Harijan Jivrajbhai Badhabhai Vs. State of Gujarat, on 11th May 2016, Supreme Court of India – Read Judgement

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Non-Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1694 of 2009

Harijan Jivrajbhai Badhabhai                   ….Appellant

Versus

State of Gujarat                            …. Respondent

J U D G M E N T

Uday Umesh Lalit, J.

This appeal by special leave at the instance original  Accused  No.2,  seeks
to challenge the judgment and order dated  16.02.2009  passed  by  the  High
Court of Gujarat at Ahmedabad dismissing Criminal  Appeal  No.1035  of  2002
preferred by the  appellant  challenging  his  conviction  and  sentence  in
Sessions Case No.62 of 1998, Rajkot, for offence  punishable  under  Section
302 of the Indian Penal Code (for short IPC).

2.    The incident giving rise to the present matter occurred on  16.09.1997
around 11:30 a.m.  in  the  Courtroom  of  6th  Joint  Civil  Judge  (Senior
Division) and Judicial Magistrate First class, Bhavnagar. According  to  the
prosecution one Dalpat was required to attend the 6th Court  as  an  accused
and was standing with his co-accused PW 29 Mahendra in the corridor next  to
the Courtroom waiting for their case to be  called  out.  On  the  very  day
original accused No.1 Keshu Badha also had a case listed in that  Court  for
framing of charges. While Dalpat was waiting in the corridor,  Accused  No.1
Keshu Badha and Accused No.2 Jivraj Badha ie.  the  appellant  came  running
with sharp cutting weapons in their hands. Apprehending danger to his  life,
Dalpat rushed into the Courtroom but both the accused chased  him  into  the
Courtroom. PW 25 C.R. Thakkar was the Presiding Officer of the  Court  while
PW 30 Bhanji was Court  Duty  Constable  sitting  at  the  entrance  of  the
Courtroom. The other members of Court staff present in  the  Courtroom  were
PW 23 Harshaben, Court Clerk, PW 24 Ajitbhai Court Clerk, PW 31  Arvindbhai,
Junior Clerk.

3.    As Dalpat ran into the Courtroom with both  the  accused  chasing  him
with sharp cutting weapons, there was commotion and people  started  running
helter skelter. PW 25 C.R. Thakkar jumped from the dias and along  with  the
other Court staff ran out. Both the accused gave sharp cutting  injuries  to
Dalpat who collapsed near  the  dias.  According  to  the  prosecution  this
incident was witnessed by PW 30 Bhanji-Court Duty Constable, PW 29  Mahendra
co-accused of said Dalpat and PW 28 P.S.I Kanubhai Patel who was present  in
the adjoining Court of the Additional Sessions Judge in  connection  with  a
case wherein he was one of the witnesses. Having heard the commotion in  the
adjoining Court, PW 28 PSI Kanubhai, rushed  to  Courtroom  No.6  and  found
that Dalpat was being assaulted by both the accused.  In  order  to  capture
the assaulting accused, PW 28 Kanubhai with the help of PW 30 Bhanji  closed
the door of the Court from outside and also closed the shutter of the  lobby
and then went to inform local police. He asked Head Constable Barot to  make
a call and while returning back to Courtroom No.6  came  to  know  that  two
persons with a big knife had run away from the back side of  the  Courtroom.
He tried to chase them but could not arrest them.

4.    PW 39 Police Inspector L.K. Chudawat  who  was  present  in  Bhavnagar
P.S. received a message about the scuffle in Courtroom No.6  and  he  rushed
along with other staff. When he reached, he found crowd having  gathered  in
front of the Court and found shutter of  the  Courtroom  closed.  After  the
shutter was opened, he found Dalpat lying dead  near  the  dias  with  sharp
cutting injuries. The assailants however  had  made  good  their  escape  by
removing a grill. He conducted inquest panchnama  at  about  12:00  noon  in
respect of dead body and arranged for sending the dead body to the  hospital
for post-mortem which was conducted between 1:00 pm to 2:00  pm.  Since  the
incident had taken place inside the Courtroom, PW 39 P.I. Chudawat  felt  it
necessary to inquire from the Presiding  Officer  but  PW  25  C.R.  Thakkar
refused to lodge the complaint. He thereafter inquired  from  PW  30  Bhanji
about the details regarding the occurrence. In the First Information  Report
which was lodged at about 3 p.m. on the basis of statement of PW 30  Bhanji,
initially three persons were named as accused. Apart  from  A1  Keshu  Badha
and A2 Jivraj Badha one Vikram Jesingh was also named. PW 39  P.I.  Chudawat
recovered two sheaths of knife, one knife with  twisted  blade  outside  the
window of the Courtroom and  collected  blood  samples  from  the  place  of
incident as mentioned in Panchnama.

5.    On the same date at about 5:30 p.m. further statement of PW 30  Bhanji
was recorded in which he stated that Vikram Jesingh  was  named  by  way  of
mistake and accordingly the name  of  said  Jesingh  was  deleted  from  the
proceedings. Five days later both Accused Nos.1 and 2 were  arrested  and  a
knife was recovered pursuant to the statement of  A1  Keshu  Badha  while  a
Dharia was recovered pursuant to the statement made by A2 Jivraj Badha.

6.    During the course of investigation the police recorded  statements  of
various witnesses.  PW  29  Mahendra,  co-accused  of  deceased  Dalpat  was
subjected to Test Identification Parade in  which  he  identified  A1  Keshu
Badha  but  could  not  identify   A2   Jivraj   Badha.   After   completing
investigation charge-sheet was filed  against  A1  Keshu  Badha,  A2  Jivraj
Badha and A3 Meethiben, their mother.

7.    The prosecution examined 39 witnesses. PW 1 Dr.  J.R.  Srivastava  who
had conducted post mortem on the body of Dalpat stated  that  he  had  found
following 21 injuries on the body of  said Dalpat:-
“Injury No.1 On the left side left ear on the lower part  sharp  cut  injury
and cutting the cartilages, and upto the skin.

Injury No.2 On the left side on the neck 4 inch x 2 inch upto  the  shoulder
line cut injury and on the left side jugular vein and on  the  left  kerotin
artery and trachea were absolutely cut and heavy bleeding, injury.

Injury No.3 On the right  side  of  the  neck  from  the  shoulder  line  to
internal side 3 inch x 13 inch on the right  of  sterno  musco  muscles  cut
injury.  This injury was upto trachea.

Injury No.4 One pierced injury and on the left side on the chest 3 inch x  2
inch x 1 inch and between second and third rib, the muscles on the ribs  was
cut.

Injury No.5 Pierced injury, first injury pierced injury from  there  to  the
internal side 3 inch x 1/3 inch x 1 inch between second and  third  rib  and
the third rib was cut.

Injury No.6 Third pierced injury between the second and third  rib  slanting
and in the inter coastal space of third rib.  Third rib was cut  and  injury
4 inch x 0ll inch x 3 inch and the injury was inter coaster muscles,  artery
was cut.  This injury was on the right side from the brain on the left  side
on the upper atrium inside the heart 1 inch x ¼ inch injury was through  and
through wound.  From the wound there was no bleeding, but about 20 cc  blood
was collected inside the chamber, and in the space there was 250 cc blood.

Injury No.7 Fourth pierced injury towards  the  outside  towards  the  third
wound outside and towards the lower side from the front to  back  2  inch  x
0ll inch cut injury, inter coastal muscles were cut, and the fourth rib  was
also half cut.

Injury No.8 Fifth pierced injury slanting on the 3  inch  x  0ll  inch  bone
deep.

Injury No.9 Sixth pierced injury slightly towards the backside 3 inch x  0ll
inch skin deep.

Injury No.10  Seventh pierced injury on the upper side towards the  outside,
muscles inter coastal organ was towards the outside and cut injury 4 inch  x
0ll inch towards the left and upto the lungs, the margin was clean cut,  and
of size 1ll inch x 0ll inch.  There was slow bleeding.  In  the  peural  100
cc blood was collected.

Injury No.11 Eighth pierced injury, on the left side of the chest 3  inch  x
0ll inch skin deep.

Injury No.12 Ninth pierced injury  on  the  upper  side  between  the  eight
number pierced injury, of size 2ll inch x 0ll inch bone deep.

Injury No.13  Tenth pierced injury on the chest on the  right  side  pierced
lower than the third number injury size 3 inch x  0ll  inch  bone  deep  and
muscles inter coaster was cut.

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Injury No.14 Eleventh pierced injury 2ll inch x 0ll inch bone deep from  the
front to the back.

Injury No.15 Twelth pierced injury 3 inch x 0ll inch bone deep  between  the
fifth and sixth rib.  And, the bones were also cut.  This injury was on  the
right side of the chest.

Injury No.16  Thirteenth pierced injury on the chest on  the  left  side  in
the line of sixth number size 3 inch x 0ll  inch  x  0ll  inch  towards  the
inside injury cutting the muscles and inter coastal.

Note: He was also informed that upto the above  bone  the  injury  upto  the
muscles, nad the other injury on the bones, have not gone  upto  the  bones.
And, this fact is also applicable to the injury No.1 and 2.

Injury No.17 One cut injury on the left side on the side of  the  muscle  of
the left hand between the first and second finger  of  size  4  inch  x  0ll
inch, and the injury was towards the outside.

Injury No.18 The second cut injury on the back  of  the  left  hand  on  the
second and third fingers on the lower side of size 3 inch x  0ll  inch  skin
deep.

Injury No.19 Third cut injury between the third and fourth  metacarpal  size
3 inch x 0ll inch skin deep.

Injury No.20 Fourth cut injury on the left hand  elbow  towards  the  inside
skin, muscles, tendons were cut and bleeding and the size of injury  4  inch
x 2 inch bone deep.

Injury No.21 Cut injury on the left Patera bone deep oblique of size 4  inch
x 0ll inch.  Skin, muscles were cut.”

During his examination in Court the witness was shown the  weapons  in
question and his testimony was as under:-
“I am being shown the scythe of Muddamal article no. 26. Injuries  sustained
on the neck, hand and legs can be caused with  it.  I  am  being  shown  the
toothed knife of Muddamal article no. 25. Injuries sustained  on  chest  and
neck can be caused with it. I am being shown the knife of  Muddamal  article
no. 7. The injuries sustained on ear, neck and  chest  can  be  caused  with
that knife. I am being shown the bent knife of Muddamal  article    no.  15.
The injuries that are sustained on neck, chest and ear, can be  caused  with
that knife.”

8.    One Khimjibhai was examined  as  PW  38  who  stated  that  his  uncle
Atubhai had contested election in the year 1986 and A1 Keshu Badaha was  his
opponent. Since Keshu Badha lost the election, he was harboring  enmity  and
after about a month and a half a  group  of  eight  persons  which  included
Keshu Badha and  Jivraj  Badha  had  fatally  assaulted  his  elder  brother
Muljibhai,  in respect of which case these accused were initially  convicted
and sentenced but were later acquitted in appeal.  PW 30 Bhanji stated  that
he and the accused belonged to the same community, that he  had  studied  in
the same school and that the accused used to do the job of  cobbler  outside
the school. PW 28 Kanubhai stated that he  had  spent  10  years  in  police
service at Bhavnagar, that he knew both A1 Keshu Badha and A2  Jivraj  Badha
who had some cases pending against them and that they used to  come  to  the
police station in connection with such cases.

PW 25 C.R. Thakkar Presiding Officer of the  Court  and  other  Court  staff
namely PW 23 Harshaben, PW 24 Ajitbhai and PW 31 Arvindbhai stated  that  in
the commotion that happened on the day they had not  sufficiently  seen  the
assailants.

9.    Relying on the testimony of eye witness account  unfolded  through  PW
28 Kanubhai, PW 29 Mahendra and PW 30 Bhanjibhai and the other  material  on
record, the Trial Court found that the case of  prosecution  as  against  A1
Keshu Badha and A2 Jivraj Badha was  fully proved. It however  acquitted  A3
Meethiben of all the charges leveled against her. By his judgment and  order
dated 19.10.2002, the Additional Sessions Judge,  Rajkot  in  Sessions  Case
No. 62 of 1998 convicted both A1 Keshu badha and  A2  Jivraj  Badha  of  the
offence punishable under Section 302  IPC  and  sentenced  them  to  undergo
rigorous imprisonment for life and  to  pay  fine  of  Rs.10000/-  each,  in
default whereof to undergo further rigorous imprisonment for two years.  The
convicting accused being aggrieved, filed Crl. Appeal  No.1035  of  2002  in
the High Court of Gujarat at Ahmedabad.  Accused  No.  1  Keshu  Badha  died
during the pendency of the appeal and  the  appeal  at  his  instance  stood
abated. After considering the material on record and rival  submissions  the
High Court by its judgment and order dated 16.02.2009,  which  is  presently
under appeal, affirmed the conviction  and  sentence  of  A2  Jivraj  Badha,
appellant herein and dismissed his appeal.

10.   In this appeal  by  Special  Leave  Mr.  D.N.  Ray,  learned  Advocate
appearing for A2 Jivraj Badha submitted as under:-
a.    The First Information Report was registered at 1.00  p.m.  while  even
before such registration the inquest was undertaken at  about  12  noon  and
the post mortem was also conducted between 1.00 p.m. and 2.00 p.m.  Further,
in the FIR three persons were named but later the name of the  third  person
was dropped from the proceedings. In his submission, the  First  Information
Report was nothing but retro fitting done by the prosecution  and  was  thus
not believable at all.

b.    PW 29 Mahendra had  failed  to  identify  A2  Jivraj  Badha.   In  his
submission, PW 28 Kanubhai had arrived after the shutter was already  closed
as PW 39 P.I. Chudawat did not refer to his presence.  The  presence  of  PW
28 Kanubhai was extremely doubtful.

c.    As regards PW 30 Bhanji, the assertion that he knew both  the  accused
as they were cobblers who used to sit outside the school, is not  worthy  of
any reliance. It is difficult to accept how  PW  30  Bhanji  could  identify
both the accused and name them with addresses after so many years.

d.    The case of the prosecution as regards A3 Meethiben was that  she  had
secreted the weapons inside the  Courtroom  which  would  again  be  running
counter to the case that both the accused  had  come  through  the  corridor
with sharp cutting weapons in their hands.

11.    Ms. Jesal Wahi, learned Advocate appearing for  the  State  submitted
that the genesis of the incident including the presence of  A1  Keshu  Badha
was not in doubt at all. The presence of PW 28 Kanubhai was  natural  as  he
had come to appear as a witness in the adjoining court.  Similarly  presence
of PW 29 Mahendra who was co-accused along with  deceased  Dalpat  was  also
natural. PW 30 Bhanji was Court Duty constable and  would  naturally  be  at
the entrance of the Courtroom.  Though  PW  29  Mahendra  stated  about  the
incident, he  had  failed  to  identify  A2  Jivraj  Badha.  But  other  two
witnesses namely PW 28 Kanubhai and PW  30  Bhanji  had  clearly  identified
both the accused.  She further submitted that the eye  witness  account  was
cogent, consistent and was rightly accepted by the High Court and the  Trial
Court.

12.   We have considered the rival submissions and  have  gone  through  the
testimony of the eye witnesses and other material on  record.   It  is  true
that even before the registration of FIR the inquest was undertaken and  the
post-mortem was conducted.  In this case, the assault was made right in  the
Courtroom which called for immediate action on part of the investigators  to
clear the Courtroom as early as  possible.  The  Investigating  Officer  had
initially requested the Presiding Officer to lodge a  complaint.   Upon  his
refusal, the Investigating Officer then had to  make  enquiries  and  record
the complaint of PW 30 Bhanji.  In the meantime, if inquest  was  undertaken
and the body was sent for post-mortem, we do not see  any  infraction  which
should entail discarding of the entire case of prosecution.  We also do  not
find anything wrong if the first informant soon after the recording  of  the
assailant corrected himself,  as  a  result  of  which  name  of  the  third
assailant came to be dropped.  So long as the version coming  from  the  eye
witnesses inspires confidence and is well corroborated by  the  material  on
record, any such infraction, in our view would not demolish the case of  the
prosecution in entirety.

13.   The presence of PW 28 Kanubhai, a Police Officer who was  required  to
give evidence in the adjoining Court, was quite natural.   In  case  of  any
commotion as a result  of  any  assault,  a  trained  Police  Officer  would
certainly be expected to reach the place in question, which PW  28  Kanubhai
did with promptitude.  The  evidence  thus  inspires  confidence  about  his
presence at the time in question.  After closing the shutters  he  had  gone
to make reporting to the local police.   In  the  circumstances,  if  PW  39
Chudawat did not refer to his presence, that by itself  is  not  crucial  at
all.  On the other hand both  PW  29  Mahendra  and  PW  30  Bhanji  clearly
referred to his presence.  We have gone through the evidence and find  every
detail mentioned therein  to  be  corroborated.   We  therefore  reject  the
submission that the presence of this witness was doubtful.  Having seen  the
evidence of PW 28 Kanubhai and  PW  30  Bhanji,  we  find  that  both  these
witnesses  had  clearly  identified  both  the  accused.   These   witnesses
individually knew both the accused for different reasons which  reasons  are
cogent and trustworthy.  The fact that A1 Keshu Badha and  A2  Jivraj  Badha
were involved in criminal activities has been brought on record through  the
testimony of PW 38 Khimjibhai.  It would therefore be natural for  a  police
officer who had spent 10 years in police service in the area to be aware  of
the identity of both the accused.  Similarly, PW 30 Bhanji, who had  studied
in the same school would also naturally know and remember  the  identity  of
both the accused.

14.   It is true that A3 Meethiben was said to have secreted the weapons  in
the Court room.  But according to the  prosecution  there  were  four  sharp
cutting weapons involved in the matter.   Even  if  both  the  accused  were
carrying sharp cutting weapons in their hands, the  assertion  that  someone
else had also secreted the weapons  in  the  Courtroom,  by  itself  is  not
inconsistent with the prosecution case.

15.   In the circumstances, we find the assessment made by the  Trial  Court
as well as the High Court in the present case to be completely  correct  and
justified.  We do not see any reason to upset the conclusions  and  findings
recorded by the Trial Court and the  High  Court.   Consequently,  affirming
the conviction and sentence of A2 Jivraj  Badha  the  appellant  herein,  we
dismiss this Criminal Appeal.  He shall serve the sentence awarded to him.

…………………………………………….J(FAKKIR MOHAMED IBRAHIM KALIFULLA)

………………..…………………………….J (UDAY UMESH LALIT)

New Delhi
May 11, 2016

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