Gujarat High Court
Mahendra vs The on 14 May, 2010
Author: A.L.Dave
Bench: A.L.Dave
Gujarat High Court Case Information System
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CR.A/1397/2006 1/ 26 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1397 of 2006
With
CRIMINAL
APPEAL No. 1455 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
===================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
===================================
MAHENDRA
@ BHUPAT MANUBHAI CHAVDA & 4 - Appellant(s)
Versus
THE
STATE OF GUJARAT - Opponent(s)
===================================
Appearance
:
Criminal
Appeal No. 1397 of 2006
MR KB
ANANDJIWALA with MS NK ANANDJIWALA for
Appellant(s) : for Appellant(s) : 1 2.Appellant(s) : 3 5
deleted.
MR VIJAY H. PAEL SPECIAL PUBLIC PROSECUTOR for Respondent
State.
Criminal
Appeal No. 1455 of 2006 :
Mr.
Y.S. Lakhani, Sr. Advocate with Mr. Harnish V. Darji,for appellants.
MR
VIJAY H PATEL Special Public prosecutor for Respondent State.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 14/05/2010
C.A.V.
JUDGMENT
(Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. The appellants convicts have filed both these appeals under Section 374 of the Code of Criminal Procedure, 1973 challenging the judgment and order of conviction and sentence rendered by learned Presiding Officer and Addl. Sessions Judge, 9th Fast Track Court, Rajkot in Sessions Case No. 8 of 2004 on 7-6-2006 convicting them for the offences punishable u/ss 143, 148, 302, 307 and 323 of the Indian Penal Code and sentencing them to undergo various sentences.
2. According to the prosecution case, one Virendrasinh Jhala, the brother of deceased Hemendrasinh @ Harry was running Shiv World Vision and the deceased was managing the same; that cable connection from control room of Shiv World Vision was given to sub-cable operator accused Hemantsinh @ Tino Manubhai Chavda (A-4)) and Mahendra @ Bhupatbhai Manubhai Chavda (A-1); that notices dated 8-10-2003 and 9-10-2003 were issued by Mamlatdar to these sub-cable operators as they did not pay entertainment tax, therefore, there was telephonic talk between deceased Hemendrasinh @ Harry and accused Mahendra @ Bhupatbhai Chavda (A-1) with regard to disconnect his cable connection; that on 9-10-2003 at about 7-00 Kirtisinh @ Rinku, son of accused Hemantsinh @ Tino Manubhai Chavda (A-4) went to the office of Shiv World Vision to discuss about cable disconnection and at about 8-30 p.m. accused Shaileshbhai Manubhai Chavda (A-2) went to the office of Shiv World Vision and had heated exchange of words in respect of cable disconnection; that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) made a telephone call and invited deceased Hemendrasinh @ Harry to come to Udhyognagar Colony for discussion; that when deceased Hemendrasinh @ Harry with other persons was passing near a 'pan' shop at Employees' Insurance Centre at Udhyognagar Colony on motor-cycle at about 23-15 hours on 9-10-2003, accused armed with deadly weapons like sword, 'dhariya' and wooden log formed unlawful assembly and in furtherance of their common object to commit murder of Hemendrasinh @ Harry and others made assault on them; that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) caused serious injuries by sword on the head of Hemendrasinh @ Harry and accused Pratap Manubhai Chavda (A-3) and accused Ajit Tavde (A-5) inflicted blows by wooden log on the head of the deceased; that accused Hemantsinh @ Tino Manubhai Chavda (A-4) and his son juvenile accused Kirtisinh @ Rinku Chavda had 'dhariya and both of them tried to catch hold of the deceased; that accused Hemantsinh @ Tino Manubhai Chavda (A-4) had sword. On account of injuries, Hemendrasinh @ Harry died.
3. It was further prosecution case that accused Mahendra @ Bhupatbhai (A-1) caused serious injuries on the head of complainant Chandubha @ Chandrasinh with sword, accused Shaileshbhai Manubhai Chavda (A-2) by sword caused injuries on his back and accused Mahendra @ Bhupatbhai Chavda (A-1) inflicted sword blows on the head of Mukeshsinh Jhala; and accused Pratap Manubhai Chavda (A-3) and accused Ajit Tavde (A-5) beat him with wooden log and caused injury on his leg; that accused Ajit Tavde (A-5) caused injury with wooden log on the shoulder of Shaktisinh Parmar and on the leg of Jayesh Udeshi and beat Meghrajsinh Jhala in furtherance of the common object of the unlawful assembly to commit murder of Hemendrasinh @ Harry.
4. It was also prosecution case that in furtherance of common object of the unlawful assembly that accused Pratap Manubhai Chavda (A-3) and accused Ajit Tavde (A-5) caused injuries to Chandubha @ Chandrasinh on leg by wooden log.
5. It was further prosecution case the accused committed breach of notification issued by Police Commissioner by possessing deadly weapons in public place in contravention of notification.
6. On the basis of first information report lodged by Chandubha @ Chandrasinh Khodubha Jadeja against accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1), Shaileshbhai Chavda,(A-2), Tino Chavda (A-4), one person known as 'kaka' and two unidentified persons offence was registered by Pradumannagar Police Station, Rajkot as I CR No. 583 of 2003 for the offences punishable u/ss 307, 326, 323, 324, 147, 148, 149 and 188 of the I.P. Code and investigation was started. During the course of treatment, injured Hemendrasinh @ Harry died and therefore Section 302 of the I.P. Code was added in the offence. During investigation, panchanama of scene of offence, panchanama of discovery of weapons and panchanama of recovery of clothes were drawn and dead body of the deceased was sent for postmortem examination. Statement of the witnesses were recorded and muddamal recovered during investigation was sent to Forensic Science Laboratory for analysis and the accused were arrested. At the end of investigation, charge sheet came to be filed against the accused for the aforesaid offences in the court of J.M.F.C., Rajkot and charge sheet against juvenile accused Kirtisinh @ Rinku was filed before Juvenile Justice Board.
7. As the offence of murder was triable by the court of Sessions, the case was committed to Sessions Court, Rajkot and it was numbered as Sessions Case No. 8 of 2004. Learned Addl. Sessions Judge, 6th Fast Track Court, Rajkot framed charge Exh.12 against the accused. The charge was read over and explained to them. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. At the end of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to them. The accused in their further statement recorded u/s 313 of the Code of Criminal Procedure, 1973 denied having committed the offence and stated that they have filed written explanation. On perusal of the record, it appears that the accused have not filed any written explanation as stated by them but have filed written arguments at Exh.166.
8. After hearing the learned Addl. Public Prosecutor and learned advocate for the accused, the trial court convicted the accused and sentenced them to undergo various sentences. Being aggrieved by the said decision, the accused convicts have preferred these appeals.
9. As both these appeals arise out of the same judgment, they are heard and decided by this common judgment..
10. We have heard learned advocate Mr. K.B. Anandjiwala for the appellants of Criminal Appeal No.1397 of 2006 and learned Sr. Advocate Mr. Y.S. Lakhani for the appellants of Criminal Appeal No. 1455 of 2006 and learned Special Public Prosecutor for the respondent State at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial court.
11. It may be recorded that accused Kirtisinh @ Rinku being minor at the time of the incident, his case has been referred to the Board constituted under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
12. Learned advocate Mr. Anandjiwala for the appellants of Criminal Appeal No. 1397 of 2006 has submitted that according to the prosecution case, motive alleged behind the offence is entertainment notices allegedly issued by the authority and nonpayment of entertainment tax by the sub-cable operators, but there is no evidence that the accused were the sub-cable operators as alleged by the prosecution; that accused Mahendra @ Bhupatbhai Chavda (A-1) is running foundry and accused Shaileshbhai Manubhai Chavda (A-2) was not a sub-cable operator and remaining accused reside at Moti Khavdi, District Jamnagar, and therefore, the prosecution has also failed to establish motive behind the incident. He has also submitted that there is delay in lodging first information report and names of the accused were added step-by-step. He has also submitted that the evidence of P.W. 2 Jayesh Udeshi does not inspire confidence as there is no evidence of his treatment at Madhuram Hospital but was treated two days later at civil hospital and such treatment was taken only with a view to show that he was also injured and witness P.W. 3 Rasikbhai Dineshbhai Padhiyar is also a chance witness as he could not have been present at the time of incident. He has also submitted that there is interpolation in documents produced with Exh. 155 and discovery of weapons is by joint discovery panchnama and panchnamas do not indicate as to whether discoveries were made at the instance of the accused as they do not contain exact words used by accused. He has also submitted that the evidence with regard to demand of entertainment tax was not collected during investigation and was withheld by the prosecution and hence copies of such demands were produced by the accused therefore there was suppression of material evidence. He has submitted that P.W. 1 Chandrasinh did not give names of the assailants to the doctor when the injured were taken to hospital, and therefore, his evidence does not inspire confidence and there are discrepancies in the prosecution to connect accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and Shaileshbhai Manubhai Chavda (A-2) with the offence. Hence, they are required to be given benefit of doubt.
13. Learned Senior advocate Mr. Y.S. Lakhani for the appellants of Criminal Appeal No. 1455 of 2006 has submitted that according to the prosecution case the injured were taken to hospital for treatment. But the history of injuries recorded in the medical case papers do not indicate the names of accused Pratap Manubhai Chavda (A-3), accused Hemantsinh @ Tino Manubhai Chavda (A-4) and Ajit Tavde (A-5) and their names were subsequently added. He has also submitted that accused Pratap Manubhai Chavda (A-3) and accused Ajit Tavde (A-5) have allegedly used wooden log. But the hospital admission forms do not indicate history of use of wooden log in inflicting injuries and the words unknown persons appears to have been added in medical case papers Exh. 84 to Exh. 88 subsequently and these papers were got produced at the instance of the accused. Therefore, the prosecution has suppressed material evidence. He also submitted that after admission of the injured in the hospital, first information report was recorded but though the injured witnesses were present, their statements were not recorded but came to be recorded only on the next day. He has submitted that blood stains of the deceased were found on the clothes of the accused. But though the injured took the deceased to the hospital, their cloths did not contain blood stains of the deceased and no identification parade was arranged and there is no investigation with regard to the person who was being addressed by accused Hemantsinh @ Tino Manubhai Chavda (A-4) as kaka . Therefore, involvement of accused Pratap Manubhai (A-3) and accused Hemantsinh @ Tino Manubhai Chavda (A-4) and accused Ajit Tavde (A-5) has not been proved beyond reasonable doubt and hence their conviction is required to be set aside.
14. Learned Special Public Prosecutor Mr. Vijay Patel for the respondent State has submitted that as the first information report and the witnesses give names of the accused, T.I. Parade was not required to be arranged as the accused were identified. He has submitted that there was no unexplained delay in lodging first information report as injured Hemendrasinh @ Harry was taken to other hospital for examination . He has submitted that P.W. 3 Rasikbhai Dineshbhai Parmar is not a chance witness and his presence at the time of incident was natural and the evidence clearly indicates involvement of the accused in the incident and therefore the learned trial Judge was justified in convicting the accused and no interference is warranted in the impugned judgment. He has relied upon the decision of State (N.C.T. Of Delhi) V/s. Navjot Sandhu, reported in AIR 2005 SC 3820.
15. According to prosecution case, prior to the incident accused Shaileshbhai Manubhai Chavda (A-2) went to the office of Shiv World Vision and had heated exchange of words with regard to disconnection of cable connection and thereafter accused Mahendra @ Bhupatabhai Manubhai Chavda (A-1) invited Hemendrasinh @ Harry for discussion. Pursuant to the invitation Hemendrasinh @ Harry with other persons went and the accused made assault on them. It appears that the incident occurred at 11-15 p.m. and after the incident the injured took treatment at Madhuram hospital. P.W. 1 Chandubha @ Chandrasinh Khodubha Jadeja Exh. 38 in his deposition has stated that on the night of incident at about 11-00 O'clock when deceased Hemendrasinh @ Harry, Mukeshbhai Jhala, Jayeshbhai Udeshi and Shaktisinh Parmar had met for discussion about cable connection, deceased Hemendrasinh @ Harry informed them to go to Udhyognagar for talk with regard to change of cable wires as he had received a phone from accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1), and accused Shaileshbhai Manubhai Chavda (A-2) and therefore they went to Udhyognagar Colony. He has also deposed that when deceased Hemendrasinh @ Harry talked to Mahendra @ Bhupatbhai Chavda (A-1), accused Shaileshbhai Manubhai Chavda (A-2), accused Hemantsinh @ Tino Manubhai Chavda (A-4) , Rinku Chavda (Juvenile accused)and two unknown persons aged about 25 years were present. He has also stated that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) had sword, accused Hemantsinh @ Tino Manubhai Chavda (A-4) had 'dhariya' and two unknown persons had wooden log. The witness has also stated that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) gave sword blows on the head of deceased Hemendrasinh @ Harry and the accused holding wooden log gave blows on the head of the deceased. He has also stated that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) hit him sword blows and the accused holding wooden log gave blows on his back. He has also deposed that he with Mukeshbhai Jhala went to Madhuram hospital on motor-cycle and witness Jayeshbhai and witness Shaktisinh Parmar took Hemendrasinh @ Harry to hospital. The witness has lodged the first information report Exh. 143. The witness has been extensively cross-examined. In the cross-examination the witness has deposed about the presence of Shaktisinh, Mukesh and Jayesh. He has also stated in the cross-examination that the first information report was recorded in Madhuram Hospital and no T.I. Parade was arranged during investigation.
16. The First Information Report Exh. 143 alleges that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1), accused Shaileshbhai Manubhai Chavda (A-2) and accused Hemantsinh @ Tino Manubhai Chavda (A-4), the person whom accused Tino was addressing as kaka kaka and two unknown persons made assault on them. It also alleges that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) gave two sword blows on the head of the deceased and accused Hemantsinh @ Tino Manubhai Chavda (A-4) and person 'kaka' tried to catch hold of and beat the deceased. It is further alleged that unknown persons holding wooden log gave blows on the head of the deceased.
17. The evidence indicates that immediately after the incident injured went to Madhuram Hospital for treatment.
18. The evidence of P.W. 4 Dr. Hemangbhai Harishchandra Vasavda Exh. 77, the doctor at Madhuram Hospital indicates that injured Hemendrasinh @ Harry , Chandrasinh, Meghrajsinh, Mahendrasinh and Shaktisinh came to hospital at about 11-45 p.m. on 9-10-2003 and they were treated by him. According to the witness, he issued Injury Certificates Exh.78 to Exh. 82. The cross-examination of this witness indicates that immediately after admission of the injured police was informed. The accused got produced the hospital admission forms of the injured filled in at the time of their hospitalisation at Exh. 84 to 88. They indicate that the injured were brought to the hospital by one Shaktisinh Parmar and he gave history of injuries which was recorded in the hospital admission forms. The forms record history of assault by accused Mahendra @ Bhupat Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) with sword and unknown persons with 'dhariya'. The forms appear to have filled in between 00-05 am and 0-50 hours on 10-10-2003.
19. According to P.W. 4 Dr. Hemangbhai, police was informed about the incident by the hospital. It appears that the information so received was registered as occurrence report No.427/03. This report was got produced by the accused in the cross-examination of P.W. 13 Nirmalsinh Jadeja Exh. 142 and the entry was marked as Exh. 143. It is recorded at 2-15 a.m. on 10-10-2003. It is recorded therein that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1), accused Shaileshbhai Manubhai Chavda (A-2) and unknown persons made assault with sword and 'dhariya'.
20. In view of above evidence, it emerges that till 2-15 a.m. on 10-10-2003 names of accused Mahendra @ Bhupatbhai Chavda (A-2) and accused Shailesbhai Manubhai Chavda (A-2) with unknown persons with sword and 'dhariya' were revealed. It was only at the time of lodging of first information report at 3-15 a.m. that the names of accused Hemantsinh @ Tino Manubhai Chavda (A-4), a person whom he addressed as 'kaka' and two unknown persons came on record. Thereby, names of accused Mahendra @ Bhupatbhai Chavda (A-1) and accused Shailesbhai Manubhai Chavda (A-2) with sword have remained unchanged.
21. P.W. 4 Dr. Hemangbhai Exh. 77 has, in detail, described the injuries sustained by the injured and issued injury certificate. The injury Certificate Exh. 78 also indicates that there were about eight injuries to Hemendrasinh @ Harry and out of that two injuries were on head. According to him, the head injuries were possible by sword and other injuries were possible by wooden log.
22. The evidence of P.W. 2 Jayesh Udeshi Exh. 63 indicates that the accused made assault on them and he was also injured. According to the witness, accused Ajit Tavde (A-5) beat him on left leg with wooden log and he took treatment at Madhuram Hospital, but there is no evidence of his treatment at Madhuram Hospital. Even P.W. 4 Dr. Hemangbhai has admitted that the witness was not treated in his hospital. Therefore, in order to prove his injuries, the prosecution examined P.W. 2 Dr. Mukeshbhai Upadhyay Exh. 134. The injured was examined by him on 11-10-2003 with police 'yadi' with complaints of pain. The injury Certificate Exh. 126 indicates that history of injury by wooden log was given by the witness. In view of the fact that initially there was no accusation of use of wooden log in the incident and as the witness was treated for alleged injuries two days after the incident and the injury is in the nature of complaint of pain, it is difficult to believe that he sustained injury in the incident. But lengthy cross-examination indicates that the witness went to Prabhat Hospital with Hemendrasinh @ Harry when he was taken there for some treatment. It also indicates that he remained in the hospital for about 8 to 9 hours and his statement was recorded next morning in the hospital. The evidence of this witness clearly indicates that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) made assault on the deceased.
23. The evidence of P.W. 3 Rasikbhai Exh. 71 also indicates that while he was going home from his uncle's house the incident occurred. The witness attributed head injuries to Hemendrasinh @ Harry by accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) by sword. The lengthy cross-examination of the witness has not been able to dislodge his evidence. It appears that the witness went to his uncle's house to give keys of the shop. It also appears that the uncle was residing in the same area. Therefore presence of the witness is not unusual. Even learned advocate has tried to raise suspicion in his evidence by cross-examining him with regard to recording his statement by police during the investigation. In our view, on overall appreciation of evidence of this witness, it is difficult to believe that he was a chance witness.
24. P.W. 11 Dr. Chandrakant M. Mehta Exh. 122 has performed postmortem of dead body of deceased Hemendrasinh @ Harry . According to the doctor, there were about ten external injuries on dead body and the injuries were ante-mortem. According to him, injuries No. 2,3, 4 and 5 were possible by sharp edged weapon like sword and the cause of death was brains stem oedema due to head injuries. Postmortem Report Exh.123 indicates the injuries and the cause of death. This evidence clearly indicates that Hemendrasinh @ Harry died on account of injuries on head by sword. As observed earlier, the witnesses have in their oral evidence stated that the accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda were holding swords and they had inflicted the injuries on the head of the deceased. Therefore, the prosecution has successfully established the nexus between the death of Hemendrasinh @ Harry and accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda.
25. It is also submitted that the prosecution has failed to prove motive as evidence with regard to demand of entertainment tax was not produced in the trial court. It is settled proposition that failure of the prosecution to establish motive for the offence does not mean that the entire prosecution case has to be thrown over-board. It casts a duty on the court to scrutinise other evidence, particularly, of the eye witness with greater care. When the court is satisfied about involvement of the accused in the offence, the court need not consider the question of motive. It is also settled proposition that where direct evidence regarding assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes motive is clear and can be proved; sometimes, it would be difficult to locate the same. But when the evidence is credit-worthy, the question whether there is any motive or not become irrelevant. It is also settled proposition that in the cases of circumstantial evidence, the motive bears important significance. In the case of direct evidence, the court can rely upon such evidence and convict the accused. In the instant case, the eye witnesses' account clearly establish involvement of accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) in the commission of offence, and therefore, submission that both these accused were not the sub-operator and had no motive to assault, cannot be accept. On perusal of evidence, we are satisfied that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) were assailants of the victim. Hence, this submission cannot be accepted.
26. In view of above evidence, it clearly emerges that immediately after incident the injured were admitted to Madhuram Hospital for treatment and Shaktisinh Parmar who was one of the injured witnesses gave history of injuries implicating accused Mahendra @ Bhupatbhai Chavda (A-1) and Shaileshbhai Manubhai Chavda (A-2) with other unknown persons responsible for injuries. The evidence also indicates that the named assailants were armed with sword and 'dhariya'. There is no mention of any assailant making assault with wooden log. It is also pertinent that till the occurrence report was recorded there was no mention of number of accused Hemantsinh @ Tino Manubhai Chavda (A-4), a person known as 'kaka' and two unknown persons were informed for the first time in the first information report Exh. 143 recorded at 3-15 hours in the hospital. It also introduced for the first time that accused Hemantsinh @ Tino Manubhai Chavda (A-4) had sword, 'kaka' had 'dhariya and unknown persons had wooden long.
27. In view of above, it clearly emerges that immediately after the incident, names of accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) with their weapons were disclosed but names of other accused were introduced only at the time of lodging the first information report. P.W.1 Chandubha @ Chandrasinh has also in his deposition stated that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) had swords and they inflicted sword blows on the head of deceased Hemendrasinh @ Harry.
28. As regards involvement of accused Pratap Manubhai Chavda (A-3), accused Hemantsinh @ Tino Manubhai Chavda (A-4) and accused Ajit Tavde (A-5), as observed earlier, their names were not disclosed in the hospital admission forms when the injured were admitted in the hospital for treatment. The occurrence report Exh. 145 also does not indicate their involvement in the incident. It was for the first time in the first information report Exh. 143 that they were named having involved in the incident. It also appears from the first information report that accused Hemantsinh @ Tino Manubhai Chavda (A-4) was implicated by his name with one person whom he addressed as 'kaka' and two unknown persons but identity of 'kaka' and two unknown persons is not ascertained during the course of investigation. It is also very pertinent that number of unknown persons were also not disclosed at earlier point of time but only in first information report it was alleged that there were two unknown persons. It is also not in dispute that no T.I. parade was arranged to identify unknown persons. The witnesses have identified these accused for the first time only in the court. It is settled proposition that identification in the court only would not be sufficient to fasten criminal liability on an accused. In our view, the complainant has tried to rope in as many as accused and therefore possibility of false implication of accused Pratap Manubhai Chavda (A-3), accused Hemant @ Tino Manubhai Chavda (A-4) and accused Ajit Tavde (A-5) in the incident cannot be ruled out.
29. On overall reappreciation of the evidence, it clearly emerges that the prosecution has failed to prove beyond reasonable doubt that the accused formed unlawful assembly of five or more persons and its common object was to use criminal force and the accused who were the members of such unlawful assembly used criminal force or violence in furtherance of the common object, and therefore, the learned trial Judge committed error in convicting accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) for the offence punishable u/ss 143, 148 and 149 of the I.P. Code. As far as conviction for the punishable u/s 307-323 of the I.P. Code is concerned, there is no material evidence to connect accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2), and therefore, conviction of accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) for such offence is required to be set aside.
30. It is also submitted that the prosecution has suppressed material evidence with regard to demand of entertainment tax and hospital admission forms. In our considered view, the eye witnesses' account clearly indicates involvement of accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda A-2) in the incident. The accused produced certain documents with Exh. 155 but contents of these documents are not proved. According to the learned advocate for the appellants, these documents were relating to entertainment Tax and were material documents to prove motive. In our view, as observed earlier eye witnesses' evidence is sufficient to bring home the charge and hence such evidence cannot be considered as material evidence. Similarly, hospital admission forms indicate treatment of the injured in the hospital. Even this evidence also cannot be said to be material evidence. Therefore, submission in this regard cannot be accepted.
31. It is also submitted that the prosecution has failed to prove motive as evidence with regard to demand of entertainment tax was not produced in the trial court. It is settled proposition that failure of the prosecution to establish motive for the offence does not mean that the entire prosecution case has to be thrown over-board. It casts a duty on the court to scrutinise other evidence, particularly, of the eye witness with greater care. When the court is satisfied about involvement of the accused in the offence, the court need not consider the question of motive. It is also settled proposition that where direct evidence regarding assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes motive is clear and can be proved; sometimes, it would be difficult to locate the same. But when the evidence is credit-worthy, the question whether there is any motive or not become irrelevant. It is also settled proposition that in the cases of circumstantial evidence, the motive bears important significance. In the case of direct evidence, the court can rely upon such evidence and convict the accused. In the instant case, the eye witnesses' account clearly establish involvement of accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) in the commission of offence, and therefore, submission that both these accused were not the sub-operator and had no motive to assault, cannot be accept. On perusal of evidence, we are satisfied that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) were assailants of the victim. Hence, this submission cannot be accepted.
32. As regards discovery panchnamas, it is true that the panchnamas are joint panchnamas and they do not contain statement of weapons. Therefore, such document could not be relied upon for conviction.
33. It is settled the evidence of P.W. 2 Jayesh Udeshi does not inspire confidence and P.W. 3 Rasikbhai is a chance witness also cannot be accepted as their presence at the time of incident appears to be natural.
34. Learned Special Public Prosecutor Mr. Vijay Patel for the respondent State has relied upon the decision of State (N.C.T. Of Delhi) Vs. Navjot Sandhu, reported in AIR 2005 SC SC 3820. In the said decision the Supreme Court has observed as under :
Joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. Such disclosures by two or more persons in police custody do not go out of the purview of S. 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, there is no good reason to eschew such evidence from the regime of S.27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the Police Officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence.
In the instant case, the discovery panchnamas do not indicate that the accused uttered informatory words which lead to discovery of the weapons. Therefore, this decision cannot be made applicable to the facts of the present case.
35. In view of above, the evidence clearly indicates that accused Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and accused Shaileshbhai Manubhai Chavda (A-2) armed with sword made assault on deceased Hemendrasinh @ Harry and inflicted head injuries which resulted into his death. As observed earlier, there is no evidence to indicate that these accused were members of unlawful assembly and in furtherance of the common object the assault was made. Therefore, conviction of these accused for the offence punishable u/s 302 r/w/s 143 and 148 of the I.P. Code is required to be set aside and they are required to be convicted for the offence punishable u/s 302 of the I.P. Code individually.
36. As regards accused Pratap Manubhai Chavda (A-3), accused Hemendrasinh @ Tino Manubhai Chavda (A-4) and Ajit Tavde (A-5), their identity in the evidence has not been established beyond reasonable doubt. Therefore, their conviction is required to be set aside.
37. For the foregoing discussion, Criminal Appeal No. 1397 of 2006 filed by Mahendra @ Bhupatbhai Manubhai Chavda (A-1) and Shaileshbhai Manubhai Chavda (A-2) is partly allowed and their conviction for the offence punishable 143, 148, 149, 307 and 323 of the I.P. Code is set aside, but they are convicted individually for the offence punishable u/s 302 of the I.P. Code and they are sentenced to undergo life imprisonment and to pay fine of Rs.3000/-, in default thereof, to further undergo simple imprisonment for six months.
38. Whereas Criminal Appeal No. 1455 of 2006 filed by Pratap Manubhai Chavda (A-3), accused Hemendrasinh @ Tino Manubhai Chavda (A-4) and Ajit Tavde (A-5) is allowed and their conviction and sentence recorded by the judgment and order dated 7-6-2006 passed by learned Addl. Sessions Judge, Fast Track Court No.9, Rajkot in Sessions Case No.8 of 2004 is set aside and appellants; Pratap Manubhai Chavda (A-3), Hemendrasinh @ Tino Manubhai Chavda (A-4) and Ajit Tavde (A-5) are acquitted of the charges levelled against them and are ordered to set free forthwith, if are not required in any other case. Fine, if paid, shall be refunded to them. Muddamal be disposed of as directed by the trial court.
(A.L. Dave, J.) (Bankim N. Mehta, J.) /JVSatwara/ Top