Gujarat High Court
Ramanbhai Mansukhbhai Tadavi vs State Of Gujarat on 27 March, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
R/CR.A/1253/2003 CAV JUDGMENT
CR.A12532003Rj4.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1253 of 2003
With
CRIMINAL APPEAL NO. 1254 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
==========================================
=============== 1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ?` No 3 Whether their Lordships wish to see the fair copy No of the judgment ?
4 Whether this case involves a substantial question No of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No ========================================== =============== RAMANBHAI MANSUKHBHAI TADAVI Versus STATE OF GUJARAT ========================================== =============== Appearance:
MR PRATIK B BAROT, ADVOCATE for the Appellants MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent ========================================== =============== CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and Page 1 of 29 R/CR.A/1253/2003 CAV JUDGMENT HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 27/03/2014 COMMON CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. Both these appeals are heard together and are disposed of by this common judgment as those arise from a common judgment passed by the learned Sessions Judge.
2. The accused No. 2 and 3 of Sessions Case No. 130 of 2003 have filed these appeals respectively against the order of conviction and the consequent sentence dated 7th October 2003 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Vadodara, whereby the learned Sessions Judge found both the appellants guilty of the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced them to life imprisonment and further to pay a fine of Rs.5000/- each with a further stipulation that in default of payment of fine, they would undergo further simple imprisonment for 30 days. By the said judgment, the learned Sessions Judge, however, acquitted the accused No.1 of the offence punishable under section 302 read with section 34 of the Act.
3. The translated version of the charge reads as under: Page 2 of 29 R/CR.A/1253/2003 CAV JUDGMENT
"As you, the accused persons, asked the deceased Amarsinh Suvanbha Vasava to give Rs. 1300/- which was outstanding, there was an altercation between you and the deceased on 18/2/03 at about 10.00 hrs at moje Araniya village. You, the accused persons harboured animosity regarding the same and you came with sticks and axes at about 17.00 hrs in connivance of each other in furtherance of your common intention. You, the accused no.1 possessed a stick in hand and you, the accused no.2 and 3 inflicted fatal blows with scythe on the head of the deceased and thereby caused the death of the deceased intentionally. You all the accused persons helped one another in committing such act and thereby you have committed punishable offence under section 302 read with section 34 of the I.P.C. within the jurisdiction of this Court.
Therefore, the trial of the abovementioned offence should be conducted against you, the accused persons in this Court."
4. The case made out by the prosecution may be summed up thus:
4.1 One Ranchhodbhai Amarsing lodged a complaint before the Dabhoi Police Station that he had been residing at Dabhoi Town for the last 12 years and his original village was Araniya and his parents and brother reside at Araniya and earned their livelihood by doing labour work.
4.2 On the last 17th February 2003 at about 7-45 hours in the night, somebody had told his wife from the street that his father has been Page 3 of 29 R/CR.A/1253/2003 CAV JUDGMENT injured in village Araniya. On being so told, he inquired on phone at village Araniya and one Kanchanbhai Lallubhai Bariya had told him that Manshukhbhai Koyjibhai Tadvi and his sons Raman Manshukhbhai Tadvi and Suresh Manshukhbhai Tadvi had inflicted axe blow on head, and he had sustained much injuries, and therefore, he must come to village Araniya. He, therefore, went to Araniya in a jeep from Dabhoi and after reaching his home, he saw that as his father had sustained head injury, he was bleeding and was lying on the cot. By that time, he had already died. He, therefore, asked his mother about the incident when she told that, Koyji Rama Tadvi, the father of Mansukhbhai, had mortgaged the farm to his brother Mohan Rama Tadvi before about ten-twelve years. Redemption of the said farm was done by Manshukhbhai Koyjibhai Tadvi from Mohan Rama Tadvi in the running monsoon season and at that time, his father, Amarsing Chuvanbhai Vasava, stood as surety. As Mansukh Koyji Tadvi did not pay the money to Mohan Rama, in the morning of 17th February 2003, Mansukh Koyji Tadvi met him near the water tank, and his father told him to give the money of Mohan Rama Tadvi. At that point of time, Manshukh had threatened to kill his father if he came in the farm in the outskirts. Thereafter, at about five o'clock in the evening, when his father and mother were standing outside the house near the raised platform (otla), Mansukh Koyji Tadvi armed with a stick in his hand, Ramanbhai Manshukhbhai Tadvi armed with an axe and Sureshbhai Mansukhbhai Tadvi was also armed with an axe in his hand, all three persons, had come there, and demanded to return Page 4 of 29 R/CR.A/1253/2003 CAV JUDGMENT money. After saying so, all the three persons rushed and as axe blow was given on the head of his father by Mansukh Tadvi, he fell down.
At this point of time, Suresh Mansukh had already inflicted axe blow on head and Mansukh Koyji Tadvi armed with a stick rushed to beat his mother and she entered into the house shouting and closed the door. As she shouted, all these three persons rushed towards Nagdol. Therefore, all these three persons have committed murder by inflicting axe blow on head to his father.
4.3 Upon getting the said complaint, the police registered an offence and commenced investigation. The clothes worn by the deceased were seized after recording panchnama thereof in the presence of panchas and the dead-body was sent for postmortem examination. The accused were apprehended and on completion of investigation, as sufficient pieces of evidence were found against them, the charge was filed against them in the Court of Judicial Magistrate, First Class, Dabhoi. However, as the case was exclusively triable by the court of Sessions, the learned Magistrate Committed the accused to the Court of Sessions.
4.4 The accused pleaded 'not guilty' and claimed to be tried. The accused were, therefore, tried and during the trial, the prosecution examined the following witnesses in support of their case: Page 5 of 29 R/CR.A/1253/2003 CAV JUDGMENT
Sl. Name of the witness PW. Exh No. No. No. 1 Ranchhodbhai Amarsinh Vasava. No.1 Exh. 8 2 Bachubhai Govindbhai. No.2 Exh.10 3 Kanchanbhai Lallubhai. No.3 Exh.13 4 Jasubhai Zinabhai. No.4 Exh.14 5 Umakant Bachubhai. No.5 Exh.16 6 Virambhai Shankarbhai. No.6 Exh.19 7 Bijuben Amarsing Chauhan. No.7 Exh.22 8 Govindbhai Bachubhai Haraniya. No.8 Exh. 23 9 Rameshbhai Balubhai Bariya. No.9 Exh.24 10 Dasharathbhai Mohanbhai Tadvi. No.10 Exh. 25 11 Narpatbhai Chaturnbhai Vasava. No.11 Exh.26 12 Jashodaben Bhagvanbhai Bariya No.12 Exh.27 13 Vasantben Bhikhabhai Vasava. No.13 Exh. 28 14 Shantaben Chhitabhai Bariya No.14 Exh. 29 15 Subhashchandra Jentilal Shah. No.15 Exh. 30 16 Vikramsinh Dipsinh Rathod. No.16 Exh. 32 4.5 The prosecution also produced the following pieces of
documentary evidence in support of their case:
Sl No Nature of document Exh.No. 1 The Complaint. Exh.9 2 The Inquest Panchanama Exh.11 3 The Panchanama of the scene of offence. Exh.12 4 Slip signed by panchas. Exh.15 5 Panchanama of the clothes of the deceased. Exh.17 6 Discovery Panchanama. Exh.20 7 Panchanama of body condition. Exh.21 8 P.M. Note. Exh.31 9 Papers pertaining to FSL. Exh.33 to 35 Page 6 of 29 R/CR.A/1253/2003 CAV JUDGMENT
4.6 Upon completion of the evidence, the statement of the accused were recorded under section 313 of the Code of Criminal Procedure wherein the accused have stated that a false case has been filed against them.
4.7 On conclusion of the trial, the learned Sessions Judge convicted and sentenced the accused-appellants as stated hereinabove. 4.8 Being aggrieved, the original accused No.2 and 3, as stated above, have preferred the present appeals.
5. Mr. Pratik Barot, the learned advocate for the appellants, laboriously contended before us that the learned Sessions Judge committed substantial error of law in convicting the two appellants on the basis of evidence adduced by the widow of the victim who was the most interested witness. According to Mr. Barot, there being enmity between the accused persons and the deceased, in the facts of the present case, the learned Sessions Judge should not have relied upon the statement of the widow of the victim. Mr. Barot further contends that it would appear from the evidence adduced by other prosecution witnesses, viz. PW. No. 8 to 11 and PW No. 13 and 14, who claim to be eyewitnesses, that they arrived at the spot of occurrence after the incident, and, therefore, they have merely reiterated the version of the PW. NO.7.
Page 7 of 29 R/CR.A/1253/2003 CAV JUDGMENT 5.1 According to Mr. Barot, in the present case, although PW. NO.7 has alleged that the two appellants had axes in their hand and both of them applied axes on the victim, the medical report, however, indicates that there was only one injury by axe on the head of the victim. By relying upon the aforesaid medical evidence, Mr. Barot tried to convince us that the medical evidence having disproved the version of the widow of the victim, it is a fit case where the learned sessions Judge should have given benefit of doubt to the appellants. 5.2 Mr. Barot lastly contented that in the present case, at least both the accused persons cannot be convicted since there is only one injury caused by the axe whereas it is the case of the prosecution that both had axes in their hands. Mr. Barot, therefore prays for setting aside the order of conviction.
6. On the other hand, Mr. Raval, the learned Additional Public Prosecutor appearing on behalf of the respondent-State has supported the order impugned and has contended that in view of the evidence given by at least five eyewitnesses apart from the widow of the victim, who were impartial persons of the locality, there is no justification of disbelieving the case of the prosecution. Mr. Raval, therefore, prays for dismissal of the appeals.
7. Before we proceed to consider the submissions made by the learned counsel for the parties, we deem it proper to appreciate Page 8 of 29 R/CR.A/1253/2003 CAV JUDGMENT the oral evidence adduced by the witnesses on behalf of the prosecution.
8. The complainant, Ranchhodbhai Amarsinh Vasava, who happens to be the son of the victim, is examined as PW. No.1. In his examination-in-chief, he has stated that the deceased Amarsinh was his father. He has stated that he knew the accused persons and he has identified all the three accused persons who were present in the Court. According to this witness, the incident occurred on 17th February 2003 at 5.00 hrs in the evening. The incident occurred as his father Amarsinh came out of the door of the house. 8.1 This witness was at Dabhoi when the incident occurred. His wife informed him at Dabhoi that his father had sustained an axe blow. Thereafter, he went to Araniya from Dabhoi in a jeep. The dead-body of his father was lying over there near the door of the house. It was kept on a cot. As he asked his mother regarding the incident, his mother informed him that three accused persons came and after assaulting his father, they had gone away towards Nagdol. His mother also informed him the names of these three persons, wherein his mother stated the names of all the three accused persons. His mother stated that the accused Raman and Suresh had axes in their hands and the accused Mansukh had a stick. His mother further informed him that as the accused persons assaulted with the above stated weapons, his father died. Therefore, he filed a complaint Page 9 of 29 R/CR.A/1253/2003 CAV JUDGMENT before the police. This witness has proved the complaint and his signature thereon.
8.2 In the cross examination, this witness had admitted that he had no personal information about the incident and he was not present at the time of the incident. He has also admitted that he has stated regarding the incident by relying upon the statements of his mother.
9. PW. No.2 is Bachubhai Govindbhai. In his examination-in-chief, he has stated that the police called him in front of the house of Amarsing on 18th February 2003 and he was present there. The dead- body of Amarsing was lying on a cot and panchnama of the same was drawn. Thereafter, the police obtained his signature in the panchnama. He has proved the panchnama.
9.1 Thereafter, according to this witness, the police obtained his signature on another panchnama of the place of offence. He has proved the said panchnama and his signature thereon. This place was near the door of the house of the deceased. The panchnamas were read over to him and he had dictated panchnama accordingly. 9.2 In the cross-examination, this witness has admitted that the panchnama was written by the police and he made signature thereon.
10. PW. No. 3, Kanchanbhai Lallubhai, in his examination-in-chief Page 10 of 29 R/CR.A/1253/2003 CAV JUDGMENT has stated that the police called him in front of the house of Amarsing on 18th February 2003 and the dead-body of Amarsing was lying over there in a cot. He has proved the panchnama and his signature thereon. Thereafter, his signature was obtained on the panchnama of the place of offence. He has also proved the panchanama. He has stated that both these panchnamas were shown to him and he dictated panchnama accordingly and the police obtained his signature.
10.1 In the cross-examination, this witness has admitted that the panchnama was written by the police and his signature was obtained thereon.
11. Jashubhai Zinabhai, PW. No.4, in his examination-in-chief has stated that the police called him on 18th February 2003 for the panchnama of seizure of clothes of Amarsing. A woolen jersey of dark brown colour, a white dhoti and a woolen cap were seized in his presence. He has proved the panchnama and his signature. 11.1 In the cross-examination, he had denied that the clothes were lying over there and panchnama was drawn in his presence. 11.2 This witness was recalled for evidence upon an application by the learned Additional Public Prosecutor. He was shown panchnama Exh.18 and he has identified his signature thereon. Page 11 of 29 R/CR.A/1253/2003 CAV JUDGMENT 11.3 In the cross-examination, he has admitted that the police obtained his signature on a ready-made panchnama.
12. Umakant Bachubhai, PW. No.5, in his examination-in-chief has stated that the police called him on 18th February 2003 for preparing the panchnama of seizure of clothes of Amarsing. A woolen jersey of dark brown colour, a white dhoti and a woolen cap were seized in his presence. The same were shown to him and he has identified them, and has proved the panchnama and his signature thereon.
12.1 In the cross-examination, he has admitted that the panchnama was a ready-made one and it bears his signature.
13. PW. No.6, Virambhai Shankarbhai, in his examination-in- chief, has stated that the police called him to Araniya village on 26th March 2003. Ramanbhai disclosed an axe in his presence. That axe was in the field situated at the opposite side of his house. The same was seized in his presence. This panchnama was drawn in two parts; therefore, it bears his signature twice. He has identified both the panchnamas and his signature thereon. He has also identified the muddamal axe.
13.1 Panchnama of physical condition of Mansukh Koyjibhai Page 12 of 29 R/CR.A/1253/2003 CAV JUDGMENT Tadvi was drawn. He has also proved the said panchnama and his signature thereon.
13.2 In the cross-examination, he has admitted that he made signatures on the panchnama of Exh-21 and Exh-22 at different times. These signatures were made in the afternoon. He has also denied that the axe was in the police station. He has also denied that the accused has not disclosed the axe and he was giving false deposition.
14. Wife of the victim, Bijuben Amarsinh Chauhan was examined as PW. No. 7. In her examination-in-chief, she has stated that she knew the accused persons of this case viz. Mansukhbhai Koyjibhai, Ramanbhai and Sureshbhai. The deceased Amarsing was her husband. The incident occurred about six months back. The incident occurred at 5.00 hrs in the evening. The incident took place in front of her house. All these three accused persons came to her house, wherein Mansukhbhai had a stick, Ramanbhai had an axe and Sureshbhai also had an axe. All these three accused opened the door and entered into the house. Thereafter, the accused Suresh gave an axe blow to her husband and Ramanbhai also gave axe blow on the head of her husband, and therefore, her husband fell down. She was standing near them. Thereafter, those persons escaped after assaulting and went towards the river. Thereafter, she started shouting and the people of village rushed to the place. They lifted her Page 13 of 29 R/CR.A/1253/2003 CAV JUDGMENT husband and took him in the house and soon after that, her husband died. The people of village chased the accused. Mansukh gave a stick blow to her husband and he also gave a stick blow to her, but as she moved away, she did not get injured. The police recorded her statement. She has identified the muddamal stick and axes before the Court.
14.1 In the cross-examination, she has admitted that a school is situated in front of her house. Thereafter she stated that the school was situated beside her house. She has denied that when the incident occurred, she and her husband were in the courtyard of the house. She has stated that they were in the courtyard outside the door of their house. She has admitted that when there was uproar in the street, she was at her house. When there was uproar near the water tank, she was at her house. At that time altercation was going on among Mansukh Rama, Amarsinh Chauhanbhai and Dashrath Mohan regarding money and she has not gone near the water tank. 14.2 She has admitted that she did not know that there was an altercation between her husband and Mansukhbhai. Thereafter the witness willingly stated that there was altercation regarding money. She had denied that she came to know about the matter of money as her husband told her about it. This witness has thereafter willingly stated that Rs. 3000/- were paid and there was bond of Rs. 1300/-. Page 14 of 29 R/CR.A/1253/2003 CAV JUDGMENT 14.3 She has admitted that if anyone wanted to come to their house from the road, they have to come after opening the gate. She has denied that she was not in the house when the accused persons arrived. The witness willingly stated that she was in the courtyard at that time. She has admitted that she started shouting when the accused persons arrived. The witness willingly thereafter stated that she started shouting after the accused persons assaulted her husband. She has admitted that there are houses of many persons situated in the surroundings of her house. She has denied that when the accused Mansukh gave a stick blow, she was not present there. She has denied that the accused persons have not assaulted her husband, but as there was scuffle, he fell down in the courtyard and he was hit by the door. She has denied that no such incident has taken place or that as her husband became a guarantor of the accused Mansukh, she was giving his name falsely.
15. PW. No.8, Govindbhai Banchabhai Haraniya/Bariya has, in his examination-in-chief, stated that about seven months have passed after the incident. The incident occurred at 5.00 hrs in the evening in the courtyard of the house of the deceased Amrabhai. Mansukhbhai had a stick at the time of the incident and the remaining two accused persons had axes in their hands. The witness has identified the accused persons before the Court. However, he could not identify the Muddamal axes and the stick as he had seen them from a distance, but he asserted that the weapon was an axe Page 15 of 29 R/CR.A/1253/2003 CAV JUDGMENT and he had seen that the accused had a stick in his hand. As Narpatbhai shouted, they ran. He had seen the accused persons running with axe and stick and they chased them, but as they were not caught, they came back. After returning, he saw the deceased in a bleeding condition and thereafter, he went back to his house. 15.1 In the cross-examination, this witness has admitted that he has not eye witnessed the incident when it occurred. He has denied that he came to know about the incident at the instance of Narpatbhai. The witness has willingly stated that as Narpatbhai started shouting, he went to the place of incident and he saw the accused persons running from a distance of minimum 50 feet distance. He saw the weapons, when the accused persons were running away. Thereafter he has not seen the weapons after the accused ran ahead. He has stated that he did not mean that he met the accused persons.
15.2 He has denied that he was in his house at the time of the incident. The witness has willingly stated that he was at the outside of his house at the time of the incident. He has admitted that Narpatbhai had shouted, therefore, he came to the place of incident. He did not know as to for what matter the incident occurred.
16. Rameshbhai Babubhai Bariya, PW. No.9, in his examination-in-chief has stated that the incident occurred about Page 16 of 29 R/CR.A/1253/2003 CAV JUDGMENT seven months ago. The incident occurred at 5.00 hrs in the evening. He knew the accused persons. They belong to his village. He knew the deceased Amarsing. Narpatbhai Chaturbhai shouted at the time of the incident, therefore, he rushed to the place and he saw the accused escaping at that time. The accused Mansukh had a stick in his hand and the remaining two accused persons had axe in their hands. Thereafter, other people of the village also ran. But, those persons were not caught, therefore, they came back. Thereafter, he took the deceased Amarsing in the house and he had died. He was smeared with blood. He has identified the muddamal stick which was in the hand of the accused Mansukhbhai. He could not identify the muddamal axes and he was not able to state as to whether these are the same axes which were in the hands of the accused persons because the accused persons were at a distance. He saw injuries on the head part of the deceased.
16.1 In the cross-examination, this witness has admitted that he did not know anything as to why the incident occurred. Thereafter this witness willingly stated that there was a dispute regarding surety and the accused persons quarreled about the same. He has admitted that as Narpatbhai shouted and informed this fact to him, he came to know about the facts of the incident. He has studied up to 6 th standard and he knew reading and writing. The police inquired from him. He has admitted that he has not dictated in his statement before the police that he had seen the injuries in the head of the deceased. Page 17 of 29 R/CR.A/1253/2003 CAV JUDGMENT
17. Prosecution Witness No.10, Dashrathbhai Mohanbhai Tadvi, in his examination-in-chief has stated that he knew the accused persons and they belong to their village. He also knew the deceased Amarsinh. The incident occurred 8 months back at five hrs in the evening at the house of Amarsing. He was going to the dairy at the time of the incident. The accused persons passed from the dairy at that time. Two of the accused persons had axes in their hands and one of them had a stick. They went towards the street having school. He heard uproar at that time and when he ran, the accused persons had escaped after assaulting Amarsing. The accused Raman and Suresh had axes in their hands and Mansukh had stick in his hands. They were running. Thereafter, he saw Amarsing lying. At that time Amarsing was dead and he was smeared with blood. Thereafter, they took the deceased into the house.
17.1 In the cross-examination by the advocate for the accused, this witness has stated that the police inquired from him. He has denied that the police wrote down his statement himself. He has denied that he has not dictated in his police statement that the accused persons escaped after assaulting Amarsing. He has denied that he had no personal information about the incident. The house of Amarsing and that of his are so near that if shouted, we can hear. He was at the milk dairy at the time of the incident. The dairy is also near to his house. He has denied that one could not come to know Page 18 of 29 R/CR.A/1253/2003 CAV JUDGMENT from the Dairy as to what was happening at the house of Amarsing. He has stated that if there is uproar, one can come to know. He has denied that one could not see anything from the Dairy as to what was happening at the house of Amarsing. He has denied that no such incident has taken place and as the accused Mansukhbhai had given him money on the surety of his field, he was giving false deposition so that he did not have to pay back the money.
18. PW. No.11, Narpatbhai Chaturbhai Vasava, in his examination-in-chief has stated that the incident occurred eight months back. He has identified the accused persons who were present in the Court. The incident occurred at about 5.00 hrs in the evening. The accused persons Mansukh, Ramesh and Suresh escaped after assaulting Amarsing. They escaped after assaulting Amarsing at his house. Ramesh and Suresh had axes and Mansukh had a stick. He has eye witnessed the incident. As there was uproar at the time of the incident, they rushed to the place of incident and saw the accused persons running away with the weapons. We ran after the accused to catch them but we were not able to catch them. Thereafter, he came to the house of Amarsing and saw Amarsing smeared with blood and dead. Thereafter, they took him into the house. The police recorded his statement.
18.1 In the cross-examination this witness has admitted that the house of Amarsing and that of his are at a little distance. He was Page 19 of 29 R/CR.A/1253/2003 CAV JUDGMENT not at his house at the time of the incident. He has denied that one could not see from his house as to what was happening at the house of Amarsing. The police inquired from him. He has denied that he has not dictated in his statement before the police that they escaped after assaulting at the house of Amarsing. His house is situated between the street having school and water tank. He has admitted that if there was any conversation going on near the water tank, he could not hear the same. He has also admitted that he did not hear as to what conversation took place between his uncle and Mansukhbhai at the water tank.
18.2 His house and the house of his uncle Amarsing are at a distance of 100 feet from each other. He could not see from his house as to what was happening at the house of Amarsing. He has admitted that he has not eye witnessed the incident.
19. Prosecution Witness No.12, Jashodaben Bhagwanbhai Bariya, in her examination-in-chief, has stated that she knew the accused persons Mansukh, Ramanbhai and Sureshbhai and she has identified them in the court. She knew the deceased Amarsing. This incident occurred eight months back at 5.00 hrs in the evening. She was standing in the courtyard of her house opposite to the house of Amarsing at the time of the incident. The accused persons Raman, Mansukh and Suresh came at that time and they assaulted Amarsing. The accused Suresh and Ramanher had axes in their hands and Page 20 of 29 R/CR.A/1253/2003 CAV JUDGMENT Mansukh had a stick. She has seen with her eyes that Amarsing was given an axe blow on the head part. Thereafter, the accused persons escaped towards Nagdol. Thereafter, Amarsing died and he was lying smeared with blood.
19.1 In her cross-examination, she has stated that the deceased Amarsing was her mama (mother's brother). There is a road between her house and the house of Amarsing. The police recorded her statement. She saw Amarsing and Mansukhbhai, Ramanbhai and Sureshbhai little far from her courtyard. She has denied that she could not come to know from her house as to what was happening at the house of Amarsing. She has seen Amarsing being assaulted. The accused persons passed from her house. She did not shout at that time. She has denied that the accused persons did not come to the house of Amarsing. She has denied that she was giving false deposition to implicate the accused persons.
20. Vasantben Bhikhabhai Vasava, PW. No.13, in her examination-in-chief has stated that she knew the accused persons sitting in the Court and they belong to her village. She also knew the deceased Amarsing. The incident occurred about eight months back. It occurred at 5.00 hrs in the evening. She was at her house at that time. The accused persons assaulted Amarsing. The accused Suresh and Ramesh had axes in their hands and Mansukh had a stick. She saw these persons over there at the time of the incident. Thereafter, Page 21 of 29 R/CR.A/1253/2003 CAV JUDGMENT the accused persons went away after assaulting Amarsing. When she went to the house of Amarsing, he was in a dead condition. He was smeared with blood.
20.1 In the cross examination, she has admitted that the police has recorded her statement. She has denied that she has not dictated in her police statement that the accused persons assaulted Amarsing. 20.2 She has also admitted that the house of Amarsing was far from her house. She has denied the suggestion that she could not come to know as to what was happening at the house of Amarsing. She has also denied that she did not have any personal information regarding the incident. She has denied that she came to know about it as Narpatbhai informed me.
21. PW. No.14, Shantaben Chhitabhai Baria, in her examination-in-chief, has stated that the incident occurred eight months back. She knew the accused persons very well. She also knew the deceased Amarsing. The incident occurred at 5.00 hrs in the evening. The accused persons Ramanbhai and Mansukhbhai, total three persons assaulted and escaped. The accused persons assaulted Amarsing and escaped. Ramesh and Suresh had axe in their hands and Mansukhbhai had a stick in his hand. She was in her house at the time of the incident. She had not seen them assaulting. She came out as there was uproar. She saw the accused persons escape Page 22 of 29 R/CR.A/1253/2003 CAV JUDGMENT after assaulting.
21.1 In the cross-examination, this witness has stated that her house is a little far from the house of Amarsing. She has admitted that she could see the house of Amarsing from her house. The witness willingly stated that if there is uproar, she can hear. The police recorded her statement. She has admitted that she has not dictated in her police statement that the accused persons ran away after assaulting Amarsing.
22. The Doctor who performed the post-mortem of the dead- body, Subhashchandra Jayantilal Shah, was examined as PW. No. 15. In his examination-in-chief, he has stated that when he was performing his duty on 18th February 2003 at 12.00 hrs in the afternoon in Referral Hospital, Dabhoi, the dead-body of a person named Amarsing Yuvansinh Vasava, was brought for P.M. He started the postmortem at 12.10 hrs and it was completed at 1.30 hrs. Upon examining, the following injuries were seen.
22.1 There was a CLW of 3.5 inch x 3/4 inch bone deep on the right side of parietal region. The position of the same was transverse. Blood was clotted around it. During the external examination, right side of parietal bone was found fractured.
22.2 Upon examining him, the following internal injuries were Page 23 of 29 R/CR.A/1253/2003 CAV JUDGMENT seen.
22.3 There were injuries corresponding to the above mentioned injury.
22.4 Blood and blood clots were seen. Parietal bone was fractured but the exact size of the same was not known. Blood and blood clots were found on the upper and lower side of the same. 22.5 The external injuries and the internal injuries were corresponding to each other. The cause of the death of the person was due to bleeding in the internal part of head and due to shock due to injury. He prepared P.M. note in this regard. He has made his signature therein. He has proved the post-mortem report and his signature thereon. The injuries were ante mortem. After looking at the muddamal axes and sticks, he has stated that the injuries could be caused with the same.
22.6 In his cross-examination, he has denied that if two persons are fighting and if a person falls down and injured by a blunt substance, such injury can be sustained.
23. P.W. No. 16, Vikramsinh Deepsinh Rathod, is the Investigating Officer. In his examination-in-chief, he has stated that he was present in Dabhoi on 17th February 2003, and the P.S.O. Muljibhai gave him a Page 24 of 29 R/CR.A/1253/2003 CAV JUDGMENT vardhi that a murder has been committed in Arania village and complainant has come. Therefore, he came to the police station and as the complainant was present there, his complaint was taken before him. The complaint was written down as dictated by the complainant and the complainant made his signature before him and this witness made signature therein as P.I. 'before me'. Thereafter, he went to the place of offence on the next day morning and inquest was filled on the dead-body of the deceased. Thereafter, the dead-body was sent for P.M. with his yadi and postmortem form to P.H.C. Dabhoi. Thereafter, statements of the witnesses were taken. The accused persons of this case caused injuries to the deceased with stick and axe, wherein as Raman Mansukh gave an axe blow in the head, the deceased Amarsing died. Thereafter, the statement of Bijuben w/o Amarsing Yuvanbhai was recorded. Statements of Manjulaben w/o Raman Ranchhod, Badarbhai Vasava, Gangaben Badharsinh, Govindbhai Bachubhai, Rameshbhai Babubhai, Dashrathbhai Mohanbhai, Narpat Chaturbhai, Sukhiben Ushakant Manubhai, Bhagvanbhai Shankarbhai, Jashodaben w/o Bhagvan Shankar, Vasantben Chhita Mansukh etc. were recorded. The accused persons escaped after committing offence. As search was made for them, they were not found. Thereafter, as the accused persons of this case were found on 26th March 2003, they were interrogated and questioned about the weapons used and by drawing panchnama under section 27 on 27th March 2003, the weapons were seized wherein presence of blood was found on one axe. Both those axes Page 25 of 29 R/CR.A/1253/2003 CAV JUDGMENT and stick were seized as mentioned in the panchnama after preparing the panchnama, the muddamal was sent for F.S.L. examination. As P.M. note was received and as there was sufficient evidence against the accused persons, charge sheet was submitted in the Court on 17th December 2003. He has identified the accused persons and the muddamal before the Court and also proved the receipt regarding receipt of muddamal by the F.S.L, the F.S.L. analysis report, and the serological analysis report.
23.1 All the procedure of the panchnama was done in the presence of the panchas.
23.2 In the cross examination, this witness has denied that he took the complaint at 12.30 hrs in the night and the statements of the witnesses were recorded on the next day morning. He has also denied that the panchas of the inquest panchnama and the panchnama of the place of offence are the same. He has also denied a suggestion that a false charge sheet was filed though there was no sufficient evidence against the accused persons.
24. After hearing the learned counsel for the parties and after going through the aforesaid evidence on record, we find that the PW. No.7, Bijuben, the widow of the victim, has given in detail the actual version of the incident indicating that the incident occurred in the courtyard of their houses and that the two appellants applied axe on Page 26 of 29 R/CR.A/1253/2003 CAV JUDGMENT the head of the victim resulting in his death. It further appears from the evidence given by PW. No.8 to 11 and 13 and 14 that even if we assume for the sake of argument that they were not the actual eyewitness of the striking of the axe on the head of the victim, there is no doubt that immediately after the incident had occurred, they all arrived at the place and they have all seen the accused persons, with the weapons in their hands, running away. It appears from the evidence that some of those eyewitnesses even chased the appellants but they could not catch the appellants.
25. In the case before us, it has been well established from the evidence on record that there was a dispute as regards the payment of some amount with regard to mortgage of land and for that reason, there was an altercation earlier. The existence of the due amount or demand for payment thereof is not in dispute. In such circumstances, the motive of the murder has also been established. We are quite conscious of the position of law that when there are eyewitnesses of the incident, even the prosecution is under no obligation to prove the motive behind the murder, and if the eyewitnesses are wholly reliable, the Court can even base conviction on the basis of the version of the eyewitnesses.
26. In the case before us, once it is established from evidence on record that there was a prior altercation regarding payment of money followed by the fact that the two appellants before us along Page 27 of 29 R/CR.A/1253/2003 CAV JUDGMENT with their father entered into the house of the victim, there is no reason why the version of PW. No.7, the widow of the victim, should not be believed. The presence of the PW. No.7 at the place of occurrence is very much natural, when the accused persons have entered into the house of the said witness with weapons in their hands. Similarly, in view of the shout given by the PW. No.7, the neighbours of the locality came immediately to the spot of occurrence and had seen the accused persons, who being the residents of the same village and consequently known to the witnesses, were running away with weapons in their hands. In view of the fact that the victim was killed due to the blow of axe on the head, in our opinion, the learned Sessions Judge was quite justified in accepting the version of the prosecution. There was no reason why all those persons of the locality, viz. PW. No. 7 to 11 and 13 and 14 should come forward to give false evidence against the accused persons. The version of the widow of the deceased is also in conformity with the medical evidence produced by the prosecution.
27. The desperate submission of Mr. Barot that at least one of the accused should be acquitted because there was only one axe blow is equally devoid of any substance. Once it is proved that the father and his two sons arrived at the place of occurrence with weapons in their hands, even if we assume that the vital blow was applied by only one of the accused persons, the case clearly comes within the purview of section 34 of the Indian Penal Code. However, Page 28 of 29 R/CR.A/1253/2003 CAV JUDGMENT so far as the father of the appellants, the accused No.1 is concerned, since he is acquitted by the trial Court and since no appeal is preferred by the State against such order, we do not enter into the question of acquittal of the father of the appellants.
28. On consideration of the entire materials on record, we find that from the evidence adduced by the prosecution, it has been well established that the appellants before us had actually participated in the offence with common intention of killing the victim, and thus, the learned Sessions Judge has rightly convicted the appellants for murder. Having regard to the nature of the injuries caused and the nature of the weapon used, there is no scope of converting the offence to one under Section 304 Part-I of the Indian Penal Code as lastly suggested by Mr. Barot.
29. These appeals are devoid of any substance and are consequently dismissed. The impugned order of conviction and consequent sentence recorded by the learned Sessions Judge against the appellants are confirmed.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 29 of 29