R/CR.

A/1116/2006 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL NO. 1116 of 2006

With
CRIMINAL APPEAL NO. 1717 of 2006

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE KS JHAVERI

and
HONOURABLE MR.JUSTICE G.R.UDHWANI

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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the

judgment ?

4 Whether this case involves a substantial question of law as

to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

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SALIM @ BHODI ABDULBHAI HALA (SANDHI)....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR S M VATSA, ADVOCATE for the Appellant(s) No. 1
MR. MAULIK G. NANAVATY, LEARNED APP for the Opponent/Respondent(s)
No. 1
===========================================================
CORAM: HONOURABLE MR.JUSTICE K S JHAVERI
and

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HONOURABLE MR.JUSTICE G.R.UDHWANI

Date : 25/04/2013
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE G.R.UDHWANI)

1. Since these appeals arise out of common

judgement, they are being disposed of by this common

judgement

2. The appellants-original accused having been

sentenced to life imprisonment upon being found guilty

for the offence punishable u/s. 302 of the Indian

Penal Code (for short “IPC”) by learned Additional

Sessions Judge, Court NO.16, Ahmedabad City, by its

judgment and order dated 27th February, 2006, in

Sessions case No. 44 of 2004, has invoked Section 374

of the Criminal Procedure Code, 1973.

3. The prosecution through two eye witnesses

being P.W.3 and P.W.8 came out with a case that on

26th April 2003 at about 00:45 hours at Dudheswar Road

near the gate of ‘Rustam Mill’ the deceased-

Puroshottamsinh, the brother of P.W.3, was riding on a

Luna and proceeding towards his residence and at that

point of time both the accused armed with

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knife(Gupti) knocked down the deceased and then

indiscriminately assaulted him, causing as many as

eighteen injuries on his person. Some of them were

proved to be fatal resulting into the death of

Puroshottamsinh within 20 minutes after the admission

in the Civil hospital. The motive behind the offence

was stated to be an objection by the deceased to

prevent the accused-appellants from carrying liquor

business in Labhshankar Chali, where both the

accused as well as the deceased, who was a social

worker associated with a political party, were

residing.

4. A complaint came to be lodged produced at

Exh.29, mentioning the above facts leading to the

offence in question. The prosecution case rested upon

two eye-witnesses being P.W.3 and P.W.8. P.W.3 was the

brother of the deceased and P.W.8, is the friend of

P.W.3. According to their version, on 27th April, 2003

at about 00:45 hours both of them had come out from

their respective houses after dinner to consume ‘Pan’

at a shop and while returning, they saw deceased

coming on Luna; being knocked down and assaulted

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indiscriminately and causation of severe injuries on

his person and fleeing of the accused from the scene.

It is deposed by both the witnesses that the accused

and the witnesses were residing in the same Chawl and

they were known to them. In the complaint it was

stated that the accused used to go and reside at

Juhapura frequently. On trial, the learned Additional

Sessions Judge found the accused guilty and sentenced

them as stated above.

5. The learned counsel for the appellants would submit that

because in the cross-examination P.W.3 and P.W.8 were unable to

meticulously explain the distance between the scene of the offence and the

spot where they were standing when Luna was knocked down allegedly by

accused; their failure to explain the substantial distance between the spots

wherefrom articles like sleepers, Luna etc. were found and the spot where

the deceased was first assaulted or knocked down, the prosecution has filed

to establish the case beyond reasonable doubt. The learned counsel would

further submit that in contrast the deposition of the two witnesses claiming to

have helped the deceased to the hospital, the medical record refers to three

or four persons accompanying the deceased and in his submission, in view of

this material contradiction, benefit of doubt must be given to the appellant.

Learned counsel would further submit that absence of mention of names of

the assailants despite the knowledge with the witnesses in the medical case

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papers or in the statements made before the police indicated that the accused

were not the real culprits. The learned counsel would therefore submit that the

accused would be given the benefit of doubt. He would also submit that

omission of the sequence of the events by these two witnesses; admission by

P.W.3 for his being ignorant about names of the assailants before the

lodgment of FIR at 00:45 hours; mis-matched of the description of the scene

of offence given by P.W.3 with the contents of Panchanama of the site plan;

lack of evidence as to the exact distance at which the offence was witnessed

by the witnesses, are the facts and circumstances fatal to the case of the

prosecution discrediting the testimony of P.W.3 and P.W.8.

6. We are not convinced with this submission for the simple reason

that both these witnesses have successfully established the presence of

assailants, the accused, occurrence, the weapon of offence used. A close

look at the testimony of two witnesses would clearly indicate that they have

given consistent account of the incident. It was argued that P.W. 3 and P.W.8

contradicted themselves when P.W.1 claimed non-availablity of the vehicles

on the road at the time of the incident in contrast to the claim of P.W.8 about

availability of the vehicles. Be it noted that both the witnesses have

consistently stated that initially they looked for Auto-rikshaw and since they

did not find, P.W.3 fetched his scooter from his residence and they lifted and

placed the injured between them on the scooter, went and admitted the

injured in the hospital. They could cover the distance about 3-4 Kms. between

the scene of the offence and the hospital within a period of about 20 minutes.

Thus, initially they looked for auto-rikshaw as it would have been comfortable

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for them to travel in auto-rikshaw particularly when one of them was injured.

Having found no other option, they used the scooter. P.w.3 in the cross-

examination testifies that on being asked by doctor he stated that deceased

was his brother and he was assaulted by ‘Gupti’. It is true that in medical case

papers and other documents the precise history and the name of the persons

who helped the deceased to the hospital are lacking and the very statement

that the deceased was brought by three or four persons have been

mentioned. However, since the oral testimony of P.W.3 and P.W.8 on this

count could not be successfully impeached, it cannot be said that the

deceased was not helped to the hospital by the said witnesses. It is also

required to be appreciated that one of the witnesses was brother of the

injured and his first priority would be to get the best available treatment to his

brother to save his life as also to inform his other relatives about the said

incident and to secure medicines as may be prescribed by Doctor etc. The

deceased was hardly lived for twenty minutes in the hospital and it can be

reasonably stated that the witnesses might have invested the time in the

above priorities. Under such situation, it was not expected of them to give

entire account of the story to the Doctor at that time.

7. Interestingly, the doctor deposed that the

deceased having been brought to the hospital by his

relatives and P.W.3-his brother. It will not be out of

place to mention here that the scene of the incident

and the house of P.W.3 appears to be in immediate

vicinity of each other and therefore they are all

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probably of relatives of P.W.3 and the deceased to

have immediately learnt about the incident and rushed

to the hospital. Further, neither the witnesses nor

the doctor were expected to note down the meticulous

facts, names and addresses of the persons who brought

the injured to the hospital. Thus there is no reason

to disbelieve that P.W.3 and P.W.8 went to help the

deceased to the hospital.

8. It is pertinent to note that within four

hours of the occurrence and within 1½ hours of the

death of the injured in the hospital, the complaint of

P.W.3 was recorded in the hospital itself. In the

complaint itself he disclosed all the material facts

including the names of the assailants and the weapon

used by them. There is nothing on record to infer

concoction of the story within such a short span by

P.W.3. Therefore, the argument of the learned counsel

for the appellant that weapon particularly ‘Gupti’ was

subsequently planted and whole story was cooked up

appears to be meritless.

9. The fact that the accused were resident of

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the same Chawl was repeatedly stated by P.W.3 and

P.W.8 in their testimonies. They refuted the

suggestions that the accused were not residing there.

The Complaint itself mentioned the fact that the

accused frequently used to go and reside at Juhapura.

The trial was conducted in presence of the accused-

appellants. This fact coming into deposition of P.W.3

and P.W.8 were known to them and yet they did not deem

it fit to refute them by producing relevant

documentary evidence as to their permanent residence

at Juhapura or elsewhere, in their statement under

section 313 of the Cr.P.C. Moreover, despite the

specific case of P.W.3 and P.W.8 that they used to

reside at Labhshankar Chawl, no explanation showing

that they never resided or had no place of abode in

that Chawl came to be offered by the appellants. It

was not the prosecution case that the residence of the

appellants was only at said Chawl inasmuch as in the

FIR itself it was made clear that the appellants used

to go and reside at Juhapura as well. In view of these

set of circumstances, it was insufficient for them to

just say that they were resident of Juhapura. Even a

single whisper was not made by them in their

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statements under section 313 of the Cr.P.C. that they

did not reside at the Chawl at the time of the

offence.

10. It was sought to be proved through defence

witnesses No.1 and 2 that in fact the electricity

supply at the scene of offence not evaluate since

about twenty days prior to the offence. The attempt

was unsuccessful inasmuch as the documentary evidence

brought on record through said witnesses clearly

established that applications regarding complaining of

non-availability of electricity in the electrical pole

came to be made subsequent to the date of the

occurrence; the first one being on 3rd May 2003 and

offence having been reported on 26th April, 2003.

Further the attempt to improve the circumstances in

their favour by appellants through the aforesaid

witnesses cannot be ruled out for the simple reason

that D.W.2 Husain Rana was admittedly not a local

resident but his residence was at a walking distance

of about twenty minutes. Therefore he had no genuine

reason to complain the doctor, D.W.1, who has deposed

about the absence of electricity supply in the

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aforesaid pole signed the application at the instance

of D.W.2 and thus in the light of the above discussion

testimony of D.W.1 and D.W.2 does not inspire

confidence to this Court.

11. The learned counsel for the appellants

relied upon the fact about non-visibility at the scene

of the offence as deposed by P.W.6 the Panch witness,

who was unable to see the colour and registration

number of Luna, when he was called upon to help the

police in drawing the site of offence Panchanama. From

his testimony it is also evident that the electricity

supply was available at a distance of about 20-25 feet

from the scene of offence. Be it noted that the

appellant were known personalities to the P.W.3 and

P.W.8 and a light at a distance of about 20-25 feet

would certainly enable them to make out appearance of

the known persons and therefore there is no substance

in the argument that P.W.3 and P.W.8 could not have

seen the assailants from a distance of about 20-25

feet. Further, on seeing the deceased knocked down,

both the witnesses rushed towards him while the

appellants were assaulting him and thus it is possible

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that when they rushed nearer to the deceased, they

were able to identify the appellants as assailants.

12. The learned counsel for the appellants

relied upon the variation in the testimony of P.W.3

and P.W.8, when they mentioned about the deceased

having declared before them that the appellants were

his assailants inasmuch as according to P.W.3 the

scooter was on the move when such statement was

allegedly made by the deceased and according to P.W.8

immediately when the deceased was lifted on the

scooter he made such a statement. This variation would

hardly matter inasmuch as the witnesses cannot be

excepted to be meticulous minute by minute. Further,

their statements on the above count can be said to be

consistent with each other inasmuch as both of them

are consistent in saying that such statement was made

by deceased while he was on scooter. It is pertinent

to note that the doctor in his testimony at Exh.22

corroborates the fact that the injured was not dead

when brought to the hospital inasmuch as he has

deposed that he was in unconscious state at the

relevant point. Thus, possibility of the deceased

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having made a dying declaration before the witnesses

immediately after he was assaulted and before he lost

his consciousness even as he started loosing blood

from his body on account of severe injuries cannot be

ruled out. However, assuming that no such statement

was made and considering that the dying declaration

was merely a corroborative piece of evidence as

discussed above there is ample material in the nature

of the oral testimony of P.W.3 and P.W.8 implicating

the appellants as the assailants of the deceased.

13. The learned counsel for the appellant while

inviting the attention of this Court to the admission

made by P.W.3 that before the complaint was lodged,

the names of the assailants were not known to the

P.W.3. This argument is also meritless for the simple

reason that one single statement cannot be picked up

from his testimony but the testimony has to be read as

a whole. When substantially the witnesses on oath make

a statement implicating the appellants as assailants

of the deceased, the possibility of a typing error in

mentioning the above fact by P.W.3 cannot be ruled

out. Considering his testimony as a whole, the only

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inference could be that of his implicating the

appellants as assailants.

14. In view of the above discussion, we are in

broad agreement with the findings record by the Court

below. Therefore, the present appeals are dismissed as

the same are meritless.

(K.S.JHAVERI, J.)

(G.R.UDHWANI, J.)

pawan

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