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Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1694 of 2009

Harijan Jivrajbhai Badhabhai               ….Appellant

Versus

State of Gujarat        …. Respondent    

J U D G M E N T  

Uday Umesh Lalit, J.

1. 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).  

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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 6 th 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

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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.

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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

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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.

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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.

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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.”

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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

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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

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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.

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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

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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

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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

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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)

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

New Delhi May 11, 2016