[REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 2215 OF 2009

Dilpesh Balchandra Panchal                         …….Appellant

Vs.

State of Gujarat                                             …….Respondent

      J U D G M E N T  

HARJIT SINGH BEDI,J.

1. This  appeal  by  way  of  special  leave  arises  out  of  the  

following facts:

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2. On 16th August 1999 at about 8.30 p.m. Ravubha the  

complainant  and  his  wife  Lilaba  along  with  their  son  

Indrasinh and his wife and children were at their residential  

Flat  No.28,  Madhuben  Apartments,  village  Aduput,  District  

Kutch.  Indrasinh, however,  left  the house for purchasing a  

beedi from the adjoining shop.  Ravubha, however, called out  

to him to return to the house immediately and a few seconds  

later Ravubha and Lilaba heard Indrasinh seeking help.  They  

rushed out  of  their  apartment  and saw that Indrasinh had  

been  caught  by  the  first  accused  Balchandra  Parmanand  

Panchal and his son Hitesh Balchandra whereas the second  

son Dilpesh Balchandra, the appellant herein,  was inflicting  

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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 Indrasinh to the  

hospital.  Other relatives of Indrasinh and the police were also  

informed on the phone as to what had 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 Station and thereafter proceeded to  

the Rambagh hospital and recorded the statement of Ravubha  

whereupon a case under Section 302 and 114 of the IPC and  

under Section 135 of the Bombay Police Act was registered.  

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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  

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  parents  of  the  deceased  Ravubha  and  Lilaba,  and  in  

addition  to  the  medical  evidence  and  the  evidence  of  the  

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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 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.

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  

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imprisonment  for  six  months.   An  appeal  was  thereafter  

taken 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  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  

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appeal of Hitesh Balchandra was allowed and he was 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  

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  

imprisonment for life imposed by the trial court and confirmed  

by the High Court was not justified nor maintainable in law.  

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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  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  

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  

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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 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 presence of the witnesses as well as the prosecution  

story.  It has been further highlighted that the witnesses had  

chosen to 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 service on  

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account of misbehaviour.  It  has finally been pleaded that  

the recovery of the knife from the place of incident appeared to  

be unnatural 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.

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 preceded by a scuffle and shouting and cries for  

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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 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 associates  

or relatives of the complainant party in order to support the  

prosecution  story.   The  mere  fact,   therefore  that  no  

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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 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 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.   

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10. The  plea  that  the  medical  evidence  falsified  the  

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,  is  misplaced.   The  injuries  found  on  the  

deceased during post-mortem are reproduced below:

External injuries:

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

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

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: 1. In right chest in 9th inter-costal space thrust wound  

going downward. 2. A thrust wound going upward in the stomach wall. 3. In right lobe of liver 3 x 1.2 cm. horizontal thrust  

wound which was near falsi farum liquiment  in the liver which pass across liver in inferior  veena Cava  5 cm. liner cut.

4. A cut in right kidney artery and vein. 5. In  stomach  vacuum  was  3.25  litre  of  blood  mix  

fluid.

11. Dr.  Hiren  Kantilal  Mehta,  who  conducted  the  post-

mortem examination, had also co-related the external with the  

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internal  injuries  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  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.

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  

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weapon 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  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  appeal.   It  is  

accordingly dismissed.

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……………………………. J.

(HARJIT SINGH BEDI)

……………………………..J. (C.K.PRASAD)

New Delhi, Dated: 29 April, 2010

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