Gujarat High Court
Ganesh Mavjibhai Kadva & 2 Ors vs The State Of Gujarat on 9 May, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
R/CR.A/17/2007 CAV JUDGMENT
CR.A172007Rj2.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 17 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
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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
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GANESH MAVJIBHAI KADVA & 2 ORS.
Versus
THE STATE OF GUJARAT
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Appearance:
MRS REKHA H KAPADIA, ADVOCATE for the Appellants.
MA CHETNA M SHAH, PUBLIC PROSECUTOR for the Respondent.
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
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R/CR.A/17/2007 CAV JUDGMENT
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/05/2014
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. This appeal is at the instance of three convicted persons and is directed against an order of conviction dated 29th September 2006 in Sessions Case No. 9 of 2004 by which the learned Presiding Officer, 2nd Fast Track Court, Junagadh found the appellants guilty of offence punishable under section 302 read with section 114 of the Indian Penal Code and sentenced them to suffer imprisonment for life and a fine of Rs.2000/- each, with a stipulation that in default of payment of fine, they will undergo further simple imprisonment for three months. All the accused persons were awarded sentence of rigorous imprisonment for one year for offence punishable under section 37(1) and 135 of the Bombay Police Act and a fine of Rs.500/- each with a further condition that in default of payment of fine, they will undergo further simple imprisonment for one month. The sentences were ordered to run concurrently and they were also given set off for the days undergone as under-trial prisoners. The appellants, however, were acquitted for the offence punishable under section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.
2. The prosecution case may be summed us thus:
Page 2 of 46 R/CR.A/17/2007 CAV JUDGMENT
2.1 On 13th February 2004, one Sunil Raja Bhasa filed a complaint before the Junagadh City 'A' Division Police Station that on 13 th February 2004 at about eight o' clock in the evening, when he came to Mastram Garbi Chock, Dolatpara from his house, his aunt's son, Vashram Devji Chavda, met him, and they were formally talking with each other about business. At that time, from the street in front of Garbi Chock, one Jika Parbat, who was residing over there came out and further two persons, namely, Ganesh Mavji Maratha and Pinjara Jiva Kara, came near them. Out of the above three persons, Jika Devji asked Vashram as to why he had become over smart on the previous day, and telling so, Jiva Kara had caught Vashram by surrounding his hands from behind, and Ganesh Mavji and Jika Parbat had taken out their knives from the passage of waist part of the trouser, and Ganesh Mavji had given a blow of a knife to Vashram at the left part of the chest and the blood had started coming out, while Jika Parbat had given the blow of knife to Vashram but he did not know exactly at which part of the body the blow landed. Meanwhile, he came in between and started to shout 'help - help', and so Lilaben Nanji Khant, her son Nitin Nanji and her daughter Rekha Nanji came out running from the house with whom Vashram was living, and these three of them ran away and had taken the knives with them which were used at the time of incident. After that, he saw that Vashram was bleeding profusely from his chest due to the injury of knife, and the clothes which he had put on were stained with the blood, and he Page 3 of 46 R/CR.A/17/2007 CAV JUDGMENT had fallen down. Hence, the complainant, Nitin, Lilaben, mother of Nitin, Rekhaben, sister of Nitin, had taken Vashram in an unknown auto rickshaw, brought him at the Civil Hospital, Junagadh and admitted for the treatment, on duty doctor had examined him and stated that this Vashram had died.
2.2 According to the complainant, on the previous date of filing the complaint, Vashram, son of his aunt had quarreled with above three persons due to some reason. Due to animosity, Ganesh Mavji had given a blow of knife in the chest and Jika Parbat had given a blow of knife and Jiva Kara had caught hold of him and had caused his death by inflicting injuries in collusion with each other, with an intention to kill.
2.3 Police commenced investigation, and on completion thereof, filed a charge sheet before the learned JMFC who committed the case to the court of sessions, as the case was exclusively triable by the Court of Sessions.
2.4 The Sessions Court framed charges against the accused persons. The translated version of the charge framed against the accused persons reads as under:-
"On 13/2/2004 at about 8.00 hrs in the evening, when the complainant was coming to Mastram Garbi Chowk, Dolatpara Page 4 of 46 R/CR.A/17/2007 CAV JUDGMENT from his house, Vashrambhai Devji Chavda Dalit, the son of the foi (father's sister) of the complainant met him on the way and while they were having informal conversation, you the accused persons Jika Parbat, Ganesh Mavji and Jiva Kasam, all three friends came near the complainant and the son of his foi, Vashram Devji from the opposite lane of the Garbi Chowk. Out of you all the accused persons, you, the accused Jika told Vashram as to 'why are you acting smart?' After saying such, you the accused Jiva Kasam caught hold of Vashram by surrounding hands and you, the accused Ganesh Mavji and Jika Parbat drew out knives from your nefo (a passage for waist string in trousers) and you the accused Ganesh Mavji inflicted a knife blow on the left side of chest to Vashram and you the accused Jika Parbat inflicted second knife blow to Vashram and caused fatal injuries and caused the death of Vashram Devji. Thereby, you the accused persons have committed punishable offence in abatement of one another under section 302 and 114 of the IPC within the jurisdiction of this Court.
Moreover, though the notification of the District Magistrate of prohibition to keep arms was force at the above stated time and place, you the accused no.1, Ganesh Mavji and the accused no.2 Jika Parbat were armed with weapon such as knife and thereby you have violated the notification of prohibition to keep arms and have committed punishable offence under section 135 of the Bombay Police Act within the jurisdiction of this Court.
Moreover, the deceased of this case, Vashram Devji Chavda belonged to Dalit caste and as you the accused persons belonged to higher caste, you the accused have caused the death of Vashram Devji Chavda by assaulting with knife and causing fatal injuries and thereby you have Page 5 of 46 R/CR.A/17/2007 CAV JUDGMENT committed punishable offence under section 3(2)(5) of the Atrocity Act within the jurisdiction of this Court.
Therefore, I order that trial of the above mentioned offences should be conducted against you the accused persons in this Court.
2.5 The accused persons denied the charges framed against them and claimed to be tried.
2.6 At the trial, the prosecution examined the following 26 witnesses in support of the prosecution case:
Sl. Name of witnesses PW. Exh.
No. No. No.
1 Dr. Dhirendra Pranlal Thanki, Medical PW.1 Exh.24
Officer, Junagadh
2 Arvind Jasabhai Solanki, Pancha PW.2 Exh.30
witness
3 Govindbhai Dhayabhai Parmar, Pancha PW.3 Exh.32
witness
4 Ajijbhai Isabhai, Pancha witness PW.4 Exh.34
5 Ashokbhai Dhirubhai, Panch witness PW.5 Exh.36
6 Samatkhanji Kesarkhanji, Panch PW.6 Exh.38
witness
7 Hasimbhai Abdulbhai Satar, Panch PW.7 Exh.40
witness
8 Raiyabhai Polabhai, Panch witness. PW.8 Exh.42
9 Yunus Amadbhai, Pancha witness PW.9 Exh.43
10 Ramesh Manubhai, Pancha witness PW.10 Exh.45
11 Karabhai Juthabhai, Pancha witness PW.11 Exh.46
12 Nursha Sidisha, Panch witness PW.12 Exh.47
13 Rambhai Shamlabhai , Panch witness PW.13 Exh.49
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R/CR.A/17/2007 CAV JUDGMENT
14 Sunilbhai Rajabhai, Complainant PW.14 Exh.54
15 Lilaben Nanjibhai, witness PW.15 Exh.57
16 Lalji Devabhai Chavda, witness PW.16 Exh.59
17 Dr. Narendrakumar Narandas Vediya, PW.17 Exh.60
Medical Officer, Junagadh
18 Nayankumar Masaribhai Baraiya, PW.18 Exh.61
Project Officer
19 Chandrakant Dayaram Bapodara, PW.19 Exh.63
F.S.L. Officer
20 Rekhaben Kalubhai, witness. PW.20 Exh.66
21 Narendrasinh Banesinh Chudasma, PW.21 Exh.67
P.S.I
22 Ajay Parshottambhai, witness PW.22 Exh.69
23 Hasunkhan Dadekhan Pathan, P.S.O PW.23 Exh.70
24 Bharatsinh Balvantsinh Gohil, P.S.I. PW.24 Exh. 77
25 Mansing Govindbhai Barot, A.S.I. PW.25 Exh.83
26 Manojkumar Vechatbhai Ozat, Dy.S.P. PW.26 Exh.86
2.7 The prosecution also produced the following pieces of
documentary evidence in support of its case.
Sl Name of documents Exh. No.
No.
1 Police yadi/post-mortem form Exh. 25/26
2 P.M. Note Exh.27
3 Cause of death Certificate Exh.28
4 Cause of death Certificate Exh.28
5 Panchanama of the place of the incident Exh.33
6 Arrest Panchanama and panchanama of the Exh.35
physical condition of the accused persons
7 Panchanama in respect of seizing clothes of Exh.37
the accused persons
8 Arrest panchanama and panchnama of Exh.39
physical condition of the accused no. 3
Page 7 of 46
R/CR.A/17/2007 CAV JUDGMENT
9 Panchanama of seizing clothes of the accused Exh.41
Jika Parbat
10 Panchanama of the muddamal seized during Exh.44
P.M
11 Panchanama of seizing knife used by the Exh.48
accused Jika Parbat
12 Original complaint of the complainant Exh.55
Sunilbhai Rajabhai
13 Application to make correction in the name of Exh.56
the deceased
14 Caste certificate of the deceased Exh.62
15 Letter/F.S.L. Mobile report Exh.64/65
16 Yadi made to A Div. Po. Station Exh.68
17 Letter/yadi/VHF/copies Exh. 71/76
18 Yadi/Report/Receipt made for Inquest Exh. 78 to 81
19 Copy of D.O. Register......... Ex. 84. Exh.
20 F.S.L. report and Serological report Exh. 89/ 91
21 Notification of Prohibition to Keep Arms Exh. 92
22 F.S.L. report Exh.95
2.8 Statements of the accused persons were recorded under section 313 of the the Code of Criminal Procedure and their common stance was as under:
"The complainant is engaged in the business of selling liquor illegally, after establishing relations with the police. Due to that illegal business of liquor, the deceased had disputes and animosity with many persons. Before this incident also, police cases had been lodged against the complainant and the deceased. A false case has been filed against us in collusion with the police. I am innocent."Page 8 of 46 R/CR.A/17/2007 CAV JUDGMENT
2.9 As stated earlier, the learned Sessions Judge, by the order impugned in this appeal, found all the three appellants guilty of the offence of murder and inflicted punishment as indicated earlier. 2.10 Being dissatisfied, the three accused persons have come up with the present appeal.
3 Ms. Rekha Kapadia, the learned advocate appearing for the appellants, strenuously contended before us that the learned trial Judge erred in law in holding her clients guilty although the prosecution had failed to prove the case beyond reasonable doubt. According to Ms. Kapadia, the oral deposition given by the alleged eyewitnesses are not worthy of credence and in view of inconsistencies, the learned Sessions Judge should be disbelieved such persons. Ms. Kapadia, therefore, prays for allowing the appeal by setting aside the order of conviction and sentence.
4. On the other hand, Ms. Chetana Shah, the learned Additional Public Prosecutor appearing for the respondent, contended that in this case, from the evidence given by the eyewitnesses, it has been proved beyond reasonable doubt that it was the three accused persons who actually committed the offence in an open place due to past incidence of altercation between the deceased on the one hand and the accused on the other, and there is no scope of arriving at a Page 9 of 46 R/CR.A/17/2007 CAV JUDGMENT different conclusion than the one arrived at by the learned Sessions Judge. Ms. Shah, therefore, prays for dismissal of the appeal.
5. In this case, the prosecution has examined in all 26 witnesses. We have carefully gone through the deposition given by all the witnesses. Out of the witnesses, panch witnesses Ajijbhai Isabhai PW.4, Ashokbhai Dhirubhai PW.5, Samatkhanji Kesarkhanji PW.6, Hasimbhai Abdulbhai Satar PW.7, Raiyabhai Polabhai PW.8, Yunus Amadbhai PW.9, Ramesh Manubhai PW.10, Karabhai Juthabhai PW.11, Nursha Sidisha PW.12, Rambhai Shamlabhai PW.13, and Ajay Parshottambhai PW.22 have all turned hostile. PW. No. 16 Lalji Devabhai Chavda, brother of the deceased is not an eyewitness and has only hearsay information. PW.17 Dr. Narendrakumar Narandas Vediya is the Medical Officer of Junagadh Hospital where the victim was initially admitted and nothing turns out in his deposition. Nayankumar Masaribhai Baraiya is the Project Officer of the office of the District Backward Class Welfare Office and his deposition is of no significance in the present case. PW. No.21 Narendrasinh Banesinh Chudasma, PW. No. 22 Hasunkhan Dadekhan Pathan, PW. No.23 Bharatsinh Balvantsinh Gohil, PW. No.25 Mansing Govindbhai Barot and PW. No. 26 Manojkumar Vechatbhai Ozat are all police witnesses and they have merely explained the procedure followed by them in the investigation of the case. PW. No.2, Arvind Jasabhai Solanki is a panch witness of the inquest panchnama and pw. No.3, Govindbhai Dahyabhai Parmar is a panch witness of the scene of offence and Page 10 of 46 R/CR.A/17/2007 CAV JUDGMENT they have proved their version and withstood the cross-examination and there is nothing disputable in their version. Thus, we do not propose to discuss in detail the depositions of the above witnesses.
6. However, we propose to deal with the depositions given by PW.14, Sunilbhai Rajabhai, the complainant, PW. No. 15, Lilaben Nanjibhai, eye witness, PW. No. 20 Rekhaben Kalubhai, eyewitness and the deposition of the Medical Officer who performed the autopsy, PW. No.1, Dr. Dhirendra Pranlal Thanki in detail as under:-
7. Prosecution Witness No.1 is Dr. Dherindra Pranlal Thanki, who performed the autopsy of the dead-body of the deceased. In his examination-in-chief he has stated that in the year 2004, he was performing duty as Medical Officer in Junagadh Civil Hospital. On 13th February 2004, a Police Constable, Meghjibhai Jivanbhai, B.No. 1731 of 'A' Division Police Station, brought the dead-body of the deceased of the case of 'A' Division Police Station C. R. no. I-35/2004, Vashrambhai Devjibhai Chavda, age about 35 years, resident of Dolatpara, for P.M. The dead-body was received in the hospital at 11.30 hrs in the night on 13th February 2004. Police yadi, inquest panchnama and post-mortem form were received with the dead- body. He has proved the police and copy of post-mortem form. 7.1 This witness has stated that he started post-mortem examination of the dead-body on 14th February 2004 at 6.50 hrs in Page 11 of 46 R/CR.A/17/2007 CAV JUDGMENT the morning and completed it on the same day at 8.10 hrs in the morning. The dead-body was of a male person aged about 35 years. There was a blue colour shirt with design on the dead-body which was cut of 1.5 x 1 inch below the left side pocket and it was stained with blood. There was a blackish trouser with lining, which was stained with blood on the left side. They were smeared with blood. There were black hair on the head of the dead-body, which were smeared with blood on the front part. Mustache was there. There were no ornaments on the dead-body. There was a round scar of 1 cm in diameter on the right side of knee as the identification mark of the dead-body. The built of the body was average and it was cold. Rigor mortis was present on both the external limbs. There were faint stains on the dependent part of the dead-body and the eyes were slightly open. Mouth was slightly open. The tongue was inside the mouth. Clotted blood was present around the nose. Clotted blood was present on the left side forehead, left side face, on neck and on left side chest. No injury was seen on external genitals and there was no sign of aggression.
7.2 This witness has further stated that upon doing external examination of the dead-body, the following injuries were seen. Injury no.1: There was a horizontal slightly oblique wound on the left upper chest about three cms away of left sternal on the inter-coastal region, which was 3 cm x ½ cm x viscera deep.
Page 12 of 46 R/CR.A/17/2007 CAV JUDGMENT Injury no.2: There was a wound of ½ cm x ½ cm x 1 cm on the right lower lateral chest.
Injury no.3: There was a linear abrasion about 3 cm in length on left scapular region.
7.3 The injury no.1 and 2 were stab wound and the injury no.3 was abrasion. These injuries were ante mortem. The injuries on the dead-body of the deceased were ante mortem.
7.4 This witness has further stated that upon making internal examination of the dead-body, the following condition was seen. 7.5 There was nothing particular in head, brain and skull. The wall of chest, ribs were as per column no.17 of the P.M. note. Trachea was slightly congested. Left lung was normal. There was a perforated wound on the upper medial surface on the left lung. The entry wound was 2.5 cm and exit wound was 2 cm. Humeforex was on the left side (sic). There was haemu-pericardium in the heart. There was a 2 cm long wound on the anterior aspect of the heart, which was cavity deep. There was nothing particular on the abdomen wall, peritoneum and cavity. Teeth were present as per age. There was semi-liquid of about 100 ml in the stomach of light yellow colour having no particular smell. There was nothing particular to note about small intestine and large intestine. Liver was slightly enlarged. There was nothing particular to note about spleen, kidneys, urinary bladder and Page 13 of 46 R/CR.A/17/2007 CAV JUDGMENT gall bladder.
7.6 This witness has further stated that the following viscera were taken from the dead-body for Forensic Science Laboratory.
1. A small part of stomach and the intestine
2. A piece of liver and gall bladder, a piece of kidney and a piece of lung.
3. A sample of viscera for preservation, wherein 5 cc blood was collected in saline solution and small vial.
These were sent to the police.
7.7 This witness has stated that the final cause of death was kept pending after post-mortem examination until examination report of viscera collected from the dead-body is received from the FSL. This witness has stated that he prepared the post-mortem note in his handwriting and he had made his signature underneath. He has proved the P.M. note and identified his signature thereon. 7.8 This witness has further stated that after analysis report of the viscera was received from the FSL and as the same was submitted to him, he issued the cause of death certificate on 14 th April 2005. As per his opinion, the cause of death of the deceased Vashrambhai Devjibhai was "Death due to haemorrhagic shock due to Page 14 of 46 R/CR.A/17/2007 CAV JUDGMENT injury to lung and heart". He has proved the cause of death certificate and identified his signature thereon. 7.9 This witness has further stated that the injury no. 1 and 2 can be caused by a sharp pointed weapon and the injury no. 3 can be caused with a hard and blunt substance. The injury no.1 and the external injury no.1 were sufficient to cause death of a person in ordinary course of nature. He was shown the muddamal article no. 3 and 10. External injury no.1 can be caused by the knife of muddamal article no.3 and injury no.2 can be caused with the knife of muddamal article no.10.
7.10 This witness has stated that the internal injuries were corresponding to the external injuries.
7.11 In the cross-examination by the learned advocate for the accused persons, this witness has denied that on the basis of the rigor mortis seen on the dead-body of the deceased, the death of the deceased might not have occurred within six to eight hours but before six to eight hour. He did not agree that more than 10 hours may have passed since the death of the deceased but it can be within 12 hours. This witness has denied that if the duration of death is more than ten to twelve hours, rigor mortis can be seen on the entire dead-body. This witness has admitted that rigor mortis spreads early in the dead-body in open space and in winter season. Page 15 of 46 R/CR.A/17/2007 CAV JUDGMENT This witness has admitted that there were no marks or dust or mud on the clothes that had seen. Therefore, he has not mentioned it in his P.M. note. The clothes that he had seen were seized and handed over to the police. This witness has stated that injury of 'T' shape can be and cannot be caused by the muddamal knife which was shown to him. He has further stated that 'T' shape injury could be caused if two blows are given and not one blow. The corners and edge of injuries stated in the P.M. note are not mentioned; only measurement is mentioned. If the injury is fresh, it can be clearly stated to mention as to with which weapon the injury is caused and if more than two hours are passed, it cannot be stated as to with which type of weapon the injury was caused. This witness has admitted that no internal injury was caused with injury no.2. This witness has admitted that injury no.3 was ordinary injury. If injury is caused to pericardium due to injury no.1, there is possibility of blood getting filled up in abdominal cavity. This witness has admitted that the liver of the deceased was larger than usual. This witness has stated that for the reason of liver getting expanded, if the person has the habit of consuming alcohol, the in such cases, the spleen becomes enlarged. He has further stated that he had not written the weight of liver in his P.M. note. This witness has denied that semi digested food was found from the stomach of the deceased and it can be stated thereof that he consumed food before two hours. But he might have been consumed food before six hours. Generally, the food gets digested upto some extent within four hours and gets into small intestine. This Page 16 of 46 R/CR.A/17/2007 CAV JUDGMENT witness has admitted that the food that the deceased had consumed, could ordinarily move to small intestine after getting digested. It cannot be ascertained on that basis as to what type of food was eaten. It cannot be said as to whether the person was vegetarian or non vegetarian. This witness has admitted that he did not mention the cause of death due to remains of food found and that the liver was enlarged. This witness has stated that he took one jar for stomach and took another jar for liver, spleen and liver kidney. He has further stated that he sent the sample of food along with stomach. This witness has admitted that when he examined the deceased, there was blood clotted on the wound which was on the chest. This witness has admitted that incised wound can be caused with any sharp weapon. This witness did not agree that injury no.2 was an incised wound but it was not stab wound. This witness has denied that it cannot be stated that as the injury no.2 was 1 cm deep, it was a stab wound. If a person falls down, the abrasion of injury no.3 cannot be caused. If a person falls down, contusion injury can be caused and pressure type abrasion can be sustained and C.L.W. type injury can be sustained. There were no hair on the chest of the deceased.
7.12 This witness has further stated that if a weapon is sharp cutting on one side and blunt on the other side and injury is caused with the same, regetness (sic) and bruises can be seen and one side edge is found sharp that means clean cut. This witness has admitted Page 17 of 46 R/CR.A/17/2007 CAV JUDGMENT that the one side edge of the muddamal is completely blunt. This witness has admitted that there was no injury out of the injuries sustained by the deceased on which bruises and regetness (sic) was seen on one side and the edge of the wound was seen clean cut on the other side.
7.13 This witness has further stated that if there is hair on the chest of the person, the condition of the hair depends on the direction of the weapon. This witness has admitted that if there is hair on the chest, it gets cut as per wound. This witness has denied that death could or could not be caused by injury no.1 and he has stated that death can be caused.
8. Prosecution Witness no.14, Sunilbhai Rajabhai, was the complainant. In his examination-in-chief he has stated that time of about two years have passed since the incident. When he was coming alone from his house, he met Vashram Deva, the son of his foi (father's sister) and they both were talking informally. In the meantime, Ganesh Mavji, Jika Parbat Koli and Jiva Kala Pinjara came to them from the lane situated opposite to Mastram Chowk. Jika Parbat told Vashram, the son of his foi, as to why he was acting smart the previous day. Thereafter, Jiva Kala talked to his brother Vashram in angry manner. Thereafter, Ganesh Mavji and Jika Parbat took out knives from their nefa. Ganesh Mavji inflicted a knife blow on the left side of chest of his brother. Thereafter, Jika Parbat gave a knife blow. Page 18 of 46 R/CR.A/17/2007 CAV JUDGMENT That knife blow was given on the left side chest of Vashram. Thereafter, this witness started shouting and as there was uproar, Lilaben Nanjibhai residing the back side of the place of occurrence arrived. Nitinbhai Nanjibhai, Rekhaben Nanjibhai and Shilpaben Nanjibhai also came with Lilaben. Thereafter, all the three persons, that means Ganesh Mavji, Jika Parbat and Jiva Kala escaped with the knives. Thereafter, this witness, Lilaben, Nitinbhai, Rekhaben and Shilpaben, total five persons, brought Vashram in a rickshaw to the Emergency Treatment Ward of Junagadh Civil Hospital. Thereafter, the doctor examined Vashram and stated that there is no hope that means Vashrambhai has died. As Vashrambhai was given knife blows, he was bleeding and a puddle of blood was formed at the place of occurrence.
8.1 This witness has stated that thereafter, the doctor called police. The police interrogated him and the police wrote down his complaint. The police wrote down as he dictated and thereafter, it was read over to him. Thereafter, he made his signature in the complaint. He has proved the complaint and identified his signature thereon.
8.2 This witness has stated that he saw the assailants at the time of the incident and he knew them. As he was asked about the accused persons before the Court, he stated that all the three accused persons are present in the box and he has identified them. Page 19 of 46 R/CR.A/17/2007 CAV JUDGMENT The police inquired him on the second day and he showed the local place and the houses of the accused persons. This witness has stated that if the clothes worn by the deceased on the day of the incident were shown to him, he could identify the same. On the day of the incident the deceased wore a bajariya (type of colour) shirt having checks and a black colour lining trouser. He was shown the clothes of the deceased and he has identified the same. This witness has further that if the muddamal knives used in this case of offence are shown to hi, he could identify them. He was shown muddamal article no.3 and 10 before the Court and he has identified the same as the weapons which were in the hands of the accused persons at the time of the incident.
8.3 This witness has further stated that he dictated the name of the deceased in the complaint as Vashram Devjibhai and as a mistake was made in the name, he informed the Investigating Officer in writing that the correct name was Vashrambhai Devabhai Chavda. He had made his signature underneath and he has proved the correction memo and identified his signature thereon. 8.4 This witness has further stated that on the day of the incident he gave identification of the dead-body of the deceased Vashrambhai Devabhai to the police at the time of inquest panchnama. When he went to the house of the accused Ganesh Mavji with the police, it was locked and as they went to the house of the Page 20 of 46 R/CR.A/17/2007 CAV JUDGMENT accused Jika Kala, it was also locked and as they went to the house of the accused Jika Parbat, the accused was not present, but his sister Jaziben was present. The cause of this incident was that prior to this incident Vashram Deva and the accused persons Ganesh Mavji, Jiva Kala and Jika Parbat had some dispute and therefore, the incident occurred.
8.5 In the cross-examination of this witness by the learned advocate accused persons, this witness has stated that during the time of the incident, he was doing labour work in G.I.D.C., Dolatpara. He was working in a factory of footwear. He was doing job as a daily- wager and he used to go everyday at 8.00 hrs in the morning as daily-wager and he used to return at 6.00 hrs in the evening. His family consists of his wife and three boys and all of them live together. Vashram Deva was the son of his real foi. The name of his foi is Jiviben. His foi resides in Harijanvas at Dolatpara. At the time of the incident, Vashram, the son of his foi was living with her. He knew Liliben Nanjibhai. At the time of the incident Liliben was residing near the primary school at Dolatpara. This witness has admitted that the deceased Vashram was living with Liliben since nine years before the incident. This witness has admitted that Vashram did not have cordial relationship with his two brothers and therefore, he was staying with Liliben. This witness has admitted that the names of the brothers of Vashram are Bhikhabhai and Laljibhai and both these brothers were residing in Vankarvas. This witness has stated that he Page 21 of 46 R/CR.A/17/2007 CAV JUDGMENT knew Lilaben by her appearance. The age of Nitin was 21 to 22 years. On the next day of the incident, the police called him at 8.00 hrs. The police called him at Mastram Garbi Chowk. This witness has admitted that he did not go to work on the next day of the incident. This witness has stated that he did not inform the reason for not going to his sheth (master) through someone or through any other way. When the police called him on the next day of the incident to the place of incident, he came to know; he was not informed prior to it. The policeman who came to call him on the next day of the incident, was not the person who took his complaint. Except him, the police did not call any other person on the next day. It has not happened that any case was registered against him prior to the incident and the police called him. This witness has stated that he knew Jyotsanaben Khant of his area. This witness has stated that he had an altercation with Jyotsanaben before two to four months of the incident. About two cases of prohibition are registered against him before the incident. This witness has denied that about eighteen to twenty cases of prohibition are registered against him prior to the incident. This witness has stated that he did not know that at the time of the incident, Vashram was doing business of selling liquor at the house of Liliben. He has further stated that he did not know as to whether cases of prohibition were registered against Vashram prior to the incident. He has further stated that he did not know whether cases of prohibition are registered against Liliben during the period of the incident. This witness has further stated that he did not know whether Page 22 of 46 R/CR.A/17/2007 CAV JUDGMENT Liliben registered a case against Vashram before the incident and whether as there was compromise worked out between Vashram and Lili. Vashram was living with Lili.
8.6 This witness has admitted that mainly Dalit caste population reside in Dolatpara. This witness has admitted that a person of their caste was the Sarpanch at the time of the incident. This witness has admitted that a police chowki is situated near Sakarbag on the road leading from Dolatpara to Junagadh and a permanent policeman is posted in this police chowki. This witness has admitted that Junagadh Civil Hospital and Junagadh Police Station are about three kilometers far from Sakkarbag Police Chowki. This witness has stated that it did not happen that police came to Dolatpara on the day before the incident for some investigation. He has further stated that he did not know any fact that one day prior to the incident, Vashram had any dispute with anyone. This witness has further stated that he did not know as to what work Vashram was doing during the period of the incident. He has further stated that he did not know that Vashram was living with Liliben prior to the incident and there was quarrel with many persons regarding liquor. 8.7 This witness has further stated that as per his say and belief, there is vegetable market at this place there means vegetable and fruits etc are available. The witness himself says that meat (mutton) is not called vegetable. He did not know as to how many Page 23 of 46 R/CR.A/17/2007 CAV JUDGMENT vegetable markets are there in Dolatpara. This witness has admitted that he had not given the information to the police that he had gone to vegetable market on the day of the incident. He has further stated that he read the complaint before making signature and thereafter he stated that the complaint was read over to him, the policeman read over the complaint to him, and when the complaint was read over to him, the name of Shilpaben was spoken. The age of Shilpaben might be about 17 to 18 years. This witness has admitted that he had not dictated in his complaint that " Shilpaben Nanjibhai came". This witness has admitted that he had not dictated the fact about the arrival of Shilpaben in the further statement on 14th February 2004. This witness has admitted that it was winter at the time of the incident and the day was short.
8.8 This witness has admitted that many persons move at the place of incident in the evening time and many persons move with their vehicles.
8.9 This witness has further stated that the police called him on the next day of the incident to Mastram Garbi Chowk and they went to the house of the accused persons from there. This witness has stated that he had not gone to the houses of the accused persons prior to this and he did not know as to how many family members live at the houses of the accused. This witness has admitted that before the police called him to the place of occurrence Page 24 of 46 R/CR.A/17/2007 CAV JUDGMENT on the next day, the police did not give him information about the residence of the accused persons. Except the police officer, no other person was present on the next day of the incident. This witness has admitted that he had not dictated in his complaint before the police that "thereafter, Jika Patbat gave a knife blow; that knife blow was inflicted to Vashram on the left side chest". (This contradiction is only with the respect that the knife blow was given on the left side of chest to Vashram.) This witness has admitted that he did not read the above stated detail in the complaint. This witness has admitted that he did not dictate above stated contradictory fact in his further statement before the police.
8.10 A question was put to this witness as to whether he had not seen that two knife blows were given to the deceased at the time of the incident and in reply, this witness has stated that he had seen at the time of the incident that Ganesh Mavji gave a knife blow and thereafter, all three of them escaped. This witness has denied that the said incident has not occurred at the place and time stated by him,.
8.11 This witness has admitted that he had not dictated in his complaint before the police that " therefore, he started bleeding and a puddle of blood was formed at the place of occurrence". This witness has further stated that he told all the three accused persons at the time of the incident that "why are you raising dispute". This Page 25 of 46 R/CR.A/17/2007 CAV JUDGMENT witness has admitted that till he told the above stated sentence to all these three persons, they did not have any weapons. This witness has admitted that he did not hear what Jiva Kala stated when he was instigated. After Vashram sustained injury, they took him in a passenger rickshaw to hospital. They lifted and kept Vashrambhai in the rickshaw. They three of them lifted Vashrambhai and kept him in a rickshaw. Vashrambhai was kept below the seat part in the rickshaw. He sat beside the driver in the rickshaw. He had worn a shirt and pant on the day of the incident. When he gave complaint to the police he was wearing the same pant and shirt. There were no blood stains on his shirt and pants. Except the driver, they four of them were there in the rickshaw. Except him, the remaining three persons were sitting on the back seat of the rickshaw. 8.12 This witness has further stated that Vashram was clasped. This witness has admitted that the incident of clasping Vashram has not occurred in his presence. Vashram and he were having conversation before the incident and they were talking while standing opposite to each other. This witness has stated that he did not understand sides. He did not understand the side of rising and setting of the Sun. His face was towards G.I.D.C. and the face of Vashram was towards Junagadh. The street of Mastram Chowk is situated on the right side from the place where he was standing. This witness has admitted that at present he was not able to state as to who were the persons passing from there at the time of the incident. Page 26 of 46 R/CR.A/17/2007 CAV JUDGMENT Vashrambhai did not say anything to the accused persons at the time of the incident. Vashrambhai did not shout. He did not fear when the altercation took place at the time of the incident. This witness has denied that as the accused persons took out knives from their nefa, he went away from there as he was afraid. This witness has admitted that other persons gathered during the period when Vashram and the accused persons had altercation. From the persons who were gathered, some were from their village and other were outsiders. This witness has stated that he had not been to the house of Lilaben prior the incident and Lilaben has also not come to their house and they have also not talked to each other. This witness has denied that he came to know about the incident late and he was not present at the time of the incident. This witness has denied that he came to know after the incident that Vashram was in an inebriated condition and he had a quarrel with unknown persons regarding liquor. This witness has denied that during the period of the incident, he knew that Vashram did not have good relationship with some persons of their caste and as persons of their caste were involved in the incident, he gave the names of the accused persons wrongly. This witness has denied that the complaint has not been taken in the hospital. This witness has denied that he made signature in the complaint later. This witness has denied that he was giving deposition in this case as a complainant at the instance of Lilaben. This witness has denied that he did not know the accused persons by name before the incident. This witness has denied that he did not know the name Page 27 of 46 R/CR.A/17/2007 CAV JUDGMENT of the father of the accused Jika at the time of giving the complaint and therefore, the name of his father is written as Devjibhai in the complaint. Devjibhai has been written by mistake. This witness has denied that when the complaint was registered, he did not know the complete name of the deceased. This witness has admitted that he dictated the name of the deceased as Vashram Devjibhai in the complaint and in his further statement he informed the police in writing through a letter that the correct name was Vashram Devabhai. This witness has admitted that he did not dictate in his further statement that the name of the father of Vashram is Devabhai. Bhikhabhai, the brother of the deceased told him that name has to be given in writing. Bhikhabhai informed him such on 19th date. 8.13 This witness has denied that Vashram and he were not standing and talking at Mastram Chowk on the day of the incident. This witness has denied that it has not happened that as he had mentioned in the examination-in-chief, he was present and Lilaben Nitinbhai, Rekhaben and Shilpaben arrived there. 8.14 This witness has denied that stick blow was also given to Vashram at the time of the incident. This witness has denied that as the deceased was his relative, he was giving false deposition in support of his complaint.
9. PW. No. 15 is Lilaben Nanjibhai. In her examination in chief, she Page 28 of 46 R/CR.A/17/2007 CAV JUDGMENT has stated that her husband is doing the work of an iron-smith and he runs a tea stall. He runs the tea stall near Jakatnaka. She had four daughters and two sons. Her elder daughter Rekha is married with Kala of Limadra. At the time of the incident, Kalu was doing work of diamond polishing at Surat. Her daughter had come to her house for delivery and at that time, all her four daughters, two sons and Vaju Devji @ Vaju @ Dharmesh Devji were living with them. This Vaju was staying with them since about nine years. The caste of Vaju was harijan. The incident occurred about two years back from now. The incident occurred at Mastram Garbi Chowk situated behind her house. The incident occurred at about eight o'clock in the evening. At the time of the incident, her daughter Rekha and she were buying vegetables. The place of incident and the place where they were buying vegetables are situated nearby each other. At this time, as Sunil, the son of the foi of Vaju shouted ' help help', she rushed there and as she saw.
9.1 The recording of the deposition was adjourned as an application was received from the APP and when the recording of the deposition continued on the next date, this witness has further stated that when her daughter Rekha and she were buying vegetables, her another daughter Shila was buying bangles from the shop of Rajubhai. The shop of Rajubhai was situated at a distance of about 15 feet from the place where they were buying vegetables. When they were buying vegetables, the shouts of 'help help' was heard. The Page 29 of 46 R/CR.A/17/2007 CAV JUDGMENT shouts of 'help help' were made by Sunilbhai. This sound was heard at the distance of about twenty feet near the place where they were buying vegetables in Garbi Chowk. As the sound was heard and as she saw, Jika Kala had caught hold of Vashram from the back and Ganesh Mavji inflicted a knife blow to Vashram on chest part. An instrument like iron hook was there in the hand of Jika Parbat and he was assaulting with the same. Therefore, her daughter Rekha and she went over there. Vashram had fallen down on the ground. Vashram was bleeding and a puddle of blood was formed on the ground. As she saw Vashram, his pants and shirt were smeared with blood. Thereafter, all the three accused persons ran away towards G.I.D.C. Road. After all the three persons escaped, her son Nitin also came. Thereafter, a rickshaw standing on the road was called and Vashram was kept in the rickshaw and she, her daughter Rekha, her son Nitin and Sunilbhai, four of them took Vashram to the Junagadh Civil Hospital. The doctor examined him in the hospital and the doctor informed that Vashram has died.
9.2 This witness has stated that she came to know about the cause of incident from Sunilbhai that when they both the brothers were talking on the previous day, the accused Ganesh Mavji had told that why he was acting smart on the previous day.
9.3 This witness has stated that she knew the accused persons by names and faces as they were coming to her house to call Page 30 of 46 R/CR.A/17/2007 CAV JUDGMENT Vashram. She has identified the accused persons. 9.4 This witness has stated that her daughter Shilpa had gone away from home before about six months of the incident of this case under the pretext of going to bring milk and they have not found her daughter Shilpa till the date of giving deposition. She gave application to the police after her daughter went away. As search was made for her at the places of their relatives, she had not come to know as to where her daughter has gone away. The police has inquired her often regarding the application given regarding Shilpa. 9.5 This witness has stated that the police inquired her on the next day regarding the incident of Vashram and recorded her statement.
9.6 In the cross-examination of this witness by the learned advocate for the accused persons, this witness has stated that it is true that Vashram and Vajubhai both are same person. She was calling him with both the names. She dictated the name Vaju to the police during inquiry. She had dictated to the police that Vaju was residing with her since nine years. She had not dictated the name as Vashram.
9.7 This witness has stated that at the time of the incident, she was on the north side of the place where incident occurred. This Page 31 of 46 R/CR.A/17/2007 CAV JUDGMENT witness has admitted that when she first heard the shouts of 'help help', she did not come to know whether this shout was made by Sunil. She has stated that she had not met Sunil anytime before the incident. This witness has denied that as she heard the shout, she turned back and saw that Jiva Kala had caught hold of Vashram from back side. This witness has admitted that she had not seen that two persons had knife in their hands. This witness has denied that when she saw, she did not know as to who were the persons. This witness has denied that she had not seen at the time of the incident that Jika Parbat had an instrument like iron hook in his hand or that he was assaulting with the same. This witness has denied that she had dictated in her statement before the police that 'and two persons were assaulting with knives'.
9.8 It is true that she had not dictated in her statement before the police that 'there was an instrument like iron hook in the hand of Jika Parbat and he was assaulting with it'. Jika Parbat assaulted Vashram on ear part with the weapon like a hook seen with him. About half a hand long instrument was in the hand of Jika Parbat. This witness has admitted that it was eight o'clock in the night at the time of the incident and as it was dark, she was not able to see the instrument in the hand of Jika Parbat properly. When she was buying vegetables, many other persons were buying vegetables. This witness has admitted that other than her, many other persons had gathered at the time of the incident. Many persons had gathered at the time of Page 32 of 46 R/CR.A/17/2007 CAV JUDGMENT the incident, she was not able to state the exact number of persons who were gathered. She knew some of the gathered persons. This witness has admitted that she had not dictated in her statement before the police that 'the shop of Rajubhai is situated at the distance of about fifteen feet from the place where they were buying vegetables' and 'the sound was heard at the distance of twenty feet near the place where they were buying vegetables'. The distance of fifteen and twenty feet mentioned by her, she stated by showing hand signal inside the court room and measurement is given on the basis of the same. This witness has admitted that when she reached the place of incident, Vashram had fallen down on the ground. She has stated that she did not know as to who was the rickshawala. Vashram was laid down in the place of keeping foot at the back part of rickshaw (in the lap). (Lap means the place of footrest in the rickshaw). Vashram was laid in the rickshaw. They were total five persons in the rickshaw including Vashram. Sunilbhai was sitting beside the driver and her daughter, her son and she were sitting on the seat. They four of them lifted Vashram and kept him in the rickshaw. Sunilbhai lifted Vashram with his two hands. When they lifted Vashram, her sari was stained with blood a little bit. When they took Vashram to the hospital, police persons arrived there. The police did not ask her anything at that time. she also did not inform anything to the police. The jeep of police dropped them at home at one o'clock in the night. This witness has admitted that she informed the policemen in the hospital that they were living together. Page 33 of 46 R/CR.A/17/2007 CAV JUDGMENT 9.9 This witness has stated that she did not know that cases of prohibition were registered against Vashram before the incident. This witness has admitted that one case of prohibition is registered against her by the police before the incident. She did not know whether the police had registered a case of selling liquor against her and Vashram. This witness has admitted that a case was filed between Vashram and her before the incident. She knew Jyotsanaben; she belongs to Khant caste. She did not know whether Jyotsanaben was selling liquor. She did not know whether Vashram was going to the house of Jyotsanaben. She did not know that as Vashram was going to the house of Jyotsanaben and Jyotsanaben did not like the same, there were disputes between Vashram and Jyotsanaben. Jyotsanaben and she had a quarrel once before the incident and they were assaulted in that quarrel. She did not know that as Vashram was often going to the house of Jyotsanaben, Jyotsanaben had made this dispute. This witness has admitted that she registered a police case against Jyotsanaben. In the quarrel with Jyotsanaben, she had broken the hand of her daughter and she caused injury to her son on head. The quarrel with Jyotsanaben took place during day time. This witness has denied that more than one cases of prohibition have been registered against her. She did not know that Vaju gave a knife blow to Anil before the incident and the police had registered offence under section 307 against Vaju. She did not know that when Vaju was living with her, there was a police case filed between Vaju and Page 34 of 46 R/CR.A/17/2007 CAV JUDGMENT Jyotsanaben. This witness has denied that as Vashram was not obeying his brothers, he was living with her. She did not know that many other cases of prohibition were registered against Vashram. She had talked about the incident with two brothers of Vashram in the hospital. This witness has denied that the accused persons of this case were not coming to her house to call Vashram and she did not know them. Vashram used to go for his job at 8.00 hrs in the morning and he used to come to have lunch at 12.30 hrs in the afternoon and he was going back to his duty at 2.30 hrs after lunch. The time of his return in the evening was not fixed. Vashram used to not come back at night many times. She knew Bipinbhai. He belongs to Koli caste. This witness has admitted that her daughter Shilpa and Bipin knew each other. This witness has admitted that in the application regarding going away of Shilpa, she had given names of two persons as suspects. This witness has admitted that as the suspects had taken away her daughter, she did not like, therefore, she gave application against them. She did not know that Vaju was living with her and he used to often quarrel with many other persons regarding the liquor business or other matters. This witness has denied that on the day of the incident, her daughter Rekha and she did not go to buy vegetables and they did not hear the shouts of Sunil. This witness has denied that she was not present at the time of the incident. This witness has denied that though Vajubhai was living with her, she was falsely stating that she do not know that he used to have frequent quarrels. This witness has denied that she had become witness in this Page 35 of 46 R/CR.A/17/2007 CAV JUDGMENT case subsequently at the instance of the police. This witness has denied that as Vaju was living with her and as they had personal relationship, she was giving false deposition against the accused persons.
10. Prosecution Witness No. 20 is Rekhaben Kalubhai. In her examination-in-chief she has stated that her husband is engaged in the work of polishing diamonds at Surat. As no arrangements were made for her husbands to live in Surat, she reside in Junagadh with her parents. Her father Nanjibhai is a blacksmith and also runs a tea stall. Her brother Nitin goes for labour work in a factory named Home Engineering in G.I.D.C. Her parents, her brother Nitin, a brother younger to him, three sister and she resided together. Apart from this Vashrambhai Harijan was also residing with them. He was living with them for about 9 years. This Vashrambhai used to do labour work of blacksmith along with her father. They all used to call him Vajukaka. 10.1 This witness has stated that it has been two years since the occurrence of the incident. She and her mother were buying vegetables at the time of incident. Her sister Shilpa was in the cutlery shop situated opposite side. They were buying vegetables at about 8- 00 to 8-15 hours in the night. Mastram Garbi Chowk is situated near the place where they were buying vegetables. During this time they heard shouts of Sunilbhai "save save". This sound of 'save save' was coming from the chowk. She saw that Vajukaka, Sunilbhai and other Page 36 of 46 R/CR.A/17/2007 CAV JUDGMENT three persons were there. Out of them, one had caught hold of Vajukaka and two were inflicting blows of knives. Therefore her mother and she went to that place running from the lorry of vegetables. During that time, her brother Nitin also arrived there. Her uncle had fallen down. They saw that he was smeared with blood and there was a puddle of blood. All the three assailants ran on the road of G.I.D.C. They had run with knives. These three persons were Ganesh Mavji, Jiva Kala and Jika Parbat. Jiva Kala had caught hold of Vajubhai. Ganesh Mavji and Jika Parbat inflicted blows of knives. She know all these three persons by face. As they used to come at her home to call her uncle, she know them. Thereafter, taking Vajubhai in a rickshaw, her mother, her brother Nitin, Sunilbhai and she went to government hospital of Junagadh. The doctor examined him at the hospital and stated that 'this person has died'. Sunilbhai gave a compliant for the same in the hospital. Sunilbhai informed her that on the previous day Vajubhai had an altercation with these three persons and due to this, the said incident has occurred. She has identified the accused persons present in the Court.
10.2 In the cross-examination of this witness by the learned advocate for the accused, she has stated that before the police interrogated her, no police case have been filed against her. She knew Maheshbhai. She knew him as he resides in her village. She knew Dipakbhai Sagar. As he used to come to quarrel with her again and again, she know him. As Dipakbhai was obstructing her way, a Page 37 of 46 R/CR.A/17/2007 CAV JUDGMENT case was filed against Bipinbhai, Dipakbhai Bipinbhai and Maheshbhai Koli. She did not know Ishabhai who resides near Sakkarbaugh. It has not happened that a case might have been filed against Ishabhai. She knew Jyotsanaben Khant. She resides opposite to them. A case of scuffle was filed against her. Jyotsanaben was living in the house of Maheshbhai Koli, Dipakbhai Sagar and Bipinbhai against whom the case was filed. Jyotsanaben was harassing her and so she used to come for quarreling with her. She did not know as to whether the father's name of Dipakbhai is Punabhai. She did not know Dipakbhai Punabhai Khant. This witness has denied that when the police came to interrogate her, four different criminal cases had been filed against her. Before the incident took place in the chowk, she was near the hand cart of vegetables. She knew the deceased Vashrambhai as he was living with them and working. Her father was doing welding work and he was also doing a job. The deceased Vashrambhai was living with them for nine years but he did not use to stay at their house in night. This witness has stated that the deceased Vashrambhai might be going to the house of his brothers in night. She knew both brothers of the deceased and they had speaking terms. Both brothers of Vashrambhai used to come to him at her house. On the day of the incident when she had gone to buy vegetables, there were many people. At the time of the incident, many people gathered there hearing the sounds of screaming because there is a chowk. There was light at the time of the incident. It was about 8-00 hours of night. All the members of their house go together to buy vegetables. When she Page 38 of 46 R/CR.A/17/2007 CAV JUDGMENT was in the market with her mother to buy vegetables, her father and brother were present at the house. She had gone to inform her father and brother about the incident. She and her mother were standing near the hand cart of vegetables. This witness has denied that when they heard the scream, they did not know as to who was screaming. 10.3 This witness has stated that Sunilbhai used to come at her house many a times. Before all the persons gathered, she had reached to Mastram chowk. This witness has denied that she had seen that one person was assaulting Vashrambhai with an object like hook. She had not seen that there may be a knife in the hands of one person but there may not be knives in the hands of two accused persons. She had not seen that at the time of the incident, only one persons was assaulting with knife. She had already bought vegetables. They did not keep the purchased vegetables on the road but the vegetables were lying on the hand cart only. 10.4 This witness has further stated that when she reached to the place of incident, before that she did not see all three accused persons running away. Harijan Vas is situated at some distance from the place where she lived. The place Gebansha Pir is very far from her house. (It may take half an hour if one goes there on foot). She had never visited the Dargah of Gebansha Pir. This witness has denied that she did not know that the name of the father of the accused Jiva was Kalabhai or she did not know it till the police took her statement. Page 39 of 46 R/CR.A/17/2007 CAV JUDGMENT She personally knew the name of the father of the accused Jivabhai. It did not happen that someone may have told her the name of Jivabhai's father and she may come to know the name. She did not know as to who had gone to call for the rickshaw.
10.5 This witness has further stated that they laid the deceased in the empty place in the middle of the rickshaw. This witness has admitted that before they reached the hospital, she was not aware of the fact as to who had inflicted the blow of knife to Vasharam and on which part. The police interrogated her in the hospital. She stayed in the hospital up to two or three hours of night. 10.6 This witness has denied that she was falsely telling the fact that at the time of the incident she had gone to buy vegetables with her mother. This witness has denied that she had not eye- witnessed the incident as stated in her examination-in-chief. This witness has denied that at the instance of her parents she was falsely stating the fact that she was present near the place of incident at the time of incident. This witness has denied that as her mother has given deposition in this court on the previous adjournment date, she was giving a false deposition as tutored by her. She did not know as to whether many cases of liquor have been filed against the deceased Vashrambhai before the incident. She did not know as to her house was raided in connection with liquor or not. She had been married to Dhimadhra village. She had come to reside at her parental house Page 40 of 46 R/CR.A/17/2007 CAV JUDGMENT from her in-law's house at Dhimadhra since two years. This witness has admitted that her husband was living at Surat even before her marriage. This witness has denied that as far as he could not arrange for a house in Surat, she reside at her parental house. This witness has admitted that when the police took her statement, she had no issue. The witness willingly states that at that time she was pregnant. At present she had a child who is one and a half to quarter to two years old. This witness has admitted that her marriage had been solemnized before five years of the incident. This witness has denied that as her husband was residing in Surat, she was not residing at her in-law's house at Limadhra.
10.7 This witness has admitted that she had dictated such fact in her statement before the police that "as her husband was doing the work polishing diamonds at Surat and until it is not managed for a house to reside there, she had to reside with her parents." This witness has admitted that she had not dictated such fact in her statement before the police that "after her marriage, she was residing at Limadhra village and she had come to her parental house since last two years for the purpose of delivery." This witness has denied that she falsely stated that fact that after her marriage she had come to the house of her parents for the purpose of delivery. This witness has denied that dispute with Rekhaben Khant (sic), as the movement of unknown persons were taking place at her house, because of this, there was a dispute with Jyotsanaben Khant. This witness has denied Page 41 of 46 R/CR.A/17/2007 CAV JUDGMENT that the person named Lavarish @ Dipak Khant has come in the court along with her when she had come to depose. This witness has denied that many cases of murder, robbery and scuffle have been filed against the person named Dipak @ Lavarish Punabhai and she had a personal acquaintance with him. She has stated that she knew Karanbhai Rabari. This witness has denied that though she knew him, she falsely stated of not knowing him. She did not know the person named Hamirbhai Sidibhai Aahir and she also did not know his son Munna. This witness has denied that as Dipak Khant, Karanbhai Rabari and Munno Hamirbhai used to come at her house before the incident and as the deceased was living with her, quarrels were frequently taking place with neighbors because of that reason. This witness has denied that for the purpose of saving true persons in the incident, she was giving a false deposition against the accused persons.
11. After hearing the learned counsel for the parties and after going through the aforesaid evidence on record, we find that the incident occurred at 8 O'clock in the evening in a market place. It appears from the deposition of Govindbhai Dahyabhai Parmar, in whose presence panchnama of the place of the incident was drawn, that there was a spot of coagulated blood of one to two feet at the place of the incident. The samples of blood were taken from there with the help of pellet of cotton. The deposition of this panch witness receives corroboration by the panchnama exh.33. Although in the Page 42 of 46 R/CR.A/17/2007 CAV JUDGMENT cross-examination by the learned advocate for the defence, the veracity of the statement of the said panchnama was challenged, yet, nothing came out from his cross-examination to discard his version. Thus, factum of homicide has been established from the materials on record.
12. It further appears that the deceased and the accused persons were known to each other and from the evidence on record, we find that they were dealing with illegal liquor. The prosecution has brought three eyewitnesses of the incident; first, Sunibhai Rajabhai, the complainant, being PW 14; secondly, Lilaben Nanjibhai, being PW 15, and, lastly, Rekhaben Kalubhai, the daughter of Lilaben Nanjibhai, being PW 20.
13. The complainant, as pointed out earlier, has clearly stated that in his presence, the accused No.2, namely, Jiva Kasam caught hold of the deceased from behind by clasping and the accused Nos. 1 and 3 had caused several blows of knife to the deceased at the part of the chest after taking out those from nefo [passage for waist string in trousers]. At the time of the incident, the deceased was talking with the complainant, he being the cousin of the deceased. The other two eyewitnesses at that point of time were purchasing vegetables within 15 to 20 feet of the place of occurrence and once the complainant started shouting for help when the accused persons were giving blows of knife on the deceased, both of them had arrived Page 43 of 46 R/CR.A/17/2007 CAV JUDGMENT at the place. Lilaben, PW 15 ,was known to the deceased and in fact, the deceased used to stay in the house of PW 15. Similarly, PW. 20 Rekhaben also used to stay in the same house and she used to call the victim as uncle. The accused persons being the resident of the same locality were also known to all of them.
14. It was strenuously contended on behalf of the appellants that all the above three persons-eyewitnesses being either relations or friends of the victim, we should not believe their version. We are afraid, we are not impressed by such submission. It is true that in a case where eyewitnesses are relations or friends of the deceased, their evidence should be scrutinized cautiously, but simply because they are friends or relations, such fact cannot be a ground for disbelieving their version outright. Even the relations or the friends will always try to punish the real culprit and not a third party who has nothing to do with the crime unless it is established that there is any enmity between those eyewitnesses and the accused. In the case before us, we have not found that in the past, there was any enmity between the accused persons and those three eyewitnesses.
15. We have also gone through the details of the evidence given and we do not find any justification of disbelieving their version of the incident when the same is also corroborated by the medical evidence produced before the trial court. Even the doctor has certified that the nature of injury caused upon the victim can be Page 44 of 46 R/CR.A/17/2007 CAV JUDGMENT made through the recovered muddamals. All the eyewitnesses are, in our opinion, wholly reliable witnesses.
16. In the statements of the accused persons under section 313 of the Code of Criminal Procedure, the version of the accused persons is the same. According to them, the complainant is engaged in the business of selling liquor illegally in collusion with the police and during that illegal business of liquor, the deceased had disputes and animosity with many persons and before this incident also, police cases had been lodged against the complainant and the deceased and that false case had been lodged against them in collusion with the police.
17. Even if we assume the version of the accused persons that in the past, the deceased, the complainant and the other eyewitnesses were involved in prohibition cases, there was no justification of involving the accused persons in this murder. It is not even the case of the accused persons that the complainant or the witnesses have murdered the victim.
18. On consideration of the entire materials on record, we thus, find that it is a case where participation of the three accused persons has been clearly established through three eyewitnesses and there is virtually no contradiction of evidence of these three eyewitnesses.
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19. From the FSL report, it has been found that the victim had "B" group blood and the bloodstains found on the knives and the blood of the deceased had been found to be the same. We, thus, find no reason to even discard the FSL report. The case being one of clear case of stabbing by knife, there is no scope of making any submission for treating the incident as one of accidental one.
20. We, thus, uphold the detailed finding given by the learned Sessions Judge and hold that the prosecution has been able to prove the case of murder beyond reasonable doubt and that the accused persons were the guilty persons.
21. The appeal is, thus, dismissed and the judgment and order of conviction and sentence passed by the learned Sessions Judge is hereby confirmed.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 46 of 46