Rajendrabhai N Chaudhari and 1 Another vs State of Gujarat

Honourable Mr. Justice M.D. Shah

Criminal Appeal No. 905 of 1992 has been filed by the Appellants-original accused Nos. 4 and 6 while Criminal Appeal No. 921 of 1992 has been filed by the Appellant-original accused No. 3 against the judgment and order dated 23-9-1992 passed by the learned Addl. City Sessions Judge, Court No. 3, Ahmedabad, in Sessions Case No. 213 of 1989 whereby all the three accused were sentenced to suffer RI for a period of three years and to pay fine of Rs. 1,000/-, in default, to suffer further RI for six months for the offence punishable u/s 307 of Indian Penal Code; to suffer RI for a period of six months and to pay fine of Rs. 500/-, in default, to suffer further imprisonment for one month for the offence punishable u/s 147 of Indian Penal Code; to suffer RI for a period of six months and to pay fine of Rs. 500/-, in default, to suffer further RI for one month for the offence punishable u/s 148 of Indian Penal Code and to suffer RI for a period of four months for the offence punishable u/s 135 of B.P. Act. All the substantive sentences imposed on the accused were ordered to run concurrently. The accused Nos. 5 and 7 were acquitted of the charges levelled against them. Accused Nos. 1 and 2 died during the pendency of trial and hence, no conviction was recorded against them.

As common facts and law are involved in both the appeals, both the appeals were heard together and are being decided by this common judgment.

In short, the case of the prosecution is that one Manindarkumar Bhimsing Chaurasia, a retired Army personnel, who was serving as a Security Guard in Central Bank of India at Gheekantha, also used to attend to his brother''s security office situated at Shop No. 1 in Chaurasia Shopping Centre before and after office hours of bank. On 14-10-1988 i.e. a day prior to the date of incident, when Maninderkumar was sitting in his office, Kanjibhai Rabari, Somabhai, Rajkumar @ Munno and Ramanand came to his office and demanded Rs. 25,000/- at about 8 to 8.30 a.m. and threatened him with dire consequences, if not paid. A complaint was lodged by him in this regard before Naroda Police Station. Thereafter, on the same day when he was doing his duty at the bank, the aforesaid persons again threatened the Typist girl sitting at the office of his brother also with dire consequences. On 15-10-1988 at about 7.00 p.m. to 7.30 p.m. while he was sitting at his office with Harendra Rajput(the complainant) and K.N. Rai, accused persons namely, Chaudhary (Accused No. 4) with knife, Munno(Accused No. 1) with knife, Shailesh (Accused No. 5) with sword, Keshbhan (Accused No. 7) with sword, R.S. Yadav (Accused No. 6) with gupti and other accused persons with sticks, hockey sticks, gupti, etc. came and inflicted various blows on the injured with the weapons held by them. Upon arrival of Umashankar Chaurasia, the assailants fled from the scene. The injured while being taken to Shardaben Hospital for treatment in a rickshaw was unconscious and was therefore shifted to operation theatre. Upon receipt of vardhi of the aforesaid information on 15-10-1988, PI, K.S. Biyola, handed over yadi to PSI, K.R. Parmar, who recorded complaint on reaching Shardaben Hospital. PI, Biyola thereafter took over investigation. He went to the hospital, drew pachnama of scene of offence, recorded statements of Kantaben Pashaji, Umashankar Chaurasia and Kashinathsinh Ramavasheshsinh. As the injured was unconscious, his dying declaration was recorded. Thereafter, he attached the clothes worn by the injured under a panchnama and also drew sketch of scene of offence. The complaint lodged a day earlier being N.C. No. 561/88 was included with the investigating papers. As soon as the injured regained consciousness, his statement was recorded and made search for the accused but the accused were absconding. The accused No. 1-Rajkumar @ Munno, accused No. 2-Ramanand Surajmal Sharma, accused No. 3-Kanjibhai Ramjibhai Desai and accused No. 4-Rajendrabhai Chaudhari were arrested on 27-10-1988. Thereafter, knifes discovered at the instance of accused No. 1 were attached under panchnama. Accused No. 5-Shaileshkumar Shantilal Vyas, who was arrested on 29-10-1988 produced sword and it was attached under a panchnama. Accused No. 6-Ramshree Sukhiram Yadav was arrested on 1-11-1988 and accused No. 7-Keshbhan Ramakant was arrested on 4-11-1988. Upon receipt of injury certificate of victim and after completion of investigation, charge sheet was filed on 16-11-1988 in the Metropolitan Magistrate Court. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. The learned Judge thereafter framed charge against the accused at Ex. 3. The charge was read over and explained to the accused. The accused pleaded not guilty to the charges and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused.

To prove the guilt against the accused, prosecution examined as many as 12 witnesses and has produced and relied on several documentary evidence.

On submission of closing pursis by the prosecution, learned Judge recorded further statement of the accused u/s 313 of Code of Criminal Procedure. As the accused Nos. 1 and 2 were reportedly killed, their further statements could not be recorded. The accused denied all the charges and contended that they have been falsely involved. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned Additional Sessions Judge, Court No. 3, Ahmedabad, delivered the impugned judgment and order convicting and sentencing the Appellants as aforesaid in the earlier part of this judgment giving rise to prefer the present appeals by the Appellants.

Heard learned advocates, Mr. Bhargav Bhatt, for the original accused Nos. 4 and 6, who are Appellants of Criminal Appeal No. 905 of 1992, Mr. C.H. Vora for the original accused No. 3, who is the Appellant of Criminal Appeal No. 921 of 1992 and learned APP, Mr. L.R. Pujari for the State in both the appeals. It is vehemently argued by learned advocate, Mr. Bhargav Bhatt for the original accused that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Taking this Court through the evidence on record of witnesses, it is argued that the incident in question of causing injuries to the injured took place at Hansol as it is revealed from the Vardhi that P.W. No. 1 might have been injured at his residence at Hansol from where he might have come to Chaurasia Shopping Centre in a rickshaw and from there he might been taken to the hospital by Umashankar. It is also argued that no bloodstains were found at the place of scene of offence though injured received serious injuries and profuse bleeding was there and, therefore, with ulterior motive to involve the present Appellants falsely with the crime, place of scene of offence was changed. He has tried to convince this Court by arguing that Chaurasia Bhavan and Chaurasia Shopping Centre are two different places. Taking through the evidence of P.W. No. 1, the victim, Manindarkumar Bhimsing Chaurasia, Ex. 19, it is argued that certain facts stated on oath before the Court were not found in his police statement and hence, his evidence does not inspire confidence. According to him, there are contradictions in the evidence of witnesses namely P.W. Nos. 2,3 and 6. According to him, these witnesses are interested witnesses and are not telling the true and correct facts and hence, their evidence should not be believed. It is further argued that when two views about the place of occurrence of incident are forthcoming, the view beneficial to the accused should have been taken by the Court and hence, when there are ample evidence on record to indicate that assault on the injured took place at his residence at Hansol, it should have been believed that the incident in question had taken place at Hansol and not near Chaurasia Shopping Centre. It is also argued that names of the assailants were not disclosed either in the vardhi noted down by the concerned Police Officer or even when injured was taken to the hospital by Umashankar although he was conscious as per the deposition of doctor and it is after 3 days that the names of the accused were disclosed by the injured which is creating serious doubt about the genesis of crime. It is also argued that there is contradiction in the description of injuries mentioned by the doctor with that of description given by the injured. According to him, 27-28 injuries were stated by the injured. However, as per the doctor, not more than 8 injuries were received by the injured and according to him, this contradiction is fatal to the case of the prosecution.

It is also argued that though it was within the knowledge of the Investigating Officer that offence took place at another place, the Investigating Officer did not take care to guard or protect the place till panchnama was drawn of the place of scene of offence which also creates doubt about the prosecution case and, therefore, accused are entitled to get benefit of doubt. Taking this Court through the evidence of Investigating Officer, PI, Mr. K.S. Biyalo, it is argued that I.O. has admitted in his cross-examination that the injured did not say in his police statement that injuries were inflicted with sword on his left hand and then on his right ear, with knife and gupti on his back and that Chaudhary and Munna had knives, Shailesh had a sword and Yadav had a gupti. It is also argued that it has come in evidence of P.W. No. 1 injured that he and his son were booked under PASA and hence, version of the defense that due to his illegal activities, injured might have been beaten by some unknown persons is probable. This fact has not been considered by the trial court and, therefore, an error has been committed by the trial court. Apart from that, the complainant turned hostile and did not support the case of the prosecution. In view of the above, it is argued that the prosecution has failed to prove its case against the accused beyond reasonable doubt, however, the trial court committed grave error in coming to the conclusion that these contradictions, omissions or discrepancies are fatal in nature and convicted the accused. He has relied on the following reported decisions:

1) Hem Raj and Others Vs. State of Haryana,

2) Mathura Yadav @ Mathura Mahato and Others Vs. State of Bihar,

3) Miran Bux Vs. Liloo alias Shagir Ahmad and others,

4) Kallikatt Kunhu Vs. State of Kerala,

5) AIR 2002 SC 2374 in the case of Dinesh and Anr. v. State of Haryana; and

6) Bhola Singh Vs. State of Punjab,

Learned advocate, Mr. C.H. Vora for the original accused No. 3, the Appellant of Criminal Appeal No. 921 of 1992, has adopted the arguments advanced by learned advocate, Mr. Bhargav Bhatt. It is however argued by learned APP, Mr. L.R. Pujari for the State that trial court has discussed each and every aspect of the case in great detail and also considered the defense and rightly came to the conclusion that prosecution has proved its case beyond reasonable doubt and rightly convicted the accused persons and, therefore, no interference is called for in the findings of the trial court. It is therefore urged that the appeals deserve to be dismissed. He has also relied on certain reported decisions.

This Court has gone through the evidence on record together with the impugned judgment and order of conviction as well as the decisions cited by the learned advocates for the respective parties. As far as the argument of Mr. Bhargav Bhatt that injuries were caused on the injured at Hansol and not Chaurasia Shopping Centre is concerned, it is to be noted that injured received multiple injuries on vital parts of his body with deadly weapons and hence, it would not be possible for the injured to travel all the away from Hansol in a rickshaw and come to Chaurasia Shopping Centre. Had he been injured at Hansol, he would have immediately gone to a nearby hospital for taking treatment rather than going to Chaurasia Shopping Centre. Residential address of injured as per the vardhi is Chaurasia Bhuvan, Near Thakkar Bapanagar Cross Roads. It is evident from the evidence of P.W. No. 2-Umashankar that when he heard the cries for help from the security office at Chaurasia Shopping Centre, Harindarsingh told him that Manindar was assaulted by several persons. P.W. No. 3-K.N. Rai also deposed that when he, being the Chairman of the Ex-Servicemen Association, went to the office of Manindarkumar for informing about a meeting, five persons came there. Two persons caught hands of Chaurasia, dragged him out and assaulted him with knife, gupti and sword. P.W. No. 6, Matadeen, who is residing near Chaurasia Shopping Centre, has also deposed that 10-15 persons were coming out of Chaurasia Shopping Centre after attacking Manindarkumar. An argument has been advanced that these witnesses are interested witnesses. Hence, their evidence has to be examined with circumspection. It is clear from the evidence of P.W. No. 2 that the injured is not related to him but he knew him for the last two years and hence, he cannot be termed as an interested witness. P.W. No. 3 has also admitted in the cross-examination that he was not related to the injured and he being the Chairman of Ex-Servicemen Association knew him and came to his office for inviting for the meeting and is a chance witness. P.W. No. 6 is staying near to Chaurasia Shopping Centre and hence, he used to be there and hence, his presence also cannot be doubted. Careful examination of the evidence of these witnesses does indicate that they are giving exact versions of the incident. Nothing has come out from the cross-examination of these witnesses to falsify their versions. Moreover, report of PSI to PSO of Naroda Police Station Ex. 39 attached with the complaint also shows the place of incident as Thakkarnagar Cross Roads, Chaurasia Bhuvan. Thus, from the above, it is conclusively proved that the incident took place at Chaurasia Shopping Centre and not at Hansol and hence, the submission of Mr. Bhargav Bhatt that the incident took place at Hansol and that witnesses Nos. 2,3 and 6 are interested witnesses cannot be believed.

As far as the injuries caused on the injured are concerned, it is to be noted that the injured received serious injuries and was profusely bleeding. He was unconscious and when he regained consciousness, his statement was recorded but he could not recollect the exact happenings of the incident. However, when he was examined before the Court, he deposed everything on oath as to which accused caused which injuries and which weapons were used by them. He also identified the accused and stated as to how he could identify the accused. Moreover, the eye witnesses also described about the occurrence of incident in detail. Though there is minor contradiction in the evidence of P.W. No. 6, Matadeen, his whole evidence cannot be discarded especially when it clearly appeared that he had seen the accused when he went at the place of incident.

Apart from that, there is evidence of Dr. Nina Manubhai Shah, P.W. No. 7, Ex. 29., Following injuries were noted down by her:

1 Incised wound 12x1x3 cm over right cheek containing most of the facial mussle cutting right ear lobule.

2 Incised wound 5x5x2 cm on left hand deep upto bone.

3 Incised wound over back, six in number.

a) 2x.5x1 cm deep upto pleura right lower chest.

b) 2x.5 cm over back trasc skin deep near midline at renal angle.

c) 2x.5x4 cm at right renal angle.

d) 2x.5 cm skin deep on left side renal angle with linear abrasion lateral of 5 cm.

e) 2x.5x5 cm left side of back just below 12th rib laterally.

f) 8x2x.5 cm subcutinus deep restical on left side of chest.

As per the evidence of doctor, immediately within five minutes of the injured reaching the hospital, he was shifted to the operation theatre as he was to be operated due to serious injuries sustained by him. This evidence speaks volume of the condition of the injured person. When the injured sustained serious injuries and immediate operation was to be performed, it would not be expected from the injured to have disclosed the names of the accused persons before the doctor even if it is believed that injured was conscious or semi-conscious. It has also come out from the evidence that when the injured regained consciousness after three days, his statement was recorded by the police in which he narrated the incident in detail regarding the role played by the accused in committing the crime.

On a careful scrutiny of the evidence of injured and the doctor, no material inequality has been noticed except for the fact that no injury of abdominal cavity has been caused from front side. The injured has admitted in his cross-examination that he received 2 sword injuries, 1-2 injuries on back with gupti and 7-8 injuries with knife. He has also admitted that 5-7 blows were received by him with hockey stick and 2-4 blows with stick. This version is tallying with the version given by the doctor except for the fact that hockey stick and stick blows did not appear either in the injury certificate or in the evidence of doctor. Thus, in the opinion of this Court, nothing abnormal or something fishy is noticed in the evidence of aforesaid witnesses.

It is true that as far as panchnama of scene of offence is concerned, no bloodstains were found there. However, it has come out from the evidence of prosecution witnesses that the injured was profusely bleeding and blood was oozing out on the otta but it was washed out. It is to be noted in this regard that though panch of panchnama of scene of offence namely, P.W. No. 5, Chhotusing Suberdarsingh Chauhan, has admitted in his cross-examination that no bloodstains were found at the place of scene of offence, no suggestion was put to this witness to the effect that bloodstains were washed from the scene of offence. He has admitted on a suggestion that the person, who washed out the bloodstains, was not named in the charge sheet. He has denied the suggestion that he was making a false statement that the bloodstains were washed out. Therefore, as per Section 105 of Indian Evidence Act, the burden is on the accused to prove that their case fall within any exception. However, the accused did not plead such an exception either. It is, however, an admitted fact that although incident took place during night hours, the Investigating Officer did not take care to put guard or protect the scene of offence till the panchnama of scene of offence was drawn in the morning on the next day. It is proved through the evidence of prosecution witnesses that all the accused came at the place of incident with deadly weapons like gupti, knife, sword etc. with the common intention of causing serious injuries on the injured which is supported by the evidence of doctor that injuries sustained by the injured could have been by sharp cutting instruments like knife, gupti, sword etc. As per the evidence of Dr. Nina Manubhai Shah, P.W. No. 7, Ex. 29, all the injuries sustained by the injured were serious in nature and death of the injured could have been caused if timely treatment was not received by him. It has also come from the evidence of doctor that the injured was treated as an indoor patient for a period from 15-10-1988 to 29-10-1988. The intention of the accused in causing such a serious injuries with deadly weapons can be gathered from the manner in which the injured was assaulted by the accused. As far as the question of who caused which injuries on the injured is concerned, the injured had specifically narrated the whole incident including the names of persons who came to his office, shook his hands and took him outside and assaulted on him with deadly weapons held by them. It is proved by the prosecution that the injuries were caused to the injured by the accused Nos. 1,2,3,4 and 6 on 15-10-1988 at about 7.30 p.m. on the otta in front of the security office run in Chaurasia Shopping Centre situated near Thakkar Bapanagar Cross Roads and injured was removed to Shardaben Hospital in a rickshaw and he was treated on the same day. Out of those five accused, accused Nos. 1 and 2 died during trial and the other remaining accused are accused Nos. 3,4 and 6. Accused Nos. 5 and 7 were not included in the names of persons given by the injured. Therefore, there is no substance in the arguments of learned advocate, Mr. Bhargav Bhatt that injuries to the injured were not caused by the accused but by some unknown persons as the injured was detained under PASA and hence, with ulterior motive or as an after thought, present Appellants accused have been implicated falsely in the crime in question. It was rightly held by the trial court that considering the serious nature of injuries received by the injured, it would not have been possible for the injured to have come alone in rickshaw from a far away place to the place of scene of offence without anybody''s help and to lie unattended at the scene of offence. It was also rightly held by the trial court that when any person received such kind of serious injuries, he would first go to the hospital to take treatment and not at any other place and, therefore also, the defense putforward by the accused is not at all probable.

As regards the decisions relied on by learned advocate, Mr. Bhargav Bhatt, are concerned, there cannot be any dispute regarding the principles laid down therein by the Hon''ble Apex Court. However, facts of the reported cases and facts of the case on hand are totally different and hence, accused would not be entitled to the benefit of the decisions cited by their advocate.

In the entirety of the facts and circumstances narrated hereinabove, this Court is of the opinion that findings of conviction and sentence given by the trial court are legal and proper and no illegality or irregularity has been committed by the trial court in arriving at the said findings requiring interference by this Court in the present appeals. Hence, both the appeals deserve to be dismissed.

Both the appeals are dismissed. The Appellants are on bail and hence, their bail bonds shall stand cancelled. They are ordered to surrender before the jail authorities within eight weeks from today for undergoing the remaining period of sentence.

Office shall place a copy of this judgment in each matter.

Office shall send back the records and proceedings to the trial court forthwith.