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2018 DIGILAW 604 (GUJ)

Dipak @ Dipu v. State of Gujarat

2018-04-10

BELA M.TRIVEDI, SONIA GOKANI

body2018
JUDGMENT & ORDER : Sonia Gokani, J Appellants herein are the original accused of Sessions Case No.292 of 2011, who are aggrieved by the judgment and order of conviction passed by the learned Additional Sessions Judge, Court No.4, Ahmedabad City on 16.02.2013. Each of them individually preferred the Appeal being Criminal Appeals no. 527 to 530 of 2013 and since they all arise from a common judgment and questions of facts and law being identical in each of these appeals, they are being decided by this common judgment. Appellants (convicts) shall also be referred to A1 to A4, wherever their reference is needed in this judgment. 2. Facts in a nutshell are narrated as under: 2.1 The case of the prosecution as unfolded before the Court is that on 30.03.2011 as India won cricket match against Pakistan, the accused were celebrating that glorious moment by bursting crackers. People following different religions, since resided in this area known as " Magan Kumbhar's Mandir Chawl" ("the Chawl" for short), the complainant Rupesh alias Roopchand Harishchand and his brother Sunil alias Jagdish persuaded the accused not to celebrate by bursting crackers, since, they apprehended adverse reactions from other community based on their past experience. This was taken in a very offensive manner by all the appellant convicts who not only abused them, but, went home to fetch deadly weapons. Accused No.1 Dipak alias Dipu Kaluji Tank Khatik (A1) gave two to three blows of sword, Accused No.2 Mahendra Kaluji Tank Khatik (A2), Accused No.3Lalchand alias Bodiyo Kaluji Tank Khatik(A3) and Accused No.4 Mahesh alias Bhomo Kaluji Tank Khatik(A4) with iron pipes gave blows to the complainant and his brother Sunil. While under treatment, Sunil succumbed to the injuries on 31.03.2011 and the complainant-Rupesh lodged the First Information Report on 31.03.2011, which was registered as C.R.No.I200 of 2011 by Gomtipur police station for the offenses punishable under sections 307, 329, 294, 114 of the Indian Penal Code where section 302 and section 135 of the Bombay Police Act were also added after due investigation. Investigations culminated into filing of charge sheet before the Court of learned Metropolitan Magistrate. 2.2 The case, thereafter, was committed by the learned Metropolitan Magistrate to the Court of Sessions, as the offenses are exclusively triable by the Court of Sessions. Investigations culminated into filing of charge sheet before the Court of learned Metropolitan Magistrate. 2.2 The case, thereafter, was committed by the learned Metropolitan Magistrate to the Court of Sessions, as the offenses are exclusively triable by the Court of Sessions. 2.3 When the appellants accused pleaded not guilty, the charges came to be levelled against them vide Exh.2 on 15.09.2011 by Court No.10 of the learned Additional Sessions Judge and the prosecution examined as many as 16 witnesses and proved 28 documentary evidence to substantiate the charges. In a tabular form, details are incorporated of witnesses with exhibits as under" Sr. No. P.W. No. Name of the witness Exh. A Complainant 1 PW-2 Rupesh @ Roopchand Harishchand 20 B Witnesses C PW-11 Babulal Lalchand 51 1 PW-1 Dr.Bhavin S. Shah 11 2 PW- 13 Dr.Beena K. Parikh 54 D Panch witnesses 1 PW-3 Hardik Arvindbhai 23 2 PW-4 Govindbhai Ranchhodbhai 27 3 PW-5 Kandarp Lalbahadur Rajput 29 4 PW-6 Hardik Jayeshbhai 32 5 PW-7 Vijaybhai Shivaji Thakar 33 6 PW-8 Mukesh Manilal Yadav 35 7 PW-9 Prakash Ravjibhai 39 8 PW-10 Laxmanbhai Ratanbhai Khatri 43 E Police Witnesses 1 PW-12 Praful Ramjibhai Bhagora 52 2 PW-14 PSI-Shri H.S.Rathod 58 3 PW-15 PI-Shri V.M.Sharma 61 4 PW-16 PSO-S. M.Vasava 73 D FSL Documents Sr. NO. Description Exh. NO. Description Exh. A Complaint 1 Complaint FIR 21 2 Report under Section 157 to register complaint 60 3 Hospital Vardhi 59 4 Hospital Vardhi after death of deceased 63 5 Notification for prohibition of weapons 70 6 Map drawn by Circle 71 B Medical Documents 1 P.M. Report 12 2 Cause of Death Certificate 13 3 Police Yadi 14 4 Injury Certificate of deceased Sunil 55 C Panchnama 1 Discovery Panchnama of sword 24 2 Inquest Panchnama 28 3 Discovery Panchnama of pipes 30 4 Panchnama for the scene of offence 34 5 Panchnama of the scene of offence 36 6 Panchnama of the clothes of deceased 40 7 Panchnama of the body and clothes of accused Nos.1 & 2 44 D FSL Documents 1 Muddamal Ravangi Note 64 2 Forwarding letter of Forensic Science Laboratory 65 3 Report of Physics Department 66 4 Forwarding letter of FSL 67 5 Analysis Report 68 6 Serology Report 69 7 Yadi to FSL Officer and Report of FSL Officer 62 2.4 Further statements under section 313 of the Code of Criminal Procedure when were recorded, they simply denied the entire incriminating evidence. 2.5 The Court after allowing both the sides to make their oral submissions, appreciated the evidence adduced before it and held all the accused guilty of the offenses punishable under sections 302 read with section 114 of the Indian Penal Code and awarded life imprisonment with fine of Rs.1000/- and in default, to undergo further period of three months of punishment. The Court also held all of them guilty for the offense under section 135 (1) of the Bombay Police Act and awarded six months of rigorous imprisonment with Rs.250/- and in default, to undergo one month of simple imprisonment. All the sentences were to run concurrently and the muddamal articles were to be destroyed after expiry of the appeal period or if no appeal is preferred. The Court also gave set off of the period for which the accused remained as under trial prisoners. 3. Each accused convict has preferred separate Criminal Appeals as referred to herein above. 4. This Court has heard Ms. Kiran Pandey, learned advocate for the appellant, who has argued at length each point in favor of the convict and urged strenuously that the prosecution witnesses could not have been believed by the trial Court in convicting these persons. 3. Each accused convict has preferred separate Criminal Appeals as referred to herein above. 4. This Court has heard Ms. Kiran Pandey, learned advocate for the appellant, who has argued at length each point in favor of the convict and urged strenuously that the prosecution witnesses could not have been believed by the trial Court in convicting these persons. Moreover, there are serious discrepancies which would need to be taken into account by the Court and this was a clear case of acquittal. She has taken us through the entire set of evidence, oral as well as, documentary. 5. Mr. H.K.Patel, learned Additional Public Prosecutor for respondent-State has urged that it is an open and shut case and not only by the prosecution witnesses, but also from other evidence, the prosecution has succeeded in proving the complicity of each accused. 6. Before adverting to the evidence documentary as well as oral, this Court needs to look at the judgment rendered by the trial Court. 7. It could be seen that after discussing at length various witnesses, the Court on merits discussed the role of each accused emerging from the depositions of eyewitnesses and after considering at length the medical evidence in support of such oral version, it deemed it fit to conclude that this was a case of culpable homicide amounting to death and involvement of appellant accused has been proved beyond reasonable doubt by the prosecution. 8. Taking firstly the deposition of complainant, P.W. No.2, who had given his complaint on 31.03.2011 at Civil Hospital, which is registered as the First Information Report (FIR) being the C.R.No.I 200 of 2011 and the same has been produced at Exh.21 and according to him, they are five brothers. The eldest was Sunil, who passed away. It is the case of complainant that on 30.03.2011, all of them were watching cricket match between India and Pakistan at around quarter to 11:00 when India won the match, Dipak and his brothers A2 to A4 and others were celebrating with bursting crackers. To ensure that it does not give a wrong signal in neighbourhood and may not lend other persons in the area in difficulty, due to the sensitivity of the issues as both the communities following religions of Islam and Hinduism were residing in the same vicinity. To ensure that it does not give a wrong signal in neighbourhood and may not lend other persons in the area in difficulty, due to the sensitivity of the issues as both the communities following religions of Islam and Hinduism were residing in the same vicinity. All the four accused were infuriated and Dipak and his bothers also started abusing the complainant and his brothers. They rushed to their place and brought lethal weapons, where Dipak had carried with him a sword and A2, A3 and A4 had iron pipes in their hands. On questioning their authority, Dipak gave two to three blows of sword on the head of his brother and both the brothers with the iron pipes had given blows to the complainant. Hearing their hue and cry, other persons from the chawl had rushed to the place of occurrence and intervened and therefore, these four accused ran away from the place. This witness thus deposed that his brother since had sustained injuries of sword on his head, he was taken in an auto rickshaw to the hospital. This incident was recorded by the police Sub-Inspector, Gomtipur police station as mentioned above as C.R.No.I 200 of 2011. 9. Witness P.W.No.2 in his deposition at Exh.20 reiterated the entire contents of the First Information Report in his deposition in examination-in-chief. He further added that his brother passed away on 31.03.2011. After the post mortem, the dead body was handed over to the family. He identified the weapons being Muddamal Article No.11 sword and Articles No. 12, 13 and 14 as iron pipes used by the appellant convicts. 9.1 In the cross-examination, he agreed that he had very good terms with other residents of the Chawl. There are about 250 houses at the Chawl and they are mainly dominated by people following Hinduism. However, according to him, in the surrounding areas, Muslims also reside. He denied the suggestion that there had been any dispute in the past amongst Hindus and Muslims. He insisted that immediately at the end of the Chawl, one would find areas dominated by the persons following Islam. He denied suggestion that he had come out from his home with sword in his hands and injured Dipak at his neck. He also pleaded ignorance that Dipak was taken by his brothers to hospital and Sunil had abused all of them. He denied suggestion that he had come out from his home with sword in his hands and injured Dipak at his neck. He also pleaded ignorance that Dipak was taken by his brothers to hospital and Sunil had abused all of them. He denied the suggestion that it was the mob which had beaten him and his brother. He also denied the suggestion that he and his brother had been habituated to commit theft from the mills and the factories and, therefore, they had good terms with the police personnel’s of Gomtipur police station to manipulate the complaint. 10. As can be seen from the stand adopted in defense by the appellants is that they alleged the complainant and his brothers to be aggressors. Moreover, it was the mob, according to the appellant convicts, which had manhandled his brother and therefore, the deceased sustained fatal injuries. 11. P.W.No.11 is one of the eyewitnesses and also the nephew of deceased. He was at his shop on 30.03.2011 when India won India Pakistan cricket match. He, while was going on his Activa scooter, found that all the four accused were arguing with his maternal uncle. His uncle persuaded that they should not celebrate with crackers and all four of them had started abusing his maternal uncle and, after a while, these persons returned with weapons and A1 had sword with red colored thread. Rest of the three had pipes. A1 had given blow of sword on the head of his maternal uncle Sunil as well as to Jagdish also. Three to four persons, which include these witnesses, had attempted to explain and pacify the appellants and they also intervened in the same incident. His uncle had fallen down and many injuries were caused over his head. He was removed to the Civil Hospital and eventually had passed away. He identified the sword and the iron pipes and all the accused. 12. He specified as to which appellant gave what kind of blow. In the cross-examination, the version that he has given has not resiled. He was with his maternal uncle Sitaram from the year 1990. His maternal uncle was staying at the Chawl. He had taken his uncle in auto rickshaw to the hospital. When he lifted his body from the floor, his body and his clothes also were soaked in blood. In the cross-examination, the version that he has given has not resiled. He was with his maternal uncle Sitaram from the year 1990. His maternal uncle was staying at the Chawl. He had taken his uncle in auto rickshaw to the hospital. When he lifted his body from the floor, his body and his clothes also were soaked in blood. This witness in his detailed cross-examination had expressed total ignorance with regard to the injury sustained by appellant No.1Dipak. Some of the suggestions made to him would not have much importance, except that the defense put forward by the appellant is that it was the mob, which had beaten his maternal uncle. Of course, this has been denied specifically and clearly by the witnesses. These are the two witnesses, who have spoken of the very incident. The role of all the appellant convicts had been made very clear by both of them and the details given also were consistent with the First Information Report lodged by the first informant, who is the real brother of the deceased. There is no reason for falsely implicating these persons, as there is not even a whisper about any past incident of animosity by and between the parties. Our attention is drawn to certain discrepancies in the versions of the eye witnesses which are natural and not so significant so as to discard their versions completely. 13. In the case of Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 , the Apex Court was considering the behavioral pattern and perceptive habits of the witnesses, where the Court said that very sophisticated approach to which the Courts are familiar cannot be applied to those who are from a rustic background: "8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioral pattern and preceptive habits have to be judged as such. The too sophisticates approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic way so our villages. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioral pattern and preceptive habits have to be judged as such. The too sophisticates approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic way so our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The learned Sessions Judge has at some length dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the medical evidence and the postmortem certificate. Certainly, the Court which has seen the witnesses depose, has a great advantage over the appellate Judge who reads the recorded evidence in cold print, and regard must be head to this advantage enjoyed by the trial Judge of observing the demeanour and delivery, of reading the straightforwardness and doubtful candor, rustic naivet and clever equivocation, manipulated conformity and ingenious inveracity of persons who swear to the facts before him. Nevertheless, where a Judge draws his conclusions not so much on the directness or dubiety of the witness while on oath but upon general probabilities and on expert evidence, the Court of appeal is in as good a position to assess or arrive at legitimate conclusions as the Court of first instance. Nor can we make a fetish of the trial Judge's psychic insight." 14. The Apex Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, (1983) AIR(Supreme Court) 753, while appreciating the evidence of witnesses has held thus: "We do not consider it appropriate or permissible to enter upon a reappraisal or re-appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant. Over much importance cannot be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. Over much importance cannot be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment." 15. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment." 15. The Apex Court in the case of State of Punjab versus Jagir Singh, (1974) 3 SCC 277 , has held and observed that the criminal trial is not to be equated with a scene from a stunt film. It is a trial for ascertaining the guilt or innocence of the person, who is arraigned as an accused. Relevant paragraph is reproduced hereunder: "23.A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures." 16. Bearing in mind the ratio laid down by the Apex Court, while appreciating the evidence of the eyewitnesses, one of whom is himself an injured witness, it can be concluded that normal discrepancy in the evidence of these persons, which could be as a result of a normal error of observations and which again could be due to lapse of time or mental disposition, is not to be blown out of proportion. The evidence of both the witnesses, even though they are close relatives cannot be doubted and they can be said to be of the honest and truthful witnesses. 17. Worthwhile, it would be to refer to the medical evidence of Dr.Bhavin Shyamal Shah and Dr. The evidence of both the witnesses, even though they are close relatives cannot be doubted and they can be said to be of the honest and truthful witnesses. 17. Worthwhile, it would be to refer to the medical evidence of Dr.Bhavin Shyamal Shah and Dr. Bina Parikh, who was a medical officer at Civil Hospital, who was on duty on 30.03.2011. At around 11:35 p.m., one Sunil Khatik was brought by his brother Rupesh, who has given a case history saying that opposite party has beaten him with sword and sticks. Patient was unconscious and there was profuse bleeding from his left ear. 18. He was admitted to Surgical Unit of Dr.Beena Parikh. She found 2 x0.5 x 0.5 cms cut injury on left occipital region. She found certain injuries which she had narrated in case paper at Exh.55. She found 2.5 x 0.5x 0.5 cms. CLW on left ear. She also found 7 x 1 cms cut injury on the frontoparietal region. His left eye had turned black. There were abrasions on his face. Patient was treated as indoor patient. She agreed that in the history, no names of the aggressors or no names of the assailants were given by the brother of the injured. 19. P.W.No.14 is the Police Sub-Inspector, Gomtipur Police Station, who recorded the complaint of Rupeshbhai Harishchandra Shamaliya as Vardhi was received from Civil Hospital. At Exh-58, it is stated that a patient named Sunilbhai Harchandji Khatik was injured on 30.03.2011 at around 11:00 p.m. by the opposite party by a sword and he was brought at Civil Hospital from the Chawl. Police station was intimated by this witness P.W.No.14. He has stated that as the patient since had died, the investigation was handed over to P.I. Shri Sharma (PW.No.15). This witness had recorded the complaint. He had reached the Civil Hospital, the moment he received the Vardhi. It appears that the injured had died and, therefore, the First Information Report which was lodged being C.R.No.I32 of 2011 registered with Gomtipur police station. There was an addition of section 302 of the Indian Penal Code. 20. The body was sent for post mortem, after inquest panchnama was carried out. Dr.Bhavin Shah was on duty. The dead body was brought to him as per the inquest panchnama, according to this witness, the man had died during the treatment at the hospital on 31.03.2011. There was an addition of section 302 of the Indian Penal Code. 20. The body was sent for post mortem, after inquest panchnama was carried out. Dr.Bhavin Shah was on duty. The dead body was brought to him as per the inquest panchnama, according to this witness, the man had died during the treatment at the hospital on 31.03.2011. The injuries found on the person of the deceased have been specified at Column No.17. Internal injuries at various columns also have been detailed. It is concluded that the said injuries on the head and on different parts of the body resulted into profuse bleeding and due to the shock, the same resulted into death of the person. 20.1 In the cross-examination, he had specified that except Injury No.12, rest of the injuries are simple injuries. Injury no.12 could happen with the sword. He denied that this injury would be possible if person falls down or a short edged stone hits the person. He had also seen the weapons and had stated clearly that all the injuries shown in Column No.17 could happen with these weapons and all the injuries were collectively sufficient to cause death of a person. 21. These evidence of both the medical persons clearly and heavily supported the case of the prosecution witnesses, who have spoken of the injuries being caused by the sword and iron pipe. According to the medical evidence also, the weapons which had been seized by the police during the course of investigation could cause the injuries sustained by the person of the deceased. All injuries were ante mortem in nature. All injuries were cumulatively capable of causing death. Injury No.12, which is possible with sword was alone sufficient for causing the death of a person. 22. Apt would it be to refer to the deposition of P.W.No.3 Hardik Arvindbhai Rathod, who was one of the Panchas and who presence at the time of discovery of the weapon, sword, has been made out. Such a discovery was at the instance of the accused A1. He had stated before the Panch witnesses that he had shown his willingness to show the weapon, which was kept in a house which was locked. It had blood stains on it and the witnesses had given the entire detail as to how the same was seized and sealed. Such a discovery was at the instance of the accused A1. He had stated before the Panch witnesses that he had shown his willingness to show the weapon, which was kept in a house which was locked. It had blood stains on it and the witnesses had given the entire detail as to how the same was seized and sealed. 22.1 In the cross-examination, he had agreed to the suggestion initially that in the Panchnama, there is no reference of the accused showing the weapon, which was used by him, however, he insisted that the appellant convict had used those swords. He also agreed that the weapon was abandoned on the roof of the house which was closed. 23. Likewise, P.W.No.5 Kandarp Lalbahadur Rajput is the panch witness in whose presence appellant-Mahesh had shown his desire to show the pipe. He with other witnesses had been taken in a police vehicle at Sarangpur Garden Mill. Appellant convict while walking towards the pepal tree (Ficus religiosa or sacred fig) had shown three pipes. 23.1 The Mill was in a closed condition. There was nobody to stop them when they entered into it. There was no lock on the gate. Legal question is as to how much of the facts revealed by the accused could be made admissible under section 27 of the Indian Evidence Act! 23.2 The fact must not be within the knowledge of the police officer and discovery of fact should be as a consequence of information received. Such disclosure of course should be from any element of compulsion. This provision relates to the nature and extent of information and so much of information as that relates to the fact discovered. 23.3 It is detailed in the decision of the Apex Court in the case of Charandas Swami vs. State of Gujarat and another passed in of Criminal Appeal No. 1549 of 2017 on 10.04.2017 while discussing section 27 of the law, the Court held and observed thus: "In our view, the decision in the case of Navjot Sandhu has adverted to all the previous decisions and restated the legal position. In paragraph 114, while considering the arguments advanced by the parties regarding the sweep of Section 27 of the Evidence Act, the Court formulated two questions which read thus: "(i) Whether the discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things - concrete or non concrete. (ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance. The subsequent event of discovery by the police with the aid of information furnished by the accused - whether can be put against him under Section 27." In the context of these questions, the argument of the counsel for the State in that case has been adverted to in paragraphs 115 to 118. The Court then after analyzing Section 27 of the Evidence Act, in paragraphs 120 to 144 adverted to the relevant decisions on the point. In paragraphs 120 and 121, the Court noted thus: "120. The history of caselaw on the subject of confessions under Section 27 unfolds divergent views and approaches. The divergence was mainly on twin aspects: (i) Whether the facts contemplated by Section 27 are physical, material objects or the mental facts of which the accused giving the information could be said to be aware of. Some Judges have gone to the extent of holding that the discovery of concrete facts, that is to say material objects, which can be exhibited in the Court are alone covered by Section 27. (ii) The other controversy was on the point regarding the extent of admissibility of a disclosure statement. In some cases a view was taken that any information, which served to connect the object with the offence charged, was admissible under Section 27. The decision of the Privy Council in Kottaya case which has been described as a locus classicus, had set at rest much of the controversy that centred round the interpretation of Section 27. To a great extent the legal position has got crystallised with the rendering of this decision. The authority of the Privy Council's decision has not been questioned in any of the decisions of the highest court either in the preor postindependence era. To a great extent the legal position has got crystallised with the rendering of this decision. The authority of the Privy Council's decision has not been questioned in any of the decisions of the highest court either in the preor postindependence era. Right from the 1950s, till the advent of the new century and till date, the passages in this famous decision are being approvingly quoted and reiterated by the Judges of this Apex Court. Yet, there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State. 121. The first requisite condition for utilizing Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kottaya case 64: (AIR p. 70, para 10) "clearly the extent of the information admissible must depend on the exact nature of the fact discovered" and the information must distinctly relate to that fact. As pointed out by the Privy Council in Kottaya case 64: (AIR p. 70, para 10) "clearly the extent of the information admissible must depend on the exact nature of the fact discovered" and the information must distinctly relate to that fact. Elucidating the scope of this section, the Privy Council speaking through Sir John Beaumont said: (AIR p. 70, para 10) "Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused." We have emphasised the word "normally" because the illustrations given by the learned Judge are not exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in its entirety. Such contention of the Crown's counsel was emphatically rejected with the following words: (AIR p. 70, para 10) "If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect." Then, Their Lordships proceeded to give a lucid exposition of the expression "fact discovered" in the following passage, which is quoted time and again by this Court: (AIR p. 70, para 10) "In Their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 46. This Court has restated the legal position that the facts need not be self probatory and the word "fact" as contemplated by Section 27 is not limited to "actual physical material object". It further noted that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It further noted that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. In paragraph 128, the Court noted the statement of law in Udai Bhan that, "A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence." The Court then posed a question as to what would be the position if the physical object was not recovered at the instance of the accused. That issue has been answered on the basis of precedents, as can be discerned from Paragraphs 129 to 132 of the reported judgment. In paragraph 139, the Court noticed the decision in the case of Damu which had dealt with the case where broken glass piece was recovered from the spot matched with broken tail lamp and in paragraph 37 of that decision, the Court observed thus: "37. How did the particular information lead to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A2 Guruji, it can safely be held that the investigating officer discovered the fact that A2 Guruji had carried the dead body on that particular motorcycle up to the spot.". The Court then noted that the above view taken in Damu's case does not make it a dent on the observations made and the legal position spelt out in Om Prakash which distinguishes Damu's case because there was discovery of a related physical object at least in part. We may usefully reproduce paragraph No.142 to 144 of the same reported decision, wherein the Court observed thus: "142. There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. We may usefully reproduce paragraph No.142 to 144 of the same reported decision, wherein the Court observed thus: "142. There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the investigating officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact viz. the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence." "143. How the clause "as relates distinctly to the fact thereby discovered" has to be understood is the next point that deserves consideration. The interpretation of this clause is not in doubt. Apart from Kottaya case various decisions of this Court have elucidated and clarified the scope and meaning of the said portion of Section 27. The law has been succinctly stated in Inayatullah case. The interpretation of this clause is not in doubt. Apart from Kottaya case various decisions of this Court have elucidated and clarified the scope and meaning of the said portion of Section 27. The law has been succinctly stated in Inayatullah case. Sarkaria, J. analysed the ingredients of the section and explained the ambit and nuances of this particular clause in the following words: (SCC p. 832, para 12) "The last but the most important condition is that only 'so much of the information' as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word 'distinctly' means 'directly', 'indubitably', 'strictly', 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly relates to the fact thereby discovered' is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered." In the light of the legal position thus clarified, this Court excluded a part of the disclosure statement to which we have already adverted. 144. In Bodhraj v. State of J&K this Court after referring to the decisions on the subject observed thus: (SCC p. 58, para 18) "The words 'so much of such information' as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate." 47. Reliance was also placed on the recent decision of this Court in the case of Dupare. The Court adverted to the relevant precedents and observed thus, in paragraphs 23 to 29: "23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. Reliance was also placed on the recent decision of this Court in the case of Dupare. The Court adverted to the relevant precedents and observed thus, in paragraphs 23 to 29: "23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor has held thus: (IA p.77) "... it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......" 23.4 In the instant case, from the evidence of above referred panchas, the trial Court has rightly placed reliance on the fact discovered by the Investigating Officer, which later on gets corroborated by the evidence of FSL. 24. P.W.No.7 Vijaybhai Shivajibhai Thakor had spoken of Panchnama drawn at the Chawl, whereas P.W.No.8 Munilal Yadav found blood of the floor on the place of offence. The samples were drawn in the presence of FSL personnel’s. The cloths of the deceased were received from the post mortem doctor. They too were required to be seized. 25. It would be vital to refer to the deposition of P.W.No.10 Ratanbhai Khatri, who stated that appellants A1 and A2 both were present. Their clothes also had been recovered from these appellants. 25.1 The FSL report clearly reveals that the blood group of the deceased is "B". They too were required to be seized. 25. It would be vital to refer to the deposition of P.W.No.10 Ratanbhai Khatri, who stated that appellants A1 and A2 both were present. Their clothes also had been recovered from these appellants. 25.1 The FSL report clearly reveals that the blood group of the deceased is "B". The sword also had Blood Group "B" on it. The shirt and pant of appellant A1 had shown presence of blood group "A" whereas from the tar road, the blood found was of Blood Group "B". The blood taken of appellant Dipak is shown as undecided. There is a fair possibility of his blood group being "A" as his shirt and pant both are having blood group "A". Possibility of his sustaining injuries also cannot be ruled out and that is also the line of defence pursued by the defence. However, we have not believed the allegation of complainant and his brother being aggressors and also have denied hereinafter that version at paragraph 28 in this judgment. 26. From the entire gamut of facts, which have been established by the prosecution and also from the oral as well as documentary evidence, it can be concluded that the prosecution succeeded in proving the complicity of each of the accused, who not only had been annoyed by the advice given by the deceased of not to burst crackers on the win of India at India and Pakistan Match, he was more concerned with the equilibrium being not disturbed since some of the residents at the end of the Chawl were following Islam. May be out of some past experience or because of the stories often noticed in the newspapers, he was apprehensive of such act of the appellants convicts having potency of converting into a serious act of communal riot. He had attempted to persuade A1 and others, who are his brothers. Not only they abused him and left the place, but came back prepared with weapons like sword and iron pipes and started beating the brother of the complainant. When the complainant intervened, he too was beaten and sustained the injuries. So far as the deceased is concerned, the injuries given to him over the head and multiple injuries caused on the other part of his body were sufficient to cause death in the ordinary course of nature. When the complainant intervened, he too was beaten and sustained the injuries. So far as the deceased is concerned, the injuries given to him over the head and multiple injuries caused on the other part of his body were sufficient to cause death in the ordinary course of nature. Injury No.2, according to the Medical Officer, is the cause of death of a person. This was an act of culpable homicide amounting to murder. 27. Ms. Pandey, learned advocate for the appellants had attempted to argue forcefully before this Court that at the spur of the moment, the appellants caused injuries, and therefore, the case has to fall under the exception to section 300 of the Indian Penal Code and the same should be construed as culpable homicide not amounting to murder, where they can be punished for the knowledge and not for the intention of causing death of a person. She also further argued that the injuries on the person of A1 has not been explained by the prosecution at all and that is also a major infirmity in the case of prosecution, which should be a valid and vital ground for the Court to quash and set aside the judgment and set the appellant convicts free. Although, apparently convincing at the first blush, these submissions on a closer examination would not have any sustainability under the law. 28. We could notice from the evidence of the first informant himself, that being a brother of the deceased, he had no reason to falsely involve any of the appellants with the incident. The incident of causing serious injuries the incident had happened when the deceased brother of the first informant had tried to persuade these appellants not to burst the crackers. Had that been the case, the say of the learned advocate Ms. Pandey could be still appreciated. The appellants convicts who were annoyed by such unsolicited advice left the place and went home from where they had brought the sword as well as iron pipes to cause lethal injuries to the deceased. Thus, it was a premeditated act of bringing the lethal weapons with which they had given the blow on the vital parts of the body of the deceased. Thus, it was a premeditated act of bringing the lethal weapons with which they had given the blow on the vital parts of the body of the deceased. If any injury has been caused during this incident with the weapon of the appellant, themselves and if A1 himself had sustained the injury, the possibility cannot be ruled out of the same since indiscriminate blows given by the appellants to the deceased may also result into one of the blows being hit to one of the appellants himself. If the complainant failed to notice this injury that per se may not be the ground for disbelieving the entire version of the complainant whose presence was quite natural at the time of the incident for his residence being in the very Chawl. Prosecution succeeded in proving that the act of appellants amount to culpable homicide amounting to murder and none of the exceptions prescribed under section 300 would come to the rescue of the appellant convicts. 29. Moreover, there is no cross complaint of the appellants on this version nor any other valid and legally admissible material for this Court to question the very edifice of prosecution case. 30. Question that thus required to be addressed is whether injury on the person of the accused has remained unexplained so as to disbelieve the entire case of prosecution and our answer after thoughtful consideration on examination of material on record is in negation. 31. Deceased has succumbed to the injuries sustained by him with sword and the total number of injuries on the person of the deceased as per the postmortem note is 17. Prosecution witnesses have been categorical about indiscriminate blows given to the deceased and the kinds of weapons appellants were armed with, which include sword and wooden sticks in the hands of rest of the three appellants i.e. A2, A3 and A4. Thus, as stated above, a single blow to the A1 in this heat of passion cannot be termed unusual. 32. In conclusion, we hold that prosecution succeeded in proving beyond reasonable doubt culpable homicide amounting to murder and the Court has rightly convicted them for life imprisonment considering cumulatively the oral and as well as documentary evidence. 33. Thus, as stated above, a single blow to the A1 in this heat of passion cannot be termed unusual. 32. In conclusion, we hold that prosecution succeeded in proving beyond reasonable doubt culpable homicide amounting to murder and the Court has rightly convicted them for life imprisonment considering cumulatively the oral and as well as documentary evidence. 33. However, so far as grant of compensation to the injured witness, who is the first informant and to the family of the victim deceased, is concerned, the judgment and order of the trial Court is sadly lacking such order. We have often noticed that despite reiterative emphasis on the part of the Apex Court on his issue of grant/rejection of compensation, Criminal Courts seldom pay heed to this vital aspect. 34. The Apex Court in the case of Ankush Shivaji Gaikwad vs State Of Maharashtra, (2013) 6 SCC 770 , while emphasizing on the need for rights of the victim has held and observed that it is mandatory duty of the Criminal Court to apply its mind to the question of awarding compensation in every case. Such power is not ancillary to every sentence but in addition thereto. Exercise of such power is best disclosed by either allowing or refusing the amount of compensation by reasons. 35. The Court further held that section 357 of the Code of Criminal Procedure confers power coupled with duty on Court to mandatorily apply its mind in every Criminal Case. The factors to be considered and recognize the rights of victim of crime and introduction of section 357(A) for further strengthening victims rehabilitation. Relevant paragraphs are reproduced as under: "45. The language of Section 357 Cr.P.C. at a glance may not suggest that any obligation is cast upon a Court to apply its mind to the question of compensation. Subsection (1) of s.357 states that the Court "may" order for the whole or any part of a fine recovered to be applied towards compensation in the following cases: (i) To any person who has suffered loss or injury by the offence, when in the opinion of the Court, such compensation would be recoverable by such person in a Civil Court. (ii) To a person who is entitled to recover damages under the Fatal Accidents Act, when there is a conviction for causing death or abetment thereof. (ii) To a person who is entitled to recover damages under the Fatal Accidents Act, when there is a conviction for causing death or abetment thereof. (iii) To a bona fide purchaser of property, which has become the subject of theft, criminal misappropriation, criminal breach of trust, cheating, or receiving or retaining or disposing of stolen property, and which is ordered to be restored to its rightful owner. 46. Subsection (3) of Section 357 further empowers the Court by stating that it "may" award compensation even in such cases where the sentence imposed does not include a fine. The legal position is, however, wellestablished that cases may arise where a provision is mandatory despite the use of language that makes it discretionary. We may at the outset, refer to the oft quoted passage from Julius v. Lord Bishop of Oxford, 1880 5 AC 214, where the Court summed up the legal position thus: "The words 'it shall be lawful' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so..." 47. There is no gainsaying that Section 357 confers a power on the Court in so far as it makes it "legal and possible which there would otherwise be no right or authority to do" viz. to award compensation to victims in criminal cases. There is no gainsaying that Section 357 confers a power on the Court in so far as it makes it "legal and possible which there would otherwise be no right or authority to do" viz. to award compensation to victims in criminal cases. The question is whether despite the use of discretionary language such as the word "may", there is "something" in the nature of the power to award compensation in criminal cases, in the object for which the power is conferred or in the title of the persons for whose benefit it is to be exercised which, coupled with the power conferred under the provision, casts a duty on the Court to apply its mind to the question of exercise of this power in every criminal case. x xx x xx x xx x xx x xx x xx 62. To sum up: While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family." 36. We would deem it appropriate to direct the Ahmedabad City State Legal Services Authority to determine compensation in absence of any direction from the trial Court and for want of any appeal of the State or that of the victim. 37. We would deem it appropriate to direct the Ahmedabad City State Legal Services Authority to determine compensation in absence of any direction from the trial Court and for want of any appeal of the State or that of the victim. 37. Resultantly, no interference is desirable in the judgment and order passed by the learned Additional Sessions Judge, Ahmedabad City, in Sessions Case No.292 of 2011 on 16.02.2013. Punishment of life to each of the four appellants whose role has been clearly defined and proved beyond reasonable doubt by the cogent and trustworthy some evidence of the prosecution adduced in the trial is being confirmed. 38. The trial Court committed no error at all in holding them guilty by holding in terms that the prosecution established beyond reasonable doubt complicity of each of the person. 39. Each of the convict appellants shall undergo life imprisonment for the offence under section 302 of the Indian Penal Code and shall pay the fine of Rs.1000/- and in default to undergo rigorous imprisonment of three months as directed by the trial Court. They shall also undergo six months of rigorous imprisonment under section 135 of the Gujarat Police Act and pay fine of Rs.250/- and, in default, to undergo 01 month of rigorous imprisonment as awarded by the trial Court. Both the sentences shall run currently. 40. Additionally, under the Victims Compensation Scheme, as notified by the State Government under section 357A of the Code of Criminal Procedure, learned Principal Judge, City Civil & Sessions Court shall decide in accordance with scheme the amount of compensation within the period of 12 weeks from the date of receipt of the copy of this judgment. 41. All the appeals in the above manner, stand dismissed and disposed of.