Bhimabhai Danabhai Rathod Bharwad vs State Of Gujarat & on 2 September, 2013

[Cites 16, Cited by 0]

Gujarat High Court

Bhimabhai Danabhai Rathod Bharwad vs State Of Gujarat & on 2 September, 2013

Bench: Akil Kureshi

  
	 
	 BHIMABHAI DANABHAI RATHOD BHARWAD....Appellant(s)V/SSTATE OF GUJARAT
	 
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 


	R/CR.A/1252/2008
	                                                                    
	                           CAV JUDGEMNT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1252 of 2008 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

To be referred to the Reporter or not ?

Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

Whether it is to be circulated to the civil judge ?

============================================================== BHIMABHAI DANABHAI RATHOD BHARWAD....Appellant(s) Versus STATE OF GUJARAT &

1....Opponent(s)/Respondent(s) ============================================================== Appearance:

MR ASHISH M DAGLI, ADVOCATE for the Appellant(s) No. 2 MR BM MANGUKIYA, ADVOCATE for the Appellant(s) No. 1 MS BELA A PRAJAPATI, ADVOCATE for the Appellant(s) No. 1 MS SHUBHA B TRIPATHI, ADVOCATE for the Appellant(s) No. 2 MR HL JANI, APP for the Opponent(s)/Respondent(s) No. 1 ============================================================== CORAM:

HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 02/09/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)

1. The appellants, by way of preferring present appeal, have challenged the judgment and order of conviction and sentence dated 09.10.2007 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.7, Gondal camp at Dhoraji (hereinafter referred to as the learned Judge) in Sessions Case No.56 of 2007 whereby the appellants accused have been held guilty of the offences punishable under Section 302 of Indian Penal Code read with Section 114 of Indian Penal Code and awarded sentence of life imprisonment. Furthermore, appellant No.1 was directed to pay a fine of Rs.5,000/- (Rupees five thousand only) and appellant No.2 was directed to pay a fine of Rs.1,000/- (Rupees one thousand only) and in default of payment of fine, both the appellants were directed to undergo Simple Imprisonment for six months.

2. Filtering out unnecessary details, brief facts of the case may be stated as under:

2.1. As per the case of the prosecution, the complainant Vallabhbhai father of the deceased Subhash had lodged complaint before A Division Police Station, Junagadh inter-alia alleging that on 16.12.2006 at 5:30 p.m. when he along with his nephew Parshotum, Subhash, other relatives and his daughter were present at his home, at that time, Bhima (accused No.1) called his son Subhash to come out of his house.

Whereupon, his son Subhash went out of his house. After some time he heard commotion outside his house and he thereupon rushed outside and saw that Raju Dana, Bhima Dana (accused No.1), Karo (accused no.2), Viro, Shailash Vira and other four persons (total nine) had inflicted knife blows to his son Subhash at some distance from his house. Bhima, Raju, Karo, Shailash and Vira had knives and they inflicted knife blows haphazardly to his son Subhash and he was lying on the ground in a pool of blood. Thereafter, he and his family members as well as neighbours rushed there, consequently, the accused fled away on three motorcycles. As his son Subhash was profusely bleeding, he was taken to a hospital at Dhoraji in ambulance and after taking preliminary treatment there, his son was referred to the civil hospital at Junagadh for further treatment. His son died on the way to Junagadh Civil Hospital.

3. The father of the deceased i.e. Vallabhbhai Jasmatbhai Hirpara, thereupon, lodged the First Information Report before the A Division Police Station, Junagadh. Thereupon, investigation was carried out. The statements of various witnesses were recorded. Panchnamas were drawn. Postmortem of the dead-body was carried out. The muddamal articles recovered under various panchnamas were sent for analysis at Forensic Science Laboratory. The charge-sheet was filed before the concerned Court. The case was committed for sessions trial. The charge was framed. The learned Additional Sessions Judge & Presiding Officer, 7th Fast Track Court, Gondal camp at Dhoraji has rendered his judgment of conviction and sentence dated 09.10.2007 in Sessions Case No.56 of 2007 inter alia convicting the appellants herein and sentencing them to undergo life imprisonment with fine.

4. Being aggrieved by and dissatisfied with the said judgment of conviction and sentence, the appellants have preferred present appeal.

5. The learned Additional Sessions Judge framed charge against the accused - present appellants at Exh.23. The appellants accused have pleaded not guilty and claimed to be tried.

6. In order to prove the aforesaid charge against the present appellants, the prosecution had examined following witnesses:

Sr.No. Name Exh.

Remarks 1 Vallabhbhai Jasmatbhai 27 P.W.1- Complainant and father of the deceased.

Anjnaben Vallabhbhai 28 P.W.2- Eye witness and sister of the deceased.

Pareshbhai Chunibhai 29 P.W.3- Independent eye witness 4 Babubhai Panchabhai 31 P.W.4- Independent eye witness 5 Dr.Amrutlal Julasarna 34 P.W.5- Medical Officer, Government Hospital, Dhoraji, who first examined the deceased on the day of the incident.

Dr.Laxmiben Hardasbhai 36 P.W.6- Medical Officer, Civil Hospital, Junagadh, who carried out the postmortem of the deceased.

Jasmatbhai Madhabhai 46 P.W.7- Panch witness of panchnama of clothes of accused.

Sharadchandra Tuljashankar Pandya 48 P.W.8- Panch witness of panchnama of discovery of knives.

Rafikbhai Rajakbhai 50 P.W.9- Panch witness of panchnama of discovery of knives.

Ramji alias Kalo Fogabhai 51 P.W.10- Supposed to be eye witness but turned hostile.

Karsanbhai Panchabhai 52 P.W.11- Independent witness 12 Mohanbhai Ranabhai Baraiya 53 P.W.12- Police Offical who recorded the complaint of the complainant.

Bhimjibhai Govindbhai Limbasia 66 P.W.13- Investigating Officer.

7. The prosecution had also produced following documentary evidence:

Sr. No. Description of document Exh.

F.I.R 30,32,42,55,81 2 Panchnamas 49,61,62,68 3 Medical Evidence Death Report, Medical Certificate, P.M.Report, Yadi 33,35,43,44,54 4 Communications with Forensic Science Laboratory, Receipts, Letters, Reports etc. 70 to 74 5 Station Diary during Police investigation, Yadi etc. 63,67,69,82 6 True copies of Revenue Record 64,65,97 to 101 7 Copy of Notification issued by the Additional District Magistrate, Rajkot, prohibiting carrying of arms.

8. Heard Mr. B. M. Mangukiya, learned advocate for appellant No.1 and Mr. Ashish M. Dagli, learned advocate for appellant No.2 and Mr. H.L.Jani, learned Additional Public Prosecutor for respondent State.

9. Shri Mangukiya, learned advocate for the appellant No.1 has argued that in the present case, the prosecution has failed to establish the motive as the deceased was not having any land and as alleged by the complainant the accused did not want any parcel of land for construction of shed for keeping their cattles. The Counsel has questioned the reliability of eye-witnesses and in this regard he argued that all the eye witnesses were well tutored and not independent and the conduct of the complainant is highly unnatural. Being father of the deceased he could have taken the injured son upon his lap for rescue soon after the incident and his clothes could have blood stained. That was not done so far. Therefore, his conduct is highly unnatural and no reliance should be placed upon the evidence of the complainant. He has also argued that the investigation is tainted. Formerly, as per the complaint, there were nine accused and the charge-sheet was filed against only two persons and the investigation is influenced by one P.I.Hirpara who is the relative of deceased. The counsel argued that the accused were not put all the evidence as well as circumstances against the accused under Section 313 of the Code of Criminal Procedure, 1973. Therefore, the entire proceeding is vitiated. In support of his argument, he has put reliance on the decisions [1] 2000(3) GLH 751 (Ramanbhai Nanjibhai Parmar v. State of Gujarat), [2] AIR 2004 SC 26 (Badam Singh v. State of M.P.) and [3] AIR 1981 SC 1388 (Lakshman Prasad v. State of Bihar).

10. Mr. Dagli, learned advocate for appellant No.2 has argued that the prosecution has failed to put all the evidence and circumstances against the accused under Section 313 of the Code of Criminal Procedure, 1973. The entire proceedings against the accused are vitiated and the accused deserve acquittal. The counsel also argued that the investigating agency had failed to secure the summary, as previously, in FIR, 9 accused were shown and charge-sheet was filed against only two accused. In support of his argument, learned counsel has relied on the decisions [1](2006) 12 SCC 306 (Vikramjit Singh v. State of Punjab), [2](2008) 16 SCC 328 (Asraf Ali v. State of Assam)and [3](2013) Cr.L.J 3276 (Rajkumar Singh alias Raju alias Batya v. State of Rajasthan)

11. Per contra, Shri Jani, learned Additional Public Prosecutor has argued that the accused have been rightly convicted based upon sufficient evidence available against them. Out of four eye-witnesses, two eye-witnesses are independent and they are not relatives of deceased and the evidence of all the eye-witnesses are consistent, cogent and uniform and there is no reason to disbelieve them. Presence of these eye-witnesses is natural and their behaviour and conduct soon after the incident is also natural. Shri Jani has also argued that the learned trial Court has recorded the statement under Section 313 of Code of Criminal Procedure, 1973 in accordance with the law; no prejudice was caused or is likely to be caused to the accused. Furthermore, the accused had also tendered their written further statement at Exh.89 and such contention was not raised before the learned trial Court. Even on going through further statement recorded by the learned trial Court, it appears that almost all evidence and circumstances against the accused were put to the explanation of the accused. Therefore, there appears no lacuna. Learned APP also argued that the motive is also established. The father of the deceased was holding and occupying agricultural land is very much on the record in the form of documentary evidence as well as in the nature of oral evidence also. In support of his argument, learned Additional Public Prosecutor has relied on the decision in case of Alister Anthony Pareira v. State of Maharashtra reported in (2012) 2 SCC 648.

12. In order to decide the present appeal in its proper perspective, it is necessary to narrate the brief evidence on record of present appeal.

13. In order to prove that the death of the deceased Subhash Vallabhbhai was homicidal, the prosecution has examined Dr.Amrutlal Bhovanbhai Julasarna P.W.5, Exh.34 who was the Medical Officer, Government Hospital, Dhoraji before whom the deceased Subhash Vallabhbhai was brought at about 5:20 p.m. on 16.12.2006 i.e. on the day of incident. The said Doctor deposed that upon preliminary examination, he noticed following 17 injuries upon the body of the injured Subhash Vallabhbhai.

(1) A freshly cut spindle shaped incised wound of size 3cm x 1cm x muscle deep, on left chest. Margin cut clearly. Bleeding present.

(2) A freshly cut spindle shaped incised wound of size 6cm x 2cm X muscle deep, on upper part of Rt.side of anterior aspect of chest. Margin cut clearly. Bleeding present.

(3) A freshly cut spindle shaped incised wound of size 4cm x 2cm X muscle deep, on middle part of Rt.side of anterior aspect of chest. Margin cut clearly. Bleeding present.

(4) A freshly cut spindle shaped incised wound of size 5cm x 2cm X (?) cavity deep, on lower part of Rt.side of anterior aspect of chest.

Margin cut clearly. Bleeding present.

(5) A freshly cut spindle shaped incised wound of size 3cm x 1cm x muscle deep on middle part of anterior aspect of chest. Margin cut clearly. Bleeding present.

(6) A freshly cut spindle shaped incised wound of size 6cm x 2cm x muscle deep on middle part of left lateral aspect of chest. Margin cut clearly. Bleeding present.

(7) A freshly cut round incised wound of size 1cm x 1cm x skin deep on middle part of left lateral aspect of chest below above injury no.(6). Margin cut clearly. Bleeding present.

(8) A freshly cut spindle shaped incised wound of size 5cm x 2cm X muscle deep on Rt. part of abdomen. Margin cut clearly. Bleeding present.

(9) A freshly cut spindle shaped incised wound of size 4cm x 2cm X muscle deep on left part of abdomen. Margin cut clearly. Bleeding present.

(10) A freshly cut spindle shaped incised wound of size 4cm x 3cm X muscle deep on left part of abdomen below above injury no.(9). Margin cut clearly. Bleeding present.

(11) A freshly cut spindle shaped incised wound of size 5cm x 3cm X muscle deep on left part of abdomen below above injury no.(10). Margin cut clearly. Bleeding present.

(12) A freshly cut spindle shaped incised wound of size 5cm x 3cm X muscle deep on left part of abdomen below above injury no.(11). Margin cut clearly. Bleeding present.

(13) A freshly cut spindle shaped incised wound of size 4cm x 2cm X muscle deep on left part of abdomen below above injury no.(12). Margin cut clearly. Bleeding present.

(14) A freshly cut spindle shaped incised wound of size 3cm x 2cm X muscle deep on left loin. Margin cut clearly. Bleeding present.

(15) A freshly cut spindle shaped incised wound of size 4cm x 2cm X muscle deep on left loin below above injury no.(14).

(16) A freshly cut spindle shaped incised wound of size 6cm x 3cm X muscle deep on middle part of left thigh. Margin cut clearly. Bleeding present.

A freshly cut spindle shaped incised wound of size 8cm x 3cm X muscle deep on middle part of left thigh below above injury no.(16). Margin cut clearly. Bleeding present.

14. As the above noted injuries were very serious the Doctor at Dhoraji Hospital referred the injured to the Civil Hospital, Junagadh for further treatment. Thereafter, on being referred to the Civil Hospital, Junagadh, on the way towards Junagadh the injured died and the Doctor at Junagadh declared him dead and Inquest Panchnama as well as postmortem were carried out in the Civil Hospital, Junagadh itself. Dr. Laxmiben Hardasbhai P.W.6, who had carried out the postmortem of deceased at Civil Hospital, Junagadh has been examined at Exh.36. She deposed that while she was on duty on 17th December 2006 as a Medical Officer, the dead body of Subhash Vallabhbhai was brought before her for postmortem along with Inquest Panchnama. She had carried out the postmortem in between 7:00 to 9:00 in the morning on 17.12.2006. She found that the clothes of deceased were blood stained. She noticed 15 cuts upon the shirt and 5 cuts upon the pant worn by the deceased. She also deposed that the samples of blood in a sealed condition as well as clothes worn by the deceased were taken and handed over to the police for further examination and she also certified that the aforesaid injuries as noted by Dr. Amratlal B. Julasarna as well as further two injuries she noticed during the course of postmortem were ante-mortem. The same she has also described in the P.M. report. In all total 19 cut and punctured injuries were noticed. She produced the postmortem report at Exh.45.

14.1. In her opinion, the cause of death of the deceased is hemorrhagic shock due to injury to vital organ, Liver.

15. The opinion rendered by the Doctor in light of the aforesaid 17 injuries over the body of deceased clearly indicative of homicidal death of deceased as opined by Dr.Laxmi who had performed the postmortem of the deceased. Consequently, the death of the deceased as homicidal is established.

16. It is the case of the prosecution that the appellants accused committed murder of deceased Subhash Vallabhbhai by inflicting aforesaid vital knife blows upon the deceased. To prove the aforesaid accusation, it is necessary to refer to the evidence of the following eye-witnesses.

17. Complainant Vallabhbhai Jasmatbhai P.W.1 was examined at Exh.27. In his examination-in-chief, he deposed that he is staying along with his family in the area of Brahmanwadi, Dhoraji. He also deposed that on the day of incident, the accused Karo and Bhimo came to call Subhash. Thereafter, after sometime he heard commotion outside his house. In the result, they ran to the place of incident. At that time, the accused Kara Rana and Bhima Dana were giving knife blows upon his son. His son lying in a profusely bleeding condition on the ground and both the accused ran away towards the railway crossing with knives. He identified both the accused before the Court. He also deposed that thereafter he along with family members had taken the injured to the hospital at Dhoraji. After giving preliminary treatment, the Doctor at Dhoraji hospital referred the injured to the Civil Hospital at Junagadh. While they proceeding towards Junagadh, his son died on the way and when they reached at Civil Hospital, Junagadh the Doctor declared him dead. At Civil Hospital, Junagadh police came and complaint was recorded. At that time he was under

duress and therefore he put his thumb impression on the complaint. In the complaint what the police had written he did not know. He also deposed that at the place of incident he had seen knives, motorcycle and a pair of footwear. Regarding the genesis of the incident he deposed that the incident occurred because the accused were frequently demanding land for setting up cattle shed in their land and previously also the accused threatened them and they made police case also.

17.1.In the cross-examination this witness has admitted that at Dhoraji Hospital they stayed about 10 minutes. We may notice some contradictions in the cross-examination of this witness regarding neighbours as well as other persons who came soon after the occurrence of the incident at the place of incident. It is pertinent to note that such exercise has been carried out by putting composite and compound questions. It is also pertinent to note that during the course of examination of this witness, he deposed that his complaint was recorded at Civil Hospital, Junagadh and on the following day his further statement was recorded by the police. That fact has not been taken into account either by the Public Prosecutor or by the defence.

It also appears that the learned Judge has also not taken due care of this fact during the course of recording the evidence of this witness as well as other witnesses.

17.2.It is very surprising that in para 9 and 15 of his cross-examination the fact of recording of his further statement was brought on record by the learned advocate for the accused but such effort was not made in the examination-in-chief. In the cross-examination it is established that the place of incident is about 100 feet away from his residence. It is also established in the cross-examination that he has ancestral land in Dhoraji town.

18. One Anjnaben Vallabhbhai P.W.2, Exh.28 is also an eye-witness. She deposed that the deceased Subhashbhai was her brother. The incident happened before 9 months on 16th December 2006. The incident had happened at about 5:00 p.m. The incident happened near the well of Brahmanwadi. After taking short nap, at 4:00 p.m. on the day of incident when she was sitting at her home and talking with Parshottam, son of her cousin brother who came from Surat, at that time, Karo and Bhimo both came there to call her brother and her brother went with them. After some times she heard some noise of scuffle and rescue. Thereupon, they rushed to veranda and saw that Karo and Bhimo were inflicting knife blows upon her brother. They, thereafter, went out and rushed to the place of incident. Karo and Bhimo thereupon fled away. Pareshbhai, Kamleshbhai, Bhaveshbhai, Babubhai, Prabhaben, Jayaben also reached there. She also deposed that her brother was lying on the ground in profusely bleeding condition. Some one has called ambulance and taken the injured brother to civil hospital. In ambulance, Babubhai, Jayaben and Prabhaben were accompanied her parents. At the place of incident, she saw one footwear, motorcycle as well as scabbard and thereafter she went to her home.

18.1. In her cross-examination, she denied having read the police statement before giving the deposition. She has admitted that her statement was recorded by the police on 17th December 2006 and it was not recorded at the police station but the same was recorded between her house and the scene of occurrence. She has denied that the distance of well from her house is 500 meter. She has also denied of giving false statement that her brother went out of house on being called by Karo and Bhimo. She has also denied of not seeing the scene of incident from veranda. She has also denied the fact that Karo and Bhimo both were not giving knife blows to her brother. She has denied that she has not seen the incident and Pareshbhai, Kamleshbhai, Bhaveshbhai, Babubhai, Prabhaben and Jayaben were not reached at the place of incident. She has also denied that she did not see the muddamal at the scene of incident.

19. Pareshbhai Chunibhai Patel P.W.3 was examined at Exh.29. This witness is an independent eye-witness and therefore his deposition is crucial one to bring home the guilt of the accused. When he was doing work in his vada, suddenly he heard some noise for help. He, thereupon, went out and saw that Bhimo and Karo both were inflicting knife blows. Some two to four persons were coming from opposite side. When they all reached nearby, Subhash fell down. Those both persons fled away with open knives. After they both fled away he called the ambulance. Ambulance met him in the way. Subhash was taken in the ambulance. Parents of Subhash, Kamleshbhai, Bhaveshbhai, Dayaben and Prabhaben were accompanied in the ambulance. At about 6:00 O clock, police came and his statement was recorded. He was asked to put his signature on such statement. He also deposed that he saw a motorcycle, two pairs footwear (Chappals) and scabbard. He had identified the muddamal before the Court. He had also identified the accused before the Court.

19.1. In his cross-examination, this witness had admitted that he for the first time disclosed before the Court that both those persons fled away with open knives. He had also admitted that he for the first time disclosed the fact before the court that Kamleshbhai, Dayaben and Prabhaben had gone in the ambulance. His police statement discloses that he did say so in the statement. He denied not having seen the incident. He denied not having seen the accused inflicting knife blows to the deceased Subhashbhai. He denied he had given false evidence against the accused. In his further cross-examination he denied there being no vada land or animals.

20. One Babubhai Panchabhai Hirpara P.W.4 was examined at Exh.31. He is also an eye-witness. He deposed that the incident occurred 9 months back. At that time he was milking his buffaloes. He heard some noise. He reached at the place where Subhash was murdered and saw Bhimo and Karo beaten him. Upon having heard commotion, Kamlesh, Bhavesh, Vallabhbhai, Jayaben, Anjnaben, Paresh and he gathered at the place of incident. Subhash had fallen down and Bhimo and Karo both had inflicted knife blows. When they all reached, Bhimo and Karo ran away towards Railway crossing. Someone, might have phoned for the ambulance. Subhashbhai was taken to the Civil Hospital at Dhoraji in ambulance by Vallabhbhai, Jayaben, Prabhaben, he himself and Dayaben. Thereafter, for further treatment they went to Junagadh. When they reached at Junagadh, Doctor had declared him dead.

20.1. In his cross-examination, he denied having given evidence against the accused even though he had not seen the incident. He denied not having heard any noise. He also denied not having reached the place of incident upon having heard the noise.

21. The prosecution also examined one Ramji alias Kalo Fogabhai as P.W.10 at Exh.51. He is supposed to be an eye-witness. However, he turned hostile.

22. During the course of recording the evidence, prosecution has brought on record the discovery panchnama made at the instance of the accused at Exh.47. The accused had shown willingness to find out the concealed knife used during the course of commission of the offence. On 29.12.2006 the preliminary panchnama was drawn. During the course of preliminary panchnama both the accused one after another had shown willingness to lead the place of concealment of knife.

23. In order to prove the aforesaid panchnama, panch witness Sharadchandra Tuljashankar Pandya as well as another panch witness Rafikbhai Rajakbhai Meman have been examined as P.W.8 and P.W.9 at Exh.48 and 50 respectively. They deposed that the accused have shown willingness to find out the concealed knives and they were taken to the place where two knives had been concealed by the accused and at their instance the aforesaid both the knives had been found out. Thus, both the panchas have supported the case of the prosecution and they have also identified the accused as well as both the knives during the course of trial also.

24. The prosecution has also brought on record the recovery of the clothes worn by both the accused at the time of commission of the offence while arresting them by producing arrest panchnama at Exh.68. Of course, during the course of trial the panch witness Jashvantbhai Madhabhai turned hostile. But he has admitted that he has put his signature upon the panchnama as well as slips and that fact is also proved during the course of examination of investigating officer.

25. In the case of Ramesh Harijan Vs. State of Uttar Pradesh reported in 2012(5) SCC 777, the Hon ble Apex Court has observed that it would be open for the prosecution to rely on the contents of the Panchnama when the Panchas have admitted their signatures on the panchnama and recitals of the panchnama were proved through the investigating officer.

26. The prosecution has also examined Mohanbhai Ranabhai Baraiya P.W. 12 at Exh.53. He was on duty at Junagadh A Division Police Station on 16.12.2006. He deposed that upon receipt of police yadi at about 7:15 in the evening, he had recorded the complaint of Vallabhbhai Jasmatbhai.

26.1. In his cross-examination, he admitted that he had carried out the inquest panchnama. He also admitted that the dead body was identified by the father of the deceased i.e. Vallabhbhai Jasmatbhai. At the time of inquest panchnama his father had not given the names of the assailants. He has not admitted the suggestion that he has written down the names of assailants in the complaint.

27. The prosecution has also examined Bhimjibhai Govindbhai Limbasiya, investigating officer as P.W.13 at Exh.66. He deposed that he was entrusted the investigation on 17.12.2006. He also deposed that he made arrest of both the accused. While in his custody, accused had shown willingness to find out the concealed knives used during the course of commission of the offence and therefore he arranged for discovery of the knives and the accused had in presence of the panchas as well as in his presence found out the knives which were taken as muddamal and sent to FSL. He has also recovered the clothes worn by both the accused at the time of commission of the offence. The same were also sent for chemical analysis to F.S.L. He further deposed that he had carried out the arrest panchnama. He entered into correspondence with the F.S.L. He has obtained the panchnama of the scene of offence as well as maps of the place of incident and tendered various documents in his examination in chief. He has recorded the police statements of the relatives of the deceased as well as eye-witnesses. He has also informed the Divisional Officer before arresting the accused and before filing the charge-sheet. Upon completion of investigation, he filed the charge-sheet.

27.1. In his cross-examination, the witness admitted that the complainant gave the names of Raju, Shailesh, Viro and other four persons along with present two accused in the complaint. He has not shown the aforesaid three persons as absconded accused and he has not obtained any police summary. However, he made report to the concerned Magistrate vide Exh.82. He admitted in the cross-examination that during the course of further statement of complainant, involvement of present two accused was revealed. In the result, he made report Exh.82 to the concerned Judicial Magistrate First Class, Dhoraji. The witness had denied that if the names were recorded in the FIR as accused and even though no involvement of such person is revealed then also A, B or C summary is required to be asked for.

27.2. The witness clarified that as the charge-sheet was already filed against two accused, there is no necessity to ask for the summary. He admitted that the Raju Dana is the younger brother of accused No.1 Bhima Dana. He stated that he did not know Shri P.P.Hirpara, Police Inspector. He admitted that within 10 minutes the ambulance came at the place of incident and that ambulance was called by one Bhaveshbhai Karshanbhai.

27.3. In his cross-examination he was confronted with some contradictions in the depositions of witnesses Vallabhbhai Jasmatbhai, Anjnaben Vallabhbhai, Babubhai Pachabhai and Karshanbhai Panchabhai. In this regard, we have noticed that the aforesaid exercise is done by putting composite and compound questions. If it can be seen in isolation, in view of the police statement then it becomes clear that the evidence is not recorded in its true spirit. On comparison with the police statement we find such thing in isolation.

28. In view of the aforesaid procedure carried out in presence of the panchas by the investigating officer, the knives were discovered at the instance of the accused. The weapons in the sealed condition were sent for analysis to the F.S.L. and the F.S.L. Report is also produced on the record at Exh.74 which suggests that the human blood which was found on one of the knives was having A group which was the blood group of deceased Subhash and on the another knife the finding was inconclusive.

29. We may also note at this stage that during the course of investigation when the accused were arrested, the pants worn by the accused Bhima and Kara were taken for investigation which was ultimately sent for analysis to the F.S.L. The F.S.L. report suggests that the aforesaid pants were carrying human blood group of A as that of deceased Subhash. The F.S.L. report also suggests human blood of group A on the sand taken from the place of incident, chappals as well as the clothes of the deceased, whereas the blood group of accused No.1 was B and the blood group of accused No.2 was O .

30. It can be seen from the aforesaid evidence on record that the prosecution has successfully brought on the record that there was continuing dispute regarding setting up of a cattle shed in the land of complainant and consequently therefore Bhima Dana and Kara Rana came to call Subhash on 16.12.2006 at his house and deceased Subhash accompanied the accused outside the house of the deceased and within some time the family members of deceased heard noise for help from the deceased to save him from assailants i.e. accused. Barely 100 feet away in front of the house of deceased, on the road nearby the well of Brahmanwadi, the accused inflicted knife blows upon the deceased and on seeing the family members and neighbours came to rescue the deceased, within a moment both the accused fled away leaving their motorcycle, chappals and scabbard of knife at the scene of occurrence towards the railway crossing.

31. Within a period of 15 minutes the injured was taken to Dhoraji hospital where he was primarily treated. At that time the family members and neighbours had accompanied the injured and considering the seriousness of the injuries sustained by the injured he was referred to the Civil Hospital at Junagadh. On the way he succumbed to the injuries and on reaching Junagadh he was declared dead. Thereafter, at the Civil Hospital, Junagadh the inquest panchnama as well as postmortem examination was carried out and the First Information Report was given in the city of Junagadh which is a distant place from the scene of occurrence and a different District Headquarter. The FIR was given within few hours after the incident took place which contained the details of incident, genesis of incident, participation of accused as well as presence of the eye-witnesses and also contained other particulars relating to the crime also. Of course, in the FIR over and above the names of present two accused, names of other seven persons were also given to that we will discuss later on.

32. It is also revealing that upon receipt of the Janvajog entry No.428/2006, the panchnama of scene of occurrence was drawn at 18:15 hours on 16.12.2006 i.e. on the same evening and the place of incident was shown by one Paresh Chunibhai Hirpara, one of the neighbours (eye-witness). During the course of drawing the panchnama of scene of occurrence, the muddamal articles which were lying at the place of incident as well as samples of sand having blood as well as control soil and other articles were taken. The place of incident was shown in front of residential house of deceased Subhash Vallabhbhai Hirpara.

33. After having received the first information, the investigating officer on the same night inspected the place of incident and on arrival of dead body and after completion of death ceremony of deceased Subhash, he had recorded the statements of relatives of the deceased, eye-witnesses as well as witnesses and they have been examined before the learned trial Court. It also reveals that almost entire material investigation was carried out within 24 hours since the incident occurred.

34. On perusal of aforesaid evidence of complainant as well as three eye-witnesses, it can be seen that their evidence regarding the motive, genesis of incident and the accused Bhima Dana Rathod and Kara Rana Karamta inflicted successive knife blows upon the deceased Subhashbhai Vallabhbhai are coherent, cogent, consistent and identical. The learned advocate Shri Mangukiya has contended that the motive is not established for the simple reason that the complainant having no land as well as the accused having no cattle. This argument is contrary to the evidence on record. From the evidence on record it is clearly established that continuous dispute regarding setting up of a cattle shed in the land of the complainant was going on and for the same reason previously also it was reported to the police. That fact is also established from the deposition of the complainant as well as aforesaid eye-witnesses. The complainant was holding agricultural land was also established by way of oral evidence of the aforesaid eyewitness as well as revenue record in the nature of abstract of village form No.8A and 7-12 vide Exh.64 and 65. In the result, the contention raised that the complainant was not holding the land is not sustainable. Similarly, even though the accused were also engaged in other occupation is not suggestive of the fact that they had given up their own occupation of keeping cattle being the member of shepherd community.

35. The learned advocate for the accused has also criticized the reliability of evidence of the complainant as well as other three eye-witnesses and branded their evidence as tutored one. Counsel also described the conduct of the complainant as unnatural and in support of his argument he has relied on the decision of Hon ble Apex Court in case of Lakshman Prasad (supra). The Hon ble Apex Court observed as under:

3.

The central evidence against the appellant consisted of the testimony of P. Ws. 1 and 2 who were the servants of complainant P. W. 4 Baijnath Prasad. It appears from the evidence that Baijnath Prasad was a rich business man of the locality and the accused-appellant Lakshman Prasad was his next door neighbour having a double storeyed house. Both the Courts below have accepted the prosecution case that a dacoity took place in the house of Baijnath Prasad in the course of which cash and other articles were stolen away. In the instant case, counsel for the appellant has not challenged this finding of the Courts below. We are also satisfied that a dacoity undoubtedly took place in the house of Baijnath Prasad. The only question that falls for consideration is whether or not the appellant participated in the crime. P. Ws. 1, 2 and 4 have supported the prosecution case that the appellant clearly participated in the dacoity and was, in fact, the leader of the dacoits. After going through their evidence, we do find that there is some amount of consistency in their evidence but mere congruity or consistency are not the sole test of truth. Sometimes even falsehood is given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. This appears to be one of those cases. There are many inherent improbabilities in the prosecution case so far as the participation of appellant is concerned. In the first place, admittedly the appellant was a respectable man in the sense that he was possessed of sufficient means and was a well-known homeopath doctor and also the neighbour of the complainant. In this view of the matter, it is difficult to believe that he would commit dacoity in the house of his own neighbour and that too in the early hours of the evening, so that he may be caught any moment and take the risk of a conviction under S. 395 Indian Penal Code. Secondly, the evidence of the complainant P. W. 4 clearly shows that the dacoits had no doubt concealed their identity but they did it in such a way that their faces were visible. Indeed, if the appellant had participated in the dacoity and took the precaution of concealing his identity, then he would have seen to it that his face was fully covered so that identification by the complainant or the witnesses would become impossible. If he was a dare-devil, then he would not have concealed his identity at all. Thirdly, FIR having been lodged the same evening the police visited the house of the appellant next morning and found him there. If the appellant had really participated in the dacoity, he would have at least made himself scarce. The house of the accused was also searched and nothing incriminating was at all found. Finally, there was the important circumstance that in view of a dispute between complainant Baijnath Prasad and the appellant, there was a clear possibility of the appellant having been falsely implicated due to enmity. The complainant himself admits that there is a boundary wall around the house of the appellant and there is a road which runs to the east of his house and the mill of the complainant is situated to the west of the house. There is evidence of D. W. 2 that there has been some dispute between Baijnath Prasad and accused Lakshman Prasad two or three years before the occurrence of dacoity in respect of a passage near the house of accused Lakshman Prasad through which he used to go to his mill. The evidence of D. W. 2 does support what the complainant has himself admitted. The gravest provocation which the complainant must have felt was the fact that Lakshman Prasad bought a piece of land near his house from Kishori Lall the nephew of Baijnath Prasad. This is proved by Ex. Kha and the evidence of D. W. 4. The High Court also observed that the sale-deed executed by the nephew of the complainant in favour of the appellant was executed only a month before this occurrence. This therefore furnishes an immediate motive for the false implication of the appellant. Another important circumstance which seems to have been overlooked by the Courts below is that P. W. 4 has clearly admitted in his evidence at page 44 of the paper-book that immediately after the occurrence. a number of people near the mosque assembled, of whom he recognized Suba Raut and Moti Raut but they never came to his help. The witness also says that when he came from the west, he saw 40 to 50 persons at a little distance, including Ganesh Raut. Achhelal, Mathura Ram and Rameshwar. Obviously, if an occurrence of dacoity had taken place in the early hours of the evening, the near neighbours must have assembled and yet none of these neighbours have been examined to support the complainant's version that the appellant had participated in the occurrence. It seems to us that the reason why these persons did not choose to support the complainant was that perhaps the appellant had been falsely implicated and hence the persons who had assembled may not have relished the idea of supporting the complainant if he had gone to the extent of falsely implicating the appellant in the dacoity.These intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in our minds regarding the complicity of the appellant in the dacoity. It is well settled that while witnesses may lie, circumstances do not.

35.1.The learned counsel for appellant No.1 also placed reliance on the decision of Hon ble Apex Court in case of Badam Singh (supra) in which the Hon ble Apex Court observed thus:

17.The first striking feature of the case is the highly unnatural conduct of the alleged eye witnesses. It is really surprising that having witnessed a ghastly occurrence all the three started running from the place of occurrence and kept on running till they reached village Achhroni at about 8 p.m. It is difficult to believe that they ran for 21/2 hours to cover a distance of about a mile. According to PW-8, the distance between Kachnaria to Achhroni is about 11/2 miles and according to PW-4 the distance from Kachnaria to village Bandala where the occurrence took place is about 1 kilometer. It appears unnatural that the three eye witnesses who were no other than Forest Officer and forest guards got so scared that they started running in such a manner that they did not even bother to go to the nearest village Bandala, two furlongs away or to inform the villagers. Nor did they stop to inform the villagers of the villages through which they passed, so that they may visit the place of occurrence and find out whether the deceased was really dead. Normally, one would have expected them to visit the place of occurrence after the appellant had left if only to verify whether the victim was really dead, and to render help if necessary, since the deceased was known to them. In any event their natural conduct would have been to inform the villagers of the nearest village so that they could go to the place of occurrence and render whatever help was possible. If they really started running at about 5.30 p.m., it would not have taken them about 21/2 hours to cover a distance of one mile.It is in the evidence of PW-4 that the occurrence took place at 5.30 p.m. and they boarded the bus at Achhroni at 9.30 p.m. after waiting for about 11/2 hours at Achhroni. It is therefore apparent that they had reached Achhroni at about 8.00 p.m. and that they took 21/2 hours to cover a distance of one mile, even when they claimed to be running in such manner that they did not even bother to stop in any village even to report the incident to the villagers. To say the least, their evidence does not inspire confidence. Their conduct is highly unnatural. Their version that they kept on running and did not inform anyone about the occurrence, is not believable. If they really did so, they would not have taken 21/2 hours to cover a distance of 1 mile. The possibility therefore of having come to the place of occurrence much later, and being told about the occurrence by others, cannot be ruled out.

36. A court has to keep in mind that different witnesses react differently under different situation. Some witnesses get shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge complaint or to get themselves examined individually. Thus, it differs from individual to individual. Indisputably, each case, each happening and each person has different inbuilt features which can never be fitted into another case, another happening or another person. Every such thing or circumstance has its own individuality and it cannot be measured and evaluated by placing such thing into such another similar or resembling thing or circumstance.

37. In the present case, precisely, in the evening hours the deceased as well as his family members and one guest Purshottambhai were present in the house. At that time, the accused came to call the deceased Subhash and he accompanied the accused and within a short span he shouted for help. The incident occurred barely 100 feet away in front of the house of the deceased and his house is also surrounded by other such houses in locality. Therefore, upon having heard noise of help and alarm by the deceased, the family members and neighbours reached at the place of incident and saw both the accused were giving successive knife blows to the deceased. The evidence on the record, more particularly, the sketch prepared by the Circle Inspector, Revenue Department, produced vide Exh.79 clearly indicates that the house of the deceased is situated on the western southern corner and in front of house of deceased the well of Brahmanwadi was there and on its western side small temple (dari) of Surapura as well as waste land and neem tree were there and beyond the well of Brahmanwadi some cattle shed, three houses were situated. The aforesaid sketch clearly indicates that the place of incident is barely 100 feet away from the house of deceased and there appears no obstruction in viewing the incident even from standing in the house of the deceased. In view of the aforesaid factual scenario the evidence of eye-witnesses of having viewed the incident from their respective houses appears quite natural.

The evidence on record clearly indicates that whatever the evidence given by the complainant as well as aforesaid three eye-witnesses is coherent, consistent and identical. In our scrutiny of the aforesaid evidence of the eye-witnesses, we find it trustworthy and reliable for recording the conviction of the aforesaid accused. We have also noticed that the FIR given by the complainant at Junagadh within two hours from the occurrence of the incident also contains the names of present both the accused as the assailants. Of course, he has also given few other names in the FIR but on the subsequent day when further statement of complainant was recorded, he has given the names of only present two accused as assailants. That fact is proved in the evidence of the investigating officer. Indisputably, the complainant is an illiterate who has put his thumb impression upon the FIR and the complainant was having only son who was profusely bleeding and shouting for the help and he was taken in the profusely bleeding condition at Dhoraji hospital and thereafter he was referred to the Civil Hospital at Junagadh. In the result, whatever explanation he has rendered in his further statement as well as deposition that his mental condition was not good and he had merely put his thumb impression on the writing as he was under duress but on the next day he regained and stated true facts before the police is quite natural and believable. The mental condition of a person who at his old age has lost his only son in the said unfortunate event is also required to be appreciated. The independent witnesses Pareshbhai and Babubhai as well as the real sister of the deceased have given identical account of happening of the incident. Consequently, therefore also the explanation rendered by the complainant also corroborates by consistent, coherent evidence of aforesaid three eye-witnesses. Even though, some more names were given by the complainant in the FIR, this by itself would not be enough to discard the entire prosecution case against these accused. Firstly in his deposition before the Court this witness implicated only the accused. His testimony which is otherwise found reliable need not be doubted or disregarded simply because there may have been an attempt to rope in some more persons. Secondly, role of these accused is described not only by this witness but by other eye-witnesses also, who had before the police also implicated these two accused only. Thirdly, such accounts of several eye-witnesses get corroboration from other evidence such as discovery of murder weapon carrying blood of the deceased and recovery of the clothes of the accused also carrying similar blood.

The aforesaid eye-witnesses accounts also lend credence in light of the fact established that on their arrival on the place of incident the accused fled away with knives towards railway crossing leaving their motorcycle, chappals and scabbard at the place of incident. It can be said that the accused were compelled to leave the place of incident after having seen the complainant as well as other eye-witnesses coming to the place of incident and it can also be said that if that was not done so then the accused could have carried their motorcycle, chappals and scabbard with them and they could have safely fled away and would not have left incriminating articles at the scene of offence and even accused could not be traced out.

40. The conduct of the complainant is criticized by learned advocate Shri Mangukiya. The contention raised by the learned counsel for the accused that the conduct of the complainant is unnatural by submitting that being the father of the deceased the complainant could have taken the injured upon his lap on found him profusely bleeding and his clothes could have blood stained which was not found on the clothes of the complainant is also not acceptable for the simple reason that the conduct of a person on happening of unforeseen and unfortunate event cannot be appreciated in a particular manner only because different persons have different reactions on witnessing the unfortunate and unforeseen incident. As observed above, the mental condition of an aged person witnessed of an unfortunate incident of accused inflicting successive knife blows to his son and his son lying on the ground in profusely bleeding condition cannot be ignored and over looked and his conduct at that time cannot be said to be unnatural. On the contrary, the conduct appears to be quite natural that within 15 minutes of the occurrence of the incident the injured was carried to the hospital at Dhoraji and thereafter to Junagadh.

41. There cannot be uniformity in human reaction to a particular incident. While appreciating the evidence of a particular witness the said principle has to be kept in mind. It has to be borne in mind that the conduct of the witness is so unnatural and if not in accordance with the acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded. As observed above, all the eye-witnesses along with complainant upon having heard screaming of the deceased rushed to the place of incident and within few minutes the injured was taken to the hospital. The witnesses stated the history of incident before the police as well as before the Court also and we do not find any abnormality in the behaviour of the complainant as well as the eye-witnesses. In fact it is in accordance with the normal human behaviour who witnessed sudden unfortunate event.

42. In support of his argument that the accused were not put all the evidence as well as circumstances against the accused under Section 313 of the Code of Criminal Procedure, 1973, Mr. Mangukiya, learned counsel for the appellant no.1 relied on the decision of Division Bench of this Court in case of Ramanbhai Nanjibhai Parmar (Supra). The Court observed as under:

16. Under sec.313 of CrPC, the accused shall have to be asked the questions to enable him personally to furnish explanation against the incriminating evidence recorded by the Court or the circumstances appearing in the evidence against him. Such evidence or circumstances appearing against the accused requires to be pointed out to the accused clearly and specifically. There should be no complexity in forming question. The Court should be conscious about the fact that there is no clubbing of two separate incriminating evidence or clubbing of one incriminating circumstance or evidence with another less irrelevant incriminating circumstance or evidence. Such contingency is likely to prejudice the accused seriously because as per the settled legal position, false explanation or non-explanation by the accused about incriminating evidence is a circumstance which may weigh against him.

Non-giving of an opportunity to explain incriminating circumstance can be equated with such contingency where a compound or complicated question is put to the accused while examining the accused under sec.313 Cr.PC. Considering the nature of questions asked to accused no.1 about the injury found on his body, according to us, is of compound nature and we are of the view that the answer given, in response to the question put to the accused, therefore, should not be treated as a false answer or explanation. Accused may, under such contingency, commit an error. Examination of the accused under Sec.313 of CrPC is not an empty formality and it is the duty of the Court to question the accused properly and fairly bringing home the exact case in simple and clear language which the accused has to meet and each material point that is sought to be used against him so that accused can be given a chance to explain if he so desires. Every circumstance against accused must be separately and distinctly put to the accused so as to enable to explain the sdaid circumstance. From the discussion as aforesaid, it clearly transpires that the examination of the accused under sec.313 of CrPC is not properly done. Under the circumstances, even if, for the sake of arguments, we say that accused no.1 has failed in explaining injury sustained by him, even then this error cannot be equated with clinching evidence against the accused. We can quote catena of decisions on this aspect, but according to us, reference of judgments rendered in the case of Surendraprasad Jayashankar v/s State of Gujarat, reported in 1979(2) GLR P.459 and in the case of Zala Krishna Vijaysinh v/s State of Gujarat, reported in 1993(1) GLR P.288, would serve the purpose. We are holding this in light of special circumstance that the prosecution has not cared to explain story and that accused was taken to the doctor on 3.11.89 I.e. after 24 hours. So, the same also does not inspire any confidence. We do not want to suggest that he might have been beaten by police personnels. We have, therefore, simply observed that in absence of evidence as to the age of injury in the certificate as well as in the oral version of Dr. Varlekar, it is not possible to hold against the accused.

43. In this regard, Mr. Dagli, learned counsel for appellant No.2 also relied on the decision in case of Vikramjit Singh (supra). The Hon ble Apex Court in this case observed as under:

23. It is now a well-settled principle of law that the circumstances which according to the prosecution lead to proof of the guilt against the accused must be put to him in his examination under Section 313 of the Code of Criminal Procedure. It was not done.

43.1.Mr. Dagli, learned counsel for appellant No.2 also relied on the decision in case of Asraf Ali (supra). In the said decision, in para 21 and 22, the Hon ble Apex Court observed thus:

21.

Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.) while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facts by the trial Court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.

43.2.Mr. Dagli, learned counsel for appellant No.2 also relied on the decision in case of Raj Kumar Singh (supra). In the said decision, in para 25, the Hon ble Apex Court observed thus:

25.

In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and have to be excluded from consideration.

44. In support of his argument that the trial against the accused cannot be held bad in law on account of failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by the prosecution especially when such omission has not caused prejudice to the accused, learned APP has relied on the decision in case of Alister Anthony Pareira (supra). In the said decision the Hon ble Apex Court observed as under:

61. From the above, the legal position appears to be this: the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by the prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of the prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice.

45. We have noticed that on conclusion of trial the learned Additional Sessions Judge while recording the statement under Section 313 of Code of Criminal Procedure specifically put all the questions to the accused with regard to the incriminating evidence and inculpatory materials brought on record by the prosecution. Not only that but whatever the medical evidence as well as the oral evidence given by the eye-witnesses were also pointed out properly to the accused for their explanation.

46. We have perused further statement put up for the explanation of the accused regarding incriminating evidence as well as inculpatory materials brought on the record against the accused and we are satisfied that all the evidence revealed during the course of trial against the accused were put for their explanation and in their explanation the accused have totally denied the evidence against them.

47. The learned trial Court at the end of statement also afforded opportunity of further explanation, if any, to the accused. In reply thereto the accused have given their further explanation in writing vide Exh.89 wherein the accused stated that they had not committed any offence and they were innocent and they had been wrongly implicated in the offence. The accused had also given their account of other occupation and stated that as they were not engaged in cattle breeding business the question of setting up of a cattle shed did not arise and consequently therefore the question of demanding land from the deceased also did not arise and they might be acquitted.

48. As it can be seen from the aforesaid further statement of the accused, the accused have admitted in their further statement that the evidence is recorded in their presence. The aforesaid further explanation is submitted at Exh.89.

49. We have noticed that the learned Additional Sessions Judge has categorized the nature of incriminating evidence brought on record against the accused in the nature of panchnamas, medical evidence, FSL evidence as well as eye-witnesses account. Therefore, the learned Additional Sessions Judge had put aforesaid evidence against the accused for their explanation in category-wise jointly but clearly and distinctly. During the course of hearing of this appeal also the learned advocate for the accused failed to point out how the accused were and are prejudiced by not pointing out if any incriminating evidence against them.

50. The object of Section 313 of the Code of Criminal Procedure, 1973 is to establish a direct dialogue between the Court and the accused. The said opportunity was afforded to the accused. Furthermore, the accused have also availed the opportunity by way of tendering a separate further statement at Exh.89. We also noticed that neither from recording of further statement under Section 313 of the Code nor from the argument advanced by the learned counsel for the accused it emerges out that any prejudice is caused to the accused thereby not putting any incriminating evidence against them for their explanation.

51. Not only that during the course of argument also nothing was pointed out by the learned counsel for the accused that such incriminating material revealed against the accused were not put to the accused for their explanation. We are also of the view that by putting the incriminating materials category-wise by the learned Additional Sessions Judge the accused have not been caused any prejudice. The argument advanced by the learned counsel for the appellant regarding recording of statement under Section 313 of the Code is also not sustainable.

52. The learned counsels have vehemently argued that out of nine accused named in the FIR, only two of them were charge-sheeted and no summary has been filed by the investigating agency for rest of the accused, which has resultantly vitiated the proceedings. However, none of the learned counsels point out what sort of summary was needed to be filed. No statute prescribes the procedure for filing summaries of final orders. Rule 232 of the Gujarat Police Manual, 1975 prescribes the procedure for filing final reports as under:

232. Final reports.-(1) When there is no sufficient evidence to justify the forwarding the accused to a Magistrate, the Police Station Officer or the Investigating Officer will release the accused person on bail, if he is in custody.

(2) The Police Station Officer will then submit a final report to the Magistrate empowered to take cognizance of an offence on a Police report through the Sub-Divisional Police Officer in the following three classes of cases:-

(a) Those in which it appears from the police investigation that no offence has been committed.

(b) Those in which it appears from the police investigation that only a non-cognizable offence has been committed.

(c) (i) Those in which there are grounds for believing that an offence has been committed, but in which, in the opinion of the officer-in-charge of the Police Station, there are not sufficient grounds to investigate or there is not sufficient evidence to justify sending any accused for trial, or in which the offender is not known or cannot be arrested and sent for trial.

(ii) In case referred to the Police by a Magistrate, the final report will be sent direct to the Magistrate.

(3) The final report should be written up carefully by the officer-in-charge of the Police Station personally and should be accompanied by all the case papers numbered and indexed methodically. If the accused has been released on bail, the Magistrate should be requested to cancel the bail bond. He should also be requested to pass orders regarding the disposal of property attached, unless any of the articles, e.g blood stained clothes, are required for further use in true but undetected cases. A request should also be made to the Magistrate to classify the case and to issue an appropriate summary of his order, viz.:-

(i) A True, undetected (where there is no clue whatsoever about the culprits or property or where the accused is known but there is no evidence to justify his being sent up to the Magistrate (for trial).

(ii) B Maliciously false.

(iii) C Neither true nor false, e.g., due to mistake of facts or being of a civil nature.

(iv) Non-Cognizable Police investigation reveals commission of only a non-cognizable offence...............

53. In view of the above provisions of Rules, the case should be classed as A if it is found to be true even where an accused is tried and in absence of conclusive evidence is acquitted. If the complaint is found to be false and maliciously false, the case should be classed as B and if the case is found to be neither true nor false or false but not maliciously false, it should be classed as C .

54. In the present case, the complainant has filed the complaint after the death of his son. During the course of investigation and while recording further statement of the complainant as well as statement of eye-witnesses, commission of offence were consistently revealing against the present two appellants. Therefore, the investigating officer had prepared a detailed report in the matter, which has been placed on record vide Exh.82 by the concerned Judicial Magistrate First Class, Dhoraji. Therefore, the above contention advanced by the learned counsels is devoid of merits. More so, non-filing of summaries have no bearing in the present case so far as present appellants are concerned. If at all any prejudice is caused by non-filing of summaries, then it may cause only to the complainant, and not to the accused.

In view of the aforesaid clear position of evidence on record, this is a pure and simple case wherein it is proved that the accused had committed the murder of deceased Subhash by inflicting successive knife blows. The fact that the accused had inflicted successive knife blows which resulted into causing of as many as 19 injuries upon the body of the deceased is clear indication of motive of the accused. The injuries were very severe due to which the deceased died within few hours that itself would satisfy all the requirement of commission of offence of murder as defined under Section 300 of the Indian Penal Code.

56. Before concluding, we would like to narrate the disturbing features which came to the notice of this Court while reading the evidence recorded by the learned trial Court. Admittedly, the learned Additional Sessions Judge, learned Additional Public Prosecutor as well as the learned advocate for the accused are the officers of the Court and they are jointly and severally duty bound to observe or get it observed the settled principle of fair trial in the nature of safeguarding the interest of the accused as well as affording adequate protection to the witnesses. Unfortunately, we have noticed that the witnesses were not adequately protected in this case and fair recording of evidence is not undertaken. Witnesses were not freely allowed to depose. They were unnecessarily stopped and warned while deposing. They were also not allowed to depose even simple question, treating as is it was leading question. We have also noticed that during the course of trial though the police statement is not admissible, police statement of Paresh Chunibhai Patel has been exhibited twice vide Exh.30 and Exh.42 with consent of defence. Similarly, the FIR came to be admitted thrice at Exh.30, 55 and 81. While bringing on record so-called contradictions; compound, complex and joint questions were put to the witnesses, thereby creating wrong picture regarding the contradictions, which are minor in nature.

57. We sincerely feel that it is the joint duty of all the Judicial Officers, Public Prosecutors and Advocates for the accused as well to ensure that the settled principles of rule of fair trial is observed while conducting trials of such heinous offences and hope that they would be more cautious in future while discharging their duties and functions in such cases.

58. In our overall re-appreciation of evidence, we are satisfied that the learned Additional Sessions Judge has not committed any error in convicting the accused and awarding the sentence of life imprisonment for the offence punishable under Section 302 of the Indian Penal Code for which they have been charged.

59. The appeal of the appellants is totally devoid of any merits and deserves to be dismissed. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.7, Gondal camp at Dhoraji in Sessions Case No.56 of 2007 is confirmed. The appeal is dismissed.

R & P be sent to the trial Court.

(AKIL KURESHI, J.) (R.P.DHOLARIA,J.) Jani Page 46 of 46

Unlock Advanced Research with PRISMAI

Gujarat High Court