HARIJAN JIVRAJBHAI BADHABHAI Vs. STATE OF GUJARAT
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1694 of 2009, Judgment Date: May 11, 2016
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.
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