DILPESH BALCHANDRA PANCHALversusSTATE OF GUJARAT

                    [2010) 5 S.C.R. 605


           DILPESH BALCHANDRA PANCHAL                            A
                              V.
                   STATE OF GUJARAT
            (Criminal Appeal No. 2215 of 2009)
                      APRIL 29, 2010
                                                                 B
     [HARJIT SINGH BEDI AND C.K. PRASAD, JJ.]

     Penal Code, 1860 - ss. 302 and 114 - Murder - Caused
alongwith the      co- accused - Eye-witnesses to the incident
- Recovery of weapon of offence - Conviction by Trial court      C
of all the accused - High Court confirming conviction of two
of the accused - Appeal by appellant-accused - Held:
Prosecution spells out involvement of appellant-accused
beyond doubt- Eye-witnesses were reliable - Non-availability
of independent witnesses is not fatal to prosecution case -      o
Medical evidence also supporting prosecution case -
Conviction justified.

     Appellant-accused alongwith two co-accused was
prosecuted for killing one person. Prosecution case was
that parents of the deceased were the eye-witnesses to           E
the incident; that the accused persons, seeing the eye-
witnesses ran away from the spot leaving behind the
weapon of offence. The prosecution relied on the
statement of witnesses, including eye-witnesses; medical
evidence and evidence of recovery witnesses. Trial court         F
convicted all the accused on the charge of murder and
sentenced them to life imprisonment. High Court
acquitted one of the accused and convicted the two
including appellant-accused. SLP by one of the'
convicted accused was dismissed in limine. The present           G
appeal was filed by the appellant-accused.

    The appellant-accused contended that the evidence
of eye-witnesses was not reliable; that the case was not
                             605                                 H
    606      SUPREME COURT REPORTS              [2010] 5 S.C.R.

A supported by independent witness; that medial evidence
  falsified the prosecution case; that leaving behind th~
  weapon of offence is not a probable story; and that
  sentence of RI for life was not maintainable in law.

          Dismissing the appeal, the Court
B
       HELD: 1.1. In the light of the prosecution evidence
  the involvement of the appellant who is the main accused
  has been spelt out beyond doubt. It is not correct to say
  that it would not have been possible for the eye-
C witnesses to see the incident. It is the conceded p()sition
  that the families of the accused and that of the
  complainant were close neighbours though living on
  different floors. It is also the prosecution case that the
  attack was preceded by a scuffle and shouting and cries
D for help by the victim which immediately attracted the two
  witnesses out of their a,partment and it was then that they
  saw the entire incident. It is also relevant that the incident
  happened between 8.30 - 9.00 p.m. at which time the
  presence of the witnesses at home would be natural.
E [Paras 7, 9, 12] [613-E; 610-G; 611-C-E]

        1.2. The mere fact, that no independent witness has
  been examined, does not in any way cast a doubt on the
  eviden~e of the parents of the deceased who would be
  the last persons to leave out the actual assailants and
F involve some others instead. Independent witnesses are
  never forthcoming and the prosecution must, therefore,
  rely on close associates or relatives of the complainant
  party in order to support the prosecution story. [Para 9)
  [611-E-G]
G
        1.3. The appellant was the person who had allegedly
  inflicted the knife blows on the deceased. In this view of
  the matter, there is absolutely no doubt that he was the
  primary assailant. It is also clear from the record
H including the statements u/s. 313 Cr.P.C that it was the
 DILPESH BALCHANDRA PANCHAL v. STATE OF                    607
                GUJARAT
appellant who had been thrown out from employment by              A
PW 1. Ipso facto the motive for the attack was to lie
primarily on him. [Para 9] [611-G-H; 612-A-B]

     1.4. It is not correct to say that the medical evidence
falsified the prosecution story and that the number of
                                                                  8
injuries did not conform to the statements of the eye-
witnesses. The plea that though only two injuries had
been caused on the deceased as per the ocular evidence
but eight had been found by the doctor, is misplaced. The
doctor who conducted the post-mortem examination, had
co-related the external injuries with the internal injuries,      C
in the course of his evidence. It is significant that injury
No.1 is only an abrasion and could easily be caused
during a scuffle or a fall that preceded or followed the
actual attack. In this view of the matter, there were only
two effective injuries (i.e. 2 and 3) and this fits in with the   D.
prosecution story that only two injuries had been caused
on the person of the deceased as the internal injuries
were a result of the two knife blows. [Paras 10 and 11]
[612-B-C; 613-B-C]
                                                                  E
     1.5. It is not correct to say that an assailant would not
leave the murder weapon behind, while running away.
The accused herein were not hardened criminals and
therefore conscious that the recovery of the murder
weapon would strengthen the prosecution story. It is              F
also- clear from the evidence that on account of the cries
made by the deceased, his parents and two others had
come out from the adjoining flats. It is, therefore, probable
that appellant in his anxiety to escape had dropped the
knife at the place of incident. [Para 12] [613-D-E]
                                                                  G
    2. Imprisonment for life has been awarded which is
permissible u/s. 53 IPC and there is absolutely no
reference or direction that the aforesaid term crf
imprisonment w.ould be treated as rigorous or simple
imprisonment. The plea that sentence of rigorous                  H
    608       SUPREME COURT REPORTS                [2010] 5 S.C.R.


A imprisonment for life imposed by ttie trial court and
  confirmed by the High Court was not maintainable in law,
  therefore, is purely academic and calls for no comment.
  [Para 6] [610-E]

B       CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 2215 of 2009.

        From the Judgment & Order dated 19.6.2008 of the High
    Court of Gujarat at Ahmadabad in Criminal Appeal No. 543 of
    2001.                  \
c
         Parmanand Katara, Kusumlata Sharma, S. Ramamani for
    the Appellant.

          Jesal, Nupur, Hemantika Wahi for the Respondent.

D         The Judgment of the Court was delivered by

        HARJIT SINGH BEDI, J. 1. This appeal by way of special
    leave arises out of the following facts:

E      2. On 16th August 1999 at about 8.30 p.m. Ravubha the
  complainant and his wife Lilaba along with their son lndrasinh
  and his wife and children were at their residential Flat No.28,
  Madhuben Apartments, village Aduput, District Kutch. lndrasinh,
  however, left the house for purchasing a beedi from the
  adjoining shop. Ravubha, however, called out to him to return
F to the house immediately and a few seconds later Ravubha and
  Lilaba heard lndrasinh seeking help. They rushed out of their
  apartment and saw that lndrasinh had been caught by the first
  accused Balchandra Parmanand Panchal and his son Hitesh
  Balchandra whereas the second son Dilpesh Balchandra, the
G appellant herein, was inflicting knife blows on him. On seeing
  Ruvabha and Lilaba the three assailants ran away after throwing
  the knife and its scabbard on the floor. A neighbour Kishorebhai
  also reached the place immediately and helped the others in
  taking lndrasinh to the hospital. Other relatives of lndrasinh and
H
  DILPESH BALCHANDRA PANCHAL v. STATE OF                 609
        GUJARAT [HARJIT SINGH BEDI, J.]
the police were also informed on the phone as to what had        A
happened. A police party reached the place shortly thereafter
and PSI Jala, who was on patrol duty was informed on the
wireless. The PSI then returned to the Police Statiqn and
thereafter proceeded to the Rambagh hospital and recorded
the statement of Ravubha whereupon a case under Section 302      B
and 114 of the IPC and under Section 135 of the Bombay
Police Act was registered. PSI Jala also reached the place of
incident, made the necessary enquiries and picked up the knife
and scabbard from the place where the assailants had thrown
them. The accused who were living in Flat No.26 in Madhuben      c
Apartment were also arrested from their residence. On the
completion of the investigation, the three accused were
charged for the offences mentioned above.

     3. The prosecution in support of his case relied on the
statement of 14 witnesses, including the two eye witnesses, the D
parents of the deceased Ravubha and Lilaba, and in addition
to the medical evidence and the evidence of the recovery
witnesses. The accused in their statements under Section 313
of the Cr.P.C. denied their involvement in the incident and
pleaded that they have been falsely roped in as their relations E
with the complainant party were strained as the appellant herein
had earlier been employed by them in their factory but as he
had allegedly misbehaved during his employment he had been
unceremoniously thrown out from his job.
                                                                 F
     4. The trial court on a consideration of the evidence
convicted all three accused on the charge of murder and
sentenced each of them to imprisonment for life and to a fine
of Rs.20,000/- and in default thereof to suffer rigorous
imprisonment for s.ix months. An appeal was thereafter taken GI
to the High Court of Gujarat, which by the impugned judgment,
held that the evidence against Balchandra Parmanand and
Dilpesh, the present appellant, was conclusive as to their guilt
but insofar Hitesh Balchandra was concerned there was some
doubt about his participation in the incident and the possibility H
    610     SUPREME COURT REPORTS                   [2010] 5 S.C.R.


A   that he had been roped in along with the other family members
    could not be ruled out. The appeal was accordingly allowed in
    part. The conviction and sentence of Balchandra Parmanand
    and Dipesh Balchandra was thus maintained by the High Court
    but the appeal of Hitesh Balchandra was allowed and he was
B   ordered to be acquitted.

          5. At the very outset, it has been brought to our notice by
    the learned counsel for the parties that SLP No.9381 of 2008
    filed by Balchandra Parmanand, one of the accused whose
C   conviction had been maintained by the High Court, has been
    dismissed in limine on 19th December 2008.

         6. Pt. Parmanad Katara, the learned senior counsel for the
    appellant has raised several pleas during the course of hearing.
    He has first pointed out that the sentence of rigorous
D   imprisonment for life imposed by the trial court and confirmed
    by the High Court was not justified nor maintainable in law. We
    find the plea of the learned counsel to be without any basis.
    From a bare perusal of the two judgments it is clear that
    imprisonment for life has been awarded which is permissible
E   under Section 53 of the IPC and there is absolutely no reference
    or direction that the aforesaid term of imprisonment would be
    treated as rigorous or simple imprisonment. The argument,
    therefore, is purely academic and calls for no comment.

          7. Faced with this situation, the learned counsel has fallen
F   back on the merits of the case. He has submitted that the
    prosecution story rested on the statement of only two witnesses
    PW1 and PW2, the mother and father of the deceased, and in
    the light of the fact that the incident had happened on the 3rd
    floor whereas the witnesses were residing on the 4th floor, it
G   would not have been possible for them to have seen the
    incident. It has also been submitted that as per the ocular
    evidence only two injuries had been caused on the person of
    the deceased but the Doctor had found six injuries during the
    post-mortem examination which clearly falsified both the
H   presence of the witnesses as well as the prosecution story. It
  DILPESH BALCHANDRA PANCHAL v. STATE OF                     611
        GUJARAT [HARJIT SINGH BEDI, J.]
has been further hig~11ighted that the witnesses had chosen to       A
implicate the appellant in a false case on account of the enmity
as the appellant who had been earlier employed by the
complainant party had been thrown out from seNice on account
of misbehaviour. It has finally been pleaded that the recovery
of the knife from the place of incident appeared to be unnatural     B
as an assailant would ordinarily not leave the weapon behind
while running away.

    8. The learned state counsel has, however, supported the
judgment of the courts below.
                                                                     c
      9. We have considered the arguments advanced by the
learned counsel for the parties. It is the conceded position that
the families of the accused and that of the complainant were
close neighbours though living on different floors in small sized
flats. It is also the prosecution case that the attack was           D
preceded by a scuffle and shouting and cries for help by the
victim which immediately attracted the two witnesses out of
their apartment and it was then that they saw the entire incident.
It is also relevant that the incident happened between 8.30 -
9.00 p.m. at which time the presence of the witnesses at home        E
would·be natural. It is true, as has been contended, that there
were 28 flats in the locality and no independent witness has
been examined by the prosecution. It is, however, now accepted
without any hesitation, that independent witnesses are never
forthcoming and the prosecution must, therefore, rely on close       F
associates or relatives of the complainant party in order to
support the prosecution story. The mere fact, therefore that no
independent witness has been examined, does not in any way
cast a doubt on the evidence of the parents of the deceased
who would be the last persons to leave out the actual assailants     G
and involve some others instead. It must also be borne in mind
that the appellant herein was the person who had allegedly
inflicted the knife blows on the deceased. In this view of the
matter, there is absolutely no doubt that he was the primary
assailant. It is also clear from the record including the            H
    612         SUPREME COURT REPORTS                [2010) 5 S.C.R.


A   statements under Section 313 of the accused that it was the
    appellant herein who had been thrown out from employment by
    PW 1. Ipso facto the motive for the attack was to lie primarily
    on him.

        10. The plea that the medfcal evidence falsified the
8
  prosecution story and that the number of injuries did not
  conform to the statements of the eye witnesses, must also be
   rejected. The submission of the counsel for the appellants that
   though only two injuries had been caused on the deceased as
   per the ocular evidence but eight had been found by the doctor,
C -is misplaced. The injuries found on the deceased during post-
   mortem are reproduced below:

          External injuries:

D          1.    From the outer corner of left eyebrow a 9 cm. above
                 a conduce abrasion 2x2 cm size.

           2.     On chest right nipple 5 cm. outward and 12 cm.
                  below horizontal 3x 1.5 cm. deep thrust stab wound.

E          3.     On right of stomach from right iliac bone 4.5 cm.
                  above mid auxiliary line horizontal thrust wound of
                  3x1 .5 cm. deep.

           Internal injuries:
F          4.    In right chest in 9th inter-costal space thrust wound
                 going downward.

           5.    A thrust wound going upward in the stomach wall.

           6.    In right lobe of liver 3 x 1.2 cm. horizontal thrust
G
                 wound which was near falsi farum liquiment in the
                 liver which pass across liver in inferior veena Cava
                 5 cm. liner cut.

           7.    A cut in right kidney artery and vein.
H
  DILPESH BALCHANDRA PANCHAL v. STATE OF '613
        GUJARAT [HARJIT SINGH BEDI, J.]
      8.    In stomach vacuum was 3.25 litre of blood mix fluid.      A

      11. Dr. Hiren Kantilal Mehta, who conducted the post-
mortem examination, had also co-related the external with the
internal injuries in the course of his evidence. It is significant
that injury No.1 is only an abrasion and could easily be caused
                                                                    8
during a scuffle or a fall that preceded or followed the actual
attack. In this view of the matter, there were only two effective
injuries (i.e. 2 and 3) and this fits in with the prosecution story
that only two injuries had been caused on the person of the
deceased as the internal injuries were a result of the two knife C
blows.

       12. The submission that an assailant would not leave the
murder weapon behind while running away must again be
rejected. The accused herein were not hardened criminals and
therefore conscious that the recovery of the murder weapon            D
would strengthen the prosecution story. It is also clear from the
evidence that on account of the cries made by the deceased,
his parents and two others had come out from the adjoining flats.
It is, therefore, probable that appellant in his anxiety to escape
had dropped the knife at the place of incident. In the light of the   E
prosecution evidence the involvement of the appellant who is
the main accused has been spelt out beyond doubt. It bears
repetition that the SLP filed by Balchandra, the father of the
appellant, had earlier been dismissed in limine vide order
dated 19th December 2008. We, therefore, find no merit in the         F
app~al. It is accordingly dismissed.

K.K.T.                                       Appeal dismissed.