.
Page 35 of 54 R/CR.A/1000/2010 CAV JUDGMENT10] On 30/9/2008 Samat Nathabhai was examined and he was given primary treatment and referred to Bhavnagar civil Hospital. The original case papers of this examination are in the Shihor Government Community Health Center. The injury certificate of Samat Nathabhai is produced below Mark 17/1. on perusal of the same I say that this witness was injured by use of knife and on the right thigh due to attack as stated by the injured. On examining the injured on the right thigh 7 cm long 1 cm wide skin deep injury was found. And abrasion with contusion on the right hand upto the elbow was found. On the right hand and shoulder there was swelling. The patient was conscious and was able to walk. He had given his history. This patient was referred to Sir T. Hospital for further treatment.
I am shown muddamal knife, on looking at the same I say that using such weapon the injury on the back side of thigh is possible. Mark 17/1 certificate dated 22/7/09 is in my handwriting, and below it my designation stamp is impressed and signed.
4. This certificate Mark 17/1 original is produced, it is given Exh. 26. the injuries mentioned in the Exh. 24 PM note are such that are sufficient to cause death in natural course of life.
cross examination on behalf of the accused ::
Samatbhai Nathabhai came to me at 11/30 hours.Page 36 of 54 R/CR.A/1000/2010 CAV JUDGMENT
It is true that, he came without police yadi. When Samantbhai Nathabhai Bharwad came to me for treatment at that time he came with police yadi or without police yadi was not stated in the Sir T. Hospital therefore I cannot state that he came with police yadi or without police yadi. When Samantbhai Nathabhai came to me for treatment at that time he was with police. It is true that, when a patient is brought with police then the name of the police accompanying, designation, and badge number have to be recorded. But I had not recorded in the certificate. He was brought to me at 11.30 hours so I had immediately started the treatment and at 11/50 I had completed his treatment, it is true that Samantbhai Nathabhai came to me for treatment then I had come to know that his case was a medico legal case. It is true that in the MLC case when patient is conscious then the history relating to the incident has to be recorded from him, and the history which is stated by the patient has to be recorded by us. In this case also the patient Samantbhai Nathabhai had given the history and I had recorded the same history. It is true t hat, the patient Samantbhai Nathabhai was asked the names of the assailants he had not given me the names of the assailants. It is true that, I had asked the number of persons who had assaulted him, but he had also not given me the number of assailants in the history. It is true that, the patient Samantbhai had in the history Page 37 of 54 R/CR.A/1000/2010 CAV JUDGMENT stated the fact of injury using only one weapon that is knife.
Page 4 last para It is true that, till the time the age of the injury is not known till then it cannot be said that how long ago the injury was caused. It is true that, in Exh. 26 Samantbhai Nathabhai MLC Certificate the age of the injury is not stated. It is true that, patient Samantbhai Nathbhai had given me history but he had not stated when he was injured, this fact was not stated.
It is true that, the patient Samantbhai had at the time of history not stated that another person was also injured. It is true that, the patient Samantbhai had at the time of giving history he had not stated that while he was trying to rescue another person he was injured.
It is true that, the patient Samantbhai Nathabhai injury No.1 shown in the Exh. 26, it is contusion lacerated wound. It is true that, CLW can be caused using hard blunt substance. It is true that, the injury No. 1 caused to the injured Samantbhai Nathabhai was on the thigh, if the person suddenly falls on the ground due to his body weight then injury No. 1 like injury can be caused.Page 38 of 54 R/CR.A/1000/2010 CAV JUDGMENT
It is true t hat, at the time of auto[psy of corpse of the deceased Ramabhai Gobarbhai in the internal and external examination there was no injury caused by stick found.
It is true that, the deceased Ramabhai Gobarbhai during autopsy column No. 17 there was no corresponding injury to the external injury No, 2. It is true that, there was no corresponding injury to the injury No. 2 therefore it cannot be considered as serious. It is true that in the PM coulmn 23 before giving the cause of death all the cause of death were examined and then the panel doctor with me had given the cause of death. .... It is true that whenever any weapon having both sharp edges is used then the external injury in the column No. 17 are caused then both side margin of the injury and edges would be clean cut. It is true that when column No. 17 injuries shown one side of weapon is sharp and other side is less sharp that is it is blunt then using such weapon then the sharp edge of the weapon causing injury edge would be clean cut. Whereas on the second side that is, the part that is less sharp or blunt then the margin edges would be rugged that is irregular. ...... it is true that column no. 17 injury No. 1 and 2 are not possible using muddamal knife.
I am shown muddamal article No. Mark S black handle Page 39 of 54 R/CR.A/1000/2010 CAV JUDGMENT steel knife on which Royal is written, on looking at the same I say that, it is also having one side sharp and the other side is blunt. It is true that black fiber Mark T knife is shown, on looking at the same I state that, one side is sharp and the other side is blunt. It is true that, on looking at the muddamal article Mark T knife I state that definitely it cannot be said that the injury No. 1 caused to the deceased in column No. 17 was caused using this weapon cannot be said. It is true that, I had treated the patient Samant Nathabhai and no compounder had treated him. It is true that, the deceased Ramabhai Gobarbhai was caused injury which was bleeding injury.
Exh. 27 Deposition of PW 6 My name Jhalabhai Father's name :: Vashrambhai Rathod Aged 22 years, Occupation :: Rickshaw Driving Add. Old Shihor, District :: Bhavnagar Chief examination
1...... This red colour morot cycle was driven by Ramabhai Panchabhai. There were two pillion riders on the back of the motor cycle. Those persons were Lakha Natha and Natha Valabhai. The other motor cycle was black colour. Devabhai Panchabhai was riding this motor cycle. There Page 40 of 54 R/CR.A/1000/2010 CAV JUDGMENT were two pillion riders on this motor cycle. Both these persons were Munna Sara nd Bhopabhai Ratnabhai. The pillion riders on the motor cycle carried open weapons knife and stick. After these persons had passed then I had taken my rickshaw and went towards LD Muni complex. I had reached the shop of Rajubhai Vaniya in LD Muni complex, there my cousin Ramabhai Gobarbhai was lying in bleeding condition on the otla of the shop. My cousin Samantbhai Nathabhai was also lying in bleeding condition. At this place Balabhai Hamabhai was also there, thereafter myself and Balabhai and Samantbhai had boarded Ramabhai in rickshaw. And left in rickshaw for going to the Shihor hospital. I had asked Ramabhai Gobarbhai that, Ramabhai what happened, so Ramabhai Gobarbhai had informed me that Lakhabhai Nathabhai had dealt him knife blow on his neck and Rama Pancha had dealt blow on his stomach. Samantbhai hd said that, he had intervened to rescue Ramabhai, therefore bhopa Ratna, Muna Sara, Natha Vala, had dealt stick blows. And Deva Pancha had dealt him knife blow on the back. We had taken the autorickshaw and came to the Shihor Civil Hosptial. In the hospital the doctor took Ramabhai to a room. And thereafter declared that Ramabhai Gobarbhai had expired. In the hospital Samantbhai was given treatment. Thereafter Page 41 of 54 R/CR.A/1000/2010 CAV JUDGMENT Samantbhai was taken from there to Bhavnagar Sir T. Hospital for treatment. Thereafter I had gone to show the palce of incident. .....
Cross examination page 3 After alighting from the rickshaw his breathing had slowed. It is not true that, Ramabhai Gobarbhai was in no condition to speak.
Ramabhai Gobarbhai was lifted by Samantbhai and Balabhai. At that time there was little bleeding. There was bleeding from both injuries....
EXH. 31 Deposition of PW 31 I do hereby on solemn affirmation state that, my name :: Dr. Sanjaybhai Father's name :: Shyam Chaudhary Aged 38 Occupation :: Medical Officer, CHC Shihor Chief Examination APP Oath administered.
1. On 20/9/2008 I was on duty as medical officer at Shihor CHC, in the meanwhile the Shihor PSI had sent me one yadi, it was for performing autopsy.
Page 42 of 54 R/CR.A/1000/2010 CAV JUDGMENTWith the said yadi the after death form and inquest were received. This corpse was identified by Balabhai Hirabhai Bharwad. This corpse was of a person named Ramabhai Gobarbhai Bharwad. The autopsy was done on 20/9/2008 in the afternoon at two hours and concluded on the same date at 4-00 hours. This autopsy was done by myself and the panel doctor with me K.T. Gadhvi jointly. The age of this corpse was about 25 years and it was a male corpse, on the corpse there was sky blue colour full sleeve shirt, and coffee colour undergarment. The clothes were blood stained. The eyes of this corpse were half open, and on the neck on the left side there was bleeding from the injury, on the right hand of the corpse there was a tattoo mark. The mouth of the corpse was close. The tongue was a little inside and there was no bleeding from the ears and nose.
2. I am shown the original PM note Exh.25 in this matter, in its column No. 17 external injuries and in the column No. 20 internal injuries were shown. In my opinion the cause of death was due to cutting the vein on the neck and excessive bleeding and asphyxiation. In the Exh.25 PM note the signature and hospital stamp are put. The doctor with me Mr. K.T.Gadhvi had also put sign and hospital stamp. It is true that, all these injuries were ante Page 43 of 54 R/CR.A/1000/2010 CAV JUDGMENT mortem. On perusal of the column No.17 injuries it was sufficient for causing death in natural course of life. The injury in the column No. 17 were corresponding to the injuries in the column No. 20. the injury No. 1 in the column No. 17 was such that can be caused using sharp and pointed weapon. And that too it can be caused using knife. The muddamal article No.22 Mark T knife is shown to me, on looking at the same I say that the injury No.1 shown in the Column No.17 can be caused using this knife. The injury shown in the column No.17 can be caused using sharp weapon. And of these the injury No.2 can be caused using knife, the injury that was caused in the abdomen can be caused using the muddamal knife shown to me.
Cross examination on behalf of the accused by learned advocate Mr. U.R. Dave.
3. It is true that Dr. Gadhvi is senior to me. I have not given any treatment to Ramabhai Gobarbhai. It is true that, I was with Dr. Gadhvi in the PM room. I do not have any information about the previous M.C. There was court hearing after completing the same I had reached. Dr. Gadhvi had performed the autopsy and it was in handwriting. I had only signed.
4. Due to the injury No.1 the main artery sending Page 44 of 54 R/CR.A/1000/2010 CAV JUDGMENT blood to the heart was cut. If the artery is cut in this manner then the blood pressure becomes low and it starts flowing out of the body. The respiration process is asphyxiated due to shock and there is cardiac arrest. In this manner if the artery is cut then the above mentioned situation starts. Such injury does not get blood supply thus there is affect on all parts of the body. And by this injury the mind loses control, C.A.Ness also closes in this manner. It is true that due to such injury the patient becomes unconscious. It is true that due to such injury he cannot speak.
5. It is true that, any weapon margin and axis injury can be caused. If the weapon is sharp then it is clean whereas injury using blunt substance is irregular. It is true that the margin of both the injuries are recorded sharp. It is true that all the muddamal weapons can cause these injuries, it is not so. Such injuries can be caused using sword, knife, kirpan, like weapons.
No re-examination.
25. Upon over all considerations of facts and circumstances, record of the case of both these appeals containing oral and documentary evidence and judgment of conviction and sentence for life imprisonment upon the Page 45 of 54 R/CR.A/1000/2010 CAV JUDGMENT accused for offence under Section 302 and 149 of Indian Penal Code it appears that the complainant Samantha Rathod PW-20 injured eye witness and also cousin of the deceased who has narrated the incident in question in his complaint and almost stood by it in his testimony before the trial Court. It is trite that injured witness and his testimony is always on higher pedestal in eliciting truth and insignificant omissions, contradictions and discrepancies are of not much of importance. The testimony of injured eye witness PW-2 we have almost reproduced in earlier part of the judgment and it reveals his natural presence at the scene of offence as he was plying auto rickshaw and usually took passengers taking them to Shihor Town and back. The place of incident is not to far and its near by bus stand where the auto rickshaw is parked and accordingly version of PW-2 is free from any doubt or improbabilities. That there is no reason for PW-2 either to implicate all accused or to make false statement about participation of crime witnessed by him in which he also received injuries. That none discovered names of assailant initially before PW-5, Dr. Kalpesh of CHC, Government Hospital Shihor and also when he was taken for further treatment at Bhavnagar before Dr. Brijesh would never create any doubt inasmuch as PW-20 consistent of assault of 6 persons. Apart from 3 injuries recorded in injury certificate Exh.39 3 more injuries were also noticed at Exh. 42 when he was taken for further treatment given by Dr. Brijesh who also confirmed that Page 46 of 54 R/CR.A/1000/2010 CAV JUDGMENT inflicting of injuries by knife and stick is not ruled out. Therefore, truthfulness of testimony of above injured eye witness do not remain in realm of suspicion and it can safely be concluded that testimony of this PW is not only inspiring confidence but trustworthy and free from any blemish.
26. The above PW-2 is supported by other eye witnesses who helped injured Ramabhai who while brought in the CHC centre Shihor was declared dead. They are Jalabhai Vashram Rahtod PW-6 and Balabhai Hamabhai Rathod PW-10 Exh.27 and Exh. 32 respectively. Though in his deposition Jalabhai Vashrambhai Rathod PW-6 states that he did asked Ramabhai Gobarbhai about the incident which he replied that Lakhabhai Natha A-1 and Rama Pancha A-2 had inflicted blow on knife on his neck and abdomen. That Balabhai Hamabhai Pw-10 Exh.32 was also present on the place of scene of offence when it took place and vividly described the incident and in cross- examination stand by his version about witnessing the assault and having seen 2 injuries by knife on persons of the deceased. Thus, version of the injured eye witnesses and other eye witnesses established the case of prosecution so believed by the learned Judge.
27. So far as medical evidence about nature of injuries, Dr. Sanjaybhai PW-9 Exh. 31 panel Dr. for autopsy report at Exh. 25 confirms injuries upon deceased so reflected in column No. 17 and do not rule out any possibility of such Page 47 of 54 R/CR.A/1000/2010 CAV JUDGMENT injuries possible that knifes shown to him. In no uncertain terms the above PW depositions that such injuries can be caused using sword, knife Kirpan like weapons. In a medico legal case, when the autopsy is to be performed on a corpus the Dr. performing autopsy will undertake the procedure prescribed and notes are made accordingly in the column ending with cause of death. If testimony of PW-31 is seen, PM note, namely autopsy report Exh. 25 having seen the external injuries in column No.17 and internal injuries in column No. 20 it is deposed that the cause of death was due to cutting the face on the neck and excessive bleeding and asphyxiation. According to him injuries in column No. 17 were sufficient to cause death in natural course of life and their corresponding injuries in column No.20. The injuries can be caused using sharp and pointed weapon and that too it can be caused using knife. Under the circumstances when we have already reproduced nature of injuries as per PM note in earlier part of the judgment and testimonies of medical officers of CHC Shihor who performed autopsy on body of the deceased, arguments canvassed by learned counsel for the petitioner for creating doubt about cut on cretrotid artery is not that important to deliberate much on it when injuries on body of person of the deceased, on injured eye witnesses get total support from testimonies of injured eye witnesses complainant, other eye witnesses and medico legal opinion of experts, appreciation of evidence by learned trial Judge for arriving at findings and Page 48 of 54 R/CR.A/1000/2010 CAV JUDGMENT conclusions based on cogent reason cannot be said to be in any manner contrary to law or in any manner can be perverse warranting any interference by the Court exercising powers in its appellate jurisdiction.
28. Upon perusal of the decisions relied on by learned counsel appearing for the appellants-accused as well as learned APP on behalf of the State of Gujarat and law laid down therein in the context of facts and circumstances of each case, for which, we are in respectful agreement but in a case of a conflict between ocular testimony and medical evidence the Apex Court in the case of Thaman Kumar v. State of Union Territory of Chandigarh [(2003) 6 SCC 380] in para 16 deliberate on different situation of nature of allegations qua usage of weapons injuries and where there is a conflict between ocular testimony and medical evidence.
"16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension Page 49 of 54 R/CR.A/1000/2010 CAV JUDGMENT of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony."
29. Therefore, in the facts of the present case usage of knife by Ramabhai Paanchabhai Aalgotar-accused No.1 and Laakhabhai Nathabhai Aalgotar-accused No.3 both inflicted knife blow on neck and abdomen of Ramabhai Page 50 of 54 R/CR.A/1000/2010 CAV JUDGMENT Gobarbhai who succumbed to injuries and accused No.2- Deva Pancha who got hold of injured Samanthbhai, a complainant and therefore Samanthbhai was not able to save deceased and further inflicted blow of knife on thigh of Samanthbhai thus, accused No.2 is also equally guilty are well supported not only by ocular evidence but also by depositions of medical officer who performed postmortem note Dr. Sanjaybhai Shyam Chaudhary Exh.-21 and accordingly we find no substance in submissions of learned counsel Mr. A.D.Shah for the accused that there is a discretion in describing the nature of injury vis-a-vis usage of weapon and benefit of doubt to be given to the accused.
30. Thus, we find no error in the judgement and order of conviction and sentence qua accused Nos. 1, 2 and 3 for life imprisonment in view of their clear role surfacing on record in the testimonies of injured and other eye witnesses including nature of injuries and depositions of concerned medical officers. Accordingly, Criminal Appeal No. 1050 of 2010 stands dismissed.
31. So far as accused nos. 4, 5 and 6 of Criminal Appeal No. 1000/2010 are concerned, the trial Judge has ordered conviction and sentence for life imprisonment with fine of Rs.500 each and in default to further undergo imprisonment of one year on par with appellants of Criminal Appeal No.1050/2010 i.e. accused no.1 and 3 Page 51 of 54 R/CR.A/1000/2010 CAV JUDGMENT who inflicted fatal knife blows on neck and abdomen of the deceased and accused no.2 caught hold of the complainant and inflicted grievous injuries by knife and to that extent testimony of injured eye witness appears to be convincing and free from doubt. But careful analysis of ocular as well as medical evidence about injuries on deceased person as per column no.17 of postmortem report, deposition of doctor who performed such autopsy and examined the deceased, does not attribute or reveal cause of death caused by injuries by stick on any vital part of the body of the deceased. Therefore, testimony of injured eyewitness and other eyewitnesses to the extent above is not supported by medical evidence qua the nature of injuries on the deceased and therefore, under the circumstances, at the most presence of accused Nos.4, 5 and 6 is established at the scene of offence, but overt act is not proved beyond reasonable doubt by the prosecution. It is also surfaced on record that the accused had no intention to cause any fatal injury on vital part of the body nor they shared any common intention. That totality of the circumstances do not persuade us to take a view that mere presence at the scene of offence and being a member of unlawful assembly would result into punishment for life imprisonment, and therefore, we find that it is unsafe to convict and sentence accused Nos.4, 5 and 6 for life imprisonment.
32. Accordingly, the conviction of the accused Nos. 4, 5 Page 52 of 54 R/CR.A/1000/2010 CAV JUDGMENT and 6 who are appellants in Criminal Appeal No. 1000 of 2010 under Section 302 of Indian Penal Code vide judgment and order dated 31.5.2010 in Sessions Case No.5 of 2009 is converted to conviction for a period from the date of arrest i.e. 29.9.2008 till the date of pronouncement of judgement and order in this appeal. It is not in dispute as per jail record that accused Nos. 4, 5, and 6 were on bail during trial as well as in appeal, virtually they had not undergone any imprisonment as undertrial prisoners and even after conviction. In the above circumstances, Bhopabhai Ratnabhai Aalgotar A-4 , Mummanbhai Sarabhai Aalgotar A-5 and Nathabhai Valabhai Aalgotar A-6 are ordered to undergo sentence of rigorous imprisonment for a period equivalent to the number of days on which they remained on bail during trial as well as in appeal. The period of sentence already undergone shall be considered for remission of sentence qua accused Nos. 4, 5 and 6. The sentence of fine remains the same.
33. The impugned judgement and order dated 31.5.2010 in both these appeals is modified accordingly.
34. At this stage, Mr. A.D. Shah, learned counsel appearing for the accused sought eight weeks time to surrender before the jail authority for Accused Nos. 1, 2, 4, 5, and 6. The said request is granted and accused Nos. 1,2, 4, 5 and 6 who are on bail are granted eight weeks Page 53 of 54 R/CR.A/1000/2010 CAV JUDGMENT time from today to surrender before the jail authority. Bail bonds shall stand cancelled.
(ANANT S.DAVE, J.) (MS SONIA GOKANI, J.) SMITA Page 54 of 54